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Alicea v Machete Music

Case No. 12-1548 (C.A. 1, Mar. 7, 2014)

Over a century ago, Mark Twain lamented that "[o]nly one thing is impossible for God: to find any sense in any copyright law on the planet." Mark Twain, The Complete Works of Mark Twain: Mark Twain's Notebook 381 (Albert Bigelow Paine ed., 1935). We fear that Twain's deity would fare little better with the tangled skein of copyright and contractual claims presented by the plaintiffs in this case. Confining our inquiry to the arguments seasonably raised before the district court and to the factual background at the time of summary judgment, we conclude that the district court did not err in granting the defendants' motion for summary judgment and denying the plaintiffs' subsequent motion for reconsideration.


The plaintiffs Angel Martinez Alicea ("Martinez"), Freddy Montalvo, Raul Rivera Roldan ("Rivera"), and Reynaldo Colon Vega ("Colon") are Massachusetts-based producers of "reggaeton" music, a musical genre originating in Puerto Rico and boasting such diverse origins as reggae, hip hop, salsa, and meringue. This lawsuit concerns seven songs ultimately released on an album distributed by the defendants, allegedly infringing upon the plaintiffs' copyrights and breaching contracts to which the plaintiffs claim to be parties and/or third-party beneficiaries.

The events underlying this case date back to 2006, when Francisco Saldana, a Puerto Rico-based reggaeton producer who with Victor Cabrera founded a record label named "Mas Flow," began looking for a new vocalist. After posting an online advertisement, Saldana soon received numerous emails and recordings from Gerry Capo Hernandez ("Capo"), a reggaeton performer then residing in Springfield, Massachusetts. Saldana invited Capo to his recording studio in Puerto Rico, where Capo soon became part of a new reggaeton group known as "Erre XI." In May 2007, Saldana reached out to Angel Martinez Alicea, Freddy Montalvo, and Etienne Gagnon, three reggaeton producers from Springfield who had worked with Capo in the past, and invited them to his studio to produce two songs for Erre XI. Upon hearing the two songs, Saldana pronounced Martinez and Montalvo his "new stars." Martinez and Montalvo subsequently signed producer agreements with Mas Flow entitling them to royalty payments for the songs they produced.


Judge(s): Jeffrey R. Howard
Jurisdiction: U.S. Court of Appeals, First Circuit
Related Categories: Contracts , Entertainment
Circuit Court Judge(s)
Jeffrey Howard
Bruce Selya
Norman Stahl

Trial Court Judge(s)
Michael Ponsor

Appellant Lawyer(s) Appellant Law Firm(s)
David Mech Law Offices of David A. Mech

Appellee Lawyer(s) Appellee Law Firm(s)
Linda Burrow Caldwell Leslie & Proctor PC
Alison Mackenzie Caldwell Leslie & Proctor PC
Daniel Cloherty Collora LLP



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once again, we need not decide whether the application discretion on the part of the district court. (2007)). we thus repeat what is by now a familiar leitmotif in magistrate judge's report and recommendation, granting the motion we turn first to the plaintiffs' copyright infringement claims. f.3d 624, 631 (7th cir. 2003); apple barrel prods., inc. v. beard, howard, selya, and stahl, letters for three other songs from the album ("ella me amo," for lack of personal jurisdiction.4 in granting summary judgment to the umg defendants. cf. britell v. unavailable at the time of the district court's order: namely, -18- section of the agreement, paragraph t, concerning which the 16 aforementioned advance and recording budget. 'registration approach')." 705 f.3d at 43 n.11 (internal quotation the lt producers (provided that principal that an internal decision had been made to cancel the plaintiff's -5- are separate works with their own distinct copyrights." johnson v. compositions, a prerequisite to an infringement action under 17 from the depositions would have defeated the defendants' motion for treat their motion as a motion to alter or amend the district 378 (mass. 1986), we conclude that this case, involving label in a final effort to establish third-party beneficiary obligation rests with lt. -3- reconsider under fed. r. civ. p. 59(e), claiming "new evidence" for erre xi. upon hearing the two songs, saldana pronounced in the district court's estimation, the plaintiffs failed both the erre xi album -- cannot be introduced to contradict the unambiguous muchnick, 559 u.s. 154, 157 (2010); see also latin am. music co. the final provision of the agreement upon which the contractual ambiguities, see, e.g., c.a. acquisition newco, llc v. avowed purpose in the rule 56(d) motion before the district court balance of net proceeds for machete's own account. "net compensate its producers, and therefore conclude that the profit analysis set forth in rivera-torres v. rey-hernández, 502 f.3d 7, states work shall be instituted until preregistration or a musical genre originating in puerto rico and boasting such them to royalty payments for the songs they produced. suggest that the first sentence of paragraph e.2, which inducement of services, unjust enrichment, and intentional and a claim and lack of personal jurisdiction and also dismissing the we find no competent evidence to the contrary in the nales, a & a, and thilo [rivera] (the "lt producers") to smart v. gillette co. long-term disability plan, 70 f.3d 173, 179 registrations in two of the songs, "msn" and "carita bonita." "msn," and "te hice volar." although the melodies to these songs howard, circuit judge. over a century ago, mark twain reasserted copyright infringement in a subsequent sur-reply, and opposition to the plaintiffs' motion, the defendants had argued waived." united states v. zannino, 895 f.2d 1, 17 (1st cir. 1990); claims, the court found no evidence either of a direct agreement unauthorized copy cannot be used as deposit material." over four is plausible on its face,'" ashcroft v. iqbal, 556 u.s. 662, 678 summary judgment motion that "as far as erre xi is concerned," they were not complete until after summary judgment, in which case the action must be dismissed. indicate[d] that registration of the copyrights was not complete united states, 318 f.3d 70, 75 (1st cir. 2003) ("[i]f an action or one of the plaintiffs (rivera) was even named in the agreement, the copyrights in both is exactly the same." u.s. copyright office, and transfer is "in the interest of justice." a. copyright claims that they were at best merely incidental beneficiaries of the plaintiffs raise only a cursory appellate argument. moreover, document showing (i) good cause for his a claim for breach of contract under massachusetts law, a plaintiff summary judgment motion. professionally known as tunes [cabrera]. notwithstanding apart from the text of the profit share agreement, the plaintiffs, 60(b)(2), "because the fact of cancellation was not in existence at profit share agreement persuades us that summary judgment was at a january 2012 hearing neither the daddy yankee -13- employ these producers on non-label projects; instead, it requires the remaining defendants, machete and umg, moved for the plaintiffs moved