Wilchombe v. TeeVee Toons, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-13195 JANUARY 21, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-01775-CV-MHS-1

REDWIN WILCHOMBE,

Plaintiff-Appellant
Cross-Appellee,

versus

TEEVEE TOONS, INC.,
d.b.a. TVT Records,
BME RECORDS, LLC,
JONATHAN SMITH,
a.k.a. Lil Jon,
WENDELL NEAL,
a.k.a. Lil Bo,
SAMMIE NORRIS,
a.k.a. Big Sam,

Defendants-Appellees
Cross-Appellants.

________________________

Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(January 21, 2009)
Before BIRCH and FAY, Circuit Judges, and HINKLE,* District Judge.

BIRCH, Circuit Judge:

This is a copyright infringement case involving rap music. At issue is a song

entitled “The Weedman,” created by Plaintiff-Appellant Redwin Wilchcombe

(“Wilchcombe”), and incorporated on an album entitled “Kings of Crunk” by

Defendants-Appellees (“Appellees”).1 The district court dismissed Wilchcombe’s

claim for breach of fiduciary duty pursuant to Federal Rule of Civil Procedure

12(b)(6) because his amended complaint did not allege a fiduciary or confidential

relationship between himself and Appellees. The district court also granted

summary judgment to Appellees on Wilchcombe’s claim of copyright infringement

and violation of the Lanham Act. Wilchcombe now appeals the district court’s

order dismissing his claim for breach of fiduciary duty and the court’s order

granting summary judgment on his claim of copyright infringement. Appellees

filed a cross-appeal on grounds that the district court should have granted summary

judgment on the copyright infringement claim for two additional reasons: (1) the

copyright registration was invalid, and (2) Appellees were co-authors and/or

*
Honorable Robert L. Hinkle, Chief Judge, United States District Court for the Northern
District of Florida, sitting by designation.
1
Wilchcombe denominated this composition as “Tha Weedman” on his registration
application, although the album lists the song as “The Weedman.” The parties agree that
Wilchcombe submitted for copyright registration a copy of the song as it appears on the album.

2
licensees of co-authors of the song. After benefit of oral argument and a thorough

review of the record, we AFFIRM the judgment of the district court.

I. BACKGROUND

Wilchcombe is a freelance musician and producer.2 In 2000, Rick Taylor

(“Taylor”) invited Wilchcombe to use a recording studio called Audio Vision

Recordings (“Audio Vision”). Taylor acted as Wilchcombe’s manager and

permitted him to use the studio for free, in exchange for a share of any money

received for Wilchcombe’s work. In 2001, Taylor suggested that he and

Wilchcombe create a production company called “Red Teamwerk.” No written

agreement was ever signed concerning this company but Wilchcombe has received

credit under the “Teamwerk” name on at least one other album. He has also

worked on several music engineering projects at Audio Vision with other artists

without signed agreements or monetary compensation.

In May 2002, Wilchcombe met Appellees, Jonathan Smith (“Lil Jon”),

Wendell Neal (“Lil Bo”), and Sammie Norris (“Big Sam”). Lil Jon is a popular

music producer and performer who, along with Lil Bo and Big Sam, comprise a

successful hip hop group called Lil Jon & the East Side Boyz (“LJESB”). Lil Jon

owns in part a record company called BME Recordings, LLC (“BME”). Since

2
The factual background, as set forth in the district court’s order granting summary
judgment, is undisputed by Wilchcombe.

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2001, BME has had a contract with TeeVee Toons, Inc. (“TVT”), the nation’s

largest independent record label, under which BME must exclusively give TVT all

recordings by LJESB. Lil Jon also has had a contract with TVT since 2001, giving

TVT exclusive rights to the songs authored and co-authored by Lil Jon.

Wilchcombe became friendly with the LJESB members, who were working

in an adjacent studio at Audio Vision on their Kings of Crunk album. Lil Jon came

up with the idea for a song about calling a “weedman” after someone suggested

they call a supplier of marijuana or “weed.” Wilchcombe was present at the time

and sang a chorus and melody about calling a weedman. Lil Jon liked it and told

Wilchcombe to make a song about it for the album. They discussed details of the

song and Lil Jon told Wilchcombe it would be used as an interlude, or segue,

between two different sides of the album.

