                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-2177


ELI BROWN, III,

                                             Plaintiff - Appellant,

           versus


MICHAEL C. FLOWERS, a/k/a Mike City,

                                              Defendant - Appellee.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CA-02-862-NCT)


Argued:   May 23, 2006                      Decided:   July 28, 2006


Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion. Judge Gregory wrote a
separate opinion concurring in the judgment in part and dissenting
in part.


ARGUED: Thomas Haywood Stark, STARK LAW GROUP, P.L.L.C., Chapel
Hill, North Carolina, for Appellant.     Reginald K. Brown, Los
Angeles, California, for Appellee.    ON BRIEF: Seth A. Neyhart,
STARK LAW GROUP, P.L.L.C., Chapel Hill, North Carolina, for
Appellant.   Stephen E. Robertson, ROBERTSON, MEDLIN & TROUTMAN,
P.L.L.C., Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     In the present civil action based upon federal question

jurisdiction, Eli Brown, III (Plaintiff) sued Michael Flowers

(Defendant)   for   violation   of    the    Copyright   Act   of   1976   (the

Copyright Act), Pub. L. No. 94-553, 90 Stat. 2541 (1976), breach of

contract under North Carolina common law, fraudulent concealment

under North Carolina common law*, breach of fiduciary duty under

North Carolina common law, and violation of North Carolina’s

statutory prohibition against unfair and deceptive trade practices,

N.C. Gen. Stat. §§ 75-1.1 et. seq. Additionally, Plaintiff alleged

a claim seeking a partnership accounting under the North Carolina

Uniform Partnership Act, N.C. Gen. Stat. § 59-52.

     Defendant moved to dismiss the entire complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)). Although

the district court granted Rule 12(b)(6) dismissal of Plaintiff’s

federal copyright claim, it allowed Plaintiff’s remaining state law

claims to proceed.       Defendant subsequently moved for summary

judgment on the remaining state law claims, which motion the

district court granted in toto.

     Plaintiff noted this timely appeal.            On appeal, Plaintiff

challenges the district court’s Rule 12(b)(6) dismissal of his

federal copyright claim and the district court’s entry of summary


     *
      With respect to the fraudulent concealment claim, Plaintiff
pled   an  alternative   cause  of   action   alleging  negligent
misrepresentation under North Carolina common law.

                                     - 2 -
judgment in favor of Defendant with respect to his remaining state

law claims.

     Our review of the district court’s Rule 12(b)(6) dismissal of

the Plaintiff’s federal copyright claim is de novo and focuses only

on the legal sufficiency of the complaint.            Eastern Shore Mkts.,

Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir.

2000). A complaint need not “forecast evidence sufficient to prove

an element” of the claim.       Iodice v. United States, 289 F.3d 270,

281 (4th Cir. 2002).       Rather, the complaint need only allege facts

sufficient to state the substantive elements of the claim.          Id.    In

conducting our de novo review of the sufficiency of a complaint to

state a claim for relief under Rule 12(b)(6), we “take the facts in

the light most favorable to the plaintiff,” but “we need not accept

the legal conclusions drawn from the facts,” and “we need not

accept as true unwarranted inferences, unreasonable conclusions, or

arguments.”   Eastern Shore Mkts., 213 F.3d at 180.

     Whether a party was entitled to summary judgment is a question

of law, which we review de novo.      Higgins v. E.I. DuPont de Nemours

& Co., 863 F.2d 1162, 1167 (4th Cir. 1988).            Summary judgment is

appropriate   when     “the     pleadings,    depositions,    answers      to

interrogatories,     and    admissions   on   file,    together   with    the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.”          Fed. R. Civ. P. 56(c).       In reviewing a


                                   - 3 -
district court’s grant of summary judgment, we must construe the

facts in the light most favorable to the non-moving party, here,

Plaintiff.    Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 675

(4th Cir. 1996) (en banc).

     Having thoroughly reviewed the district court’s opinions and

the parties’ briefs and submissions on appeal, and having heard

oral argument in this case, we conclude that the district court did

not err in granting Rule 12(b)(6) dismissal of Plaintiff’s federal

copyright claim, nor did it err in granting summary judgment in

favor of Defendant with respect to Plaintiff’s remaining state law

claims.    We, therefore, affirm on the reasoning of the district

court.    Brown v. Flowers, C/A No.:        1:02-CV-00862 (M.D.N.C. Sept.

14, 2005) (granting Defendant’s motion for summary judgment with

respect to all state law claims); Brown v. Flowers, 297 F. Supp. 2d

846, 851-53 (M.D.N.C. Dec. 12, 2003) (granting Rule 12(b)(6)

dismissal of federal copyright claim).

     Finally, we are compelled to respond to two points made by the

dissent.     First, even assuming arguendo, as the dissent would

recognize, that an individual who, in collaboration with another,

provides a substantial original contribution to a copyrightable

work qualifies for authorship status in the joint-work context of

the Copyright Act, Plaintiff’s complaint fails to state, for Rule

12(b)(6) purposes, a copyright claim in the joint-work context.

Contrary     to   the   dissent’s   assertion    otherwise,   Plaintiff’s


                                    - 4 -
complaint does not allege “that he made significant engineering

contributions in producing Flowers’s R&B recordings.”           Post at 24.

In fact, Plaintiff’s complaint lacks even a single allegation that

he made any creative, original, or expressive contribution to the

song recordings at issue.      Rather, at most, Plaintiff’s complaint

generically alleges that he acted as a recording engineer and

producer of the songs at issue.            In an attempt to morph this

generic allegation into one of significant creative contribution

able to withstand Defendant’s Rule 12(b)(6) motion, the dissent

relies upon Plaintiff’s detailed explanations in his appellate

briefs (opening and reply) regarding the substantially creative

role that a recording engineer and producer plays in recording a

song of the rhythm and blues genre.        Clear precedent requires that

the allegations to be considered in ruling on a Rule 12(b)(6)

motion   be   alleged   in   the   complaint,   with    no   exception   for

consideration of embellishments and explanations offered in an

appellate brief.    See Iodice v. United States, 289 F.3d 270, 281

(4th Cir. 2002) (dismissing negligence claim pursuant to Rule

12(b)(6) because complaint did not allege facts sufficient to state

all elements of negligence claim).

