He created a song. You transcribed it to guitar.
That is correct.
Your contract doesn't prevent him from using it, sir.
It should say it in the-- not that one.
Not that one either. The other one.
You got five more minutes of my time.
This is Judy Justice.
Charles Kerper is suing musician Luther Fortinberry
for breach of contract and copyright infringement.
Court come to order. All rise.
Have a seat, please.
- Hello, Judge. - Hi.
Case 2081, Kerper versus Fortinberry.
- Thank you. - You're welcome.
Mr. Kerper, it is your claim that the defendant breached a contract with you.
The contract was a verbal contract.
And the nature of that breach was the defendant envisioned
in his mind the lyrics to a song.
That was his business.
And he asked, according to you,
he asked you to put music to the lyrics.
- Am I understanding that correctly? - The latter part is true.
However, it was more than just a verbal contract. It's also in writing.
Okay. I'm going to take a look at it. That's important.
And according to your complaint, you did in fact write the music.
Correct.
- To his lyrics? - That is correct.
And you had an agreement in writing
that you would share the profits of any exploitation of that song.
- That is correct. - With him?
- Yes. - And that he breached that agreement.
Yes. There was also an agreement that he would give me proper credit
whenever he was using that.
So, now I would like to see if you say there was a written contract
that's signed by both parties. That's what I want to see.
Okay. So...
this was the original version, which he offered me 25%.
Just a second, just a second, just a second.
Sorry.
Okay. This contract is pretty straightforward,
and it's signed by both parties.
And it says Luther Winston Fortinberry created a song,
"Baby, I Got a Gun."
And Charles Kerper, that's you, transcribed it to guitar.
- Correct. - So what this contract says,
I just want you to understand, Mr. Kerper,
is that the defendant created the song and you transcribed it to guitar.
That's what it says.
And that was written in January of 2016.
- Correct. - It's signed by both people.
- That is correct. Yeah. - Okay.
Now, what you're showing me is something else.
How it started to change over time.
Listen to me. This was your written contract.
Right.
Any change in that contract,
unless I can really find that there was a meeting of the minds
with regard to it, has to be in the same formality of this contract.
This initial contract is very clear.
It does not say that you created this music.
I'm telling you what this initial contract says.
By the way, Mr. Fortinberry,
this contract was written January 30th, 2016.
- Yes. I'm looking at it. - Yes.
When did you create this song? In what month and year?
About a year. I don't know exactly,
but I was at a popular comedy store,
and the manager of our show.
- What show? - The Ding Dong Show.
What's The Ding Dong Show? When you said "our show,"
was he involved in that?
Just with this transcription.
I was involved with other elements of the music
as well with Mr. Fortinberry.
Well, right now, this says transcribe.
What I asked you, a simple question. When did you write this song?
At least a year before this contract.
At least a year before January 30th, 2016.
Yes. And I was singing it regularly, acapella, at the club.
Okay, but you asked him to transcribe it. That's what it says.
Now, this was done at the time that you transcribed it to guitar.
I would argue I'd never transcribed it because...
Just a second. That's what this says.
It doesn't say "will transcribe it."
- It said "transcribed it." - Correct.
To a guitar... that they both agreed to submit for sale.
Correct.
Asking price will be $10,000 to rent...
- Mm-hmm. - ...and 10 million to sell it outright.
And you will split it 75/25. That's what this says.
That is correct. Yeah.
- Now, did you ever rent it? - I never rented it or sold it.
Just a second. Well, I'm asking you this question.
- You never rented it? - No.
And $10 million to sell it outright, and you never sold it?
No, ma'am.
Okay, so it was neither rented nor sold,
which was your original contract,
and you have no proof to the contrary
that he neither rented it nor sold it?
I have evidence that he did use it in other productions.
- It doesn't say that you can't use it. - Right. That is correct.
Okay. Now you want to show me,
sir, 'cause this is what your action is-- you want to show me
that this original agreement...
- Yes. - ...was somehow modified...
- Correct. - To give you a wider berth?
This is correct.