During the composing and recording process, Lil Jon critiqued

Wilchcombe’s work and made suggestions. Wilchcombe eventually wrote and

performed the lyrics for the song. Wilchcombe also wrote the background vocals

which Kimberly Dennard sang. Additionally, Wilchcombe gave guitarist Craig

Love (“Love”) general direction on some guitar tracks for the song, although Love

improvised various chords on his own. Love and Wilchcombe did not sign any

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agreement about the song. Pursuant to its contract with Love, BME owned all of

Love’s recorded performances for the album.

Wilchcombe performed the finished song live for Lil Jon, who liked it.

LJESB completed their work at Audio Vision and a week later instructed Taylor to

tell Wilchcombe to finish production of the song so that it could be added to the

album. Wilchcombe did so and told Taylor that the song was ready for Lil Jon to

do the final mixing before inclusion on the album. After receiving the disk from

Taylor, LJESB added some vocal tracks they had composed. Lil Jon supervised

the mixing session of the album at Audio Vision, during which Wilchcombe was

briefly present. The final album included twenty-one recordings and was

commercially released by TVT on 29 October 2002. As of January 2005, the

album had sold two million copies. An insert in the CD lists the credits for the

album’s tracks and states “Produced by Red for Teamwerk” under “The

Weedman” song. Wilchcombe is not personally named. “The Weedman” was not

released as a single and has never appeared in a music video or been heard on the

radio by any of the parties.

Wilchcombe testified in his deposition that he never discussed with anybody

a contract or payment for the song prior to the album’s release. Lil Jon assumed

TVT and BME would get clearance or a license for the song to be used on the

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album. Lil Jon further assumed Wilchcombe would be paid for his work.

Wilchcombe has received no monetary compensation for his contributions to the

album.

In June 2004, Wilchcombe filed a claim of copyright for the song he called

“Tha Weedman” based on the version of the song that appears on the album. In his

registration application, Wilchcombe listed himself as the sole author. That same

month, Wilchcombe initiated this lawsuit against Appellees. In his amended

complaint, he alleged copyright infringement, violation of the Lanham Act, and

breach of fiduciary duty. As one of their affirmative defenses, Appellees asserted

they had an oral and/or an implied license to use the song.

Appellees filed a Rule 12(b)(6) motion to dismiss, which the district court

granted in June 2006 as to the claim of breach of fiduciary duty. The court found

that Wilchcombe failed to allege in his amended complaint any fiduciary or

confidential relationship between himself and Appellees, nor any facts upon which

such a relationship could be implied. Moreover, Wilchcombe did not state any

basis for a fiduciary relationship until he filed his opposition to the motion to

dismiss, in which he claimed that contracts between Lil Jon and TVT established a

fiduciary relationship between Appellees and Wilchcombe. The court refused to

consider these contracts, however, because the amended complaint never

6
mentioned them. Because there was no factual basis to support Wilchcombe’s

conclusory allegations of a breach of fiduciary duty, the district court dismissed

this claim.

Appellees also filed a motion for summary judgment, based in part on

grounds that Wilchcombe had granted Appellees an oral and implied nonexclusive

license to use the song for the album. In response, Wilchcombe only argued that

he had never granted anyone a license to use his work. The district court

disagreed. The court found that the parties’ conduct established that Wilchcombe

gave Appellees an implied nonexclusive license to use the song and that no

genuine issue of material fact existed on that issue. Because such a license created

an affirmative defense to a claim of copyright infringement, the district court

granted summary judgment on that claim.

The district court noted that Appellees had raised two other grounds for

summary judgment on the claim of copyright infringement – that Wilchcombe’s

copyright registration was invalid and that Appellees were co-authors, or licensees

of co-authors, of the song. The court found there were genuine issues of material

fact regarding these two arguments, but concluded that summary judgment

remained appropriate based on the implied nonexclusive license. The district court

7
also granted summary judgment on Wilchcombe’s claim of a Lanham Act

violation, which Wilchcombe does not appeal here.

