           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 13, 2009
                                       No. 08-20345
                                                                       Charles R. Fulbruge III
                                                                               Clerk
JOSEPH HOWARD, JR., p/k/a Joe Traxx

                                                   Plaintiff - Appellant
v.

WESLEY ERIC WESTON

                                                   Defendant - Appellee


               Appeal from the United States District Court for the
                  Southern District of Texas, Houston Division
                            USDC No. 4:06-CV-3133


Before GARWOOD, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Joseph Howard, Jr. filed this breach of contract and copyright action
against a number of defendants seeking money allegedly owed for a musical
composition Howard produced. The district court entered a default judgment
against Defendant Wesley E. Weston, but Howard was granted no relief. The
district court also denied Howard attorney’s fees and costs. We AFFIRM.
                       FACTS AND PROCEDURAL HISTORY
       Howard, a self-described solo musician and producer, alleges that the
defendants failed to compensate him for the incorporation of one of his musical


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 08-20345

compositions into a song recorded by Defendants Suckafree Records, Inc. and
Wesley E. Weston and released and distributed by Defendant Sony BMG Music
Entertainment, Inc.
      In October 2006, Howard filed suit against Weston, Sony, Suckafree,
Estelle D. Hobbs who is the CEO of Suckafree, and two other parties involved
in the album’s production - Hobbs Publishing Company and Lucky Publishing
Company. The theories included breach of contract, copyright infringement, a
declaration of joint ownership, an accounting, negligent misrepresentation,
fraud, and theft under the Texas Theft Liability Act.
      Not all of the original claims are in the present appeal. For example,
claims were dismissed against Sony, and we affirmed. See Howard v. Sony, No.
07-20722, 2008 WL 4302220 (5th Cir. Sept. 22, 2008). Because Weston failed to
plead, the district court clerk entered a default against him in February 2007.
In November 2007, the district court declined to set aside the default because it
found that Weston willfully failed to respond to Howard’s complaint.
      Despite the default, Howard was awarded no damages on his breach of
contract and copyright ownership claims against Weston. Further, Howard had
abandoned any claim       for relief against Weston for fraud, negligent
misrepresentation, and under the Texas Theft Liability Act. The district court
entered a final judgment in favor of Howard with an award of zero damages for
all of Howard’s claims against Weston. Howard was also denied all attorney’s
fees and costs because he was not a prevailing party.
                                 DISCUSSION
A. Entry of Default
      We review a district court’s decision to enter default judgment for abuse
of discretion. Smith v. Smith, 145 F.3d 335, 344 (5th Cir. 1998). An entry of
default “does not establish the amount of damages. After a default judgment,
the plaintiff’s well-pleaded factual allegations are taken as true, except

                                       2
                                  No. 08-20345

regarding damages.” U.S. of Am. for Use of M-Co Constr., Inc. v. Shipco Gen.,
Inc., 814 F.2d 1011, 1014 (5th Cir. 1987) (internal citations omitted).
Accordingly, we determine whether the well-pleaded allegations in Howard’s
amended complaint constitute a breach of contract or copyright claim against
Weston that would warrant damages.
      1. Breach of Contract Claims
      There are two contracts under which Howard might have a claim for relief:
the Producer Agreement and the Mechanical License Agreement.                These
agreements were attached to the amended complaint and are “part of the
pleadings for all purposes.” Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515
F.2d 1200, 1206 (5th Cir. 1975). Howard argues that Weston is personally liable
for the royalties due under both contracts. However, a contract “generally binds
no one except the parties to it. And courts generally cannot bind a nonparty to
a contract because the nonparty never agreed to the contract’s terms.” BML
Stage Lighting, Inc. v. Mayflower Transit, Inc., 14 S.W.3d 395, 400 (Tex. App. -
Houston [14th Dist.] 2000) (citations omitted). The Producer Agreement is
between Howard and Suckafree, and the Mechanical License Agreement is
between Suckafree and Malaco, Inc. on behalf of Howard; Weston did not sign
either agreement.
      Despite Weston being a party to neither contract, Howard argues Weston
is a co-CEO of Suckafree, is required to indemnify Suckafree for the amounts
owed to Howard, and is equitably responsible under quantum meruit. Because
of the default, Weston cannot challenge the sufficiency of the evidence, but he “is
entitled to contest the sufficiency of the complaint and its allegations to support
the judgment.” Nishimatsu, 515 F.2d at 1206. In the amended complaint,
Howard sued Weston in his individual capacity. Howard did not plead that
Weston was a co-CEO of Suckafree, that Weston was personally liable, or that
Weston was liable under a theory of quantum meruit or as an indemnitor.

