Bridgeport Music, Inc. v. Smith

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0122p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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X

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BRIDGEPORT MUSIC, INC., WESTBOUND

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RECORDS, INC., and SOUTHFIELD MUSIC,

INC., -

Plaintiffs-Appellees, -

No. 12-1523

,

>

-

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v.

-

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RASHAAM A. SMITH, et al.,

Defendants, -

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N

JANYCE H. TILMON-JONES,

Movant-Appellant.

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:03-cv-72211—Paul D. Borman, District Judge.

Argued: January 23, 2013

Decided and Filed: May 1, 2013

Before: SUHRHEINRICH, MOORE and GIBBONS, Circuit Judges.

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COUNSEL

ARGUED: Jeffrey P. Thennisch, DOBRUSIN & THENNISCH PC, Pontiac, Michigan,

for Appellant. Richard S. Busch, KING & BALLOW, Nashville, Tennessee, for

Appellees. ON BRIEF: Jeffrey P. Thennisch, DOBRUSIN & THENNISCH PC,

Pontiac, Michigan, for Appellant. Richard S. Busch, KING & BALLOW, Nashville,

Tennessee, for Appellees.

1

No. 12-1523 Bridgeport Music, et al. v. Smith, et al. Page 2

_________________

OPINION

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SUHRHEINRICH, Circuit Judge.

I. Introduction

In 1974, songwriter, recording artist, producer, and performer Abrim Tilmon,

Jr. (“Tilmon”), composed the song “You’re Getting a Little Too Smart” (“Smart”).1 In

1976, Tilmon assigned all of his rights to the song to Plaintiff Bridgeport Music, Inc.

(“Plaintiff”). In 1997, Defendant rapper Rashaam A. Smith a/k/a Esham A. Smith

released the song “You & Me,” which, according to Plaintiffs Bridgeport, Southfield

Music Inc., and Westbound Records, Inc. (“Plaintiffs”), unlawfully contained samples

of the composition “Smart.” In 2003, Plaintiffs sued Defendants Esham Smith; Overture

Music, LLC; Psychopathic Records, Inc.; Red Music Distribution; Reel Life

Productions, Inc.; and Scott Santos (“Defendants”) for copyright infringement. In 2004,

Plaintiffs obtained default judgments against Defendants. In 2005, Plaintiffs recorded

the judgments with the United States Copyright Office.

In 2011, Janyce Tilmon-Jones (“Tilmon-Jones”), Tilmon’s widow and a nonparty

to this lawsuit, filed a motion under Federal Rule of Civil Procedure 60(b) in the action,

asking the district court to set aside the default judgments because she, not Plaintiffs,

was the legal owner of the copyright by operation of law at the time the lawsuit was

filed.2 The district court denied the motion, as well as her motion for reconsideration.

Tilmon-Jones appeals both of those rulings. For the reasons discussed below, we

AFFIRM the judgment of the district court.

1

Tilmon was also a founding member and lead singer for the musical group the Detroit Emeralds.

The R&B group performed in the late 1960s and early 1970s.

2

Tilmon died in 1982, during the initial copyright interest period. Plaintiffs’ copyright interest

in the initial copyright expired as of December 31, 2002, and at that point the renewal copyright interest

in “Smart” reverted to Tilmon-Jones by operation of law. See 17 U.S.C. § 304(a)(1)(C); Roger Miller

Music, Inc. v. Sony/ATV Publ’g, LLC, 672 F.3d 434, 437-39 (6th Cir. 2012).

No. 12-1523 Bridgeport Music, et al. v. Smith, et al. Page 3

Plaintiffs have filed a motion for damages and costs pursuant to Fed. R. App. P.

38 and 28 U.S.C. § 1912, which we GRANT.

II. Background

A. The Song and the Claims

Tilmon wrote “Smart” in 1974 and it was registered with the United States

Copyright Office on March 20, 1974. On March 31, 1976, Tilmon assigned his interest

in “Smart,” along with other compositions, to Plaintiff Bridgeport. On November 4,

1998, Bridgeport filed a second copyright application for “Smart,” noting that it owned

the work “[b]y written assignment.” On February 18, 2004, Bridgeport employee Jane

Peterer filed a copyright renewal form for “Smart,” claiming that she was the duly

authorized agent of Tilmon-Jones. The registration fee was charged to Bridgeport’s

account. The application lists the “Renewal Claimant” as “Janyce H. Tilmon.”

According to Tilmon-Jones, however, she never authorized Bridgeport or its agents to

be her agent.

On January 21, 2011, Tilmon’s estate filed a renewal application for “Smart”

with the United States Copyright Office. This application was granted. It lists Tilmon-

Jones and Tilmon’s two children as claimants to the copyright.

B. The Action Sub Judice: Bridgeport Music, Inc. v. Smith, No. 2:03-72211

In June 1997, Defendant rapper Rashaam A. Smith a/k/a Esham A. Smith

released the song “You & Me” on the album “Bruce Wayne: Gothom City 1987.”