Okay. So I'd like to see what you have in writing.
Okay. So, immediately after that was signed,
about four or five days later--
you have the paper, it's stapled behind--
I confronted Mr. Fortinberry and I said,
"This is not a transcribing project. This is a rewriting project."
What he provided to me was not usable for transcription.
And on the next page, we have a text message exchange
- that I highlighted where he... - Well, just a second.
- Shh! - Sorry.
Well, this is a text message from him to you.
Correct. And he acknowledged...
Just a second. That's not acknowledging.
That's a text message from him to you.
Do you have your response to this?
You can't unilaterally change a contract that's in writing.
I mean, if you have an offer and an acceptance.
- Right. - So where is your response to this?
I don't believe I had a response in the history of messages
I was able to retrieve, so...
Then this is irrelevant.
- Okay. - So far we have this.
We have a writing signed by both parties, which is complete.
It says what you did, what will you will be paid in the event
of a rental or a sale.
Now you want to show me...
- Yes. - ...something else?
So going forward, what he did was he registered the song
with a registration company in San Diego.
He did that without my knowledge.
Just a second! That's irrelevant. This is your contract.
Show me where it's a violation of this contract.
This contract says you transcribed it to guitar.
If the version that you transcribed for the guitar
is either rented or sold, you will get 25% of the revenue.
So, we already went through that.
You do not have any proof that he either rented it or sold it.
It doesn't say that you will be given credit.
It doesn't say what your credit will be.
If you have a modification where he agreed that you will get
- certain credit and you accepted that... - Okay.
I will see that.
Okay.
This is the most recent agreement signed in August 21, 2018.
- It's dated August 8th, but... - Shh!
I don't know what this means.
- "Mr. Kerper..." - Yes.
"...agrees to release Mr. Fortinberry..."
Mm-hmm.
"...from any financial liability for work performed
prior to the date of this document," that is, prior to 2018.
Correct.
"Payment by Mr. Fortinberry to Mr. Kerper
will be considered compensation for his time costs, etcetera,
Mr. Kerper has invested in this ongoing project to date."
- What did he pay you? - He...
- Because it doesn't say here. - He didn't pay me anything.
What he did was he gave me some camera equipment,
which he promised me, which was outside of this project,
and he gave me $300 as what was deemed
a celebratory gift because we were wrapping this up.
No, no, no, no, that's not what this says, Mr. Kerper.
Mr. Kerber, we read a contract literally.
Right.
This is a poorly crafted document,
but it's clear in regards to "Baby, I Got a Gun."
- Right. - "Mr. Kerper"-- that's you--
"agrees to release Mr. Fortinberry of any financial liability
for work performed prior to the date of this document."
Correct.
"Payment by Mr. Fortinberry to Mr. Kerper
will be considered compensation for time,
costs Mr. Kerper has invested in this ongoing project."
And what you're telling me is
the payment was some camera equipment and $300.
I would say it was not camera equipment, it was the-the $300.
- What's the camera equipment? - This is some camera equipment I had had.
I had sold him some of it prior,
and he had offered it back to me as a gift
because I had invested so much work into this project.
You got five more minutes of my time.
- Okay. - You have no case.
- I believe I do, ma'am. - No.
- I'm sorry, Your Honor. - Sorry. You don't.
You want him to say whenever he performs the song,
"I wrote this song together with Mr. Kerper,
and I want you to understand that he's the Music Man."
I don't know what a Music Man is.
It's interesting when people sign contracts
and they have no idea what they're doing.
Charles Kerper claims musician Luther Fortinberry
owes for a breach of contract and copyright infringement.
Now, those are the two written contracts.
Do you have any further modification of those contracts in writing?
Yes, I...
- I'll see them. - Okay.
This is a contract in writing, 2018. This is 2016.
And this was agreed by both parties.
So the last agreement was you got $300.
Did you pay him $300?
Three hundred dollars and camera equipment, about $1,500 worth.
Okay. He started to mention that, and then he backtracked.
- Okay, next written contract after 2018. - Yes.
