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He created a song.
You transcribed it to guitar.
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00:00:03,133 --> 00:00:04,300
That is correct.
3
00:00:04,367 --> 00:00:07,567
Your contract doesn't
prevent him from using it, sir.
4
00:00:07,633 --> 00:00:10,667
It should say it in the-- not that one.
5
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Not that one either. The other one.
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You got five more minutes of my time.
7
00:00:16,433 --> 00:00:18,734
This is Judy Justice.
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00:00:34,667 --> 00:00:39,033
{\an8}Charles Kerper
is suing musician Luther Fortinberry
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00:00:39,100 --> 00:00:42,100
for breach of contract
and copyright infringement.
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Court come to order.
All rise.
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00:00:45,500 --> 00:00:47,033
Have a seat, please.
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00:00:48,367 --> 00:00:49,367
- Hello, Judge.
- Hi.
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00:00:49,433 --> 00:00:52,100
Case 2081,
Kerper versus Fortinberry.
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00:00:52,166 --> 00:00:53,567
- Thank you.
- You're welcome.
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Mr. Kerper, it is your claim that the
defendant breached a contract with you.
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00:00:59,200 --> 00:01:01,633
The contract was a verbal contract.
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00:01:01,700 --> 00:01:06,166
And the nature of that breach
was the defendant envisioned
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00:01:06,233 --> 00:01:09,433
in his mind the lyrics to a song.
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That was his business.
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{\an8}And he asked, according to you,
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{\an8}he asked you to put music to the lyrics.
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- Am I understanding that correctly?
- The latter part is true.
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However, it was more than just
a verbal contract. It's also in writing.
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Okay. I'm going to take
a look at it. That's important.
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And according to your complaint,
you did in fact write the music.
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00:01:29,767 --> 00:01:30,834
Correct.
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00:01:30,900 --> 00:01:32,700
- To his lyrics?
- That is correct.
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And you had an agreement
in writing
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00:01:35,300 --> 00:01:42,166
that you would share the profits
of any exploitation of that song.
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00:01:42,233 --> 00:01:43,333
- That is correct.
- With him?
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00:01:43,400 --> 00:01:45,633
- Yes.
- And that he breached that agreement.
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{\an8}Yes. There was also an agreement
that he would give me proper credit
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00:01:48,900 --> 00:01:51,333
{\an8}whenever he was using that.
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00:01:51,400 --> 00:01:54,600
So, now I would like to see
if you say there was a written contract
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that's signed by both parties.
That's what I want to see.
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00:01:57,934 --> 00:01:59,333
Okay. So...
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00:01:59,767 --> 00:02:03,867
this was the original version,
which he offered me 25%.
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00:02:03,934 --> 00:02:05,667
Just a second, just a second,
just a second.
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00:02:05,734 --> 00:02:07,100
Sorry.
40
00:02:07,166 --> 00:02:11,433
Okay. This contract
is pretty straightforward,
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00:02:11,500 --> 00:02:13,166
and it's signed by both parties.
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00:02:13,233 --> 00:02:16,967
And it says Luther Winston
Fortinberry created a song,
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00:02:17,033 --> 00:02:18,300
"Baby, I Got a Gun."
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00:02:18,367 --> 00:02:22,800
And Charles Kerper,
that's you, transcribed it to guitar.
45
00:02:22,867 --> 00:02:25,500
- Correct.
- So what this contract says,
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00:02:25,567 --> 00:02:28,266
I just want you to understand, Mr. Kerper,
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00:02:28,333 --> 00:02:34,633
is that the defendant created the song
and you transcribed it to guitar.
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00:02:34,700 --> 00:02:35,867
That's what it says.
49
00:02:35,934 --> 00:02:39,867
And that was written in January of 2016.
50
00:02:39,934 --> 00:02:42,133
- Correct.
- It's signed by both people.
51
00:02:42,200 --> 00:02:43,667
- That is correct. Yeah.
- Okay.
52
00:02:43,967 --> 00:02:47,166
Now, what you're showing me
is something else.
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00:02:47,233 --> 00:02:49,266
How it started to change over time.
54
00:02:49,333 --> 00:02:51,166
Listen to me.
This was your written contract.
55
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Right.
56
00:02:52,300 --> 00:02:54,467
Any change in that contract,
57
00:02:54,533 --> 00:02:57,767
unless I can really find
that there was a meeting of the minds
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00:02:57,834 --> 00:03:01,767
with regard to it, has to be in the same
formality of this contract.
59
00:03:01,834 --> 00:03:03,834
This initial contract is very clear.
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00:03:03,900 --> 00:03:06,500
It does not say
that you created this music.
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00:03:06,567 --> 00:03:09,400
I'm telling you
what this initial contract says.
