Severe Records, LLC v. Rich

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0273p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiffs-Appellants, -

SEVERE RECORDS, LLC; CHRIS SEVIER,

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No. 09-6175

v.

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JOHN RICH; SHANNA CROOKS; MUZIK MAFIA, -

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Defendants-Appellees. -

LLC; JOHN D. RICHAFELLA PUBLISHING,

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Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 08-00654—William J. Haynes, Jr., District Judge.

Argued: July 21, 2011

Decided and Filed: September 23, 2011

Before: KENNEDY, SILER, and McKEAGUE, Circuit Judges.

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COUNSEL

ARGUED: Mark Christopher Sevier, Nashville, Tennessee, for Appellants. Cynthia

S. McKenzie, McKENZIE HYDE, PLC, Nashville, Tennessee, for Appellees.

ON BRIEF: Mark Christopher Sevier, Nashville, Tennessee, Jay S. Bowen, BOWEN

& UNGER, PLC, Nashville, Tennessee, for Appellants. Cynthia S. McKenzie,

McKENZIE HYDE, PLC, Nashville, Tennessee, William T. Ramsey, NEAL &

HARWELL, PLC, Nashville, Tennessee, J. Matthew Blackburn, CORNELIUS &

COLLINS, LLP, Nashville, Tennessee, for Appellees.

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OPINION

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CORNELIA G. KENNEDY, Circuit Judge. Plaintiff Mark Christopher “Chris”

Sevier authored a song entitled “Better.” Defendant Shanna Crooks recorded the song

and, because they were pleased with the results, they co-authored and recorded a second

1

No. 09-6175 Severe Records, et al. v. Rich, et al. Page 2

song, “Watching Me Leave.” Their relationship then collapsed, Crooks signed as a

recording artist with unrelated recording and management companies, and various

accusations and altercations followed, precipitating this action. Sevier and his recording

company, Severe Records, LLC (collectively, “Plaintiffs”) filed suit, alleging what

Sevier characterized as a “novel” claim of copyright infringement against Crooks and

others for preventing Plaintiffs from commercially exploiting the two songs through

threats contained in cease-and-desist letters and requests to music retailers that the songs

not be offered for sale. Plaintiffs also sought a declaratory judgment regarding the

authorship of the songs and ownership of the copyrights to the two songs. The district

court dismissed the amended complaint for failing to state a claim of copyright

infringement and declined to consider Plaintiffs’ pendent state law claims or issue a

declaratory judgment. For the reasons that follow, we AFFIRM the district court’s

dismissal of the copyright infringement claim and REVERSE its dismissal of the

declaratory judgment claim.

FACTUAL BACKGROUND1

Sevier, in addition to being a licensed attorney2 and serving in the Tennessee

Army National Guard Judge Advocate General Corps, works in the music-recording

industry and is the managing member of Severe Records. He characterizes himself as

a “highly prolific songwriter and professional music producer who has written and

produced hundreds of works.”

In 2002, Sevier authored the music and lyrics for “Better,” recorded the song, and

began pitching the song to recording artists. Crooks is a recording and performing artist

with whom Sevier entered into an oral agreement to record “Better.” Both expected to

commercially and noncommercially benefit from their relationship through exploitation

of the song. According to Sevier, their oral agreement was structured to make them both

1

This factual summary is based on allegations in Plaintiffs’ amended complaint and exhibits

attached thereto, all presumed true for the purposes of evaluating the defendants’ motion to dismiss under

Fed. R. Civ. P. 12(b)(6).

2

Sevier is the attorney-of-record for Severe Records, the author of the complaint and the amended

complaint, and argued on behalf of Plaintiffs on appeal.

No. 09-6175 Severe Records, et al. v. Rich, et al. Page 3

authors of the copyright in the sound recording they created together. Sevier claimed

that he planned to give Crooks half of the income generated through the commercial

exploitation of the version of the song they collectively recorded. In exchange for

Sevier’s time, labor, and equipment, he was permitted to use Crooks’s name, likeness,

and photographs in connection with the works they created. Sevier mixed and edited

“Better” and gave Crooks a copy for her to use and exploit, as well as to aid her in

preparing to record a full-band version of the song.

