Reeves v. Warner Chappell (Dec. Incl. Run DMC Writers Agt)_Redacted

8/3/2019 Reeves v. Warner Chappell (Dec. Incl. Run DMC Writers Agt)_Redacted

http://slidepdf.com/reader/full/reeves-v-warner-chappell-dec-incl-run-dmc-writers-agtredacted 1/23

Lisa M. Buckley

M. Mona SimonianRoss M. Bagley

PRYOR CASHMAN LLP

7 Times Square

New York, NY 10036Tel: (212) 421-4100

Fax: (212) 326-0806

Attorneys for Plaintiffs and Counterclaim Defendants

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

----------------------------------------------------------------)

REACH MUSIC PUBLISHING, INC. and )

DAVID REEVES, ))

Plaintiffs, )) No. 09 Civ. 5580 (LTS)-against- )

)

WARNER CHAPPELL MUSIC, INC. and )PROTOONS, INC, )

) DECLARATION OF LISA M.

Defendants. ) BUCKLEY IN SUPPORT OF

----------------------------------------------------------------) COUNTERCLAIM ) DEFENDANTS’ MOTION

PROTOONS, INC., ) TO DISMISS THE

) AMENDED COUNTERCLAIMS

) Counterclaim Plaintiff, )

)-against- )

)

REACH MUSIC PUBLISHING, INC. and )

DAVID REEVES, ))

Counterclaim Defendants, )

)- and - )

)

REACH GLOBAL, INC. and MICHAEL )CLOSTER, )

)

Additional Counterclaim )Defendants. )

----------------------------------------------------------------)

Case 1:09-cv-05580-LTS -GWG Document 76 Filed 12/21/10 Page 1 of 58






EXHIBIT 1




'

Agreement dated as ofOctober 17, 1998 by and among:

(i) Protoons, Inc. ("Protoons") and Promuse, Inc. ("Pr·

address of 740 Broadway, New York, New York 10003. For purpProtoons and Promuse are sometimes collectively referred to as "tr

(ii) Rush Productions, Inc. ("Rush"), Rush Groove Music ("Rush Groove"),

and Russell Simmons, individually and on behalfofhis publishing designee, each with an

address of 73 Spring Street, Suite 406, New York, NY. For purposes of this agreement,

Rush and Rush Groove are hereinafter jointly and severally, and sometimes collectively

referred to herein as "the Rush Parties"; and

(iii) Darryl McDaniels, individually and· on behalf of his publishing designee

(collectively, "McDaniels"), Joseph Simmons, individually and on behalf of his

publishing designee (collectively, "Simmons"), and Jason Mizell, individually and on

behalf of his publishing designee (collectively, "Mizell"), each with an address c/o Ms.

Tracey Miller, Tracey Miller Associates, 95 Summit Cross, Rutherford, NJ 07070. Forpurposes of this agreement, Simmons, McDaniels and Mizell are hereinafter jointly and

severally, and sometimes collectively referred to herein as the "Artist".

1. Reference is hereby made to the settlement agreement (the "Settlement

Agreement'') dated as of December 28, 1995, effective as of June 30, 1995, by andamong Profile Records, Inc., the Protoons Parties, The Rush Parties and Artist, and to the

settlement agreement (the "Second Settlement Agreement") dated as of October 16,

1998, ·by and among Profile Records, Inc., the Protoons Parties, and Artist. All terms

herein, to the extent not defined, shall have the meanings ascribed to them in the

Settlement Agreement.

2. Reference is further made to the musical compositions (the "Compositions") set

forth on Exhibit "A" attached hereto and made a part hereof. 1,\rtist hereby warrants and

represents that (a) the Compositions set forth on Exhibit "A" are all of the musical

compositions which have been embodied on sound recordings embodying the featured

performances of Artist in their capacities as the members of the musical group

professionally known as Run-D.M.C.; and (b) the information contained on Exhibit "A"is complete and accurate in all respects.

3. (a) The parties hereto acknowledge and agree that pursuant to the Artist

Agreement (as defined in the Settlement Agreement) and certain other agreements

between the Rush Parties, on the one hand, and Protoons and its affiliates, on the other,the Rush Parties have heretofore irrevocably assigned to Protoons fifty percent (50%) of

· all of the Rush Parties' interest in the Compositions,. including, without limitation, the

copyrights therein and any extensions and/or renewals thereof, and one hundred percent

(100%) of all of the worldwide rights ofadministration, promotion and collection

associated therewith, and the Rush Parties hereby ratify and affirm the foregoing

assignment.

Protoons/rush/rundmc/publishing-sett3rd1 I/19/98. 3

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... ..

(b) With respect to any right, title and interest in and to the Compositions

retained by the Rush Parties, the Rush Parties hereby irrevocably assign to Protoons all of

such right, title and interest in and to the Compositions; including, without limitation, the

copyrights therein and any extensions and/or renewals thereof To further evidence the

foregoing assignment, the Rush Parties agree to execute and deliver the Assignment ofCopyright attached hereto as_ Exhibit "B" and made a part hereof simultaneously with

their execution and delivery of this Agreement.'

