It took 10 years after Timberlake released “Damn Girl” on his award-winning 2006 album “FutureSex/LoveSounds” for PK Music Performance to file the underlying copyright action in New York.
PK said its principal, Janis McQuinton, only discovered in 2015 the similarity between “Damn Girl” and “A New Day (Is Here at Last),” a rollicking soul-jazz instrumental by Perry Kibble, McQuinton’s brother, who died in 1999.
Noting the tremendous success of Timberlake’s song, however, Timberlake and producer will.i.am called this claim “implausible.”
Joined by Sony Music and BMG Rights Management, the defendants asked the court to put a three-year cap on PK’s claim, barring the copyright holder from seeking damages for the time period dating back three years from the filing of its complaint.
U.S. District Judge Vernon Broderick denied the motion Tuesday with leave to refile, however, saying “this issue may be case dispositive,” and would moot the issue of damages altogether if found for the defendants.
The 7-page ruling notes that the issue of the three-year time limit is one that is not clearly defined.
Though the Supreme Court established the three-year limit in the 2014 decision Petrella v. Metro-Goldwyn-Mayer, the Second Circuit adopted a discovery rule that same year in the case Psihoyos v. John Wiley & Sons Inc.
“At its core,” Broderick wrote, “defendants’ argument amounts to a request that this court separate the Second Circuit’s pronouncement that the discovery rule applies from the language supporting a three-year look back, and find, as a result, that the three-year look back prohibits plaintiff from recovering any damages occurring more than three years prior to the filing of the complaint regardless of when the infringement claim accrues.
“Neither the Second Circuit nor the Supreme Court have explicitly addressed this issue,” the ruling continues. “Indeed, while noting that the limitations period allows plaintiffs to gain three years retrospective relief from the date the complaint is filed, the Petrella Court simultaneously stated that it had not decided whether the injury rule or discovery rule applies, and did not address how application of either rule would interact with the three years retrospective relief limitation.”
Kibble was a member of the 1970s disco group A Taste of Honey, which produced one of the biggest hits of the era, “Boogie Oogie Oogie.”
The 45 rpm single her 1969 song “A New Day (Is Here At Last)” was performed by saxophonist J.C. Brown, a one-time member of James Brown’s hardworking early 1960s backing band, The Famous Flames.
Kibble’s brother McQuinton claims that “a substantial part of the drum, conga drum, organ, bass guitar, electric guitar, and saxophone parts in ‘Damn Girl’ were all copied from ‘A New Day (Is Here At Last).’”
Timberlake’s attorney Robert Jacobs wrote in the motion to dismiss that McQuinton’s “lawsuit seeks to turn Supreme Court precedent and four decades of unbroken Second Circuit law on their head.”
“Just 21 months before Plaintiff commenced this action, the Supreme Court unequivocally stated that copyright plaintiffs are limited to ‘retrospective relief only three years back from the time of suit,” the motion says.
A footnote in the motion to dismiss also accuses McQuinton of “ignor[ing] the fact that … before Damn Girl’s release, Defendants sought and obtained mechanical and sample use licenses for Day’s use from J.C. Davis, who admittedly had originally recorded and released Day in 1969 … and from Josh Davis who released a remix of the 1969 recording with J.C. Davis’s permission in 2005 on an album identifying J.C. Davis as the composition’s sole copyright owner.”
“FutureSex/LoveSounds” credited the album’s sample clearances to David Schmidt and Kobie “The Quarterback” Brown.
While the majority of “FutureSex/LoveSounds” was produced by Timbaland, “Damn Girl” was produced by Timberlake and Will.i.am under their production handle Jawbreakers.
Timberlake’s attorney Robert Jacobs declined to comment on the ruling decision.