baby let's rap - roberts v. sugar hill publishing.pdf
TRANSCRIPT
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86. The Sugar Hill Defendants have failed to provide a detailed accounting so that
Mr. Roberts can determine what specific amount of money to which he is entitled and have
failed to provide Mr. Roberts a copy of the Spaceship Coupe License Agreement.
87. If the Sugar Hill Defendants are permitted to withhold this information, which is
necessary for Mr. Roberts to determine what amount of money he is owed, they will be unjustly
enriched, to Roberts' detriment.
88. If the Sugar Hill Defendants are permitted to retain the amounts they have
wrongfully withheld from Roberts, they will be unjustly enriched, to Roberts' detriment.
89. The Sugar Hill Defendants have thus been unjustly enriched by obtaining the
benefit of the 2008 Settlement Agreement and the Spaceship Coupe Licensing Agreement
without providing Roberts his share of the associated royalties.
90. Roberts is entitled to a full, detailed accounting and to collect these wrongfully
withheld royalties.
AS AND FOR AN NINTH CAUSE OF ACTION (QUANTUM MERUIT)
91. Roberts repeats and re-alleges each and every allegation contained m the
preceding paragraphs of this Complaint, and incorporates them herein by reference.
92. Roberts performed his obligations under the 2008 Settlement Agreement in good
faith and entered into the Keith Settlement Agreement with the understanding that the Sugar Hill
Defendants would honor this settlement with the Keith Estate and would provide the information
necessary in the form of an accounting for Mr. Roberts to enforce his rights under 2008
Settlement Agreement.
93. The Sugar Hill Defendants received the benefit of settling the 2004 Action and
the benefit of the Spaceship Coupe Licensing Agreement.
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94. The Sugar Hill Defendants have failed to honor the reapportionment of the
writer's credit in the Keith Settlement Agreement, and have generally failed in their duties as
music publishers of the Sugar Hill Composition.
95. Roberts is entitled to his fair portion of the writer's credit and a full and detailed
accounting of any royalties from and costs associated with the Sugar Hill Composition.
JURY DEMAND
Plaintiff demands trial by jury on all issues so triable herein.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests judgment against Defendants as
follows:
A. Enter judgment against Joey Robinson Jr. on the First Count alleged
herein, piercing the corporate veils of the Sugar Hill Defendants and declaring that Robinson is
liable, personally and individually, for any judgments in this action against either of the Sugar
Hill Defendants;
B. Enter judgment against all Defendants on the Second Count alleged
herein, and order the Defendants to 1) provide a detail accounting of any royalties from and costs
associated with the Sugar Hill Composition; 2) provide a copy of the Spaceship Coupe License
Agreement and other information related to the agreement; and 3) pay Roberts all past, current,
and future royalties related to the composition, an amount to be determined at trial, but believed
to be in excess of $75,000, plus interest accrued and continuing to accrue thereon;
C. Enter judgment against all Defendants on the Third Count alleged herein,
declaring that Roberts is entitled under the 2008 Settlement Agreement and the Keith Settlement
Agreement to 1) a detailed accounting of any royalties from and costs associated with the Sugar
Hill Composition; 2) a copy of the Spaceship Coupe License Agreement and other information
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related to the agreement; and 3) a 1/3 music credit and 2/3 lyrics credit for the Sugar Hill
Composition, and all past, current, and future royalties related to the composition;
D. Enter judgment against all Defendants on the Fourth Count alleged herein,
and order the Defendants to honor the Keith Settlement Agreement and awarding Roberts
damages in an amount to be determined at trial, but believed to be in excess of $75,000, plus
interest accrued and continuing to accrue thereon;
E. Enter judgment against all Defendants on the Fifth Count alleged herein,
ordering the Defendants to 1) provide a detail accounting of any royalties from and costs
associated with the Sugar Hill Composition; 2) provide a copy of the Spaceship Coupe License
Agreement and other information related to the agreement; 3) perform their fiduciary duty to
Roberts as music publishers of the Sugar Hill Composition; and 4) pay Roberts all past, current,
and future royalties related to the composition, an amount to be determined at trial, but believed
to be in excess of $75,000, plus interest accrued and continuing to accrue thereon;
F. Enter judgment against all Defendants on the Sixth Count alleged herein,
awarding Roberts the equitable relief of divesting the Sugar Hill Defendants of their publishing
share derived from Roberts' writer contribution;
G. Enter judgment against all Defendants on the Seventh Count alleged
herein, ordering the Defendants to 1) provide a detail accounting of any royalties from and costs
associated with the Sugar Hill Composition; and 2) provide a copy of the Spaceship Coupe
License Agreement and other information related to the agreement;
H. Enter judgment against all Defendants on the Eighth Count alleged herein,
ordering the Defendants to 1) provide a detail accounting of any royalties from and costs
associated with the Sugar Hill Composition; 2) provide a copy of the Spaceship Coupe License
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Agreement and other information related to the agreement; 3) perform their fiduciary duty to
Roberts as music publishers of the Sugar Hill Composition; and 4) pay Roberts all past, current,
and future royalties related to the composition, an amount to be determined at trial, but believed
to be in excess of $75,000, plus interest accrued and continuing to accrue thereon;
I. Enter judgment against all Defendants on the Ninth Count alleged herein,
ordering the Defendants to 1) provide a detail accounting of any royalties from and costs
associated with the Sugar Hill Composition; 2) provide a copy of the Spaceship Coupe License
Agreement and other information related to the agreement; 3) perform their fiduciary duty to
Roberts as music publishers of the Sugar Hill Composition; and 4) pay Roberts all past, current,
and future royalties related to the composition, an amount to be determined at trial, but believed
to be in excess of $75,000, plus interest accrued and continuing to accrue thereon;
J. Awarding Roberts such other and further relief as the Court may deem just
and proper.
Dated: April 7, 2015 Respectfully submitted,
FOLEY & LARDNER LLP
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o ert . Weisbein, Esq. Adam Pence, Esq. FOLEY & LARDNER LLP 90 Park A venue New York, New York 10016-1314 Telephone: (212) 682-7474 Facsimile: (212) 682-23299 rweisbein@foley .com apence@foley .com
Attorneys for Plaintiff Mark Roberts
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Case 1:04-cv-10079-LAP Document 1 Filed 12/21/04 Page 1 of 17
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------------- )(
MARK ROBERTS,
Plaintiff,
v.
NATHANIEL THOMAS KEITH, ADMINISTRATOR OF THE EST ATE OF NORMAN THOMAS KEITH, a.k.a. TOMMY KEITH, MOE MOORE, SUGARHILL RECORDS LTD., SUGAR HILL MUSIC PUBLISHING LTD., GAMBI MUSIC INC., TWENTY NINE BLACK MUSIC, SYLVIA ROBINSON, JOSEPH ROBINSON JR., RHINO RECORDS, SANCTUARY RECORDS GROUP LTD., CASTLE MUSIC UK AND SEQUEL RECORDS,
Defendants.
-------------------------------------------------------------------- )(
No.
COMPLAINT
Complaint for Copyright Infringement
Demand for Jury Trial
Plaintiff, Mark Roberts, by his attorneys, Germaine A. Corprew and Tracy
Richelle High, brings this action against defendants Nathaniel Thomas Keith, the
Administrator of the Estate of Norman Thomas Keith and Moe Moore (the "Copying
Defendants"); Sugar Hill Records Ltd., Sugar Hill Publishing Ltd., Gambi Music, Twenty
Black Mu;ic, Sylvia Robinson and Joseph Robinson Jr. (the "Publishing Defendants");
and RHINO RECORDS, SANCTUARY RECORDS GROUP LTD., CASTLE MUSIC UK, and
SEQUEL RECORDS (the "Distributing Defendants"), alleges as follows, on information and
belief, e)Ccept for information based on personal knowledge, which allegations are likely
to have evidentiary support after further investigation and discovery:
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Case 1:04-cv-10079-LAP Document 1 Filed 12/21/04 Page 2 of 17
NATURE OF ACTION
1. Starting around 1975, Mr. Roberts aspired to be a songwriter, and from
1976 to 1977 wrote lyrics to three original songs (the "Works"): Love Trap, The Woman
That Got Away and Baby Let's Talk Now, Dance Later. Mr. Roberts sought to copyright
his work using a method employed by many budding lyricists. He mailed each of his
original works to himself in a sealed envelope, so that in the event of a dispute over
ownership of his lyrics, he could show ownership by opening the sealed envelopes and
presenting their contents. On May 31, 1976, he mailed the original lyrics to Love Trap to
himself. On December 11, 1976, he mailed the original lyrics to The Woman That Got
Away to himself. On February 28, 1977, he mailed the original lyrics to Baby Let's Talk
Now, Dance Later to himself.
