                                                                                  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
                                   _________________________

                                          No. 02-30473
                                     SUMMARY CALENDAR
                                   _________________________

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        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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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