     15-1238-cv
     Mahan v. Roc Nation, LLC

                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
     RULINGS  BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
     ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
     OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   24th day of February, two thousand sixteen.
 5
 6   PRESENT: AMALYA L. KEARSE,
 7            DENNIS JACOBS,
 8            CHESTER J. STRAUB,
 9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - - - -X
12   CHAUNCEY MAHAN,
13            Plaintiff-Appellant,
14
15                -v.-                                           15-1238-cv
16
17   ROC NATION, LLC, ROC-A-FELLA RECORDS,
18   LLC, SHAWN CARTER p/k/a “JAY Z”,
19            Defendants-Appellees.
20   - - - - - - - - - - - - - - - - - - - -X
21
22   FOR APPELLANT:                          JAMES H. FREEMAN, JH Freeman Law,
23                                           New York, NY.
24
25   FOR ROC-A-FELLA APPELLEE:               ANDREW H. BART (Lindsay W. Bowen,
26                                           on the brief), Jenner & Block LLP,
27                                           New York, NY.


                                                1
 1   FOR SHAWN CARTER APPELLEE:   ANDREW H. BART (Lindsay W. Bowen,
 2                                on the brief), Jenner & Block LLP,
 3                                New York, NY.
 4
 5   FOR ROC NATION APPELLEE:     CYNTHIA S. ARATO (Daniel J.
 6                                O=Neill, on the brief), Shapiro
 7                                Arato LLP, New York, NY.
 8
 9        Appeal from a judgment of the United States District Court
10   for the Southern District of New York (Schofield, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
13   DECREED that the judgment of the district court be AFFIRMED and
14   the case be REMANDED for further proceedings.
15
16        Chauncey Mahan appeals from the judgment of the United
17   States District Court for the Southern District of New York
18   (Schofield, J.) dismissing his claims alleging copyright
19   co-ownership and conspiracy to commit conversion and/or
20   trespass to chattel. We assume the parties’ familiarity with
21   the underlying facts, the procedural history, and the issues
22   presented for review.

23        From 1999 to 2000, Mahan was a sound engineer for a number
24   of songs recorded by Roc-A-Fella Records. For his work, Mahan
25   received a flat fee but did not obtain a right to royalties.
26   Roc-A-Fella Records released most of these songs on albums
27   during 1999 and 2000 (the “Albums”); the rest remained
28   unpublished (the “Unpublished Recordings”). The Albums bear
29   a copyright notice that lists Roc-A-Fella Records as the sole
30   copyright owner. In 2000, Roc-A-Fella Records filed separate
31   copyright registrations for each of the Albums; these
32   registration statements list Roc-A-Fella Records as the sole
33   owner (and do not mention Mahan). The Albums sold millions of
34   copies.

35        Nearly fourteen years later – during which interval Mahan
36   received no royalties from the sales of the Albums – Mahan
37   demanded that Roc Nation pay him a $100,000 “storage fee” for
38   keeping the Unpublished Recordings, or else Mahan would auction
39   off the songs. Believing Mahan to be in unlawful possession
40   of its property, counsel for Roc Nation contacted the LAPD,

                                   2
 1   which seized the Unpublished Recordings.      The LAPD did not
 2   press charges against Mahan.

 3        After the LAPD incident, Mahan sued for a declaratory
 4   judgment that he is a co-owner of the songs on the Albums and
 5   of the Unpublished Recordings and to obtain damages for the
 6   defendants’ alleged conspiracy to commit conversion and/or
 7   trespass to chattel. The district court dismissed the
 8   copyright claims as time-barred and dismissed the claim
 9   alleging conversion and/or trespass to chattel for failure to
10   state a claim because any communication that Roc Nation made
11   to the LAPD was privileged. The district court also awarded
12   defendants attorney’s fees because Mahan’s copyright claims
13   were objectively unreasonable and doing so would deter future
14   similarly frivolous lawsuits. This appeal followed.1

15        We review the grant of a motion to dismiss de novo, accept
16   as true all factual allegations, and draw all reasonable
17   inferences in favor of the plaintiff. Fink v. Time Warner
18   Cable, 714 F.3d 739, 740-41 (2d Cir. 2013). We review the award
19   of attorney’s fees under the Copyright Act for abuse of
20   discretion. Matthew Bender & Co. v. West Publ’g Co., 240 F.3d
21   116, 121 (2d Cir. 2001).