     Second, we note the dissent’s wholly misplaced reliance upon

Plaintiff’s   affidavit,     executed   February   5,   2003   (Plaintiff’s

February 2003 Affidavit), as creating a genuine issue of material

fact as to whether Defendant copyrighted and licensed recordings


                                   - 5 -
that were assets of the Hectic Records Partnership.            The dissent

essentially relies upon this affidavit as the sole pillar of

evidentiary support in favor of its position that the district

court erred in granting summary judgment in favor of Defendant with

respect    to   Plaintiff’s   state   law   claims   for   a   partnership

accounting/breach of contract, breach of fiduciary duty, and unfair

and deceptive trade practices.

     There are two significant problems with the dissent’s reliance

upon Plaintiff’s February 2003 Affidavit.       First, Plaintiff never

submitted this affidavit to the district court in opposition to

Defendant’s summary judgment motion, nor did Plaintiff refer to it

in his January 20, 2005 memorandum in opposition to such motion or

do anything else to alert the district court that the affidavit

existed.    Accordingly, although Plaintiff had, almost two years

prior, submitted his February 2003 Affidavit to the district court

in opposition to a change of venue motion brought by Defendant, the

district court had no notice that it should consider such affidavit

in assessing the merits of Defendant’s summary judgment motion.

Under Federal Rule of Civil Procedure 56(e), if Plaintiff wanted

certain evidence considered in opposition to Defendant’s summary

judgment motion, Plaintiff was required to point it out to the

district court.    Fed. R. Civ. P. 56(e) (“When a motion for summary

judgment is made and supported as provided in this rule, an adverse

party may not rest upon the mere allegations or denials of the


                                  - 6 -
adverse party’s pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for trial.”).

See also Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026,

1030-31 (9th Cir. 2001) (affirming grant of summary judgment in

favor of defendant despite existence in record of plaintiff’s

genuine-issue-of-material-fact-creating sworn declaration, filed

two years prior, in response to unrelated motion, because circuit

precedent, which follows majority view, holds that “district court

may limit its review to the documents submitted for the purposes of

summary   judgment   and   those   parts   of   the   record   specifically

referenced therein”);      Accord id. at 1031 (district court need not

examine entire file for evidence establishing a genuine issue of

fact, where evidence is not set forth in opposition papers to

motion for summary judgment with adequate references so evidence

can be conveniently found); Adler v. Wal-Mart Stores, Inc., 144

F.3d 664, 672 (10th Cir. 1998) (same); Forsyth v. Barr, 19 F.3d

1527, 1537 (5th Cir. 1994) (same); L.S. Heath & Son, Inc. v. AT&T

Info. Sys., Inc., 9 F.3d 561, 567 (7th Cir. 1993) (same); Guarino

v. Brookfield Township Trustees, 980 F.2d 399, 404-06 (6th Cir.

1992) (same).   Because Plaintiff failed to put the district court

on notice that he wanted the district court to consider his

February 2003 Affidavit in assessing the merits of Defendant’s

summary judgment motion, we cannot now fault the district court for


                                   - 7 -
failing to consider it.       To hold otherwise would encourage parties

to sandbag the district court.

     The second significant problem with the dissent’s reliance

upon Plaintiff’s February 2003 Affidavit is that the contents of

such affidavit are too vague and conclusory to create a genuine

issue of material fact to stave off Defendant’s summary judgment

motion.   See Causey v. Balog, 162 F.3d 795, 802 (4th Cir. 1998)

(affirming    grant     of    summary    judgment       because       plaintiff’s

“conclusory statements, without specific evidentiary support,” were

insufficient to create a genuine issue of fact).                  For example,

Plaintiff conclusorily asserts in his February 2003 Affidavit that

“[t]he form and substance of ‘I Wish’ and ‘Lunch or Dinner’ and

literally hundreds of other songs resulted from work done for the

Hectic Records partnership by Flowers and I.”              (J.A. 61).        This

assertion is nothing more than the type of conclusory allegation

that is made in a party’s complaint at the initial pleading stage

of litigation.     At the summary judgment stage, however, specific

evidentiary   support    is    needed    to   support    such     a   conclusory

assertion.    Causey, 162 F.3d at 802.              For a second example,

Plaintiff’s February 2003 Affidavit asserts that he has in his

possession CDs recorded in his Durham studio that show, what he

vaguely   opines   to   be,    only    “minor   alterations”       between    the

commercially released versions of “‘I Wish’” and “[‘]Lunch or

Dinner’” and the versions recorded in his Durham studio.                   (J.A.


                                      - 8 -
61).    Plaintiff’s February 2003 Affidavit does not offer even a

single example of what he deems a minor alteration and the record

is otherwise devoid on the point.          Indeed, Plaintiff did not, as

far as the record reveals, submit as evidence the CDs to which he

refers as the proof supporting the most basic allegations of his

lawsuit.    See Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)

(explaining that the party opposing summary judgment “cannot create

a genuine issue of material fact through mere speculation or the

building of one inference upon another”). In sum, Plaintiff’s case

lacked sufficient evidence for a jury to find in his favor with

respect to his state law claims.

       In conclusion, we affirm.



                                                                AFFIRMED




                                   - 9 -
GREGORY, Circuit Judge, concurring in the judgment in part and
dissenting in part:

     This case presents a novel question of federal copyright law.