According to Plaintiffs, the song “You & Me” unlawfully contained samples of the

composition “Smart.”

1. The Default Judgments

On June 9, 2003, after the initial copyright ownership period had expired but

prior to the expiration of the statutory limitations period, Plaintiffs sued Defendants in

the Eastern District of Michigan for copyright infringement, asserting that the song “You

& Me” infringed the composition “Smart.” Bridgeport Music, Inc. v. Smith, No. 2:03-

No. 12-1523 Bridgeport Music, et al. v. Smith, et al. Page 4

cv-72211 (E.D. Mich. June 9, 2003). This action was filed before Judge Borman

(“Judge Borman” or “District Court”). Defendants did not file an answer. On August

16, 2004, Judge Borman entered default judgments against Defendant Reel Life

Productions and Smith. On March 9, 2005, the District Court granted Plaintiffs’ motion

for attorney fees and entered judgment in favor of Plaintiffs and against Defendants. The

default judgments required Defendants to pay certain sums to Bridgeport, and declared

Plaintiffs “the 100% owner of the entirety of Defendant Reel Life Productions’

ownership interest in the copyright in the infringing compositions and sound recordings

effective as of the date of the creation of the composition.” The default judgment against

Smith declared Plaintiffs “the 100% owner of the entirety of Defendant Esham’s

ownership interest in the copyright in the infringing compositions and sound recordings

effective as of the date of the creation of the composition.” On March 11, 2005,

Plaintiffs recorded the default judgment against Smith with the United States Copyright

Office.

2. The Rule 60(b) Motion

On March 9, 2011, nearly seven years after Judge Borman entered the default

judgments, Tilmon-Jones, a nonparty to the original underlying action, filed a motion

for relief pursuant to Fed. R. Civ. P. 60(b)(4), (5), and (6), asking Judge Borman to set

aside the judgments on the grounds that she was the copyright owner at the time the

lawsuit was filed, since the renewal copyright interest in “Smart” had reverted to her by

operation of law as of January 1, 2003. Specifically, she argued that Plaintiffs lacked

standing when they filed the lawsuit, rendering the judgments void.

On September 27, 2011, Judge Borman denied Tilmon-Jones’s Rule 60(b)

motion, holding that Tilmon-Jones did not have standing because she had not shown that

she was “strongly affected” by the judgment or made a strong showing that the default

judgments were obtained by fraud. Judge Borman also noted that Tilmon-Jones was

“fully able to sue Plaintiffs and have her rights to ‘Smart’ fully adjudicated,” since she

No. 12-1523 Bridgeport Music, et al. v. Smith, et al. Page 5

had already filed a complaint, which was then pending before Judge Friedman.3 Judge

Borman therefore declined to address Tilmon-Jones’s arguments for vacating the default

judgments under Rule 60(b) “because [Tilmon-Jones] lacks standing under the Rule.”

3. The Motion for Reconsideration

On October 11, 2011, Tilmon-Jones filed a motion for reconsideration. She

raised a new argument, namely that she had standing to bring her motion under a “legal

representative” theory, and again asserted that Plaintiffs did not have standing to bring

the original action. On December 12, 2011, Judge Borman denied the motion for

reconsideration, holding that Tilmon-Jones had waived the legal representative argument

by failing to raise it in her initial Rule 60(b) motion or at oral argument. Judge Borman

addressed it anyway, and determined that Tilmon-Jones’s legal representative argument,

based on privity, failed because it contradicted her argument that the default judgments

should be set aside under Rule 60(b) because Bridgeport was not her agent and therefore

lacked standing. Thus, Judge Borman held that Tilmon-Jones did not have standing as

Bridgeport’s legal representative pursuant to Rule 60(b).

These two rulings by Judge Borman are the subject of this appeal.

4. The Rule 60(d)(3) Motion

On October 24, 2011, before Judge Borman had ruled on her motion for

reconsideration, Tilmon-Jones filed another motion for relief from the order of the

default judgments, based on a “fraud on the court” theory pursuant to Rule 60(d)(3). In

this motion, Tilmon-Jones claimed that Plaintiffs’ counsel knew that Bridgeport no

longer owned the musical composition “Smart” when they filed the action.

On February 22, 2012, Judge Borman dismissed this motion, finding that, even

if she had standing, Tilmon-Jones had failed to produce clear and convincing evidence

of fraud. Tilmon-Jones did not appeal this ruling.

3

As discussed below, this matter was later reassigned to Judge O’Meara.

No. 12-1523 Bridgeport Music, et al. v. Smith, et al. Page 6

5. The Appeal

On January 11, 2012, Tilmon-Jones filed a notice of appeal. As noted, she

appeals the September 27, 2011 opinion and order denying her motion for relief from an

order pursuant to Fed. R. Civ. P. 60(b), and the December 12, 2011 opinion and order

denying her motion for reconsideration.

