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Maxwood Music Ltd. v. Malakian
Citations: 713 F. Supp. 2d 327; 69 U.S.P.Q. 2d (BNA) 1327; 2010 U.S. Dist. LEXIS 48998; 2010 WL 2010936Docket: 08 Civ. 1730
Court: District Court, S.D. New York; May 17, 2010; Federal District Court
Maxwood Music Limited, the Plaintiff, filed a lawsuit seeking a declaration under the Copyright Act that the song "B.Y.O.B." from the album *Mezmerize* by the band System of a Down is a joint work co-authored with songwriter Casey Chmielinski, claiming a 50% ownership share alongside Defendants Daron Malakian and Serj Tankian. The court, after a trial from November to December 2009, found that the Defendants are the sole authors of "B.Y.O.B." The case involved complex credibility issues between the involved musicians, compounded by blurred memories due to time and substance use. The Plaintiff had acquired rights from Chmielinski through a publishing agreement that assigned his rights in various songs, including "B.Y.O.B." in exchange for an advance and royalties. Chmielinski's claimed interest in "B.Y.O.B." was stated as 50%, yet no substantial evidence or details supporting his co-authorship with Malakian were presented at the time the agreement was made. Ultimately, the court ruled in favor of the Defendants, dismissing Maxwood’s claims. Malakian is a songwriter and lead guitarist for System of a Down, which also includes Tankian, the lead singer. Each has their own publishing company: Malakian Publishing and Stunning Suppository Sounds (incorrectly sued as Shattered Mirrors Publishing), respectively. System of a Down, formed in 1994 or 1995 and active until 2006, released five albums, selling around 20 million copies and earning three Grammy nominations, with "B.Y.O.B." winning Best Hard Rock Performance in 2005. Malakian and Tankian are the primary songwriters for the band, alongside members John Dolmayan and Shavo Odadjian. Malakian met Chmielinski at the "Big Day Out" music festival in January 2002, where both their bands performed. Following a chance encounter in Los Angeles later that year, they collaborated musically, often under the influence of drugs. In May 2003, Malakian signed Chmielinski as the first artist on his label, EatURMusic, providing a $100,000 advance for Chmielinski's album "Death Before Musick," released in 2004. Malakian publicly praised Chmielinski's talent in music industry publications. However, their relationship soured due to accusations against Chmielinski and financial disputes regarding advances for recordings. By late 2004 or early 2005, both recognized the deteriorating relationship. Their final interactions involved brief discussions about a 2% songwriter's share for Chmielinski in mid-2005. Chmielinski claimed he began collaborating musically with Malakian in early March 2002, spending significant time together over the following months, during which they worked on songs. He specifically noted that an opening guitar riff from Malakian became part of "B.Y.O.B." and that he contributed lyrics that Malakian later utilized in the song's bridge. The "Jam Sessions Song" is identified as a precursor to "B.Y.O.B." Testimony reveals inaccuracies in Chmielinski's dates. Malakian stated he did not reconnect with Chmielinski until September 2002, claiming his memory had improved since his deposition a year prior. Malakian purchased a house in Los Angeles in January 2002 but did not move out until September 2002, and Chmielinski never visited Malakian's parents’ home, contradicting his claims of working with Malakian in early 2002. Malakian recounted that they met while he was with a girl he met on tour over the summer. System of a Down toured from February to early March 2002 and then in Europe until April 1, 2002, with additional performances in June 2002, and was continuously on the Ozzfest tour from July 6 to September 8, 2002, during which Malakian was not in Los Angeles. Chmielinski was on tour in England with his band Amen in August 2002 and admitted to not working with Malakian during that time. The timelines of both tours suggest that Chmielinski’s statements about frequent collaboration with Malakian starting in March or April 2002 are inaccurate. Post-Ozzfest in September 2002, Malakian and Tankian began work on their album "Steal This Album." Malakian encountered Chmielinski for the first time in the fall of 2002 on Melrose Avenue, after which they listened to music together at Malakian's home. Malakian's girlfriend from the 2002 Ozzfest tour was present during these meetings, indicating that Chmielinski could not have been working with Malakian prior to September 2002. Malakian expressed interest in Chmielinski's vocal talents for potential