Nevertheless, the majority adopts the cursory reasoning of the

district court in upholding that court’s Rule 12(b)(6) dismissal of

Eli Brown’s federal copyright claim, and its grant of summary

judgment as to Brown’s remaining state law claims.                       Because I

cannot agree with that reasoning or the results reached by the

district court with respect to the copyright claim and several of

the state law claims, I dissent in part.                   I concur only in the

holding   that    summary   judgment     was       appropriate    as   to   Brown’s

fraudulent concealment and negligent misrepresentation claims.



                                        I.

     Brown and Michael Flowers met in Durham, North Carolina, in

the late 1980s, while Flowers was studying music at North Carolina

Central University.         In 1989, Flowers hired Brown to be his

manager, and the parties continued under that arrangement until

1992, when Flowers moved to Atlanta, Georgia.                    In 1995, shortly

after   Flowers    moved    back   to   Durham,       he   and   Brown   formed   a

partnership, which they later named “Hectic Records.” According to

Brown, the partners endeavored (1) to produce low cost 12" vinyl

recordings for play in clubs; (2) to provide engineering and

remixing services to other recording artists; and (3) to market

Flowers’s   songwriting       talents        and    Brown’s      engineering   and

                                    - 10 -
production skills to established recording artists.        J.A. 211-14.

Brown later suggested to Flowers that the partners expand the scope

of their original business plan to include recording R&B songs and

selling them to other artists.         According to Brown, the parties

agreed to divide the proceeds derived from these undertakings

equally.

     Over the course of the next four years, Brown and Flowers

continued their Hectic Records partnership.          For the most part,

they achieved only modest success.          In 1996, the partnership

recorded an album for the group “Lost Souls.”        Brown worked on the

production and engineering responsibilities for the album, while

Flowers    focused   on   marketing.     Flowers   ultimately   signed   a

distribution deal with Ichiban Records to distribute the Lost Souls

album. Unfortunately for the Hectic Records partnership, the album

was not a commercial success.

     At the same time Brown and Flowers were working on the Lost

Souls album, Flowers, with Brown’s assistance, recorded hundreds of

demo R&B songs in Brown’s Durham studio. Although it is undisputed

that Flowers composed and performed initial versions of many of

these songs on his personal recording device called an “iDAC,”

Brown contends that Flowers invariably brought copies of his

unrefined iDAC recordings to Brown’s Durham studio.             On these

occasions, Brown, in his capacity as a sound engineer and producer,

added riffs and beats in compiling a master recording.             In so


                                 - 11 -
doing, Brown was responsible for establishing tempo, ambiance,

echo,    reverberation,     treble,    bass,    frequency,     gain,   bandwith,

distortion,    and      equalizing,    all     of   which,    he   argues,   are

distinctive and essential elements of R&B recordings.

     According to Brown, in 1999, Flowers traveled to New York and

New Jersey ostensibly to promote songs that the partners had

recorded under their Hectic Records label.                   During this trip,

Flowers arranged to distribute one of the songs that Brown had

engineered and produced, entitled “I Wish,” to Carl Thomas and

producer Sean “Puffy” Combs.            Thomas eventually re-recorded “I

Wish” in New York and included it on an album that went on to

achieve platinum status.

     By the end of 1999, Brown learned that “I Wish” was getting

significant air-time on radio stations in the New York area.

According to Brown, when he confronted Flowers with his discovery,

Flowers admitted that he had sold a couple of songs to Carl Thomas,

but reassured Brown that he “could expect a check from Puffy

Combs.”    J.A. 215.      Despite this assurance, Brown never received

the promised check.         During a subsequent conversation, Flowers

expressed his desire to terminate the partnership and told Brown

that he would never receive proceeds from the sale of “I Wish.”

        After dissolving the Hectic Records partnership in 1999,

Flowers    moved   to    California     with    copies   of    several    master

recordings that he and Flowers had produced in Durham.                   At some


                                      - 12 -
point    thereafter,   Flowers   applied    for   and    received   copyright

registrations for these recordings.1        According to Brown, Flowers

subsequently licensed these recordings to other artists, who, in

turn, made re-recordings.        As of this appeal, Flowers resides in

California, where he works for Warner-Chappell Music as a song

writer.

     In 2002, Brown filed suit against Flowers in the Middle

District of North Carolina under the Copyright Act of 1976, 17

U.S.C. § 101 et seq.       In support of his copyright claim, Brown

asserted alternative theories of recovery.          Brown contended that,

by operation of the work-for-hire provision of 17 U.S.C. § 101, he

was the exclusive owner of the copyrights in the recordings, and,

accordingly,    that   Flowers    had   infringed       on   his   copyrights.

Alternatively, Brown asserted that he and Flowers were joint owners

of the copyrights, and, therefore, that he was entitled to share in

the royalties derived therefrom.            In addition to his federal

copyright claim, Brown asserted state law claims for partnership

accounting,2 breach of fiduciary duty, fraudulent concealment,




     1
        The record does not indicate when this occurred.
     2
      Although Brown also asserted a separate “Breach of Contract”
claim, this claim was interrelated with--and provided the basis
for--his partnership accounting claim. In short, Brown contended
that because Flowers breached the terms of their partnership
agreement, Brown was entitled to an accounting under North Carolina
law.    Accordingly, I will treat the breach of contract and
accounting claims as a single “partnership accounting” claim.

                                   - 13 -
negligent      misrepresentation,    and     unfair   and   deceptive    trade

practices.

      Flowers filed a motion to dismiss the copyright claim pursuant

to Federal Rule of Civil Procedure 12(b)(6).              The district court

granted the motion in its entirety, concluding that Brown could not

establish ownership rights in the copyrighted songs.                    Shortly

thereafter, Flowers filed a motion for summary judgment on the

remaining state law claims.         The district court granted summary

judgment as to all state law claims, concluding that there was no

evidence that the songs in question were recorded at Brown’s studio

or that Brown had played any role in their production.                   In so

doing, the court did not specifically discuss or analyze the merits

of   Brown’s    claims   for   breach   of    fiduciary     duty,   fraudulent

concealment, negligent misrepresentation, and unfair and deceptive

trade practices.

