SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: IAS PART 49
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GEORGE KERR, individually and
doing business as Wesaline Music,

Plaintiff,

-against- Index No. 606131/98

VINCENT BROWN, KEIR GIST,
ANTHONY CRISS, NAUGHTY
MUSIC, and TOMMY BOY MUSIC,

Defendants.
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Herman Cahn, J.:
In this action for breach of contract and related relief, defendants move to dismiss the complaint based on documentary evidence, the Statute of Limitations, and failure to state a cause of action. CPLR 3211(a)(1),(5) and(7).
The following allegations appear in plaintiff's complaint:
A rock group known as "The New Style" entered into an "Exclusive Songwriters Agreement" (Songwriters Agreement") with non-party, Renaissance Music, Inc., ("Renaissance") on February 8, 1989. The individual defendants were all the members of The New Style. Pursuant to the agreement, the group assigned all musical compositions it composed during the term of the agreement, i.e. five years, to Renaissance, in exchange for royalties generated from the commercial exploitation of the compositions, in accordance with an agreed schedule.
The agreement contained a provision (¶ 15 of the Agreement) in which The New Style expressly agreed not to write or compose any musical composition under any name other than its own name.
Pursuant to the agreement, Renaissance published an album and a 12" single record, which were distributed to the public by MCA records.
On October 16, 1989, plaintiff entered into an agreement with Renaissance, which plaintiff now characterizes as an "Administration Agreement." Plaintiff was granted the right to co-publish and administer musical compositions owned or controlled by Renaissance, including those written by The New Style, for a period of five years. Plaintiff agreed to pay all royalties due to The New Style by virtue of the Songwriter's Agreement. It is these two agreements, the Songwriters Agreement and the "Administration Agreement," read together, upon which plaintiff bases his complaint.
Plaintiff did not receive any musical compositions from The New Style during the five year term of the Songwriters Agreement . Plaintiff alleges that The New Style and the individual defendants, adopted a new name, "Naughty By Nature" during this time, and entered into an exclusive songwriter agreement with defendant Tommy Boy Music, Inc. Naughty by Nature allegedly composed 26 songs for distribution by Tommy Boy Music.
Defendants allegedly registered claims to copyrights on the compositions referred to, and have derived an economic benefit from their exploitation, in violation of the Songwriters Agreement with Renaissance and the Administration Agreement between Renaissance and plaintiff.
Plaintiff's first cause of action seeks specific performance and an order directing defendants to convey to plaintiff all rights, title and interest in the musical compositions, including a conveyance of copyright therein. He claims that ownership of these musical compositions is vested in him by virtue of the Songwriters Agreement and the "Administration Agreement."
The second cause of action seeks damages based on the individual defendants' breach of the Songwriters Agreement.
The third cause of action alleges that Naughty Music and Tommy Boy unlawfully appropriated money which plaintiff was entitled to receive pursuant to the Songwriter's Agreement, amounting to unjust enrichment.
The fourth cause of action alleges that Tommy Boy knew of the existence of the Songwriters Agreement and entered into agreements with the individual defendants with the intent of depriving plaintiff of the benefit of its Agreements, without any economic justification.
The individual defendants claim that they entered into a recording contract with Bon Ami Records in 1988, when they were each seventeen years old. At the time they were unrepresented by counsel. Within a few months of their entering into that contract, the individual defendants entered into the Songwriters Agreement with Renaissance Music, described above. The individual defendants believed Renaissance to be the same entity as Bon Ami since allegedly both companies had the same principal. Still later, after the unsuccessful release of a 12" single record and a full-length album with Bon Ami and MCA Records, defendants changed the name of their group to "Naughty By Nature." In October 1990, defendants entered into a recording agreement with Warner Bros. Records, under the "Naughty by Nature" name. Warner Bros. eventually assigned its rights under this agreement to Tommy Boy Records.
In June 1991, after the group had produced two successful albums with Tommy Boy, defendants entered into a settlement agreement with Bon Ami, in order to avoid Bon Ami's threats of litigation. Under the settlement agreement, defendants paid Bon Ami $25,000 in connection with the release of the first Tommy Boy album, and $15,000 in connection with the subsequent album. Although the Settlement Agreement does not specifically refer to claims Renaissance might have had under the Songwriters Agreement, defendants assert that the settlement was intended to resolve all claims of Bon Ami's affiliates, as well as those of Bon Ami.
Defendants claim to have had no knowledge of plaintiff's claimed connection to their music until the instant lawsuit was commenced in 1998. They never received any communications from plaintiff until that time, nor did they ever receive royalty statements or payments from plaintiff for songs that had been released by Bon Ami.