(c) The Rush Parties hereby acknowledge and confirm that following the full

execution of this Agreement, as between the Rush Parties and Protoons, Protoons shall be

the sole and exclusive owner of all right, title and interest in and to the Compositions,

including, without limitation, the copyrights therein and any extensions and/or renewals

thereof throughout the universe. Without limiting the foregoing, Artist hereby

acknowledges and confirm·s that following the full execution of this Agreement, as

between Artist and Protoons, Protoons shall be the sole and exclusive owner of all right,

title and interest in and to the Compositions, including, without limitation, the copyrightstherein and any extensions and/or renewals thereof throughout the universe.

4. (a) (i) The parties hereto acknowledge and agree that, pursuant to the

Settlement Agreement, (A) Rush Groove, on behalf of itself and its principals, and

affiliates, assigned and conveyed to Artist all of their rights to receive income from the

Profile Parties arising from the exploitation of any of he Compositions from and after the

effective date of the Settlement Agreement (and, for the avoidance of doubt, the right to

receive all music publishing-related portions of Pipeline Earnings), and (B) Rush Groove

and its principals and affiliates further irrevocably waived their rights to receive any of

such income. The Rush Parties hereby ratify and affirm the foregoing assignment to

Artist.

(ii) The Protoons Parties and Artist further agree that with respect to

any so-called "publisher's share" of publishing income assigned by Rush Groove to

Artist pursuant to the terms of the Settlement Agreement, including, without limitation,

any publisher's share of publishing income derived, directly or indirectly, from portions

of the Compositions written or composed by Artist or Russell Simmons (hereinafter,

"Rush Groove Income"), (A) the Rush Groove Income derived from Artist's authorship

interests in the Compositions (the "ARG Income"), to the extent the same becomes due

a ~ d payable, shall hereafter be divided between the three (3) members of Artist and

credited to each such party's individual publishing account with Protoons in accordance

with and subject to the terms and conditionsof

the Second Settlement Agreement and theNew Publishing Agreements (as defined in the Second Settlement Agreement); and (B)

the Rush Groove Income derived from third parties (including Russell Simmons but

excluding, for the avoidance of doubt, Larry Smith) authorship interests in the

Compositions (the "TPRG Income"), to the extent the same becomes due ~ n d payable,

shall hereafter be divided equally between the three (3) m ~ m b e r s of Artist and credited to

each such party's individual publishing account with Protoons in accotda-nce with and

subject to the terms and conditions of the Second Settlement Agreement and the New

Protoons/rush/rundmc/publishing-sett.Jrd 211/19/98- 3 .





Case 1:09-cv-05580-LTS -GWG Document 76 Filed 12/21/10 Page 7 of 58, ; I•

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Publishing Agreements (as defined in the Second Settlement Agreement), subject to the

terms and conditions set forth therein.

(ii) Notwithstanding anything to the contrary contained in this

paragraph 4, Artist confirms that the Protoons Parties shall be entitled to retain for their

own account(s): (A) any sums received by or credited to the Protoons Parties in connectionwith the matter involving the alleged use of the Composition "Dumb Girl" in and as part of

a new work titled "Thug Girl", as recorded by Master P, regardless of when such monies

are earned and/or received by the Protoons Parties; and (B) the publisher's share of income

derived or generated from the use, exploitation or disposition of any Smith Compositions

(as such term is defined in the Second Settlement Agreement), regardless of when such

monies are earned and/or received by the Protoons Parties; and that the Protoons Parties

shall have the absolute right to use or maintain the sums set forth in clauses (A) and (B)

above in the Protoons Parties' sole and unfettered discretion. For the avoidance of doubt,

the Protoons Parties agree that they will be solely responsible for all costs incurred by the

Protoons Parties in pursuing the matter described in clause (A) above and collecting any

and all income recovered therefrom, including, without limitation, the costs of attorney'sfees and other litigation costs, if applicable.

5. (a) The parties hereto acknowledge that Rush Groove has entered into certain

songwriter agreements (the "Songwriter Agreements") with many of the third party

writers and/or composers of the Compositions. The parties further acknowledge and

agree that the Rush Parties have heretofore irrevocably assigned to Protoons, inter alia,

the benefit of all rights, warranties, representations and indemnifications granted and/or

made to the Rush Parties under the Songwriter Agreements, and the Rush Parties hereby

ratify and confirm such assignments.

(b) With respect to any right, title and interest in and to the SongwriterAgreements retained by the Rush Parties, the Rush Parties hereby irrevocably assign to

Protoons all of such right, title and interest in and to said Songwriter Agreements,

including, without limitation, any rights, remedies, causes of action, choses or other

inchoate rights arising thereunder, subject to the terms in paragraph 4(c) below.