      Brown timely appealed, contending that the district court

erred in dismissing his copyright claim pursuant to Rule 12(b)(6)

and in granting summary judgment on Brown’s various state law

claims.     As discussed below, I conclude that the district court

erred in dismissing Brown’s copyright claim and all but two of his

related state law claims.




                                    - 14 -
                                     II.

        I begin with the district court’s Rule 12(b)(6) dismissal of

Brown’s federal copyright claim. This court reviews de novo a Rule

12(b)(6) dismissal, “accepting as true the factual allegations of

the challenged complaint and . . . viewing those allegations in the

light most favorable to the plaintiff.” Lambeth v. Bd. of Comm’rs,

407 F.3d 266, 268 (4th Cir.), cert. denied, 126 S. Ct. 647 (2005)

(internal citations omitted).        “[A] district court may dismiss a

complaint for failure to state a claim only if it appears beyond

doubt that the plaintiff can prove no set of facts that would

entitle him to relief.”       Id.



                                      A.

          As a threshold matter, we must examine the nature of the

copyrights at issue. “Copyright protection extends to two distinct

aspects of music: (1) the musical composition, which is itself

usually composed of two distinct aspects--music and lyrics; and (2)

the physical embodiment of a particular performance of the musical

composition, usually in the form of a master recording.”             Staggers

v. Real Authentic Sound, 77 F. Supp. 2d 57, 61 (D.D.C. 1999); see

also 6 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, §

30.03    (2003)[hereinafter    Nimmer]     (“Copyright   ownership    of   the

physical embodiment of the performance of a musical composition




                                    - 15 -
(e.g., a master recording) is distinct from the ownership of the

copyright in the musical composition itself.”).

     Brown concedes that Flowers composed the music and lyrics for

the recordings at issue.         Accordingly, he does not dispute that

Flowers had the exclusive right to copyright compositions that

embodied these elements, had he chosen to do so.           Brown contends,

however, that Flowers copyrighted and subsequently licensed to

other artists the physical embodiments of those compositions--i.e.,

the master recordings that Brown had engineered and produced--

instead of merely copyrighting his raw compositions. Indeed, Brown

asserts that “the only media in which any copyright has been fixed

in connection with this case, as is common with ‘R&B’ music and the

beats    and    riffs   they   contain,”    are   the   master   recordings.

Appellant’s Reply Br. at 1-2.       In support of this argument, Brown

contends that re-recordings made by other artists contain beats and

riffs that are similar or virtually identical to the beats and

riffs    that     Brown    had   incorporated      into    Flowers’s    iDAC

compilations.3

     In reviewing the propriety of the district court’s Rule

12(b)(6) dismissal of Brown’s copyright claim, I accept as true



     3
      Although the panel expressed concern at oral argument that
Brown had not offered to play copies of these recordings to the
district court in order to demonstrate these similarities, the
plaintiff was not obligated to put on evidence at the motion to
dismiss stage, where allegations in the complaint are sufficient.


                                   - 16 -
Brown’s contention that the copyrights at issue extend to the

master recordings, and not to the compositions.



                                B.

     Even though Brown alleges that the copyrights extend to the

master recordings, Brown must further allege that he is entitled to

an ownership interest in those copyrights in order to state a claim

under the Copyright Act.   Brown posits two grounds to support his

contention that he has an interest in the copyrights: the work-for-

hire and joint-work provisions of 17 U.S.C. § 101. The district

court correctly concluded that Brown’s work-for-hire theory of

copyright ownership was insufficient as a matter of law.4   However,




     4
      Although it is typically the case that the author of a work
is the owner of the copyright in that work, the Copyright Act
recognizes an exception where the work is made for hire. See 17
U.S.C. § 101. Under the statute, a “work made for hire” is either
“a work prepared by an employee within the scope of his or her
employment,” or a specially commissioned work.      Id.  In either
case, the Copyright Act provides that the employer, rather than the
author-employee, holds the copyright in the work, unless their
written agreement provides to the contrary.       Id.; Comty. for
Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989).
     Brown first claims that the recordings at issue are works for
hire and that he is the sole owner of the copyrights in those
works.   Thus, Brown contends that Flowers is liable to him for
infringement. As the district court correctly concluded, however,
Brown has not alleged that Flowers was his employee or that he
specially commissioned Flowers to record songs for him. To the
contrary, the central allegation in Brown’s complaint is that he
and Flowers were business partners who jointly endeavored for the
success of their Hectic Records label. Thus, the district court
correctly concluded that Brown had not alleged ownership under
work-for-hire doctrine.

                              - 17 -
I believe that the district court erred in reaching a similar

conclusion with respect to Brown’s joint-work theory.

     Brown argues that the master recordings constitute joint

works, for which he made an original contribution as a sound

engineer and producer.         Specifically, Brown contends that these

recordings    constitute   a    compilation     of   Flowers’s    lyrical   and

musical   contributions        and   his      engineering   and    production

contributions.    Brown alleges that, by virtue of his and Flowers’s

collaborative efforts, the former partners own equal and undivided

interests in the copyrights of their joint works--the master

recordings.    Thus, Brown asserts that he has the right to an equal

share of the profits derived therefrom. See Thomson v. Larson, 147

F.3d 195, 199 (2d Cir. 1998).