                                        3
                                  No. 08-20345

      There was neither pleading nor evidence to support these theories.
Howard is not entitled to damages based on breach of contract.
      2. Copyright Claims
      Howard’s amended complaint alleges he and Weston are joint owners of
the master recording for R.I.P. Screw. Howard requests an accounting from
Weston to determine the amount he is owed as a co-owner. A duty to account to
other co-owners arises from “general principles of law governing the rights of co-
owners.” Quintanilla v. Tex. Television Inc., 139 F.3d 494, 498 (5th Cir. 1998)
(quoting Goodman v. Lee, 78 F.3d 1007, 1012 (5th Cir. 1996)). This right of
accounting may only be enforced against a joint owner. 1 M ELVILLE B. N IMMER
& D AVID N IMMER, N IMMER ON C OPYRIGHT § 6.12[B].
      A joint owner may transfer his interest without the other co-owner’s
consent. “In such circumstances the transferor ceases to be a joint owner, and
the transferee. . . becomes a joint owner. It follows, then, that the obligation of
a joint owner to account for profits from use and from licensing obtains as to a[]
transferee.” N IMMER ON C OPYRIGHT § 6.12[C][1].
      Under Section 204(a) of the Copyright Act, a transfer of copyright
ownership is not valid unless the conveying instrument “is in writing and signed
by the owner of the rights conveyed or such owner’s duly authorized agent.” 17
U.S.C. § 204(a). These requirements were met. In the Producer Agreement,
Howard transferred his copyright ownership rights to Suckafree.          Further,
Weston transferred his ownership rights to Sony. Howard cannot bring an
action to enforce the copyright rights he no longer owns, and he may not seek an
accounting and damages from someone with no ownership interest in the
copyrighted work. The district court did not abuse its discretion.
B. Award of Attorney’s Fees
      The district court found that Howard was not a prevailing party because
he was awarded no damages or other relief as a result of Weston’s default. We

                                        4
                                  No. 08-20345

review a denial of attorney’s fees for abuse of discretion. Camacho v. Tex.
Workforce Comm’n, 445 F.3d 407, 409 (5th Cir. 2006).
      To be awarded attorney’s fees and costs under Section 505 of the Copyright
Act and Federal Rule of Civil Procedure 54, Howard must be a prevailing party.
17 U.S.C. § 505; Fed. R. Civ. Proc. 54(d). A prevailing party must: (1) obtain
actual relief that (2) materially alters the legal relationship between the parties
and (3) modifies the defendant’s behavior in such a way that benefits the
plaintiff at the time of the judgment. Dearmore v. City of Garland, 519 F.3d 517,
521 (5th Cir. 2008). “To become a prevailing party, a plaintiff must obtain, at an
absolute minimum, actual relief on the merits of [the] claim.” Farrar v. Hobby,
506 U.S. 103, 116 (1992) (O’Connor, J., concurring) (internal citations and
quotation marks omitted). Howard obtained no damages or other relief despite
the entry of default against Weston.
      The district court did not err in finding that Howard does not qualify as
a prevailing party and should not be awarded attorney’s fees and costs. Cf.
Farrar, 506 U.S. at 112 (“To be sure, a judicial pronouncement that the
defendant has violated the Constitution, unaccompanied by an enforceable
judgment on the merits, does not render the plaintiff a prevailing party. Of
itself, the moral satisfaction [that] results from any favorable statement of law
cannot bestow prevailing party status.” (internal quotation marks and citation
omitted) (alteration in original)).
      We AFFIRM the district court.




                                        5
