Update to the Copyright Infringement Case against EMI, Sony and Darius Paulk -Read on
There has been much controversy surrounding this case since the media initially heard about it last year. Recently, we received word that the case on copyright infringement was dismissed from Darius Paulk’s PR rep. Shortly thereafter, we received word that the case had not been dismissed from Travis Malloy’s PR rep.
There were three parts to the complaint filed by Travis Malloy: (1). Copyright infringement (against all defendants), (2). Accounting (against all defendants), and (3). Injunction Relief (against all defendants)
*Statement of Disclaimer* Tekoa Gospel Music News does not claim to be a legal authority on copyright law or court proceedings. All information contained in this post is public record and can be obtained from District Court Records under case number 1:2011cv06075. We are not advocating for either side. We are merely stating facts involved in the case. I will admit that this isn’t an easy read, but if you take your time and absorb the information, you’ll gain an understanding of where the parties involved are in the case.
According to official court records, the Copyright Infringement claim against ALL parties has been dismissed.
The issue that remains open now is point number 2- ACCOUNTING.
Without getting into the total detail of the claims and counterclaims of the parties involved, we do know that the song came to fruition at some point in 2008. If you’d like to see the original complaint of amended complaint that contains a statement from Ms. Cameron T. Turner who states that she witnessed the session (Exhibit A in the complaint), the email where Malloy sent the “dummy track” of Nobody Greater to Vashawn Mitchell in September of 2008 Click on the link below. Please note that there is no subject line naming that song or mention of the song name in the email. If you’d like to see it click here: http://blogs.bet.com/music/the-gospel-according-to-torrence/wp-content/uploads/2011/09/Travis-Malloy-v-Darius-FINAL.pdf
Darius Paulk filed a copyright for the lyrics and music on March 3, 2009 as a part of his Worship Volume I. The copyright office has a compact disc and printed materials. The copyright number is Pau003491340. Interested parties can look this information up in the same location mentioned above.
Vashawn Mitchell recorded “Nobody Greater” in 2009. The licensing agreement for the song was between Darius Paulk , Sony, and EMI.
We all know the song did well in 2010/2011 and was featured on WOW Gospel.
Vashawn interviewed with Donnie McClurkin and states that Darius Paulk wrote the song and let him hear it. See this video from 2010 on YouTube http://youtu.be/oG2uRCI6k9M Start at 1:45- 2:23.
Please note the following: In order to bring an infringement claim before court, you have to have a copyright on file in the copyright office.
Travis Malloy filed a copyright for the music July 7th, 2011. According to the document from the copyright office (SR 680-801), the date of 1st Publication of the song was June 14th, 2008. Malloy went on to file a suit against EMI, Sony, and Darius Paulk in August of 2011. He later filed an amended complaint that included some statements that were missed in the original suit but we’ll get into that later.
The initial complaint didn’t mention the filing of the copyright but the amended complaint mentions that fact under Facts #15. The copyright number is SR0000680801 and can be looked up at http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?DB=local&PAGE=First . You can search by Malloy Travis if needed.
Malloy’s lawyer made a statement that can be found on http://muzilog.com/?s=travis+malloy stating that they had a conference on November 14th and they were having trouble finding Paulk to even serve him the notice that he was being sued. Malloy’s attorney also stated that they were “granted” a copyright, but please note that it was for the music only. Paulk was served his notice of the suit in December of 2011.
Malloy’s amended complaint included more information on a licensing opportunity and Paulk’s acknowledgment that he never thought Malloy had any rights to the song.
Malloy’s amended complaint (or updated lawsuit) stated the following under Facts #17:
“Paulk and Malloy were presented with the option on April 27, 2009 by Global Warehouse Records, Inc. to enter in a joint ownership agreement for “Nobody Greater”. This was the first time that the parties discussed the ownership of the song and Paulk declined the opportunity. Both Malloy and Paulk are in possession of the contract from Global Warehouse Records, Inc. At that time, Malloy learned that Paulk never considered Malloy to be the author of the music and the dispute between the men surfaced. Paulk never considered Malloy a writer despite the fact that Malloy wrote the music and created melody for the song. Paulk does not play any instruments and cannot read or write music. Paulk filed a copyright application for the words and the music to “Nobody Greater” and never identified Malloy in the application. Paulk claims that he wrote the music and melody to the “Nobody Greater” alone. Paulk willfully, fraudulently and negligently took credit for the work of Malloy”.
The record companies responded with a Memorandum of Law to the courts where they sited several cases that supported the claim that Malloy had no right to a suit against them and called out the fact that an amended claim that contains more information that could make the party’s case more favorable would not negate the initial claim. We have copies of these documents. Keep reading
According to page 3 of the MEMORANDUM OF LAW IN SUPPORT OF EMI’S AND SONY’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT states the following:
“Moreover, although the FAC is now the operative pleading, the Court may still consider Malloy’s original complaint (“Compl.”) and the admissions therein on this motion to dismiss the FAC. See Sulton v. Wright, 265 F. Supp. 2d 292, 295 (S.D.N.Y. 2003) (“Admissions in earlier complaints remain binding when a plaintiff files subsequent pleadings”). See also Andrews v. Metro North Commuter R.R. Co., 882 F.2d 705, 707 (2d Cir. 1989) (“The amendment of a pleading does not make it any the less an admission of the party. ‘A party… cannot advance one version of the facts in [his] pleadings, conclude that [his] interests would be better served by a different version, and amend [his] pleadings to incorporate that version, safe in the belief that the trier of fact will never learn of the change in stories’”).