     A “joint work” under the Copyright Act is one “prepared by two

or more authors with the intention that their contributions be

merged into inseparable or interdependent parts of a unitary

whole.”   17 U.S.C. § 101.      The language of the statute, therefore,

provides that for a work to be a “joint work,” there must be (1) a

copyrightable work, (2) two or more “authors,” and (3) a mutual

intent of the authors to merge their work.               See id.     See also

Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th Cir. 2000).                    The

parties do not dispute that the first requirement is satisfied.

Therefore, the dispositive inquiry focuses on whether Brown has

sufficiently alleged authorship and mutual intent.


                                     - 18 -
                                      i.

      Because the statute does not define the term “authors,” two

competing interpretations have emerged. The significant issue that

distinguishes these two interpretations is whether a joint-work

claimant must have contributed material that, standing alone, would

be entitled to copyright protection, or whether only the combined

result of the parties’ efforts must be copyrightable.

      The   Second   and   Ninth   Circuits    have   espoused     the    former

interpretation, requiring a joint-work claimant to demonstrate that

his contribution was independently copyrightable.               See Childress,

945 F.2d at 507 (“It seems more consistent with the spirit of

copyright law to oblige all joint authors to make copyrightable

contributions, leaving those with non-copyrightable contributions

to protect their rights through contracts.”); Aalmuhammed, 202 F.3d

at 1234 (“A joint work in this circuit requires each author to make

an   independently    copyrightable    contribution’      to     the    disputed

work.”) (internal quotation marks omitted).

      Applying   this   standard,    the     Second   Circuit    in    Childress

concluded that an actress who had taught the playwright about her

true-life character’s career was not an author of the play.                 945

F.2d at 509. Similarly, in Aalmuhammed, the Ninth Circuit rejected

the contention that the plaintiff, an Islamic scholar who had

consulted with director Spike Lee during the filming of the movie

Malcolm X, qualified as an author.         202 F.3d at 1236.      In so doing,


                                    - 19 -
the court in Aalmuhammed announced that “[a] creative contribution

does not suffice to establish authorship of a movie.”                      Id.

     Professor         Nimmer     argues      against   a     requirement     that     a

contribution      be    independently         copyrightable,     primarily       on   the

grounds    that   it    is    not    supported     by   the    plain    language      and

legislative history of 17 U.S.C. § 101. Nimmer § 6.07[A][1] (“That

language    contains         no     requirement     that      each     contribute     an

independently copyrightable component to the product.”).                      This is

a valid criticism.

     Because the statute does not provide an express definition for

the term “author,” I would “construe [this] statutory term in

accordance with its ordinary or natural meaning.”                      FDIC v. Meyer,

510 U.S. 471, 476 (1994).            As it is understood in this context, the

word “author” refers to a person “who is the source of some form of

intellectual or creative work.”                  Webster’s Third International

Dictionary 146 (2002). An “author” is further defined as “one that

originates, makes, or gives existence,” or “one that brings about

or is the efficient cause of an action.”                      Id.     Thus, the term

“author”    merely      connotes       some    significant      form     of   original

expression made in connection with an artistic endeavor.

     The legislative history further undermines the notion that

authorship, as it is understood in the joint-work context, requires

an independently copyrightable contribution.                        The House Report

accompanying the Copyright Act of 1976 provides:


                                        - 20 -
       [A] work is joint if the authors collaborated with each
       other, or if each of the authors prepared his or her
       contribution with the knowledge and intention that it
       would be merged with the contributions of other authors
       as “inseparable or interdependent parts of a unitary
       whole.” The touchstone here is the intention, at the
       time the writing is done, that the parts be absorbed or
       combined into an integrated unit . . . .

H.R.    Rep.   No.    94-1476,      at     120     (1976),     reprinted    in     1976

U.S.C.C.A.N.     5659,      5736.        As      Professor     Nimmer    notes,    the

legislative history “elevates intention as the touchstone, without

placing any further parsing as to the copyrightable status of each

individual component that the parties intended to contribute to the

work as a whole.”         Nimmer § 6.07[A].

       According to Professor Nimmer, the contributions of putative

joint authors do not have to be equal, “either quantitatively or

qualitatively, in order to constitute them as joint authors.”                      Id.

Although Nimmer recognizes that the contribution of each must be

more    than   “de    minimus,”      he       takes    the     position     that    an

interpretation       of    authorship      as      requiring     an     independently

copyrightable contribution is overly restrictive and potentially

inequitable.     See id.      In support of this interpretation, Nimmer

posits the following hypothetical:

       [I]f authors A and B work in collaboration, with A
       contributing sparkling plot ideas and B weaving them into
       a completed screenplay, it cannot be doubted that both
       have made more than a de minimus contribution to the
       resulting script. On that basis both A and B should be
       considered joint authors of the work, even though,
       standing alone, plot ideas may not be copyrightable.

Id.

                                         - 21 -
     With its recent decision in Gaiman v. McFarlane, 360 F.3d 644,

659 (7th Cir. 2004), a panel of the Seventh Circuit adopted

Nimmer’s interpretation of authorship. The facts of that case were

as follows.        The defendant, the creator and illustrator of a

faltering comic book series, invited the plaintiff to write a

script for one issue.         Id. at 649.        Subsequently, the plaintiff

wrote a script in which he introduced three new characters to the

series.    Id.     Based on the plaintiff’s verbal description of the

characters and his written dialogue, the defendant drew these

characters into the series. Id. Thereafter, the plaintiff brought

suit, contending that he was entitled to an ownership interest in

the copyright by virtue of the joint-work provision.                Id. at 650.

     With respect to the authorship requirement, Judge Posner

recognized       that    although   a     contribution   of    “some   original

expression” is required for authorship status, he rejected the

notion    that    such    contribution      must   always     be   independently

copyrightable.      Id. at 658.     In so doing, Judge Posner reasoned as

follows:

     But where two or more people set out to create a
     character jointly in such mixed media as comic books and
     motion pictures and succeed in creating a copyrightable
     character, it would be paradoxical if though the result
     of their joint labors had more than enough originality
     and creativity to be copyrightable, no one could claim a
     copyright.   That would be peeling the onion until it
     disappeared.   The decisions that say, rightly in the
     generality of cases, that each contributor to a work must
     make a contribution that if it stood alone would be
     copyrightable weren’t thinking of the case in which it


                                        - 22 -
      couldn’t stand alone because of the nature of                       the
      particular creative process that had produced it.