(c) Protoons hereby agrees to assume Artist's obligations (as assignee of Rush

Groove pursuant to paragraph 6(b) of the Settlement Agreement) to account and pay

royalties to the writers and composers of the Compositions arising from sales of

phonograph records and other uses and/or exploitations ofthe Compositions occurring after

December 31, 1998, pursuant to the terms set forth in the Songwriter Agreements. Except

as specifically set forth in the preceding sentence and in paragraph 4(a)(i)(B) of the .Second

Settlement Agreement relating to the payment of Approved Third Party Royalties (as such

term is defined in said paragraph), Protoons shall not incur or assume any of Artist's or the

Rush Parties' liabilities or obligations of any kind whatsoever in respect of any transaction

or event which occurred on or prior to the date hereof, whether known or unknown,

liquidated or contingent, with respect to the Compositions or the Songwriter Agreements,

including, without limitation, any liability or obligation, direct, indirect er ·contingent, of

the Rush Parties and/or Artist arising out of or in connection with any action, claim,

demand, audit, or other proceeding, regardless of whether brought, instituted or

Protoonslrush/rundmc/publishittg·sett.3rd

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commenced prior to or following the date hereof In connection with the foregoing, the

Rush Parties and Russell Simmons further acknowledge and confirm that neither Russell

Simmons nor the Rush Parties, nor any of such party's affiliates, principals, employees,

shareholders, successors or assigns, shall be entitled to receive any Third Party Royalties

(as such term is defined in the Second Settlement Agreement).

(d) The Rush Parties warrant and represent that the terms and conditions of all

Songwriter Agreements being assigned to Protoons hereunder are usual and customary in

the music industry, and contain standard provisions with respect to the royalties payable

to the songwriters and/or composers of the applicable Compositions (i.e., a royalty of

fifty percent (50%) of net sums received by the publisher in the United States for

mechanical and synchronization licenses, etc.), and that no share of the so-called

"publisher's share of income" is or shall become payable to any such songwriters and/or

composers (including, without limitation, Artist [except for the Rush Groove Income]) .

Further to the preceding sentence, to the extent that the writer royalties required to be

paid by Protoons pursuant to the Songwriter Agreements exceed those indicated in the

writer royalty guidelines attached hereto as Exhibit "C" and made a part hereof, then, inaddition to any and all rights and/or remedies that Protoons may have in such event,

Protoons shall have the right to deduct the amount of such excess first from the Rush

Groove Income otherwise payable to Artist, and then from the Russell Income otherwise

payable to Artist

6. (a) The Rush Parties and Russell Simmons hereby warrant, represent,

covenant and agree that they have the full right, power and authority to enter into and

perform this agreement and to grant to and vest in Protoons all rights herein set forth, free

and clear of any and all claims, rights and obligations whatsoever. The Rush Parties and

Russel Sim'mons further warrant, represent, acknowledge and confirm that the Settlement

Agreementis

valid, enforceable and in full forceand

effectas of

the date hereof;

(b) Artist hereby warrants, represents, covenants and agrees that (i) they have

the full right, power and authority to enter into and perform this agreement; and (ii) the

Settlement Agreement and the Second Settlement Agreement are each valid, enforceable

and in full force and effect, and Artist hereby ratifies and affirms all of the terms and

conditions set forth in each such agreement;

. (c) The Protoons Parties hereby warrant, represent, covenant and agree that (i)they have the full right, power and authority to enter into and perform this agreement; and

(ii) the Settlement Agreement and the Second Settlement Agreement are each valid,

enforceable and in full force and effect, and the Protoons Parties hereby ratify and-affirmall ofthe terms and conditions set forth in each such agreement.

7. The parties hereto agree that in the event of any inconsistency in the terms or

conditions .of the Songwriter Agreements, the Settlement Agreement and/or this

agreement, the terms of this agreement shall control.

Protoons/rush/rundmc/publishing-sett.Jrd

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8. (a) The Rush Parties each hereby agree, warrant and represent that they will

execute any further documents which are reasonably necessary or reasonably desirable to

effectuate the _intent and substance of this agreement. In addition, if either of the Rush

Parties shall fail or refuse to execute and deliver any further documents which are

reasonably necessary or reasonably desirable to effectuate the provisions of paragraphs 3,

4 and/or 5 herein within ten (10) days of any Protoons Party's request therefor, the RushParties each hereby appoint Protoons as their true and lawful attorney-in-fact to execute

such documents in the applicable Rush Parties'. name and on the applicable Rush Parties'

behalf. Such power ofattorney is irrevocable and is coupled with an interest.

(b) Artist hereby agrees, warrants and represents that they will execute any

further documents which are reasonably necessary or reasonably desirable to effectuate

the intent and substance of this agreement. In addition, if Artist shall fail or refuse to

execute and deliver any further documents which are reasonably necessary or reasonably

desirable to effectuate the provisions of paragraphs 3, 4 and/or 5 herein within ten (10)

days of any Protoons Party's request therefor, Artist hereby appoints Protoons as their

true and lawful attorney-in-fact to execute such documents in Artist's name and onArtist's behalf. Such power of attorney is irrevocable and is coupled with an interest.

