Case 1:16-cv-07585-ER Document 49 Filed 05/15/17 Page 1 of 17

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

LAZAR LAKIC, Case No. 16-cv-07585 (ER)

Plaintiffs,

- against -

ANTON MATSULEVICH p/k/a TONY FADD;

WILLIE MAXWELL p/k/a FETTY WAP;
GOODFELLA4LIFE ENT LIMITED LIABILITY
COMPANY; BMG RIGHTS MANAGEMENT (US)
LLC; THEORY ENTERTAINMENT LLC a/k/a 300
ENTERTAINMENT; SONY/ATV MUSIC
PUBLISHING LLC; and ATLANTIC
RECORDING CORP.,

Defendants.

MEMORANDUM OF LAW OF BMG RIGHTS MANAGEMENT (US) LLC IN

SUPPORT OF MOTION TO DISMISS PLAINTIFFS FIRST AMENDED COMPLAINT

MANATT, PHELPS & PHILLIPS, LLP

7 Times Square
New York, NY 10036
(212) 790-4500

Attorneys for Defendant BMG Rights Management (US) LLC

 Case 1:16-cv-07585-ER Document 49 Filed 05/15/17 Page 2 of 17

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT ................................................................................................... 1

FACTUAL BACKGROUND ........................................................................................................ 2
ARGUMENT ................................................................................................................................. 7
I. THE COURT SHOULD DISMISS PLAINTIFFS LAWSUIT PURSUANT TO
RULE 12(B)(1) BECAUSE HE LACKS STANDING TO BRING SUIT ON HIS
PURPORTED COPYRIGHT CLAIM .............................................................................. 7
A. Plaintiff Does Not Have Standing Because He Is Not A Party To The
Fadd-Mensberg Agreement, And, Therefore, Did Not Acquire Any Rights
In The Beat ............................................................................................................. 9
B. Plaintiffs Agency Theory Does Not Establish Standing Because It Has No
Good Faith Legal Or Factual Basis ........................................................................ 9
C. The Mensberg-Lakic Assignment Does Not Confer Standing On Plaintiff
Because The Anti-Assignment And Termination Provisions In The Fadd-
Mensberg Agreement Render The Purported Assignment A Nullity .................. 11
II. THE COURT SHOULD ALSO DISMISS PLAINTIFFS LAWSUIT
PURSUANT TO RULE 12(B)(6) BECAUSE HE IS UNABLE TO ALLEGE A
VIABLE COPYRIGHT INFRINGEMENT CLAIM ...................................................... 12
CONCLUSION ............................................................................................................................ 13

-i-
 Case 1:16-cv-07585-ER Document 49 Filed 05/15/17 Page 3 of 17
TABLE OF AUTHORITIES

Page

CASES
Advanced Video Techs., LLC v. HTC Corp.,
103 F. Supp. 3d 409 (S.D.N.Y. 2015)........................................................................................8
Allhusen v. Caristo Constr. Corp.,
303 N.Y. 446 (1952) ................................................................................................................12
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .................................................................................................................12
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) .................................................................................................................12
Bender v. Williamsport Area Sch. Dist.,
475 U.S. 534 (1986) ...................................................................................................................8
C.U. Annuity Serv. Corp. v. Young,
281 A.D.2d 292 (1st Dept. 2001).............................................................................................11
Davis v. Blige,
505 F.3d 90 (2d Cir. 2007).........................................................................................................3
Dio v. Intl Creative Mgmt., Inc.,
No. 85 Civ. 8867, 1986 WL 7546 (S.D.N.Y. June 30, 1986) ..............................................5, 11
Eden Toys, Inc. v. Florelee Undergarment Co., Inc.,
697 F.2d 27 (2d Cir.1982)......................................................................................................8, 9
Edgreen v. Learjet Corp.,
180 A.D.2d 562 (1st Dept. 1992).............................................................................................10
EMI Entmt World, Inc. v. Karen Records, Inc.,
No. 05 Civ. 390 (LAP), 2013 WL 2480212 (S.D.N.Y. June 10, 2013).....................................7
Feist Publ'ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340 (1991) .................................................................................................................12
Gelfman Intl Enters. v. Miami Sun Intl Corp.,
No. 05-CV-3826 (CPS)(RML), 2009 WL 2242331 (E.D.N.Y. July 27, 2009)...................6, 11
Gibbs v. Buck,
307 U.S. 66 (1939) .....................................................................................................................8
Greenfield v. Philles Records,
98 N.Y.2d 562 (2002) ..............................................................................................................10
In re Best Film & Video Corp.,
46 B.R. 861 (Bankr. E.D.N.Y. 1985) ...................................................................................7, 11
Kashfi v. Phibro-Salomon, Inc.,
628 F. Supp. 727 (S.D.N.Y. 1986) ..........................................................................................10
Kwan v. Schlein,
634 F.3d 224 (2d Cir. 2011).....................................................................................................12