Crooks and Sevier were pleased with the response they received to their

recording of “Better,” and decided to record another song together. This time, they

opted to write and record a new song because Sevier was better acquainted with

Crooks’s vocal talents. So, in Spring 2005, Sevier authored the music for “Watching Me

Leave” and he and Crooks coauthored the song’s lyrics. They then made a sound

recording of the composition.

Crooks included the recordings of “Better” and “Watching Me Leave” on a

compilation she shopped to third-party record companies. Sevier alleges that this helped

her secure a publishing and management deal with defendants John Rich and/or

Richafella Music Publishing and/or Godfather Music, and also a management deal with

defendant Muzik Mafia, LLC (all collectively with Crooks, “Defendants”). In signing

with these entities, Crooks assigned her copyright ownership in her songs, purportedly

including “Better” and “Watching Me Leave,” to Rich and/or his publishing company.

Severe Records also sought to profit from the two songs during the Spring of

2005 by commercially releasing them through retailer CD Baby’s online store and by

having the songs digitally distributed to third-party digital music stores. Sevier informed

Crooks of the release and told her that he would account to her for prorated portions of

any sales.

Then the parties’ relationship collapsed.

No. 09-6175 Severe Records, et al. v. Rich, et al. Page 4

On October 22, 2005, Rich sent an email to members of Muzik Mafia3 and other

members of the music industry entitled “Illegal Activity,” accusing Sevier of “illegally

selling music,” including that of Crooks. On October 24, 2005, through counsel, Muzik

Mafia sent Sevier a cease-and-desist letter concerning music by artists including Crooks

that was available for sale via CD Baby, was featured on the social network

MySpace.com, and was available on Sevier’s website. The cease-and-desist letter

accused Sevier of copyright infringement for the sale of unauthorized recordings and of

false endorsement. Sevier responded through counsel. Muzik Mafia’s counsel emailed

Sevier again on October 28, 2005 reiterating its demands and referring Sevier to the

Copyright Act and Lanham Act to elucidate how Sevier’s actions constituted copyright

infringement and false endorsement.

Several months later, on May 4, 2006, Rich emailed Sevier, informing Sevier that

he would not grant Sevier a licence to sell or distribute any of Crooks’s music. Sevier

responded that he was a co-author of the songs in question and could exploit them for

commercial use as a co-owner. He also referred to Crooks’s contributions to the songs

in question as de minimis, particularly in regard to “Better.” Rich responded caustically

and threatened to send Sevier another cease-and-desist letter. Sevier responded that “I

could technically come after you under unjust enrichment, quantum meruit, tortous [sic]

interference, and infringement (if [sic] you did not allow me to exercise my exploitation

rights), but that would be a drag, and I’ve got way too much respect for leaders like

you.” Rich stated in response that he would be “monitoring [Sevier’s] activity closely

with Shanna Crook’s music regarding sales and distribution” and that Sevier should “go

ahead and file a lawsuit against [Rich] and [his] company [Muzik Mafia] . . . [and take]

this [dispute] to court.” On May 6, 2006, in an email addressed to Rich, but sent to

Rich’s counsel, Sevier warned Rich not to “commit intentional defamation.”

In May 2006, Sevier recorded a certificate of registration for “Better” and

“Watching Me Leave” with the United States Copyright Office. Sevier listed himself

3

According to the amended complaint, Muzik Mafia is both a Tennessee corporation and a formal

and informal network of agents and fans of the company.

No. 09-6175 Severe Records, et al. v. Rich, et al. Page 5

and Crooks as the co-authors of the songs. He noted that he was the “co-owner of the

sound recording, music, words, art work compilation” and that Crooks was the “co-

owner of the sound recording, & works.”

Near the end of August 2006, an agent of Muzik Mafia called CD Baby on behalf

of Rich, Muzik Mafia, and Crooks and demanded that the store permanently remove and

disable access to Crooks’s works that Sevier had licensed to CD Baby for commercial

exploitation, asserting that Plaintiffs had acted illegally and that use of the works was

not authorized by the actual owners. CD Baby officials contacted Sevier and determined

that Plaintiffs’ use of the works was legitimate and Muzik Mafia’s assertions were

without merit. Though CD Baby ultimately elected not to remove the challenged works

from their stores, for a period of time, the songs were unavailable for purchase.