2. In January 1978, with the intention of working with an established
producer in the music industry, Mr. Roberts mailed the original lyrics to his three Works
to Norman Thomas Keith, also known as, Tommy Keith. At that time, Mr. Keith was the
producer for the 1970's R&B group the "Moments." The Moments recorded for STANG
RECORDS, a subsidiary of ALL PLATINUM RECORDS. ALL PLATINUM RECORDS was
established in 1968 in Englewood, New Jersey, by Ms. Sylvia Robinson and her husband
Joseph Robinson Sr.
3. On or about February 3, 1978, Mr. Keith sent a telegram to Mr. Roberts
requesting that Mr. Roberts contact him to discuss the Works. Later that month, Mr.
Roberts contacted Mr. Keith Mr. Keith told Mr. Roberts that he liked Mr. Roberts'
lyrics; that he wanted Mr. Roberts to send him more lyrics; and that he wanted the
Moments to record tre Works.
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4. In March 1978, Mr. Keith called Mr. Roberts regarding Baby Let's Talk
Now, Dance Later, and told Mr. Roberts that he liked that song, and asked if Mr. Roberts
had an idea as to the melody oftmt Work. In response, Mr. Roberts sung Baby Let's
Talk Now, Dance Later for Mr. Keith over the telephone. Later that month, Mr. Keith
played for Mr. Roberts, over the telephone, the three Works Mr. Roberts had forwarded
to Mr. Keith
5. In the Spring of 1978, Mr. Keith informed Mr. Roberts that the Moments
were leaving ALL PLATINUM RECORDS due to a dispute regarding the promotion of one of
their albums, and that he would be using the three Works with the "Rimshots," another
group he produced.
6. In the Summer of 1978, Mr. Keith contacted Mr. Roberts once af?ftin, this
time, however, to tell Mr. Roberts that he would be using the three Works on his solo-
album due to be released sometime during 1979.
7. In early 1979, Mr. Keith contacted Mr. Roberts and informed him that the
record label had m interest in seeing Mr. Keith do a solo album.
8. Later that same year, Mr. Keith contacted Mr. Roberts and informed him:
that the record labels he worked for, ALL PLATINUM RECORDS, STANG RECORDS and
VIBRATION RECORDS, which were owned and operated by the Defendants Sylvia and
Joseph Robinson, were closing down; that he would not be needing the lyrics to the three
Works; that he would never publish or use Mr. Roberts' three Works; and that Mr.
Roberts could have his original lyrics back.
9. In the Summer of 1979, Mr. Keith contacted Mr. Roberts to tell him that
ALL PLATINUM RECORDS was now operating as SUGAR HILL RECORDS, and that he was
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involved in a new kind of music called "Rap." At that time, SUGAR HILL RECORDS was
owned by Ms. Robinson, who had formed the label in 1979 in order to take advantage of
the new "novelty" music called Rap that she had experienced while attending block
parties throughout the New York City area during the late 1970s.
10. When the Moments left STANG RECORDS in 1978 they were unable to
bring the name with them because it belonged to Ms. Robinson. As a result, the group
formerly known as the Moments went to another record label and recorded under the
moniker "Ray, Goodman and Brown."
11. Unbeknownst to Mr. Roberts, sometime in 1980 Mr. Keith persuaded
Harry Ray of Ray Goodman and Brown to record and release Mr. Roberts' work Baby
Let's Talk Now, Dance Later for SUGAR HILL RECORDS. Mr. Keith had barely masked the
name of Mr. Roberts' song, when he renamed the Work Baby Let's Rap Now, Dance A
Little Later.
12. After Baby Let's Rap Now, Dance A Little Later was released in 1980, it
was subsequently compiled into a CD "box set" entitled ''The Sugar Hill Records Story"
and was re-released in the United States by RHINO RECORDS in February 1997 and July
1999. Baby Let's Rap Now, Dance A Little Later was also compiled into another CD
"box set" entitled ''Sugarhill Street Soul" and was released in the United Kingdom by
CASTLE MUSIC UK in 2000; by Sequel Records in 2000; and by SANCTUARY MUSIC
GROUP LTD. in 2001.
13. Mr. Roberts never heard from Mr. Keith again after 1979, and recently
discovered that Mr. Keith had passed away.
14. On or about October 24, 1983, Mr. Roberts became discouraged by the
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music business and decided to take employment as a New York State Corrections
Officer.
15. Mr. Roberts copyrighted his original lyrics to Love Trap and The Woman
That Got Away in 1987, and Baby Let's Talk Now, Dance Later in 1998.
16. Ms. Robinson claims ownership of the publishing rights to Baby Let's Rap
Now, Dance a Little Later through Gambi Music, Sugar Hill Publishing Ltd. and Twenty
Nine Black Music. By granting the publishing rights of Mr. Roberts' work Baby Let's
Talk Now, Dance Later to RHINO RECORDS, CASTLE MUSIC UK, SEQUEL RECORDS and
the SANCTUARY MUSIC GROUP, Ms. Robinson and Mr. Robinson Jr. reaped a financial
windfall from the proceeds of that song.
17. Mr. Roberts did not discover that his original work, Baby Let's Talk Now,
Dance Later, had been recorded and released until he visited www.BMI.comon or about
March 8, 2003. BMI.com is a website which provides access to songwriters' catalogues.
Once there, Mr. Roberts discovered that Tommy Keith had listed the three Works: Love
Trap, Baby Let's Rap Now, Dance a Little Later and The Woman that Got Away as his
own original works without crediting Mr. Roberts.
18. On or about July 23, 2003, Mr. Roberts contacted Defendant Nathaniel
Keith, Tommy Keith's son, by phone, regarding his Works. During the conversation, Mr.
Roberts recited the lyrics to Love Trap and The Woman that Got Away to Nathaniel
Keith Nathaniel Keith was convinced that Mr. Roberts was the author of those Works
based on the fact that those Works had been recorded by Mr. Keith's father- recordings
that Nathaniel Keith has in his possession- but had never been released to the general
public. At the end of the conversation, Nathaniel Keith informed Mr. Roberts that he had
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no issue with crediting Mr. Roberts as an author on all three Works.
THE PARTIES
19. Plaintiff Mark Roberts is a disabled, retired corrections officer who is, and
remains, a resident of Newburgh, New York.
20. Upon information and belief, the Copying Defendants were or are
songwriters under a publishing contract with the Publishing Defendants, who copied Mr.
Roberts' Work, Baby Let's Talk Now, Dance Later, while employed by Ms. Robinson at
SUGARHILL RECORDS in Englewood, New Jersey.
21. Upon information and belief, Norman Thomas Keith passed away
sometime in 1990. His son, Nathania! Thomas Keith, is serving as the Administrator of
his Estate, and is located at 3205 West Clifford Street in Philadelphia, Pennsylvania.
22. Upon information and belief, defendant Sugar Hill Records Ltd. is an
organization located at 96 West Street in Englewood, New Jersey, and engages in the
business of wholesaling, manufacturing and distributing audio and video products, such
as vinyl records, cassette tapes and compact diskettes.
23. Upon information and belief, defendant Joseph Robinson Jr., is the
President of Sugar Hill Records Ltd.
24. Upon information and belief, defendant Sylvia Robinson is the Owner of
Sugar Hill Records Ltd.
25. Upon information and belief, defendant Gambi Music is an organization
located at 443 Liberty Road in Englewood, New Jersey, and engages in the business of
administering copyrights, licensing songs to record companies and others, and collecting
royalties by way of third-party contracts it has with various artists across the United
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States, including New York.
26. Upon information and belief, defendant Joseph Robinson Jr. is the co-
President of Business Affairs for Gambi Music.
27. Upon information and belief, defendant Sylvia Robinson is co-President of
Business Affairs for Gambi Music.