Id. at 660.        Applying this logic, the court concluded that the

plaintiff’s     creative      contribution      to   the   comic   book   series,

although not independently copyrightable, was sufficient to accord

him authorship status.5          Id.

      Thus, as it stands today, there is a division of authority as

to   whether   a     joint-work    claimant     must   make   an   independently

copyrightable contribution in order to satisfy the authorship

requirement.        As noted above, our court has never addressed this

issue, and, therefore, the district court had to determine which

approach to follow.       After briefly identifying the lead cases from

the Second and Ninth Circuits, and without discussing the contrary

view of Professor Nimmer and Judge Posner, the district court

determined (1) that an allegation of an independently copyrightable

contribution was required to show authorship and (2) that Brown had

failed    to   make    such   an    allegation.        I   disagree   with      both

conclusions.

      First,    I     disagree     that   an    independently      copyrightable

contribution is always required to show authorship.                As Professor

Nimmer has recognized, “copyright’s goal of fostering creativity is



      5
      It is unclear whether this holding is limited to “mixed
media” works. Compare Gaiman, 360 F.3d at 658-60, with Erickson v.
Trinity Theatre, Inc., 13 F.3d 1061 (7th Cir. 1994) (requiring
independently copyrightable contribution for theater companies’
suggestions to the playwright).

                                       - 23 -
best served . . . by rewarding all parties who labor together to

unite idea with form, and that copyrightable protection should

extend both to the contributor of the skeletal ideas and the

contributor who fleshes out the project.”                       Nimmer § 6.07[A][3][a].

     Accordingly, I would recognize that an individual who, in

collaboration          with    another,      provides       a    substantial     original

contribution to a copyrightable work satisfies the authorship

requirement,      regardless        of     whether    his       contribution,    standing

alone, would be individually copyrightable. Although this standard

necessarily entails a more exhaustive assessment of the respective

contributions of the parties and the particular media at issue, I

believe    that    it     is    a   more    thorough    and        equitable    approach.

Further, this standard is more consistent with the plain language

and legislative history.             Because Brown has alleged that he made

significant engineering contributions in producing Flowers’s R&B

recordings,       he    has    satisfied      this    less       stringent      authorship

standard.

     However, even assuming that the district court correctly

surmised that this court would adopt the approach of the Second and

Ninth     Circuits        to    require       an     independently        copyrightable

contribution, the district court failed to recognize that the

allegations    in       Brown’s     Complaint       satisfy       this   more   stringent

authorship standard.           Brown alleges in his Complaint that he acted

as recording engineer and producer of the master recordings.                          See


                                           - 24 -
J.A. 2-3.       As explained below, the few district courts to have

addressed the authorship requirement within the specific context of

the music recording industry have recognized that substantial

engineering and production contributions accord authorship status.

     In JCW Investments, Inc. v. Novelty Inc., 289 F. Supp. 2d 1023

(N.D.    Ill.    2003),   the   district   court    noted   that   “[a]   record

producer may be an author when he or she is ‘responsible for

setting up the session, capturing and electronically processing the

sounds, and compiling and editing them to make a final sound

recording.’”       Id. at 1032(quoting H.R. Rep. No. 94-1476, at 56

(1976)).    Similarly, in Morrill v. J.M. Productions, 157 F. Supp.

2d 1120, 1122 (C.D. Cal. 2001), the district court noted that the

plaintiff’s contributions in producing and editing a music video

satisfied       “the   requisite   level     of    copyrightable     expression

necessary to support a claim of joint authorship.”                 Id. at 1122.

Even though the joint-work claimant in Morrill had not composed or

performed the lyrics, the court nevertheless recognized that his

contributions in producing, engineering, and editing the music

video constituted a significant original contribution, such that he

should be deemed an author of that work.6            Id. at 1126.




     6
      Because the defendant-performer successfully asserted a
joint-work theory to defend against the plaintiff-producer’s claim
that the defendant-performer had infringed upon his exclusive
copyright interest in the music videos, the district court granted
summary judgment in favor of the defendant. Id. at 1127.

                                    - 25 -
     As noted above, Brown alleges that, in his capacity as a

engineer and producer, he compiled master recordings of Flowers’s

performances.    See J.A. 2-3.       In that role, Brown explains that he

was responsible for selecting and incoporating tempo, ambiance,

echo,   reverberation,     treble,    bass,    frequency,      gain,    bandwith,

distortion,     and    equalizing,    all     of    which,    he     argues,     are

distinctive and essential elements of R&B recordings.                          Thus,

accepting   Brown’s     allegation    as    true,    I    conclude    that     Brown

satisfies the authorship requirement for a joint work.

                                      ii.

     In addition to satisfying the authorship requirement, a joint-

work claimant must demonstrate that both parties intended their

contributions be “merged into inseparable or interdependent parts

of a unitary whole.”        17 U.S.C. § 101.             As the Second Circuit

recognized in Childress, parts of a unitary whole are inseparable

“when they have little or no independent meaning standing alone.”

945 F.2d at 505.      Parts of a unitary whole are interdependent “when

they have some meaning standing alone but achieve their primary

significance because of their combined effect, as in the case of

words and music of a song.”       Id.

     As the Second Circuit recognized in Childress:

     Examination of whether the putative co-authors ever
     shared an intent to be co-authors serves the valuable
     purpose of appropriately confining the bounds of joint
     authorship arising by operation of copyright law, while
     leaving those not in a true joint authorship relationship
     with an author free to bargain for an arrangement that

                                     - 26 -
       will be recognized as a matter of both copyright and
       contract law.