(c) Russell Simmons hereby agrees, warrants and represents that he will

execute any further documents which are reasonably necessary or reasonably desirable to

effectuate· the intent and substance of this agreement. In addition, if Russell Simmons

shall fail or refuse to execute and deliver any further documents which are reasonably

necessary or reasonably desirable to effectuate the provisions of paragraphs 3, 4 and/or 5

herein within ten (10) days of any Protoons Party's request therefor; Russell Simmons

hereby appoints Protoons as his true and lawful attorney-in-fact to execute such

documents in Russell Simmon's name and on Russell Simmon's behalf. Such power of

attorney is irrevocable and is coupled with an interest.

9. The Rush Parties, Artist and Russell Simmons acknowledge and agree that the

Protoons Parties shall have the full right, power and authority to take such action as the

Protoons Parties deem reasonably necessary in their sole, good faith business judgement,

to defend against any claim, action or proceeding against the Protoons Parties with

respect any Composition(s), whether for infringement of copyright or otherwise, and, in

connection therewith, to settle, compromise or in any other manner dispose of any such

claim, action or proceeding and to satisfy any judgment which may be rendered. The

Protoons Parties' rights as set forth in the preceding sentence shall include, without

. limitation, the right to irrevocably assign or convey any of the Rush Income or Russell

Income to oneor

more third parties; provided, that the Protoons Parties shall not assignor

convey any Rush Income or Russell Income to any third party until the Protoons·Parties

shall have given the Rush Parties, Artist and/or Russell Simmons, as applicable, written

notice of the claim, action and/or proceeding, and the Rush Parties, Artist and/or Russell

Simmons, as applicable, shall have failed within ten (10) business days after such party's

receipt of such notice, to (i) cure, pay, satisfy, discharge, invalidate or otherwise

eliminate such claim, action or proceeding to the Profile Parties' reasonable· satisfaction,

Protoonslrush/nmdmc/publishing-sett.3rd

11119/98- 3

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' ''j

or (ii) cause such claim, action or proceeding to be waived, discharged or released to the

Profile Parties' reasonable satisfaction.

10. Any written notices hereunder shall be addressed to the parties at the addresses set

forth on Page 1 hereof All notices shall be served by registered or certified mail, postage

prepaid, or by nationally recognized overnight carrier, charges prepaid, addressed asaforesaid. The date of mailing shall be deemed the date of service except in the case of a

notice of a change of address, which shall be deemed given when received. A courtesy

copy of all notices to Protoons hereunder shall be sent to Epstein, Levinsohri, Bodine,

Hurwitz & Weinstein, LLP, 1790 Broadway, Tenth Floor, New York, New York 10019;

Attention: Mark A. Levinsohn, Esq.

11. The parties hereto further agree that, in consideration of the rights granted and

benefits received under this agreement, the Settlement Agreement, ·and the Second

Settlement Agreement, following the execution hereof, neither party s h a l l ~ directly or

indirectly, (a) disparage or criticize the other party; (b) convey or communicate to any third

party any negative comment or reference with respect to the other party; or (c) disseminatedisparaging inform·ation about the other party. Without limiting the generality of the

foregoing, the parties hereby agree that in the event of a claim by the Profile Parties arising

out of an alleged breach or breach by Simmons, McDaniels and/or Mizell of the

agreements made by the parties in the preceding sentence, the following shall apply: (1) if

it is determined pursuant to final adv·erse judgement or settlement that liability for any such

claim is attributable to only one-member of Artist (the "Breaching Member"), to the e x t ~ n t that the Breaching Member promptly satisfies any monetary judgement or settlement to theProfile Parties' satisfaction (e.g., through a payment to the Profile Parties· or the Profile

Parties' exercise of any offset rights), the Profile Parties will look solely to the Breaching

Member for indemnification; and (2) if it is determined pursuant to final adverse judgement

or settlement that liability for any such claim is attributable to one Breaching Member andsuch Breaching Member fails t9 promptly satisfy any monetary judgement or settlement to

the Profile Parties' satisfaction, the Profile Parties shall first offset any monies being held in

the Breaching Member's account with Protoons to satisfy such settlement or judgement,

and only if such monies are insufficient will the Profile Parties look to the other members

of Artist for indemnification.

12. Each party has read and understands this agreement and warrants and represents

that it has had the opportunity to be represented by independent counsel of its own choice

in the negotiation and execution of this agreement.

13. This agreement may not be canceled, altered, modified or amended, in whole or inpart, in any way, except by an instrument in writing signed by each party. If any part of

this agreement shall be held to be void, invalid or unenforceable, it shall not affect the

validity of the balance of this agreement. This agreement is entered into in the State of

New York and shall be construed in accordance with the laws of said state applicable to

contracts to be wholly performed therein. The New York courts (state and federal), only,

shall have jurisdiction of any c o n t r o v e ~ s i e s regarding this agreement; anJ" action or other

Protoons/rush/rundmc/publishing-s.ett.3rd

11/19/98 -3

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proceeding which involves such a controversy will be bought in those courts, in New

York County, and not elsewhere.

14. . Protoons ·shall have the right to assign this agreement or any of its rights

hereunder, in whole or in part, to any party. Neither the Rush Parties, Artist nor Russell

Simmons may assign such party's rights or obligations hereunder in the absence ofProtoons prior written consent.