On September 12, 2006, Sevier, after hearing from several of his current and

prospective artists that Crooks was talking about him, contacted Crooks and demanded

that she stop defaming him, stating that he “did not believe in her as an artist anymore

as a result of her self-entitlement/narcissistic syndrome” and that any license he had

orally extended to her was revoked. Crooks responded the next day that she would not

be his friend, thought he was a good songwriter, but that he was “poison in this

industry.” In a separate message, she wrote that Sevier was “developing quite a

reputation in this town” after speaking to someone else in the Nashville music industry.

Also in September 2006, Sevier made several attempts to account to Rich’s

accountant for proceeds owed to Crooks from his exploitation of the two songs. In

November 2006, when Sevier met with Rich’s accountant, the accountant told Sevier

that if Plaintiffs did not conform to Defendants’ wishes, they would see to it that “music

industry members would not work with Plaintiffs.”

On October 2, 2006, a Muzik Mafia agent emailed Plaintiffs asking if they had

“any concerns.” Sevier responded by email that same day, warning the agent that he was

“either the sole author or a co-author of the copyrights vested in either or both song

recordings or underlying compositions,” and that he had registered his ownership

interests in the songs with the copyright office. He further threatened legal action if

No. 09-6175 Severe Records, et al. v. Rich, et al. Page 6

Muzik Mafia infringed on Severe Records’s property rights. Finally, Sevier accused

Muzik Mafia of “attempting to prevent [Plaintiffs] from exploiting [their] right of

distribution under [17 U.S.C. §] 106 . . . [and of] initiating schemes and activities to have

my co-authored worked [sic] removed from digital stores . . . .” Sevier characterized

these actions as “willful and intentional infringment [sic] and . . . malicious.” In

response, Muzik Mafia’s agent asserted that Plaintiffs did not have ownership of the

photograph of Crooks displayed on Severe Records’s website. Sevier responded that his

use of the photograph qualified as “fair use” and reiterated his claim of authorship of the

songs in question.

On April 26, 2007, Muzik Mafia’s attorney again sent Sevier a cease-and-desist

letter, alleging that Sevier was distributing “bootleg” compact discs and unauthorized

digital downloads of performances by Crooks through the internet. The letter listed the

penalties associated with willful copyright infringement and also accused Plaintiffs of

engaging in false endorsement under the Lanham Act and of engaging in deceptive

business practices under state law.

At some point, Sevier switched from CD Baby to IODA for the digital

distribution of music, including the musical works created with Crooks. Licensing

agreements between IODA and MySpace.com subsequently created the opportunity for

Plaintiffs to place digital stores on MySpace.com websites. On July 11, 2007, Plaintiffs

did just that, and placed a digital store on Crooks’s MySpace.com website. That same

day and in response to the newly appearing digital store, Crooks posted a note on her

MySpace.com webpage with the title “WARNING!!! Illegal music being sold on my

page.” Her post continued:

Hey Everyone, I apologize for the inconvenience this post may

cause.

I went to my myspace page today and to my astonishment saw I

had music for sale!

I don’t know how this music got there but I had nothing to do

with it.

There is a guy named Chris Sevier who writes with artists,

records “demo’s” of the songs they write and then without the artists’

No. 09-6175 Severe Records, et al. v. Rich, et al. Page 7

knowledge packages them up and sells them using unauthorized pictures,

bio’s, etc.

I co-wrote/recorded and payed for two songs with him,

“Watching Me Leave” and “Better” a few years back. Chris Sevier

immediately designed some fancy graphics and proceeded to sell them

on every music site and through every avenue he could find.

He’s continuing to do so after countless times of me asking him

to stop. He claims it’s legal since he supposedly “owns” the recordings,

but this is clearly wrong, unethical and down right dirty.

Well, it looks like good ole Chris is trying to earn a buck of my

myspace page now. PLEASE DON’T GIVE IT TO HIM! In the very

near future I will have my own music available and I promise you it will

be music that will represent who I am as a singer/songwriter, as opposed

to these demo’s being sold by him.

If you are an artist, BEWARE of people like Chris. Sadly there

really are snakes out there that will exploit and take advantage of you

with no regard for business ethics, artists’ wishes, or even their own

reputation in order to make a buck.