Id.    Further, “since co-authors are afforded equal rights in the

co-authored work, the ‘equal sharing of rights should be reserved

for relationships in which all participants fully intend to be

joint authors.’”      Thomson v. Larson, 147 F.3d 195, 201 (2d Cir.

1998) (quoting Childress, 945 F.2d at 509). In Thomson, the Second

Circuit recognized that an important indicator of the parties’

intent    is   whether    a   joint-work    claimant     has   “decisionmaking

authority” over the substance and form of a work.                  Id. at 202-03.

The court in Thomson also recognized that the way in which the

parties hold themselves out to third parties is also significant.

Id. at 203.      Finally, the court noted that the parties’ written

agreements with each other provides insight into whether they

intended to create a joint work.           Id. at 204.

       To determine whether the parties intended to create a joint

work, the Ninth Circuit has suggested its own three criteria: (1)

whether the putative co-author exercises some measure of control

over     the   venture;   (2)    whether     the   parties     make    objective

manifestations of their shared intent to be co-authors; and (3)

whether the audience appeal of the work is attributable to the

contributions of both parties.        See Alamuhammed, 202 F.3d at 1234.

Although each of these factors should be considered, “[c]ontrol in

many cases will be the most important factor.”               Id.



                                    - 27 -
      Thus, applying the requirements of the Second and Ninth

Circuits, I recognize that Brown had to allege: (1) that he had

significant decisionmaking authority over the form and substance of

the master recordings; (2) that he and Flowers made objective

manifestations of their intent to be co-authors to each other and

to third parties; and (3) that the audience appeal of the master

recordings was attributable to the contributions of both parties.

      Because Brown alleges that he served as the engineer and

producer    of     the   master   recordings,        I    conclude    that    he    had

significant decisiomaking authority over the substance and form of

the     master   recordings.            Thus,     Brown    satisfies    the     first

requirement.       Second, as to Brown’s allegations that the parties

collaborated over a period of four years in recording demo R&B

songs    under     their   Hectic       Records    partnership       label    and   in

attempting to distribute those recordings to third parties under

that label, I conclude that Brown has sufficiently alleged that the

partners made objective manifestations of their intent to be co-

authors.     Finally, because the audience appeal of R&B songs is

attributable in large measure to their underlying riffs and beats,

which, invariably, are incorporated into those songs by recording

engineers    and    producers,      I   conclude     that   Brown’s     allegations

satisfy the third requirement.              Accordingly, the district court

erred in concluding that Brown’s allegations did not satisfy the

mutual intent requirement.


                                        - 28 -
                                           iii.

     In sum, applying Brown’s factual allegations to the statutory

requirements of authorship and intent, I conclude that Brown has

stated a claim under the joint-work provision of 17 U.S.C. § 101.

Accordingly, I would vacate the district court’s Rule 12(b)(6)

dismissal     of   the     copyright        claim     and    remand    for    further

proceedings.



                                           III.

     Next, Brown contends that the district court erred in granting

summary judgment to Flowers on his state law claims for partnership

accounting,    breach     of    fiduciary         duty,   fraudulent   concealment,

negligent     misrepresentation,           and     unfair   and   deceptive    trade

practices.     I conclude that the district court erred in granting

summary   judgment       on    all   but    the     fraudulent    concealment    and

negligent misrepresentation claims.

     This court reviews de novo the district court’s decision to

grant the defendant’s motion for summary judgment.                      Bouchat v.

Baltimore Ravens Football Club, Inc., 346 F.3d 514, 519 (4th Cir.

2003).    According to Rule 56(c) of the Federal Rules of Civil

Procedure, summary judgment is appropriate where “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, . . . show that there is no genuine

issue as to any material fact and that the moving party is entitled


                                       - 29 -
to a judgment as a matter of law.”                  Fed. R. Civ. P. 56(c).

Although we view the facts and inferences drawn therefrom in the

light   most    favorable     to    Brown,    the    non-moving    party,      he

nevertheless has the ultimate burden of demonstrating a genuine

issue of material fact for trial.            See Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986); Thompson v. Potomac Elec. Power Co.,

312 F.3d 645, 649 (4th Cir. 2002).



                                      A.

      Brown alleges that Flowers breached their Hectic Records

partnership agreement by failing to share half of those “monies

earned by Flowers using music produced in Brown’s Durham recording

studio.”   J.A. 17.    Further, Brown contends that Flowers failed to

“share the proceeds of recording contracts [Flowers] has received

from established record labels, artists, and production companies.”

Id. Accordingly, Brown argues that he is entitled an accounting of

all   profits     derived    from   Flowers’s    misappropriation      of     the

partnership assets.

      Flowers concedes that he and Brown formed the Hectic Records

partnership.      Nevertheless, Flowers argues that Brown put forth no

evidence   that    Flowers    misappropriated       the   recordings   made    in

Brown’s Durham studio in a separate business endeavor.                   Brown

disputes this contention, arguing that he presented sufficient




                                    - 30 -
evidence that Flowers sold their collaborative recordings to third

parties.   I agree.

     North Carolina General Statute § 59-36, defines a partnership

as “an association of two or more persons to carry on as co-owners

of a business for profit.”      More specifically, “[a] partnership is

a combination of two or more persons of their property, effects,

labor, or skill in a common business or venture, under an agreement

to share the profits or losses in equal or specified proportions,

and constituting each member an agent of the others in matters

appertaining    to   the   partnership   and   within   the   scope   of   its

business.”     Compton v. Kirby, 577 S.E.2d 905, 912 (N.C. Ct. App.