IN WITNESS WHEREOF, the parties hereto have executed this agreement as of

the day and year first above written.

"1J.Ll..L'-'-'"YL McDANIELS~ ~ E L ~ Protoons/rush/rundmc/publishing-sett.3rd

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PROTOONS, INC. (ASCAP)B y : ~ (

PROMUSE, INC. (BMI)



Case 1:09-cv-05580-LTS -GWG Document 76 Filed 12/21/10 Page 47 of 58' t ..

. .

Exhibit "B" to the agreement dated as of October 17, 1998, by and among Protoons, Inc. andPromuse, Inc., on the one hand, and Rush Productions, Inc. and Rush Groove Music, RussellSimmons, (individually and on behalf of his publishing designee), Darryl McDaniels(individually and on behalf of his publishing designee), Jason Mizell (individually and on behalfof his publishing designee) and Joseph Simmons (individually and on behalf of his publishing

designee), on the other. ·

ASSIGNMENT OF COPYRIGHT

For good and valuable consideration, receipt ofwhich is hereby acknowledged,

RUSH PRODUCTIONS, INC. and RUSH GROOVE MUSIC, on behalfof hemselves

and their shareholders, partners, officers, directors, attorneys, agents, employees,

affiliated companies, heirs, executors, administrators, successors and assigns

(collectively, "Assignor") hereby irrevocably assigns to PROTOONS, INC. (ASCAP)

and ts successors and assigns ("Assignee") all of the Assignor's worldwide right, title

and interest in andto

each and every musical composition and portion thereof which is orwas embodied on any sound recording(s) featuring the performances of he musical group

professionally known as "Run-D.M.C.", including, without limitation, the Compositions

set forth on Schedule "1" attached hereto and made a part hereof (hereinafter, the

"Compositions"), including, without limitation, all ofAssignor's right, title and interest in

and to the worldwide copyrights (including any and all renewals and/or extensions of

copyrights) therein and thereto. ·

In witness hereof, Assignor has executed this assignment on December__, 1998;

effective as ofOctober 17, 1998 .

Protoons/rush/rundmc/publishing-sett3rd

11119198-3

RUSH PRODUCTIONS, INC.

By:_________

RUSH GROOVE MUSIC

By:____ ~ - - - - -

9



Case 1:09-cv-05580-LTS -GWG Document 76 Filed 12/21/10 Page 48 of 58:' j : ,.

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,.

STATEOFNEWYORK, COUNTYOFNEWYORK ss.:On · · 19 before me personally came

to me known, who, by duly ·sworn, did depose and say that deponent resides at . <

that deporii:mt is the of ·the corporation and entity, respectively, and also the individual, described in the

foregoing ASSIGNMENT OF COPYRIGHT, to me known, and known to be theindividual described in, and who executed the foregoing ASSIGNMENT OF COPYRIGm,and duly acknowledged to me that he executed the same.

. Protoons/rushlrundmc/publishing-sett.3rd

ll/19/98- 3

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NOTARY PUBLIC



Case 1:09-cv-05580-LTS -GWG Document 76 Filed 12/21/10 Page 49 of 58"' I

,.

Exhibit "C" to the agreement dated as of October 17, 1998, by and among Protoons, Inc. and

Prornuse, Inc., on th e one hand, and Rush Productions, Inc. and Rush Groove Music, Russell

Simmons, (individually and on behalf of his publishing designee), Darryl McDaniels (individually

an d on behalf ofhis publishing designee), Jason Mizell (individually an d on behalf of his publishing

designee) and Joseph Simmons (individually and on behalf of his publishing designee), on the

other. ·

WRlTER ROYALTY GUIDELINES

a) Te n cents ($.10) per copy for each regular piano copy which is sold in the United States

and Canada for which Protoons has received payment in the United States.

b) Ten percent (10%) of the wholesale selling price for each copy of orchestrations and all

other arrangements, including vocal scores and instrumental arrangements of the Compositions, issued byProtoons and sold in the United States and Canada for which Protoons has received payment in the United

States.

c) A fractionof

ten percent (10%)of

the wholesale selling priceof each

composite workissued by Protoons, containing Compositions, sold in the United States and Canada for which Protoons hasreceived payment in the-United States. The numerator of said fraction shall be the number of Compositionscontained in such composite work, and the denominator thereof shall be the total number of musical

compositions contained therein.

d) Fif ty percent (50%) of the sums actually received by Protoons in the United States under

any mechanical, transcriptions and synchronization licenses for uses of the Compositions in the United

States and Canada.

e) Subject to paragraphs (j) and (k:) of this Exhibit. fifty percent (50%) of the Sums actually

received by Protoons in the United States from sub-publishers in countries outside of the United States and

Canada_with respect to uses of Compositions.

f) Fifty percent (50%) of the sums actually received by Protoons in the United States fromProtoons' licensees deriving from the exploitation in the United States and Canada by Protoons' licensees of

Compositions in any of the forms specified in paragraphs (b) and (c) of this Exhibit

g) Fif ty percent (50%) of the sums actually received by Protoons in the United States from

uses of Compositions within and outside of the United States and Canada from any other sources or now

known or hereaf ter coming into existence, not specifically provided fo r herein.