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00:03:09,467 --> 00:03:11,400
By the way, Mr. Fortinberry,
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00:03:11,467 --> 00:03:15,433
this contract was written
January 30th, 2016.
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00:03:15,500 --> 00:03:17,367
- Yes. I'm looking at it.
- Yes.
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00:03:17,433 --> 00:03:21,567
When did you create this song?
In what month and year?
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00:03:21,633 --> 00:03:24,200
About a year.
I don't know exactly,
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00:03:24,266 --> 00:03:27,600
but I was at a popular comedy store,
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and the manager of our show.
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00:03:31,367 --> 00:03:33,533
- What show?
- The Ding Dong Show.
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00:03:33,600 --> 00:03:35,467
What's The Ding Dong Show?
When you said "our show,"
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00:03:35,533 --> 00:03:37,200
was he involved in that?
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00:03:37,266 --> 00:03:39,266
Just with this transcription.
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00:03:39,333 --> 00:03:41,467
I was involved with other
elements of the music
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00:03:41,533 --> 00:03:43,166
as well with Mr. Fortinberry.
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00:03:43,233 --> 00:03:45,000
Well, right now, this says transcribe.
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00:03:45,066 --> 00:03:49,934
What I asked you, a simple question.
When did you write this song?
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00:03:50,000 --> 00:03:52,533
{\an8}At least a year before this contract.
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00:03:52,600 --> 00:03:55,767
{\an8}At least a year before
January 30th, 2016.
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00:03:55,834 --> 00:04:01,233
Yes. And I was singing it regularly,
acapella, at the club.
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00:04:01,300 --> 00:04:05,200
Okay, but you asked him to transcribe it.
That's what it says.
81
00:04:05,266 --> 00:04:09,367
Now, this was done at the time
that you transcribed it to guitar.
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00:04:09,433 --> 00:04:11,667
I would argue I'd never
transcribed it because...
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00:04:11,734 --> 00:04:14,133
Just a second. That's what this says.
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00:04:14,200 --> 00:04:16,467
It doesn't say "will transcribe it."
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00:04:16,533 --> 00:04:19,233
- It said "transcribed it."
- Correct.
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00:04:19,300 --> 00:04:21,967
To a guitar... that they both
agreed to submit for sale.
87
00:04:22,033 --> 00:04:23,033
Correct.
88
00:04:23,100 --> 00:04:26,467
Asking price will be
$10,000 to rent...
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00:04:26,533 --> 00:04:29,734
- Mm-hmm.
- ...and 10 million to sell it outright.
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00:04:29,800 --> 00:04:33,633
And you will split it 75/25.
That's what this says.
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00:04:33,700 --> 00:04:34,934
That is correct. Yeah.
92
00:04:35,000 --> 00:04:38,533
- Now, did you ever rent it?
- I never rented it or sold it.
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00:04:38,600 --> 00:04:40,066
Just a second.
Well, I'm asking you this question.
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00:04:40,133 --> 00:04:41,133
- You never rented it?
- No.
95
00:04:41,200 --> 00:04:44,633
{\an8}And $10 million to sell it outright,
and you never sold it?
96
00:04:44,700 --> 00:04:45,700
{\an8}No, ma'am.
97
00:04:45,767 --> 00:04:49,033
Okay, so it was neither rented nor sold,
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00:04:49,100 --> 00:04:50,633
which was your original contract,
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00:04:50,700 --> 00:04:52,600
and you have no proof to the contrary
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00:04:52,667 --> 00:04:54,600
that he neither rented it nor sold it?
101
00:04:54,667 --> 00:04:56,600
I have evidence that he did
use it in other productions.
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00:04:56,667 --> 00:04:59,767
- It doesn't say that you can't use it.
- Right. That is correct.
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00:04:59,834 --> 00:05:01,433
Okay.
Now you want to show me,
104
00:05:01,500 --> 00:05:03,600
sir, 'cause this is what your action is--
you want to show me
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00:05:03,667 --> 00:05:05,633
that this original agreement...
106
00:05:05,700 --> 00:05:08,133
- Yes.
- ...was somehow modified...
107
00:05:08,200 --> 00:05:10,633
- Correct.
- To give you a wider berth?
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00:05:10,700 --> 00:05:11,767
This is correct.
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00:05:11,834 --> 00:05:13,734
Okay. So I'd like to see
what you have in writing.
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00:05:13,800 --> 00:05:16,633
Okay. So, immediately
after that was signed,
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00:05:16,700 --> 00:05:18,834
about four or five days later--
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00:05:18,900 --> 00:05:21,200
you have the paper,
it's stapled behind--
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00:05:21,266 --> 00:05:23,667
I confronted Mr. Fortinberry and I said,
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00:05:23,734 --> 00:05:27,500
"This is not a transcribing project.
This is a rewriting project."
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00:05:27,567 --> 00:05:30,700
What he provided to me
was not usable for transcription.