28. Upon information and belief, defendant Sugar Hill Publishing Ltd. is an
organization located at 443 Liberty Road in Englewood, New Jersey, and engages in the
business of administering copyrights, licensing songs to record companies and others,
and collecting royalties by way of third-party contracts it has with various artists
throughout the United States, including New York.
29. Upon information and belief, defendant Joseph Robinson Jr. is the
President of Sugar Hill Publishing Ltd.
30. Upon information and belief, defendant Sylvia Robinson is the Chief
Executive Officer of Sugar Hill Publishing Ltd.
31. Upon information and belief, defendant Twenty Nine Black Music is an
organization located at 96 West Street in Englewood, New Jersey, and engages in the
business of administering copyrights, licensing songs to record companies and others,
and collecting royalties by way of third-party contracts it has with various artists
throughout the United States, including New York.
32. Upon information and belief, defendant Joseph Robinson Jr. is the co-
President of Twenty Nine Black Music.
33. Upon information and belief, defendant Sylvia Robinson is the co-
President of Twenty Nine Black Music.
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34. Upon information and belief, RHINO RECORDS is an organization located
at 3400 West Olive Avenue in Burbank, California, and engages in the business of
producing and distributing music COs, reissuing archives, anthologies, and various
artists' musical compilations throughout the United Kingdom and the United States,
including New York.
35. Upon information and belief, SANC1lJARY RECORDS GROUP LTD., is an
organization located at 45-53 Sinclair Road in London, England and maintains an office
located at 369 Lexington Avenue in New York City, New York under the name
SANCTUARY RECORDS GROUP INC.
36. Upon information and belief, CASTLE MUSIC UK is a subsidiary of
SANCTUARY RECORDS GROUP LTD., and engages in the business of recompiling and
reissuing catalogue material, released on CD, music-cassettes and records throughout the
United Kingdom.
37. Upon information and belief, SEQUEL RECORDS is a subsidiary of
SANCTUARY RECORDS GROUP LTD., and engages in the business of recompiling and
reissuing catalogue material, released on CD, music-cassette and record throughout the
United Kingdom and the United States, including New York.
SUBJECT MATTER JURISDICTION
38. This is an action for copyright infringement arising under the Copyright
Act of 1976, as amended, 17 U .S.C. 101 et ~ This Court has jurisdiction over this
action pursuant to 28 U.S.C. 1331 and 1338(a).
PERSONAL JURISDICTION
39. This Court has jurisdiction over the Copying Defendants pursuant to New
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York CPLR 302, in that defendants' infringing acts committed in New Jersey caused
injury to Mr. Roberts who resides in New York, and that both defendants intended to
profit from those infringing acts by introducing the copied Works into the stream of
interstate commerce.
40. This Court has jurisdiction over the Publishing Defendants pursuant to
New York CPLR 302, in that they all transact business in New York by way of
numerous publishing contracts they hold with various musical artists residing within the
State. These artists include, bli: are not limited to: Melvin Glover, also known as, Melle
Mel; Mahandas Dewes, also known as, Kool Moe Dee; and Reginald Payne, also known
as, Reggie Reg Barry Bailey, also known as, Barry B-Stro, George Belton Jr., also
known as, G-Man, Michael Fleming, also known as, E K Mike C, Darryl Calloway, also
known as, DJ Darryl C, and Larry Miller, also known as, Shubee, known collectively as
the "Crash Crew."
41. This Court has jurisdiction over the Distributing Defendants because they
are subsidiaries of a foreign corporation which has a corporate office located within New
York.
42. This Court also has jurisdiction over the Distributing Defendants pursuant
to New York CPLR 302, in that they placed the infringing work, Baby Let's Rap Now,
Dance A Little Later, via CD compilations entitled The Sugar Hill Story and Sugarhill
Street Soul, into the stream of interstate commerce, which included New York. The CD
Compilations entitled The Sugar Hill Story and Sugarhill Street Soul may be purchased
at, among other places: HMV, located at 308 West 1251h Street, New York, New York;
Virgin Records, located at 52 East 141h Street, New York, New York; and Tower
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Records, located at 692 Broadway. The Distributing Defendants have also made the
compilations available via the internet at, among other sites: www. Amazon.com and
http:/ /music.cheaps.us.
VENUE
43. Venue in this District is proper pursuant to 28 U.S.C. 139I and
I400(a).
AS A FIRST CLAIM FOR RELIEF (For Copyright Infringement)
44. Plaintiff realleges each and every allegation set forth above, as if fully set
forth herein:
45. On or about May 3I, I976, plaintiff, Mark Roberts mailed his original
lyrics to his song Love Trap to himself.
46. On or about December II, I976, Mr. Roberts mailed his original lyrics to
his song The Woman That Got Away to himself.
47. On or about February 28, I977, Mr. Roberts mailed his original lyrics to
his song Baby Let's Talk Now, Dance Later to himself.
48. In or around January I978 Mr. Roberts mailed his original lyrics to his
songs Love Trap, The Woman That Got Away and Baby Let's Talk Now, Dance Later to
Norman Thomas Keith, also known as, Tommy Keith.
49. On or about February 3, I978, Mr. Keith responded to Mr. Roberts
regarding Mr. Roberts' Works with a telegram stating, "Received your material and like
same, please contact me 201-569-5I70."
50. In or around February I978, Mr. Keith told Mr. Roberts that he wanted to
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record Mr. Roberts' original Works with the Moments, an R&B Group he was producing.
51. In or around March 1978, Mr. Keith contacted Mr. Roberts and told him
that he liked the lyrics to Baby Let's Talk Now, Dance Later, and asked Mr. Roberts if he
had an idea of how the song should be played. As a result, Mr. Roberts sang for Mr.
Keith, over the telephone, Mr. Roberts' expression of how Baby Lets Talk Now, Dance
Later should be performed.
52. In or around March 1978, Mr. Keith played demos of Mr. Roberts'
original lyrics Love Trap, The Woman That Got Away and Baby Let's Talk Now, Dance
Later to Mr. Roberts over the telephone.
53. In early 1979, Mr. Keith contacted Mr. Roberts and informed him that the
labels he was working for, ALL PLATINUM, STANG RECORDS and VIBRATION RECORDS,
were going out of business.
54. In or around the Summer 1979, Mr. Keith contacted Mr. Roberts and
informed him that Ms. Robinson was opening a new record label called SUGAR HILL
RECORDS, and that he would be producing a new kind of music for that record label
called "Rap."
55. In or around the Summer of 1979, Mr. Keith informed Mr. Roberts that his
three songs Love Trap, The Woman That Got Away and Baby Let's Talk Now, Dance
Later, were Rhythm and Blues (R&B) songs, which he could not use, and that Mr.
Roberts could have the lyrics to his original Works back.
56. In 1980, Mr. Keith persuaded Harry Ray, formerly of the Moments and
who at that time was performing in the R&B group Ray, Goodman and Brown, to return
to SUGAR HILL RECORDS in order to record and release Baby Lets Rap Now, Dance A
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Little Later, as a Moments song.
57. The Copying Defendants, Norman Thomas Keith and Moe Moore, are
credited with co-writing Baby Let's Rap Now, Dance A Little Later.
58. In or about February 1997, The Sugar Hill Records Story, containing the
Moments' recording of Baby Let's Rap Now, Dance A Little Later, a version of Mr.
Roberts' original work Baby Let's Dance Now, Talk Later, was re-released in the United
States by RHINO RECORDS.
59. On or about March 12, 1998, Mr. Roberts obtained copyright No. PAu-2-
266-246 for his work entitled Ready For Betty. Ready For Betty is a collection of Mr.
Roberts' works, including the lyrics to Baby Let's Talk Now, Dance Later.
60. On or about July 20, 1999, The Sugar Hill Records Story, containing the
Moments' recording of Baby Let's Rap Now, Dance A Little Later, was re-released in the
United States by RHINO RECORDS.
61. On or about April 24, 2000, Sugarhill Street Soul, another compilation of
SUGAR HILL RECORDS songs containing the Moments' recording of Baby Let's Rap Now,
Dance A Little Later, was re-released in the United Kingdom by SEQUEL RECORDS.
62. On or about May 3, 2000, Sugarhill Street Soul, another compilation of
SUGAR HILL RECORDS works containing the Moments' recording of Baby Let's Rap Now,
Dance A Little Later, was re-released in the United Kingdom by CASTLE MUSIC UK.