for reconsideration within the 28- the machete employee's deposition testimony and the letter from allege that newly discovered evidence warranted reconsideration of four paragraphs of the profit share agreement evincing, in their to register their copyrights in the allegedly infringed denying the plaintiffs' motions for transfer and additional volar," and "dimelo," each of which had numerous composers and court's finding of no registration." in fact, however, the copyright infringement and breach of contract as to an eighth song first time on appeal. so, too, with respect to the plaintiffs' defendants nor the lt defendants remain parties to this appeal. plaintiffs claim to be parties and/or third-party beneficiaries.2 must, and construing it "to give reasonable effect to each of its where other types of jurisdiction are lacking, including personal capo hernandez as a plaintiff, as capo had stated in an affidavit district court's supposed oversight is susceptible to a more elsevier, 559 u.s. 154; m.g.b. homes, inc. v. ameron homes, inc., hodgens, 144 f.3d at 173 (we may "affirm a correct result reached trial continuance for the purpose of obtaining evidence that agreement to occur is a separate question, however, from whether he miller, supra, at § 2808. to the contrary, since the plaintiffs latin american music co., "[c]ircuits are split on whether the "original compositions." it is therefore no surprise that the agreement. we conclude, however, that this extratextual evidence in light of the voluntary dismissal on appeal of the other favoring the application approach).7 timely raised in the trial court cannot be pursued for the first evidence that, in the exercise of due diligence, could have been count ix of the plaintiffs' complaint, alleging breach of contract office ha[d] not yet taken a position on whether it ha[d] received marks omitted); see also 2 melville b. nimmer & david nimmer, judgment order. the plaintiffs' failure to adequately raise this produce ten (10) recordings of various machete renegotiation of his 2006 producer agreement in the wake of the alicea v. lt's benjamin records, inc., no. 3:11-cv-01795-ccc n.e.2d 821, 822-23 (mass. 1997). merely incidental beneficiaries deposit," and admitted that the office had "not yet decided one way both rulings for abuse of discretion. see ecker v. united states, circular 56a: copyright registration of musical compositions and n.11. our conclusion was consistent with nimmer's explanation that rudimentary assertions, "we see no reason to abandon the settled conclusion that summary judgment was proper because there was a rule 56(d) motion for additional discovery. similarly, the sent a year after machete and lt signed the profit share agreement district court that the copyright office still had yet to determine plaintiffs' motion for reconsideration on this issue, as that marks and brackets omitted). given that distinction, the copyright unlike their copyright claims, the plaintiffs do not "was entitled to a share of lt's profits stemming from this royalty," governs compensation of the producers of recordings for reynaldo colon vega, p/k/a limits, ownership interest in such masters, commencing on january as defendants saldana, cabrera, white kraft music publishing, and should have been presented to the district court prior to the plain language of paragraph e.2. see smart, 70 f.3d at 180 status, the plaintiffs suggest that they "gave consideration" for in the past, and invited them to his studio to produce two songs "a precondition to filing a claim." reed elsevier, inc. v. victor cabrera founded a record label named "mas flow," began the motion for reconsideration states, "plaintiffs also deposit and fee) to the copyright office, upon delivery of each such track to machete we think them too slender a reed to render the agreement ambiguous court and to the factual background at the time of summary plaintiffs' motion. that document, apparently an august 2007 court an affidavit or other authoritative paragraph e.2 provides in its entirety: the statement of claims in the plaintiffs' complaint makes no complaint, which refers only to the plaintiffs' copyrights in the "correspondence between the copyright office and [plaintiff] "registration approach" discussed above. at the time that the responsible for compensating the lt producers" and any other expressing skepticism as to whether this claim was adequately set view, a sufficiently clear and definite intent for them to from the copyright office explaining that the office was still in provide the district court with evidence of this fact. defendants rested on its conclusion that the plaintiffs had failed resort & spa, 388 f.3d 15, 20 (1st cir. 2004) ("[e]xtrinsic (rejecting the argument that "post-trial cancellation show[ed] paragraph r in turn provides in pertinent part: signed to the label. reading the contract in its entirety as we connection with the masters embodied on the album "pa'l on january 11, 2011, the district court adopted the hernandez, were previously dismissed from the case. not think this testimony alone suffices to create an ambiguity in motion on april 18, 2012. this appeal followed. is called upon to issue final judgment, the deposition testimony of a machete employee, a letter from machete plaintiffs' supposed request for a declaration of joint authorship. the plaintiffs filed suit on january 5, 2010, asserting -4- f.3d 151, 173 (1st cir. 1998) (internal quotation marks omitted). 1. rivera claim obtain evidence of such a decision," nor had it "ask[ed] for a massachusetts contract law to this action. in order to establish against this backdrop, we find no error in the district mention of a joint authorship claim; the only references to such a office or in their representations before the district court march 7, 2014 -- an expert witness's written opinion interpreting the agreement, claims regarding the defendants' alleged breach of the august 2007 a contract as a third-party beneficiary must demonstrate "from the this case. similarly, although the plaintiffs claim that the the plaintiffs' copyright and contract claims. on october 6, 2011, were "no longer alleging copyright infringement." but they registration requirement does not circumscribe a federal court's identified no legal or factual error warranting reconsideration. the magistrate judge also recommended the dismissal of gerry the puerto rico lawsuit, filed on august 12, 2011, was later the district court's rationale, and we may "affirm a correct result practice," the expert's analysis focuses primarily on another producers, it in fact only alleges a breach of lt's obligations ("machete"), a division of umg recordings, inc. ("umg"), the umg defendants, and we therefore consider it waived. enough to prove the existence of a direct contract with the umg the language of paragraph e.2 of the agreement, which twice states the district court, the plaintiffs cannot now raise it on appeal. responsible for compensating the lt producers or engaging 356 f.3d 157, 165 n.9 (1st cir. 2004). rule 59(e) contemplates admission, the adequacy of the deposited recordings remained an v. the profit share agreement, focusing specifically on rivera's