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00:05:30,767 --> 00:05:33,900
And on the next page,
we have a text message exchange
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00:05:33,967 --> 00:05:35,734
- that I highlighted where he...
- Well, just a second.
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00:05:35,800 --> 00:05:37,133
- Shh!
- Sorry.
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00:05:37,200 --> 00:05:40,967
Well, this is a text message
from him to you.
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00:05:41,033 --> 00:05:42,600
Correct. And he acknowledged...
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00:05:42,667 --> 00:05:44,600
Just a second.
That's not acknowledging.
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00:05:44,667 --> 00:05:46,600
That's a text message
from him to you.
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00:05:46,667 --> 00:05:48,767
Do you have your response to this?
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00:05:48,834 --> 00:05:51,967
You can't unilaterally
change a contract that's in writing.
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00:05:52,033 --> 00:05:54,600
I mean, if you have an offer
and an acceptance.
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00:05:54,667 --> 00:05:57,200
- Right.
- So where is your response to this?
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00:05:57,266 --> 00:06:00,333
I don't believe I had a response
in the history of messages
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00:06:00,400 --> 00:06:01,900
I was able to retrieve, so...
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00:06:01,967 --> 00:06:03,767
Then this is irrelevant.
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00:06:03,834 --> 00:06:05,667
- Okay.
- So far we have this.
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00:06:05,734 --> 00:06:09,467
We have a writing signed by
both parties, which is complete.
132
00:06:09,533 --> 00:06:12,900
It says what you did,
what will you will be paid in the event
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00:06:12,967 --> 00:06:14,767
of a rental or a sale.
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00:06:14,834 --> 00:06:16,567
Now you want to show me...
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00:06:16,633 --> 00:06:18,200
- Yes.
- ...something else?
136
00:06:18,266 --> 00:06:22,400
So going forward, what he did
was he registered the song
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00:06:22,467 --> 00:06:24,967
with a registration company
in San Diego.
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00:06:25,033 --> 00:06:26,300
He did that without my knowledge.
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00:06:26,367 --> 00:06:29,600
Just a second! That's irrelevant.
This is your contract.
140
00:06:29,667 --> 00:06:31,767
Show me where
it's a violation of this contract.
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00:06:31,834 --> 00:06:34,800
This contract says you
transcribed it to guitar.
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00:06:34,867 --> 00:06:38,867
If the version that you transcribed
for the guitar
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00:06:38,934 --> 00:06:43,533
is either rented or sold,
you will get 25% of the revenue.
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00:06:43,600 --> 00:06:45,333
So, we already went through that.
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00:06:45,400 --> 00:06:49,166
You do not have any proof
that he either rented it or sold it.
146
00:06:49,233 --> 00:06:51,166
It doesn't say that you
will be given credit.
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00:06:51,233 --> 00:06:53,367
It doesn't say what your credit will be.
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00:06:53,433 --> 00:06:57,367
If you have a modification
where he agreed that you will get
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00:06:57,433 --> 00:07:01,400
- certain credit and you accepted that...
- Okay.
150
00:07:01,467 --> 00:07:02,700
I will see that.
151
00:07:04,033 --> 00:07:05,200
Okay.
152
00:07:05,867 --> 00:07:11,533
This is the most recent agreement signed
in August 21, 2018.
153
00:07:11,600 --> 00:07:13,967
- It's dated August 8th, but...
- Shh!
154
00:07:16,767 --> 00:07:17,867
I don't know what this means.
155
00:07:17,934 --> 00:07:19,600
- "Mr. Kerper..."
- Yes.
156
00:07:19,667 --> 00:07:21,967
"...agrees to release Mr. Fortinberry..."
157
00:07:22,033 --> 00:07:23,033
Mm-hmm.
158
00:07:23,100 --> 00:07:26,066
"...from any financial liability
for work performed
159
00:07:26,133 --> 00:07:29,400
prior to the date of this document,"
that is, prior to 2018.
160
00:07:29,467 --> 00:07:30,467
Correct.
161
00:07:30,533 --> 00:07:33,667
"Payment by Mr. Fortinberry
to Mr. Kerper
162
00:07:33,734 --> 00:07:38,200
will be considered compensation
for his time costs, etcetera,
163
00:07:38,266 --> 00:07:42,500
Mr. Kerper has invested
in this ongoing project to date."
164
00:07:42,567 --> 00:07:44,066
- What did he pay you?
- He...
165
00:07:44,467 --> 00:07:47,567
{\an8}- Because it doesn't say here.
- He didn't pay me anything.
166
00:07:47,633 --> 00:07:49,433
What he did was he gave me some
camera equipment,
167
00:07:49,500 --> 00:07:52,600
{\an8}which he promised me,
which was outside of this project,
168
00:07:52,667 --> 00:07:56,033
and he gave me $300
as what was deemed
169
00:07:56,100 --> 00:07:57,934
a celebratory gift because we were
wrapping this up.
