United States Court of Appeals
Fifth Circuit
F I L E D
August 29, 2003
UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
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No. 02-30473
SUMMARY CALENDAR
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ROSA LEE HAWKINS; BARBARA ANNE HAWKINS; JOAN MARIE JOHNSON
Plaintiffs - Appellees
v.
JOE JONES, doing business as Melder Publishing Company
Defendant - Appellant
______________________________________________________________________________
On Appeal from the United States District Court for the
Eastern District of Louisiana, New Orleans Division
(00-CV-3785-M)
______________________________________________________________________________
Before REYNALDO G. GARZA, HIGGINBOTHAM, and DEMOSS Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:1
In this appeal we review the district court’s judgment as a matter of law in favor of the
plaintiffs-appellees on defendant’s counterclaim for copyright infringement and the jury’s verdict
for plaintiffs on their claims for breach of contract, dissolution of contract, and unfair competition.
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
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Finally, we consider whether defendant-appellant’s appeal is frivolous and deserving of sanctions
pursuant to FED. R. APP. P. 38. For the following reasons, we affirm the district court’s
judgment and the jury’s verdict. We also grant plaintiffs-appellees’ motion for sanctions and
remand the case to the district court for a determination of the attorney’s fees expended by
plaintiffs-appellees in this case.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs-appellees, Rosa Lee Hawkins, Barbara Anne Hawkins, and Joan Marie Johnson,
were members of the 1960's pop group, the “Dixie Cups” (hereinafter, “plaintiffs”). The group
brought this action for breach of contract, dissolution of contract, and unfair competition against
defendant-appellant, Joe Jones, doing business as Melder Publishing Company.
The Dixie Cups wrote the song “Iko, Iko” (hereinafter, the “song”) in 1963. In 1964 they
recorded and registered the copyright. On March 10, 1965, plaintiffs granted Jones and a
company called Trio Music Publishing, Inc. ownership in the copyright of the song for the original
term through a songwriters’ agreement in which Jones and Trio Music agreed to pay plaintiffs
certain specified sums. The agreement did not explicitly grant Jones or Trio Music ownership in
the renewal term of the copyright. In 1992, the copyright to the song reverted to plaintiffs and
they re-registered the song in a renewal copyright registration. Both the original 1964 copyright
registration and the 1992 renewal list plaintiffs as the sole writers of the song.
According to evidence presented by plaintiffs at trial, Jones exploited the song in foreign
territories and took credit as author of the song without compensating plaintiffs. Plaintiffs learned
Jones was exploiting the song in foreign territories when the song appeared in the movie, Mission
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Impossible II, in 2000. Jones has also claimed that he wrote “Iko, Iko” on several occasions,
including during cross-examination testimony in this case. These statements are in direct
contradiction to statements made by Jones in earlier sworn statements in previous litigation over
the authorship of “Iko, Iko.” Jones introduced into evidence a 1968 settlement agreement
claiming to release him from the obligation to pay plaintiffs in accordance with the 1965
songwriters’ agreement. Plaintiffs all testified they did not sign the settlement agreement and that
the signatures on the documents were forgeries. Plaintiffs also produced copies of several other
district court opinions from cases in which Jones falsely claimed authorship of songs and
attempted to use forged documents as evidence. See Johnson v. Tuff N Rumble Management,
Inc., 2000 WL 622612, *5 (E.D. La. May 15, 2000); Davis v. Jones, 1994 WL 382571 (E.D. La.
July 18, 1994); Makedwde v. Johnson, 1994 WL 10360, *2 (E.D. La. Jan. 5, 1994).
The district court granted plaintiffs’ motion for judgment as a matter of law on Jones’
counterclaim of copyright infringement, stating in its final judgment that “defendant did not
demonstrate ownership of a valid copyright.”
Plaintiffs’ claims for breach of contract, contract dissolution, and unfair competition went
to the jury, which reached a verdict in favor of plaintiffs on all claims and awarded damages in the
amount of $409,507.89. The jury also determined that Jones and his business, Melder Publishing,
must surrender all copyrights and licenses to the plaintiffs.
II.
COPYRIGHT INFRINGEMENT
Jones raises several issues with respect to the district court’s judgment as a matter of law
on his counterclaim for copyright infringement. Jones argues that the March 10, 1965,
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songwriters’ agreement between plaintiffs, Melder Publishing Company, and Trio Music granted
him ownership of the song. In what seems to be a contradictory position, Jones also contends
that it was Melder Publishing who was first to copyright the song on January 7, 1963 and that he
renewed the copyright on December 30, 1991. However, Jones failed to introduce these
copyright registrations into evidence at trial.
This court reviews the district court’s grant of a FED. R. CIV. P. 50(a) motion for
judgment as a matter of law de novo, using the same standard applied in the district court. RTC
v. Cramer, 6 F.3d 1102, 1109 (5th Cir. 1993). The evidence and all reasonable inferences
therefrom are considered in the light most favorable to the party opposing the motion. Id. We
will affirm the district court’s ruling if the evidence and inferences so strongly and overwhelmingly
favor the moving party that reasonable jurors could not have come to a different conclusion. Id.
Only if there existed substantial evidence that would have led reasonable jurors to reach a
differing conclusion, will this court overturn the district court’s judgment. Portis v. First Nat’l
Bank of New Albany, Miss., 34 F.3d 325, 327-28 (5th Cir. 1994).
To prevail on a claim for copyright infringement, Jones must demonstrate: (1) that he
owned a valid copyright, and (2) that plaintiffs copied original elements of the work. Feist
Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (citing Harper & Row
Publishers, Inc. v. Nation Enters., 471 U.S. 539, 548 (1985)). Thus, Jones’ counterclaim for
infringement requires that he prove ownership in the song, something he is unable to do. The
1965 agreement does grant Jones 50% ownership of the original copyright to the song, but the
agreement does not assign Jones rights to the renewal term of the song.