songs he had written with him in mind. Chmielinski stated in a 2004 interview that the songs he jammed on with Malakian were already written by Malakian before Chmielinski's involvement. They met at the Big Day Out, where Malakian expressed admiration for Chmielinski's band, Amen, and later contacted him about songs he envisioned for Chmielinski's voice. Together, they discussed a joint project named "Scars On Broadway," generating around fourteen song ideas, although at trial, Malakian identified only five or six recorded songs, and estimated a total of seven or eight, including two more from his deposition. Chmielinski suggested Hill as a drummer, having seen him perform with Amen, and introduced him to Malakian in December 2002. The trio worked collaboratively on the material, including the "Jam Sessions Song," which featured lyrics later incorporated into "B.Y.O.B." They recorded several songs on a boom box and subsequently at Undercity Recording Studio. Chmielinski testified that both recordings accurately represented the state of the songs at the time, and there were no recordings of him and Malakian after the studio session. Chmielinski claimed that after making the Studio Recording, he and Malakian continued working on what eventually became "B.Y.O.B." for an additional seven to eight months, completing it around December 2003, contrary to the Complaint's timeline. His testimony regarding the Studio Recording changed as evidence was presented, initially stating the recording occurred in June 2003 with Hobgood present, but later adjusting this when evidence showed he had terminated his relationship with Hobgood before that date. Chmielinski and Malakian collaborated on songs, including the Jam Sessions Song, before Hill joined them in December 2002. They continued to work together after Hill left following a recording session. In contrast, Hill claimed that Malakian had already written all the songs prior to their collaboration and that Chmielinski contributed nothing before Hill’s arrival. There is no recording evidence supporting Chmielinski's assertion of working alone with Malakian before December 2002. Malakian denied Chmielinski's claim of ongoing collaboration post-studio recording, stating he had written the songs played during their jam sessions and directed both Chmielinski and Hill on performance. Hill noted Chmielinski struggled to remember Malakian's lyrics. The Jam Sessions Song is roughly one minute long, consisting of a repeated verse and chorus, with minimal differences between its Boom Box and Studio Recordings. Malakian asserted he created the first line of the chorus, while no lyrics from System of a Down's "B.Y.O.B." appear on either version of the Jam Sessions Song, aside from the opening guitar riff and a few elements created by Malakian. "B.Y.O.B." itself is over four minutes long. Malakian's account of the Jam Sessions Song's creation is deemed credible, whereas Chmielinski's testimony lacks corroboration beyond his handwritten lyric sheets, which he claims document the development of "B.Y.O.B." and other songs for the Scars On Broadway project. Chmielinski asserted he retained lyric sheets for use in album artwork, and Hill confirmed seeing him create these sheets during their collaboration. Hill also noted that Chmielinski frequently read from these sheets while recording, indicating he rarely performed without them. Chmielinski contended that one lyric sheet was seen by Hobgood before "B.Y.O.B." was commercially released and that he created it in December 2003, eight months after ending his relationship with Hobgood and seeking a restraining order against her. Chmielinski provided testimony that contradicted his earlier statements, claiming Hobgood could not have accessed the lyric sheet before the commercial release of "B.Y.O.B." Hobgood herself stated in her deposition that she had never seen the lyric sheet. Malakian began composing songs for the upcoming System of a Down album, including "B.Y.O.B." He completed the music for the song's introduction, verses, chorus, and bridge before presenting it to the band. Although he wrote the chorus lyrics, he had not yet developed any verse lyrics. During rehearsals, Malakian conveyed the song's meaning, which critiques the portrayal of war as a party and addresses class disparities in military enlistment. The band recorded an early version of "B.Y.O.B.," where Tankian scatted the unwritten verses while singing the chorus and bridge lyrics. Tankian later wrote the verse lyrics at his home studio, drawing inspiration from his pre-existing poetry, including lines from his journal that were adapted for the song. Notably, he incorporated themes and phrases from his poems into