Through the MySpace.com social network website, this statement was disseminated to

approximately 15,000 people. Many comments were posted on Crooks’s MySpace.com

website disparaging and threatening Sevier. Sevier claims that he lost significant

business as the result of Crooks’s statements on her MySpace.com webpage.

On August 23, 2007, Sevier emailed Muzik Mafia, Rich, and Crooks, stating:

You are notified to withdraw every statement made concerning

Chris Sevier and Severe Records LLC on all websites or other internet

areas, such as weblogs, you have posted, provided, authored, or in any

way contributed content to between the dates of January 2005 to August

2007 as all of the statements are not true and [are] defamatory.

Demand is also made that you immediately publish a correction

with a full and complete, unqualified apology on all internet areas

containing the defamatory content. . . .

In the event you choose to ignore this demand, both general and

punitive or special damages will be claimed in any civil action against

you. . . .

On August 26, 2007, Rich responded:

To be guilty of “defaming” someone, you have to say things

about them that are untrue. Everything Shanna [Crooks] has said about

you is accurate and truthful.

No. 09-6175 Severe Records, et al. v. Rich, et al. Page 8

If you had not treated her, and other members of the MUZIK

MAFIA so unethically, there would be nothing for anyone to say about

you, good, bad or otherwise. You have always behaved like a bottom

feeder, and you still are. Your business practices are shady at best, and

you are not to be trusted. You will receive an apology from no one.

People like you are bad for our business. Period. You degrade the level

of quality and reputation we have EARNED in the music business, as

being people with undying respect for the writers and artists, and the

music they make. Everything about your practices in this town is rather

disgusting to us to be perfectly honest. Keep sending us your humorous

emails though, we REALLY enjoy getting those!! As always, we wish

you the best of luck fighting for your share of the table scraps.

On or about June 25, 2008, Crooks contacted digital music stores, including

Apple’s iTunes Music Store, where the two songs were posted, and alleged that

Plaintiffs did not have the rights to offer the songs for sale. The songs were

subsequently removed from the iTunes Music Store. IODA then removed the songs

from every digital music store to which it had made them available. On December 17,

2008, IODA terminated its distribution agreement with Sevier.

PROCEDURAL BACKGROUND

Plaintiffs’ initial complaint alleged libel, false light, malicious harassment,

intentional infliction of emotional distress, interference with contract, and copyright

infringement.4 In response to a motion to dismiss, Plaintiffs filed an amended

complaint5 which again alleged numerous state law claims along with two purported

federal jurisdictional hooks: the Declaratory Judgment Act and, in the alternative, the

Copyright Act.

Defendants moved to dismiss the amended complaint, arguing that it failed to

state a claim arising under the Copyright Act for two reasons: (1) Plaintiffs failed to

4

In addition to the facts recounted relating to the songs in question, Plaintiffs’ complaint

contained numerous other allegations of wrongdoing by Defendants not relevant to the dismissal of the

two causes of action now being considered on appeal.

5

Plaintiffs’ amended complaint falls woefully short of the professional standards appropriate for

the practice of law. We can think of few situations calling for a complaint containing 795 enumerated

paragraphs, 68 attachments, and 506 pages including exhibits. This case certainly did not necessitate such

a filing. Moreover, the quality of the amended complaint is poor. It is a rambling and often incoherent

document that has greatly hindered the operations of the courts in adjudicating this dispute.

No. 09-6175 Severe Records, et al. v. Rich, et al. Page 9

allege any acts of infringement; and (2) a claim of copyright infringement could not lie

against a co-owner of a copyright or her licensees. The district court granted

Defendants’ motion and dismissed the copyright infringement claim. Then, because the

district court construed this claim as the only federal claim in the amended complaint,

it declined to exercise continuing supplemental jurisdiction over Plaintiffs’ state law

claims. The district court also construed Plaintiffs’ declaratory judgment claim as

asserting a claim governed by state law and dismissed it as well.