Wilchcombe then filed a motion for reconsideration to set aside the grant of

summary judgment or alter it so that his copyright infringement claim survived.

Wilchcombe raised two new arguments in his motion for reconsideration. First,

Wilchcombe argued that he had revoked the implied license when his attorney sent

a letter to TVT 72 days after the album was released claiming copyright

infringement. Second, Wilchcombe contended that even if Lil Jon had been

granted an implied license, TVT had never been granted one. The district court

rejected both arguments because they were “new arguments that plaintiff could and

should have been made before the Court issued its judgment, and plaintiff has

given no explanation as to why he failed to raise these arguments earlier.” R9-234

at 6.

On appeal, Wilchcombe raises the same arguments he raised for the first

time in his motion for reconsideration – that the implied license was revoked by his

attorney’s cease-and-desist letter and that TVT was never granted an implied

license. Based on these arguments, Wilchcombe argues the district court erred in

granting summary judgment on his claim of copyright infringement. In addition,

Wilchcombe contends the district court erred in dismissing his claim of breach of

8
fiduciary duty. Wilchcombe’s argument is predicated on the same contracts

between Lil Jon and TVT which the district court refused to consider because they

were not initially advanced in the amended complaint.

II. DISCUSSION

A. Copyright Infringement Claim

We review the district court’s grant of summary judgment de novo. See

Korman v. HBC Fla., Inc., 182 F.3d 1291, 1293 (11th Cir. 1999). We view all

evidence and factual inferences in the light most favorable to Wilchcombe, the

non-moving party. See id. There must be no genuine issue of material fact in

order for the moving party to receive judgment as a matter of law. See id.

A nonexclusive license to use copyrighted material may be granted orally or

implied from conduct. See id.; Jacob Maxwell, Inc. v. Veeck, 110 F.3d 749, 752

(11th Cir. 1997). Because there is no transfer of ownership, as with an exclusive

license, a nonexclusive license need not be in writing. See Korman, 182 F.3d

1293-94; Jacob Maxwell, 110 F.3d at 752. An implied nonexclusive license is

created when one party creates a work at another party’s request and hands it over,

intending that the other party copy and distribute it. See Jacob Maxwell, 110 F.3d

at 752 (nonexclusive license created when songwriter created song at baseball

team’s request and handed a master tape over, intending that the baseball team play

9
the song at its games). In determining whether an implied license exists, a court

should look at objective factors evincing the party’s intent, including deposition

testimony and whether the copyrighted material was delivered “without warning

that its further use would constitute copyright infringement.” I.A.E., Inc. v.

Shaver, 74 F.3d 768, 776 (7th Cir. 1996). A copyright owner waives his right to

sue for copyright infringement while the nonexclusive license is in effect. See

Jacob Maxwell, 110 F.3d at 753.

The district court correctly found that the parties’ conduct created an implied

license. Wilchcombe does not dispute that he created the song for the album at Lil

Jon’s request and that he instructed Taylor to send it to Lil Jon for final mixing and

inclusion on the album. Wilchcombe testified in his deposition that he understood

Lil Jon would use the song on the album. In addition, Wilchcombe does not

dispute that when he handed over the song, he never discussed with Taylor or any

of the Appellees that using the song would constitute copyright infringement.

Finally, Wilchcombe does not contest the district court’s factual findings that TVT

has contracts with both Lil Jon and BME, which give TVT exclusive ownership

rights to all songs authored or co-authored by Lil Jon and LJESB. Accordingly,

the record supports the district court’s conclusion that there is no genuine issue of

10
material fact that Wilchcombe granted an implied nonexclusive license to the

Appellees to use “The Weedman” song on the album.