the certificates of registration -- required the court to grant the plaintiffs' motion for reconsideration. see $23,000 in u.s. 13, 22 (1st cir. 1991). continuance in order to obtain evidence that the applications were on appeal, see iverson, 452 f.3d at 102; mccoy, 950 f.2d at 22. profit share agreement. whether rivera gave consideration for the lt's producers have provided services on non-label projects "that between transfer and dismissal" (emphasis added)). moreover, that to be the case, however, the plaintiffs have not shown that defendants. cf. coll, 642 f.3d at 901, let alone to set forth "sufficient summary judgment order, which we review de novo. in so doing, we profit sharing agreement states it will pay sums certain to [t]he subsequently signed producer agreements with mas flow entitling and "paleta," from the 2005 "pa'l mundo" cd. in addition to conclusory fashion, that the defendant breached the contract," and deposition testimony would be used for a number of purposes, their summary judgment order. we therefore decline the defendants' approach under which extrinsic evidence may be considered "to proceedings, the plaintiffs moved to transfer this case to the discussed above, that provision of the agreement leaves lt "solely demonstrate that a term is vague or ambiguous in the first place," office rejection letters also represent new evidence compelling infringement claims, stating in their opposition to the defendants' is required under 17 u.s.c. § 411(a). as for the contract claims, the remaining evidence on which rivera relies -- the 2007 provisions," j.a. sullivan corp. v. commonwealth, 494 n.e.2d 374, the plaintiffs' third-party beneficiary claim against the umg appellate rule that issues adverted to in a perfunctory manner, a litigant who seeks to invoke [rule 56(d)] explicit contract language or to drain an agreement's text of all 25, 426 f.3d 416, 422 (1st cir. 2005) (internal quotation marks newly obtained copyright office registration certificates for two original compositions." but "the prayer for relief is no part of have contended below that paragraph t of the profit share all of the requirements for deposit copies" and "the copyright had not satisfied the registration precondition of § 411(a), having judgment to the defendants. lamented that "[o]nly one thing is impossible for god: to find any the copyright office has failed to receive the two months later, capo and colon registered with necessary elements to issue a registration defendants and the district court for this state of affairs, we are services of the producers known as the underage, tainy, 5 district of puerto rico and consolidate it with a parallel lawsuit 2. motion for reconsideration office only permits the joint registration of a musical composition the district court denied this plaintiffs have failed to show how the information to be obtained the parties do not dispute the applicability of machete. on appeal, however, they only dedicate a single sentence partners are therefore jointly liable to the plaintiffs. the paragraphs h and r of the agreement also fail to support not evince any intent to benefit the plaintiffs. the plaintiffs separate question to which we presently turn. office's decision to reject three of the applications for sense in any copyright law on the planet." mark twain, the the artist royalty and recoupable from the that he did not wish to continue as a plaintiff. court lacks subject matter jurisdiction, or whether it also applies see iverson, 452 f.3d at 102; mccoy, 950 f.2d at 22. linda m. burrow, with whom alison mackenzie, caldwell leslie 2 also during the course of the summary judgment -6- unsupported speculation." smith v. jenkins, 732 f.3d 51, 76 (1st bigelow paine ed., 1935). we fear that twain's deity would fare the plaintiffs next contend that the district court erred f below) less [] aggregate costs and fees . . . . denying a motion for reconsideration grounded on the discovery of party to introduce new evidence or advance arguments that could and using due diligence to learn about them." (footnotes omitted)). was manifestly no "want of jurisdiction" with respect to the umg -15- -23- quotation marks omitted). the defendants argued that the plaintiffs had failed to establish inadequate deposits vindicates, rather than calls into question, recordings, that claim lacks any foundation in the underlying establish such a contract. although rivera did sign a 2006 effort to bolster their third-party beneficiary claims tied to the contract clearly and definitely intended the beneficiaries to sound recordings (2012). as the parties do not dispute that the profit share agreement between machete and lt. noting that only language of the agreement. motion."). motion for summary judgment, the plaintiffs filed a motion under label under this provision, and [capo] is no longer a plaintiff in compel that conclusion. the plaintiffs' motion for reconsideration necessary to establish third-party beneficiary status, see 13 relief" sections, which request that the court declare each of the responsible for the producers' compensation: "lt will be solely defendants or that they were third-party beneficiaries of the xi recordings with the copyright office, and introduced an email which provides for transfer when "there is a want of jurisdiction" plaintiffs "an author . . . and co-owner of copyright in the copyrighted. see 17 u.s.c. § 408(a), (b)(2). although this to pay these royalties. instead, it twice states that lt is defendant has not addressed and should not have been dismissed." defendants, over whom the district court concluded that it lacked the foregoing, it is the intention of the parties that pertinent part: either that they had a direct contractual relationship with the umg while ignoring conclusory allegations, improbable inferences, and we therefore conclude that the district court acted well territory (including license income pursuant to paragraph agreement, by transferring "[a]ll artist contracts owned or copyright office was still "trying to determine [] whether or not cir. 2010) (internal quotation marks omitted). we are not bound by nimmer on copyright § 7.16[b][3] (discussing the two approaches and 2007, and by raul rivera roldan, a producer who had worked with district court denied this motion in its summary judgment order, court's judgment. see united states v. $23,000 in u.s. currency, in awarding summary judgment on their third-party beneficiary complete works of mark twain: mark twain's notebook 381 (albert benjamin as prohibited pursuant to section e(2)" of the profit 102; mccoy, 950 f.2d at 22. e.2 that even establishes a duty on machete's part inuring to the as to the plaintiffs' status. although these emails may indeed summary judgment. with respect to the copyright claims, the although general industry practices may be helpful in resolving approach or the registration approach should govern, as we conclude either clearly establish a manifest error of law or must present -25- amount of four thousand dollars ($4,000.00) were complete at the time of summary judgment, or that due relationship between machete and lt and seemingly have no relevance embryonic theory that the "label" created by the profit share exploitation of the label's products throughout the two additional plaintiffs, jose delgado and gerry capo made manifest by the record." hodgens v. gen. dynamics corp., 144 the court adopted a second report and recommendation from the see also tower v. leslie-brown, 326 f.3d 290, 299 (1st cir. 2003). we therefore find no abuse of discretion in either the registration requirement is satisfied at the time the copyright nimmer, supra, § 7.16[b][3][c] (footnotes omitted); see also kernel and attached certificates of registration offer no explanation for registration for "carita bonita" and "msn" do not represent "newly the motion for reconsideration. agreement between lt and machete. as we explain in section b.3 division of profits from the sale of albums delivered by mas flow plaintiffs still had not shown that they had registered copyrights questions left unresolved in cimon v. gaffney, 401 f.3d 1 (1st cir. with machete, creating a new record label and providing for the whether the deposited recordings, although not the original specifically, the subsequently obtained certificates of reasoning that it was too late for the plaintiffs to request filled with blurred and oblique insinuations of wrongdoing by the myers-squibb co., 95 f.3d 86, 91 (1st cir. 1996) (additional the events underlying this case date back to 2006, when there is, under all viewpoints, a defect under cite their expert witness's opinion for the proposition that francisco saldana, a puerto rico-based reggaeton producer who with judgment, we conclude that the district court did not err in summary judgment. although the plaintiffs now imply that the as to rivera, fails to identify -- let alone "describ[e], with saldana since 2004 and who had previously produced two songs, approach." at best, the subsequent registrations might be taken as -27- evince some obligation on the part of the umg defendants, they were between the parties or of third-party beneficiary status. the previously dismissed for lack of personal jurisdiction. the these two songs by the time of summary judgment.9 we need not address the "good cause" prong, because the the plaintiffs. machete's president that machete would not pay saldana the money he jurisdiction," id. at 7 n.21, and whether § 1631 permits "the reconsideration based on, inter alia, evidence discovered after the court's summary judgment order. more than two years after filing currency, 356 f.3d at 165 n.9. must act with due diligence to show that his registration of the sound recordings has no bearing on the dismissed due to the plaintiffs' failure to serve process within determines that the contract is ambiguous on its face or as shall be the sole or primary producer) to discovery, and denying the plaintiffs' motion for reconsideration. for the district of massachusetts saldana soon received numerous emails and recordings from gerry appeared on the erre xi album distributed by machete in 2008: "al summary judgment order, the plaintiffs finally obtained copyright necessary application materials for registration." 705 f.3d at 43 contractual promise the defendant failed to keep." id. (internal the plaintiffs suggest that newly discovered evidence -- to wit, motion merely rehashed the plaintiffs' original argument and mundo" (the first "wy album") embodying the performances little better with the tangled skein of copyright and contractual white kraft music publishing and umg were not named as 10 was an intended third-party beneficiary of the agreement. just as collected, will suffice to defeat the pending latin american music co. did and do not compel the conclusion that the agreement was the origin a position to know whether their applications were complete and to approach. more specifically, we agree with the district court's a court that lacks jurisdiction over an action with a choice time of summary judgment. cf. betterbox, 300 f.3d at 331-32 profit share agreement, and an expert witness report interpreting other allusion to a lanham act claim. nor do we find any mention agreement was a partnership between machete and lt and that the in opposition to the defendants' motion, the plaintiffs in consideration of principal's producer services in copyright office had not yet determined whether their applications of previous arguments is not sufficient to prevail on a rule 59(e) of the defendants' obligation. we find these emails insufficient cir. 2007). moreover, a plaintiff cannot merely "allege, in forth in the complaint, the district court also found "no evidence" in no way establishes a direct contractual relationship between before court's grant of summary judgment and its subsequent denial of all of the required materials for registration." 876, 901 (10th cir. 2011) (internal quotation marks omitted), and justice" given our conclusion that the district court did not err deposit copy in the circumstances of this case." plaintiffs also point to various items of extrinsic evidence in an 2. profit share agreement sufficient. because the plaintiffs have failed to show that the montalvo, raul rivera roldan ("rivera"), and reynaldo colon vega the plaintiffs this an application, fee, and two complete copies of the work to be straightforward explanation. except for a single reference in the to lt alleging breach, and a series of internal emails in which umg the plaintiffs' theory.13 17 to the extent that the plaintiffs imply that the copyright for appellees. benefit. to the contrary, paragraph e.2 makes clear that any such the plaintiffs initially appeared to concede their copyright infringing sound recordings from the defendants' album rather than day window provided by fed. r. civ. p. 59(e), and we therefore themselves were responsible for submitting a complete application motions for transfer and additional discovery. we begin with the entry of judgment, and we have cautioned that it "does not allow a los cangris, inc.; el cartel records, inc., nevertheless, it imposes no actual obligation on machete's part to and the umg defendants.10 why "carita bonita" and "msn" were registered but the other songs the opening paragraph of the plaintiffs' complaint is not enough to new label, constituted an assignment of lt's contractual duties to defendants' summary judgment motion, no progress appeared to have evidence contradicting the district court's conclusion that "only of up to two thousand dollars ($2,000.00) per track which cd" under these two paragraphs, neither paragraph creates any original source codes for its software . . . ."). the deposed employee testified about a statement from ii. even assuming the document's admissibility, the plaintiffs have as the district court recognized, and as we described in that reconsideration of the copyright claims "would be futile we address each in turn. for the foregoing reasons, we affirm the district court's for want of personal jurisdiction. with respect to the umg the time of trial"). (even assuming arguendo that subsequent cancellation was evidence counsel," who testified that machete and lt did not enter into the registration of the copyright claim has been made in accordance the case to the district of puerto rico and consolidate it with so that the court could have transferred the claims against the label's net proceeds (the "lt profit"), retaining the and distributed by machete. 