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Real Housewives of the Northern District: Reality TV Stars Now Legal Adversaries in Copyright Battle

Those who watch “Housewives”-themed television shows are doubtless familiar with the oft-repeated scenes of reality-TV stars engaging in verbal warfare with one another.  The newest battle between reality stars from Real Housewives of Atlanta, however, occurs off-camera, extending beyond mere verbal warfare and into the legal realm.  The opening salvo in this new battle, fired in the U.S. District Court for the Northern District of Georgia, Atlanta Division, identifies the song “Tardy for the Party” as the subject of the dispute.

The Complaint and Surrounding Circumstances

On March 12, 2013, Real Housewives of Atlanta (“RHOA”) star Kandi Burruss, Kandi Koated Entertainment, Inc., and Rodney Richard filed a complaint in the Atlanta Division against former RHOA co-star Kim Zolciak-Biermann and Tunecore, Inc. (collectively, “Defendants”), alleging that Defendants infringed their copyright in the song “Tardy for the Party.”  (Of interest to local sports fans, Ms. Zolciak-Biermann is married to Atlanta Falcons defensive end Kroy Biermann.)  To the copyright claim plaintiffs add counts for unjust enrichment and imposition of a constructive trust.  One of the attorneys who signed the complaint on Plaintiffs’ behalf, Phaedra Parks, is herself one of the Real Housewives of Atlanta.

According to the complaint, the musical composition “Tardy for the Party” “was written by Burruss, Richard, Mr. Ed H. Davidson and Ms. Brielle Zolciak, on or around April 30, 2009.”  According to several websites, including Wikipedia and AccessAtlanta.com, Brielle Zolciak is the daughter of defendant Kim Zolciak-Biermann. 

Though a copyright registration is not identified in the complaint, an on-line record in the U.S. Copyright Office recites the following copyright registration data, identifying only Mr. Davidson as an author and reciting a 2008 creation date:

Don't Be Tardy for the Party.

 

Type of Work:

Sound Recording and Music

Registration Number / Date:

PAu003487169 / 2009-04-24

Application Title:

Don’t Be Tardy for the Party.

Title:

Don’t Be Tardy for the Party.

Description:

Compact disc + Print Material.

Copyright Claimant:

Ed H. Davidson, 1949- . [address identified].

Date of Creation:

2008

Authorship on Application:

Ed H. Davidson, 1949- ; Citizenship: United States. Authorship: music, lyrics, sound recording/performance.

Rights and Permissions:

Ed H. Davidson, [address, phone number, and e-mail identified].

 

 

Names:

Davidson, Ed H., 1949-

This leaves one to wonder whether the song “Tardy for the Party” is a derivative work in light of the above-identified registered work; however, the complaint does not recite any such allegations.

Plaintiffs assert that Burruss and Richard “are authors and/or co-authors of Plaintiffs’ Composition and owners and/or co-owners of the copyright therein and thereto.”  The complaint refers to “[a] so-called ‘split sheet’ (attched hereto as Exhibit ‘A’ and incorporated herein by reference) signed by the aforementioned individuals [that] sets forth the respective ownership interests in Plaintiffs’ Composition.”  Exhibit A to the complaint is a photocopy of a document titled “Producer/Songwriter(s) Split Sheet” with the song title “Tardy for the Party” appearing at the top, followed by the statement: “We hereby confirm that percentage of contribution and our respective publishing companies for the aforementioned composition are:.”  The percentages recited in that document are as follows: Burruss, 33.33%; Mr. Richard, 33.33%; Mr. Davidson, 16.66%; and Brielle Zolciak, 16.66%, with a signature appearing to follow each split recitation, although a handwritten notation indicates that that the signature as to Brielle’s split was by Ms. Zolciak-Biermann as Brielle’s parent and legal guardian. The depicted signatures as to Richard and Davidson bear mid-2009 dates; the other two signatures are undated. 

According to Amazon.com, Ferosh Records released the single “Tardy for the Party,” performed by Ms. Zolciak-Biermann, on February 9, 2010.  A month later, the label released an EP featuring the original single as well as four remixed versions of “Tardy for the Party.”  The single and its remixes received mixed reviews and enjoyed modest success.  The complaint asserts, on information and belief, that the single “has sold in excess of One Hundred Two Thousand (102,000) units in the United States.”

Parting Thoughts

The acknowledged composition co-authorship of Ms. Zolciak-Biermann’s daughter Brielle raises the question of what, if anything, transpired concerning Brielle’s interest in the song.  Depending on the answer to that question, that interest might have a significant impact on the case.[1]

The state law claims for unjust enrichment and imposition of a constructive trust may be vulnerable to a challenge that they are preempted under Section 301 of the Copyright Act.[2]  Below are cited, as examples, cases that reached different results as to claims for unjust enrichment and imposition of a constructive trust,[3] though no opinion is expressed here as to the likelihood of success of a preemption challenge.

The case is Kandi Burruss, Kandi Koated Entertainment, Inc., and Rodney Richard v. Kimberliegh Zolciak-Biermann and Tunecore, Inc., No. 1:13-cv-0789-WSD, filed 03/12/13 in the U.S. District Court for the Northern District of Georgia, Atlanta Division, assigned to U.S. District Judge William S. Duffey, Jr.

The contributions of co-author Mike Cicero to this article are gratefully acknowledged.


[1] See Thompkins v. Lil' Joe Records, Inc., 476 F.3d 1294, 1305 (11th Cir. 2007) (“This is significant because, if Lil' Joe is now a co-owner of the composition copyrights (in addition to being full owner of the sound recording copyrights), Thompkins cannot maintain his suit for infringement.”).
[2] “The Copyright Act of 1976 . . . preempts ‘all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified in section 106 . . . and come within the subject matter of copyright as specified by sections 102 and 103  . . . .’”  McCoy  v. Scantlin, No. CV 04-371-GHK(RZx), 2004 U.S. Dist. LEXIS 30760, at *3-*4 (C.D. Cal. June 1, 2004) (quoting 17 U.S.C. § 301(a)).
[3] Compare, for example, McCoy, 2004 U.S. Dist. LEXIS 30760, at *9 (“Claims for unjust enrichment arising from the unauthorized use of a copyrighted work are generally held to be preempted.”), with Jaggon v. Rebel Rock Entertainment, Inc., No.: 09-61144-Civ-COOKE/BANDSTRA, 2010 U.S. Dist. LEXIS 90685, at *15 (S.D. Fla. Aug. 31, 2010) (“Mr. Jaggon’s claim for constructive trust, however, is not preempted because it alleges that the Defendants[ ] acquired an advantage through a confidential relationship.”).
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About this Author

Preston H Heard, Womble Carlyle Law Firm, Intellectual Property Attorney
Partner

Preston Heard is an experienced patent litigation attorney who represents clients in a variety of industries, including the mechanical, computer and chemical sectors, in patent-related disputes.

 A registered patent attorney, Preston has represented patent clients in U.S. District Court in numerous states, as well as before the U.S. International Trade Commission. He works with patent owners to devise overall strategies to protect and enforce patent rights and to assess potential patent-related claims. He also works with clients to develop effective defenses against patent...

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