Keep On Kicking Music, Inc v. Universal Music Group, Inc.

Background

Keep On Kicking Music, Inc., Keep On Moving Music, Inc., and Free World Music, Limited brought a copyright-infringement action against several defendants concerning ownership of the musical composition and sound recording “Espoir Composition X,” also called “ECX.” The opinion describes competing claims to ECX’s publishing and recording rights. Plaintiffs alleged that they acquired ownership through written agreements with Robert Pierre Martino and registered their ownership with the United States Copyright Office. Kreyol Music, Inc. and Melodie Makers, Inc. claimed ownership through a different chain of succession.

Kreyol and Melodie entered into an agreement with Idaly, a music licensing company, concerning royalties from the use of ECX in the song “Narcos.” The agreement was negotiated through Daniel Rubin and his New York business, Sample Clearance. Kreyol and Melodie moved to dismiss for lack of personal jurisdiction and under the forum non conveniens doctrine, which allows a court with jurisdiction to decline the case when another forum is more appropriate.

Personal Jurisdiction

The court ruled that it could not exercise general personal jurisdiction over Kreyol and Melodie because the opinion identifies Florida as their state of incorporation and principal place of business, and the parties did not argue that they were essentially at home in New York.

The court nevertheless found a sufficient basis for specific personal jurisdiction, meaning jurisdiction tied to the claims and the defendants’ particular activities. Under New York’s long-arm statute, the plaintiffs made the required preliminary showing that Kreyol and Melodie transacted business in New York through Rubin. The agreement identified a New York office address, selected New York law to govern the agreement, and provided for royalty payments to Kreyol through Rubin’s New York office.

The court also concluded that exercising jurisdiction satisfied the federal Constitution’s requirement of sufficient minimum contacts. The court found that Kreyol and Melodie knowingly retained the New York agent, benefited from the agent’s activities, and exercised control over those activities. The claims concerning ownership of ECX and the legality of royalty payments arose from those New York contacts. The court further concluded that exercising jurisdiction was fair because New York had an interest in disputes involving contracts negotiated and royalty payments received through New York agents, and defending the case in New York would not impose a substantial hardship on Kreyol and Melodie.

Forum Non Conveniens and Transfer

The court denied the request to dismiss under the forum non conveniens doctrine. Kreyol and Melodie identified Haiti and Florida as places with connections to the dispute, but they cited only Florida as an alternative forum. The court explained that forum non conveniens permits dismissal in anticipation of refiling in a more convenient foreign forum, not transfer between federal district courts.

The court treated the request to move the case to the Southern District of Florida under 28 U.S.C. § 1404(a) as waived because Kreyol and Melodie raised it for the first time in their reply. The court also stated that the request would fail independently because the defendants did not sufficiently show in their reply that the Universal defendants were subject to personal jurisdiction in Florida.

Disposition

The court denied Kreyol and Melodie’s motion to dismiss for lack of personal jurisdiction and under the forum non conveniens doctrine. The order also states that the request for transfer under 28 U.S.C. § 1404(a) was waived and otherwise insufficient. The defendants were ordered to file an answer to the first amended complaint and crossclaims within 14 days after the opinion and order.