In an unpublished ruling, the U.S. Court of Appeals for the Ninth Circuit held that a district court did not err in holding that former KISS guitarist Vinnie “Vinnie Vincent” Cusano must surrender KISS royalty earnings to former bandmate Gene “Gene Simmons” Klein in order to cover Klein’s attorneys’ fees from a royalty dispute Cusano lost in 2003. Cusano et al. v. Klein et al., Case No. 06-56871 (9th Cir., May 8, 2012) (Nelson, J.; Fisher, J;. Christen, J).
In 2003, Cusano sued his former KISS bandmates and record label alleging unpaid royalties owed for compositions he co-wrote with the band in the 1980s. The district court granted summary judgment in favor of the defendants and awarded Klein a substantial attorneys’ fees award. When Klein sought to recover such fees from Cusano’s royalty income stemming from the KISS compositions, Cusano argued in multiple appeals that his song royalties are protected from levy by federal and state law.
Consolidating Cusano’s various appeals, the 9th Circuit affirmed the district court’s attorneys’ fees award and held that Cusano’s royalty payments were not immune from collection to satisfy the 2003 judgment. The court found unpersuasive Cusano’s assertion that song royalties are shielded by federal and state statutes that protect from garnishment 75 percent of an individual’s weekly “earnings”. The court reasoned that the relevant statutes defined “earnings” as compensation for “personal services,” and Cusano offered no proof that continuing royalty payments are compensation for personal services.
The court also held that the district court did not abuse its discretion by denying Cusano’s various motions to invalidate the 2003 judgment. Cusano’s 2006 motion for reconsideration and 2010 motion to vacate were untimely filed, as such motions must be made within one year after the entry of the judgment.
Affirming the district court ruling, the 9th Circuit held that Klein may recover 100 percent of Cusano’s song royalty payments in order to satisfy the attorneys’ fees award in the 2003 judgment.© 2013 McDermott Will & Emery