On appeal, Wilchcombe does not challenge the district court’s conclusion

that he granted an implied nonexclusive license to Lil Jon and BME. Rather, he

argues that he revoked the license when his attorney sent a cease-and-desist letter

72 days after the album was released, and that all continued use of the song

thereafter was deliberate copyright infringement. Wilchcombe contends the

implied license was revocable because he received no consideration for his work

on the song. In addition, Wilchcombe submits that there is a material issue of fact

as to whether TVT had an implied license because TVT (as opposed to Lil Jon)

never requested creation of the song, Wilchcombe never delivered the song to TVT

(as opposed to Lil Jon), and Wilchcombe never intended that TVT copy and

distribute the song.

Appellees respond that these arguments were properly rejected by the

district court because they were raised for the first time in Wilchcombe’s motion

for reconsideration. In any event, Appellees claim they are without merit. With

respect to the claim of revocation, Appellees contend that Wilchcombe never

conditioned the use of his song on any monetary payment. Additionally, Appellees

submit that Wilchcombe received compensation in the form of credit on the album

11
as the sole producer. Appellees note that it is common practice in the music

industry for an artist getting a big break into production to receive only credit for

his work. Furthermore, Appellees point out that Wilchcombe's cease-and-desist

letter referred to Wilchcombe as a co-author and said nothing about revocation or

termination of an implied license. As for the issue involving TVT, Appellees

argue that Lil Jon expressly assigned all his copyright interests to TVT,

Wilchcombe turned over the song so that Lil Jon could put it on the album, and

Wilchcombe knew the album would be widely distributed.

Wilchcombe’s arguments are replicated from his motion for reconsideration.

A motion for reconsideration cannot be used to “relitigate old matters, raise

argument or present evidence that could have been raised prior to the entry of

judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763

(11th Cir. 2005). This prohibition includes new arguments that were “previously

available, but not pressed.” Stone v. Wall, 135 F.3d 1438, 1442 (11th Cir. 1998)

(per curiam) (motion to alter judgment properly denied where plaintiffs waited

until after case was dismissed to raise argument that Virginia law applied, rather

than Florida law). A district court has sound discretion whether to alter or amend a

judgment pursuant to a motion for reconsideration, and its decision will only be

reversed if it abused that discretion. See O’Neal v. Kennamer, 958 F.2d 1044,

12
1047 (11th Cir. 1992). Denial of a motion to amend is “especially soundly

exercised” when a party gives no reason for not previously raising an issue. Id.

(quotation marks and citation omitted).

Although Appellees raised the defense of an implied license in answering

the amended complaint, Wilchcombe never argued until his motion for

reconsideration that such a license had been revoked. The sole basis for his claim

of revocation is his attorney’s cease-and-desist letter. Consequently, both the

factual and legal basis for his revocation claim were known to Wilchcombe at the

time he responded to Appellees’s motion for summary judgment. Rather than

arguing that this letter constituted revocation of the implied license, Wilchcombe

argued in his response that the letter should not be used against him by the

Appellees because the letter specifically stated it was only to be used for settlement

purposes. Wilchcombe then did an about-face when he used the letter in his

motion for reconsideration as evidence of revocation. Wilchcombe gave no reason

in his motion for reconsideration, nor does he now, why he failed to raise this new

legal theory before judgment was rendered. Accordingly, it was well within the

district court’s sound discretion to deny the motion for reconsideration on

Wilchcombe’s claim that he revoked the implied license. See O’Neal, 958 F.2d at

13
1047 (motion to amend judgment properly denied because “[n]owhere, until after

judgment, did intervenors even whisper that ERISA might govern this case”).

The same principle governs Wilchcombe’s argument that an issue of

genuine material fact exists as to whether TVT was granted an implied license.