C. The Prior Action4

On September 14, 2006, Tilmon-Jones, individually and as a personal

representative of the Estate of Abrim Tilmon, Jr., sued Armen Boladian (“Boladian”),

President of Bridgeport, and Bridgeport, in the Eastern District of Michigan, for

copyright infringement, conversion, and breach of contracts. See Tilmon-Jones v.

4

We take judicial notice of the 2006 Action pursuant to Federal Rule of Evidence 201(b), which

allows a court to take judicial notice of “a fact that is not subject to reasonable dispute because it . . . can

be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”

“This standard applies to appellate courts taking judicial notice of facts supported by documents not

included in the record on appeal.” United States v. Ferguson, 681 F.3d 826, 834 (6th Cir. 2012) (citing

Fed. R. Evid 201(f) advisory committee’s note (1972)).

In addition, we take judicial notice of two other similar actions whose decisions were rendered

after Judge Borman issued his decision on January 11, 2011: Tilmon-Jones v. Bridgeport Music, Inc.; Case

No. 5:11-cv-13002 (E.D. Mich) (“2011 Action”), and the “Tennessee Motions.” The 2011 Action was

filed in the Eastern District of Michigan. On July 13, 2011, four months after she filed the Rule 60(b)

motion, Tilmon-Jones and her children filed a complaint against Bridgeport and its president, and several

other record companies, including Westbound and Southfield, seeking a declaration of ownership of

numerous songs, including “Smart,” by Tilmon. Tilmon-Jones v. Bridgeport Music, Inc., No. 11-cv-13002

(E.D. Mich., filed July 13, 2011). The 2011 complaint alleged that Defendants wrongfully claimed

ownership of numerous musical works by Tilmon, even though copyrights in these musical works have

reverted, as a matter of law, to Tilmon’s estate. This action, which was originally assigned to Judge

Friedman, was reassigned to Judge O’Meara on January 20, 2012.

On September 26, 2012, Judge O’Meara dismissed this action as barred by the release clause in

the agreement that settled the 2006 Action, and res judicata, because there was a final decision on the

merits of the 2006 Action, the same parties were involved, and Tilmon-Jones could have litigated issues

related to copyright infringement of “Smart” in the 2006 action. He also awarded Defendants their

reasonable attorney fees and costs in defending the action “[a]s a deterrent against future misconduct.”

On August 25, 2011, Tilmon-Jones filed Rule 60(b) motions in seven actions filed by Plaintiffs

in 2001 in the Middle District of Tennessee, claiming that she became the legal owner of all copyright

interest in “Smart,” as of January 1, 2003. She was not a party to those seven actions. Tilmon-Jones also

filed Rule 60(d)(3) motions for relief based on fraud on the court in each of the seven cases. On March

7, 2012, Magistrate Judge Brown denied both motions in all seven cases, for several reasons. He found

that: (1) Bridgeport was the owner of the copyright to the song “Smart” when it filed the seven cases in

2001, (2) the district court in Nashville had subject matter jurisdiction in the Nashville suits, which

Bridgeport brought as the copyright owner of “Smart,” (3) the settlement agreement between the parties

in the 2006 Action was “a full and complete release of Bridgeport for any and all claims that could have

been brought as a result of the Michigan litigation,” and Tilmon-Jones was or should have been aware of

the fact that the release applied to all 37 songs referenced in that litigation, (4) res judicata or claim

preclusion applied even if the release were not fully operable, because Tilmon-Jones could have litigated

her claims in the 2006 Action, and (5) the motion was not brought “within a reasonable time” as required

by Rule 60(b), since judgment had been entered on June 15, 2005.

Judge Brown also denied Tilmon-Jones’s Rule 60(d)(3) motion. Tilmon-Jones did not appeal

Judge Brown’s order.

No. 12-1523 Bridgeport Music, et al. v. Smith, et al. Page 7

Boladian, No. 5:06-cv-14048 (E.D. Mich., filed Sept. 14, 2006) (“the 2006 Action”).

This action was filed before Judge O’Meara. The complaint alleged that two songs by

Tilmon – “Feel the Need (In Me),” and “Yes I Know I’m in Love” – were covered by

a Songwriter’s Agreement that vested administration of the copyright in Bridgeport, but

also required Bridgeport to pay royalties to Tilmon-Jones. These two songs are listed

in Attachment C to the complaint. Tilmon-Jones alleged that the defendants were not

paying the royalties. Tilmon-Jones also alleged that the defendants had “registered the

Attachment C Compositions for copyright in Defendants [sic] own name in direct

violation of Plaintiff’s ownership.” The 2006 complaint alleged breach of contract,

copyright infringement, unjust enrichment, conversion, and accounting, and sought inter

alia, a “declaration that the copyright ownership in and to the Attachment C

Compositions are owned and controlled by Plaintiff.”

Two other songs lists are attached to the 2006 complaint, Attachments A and B.