170
00:07:58,000 --> 00:08:00,400
No, no, no, no,
that's not what this says, Mr. Kerper.
171
00:08:00,467 --> 00:08:02,767
Mr. Kerber, we read a contract literally.
172
00:08:02,834 --> 00:08:03,867
Right.
173
00:08:03,934 --> 00:08:07,100
This is a poorly crafted document,
174
00:08:07,166 --> 00:08:11,133
but it's clear in regards to
"Baby, I Got a Gun."
175
00:08:11,200 --> 00:08:13,166
- Right.
- "Mr. Kerper"-- that's you--
176
00:08:13,233 --> 00:08:17,700
"agrees to release Mr. Fortinberry
of any financial liability
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00:08:17,767 --> 00:08:20,300
for work performed
prior to the date of this document."
178
00:08:20,367 --> 00:08:21,367
Correct.
179
00:08:21,433 --> 00:08:24,433
"Payment by Mr. Fortinberry
to Mr. Kerper
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00:08:24,500 --> 00:08:27,233
will be considered compensation
for time,
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00:08:27,300 --> 00:08:31,333
costs Mr. Kerper has invested
in this ongoing project."
182
00:08:31,400 --> 00:08:33,333
And what you're telling me is
183
00:08:33,400 --> 00:08:37,400
the payment was some
camera equipment and $300.
184
00:08:37,467 --> 00:08:41,333
I would say it was not
camera equipment, it was the-the $300.
185
00:08:41,400 --> 00:08:44,533
- What's the camera equipment?
- This is some camera equipment I had had.
186
00:08:44,600 --> 00:08:46,667
I had sold him some of it prior,
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00:08:46,734 --> 00:08:49,166
and he had offered it back to me as a gift
188
00:08:49,233 --> 00:08:51,967
because I had invested
so much work into this project.
189
00:08:55,000 --> 00:08:56,934
You got five more minutes of my time.
190
00:08:57,000 --> 00:08:58,333
- Okay.
- You have no case.
191
00:08:58,400 --> 00:08:59,567
- I believe I do, ma'am.
- No.
192
00:08:59,633 --> 00:09:02,033
- I'm sorry, Your Honor.
- Sorry. You don't.
193
00:09:05,033 --> 00:09:08,100
You want him to say
whenever he performs the song,
194
00:09:08,166 --> 00:09:11,467
"I wrote this song together
with Mr. Kerper,
195
00:09:11,533 --> 00:09:14,533
and I want you to
understand that he's the Music Man."
196
00:09:14,600 --> 00:09:16,367
I don't know what a Music Man is.
197
00:09:16,433 --> 00:09:18,100
It's interesting when people
sign contracts
198
00:09:18,166 --> 00:09:20,200
and they have no idea
what they're doing.
199
00:09:30,633 --> 00:09:34,734
{\an8}Charles Kerper
claims musician Luther Fortinberry
200
00:09:34,800 --> 00:09:38,467
{\an8}owes for a breach of contract
and copyright infringement.
201
00:09:38,533 --> 00:09:40,400
Now, those are the two written contracts.
202
00:09:40,467 --> 00:09:43,066
Do you have any further modification
of those contracts in writing?
203
00:09:43,133 --> 00:09:44,734
Yes, I...
204
00:09:44,800 --> 00:09:45,800
- I'll see them.
- Okay.
205
00:09:45,867 --> 00:09:50,433
This is a contract in writing, 2018.
This is 2016.
206
00:09:50,500 --> 00:09:52,367
And this was agreed by both parties.
207
00:09:52,433 --> 00:09:55,467
So the last agreement was you got $300.
208
00:09:55,533 --> 00:09:57,266
{\an8}Did you pay him $300?
209
00:09:57,333 --> 00:10:01,600
{\an8}Three hundred dollars and camera
equipment, about $1,500 worth.
210
00:10:01,734 --> 00:10:04,500
Okay. He started to mention that,
and then he backtracked.
211
00:10:04,567 --> 00:10:08,700
- Okay, next written contract after 2018.
- Yes.
212
00:10:08,767 --> 00:10:11,000
In that contract,
which you have right now,
213
00:10:11,066 --> 00:10:14,233
it also says it serves to clarify
previous misunderstandings
214
00:10:14,300 --> 00:10:17,000
that I wrote the music
and I was not a transcriptionist.
215
00:10:17,066 --> 00:10:21,367
"Mr. Kerper is to be understood
as the Music Man behind the music
216
00:10:21,433 --> 00:10:23,667
and not a transcriptionist."
217
00:10:23,734 --> 00:10:25,934
But who do you want that to be noted by?