63. On or about January 2, 2001, Sugarhill Street Soul, containing the
Moments' recording of Baby Let's Rap Now, Dance A Little Later, was re-released in
Europe by SANCTUARY RECORDS GROUP LTD.
64. During the time of each release of the above-mentioned compilations
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which contained the Moments' recording of Baby Let's Rap Now, Dance A Little Later,
Sylvia Robinson and Joseph Robinson Jr. claimed ownership of the copyright and the
publishing rights to that work, either individually or through their entities Gambi Music,
Sugar Hill Publishing Ltd. and/or Twenty Nine Black Music
65. The two CD box-set compilations, The Sugar Hill Records Story and
Sugarhill Street Soul, which contain the Moments' recording of Baby Let's Rap Now,
Dance A Little Later, are still being sold at the time of the filing of this action and
continue to generate monies associated with royalties and publishing rights.
66. Upon information and belief, on or around March 3, 2003 Mr. Roberts
logged into www .BMI.com, a "professional music website" and did a catalogue search
for Tommy Keith. At that time Mr. Roberts discovered that Mr. Keith had listed in his
catalogue songs titled Love Trap, The Woman That Got Away and Baby Let's Rap Now,
Dance A Little Later. Mr. Roberts also discovered that Mr. Keith had not named him in
connection with any of these works.
67. Upon information and belief, Mr. Roberts is not credited as an author on
the copies of Baby Let's Rap Now, Dance A Little Later that were released in 1980, 1997,
1999, 2000 or 2001.
68. Based on the foregoing, Mr. Roberts was denied the proceeds generated
by Baby Let's Rap Now, Dance A Little Later through Defendants' infringement of his
copyright in that work.
69. Each release, in the United States and the United Kingdom, represents a
separate and distinct violation of the Copyright Act 1976, entitling Mr. Roberts to recover
for damages as a result of each infringing act.
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AS A SECOND CLAIM FOR RELIEF (Vicarious Liability)
70. Plaintiff repeats and realleges each and every allegation cortained in
paragraphs 1 through 69 of this Complaint as though fully set forth herein.
71. At the time the Copying Defendants copied Mr. Roberts' original work,
Baby Let's Talk Now, Dance Later, they were in the employ of Sylvia and Joseph
Robinson at SUGAR HILL RECORDS.
72. As the employer of the Copying Defendants, the Robinsons had the right
and the ability to supervise the infringing activities of the Copying Defendants.
73. As their employer, the Robinsons claimed publishing rights in the works
produced by their employees, the Copying Defendants.
74. As such, the Robinsons stood to enjoy a direct financial gain from all
works produced by their employees, the Copying Defendants.
75. The Robinsons continue to reap financial gains from Mr. Roberts' original
work Baby Let's Talk Now, Dance Later, through their publishing companies Sugar Hill
Publishing Ltd., Gambi Music and Twenty Nine Music.
76. As a result, the Robinsons are vicariously liable for the infringing acts of
her employees, the Copying Defendants.
AS A THIRD CLAIM FOR RELIEF (Contributory Infringement)
77. Plaintiff repeats and realleges each and every allegation contained in
paragraphs 1 through 76 of this Complaint as though fully set forth herein.
78. The Distributing Defendants are in the business of re-compiling and re-
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issuing artist compilations throughout the United States and the United Kingdom.
79. The Distributing Defendants contributed their services and machinery to
the Copying Defendants and the Publishing Defen:lants so that the Moments' recording
of Baby Let's Rap Now, Dance A Little Later, a version of Mr. Roberts' original work
Baby Let's Dance Now, Talk Later, could be distributed throughout the United States and
the United Kingdom.
80. As a result, the Distributing Defendants are liable to Mr. Roberts as
contributory infringers.
AS A FOURTH CLAIM FOR RELIEF (Joint and Several Liability)
81. Plaintiff repeats and realleges each and every allegation cortained in
paragraph:; 1 through 80 of this Complaint as though fully set forth herein.
82. In that the Publishing Defendants are vicariously liable to Mr. Roberts for
the infringing acts of the Copying Defendants and the Distributing Defendants are liable
to Mr. Roberts as contributing infringers, all of the defendants are jointly and severally
liable for all damages suffered by Mr. Roberts as a result ofthe infringement of Mr.
Roberts' copyright in his original work, Baby Let's Talk Now, Dance Later.
follows:
WHEREFORE, Plaintiff demands judgment against Defendants as
(a) finding that Defendants have infringed Mr. Roberts' copyrights in its releasing of Baby Let's Rap Now, Dance A Little Later, into the stream of commerce in 1980, 1997, 1999, 2000, 2001, and listing Love Trap and The Woman That Got Away in Mr. Keith's catalogue without properly crediting Mr. Roberts;
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Case 1:04-cv-10079-LAP Document 1 Filed 12/21/04 Page 16 of 17
(b) finding a substantial likelihood that Defendants will continue to infringe Mr. Roberts' copyrights in Baby Let's Talk Now, Dance Later, Love Trap and The Woman That Got Away unless enjoined from doing so;
(c) preliminarily and permanently enjoining Defendants, their directors and officers, agents, servants, employees, and all other persons in active concert or privity or in participation with them, from directly or indirectly infringing Mr. Roberts' copyrights in Baby Let's Talk Now, Dance Later, Love Trap and The Woman That Got Away or continuing to market, offer, sell, dispose of, transfer, display, advertise, reproduce, or develop any works derived or copied from Mr. Roberts' work or to participate in, assist in, sponsor or induce such activity;
(d) enjoining Defendants, their directors and officers, agents, servants, employees, and all other persons in active concert or privity or in participation with them, to return to Mr. Roberts any and all such originals, copies, facsimiles, or duplicates ofMr. Roberts work, Baby Let's Talk Now, Dance Later, Love Trap and The Woman That Got Away in their possession custody or control;
(e) enjoining Defendants, their directors and officers, agents, servants, employees, and all other persons in active concert or privity or in participation with them, to recall all distributors, wholesalers, jobbers, dealers, retailers, and all other persons known to Defendants, any originals, copies facsimiles, or duplicates of any works shown by evidence to infringe any copyright of Mr. Roberts in the works Baby Let's Talk Now, Dance Later, Love Trap and The Woman That Got Away;
(f) enjoining Defendants to deliver upon oath, to be impounded and destroyed pursuant to judgment herein, all originals, copies, facsimiles, or duplicates of any work shown by evidence to infringe any copyright of Mr. Roberts in the works Baby Let's Talk Now, Dance Later, Love Trap and The Woman That Got Away;
(g) requiring Defendants to file with the Court and to serve to Mr. Roberts, within 30 days after service of the Courts order as herein demanded, a report in writing under oath setting forth in detail the manner and form in which Defendants have complied with the Court's order;
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Case 1:04-cv-10079-LAP Document 1 Filed 12/21/04 Page 17 of 17
(h) awarding Mr. Roberts and against Defendants the amount of Mr. Roberts' reasonable royalty according to proof, and any profits attributable to infringements of Mr. Roberts' copyrights in accordance with proof;
(i) awarding Mr. Roberts against Defendants the statutory damages based upon Defendants' acts of infringement pursuant to the Copyright Act of 1976, as amended, 17 U.S.C. 101 et~.;
(j) requiring Defendants to account to Mr. Roberts for all gains, profits, and advantages derived from Defendants' acts of copyright infringement and for its other violations of law;
(k) finding that any contracts between Defendants, Sugarhill Records, Gambi Music, Sylvia Robinson, Joseph Robinson Jr. and Norman Thomas Keith, transferring rights emanating from the work Baby Let's Rap Now, Dance A Little Later, Love Trap and The Woman That Got Away including but not limited to, licensing, royalties and publishing, are null and void because any such contract resulted in an involuntary transfer of Mr. Roberts' copyrights in that work;
(l) Declaratory Judgment finding that Mr. Roberts is the author of Baby Let's Rap Now, Dance A Little Later, and entitled to all rights as owner of a copyright in that work as guaranteed by the Copyright Act of 1976, as amended, 17 U.S.C. 101 et~.; and
(m) Granting Mr. Roberts such other and further relief as the Court may deem just.
