KING RECORDS, INC., Plaintiff, v. Kenneth R. BENNETT d/b/a KRB Music Companies and KRB Music Companies, Inc., Defendants, 438 F. Supp. 2d 812

MEMORANDUM JOHN T. NIXON, Senior District Judge. Plaintiff King Records, Inc. (“King” or “Plaintiff’) filed a three-count Complaint against Defendants Kenneth Bennett (“Bennett”), d/b/a KRB Music Companies and KRB Music Companies, Inc. (“KRB,” and together with Bennett, “Defendants”) alleging, among other things, copyright infringement in violation of the Copyright Act, 17 U.S.C. § 101 et seq. of numerous re-recordings of popular songs.

Count I alleges the copyright infringement of a musical composition entitled “Don’t Fall Asleep at the Wheel.” Count II alleges copyright infringement of twenty-one sound recordings. Count III alleged the unlawful duplication of forty noncopyrightable sound recordings protected under the common law, including claims of unfair competition, conversion, and unjust enrichment, as well as violations of Tenn.Code. Ann. § 39-14-139 and the Lanham Act, 15 U.S.C. § 1125(a). A bench trial was conducted between July 21, 2003, and July 25, 2003.

At the start of trial, Plaintiff sought the dismissal without prejudice of the claims in Count III pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, to which Defendant objected requesting dismissal with prejudice. (See Doc. No. 199, Trial Tr. I at 6, 28-29.) The Court reserved ruling on Plaintiffs motion (Id. at 29), and no evidence was presented regarding the claims in Count III. Each party submitted their proposed findings of fact and conclusions of law (Doc. Nos. 209, 210).

In addition to the ultimate issue, also pending before the Court are the parties’ motions in limine and post-trial motions. These are addressed in the contemporaneously filed Memorandum Order. For the reasons set forth below, the Court ENTERS JUDGMENT in favor of Plaintiff and AWARDS Plaintiff $170,000. 1. MATERIAL FACTS King is a Tennessee corporation with its principal place of business in Nashville, Tennessee at 1900 Elm Hill Pike. Prior to September 21, 2001, King was known as Gusto Records, Inc. (“Gusto”). Gayron C. “Moe” Lytle (“Lytle”) is the president and sole shareholder of King.

King is in the music industry and causes to be manufactured, sells and licenses music records. Defendant KRB is an Indiana corporation with its principal place of business in Brentwood, Tennessee. Defendant Bennett is KRB’s president and sole owner. KRB’s primary business is “rack jobbing,” which entails placing display fixtures in retail stores and using service representatives to refurbish the inventory in those fixtures. The business at issue in this case is KRB’s “rack jobbing” of cassettes and compact discs at Big Lots, a retail store with approximately 1,300 outlets across the country.

KRB has been in business for seventeen years and has been the exclusive supplier of music products to Big Lots for most of those seventeen years. Prior to the end of 2002, Big Lots was KRB’s biggest customer. A. Count I — Musical Composition “Don’t Fall Asleep At The Wheel” On January 5, 1982, John Riggs and Gary Lumpkin entered into an agreement transferring their rights in the musical composition “Don’t Fall Asleep at the Wheel” to Power Play Music (Division of Gusto Records, Inc.) & Moe’s Music, located at 1900 Elm Hill Pike, Nashville. In addition to the agreement, Messrs.

Riggs and Lumpkin executed an agreement entitled “Transfer of Copyright” in which they transferred to Power Play Music (A Division of Gusto Records, Inc.) “all right, title and interest in and to the copyright and all exclusive rights comprised in the copyright, without limitation in the musical composition ... Don’t Fall Asleep at the Wheel.” (PI. Ex. 6.) Lytle testified that the original authors of the song created it for Gusto.

Ten years later, a musical composition copyright was registered with the United States Copyright Office (“Copyright Office”) in the words and music of “Don’t Fall Asleep at the Wheel,” effective December 18, 1992. The copyright claimant on the original registration is Power Play Music, Inc., located at 1900 Elm Hill Pike in Nashville. There is no evidence in the record that a corporation entitled Power Play Music, Inc. existed in 1992.

There is, however, evidence that a Tennessee corporation entitled Power Play Publishing Company was incorporated on April 11, 1988, and its charter was amended on October 10, 2001 to reflect a name change to Power Play Music, Inc. Lytle was the president and sole shareholder of Power Play Publishing Company, and continues to be the president and sole shareholder of Power Play Music, Inc. Lytle testified that the copyright claimant should have been “Power Play Music (A Division of Gusto Records, Inc.)” and that the reference to “Power Play Music, Inc.” on the registration was a mistake.

In an attempt to correct the error on the registration, Lytle executed a series of assignments purporting to assign the copyright in “Don’t Fall Asleep at the Wheel” to Gusto, which is now known as Plaintiff King.

These assignments utterly fail to create any clarity; instead, riddled with error, they simply enhance the confusion surrounding the copyright claimant of “Don’t Fall Asleep at the Wheel.” First, on April 7, 2000, Lytle executed an “Assignment of Copyright” in which GML, Inc. (“GML”), another company of which Lytle is the sole shareholder and an officer, purported to be the “sole owner” of the copyright registration of “Don’t Fall Asleep at the Wheel.” GML transferred its “rights” to Gusto even though there is no evidence that GML had any rights in “Don’t Fall Asleep at the Wheel” to assign to Gusto.

This assignment was signed by notary public Carolyn McMinn (“McMinn”).

McMinn also completed a “Document Cover Sheet For Recordation of Documents United States Copyright Office.” McMinn affirmed that the information she provided on the recordation cover sheet was “a true and correct representation of the accompanying document.” The recordation cover sheet, which was recorded with the Copyright Office on October 2, 2000, is not a true and correct representation of the assignment because it incorrectly explains that the assignment is from Power Play Music, Inc. to Gusto, whereas the assignment is actually from GML to Gusto.

Second, again on April 7, 2000, Lytle executed and McMinn notarized another “Assignment of Copyright” in which Power Play Music, Inc. purported to be the “sole owner” of the copyright registration of “Don’t Fall Asleep at the Wheel,” and assigned its “rights” to Gusto. There is no evidence that this assignment was recorded with the Copyright Office. There is also no evidence that a company by the name of Power Play Music, Inc. existed on April 7, 2000. This is underscored by the fact that this assignment does not include the standard language in the

preamble regarding the state in which Power Play Music, Inc. is incorporated. There is evidence that such a company came into existence on October 10, 2001. As it stands, however, this assignment involves a nonexistent company purporting to have rights in “Don’t Fall Asleep at the Wheel,” and attempting to assign those rights to Gusto. Third, on April 16, 2001, Steven Kountz-man (“Kountzman”), purported Vice President of Power Play, Inc., executed a third “Assignment of Copyright,” which McMinn notarized.

In this assignment, Power Play Music, Inc. (not Power Play, Inc.) purported to be the “sole owner” of the copyright registration of “Don’t Fall Asleep at the Wheel,” and assigned its “rights” to Gusto. There is no evidence that this assignment was recorded with the Copyright Office. There is also no evidence that a company by the name of Power Play, Inc. or Power Play Music, Inc. existed on April 16, 2001. This is underscored by the fact that this assignment does not include the standard language in the

preamble regarding the state in which Power Play Music, Inc. or Power Play, Inc. are incorporated. While there is evidence that Power Play Music, Inc. came into existence on October 10, 2001, there is no evidence that Power Play, Inc. ever existed or now exists. This assignment, therefore, involves two non-existent companies, one or both of which are claiming ownership in “Don’t Fall Asleep at the Wheel,” and attempting to assign their rights to Gusto.

To add to this confusion, Gusto (now known as Plaintiff King) acknowledged in response to Defendants’ First Set of Interrogatories, that it was not the registered copyright owner of “Don’t Fall Asleep at the Wheel” on August 18, 2000.

It was not until June 20, 2003 that Plaintiff provided a supplemental response stating that it was the registered copyright owner of “Don’t Fall Asleep at the Wheel.” This response was apparently based on Plaintiffs incorrect belief that at least one of the three assignments described above involved the rightful owner of “Don’t Fall Asleep at the Wheel” properly assigning its rights to Gusto. B. Count II — Twenty-One Sound Recordings Count II contains a claim of copyright infringement of twenty-one sound recordings. The sound recordings are “re-recordings” of popular songs.

That is, the artist of a particular song re-records the vocal track of his or her original song for a recording studio for a fee. In the late 1970s Lytle, on behalf of his company Gusto (now known as King), entered a series of contracts with Louis Lofredo (“Lofre-do”) of Mandala International (“Mandala”) to re-record many of the songs in Count II. Lofredo entered into contracts with the individual artists whereby the artist agreed to record “master recordings” of certain of the artists’ songs for Mandala.

