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 alleged 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. The attorney who filed 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 byBurruss, 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 him 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.
The complaint does not identify any copyright assignments. However, it describes “[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 as follows: Burruss, 33.33%; Mr. Richard, 33.33%; Mr. Davidson, 16.66%; and Brielle Zolciak, 16.66%, each acknowledgement purporting to bear a signature of each of these persons, 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.) The complaint asserts 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.”
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.”
The acknowledged composition co-authorship of Ms. Zolciak-Biermann’s daughter Brielle raises a question of whether Brielle’s interest in the song may have been transferred to her mother. Should such a fact emerge, then it would be difficult to conceptualize how one alleged copyright co-owner could sustain an infringement claim against another co-owner.
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. Below are cited, as examples, cases that reached different results as to claims for unjust enrichment and imposition of a constructive trust, 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.