the lyrics of "B.Y.O.B." to express his views on the Iraq war and societal issues. Tankian's poetry journal records his writing process, documenting that the first poem used for the lyrics of "B.Y.O.B." was created between February 2, 2002, and October 10, 2003, while the second poem followed one written on December 22, 2003. He shared these lyrics with System of a Down during a rehearsal, bringing over 30-40 songs to the band for their album "Mezmerize," which included contributions primarily from Malakian. The band rehearsed more songs than they released, ultimately deciding to produce two albums due to the quality of the material. System of a Down has an exclusive co-publishing agreement with Sony/ATV Music Publishing, under which each member assigned 50% of their ownership interest in all songs created during the agreement's term to Sony/ATV. Consequently, Sony/ATV holds 50% legal ownership of the copyrights for all songs on "Mezmerize," which are further divided among the band members' publishing designees. "B.Y.O.B." was released as the lead single from "Mezmerize" in May 2005, which topped the Billboard 200 and sold between one to five million copies. The album "Hypnotize" followed six months later. The liner notes for "Mezmerize," approved by Malakian and Tankian, attribute the music of "B.Y.O.B." to Malakian and the lyrics to both Malakian and Tankian, validating their co-authorship. Royalties from songs are typically split into publisher's and writer's shares, with provisions allowing for the assignment of these rights, enabling non-writers to receive royalties. Upon the release of "Mezmerize," System of a Down agreed on a method to divide the writer's share of royalties among themselves. Tankian developed a detailed chart to establish the royalty splits for songs on the albums *Mezmerize* and *Hypnotize*, categorizing each song by lyrical and musical contributions, denoted by initials, and assigning a total of 100 points to determine the division of writer's royalties. The chart included a seventh column for royalty splits that did not align with the authorship percentages. The allocation of royalties did not affect authorship credits or copyright ownership. On May 16, 2005, Malakian and Tankian reviewed the chart, agreed on authorship percentages and royalty splits, and sent it to management for submission to Sony/ATV. For the song "B.Y.O.B.," Malakian was credited with all music and some lyrics, entitling him to 80% of the royalties, while Tankian received 20% for the verse lyrics. Malakian, as the sole author of several songs, voluntarily allocated a 5% royalty to Tankian. Additionally, he granted a 2% share of his royalties from "B.Y.O.B." to Chmielinski, despite not considering him an author or granting him copyright ownership. The chart accurately reflected authorship for all songs, and the management was responsible for conveying the royalty splits to Sony/ATV. On May 16, 2005, Tankian sent a chart to the band’s manager, believing it would accurately convey song authorship information to Sony/ATV for copyright registration and administration of the album Mezmerize. However, Braden Asher, an employee at System of a Down, misinterpreted the authorship percentages and did not relay Tankian's chart to Sony/ATV. Instead, he submitted standard forms that did not differentiate between actual songwriters and those entitled to royalties, leading to confusion. Sony/ATV registered songs such as "B.Y.O.B." and others with incorrect authorship percentages, attributing 78% of "B.Y.O.B." to Malakian and 20% to Tankian, with similar inaccuracies for other songs. The band members were unaware of these miscommunications because they did not see the submitted documents. Consequently, copyright registrations reflected these erroneous percentage allocations, affecting how the songs were represented to performing rights organizations and used for licensing. Label copy, generated from the song database, was finalized after the album's release but could be amended later, creating further potential for discrepancies. Sony/ATV's label copy included information from a song database based on forms submitted by Asher. After Asher sent these forms, Malakian discovered in a guitar magazine that Chmielinski was incorrectly listed as a co-author of "B.Y.O.B." Malakian informed his management to rectify this error, leading to System of a Down's attorney contacting Sony/ATV on February 16, 2006, to clarify that Chmielinski should not be credited as a writer. Miscommunication ensued, as Sony/ATV's witness Jeff Smarr misunderstood the instructions, leading to the erroneous classification of Chmielinski as a "silent writer" instead of removing him from the credits