218
00:10:26,000 --> 00:10:29,233
"Mr. Kerper is to be understood
as the Music Man,"
219
00:10:29,300 --> 00:10:31,066
- with capital letters...
- Right.
220
00:10:31,133 --> 00:10:33,900
- And I don't know what that means.
- This was his wording.
221
00:10:33,967 --> 00:10:35,734
Well, then you
should have fixed the wording.
222
00:10:35,800 --> 00:10:38,467
- I should have, you're correct.
- I don't know what a Music Man is.
223
00:10:38,533 --> 00:10:41,467
It's not a trademark.
It's not a copyright. It's a nothing.
224
00:10:41,533 --> 00:10:42,667
I don't know what it means.
225
00:10:42,734 --> 00:10:46,300
So I wrote the music, which is
in the version which he's using currently.
226
00:10:46,367 --> 00:10:48,700
I wrote that from scratch.
There was no transcribing.
227
00:10:48,767 --> 00:10:50,734
That doesn't say it.
That doesn't say it.
228
00:10:50,800 --> 00:10:51,967
Nothing here says that.
229
00:10:52,033 --> 00:10:56,100
The only thing this says is,
Luther Winston created this song,
230
00:10:56,166 --> 00:10:59,667
"Baby, I Got a Gun,"
that says he created it.
231
00:10:59,734 --> 00:11:02,133
You signed it.
You wanted to clarify it.
232
00:11:02,200 --> 00:11:06,033
You wanted to be known as the Music Man,
not just the transcriber.
233
00:11:06,100 --> 00:11:07,967
I don't know what Music Man means.
234
00:11:08,033 --> 00:11:11,333
And you got paid pursuant to this,
although it doesn't say this,
235
00:11:11,400 --> 00:11:14,000
but you acknowledge it,
and you got paid $300.
236
00:11:14,066 --> 00:11:15,900
Okay. Also in that agreement,
237
00:11:15,967 --> 00:11:19,767
it also says that I'll be given credit
in future uses.
238
00:11:19,834 --> 00:11:21,333
- It says that...
- As the Music Man.
239
00:11:21,400 --> 00:11:22,400
You want him to say you're the Music Man.
240
00:11:22,467 --> 00:11:24,734
I will be given credit,
which he did not give me credit.
241
00:11:24,800 --> 00:11:28,133
You want him to say whenever
he performs the song,
242
00:11:28,200 --> 00:11:31,400
"Baby, You Got Gun,"
he gets up to perform that,
243
00:11:31,467 --> 00:11:34,800
"I wrote this song together
with Mr. Kerper,
244
00:11:34,867 --> 00:11:38,467
and I want you to understand
that he's the Music Man.
245
00:11:38,600 --> 00:11:40,567
It's interesting when people
sign contracts
246
00:11:40,633 --> 00:11:41,867
and they have no idea what they're doing.
247
00:11:41,934 --> 00:11:44,100
Okay, let me see the next contract
that you have.
248
00:11:44,166 --> 00:11:46,100
So, this is an agreement which
is supposed to be
249
00:11:46,166 --> 00:11:49,400
a performance agreement with
his producer from the comedy club.
250
00:11:49,467 --> 00:11:52,533
Just a second.
Let me take a look at it.
251
00:11:52,600 --> 00:11:54,934
- He's...
- Shh!
252
00:11:56,567 --> 00:11:58,367
This is exactly what this says.
253
00:11:58,433 --> 00:12:02,400
This says, "This agreement"--
and this is August of 2018.
254
00:12:02,467 --> 00:12:04,400
And who sent this, by the way?
255
00:12:04,467 --> 00:12:06,133
Mr. Fortinberry sent that to me.
256
00:12:06,200 --> 00:12:09,734
Okay, it says, "This agreement gives
Luther the right to perform music
257
00:12:09,800 --> 00:12:11,734
as the opportunity arises.
258
00:12:11,800 --> 00:12:16,533
Luther is further released of any
further financial responsibility
259
00:12:16,600 --> 00:12:19,266
or debt owed making music.
260
00:12:19,333 --> 00:12:23,433
Charlie Kerper will be referred
to in the future as the Music Man.
261
00:12:23,500 --> 00:12:27,367
This payment will be for goods
and costs making music...
262
00:12:27,433 --> 00:12:30,066
for $300 and camera equipment.
263
00:12:30,133 --> 00:12:33,300
If any referral is made in the future
as to who wrote
264
00:12:33,367 --> 00:12:37,300
{\an8}and performed
parts of said music above,
265
00:12:37,367 --> 00:12:39,900
Charlie Kerper
will be given those credits.
266
00:12:39,967 --> 00:12:40,967
Correct.
267
00:12:41,033 --> 00:12:44,533
Okay, he sent that to you.
Where is your response?
268
00:12:44,600 --> 00:12:47,333
So, he sent that back to me
on August 8th.