In that contract, which you have right now,
it also says it serves to clarify previous misunderstandings
that I wrote the music and I was not a transcriptionist.
"Mr. Kerper is to be understood as the Music Man behind the music
and not a transcriptionist."
But who do you want that to be noted by?
"Mr. Kerper is to be understood as the Music Man,"
- with capital letters... - Right.
- And I don't know what that means. - This was his wording.
Well, then you should have fixed the wording.
- I should have, you're correct. - I don't know what a Music Man is.
It's not a trademark. It's not a copyright. It's a nothing.
I don't know what it means.
So I wrote the music, which is in the version which he's using currently.
I wrote that from scratch. There was no transcribing.
That doesn't say it. That doesn't say it.
Nothing here says that.
The only thing this says is, Luther Winston created this song,
"Baby, I Got a Gun," that says he created it.
You signed it. You wanted to clarify it.
You wanted to be known as the Music Man, not just the transcriber.
I don't know what Music Man means.
And you got paid pursuant to this, although it doesn't say this,
but you acknowledge it, and you got paid $300.
Okay. Also in that agreement,
it also says that I'll be given credit in future uses.
- It says that... - As the Music Man.
You want him to say you're the Music Man.
I will be given credit, which he did not give me credit.
You want him to say whenever he performs the song,
"Baby, You Got Gun," he gets up to perform that,
"I wrote this song together with Mr. Kerper,
and I want you to understand that he's the Music Man.
It's interesting when people sign contracts
and they have no idea what they're doing.
Okay, let me see the next contract that you have.
So, this is an agreement which is supposed to be
a performance agreement with his producer from the comedy club.
Just a second. Let me take a look at it.
- He's... - Shh!
This is exactly what this says.
This says, "This agreement"-- and this is August of 2018.
And who sent this, by the way?
Mr. Fortinberry sent that to me.
Okay, it says, "This agreement gives Luther the right to perform music
as the opportunity arises.
Luther is further released of any further financial responsibility
or debt owed making music.
Charlie Kerper will be referred to in the future as the Music Man.
This payment will be for goods and costs making music...
for $300 and camera equipment.
If any referral is made in the future as to who wrote
and performed parts of said music above,
Charlie Kerper will be given those credits.
Correct.
Okay, he sent that to you. Where is your response?
So, he sent that back to me on August 8th.
- Just a second. - I... okay.
He sent this to you, so I would like to see your response to this.
"I agree to your terms. I disagree with your terms."
If you agree with the terms,
then I might accept that as a modification of a contract.
If you say, "I disagree with the terms," then there is no modification.
We go back to these two signed agreements.
- Correct. - Where is your response to that?
Can I explain what happened after that?
He's emailed that to me. I was here in L.A.
And I didn't have an opportunity to entirely go over it,
but we were trying to meet with him at a restaurant
and also at the museum to have this resolved.
So I had my phone only to look at it,
and he was playing hardball with me that day.
So he sent me these emails
saying he had signed these agreements,
which included making referral to me and clarifying that I did in fact
write the music which he claims I transcribed.
- I need your response to him. - Okay.
If there is no response, we have these two agreements.
So the response was this: That night, we finally agreed to meet.
- I need that in writing. - Yes.
I want what you sent to him in response to this email.
Well, I called him on the phone, and I said,
"Can we meet so we can sign this? And put this past
so the music video could be moved forward."
And he wanted a performance agreement, so there wasn't any question
as to whether or not they could use the music in the video.
So I arrived at his apartment.
He made us wait outside for half an hour.
Okay, you know, Mr. Kerper, I really don't care.
- Okay. - It's not relevant.
What's relevant is if you had a subsequent offer
and acceptance to a new contract, a modified contract
- that he made via email... - Mm-hmm.
...and you responded to him via email, that "I accept those terms,"
or if you sent it to him and said, "These are the terms I want,"
and he wrote back, and "I accept your terms."
Unless you have that, you are bound by these two written contracts,
which means you got paid.
You got paid $300 and some equipment.