Dated: New York, New York December 21, 2004
Germaine A. Corprew (GC-7518) Tracy Richelle High SULLIVAN & CROMWELL LLP 125 Broad Street New York, New York 10004-2498 Tel.: (212) 558-3985 Fax: (212) 558-3588 Counsel for Plaintiff Mark Roberts
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"' ... ' .
SETTLEMENT AgREEMENT AND RELEASE
This settlement agreement and release ("Agreement"), dated as of
September 30, 2008, by and between Mark Roberts ("Plaintiff'), and Sugar Hill Music
Publishing and Twenty Nine Black Music ("Sugar Hill Defendants'') concerns the
following matters:
WITNESSETH
WHEREAS, Plaintiff is the aJleged sole owner of all right, title and
interest in and to the musical composition entitled ''Baby Let's Talk Now, Dance Later"
("Plaintiff Composition"), registered with the United States Copyright Office pursuant to
registration number PAU 2-877-776;
WHEREAS, the Sugar HilJ Defendants own the publishing rights to a
musical composition entitled "Baby Let's Rap Now, Dance A Little Later," BMI Number
73211 ("Defendant Composition") and musical compositions entitled "Love Trap," BMI
Number 1878022, and "Girl That Got Away," BMI Number 1878144 ("Joint
Compositions");
WHEREAS, Plaintiff filed a complaint in the United States District Court
for the Southern District of New York ("Court''), under the caption Mark Roberts v.
Thomas Keith, et al., Index No. 04-CV -10079 ("Action"), in which Plaintiff alleges that
the Defendant Composition and the Joint Compositions infringe certain copyrights held
by Plaintiff in the Plaintiff Composition and violated various other common Jaw rights of
Plaintiff;
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WHEREAS, without conceding any infringement or other liability with
respect to Plaintiffs claims, the parties have agreed mutually to enter into this Agreement
according to the terms and in consideration of the mutual promises set forth below,
nothing herein being construed as an admission by any party of any kind to the others, all
such liability being expressly denied.
NOW, THEREFORE, in consideration of the promises herein made and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is hereby agreed as follows:
1. In consideration of the promises and releases made and granted herein,
Sugar Hill Defendants shall apportion credit for music and lyrics (a) in the Defendant
Composition for all purposes to Mark Roberts, Norman Thomas Keith, and Moe Moore,
in the order stated; (b) in the Joint Compositions to Mark Roberts and Norman Thomas
Keith, in the order stated. Sugar Hill Defendants agree to credit the Defendant
Composition and Joint Compositions as stated in this paragraph to all licensees of those
Compositions.
2. Sugar Hill Defendants agree to submit a letter to BMI simultaneously with
the execution of this Agreement reapportioning credit as stated in Paragraph 1 and
requesting acknowledgment of that reapportionment, in the form annexed hereto as
Exhibit A. Simultaneously with the execution of this Agreement and the submission of
the letter to BMI referred to in the previous sentence, Plaintiff agrees to file a stipulated
notice of dismissal with prejudice with the Court dismissing the Sugar Hill Defendants
from the Action, in the form annexed hereto as Exhibit B.
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3. Sugar Hi11 Defendants agree not to reapportion credit for music and lyrics
for Defendant Composition and Joint Compositions without the express written
permission of Plaintiff, except as provided in Paragraph 4.
4. Sugar Hill Defendants agree to reapportion credit for music and lyrics for
Defendant Composition and/or the Joint Composition solely to Mark Roberts if any
settlement agreement with or judgment against the remaining defendants in the Action
apportions credit for Defendant Composition and/or the Joint Composition solely to
Plaintiff. The Sugar Hill Defendants shall remain the sole publishers of the Defendant
Composition and the Joint Compositions and shall not be required to render an
accounting or payment unless an individual writer's share exceeds $100.
5. Except for claims seeking to enforce the terms of this Agreement,
Plaintiff, on behalf of his past, present or future general partners, limited partners,
principals, predecessors-in-interest, successors-in-interest, administrators, heirs,
executors, representatives, agents, affiliates, licensees, designees, attorneys, transferees,
and all such entities' or individuals' predecessors, successors and assigns ("Plaintiff
Parties") do hereby irrevocably release, acquit and forever discharge the Sugar Hill
Defendants, and each of their past, present or future general partners, limited partners,
principals, predecessors-in-interest, successors-in-interest, administrators, shareholders,
officers, directors, owners, parents, employees, representatives, subsidiaries, agents,
related entities, divisions, affiliates, licensees, designees, attorneys, transferees and all
such entities' or individuals' -predecessors, successors and assigns ( .. Sugar Hill Parties")
of and from any and all debts, suits, actions, causes of action, controversies, demands,
rights, damages, losses, expenses, costs attorneys' fees, compensation, liabilities,
3
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obligations and claims of every kind and nature whatsoever, suspected or unsuspected,
known or unknown, foreseen or unforeseen relating to this action ( .. Claims"), that the
Plaintiff Parties or any of them may now have, at any time may have had, or may in the
future have, against the Sugar Hill Parties arising out of or concerning any and all claims
asserted in the Action, including any claim that the exploitation by the Sugar Hill Parties
of the Defendant Composition and/or the Joint Compositions infringes Plaintiff's
copyrights or otherwise violates Plaintiff's rights.
6. Each party hereto warrants, acknowledges and represents that he or it has
all necessary right, title and authority to enter into this Agreement, to grant the rights and
interests herein granted and to perform all of his or its obligations under this Agreement.
Each party hereto further represents and warrants that he or it is not subject to any
statutory or contractual obligation that may make unlawful the execution of this
Agreement.
7. Plaintiff hereby warrants, represents and acknowledges that he holds all
copyright right, title and interest, and all other right, title or interest, in and to the Plaintiff
Composition and that he is the absolute and unconditional legal owner ofthat work.
Plaintiff further warrants, represents and acknowledges that the consent of no other
person, firm or corporation is required to grant such rights; and that the use by the Sugar
Hill Parties of any portion of the Plaintiff Composition in the Defendant Composition
shall not violate or infringe upon any common law or statutory rights of any person, firm
or corporation.
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8. Plaintiff shall indemnify the Sugar Hill Defendants, in an amount not to
exceed the total sum paid to Plaintiff in royalties by the Sugar Hill Defendants for the
Defendant Composition and the Joint Compositions, from and against claims, in
connection with any proceeding of which Plaintiff has been given reasonable notice,
asserting in whole or in part that the reapportionment of credit for music and lyrics and
accompanying distribution of royalties pursuant to this Agreement violates the rights of a
third party (including but not limited to Moe Moore and the Estate of Norman Thomas
Keith), only if a court of competent jurisdiction determines that Plaintiff improperly was
awarded music and lyrics credit for the Defendant Composition and the Joint
Compositions.
9. This Agreement is binding upon and shall inure to the benefit of the
licensees, representatives, transferees, affiliates, divisions, entities, related entities,
subsidiaries, parent corporations, successors and/or assigns of the parties hereto.
10. If any provision of this Agreement is for any reason held to be invalid or
unenforceable, such provision shall not affect any other provision, but this Agreement
shall be construed as if such invalid and/or unenforceable provision had never been
contained in this Agreement.
11. This Agreement shall be governed by the Jaws of the State ofNew York
applicable to contracts made or to be performed in New York, without regard to the
conflicts of1aw principles thereof. All parties consent to the sole and exclusive personal
jurisdiction and venue in the Federal or State courts in the City ofNew York, New York,
and agree that all disputes or litigation regarding this Agreement shall be submitted to
5
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and determined by said courts which have sole and exclusive jurisdiction. All notices
and all applications to any court required by or given under this Agreement shall be given
by, registered mail, return receipt requested, and addressed as follows:
If to Plaintiff:
Mark Roberts 1 007 Mcintosh Place Newburgh, New York 12550
If to Defendant:
Joseph Robinson, Jr. Gambi Music 443 Liberty Road Englewood, New Jersey 07631
12. Any party may subsequently change its address by notice given as
provided in this paragraph.
13. This Agreement shall be deemed to have been writtenjointly by the
parties. Ambiguities shall not be construed against the interest of any party by reason of
such party having drafted all or any part of this Agreement.