In exchange for a flat fee, the artists gave the rights in these master recordings to Mandala, including the right to copyright. In addition, the artists generally waived any rights to royalties resulting from the sale of phonograph records or cassette tapes derived from the master recordings. After obtaining such an agreement with an individual artist for particular songs, Mandala entered into an assignment agreement with Plaintiff whereby Plaintiff could “record or re-record master recordings embodying the Artist(

s) performance.” Mandala assigned all the rights it obtained from the artists to Plaintiff. Plaintiff also entered into similar agreements directly with certain other artists, without the assistance of Lofredo. Plaintiff then produced the master recording, with Lofre-do’s supervision and assistance, in the event Lofredo obtained the agreement with the artist. Production of the recording entailed hiring musicians to play the musical instruments, providing back-up vocals, studio time and sound engineers.

Generally, the artist recorded the vocal tracks using the facilities, musicians and engineers provided by Plaintiff. Michael S. Stone (“Stone”) worked for Plaintiff as a recording engineer from 1976 to 1981, and was involved in the recording sessions of most of the sound recordings in Count II. He testified that each recording session was embodied on a multi-track tape. Each of these multi-track tapes contains sixteen separate tracks on which individual sounds can be recorded. Thus, each track would contain the sounds from a particular instrument.

This sixteen-track master recording was “mixed down” to a two-track master version. All finished products, such as cassette tapes or records were made from the two-track master. Generally, these individual sound recordings, together with other sound recordings not at issue in this case, were released on phonorecords (hereinafter referred to as “albums”). In addition, the albums were registered with the Copyright Office for copyright protection. For the most part, the individual sound recordings were not registered separately with the Copyright Office or listed on the album’s certificate of registration.

Lytle submitted an affidavit stating that a “label copy” of each album was deposited with the Copyright Office. The “label copy” identifies each sound recording contained on the album. 1. ‘Venus in Blue Jeans” On July 12, 1977, Lofredo, on behalf of Mandala, entered into an agreement with Jimmy Clanton to re-record “Venus in Blue Jeans,” along with two other songs. In an undated agreement, Plaintiff agreed to pay Lofredo $1,300 for supervising the recording of ‘Venus in Blue Jeans,” as well as additional sums for the other two songs.

The agreement also shows that Lofredo agreed to assign his rights in the songs to Plaintiff. On July 21, 1977, Mandala assigned to Plaintiff in consideration for $3,900 all the rights it obtained from its agreement with Jimmy Clanton in ‘Venus in Blue Jeans,” as well as the other two songs. Plaintiff also agreed to pay for all production costs.

Stone testified that he was present during the recording session of “Venus in Blue Jeans,” and at trial recognized the tape box for the master recording and the track sheets showing that it was recorded on August 18, 1977 at Plaintiffs recording studio on 3557 Dickerson Road. Stone testified that he was the recording engineer for the recording session, and mixed the sixteen-track master to the two-track master. Plaintiff also provided evidence of payment to Lofredo, to the artist for travel, to other musicians and of other costs.

This re-recording of “Venus In Blue Jeans” was released on an album entitled “Super Hits of the 60’s.. Original Artists, Power Pak PO-309.” The album cover includes a “personal” note from Lofredo to the consumer, and states that it was produced and directed by Lofredo. It also notes that it was distributed exclusively by Gusto. This album was registered with the Copyright Office as a sound recording entitled “Super Hits of the 60s.. Original Artists,” with the catalogue number PO 309. The copyright registration is effective March 3,1978, and Plaintiff is listed as the author and copyright claimant.

Although the individual sound recordings on the album are not listed on the certificate of registration, they were listed on a label copy of the album deposited with the Copyright Office. 2. “Charlie Brown” On September 20, 1977, Lofredo, on behalf of Mandala, entered into an agreement with Billy Guy and Will “Dub” Jones a/k/a The Coasters to re-record “Charlie Brown,” along with six other songs. On September 26, 1977, Plaintiff agreed to pay Lofredo $1,300 for supervising the recording of “Charlie Brown,” as well as additional sums for the other songs.

The agreement also shows that Lofredo agreed to assign his rights in the songs to Plaintiff. On February 21, 1978, Mandala assigned to Plaintiff in consideration for $10,400 all the rights it obtained from its agreement with The Coasters in “Charlie Brown,” as well as the other songs. Plaintiff also agreed to pay for all production costs related to the re-recording.

Stone testified that he was present during the recording session of “Charlie Brown,” and at trial recognized the tape box for the master recording and the track sheets showing that it was recorded on October 13, 1977 at Plaintiffs recording studio on 3557 Dickerson Road. Stone identified a photograph of the “two gentlemen in The Coasters” taken during the recording session. Stone testified that he was the recording engineer for the recording session, and mixed the sixteen-track master to the two-track master.

Plaintiff also provided evidence of payment to Lo-fredo, to the artist for travel, to other musicians and of other production costs. This re-recording of “Charlie Brown,” was released on the album “The Coasters Greatest Hits, Power Pak PO-310.” The album cover includes a “personal” note from Lofredo to the consumer, and states that it was produced and directed by Lo-fredo. It also notes that it was distributed exclusively by Gusto. Stone is listed as the recording and remix engineer on the album cover. This album was registered with the Copyright Office as a sound recording entitled “The Coasters ...

Greatest Hits,” with the catalogue number PO 310. The copyright registration is effective March 3, 1978, and Plaintiff is listed as the author and copyright claimant. Although the individual sound recordings on the album are not listed on the certificate of registration, they were listed on a label copy of the album deposited with the Copyright Office. 3. “Mountain’s High” On September 20, 1976, Dick St. John a/k/a Dick and Dee Dee entered a contract with and S.J. Productions, Inc. (“S.J. Productions”), pursuant to which Dick St. John (“St.

John”) was to be paid $637.50 for re-recording “The Mountain’s High,” and additional sums for other songs. St. John formerly sang “The Mountain’s High” in a duo with Mary Sperling a/k/a Dee Dee Phelps, and the duo was known as Dick and Dee Dee. By 1976, the duo had parted ways and St. John obtained express permission from Dee Dee Phelps to re-record “The Mountain’s High” on his own. This authorization is attached to the September 1976 contract between St. John and S.J. Productions, which Dee Dee Phelps also executed. St. John testified that after signing the first contract in 1976 nothing happened.

He was subsequently re-contacted, and on August 10, 1977, Lofredo, on behalf of Mandala, entered into an agreement with St. John and his wife, Sandy St. John, to re-record “The Mountain’s High” and two other songs for $750 per song. St.

John testified that he did not find it necessary to obtain another authorization from Dee Dee Phelps to enter this August 1977 agreement because he had already received her authorization to re-record “The Mountain’s High.” In an undated agreement, Plaintiff agreed to pay Lofredo $1,300 for supervising the recording of “The Mountain’s High,” as well as additional sums for the other songs. The agreement also shows that Lofredo agreed to assign his rights in the songs to Plaintiff.

In an undated agreement, Mandala assigned to Plaintiff in consideration for $3,900 all the rights it obtained from its August 1977 agreement with St. John in “The Mountain’s High,” as well as the other songs. Plaintiff also agreed to pay for all production costs related to the rerecording. Stone testified that he was present during the recording session of the music of “The Mountain’s High,” and at trial recognized the tape box for the master recording and the track sheets showing that the music was recorded on March 17, 1978 at Plaintiffs recording studio on 3557 Dickerson Road.

Stone testified that he was the recording engineer for that recording session, and mixed the sixteen-track master to the two-track master. Stone, however, was not the vocal engineer, as the lyrics were recorded by St. John and his wife Sandy St. John in California. St. John confirmed that the music “tracks were cut” in Nashville and that he and his wife “did the vocals in a studio on Ventura Boulevard in North Hollywood.” St. John stated that he was paid $750 per song. St. John could not recall whether he was paid pursuant to the first, September 1976 agreement or the second, August 1977 agreement.

It appears that he was paid pursuant to the second, August 1977 agreement, as it required St. John to receive $750 per song, whereas the September 1976 agreement only required payment of $637.50, which St. John did not recall receiving. Plaintiff provided evidence of payment to the other musicians, but did not produce evidence of payment to Lofredo or payment of other production costs. This re-recording of “The Mountain’s High” was released on the album “1961 Original Artists Super Hits, GT-0029.” The album cover states that it was produced and directed by Lofredo, and engineered by Stone.

It also notes that it was distributed exclusively by Gusto. This album was registered with the Copyright Office as a sound recording entitled “Super Hits 1961 — Original Artists,” with the cat-alogue number GT-0029. The copyright registration is effective October 12, 1979, and Plaintiff is listed as the author and copyright claimant. Although the individual sound recordings on the album are not listed on the certificate of registration, they were listed on a label copy of the album deposited with the Copyright Office.