-ii-
 Case 1:16-cv-07585-ER Document 49 Filed 05/15/17 Page 4 of 17
TABLE OF AUTHORITIES
(continued)
Page

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ...................................................................................................................8
Makarova v. United States,
201 F.3d 110 (2d Cir. 2000)...................................................................................................7, 8
Medina v. Bauer,
No. 02 Civ. 8837, 2004 WL 136636 (S.D.N.Y. Jan. 27, 2004) (Chin, J.) .................................8
Plunket v. Doyle,
No. 99 Civ. 11006 (KMW), 2001 WL 175252 (S.D.N.Y. Feb. 22, 2001) ............................8, 9
Rowe v. William Morris Agency, Inc.,
No. 98 Civ. 8272 (RPP), 2000 WL 896929 (S.D.N.Y. July 6, 2000) ..................................6, 11
Scelsa v. City Univ. of New York,
76 F.3d 37 (2d Cir. 1996)...........................................................................................................8
Schron v. Troutman Sanders LLP,
20 N.Y.3d 430 (2013) ..........................................................................................................9, 10
STATUTES
17 U.S.C. 205(e) ...........................................................................................................................2
Copyright Act 501(b) ................................................................................................................8, 9
RULES
Fed. R. of Civ. P. 12(b)(1) .......................................................................................................1, 7, 3
Fed. R. of Civ. P. 12(b)(6) ...................................................................................................1, 12, 13

-iii-
 Case 1:16-cv-07585-ER Document 49 Filed 05/15/17 Page 5 of 17

Defendant BMG Rights Management (US) LLC (BMG) respectfully submits this

memorandum of law in support of its motion to dismiss Plaintiff Lazar Lakics (Plaintiff) First

Amended Complaint (FAC) pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil

Procedure (respectively, Rule 12(b)(1) and Rule 12(b)(6)), and joins in the motion of

Defendant Anton Matsulevich p/k/a Tony Fadd (Fadd) filed today (the Fadd Motion).

PRELIMINARY STATEMENT

Plaintiffs lawsuit is a misguided attempt to profit from a musical work in which he owns

no rights. Plaintiff claims to have acquired exclusive rights to the musical beat Hello (the

Beat) that later became part of the hit song Trap Queen, yet he is a stranger to the agreement

granting such rights. The sole parties to that agreement are Fadd, the Beats creator, and a third

party, Sren Mensberg (Mensberg), who paid for and took all rights in his own name without

any reference to Plaintiff (the Fadd-Mensberg Agreement). Aware of the roadblock that the

Fadd-Mensberg Agreement creates for his claim, Plaintiff tries to make an end-run around it by

alleging in wholly conclusory terms and contrary to the agreements plain language that

Mensberg entered into the agreement as Plaintiffs agent. Plaintiff posits this theory to distract

from the agreements terms, and the fact that Mensberg purported to assign to Plaintiff (the

Mensberg-Lakic Assignment) in violation of an anti-assignment clause in the Fadd-

Mensberg Agreement, which caused the agreement to terminate the rights that Mensberg had

obtained from Fadd. Plaintiffs supposed rights in the Beat are a fiction. The Court must

dismiss his lawsuit with prejudice.

