JUDGE RULES THAT FEDERAL LAWSUIT REGARDING OWNERSHIP OF SHLOMO CARLEBACH'S SONG CAN PROCEED

A federal judge has recently ruled that a lawsuit regarding the disputed ownership of a song sung by Shlomo Carlebach can proceed, FAA News has learned.

U.S. District Judge Ann M. Donnelly, sitting in  Brooklyn, New York, denied Neshama and Nedara Carlebach's motion to dismiss the complaint.

The lawsuit was filed by Ronnie Kahn, who alleges that in 1975 he, along with Shlomo Carlebach, co-wrote a song titled “Return Again." Kahn wrote the English lyrics, and Carlebach wrote the music and the Hebrew lyrics. They registered the song with the U.S. Copyright Office the same year, noting their joint authorship on the registration.

Carlebach died in 1994.

In 2006, Shlomo's daughters registered a song titled “Return again” with the U.S. Copyright Office. They attributed the “words & music” to Shlomo Carlebach and did not mention the plaintiff. They also stated that Mr. Carlebach wrote the song in 1965 and first published it in 1978.

 

Ronnie Kahn claims that the 2006 registration was for the “very same song,” and that he “did not license the Lyrics” to Shlomo's daughters or otherwise give them “permission or consent to use the Lyrics . . . in the New Copyright.”

Kahn acknowledges that the daughters are Shlomo's “heirs” and “now joint owners” of the
song but argues that they improperly excluded him from the registration and refused to pay him
his share of the royalties.

The lawsuit, filed in federal court, seeks a declaratory judgment establishing his joint ownership of the song, as well as an accounting. Kahn also claims that the defendants infringed his federal copyright and that they improperly amended the 1975 registration.

Neshama and Nedara filed a Motion to Dismiss for failure to state a claim, as well as for costs, attorney’s fees and sanctions for vexatious litigation.

In Count I, the plaintiff “seeks a declaratory judgment regarding his joint ownership of
the copyrighted song . . . and . . . a further determination of the validity of the registration ...[as] registered with Broadcast Music Incorporated (BMI) as being 100% authored by [Mr. Carlebach] when in fact Kahn owns 50% of the song and all income, royalties and revenues related thereto.”

In response, the daughters interpret Count I as
a request to declare the plaintiff to be a joint author of the 1975 song and to order BMI, which is not a party to this suit, to change its records. They argued that those allegations do not state a claim, because (1) declaratory relief is a remedy, not a claim; (2) there is “no allegation anywhere” in the second amended complaint that the ownership of the 1975 registration “is disputed;” and (3) the plaintiff “provides no details as to the basis for his 50% ownership” of the BMI registration such as a “contract . . . that would govern his right to a
particular share of income.”

Although the plaintiff’s allegations may not be “a model of clarity when it comes to articulating . . . causes of action,” the defendants misread his claims, Judge Donnelly wrote. The plaintiff is not asking the Court to determine the ownership of the 1975 registration—indeed, he provides a copy of that registration, which clearly identifies him as a co-author of the song with Mr. Carlebach. Instead, the central premise of his complaint is that “on or about October 13, 2006,” the defendants “prepared and filed a purported ‘renewal’ of the 1975 copyright which falsely indicates [Mr. Carlebach] to be the sole owner and author” of the song that the plaintiff helped write and that as a result of the 2006 registration, the plaintiff has not received the royalties due to him under the 1975 registration. It therefore appears that in Count I, the plaintiff seeks a declaration that he is a co-author of the song the defendants registered in 2006 as well as an order to pay him 50% of the royalties that the defendants have collected on that registration.

 

So construed, the allegations in Count I are sufficient to state a claim. It is the law in this
Circuit that district courts can declare parties to be co-authors of a copyrighted work and to order
one of them “to account to the other . . . for any profits that are made,” regardless of any
contract.

The complaint also includes sufficient factual detail to withstand a motion to dismiss. In addition to the 1975 registration of “Return Again” identifying him as an author of the song, the plaintiff provides a printout from the U.S. Copyright Office database showing that the defendants registered a song titled “Return again” in 2006 and listed Mr. Carlebach as the only author.

The plaintiff also alleges that the 2006 copyright is for the “same song” as the 1975 copyright. And he claims that the defendants “have refused to formally recognize Kahn’s joint ownership and have thereby refused to provide an accounting to Kahn.”

All the defendants have to do is compare the lyrics and music of the 1975 registration that the plaintiff
attached to his memorandum with the 2006 registration that they possess as copyright holders.

 

No more is required at this stage of the litigation, and the plaintiff may proceed with a co-authorship claim on Count I.

Judge Donnelly dismissed the remainder of the lawsuit which alleged copyright infringement, copyright renewal, accounting.

Judge Donnelly also dismissed Neshama and Nedara's motions for costs, fees and sanctions, saying that because the plaintiff adequately states a co-authorship claim in Count I, any motion for
costs or attorney’s fees is premature, and that a request for sanctions is not appropriate when it is not completely inconceivable that a legal theory [supports] a litigant’s claims.

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