The 2006 complaint acknowledged that Tilmon assigned the copyrights to the songs

listed in Attachment A and Attachment B to Bridgeport and Boladian. “Smart” is listed

on Attachment A.

On August 31, 2007, the parties entered into a formal settlement agreement,

whereby Tilmon-Jones and the heirs to “settle[d], compromise[d] and dispose[d] of the

District Court Action claims, and any and all other claims they have or might have

against COMPANIES including, but not limited to, any claims that may arise in the

future pursuant to any newly discovered facts.” The district court dismissed all causes

of action and claims as to Boladian and Bridgeport Music with prejudice. On September

6, 2007, Judge O’Meara entered a consent order of settlement between the parties. It

incorporated by reference the settlement agreement.

On January 26, 2010, Tilmon-Jones filed a motion to enforce the settlement, but

withdrew it on February 18, 2010. She then filed a motion for fraud on the court on

November 19, 2010. Defendants responded, claiming the motion had no merit, and

requested sanctions. On January 4, 2011, Tilmon-Jones withdrew the motion. In light

of Tilmon-Jones’s withdrawal, Judge O’Meara declined to grant sanctions.

No. 12-1523 Bridgeport Music, et al. v. Smith, et al. Page 8

On November 1, 2011, Tilmon-Jones refiled her motion to set aside the

settlement, alleging fraud on the court. On January 10, 2012, Judge O’Meara denied it

as without legal or factual basis. On September 26, 2012, Judge O’Meara granted

sanctions against Tilmon-Jones and her attorneys, pursuant to Fed. R. Civ. P. 11 and 28

U.S.C. § 1927.

III. Analysis

A. The Copyright Interests

Although it does not really explain Tilmon-Jones’s litigation strategy, it is helpful

to know who was entitled to what copyright interests in “Smart.” The following is

clear: (1) Based on their assigned interest in the initial copyright, Plaintiffs had the right

to sue for infringing acts occurring up through December 31, 2002, see 17 U.S.C.

§ 501(b) (“The legal or beneficial owner of an exclusive right under a copyright is

entitled, subject to the requirements of section 411, to institute an action for any

infringement of that particular right committed while he or she is the owner of it.”), and

they had three years after that date to bring a cause of action. See 17 U.S.C. § 507(b)

(“No civil action shall be maintained under the provisions of this title unless it is

commenced within three years after the claim accrued.”); Dassault Systemes, SA, v.

Childress, 663 F.3d 832, 844 (6th Cir. 2011), cert. denied, 133 S. Ct. 286 (2012); (2)

Because Tilmon died prior to the renewal term, Tilmon’s contingency interest in the

renewal copyright passed to Tilmon-Jones and Tilmon’s children, on January 1, 2003.

See 17 U.S.C. § 304(a)(1)(C); Roger Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 672

F.3d 434, 437-39 (6th Cir. 2012).

B. Standard of Review

Tilmon-Jones invoked Rule 60(b)(4), which provides relief from void judgments,

Rule 60(b)(5), which covers changed circumstances, and Rule 60(b)(6), which allows

for relief from judgment for “any other reason that justifies relief.” Fed. R. Civ. P.

No. 12-1523 Bridgeport Music, et al. v. Smith, et al. Page 9

60(b).5 This court generally reviews a district court’s denial of a Rule 60(b) motion for

relief from judgment for abuse of discretion. Gen. Med., P.C. v. Horizon/CMS Health

Care Corp., 475 F. App’x 65, 69-70 (6th Cir. 2012); Yeschick v. Mineta, 675 F.3d 622,

628 (6th Cir. 2012); Jones v. Illinois Cent. R.R. Co., 617 F.3d 843, 850 (6th Cir. 2010).

However, we review denials of Rule 60(b)(4) motions de novo, Northridge Church v.

Charter Twp. of Plymouth, 647 F.3d 606, 611 (6th Cir. 2011), as well as denials based

upon an interpretation and application of the Federal Rules of Civil Procedure, see

Kalamazoo River Study Grp. v. Rockwell Int’l Corp., 355 F.3d 574, 583 (6th Cir. 2004).

Judge Borman ruled that Tilmon-Jones lacked “standing” under Rule 60(b), and

therefore did not review her arguments for relief under the rule. Properly framed, the

question in this case is whether Tilmon-Jones, as a nonparty to the underlying action,

qualifies for relief under Rule 60(b). See Roberts v. Hamer, 655 F.3d 578, 580 (6th Cir.