A “Fraulein” On February 20, 1974, Tommy Hill, as President of Gusto, entered into an agreement with Bobby Helms (“Helms”) to purchase the master recording in “Fraulein,” along with several other songs, for a total of $2,500. Track sheets were admitted into evidence showing that “Fraulein” was recorded on February 22, 1974 at Monument Recording Studios, Inc. Tommy Hill is listed as the producer. Plaintiff also submitted a contract with American Federation of Musicians listing the musicians involved in the recording on February 22, 1974, as well as the amounts they were paid.

This recording of “Fraulein” was released on a disk along with “You Are My Special Angel.” This disk was registered with the Copyright Office as a sound recording entitled “You Are My Special Angel b/w Fraulein. GG 808.” The copyright registration is effective August 16, 1977, and Plaintiff is the author and copyright claimant. 5.-7. “Gone, ” “Wings of a Dove, ” and “Fallen Star” On February 22, 1977, Tommy Hill, as President of Gusto, entered into an agreement with Ferlin Husky (“Husky”).

Husky, in consideration for $8,000, assigned to Gusto his “worldwide right, titles and interest for all fields of use now known and hereafter existing in” several Husky recordings, including “Gone,” “Wings of a Dove,” and “Fallen Star.” Stone testified that he was present during the recording session for these three songs, and at trial recognized the tape box for the master recording and the track sheets showing that they were recorded on February 22, 1977. Stone testified that he was the recording and vocals engineer, and he mixed the sixteen-track master to the two-track master.

Plaintiff also submitted a contract with American Federation of Musicians listing the musicians involved in the recording on February 22, 1977, as well as the amounts they were paid. These three recordings were released on the album “Greatest Hits of Ferlin Husky, SD-3018.” The album cover states that it was distributed exclusively by Gusto. This album was registered with the Copyright Office as a sound recording entitled “Favorites of Ferlin Husky,” with the cata-logue number SD-3018. The copyright registration is effective July 11, 1978, and Plaintiff is listed as the author and copyright claimant.

Although the individual sound recordings on the album are not listed on the certificate of registration, they were listed on a label copy of the album deposited with the Copyright Office. 8. “Bottle of Wine” On July 11, 1977, Lofredo, on behalf of Mandala, entered into an agreement with Jimmy Gilmer to re-record “Bottle of Wine,” along with another song. On July 15, 1977, Plaintiff agreed to pay Lofredo $1,300 for supervising the recording of “Bottle of Wine,” as well as additional sums for the other song. The agreement also shows that Lofredo agreed to assign his rights in the songs to Plaintiff.

On July 19, 1977, Mandala assigned to Plaintiff in consideration for $2,600 all the rights it obtained from its agreement with Jimmy Gilmer in “Bottle of Wine,” as well as the other song. Plaintiff also agreed to pay for all production costs related to the re-recording. Stone testified that he was present during the recording session of “Bottle of Wine,” and at trial recognized the tape box for the master recording and the track sheets showing that it was recorded on July 20, 1977 at Plaintiffs recording studio on 3557 Dickerson Road.

Stone identified a photograph of Jimmy Gilmer taken during the recording session. Stone testified that he was the recording and vocal engineer, and he mixed the sixteen-track master to the two-track master. Plaintiff also provided evidence of payment to Lofredo, to other musicians and of other production costs. This re-recording of “Bottle of Wine,” was released on the album “1967 Original Artists Super Hits, GT-0035.” The album cover states that it was produced and directed by Lofredo and engineered by Stone. It also notes that it was distributed by Gusto.

This album was registered with the Copyright Office as a sound recording entitled “Super Hits 1967 — Original Artists,” with the catalogue number GT-0035. The copyright registration is effective October 12, 1979, and Plaintiff is listed as the author and copyright claimant. Although the individual sound recordings on the album are not listed on the certificate of registration, they were listed on a label copy of the album deposited with the Copyright Office. 9.“Patches” On January 7, 1980, Plaintiff entered into an agreement with Clarence Carter to re-record “Patches,” along with two other songs.

Stone testified that he was present during the recording session of “Patches,” and at trial recognized the tape box for the master recording and the track sheets showing that it was recorded on January 17, 1980 at Plaintiffs recording studio on 3557 Dickerson Road. Stone testified that he was the recording and vocal engineer, and he mixed the sixteen-track master to the two-track master. Plaintiff also provided evidence of payment to the musicians and of other production costs.

This re-recording of “Patches” was released on the album “70s Gold, GT-0078.” The album cover states that the executive producer was Lytle, the producer was Lo-fredo and the engineer was Stone. It also notes that it was distributed by Gusto. This album was registered with the Copyright Office as a sound recording entitled “70’s Gold,” with the catalogue number GT-0078. The copyright registration is effective August 27, 1981, and Plaintiff is listed as the author and copyright claimant.

Although the individual sound recordings on the album are not listed on the certificate of registration, they were listed on a label copy of the album deposited with the Copyright Office. 10. “When a Man Loves a Woman” On November 8, 1979, Plaintiff entered into an agreement with Percy Sledge to re-record “When a Man Loves a Woman,” along with several other songs.

Stone testified that he was present during the recording session of “When a Man Loves a Woman,” and at trial recognized the tape box for the master recording and the track sheets showing that it was recorded on November 20, 1979 at Plaintiffs recording studio on 3557 Dickerson Road. Stone identified a photograph of Percy Sledge taken during the recording session. Stone testified that he was the recording and vocal engineer, and he mixed the sixteen-track master to the two-track master.

Plaintiff also provided evidence of payment to Percy Sledge for $6,000 pursuant to the agreement, to the musicians and of other production costs. This re-recording of “When a Man Loves a Woman” was released on the album “Percy Sledge — Greatest Hits, GT-0070.” The album cover states that Lytle was the executive producer and Stone was the engineer. It also notes that it was distributed by Gusto. This album was registered with the Copyright Office as a sound recording entitled “Percy Sledge— Greatest Hits,” with the catalogue number GT-0070.

The copyright registration is effective August 17, 1981, and Plaintiff is listed as the author and copyright claimant.

Although the individual sound recordings on the album are not listed on the certificate of registration, they were listed on a label copy of the album deposited with the Copyright Office. 11. “Ain’t Got No Home” On May 2, 1978, Lofredo, on behalf of Mandala, entered into an agreement with Clarence “Frogman” Henry to re-record “Ain’t Got No Home.” On May 18, 1978, Mandala assigned to Plaintiff in consideration for $5,200 all the rights it obtained from its agreement with Clarence “Frogman” Henry in “Ain’t Got No Home,” as well as the other songs.

Plaintiff also agreed to pay for all production costs related to the re-recording. Stone testified that he was present during the recording session of “Ain’t Got No Home,” and at trial recognized the tape box for the master recording and the track sheets showing that it was recorded on August 10, 1978 at Plaintiffs recording studio on 3557 Dickerson Road. Stone testified that he was the recording and vocal engineer, and he mixed the sixteen-track master to the two-track master. Plaintiff also provided evidence of payment to Lo-fredo, to other musicians and of other production costs.

This re-recording of “Ain’t Got No Home” was released on the album “1956 Super Hits Original Artists, GT-0024.” The album cover states that it was produced and directed by Lofredo and engineered by Stone. It also notes that it was distributed by Gusto. This album was registered with the Copyright Office as a sound recording entitled “Super Hits 1956 — Original Artists,” with the catalogue number GT-0024. The copyright registration is effective October 12, 1979, and Plaintiff is listed as the author and copyright claimant.

Although the individual sound recordings on the album are not listed on the certificate of registration, they were listed on a label copy of the album deposited with the Copyright Office. 12.-15. “My Guy,” “The One Who Really Loves You,” “You Beat Me to the Punch,” and “Two Lovers" On September 18, 1976, Lofredo, on behalf of Mandala, entered into an agreement with Mary Wells to re-record “My Guy,” “The One Who Really Loves You,” “You Beat Me to the Punch,” and “Two Lovers.” In an undated agreement, Plaintiff agreed to pay Lofredo $5,200 for supervising the recording of these four songs.

The agreement also shows that Lofredo agreed to assign his rights in the songs to Plaintiff. On August 8, 1977, Mandala assigned to Plaintiff in consideration for $5,200 all the rights it obtained from its agreement with Mary Wells in these four songs Plaintiff also agreed to pay for all production costs related to the re-recording. Stone testified that he was present during the recording sessions of these four songs. Stone identified photographs of Mary Wells taken during the recording session.

Stone testified that he was the recording and vocal engineer, and he mixed the sixteen-track master to the two-track master for all four songs. Plaintiff also provided evidence of payment to Lo-fredo, of travel costs to Mary Wells, to other musicians and of other production costs. These four re-recordings were released on the album “Dobie Gray and Mary Wells — Greatest Hits, PO-313.” The album cover states that it was produced and directed by Lofredo and that Stone was the recording and remix engineer. Lofre-do also included a personal note on the album cover stating: “personal thanks to Mr. Moe Lytle....