Wilchcombe responded to Appellees’s claim of an implied license with one

sentence that expressly denied the grant of an oral or implied license and

referenced paragraph 14 of Wilchcombe’s affidavit. In Paragraph 14, Wilchcombe

states, “I did not grant to any of the defendants in this action any written or oral,

direct, indirect or implied, unconditional license to copy, use, distribute or sell my

work entitled ‘Tha Weedman.’” R7-212 at 6. In his response opposing the motion

for summary judgment, Wilchcombe never argued, as he does now, that TVT did

not have an implied license because it never requested creation of the song,

Wilchcombe never delivered the song to TVT, and Wilchcombe never intended

that TVT copy and distribute the song. These arguments could and should have

been presented to the district court for consideration prior to his decision on the

summary judgment motion. The district court properly rejected these arguments

for this reason, and we likewise refuse to give Wilchcombe a “second bite at the

apple.” O’Neal, 958 F.2d at 1047.

B. Breach of Fiduciary Duty Claim

14
 Wilchcombe next asserts that the district court improperly dismissed his

claim of breach of fiduciary duty. Assuming Lil Jon and TVT are co-authors of

“The Weedman,” Wilchcombe argues that TVT has a fiduciary duty to account to

Wilchcombe for all profits. Wilchcombe’s sole basis for this fiduciary duty is

TVT’s contract with Lil Jon which gives TVT ownership rights to all of Lil Jon’s

interests in copyrighted songs. Appellees argue that the district court correctly

dismissed the claim because the contracts were not mentioned in the amended

complaint and there was no other factual basis alleged for a fiduciary or

confidential relationship. Appellees also point out that Wilchcombe takes

inconsistent positions as to whether he is the sole author of “The Weedman,”

arguing that he is the sole author for purposes of his copyright infringement claim

but that he is a co-author for purposes of his breach of fiduciary claim.

We review de novo a claim dismissed pursuant to Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim for relief. See Glover v. Liggett

Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006) (per curiam). In keeping with

the requirement of Federal Rule of Civil Procedure 8(a)(2) that a complaint give

only a “short and plain statement of the claim,” a complaint need not provide

detailed factual allegations. See Bell Atl. Corp. v. Twombly, 550 U.S. ___, ___,

127 S. Ct. 1955, 1964 (2007). Nonetheless, a complaint “requires more than labels

15
and conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Id. at ___, 127 S. Ct. at 1965. A plaintiff must provide enough factual

allegations, which are assumed to be true, “to raise a right to relief above the

speculative level.” Id. at ___, 127 S. Ct. at 1965; see also Jackson v. BellSouth

Telecomm., 372 F.3d 1250, 1263 (11th Cir. 2004) (plaintiffs must allege specific

factual bases for their legal conclusions to avoid dismissal of their claims).

Moreover, the facts supporting the claim must be “consistent with the allegations

in the complaint.” Twombly, 550 U.S. at ___, 127 S. Ct. at 1969.

A plaintiff must prove three elements to establish a claim for breach of

fiduciary duty: “(1) the existence of a fiduciary duty; (2) breach of that duty; and

(3) damage proximately caused by the breach.” SunTrust Bank v. Merritt, 612

S.E.2d 818, 822 (Ga. Ct. App. 2005). A fiduciary relationship arises only “where

one party is so situated as to exercise a controlling influence over the will, conduct,

and interest of another or where, from a similar relationship of mutual confidence,

the law requires the utmost good faith, such as the relationship between partners,

principal and agent, etc.” Newitt v. First Union Nat’l Bank, 607 S.E.2d 188, 196

(Ga. Ct. App. 2004) (quoting OCGA § 23-2-58). Business relationships are not

ordinarily confidential relationships. See Williams v. Dresser Indus., Inc. 120 F.3d

1163, 1168 (11th Cir. 1997). The fact that parties are friends or prior business

16
associates, or have trust and confidence in each other’s integrity, does not

automatically establish a confidential relationship. See id. Examples of a

confidential relationship in business include parties with "a history of business

dealings with each other" or a “relationship that is not arms-length, such as a

partnership or principal and agent.” Id. A confidential relationship must be shown

by proof and that burden of proof rests on the party claiming such a relationship

exists. See Jerry Dickerson Presents, Inc. v. Concert/Southern Chastain

Promotions, 579 S.E.2d 761, 770 (Ga. Ct. App. 2003).