Thereafter, Plaintiffs timely appealed.6

ANALYSIS

On appeal, we review de novo a dismissal for failure to state a claim under Rule

12(b)(6) of the Federal Rules of Civil Procedure. Courie v. Alcoa Wheel & Forged

Prods., 577 F.3d 625, 629 (6th Cir. 2009). “[A] civil complaint only survives a motion

to dismiss if it ‘contain[s] sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.’” Id. (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009)). “We must review the complaint in the light most favorable to Plaintiffs, accept

their factual allegations as true, and determine whether Plaintiffs ‘undoubtedly can prove

no set of facts in support of [their] claims that would entitle [them] to relief.’” Perry v.

Am. Tobacco Co., 324 F.3d 845, 848 (6th Cir. 2003) (quoting Bibbo v. Dean Witter

Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998) (alterations in original). “We need not

accept as true ‘legal conclusions or unwarranted factual inferences.’” Id. (quoting

Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)).

Plaintiffs argue that the district court erred in dismissing their claims for two

reasons: (1) the amended complaint did state a claim for copyright infringement with

respect to “Better” and (2) the amended complaint “stated a federally justiciable claim

pursuant to the Declaratory Judgment Act . . . to determine whether Plaintiffs were

copyright infringers, as alleged by the Defendants; and to declare that Defendant Crooks

6

In their appellate briefing Plaintiffs challenge only the dismissal of their copyright infringement

and declaratory judgment claims. Any objection to the dismissal of the state law claims is thus deemed

abandoned and is given no further consideration.

No. 09-6175 Severe Records, et al. v. Rich, et al. Page 10

was not an ‘author’ of the musical composition ‘Better’, and, therefore, was an

infringer.” We examine each claim in turn.

A. Copyright Infringement Claim

The Copyright Act gives copyright owners the exclusive rights to reproduce,

prepare derivative works from, distribute, and publicly perform or display a copyrighted

work. See 17 U.S.C. § 106. “To the ends of protecting these rights, the Act allows the

legal or beneficial owner of an exclusive right under a copyright . . . to institute an action

for any infringement of that particular right.” Fogerty v. MGM Grp. Holdings Corp.,

379 F.3d 348, 352 (6th Cir. 2004) (internal quotations and citations omitted).

The district court construed this case as involving two copyrights—one in each

song—and concluded that the amended complaint made clear that Sevier and Crooks

were co-authors of both songs, so no claim for copyright infringement could be sustained

against Crooks as a co-author and the other defendants as her assignees. This was

partially incorrect. As Plaintiffs argue, this case actually involves four copyrights: in the

sound recording of “Better,” in the musical composition of “Better,” in the sound

recording of “Watching Me Leave,” and in the musical composition of “Watching Me

Leave.” See Bridgeport Music, Inc. v. Still N the Water Publ’g, 327 F.3d 472, 475 n.3

(6th Cir. 2003) (“Under the copyright act, sound recordings are works that result from

the fixation of a series of musical, spoken, or other sounds . . . . Sound recordings and

their underlying musical compositions are separate works with their own distinct

copyrights.”) (internal quotation marks and citations omitted). On appeal, Plaintiffs only

challenge the district court’s decision regarding the musical composition copyright for

“Better,” so we must determine whether Plaintiffs stated a claim for infringement of that

copyright.

“There are two essential questions at the heart of any copyright infringement

action: whether the plaintiff owned the copyrighted work and whether the defendant

copied it.” Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 274 (6th Cir.

2009). The bulk of Plaintiffs’ argument concerns the first of these prongs: ownership.

Though there is conflicting evidence regarding whether Sevier was the sole author or a

No. 09-6175 Severe Records, et al. v. Rich, et al. Page 11

co-author of “Better,” under the liberal standard applied to reviews of complaints when

considering motions to dismiss, we accept, arguendo, that Sevier alone authored the

musical composition “Better.” However, this is a hollow victory for Plaintiffs.

As we have stated repeatedly in prior cases, “[t]o succeed in a copyright

infringement action, a plaintiff must establish that he or she owns the copyrighted

creation, and that the defendant copied it.” Jones v. Blige, 558 F.3d 485, 490 (6th Cir.

