02x57 - Hijacked Harmony

[bunniefuu]

He created a song.
You transcribed it to guitar.

That is correct.

Your contract doesn't
prevent him from using it, sir.

It should say it in the... not that one.

Not that one either. The other one.

You got five more minutes of my time.

[announcer]
This is Judy Justice.

[♪ opening theme music plays]

[announcer] Charles Kerper
is suing musician Luther Fortinberry

for breach of contract
and copyright infringement.

[Kevin] Court come to order.
All rise.

Have a seat, please.

- Hello, Judge.
- Hi.

Case 2081,
Kerper versus Fortinberry.

- Thank you.
- You're welcome.

Mr. Kerper, it is your claim that the
defendant breached a contract with you.

The contract was a verbal contract.

And the nature of that breach
was the defendant envisioned

in his mind the lyrics to a song.

That was his business.

And he asked, according to you,

he asked you to put music to the lyrics.

- Am I understanding that correctly?
- The latter part is true.

However, it was more than just
a verbal contract. It's also in writing.

Okay. I'm going to take
a look at it. That's important.

And according to your complaint,
you did in fact write the music.

Correct.

- To his lyrics?
- That is correct.

And you had an agreement
in writing

that you would share the profits
of any exploitation of that song.

- That is correct.
- With him?

- Yes.
- And that he breached that agreement.

Yes. There was also an agreement
that he would give me proper credit

whenever he was using that.

So, now I would like to see
if you say there was a written contract

that's signed by both parties.
That's what I want to see.

Okay. So...

this was the original version,
which he offered me 25%.

Just a second, just a second,
just a second.

Sorry.

Okay. This contract
is pretty straightforward,

and it's signed by both parties.

And it says Luther Winston
Fortinberry created a song,

"Baby, I Got a g*n."

And Charles Kerper,
that's you, transcribed it to guitar.

- Correct.
- So what this contract says,

I just want you to understand, Mr. Kerper,

is that the defendant created the song
and you transcribed it to guitar.

That's what it says.

And that was written in January of 2016.

- Correct.
- It's signed by both people.

- That is correct. Yeah.
- Okay.

Now, what you're showing me
is something else.

How it started to change over time.

Listen to me.
This was your written contract.

[Kerper]
Right.

Any change in that contract,

unless I can really find
that there was a meeting of the minds

with regard to it, has to be in the same
formality of this contract.

This initial contract is very clear.

It does not say
that you created this music.

I'm telling you
what this initial contract says.

By the way, Mr. Fortinberry,

this contract was written
January 30th, 2016.

- Yes. I'm looking at it.
- Yes.

When did you create this song?
In what month and year?

About a year.
I don't know exactly,

but I was at a popular comedy store,

and the manager of our show.

- What show?
- The Ding Dong Show.

What's The Ding Dong Show?
When you said "our show,"

was he involved in that?

Just with this transcription.

I was involved with other
elements of the music

as well with Mr. Fortinberry.

Well, right now, this says transcribe.

What I asked you, a simple question.
When did you write this song?

At least a year before this contract.

At least a year before
January 30th, 2016.

Yes. And I was singing it regularly,
acapella, at the club.

Okay, but you asked him to transcribe it.
That's what it says.

Now, this was done at the time
that you transcribed it to guitar.

I would argue I'd never
transcribed it because...

Just a second. That's what this says.

It doesn't say "will transcribe it."

- It said "transcribed it."
- [Kerper] Correct.

To a guitar... that they both
agreed to submit for sale.

Correct.

Asking price will be
$10,000 to rent...

- Mm-hmm.
- ...and 10 million to sell it outright.

And you will split it 75/25.
That's what this says.

That is correct. Yeah.

- Now, did you ever rent it?
- I never rented it or sold it.

Just a second.
Well, I'm asking you this question.

- You never rented it?
- No.

And $10 million to sell it outright,
and you never sold it?

No, ma'am.

Okay, so it was neither rented nor sold,

which was your original contract,

and you have no proof to the contrary

that he neither rented it nor sold it?

I have evidence that he did
use it in other productions.

- It doesn't say that you can't use it.
- Right. That is correct.

Okay.
Now you want to show me,

sir, 'cause this is what your action is...
you want to show me

that this original agreement...

- Yes.
- ...was somehow modified...

- Correct.
- To give you a wider berth?

This is correct.

