Latin Am. Music Co. v. Spanish Broad. Sys.

17-1953-cv
Latin Am. Music Co. v. Spanish Broad. Sys.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
4th day of October, two thousand eighteen.

PRESENT: JOHN M. WALKER, JR.,
PIERRE N. LEVAL,
PETER W. HALL,

Circuit Judges.
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LATIN AMERICAN MUSIC CO., INC., A/K/A LAMCO AND
ASOCIACION DE COMPOSITORES Y EDITORIES DE LA
MUSICA LATINOAMERICANA, A/K/A ADEMLA

Plaintiffs-Appellants,

v. No. 17-1953-cv

SPANISH BROADCASTING SYSTEM, INC.,

Defendant-Appellee,

RAUL ALARCON, JR.,
Defendant.

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FOR APPELLANTS: ROBERT PENCHINA, Ballard Spahr, LLP, New York,
New York.

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FOR APPELLEE: JAMES G. SAMMATARO, Stroock & Stroock & Lavan
LLP, New York, New York, James C. Fitzpatrick (on
the brief), Hughes Hubbard & Reed LLP, New York,
New York.

Appeal from a judgment of the United States District Court for the Southern District of

New York (Sullivan, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiffs-Appellants are Latin American Music Company (“LAMCO”), a music publisher

that manages the copyrights for a number of Puerto Rican and foreign artists, and Asociación

de Compositores y Editores de Musica Latinoamericana de Puerto Rico, Inc. (“ACEMLA”),

a subsidiary of LAMCO and music performance licensing group (collectively, “Appellants”).

Defendant-Appellee Spanish Broadcasting Systems, Inc. (“SBS”) operates radio stations

throughout the United States, including the two at issue in this lawsuit: “La Zeta” in Puerto

Rico and “Mega 97.9” in New York City. Appellants brought the instant suit claiming that

SBS infringed Appellants’ copyrights of thirteen songs by playing those songs (“Songs”) on

La Zeta and Mega 97.9 without a license to do so.

We assume the parties’ familiarity with the facts, record of prior proceedings, and

arguments on appeal, which we reference only as necessary to explain our decision to affirm.

“[W]e review the trial court’s summary judgment decision de novo, construing all evidence

in the light most favorable to the nonmoving party.” Porter v. Quarantillo, 722 F.3d 94, 97 (2d

Cir. 2013) (internal quotation marks omitted). Under the Copyright Act a claim must be

brought within three years from the time it accrued. 17 U.S.C. § 507(b). A claim of

ownership accrues “only once, when a reasonably diligent plaintiff would have been put on
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inquiry as to the existence of a right . . . any number of events can trigger the accrual of an

ownership claim, including an express assertion of sole authorship or ownership.” Kwan v. Schlein, 634

F.3d 224, 228 (2d Cir. 2011) (emphasis added). Where ownership is at issue, and “the

ownership claim is time-barred . . . any attendant infringement claims must fail.” Id. at 230.

The parties agreed that seven of the thirteen Songs at issue in this appeal had been copyrighted

by either Fania Publishing Co., Inc. or Fania Records, Co. (collectively, “Fania”) in the 1970s,

following agreements with the authors and/or co-authors of those Songs (“the Fania works”).

Appellants assert they purchased the copyrights to the Fania works in the 1990s not from

Fania, but from the authors thereof or their heirs.1 Their claims for copyright infringement

of those works are time-barred. A reasonably diligent plaintiff in Appellants’ situation would

have reviewed the Copyright Office’s registration of the Songs when purchasing copyrights to

the Songs in the late 1990s and early 2000s. This suit was not filed until 2013.

Appellants suggest for the first time on appeal that they could be the valid transferees of

the copyright renewal terms of the Fania works. This argument was not made to the district

court and was thus not preserved for appeal. In re Nortel Networks Corp. Securities Litigation,

539 F.3d 129, 133 (2d Cir. 2008).

We turn to the remaining works subject to the bench trial—the six Songs not among the

Fania works. “When reviewing a judgment following a bench trial in the district

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As noted by the district court, the 1970s registration certificates of five of the Fania works
listed two co-authors of those Songs. Appellants claim to have purchased copyright ownership of
those Songs from the heirs of only one of the co-authors. Appellants claim to have purchased
copyright ownership of the sixth Fania work from the heir of an author not listed on the 1970s
registration certificate. Appellants claim to have purchased copyright ownership of the seventh
Fania work from an individual not listed as the author on the 1970s registration certificate.
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court, we review the court’s findings of fact for clear error and its conclusions of law de novo.”

Merck Eprova AG v. Gnosis S.p.A., 760 F.3d 247, 255 (2d Cir. 2014) (internal quotation marks

omitted). The district court found that Appellants had not proved that SBS in fact played

the Songs on the radio. See Sp. App’x at 25 (“With regard to evidence of infringement, the

only evidence Plaintiffs presented that the Defendant actually played the Songs in question

was the testimony of [the President of LAMCO]. But . . . the Court rejects [the President’s]

testimony as incredible, self-contradictory, implausible, and evasive.”). Appellants failed to

challenge this factual finding in their opening brief and have thus failed to preserve any such

challenge. In re Nortel, 539 F.3d at 133. Such a finding is fatal to Appellants’ claims as to

those six Songs. Kwan, 634 F.3d at 229.

We have considered all of Appellants’ arguments and conclude that they are without merit.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court

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