2009) (quoting Kohus v. Mariol, 328 F.3d 848, 853 (6th Cir. 2003)). See also Feist

Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (stating that a copyright

infringement claim requires proof of valid copyright and proof of copying of original

elements of allegedly infringed work); Zomba Enters. v. Panorama Records, Inc., 491

F.3d 574, 581 (6th Cir. 2007) (“The elements of a copyright-infringement claim are

(1) ownership of the copyright by the plaintiff and (2) copying by the defendant.”). The

amended complaint does not allege any improper copying. There is no allegation

anywhere in the amended complaint that Crooks did anything with the musical

composition “Better” other than utilize the sound recording that she and Sevier created

and that she was admittedly permitted to use for commercial or non-commercial gain.

Indeed, Plaintiffs conceded in paragraph 735 of their amended complaint that “[t]he

Defendants did not engage in unauthorized copying, but rather, their actions prevented

Plaintiffs from copying.” That ends the inquiry; no claim for copyright infringement

was properly alleged.

Plaintiffs’ allegation that “Crooks attempted to transfer and did transfer an

interest in the composition ‘Better’, [sic] which she did not own, to the Rich Defendants”

is not the same thing as creating an improper copy of “Better.” We read nothing in the

plain language of the Copyright Act, 17 U.S.C. § 106, to suggest that such a transfer

constitutes copyright infringement. We expressly decline Plaintiffs’ invitation to grossly

expand copyright infringement causes of action to include any acts that create barriers

to a copyright holder’s ability to fully exploit that copyright. Copyright protection “has

never accorded the copyright owner complete control over all possible uses of his work,”

No. 09-6175 Severe Records, et al. v. Rich, et al. Page 12

Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 432 (1984), and

copyright infringement is simply the wrong cause of action for Plaintiffs’ allegations.

B. Declaratory Judgment Request

The Declaratory Judgment Act states that “in a case of actual controversy within

its jurisdiction . . . any court of the United States . . . may declare the rights and other

legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201.

“[T]he central purpose of the Declaratory Judgment Act . . . is to provide the opportunity

to clarify rights and legal relationships without waiting for an adversary to file suit.”

Fireman’s Fund Ins. Co. v. Ignacio, 860 F.2d 353, 354 (9th Cir. 1988). The statute is

an “enabling Act, which confers a discretion on the courts rather than an absolute right

upon the litigant” to have a case heard in federal court. Wilton v. Seven Falls Co., 515

U.S. 277, 287 (1995) (quoting Public Serv. Comm’n of Utah v. Wycoff Co., 344 U.S.

237, 241 (1952)). We review a district court’s refusal to exercise jurisdiction over a

declaratory judgment action for abuse of discretion. Id. at 289-90. An abuse of

discretion occurs if we are left with the “definite and firm conviction that the court

below committed a clear error of judgment in the conclusion it reached . . . where the

trial court improperly applies the law or uses an erroneous legal standard.” Paschal v.

Flagstar Bank, 295 F.3d 565, 576-77 (6th Cir. 2002) (internal quotation marks and

citation omitted).

In their amended complaint, Plaintiffs sought a declaratory judgment “identifying

the authors of the sound recordings and underlying compositions for the musical works

entitled ‘Better’ and ‘Watching Me Leave’” as well as a declaration that Crooks was not

an author of “Better.” These requests were quite plainly made in response to the

numerous cease-and-desist letters that Plaintiffs received from Defendants. Those letters

accused Plaintiffs of, inter alia, distributing “bootleg,” or unauthorized, recordings of

Crooks’s music. The district court did not explicitly address the allegations of this

claim, instead observing that “[f]ederal jurisdiction is inappropriate in a copyright

dispute where the primary purpose of the complaint is to secure an interpretation of

conflicting assignments and the alleged infringement is prospective under a declaratory

No. 09-6175 Severe Records, et al. v. Rich, et al. Page 13

relief count or incidental to a claim of ownership.” Then, without explaining how this

correct statement of the law applied to these allegations, the district court summarily

concluded that the declaratory judgment claim does not state a federal claim. Though

we recognize that this is a complex issue, we cannot agree. Reading the allegations in

the light most favorable to Plaintiffs, we cannot say that the claim’s primary purpose is

to resolve conflicting contract rights, as opposed to its stated purpose, i.e., to obtain

declarations of authorship.