10 (1st cir. 2007): producers. we therefore see no need to resort to extrinsic diligence either in filing their applications with the copyright -17- -36- summary judgment order. in any event, however, our review of the of a lanham act claim in any of the plaintiffs' other district in september 2007, while rivera had signed a producer agreement plaintiffs rely is paragraph k.2, titled "lt's services." it we note, however, that nothing in the record appears to have materially interfered with the delivery obligations of lt's "daddy yankee," el cartel records, inc., and los cangris, inc. (the court's adverse rulings on their motion for additional discovery amo," "dimelo," and "al desnudo") were denied on the basis that the contributions. at least with respect to the two registered songs, yandel (hereinafter referred to as wy), machete hereby inc. v. media power grp., inc., 705 f.3d 34, 42 (1st cir. 2013). and a sound recording in a single application "if ownership of the email from the copyright office dated september 22, 2011, which i. plaintiffs' often dissonant briefing. the plaintiffs appear to 575 f.3d 70, 76 (1st cir. 2009) (transfer); ayala-gerena v. bristol orders granting the defendants' motion for summary judgment, "no civil action for infringement of the copyright in any united profit share agreement with any intent to benefit the plaintiffs. instead, these paragraphs govern lt's profits from the newly- & proctor, pc, daniel j. cloherty, and collora llp were on brief, 2005. colon signed an exclusive recording agreement with mas flow gerry capo hernandez, p/k/a lionize, recording budget or a royalty of three percent (3%) if -26- no. 12-1548 (d.p.r. jan. 13, 2012). 1 appeal. plaintiffs' benefit, much less an intent for the plaintiffs to clearly demonstrate[s] evidence of an intention to benefit that the defendants were entitled to summary judgment under either must, inter alia, "prove that a valid, binding contract existed." 3 "daddy yankee defendants"); and umg and machete (the "umg applications to the copyright office were complete; by their own this agreement -- reflects an agreement between lt and machete, and responsible" for producer royalties and thus offers no support for funding required for the lt producer services shall be paragraph h.1, titled "distribution of profits," provides in claim are contained in the "nature of the action" and "requests for volar," the plaintiffs stated in their motion that the registration sent the requisite application (together with magistrate judge and dismissed the claims against the lt defendants nor does any of rivera's cited evidence the cause of action," coll v. first am. title ins. co., 642 f.3d work does not interfere with lt's delivery obligations freddy montalvo; raul rivera roldan, p/k/a thilo; recordings, is governed by paragraph e.2 rather than k.2. as -22- district court found that the plaintiffs had "failed to plead we summarily reject the plaintiffs' additional argument that of their reply brief to this argument, stating merely that this 978 f.2d 10, 16 (1st cir. 1992) ("motions under rule 59(e) must 8 for civil rights v. president & fellows of harvard coll., 595 evidence of facts existing at the time of summary judgment. see 11 and a royalty of up to 3% to be taken out of district court did not abuse its discretion in denying the defendants, the court found no lack of jurisdiction and therefore 462 f.3d 41, 43 (1st cir. 2006) (explaining that § 1631 "furnishes negligent infliction of emotional distress. their complaint named plaintiffs' appeal is easily resolved under the third prong. the capo hernandez ("capo"), a reggaeton performer then residing in wright & miller, supra, at § 2808; cf. betterbox commc'ns ltd. v. summary judgment record. instead, the plaintiffs submitted an -24- transfer of this case would in any event not be "in the interest of relationship with the umg defendants as to two songs, "mirala bien" and their motion to transfer the case to puerto rico. we review the plaintiffs would be "relieved of the obligation to submit a application and issues a certificate of registration (the -33- its merit. see tower, 326 f.3d at 299; zannino, 895 f.2d at 17. law" and that the court therefore abused its discretion in denying plaintiffs' claims for compositional copyright infringement. applicable lt producers an advance in the august 2007, mas flow and its successor in interest, lt's benjamin paragraph e.2 of the agreement, titled "producer concerning the registration issue. cf. betterbox, 300 f.3d at 332 label'" -- i.e., the "label" created by the 2007 profit share sought transfer of the entire case, including claims against the because plaintiffs granted licenses for use of their compositions," before us the argument that their contracts were assigned to the 14 see $23,000 in u.s. currency, 356 f.3d at 165 n.9 ("the repetition the district court's grant of summary judgment to the in the underlying compositions that they claimed were infringed, as open question. cf. geoscan, inc. of tex. v. geotrace techs., inc., -9- defendants in the original complaint, and were added in the looking for a new vocalist. after posting an online advertisement, district court's denial of the plaintiffs' subsequent motion to (rejecting counterclaiming defendant's argument that subsequent plaintiffs cite paragraph e.2 to support their contention that "the records oy v. mosley, 694 f.3d 1294, 1302 (11th cir. 2012). authorship of the four registered sound recordings is not lt and its principal [saldana] will also furnish the not reach the question of whether the defendants held licenses in not long after filing their opposition to the defendants' reggaeton group known as "erre xi." in may 2007, saldana reached letter from machete to lt alleges breach on the part of lt's the lt producers shall be compensated on a flat fee basis studio in puerto rico, where capo soon became part of a new -10- machete to lt alleging breach -- concern only the contractual brief, for appellants. work, the owner of a copyright must submit to the copyright office dhl express (usa), inc., 696 f.3d 109, 114 (1st cir. 2012), we do to dismiss as to the daddy yankee defendants for failure to state and compensating any other producers it may engage to united states court of appeals authors of the disputed songs" and therefore entitled to were complete. moreover, the plaintiffs did not file a motion for defendants, the import of which is not clear. faced with these contrary, the parties do not dispute that the erre xi artists were 1. summary judgment share agreement imposed no duty on the umg defendants to compensate defendants, appellees, paragraph e.2 and including rivera) by machete rather than by lt. gerry capo hernandez's contract was actually transferred to the [a]bsent issuance of a certificate and in the four weeks later, the plaintiffs filed a motion to c. lanham act claim artists (i.e., non label artist's [sic]) upon a & r budgets set forth herein. otherwise lt cancellation of plaintiff's trademark registration constituted "mirala bien" and "paleta," released on a cd titled "pa'l mundo" in the mere mention of a lanham act claim in omitted); see also anderson v. fox hill vill. homeowners corp., 676 -30- for the first circuit for the lt producer services shall be provided directly and soley malave, collectively professionally known as wisin and evinces an intent to benefit at least rivera. moreover, the the plaintiffs' subsequent motion for reconsideration. the point, as these registrations are new facts altogether, not new the plaintiff raul rivera roldan brought an individual even shown that they had submitted all of the necessary application the u.s. copyright office the copyrights in the sound recordings lt producers." but paragraph e.2 imposes no obligation on machete of the erre xi songs ("carita bonita" and "msn") and rejection 7 -7- plaintiff could not even "show that it had submitted all the time on appeal."); see also mccoy v. mass. inst. of tech., 950 f.2d and umg, and rivera has pointed to no specific agreement to which language and circumstances of the contract that the parties to the appeal is fanciful or frivolous, it is in the interest of justice district court did not address this purported claim in its summary with mas flow in june 2006. vocalists. in july 2010, the plaintiffs filed with the district recordings on which the plaintiffs had worked, were nevertheless work on projects outside of the label so long as such to dismiss it rather than to keep it on life support (with the appeal from the united states district court priority over any outside projects. lt will be solely an explanation of how those facts, if david a. mech, with whom law offices of david a. mech was on 2. motion to transfer the district court's conclusion at summary judgment. evidence must be of facts existing at the time of trial. the first paragraph (titled "nature of the action"), which describes 4 concluded that transfer was inappropriate under 28 u.s.c. § 1631, stated that they had filed copies of the allegedly infringing erre cancellation was imminent"). we therefore find no abuse of gordon, 409 f.3d 12, 26 n.8 (1st cir. 2005) (internal quotation shall fund such amounts. lt will furnish the services of principal and already decided to cancel" the registration, because the "notice of the plaintiffs next aver that the district court "failed inc., 392 n.e.2d 1045, 1051 (mass. 1979); restatement (second) of infra, however, the plaintiffs have failed to adequately raise e.g., cosmetic ideas, inc. v. iac/interactivecorp., 606 f.3d 612, -28- had not yet obtained registration in any of the erre xi songs. "dimelo," and "al desnudo").6 claim for breach of contract based on an alleged direct contractual shown above, they represented to the district court that the "draw[] all reasonable inferences in favor of the non-moving party proceeds pursuant to paragraph h, above, and a 25% diverse origins as reggae, hip hop, salsa, and meringue.1 the process of determining whether the plaintiffs had submitted machete shall pay lt forty nine percent (49%) of the under massachusetts contract law, "extrinsic evidence may 13 -16- remained largely identical to the versions produced by the 'application approach'), or at the time that the office acts on the for cases applying the registration approach, see, e.g., la absence of the copyright owner even having assist with the recordings hereunder, including without -34- months later, at a hearing before the district court on the for four of the songs, "carita bonita," "al desnudo," "te hice be used as an interpretive guide only after the judge or the court rivera's royalty percentage is not itself a contract between rivera williston on contracts § 37:28 (4th ed. 2013), so too is it not seven songs on which the plaintiffs worked eventually the plaintiffs angel martinez alicea ("martinez"), freddy -29- under fed. r. civ. p. 56(d) and the plaintiffs' motion to transfer the plaintiffs' suit as partially "a civil action for . . . false counts of copyright infringement, breach of contract, fraudulent titled "salgo pa la calle," which is no longer at issue on this made at the time of trial"). contractual obligation as to rivera or any other plaintiff. 1, 2007 and with respect to sales after such date. invoice from mas flow to freddy montalvo for ten songs not named in justified in awarding summary judgment. the plaintiffs' subsequent -2- content save ink and paper."). -19- transfer of some but not all claims in an action," id. at 7 n.20, with this title." in order to register a copyright in a published defendants").3 in defendants' opposition and supporting memorandum." in their 4. motion for reconsideration district court denied this motion, following the tripartite stated that the office was still "waiting to resolve" the question believe that the plaintiffs could not have exercised greater a fishing expedition, they merely wish to authenticate documents instead leaves mas flow responsible for compensation. rivera's on appeal, the plaintiffs assign error to the district bb techs., inc., 300 f.3d 325, 330-32 (3d cir. 2002) (alito, j.) 730 f.2d 384, 386-87 (5th cir. 1984). parallel litigation pending there. 15 error, the district court did not abuse its discretion in denying between lt and the lt producers. the lt producers may to the copyright office, it is only fair to infer that they were in subjective understanding that "universal music [i.e., umg] was were replaced with the work of other artists. were not. it is certainly possible that these two applications properly pleaded a claim pursuant to the lanham act, which since april 2004, mas flow had licensed to machete music three reggaeton producers from springfield who had worked with capo discretion." meléndez v. autogermana, inc., 622 f.3d 46, 55 (1st applied." bank v. thermo elemental inc., 888 n.e.2d 897, 908 the plaintiffs elsewhere appear to contend that the make out such a claim as part of the plaintiffs' cause of action, iii. lack standing to enforce a contract. see harvard law sch. coal. moving party must have been excusably ignorant of the facts despite the plaintiffs fare no better under the "application discovery). submitted to the copyright office [i.e., copies of the allegedly emotional distress claims against the umg defendants. however, the first and third prongs. in fact relied upon this testimony, as it is nowhere cited in the registrations would not represent evidence of facts existing at the profit share agreement was intended for their benefit, their third- -31- 903 f.2d 1486, 1488-89 (11th cir. 1990), abrogated on other grounds circuit judges. although the plaintiffs aver that rivera daddy yankee and lt defendants (no longer parties to this appeal) 615-21 (9th cir. 2010); chi. bd. of educ. v. substance, inc., 354 out to angel martinez alicea, freddy montalvo, and etienne gagnon, we also reject the plaintiffs' claim that they are "joint furnished no explanation for how it would militate against summary states that it will be administering mechanical royalties for the this case," we deem this cursory argument waived and do not assess nor raised this theory in their opposition to summary judgment by the court below on any independently sufficient ground made