2011) (stating that the question of statutory standing asks “‘whether this plaintiff has a

cause of action under the statute’” (quoting Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 97 n.2 (1998) (emphasis in Steel Co.)).6 Thus, the question of “standing”

in this case involves a question of law, such that our review is de novo. See Kalamazoo

5

Federal Rule of Civil Procedure 60 states:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just

terms, the court may relieve a party or its legal representative from a final judgment,

order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could

not have been discovered in time to move for a new trial under Rule

59(b);

(3) fraud (whether previously called intrinsic or extrinsic),

misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based

on an earlier judgment that has been reversed or vacated; or applying

it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

6

Both parties contend that the other side lacks Article III standing. “Framing the issue in this way,

however, is potentially confusing because ‘standing,’ by itself, traditionally has referred to whether a

plaintiff can satisfy Article III’s case-or-controversy requirement.” Roberts v. Hamer, 655 F.3d 578, 580

(6th Cir. 2011) “[S]tanding is a question of whether a plaintiff is sufficiently adversary to a defendant to

create an Art. III case or controversy, or at least to overcome prudential limitations on federal-court

jurisdiction.” Davis v. Passman, 442 U.S. 228, 239 n.18 (1979) (emphasis omitted); Roberts, 655 F.3d

at 580 (quoting Davis). It is clear that both Plaintiffs and nonparty Tilmon-Jones satisfy this threshold

requirement vis-a-vis the defendants in this action.

No. 12-1523 Bridgeport Music, et al. v. Smith, et al. Page 10

River Study, 355 F.3d at 583 (stating that “we must treat the district court's interpretation

and application of the Federal Rules of Civil Procedure as a question of law and, as with

all legal questions, review [the district court's] analysis de novo” (internal quotation

marks and citation omitted)). See generally Bus. Guides, Inc. v. Chromatic Commc’ns

Enters., Inc., 498 U.S. 533, 540 (1991) (“We give the Federal Rules of Civil Procedure

their plain meaning.” (internal quotation marks and citation omitted)).

C. Applicability of Rule 60(b)

Initially, we must determine whether Tilmon-Jones, as a nonparty to the

underlying action, is entitled to relief under the rule. Rule 60(b) provides in pertinent

part that a “court may relieve a party or its legal representative” from a final judgment.

Fed. R. Civ. P. 60(b); Kem Mfg. Corp. v. Wilder, 817 F.2d 1517, 1519-20 (11th Cir.

1987). “The general rule is that one must either be a party or a party’s legal

representative in order to have standing to bring any Rule 60(b) motion.” Id. at 1520

(citing cases).

Tilmon-Jones is not a party. Tilmon-Jones is also not the legal representative of

Plaintiffs, as she argued for the first time in her motion for reconsideration, since she

does not have any legal relationship with Plaintiffs that makes her in any way Plaintiffs’

legal representative. See Kem, 817 F.2d at 1520. As the district court noted, this theory

directly contradicts Tilmon-Jones’s argument that, she, not Plaintiffs, is the rightful

owner of the copyright and that Plaintiffs were not her agent. In short, Tilmon-Jones,

as a nonparty, does not qualify for relief under the plain language of Fed. R. Civ. P.

60(b). See Ericsson, Inc. v. InterDigital Comms. Corp., 418 F.3d 1217, 1224 (Fed. Cir.

2005) (“The plain language of Rule 60(b) only allows relief to be given to ‘a party’ to

the litigation.” (and cases cited therein)).

Notwithstanding the general rule that nonparties do not have standing under Rule

60(b), several courts have allowed relief where the nonparty is in some form of privity.

Eyak Native Village v. Exxon Corporation is instructive. 25 F.3d 773, 777 (9th Cir.

1994). In Eyak, the State of Alaska and the United States sued Exxon in connection with

the Alaska oil spill that ended in a consent decree. Certain environmental organizations,

No. 12-1523 Bridgeport Music, et al. v. Smith, et al. Page 11

not parties to the litigation, moved to modify the consent decree. Id. at 774-75. The

court found that “[t]he citizens whom the [environment organizations] sought to

represent were more than in privity with the State; they were identical.” Id. at 777. See

also Gen. Med., 475 F. App’x at 65 (entertaining an intervening party’s post-judgment

motion to set aside a four-year-old consent judgment, because the intervening party had

acquired the defendant corporation during the pendency of the original suit and was

therefore in privity of contract with the defendants); In re La Sierra Fin. Servs, Inc.,

290 B.R. 718, 724-31 (BAP 9th Cir. 2002) (holding that subsequent purchasers of

property sold at a bankruptcy sale were in privity with the initial purchasers of the

property and so had standing under Rule 60(b)(4) to set aside a bankruptcy court’s order

that arguably reinstated a lien on the property, which had been sold to the initial

purchasers free of liens). See generally Kem, 817 F.2d at 1520 (noting that “[i]t is not

clear that the privity exception does any more than restate in different language the rule

that persons tantamount to a party may be allowed standing”). But here, Tilmon-Jones’s

interests are at odds with Plaintiffs’ interests, so Tilmon-Jones cannot be afforded relief

on some notion of privity with Plaintiffs.

Several courts have also allowed a nonparty to seek relief under Rule 60(b)

where its interests were directly or strongly affected by the judgment. See, e.g., Grace

v. Bank Leumi Trust Co., 443 F.3d 180, 188-89 (2d Cir. 2006); Binker v. Pennsylvania,

977 F.2d 738, 745 (3d Cir. 1992); Dunlop v. Pan Am. World Airways, Inc., 672 F.2d

1044, 1051-52 (2d Cir. 1982). See also In re Lawrence, 293 F.3d 615, 627 n.11 (2d Cir.