entirely. Despite multiple communications from System of a Down's attorney stating that Chmielinski was not an author, Sony/ATV's records in Nashville remained incorrect due to these miscommunications. In September and November 2006, letters from System of a Down's attorney confirming the situation were not forwarded to the copyright department, perpetuating the inaccuracies. Sony/ATV eventually corrected the copyright registration on October 30, 2008, acknowledging Malakian and Tankian as the sole authors. They also updated their internal records and informed relevant agencies of the changes. Although there were mistakes in handling credit and royalty information, it was established that Chmielinski was not an author but was entitled to a 2% royalty share as a gift from Malakian—a gift that was later revoked. Chmielinski was aware of this arrangement, having been informed by the band's management and confirming that his business manager was managing the royalty arrangements. On August 23, 2005, Malakian emailed Chmielinski regarding a gift of a 2% royalty interest in "B.Y.O.B." and expressed hope that Chmielinski had communicated this to the band's management for payment. Malakian later called to reaffirm the gift, to which Chmielinski expressed thanks. At trial, Chmielinski initially denied knowledge of the emails but later suggested he may have dictated responses to his wife. On February 21, 2006, attorney Robert Reynolds contacted System of a Down's manager, indicating that Chmielinski believed he deserved a higher percentage of the royalties, specifically 10%. Reynolds stated he would cease representation if evidence showed Chmielinski agreed to the 2% interest. A week later, Benveniste provided Reynolds prior correspondence confirming the 2% gift and Chmielinski's attempts to register this interest. In September 2006, Newman from Maxwood claimed Chmielinski asserted he was a 50% co-author of "B.Y.O.B." and entitled to copyright ownership. The credibility of Chmielinski's testimony regarding the song's authorship is questioned, as Malakian, Hill, and Tankian contradicted him. Chmielinski later produced handwritten lyric sheets he claimed to have written during collaborative sessions with Malakian, but these had not been shared previously. The only lyric sheet provided before was Exhibit 51, which he identified as the final version but was submitted to Maxwood after the song's release. The Studio Recording did not align with the lyrics or structure of Exhibit 51, further undermining Chmielinski's claims. Chmielinski testified that he and Malakian allegedly collaborated on the Jam Sessions song for an additional seven to eight months, claiming he created Exhibit 51 at the end of 2003. However, during cross-examination, Chmielinski's testimony regarding the timeline of the Studio Recording became inconsistent, leading to doubts about the date of Exhibit 51's creation. No witnesses saw Exhibit 51 before the commercial release of "B.Y.O.B," and Chmielinski's credibility was questioned due to significant shifts in his testimony. Chmielinski asserted that Exhibit 73 contained the lyrics to the Boom Box Recording, but it was found that nearly none of these lyrics matched the recording, with exceptions for lines written by Malakian. Similarly, he claimed that Exhibit 74 reflected the lyrics to the Studio Recording, but the majority of the lyrics did not match, again only aligning with Malakian's lines. The only recurring lyric from both recordings was "Why don't presidents fight the war," along with a few other non-"B.Y.O.B" phrases. Additionally, the authenticity of newly-discovered lyric sheets, claimed to represent ongoing work by Chmielinski and Malakian after the Studio Recording, was not substantiated. These sheets emerged after the discovery phase and contradicted the Complaint, raising credibility issues. No recordings correspond to these sheets, and no supporting evidence or witnesses were provided for their contemporaneous creation. Furthermore, it was noted that Chmielinski's sheets closely paraphrased distinctive lyrics from Tankian's poetry journals, which raised doubts about their originality. Exhibit 51 included a suggestion from producer Rick Rubin for a lyric change that was not reflected in the System Rehearsal Recording, indicating that some claimed lyrics might not have existed at the time Chmielinski created his sheets. Chmielinski is inferred to have created Exhibit 51 from the commercially released version of "B.Y.O.B.," but evidence indicates that the lyric sheets were fabricated post-Studio Recording, undermining Chmielinski's claims in the Complaint. The lyric sheets lack credibility as evidence of authorship. Testimony from