The following talented ingredients helped make this album possible: ... Mike Stone — Mixer.... ” It also notes that it was distributed exclusively by Gusto. This album was registered with the Copyright Office as a sound recording entitled “Dobie Gray and Mary Wells.. Greatest Hits,” with the catalogue number PO 313. The copyright registration is effective July 11, 1978, and Plaintiff is listed as the author and copyright claimant.

Although the individual sound recordings on the album are not listed on the certificate of registration, they were listed on a label copy of the album deposited with the Copyright Office. 16. “Family Bible” On February 15, 1977, Tommy Hill, on behalf of Gusto, entered into an agreement with Claude Gray to purchase the master recording in “Family Bible,” along with several other songs. Plaintiff agreed to pay Gray $1,680.

Stone testified that he was present during the recording session of “Family Bible,” and at trial recognized the tape box for the master recording and the track sheets showing that it was recorded on February 14, 1977. Stone testified that he was the recording and vocal engineer, and he mixed the sixteen-track master to the two-track master. This re-recording of “Family Bible” was released on the album “Country Gospel, GT-0069.” The album cover states that it was recorded at Gusto Studios and Lytle was the executive producer, while Stone was the engineer and remixer.

This album was registered with the Copyright Office as a sound recording entitled “Country Gospel,” with the catalogue number GT-0069. The copyright registration is effective August 17, 1981, and Plaintiff is listed as the author and copyright claimant.

Although the individual sound recordings on the album are not listed on the certificate of registration, they were listed on a label copy of the album deposited with the Copyright Office. 17. “Magnificent Sanctuary Band” On April 13, 1978, Plaintiff entered into an agreement with Dorsey Burnette to rerecord “Magnificent Sanctuary Band,” along with several other songs.

Stone testified that he was present during the recording session of “Magnificent Sanctuary Band,” and at trial recognized the tape box for the master recording and the track sheets showing that it was recorded on April 11, 1978 at Plaintiffs recording studio on 3557 Dickerson Road. Stone identified a photograph of Dorsey Bur-nette taken during the recording session. Stone testified that he was the recording engineer for the recording session and he mixed the sixteen-track master to the two-track master.

Plaintiff also provided evidence of payment to Dorsey Burnette for $5,200 pursuant to the agreement, to the musicians and of other production costs. This re-recording of “Magnificent Sanctuary Band” was released on the album “The Golden Hits of Dorsey Burnette, GT-0050.” The album cover states that Lytle was the executive producer and Stone was an engineer. It also notes that it was distributed by Gusto. This album was registered with the Copyright Office as a sound recording entitled “The Golden Hits of Dorsey Burnette,” with the catalogue number GT-0050.

The copyright registration is effective September 24, 1979, and Plaintiff is listed as the author and copyright claimant. Although the individual sound recordings on the album are not listed on the certificate of registration, they were listed on a label copy of the album deposited with the Copyright Office. 18.Amazing Grace” On March 23,1977, Plaintiff entered into an agreement with Charles David Houston (“Houston”) to record certain master recordings specifically for Plaintiff.

Houston was to record master recordings for four two-sided singles during the first year of the contract, and the parties could agree to extend the agreement for additional master recordings. Plaintiff obtained the right to copyright such recordings. Plaintiff agreed to pay Houston royalties after the recording, as well as an advance royalty of $30,000. Pursuant to this agreement Houston recorded “Amazing Grace” for Plaintiff. Stone identified a photograph of Houston taken during the recording session.

Stone testified that he was present during the recording session of “Amazing Grace,” and at trial recognized the tape box for the master recording and the track sheets showing that it was recorded in May 1977 at Plaintiffs recording studio on 3557 Dickerson Road. Stone testified that he was the recording engineer for the recording session and he mixed the sixteen-track master to the two-track master. Plaintiff also provided evidence of partial payment of the advance royalty to Houston in the amount of $15,000 pursuant to the agreement, as well as payment to the musicians and of other production costs.

This recording of “Amazing Grace,” was released on a disk entitled “Amazing Grace, SD 161.” The label states that it was distributed by Gusto. “Amazing Grace” was registered with the Copyright Office as a sound recording, along with “Return to Me.” The copyright registration was filed July 8, 1977, and Plaintiff is listed as the author and the copyright claimant. 19. “Keep Searchin’ ” On July 21, 1977, Lofredo, on behalf of Mandala, entered into an agreement with Del Shannon to re-record “Keep Sear-chin’,” along with other songs.

In an undated agreement, Plaintiff agreed to pay Lofredo $1,300 for supervising the recording of “Keep Searchin’,” as well as additional sums for the other songs. The agreement also shows that Lofredo agreed to assign his rights in the songs to Plaintiff. On November 21, 1977, Mandala assigned to Plaintiff in consideration for $5,200 all the rights it obtained from its agreement with Del Shannon in “Keep Searchin’,” as well as the other songs. Plaintiff also agreed to pay for all production costs related to the re-recording.

Stone testified that he was present during the recording of the music of “Keep Searchin’,” but he was not present for the recording of Del Shannon’s vocal tracks. Stone testified that the master tape was sent to California for the vocal track to be completed, and when they were returned, they contained the vocal tracks. Stone testified that he was the recording engineer for the music track and he mixed the sixteen-track master to the two-track master. Plaintiff also provided evidence of payment to Lofredo, to other musicians and of other production costs.

This re-recording of “Keep Sear-chin’ ” was released on the cassette tape “20 Greatest Hits 1963 Original Artists, DLX 7804.” The cassette does not identify Plaintiff as the producer or distributor, but Lytle testified that the cassette was made by a third party from Plaintiffs master recording. This cassette tape was registered with the Copyright Office as a compilation of sound recordings entitled “20 Greatest Hits 1963 Original Artists,” with the catalogue number DLX 7804. The copyright registration is effective October 1, 1991, and Gusto is listed as the author and GML is listed as the copyright claimant.

Although the individual sound recordings on the cassette tape are not listed on the certificate of registration, they were listed on a label copy of the tape deposited with the Copyright Office. On April 7, 2000, GML assigned to Gusto its rights, including the copyright registration, in “Keep Searchin’.” This assignment was recorded with the Copyright Office on October 2, 2000. 20. “Take This Job and Shove It” On November 28, 1982, Plaintiff entered into an agreement with Johnny Paycheck to re-record “Take this Job and Shove It,” along with nine other songs.

Plaintiff agreed to pay Johnny Paycheck an advance of $10,000 for the master recording of each song, and a royalty of one cent per song sold thereafter. Track sheets and photographs of the recording session were admitted into evidence showing that “Take this Job and Shove It” was recorded at Plaintiffs recording studio on 3557 Dickerson Road. Stone, although not involved in the recording, identified and authenticated the master tapes containing “Take this Job and Shove It,” as tapes held in Plaintiffs vault in the regular course of business.

This re-recording of “Take this Job and Shove It” was released on the album “Johnny Paycheck-Golden Classics, GT-0098.” The album cover states that Lytle was the executive producer. It also notes that it was distributed by Gusto. This album was registered with the Copyright Office as a sound recording entitled “Johnny Paycheck — Golden Classics,” with the catalogue number GT-0098. The copyright registration is effective October 22, 1990, and Gusto is listed as the author and GML is listed as the copyright claimant.

The individual sound recordings on the album, including “Take this Job and Shove It,” are listed on the certificate of registration.

On April 7, 2000, GML assigned to Gusto its rights, including the copyright registration, in “Take this Job and Shove It.” This assignment was recorded with the Copyright Office on October 2, 2000. 21. “Good Morning Starshine” On July 11, 1977, Lofredo, on behalf of Mandala, entered into an agreement with Oliver a/k/a/ William Swafford to re-record “Good Morning Starshine.” In an undated agreement, Plaintiff agreed to pay Lofredo $1,300 for supervising the recording of “Good Morning Starshine,” as well as additional sums for the other songs.

The agreement also shows that Lofredo agreed to assign his rights in “Good Morning Starshine” to Plaintiff. On February 21, 1978, Mandala assigned to Plaintiff in consideration for $2,600 all the rights it obtained from its agreement with Oliver in “Good Morning Starshine.” Plaintiff also agreed to pay for all production costs related to the recording.

Stone testified that he was present during the recording session of “Good Morning Starshine,” and at trial recognized the tape box for the master recording and the track sheets showing that it was recorded on November 28,1977 at Plaintiffs recording studio on 3557 Dickerson Road in Nashville. Stone identified a photograph of Oliver at Plaintiffs recording studio. Stone testified that he was the recording and vocal engineer, and he mixed the sixteen-track master to the two-track master. Plaintiff also provided evidence of payment to Lofredo, to other musicians and of other production costs.