proceeds" shall mean all income received from the predicament fits within its confines. to that even assuming material." the email further explained that "in general, an that they had recently filed in that district.16 trademark registration by the time of trial, the counterclaimant insufficiently pleaded below and cannot now be developed for the flow. royalties, that document makes no mention of the umg defendants and plaintiffs' second amended complaint. district court ignored the existence of sound recording judgment." emmanuel v. int'l bhd. of teamsters, local union no. district court's denial of this motion or its subsequent denial of reconsideration. at some point after the district court issued its factual matter, accepted as true, to 'state a claim for relief that reconsideration, we find their argument unfounded: the copyright reached by the court below on any independently sufficient ground lack of evidence as to "whether the copies [that the plaintiffs] -11- be decided on a case by case basis. any additional "ha[d] not shown that it exercised due diligence in attempting to list of lt producers whose services lt must provide to the label, newly discovered evidence."). because we have discerned no legal cancellation [did] not reveal that a decision to cancel had been providing sound engineering services. they were joined by reynaldo presented earlier." id.; see also 11 charles alan wright & arthur defendants. finally, a umg "song information sheet" showing original composition embedded in the track, can be used as deposit of such a contract in the record, and accordingly granted summary producers it engages, and again, "any additional funding required complaint neither lists a count under the lanham act nor makes any -32- lt (the "lt defendants"); ramon ayala, professionally known as judge)."). the plaintiffs fail to persuade us of any ambiguity in the plaintiffs' complaint also charged the defendants with created label and from the 2005 "pa'l mundo" cd and, therefore, do even if we were to do so, hewing to a more liberal to impugn the plain language of paragraph e.2, requiring lt to 2005): whether § 1631 "provides for transfers only where a federal court denied the umg defendants' rule 12(b)(6) motion to dismiss uncovered this fact. see emmanuel, 426 f.3d at 422; 11 wright & that lt is solely responsible for the compensation of its -12- their contract claims; instead, they claim that the district on february 23, 2012, the court granted the umg n.e.2d 316, 319 (mass. 1992); choate, hall & stewart v. sca servs., plaintiffs, many of the plaintiffs' musical and vocal contributions to the extent that the plaintiffs alternatively suggest n.e.2d 545, 550 (mass. 2000) (internal quotation marks and brackets 9 226 f.3d 387, 393 (5th cir. 2000) (upholding summary judgment where umg recordings, inc., -20- the plaintiffs have not alleged that the erre xi songs otherwise (and whether language is ambiguous is a question for the sufficient facts to support" a third-party beneficiary claim and the payment of royalties to the "lt producers" (a group defined in (mass. 2008); see also nat'l tax inst., inc. v. topnotch at stowe court filings save for a lone sentence in their march 2012 motion distribution and profit share agreements between machete and mas applying that legal standard, we find no error on the machete music, a division of umg recordings, inc.; of "whether a copy of an[] unauthorized track, that contains the applications were "still pending." party beneficiary claims fail. will be administering mechanical royalties for the erre xi album, we agree with the district court's conclusion. as there the artist agreement provides for an all-in royalty, to manifest by the record" (internal quotation marks omitted)). agreement" and "to royalties for his share of the p'al [sic] mundo 12 success in registering "carita bonita" and "msn" is simply beside d. procedural issues rivera and the umg defendants. whether rivera and the other items of extrinsic evidence identified by the plaintiffs, two -- the label, pursuant to work for hire agreements signed "royalties, mechanical or otherwise" from machete. as discussed in for reconsideration fails for an even more fundamental reason. see claims presented by the plaintiffs in this case. confining our benefit.11 although the plaintiffs fed. r. civ. p. 56(d), seeking an extension of time in which to album, performing vocals, composing beats and instrumentals, and other argumentative riffs emerge intermittently from the section a.1 supra, these joint authorship allegations were jose delgado, p/k/a buk dollar; u.s.c. § 411(a). section 411(a) provides in pertinent part that -21- 6 below, and therefore cannot do so now. see iverson, 452 f.3d at defendants (the only remaining defendants), transfer under § 1631 suit, the plaintiffs still had not established that their lt's benjamin records, inc.; francisco saldana, p/k/a luny; past, "sound recordings and their underlying musical compositions songs. materials for registration. with respect to the breach of contract on appeal that they are also claiming infringement in the sound resolana architects, pa v. clay realtors angel fire, 416 f.3d 1195, inquiry to the arguments seasonably raised before the district plaintiffs neither alleged such a partnership in their complaint already produced." as the district court recognized, the retrieved within a reasonable time; and (iii) -35- plaintiffs." with no further elaboration and no identified depose machete's keeper of records and its former president. the although the plaintiffs assign blame to both the specifically names rivera (professionally known as "thilo") in a holder's application is received by the copyright office (the brooks v. aig sunamerica life assurance co., 480 f.3d 579, 586 (1st given that state of affairs, the district court was entirely substantial certainty," id. -- a specific contract between rivera personal consideration on the part of a third party is not this conclusion is particularly straightforward under the martinez and montalvo his "new stars." martinez and montalvo erroneously relied upon the "self-serving statements of defendants' by reed elsevier, 559 u.s. 154. for the application approach, see, [sic] by lt and or [saldana]." there is thus nothing in paragraph (1st cir. 1995), our conclusion would remain the same. of the four was owed, and did not mention any money owed to the plaintiffs in "payment of mechanical royalties by the label[] is a standard for reconsideration.15 this argument, too, is a nonstarter. as we have explained in the their motion for reconsideration, along with its denial of their other defendants but not the claims against the umg defendants. to address the lanham act claims . . . apparently due to the defendants. defendants argued inter alia that as late as september 2011 the the plaintiffs cannot now flesh out this inadequately pleaded claim defendants made clear in their opposition that they only challenged designation of origin under the lanham act," the plaintiffs' been made: plaintiffs' counsel informed the court that the records, inc. ("lt"), entered into a new profit share agreement unaccompanied by some effort at developed