You got paid.
And according to this contract,
when referring to this music and referring to you,
he has to refer to you as, in capital letters, "the Music Man."
Correct. Giving me credit, credit.
He has to refer to you as the Music Man.
It says here in this contract, I'm sorry,
"If any referral is made in the future
as to who wrote and performed parts of said music above,
Charlie Kerper will be given those credits."
- Yeah, as "the Music Man." - No, it does not say Music Man here.
- Where? - It should say it in the...
Not that one.
Not that one either. The other one.
There's no other. I only have two written contracts.
This is his original email to me that he sent me before the contract.
- I don't want... - It has my response.
I have my response attached to it here.
I'm sorry, Your Honor.
Okay.
Who wrote, "Your offer is hostile and very lowball for what you're asking"?
I wrote that.
- " I reject it." - Absolutely.
"I'm not interested in selling."
- That is correct. - Well, that doesn't modify.
That means he made you a subsequent offer after these two agreements.
- You said, "I don't like that offer." - That is correct.
So there was no change in these two written contracts,
one of which called for payment
which you acknowledge you received
in the form of $300 and camera equipment.
He was limited to using it on one particular program,
and he's used it in other places.
And I said... Shh! Put your hand down.
When it doesn't appear that you're losing,
you're supposed to keep your mouth closed.
Charles Kerper is accusing musician
Luther Fortinberry of breaking their contract.
Luther claims he already paid Charles for his services.
Mr. Kerper, I want you to understand-- you're looking at papers.
What you're not understanding is
if you are going to modify a written contract,
you have to do it with another contract in which there is an offer...
- Mm-hmm. - ...and an acceptance.
- He made an offer to you... - Yes.
...in this. You rejected the offer in your response.
Actually, that email he sent first, he worded it differently.
It doesn't matter. You rejected it.
I rejected the part that included the sale.
Just a second. You can't take pieces of what he says.
If you're going to modify a contract which is clear,
or as clear as it can be when two laypeople write it,
and which has been executed and fulfilled by terms of payment
because there was an exchange of cash and goods,
which is indicated in here,
you have to have a modified contract.
Correct.
This is not a modified contract.
He says to you, "This is what I'm going to do."
And you said to him, "I reject it. It's a lowball offer."
So we're going to get back to is there a subsequent modification
that says, in addition to the $300
and the camera equipment and the fact that "I will refer to you,
if I refer to anyone," when he's singing the song,
which I've never heard.
I've heard of patter, you know, where somebody talks about patter.
So-and-so wrote the song and he wrote it
when he was mourning the death of his dog
and then sings the song.
That's patter. That's what I understand patter is,
the chatter before.
So, if he was going to chatter about who wrote the song,
he'd have to say, and the man behind the music is Mr. Music Man.
That's all this says.
And he's never sold it and he's never rented it,
that you can establish.
He has used it in film production.
He could use it.
Your contract doesn't prevent him from using it, sir.
The final-- I'm sorry, but the first one I gave you is the final.
That was what led up to the...
No, this is, a clarification because you asked. Right?
And this is your final payment, $300 and camera equipment
because that's what you both agree that you got.
- On the top line... - There is no modification.
- There is, though. - Well, then show me.
On the top line of the final,
it says it'll be used exclusively in The Ding Dong Show
and nowhere else without permission, and that is what is writ...
Just a second. It says, "This agreement gives Luther Fortinberry
the right to perform named music in The Ding Dong Show
- and the promotional video. - Correct.
- And? - That's it.
So?
So that is what he's limited to as far as performance.
So? Okay. And?
And he went and used my music in other productions without telling me.
Well, show me.
Okay.
- I also have lyric sheets showing that... - Just a second! Listen to me, sir.
Yes.
I've already explained to you what this case is about.
- It's a contract case. - Yes, okay.
I'm not going to go through contracts one and contracts two.
It was painful enough when I went through it the first time
- a half a century ago. - Yeah.
What I'm telling you is you have no modification of a contract
unless there's an offer and acceptance.
