Coles v Wu-Tang Prods., Inc.

Coles v Wu-Tang Prods., Inc. 2011 NY Slip Op 00789 Decided on February 10, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 10, 2011
Gonzalez, P.J., Tom, Andrias, Acosta, Abdus-Salaam, JJ.
4243 602345/05

[*1]Dennis Coles, Plaintiff-Respondent,

v

Wu-Tang Productions, Inc. etc., et al., Defendants-Appellants.




Anthony Motta, New York, for appellants.
Cinque & Cinque, P.C., New York (James P. Cinque of
counsel), for respondent.

Judgment, Supreme Court, New York County (Richard B. Lowe III, J.), entered October 1, 2009, after a nonjury trial, in plaintiff's favor, unanimously modified, on the law, to reduce the award to plaintiff by 25% of the net royalty payments received by defendant Wu-Tang Productions, and otherwise affirmed, without costs, and the matter remanded for recalculation of the award.

In this action for the payment of royalties for musical compositions co-written by plaintiff, the documentary evidence established that Wu-Tang was entitled to retain 25% of the net royalty payments it received from Careers-BMG Music Publishing, Inc. (BMG) before paying plaintiff his share. Pursuant to the agreement between plaintiff and Wu-Tang, plaintiff conveyed an undivided 50% percent interest in the copyrights in those compositions to Wu-Tang, and, with plaintiff's consent, Wu-Tang transferred 50% percent of its interest in the copyrights to BMG. Thus, Wu-Tang retained a 25% interest in the copyrights.

The record supports the trial court's determination that plaintiff, as a lyricist of the compositions, and defendant Diggs, as a producer of the music, regarded themselves as joint authors sharing equally in the ownership of a joint work (see Childress v Taylor, 945 F2d 500, 508 [2d Cir 1991]). The court properly granted plaintiff leave to conform the complaint to the evidence presented at trial by adding a claim against Diggs for his unauthorized receipt of a 50% producer's fee (see CPLR 3025[c]; Gonfiantini v Zino, 184 AD2d 368, 369-370 [1992]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 10, 2011

CLERK