Friday, September 7, 2001
Ninth Circuit Revives Ex-KISS Guitarist’s Suit Over Royalties
By KENNETH OFGANG, Staff Writer/Appellate Courts
A onetime lead guitarist for the rock group KISS can sue the band for royalties allegedly accrued after he filed for bankruptcy in 1989, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The three-judge panel hearing an appeal by Vincent Cusano, known in the music world as Vinnie Vincent, said a district judge erred in ruling that all royalties for songs written before the bankruptcy remained the property of the bankruptcy estate no matter when they accrued.
But the judges also ruled that Cusano waited too long to sue former bandmates Gene Simmons and Paul Stanley on other claims, including allegations they defamed him in the 1995 coffee-table book “KISStory” and in two earlier videos and that they used photos of him in the book without his permission.
Cusano, known for his “Egyptian Warrior” getup and persona, was fired from the band in 1984, less than two years after joining. His chapter 11 reorganization plan was approved by the bankruptcy judge in 1990, and the court’s jurisdiction terminated three years later.
As part of the plan, Cusano paid the trustee $40,000 for distribution to creditors, plus an additional payment of a little more than $1,500 for his “songrights.” That amount, he said in a court filing, was “a fresh contribution which greatly exceeds the value of the property interest he is retaining.”
In his 1997 complaint, Cusano claimed that he was entitled to royalties for songs he wrote as a member of the band, was well as for three songs that he co-wrote for the 1992 “Revenge” album.
Simmons and Stanley, who were listed in the bankruptcy as creditors whose claims were of “unknown” value, claim that the “Revenge” royalties were signed over to them by Cusano. Cusano claimed his signature on the document by which he purportedly did so was a forgery, but the district judge ruled against him after he failed to submit an independent handwriting analysis report to the court by a deadline set by the judge.
Senior Judge William C. Canby Jr. said the district judge’s ruling on royalties was partially incorrect:
“We conclude that Cusano’s scheduled ‘songrights’ asset reverted to him upon the confirmation of his reorganization plan—by technical abandonment and by express provision of the plan—and vested in him all post-petition royalty rights to his pre-petition compositions, despite his probable undervaluation of the songrights.”
It was incumbent upon the adverse parties to challenge Cusano’s filing if he felt it was inadequate. While “it would have been more helpful” if Cusano had provided details as to precisely what rights he was referring to, Canby reasoned, “the additional detail would not have revealed anything that was otherwise concealed by the description as it was, which provided inquiry notice to affected parties to seek further detail if they required it.”
The judge added:
“Any undervaluation of the ‘songrights’ asset does not impair Cusano’s interest in it, because only an express order of revocation after reopening of the bankruptcy case would do so, and that did not occur.”
But Canby said District Judge A. Howard Matz of the Central District of California was correct in dismissing Cusano’s defamation and right-of-publicity claims.
The allegedly defamatory statements, the appellate jurist explained, were all made in 1992 and 1995, more than a year before the suit was filed and thus outside California’s limitations period under Code of Civil Procedure Sec. 340(3). California, the judge noted, has adopted the Uniform Single Publications Act, under which a defamation claim accrues upon the first general distribution of a work containing defamatory material.
The right-of-publicity claim, Canby went on to say, accrued when the book was published, in January 1995, and was subject to a two-year statute of limitations. The claim was thus time-barred, and the district judge was correct in awarding attorney fees under Civil Code Sec. 3344.
As for the “Revenge” royalties, Canby said, the district judge did not abuse his discretion in ruling against Cusano because he failed to timely comply with the order regarding handwriting analysis.
The case is Cusano v. Klein, 99-56131.
Copyright 2001, Metropolitan News Company