14. The representations, warranties and covenants contained in this
Agreement or in any other document delivered hereunder shall survive the execution of
this Agreement. This Agreement constitutes the entire understanding between Plaintiff,
on the one hand, and the Sugar Hill Defendants on the other hand, and may not be
modified, amended, tenninated or otherwise altered without an instrument in writing
signed by the parties to be charged.
15. The parties to this Agreement represent that they have read this
Agreement and know and understand its contents. The parties understand and expressly
agree that this Agreement has been freely and voluntarily entered into and that no oral or
written representations or promises of any kind, unless specifically contained in this
6
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Agreement, have been made or relied upon by either party. The parties acknowledge that
they have had the benefit of the advice of legal counsel before executing this Agreement.
16. The parties may execute this Agreement in separate counterparts, each of
which shall be deemed an original instrument as against the party who has signed it
Each party's signature at the bottom hereof will signify acceptance of, and agreement to,
the terms and provisions contained herein. Facsimile copies of this Agreement shall be
of and have the same legal force and effect as an original.
1 7. No failure by any party to perform any of its or his obligations hereunder
shall be deemed a breach of this Agreement unless (i) such party is given written notice
of the failure that is alleged to constitute such breach within sixty ( 60) days of the alleged
breach, and (ii) the alleged breach is not cured or action to cure such breach is not
commenced within sixty (60) days after receipt of such notice.
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J S. The parties shall bear then ,,wn CObts an.:t att.Jm::-y.:;' f~e~. ~md uthn Ices
in~ un-:!,1 in ~mncl:tmn with the Action ;md this Agreem p.utit's hereto hav.: .:x.xutul L1is \gr~r:.mt:nt "~ 1JI.
:hl dar~: tirJ;t l!bove written.
\brk Roberts
ro.c
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EXHIBIT A
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Luki Henderson, Business & Legal Affairs Department
BMI 320 West 57th Street New York, New York 10019
September~ 2008
Re: "Baby Let's Rap Now, Dance A Little Later" (BMI #73211) "Love Trap" (BMI #1878022) ''The Vt That Got Away'' CBM! #1878144)
We are the attorneys for Sugar Hill Music Hill Publishing and Twenty-Nine Black Music.
This is to advise BMI that our clients entered into a settlement agreement with Mark. Roberts, 1007 Mcintosh Place, Newburgh, New York 12550, pursuant to which they agreed to apportion credit for music and lyrics of the compositions identified above as stated in paragraph 1 of the enclosed settlement agreement Please note that no changes are to be made in the identity of the publishers.
Please amend your records accordingly. Thank you for your cooperation.
Sincerely,
JPC:kc JAMES P. CINQUE
cc: Mr. Joey Robinson, Jr. David Castleman, Esq.
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EXHIBITB
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------------ )( MARK ROBERTS
Plaintiff,
v.
NATHANIEL THOMAS KEITH, ADMINISTRATOR OF THE ESTATE OF NORMAN THOMAS KEITH, a.k.a. TOMMY KEITH, MOE MOORE, SUGAR HILL RECORDS LTD., SUGAR HILL MUSIC PUBLISHING LTD., GAMBI MUSIC INC., TWENTY NINE BLACK MUSIC, SYLVIA ROBINSON, JOSEPH ROBINSON JR., RHINO RECORDS, SANCTUARY RECORDS GROUP LTD., CASTLE MUSIC UK AND SEQUEL RECORDS,
Defendants,
------------------------------------------------------------------------ ){
INDEX NO. 04-CV-10079
STIPULATION OF DISMISSAL WITH PREJUDICE
Pursuant to the provisions of Federal Rule of Civil Procedure 4l(a)(l)(ii), Plaintiff Mark
Roberts and Defendants Sugar Hill Records Ltd., Sugar Hill Music Publishing Ltd., Gambi Music Inc.,
Twenty Nine Black Music, Sylvia Robinson, and Joseph Robinson Jr. (the "Sugar Hill Defendants"), by
and through their undersigned counsel of record, now hereby dismiss the Sugar Hill Defendants from this
action, with prejudice, and with all parties to bear their own attorneys fees and costs.
Dated: September 30, 2008 New York, New York
By: David A. Castleman (DC 0241)
125 Broad Street New York, NY 10004-2498 Tel: (2 I 2) 558-4000 Fax: (212) 558-3588
Attorney for Plaintiff Mark Roberts
CINQUE & CINQUE
By: James Cinaue (JPC-3763)
845 Third Avenue New York, NY 10022 Tel: (212) 759-5515 Fax: (212) 759-7737
Attorneys for Defendants Sugar Hill Records Ltd., Sugar Hill Music Publishing Ltd., Gambi Music Inc., Twenty Nine Black Music, Sylvia Robinson, Joseph Robinson Jr.
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SETTLEMENT AGREEMENT AND RELEASE
This settlement agreement and release ("Agreement"), dated as of
November 3. 2009, by and between Mark Roberts ("Plaintiff"). and Nathaniel Thomas
Keith in his capacity as administrator of the estate of Norman Thomas Keith ("Keith"),
concerns the following matters:
WITNESSETH
WHEREAS. Plaintiff is the alleged sole owner of all right, title and
interest in and to the musical composition entitled "Baby Let's Talk Now. Dance Later"
("Plaintiff Composition"), registered with the United States Copyright Office pursuant to
registration number PAU 2-'cl77-776;
WHEREAS, Plaintiff filed a complaint in the United States District Court
for the Southern District of New York ("Court"), under the caption Mark Rohert.\ v.
Thomas Keith, eta/., Index No. 04-CY-10079 ("Action"), in which Plaintiff alleges that a
musical composition entitled "Baby Let's Rap Now, Dance A Little Later," BMl Number
73211 ("Defendant Composition") infringes certain copyrights held hy Plaintiff in the
Plaintiff Composition and violated various other common law rights of Plaintiff; and
WHEREAS. the parties have agreed mutually to enter into this Agreement
according to the terms and in consideration of the mutual promises set forth below,
nothing herein being construed as an admission by any party of any kind to the others, all
such liability being expressly denied.
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NOW, THEREFORE, in consideration of the promises herein made and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is hereby agreed as follows:
I. In consideration of the promises and releases made and granted herein,
Keith agrees to reapportion credit for the lyrics of the Defendant Composition solely to
Mark Roberts. Roberts agrees that in this Agreement, Keith does not reapp011ion any
credit for the music of the Defendant Composition.
2. Keith agrees not to consent to any reapportionment credit for music and
lyrics for Defendant Composition without the express written permission or Plaintiff.
3. No payment of a dollar sum is required by Keith as a result of executing
this Agreement provided that he fulfills his obligations under this Agreement.
4. Plaintiff agrees to dismiss this Action immediately after executing the
Agreement.
5. Except for claims seeking to enforce the terms or this Agreement.
Plaintiff, on behalf of his past, present or future general partners, limited partners,
principals, predecessors-in-interest, successors-in-interest, administrators, heirs,
exewtors, representatives, agents, affiliates, licensees, designees, atlomcys, transferees,
and all such entities' or individuals' predecessors, successors and assigns ("Plaintiff
Parties") do hereby iiTevocaply release, acquit and forever discharge Keith, and each of
their past, present or future general partners, limited partners, predecessors-in-interest,
successors-in-interest. administrators, representatives, agents, affiliates, licensees,
2
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designees, attorneys, transferees and all such entities' or individuals' predecessors.
successors and assigns ("Keith Parties") of and from any and all debts, suits, actions,
causes of action. controversies, demands, rights, damages, losses. expenses, costs
attorneys' fees. compensation, liabilities, obligations and claims of every kind and nature
whatsoever. suspected or unsuspected, known or unknown, foreseen or unforeseen
relating to this action ("Claims"), that the Plaintiff Parties or any of them may now have.
at any time may have had, or may in the future have, against the Keith Parties arising out
of or concerning any and all claims asserted in the Action.
6. Each party hereto warrants, acknowledges and represents that he or it has
all necessary right, title and authority to enter into this Agreement, to grant the rights and
interests herein granted and to perform all of his or its obligations under this Agreement.
Each party hereto further represents and warrants that he or it is not subject to any
statutory or contractual obligation that may make unlawful the execution of this
Agreement.
7. This Agreement is binding upon and shall inure to the benefit of the
licensees, representatives, transferees, affiliates, divisions, entities, related entities.
subsidiaries. parent corporations, successors and/or assigns of the parties ht:reto.