The only two contracts you have are here.
I absolutely read this and it says, "This agreement gives Luther Fortinberry
the right to perform music named in The Ding Dong Show and promotional video.
- Correct. - That's what it says.
- You say he used it in other places. - That is correct.
There's no remedy if he uses it in other places.
You only have a remedy, sir, if he sells it or rents it.
And you're not asking for injunctive relief.
- There's no action. - I don't know what he did with it.
- What? - I don't know what he's done.
I've asked him for a complete statement of where he's used it,
- and what payment. - Just a second.
- Mr. Kerper. - Yes.
- You're the plaintiff. - Yes.
It's not his burden. It's your burden.
What you're saying is he was limited to using it
on one particular program,
- according to this, and promotional... - Mm-hmm.
...and he's used it in other places. And I said--
Shh! Put your hand down!
When it doesn't appear that you're losing, you're supposed to keep your mouth closed.
It's your burden to show me that he used it in other places. That's first.
- Okay. - Show me.
I can do that. Just, I have the papers.
I had it quite orderly before I came into court,
and... I guess nerves happen.
You can look for it, sir. I'm just advising you...
Yes.
...that your action is for breach of contract.
That's what you filed. Right now I have two contracts.
One contract was fulfilled with the payment of $300 and camera equipment.
There is an agreement here, however,
that says he can use that music on certain things.
It doesn't say exclusively on certain things.
It says he can use it on The Ding Dong Show and promotional video.
I assume promotional video, if you're inferring what that means,
is for The Ding Dong Show.
Now, it doesn't say if he uses the music someplace
other than The Ding Dong Show and promotional video
and he gets paid for it, I get a certain amount of money.
Your original contract provides for a 75/25 split
if the music is rented or sold.
- Right. - That's what it provides for.
So when I accepted the payment on the contract,
that was with the notion that he was going to give me credit
in the future, which he has not done.
Okay, we're done here. Mr. Kerper, it's unfortunate,
but you are bound by the terms of this contract.
The terms of the contract are absolutely clear.
You have one in 2018 and you have one in 2016.
The one in 2016 is crystal clear.
You're a transcriber, and as a transcriber,
you will get 25% if the music is either rented or sold.
Subsequently, there was a writing that says,
you don't want to be known as the transcriber.
You want to be known as the Music Man.
Your Honor, I did not transcribe anything.
I wrote the music, and that's why there's subsequent paper.
Mr. Kerper, we're done. You got paid $300
for writing the music and camera equipment.
We're done. Your case is dismissed.
This court is adjourned.
Mr. Fortinberry approached me to transcribe a piece of music he...
Well, I'm sorry she had to listen to so many lies.
...presented me as completed, which it was not.
And I'm glad she had something in print, like contracts.
I helped develop the lyrics further and also write the music.
I hope that he would see the truth...
Well, there's always more songs, isn't there?
...and correct his lies.
While I really appreciate that these two, plaintiff and defendant,
had a written contract,
it's always a risk as a layperson to write a contract yourself.
It has to be fully integrated. All the points have to be hit.
And one major part that was lacking here was a remedy section.
So if the plaintiff is claiming
that he deserves some sort of credit
or some sort of payment for a show or an exploitation...
Going forward.
...of the song going forward,
there needs to be a sentence,
at least, that's a meeting of the minds
as to what's going to happen if that condition is not met.
- In-in the future. - In the future.
Because the contract, the second contract in 2018,
- clearly said he was paid. - Mm-hmm.
- And he was paid. - And he signed it.
He was paid $300 and some camera equipment.
Yeah.
The defendant said it was worth $1,500.
I don't know whether it was or it wasn't.
Anyway, it was inartfully done.
You have to give them credit for trying.
- Yes. - For trying.
They're music people. They're artists.
Yeah.
Language and specifics and details is more our forte as lawyers.
More important. It's so frightening that I think I have
a memory somewhere back here of The Ding Dong Show.
So I'm going in the back now and look up The Ding Dong Show.
Well, I'd like to hear that origin story!
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