269
00:12:47,400 --> 00:12:49,066
- Just a second.
- I... okay.
270
00:12:49,133 --> 00:12:53,266
He sent this to you, so I would like
to see your response to this.
271
00:12:53,333 --> 00:12:55,934
"I agree to your terms.
I disagree with your terms."
272
00:12:56,000 --> 00:12:57,500
If you agree with the terms,
273
00:12:57,567 --> 00:13:00,667
then I might accept that as
a modification of a contract.
274
00:13:00,734 --> 00:13:04,433
If you say, "I disagree with the terms,"
then there is no modification.
275
00:13:04,500 --> 00:13:06,934
We go back to these
two signed agreements.
276
00:13:07,000 --> 00:13:09,667
- Correct.
- Where is your response to that?
277
00:13:09,734 --> 00:13:12,033
Can I explain what happened after that?
278
00:13:12,100 --> 00:13:15,900
He's emailed that to me.
I was here in L.A.
279
00:13:15,967 --> 00:13:19,266
And I didn't have
an opportunity to entirely go over it,
280
00:13:19,333 --> 00:13:21,166
but we were trying to
meet with him at a restaurant
281
00:13:21,233 --> 00:13:24,934
and also at the museum
to have this resolved.
282
00:13:25,000 --> 00:13:27,266
So I had my phone only to look at it,
283
00:13:27,333 --> 00:13:30,700
and he was playing hardball
with me that day.
284
00:13:30,767 --> 00:13:33,700
So he sent me these emails
285
00:13:33,767 --> 00:13:35,600
saying he had signed these agreements,
286
00:13:35,667 --> 00:13:39,300
which included making referral
to me and clarifying that I did in fact
287
00:13:39,367 --> 00:13:42,066
write the music
which he claims I transcribed.
288
00:13:42,467 --> 00:13:44,266
- I need your response to him.
- Okay.
289
00:13:44,333 --> 00:13:46,600
If there is no response,
we have these two agreements.
290
00:13:46,667 --> 00:13:50,367
So the response was this:
That night, we finally agreed to meet.
291
00:13:50,433 --> 00:13:52,900
- I need that in writing.
- Yes.
292
00:13:52,967 --> 00:13:56,600
I want what you sent to him
in response to this email.
293
00:13:56,667 --> 00:13:59,000
Well, I called him on the phone,
and I said,
294
00:13:59,066 --> 00:14:02,934
"Can we meet so we can sign this?
And put this past
295
00:14:03,000 --> 00:14:05,533
so the music video could
be moved forward."
296
00:14:05,600 --> 00:14:08,533
And he wanted a performance agreement,
so there wasn't any question
297
00:14:08,600 --> 00:14:10,800
as to whether or not they
could use the music in the video.
298
00:14:10,867 --> 00:14:13,233
So I arrived at his apartment.
299
00:14:13,300 --> 00:14:15,667
He made us wait outside for half an hour.
300
00:14:15,734 --> 00:14:19,266
Okay, you know, Mr. Kerper,
I really don't care.
301
00:14:19,333 --> 00:14:21,166
- Okay.
- It's not relevant.
302
00:14:21,533 --> 00:14:25,100
What's relevant is if you had
a subsequent offer
303
00:14:25,166 --> 00:14:28,500
and acceptance to a new contract,
a modified contract
304
00:14:28,567 --> 00:14:31,667
- that he made via email...
- Mm-hmm.
305
00:14:31,734 --> 00:14:35,700
...and you responded to him via email,
that "I accept those terms,"
306
00:14:35,767 --> 00:14:38,734
or if you sent it to him and said,
"These are the terms I want,"
307
00:14:38,800 --> 00:14:40,800
and he wrote back,
and "I accept your terms."
308
00:14:40,867 --> 00:14:43,567
Unless you have that, you are bound
by these two written contracts,
309
00:14:43,633 --> 00:14:45,367
which means you got paid.
310
00:14:45,433 --> 00:14:48,333
You got paid $300 and some equipment.
311
00:14:48,400 --> 00:14:49,867
You got paid.
312
00:14:49,934 --> 00:14:51,767
And according to this contract,
313
00:14:51,834 --> 00:14:55,166
when referring to this music
and referring to you,
314
00:14:55,233 --> 00:14:59,266
he has to refer to you as,
in capital letters, "the Music Man."
315
00:14:59,333 --> 00:15:01,100
Correct. Giving me credit, credit.
316
00:15:01,166 --> 00:15:04,567
He has to refer to you as the Music Man.
317
00:15:04,633 --> 00:15:06,967
It says here in this contract, I'm sorry,
318
00:15:07,033 --> 00:15:08,633
"If any referral is made in the future
319
00:15:08,700 --> 00:15:11,633
as to who wrote and performed
parts of said music above,
320
00:15:11,700 --> 00:15:13,934
Charlie Kerper
will be given those credits."