2002) (noting that “several circuit courts have permitted a non-party to bring a Rule

60(b) motion or a direct appeal when its interests are strongly affected, and we have

permitted such a motion on at least one occasion”; citing cases). In Grace, for example,

the Second Circuit held that “where plaintiffs enter into a settlement agreement with a

judgment-proof, pro se defendant with the intent at the time of the settlement to collect

from a third party that allegedly received fraudulent conveyances, and further, they

attempt to use the judgment as a predicate for a fraudulent conveyance action against the

third party, the third party is ‘strongly affected’ by the judgment and entitled to standing

to bring a Rule 60(b) motion.” Grace, 443 F.3d at 188. The Grace court held that

No. 12-1523 Bridgeport Music, et al. v. Smith, et al. Page 12

nonparty movants were “sufficiently connected and identified with” a suit to have

standing to bring a Rule 60(b)(6) motion. Id.7 The court reiterated that under the

particular circumstances of the case, “[w]e thus carve out an exceedingly narrow

exception to the well-established rule that litigants, who were neither a party, nor a

party’s legal representative to a judgment, lack standing to question a judgment under

Rule 60(b).” Id. at 189.

In Dunlop, the nonparty movants were prevented from bringing an age

discrimination action in state court because of a prior judgment in federal court to which

they were not a party, but which limited their ability to file their state law claims. The

former employees moved under Rule 60(b)(6) to amend the stipulation to clarify that it

did not bar their pursuit of individual state law claims. The district court denied the

motion on the grounds that the former employees lacked standing to invoke Rule 60(b).

The Second Circuit reversed, holding that “[a]lthough Rule 60(b)(6) would not

ordinarily be available to non-parties to modify final judgments, . . . on the facts of this

case appellants were sufficiently connected and identified with the Secretary’s suit to

entitle them to standing to invoke Rule 60(b)(6).” Dunlop, 672 F.2d at 1052. The court

rested its decision on the fact that “the principles governing standing to invoke Rule 60

are sufficiently flexible to permit a finding of standing.” Id. at 1051-52 (citing Advisory

Committee Notes). Cf. Kem, 817 F.2d at 1520-21 (holding that nonparty did not have

standing under Rule 60(b) based on fraud; nonparty’s rights were not directly affected

since the judgment did not bind the nonparty in any way and the question of the

nonparty’s indemnity to the defendant in the underlying action was already before an

alternative forum).

Even if we adopted such an exception, Tilmon-Jones’s motion would clearly fail.

As the district court held, Tilmon-Jones has not established that her renewal copyright

interest is “strongly affected” because she has not shown that she was prevented from

litigating any claims due to a previous judgment to which she was not a party. In fact,

7

The Grace court also noted that its decision was “also in keeping with the principles governing

standing.” Id. at 188 (citing Dunlop, 672 F.2d at 1052).

No. 12-1523 Bridgeport Music, et al. v. Smith, et al. Page 13

she was able to successfully register her renewal rights with the United States Copyright

Office, and file her own lawsuit.8

This court has allowed a nonparty to raise a claim of fraud on the court under

Rule 60(b). See Southerland v. Irons, 628 F.2d 978, 980 (6th Cir. 1980) (per curiam).

In Southerland, the trial court approved a settlement after the prevailing party’s counsel

assured the court that he would satisfy a nonparty’s lien from his 50% contingent fee.

Id. at 979. The prevailing counsel did not make the payment to satisfy the lien. The

nonparty filed a Rule 60(b) motion alleging fraud on the court.9 The district court

agreed, and reallocated the settlement proceeds. Id. We affirmed. Observing that “Rule

60(b) by its own terms does not limit the court’s power to set aside a judgment induced

by fraud,”10 this court held that a nonparty may raise a claim of fraud on the court under

Rule 60(b).11 Id. at 980. Tilmon-Jones has not created an inference of fraud on the

court. Indeed, the default judgments on their face state merely that Bridgeport,

Southfield, and Westbound are “the 100% owner of the entirety of Defendant Esham’s

ownership interest in the copyright in the infringing compositions and sound recordings

effective as of the date of the creation of the composition,” as well as “the 100% owner

of the entirety of Defendant Reel Life Productions’ ownership interest in the copyright

in the infringing compositions and sound recordings effective as of the date of the

creation of the composition.” Thus, on their face, the default judgments do not deprive

8

In the 2011 Action, Tilmon-Jones alleged that “each of the musical works complained of herein

[including “Smart”] entered their renewal term well subsequent to Abrim Tilmon’s passing on July 6,

1982,” that “each of the musical works complained of herein automatically vested in the Estate of Abrim

Tilmon as of the commencement of the renewal period of such musical works,” and that Defendants

“falsely[] and fraudulently claimed and continue to claim ownership to the renewal term of the musical

works complained of herein by . . . renewing each of the musical works complained of herein with the U.S.