In opposition to the motion, plaintiff claims that he had an unwritten "understanding" with Renaissance, and its principal, Robinson, under which their co- publishing agreement was to relate to any music written by The New Style, or by its individual members, regardless of the name the group was then using. It is this unwritten "understanding" on which plaintiff relies in asserting the instant claims against defendants.
As to defendants' motion to dismiss based on the Statute of Limitations, plaintiff claims that he regularly checked various trade papers and radio stations to see if The New Style was writing any songs, but that he never saw their name mentioned or heard any of their songs. Plaintiff further claims that because he didn't know the individual members, there was no way for him to know that defendants had changed the name of their group until someone told him of the name change in December 1998. Because of this lack of knowledge, plaintiff asserts that defendants "should not be entitled to assert the statute of limitations as a defense." Further, plaintiff claims that claims relevant to the album released in 1993 are timely, and seeks discovery to uncover the names of other songs defendants may have written during the term of the Songwriters Agreement.
The record reflects that plaintiff, as Wesaline Music/George Kerr, entered into an agreement with Renaissance Music/Joseph Robinson, Jr. on October 16, 1989. Pursuant to this agreement, plaintiff was granted a 50% publishing share in all compositions written by The New Style, and two other groups, "individually and collectively," for a five-year term. In exchange for this right to co-publish, plaintiff agreed to be responsible for paying writers' royalties. Plaintiff also agreed to administer all publishing, and to pay Renaissance/Joseph Robinson Jr. and the writers pursuant to the agreement, and in accordance with "all the terms . . . from . . . the exclusive songwriters agreement between the writer(s) and Renaissance Music/Joseph Robinson Jr." Pursuant to the express terms of this agreement, Renaissance Music/Joseph Robinson Jr. possessed the sole right to terminate the agreement in the event plaintiff failed to fulfill its obligations.
This same agreement also guaranteed plaintiff that Bon Ami/New Day Records would pay royalties to plaintiff based on each album released by Bon Ami/New Day Records. The agreement was signed by Joseph Robinson Jr. on behalf of both Renaissance Music and Bon Ami/New Day Records.
That branch of the motion that seeks dismissal based on a failure to state a cause of action is dispositive of the entire motion. A motion to dismiss a pleading will be granted if the allegations of the complaint are not sufficiently particular to give the court and parties notice of the transactions intended to be proved and the material elements of each cause of action. Catli v Lindenman, 40 AD2d 714 (2nd Dept 1972 ), aff'd 33 NY2d 1002 (1974). In deciding the motion, the Court need not consider the parties' construction of the pleadings. Pace v Perk, 81 AD2d 444 (2nd Dept 1981).
The action for specific performance is dismissed. The complaint fails to allege the existence of an agreement granting plaintiff the right to ownership of defendants' musical compositions during the period in question, or for any period of time. The Songwriters Agreement is alleged to have been entered by defendants and Renaissance. The "Administration Agreement" allegedly granted plaintiff the "exclusive worldwide right to publish and administer musical compositions owned or controlled by Renaissance." Neither of these allegations, however, is sufficient to infer the existence of a right in plaintiff to exclusive ownership of defendants' musical compositions, or that plaintiff was an "intended beneficiary" of the Songwriters Agreement. See, Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 NY2d 38 (1985). The Court will not infer a right to ownership based on plaintiff's assertions of the existence of parol evidence.
The second cause of action for breach of the Songwriters Agreement is dismissed. It is clear from the pleadings that plaintiff was not a party to this agreement. Absent privity, plaintiff lacks standing to assert this claim.
The third cause of action for unlawful appropriation of money by Naughty Music and Tommy Boy, amounting to unjust enrichment, is dismissed. Although the claim sounds in conversion, an intentional tort, plaintiff seeks damages for this alleged breach based on a theory of quasi-contract, i.e., unjust enrichment. The Court will not entertain this hybrid cause of action, which is unsupported by the conclusory allegations in the complaint.
The fourth cause of action, for tortious interference with contractual rights, is also dismissed. Plaintiff has failed to adequately allege the existence of a contract with the individual defendants which Tommy Boy could have interfered with, either knowingly or otherwise. See, Guard-Life v S. Parker Hardware Mfg, Corp., 50 NY2d 183 (1980).
The court notes that Renaissance has not been made a party to this action.
Accordingly it is
ORDERED that defendants' motion is granted and the complaint is dismissed, and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.
Dated: February , 2000
ENTER