MEMORANDUM OPINION & ORDER Plaintiff Juan Catala, d/b/a Majic Entertainment LLC (“Majic”), d/b/a Adrawn Music Publishing (collectively, “Catala”) brings this action against Defendant Hyuk Shin; Defendants Joombas Co. LTD., Joombas Music Int’l, Joombas LLC, and Joombas Music Group (collectively, the “Joombas Defendants”); and the LA Reid Music Publishing Company, LLC (“Reid”), EMI April Music Inc. (“EMI”), and Sony/ATV Songs LLC (“Sony”) (collectively, the “Reid Defendants”). The Complaint asserts claims for breach of contract, breach of fiduciary duty, fraud, tortious interference with contractual relations, violation of the Copyright Act, and for an accounting. (Cmplt. (Dkt. No. 1)
35-112) Shin, the Joombas Defendants, and the Reid Defendants moved to dismiss the Complaint. (Dkt. Nos. 50, 67) On September 23, 2019, this Court granted the motions to dismiss submitted by the Joombas Defendants and the Reid Defendants. This Court granted in part and denied in part Shin’s motion to dismiss. (Sept. 23, 2019 Order (Dkt. No. 80)) On April 30, 2022, Catala moved for summary judgment on his remaining claim against Shin (Pltf. Mot. (Dkt. No. 145)), and Shin cross-moved for summary judgment on May 2, 2022. (Shin Mot. (Dkt. No. 155)) Catala has also moved to strike Shin’s affirmative defenses. (See Pltf. Br. (Dkt. No. 152) at 19-25)1 For the reasons stated below, Plaintiff’s motion for summary judgment will be denied, and Defendant Shin’s motion for summary judgment will be granted. Plaintiff’s motion to strike Defendant’s affirmative defenses will be denied as moot. BACKGROUND I. FACTS2 A. The Parties and the Co-Publishing Agreements Shin is a musician and executive producer (Pltf. Subm., Ex. 11 (“Shin Dep.”) (Dkt. No. 146-1) at 14-15) Juan Catala is a music producer, and he owned Majic and was its sole employee. Majic is now defunct. (Pltf. Subm., Ex. 12 (“Catala Dep.”) (Dkt. No. 146-2) at 58-63, 196) Juan Catala and Shin met in approximately 2008 or 2009. (Pltf. R. 56.1 Stmt. (Dkt. No. 165) 1)3 On April 1, 2009, Majic entered into a “Co-Publishing/Exclusive Administration Agreement” with Shin and non-party Sean Hamilton (“Contract 1″). (Shin R. 56.1 Stmt. (Dkt. No. 159) 1; see also Shin Decl., Ex. 1 (“Contract 1″) (Dkt. No. 157-1)) On May 1, 2009, Majic entered into an “Exclusive Co-Publishing and Administration Agreement” with Defendants Reid and EMI (“Contract 2″). (Shin R. 56.1 Stmt. (Dkt. No. 159) 8; see also Shin Decl., Ex. 2 (“Contract 2″) (Dkt. No. 157-2)) 1. Contract 1: The Majic-Shin Agreement Contract 1 — which identifies Majic as “Publisher” and Shin, Hamilton, and their designees and Affiliates4 as “you” — requires Shin to “Deliver to Publisher, for exclusive exploitation, all Compositions,”5 and provides that “Publisher will be the exclusive co-publisher and exclusive administrator of all Compositions.” (Contract 1 (Dkt. No. 157-1) at 2) Pursuant to Contract 1, “Publisher is granted 50 percent of the copyright” of each composition “written entirely by you.”6 (Id. §3) Contract 1 further provides that Shin hereby sell[s], transfer[s] and assign[s] to Publisher…an undivided 50 percent interest in all of Your Interest in the Compositions, including without limitation in and to all copyrights therein…. It is the essence of this Agreement that Publisher acquire an undivided 50 percent interest in all of Your Interest in all Compositions. (Id. §5(a)) Contract 1 defines “Your Interest” as “that percentage interest in a Composition resulting from your authorship and/or ownership of rights in that Composition.” (Id. §3) Contract 1 further provides that it is the intent of the parties that Publisher…shall be the exclusive administrator of all rights in and to the Compositions and Publisher shall have…the broadest possible rights to administer one hundred percent (100 percent) of Your Interest in the Compositions and otherwise exploit the Compositions. Accordingly, with respect to Your Interest in the Compositions, Publisher…shall have the sole and exclusive right…to: license the exploitation of the Compositions in all forms, media, technologies and configurations…; print, publish, rent and/or sell printed editions and other reproductions of the Compositions…; collect all monies whatsoever derived from exploitation of the Compositions, whenever earned; license public performance rights…; make arrangements, adaptations and other changes; and otherwise administer and grant rights in, and with respect to, the Compositions to the fullest extent possible. In connection with the foregoing, you hereby appoint Publisher your true and lawful attorney to secure and renew copyrights, initiate and compromise infringement claims, and to execute in your name any and all documents reasonably necessary or desirable to accomplish the foregoing and/or effectuate Publisher’s rights hereunder. (Id. §5(b)) Contract 1 