h) No royalty shall be payable for promotional material not sold or re-sold.

i) I f any copies for which royalties have been paid are returned to Protoons, royalties sopaid shall be cred ited to Protoons and allowed on the next statement

j) Writer shall not be entitled to receive any part of the fees collected or received byProtoons through or from any perfonning rights society for uses within, and outside of, the United States in

instances where only the publisher's share of royalties or receipts is paid to Protoons.

k) In no event shall Writer be entitled to share in any advance payments, guarantee

payments or minimum royalty payments which Protoons may receive in connection with any subpublishing

agreement, collection agreement, licensing agreement or other agreement covering any of the

Compositions. L

Protoons/rush/rundmc/publishing-sett.3rdll/19/98·. 3

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EXHIBIT 2



Case 1:09-cv-05580-LTS -GWG Document 76 Filed 12/21/10 Page 52 of 581 . '!

...

SONGWRITER'S AGRgEMENT

AGREEMENT, made this IST day of MAY , 1988, by

and among Rush Groove Music·of 298 Elizabeth Street , NewYork, New York 10010 (hereinafter referred tc as"Publisher") .and Joseph Simmons of 206-51 Whitehall Terrace,Queens, NY 11412.; Darryl McDaniels 314 Srni th Street,Freeport , NY 11520; Jason Mizell of 111 Barrow Street , New~ o r k , NY 10019; and David Reeves of 109-16 215th Street ,Queens Village., ·NY 11429 (-hereinafter indi vfdually andc o l l e ~ t i v e l y referred to as '1Writer"). 1

WITNESSETH:

1. Writer hereby sel l s , ·assigns and t ransfers and sets overto Publisher , i t s successors·ana assiqns, for the world, acertain heretofore unpublished original musical composition

w·ritten and/or composed· by the above Writer and tentat ivelyent i t led "Run's House" (hereinafter referred to as the·"composition"}.

2 . I t i s understood and agreed that the Composition shal l ,a u t o m a t ~ c a l l y upon creation, be the sole property ofPublisher , everywhere and forever, with a l l copyrightstherein .and a l l renewals thereof, throughout the un1 verse,arid. Publisher sha l l have the sole and exclusive r ight topublish, se l l , exploi t , use and dispose of the Compositionand a l l r ights therein (or · to refra in therefrom), now orh e r e a f t ~ r known·and to retain any and a l l benef i ts , revenue,money and income accruing therefrom, subject only to thepayment of royal t ies hereinaf ter se t forth. Publisher shali

have a l l exclusive r ights in and to the Composition,including but not l imited to : (a) the r ight to reproducecopies o· f the Composition; (b) the r ight to authorize thereproduction of the Composition in the form of phonographr e ~ o r d s ; (c) the r igh t to prepare cause the preparation ofderivative works and dramatic or dramatico-muslcal worksbased on the C o ~ p o s i t i o n ; (d) the r ight to dis tr ibute copiesof the Compos:i. tion to the public by sa le , rental , lease, loanor otherwise; (e) the r ight to public ly perform and to causeor author izc tho public pe.t·forrnance l ' ) f Lhe Composi t. ion 7 C )

the r ight to display and. to cause or authorize the display ofthe Composition to the public by a l l means now known or tobecome knowp in t h ~ f u t 1 u e ~ and (g) a:n·y and a l l other rightsi: n and to t.he Composition, whether .now khown or to becomeknown in the future. rn addit ion, Publisher shall hav0 thn

soie r igh t to secure registrat ion of c l a i m ~ to copyright int.hA GotnJ?osition, in tha nilmP. of the- P u b l , i ~ a h e t ' . p u : r s u a u l ~ toSection 4 0 8 ( ~ ) df the C o ~ y r i g h t Law, T i t ~ e 17 of the UnitedStates Code a:s "Works Made For Hire" as provided in 5-ect.i.on20l(b) of said law.

3. Writer ~ \ l ' a r r a n t s and represents tha t Writer is the· soleauthor and composer of the t i t l e , music and/or l y r i ~ s

B 3 0 - 8 8 - · 4 Y : 5 · ~ d w - · 2 .....::·-···

(

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r igh t to copyright any such versions in i t s own name andre ta in a l l r ights therein for the ful l term of p r o t ~ c t i o n there in , and renew and extend such copyright), and these t t ing of words (English and/or foreign to t.he music, and/ormusic to the words, and such change of t i t l e , as thePublisher deems desitable. Writer consents to the u s e . ~ f Writer ' s name and l ikeness and the t i t l e of ·the Composition,and agrees that the use of such name, likeness and t i t l e maycommence prior to the publication and may continue so long as·the Publisher shal l own and/or exe.rcise any r ights in theComposition or in any version.s thereof. Writer agre.es thatPublisher may deal w i ~ h any record company undertaking theeffQrt and expense of recording and/or promoting phonographrecords embodying the Composition on such terms as Publishersha l l , in i t s reasonable b u s ~ A ~ . ~ s judgment, deem.properincluding th e l icensing th e C o m p o ~ i t i o n for mechanical use

a t less than the statutory rate therefore. Publisher shallnot i s sue synchronization l icenses to anyone on a basis whichis l ess than an arms-length transaction.