Okay. So I'd like to see
what you have in writing.

Okay. So, immediately
after that was signed,

about four or five days later...

you have the paper,
it's stapled behind...

I confronted Mr. Fortinberry and I said,

"This is not a transcribing project.
This is a rewriting project."

What he provided to me
was not usable for transcription.

And on the next page,
we have a text message exchange

- that I highlighted where he...
- Well, just a second.

- Shh!
- Sorry.

Well, this is a text message
from him to you.

Correct. And he acknowledged...

Just a second.
That's not acknowledging.

That's a text message
from him to you.

Do you have your response to this?

You can't unilaterally
change a contract that's in writing.

I mean, if you have an offer
and an acceptance.

- Right.
- So where is your response to this?

I don't believe I had a response
in the history of messages

I was able to retrieve, so...

Then this is irrelevant.

- Okay.
- So far we have this.

We have a writing signed by
both parties, which is complete.

It says what you did,
what will you will be paid in the event

of a rental or a sale.

Now you want to show me...

- Yes.
- ...something else?

So going forward, what he did
was he registered the song

with a registration company
in San Diego.

He did that without my knowledge.

Just a second! That's irrelevant.
This is your contract.

Show me where
it's a violation of this contract.

This contract says you
transcribed it to guitar.

If the version that you transcribed
for the guitar

is either rented or sold,
you will get 25% of the revenue.

So, we already went through that.

You do not have any proof
that he either rented it or sold it.

It doesn't say that you
will be given credit.

It doesn't say what your credit will be.

If you have a modification
where he agreed that you will get

- certain credit and you accepted that...
- Okay.

I will see that.

Okay.

This is the most recent agreement signed
in August 21, 2018.

- It's dated August 8th, but...
- Shh!

[reading under breath]

I don't know what this means.

- "Mr. Kerper..."
- Yes.

"...agrees to release Mr. Fortinberry..."

[Kerper]
Mm-hmm.

"...from any financial liability
for work performed

prior to the date of this document,"
that is, prior to 2018.

[Kerper]
Correct.

"Payment by Mr. Fortinberry
to Mr. Kerper

will be considered compensation
for his time costs, etcetera,

Mr. Kerper has invested
in this ongoing project to date."

- What did he pay you?
- He...

- Because it doesn't say here.
- He didn't pay me anything.

What he did was he gave me some
camera equipment,

which he promised me,
which was outside of this project,

and he gave me $300
as what was deemed

a celebratory gift because we were
wrapping this up.

No, no, no, no,
that's not what this says, Mr. Kerper.

Mr. Kerber, we read a contract literally.

Right.

This is a poorly crafted document,

but it's clear in regards to
"Baby, I Got a g*n."

- Right.
- "Mr. Kerper"... that's you...

"agrees to release Mr. Fortinberry
of any financial liability

for work performed
prior to the date of this document."

Correct.

"Payment by Mr. Fortinberry
to Mr. Kerper

will be considered compensation
for time,

costs Mr. Kerper has invested
in this ongoing project."

And what you're telling me is

the payment was some
camera equipment and $300.

I would say it was not
camera equipment, it was the-the $300.

- What's the camera equipment?
- This is some camera equipment I had had.

I had sold him some of it prior,

and he had offered it back to me as a gift

because I had invested
so much work into this project.

[noisy shuffling of papers]

You got five more minutes of my time.

- Okay.
- You have no case.

- I believe I do, ma'am.
- No.

- I'm sorry, Your Honor.
- Sorry. You don't.

[♪ dramatic music plays]

You want him to say
whenever he performs the song,

"I wrote this song together
with Mr. Kerper,

and I want you to
understand that he's the Music Man."

I don't know what a Music Man is.

It's interesting when people
sign contracts

and they have no idea
what they're doing.

[♪ dramatic music plays]

[♪ dramatic music plays]

[announcer] Charles Kerper
claims musician Luther Fortinberry

owes for a breach of contract
and copyright infringement.

Now, those are the two written contracts.

Do you have any further modification
of those contracts in writing?

Yes, I...

- I'll see them.
- Okay.

This is a contract in writing, 2018.
This is 2016.

And this was agreed by both parties.

So the last agreement was you got $300.

Did you pay him $300?

Three hundred dollars and camera
equipment, about $1,500 worth.

Okay. He started to mention that,
and then he backtracked.

