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IP/Entertainment Case Law Updates

Armes v. Post

In copyright action brought by musician Tyler Armes asserting co-authorship of Post Malone’s hit song “Circles,” district court dismisses claims based on plaintiff’s alleged co-authorship of sound recording, but denies motion to dismiss claims based on co-authorship of underlying composition.

Plaintiff Tyler Armes commenced this action against musical artist Austin Richard Post, professionally known as Post Malone, Post’s co-writer Adam King Feeney (p/k/a Frank Dukes) and Post’s record label, claiming that Armes co-authored both the composition and the sound recording to Post’s hit song “Circles” and seeking a share of the profits derived from the song. According to Armes, Post invited him to a Toronto studio to write music together in August 2018. Armes alleged that, during a nighttime session, he co-wrote the chords for “Circles” and had significant input on the bassline and guitar parts. Armes also claimed he made recommendations in his capacity as producer to slow the song’s tempo, strip the song down to just bass, guitar and drums, play the bass with a pick as opposed to fingers, and apply a reverb effect on the vocals and guitar tracks. Following unsuccessful attempts to resolve the dispute, Armes commenced the action seeking declaratory judgment that Armes was a joint author of the composition and sound recording, and is entitled to co-writer and co-producer credits and a share of defendants’ royalties.

Defendants moved to dismiss the claims relating to the composition, on the grounds that Armes failed to join non-party co-writers credited on the composition as necessary parties to the claims, and the  claims relating to the sound recording for failure to state a claim, arguing that Armes failed to establish the necessary elements of co-authorship under Ninth Circuit precedent. Defendants also moved to dismiss the claims against Post and Dukes for insufficient service. In the alternative to dismissal, defendants moved to transfer the case to the Southern District of New York, in which a parallel declaratory judgment action had later been filed by Post. 

The court denied defendants’ motion to dismiss the claims relating to the composition. Rejecting defendants’ contention that copyright co-owners are always indispensable parties in ownership disputes, the court noted that Armes sought recovery of a share of profits from the named defendants only, such that complete relief could be accorded among the parties to the action. Accordingly, the court held that the non-party co-writers were not indispensable in this action, and that Armes’ failure to name them as defendants did not warrant dismissal.

The court granted defendants’ motion to dismiss the claims relating to the sound recording on the grounds that Armes had failed to plead the requisite elements of co-authorship. Under Ninth Circuit law, the court explained, a joint work requires each author to make “an independently copyrightable contribution” to the work at issue. Courts consider three factors when determining whether parties are joint authors: (1) whether an alleged co-author exercised control over creation of the work, (2) whether all co-authors made “objective manifestations of a shared intent to be co-authors,” and (3) whether “the audience appeal of the work turns on [each co-author’s] contributions and the share of each in its success cannot be appraised.” The court noted that Armes had sufficiently alleged facts to establish the first and third elements, but nonetheless held that Armes’ allegations failed on “the most important factor”: “that he superintended control over [the recording’s] creation.” Here, Armes alleged that that he made creative recommendations while defendant Dukes made a recording, but Armes did not allege that he himself “exercised control over the creation of the Recording.” To be an author, the court explained, “one must supply more than mere direction or ideas” but rather must be the party “who actually creates the work.” For these reasons, the court held that Armes failed to plead the requisite control over the creation of the sound recording or that he made an independently copyrightable contribution. The court dismissed the claims based on Armes’ alleged co-authorship of the sound recording but granted Armes leave to amend.

The court denied the motion to transfer the action to New York because, among other things, most of the parties and potential witnesses reside in California, and none of the relevant facts occurred in New York. Finally, the court denied the motion to dismiss the claims against Post and Dukes for insufficient service of process. With respect to Post, the court found that service was validly effected pursuant to the California Code of Civil Procedure. While service was not properly made on Dukes, the court directed Armes to effectuate service upon Dukes within 21 days as an alternative to dismissal.

Summary prepared by Wook Hwang and Michael Segal