First, because Plaintiff is not a party to the Fadd-Mensberg Agreement, he does not hold

any rights in the Beat. Second, Plaintiffs theory that he acquired the rights conferred by the

Fadd-Mensberg Agreement in the first instance because Mensberg was his duly authorized
 Case 1:16-cv-07585-ER Document 49 Filed 05/15/17 Page 6 of 17

agent (FAC 26) is frivolous because the theory is (i) flatly contradicted by the agreement

itself; (ii) foreclosed by the parol evidence rule; (iii) belied by the correspondence upon which

Plaintiff relies; (iv) unsupported by any allegations or documentation showing that the scope of

Mensbergs purported agency included the acquisition of intellectual property rights that would

belong to Plaintiff; and (v) wholly inconsistent with the Mensberg-Lakic Assignment, which

would not have been necessary had Mensberg entered into the agreement on Plaintiffs behalf.

Third, the Mensberg-Lakic Assignment was ineffective, and, therefore, did not convey any rights

in the Beat to Plaintiff, because it violated an express anti-assignment clause in the Fadd-

Mensberg Agreement, and, in turn, triggered the agreements automatic termination provision. 1

Plaintiff, thus, does not own the copyright and is not an exclusive licensee of any rights in

the Beat, and, as such, lacks standing to pursue and is unable to state a copyright infringement

claim. The Court should dismiss his lawsuit for lack of subject matter jurisdiction and failure to

state a claim.

FACTUAL BACKGROUND

The Fadd-Robinson Agreement and the Fadd-Mensberg Agreement

On or about January 13, 2014, Frank Robinson, a principal of Defendant Goodfella4life

Ent Limited Liability Company d/b/a RGF Productions (RGF), Defendant Willie Maxwells

p/k/a Fetty Wap (Maxwell) production company, obtained the non-exclusive right to use the

Beat pursuant to a so-called Premium Rights Agreement with Fadd (the Fadd-Robinson

Agreement). See Accompanying Declaration of Robert A. Jacobs executed on May 15, 2017

(Jacobs Decl.) 2, Exh. 1; FAC 36. On June 14, 2014, Fadd and Mensberg entered into the

Fadd-Mensberg Agreement which they described as the Exclusive Rights Agreement under

1
The priority rules in 17 U.S.C. 205(e) also bar Plaintiffs claim for the reasons set forth in the Fadd Motion.

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which Mensberg obtained the exclusive rights to use the Beat. 2 See Jacobs Decl. 3, Exh. 2;

FAC 26. Although the latter agreement provides that it is effective beginning [February 9,

2014], the correspondence annexed to the FAC indicates that the parties did not enter into the

agreement until June 14, 2014. See FAC, Exh. C at 3.

Notwithstanding Plaintiffs attempt to characterize the Fadd-Robinson Agreement as an

exclusive license (see FAC 36), its provisions standing alone and in comparison with the

Fadd-Mensberg Agreement demonstrate that it is non-exclusive. Apart from the significant

differences in the titles of and fees imposed by the Fadd-Robinson Agreement and the Fadd-

Mensberg Agreement ($49.99 versus $900.00), the former agreement does not restrict in any

manner Fadds right to grant additional licenses for the use of the Beat. In contrast, the Fadd-

Mensberg Agreement expressly provides that the the rights that are being granted to the Buyer

. . . are exclusive and that the Seller will have . . . no authority and no right to issue other parties

the right to use the Original Instrumental Composition that is being licensed in this agreement.

See Fadd-Mensberg Agreement 2.1. Thus, Plaintiffs attempt to characterize the Fadd-

Robinson Agreement as an exclusive license is baseless. 3

So, too, is Plaintiffs theory that he acquired the rights conferred by the Fadd-Mensberg

Agreement because Mensberg entered into the agreement on his behalf. See FAC 26. First,

the Fadd-Mensberg Agreement itself vitiates Plaintiffs agency theory because it (i) confirms that