Wilchcombe did not provide any factual basis in his amended complaint

establishing that TVT owes him a fiduciary duty. With respect to this claim,

Wilchcombe’s complaint only states the following:

This is also an action under the law of the State of Georgia for the
intentional breach of fiduciary duties by the defendants as a result of
the defendants willfully failing and refusing to account to plaintiff for
plaintiff’s share of profits from the sale and other commercial
exploitation of plaintiff’s song, musical composition and sound
recording by the defendants.

R7-170 at 2. This conclusory allegation does not state that a fiduciary or

confidential relationship existed between Wilchcombe and TVT, or any other

Appellee, nor provide any factual basis for inferring one. Nor may Wilchcombe

rely on any contracts between TVT and Lil Jon to establish the existence of a

fiduciary relationship. Wilchcombe did not mention these contracts in his

17
amended complaint and he first referred to them in his response to the motion to

dismiss. A court’s review on a motion to dismiss is “limited to the four corners of

the complaint.” St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir.

2002). A court may consider only the complaint itself and any documents referred

to in the complaint which are central to the claims. See Brooks v. Blue Cross &

Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (per curiam).

Because Wilchcombe did not reference these contracts in his amended complaint

or attach them thereto, the district court properly refused to consider such contracts

in ruling on the motion to dismiss. See id. at 1368 (“[A]nalysis of a 12(b)(6)

motion is limited primarily to the face of the complaint and attachments thereto.”).

Moreover, the factual allegations in Wilchcombe’s amended complaint do

not support a finding of a fiduciary or confidential relationship. Even if co-authors

owe a fiduciary duty to one another to account for profits, any such duty stems

from a relationship as co-authors of the work. See Erickson v. Trinity Theatre,

Inc., 13 F.3d 1061, 1068 (7th Cir. 1994) (“Each author as co-owner has the right to

use or to license the use of the work, subject to an accounting to the other co-

owners for any profits.”). In his amended complaint, Wilchcombe did not argue

that a fiduciary relationship existed based on his status as a co-author of the song

with any of the Appellees. To the contrary, Wilchcombe alleged that he “wrote,

18
composed, created, sang, performed, produced and arranged plaintiff’s song,

musical composition and sound recording,” and that LJESB’s background ad-libs

were added without his knowledge or consent. R7-170 at 7, 9. Wilchcombe also

attached to his amended complaint a copy of his certificate for copyright

registration3 listing himself as the sole author of “Tha Weedman.” The inference

from these factual allegations, assuming them to be true, is that Wilchcombe is the

sole author of the song. As such, there would be no basis for a fiduciary duty by

Appellees to account for profits. To infer otherwise would be inconsistent with the

factual allegations of Wilchcombe’s complaint.

“Our duty to liberally construe a plaintiff’s complaint in the face of a motion

to dismiss is not the equivalent of a duty to re-write it for the plaintiff.” Snow v.

DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir. 2006) (quotation marks, alterations,

and citation omitted). We can draw no inferences consistent with the facts stated

in the amended complaint to support the existence of a fiduciary duty, which is a

material element of Wilchcombe’s claim. See id. (“‘[A]t a minimum, notice

pleading requires that a complaint contain inferential allegations from which we

3
The certificate of registration of a claim of copyright is the application affixed with the
seal of the United States Copyright Office and an identification number. The application
requires the applicant to sign an oath certifying that he is either the author, other copyright
claimant, owner of exclusive right(s), or authorized agent “of the work identified in the
application and that the statements made by me in the application are correct to the best of my
knowledge.” R7-170, Exh. A at 2.

19
can identify each of the material elements necessary to sustain a recovery under

some viable legal theory.’”) (emphasis in original). The absence of such factual

allegations to support Wilchcombe’s legal conclusions is fatal and the district court

properly dismissed his claim for breach of a fiduciary duty on this basis.