- Okay, next written contract after 2018.
- Yes.

In that contract,
which you have right now,

it also says it serves to clarify
previous misunderstandings

that I wrote the music
and I was not a transcriptionist.

"Mr. Kerper is to be understood
as the Music Man behind the music

and not a transcriptionist."

But who do you want that to be noted by?

"Mr. Kerper is to be understood
as the Music Man,"

- with capital letters...
- Right.

- And I don't know what that means.
- This was his wording.

Well, then you
should have fixed the wording.

- I should have, you're correct.
- I don't know what a Music Man is.

It's not a trademark.
It's not a copyright. It's a nothing.

I don't know what it means.

So I wrote the music, which is
in the version which he's using currently.

I wrote that from scratch.
There was no transcribing.

That doesn't say it.
That doesn't say it.

Nothing here says that.

The only thing this says is,
Luther Winston created this song,

"Baby, I Got a g*n,"
that says he created it.

You signed it.
You wanted to clarify it.

You wanted to be known as the Music Man,
not just the transcriber.

I don't know what Music Man means.

And you got paid pursuant to this,
although it doesn't say this,

but you acknowledge it,
and you got paid $300.

Okay. Also in that agreement,

it also says that I'll be given credit
in future uses.

- It says that...
- As the Music Man.

You want him to say you're the Music Man.

I will be given credit,
which he did not give me credit.

You want him to say whenever
he performs the song,

"Baby, You Got g*n,"
he gets up to perform that,

"I wrote this song together
with Mr. Kerper,

and I want you to understand
that he's the Music Man.

It's interesting when people
sign contracts

and they have no idea what they're doing.

Okay, let me see the next contract
that you have.

So, this is an agreement which
is supposed to be

a performance agreement with
his producer from the comedy club.

Just a second.
Let me take a look at it.

- He's...
- Shh!

This is exactly what this says.

This says, "This agreement"...
and this is August of 2018.

And who sent this, by the way?

Mr. Fortinberry sent that to me.

Okay, it says, "This agreement gives
Luther the right to perform music

as the opportunity arises.

Luther is further released of any
further financial responsibility

or debt owed making music.

Charlie Kerper will be referred
to in the future as the Music Man.

This payment will be for goods
and costs making music...

for $300 and camera equipment.

If any referral is made in the future
as to who wrote

and performed
parts of said music above,

Charlie Kerper
will be given those credits.

Correct.

Okay, he sent that to you.
Where is your response?

So, he sent that back to me
on August 8th.

- Just a second.
- I... okay.

He sent this to you, so I would like
to see your response to this.

"I agree to your terms.
I disagree with your terms."

If you agree with the terms,

then I might accept that as
a modification of a contract.

If you say, "I disagree with the terms,"
then there is no modification.

We go back to these
two signed agreements.

- Correct.
- Where is your response to that?

Can I explain what happened after that?

He's emailed that to me.
I was here in L.A.

And I didn't have
an opportunity to entirely go over it,

but we were trying to
meet with him at a restaurant

and also at the museum
to have this resolved.

So I had my phone only to look at it,

and he was playing hardball
with me that day.

So he sent me these emails

saying he had signed these agreements,

which included making referral
to me and clarifying that I did in fact

write the music
which he claims I transcribed.

- I need your response to him.
- Okay.

If there is no response,
we have these two agreements.

So the response was this:
That night, we finally agreed to meet.

- I need that in writing.
- Yes.

I want what you sent to him
in response to this email.

Well, I called him on the phone,
and I said,

"Can we meet so we can sign this?
And put this past

so the music video could
be moved forward."

And he wanted a performance agreement,
so there wasn't any question

as to whether or not they
could use the music in the video.

So I arrived at his apartment.

He made us wait outside for half an hour.

Okay, you know, Mr. Kerper,
I really don't care.

- Okay.
- It's not relevant.

What's relevant is if you had
a subsequent offer

and acceptance to a new contract,
a modified contract

- that he made via email...
- Mm-hmm.

...and you responded to him via email,
that "I accept those terms,"

or if you sent it to him and said,
"These are the terms I want,"

and he wrote back,
and "I accept your terms."

Unless you have that, you are bound
by these two written contracts,

which means you got paid.

You got paid $300 and some equipment.

You got paid.

And according to this contract,

when referring to this music
and referring to you,

he has to refer to you as,
in capital letters, "the Music Man."