2
Even though Plaintiff bases his lawsuit on and repeatedly references the Fadd-Mensberg Agreement (see FAC
25-33), he did not attach a copy of it to the FAC, but did attach a copy of the Fadd-Robinson Agreement.
3
The fact that paragraph 2.1 of the Fadd-Robinson Agreement states that the grantee will have the exclusive right
to exploit the Beat in whatever derivative work the grantee prepares does not alter this conclusion because (i) this
and the other provisions in the agreement do not purport to limit Fadds rights to issue subsequent licenses for the
Beat; and (ii) the right recognized in the provision accords with and is no greater than the rights that the copyright
laws normally vest in creators of licensed derivative works. See Davis v. Blige, 505 F.3d 90, 99 (2d Cir. 2007)
(non-exclusive licenses . . . permit licensees to use the copyrighted material and may be granted to multiple
licensees, while exclusive licenses . . . grant to the licensee the exclusive right . . . to use the copyrighted material
in a manner as specified by the license agreement.).

3
 Case 1:16-cv-07585-ER Document 49 Filed 05/15/17 Page 8 of 17

Mensberg is Fadds sole counter-party; (ii) contains no reference whatsoever to Plaintiff; (iii)

defines Mensberg as the Buyer; (iv) refers to Mensberg as the licensee; (v) only grants rights

to Mensberg; (vi) prohibits Mensberg from assign[ing] . . . or transfer[ing] . . . the [Beat] or . . .

rights [in the Beat] to another user . . . without written consent and or another license agreement

[from Fadd]; (vii) states that Mensberg is the sole owner of the music referred to in th[e]

agreement; (viii) provides that the agreement is intended for user registered as soren@vuf-

empire.dk; (ix) reflects that Mensberg himself made the Payment called for under the

agreement; (x) shows that Mensberg signed the agreement in his individual capacity, not on

Plaintiffs behalf; and (xi) directs that Mensberg must comply with every aspect of [the]

Agreement or [it] will be terminated. See Fadd-Mensberg Agreement, first and last sentences &

1.2, 1.3, 1.5, 2.1, 2.2, 3.2, 3.3. These provisions, individually and collectively, demonstrate

that Plaintiffs agency theory has no basis in reality.

Second, the emails that Plaintiff attaches to the FAC to substantiate his purported agency

theory are of no help to him. See FAC 26, Exh. B. As an initial matter, the parol evidence rule

bars Plaintiff from using the emails for this purpose because, as demonstrated in the preceding

paragraph, the Fadd-Mensberg Agreement, which Mensberg and Fadd signed after their email

exchange, flatly contradicts his agency theory. See also, infra, at 10-11. The Court need not and

should not consider the emails for this reason alone.

Further, even if the Court were to consider the emails (and it should not), they offer no

support for Plaintiffs agency theory. They reflect that, on February 7, 2014, two days before the

Fadd-Mensberg Agreement was formed, Mensberg sent Fadd an email stating that I wanna buy

[the Beat], and that [i]ts for one of my clients, a Danish rap artist. See FAC, Exh. B at 2

(emphasis added). Later that day, Mensberg wrote Fadd again to ask for a reduction in the price

4
 Case 1:16-cv-07585-ER Document 49 Filed 05/15/17 Page 9 of 17

that Fadd had quoted for the Beat in light of a tight budget for this album, indicating that

Mensberg was looking to acquire the Beat for the unnamed artist to use on an album he was to

record. See id. On February 9, 2014, after coming to an agreement on the purchase price,

Mensberg sent Fadd an email asking him to send me [the] purchase on paypal at the email

address soren@vuf-empire.dk, and another email confirming that I just completed the

payment, and requesting that Fadd send everything I need. Track outs, rights and so on. See

FAC, Exh. B at 3-4. Thus, at most, these emails show that Mensberg purchased the Beat so that

an unnamed artist could use it on an album he was recording. Nothing in the emails suggests

that Mensberg intended or told Fadd or that Fadd had any reason to suspect that Plaintiff or

anyone other than Mensberg would own the rights in the Beat. To the contrary, the emails

negate any such suggestion because they confirm that Mensberg (i) referred to himself as the

buyer; (ii) paid for the Beat himself; and (iii) sought for himself documentation of the rights he

had acquired. The emails, therefore, fail to establish that Mensberg disclosed that Plaintiff

would acquire the rights conveyed by the Fadd-Mensberg Agreement, or that Fadd and

Mensberg intended that he would. Plaintiffs agency theory fails for this reason also.