8. If any provision of this Agreement is for any reason held to be invalid or
unenforceable, such provision shall not affect any other provision. but this Agreement
shall be construed as if such invalid and/or unenforceable provision had never been
contained in this Agreemenl.
3
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9. This Agreement shall be governed by the laws of the State of New York
applicable to contracts made or to be performed in New York. without regard to the
connicts of law principles thereof. All parties consent to the sole and exclusive personal
jurisdiction and venue in the Federal or State courts in the City of New York, New York,
and agree that all disputes or litigation regarding this Agreement shall be submitted to
and determined by said courts which have sole and exclusive jurisdiction. All notices
and all applications to any court required by or given under this Agreement shall he given
by, registered mail, return receipt requested, and addressed as follows:
If to Plaintiff:
Mark Roherts I 007 Mcintosh Place Newburgh, New York 12550
If to Defendant:
Nathaniel Thomas Keith 3205 Clifford Street. Philadelphia, PA 19 I 21
lO. Any patty may suhsequently change its address by notice given as
provided in this paragraph.
II. This Agreement shall be deemed to have been written jointly by the
parties. Ambiguities shall not be construed against the interest of any party by reason of
such party having drafted all or any part of this Agreement.
12. The representations, warranties and covenants contained in this
Agreement or in any other document delivered hereunder shall survive the execution of
this Agreement. This Agreement constitutes the entire understanding between Plaintiff,
on the one hand, and the Keith Defendants on the other hand, and may not be modified,
4
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amended. terminated or otherwise altered without an instrument in writing signed by the
parties to be charged.
13. The pal1ies to this Agreement represent that they have read this
Agreement and know and understand its contents. The parties understand and expressly
agree that this Agreement has been freely and voluntarily entered into, that they have had
an opportunity to consult a lawyer about the terms of this Agreement, and that no oral or
written representations or promises of any kind, unless specifically contained in this
Agreement, have been made or relied upon by either party.
14. The parties may execute this Agreement in separate counterparts, each of
which shall be deemed an original instrument as against the party who has signed it.
Each party's signature at the bottom hereof will signify acceptance of, and agreement to,
the terms and provisions contained herein. Facsimile copies of this Agreement shall be
of and have rhe same legal force and effect as an original.
15. No failure by any party to perform any of its or his obligations hereunder
shall be deemed a breach of this Agreement unless (i) such party is given written notice
of the failure that is alleged to constitute such breach within sixty (60) days of the alleged
breach, and (ii) the alleged breach is not cured or action to cure such breach is nol
commenced within sixty (60) days after receipt of such notice.
5
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16. The parties shall hear their own costs and attorneys' fees, and other fees
incurred in connection with the Action and this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Mark Roberts Nathaniel Thomas Keith
----------------
6
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FOLEY FOLEY & LARDNER LLP
VIA E-MAIL [[email protected]) AND U.S. MAIL
James P. Cinque, Esq. CINQUE & CINQUE, P.C. 845 Third Avenue, Suite 1400 New York, New York 10022
January 13,2015
Re: Notice of Breach of Settlement Agreement
Dear Jim:
ATIORNEYS AT lAW
90 PARK AVENUE NEW YORK, NY 10016-1314 212.682.7474 TEL 212.687.2329 FAX foley.com
WRITER'S DIRECT LINE 212.338.3528 [email protected] EMAIL
CLIENT/MATIER NUMBER 999400-5171
This letter is in response to your e-mail correspondence of December 30, 2014. Over the past few months, we have tried to reach an amicable resolution to the current dispute between our client, Mark Roberts, and your client, Sugar Hill Music Publishing ("Sugar Hill"), regarding Mr. Roberts' proper share of royalties from Justine Timberlake's use of the song "Baby Let's Rap Now, Dance a Little Later" (hereinafter, the "Song") on his record 20/20 Experience. In your most recent e-mail, however, you stated that "I believe that we have exhausted our efforts to settle the matter," which constitutes an outright refusal by Sugar Hill to fulfill its obligations under the Settlement Agreement and Release, dated September 30, 2008 (the "Settlement Agreement") between Mr. Roberts, Sugar Hill, and Twenty Nine Black Music.
Accordingly, pursuant to Paragraph 17 of the Settlement Agreement, this letter serves as written notice that Sugar Hill has failed to perform, and hence breached, its obligations under the Agreement. In order to comply strictly with the notice provisions in the Settlement Agreement, we have sent a copy of this letter to Joseph Robinson, Jr. at the address provided in Paragraph 11 of the Agreement. Having fulfilled the notice requirements, we represent that all further communications will only be with you, as counsel for Sugar Hill, Twenty Nine Black Music and Mr. Robinson.
With this notice, Sugar Hill has sixty (60) days after receipt to cure the following breaches, which are outline below:
BOSTON BRUSSELS CHICAGO DETROIT
I. Reapportionment: Paragraph 4 specifically requires the Sugar Hill Defendants to reapportion the credit for the lyrics and/or music of the Song if a settlement with or judgment against Thomas Keith reapportioned the credit in the Song to Mr. Roberts. As you are well aware, Messrs. Roberts and Keith reached an agreement to reapportion Mr. Keith's credit for the lyrics, which was memorialized in a
JACKSONVILLE LOS ANGELES MADISON MIAMI
MILWAUKEE NEW YORK ORLANDO SACRAMENTO
SAN DIEGO SAN DIEGO/DEL MAR SAN FRANCISCO SHANGHAI
SILICON VALLEY TALLAHASSEE TAMPA TOKYO WASHINGTON, D.C.
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:FOLEY FOLEY & LARDNER LLP
James P. Cinque, Esq. CINQUE & CINQUE, P.C. Page 2
separate settlement agreement, dated November 3, 2009, and which reapportionment you acknowledged in your letter to BMI dated June 10, 20 I 0. Consequently, Sugar Hill must honor this reapportionment and provide Mr. Roberts royalties that correspond to his current writer's share.
2. Full Payment: Mr. Roberts is entitled to his full gross share of all available royalties, including both performance, mechanical royalties and any other royalties. While acknowledging that Mr. Roberts is entitled to mechanical royalties, Sugar Hill has to date only offered to provide Mr. Roberts a third (33.3%) of the writer's share, for the performance royalties, subject to deductions for various costs, including but not limited to your firm's legal fees, a musicology report, and Copyright Office assignment filing fees. However, there is nothing in the Agreement that allows Sugar Hill to deduct expenses, such as legal fees, expert fees or filing fees.
In your November 4, 2014 e-mail correspondence, you requested that Mr. Roberts provide a W -9 tax form. Enclosed with this demand letter is this completed form. Please remit full gross payment immediately - for all royalties received -and confirm that Mr. Roberts will receive his correct share of all future royalties, including mechanical royalties. 1
3. Full and Accurate Accounting: Apart from right to full payment, the Settlement Agreement also requires Sugar Hill to provide a full and accurate accounting to Mr. Roberts. Sugar Hill's Royalty Accounting Statement, dated October 28, 2014 (the "Accounting Statement") in no way fulfills this contractual obligation. As explained in our November 17, 2014 letter, the Accounting Statement lacks sufficient information and documentation for any of the above-referenced deducted costs. The Accounting Statement also provides no explanation whatsoever for how Mr. Robert's purported share of $8,739.40 was determined based on the net royalties of $52,436.43 (or the gross royalties of $63,252.68) from Timberlake. Finally, Sugar Hill has failed to provide our office with a copy of the license agreement between Sugar Hill and the Timberlake writers, so that we may determine what the proper gross royalties should be.
1 As stated above, Mr. Roberts demands full payment under the Settlement Agreement. Any acceptance of a lesser amount, such as the sum of$8,739.40, which has been proffered by Sugar Hill, does not waive any rights Mr. Roberts has under the Settlement Agreement, including the right to additional royalties or a full accounting of the license proceeds.
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:FOLEY FOLEY & LARDNER LLP
James P. Cinque, Esq. CINQUE & CINQUE, P.C. Page 3
Mr. Roberts reserves the right to file suit without further notice to you or your clients.