To determine whether the district court erred in determining that no federal

jurisdiction existed to provide for adjudication of this claim, we must be clear about the

operation of the Declaratory Judgment Act. The Eleventh Circuit clearly explained its

operation as follows:

[I]n the context of a declaratory judgment action, “the normal position of

the parties is reversed; therefore, we do not look to the face of the

declaratory judgment complaint in order to determine the presence of a

federal question.” Hudson Ins. Co. v. Am. Elec. Corp., 957 F.2d 826, 828

(11th Cir. 1992). “Instead, this court must determine whether or not the

cause of action anticipated by the declaratory judgment plaintiff arises

under federal law.” Id. Our inquiry is thus “whether, absent the

availability of declaratory relief, the instant case could nonetheless have

been brought in federal court. To do this, we must analyze the assumed

coercive action by the declaratory judgment defendant.” Gulf States

Paper Corp. v. Ingram, 811 F.2d 1464, 1467 (11th Cir. 1987), abrogated

on other grounds by King v. St. Vincent’s Hosp., 502 U.S. 215, 217

(1991); see also 22A Am. Jur. 2d Declaratory Judgments §202 (2003).

Federal question jurisdiction “exists in a declaratory judgment action if

the plaintiff has alleged facts in a well-pleaded complaint which

demonstrate that the defendant could file a coercive action arising under

federal law.” Household Bank, 320 F.3d at 1251 (emphasis added).

Stuart Weitzman, LLC v. Microcomputer Res., Inc., 542 F.3d 859, 862 (11th Cir. 2008).

The questions for us, then, are (1) whether Defendants could have sued Plaintiffs for

copyright infringement under the theory that Sevier was not an author or owner of

“Better” or “Watching Me Leave” and (2) whether such an action would have arisen

under federal law.

No. 09-6175 Severe Records, et al. v. Rich, et al. Page 14

The first question is easy; the answer is surely that Defendants could have sued

Plaintiffs for copyright infringement. They threatened7 to do so on numerous occasions.

The question of whether Defendants’ possible lawsuit would have arisen under federal

law is more difficult because “[i]t is settled beyond peradventure that an action does not

‘arise under’ the federal copyright laws merely because it relates to a product that is the

subject of a copyright.” Royal v. Leading Edge Prods., Inc., 833 F.2d 1, 2 (1st Cir.

1987). “The question of whether the suit ‘arises under’ the copyright law is considerably

more sophisticated.” Id.

Relying on Peay v. Morton, 571 F. Supp. 108, 112-13 (M.D. Tenn. 1983), the

district court concluded that this cause of action raised a question of state law and did

not arise under federal law. This legal precept has support, as the First Circuit

explained:

Not all claims of co-ownership will arise under the Copyright Act . . . .

For example, at times, whether there is co-ownership may be determined

by the terms of a contract governed by state law or through other

ownership interests governed by state law and thus not require

application of the Copyright Act. See, e.g., Royal v. Leading Edge

Prods., Inc., 833 F.2d 1, 4-5 (1st Cir. 1987) (rejecting federal question

jurisdiction where claim of co-ownership, “in its very nature and essence,

[was] one for breach of contract” under state law).

Cambridge Literary Props., Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co. Kg., 510

F.3d 77, 81 (1st Cir. 2007). However, a question of authorship, rather than ownership,

does arise under the Copyright Act:

In other cases, such as where co-ownership results from purported

statutory co-authorship, the question of co-ownership is governed by the

Copyright Act. See 3 M. Nimmer & D. Nimmer, Nimmer on Copyright

§ 12.01[A][1][b] (2007) (endorsing the view that in an action seeking

declaratory judgment of plaintiff as co-author and for an accounting,

7

Defendants’ argument on appeal that Plaintiffs lost their opportunity to seek a declaratory

judgment in response to Defendants’ cease-and-desist letters because “the Rich Defendants attempted to

prevent Plaintiffs from selling copies of the sound recordings at issue almost an entire year before

Plaintiffs actually filed suit” is specious. The exhibits attached to the amended complaint make clear that

the conflicts between the parties were ongoing such that this delay did not negate the potential need for

relief.