Correct. Giving me credit, credit.

He has to refer to you as the Music Man.

It says here in this contract, I'm sorry,

"If any referral is made in the future

as to who wrote and performed
parts of said music above,

Charlie Kerper
will be given those credits."

- Yeah, as "the Music Man."
- No, it does not say Music Man here.

- Where?
- It should say it in the...

Not that one.

Not that one either.
The other one.

There's no other.
I only have two written contracts.

This is his original email to me
that he sent me before the contract.

- I don't want...
- It has my response.

I have my response
attached to it here.

I'm sorry, Your Honor.

[Judge Judy]
Okay.

Who wrote, "Your offer is hostile
and very lowball for what you're asking"?

[Kerper]
I wrote that.

- " I reject it."
- Absolutely.

"I'm not interested in selling."

- That is correct.
- Well, that doesn't modify.

That means he made you a subsequent
offer after these two agreements.

- You said, "I don't like that offer."
- That is correct.

So there was no change
in these two written contracts,

one of which called for payment

which you acknowledge you received

in the form of $300 and camera equipment.

[♪ dramatic music plays]

He was limited to using it
on one particular program,

and he's used it in other places.

And I said... Shh!
Put your hand down.

When it doesn't appear
that you're losing,

you're supposed
to keep your mouth closed.

[spectators laugh]

[♪ dramatic music plays]

[announcer]
Charles Kerper is accusing musician

Luther Fortinberry
of breaking their contract.

Luther claims he already
paid Charles for his services.

Mr. Kerper, I want you to understand...
you're looking at papers.

What you're not understanding is

if you are going to modify
a written contract,

you have to do it with another contract
in which there is an offer...

- Mm-hmm.
- ...and an acceptance.

- He made an offer to you...
- Yes.

...in this. You rejected
the offer in your response.

Actually, that email he sent first,
he worded it differently.

It doesn't matter.
You rejected it.

I rejected the part
that included the sale.

Just a second.
You can't take pieces of what he says.

If you're going to modify
a contract which is clear,

or as clear as it can be
when two laypeople write it,

and which has been ex*cuted
and fulfilled by terms of payment

because there was an exchange
of cash and goods,

which is indicated in here,

you have to have a modified contract.

Correct.

This is not a modified contract.

He says to you,
"This is what I'm going to do."

And you said to him, "I reject it.
It's a lowball offer."

So we're going to get back to
is there a subsequent modification

that says, in addition to the $300

and the camera equipment
and the fact that "I will refer to you,

if I refer to anyone,"
when he's singing the song,

which I've never heard.

I've heard of patter, you know,
where somebody talks about patter.

So-and-so wrote the song
and he wrote it

when he was mourning
the death of his dog

and then sings the song.

That's patter.
That's what I understand patter is,

the chatter before.

So, if he was going to chatter
about who wrote the song,

he'd have to say, and the man
behind the music is Mr. Music Man.

That's all this says.

And he's never sold it
and he's never rented it,

that you can establish.

He has used it in film production.

He could use it.

Your contract doesn't prevent him
from using it, sir.

The final... I'm sorry, but the first one
I gave you is the final.

That was what led up to the...

No, this is, [A] a clarification
because you asked. Right?

And this is your final payment,
$300 and camera equipment

because that's what you
both agree that you got.

- On the top line...
- There is no modification.

- There is, though.
- Well, then show me.

On the top line of the final,

it says it'll be used exclusively
in The Ding Dong Show

and nowhere else without permission,
and that is what is writ...

Just a second. It says, "This agreement
gives Luther Fortinberry

the right to perform named music
in The Ding Dong Show

- and the promotional video.
- Correct.

- And?
- That's it.

So?

So that is what he's limited to
as far as performance.

So? Okay. And?

And he went and used my music
in other productions without telling me.

Well, show me.

Okay.

- I also have lyric sheets showing that...
- Just a second! Listen to me, sir.

Yes.

I've already explained to you
what this case is about.

- It's a contract case.
- Yes, okay.

I'm not going to go through
contracts one and contracts two.

It was painful enough when I
went through it the first time

- a half a century ago.
- Yeah.

What I'm telling you is
you have no modification of a contract

unless there's an offer and acceptance.

The only two contracts you have are here.

