Etana’s Copyright Infringement, Royalties Lawsuit Against VP Records Heats Up

Weeks after VP Records’ attorneys filed a motion to dismiss, citing multiple deficiencies in Etana’s copyright infringement and royalties lawsuit, the Reggae star’s lawyer re-submitted an amended complaint, which was taken into consideration by the presiding judge, who consequently denied the record label’s request for the case to be thrown out of the New York Court.

On Tuesday (April 19), a day after Etana submitted the amended complaint, United States District Judge Gregory H. Woods noted that since the Reggae songstress had amended her complaint, VP and its subsidiaries’ motion to dismiss is “denied as moot”.

The judge also noted that the deadline for VP to answer or otherwise respond to the amended complaint was now May 10, 2022, according to court documents, which were obtained by DancehallMag.

In January, Etana had confirmed that she had filed the lawsuit against VP Records, in the Supreme Court in the State of New York over artist royalties, mechanical royalties, public performance royalties, and other monies allegedly due to her.  Etana, whose real name is Shauna Mckenzie Morris, and Freemind Music LLC, had filed the lawsuit against VP and a slew of its subsidiaries: VP Records Retail Outlet Inc, VP Music Group Inc, VP Records Distributors LLC, VP Records of Brooklyn LLC, Greensleeves Publishing Ltd and STB Music Inc.

The suit filed by Etana’s attorneys Miami Entertainment Law Group, stated, amongst a myriad of allegations, that the defendants “fraudulently concealed their true use and disposition of Etana’s masters, albums, compositions and or recordings and have either failed to render proper accounting statements regarding her royalties or intentionally rendered dishonest and grossly deficient accounting statements all in an effort to pocket millions of dollars of her royalties”.  The suit also said that in doing so, VP had shown “utter disregard for their contractual obligations and have flagrantly abused the more than a decade relationship of trust and confidence placed in them”.

However, in calling for the matter to be thrown out, attorneys from the law firm Fox Rothschild LLP, which represents VP, argued, among other things, that Etana’s first cause of action is barred by the VP recording agreement’s two-year limitations provision, that VP had no fiduciary duty to her, and that her breach of contract and fraud claims fail as a matter of law, as “the Fraud Claim Is Duplicative of Their Breach of Contract Claims”.

As for the allegations of unlawful appropriation and unjust enrichment and conversion and tortious interference, they argued that those “fail as a matter of law” as they are “pre-empted by the Copyright Act”.

However, in Etana’s 137-page amended complaint obtained by DancehallMag, which was filed on Monday (April 18), her attorneys went into detail, noting that on the subject of the Copyright Infringement, Etana, at all relevant times has maintained valid copyright ownership rights, either exclusive or otherwise, under United States copyright with respect to certain copyrighted, original sound recordings.

These include, but are not limited to: Wrong Address, Roots, Nuclear, Don’t Forget, Live and Love Life, and Jah Chariot, which were created from 2005 through February 2007 and recorded prior to the signing of a Songwriter Agreement which Etana had entered into with Greensleeves Publishing Limited in 2008, and the other agreements with VP and its subsidiaries.

The lawyers argued that as early as 2007, VP Records had infringed on her copyright to the titles created prior to the execution of a 2007 Recording Agreement, “by claiming that those titles are owned and controlled by VP Records because the rights to those songs were transferred to them through the VP Recording Agreement”.

“In fact, no agreement between McKenzie and any of the Defendants existed when the titles, “Roots” and “Wrong Address” were released in 2006 by Plaintiff Freemind Music LLC,” it said.

“VP Records reproduced and distributed the titles Wrong Address, Roots, Nuclear, Don’t Forget, Live and Love Life, and Jah Chariot despite the fact that there is no agreement between either Plaintiff or VP Records for the use and/or exploitation of these specific titles… The titles were released on the Album entitled, The Strong One,” it added.

