Opinion
No. 05-15486.
Submitted February 16, 2007. San Francisco, California.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
February 21, 2007.
Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding. D.C. No. CV-03-00167-DCB.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Alejandro Lopez, a former drummer in the band Los Huracanes del Norte, appeals the district court's grant of summary judgment in favor of the defendants. We have jurisdiction pursuant to 28 U.S.C. § 1291, review the district court's grant of summary judgment de novo, Aalmuhammed v. Lee, 202 F.3d 1227, 1230 (9th Cir. 2000), and reverse and remand.
Lopez argues that he came forward with sufficient evidence to create a genuine issue of material fact about whether he was a partner in the band pursuant to Arizona partnership law. We agree. Viewing the facts in the light most favorable to Lopez, the 1992 Artist Recording Agreement and 1994 extension of that agreement established the band members' intent to jointly own certain of the recordings and to share jointly in the profits of the new Unico recordings. These facts support a finding of the existence of a partnership. A.R.S. §§ 29-1012(C)(1) (C)(3)(b). These agreements covered recordings made for 17 of the 20 years that Lopez was the drummer in the band. Moreover, the trademark application, signed under oath by Heraclio Garcia, asserted that the band was a partnership and that Lopez was a general partner. Taken together, the evidence was sufficient to create a genuine issue of material fact about whether Lopez and the other band member defendants associated "as co-owners [of] a business for profit" pursuant to A.R.S. §§ 29-1001(11) 29-1012(A) (2007).
We also agree that Lopez came forward with sufficient evidence to create a genuine issue of material fact about whether he was a joint author of the band's master recordings for purposes of copyright law. First, Lopez came forward with evidence that he made an independently copyrightable creative contribution to the sound recordings on par with the other musicians when he developed and performed the rhythmic and percussion elements during the master recordings. The fact that Lopez did not write the songs is irrelevant. None of the band members wrote the songs. Lopez was not claiming copyrights in the songs, just in the recordings.
Second, Lopez came forward with evidence of the objective intent of the parties to be joint authors when the work was created. Absent a written contract among the parties, we apply the factors set forth in Aalmuhammed. 202 F.3d at 1234-25. Although the parties had not signed written contracts with each other, the individual band members jointly signed the 1992 Artist Recording Agreement and agreed that they owned the catalog of already-recorded albums and "retain[ed] all ownership rights, including copyright," in those albums and in the three new "licensed albums." In addition, Lopez testified that he exercised control over his part of the music-making by developing and performing the rhythmic and percussion elements during the studio recordings. Finally, the parties agreed that the band members were equally billed in recordings and performances for the 20 years that Lopez played as a drummer in the band. This evidence was sufficient to create a genuine issue of material fact regarding the parties' objective intent to be joint authors under the Aalmuhammed factors. Id.
Because we reverse the summary judgment order, we need not address the appeal of the new trial order.
REVERSED AND REMANDED.