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Usher Wins 'Bad Girl' Lawsuit in 3rd Circuit

By Casey C. Sullivan, Esq. on December 14, 2016 | Last updated on March 21, 2019

Remember Usher, the R&B singer who was inescapable on pop radio in the late 90s and throughout the early 2000s? Who starred in "Moesha" and "She's All That" and whose "Confessions" album was described as "the 'Thriller' of our generation"? Well, he's back -- in the Third Circuit, that is.

Usher won a long-standing copyright infringement lawsuit over his 2004 hit song "Bad Girl" last Friday, when the Third Circuit tossed the infringement suit against him.

"Bad Girl," Bad Lawsuit

The dispute stems from a collaboration between songwriters Daniel Marino, William Guice, and Dante Barton, which resulted in the song "Club Girl." Guice and Barton later granted Usher a nonexclusive license for the use of the song. "Club Girl" became "Bad Girl" and was included on Usher's 2004 hit album "Confessions," alongside chart toppers like "Yeah!" and "My Boo."

Marino later sued Guice, Barton, Usher, and several music companies, alleging that Guice and Barton infringed upon his copyright and, thus, that Usher infringed vicariously upon his rights as well.

The problem, as the district court noted, was that the co-authors of a work are entitled to joint ownership of that work and cannot sue each other for infringement. The district court described the suit as "absurd and contrary to law."

The Third Circuit agreed, upholding the dismissal of the suit, with Chief Judge Theodore A. McKee writing for a unanimous three-judge panel. The Third Circuit rejected Marino's state law claims, finding them to be preempted equivalents of the federal Copyright Act. As to Marino's complaint that his claims were improperly tossed "sua sponte" in district court, the Third Circuit noted that their dismissal was made "after defendants had submitted a motion to dismiss" and the issue was "fully briefed by both parties."

The Third Circuit upheld an $110,888.60 award of fees and costs against Marino, down from an initial $1 million plus, due to his inability to pay.

No Good News for Marino's Attorney, Either

Marino's attorney didn't get off too easily, either. Rejecting the claims that the district court judge was impartial, the Third Circuit said that the record reveals no impropriety on the judge's part. The record did reveal, however, "that those proceedings were fraught with misconduct by Marino's attorney," the court explained, upholding sanctions against the lawyer.

At issue was contact between Marino's attorney, Francis Malofiy, and Guice, who was unrepresented. According to the district court, Malofiy persuaded Guice to sign an affidavit saying that he believed Marino was entitled to producing and writing credits and that, "due to Malofiy's misrepresentations," Guice never responded to Marino's complaint, resulting in a later-vacated default judgement. The court upheld sanctions against Malofiy of just over $28,000.

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