[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.
3
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
4
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).
20
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.
21
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.
23