Two Housewives of Atlanta Tussle Over “Tardy For The Party”

Two Housewives of Atlanta Tussle Over “Tardy For The Party”

by Jerry Glover
October 30, 2013

Admit it.  You’ve watched one or more of the series of Bravo programs focusing on “housewives” in different parts of the country. “The Real Housewives of Atlanta,” like all the other housewives shows, has had its share of fights among cast members. But two of those housewives recently ended up in federal court in a copyright dispute over a song entitled “Tardy for the Party.”  Burruss v. Zolciak (N.D. Ga. Oct. 11, 2013).

The song was written by the plaintiff and others (including the defendant’s daughter). The defendant, Kim Zolciak (known for her over-the-top blonde wigs), recorded the song in 2009. It was released pursuant to an agreement Zolciak entered into with the corporate plaintiff, TuneCore. The plaintiffs alleged that Zolciak authorized the distribution and sale of the song in various media in violation of that agreement.

The plaintiff’s alleged copyright infringement of the musical composition and the sound recording but admitted that Zolciak was a co-owner of the sound recording that embodied the song. The court did not explain why the plaintiffs made that admission. The plaintiffs also demanded an accounting of the monies earned by Zolciak from her unauthorized distribution of the recording.

A brief review: there are often two copyrights associated with music. The first copyright covers the musical composition (the song and lyrics); a second copyright covers the sound recording embodying that composition.

Defendant moved to dismiss the composition infringement claim arguing the plaintiffs had never registered the composition in the U. S. Copyright Office. Under Sec. 114 of the Act registration of a work is a prerequisite to the filing of an infringement suit. 17 U.S.C. Sec. 114. The court noted that the U. S. Court of Appeals governing this court had never decided whether a failure to register required dismissal of an infringement claim but concluded that Sec. 114 made it clear that “no civil action for infringement … shall be instituted until p[reregistration or registration of the copyright claim has been made … .” The court, therefore, dismissed this infringement claim.

The court also ruled that plaintiffs could not claim infringement of the sound recording since they conceded that Zolciak was a co-owner of that sound recording. The court emphasized that a co-owner of a copyrighted work cannot be liable for infringing his/her own work.

The only issue remaining was whether the plaintiffs could demand from Zolciak an accounting of the proceeds she had earned from her allegedly unauthorized distribution of the song. Since the federal copyright claims had been dismissed, the court ruled that the accounting claim which was based on state contract law could not be heard in a federal court. The court noted that an accounting claim does not “arise” under the federal Copyright Act because it does not seek a remedy that is granted by the act (infringement, a demand for statutory royalties, etc.).

Zolciak is no longer a part of the Atlanta housewives cast. Too bad; it would have been interesting to see if the plaintiff, Kandy Burruss, and Kim would have continued their dispute on screen. At least in that medium they wouldn’t have to worry about paying attorneys’ fees.

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