Malakian, Hill, Tankian, and Dolmayan supports the conclusion that Malakian and Tankian are the sole authors of "B.Y.O.B.," as confirmed by liner notes and a contemporaneous chart from May 2005. Under the Copyright Act, a "joint work" requires contributions from multiple authors with the intention of merging their work. For co-authorship, one must make copyrightable contributions and both parties must intend to be co-authors. Each author has equal undivided copyright interest unless altered by a signed written agreement. Contributions are copyrightable if independently created and possess minimal creativity, with no requirement for equal contribution in quantity or quality. Courts consider various factors, including billing, creative control, and contractual rights, to determine ownership and authorship. Chmielinski was credited by Malakian as a gift, indicating the nature of their relationship regarding authorship. No communication exists between Malakian and Chmielinski indicating a shared ownership of the work. Chmielinski's designation as an "author" on two copyright registrations was confirmed as a factual error, which has since been rectified. This error was also reflected in the final label copy of an album. Evidence, including communications from Chmielinski's representatives and the officially released sheet music, establishes that all components of the Jam Sessions Song incorporated into "B.Y.O.B." were solely written by Malakian. The remaining parts of "B.Y.O.B." were collaboratively written by Malakian and Tankian prior to and during the rehearsal for the albums "Mezmerize" and "Hypnotize." Malakian adapted a portion of the Jam Sessions Song for the bridge of "B.Y.O.B." and followed his usual songwriting methods for the rest. Testimonies from Malakian, Tankian, and Dolmayan, along with rehearsal recordings, confirm that Tankian authored the verse lyrics for "B.Y.O.B." consistent with his established songwriting practice. Consequently, Chmielinski's claim for a declaratory judgment as co-author of "B.Y.O.B." is denied. Furthermore, the phrases "communist nation" and "computer nation" do not qualify for copyright protection. The party claiming joint authorship must demonstrate independent copyrightable contributions to the work. Malakian's decision to grant Chmielinski a 2% royalty was based on his belief that Chmielinski contributed the unprotectable phrase "communist nation" during the studio recording, while Chmielinski asserted he said "computer nation." Both phrases lack the originality necessary for copyright protection, as confirmed by legal precedents stating that single words or short phrases do not meet the required creativity threshold. Additionally, minor contributions or suggestions do not suffice for establishing joint authorship. Chmielinski's minimal influence on Malakian's use of the phrase "fascist nation" in "B.Y.O.B." does not qualify as an independently copyrightable contribution. To establish joint authorship, there must be mutual intent, as supported by case law, including Childress and Thomson, which emphasize that significant contributions alone do not grant co-author status. Malakian's retained control over the project's content suggests no intention to jointly author with Chmielinski. Evidence indicates that Chmielinski did not contribute to the creation of "B.Y.O.B." and was not regarded as a co-author by Malakian. Malakian had sole control over the jam sessions, and all songs played were written by him. The liner notes of Mezmerize attribute authorship exclusively to Malakian and Tankian, reflecting their intention of individual authorship. Chmielinski's lack of objection to these credits for over a year, along with his exclusive songwriter agreement with EMI Music Publishing—which required him to deliver any co-written songs—reinforces his claim of not being a co-author of "B.Y.O.B." Any mistakes made regarding his authorship status do not constitute admissions of joint authorship. Chmielinski was mistakenly credited with a 2% interest in the song rather than a 50% share, and errors in copyright registration can be corrected without invalidating the copyright. Federal regulations allow for supplementary registrations to correct or enhance information from the original registration, as long as the error was not one that the Copyright Office should have recognized. Evidence in a supplemental registration can rebut any presumptions from the original registration. Maxwood did not prove that Chmielinski was intended to be a joint author. Consequently, the court will dismiss Maxwood's claims and affirm that the defendants are the sole authors of the song "B.Y.O.B." as released by System of a Down. Judgment will be entered on notice.