22        1. Claims of co-ownership under the Copyright Act must be
23   brought within three years of accrual. See Merchant v. Levy,
24   92 F.3d 51, 56 (2d Cir. 1996). A claim accrues when a reasonably
25   diligent plaintiff knows or has reason to know of the injury
26   upon which the claim is premised. Id.; see also Kwan v.
27   Schlein, 634 F.3d 224, 228 (2d Cir. 2011). Claims of
28   co-ownership typically accrue once there has been an “express
29   repudiation” of ownership. See Gary Friedrich Enter., LLC v.
30   Marvel Characters, Inc., 716 F.3d 302, 317 (2d Cir. 2013). A
31   claim for co-ownership can accrue when “a book is published
32   without the alleged co-author’s name on it” or “alleged
33   co-owners learn they are entitled to royalties that they are
34   not receiving.” Id. Either scenario would satisfy the

     1
          After Mahan appealed, he filed for personal bankruptcy,
     triggering the automatic stay under 11 U.S.C. § 362. On February
     17, 2016, the bankruptcy court lifted the automatic stay as to this
     action.

                                     3
 1   “express repudiation” standard to trigger accrual of a
 2   co-ownership claim.

 3        By Mahan’s own admission, it is clear that Roc-A-Fella
 4   Records had long ago expressly repudiated his ownership claims.
 5   The Albums, which have sold millions of copies since being
 6   released in 1999 and 2000, bear a copyright notice that lists
 7   Roc-A-Fella Records as the sole copyright owner. Mahan, an
 8   experienced sound engineer in the recording industry, had
 9   received no royalties for the sale of the Albums for fourteen
10   years. These circumstances constitute clear “express
11   repudiation” of Mahan’s alleged co-ownership of the copyright.
12   Mahan brought suit over ten years after the expiration of the
13   applicable statute of limitations. All of his claims under the
14   Copyright Act are time-barred.

15        2. Mahan seeks damages for conspiracy to commit
16   conversion and/or trespass to chattel. Under California law
17   (which governs this claim), communications made to law
18   enforcement personnel enjoy absolute privilege. Hagberg v.
19   Cal. Fed. Bank FSB, 32 Cal. 4th 350, 364 (2004). Mahan alleges
20   that Roc Nation contacted the LAPD to report his purported
21   unlawful possession of the Unpublished Recordings, leading to
22   their seizure. This is precisely the type of communication
23   that California immunizes from tort liability. See Action
24   Apartment Ass’n, Inc. v. City of Santa Monica, 41 Cal. 4th 1232,
25   1246 (2007).

26        3. The district court awarded attorney’s fees to the
27   defendants as the prevailing parties under 17 U.S.C. § 505,
28   which provides that “[i]n any civil action under this title,
29   the court in its discretion may . . . award a reasonable
30   attorney’s fee to the prevailing party.” Applying the Fogerty
31   v. Fantasy, Inc. factors, the district court concluded that
32   Mahan’s position was objectively unreasonable and that awarding
33   fees would deter similar frivolous suits from being filed by
34   others. 510 U.S. 517, 534 n.19 (1994). The district court
35   awarded 90% of the lodestar amount. The district court did not
36   abuse its discretion in awarding attorney’s fees or in its fee
37   calculation.




                                    4
 1        4. Defendants also seek attorney’s fees and costs for this
 2   appeal under 17 U.S.C. § 505. Mahan’s arguments here are as
 3   frivolous as those he made below; an award of attorney’s fees
 4   would further the objectives of the Copyright Act by deterring
 5   such baseless appeals. See id. We remand to the district
 6   court for the limited purpose of calculating defendants’
 7   attorney’s fees and costs for litigating this appeal. The
 8   district court in its discretion may determine whether to hold
 9   Mahan’s counsel personally liable for the assessed attorney’s
10   fees and costs.

11        Accordingly, and finding no merit in all of Mahan’s
12   arguments, we hereby AFFIRM the judgment of the district court
13   and REMAND the case for further proceedings consistent with this
14   order.

15                                FOR THE COURT:
16                                CATHERINE O’HAGAN WOLFE, CLERK




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