This re-recording of “Good Morning Starshine” was released on the cassette tape “20 Greatest Hits 1970 Original Artists, DLX 7875.” The cassette does not identify Plaintiff as the producer or distributor, but Lytle testified that the cassette was made by a third party from Plaintiffs master recording. This cassette tape was registered with the Copyright Office as a compilation of sound recordings entitled “20 Greatest Hits 1970 Original Artists,” with the catalogue number DLX 7875.

The copyright registration is effective October 1, 1990, and Gusto is listed as the author and GML is listed as the copyright claimant. The individual songs on the cassette tape, including “Good Morning Starshine,” are listed on the certificate of registration. On April 7, 2000, GML assigned to Gusto its rights, including the copyright registration, in “Good Morning Starshine.” This assignment was recorded with the Copyright Office on October 2, 2000. C. K-Tel Contracts In the late 1970s, another Tennessee based company, S.J. Productions was also in the music recording business.

Lofredo, who had solicited artists for Plaintiff, was instrumental in soliciting artists to re-record songs for S.J. Productions. As a result, S.J. Productions entered into separate agreements to re-record eighteen of the twenty-one titles that are at issue in Count II. S.J. Productions was in a joint venture with K-Tel Records (“K-Tel”). After entering into the agreements with the artists, S.J. Productions assigned the agreements to K-Tel. The K-Tel/S.J.

Productions joint venture produced master recordings pursuant to these agreements at its recording studio, Audio Media Recorders, Inc. (“Audio Media”) on 19th Avenue South in Nashville. Stone, who worked for Plaintiff as a recording engineer from 1976 to 1981, was employed by the K-Tel/S.J. Productions joint venture from 1974 to 1976. Stone may have been the recording engineer for certain of the recordings sessions at Audio Media. K-Tel has agreements and track sheets showing recording sessions for eighteen of the twenty-one sound recordings that are at issue in Count II.

These agreements and recording sessions are as follows: • Agreement dated November 15, 1975 between S.J. Productions and Jimmy Clan-ton to record a master recording of “Venus in Blue Jeans.” • Recorded on October 31, 1975 at Audio Media. • Agreement dated September 20,1976 between S.J. Productions and St. John to record a master recording of “The Mountain’s High.” • Recorded on September 17, 1976 at Audio Media. • Agreement dated June 5, 1976 between S.J.

Productions and Bobby Helms to record a master recording of “Fraulein.” • Recorded on June 17, 1976 at Audio Media. • Agreements dated December 18, 1975 and August 7, 1976 between S.J. Productions and Ferlin Husky to record master recordings of “Fallen Star,” “Gone,” and “Wings of a Dove.” • “Wings of a Dove” recorded on June 17, 1976 at Audio Media. No record of recording of “Fallen Star” or “Gone.” • Agreement executed in 1975 between S.J. Productions and Jimmy Gilmer to record a master recording of “Bottle of Wine.” • Recorded on October 31, 1975 at Audio Media. • Agreement dated August 28, 1978 between S.J.

Productions and Clarence Carter to record a master recording of “Patches.” • Recorded at Audio Media; date of recording unknown. • Agreement dated July 16, 1979 between S.J. Productions and Percy Sledge to record a master recording of “When a Man Loves a Woman.” • Recorded on August 10, 1979 at Audio Media. • Agreement dated May 20, 1977 between S.J. Productions and Clarence “Frogman” Henry to record a master recording of “Ain’t Got No Home.” • Recorded on May 19, 1977 at Audio Media. • Agreements dated January 15, 1976 and September 21, 1976 between S.J.

Productions and Mary Wells to record master recordings of “My Guy,” “Two Lovers,” “The One Who Really Loves You,” and “You Beat Me to The Punch.” • “My Guy” and ‘You Beat Me to The Punch” recorded on January 30, 1976 at Audio Media. • “Two Lovers” and “The One Who Really Loves You” recorded on September 17,1976 at Audio Media. • Agreement dated June 7, 1976 between S.J. Productions and Claude Gray to record a master recording of “Family Bible;” • Recorded on June 17, 1976 at Audio Media. • Agreement dated August 3, 1976 between S.J.

Productions and Del Shannon to record a master recording of “Keep Searchin’;” • Recorded at Audio Media; date of recording unknown. • Agreement dated December 22, 1982 between S.J. Productions and Johnny Paycheck to record a master recording of “Take This Job and Shove It,” along with fifteen other songs. • Recorded on December 22, 1982 at Audio Media. • Agreement dated June 16, 1976 between S.J. Productions and Oliver to record a master recording of “Good Morning Starshine.” • Recorded on July 28, 1976 at Audio Media.

Notwithstanding the Lofredo-Stone connection, a review of the agreements and track sheets described above demonstrates that, with the exception of “Fraulein,” certain of Mary Wells’ songs, and “Take This Job and Shove It,” the K-Tel/S.J. Productions artist agreements were executed before Plaintiff entered into its artist agreements. The K-Tel/S.J. Productions agreements were non-exclusive, included payment terms and songs that were not in Plaintiffs agreements.

Therefore, there appear to be two separate master recordings, one by K-Tel and the other by Plaintiff, for eighteen of the twenty-one sound recordings in Count II. D. KRB’s Purchase of the Titles in Count I and II Turning now to Defendant KRB’s purchase of twenty-one sound recordings and the musical composition (hereinafter referred to collectively as the “Titles”). KRB has two methods of obtaining the music product it sells: (1) third parties manufacture product to be sold under the KRB label; or

(2) KRB purchases cassettes and compact discs from third parties and sells that finished product under whatever label the third party puts on it. KRB obtained the songs at issue in Count I and Count II through both these methods. On January 11, 1995, KRB entered into a license agreement with Peachtree Music, Inc. (“Peachtree”). Jim Horner (“Hor-ner”) was the principal of Peachtree. Peachtree represented that it owned and controlled hundreds of audio recordings by popular artists in the form of “records.” These records and the audio recordings contained therein were listed in

Schedule A of the agreement.

Schedule A is 143 pages long and includes two parts. The first

part includes a photocopy of the record “cover” with an image or photo of the artist(

s) and a list of the songs on the record. The second

part is a list of the audio recordings per artist, which were being conveyed. According to Plaintiff,

Schedule A lists approximately 9,000 audio recordings. Pursuant to the agreement, Peachtree granted KRB the nonexclusive license to reproduce, manufacture and sell the audio recordings in the form of records. The term of the licensing agreement was for twenty-five years, ending on December 31, 2020. In addition, KRB also purchased the masters of three audio recordings. KRB had the exclusive right to reproduce and distribute these three audio recordings. The purchase price of the agreement was $50,000. Peachtree warranted that it owned the full and unrestricted right to license the audio recordings to KRB.

The agreement disclosed two lawsuits in which Horner was involved. One of the lawsuits was initiated in Federal Court in the Middle District of Tennessee, Civil Action No. 3-92-0431 by Gusto against Classic Sound, Inc. (“Classic Sound”), another of Horner’s companies, Horner, and several other companies (the “Classic Sound Lawsuit”). Notwithstanding the disclosure of this lawsuit, the agreement included the following clause: “2.6 Claims or Legal Actions.

No claims or legal actions exist with respect to the rights of [Peach-tree] ... to sublicense the [audio recordings] ... to [KRB] ... in accordance with the terms of this Agreement.” Finally, the agreement provided that KRB was “responsible for the reporting of reproduction of the audio recordings and payment of resulting mechanical license fees and royalties.... ” KRB obtained the exclusive right to reproduce and sell the one musical composition in Count I and two sound recordings in Count II through the license agreement with Peachtree. The songs sold on KRB’s own label were manufactured by Classic Sound.

Thus, KRB purchased, manufactured and sold on its own product label: (1) “Don’t Fall Asleep at the Wheel” by Husky, sold on a cassette entitled Truck Drivin’ Son of a Gun, Product No. KRB 5037; (2) “Patches” by Clarence Carter, sold on a cassette entitled Spotlight Soul 1, Product No. KRB 5135; and (3) “When a Man Loves a Woman” by Percy Sledge, sold on a cassette entitled Spotlight Soul 2, Product No. KRB 5136. A significant aspect of KRB’s business is buying and selling finished goods called “closeouts” from third parties.

KRB obtained the rights to the remaining nineteen sound recordings in Count II through closeout purchases from Creative Sounds, Ltd. (“Creative Sounds”) a company run by John LaMonte (“LaMonte”); Red Dog Express, Inc. (“Red Dog Express”) a company run by Marshall Sehorn (“Sehorn”) that also did business with Creative Sounds; and Golden Circle, a company that went out of business in approximately 1993. No documentation evidencing any agreements between KRB and these companies was presented at trial.