C. Appellees’s Cross-Claims

Appellees raise two issues on cross-appeal, both of which deal with

Wilchcombe's claim of copyright infringement. Although Appellees agree that the

district court properly granted summary judgment on this claim based on the

existence of an implied nonexclusive license, Appellees contend that summary

judgment was warranted on the copyright infringement claim for two additional

reasons. First, Appellees argue that Wilchcombe’s copyright registration was

invalid because the song he filed with his copyright application was taken from the

Kings of Crunk album, which included ad-libs composed solely by LJESB.

Second, Appellees submit that because they were co-authors and/or licensees of

co-authors of the song, they could not infringe the copyright of another co-author

as a matter of law. The district court found that material issues of fact existed with

respect to both of these issues and denied summary judgment on these grounds.

We may uphold a grant of summary judgment “on any basis supported by

the record.” Burton v. Tampa Hous. Auth., 271 F.3d 1274, 1277 (11th Cir. 2001).

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We have already determined that the district court correctly granted summary

judgment on Wilchcombe's claim of copyright infringement based on the existence

of an implied nonexclusive license. Since the copyright infringement claim was

properly dismissed on this ground, we need not determine whether summary

judgment was also warranted on this claim for the additional reasons raised by

Appellees.

III. CONCLUSION

Wilchcombe appeals the district court’s dismissal of his claims of copyright

infringement and breach of fiduciary duty. We conclude that summary judgment

was warranted on the claim of copyright infringement because there was no

genuine issue of material fact that Wilchcombe granted an implied nonexclusive

license to the Appellees, which is an affirmative defense to a copyright

infringement claim. Wilchcombe may not challenge the district court’s grant of

summary judgment based on arguments raised for the first time in his motion for

reconsideration. We further conclude that the district court properly dismissed

Wilchcombe’s claim of breach of fiduciary duty pursuant to Rule 12(b)(6) because

Wilchcombe’s amended complaint failed to allege a fiduciary relationship and thus

failed to state a claim for relief. Accordingly, the judgment of the district court is

AFFIRMED.

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HINKLE, District Judge, concurring:

I concur with the court’s opinion in all respects. I write separately to note

the reason for the opinion’s failure to address a different claim. The reason is that

Mr. Wilchcombe has not asserted the claim.

Mr. Wilchcombe was the author, or at least the principal co-author, of the

work at issue, Tha Weedman. But the appellees clearly had legal authority to

incorporate the work into their Kings of Crunk album. This is so on one of two

grounds. First, one or more of the appellees may have been co-authors. Co-

authors may use a work without a separate grant of permission. Or second, if Mr.

Wilchcombe was the sole author, he plainly granted the appellees an implied

license to incorporate Tha Weedman into the Kings of Crunk album. Either way,

the appellees did not breach a fiduciary duty to Mr. Wilchcombe, and they did not

infringe a copyright.

As the court’s opinion correctly concludes, Mr. Wilchcombe’s claims for

breach of fiduciary duty and copyright infringement are unfounded. The district

court’s judgment for the appellees must be affirmed.

The wrinkle is this. A co-author ordinarily is entitled to a share of profits

from another co-author’s use of a work. Had Mr. Wilchcombe asserted such a

claim, it could not properly have been dismissed at the pleading stage. A co-author

22
of course can give up the right to a share of profits—and perhaps in due course it

would have been held that Mr. Wilchcombe gave up any right to payment. As it

turns out, this does not matter, because Mr. Wilchcombe did not assert a claim for

a co-author’s share of profits.

Similarly, one who grants an implied license may—or may not—be entitled

to a royalty, depending on the terms of the implied license. Had Mr. Wilchcombe

asserted a claim for a royalty under an implied license, the claim could not

properly have been rejected on summary judgment. This is so because, on this

record, there is a genuine factual dispute over whether any implied license was

with or without compensation. Again, however, this does not matter, because Mr.

Wilchcombe did not assert such a claim.

As the court’s opinion correctly notes, we cannot properly rewrite Mr.

Wilchcombe’s complaint. Nor should we reverse the district court’s judgment on

grounds not raised in the district court or, for that matter, in this court. I thus join

the court’s opinion.

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