The Memorandum of Law also states “Since Paulk, as alleged co-owner, granted EMI and Sony a non-exclusive license to record and distribute a sound recording of “Nobody Greater,” no claim for copyright infringement or otherwise can lie against EMI and Sony”.
The lawyers for Sony and EMI go on to point out that the song and lyrics were never meant to be performed independently of each other. This is a proven fact because Malloy performed the song (music and lyrics), attempted to shop the song to Z’iel(music and lyrics), and even sent the song (music and lyrics) to his home church director, Jerome Kirkland.
At best, the SONY/EMI lawyers argued, is that it could be considered a joint work. If Malloy believed that they were separate copyrights, then he himself was in violation of the very thing that he was accusing Paulk- “infringement” because he performed the music and lyrics and attempted to shop the song. For the complete admission of these incidents by Malloy, please read the entire complaint.
The Memorandum of Law points this out clearly: “Malloy’s own allegations clearly show that he was simply acting in accord with his intent from inception that the song was a joint work, which either co-owner was free to exploit”.
The law states that Joint works copyright owners basically have full rights to the song and have the right to issue non exclusive licenses of the work. The co-owner nor the licensee can be held liable according to Geshwind v. Garrick, 734 F. Supp. 644, 651 (S.D.N.Y. 1990). In other words, Sony, EMI, nor Paulk can be held liable because the record companies did business with Paulk -the “alleged” joint owner.
Even if Malloy were a co-author of the work “Nobody Greater”, and he did act in the manner in which a joint author would act when he performed and shopped the song, he cannot under the law and established precedent, sue Paulk for copyright infringement. Authors of joint works cannot sue each other for infringement.
There were three parts to the complaint: 1. Copyright infringement (against all defendents) 2. Accounting (against all defendants) and 3. Injunction Relief (against all defendants)
Malloy cannot sue the record company for Accounting because they (EMI and Sony) entered into an agreement for licensing with one of the “alleged” joint owners, Darius Paulk. The claims against the Record labels for accounting have been dismissed as have been the attorney fees claim because the work wasn’t registered before the time the infringement first began.
According to official court records, the Copyright Infringement claim against ALL parties has been dismissed .
The issue that remains open now is point number 2- ACCOUNTING.
Here’s why: The joint owners in a joint work have to report the earnings of the work.
Here’s the remaining issue in association with point #2- Accounting: Paulk filed a counter claim on June 25th, 2012 and Paulk denies that Malloy had any part in the creation of the song in the counter claim.
Paulk demands the following of the court: (1) To be declared the sole copyright owner, (2) that Malloy’s copyright be cancelled, that he be awarded any and all monetary damages actual and punitive damages for Malloy’s Slander of title, (3) and the same for Malloy’s slander per se.
On July 2nd, 2012, the court received a letter proposing a pre-motion conference to dismiss the counterclaim from Malloy’s lawyers Sighting one case that went up before the Supreme Court in the 60’s New York Times Co. v. Sullivan, 376 U.S. 254 (1964) but the court didn’t see it’s relevance. The court denied the request because the plaintiff failed to comply with the court’s individual practices and the request didn’t cite any relevant authority.
The letter was apparently resubmitted according to the court practices because there is a pre-motion conference scheduled for July 20th in regards to Paulk’s answers and counter claims.
There is also a deposition scheduled for August 15, 2012 at 9:30 in which according to the Notice of Deposition filed on July 11th with the court “the issues to be discussed will include the Amended Complaint filed and Travis Malloy and the Counterclaim filed by Darius Paulk in the above captioned action”.
I know that was a bit much but as more information becomes available, we will provide updates. Stay tuned to Tekoa Gospel Music News!
*Statement of Disclaimer* Tekoa Gospel Music News does not claim to be a legal authority on copyright law or court proceedings. We are not advocating for either side. The purpose of this story was to sort out the details of the case.
*Responsible journalism is the goal of Tekoa Gospel Music News. We realize how important it is to research these matters. I gained access to the public records, combed through the rules of the court, various proceedings, court documents, filings, and motions from attorneys. I read the summaries of cases that were sited in claims and counter claims. I’ve been in contact with PR reps from both sides of the argument and I even reached out the Malloy’s attorney, but didn’t receive a call back. I researched copyright laws as well as the actual copyrights for the song “Nobody Greater”. I pulled up old interviews from both parties in regards to the song and this case. Hopefully, the information provided assisted in your understanding of the proceedings.
All documents are available to the public as they are court proceedings. They can be obtained through the District Courts PACER system. The case number is 1:2011cv06075. Please contact us on our contact tab if you’d like copies of the court documents.
Malloy’s original complaint can be found on online in a PDF if you google Travis Malloy vs EMI.