321
00:15:14,000 --> 00:15:16,600
- Yeah, as "the Music Man."
- No, it does not say Music Man here.
322
00:15:16,667 --> 00:15:19,000
- Where?
- It should say it in the...
323
00:15:19,066 --> 00:15:20,633
Not that one.
324
00:15:20,700 --> 00:15:22,367
Not that one either.
The other one.
325
00:15:22,433 --> 00:15:25,100
There's no other.
I only have two written contracts.
326
00:15:25,166 --> 00:15:28,700
This is his original email to me
that he sent me before the contract.
327
00:15:28,767 --> 00:15:31,433
- I don't want...
- It has my response.
328
00:15:31,500 --> 00:15:34,467
I have my response
attached to it here.
329
00:15:34,533 --> 00:15:35,867
I'm sorry, Your Honor.
330
00:15:37,400 --> 00:15:38,400
Okay.
331
00:15:42,400 --> 00:15:46,133
Who wrote, "Your offer is hostile
and very lowball for what you're asking"?
332
00:15:46,200 --> 00:15:47,367
I wrote that.
333
00:15:47,433 --> 00:15:49,000
- " I reject it."
- Absolutely.
334
00:15:49,066 --> 00:15:50,667
"I'm not interested in selling."
335
00:15:50,734 --> 00:15:52,667
- That is correct.
- Well, that doesn't modify.
336
00:15:52,734 --> 00:15:56,767
That means he made you a subsequent
offer after these two agreements.
337
00:15:56,834 --> 00:15:58,734
- You said, "I don't like that offer."
- That is correct.
338
00:15:58,800 --> 00:16:02,033
So there was no change
in these two written contracts,
339
00:16:02,100 --> 00:16:03,734
one of which called for payment
340
00:16:03,800 --> 00:16:05,600
which you acknowledge you received
341
00:16:05,667 --> 00:16:09,133
in the form of $300 and camera equipment.
342
00:16:11,834 --> 00:16:15,066
He was limited to using it
on one particular program,
343
00:16:15,133 --> 00:16:17,266
and he's used it in other places.
344
00:16:17,333 --> 00:16:19,700
And I said... Shh!
Put your hand down.
345
00:16:19,767 --> 00:16:21,433
When it doesn't appear
that you're losing,
346
00:16:21,500 --> 00:16:23,300
you're supposed
to keep your mouth closed.
347
00:16:34,400 --> 00:16:37,400
Charles Kerper is accusing musician
348
00:16:37,467 --> 00:16:40,700
{\an8}Luther Fortinberry
of breaking their contract.
349
00:16:40,767 --> 00:16:44,233
Luther claims he already
paid Charles for his services.
350
00:16:44,500 --> 00:16:48,633
Mr. Kerper, I want you to understand--
you're looking at papers.
351
00:16:48,767 --> 00:16:50,867
What you're not understanding is
352
00:16:50,934 --> 00:16:54,100
if you are going to modify
a written contract,
353
00:16:54,166 --> 00:16:58,100
you have to do it with another contract
in which there is an offer...
354
00:16:58,166 --> 00:16:59,633
- Mm-hmm.
- ...and an acceptance.
355
00:16:59,700 --> 00:17:02,834
- He made an offer to you...
- Yes.
356
00:17:02,900 --> 00:17:08,033
{\an8}...in this. You rejected
the offer in your response.
357
00:17:08,100 --> 00:17:11,333
{\an8}Actually, that email he sent first,
he worded it differently.
358
00:17:11,400 --> 00:17:13,467
It doesn't matter.
You rejected it.
359
00:17:13,533 --> 00:17:15,633
I rejected the part
that included the sale.
360
00:17:15,700 --> 00:17:19,000
Just a second.
You can't take pieces of what he says.
361
00:17:19,500 --> 00:17:23,000
If you're going to modify
a contract which is clear,
362
00:17:23,233 --> 00:17:26,100
or as clear as it can be
when two laypeople write it,
363
00:17:26,166 --> 00:17:30,200
and which has been executed
and fulfilled by terms of payment
364
00:17:30,266 --> 00:17:33,233
because there was an exchange
of cash and goods,
365
00:17:33,300 --> 00:17:35,333
which is indicated in here,
366
00:17:35,400 --> 00:17:37,867
you have to have a modified contract.
367
00:17:37,934 --> 00:17:38,934
Correct.
368
00:17:39,000 --> 00:17:40,867
This is not a modified contract.
369
00:17:40,934 --> 00:17:42,633
He says to you,
"This is what I'm going to do."
370
00:17:42,700 --> 00:17:46,500
And you said to him, "I reject it.
It's a lowball offer."