RSW:agp
cc : Joseph Robinson, Jr. Gambi Music 443 Liberty Road Englewood, New Jersey 07631 (via registered mail, return receipt requested)
Mr. Mark Roberts (via e-mail)
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Fo~ W9 Request for Taxpayer Give Form to the requestor. Do not {Rev. August20la) Identification Number and Certification Oepatlmanl of the Trtuury send to the IRS.
lnltmal Revenue Slll'l'tco Name {at shown on your Income liM relum)
MARK ~oBeR"'\~ C\i Business name/disregarded entity name, II different from above .. 01
!. Check appropriate box lor ledereltax c:lanlllcadon: Exemption {ue Jn11rucUonl): 5 )i!fil'dlvlduaVola proprietor 0 C Corporallon 0 S Corpotatlon 0 Pllltnerahlp 0 TrvsUestala
8.."' Exempt peyee code Of II11Y) ---~a .. iS 0 Umlted liability compa11y. Enter the tax classlffc:allon {CC corporation, SS corporation, Pzpan~arshlp) 11> Exemption from FATCA reponing 0 2 ---~lii coda pranY)
if~ 0 Other (see lnstruc:llont) II>
~ Addreas {number, ttrael, end apt. or sulto no.)
"\.AcE' Requester's name and address {optlonaq
/OOr Me. j;r-J 10 St-\ Qj Chy, stale, and ZIP code ll NfiwR~i_q~ NE'~ ioR.~ ''l.SS o 1/)
List account numborjs) hera {opll6na~
.:F.r Taxpayer Identification Number (TIN) Enter your TIN In the appropriate box. The TIN provided must match the nama given on the "Name" lin to avoid backup withholding. For Individuals, this Is your social security number (SSN). However, lor a resident allen, sole proprietor, or disregarded enllty, eae the Partllnalnuctlons on page 3. For other anlltles,lt Ia your employer ldentlllcatlon number (EIN). II you do not have a number, see How to get a TIN on page 3.
Note. lithe account Is In more than one name, see the chart on page 4 for guidelines on whose number to enter.
I Employer ldenllftcallon number I
g;J-11111111 l:milll Certification Under penalties of pe~ury, I certify that: 1. The number shown on this form Is my correct taxpayer ldanllllcatlon number (or I am waiting for a number to be Issued to ma), and
2. lam nol subject to backup withholding because: (a) I am exempt from backup withholding, or (b) 1 have not been notlfted by the Internal Revenue Servloe PAS) thai I am subject to backup withholding as a result of a failure to report all Interest or dividends, or (c:) the IRS has nollfled me that I am no longer subject to backup withholding, and
3. I am e U.S. citizen or other U.S. person [defined below), and 4. The FATCA code(s) entered on this form (II any) Indicating that lam exempt from FATCA reporting Is correct. Certification lnatructlona. You must cross oulltem 2 above II you have been.notlfled by the IRS that you are currently subject to backup withholding because you have failed to report ell Interest and dividends on your tax return. For real estate transactions, Item 2 does not apply. For mortgage lnteresl paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an Individual rellrement arrangement (!RAj, and generally, payments other than Interest and dividends, you are not required to &lgn the certiHcatlon, but you must provide your correct TIN. See the Instructions on page._3_. __ _
Sign Slgn;.~-re of Here u.s. peraan.,.
General Instructions Secllon references are Ia the lntemal Revenue Code unlotaa otherwise noted. Future developments. The IRS hall created a page en IRS.gov for Information about Form W9, at www.lt'll.gov/w9. Information about any futvre developments allecUng Form W9 {such leglllallan enacled after we raleou It) will be pootad an that page.
Purpose of Form A perton who Is required to lfte an lnformellon return wllh the IRS must obtain your cOfTectleKpayer ldantiOcetlon numbar (TIN) to reporl, lor example, Income paid to you, paymenll mad ate you In setUement of payment c:ard and third pel1y network transactlona, real estate transactions, monga11a Interest you paid, acqulaltlon or abandonment ol111curad proparty, cancellollon of debt, or contrlbYtlona you made to en IRA.
Usa Form W9 only II you are a U.S. paroan {Including a rellidenl allen), to provide your corruct TIN to the parson requesting It (the requester) and, when applicable, to:
1. C11111fy that the TIN you are giving Is oorrac::t {or you are welting for a number to bei .. ued),
2. Conlly that you are nol subJect to backup withholding, or 3. Claim exempllon from backllp withholding II you are a U.S. xempt payee, If
applicable, you are alae c:enlfylng thai u a U.S. peraon, your allocable shore of eny pertnerahlp Income from a U.S. trade or bualneaala not subject to the
Dolo .. ,,s-
withholding tax on foralgn panner~' shera of effectively connoc::lad Income, and
4. CariHy that FATCA coda(s)entered an this form {If any) lndlcaUng lhlll you are exempt from thco FATCA reporting, It correct. Note. II you are a U.S. peraon and a requester glvn you a form othalthan Fo~
. W9 to raQuar your TIN, you muot use the requester' I form lilt lo subllanllally slmNar to this Form W-9. Definition of a U.S. parson. For federal tax purpoaes, you are ccmslderad a U.S. person II you Bill: An Individual who Is a U.S. c;ltl;an or U.S. resident allen, A pannershlp, corporaclan, company, or anoclaUon created or organiZed In the Unttod Stat or under rha lawa of the United Slat eo, An estate {other than a toralgn estate), or A domestic lrust {aa defined In Reguiutlons nc:tlon 301.770t7), Spec: tal rvlea far partnarahlpe. Pennershipa that condua a trade or bu1lno11 In tha UniiOd States are generally required to pay a withholding tax under HCtlan 1446 en any foreign partners' ehsro of elleotlvoly conneolad tuablelncome from such bualness. Further, In certain c:eset where a Form WU hal not been received,
tha rules under section 144!5 require a pllltnershlp to presume lhel a ptU'Iner Ia 1 foreign pmon, end pay the IICIIon t446 withholding lax. Thoroloro, K you 1111 U.S. pereon that Is a partner In a pertnershlp conducting a trade or business In ths Unllad Sratq, provide Form WS to lha pannershlp to 11tabl1h your U.S. allltus and avoid section t446 withholding on your share of pannerahip Income.
Cat. No. 10231X Form W-9 (Rov. 82013)
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From: [email protected] [mailto:[email protected]] Sent: Friday, February 20, 2015 3:42 PM To: Weisbein, Robert S. Subject: "Spaceship Coupe"
Rob:
I am writing in response to your January 13, 2015 letter.
At the outset, I do not understand how you can state that Sugar Hill's conduct "constitutes an outright refusal. .. to fulfill its obligations." I refer you to the voluminous correspondence you and I have exchanged.
With respect to your specific comments:
1. Reapportionment: I have advised you on numerous occasions that the relevant law is that all joint authors share equally in the ownership of a joint work even where their respective contributions are not equal, unless there is a written agreement to the contrary. You have not provided any authority to the contrary. You have not provided me with any documents specifying each writer's percentage interest. Therefore it is clear that each owns one-third, regardless of whether the author wrote lyrics, music, or a combination of the two.
2. Payment: Do you seriously contend that Sugar Hill is not entitled to deduct expenses incurred in connection with establishing and settling the claim of copyright infringement which resulted in the payment your client seeks to share?
As I previously advised you, Sugar Hill is willing to pay a one-third writer's share to your client, provided that he acknowledges that this is in fact his rightful share. If your client continues to contend that he is entitled to more than one-third, Sugar Hill shall (as previously advised) interplead the funds at issue and charge your client with all of the legal fees incurred in connection with such action.
3. Accounting: Sugar Hill provided a detailed accounting statement which I thought I had further explained in my December 29th e-mail. I am at a loss to understand what other explanation you need. In addition, you have been provided with the accounting which Sugar Hill received in connection with the settlement.
It is up to your client to determine how to proceed. He can either acknowledge that he is entitled to a one-third writer's share and receive the proffered payment of $8,739.40, or else the various issues can be presented to a Court for resolution. If your client chooses the later option, please be advised that all legal fees incurred by Sugar Hill in connection with any such litigation shall be deducted from your client's share of the royalties.
Very truly yours,
James P. Cinque CINQUE & CINQUE, P. C. 845 Third Avenue, Suite 1400 New York, New York 10022 Telephone: (212) 759-5515 Telefax: (212) 759-7737 E-mail: [email protected]
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