argumentation, are deemed court's determination unless a miscarriage of justice is in inevitable result that the transferee court will pull the unpersuaded by their arguments. the plaintiffs' appellate brief is provides: even "[a]fter more than two years of litigation," the plaintiffs 11 summary judgment was improper because the district court (ii) a plausible basis for believing that was inappropriate. see subsalve usa corp. v. watson mfg., inc., could hardly have been clearer: "[p]laintiffs do not wish to go on neither obtained registration certificates for the compositions nor the original recordings on which the plaintiffs had worked] me[t] evidence may be considered if language is ambiguous but not their applications for registration in three other songs ("ella me judgment. r. miller, federal practice and procedure § 2808 ("newly discovered the plaintiffs' compositions, however, as the plaintiffs' motion under massachusetts law, a plaintiff seeking to enforce part of the district court. we agree with the district court that we reach the same conclusion with respect to the 452 f.3d 94, 102 (1st cir. 2006) ("[t]heories not squarely and benefit from the promised performance." miller v. mooney, 725 that, at the time of trial, the [patent and trademark office] had must instead "describ[e], with substantial certainty, the specific transfer as to those defendants who had already obtained dismissal over the next several months, martinez, capo, montalvo, filed for sound recording registration in the remaining three count ix instead alleges that rivera contracted with the lt desnudo," "carita bonita," "dimelo," "ella me amo," "la carta," ("in no event may extrinsic evidence be employed to contradict plaintiffs, appellants, the district court stated that it did so "for the reasons set forth distributed by the defendants, allegedly infringing upon the provided directly and soley [sic] by lt and or principal. "exclusive right to sell and distribute" mas flow's recordings. in defendants' motion for summary judgment. the court concluded that court a printout from the copyright office indicating that they had their motion for reconsideration.8 evidence in our interpretation of the agreement. the district court ultimately ruled on the copyright claims in its -14- such amounts shall be funded by machete so in denying the plaintiffs' motion for reconsideration, . . . because [plaintiff] had not submitted for deposit the the authenticity of one of the four documents identified in the prospect or the record otherwise reveals a manifest abuse of controlled by mas flow, lt, [or] any affiliated companies" to the springfield, massachusetts. saldana invited capo to his recording reconsider the summary judgment order, we "will not overturn the this opinion: having failed to adequately raise this claim before 3. miscellany share agreement. the plaintiffs' complaint, makes no reference to umg or machete. immunizing the defendants from liability for infringement. we do omitted). a district court thus "does not abuse its discretion by defendants and that this contract was later "transferred to 'the necessary facts earlier in the proceedings; not give us occasion to choose between the two paradigms, as the this document is tied. proper even without this additional evidence. to the plaintiffs' contractual rights.14 certificate prior to the time that the court registrations obtained by capo and colon for four of the songs. paragraph "along with the other cited sections in plaintiffs' brief personal jurisdiction, we need not address either of the two limitation the producer services of the producer coextensive with the authorship of the underlying compositions, the (2009) (quoting bell atl. corp. v. twombly, 550 u.s. 544, 570 victor cabrera, p/k/a tunes; ramon ayala, p/k/a daddy yankee; lawsuit concerns seven songs ultimately released on an album lt to furnish the producers "upon machete's request." plaintiffs' copyrights and breaching contracts to which the under the profit share agreement: it states in pertinent part that as for the remaining two songs, "la carta" and "te hice "newly discovered evidence" justifying relief under fed. r. civ. p. court's entry of summary judgment was based on a "manifest error of angel martinez alicea, p/k/a ruf el fantaztiko; 1. motion for additional discovery invitation to treat these claims as waived outright. we now turn to the plaintiffs' motion for diligence (e.g., an inquiry to the copyright office) would not have non-original deposit copies did not contain the plaintiffs' argument below dooms it on appeal. see iverson v. city of boston, their motion for reconsideration. see fdic v. world univ. inc., the plaintiffs took neither of these steps; instead, as permissible deposits of the recordings.5 the 120-day term provided by fed. r. civ. p. 4(m). see martinez- the deposit copies, the actual songs we deposited, are okay to proof that the plaintiffs had submitted complete applications for the statute . . . . as an absolute limit, if 1202-07 (10th cir. 2005), abrogated on other grounds by reed inability to have discovered or marshalled the were produced under this provision for a non-label artist. to the plug).").17 in fact complete. we therefore find it surpassingly hard to hereunder and so long as label projects are given will be taken from the relevant artist's authorized or another whether they have a deposit copy" and, if not, whether court also denied the plaintiffs' motion for additional discovery within the purview of its discretion in denying the plaintiffs' subject-matter jurisdiction, the supreme court has described it as b. contract claims profit share agreement. end, the litigant must submit to the trial -8- recording agreement with mas flow providing for the payment of grants to lt a participation of 25% of machete's net the newly-created record label (the "label").12 discovered evidence" warranting reconsideration under rule 59(e). as for the internal emails in which umg states that it [hon. michael a. ponsor, u.s. district judge] as an initial matter, it is less than clear that the district court additional facts probably exist and can be cir. 2013) (internal quotation marks omitted). in reviewing the on appeal, the plaintiffs also challenge the district on the defendants' motion, plaintiffs' counsel informed the machete's request. machete will pay the long as they are within the maximum authorized ("colon") are massachusetts-based producers of "reggaeton" music, responsible for paying the mechanical royalties" is not alone plaintiffs are third-party beneficiaries of this contract is a contracts §§ 302, 315 (1981). on appeal, the plaintiffs point to district court entered its summary judgment order, the plaintiffs colon vega, a vocalist recruited by martinez and saldana in july granting the defendants' motion for summary judgment and denying acceptable for registration purposes. they were excusably ignorant of the fact that their applications unlike the other paragraphs, this paragraph expressly contemplates and gagnon worked in saldana's studio on new songs for the erre xi of the artists juan luis morera luna and llandel vegilla

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