The lawyers said that one or more of the songs in question, have been released on several compilation albums by VP, without Etana’s authorization, even though the provisions within the 2007 VP Recording Agreement between the label and Etana, do not apply to any of the titles created as they were recorded prior to the contract’s effective date.

“On the album entitled, The Strong One, VP Records representatives, Christopher Chin and Joel Chin, are both listed as the entire album’s executive producers.   Moreover, VP Records claimed copyright ownership for the entire The Strong One album.   However, “The Strong One” album was officially released June 17, 2008, prior to McKenzie and Defendant GPL entering into the Co-Pub Agreement,” the lawyers outlined.

“However, according to McKenzie’s royalty statements, VP Records stated they paid for the production and mastering of one or more of the said Masters, Albums, Compositions and/or Recordings.   McKenzie has then been billed for the production and mastering expenses of one or more of the Masters, Albums, Compositions and/or Recordings for which the cost of production was never incurred by VP Records,” the claim stated.

The lawsuit said that VP Records and Greensleeves continue to claim sole ownership and publishing rights to said compositions to performance societies worldwide without Plaintiffs’ authorization and despite several requests made to VP Records and GPL by McKenzie to discontinue the alleged infringement.

The lawyers allege that VP Records and Greensleeves continued to grant distribution rights to the compositions worldwide without Etana’s authorization, this despite several requests made to them by her to discontinue the alleged infringement.

The amended suit alleged that VP Records had even used Freemind Music’s produced music on albums including their Strictly the Best without requesting and/or obtaining permission for use of the copyrighted material, as well as in albums that it has released on behalf of McKenzie, including “The Strong One” without requesting and/or obtaining permission for use of the copyrighted material.

“VP Records was expressly told by Andre Morris of Freemind Music on multiple occasions that they were in violation of Freemind Music’s copyright and/or owed royalties.   VP Records responded once to Plaintiffs’ good faith letters advising McKenzie and Freemind Music that they maintain their rights to any copyright and to not sue VP Records because the case is closed and Freemind Music will lose,” it said.

It said that or about May 1, 2007, McKenzie and VP Records entered into an exclusive Recording Agreement for the delivery of four albums, months before she started negotiations with British record label and publishing company Greensleeves.

The attorneys said that even though VP Records had acquired Greensleeves Records in or around February 2008 and renamed the entity Greensleeves Publishing, Etana was not aware that Greensleeves had been acquired by VP Records.

They said this allegedly underhanded manner resulted in Etana negotiating a publishing agreement with Greensleeves Publishing Limited, for the first time in June 2008, “with what she believed was a separately owned and operated UK company”.

“At no point during the negotiation of the contract and prior to signing was McKenzie contacted or advised that Greensleeves would be transferred or sold to VP Records.   Instead, Olivier Chastan, Executive Vice President of VP Records from 2004- 2012 and President of VP Records from 2008-2013, failed to notify McKenzie of the acquisition and knowingly acted on behalf of Greensleeves, a UK Company with a UK address, all while the company was already sold to VP Records,” they outlined.

It also noted that or about July 10, 2008, one month after the release of her debut album, The Strong One, (on June 18, 2008) Etana entered into the short form deal memo with Greensleeves Publishing Ltd, for exclusive songwriter services for a period of five years.

Backdated contract

“Although VP Records confirmed receipt of the GPL Deal Memo by Olivier Chastan on or about July 16, 2008, the long form of the deal memo was backdated and is stated to have been ‘made and entered into as of this 1st day of December 2007’,” the attorneys noted.

“It should also be noted that McKenzie was not aware that Greensleeves Publishing Ltd was not a lawfully organized corporate entity at the time of signing the GPL Songwriter Agreement,” the lawyers outlined.

The Songwriter Agreement between Etana and Greensleeves Publishing Ltd, was dated July 10, 2008 and noted, among other things, that each composition written during the ensuing five-years term, shall be considered “a work made for hire” for, and the property of Greensleeves Publishing in perpetuity throughout the world without any claim by her.