Third, the FAC is devoid of any allegations or documentation showing that Plaintiff and

Mensberg have a general agency relationship for all legal purposes, or that any purported agency

relationship they may have includes the authority to acquire intellectual property rights that

would belong to Plaintiff. Instead, Mensbergs booking agent position, see FAC, Exh. B at 1,

militates against any such conclusion because the role of booking agents is limited to arranging

live performances for their artists, see Dio v. Intl Creative Mgmt., Inc., No. 85 Civ. 8867, 1986

WL 7546, at *8 (S.D.N.Y. June 30, 1986) (Booking agents deal with entities who act as

promoters, who rent the halls, handle ticket sales and otherwise promote concerts by artists

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such as plaintiff.); see also Rowe v. William Morris Agency, Inc., No. 98 Civ. 8272 (RPP), 2000

WL 896929 (S.D.N.Y. July 6, 2000) (discussing the role of music industry booking agents), and,

as such, is insufficient as a matter of law to establish the broader agency relationship that

Plaintiff claims. See Gelfman Intl Enters. v. Miami Sun Intl Corp., No. 05-CV-3826

(CPS)(RML), 2009 WL 2242331, at *1 n.5 (E.D.N.Y. July 27, 2009) (the fact that co-defendant

was choir leaders booking agent is insufficient to establish that [she] was [choir leaders] agent

for legal purposes). Plaintiffs agency theory must be rejected for this reason too.

Mensbergs And Plaintiffs Filings With The U.S. Copyright Office

On April 27, 2015, approximately 13 months after the initial release of the Trap Queen

recording and nearly 9 months after the initial release of a video embodying the recording, see

http://www.billboard.com/articles/columns/the-juice/6524215/inside-fetty-wap-trap-queen-lyor-

cohen-300; https://www.youtube.com/watch?v=i_kF4zLNKio, Mensberg recorded the Fadd-

Mensberg Agreement with U.S. Copyright Office. See Jacobs Decl. 4, Exh. 3. Plaintiff

admittedly had actual notice of Trap Queens use of the Beat as of that date. See FAC 47. The

recordation information maintained by the U.S. Copyright Office lists Fadd and Mensberg as the

sole parties to the agreement, and does not mention Plaintiff. See Jacobs Decl., Exh. 3.

On August 27, 2015, Plaintiff obtained a copyright registration for the recording of the

Beat and the musical composition it embodies. See id. 5, Exh. 4. On September 29, 2015, for

reasons that Plaintiff has never attempted to explain, his attorney, Robert Clarida, expressly

acting as the Duly authorized agent of Soren Mensberg, recorded the Fadd-Mensberg

Agreement with the U.S. Copyright Office for a second time. See id. 6, Exh. 5; FAC 28.

The Mensberg-Lakic Assignment

On December 1, 2015, Mensberg and Plaintiff executed and had notarized the Mensberg-

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Lakic Assignment, which they refer to as a Confirmatory Copyright Assignment. See Jacobs

Decl. 7, Exh. 6. In the document, Mensberg, among other things, expressly confirms that as

of February 9, 2014 [(the date of the Fadd-Mensberg Agreement)], he assigned to [Plaintiff] all

worldwide statutory and common law right, title and interest in and to [the Beat], including

exclusive rights therein under title 17 U.S. Code, that [Mensberg] ever acquired. See id. The

purported assignment was a nullity because it violated the anti-assignment clause in paragraph

2.2 of the Fadd-Mensberg Agreement, 4 and caused the agreement to terminate in accordance

with paragraph 3.3. See id.

Separate and apart from the above issues, the Mensberg-Lakic Assignment belies

Plaintiffs agency theory. Had Mensberg entered into the Fadd-Mensberg Agreement on

Plaintiffs behalf as Plaintiff alleges (and Mensberg did not), Plaintiff would have acquired the

rights conferred by the agreement in the first instance, and would not have needed Mensberg to

assign the rights to him. See, e.g., In re Best Film & Video Corp., 46 B.R. 861, 876 (Bankr.

E.D.N.Y. 1985) (disclosed principal to contract is the proper party to enforce the contract).

