‘Real Housewife’ Zolciak Ducks Suit Over Song

ATLANTA (CN) - Music producers have no basis to sue "Real Housewives of Atlanta" star Kim Zolciak for infringing on the song "Tardy for the Party" that she co-owns, a federal judge ruled.

Though she has not appeared on "Housewives" since December 2012, the reality star whose legal name is Kimberleigh Zolciak-Biermann still appears on the Bravo spinoff "Don't Be Tardy..."

The title of that program alludes to a song called "Don't Be Tardy for the Party" that appeared on Zolciak's 2009 country music album.

Kandi Burrus, Rodney Richard, Ed Davidson and Zolciak's daughter, Brielle, allegedly wrote the song in April of that year.

Barrus and Richard then produced a sound recording of the composition that included a vocal performance by Zolciak in May 2009.

In a March 2013 lawsuit, Burrus, Richard and Kandi Koated Entertainment accused Zolciak of copyright infringement, unjust enrichment and constructive trust.

They said Zolciak entered an agreement with TuneCore Inc. in September 2009 to release the recording without consent.

This deal led to at least 102,000 unauthorized sales of the song, according to the complaint.

Zolciak meanwhile said that the statute of limitations gave Barrus and Richard until Februrary 2013 to file suit - within three years of the song's release on iTunes.

She also sought to dismiss for failure to state a claim.

TuneCore had initially been named as a defendant, but the plaintiffs voluntarily dismissed that firm from the action this past May.

U.S. District Judge William Duffy sided with the reality star on Oct. 11, noting that the producers have not shown that they registered the song with the U.S. Copyright Office.

The plaintiffs conceded moreover that Zolciak co-owns the recording in question and "had a right to release it for commercial sale without plaintiffs' consent," according to the 15-page ruling.

As to the producers' demand for a share of the song's profits, Duffy said that the "consensus generally is that ... an accounting claim must be asserted in a state-court action."

"The fundamental claim asserted by plaintiffs is whether they have been adequately compensated based on the sales of, and their joint interest in, the sound recording," Duffy wrote. "In other words, this is a contract dispute and, as such and for the reasons already stated, this court lacks jurisdiction to decide it."

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit