Argued June 19, 2015.
Plaintiff Tyrone Simmons appeals from a judgment of the United States District Court for the Eastern District of New York (Irizarry, J.) dismissing his suit on grounds of untimeliness.Simmons, who is a writer and performer of hip-hop music, alleges that in February 2006 he purchased an exclusive license to a hip-hop beat created by Defendant William C. Stanberry, Jr.,and that Stanberry later sold the same beat to Defendant Curtis Jackson, a well-known rapperwho then used the beat in his 2007 single " I Get Money." Because Simmons was aware of thealleged dispute over the right to use the beat and of the alleged infringement of Simmons'srights, and yet waited more than three years to file suit, we affirm the district court's conclusionthat Simmons's suit is time-barred.
For Plaintiff-Appellant: GERALD A.MARKS (Louis D. Tambaro, on the brief), Marks & Klein, LLP, Red Bank, New Jersey.
For Defendant-Appellees: PETER D. RAYMOND (Geoffrey G. Young, on the brief), Reed Smith LLP, New York, New York, for Universal Media Group Recordings, Inc., Interscope Records, Aftermath Entertainment, and Shady Records; DAVID L. LEICHTMAN, Robins Kaplan LLP, New York, New York, for Curtis Jackson and G-Unit Records.
Before: WINTER, LEVAL, and RAGGI, Circuit Judges.
Plaintiff Tyrone Simmons appeals from a judgment of the United States District
Court for the Eastern District of New York (Irizarry, J. ) dismissing his suit on grounds of untimeliness. Simmons, who is a writer and performer of hip-hop music, brought this suit against hip-hop producer William C. Stanberry, Jr., the well-known rapper Curtis Jackson (who performs under the name 50 Cent), and various corporate entities involved in the production and distribution of the 2007 song " I Get Money," which was produced by Stanberry and recorded by Jackson.
Simmons alleges that in February 2006 he purchased from Stanberry an exclusive license to a beat and that Simmons therefore owns the right to bar all others--including Stanberry, Jackson, and the related corporate entities--from using the beat. He goes on to allege that when Jackson expressed interest in the beat, Stanberry--despite having sold the exclusive rights in the beat to Simmons--arranged with Jackson that they would collaborate in the production of a Jackson song employing the beat. Simmons further alleges that in May 2007 Stanberry attempted to repudiate Simmons's license by email, informing Simmons with apologies that he " no longer had exclusive
[117 U.S.P.Q.2d 1578] (or any) rights to the Beat." Pl. App'x. at 22. Simmons alleges that Jackson's recording of his song employing the beat was publicly released in the summer of 2007, enjoyed immediate success, and continued to earn revenues in derogation of Simmons's exclusive rights up until the time Simmons brought suit in December 2010. Despite Simmons's evident awareness of Stanberry's repudiation of the sale to him, of Stanberry's agreement with Jackson for the exploitation of the beat, and of their release of the allegedly infringing song, Simmons did not file suit until more than three years after the song had been released in disavowal of Simmons's claim of rights.
The defendants moved to dismiss the suit for untimeliness. Citing Kwan v. Schlein, 634 F.3d 224 (2d Cir. 2011), the district court granted the motion and dismissed the suit. Plaintiff brought this appeal. We affirm. Our decision in Kwan precludes this action.
In that case the plaintiff Kwan had been hired by the defendant Schlein to edit a book written by Schlein, entitled Find It Online (" FIOL)," which was to be published by the defendant Business Resources Bureau, Inc. (" BRB" ). As publication date approached, the plaintiff told the defendants that she believed her contributions to the book were sufficiently extensive to entitle her to be credited as a co-author, rather than as editor. She demanded recognition as co-author. Kwan, 634 F.3d at 226-27. The defendants ignored her demand and published the book listing Schlein as the sole author, while crediting the plaintiff as editor. Nearly six years after the initial publication, the plaintiff brought suit against Schlein and BRB, alleging infringement of her copyright interest. The defendants had continued selling the book throughout the intervening period. Id. at 227-30.
Our court ruled that, notwithstanding the occurrence of allegedly infringing acts within three years of filing the action, the suit was nonetheless barred by the Copyright Act's three-year statute of limitations, 17 U.S.C. § 507(b), because the plaintiff, although aware of the defendants' acts of infringement done in rejection of plaintiff's claim of a copyright interest, had waited more than three years to sue. Id. at 228-30. We explained:
Here, BRB and Schlein rejected Kwan's express assertion of authorship in December 1998, and then published the first edition of FIOL, which did not list Kwan as an author, in ...