ARGUMENT

I. THE COURT SHOULD DISMISS PLAINTIFFS LAWSUIT

PURSUANT TO RULE 12(B)(1) BECAUSE HE LACKS STANDING
TO BRING SUIT ON HIS PURPORTED COPYRIGHT CLAIM

A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)

when the district court lacks the statutory or constitutional power to adjudicate it. Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000). A claim that a party lacks standing to bring

suit is an attack on a courts subject matter jurisdiction over that party. EMI Entmt World, Inc.

v. Karen Records, Inc., No. 05 Civ. 390 (LAP), 2013 WL 2480212, at *2 (S.D.N.Y. June 10,

4
Plaintiff does not allege nor can he that Mensberg obtained Fadds written consent for the assignment or
another license agreement from Fadd vesting rights in Plaintiff.

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 Case 1:16-cv-07585-ER Document 49 Filed 05/15/17 Page 12 of 17

2013) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541-42 (1986)). Lack of

standing of the party bringing suit would result in a lack of jurisdiction of the Court to hear the

matter and would require a dismissal of the action. Id. (citing Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61 (1992)) (other citation omitted). As the party seeking to invoke the

subject matter jurisdiction of the district court, the plaintiff bears the burden of demonstrating

that there is subject matter jurisdiction in the case. Medina v. Bauer, No. 02 Civ. 8837, 2004

WL 136636, at *2 (S.D.N.Y. Jan. 27, 2004) (Chin, J.) (quoting Scelsa v. City Univ. of New York,

76 F.3d 37, 40 (2d Cir. 1996)).

In ruling on a motion to dismiss pursuant Rule 12(b)(1), the Court need not confine

itself to the allegations in the pleadings or accept them as true. [The C]ourt may instead refer to

documents and evidence outside the pleadings in ruling on the motion. Advanced Video Techs.,

LLC v. HTC Corp., 103 F. Supp. 3d 409, 415 (S.D.N.Y. 2015) (citing Makarova, 201 F.3d at

112). And even when there are disputed issues of fact, the district court is empowered to

resolve them in the manner it sees fit. Id. (citing Gibbs v. Buck, 307 U.S. 66, 71-72 (1939))

(other citation omitted).

Section 501(b) of the Copyright Act, which governs the standing inquiry in the copyright

infringement context, provides that [t]he legal or beneficial owner of an exclusive right under a

copyright is entitled . . . to institute an action for any infringement of that particular right

committed while he or she is the owner of it. 17 U.S.C. 501(b). The Second Circuit has

interpreted 501(b) to limit standing to two types of claimants: (1) owners of copyrights, and

(2) persons who have been granted exclusive licenses by owners of copyrights. Plunket v.

Doyle, No. 99 Civ. 11006 (KMW), 2001 WL 175252, at *5 (S.D.N.Y. Feb. 22, 2001) (quoting

Eden Toys, Inc. v. Florelee Undergarment Co., Inc., 697 F.2d 27, 32 (2d Cir.1982)). As we now

8
 Case 1:16-cv-07585-ER Document 49 Filed 05/15/17 Page 13 of 17

demonstrate, Plaintiffs copyright infringement claim must be dismissed with prejudice for lack

of subject matter jurisdiction because he does not meet these standing requirements.

A. Plaintiff Does Not Have Standing Because He Is Not

A Party To The Fadd-Mensberg Agreement, And,
Therefore, Did Not Acquire Any Rights In The Beat

Plaintiff does not and cannot base his standing to sue on having an ownership interest in

the copyright for the Beat because paragraph 3.2 of the Fadd-Mensberg Agreement confirms that

Fadd retained ownership of the copyright. Instead, Plaintiff purports to have standing on the

theory that he is an exclusive licensee of rights in the Beat under the Fadd-Mensberg Agreement.

See FAC 26. However, as the Fadd-Mensberg Agreement makes clear on its face, and as

explained in detail on pages 1 through 4 above, Plaintiff is not a party to the agreement, and,

therefore, cannot be an exclusive licensee under it. Accordingly, Plaintiff has no basis to assert

standing under the Copyright Act. See Plunket, 2001 WL 175252, at *5 (quoting Eden Toys,

Inc., 697 F.2d at 32); 17 U.S.C. 501(b).