Copyright Office.” Tilmon-Jones did not assert that Plaintiffs actually used the default judgments falsely

for any infringements occurring during the renewal copyright period.

9

Although the Southerland court did not articulate which subsection of Rule 60(b) was at issue,

presumably the motion was brought under Rule 60(b)(6) because it was filed more than one year after final

judgment. See Fed. R. Civ. P. 60(c)(1) (stating that motions brought under Rule 60(b)(1)-(3) must be

brought within “a year after the entry of the judgment or order or the date of the proceeding”).

10

The district court in Southerland noted that a court has inherent power to set aside a judgment

for fraud. Southerland v. County of Oakland, 77 F.R.D. 727, 732 (E.D. Mich. 1978). The Sixth Circuit

adopted the reasoning of the district court. Southerland , 628 F.2d at 980.

11

This court also held that the nonparty also did not need to intervene in order to raise its claim.

Id. at 980.

No. 12-1523 Bridgeport Music, et al. v. Smith, et al. Page 14

Tilmon-Jones and her children of any of their rights, or limit them from proceeding with

their own cause of action. Furthermore, Plaintiffs sued Defendants within the three-year

limitation period for such claims.

In sum, we affirm the district court’s conclusion that nonparty Tilmon-Jones was

not entitled to relief under Fed. R. Civ. P. 60(b). We therefore need not consider her

arguments that she was entitled to relief under Rule 60(b)(4), (5), and (6).

D. Other Bases For Dismissal

Plaintiffs offer several other reasons why Tilmon-Jones is barred from

challenging the district court’s orders of default judgment: (1) her motion is untimely,

and (2) it is precluded by a settlement agreement.12

1. Timeliness

A motion to vacate a judgment under Rule 60(b)(4)-(6) must be brought “within

a reasonable time.” Fed. R. Civ. P. 60(c)(1); Gen. Med., 475 F. App’x at 75 (Rule

60(b)(6)); United States v. Dailide, 316 F.3d 611, 617 (6th Cir. 2003) (Rule 60(b)(4)).

“The reasonableness of the delay ‘depends on the facts of a given case including the

length and circumstances of the delay, the prejudice to the opposing party by reason of

the delay, and the circumstances compelling equitable relief.’” Gen. Med., 475 F.App’x

at 76 (quoting Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990)).

Under these factors, Tilmon-Jones’s delay in filing her Rule 60(b) motion was

not reasonable. Tilmon-Jones had constructive notice of the default judgments as of

March 11, 2005, when they were recorded in the United States Copyright Office. See

17 U.S.C. § 205(c) (stating that “[r]ecordation of a document in the Copyright Office

gives all persons constructive notice of the facts stated in the recorded document”); Latin

Am. Music Co. v. Archdiocese of San Juan of Roman Catholic & Apostolic Church,

12

Because it found that Tilmon-Jones lacked standing, the district court found it unnecessary to

address these additional defenses. We may affirm the district court’s decision for any reason, even one

not considered by the district court. See U.S. Postal Serv. v. Nat’l Ass’n of Letter Carriers, 330 F.3d 747,

750 (6th Cir. 2003).

Plaintiffs also raised res judicata as an affirmative defense. Because the first two reasons clearly

preclude Tilmon-Jones from challenging the default judgments, we will not address res judicata.

No. 12-1523 Bridgeport Music, et al. v. Smith, et al. Page 15

499 F.3d 32, 40 (1st Cir. 2007) (“A copyright registration certificate in the Copyright

Office provides constructive notice as to the ownership of the copyright and the facts

stated in the registration certificate.” (internal quotation marks and citation omitted)).

See also Johnson v. Jones, 149 F.3d 494, 505 (6th Cir. 1998) (“Constructive notice of

a valid copyright is presumed upon registration.”). Moreover, Tilmon-Jones was

actively litigating copyright claims to other songs in the Abrims catalogue as early as

2006. Yet she did not file the Rule 60(b) motion until 2011, nearly seven years after the

entries of default judgment, and six years after constructive notice. Under these

circumstances, Tilmon-Jones’s motion was clearly untimely. Cf. Gen. Med., 475

F.App’x at 75-76 (four-year delay was unreasonable; and cases therein).

2. Release

The consent order of settlement in the 2006 Action, which dismissed all causes

of action and claims as to Boladian and Bridgeport Music with prejudice, incorporated

the Memorandum of Consent Settlement Agreement (“Agreement”) between the parties.

The Agreement states in pertinent part as follows:

WHEREAS, the ESTATE, TILMON-JONES, AND HEIRS voluntarily

and with full knowledge of their rights and the provisions herein, now

desire to settle, compromise and dispose of the District Court Action

claims, and any and all other claims they have or might have against

COMPANIES including, but not limited to, any claims that may arise in

the future pursuant to any newly discovered facts which are not yet

known to the ESTATE, TILMON-JONES and HEIRS;

....