Under the 1909 Copyright Act, a copyright had two terms: an original term and a renewal
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term. Stewart v. Abend, 495 U.S. 207, 212, 217-19 (1990). The renewal term allows authors a
second chance to obtain copyright ownership. Id. Ownership of a copyright can only be
transferred by a writing signed by the copyright owner. See 17 U.S.C. § 204. Absent language
expressly granting renewal rights, an agreement does not grant renewal rights even if it does
transfer ownership during the original term. See 17 U.S.C. § 304(a)(1)(C). Jones introduced no
evidence at trial of an ownership interest in the song. Furthermore, Jones testified several times in
the 1960s that plaintiffs were the authors of the song. Plaintiffs, on the other hand, introduced a
copy of the original 1964 copyright and the 1992 renewal copyright listing themselves as writers
of the song. Finally, the March 10, 1965 songwriters’ agreement, which Jones is attempting to
enforce in this case, names plaintiffs as the writers of the song. The district court did not err in
granting plaintiffs’ motion for judgment as a matter of law on Jones’ counterclaim for copyright
infringement.
III.
BREACH OF CONTRACT, DISSOLUTION OF CONTRACT, AND UNFAIR
COMPETITION
Plaintiffs do not dispute that they entered into the March 10, 1965 songwriters’
agreement. However, under the terms of the agreement, after the original term of the copyright
of the song expired and plaintiffs renewed the copyright in 1992, Jones was only allowed to
exploit the song in foreign territories. Jones began exploiting the song in foreign territories, but
he failed to pay plaintiffs for those uses. In his defense, Jones relies on a 1968 settlement
agreement and a letter written in 1973 from Trio Music to plaintiff, Barbara Hawkins, as evidence
that Jones and Melder Publishing were not obligated to pay plaintiffs for use of the song.
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Plaintiffs testified that they had refused to sign the settlement agreement when Jones brought it to
them in 1968 and Barbara Hawkins testified that she had never received the 1973 letter from Trio
Music.
The standard of review regarding a jury verdict is that the verdict must be upheld unless
evidence is so strongly in favor of one party that a reasonable individual could not arrive at a
contrary verdict. Hiller v. Manufacturers Prod. Research Group, 59 F.3d 1514, 1522 (5th Cir.
1995); Waco Int’l, Inc. v. KHK Scaffolding Houston, Inc., 278 F.3d 523, 528 (5th Cir. 2002).
Jones is appealing credibility issues decided by the jury; however, this court will not disturb
credibility determinations on appeal. Williams v. Fab-Con, Inc., 990 F.2d 228, 230 (5th Cir.
1993) (this court will defer to the trier of fact if factual determinations are based upon credibility
determinations). “An appellate Court is in no position to weigh conflicting evidence and
inferences or to determine the credibility of witnesses; that function is within the province of the
finder of fact.” Martin v. Thomas, 973 F.2d 449, 453 n.3 (5th Cir. 1992) (internal quotation and
citation omitted).
As stated previously, Jones has no ownership interest in the song. Plaintiffs offered
evidence, and Jones admitted, that Jones never paid plaintiffs for the foreign exploitation of the
song. The jury heard Jones’ evidence of the 1968 settlement agreement and the 1973 letter from
Trio Music, which Jones claims free him of his obligation to pay plaintiffs in accordance with the
1965 songwriters’ agreement. The jury also heard plaintiffs’ testimony that they had not signed
the 1968 settlement agreement and had not received the 1973 letter. In short, the jury believed
plaintiffs, not Jones. The weight and credibility of this evidence is not an issue for appellate
review. We uphold the judgment for plaintiffs on their claims for breach of contract, dissolution
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of contract, and unfair competition.
IV.
SANCTIONS FOR FRIVOLOUS APPEAL
Plaintiffs-appellees have moved this court to impose sanctions pursuant to FED. R. APP.
P. 38 upon Jones for bringing a frivolous appeal. Jones offered no evidence at trial that he owned
the copyright to “Iko, Iko.” His only evidence in defense of plaintiffs-appellees’ contract claims
are a 1968 settlement agreement and a 1973 letter, both of which the jury believed to be forged
documents, a tactic Jones has employed in other similar suits. Johnson, 2000 WL 622612, *5
(Jones relied on a written agreement he claims was executed in 1964, but the document was
printed on a laser printer, included justified text, and contained a word processor file name).
Finally, throughout his brief Jones makes baseless accusations of bias on the part of the magistrate
and district court judge.
“If a court of appeals determines that an appeal is frivolous, it may, after a separately filed
motion or notice from the court and reasonable opportunity to respond, award just damages and
single or double costs to the appellees.” FED. R. APP. P. 38. The fact that Jones is a pro se
litigant does not prohibit the court from imposing sanctions. George v. Texas, 788 F.2d 1099
(5th Cir. 1986); Clark v. Green, 814 F.2d 221 (5th Cir. 1987); Johnson, 2000 WL 622612, *10.
This appeal has no arguable merit and is frivolous. Jones was placed on notice that
plaintiffs-appellees were seeking sanctions. He had an opportunity to respond in his reply brief
and he chose to go forward with the appeal. Jones has presented no good faith argument for
reversing the district court’s judgment as a matter of law or the jury’s verdict. Thus, appellees’
motion for sanctions pursuant to FED. R. APP. P. 38 is granted in the amount of single costs and
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attorney’s fees.
VIII.
CONCLUSION
For the foregoing reasons the judgment of the district court is affirmed and the case is
remanded to the district court for a determination of the attorney’s fees expended by appellees in
this appeal. See George, 788 F.2d at 1100-01.
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