further provides that “[d]uring each Contract Period, you shall Deliver to Publisher (‘Minimum Delivery and Release Commitment’ or ‘MDRC’) at least four (4) Full New Compositions, or the fractional equivalent.”7 (Id. §4) Contract 1 also requires Shin to “represent, warrant and covenant that,” inter alia, he “ha[s] not entered into (and will not enter into) any agreement (including, without limitation, any license) which would interfere with any of the rights granted to Publisher pursuant to this Agreement.” (Id. §9(a)) Contract 1 provides that Shin “will not perform or render any services for the purposes of writing musical compositions that either directly or indirectly for any person or entity other than Publisher and…will not enter into [any] agreement with respect to any Compositions[] or rights with respect thereto.” (Id. §9(b)) Contract 1 also sets out the structure for royalty payments among Majic, Shin, and Reid. It contemplates Majic’s receipt of royalties from Reid pursuant to Contract 2, and provides that “[f]rom all royalties actually received by Publisher from Reid under [Contract 2] from the exploitation of Compositions throughout the world…, Publisher shall,” after making certain deductions, “pay to you an amount equal to fifty percent (50 percent) of the balance remaining, and the remaining fifty percent (50 percent) thereof shall be retained by Publisher for its sole use and benefit.” (Id. §6(a)) Majic, similarly, agrees to pay Shin fifty percent of advances received from Reid pursuant to Contract 2, after making certain deductions, and retain the remaining portion of the advances. (Id. §6(b)) Finally, Contract 1 provides that it “shall be deemed amended in all respects necessary to conform to the provisions of [Contract 2],” and provides that, in entering Contract 1, Shin “agree[s] to amend or modify any provisions of [Contract 1] to conform to the provisions of [Contract 2],” and agrees to “comply with any other restriction, and…grant any additional rights, as may be required by Reid” pursuant to Contract 2. (Id. §13) 2. Contract 2: The Reid Agreement Contract 2 — which identifies Reid and EMI as “Publisher,” Majic as “you,” and Shin and Hamilton each as “Writer” — is also “an exclusive co-publishing and administration agreement.” (Contract 2 (Dkt. No. 157-2) at 2) Contract 2 states that, during the term of the agreement, Majic “shall cause Writer to Deliver to Publisher, for exclusive exploitation, all Compositions,” and that “Publisher will be the exclusive administrator and co-publisher of Your Interest in all Compositions.”8 (Id.) However, Contract 2 also states that “You” — that is, Majic — “shall Deliver to Publisher” — that is, Reid and EMI — “each Composition.” (Id. §3) Pursuant to Contract 2, Majic agrees to “sell, grant, transfer and assign” to Reid and EMI “an undivided 50 percent interest in all of [Majic's] Interest in the Compositions, including, without limitation, the copyrights therein.” Majic “retain[s] the remaining 50 percent copyright interest.” (Id. §5) B. Contract 3: The Modification On January 1, 2014, nearly five years after Contracts 1 and 2 were executed, Reid, EMI, Majic, Shin, and Hamilton amended Contract 2 pursuant to a Settlement Agreement that Reid, EMI, Shin, and Hamilton had entered into with third parties.9 This agreement is “Contract 3.” (Shin Decl., Ex. 3 (“Contract 3″) (Dkt. No. 157-3) at 2) According to Contract 3, “Hamilton and Shin…made various claims that Majic…failed to make required royalty payments to them under [Contract 1].” (Id. §1(d)) Consequently, Hamilton and Shin “wish[ed] to modify certain provisions of [Contract 2], including…certain payment and Delivery obligations.” (Id. §1(e)) Whereas Contracts 1 and 2 contemplate Shin’s (and Hamilton’s) delivery of Compositions to Majic, and Majic’s delivery of those Compositions, in turn, to Reid and EMI, Contract 3 requires Shin and Hamilton to perform “any and all obligations” for Reid and EMI “which relate to the Compositions, [and] Delivery thereof,” and makes them jointly and severally liable with Majic for those responsibilities, “[n]otwithstanding that all of the obligations to [Reid and EMI] under [Contract 2] are solely Majic’s obligations.” (Id. §2) Contract 3 also significantly alters the payout of royalties and advances related to Shin’s Compositions, such that Reid is obligated to pay directly to Shin certain royalty shares and advances, rather than routing those payments through Majic. (Id. §§5-6) With respect to royalties, “the royalties otherwise accruing to Majic’s credit under [Contract 2] shall be divided among Majic’s, Shin’s, and Hamilton’s royalty accounts.” (Id. §6) Likewise, “any future [a]dvances payable under [Contract 2]” would be paid out separately and “ charged to their respective royalty accounts.” (Id. §5) In Contract 3, Majic, Shin, and Hamilton “fully release and forever discharge Reid and EMI…from any legal cause of action whatsoever now or hereafter existing under any law…any time prior to January 1, 2014.” Shin and Hamilton also “fully release and forever discharge Majic…from any legal cause of action relating to the accounting and/or payment of royalties now or hereafter existing under any law…any time prior to January 1, 2014.” (Id. §4) Majic does not release any claims against Shin in Contract 3, however. C. The Tolling Agreement On April 14, 2017, Shin, Majic, Reid, and EMI entered into a tolling agreement (the “Tolling Agreement”). The Tolling Agreement — which identifies Majic, Reid, and EMI collectively as “Publisher” — acknowledges that Publisher has asserted claims that, beginning in 2011 and through [April 14, 2017], Shin acquired certain musical compositions and has delivered those compositions to Joombas Co. Ltd. (“Joombas”) allegedly in breach of [Shin's obligations under Contract 2, as modified] and failed to deliver those acquired compositions and income derived from such compositions. (Shin Decl., Ex. 5 (“Tolling Agreement”) (Dkt. No. 157-5) at 2) The Tolling Agreement further states that Shin denies the breach claim, and contends that Contract 2 is unconscionable, and that he has not received payments due under Contract 2. (Id.) In the Tolling Agreement, Shin, Majic, Reid, and EMI agree that commencing as of April 14, 2017 and continuing until 30 days after the date on which either Shin or Publisher provide…notice of termination [of the Tolling Agreement],…the running of time under any statutes of limitation or any other time-based limitations or defenses…that might be asserted as a bar, limitation, or defense to any suit, action or claim arising out or in connection with [the claims the Publishers and Shin raised against one another would be tolled]. (Id.) On June 29, 2018, Sony — which “at some point” acquired EMI (Catala Dep. (Dkt. No. 146-2) at 35) — provided notice of termination of the Tolling Agreement. (Shin R. 56.1 Stmt. (Dkt. No. 159) 22) D. June 2018 Settlement Agreement On June 1, 2018, Reid, EMI, Shin, and Joombas Co., Ltd. entered into a Settlement Agreement (the “2018 Settlement Agreement”). (Simonian Decl., Ex. A (“2018 Settlement Agreement”) (Dkt. No. 69-1) at 2, 11) The 2018 Settlement Agreement states that Reid and EMI “contend that Shin has failed to deliver certain musical compositions to them, in violation of his obligations under [Contract 2 and Contract 3]“; that Shin denies these allegations; but that Reid, EMI, Shin, and Joombas Co., Ltd. “desire to settle their dispute amicably.” (Id. at 2) Under the terms of the 2018 Settlement Agreement, Shin and Joombas Co., Ltd. agree to pay a sum of money to Reid and EMI. Shin, Reid, and EMI agree that “[s]olely as between [them], [Contract 2] shall terminate effective as of the date of execution of [the 2018 Settlement Agreement],” and Contract 3 “shall terminate concurrently with the termination of [Contract 2].” (Id. §§3.1, 4.1) The parties to the 2018 Settlement Agreement also agree to “release, acquit and forever discharge” one another from “any and all causes of action, claims for relief, lawsuits, charges or complaints” they “ever had or [have] against [the other] with respect to [Contract 2 and Contract 3].” (Id. §§5.1-5.2) The 2018 Settlement Agreement repeatedly states that it does not bind or otherwise affect Majic’s rights under the various contracts. For example, in the Recitals section of the 2018 Settlement Agreement, the parties state that they “specifically exclud[e] from the said settlement any claims that may belong to or be separately capable of being asserted by Majic under the terms of [Contracts 1, 2, and 3].” (Id. at 2) Likewise, in the “Parties Bound” section, the parties state that the 2018 Settlement Agreement “specifically exclud[es]…Majic as to whom this Settlement Agreement is not binding.” (Id. §1) And although the 2018 Settlement Agreement terminates Contracts 2 and 3 as between Reid, EMI, and Shin, “[n]otwithstanding anything to the contrary contained in [Contracts 1, 2, and 3]…the termination of [Contracts 2 and 3] shall not effect a termination of [Contract 1] insofar as it pertains to the rights of Majic thereunder and Majic shall retain any and all rights and claims under [Contract 1] as if [Contract 2 and Contract 3] had not been terminated.” (Id. §4.1) Indeed, “[a]s between [Shin and Joombas, Co., Ltd.] and Majic, any rights, claims and defenses that Majic has or may have under [Contracts 1, 2, and 3]…shall survive this termination.” (Id.) E. Compositions and Delivery In the Complaint, Plaintiff alleges that “Shin acquired in excess of One Hundred and Fifty (150) compositions from 2009 through 2017,” and Plaintiff lists 122 of these compositions in exhibits to the Complaint. (Shin R. 56.1 Stmt. (Dkt. No. 159)