KRB obtained the following five sound recordings at issue in Count II from Red Dog Express and Creative Sounds: (1) “Keep Searchin’ ” by Del Shannon, sold on a cassette entitled Rock and Roll, Hall of Fame, Volume VIII, Product No. 1008; (2) “Bottle of Wine” by Jimmy Gilmer, sold on a cassette entitled Endless Summer, Vol. II, Product No. 1121; (3) “Ain’t Got No Home” by Clarence “Frogman” Henry, sold on a cassette entitled Good Bye Vietnam, Vol. II, Product No. 3601; (4) “The Mountain’s High” by Dick & Dee Dee, sold on a cassette entitled Dirty Dancing, Vol.

I., Product No. 3610; and (5) “Charlie Brown” by The Coasters, sold on a cassette entitled More Dirty Dancing, Vol. I., Product No. 3612. KRB obtained the following nine sound recordings at issue in Count II from Creative Sounds: (1) “Good Morning Starshine” by Oliver, sold on a cassette entitled Groovin’ Greats/ Hits of the 60’s, Vol. I., Product No. CSI-520-4; (2)-(3) “Amazing Grace” by David Houston and “Magnificent Sanctuary Band” by Dorsey Burnette, sold on a cassette entitled Classic Southern Gospel, Gospel Classics, Vol. 4, Product No.

SSI 154; (4) “Family Bible” by Claude Gray, sold on a cassette entitled Classic Southern Gospel, Gospel Classics, Vol. 5, Product No. SSI 155; (5)-(6) “Fraulein” by Bobby Helms and “Gone” by Ferlin Husky, sold on a cassette entitled Country Stars: Original Artists, Vol. 2, Product No. SSI 3516; (7) “Wings of a Dove” by Ferlin Husky, sold on cassettes entitled Country Stars: Original Artists, Vol. 5; Classic Southern Gospel, Original Artists, Vol. I; and Country Stars, Vol. 4, bearing Product Nos.

SSI 3519, SSI 151, and CSI 518, respectively; (8) “Fallen Star” by Ferlin Husky, sold on a cassette entitled Country Stars: Original Artists, Vol. 8, Product No. SSI 3522; and (9) “Venus In Blue Jeans” by Jimmy Clanton, on a cassette entitled Solid Gold Hits, Vol. VI, Product No. CSL 1006. KRB obtained the following five sound recordings at issue in Count II from Golden Circle: (1) “Take This Job and Shove It” by Johnny Paycheck, on cassettes entitled Johnny Pay Check, Take this Job and Shove It, and 16 Country Classics, bearing Product Nos.

GK47549 and KRD 4818 respectively; (2)-(5) “The One Who Really Loves You,” “My Guy,” “You Beat Me To The Punch,” and “Two Lovers” by Mary Wells, on a cassette entitled Mary Wells — My Guy, Product No. GK 57722. E. KRB’s Sale to Big Lots of the Titles in Count I and II KRB supplied all the Titles to Big Lots. Lytle stated that he purchased several cassettes containing all of the Titles at issue from various Big Lots stores in December 1997, January 1998, and February 1998.

Notwithstanding the fact that Lytle purchased several cassettes containing all of the Titles, Defendants contend that they have no record of buying or selling eleven of the sound recordings in Count II. Defendants provide three alternative explanations for how Lytle could have purchased products containing the sound recordings at issue in Count II, even though Defendants have no record of purchasing or selling them. First, Defendants contend that it is possible that KRB received de minimis amounts of these sound recordings due to mistake by the seller.

Second, KRB may have purchased small amounts of pre-packs or closeout purchases containing these sound recordings. The individual sound recordings from such purchases would not be reflected in KRB’s accounting system. Instead, the individual sound recordings would be placed in a mixed category. Third, Defendants maintain that due to Big Lots’ flexible return policy, certain cassettes containing the sound recordings at issue may have been returned to Big Lots and placed on KRB’s rack even though KRB had not sold the product to Big Lots.

In 2002, Big Lots decided to stop selling cassettes and returned approximately 800,-000 cassettes to KRB. These cassettes were shipped from approximately 1,300 different retail stores across the country to Level Two, a warehouse rented by KRB. Pursuant to a Court order, Plaintiff was granted the right over a sixty-day period to inspect all of the cassettes at the warehouse. During this inspection, Plaintiff found small quantities of six of the sound recordings that Defendant had no record of selling to Big Lots.

Although KRB does not have any record of purchasing from third parties or selling to Big Lots eleven of the sound recordings at issue in Count II, the Court concludes that KRB placed all the Titles in Big Lots stores for sale to the public. The Court comes to this conclusion due to the fact that KRB was the exclusive supplier to Big Lots of music product prior to 2002; therefore, only KRB could have supplied Big Lots with these cassettes. Moreover, several Titles were found in Plaintiffs inspection of the returned product from Big Lots.

While KRB maintains that certain of the returned cassettes came from other sources due to Big Lots flexible return policy, the Court finds that implausible due to the exclusive nature of KRB’s relationship with Big Lots, and the fact that the cassettes found in the inspection had KRB suppliers’ product numbers on the cover. Finally, KRB concedes that the fact that it does not have a record of purchasing or selling certain Titles, does not mean that it did not purchase or sell the Titles. This is because certain purchases were recorded in mixed categories rather than by individual song titles.

In sum, the evidence demonstrates that KRB sold all the Titles to Big Lots. F. The Lawsuit At some point, Lytle heard rumors that Bennett was buying product from Horner’s company, Classic Sound, which Plaintiff had sued for copyright infringement. Ly-tle knew that KRB serviced Big Lots stores and thus went to investigate whether KRB was supplying Big Lots with infringing product. Lytle purchased the KRB products at issue in this litigation at various Big Lots stores in December 1997, January 1998, and February 1998.

After purchasing the product, Lytle had his employees listen to KRB’s product and compare it to Plaintiffs product. Through this comparison, Lytle formed the belief that KRB’s products were copies of Plaintiffs recordings. Some time before purchasing the KRB product from Big Lots, Lytle had contacted Bennett by telephone. The evidence is unclear whether Lytle called Bennett to discuss whether KRB was exploiting Plaintiffs recordings or to discuss a potential business opportunity. Subsequently, Lytle and Bennett had a meeting in 1997.

The exact date of the meeting is unclear, as Lytle testified that it occurred in December 1997, while Bennett testified that it occurred in the summer of 1997. During that meeting, Lytle expressed his concerns that Bennett was infringing on Plaintiffs copyrighted recordings. Bennett requested Lytle to provide a list of potentially infringing product and provide proof that Lytle owned the recordings that he claimed were being infringed. Bennett had taken to the meeting a copy of the Classic Sound catalogue. Neither party explained what titles were included in the Classic Sound catalogue.

However, the Plaintiff alleges, and the Court surmises, that it includes the same titles that were a part of the Peachtree Agreement because Peachtree and Classic Sound were both controlled by Horner and the only titles Bennett received the right to exploit from Horner were contained in the Peachtree Agreement. Lytle asked to see and keep a copy of the Classic Sound catalogue, as he believed it included titles involved in the Classic Sound Lawsuit. Bennett refused to provide the catalogue on the basis that it contained third party proprietary information.

On February 3, 1998, Lytle wrote Bennett a letter stating that Lytle continued to believe that KRB was illegally selling Lytle’s Titles. By the time he wrote the letter, Lytle had already purchased all of KRB’s product that are at issue in this case. Nevertheless, Lytle did not furnish Bennett with a list of the allegedly infringing product or any evidence to prove his ownership of that product.

Instead, Lytle simply made a broad allegation that KRB was “handling bootleg copies of G.M.L./Gusto’s masters.” Lytle stated “I should have known [that you were selling bootleg copies], when you refused to let me see and copy a Classic Sound catalog that you had.... ” Lytle concluded his letter by stating “I feel I have no choice left except to give it to my lawyers.” Bennett responded to Lytle’s letter on February 17,1998.

In that response, Bennett reiterated that Lytle’s concerns “never reached a specific statement ... of any particular violation.... ” Bennett further pointed out that Lytle’s February 3, 1998 letter still did “not raise any specific issue.” Bennett stated “I am unable to provide you with any response without a specific statement of license violation.” Bennett also reiterated that he would not provide the Classic Sound catalogue because it was third party proprietary information.

Bennett stated that he was aware that Plaintiff was involved in the Classic Sound Lawsuit and was “not interested in being a pawn regarding any issues in that litigation or marketing competition.” Bennett further stated that he was “interested in performing all of [his] legal obligations on a correct and timely basis in order to maintain [his] reputation and preserve future opportunities to license recordings with valuable publishers such as [Lytle].” Bennett again requested specific information regarding the alleged infringement.