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9. Writer consents that this contract and a l l copyrightsand other r ights hereunder may be assigned· by Pub-lishere i the r expressly or by o p e r a ~ i o n of · law. Writer specif ical lyacknowledges tha t publisher may assign this agreement toProtoons Inc . , including any or a l l of Publisher 's r ights and (in te res t s hereunder and the benefi ts of Writer 's warranties, ,representat ions , author izat ions, duties, obligat ions,l i ab i l i t i e s and indemnifications hereunder. Writerspecif ica l ly acknowledges and agrees tha t Protoons Inc.· andi t s adminis trators , successors, l icensees and assigns is and

shal l .be deemed th ird party benef ic iar ies hereunder and shallhave the r ight , in i t s and their own name (s) , to instj, tuteany action or proceeding ~ g a i n s t Writer to enforce a l l ·, r ights , privi leges and benef i ts direct ly against Writer.Notwithstanding anything in the foregoing to the contrary, i tis specif ica l ly understood and agreed tha t Publisher sl")allnot ass ign nor shal l . Publisher be ..deemed to· haye dele·g(lted to

'protoons Inc . , and Protoons Inc. shall not be deemed to haveassumed, any df l ? \ ~ b U . s h e r ' s warranties, representations,authorizat ions, c;3uties·, obligat ions, promises,. agreements orl i ab i l i t i e s hereunder. Writer is not and shal l not be deemeda third party beneficiary of any agreement or l.lllderstanO.ingbetween Publisher and Protoons Inc.

10. {a) Writer warrants, represents , undertakes and agrees· that the Composition and each and every par t thereof, .isorig inal and does not infr inge upon any other musical, lyr icor other material and tha t Writer has the r ight to vest inPubl isher a l l of sucp r ights free and clear of a l l claims,encumbrances and obligations whatsoever. Writer £urtherwarrants tha t Wtiter has the ful l r ight , power an<! authori ty (to enter fnto th is agreement and to perform a l l of the termsand condit ions h e ~ e i n specif ied .

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(b ) Writer hereby warrants and represent.s that prior tosubmission of the ~ o m p o s i t i o n to Publisher, the same has not

been:

C ) Recorded· in a fo·rm of phonograph records whichhas been distr ibuted;public ly;

( i i ) P r i n t e d ~ <ii i ) Distr ibuted publicly by means of renta l , lease

or lending;

{iv) Offered, in the form of pr inted copies or

phonograph records, to a n Y . . P . ~ r s o n persons for the purposeof fur ther dis t r ibut ion , public performance or publicdisplay. · · · ·- t ,.

11. Writer wil l indemnify and hold Publisher and Publisher.' sl i c e n ~ e e s and assigns free and harmless from any loss , claim,damage, or l i ab i l i ty {including but not l imited to courtcosts and reasonable ~ t t o r n e y s ' fees·> aris ing out of or ina_ny way incurred by Publ_1.sher or Publisher 's l icensee 's andassigns. as a re su l t ·o f a breach or claim of breach by anythird part ies of any of the warranties and representationsmade by Writer herein and agrees to reimburse Publisher ondemand fo r any payment made by it a t any ~ i m e af t e r the datehereof with respec t to any l i ab i l i ty or c l a ~ m to which theforegoing indemnity applies . Pending the determination ofany claim i.nvolving such alleged breach or fa i lure , Publishermay withhold sums due Writer or any third par ty hereunder in

an amount consis tent with such claim.

12. Writer agrees to execute and del iver to Publisher upondemand any and a l l instruments, papers and documents that maybe requested by Publ isher · for the purpose of confirming,protect ing and exercis ing any r ights of Publisher hereunder.w r ~ t e r wil l execute the instru.ment of t ransfe r annexed heretoC\S Exhibi t "A" fo r the Composition, promptly af ter creationthereof . In the event of the fa i lure or refusal of Writer toexecute and de l iver any of the same upon demand, Writerhereby authorizes and empowers Publisher as Writer ' s attorneyin -fac t , in Writer ' s name to execute and del iver the same;th is power, be"ing c-oupled with an . in te res t , is irrevocable .

. 13. Any l ega l act ion brought by Publisher ag.ainst anyal leged infring-er of the Composit·ion shal l be in i t ia ted andprosecuted, in the f i r s t ins tance, a t Publisher 's soleexpense, After deduction o f expenses of the Utigati .onrincluding reasonable a t to rney ' s fees , a sum equal to twoth i rds <2/3) of the balance o f any recovery shql l be paid toWr·i t e r .