B. Plaintiffs Agency Theory Does Not Establish Standing

Because It Has No Good Faith Legal Or Factual Basis

Plaintiff alleges that he holds the exclusive rights in the Beat under the Fadd-Mensberg

Agreement because Mensberg supposedly entered into this agreement as Plaintiffs duly

authorized agent. See FAC 26. Plaintiffs agency theory has no foundation whatsoever.

First, as detailed on pages 3 and 4 above, multiple provisions in the Fadd-Mensberg

Agreement confirm that Mensberg entered into the agreement on his own behalf, not as

Plaintiffs agent. Plaintiffs reliance on unsupported agency allegations in the face of those

provisions fails as a matter of law because it violates the most basic principles of contract

interpretation. See, e.g., Schron v. Troutman Sanders LLP, 20 N.Y.3d 430 (2013) (written

agreements are construed in accordance with the parties intent and [t]he best evidence of what

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 Case 1:16-cv-07585-ER Document 49 Filed 05/15/17 Page 14 of 17

parties to a written agreement intend is what they say in their writing) (quoting Greenfield v.

Philles Records, 98 N.Y.2d 562, 569 (2002)).

Second, the parol evidence rule prohibits Plaintiff from using the emails attached to the

FAC (or anything else outside of the Fadd-Mensberg Agreement) to demonstrate that he, not

Mensberg, is the counter-party party to the agreement. Where, as here, the parties have reduced

their agreement to a writing, the parol evidence rule operates to exclude evidence of any prior or

contemporaneous oral agreement which contradicts, varies, or adds to the terms of the written

agreement. Kashfi v. Phibro-Salomon, Inc., 628 F. Supp. 727, 732 (S.D.N.Y. 1986); see also

Schron, 20 N.Y.3d at 433 (This rule gives stability to commercial transactions by safeguarding

against fraudulent claims, perjury, death of witnesses, infirmity of memory and the fear that the

jury will improperly evaluate the extrinsic evidence.) (internal alterations, quotations & citation

omitted). Thus, in circumstances in which the identity of the parties to a contract and the

obligations contained therein are unambiguous, parol evidence may not be offered to modify or

contradict the terms of the writing. Edgreen v. Learjet Corp., 180 A.D.2d 562, 563 (1st Dept.

1992) (citations omitted); accord Kashfi, 628 F. Supp. at 732 (Parol evidence cannot be

introduced to contradict an essential term of the contract, . . . and in this instance, the identity of

the parties is an essential term.) (citation omitted). The Court, therefore, should not consider

any such evidence in evaluating Plaintiffs agency theory.

Third, even if the Court were to consider Plaintiffs extrinsic evidence (and it should not),

the evidence is of no help to him. As discussed on pages 4 and 5 above, the emails that Plaintiff

proffers do not establish that Mensberg disclosed that Plaintiff would acquire the rights conveyed

by the Fadd-Mensberg Agreement, or that Fadd and Mensberg intended that he would. To the

contrary, they undermine Plaintiffs agency theory because they indicate that Mensberg entered

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 Case 1:16-cv-07585-ER Document 49 Filed 05/15/17 Page 15 of 17

into the transaction solely on his own behalf.

Fourth, Plaintiffs wholly conclusory agency allegations are insufficient to establish that

Mensberg acted as his agent for legal purposes, let alone for the purpose of acquiring intellectual

property rights. As set forth on pages 4 and 5 above, at most, Plaintiffs allegations and

referenced correspondence indicate that Mensberg acts as his booking agent. However, such a

position does not make Mensberg an agent for legal purposes, see Gelfman Intl Enters., 2009

WL 2242331, at *1 n.5, or involve rights acquisitions for represented artists. See Rowe, 2000

WL 896929; Dio, 1986 WL 7546, at *8.

Fifth, the Mensberg-Lakic Assignment belies Plaintiffs agency theory. As discussed on

pages 6 and 7 above, if, in fact, Mensberg had entered into the Fadd-Mensberg Agreement on

Plaintiffs behalf, then Plaintiff and Mensberg would not have had any reason to enter into the

assignment. See In re Best Film & Video Corp., 46 B.R. at 876.