I absolutely read this and it says,
"This agreement gives Luther Fortinberry

the right to perform music named in
The Ding Dong Show and promotional video.

- Correct.
- That's what it says.

- You say he used it in other places.
- That is correct.

There's no remedy if
he uses it in other places.

You only have a remedy, sir,
if he sells it or rents it.

And you're not asking
for injunctive relief.

- There's no action.
- I don't know what he did with it.

- What?
- I don't know what he's done.

I've asked him for a complete
statement of where he's used it,

- and what payment.
- Just a second.

- Mr. Kerper.
- Yes.

- You're the plaintiff.
- Yes.

It's not his burden.
It's your burden.

What you're saying is he was
limited to using it

on one particular program,

- according to this, and promotional...
- Mm-hmm.

...and he's used it in other places.
And I said...

Shh! Put your hand down!

When it doesn't appear that you're losing,
you're supposed to keep your mouth closed.

[spectators laugh]

It's your burden to show me that
he used it in other places. That's first.

- Okay.
- Show me.

I can do that. Just, I have the papers.

I had it quite orderly
before I came into court,

and... I guess nerves happen.

You can look for it, sir.
I'm just advising you...

Yes.

...that your action
is for breach of contract.

That's what you filed.
Right now I have two contracts.

One contract was fulfilled with the
payment of $300 and camera equipment.

There is an agreement here,
however,

that says he can use
that music on certain things.

It doesn't say exclusively
on certain things.

It says he can use it on
The Ding Dong Show and promotional video.

I assume promotional video,
if you're inferring what that means,

is for The Ding Dong Show.

Now, it doesn't say if he uses
the music someplace

other than The Ding Dong Show
and promotional video

and he gets paid for it,
I get a certain amount of money.

Your original contract
provides for a 75/25 split

if the music is rented or sold.

- Right.
- That's what it provides for.

So when I accepted the payment
on the contract,

that was with the notion
that he was going to give me credit

in the future, which he has not done.

Okay, we're done here.
Mr. Kerper, it's unfortunate,

but you are bound by
the terms of this contract.

The terms of the contract
are absolutely clear.

You have one in 2018
and you have one in 2016.

The one in 2016 is crystal clear.

You're a transcriber,
and as a transcriber,

you will get 25% if the music
is either rented or sold.

Subsequently,
there was a writing that says,

you don't want to be known
as the transcriber.

You want to be known as the Music Man.

Your Honor,
I did not transcribe anything.

I wrote the music,
and that's why there's subsequent paper.

Mr. Kerper, we're done.
You got paid $300

for writing the music
and camera equipment.

We're done. Your case is dismissed.

[Kevin]
This court is adjourned.

Mr. Fortinberry approached me
to transcribe a piece of music he...

Well, I'm sorry she had to listen
to so many lies.

...presented me as completed,
which it was not.

And I'm glad she had something
in print, like contracts.

I helped develop the lyrics further
and also write the music.

I hope that he would see the truth...

Well, there's always more songs,
isn't there?

...and correct his lies.

While I really appreciate that
these two, plaintiff and defendant,

had a written contract,

it's always a risk as a layperson
to write a contract yourself.

It has to be fully integrated.
All the points have to be hit.

And one major part that was
lacking here was a remedy section.

So if the plaintiff is claiming

that he deserves
some sort of credit

or some sort of payment for a show
or an exploitation...

Going forward.

...of the song going forward,

there needs to be a sentence,

at least, that's a meeting of the minds

as to what's going to happen
if that condition is not met.

- In-in the future.
- In the future.

Because the contract,
the second contract in 2018,

- clearly said he was paid.
- Mm-hmm.

- And he was paid.
- And he signed it.

He was paid $300
and some camera equipment.

[Sarah Rose]
Yeah.

The defendant said it was worth $1,500.

I don't know whether it was or it wasn't.

Anyway, it was inartfully done.

You have to give them credit for trying.

- [Sarah Rose] Yes.
- For trying.

They're music people.
They're artists.

Yeah.

Language and specifics and details
is more our forte as lawyers.

More important. It's so frightening
that I think I have

a memory somewhere
back here of The Ding Dong Show.

So I'm going in the back now
and look up The Ding Dong Show.

Well, I'd like to hear that origin story!
[chuckles]

[♪ dramatic music plays]

[announcer] Want justice?


[♪ dramatic music plays]

[♪ end theme music plays]