_14. Writer shal l look solely to Publisher for any and a l lpayments aue in c6nnectiori . wi1:h· t h ~ use, reproduction and

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. .= •

other exploitation of the compo.sition and in connection withthe enforcement of any r ights or remedies which Writer mayhave hereunder, even i f Profi le or Protoons suspend theirobligat ions to account and/or pay +oyalties or other sums toPublisher. Under no circumstances shal l W r i t e ~ look toProf i le or Protoons for any· payments in connection with theuse, reproduction or other exploitation of the composition.Writer hereby re],eases and dicharges Profi le Records Inc. ,Protoons, Inc. , Promuse, Inc. and their off icers , principais,hei rs , executors, administrators, successors, licensees andassigns from a ll act ions, sui ts , debts, dues, SU.ms o£ money,accounts, reckqnings, bonds, bi l l s , special i t ies , covenants,cont rac ts , controversies ag·reements, promises, variances,t respasses , damages, judgments, executions, claims anddemands whatsoever, whether Qr_ .oot reflected in demandl e t t e r s ~ in law, admfral'ty or e q u i t y · ~ - which against Profile

Records Inc. , Protoons, Inc. , and/or Promuse, Inc. and theirrespect ive heirs , executors, administrators, successors,l icensees and assigns Writer ever had, now has, or hereaftercan, shal1 or may, have for upon, or by reason of any matter,cause or thing whatsoever from the beginning of the world andcontinuing in perpetuity relat ing to the copyrights and a llother r ights in and to the Composition. No breach of thisagreement or modification or termination hereof, by operationof law . or otherwise, and no suspension by Profi le or Protoonsof thei r payment or other obligations to Publisher shall inany way l imi t , impair or denigrate the r ights granted byPublisher to Protoons Inc. and i t s administrators,successors , licensees. and .assigns in and with respect to theComposition. Wi.thout l imi ta t ion of the foregoing, in the

event tha t -Profile or Protoons e1ects to suspend i t s or theirobl igat ions to Publisher, neither Profi le nor Protoons shallhave any obligatior:t to Wr-iter apd no such suspension shallaf fec t the validi ty or enforceabil i ty of this a g r e ~ m e n t . 15. This a g r e ~ m e n t is bind·ing upon the respective part ieshereto, and upon Writer 's successors in in teres t , legalrepresentat ives , heirs and assigns, and represents the entireunderstanding between the par t ies and cannot be terminated oramended except by a writ ing signed by a l l of the p a r t i ~ s hereto. This agreement is entered into in the State of NewYork and sha l l be construed in ac·cordanc.e with the laws ofsaid s ta te applicable to contracts to be wholly performedtherein·. The New York cour ts (State and Federal>, only,

shal l have jurisdict ion ovei any c o n t r o v ~ r s i e s regarding thisagreement; any action or other proceeding which inv9lves sucha con·troversy will be brough·t in those cour ts , in New YorkCounty and not elsewhere. In addit ion to a l l other r ightsand remedies hereunder, it is agreed that the p r e v ~ i l i n g par ty in any f inal ly adjudicated court· action between thepart ies sha l l be ent i t led to recover the reasonablea t to rney ' s fees incurred by s ~ c h par ty in connectionthere·wi th . I f any part of th1 s ·agree·men.t shal l be invalid orune11forceable i t · shall not affect the validi ty of the balance

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of t h i s agreement. This agreement may be executed in one ormore counterpar t s , each of which s h ~ l l be deemed an orig inal ,but a l l of which must be exec-uted by Publ isher to beef fec t ive and a l l of which ·t,ogether sha l l const i tu te one an dthe same instrument .

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·16. All payments and not ices hereunder sha l l be made toWriter a t the address ·s tated below unl·ess otherwise directedin wri t ing •. A ll such not ices sha l l be in wri t ~ n g and, exceptfo r roya l ty s ta tements , sha l l be sen t by regis tered orce r t i f i ed mail , return rece ip t reques ted, and the day ofmail ing of any such nocice sha l l be deemed the date of thegiving thereof . ·

17 . The term "Writer" as used herein sha l l be deemed toinc lude a l l authors and ·compose.rs sfg'ning this agreement or

counterpar t s thereof .

IN WITNESS WHEREOF, theth i s agreement the day and y

New

ere to have executedove wri t ten .

. ("Publisher")

Freepor t ,

vid Reeves <"Writer")109-16 21Sth Stree tQueens Vil lage, NY 11429

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EXHIBIT A

TRANSFER OF COPYRIGHT

For good and v a ~ u a b l e consideration, receipt of which ishereby acknowledged, the undersigned hereby se l ls assigns andt ransfers to RUSH GROOVE·MUSIC and i t s administrators, ·successors, l icensees and assigns, for the universe, a l lr igh t , t i t ie and in teres t in and to the copyright, ipcludingrenewals thereof, and a l l exclusive r ights comprised in· thecopyright, without l imitat ion, the original musicalcomposition ent i t led ' 'Run•s House":

Writer · " L ' ~ r i c ~ v Music Total

Darryl McDaniels 50% 0% 25.0%

Josef?h simmons 50% 35% 42.5%

Jason Mizell 0% 35% 17.5%

David Reeves 0% 30% 1 ~ . 0 %

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Documents

Reeves v. Warner Chappell (Dec. Incl. Run DMC Writers Agt)_Redacted