2003).   Pursuant to North Carolina’s Uniform Partnership Act, any

partner who is “wrongfully excluded from the partnership business

or possession of its property by his copartners” is entitled to a

formal accounting.     N.C. Gen. Stat. § 59-52 (2005).

     In concluding that Brown had not presented any evidence that

the songs in question were recorded in the partners’ Hectic Records

studio or that he had contributed to their creation, the district

court overlooked (or disregarded) Brown’s affidavit.            In refuting

Flowers’s contention that he did not misappropriate partnership

assets, Brown asserted as follows:

          When the agency agreement expired in 1992, Flowers
     left the Durham area for a time, but he returned in 1994
     and at that time he and I hit upon the idea of the
     “Hectic Records” partnership. Our understanding was that
     we would work together with me providing the capital, the
     studio and the recording equipment and he would provide

                                  - 31 -
     the musical ideas. Together with his musicianship and my
     engineering skills we would produce recordings for play
     in local clubs, to demo with recording artists and record
     labels   and   to   eventually   obtain   a   contractual
     relationship with a recording label. We agreed that any
     music we produced was a partnership asset and that any
     income produced by our joint labors would be equally
     divided between us. . . .

          I am not and have never claimed to be a song writer.
     I do have skills in the field of musical engineering, and
     offered suggestions for refinements and changes to the
     earliest recordings of songs Flowers wrote called “I
     Wish” and “Lunch or Dinner,” and nearly every other piece
     of music that Flowers wrote while we were in partnership.
     Although Flowers claims that all of this music, including
     “I Wish” and “Lunch or Dinner,” was recorded outside of
     North Carolina, I have in my possession CD’s recorded in
     my studio in Durham, North Carolina that shows that the
     only changes being made to music recorded pursuant to our
     partnership agreement are minor alterations. The form
     and substance of “I Wish” and “Lunch or Dinner” and
     literally hundreds of other songs resulted from work done
     for the Hectic Records partnership by Flowers and I.

J.A. 60-61.    Brown’s affidavit thus creates a genuine issue of

material fact as to whether Flowers copyrighted and licensed the

recordings that Brown had engineered and produced in his Durham

studio.   Stated differently, Brown’s affidavit is sufficient to

counter Flowers’s contrary contention that the recordings were not

partnership   assets.   Therefore,   the   district   court   erred   in

granting summary judgment to the defendant on the partnership

accounting claim.   See Fed. R. Civ. P. 56(c).



                                B.

     Brown next argues that the district court erred in granting

summary judgment to Flowers on his breach of fiduciary duty claim.

                              - 32 -
According to Brown, Flowers breached his fiduciary duty as a

partner by self-dealing with partnership assets.            As noted above,

the district court did not specifically address this claim in its

opinion granting summary judgment to the defendant.                 Thus, the

majority’s reliance on the reasoning of the district court is

misplaced.

      A fiduciary duty “exists in all cases where there has been a

special confidence reposed in one who in equity and good conscience

is bound to act in good faith and with due regard to the interests

of the one reposing confidence.”        Abbitt v. Gregory, 160 S.E. 896,

906 (N.C. 1931).       Under the Uniform Partnership Act, a partner is

accountable   as   a    fiduciary.      See   N.C.   Gen.   Stat.   §   59-51.

Accordingly, North Carolina law provides that:

      (a) Every partner must account to the partnership for any
      benefit, and hold as trustee for it any profits derived
      by him without the consent of the other partners from any
      transaction connected with the formation, conduct or
      liquidation of the partnership or from any use by him of
      its property.

Id.

      As discussed above, Brown presented evidence that Flowers sold

partnership assets to other artists and did not share the proceeds

from those transactions with Brown.           See J.A. 60-61.        Although

Flowers disputes this contention, Brown’s affidavit is sufficient

to create a genuine issue of material fact on this issue.            As such,

the district court erred in granting summary judgment to the

defendant as to the breach of fiduciary duty claim.

                                     - 33 -
                                      C.

     Brown further contends that the district court erred in

granting summary judgment to the defendant on his unfair and

deceptive trade practices claim.            Pursuant to North Carolina

General Statute § 75-1.1, “[u]nfair methods of competition in or

affecting commerce, and unfair or deceptive acts or practices in or

affecting commerce, are . . . unlawful.” Under North Carolina law,

“conduct    which   constitutes   a    breach     of   fiduciary    duty    and

constructive   fraud   is   sufficient      to   support    [an    unfair   and

deceptive   trade   practices]    claim.”        Spence    v.   Spaulding   and

Perkins, Ltd., 347 S.E.2d 864, 866 (N.C. 1986).            Thus, because the

district court erred in granting summary judgment on the breach of

fiduciary duty claim, it also erred in granting summary judgment as

to the unfair and deceptive trade practices claim.



                                      D.

     Finally, Brown raises claims of fraudulent concealment and

negligent misrepresentation.       Again, the district court did not

explicitly discuss these claims in its opinion.                   Under North

Carolina law, a party asserting a cause of action for fraudulent

concealment or negligent misrepresentation must allege that he was

denied the opportunity to investigate or that he could not have

learned of the true facts by exercise of reasonable diligence.

Eastway Wrecker Serv. v. City of Charlotte, 599 S.E.2d 410, 414


                                  - 34 -
(N.C. Ct. App. 2004).   Brown alleged neither, and, therefore, the

district court properly granted summary judgment on these two

claims.



                                IV.

     For the foregoing reasons, I would vacate the district court’s

Rule 12(b)(6) dismissal of Brown’s federal copyright claim as well

as the court’s grant of summary judgment in favor of Flowers on the

partnership accounting, breach of fiduciary duty, and unfair and

deceptive trade practices claims.      Therefore, I dissent with

respect to those claims.    I join the majority in affirming the

district court’s grant of summary judgment of the fraudulent

concealment and negligent misrepresentation claims, but on my

reasoning.




                              - 35 -