No. 09-6175 Severe Records, et al. v. Rich, et al. Page 15

federal jurisdiction is exclusive because “copyright ownership by reason

of one’s status as co-author arises directly from the terms of the

Copyright Act itself”); see also Gaiman v. McFarlane, 360 F.3d 644,

652-53 (7th Cir. 2004) (collecting cases).

Id. Indeed, the Fifth Circuit has remarked that “exclusive federal district court

jurisdiction exists in an action for a declaratory judgment to establish joint authorship

of a copyrighted work.” Goodman v. Lee (Goodman I), 815 F.2d 1030, 1032 (5th Cir.

1987) (emphasis added). And Goodman I is not an outlier: “All of the federal circuit

courts of appeal that have addressed the issue . . . agree that a determination of copyright

ownership based on a disputed allegation of co-authorship presents a federal question

that arises under, and must be determined according to, the Copyright Act.” Cambridge

Literary Props., 510 F.3d at 86. Though we have not previously confronted this issue

directly, we now join our sister circuits and adopt the “prevailing view that disputed

claims about whether there is co-authorship require[s] application of the Copyright

Act[,]” id. at 87-88, which is a dispute properly adjudicated in federal court.

On its face, Plaintiffs’ declaratory judgment claim undeniably seeks a declaration

of authorship of sound recordings and musical compositions for two songs. The claim

is allegedly brought in reasonable apprehension of litigation, based on numerous

communications from Defendants. Indeed, Defendants’ numerous cease-and-desist

letters, attached to the amended complaint, certainly suggest a dispute over

authorship—namely, whether Sevier or Crooks or both authored the songs in question.

They charge Sevier with conduct violative of the Copyright Act without acknowledging

his asserted authorship of the songs. “[A] determination of copyright ownership based

on a disputed allegation of co-authorship presents a federal question that arises under,

and must be determined according to, the Copyright Act.” Cambridge Literary Props.,

510 F.3d at 86; see, e.g., Gaiman, 360 F.3d at 652-53 (holding that a question of

ownership based on authorship of comic book characters arose under the Copyright Act).

Defendants now claim that the declaratory judgment action cannot be pursued

in federal court because they have never disputed Plaintiffs’ allegation that Sevier and

Crooks are co-authors of the subject works. We are not persuaded. Every time

No. 09-6175 Severe Records, et al. v. Rich, et al. Page 16

Defendants sent Plaintiffs a cease-and-desist letter alleging copyright infringement, the

underlying rationale was that Plaintiffs lacked ownership of any copyright interest in

“Better” and “Watching Me Leave.” Indeed, their April 26, 2007 cease-and-desist letter

explicitly accused Plaintiffs of copyright infringement for the sale of “bootleg”

recordings that were unauthorized by the copyright owners. If, however, Sevier was an

author or co-author of the songs, then he was an owner or co-owner, 17 U.S.C. § 201(a),

and no claim of infringement could lie against him or his assignee, Severe Records. See

Zuill v. Shanahan, 80 F.3d 1366, 1369 (9th Cir. 1996). Hence, the letters clearly appear

to have been premised on an implied denial of Sevier’s authorship or co-authorship.

Admittedly, the cease-and-desist letters assert rights other than copyright

interests, but it was the accusations of copyright infringement that provoked the

declaratory judgment claim. Neither Defendants nor the district court have identified

any supposed contractual dispute that is really at the heart of the declaratory judgment

claim. Where Defendants persisted in accusing Sevier of copyright infringement despite

his assertions of authorship, they can hardly be heard to complain, “But we didn’t really

mean it,” when they are haled into federal court on a claim for declaration of non-

infringement. Consequently, viewing the allegations in the light most favorable to

Plaintiffs, we conclude that Defendants’ cease-and-desist letters were premised on an

authorship dispute; no other explanation seems plausible from the face of the amended

complaint. Such an authorship dispute arises under federal law. It follows that the

amended complaint’s declaratory judgment claim arises under the Copyright Act and

presents a dispute properly justiciable in federal court. We therefore reverse the district

court’s dismissal of this claim as an abuse of discretion.

CONCLUSION

For the foregoing reasons, we affirm the district court’s dismissal of Plaintiffs’

copyright infringement claim. We reverse the district court’s dismissal of Plaintiffs’

declaratory judgment claim and remand to the district court for proceedings consistent

with this opinion.