5. TILMON-JONES, ESTATE AND HEIRS hereby release and

forever discharge Armen Boladian, individually, and Bridgeport as well

as their officers, . . . successors and assigns, privies in contract, from all

. . . actions, causes of action, charges, complaints, judgments, suits,

warranties, covenants, contracts, promises, obligations, liabilities, or

claims of any kind, type, or description, whether now known, disputed

or undisputed, accrued or unaccrued, liquidated or contingent, foreseen

or unforeseen, asserted or unasserted, filed or not yet filed, in contract,

tort, at law, or in equity, or before any local, state or federal court,

administrative agencies or departments, existing at the time of this

Agreement, or which subsequently may exist or arise following

No. 12-1523 Bridgeport Music, et al. v. Smith, et al. Page 16

execution of this Agreement, that could have been brought by TILMON-

JONES, ESTATE AND HEIRS pertaining to the causes of action

contained in the District Court Action for which this Agreement pertains.

6. . . . TILMON-JONES, ESTATE AND HEIRS acknowledge that

they may hereafter discover claims or facts in addition to or different

from those which they now know or believe to exist with respect to the

District Court Action for which this Agreement pertains, but that it is

their intention hereby to fully, finally and forever settle and release any

and all released matters . . . known or unknown, . . . which now exist,

may exist, or heretofore have existed . . . .

“The language of the release is as clear as would be humanly possible to make

in this regard.” Taggart v. United States, 880 F.2d 867, 870 (6th Cir. 1989)

(characterizing very similar language, “where the language of the agreement expressly

and with emphasis releases the releasees ‘from all KNOWN AND UNKNOWN,

FORESEEN AND UNFORESEEN bodily and personal injuries . . . .’”). See generally

Kellogg Co. v. Sabhlok, 471 F.3d 629, 632 (6th Cir. 2006) (“The scope of a release is

controlled by the language of the release.” (applying Michigan law)). The Settlement

Order here clearly and unambiguously releases Boladian, Bridgeport, its successors,

assigns, and privies in contract from all claims that “could have been brought” by

Tilmon-Jones. This would include the present Rule 60(b) motion. Although the

2006 Action did not litigate the alleged copyright infringement of “Smart,” it specifically

mentioned the song in Attachment A and described the agreement between Tilmon and

Bridgeport. Thus, Tilmon-Jones’s present claim based on “Smart” is barred by the

release in the 2006 Action.

IV. Attorney’s Fees and Costs

Also before this court is Plaintiffs’ motion for damages and costs pursuant to

Fed. R. App. P. 38 and 28 U.S.C. § 1912. Section 1912 provides that, “[w]here a

judgment is affirmed by the Supreme Court or a court of appeals, the court in its

discretion may adjudge to the prevailing party just damages for his delay, and single or

double costs.” 28 U.S.C. § 1912. Rule 38 states that “[i]f a court of appeals determines

that an appeal is frivolous, it may, after a separately filed motion or notice from the court

No. 12-1523 Bridgeport Music, et al. v. Smith, et al. Page 17

and reasonable opportunity to respond, award just damages and single or double costs

to the appellee.” We also have discretion, pursuant to 28 U.S.C. § 1927, “to assess

excess costs, expenses, and attorney fees directly against an attorney ‘who so multiplies

the proceedings in any case unreasonably and vexatiously.’” Waeschle v. Dragovic,

687 F.3d 292, 296 (6th Cir. 2012) (per curiam) (quoting 28 U.S.C. § 1927).

“An appeal is frivolous ‘if it is obviously without merit and is prosecuted for

delay, harassment, or other improper purposes.’” Vic Wertz Distrib. Co. v. Teamsters

Local 1038, 898 F.2d 1136, 1143 (6th Cir.1990) (quoting Dallo v. INS, 765 F.2d 581,

589 (6th Cir.1985)). As our analysis regarding Plaintiffs’ defenses attests, the appeal in

this case is all of the above. The conduct of Tilmon-Jones and her counsel was

objectively and patently meritless and a waste of judicial resources. Tilmon-Jones

maintains that her appeal is not frivolous because the question of whether a nonparty has

standing under Fed. R. Civ. P. 60(b) was not obviously without merit. This may be true,

but it does not obviate the fact that her appeal was utterly without merit because it was

untimely and barred by a release. We find that this appeal is frivolous and that sanctions

are appropriate. See generally Allinder v. Inter-City Prods. Corp. (USA), 152 F.3d 544,

552 (6th Cir. 1998).

V. Conclusion

For all of the foregoing reasons, the judgment of the district court is AFFIRMED.

Plaintiffs’ motion for damages and costs under Rule 38 and § 1912 is GRANTED.

Plaintiffs shall file an affidavit within thirty days of this order setting forth the costs and

attorney’s fees incurred in defending this appeal. Said amounts shall be shared equally

by Tilmon-Jones and appellate counsel.