For all of the above reasons, Plaintiffs agency theory is groundless. It must be rejected.

C. The Mensberg-Lakic Assignment Does Not Confer Standing On

Plaintiff Because The Anti-Assignment And Termination Provisions In The
Fadd-Mensberg Agreement Render The Purported Assignment A Nullity

As discussed on pages 6 and 7 above, Mensberg purported to assign to Plaintiff as of the

date that Mensberg entered into the Fadd-Mensberg Agreement all of the rights that Mensberg

had received under the agreement. See Mensberg-Lakic Assignment at 1. However, the Fadd-

Mensberg Agreement expressly prohibits Mensberg from assigning his rights, and states that any

violation of the agreements anti-assignment clause (or any other term) would automatically

cause the agreement to terminate. See Fadd-Mensberg Agreement 2.2, 3.3. The fact that the

Fadd-Mensberg Agreement not only bars assignments, but also provides that any assignment

triggers the agreements termination leaves no doubt that Mensberg was powerless to assign the

rights he received from Fadd. See C.U. Annuity Serv. Corp. v. Young, 281 A.D.2d 292 (1st Dept.

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2001) (assignment was ineffective in light of parties anti-assignment clause, which makes clear

that purported assignor agreed that he would refrain from making an assignment [and] was

powerless to do so); see also Allhusen v. Caristo Constr. Corp., 303 N.Y. 446, 452 (1952) (We

have now before us a clause embodying clear, definite and appropriate language, which may be

construed in no other way but that any attempted assignment of either the contract or any rights

created thereunder shall be void as against the obligor. One would have to do violence to the

language here employed to hold that it is merely an agreement by the subcontractor not to

assign.). Therefore, the Mensberg-Lakic Assignment was a nullity. Accordingly, it could not

and did not confer standing on Plaintiff.

II. THE COURT SHOULD ALSO DISMISS PLAINTIFFS LAWSUIT

PURSUANT TO RULE 12(B)(6) BECAUSE HE IS UNABLE TO
ALLEGE A VIABLE COPYRIGHT INFRINGEMENT CLAIM

To maintain an action for [copyright] infringement, a plaintiff must establish (1)

ownership of a valid copyright, and (2) copying of constituent elements of the work that are

original. Kwan v. Schlein, 634 F.3d 224, 229 (2d Cir. 2011) (quoting Feist Publ'ns, Inc. v.

Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). For all of the reasons set forth in Parts I.A

through C above and in the Fadd Motion, the latter of which BMG incorporates by reference as if

fully set forth herein, Plaintiff does not own the copyright and is not an exclusive licensee of any

rights in the Beat, and, therefore, cannot meet his burden as to the threshold ownership element

of his purported copyright infringement claim. Because Plaintiff cannot meet his burden of

proof on at least one of the mandatory elements of a copyright infringement claim, his lawsuit

must be dismissed pursuant to Rule 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (to

survive a Rule 12(b)(6) motion, the complaint must establish that the requested relief is

plausible on its face i.e., that the pleaded factual content allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged); Bell Atl. Corp. v.

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 Case 1:16-cv-07585-ER Document 49 Filed 05/15/17 Page 17 of 17

Twombly, 550 U.S. 544, 555 (2007) (the allegations in the complaint must be enough to raise a

right of relief above the speculative level to survive a Rule 12(b)(6) motion).

CONCLUSION

For all of the reasons above and in the Fadd Motion, Defendants respectfully request that

the Court dismiss Plaintiffs lawsuit with prejudice pursuant to Rules 12(b)(1) and (6).

Dated: New York, New York Respectfully submitted,

May 15, 2017
MANATT, PHELPS & PHILLIPS, LLP

By: /s/ Robert A. Jacobs

Robert A. Jacobs
7 Times Square
New York, NY 10036
Telephone: (212) 790-4500
Facsimile: (212) 790-4545
E-Mail: rjacobs@manatt.com

Attorneys for Defendant BMG Rights

Management (US) LLC

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