Usher Gets Good News in Songwriting Dispute (Led Zeppelin Too?)
A case study in how not to be an entertainment lawyer.
Usher and others involved in the creation of the the song "Bad Girl" have escaped a songwriter's copyright infringement claims. However, this might be one of those rare instances where news of a superstar singer's success takes a back seat to the misconduct of the lawyer who brought the lawsuit in the first place.
In the case, Dan Marino (not the Hall of Fame NFL quarterback) sued Usher Raymond IV and 19 other co-defendants. In particular, Marino targeted his former songwriting partners William Guice and Dante Barton, who collaborated on the song when it was known by the title "Club Girl." Marino says he created the basic melody, chord progressions and tempo, yet was never credited. His copyright infringement claim fails because at best, the song is a joint work and his fellow co-writers were entitled to license it. Here's the full ruling by Pennsylvania federal Judge Paul Diamond.
What's more notable is that the lawsuit was filed by attorney Francis Malofiy, who has been in the news of late thanks to a potential lawsuit he says he's prepared to bring against Led Zeppelin for allegedly stealing the famed introductory section to "Stairway to Heaven" from a 1968 song by the Los Angeles band Spirit.
The Led Zeppelin lawsuit has not yet been filed, and after Judge Diamond ordered sanctions against Malofiy in the Usher lawsuit and slammed him for behaving "in a flagrantly unprofessional and offensive manner," who knows whether it ever will be.
Malofiy appears to have assimilated the worst characteristics of lawyers in movies and television.
During one deposition, he told the other lawyer, "Don't be a girl about this." During another, he said, "Usher has $130 million … I'm going to take every penny of it." Yet more comments during the case: "You don't like the truth, it disturbs you. You've never seen the truth in a deposition."; "You can't handle the truth."; "I'll call the Judge. He doesn't like you at all."; "You're like a little kid with your little mouth."; and so forth.
For these comments and others -- which the judge calls "sexist, abusive" -- he gets a pass. Where he doesn't, on the other hand, is his behavior toward Guice.
After the co-defendant called Malofiy, the attorney untruthfully assured Guice, "Don't worry about it. [Marino] is not coming after you, it's everyone else." The attorney then convinced Guice to sign an affidavit admitting he failed to give his client credit for writing and producing the song. The attorney entered a default judgment against Guice after he failed to respond to the suit — which Malofiy had led him to believe he wasn't a party to. The attorney recorded a conversation without Guice's permission. The attorney essentially got Guice to show up at a deposition without a lawyer and without knowing that he was one of the people being sued.
Later, Guice learned the truth and was understandably upset. "I would say I was duped," Guice said during the case.
"It is difficult to imagine more vexatious or unreasonable behavior," rules Judge Diamond in his sanctions memorandum. "Malofiy's discussions with Guice are the paradigm of bad faith and intentional misconduct."
Malofiy says in a press release issued that he disagrees with the grant of sanctions and denies misleading Guice.
Will Malofiy even get a chance to litigate a claim over "Stairway to Heaven"? Will he be able to show off his impressive legal reasoning skills like this gem offered during the Usher case: "It is a fallacious position; one which, mounting a series of misplaced presumptions into a portrait of the issue misframed from the start -- and arguing backwards at that -- only obscures the fundamental truth that refutes it."
Judge Diamond leaves off by writing, "Whether Malofiy should be removed from practice is a question properly answered in another forum."
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