On August 20, 1999, prior to the start of this lawsuit, Lytle settled its litigation with Horner and Classic Sound. Neither Lytle nor Horner provided Defendants with any notice of the settlement agreement. Two years after exchanging letters with Bennett, in February 2000, Lytle returned to a Big Lots store. Lytle purchased additional KRB music product that he believed contained Plaintiffs recordings. This lawsuit ensued in April 2000. Promptly upon being served with the Complaint, KRB took immediate steps to stop the exploitation of any of. the titles identified in the Complaint.

KRB issued memoranda to KRB employees and contractors instructing them to stop the purchase and sale of any of the titles identified in the Complaint. KRB also instructed its independent service representatives that serviced the music racks in the Big Lots stores across the country to remove from the racks the titles identified in the Complaint. The parties conducted a highly protracted and contentious discovery prior to coming to trial. G.

Comparison of KRB’s Products to Plaintiff’s Master Recordings At trial, in addition to the factual testimony concerning the creation and ownership of all the Titles, Stone offered an expert opinion that Defendants had copied Plaintiffs Titles. Stone has almost forty years experience in the music industry, has extensive experience as an audio engineer and has mixed more than 350 albums and singles. He also designed and relocated the control room in Plaintiffs recording studio.

Stone is a past member of the Audio Engineering Society and the National Academy of Recording Arts and Sciences, and has been twice elected to the latter’s board of governors. He is also a member of the Atlanta Studio Audio Professionals and the National Association of Music Merchandisers. Stone used Plaintiffs two-track master recordings to make the comparisons because the two-track master recordings are the final masters from which finished products such as tapes and compact discs are made, whereas the sixteen-track master recordings are working masters.

In performing his analysis, Stone looked for certain “footprints” that could be identified in Plaintiffs recordings and that would have been reproduced if KRB had copied Plaintiffs products. Stone identified numerous “footprints” and distinctive characteristics on KRB’s product that were identical to Plaintiffs two-track master recordings, including distinct vocal or instrumental performances and, in some instances, mistakes and sound effects that would be almost impossible to re-create intentionally.

Stone ultimately concluded that the sounds on KRB’s product were identical to the sounds appearing on Plaintiffs two-track master recordings. On cross-examination, Defendants attempted to impeach Stone’s credibility. As noted above, it appears that while with the K-Tel/S.J. Productions joint venture, Stone may have been the recording engineer for certain of the songs for which both K-Tel and Plaintiff have recordings. Stone, however, could not recall the details regarding the K-Tel/S.J. Productions joint venture recording sessions.

Defendants questioned how Stone could recall minute details regarding Plaintiffs recording sessions, but had no memory of the K-Tel/ S.J. Productions joint venture recording sessions. Defendants implied that this is indicative of the fact that Stone actually recorded the Titles at issue in the present lawsuit for the K-Tel/S.J. Productions joint venture and not for Plaintiff. While the Court notes that Stone has significant ties with Plaintiff, the Court found Stone to be a credible witness.

Furthermore, his testimony that recording sessions for the Titles occurred at Plaintiffs recording studio was supported with significant documentary evidence. Importantly, Defendants did not show in which K-Tel/S.J. Productions recording sessions Stone participated. The Court’s own analysis of the recording sheets for the K-Tel/S.J. Productions reveals that Stone may have been a recording engineer for some of the same sound recordings involved in Count II. Defendants neglected to ask Stone to authenticate his signature on these recording sheets.

As a result, it is unclear if Stone participated in recordings sessions for any of the K-Tel/S.J. Productions master recordings. Finally, Defendants did not present a comparison between Plaintiffs and K-Tel’s master recordings. Therefore, their allegation that Stone’s memory is faulty and he is recounting the recording sessions that took place at the recording studio for the K-Tel/S.J. Productions joint venture is unsubstantiated. Similarly, Defendants question Stone’s neutrality as an expert because of his ties to Plaintiff.

Defendants, however, did not challenge Stone’s actual comparison of Plaintiffs two-track masters to KRB’s product. Indeed, Defendants offered no evidence to rebut Stone’s opinion regarding the similarities between KRB’s product and Plaintiffs Titles. Defendants further contend that Stone should have compared the sixteen-track master recordings to KRB’s product, instead of relying only on the two-track master recordings. Such a comparison would have been irrelevant because Plaintiff is not arguing infringement of the sixteen-track masters.

Indeed Plaintiff cannot because it did not copyright the sixteen-track masters; Plaintiff only copyrighted the two-track masters. Consequently, the Court finds Stone to be a credible fact and expert witness and adopts in its entirety his expert report, which was read into the record. (See Doc. No. 199, Trial Tr. Vol. I at 69-153.) II. DISCUSSION A. Copyright Infringement 1. Ownership In order to establish a claim for copyright infringement, a plaintiff must establish that it owns a copyrighted work. Kohus v. Mariol, 328 F.3d 848, 853 (6th Cir.2003).

A certificate of registration constitutes prima facie evidence of the ownership and validity of the copyright, which evidence is rebuttable. Boisson v. Banian, Ltd., 273 F.3d 262, 268 (2d Cir.2001). “[T]he burden of proving ownership is at all times on the party claiming infringement.” BancTraining Video Sys. v. First Am. Corp., No. 91-5340, 1992 WL 42345, at *4 (6th Cir. Mar.3, 1992). a. Count I — “Don’t Fall Asleep at The Wheel” The certificate of registration for “Don’t Fall Asleep at the Wheel” would normally constitute prima facie evidence of ownership.

However, the certificate of registration incorrectly lists the claimant as Power Play Music, Inc. First, Power Play Music, Inc. is not the named plaintiff in this case. Second, there is no evidence in the record that a corporation entitled Power Play Music, Inc. existed on December 18, 1992, the effective date of the certificate of registration.

The evidence shows that the original authors of the musical composition, John Riggs and Gary Lumpkin, transferred their rights in “Don’t Fall Asleep at the Wheel” to “Power Play Music, a Division of Gusto Records.” Lytle testified at trial that the copyright claimant on the registration should have been “Power Play Music, a Division of Gusto Records,” and the reference to “Power Play Music, Inc.” was a mistake. In an apparent attempt to rectify the mistake, Lytle executed two assignments and Kountzman executed one assignment purporting to assign the rights in “Don’t Fall Asleep at the Wheel” to Plaintiff.

Plaintiff, it seems, was entirely asleep at the wheel, as these assignments are riddled with error and, more fundamentally, are completely invalid. The first is from GML to Plaintiff. GML never owned the rights in this musical composition so it could not transfer them to Plaintiff. The second assignment is from Power Play Music, Inc. to Plaintiff. This assignment is also invalid because Power Play Music, Inc. did not exist at the time the assignment was executed. The third assignment is from Power Play Music, Inc. or Power Play, Inc., neither of which existed at the time of the assignment.

It is worth noting that even if Power Play Music, Inc. had existed at the time of the assignments, it could not have assigned any rights in “Don’t Fall Asleep at the Wheel” to Plaintiff because it did not own any of the rights. The only entity that could execute a valid assignment was “Power Play Music, a Division of Gusto.” The futile assignments aside, the question remains whether a mistake regarding the identity of the copyright claimant on the certificate of registration invalidates the copyright.

Courts are generally lenient with regard to defects in copyright registrations, as they seek to preserve copyrights. Urantia Found, v. Burton, No. K 75-255 CA 4, 1980 WL 1176, at *3, 1980 U.S. Dist. LEXIS 16302, at *9 (W.D.Mich. Aug. 27, 1980). This is especially true when the mistake did not affect the decision of the Copyright Office in issuing the certificate. Id. at *3-4, 1980 U.S. Dist. LEXIS 16302, at *10.

In an effort to preserve copyrights, the Sixth Circuit has held that an innocent misstatement or clerical error in the application and certificate of registration, if unaccompanied by fraud, does not invalidate the copyright nor render the certificate of registration incapable of supporting an infringement action. Advisers, Inc. v. Wiesen-Hart, Inc., 238 F.2d 706, 708 (6th Cir.1956); 2 Nimmer on Copyright, § 7.20[B], at 7-210. Thus, parties seeking to prove fraud or prejudice sufficient to invalidate a copyright bear a heavy burden. Lennon v. Seaman, 84 F.Supp.2d 522, 525 (S.D.N.Y.2000).

An unintentional error in a certificate of registration that does not mislead the public as to the existence of the copyright or the true owner of the copyright or otherwise prejudice a defendant does not invalidate the certificate of registration. Bourne Co. v. Walt Disney Co., No. 91 Civ. 344, 1992 WL 489766, at *1-2, 1992 U.S. Dist. LEXIS 22729, at *4 (S.D.N.Y. Dec. 1, 1992) (holding that copyright claimant mistakenly identified as dissolved entity, Bourne, Inc. instead of Bourne, Co., was insufficient to invalidate certificate of registration absent showing of prejudice); Alart Assoc., Inc. v.

Aptaker, 279 F.Supp. 268, 270 (S.D.N.Y.1968) (holding that misidentified copyright claimant Alart, Inc. was sufficiently close to plaintiffs true name, Alart Associates, Inc., to identify plaintiff as copyright owner such that public would be aware of existence of copyright and not be misled). Applying these principles, courts have held that the improper designation of the copyright claimant on a registration certificate is not grounds to dismiss an infringement claim. See Wales Indus. Inc. v. Hasbro Bradley, Inc., 612 F.Supp. 510 (S.D.N.Y.1985), overruled on other grounds by Hasbro Bradley, Inc. v.

Sparkle Toys, Inc., 780 F.2d 189 (2d Cir.1985). Hasbro sued Wales for copyright infringement. Wales argued that Hasbro had misidentified itself as a copyright claimant when Hasbro was in fact only a limited licensee. Id. at 515. The court noted that even assuming Wales was correct, Hasbro could still maintain an action for copyright infringement: Hasbro’s error, if any, would not be jurisdictional but a technical misdescription: it should have identified Takara rather than itself as the “copyright claimant” on the registration applications it submitted.

Such error could be readily corrected by Hasbro’s filing supplementary registrations with the Copyright Office. Since there is no indication that the claimed error was committed knowingly, and since the identification of the copyright claimant as Takara rather than Hasbro would not have occasioned rejection of the applications by the Copyright Office, the alleged error would not require dismissal of Hasbro’s infringement claims. Id. Likewise, in Dealer Adver. Dev., Inc. v. Barbara Allan Fin. Adver., Inc., No. K 77-251 CA 4,1979 WL 1079, at *16-17, 1979 U.S. Dist LEXIS 8428, at *43-46 (W.D.Mich.

Nov. 21, 1979), the court upheld the validity of a registration that contained mistakes regarding the corporate copyright claimant’s state of incorporation. The court reasoned that 1) the state of incorporation was mere surplusage, since there was no legal requirement to include such information, and 2) even assuming an error in identification, such error would not affect the validity as there was no prejudice to the public because the corporate copyright claimant’s name remained the same and the copyright notice that applied to the works remained the same. Id. at *16-17, 1979 U.S. Dist LEXIS 8428, at 44-45.

As the court explained: “Mere technicalities should not be permitted to diminish the benefits conferred by the certificate of copyright registration, particularly when, as here, neither the defendants nor the public could have been prejudiced by the alleged deviation.” Id. at *16, 1979 U.S. Dist LEXIS 8428, at 43. Most of the above-cited cases found that a mistake in the identity of the corporate copyright claimant was a “technical” error. They did so, however, because the mistake in identity was minimal.

Either the name on the certificate of registration was close, but not identical to the plaintiff, or the name was the same, but the state of incorporation was incorrectly identified. In the present case, however, the name of corporate copyright claimant, Power Play Music, Inc., is entirely different from the Plaintiff, King (formerly known as Gusto). Further, these are two separate entities, albeit owned by the same individual and located at the same address. Finally, Plaintiff realized the mistake but did not follow the procedures outlined in 17 U.S.C. § 408(

d) or 37 C.F.R. § 201.5 to correct the mistake. Instead, Lytle and Kountz-man completed three invalid assignments attempting to transfer the rights in “Don’t Fall Asleep at the Wheel” to Plaintiff. These facts taken together do not show a “minimal” mistake, rather they show mistake piled upon mistake. Nevertheless, the Court is mindful of its mandate to preserve copyrights. In addition, Defendants bear a heavy burden to prove that the misidentification of the copyright claimant on the certificate of registration was fraudulent or prejudicial such that the copyright must be invalidated.

Defendants have not met their burden. Defendants do not cite any facts that would support fraud. The facts suggest that the misidentification on the certificate of registration was a clerical error. The copyright claimant should have been identified as “Power Play Music, a division of Gusto.” The subsequent invalid assignments simply highlight this penchant for clerical error because all three assignments are filled with similar errors. Further, Defendants have not shown how they have suffered any prejudice.

Both Power Play Music, Inc. and King (formerly known as Gusto) are owned by Lytle, and the business address on the certificate of registration is accurate. With the facts listed on the certificate, the correct corporate copyright claimant could have been located. The mistake would not have misled anyone to believe that the copyright did not exist. Finally, this is the type of error that would not have affected the decision of the Copyright Office in granting the copyright. Based on these facts, any mistake in the name of the claimant did not prejudice Defendants.

The correct copyright claimant, therefore, is Power Play Music, a division of Gusto. As Power Play Music was a division of Gusto, it was not a separate corporate entity, but simply a part of Gusto. Thus, Gusto had all the rights in “Don’t Fall Asleep at the Wheel.” Gusto became King in 2001. As a result, Plaintiff owns all rights, including the copyright, in “Don’t Fall Asleep at the Wheel.” b. Count II — Sound Recordings The registrations for the sound recordings are prima facie evidence of ownership. As explained above, Plaintiff has also presented additional evidence of ownership.

This evidence includes the testimony of Stone, who identified the master recordings and the photographs of numerous artists in Plaintiffs studio at or near the time Plaintiff created the master recordings; evidence of payment to artists and musicians involved in the recording, as well as evidence of production costs; and contracts between Plaintiff and Lofredo or Plaintiff and the artists demonstrating how Plaintiff obtained the rights to the master recordings. See supra

Section I.B. i. Effect on Ownership of Compilation Registration Defendants do not challenge Plaintiffs ownership in the copyright registrations of “Fraulein” or “Amazing Grace.” Defendants do challenge Plaintiffs copyright ownership in the remaining nineteen sound recordings. Defendants argue that the copyright certificates for these nineteen sound recordings are for compilations and not for the individual sound recordings. That is, Plaintiff copyrighted the album instead of the individual sound recording.

Thus, relying solely on dicta in a Supreme Court case, Defendants contend that while the copyright for the album may be valid, such copyright does not extend to the individual sound recordings that are on the album. Defendants argue that in order to obtain copyright protection for each sound recording, Plaintiff must separately register each sound recording with the Copyright Office. While the Copyright Act is unclear on this issue, the case law does not provide support for Defendants’ position.

The Copyright Act defines a “compilation” as “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term ‘compilation’ includes collective works.” 17 U.S.C. § 101. A compilation may consist of original materials or data that are separately copyrightable. 1 Nimmer on Copyright, § 3.02, at 3-6-3-7. When the original materials or data of a compilation are separately copyrightable, it is called a “collective” work.

See 17 U.S.C. § 101 (defining “collective” work as “work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.”); see also 37 C.F.R. § 202.3(b)(3). The Copyright Act, however, is silent as to whether registration of a “collection” extends copyright protection to each copyrightable element in the collection, or just protects the authorship, if any, involved in selecting and assembling the collection.

While the ease law in the Sixth Circuit is silent on this issue, other courts have found that registration of a collection extends copyright protection to each copyrightable element in the collection. The Fifth Circuit was faced with the exact issue that this case presents, namely, “whether a copyright of a ‘collection’ of individual songs, whose titles are not individually listed on the copyright registration, extends copyright protection to the collection as a whole and to the individual songs, or just to the collection as a whole.” Szabo v. Errisson, 68 F.3d 940, 942 (5th Cir.1995) (emphasis in original).

The court held that “a copyright of a collection of unpublished works protects the individual works that are copyrightable, regardless of whether they are individually listed on the copyright certificate.” Id. at 943. In Szabo, the plaintiff registered a collection of songs under the title “Scott Szabo’s Songs of 1991.” Id. at 941. The particular song at issue, entitled “Man v. Man,” was listed on the deposit copy, but was not named on the registration certificate. Id. at 942. Nevertheless, the court found that the registration of the album protected the individual song. Id. at 943.

Whether the individual song was named on the certificate was simply irrelevant. Id. at 942-43. The court in Sylvestre v. Oswald, No. 91 Civ. 5060(JSM), 1993 WL 179101, at *1-2, 1993 U.S. Dist LEXIS 7002, at *4 (S.D.N.Y. May 18, 1993), reached the same conclusion. In that ease, plaintiffs alleged defendants had infringed plaintiffs’ copyright in a song entitled “Heaven.” Id. at *1, 1993 U.S. Dist LEXIS 7002, at *1. Defendants claimed the only registration offered was for a work called “Cherry Bomb.” Id. at *1, 1993 U.S.

Dist LEXIS 7002, at *3. “Cherry Bomb” was the title of a collection of fifteen songs contained on a single cassette tape. Id. Defendants claimed that the registration certificate did not cover the individual song “Heaven” because it was not named on the certificate. Id. The

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