371
00:17:46,567 --> 00:17:51,100
So we're going to get back to
is there a subsequent modification
372
00:17:51,300 --> 00:17:53,867
that says, in addition to the $300
373
00:17:53,934 --> 00:17:57,800
and the camera equipment
and the fact that "I will refer to you,
374
00:17:57,867 --> 00:18:00,900
if I refer to anyone,"
when he's singing the song,
375
00:18:00,967 --> 00:18:02,133
which I've never heard.
376
00:18:02,200 --> 00:18:05,767
I've heard of patter, you know,
where somebody talks about patter.
377
00:18:05,834 --> 00:18:08,500
So-and-so wrote the song
and he wrote it
378
00:18:08,567 --> 00:18:11,900
when he was mourning
the death of his dog
379
00:18:11,967 --> 00:18:13,900
and then sings the song.
380
00:18:13,967 --> 00:18:16,400
That's patter.
That's what I understand patter is,
381
00:18:16,467 --> 00:18:17,834
the chatter before.
382
00:18:17,900 --> 00:18:20,433
So, if he was going to chatter
about who wrote the song,
383
00:18:20,500 --> 00:18:24,834
he'd have to say, and the man
behind the music is Mr. Music Man.
384
00:18:24,900 --> 00:18:26,266
That's all this says.
385
00:18:26,333 --> 00:18:28,333
And he's never sold it
and he's never rented it,
386
00:18:28,400 --> 00:18:29,600
that you can establish.
387
00:18:29,667 --> 00:18:31,467
He has used it in film production.
388
00:18:31,533 --> 00:18:32,600
He could use it.
389
00:18:32,667 --> 00:18:35,667
Your contract doesn't prevent him
from using it, sir.
390
00:18:35,734 --> 00:18:39,166
{\an8}The final-- I'm sorry, but the first one
I gave you is the final.
391
00:18:39,233 --> 00:18:41,000
{\an8}That was what led up to the...
392
00:18:41,066 --> 00:18:46,233
{\an8}No, this is, a clarification
because you asked. Right?
393
00:18:46,300 --> 00:18:50,934
And this is your final payment,
$300 and camera equipment
394
00:18:51,000 --> 00:18:53,767
because that's what you
both agree that you got.
395
00:18:53,834 --> 00:18:56,500
- On the top line...
- There is no modification.
396
00:18:56,567 --> 00:18:58,233
- There is, though.
- Well, then show me.
397
00:18:58,300 --> 00:18:59,834
On the top line of the final,
398
00:18:59,900 --> 00:19:03,300
it says it'll be used exclusively
in The Ding Dong Show
399
00:19:03,367 --> 00:19:05,367
and nowhere else without permission,
and that is what is writ...
400
00:19:05,433 --> 00:19:09,600
Just a second. It says, "This agreement
gives Luther Fortinberry
401
00:19:09,667 --> 00:19:12,600
the right to perform named music
in The Ding Dong Show
402
00:19:12,667 --> 00:19:14,400
- and the promotional video.
- Correct.
403
00:19:14,467 --> 00:19:15,967
- And?
- That's it.
404
00:19:16,033 --> 00:19:17,166
So?
405
00:19:17,233 --> 00:19:19,266
So that is what he's limited to
as far as performance.
406
00:19:19,333 --> 00:19:21,200
So? Okay. And?
407
00:19:21,967 --> 00:19:25,266
And he went and used my music
in other productions without telling me.
408
00:19:25,333 --> 00:19:26,667
Well, show me.
409
00:19:26,734 --> 00:19:27,734
Okay.
410
00:19:30,066 --> 00:19:33,000
- I also have lyric sheets showing that...
- Just a second! Listen to me, sir.
411
00:19:33,066 --> 00:19:34,066
Yes.
412
00:19:34,133 --> 00:19:36,033
I've already explained to you
what this case is about.
413
00:19:36,100 --> 00:19:37,333
- It's a contract case.
- Yes, okay.
414
00:19:37,400 --> 00:19:40,567
I'm not going to go through
contracts one and contracts two.
415
00:19:40,633 --> 00:19:43,133
It was painful enough when I
went through it the first time
416
00:19:43,200 --> 00:19:44,867
- a half a century ago.
- Yeah.
417
00:19:44,967 --> 00:19:49,166
What I'm telling you is
you have no modification of a contract
418
00:19:49,233 --> 00:19:50,867
unless there's an offer and acceptance.
419
00:19:50,934 --> 00:19:53,300
The only two contracts you have are here.
420
00:19:53,367 --> 00:19:57,767
I absolutely read this and it says,
"This agreement gives Luther Fortinberry
421
00:19:57,834 --> 00:20:01,900
the right to perform music named in
The Ding Dong Show and promotional video.
422
00:20:01,967 --> 00:20:03,500
- Correct.
- That's what it says.
423
00:20:03,567 --> 00:20:06,000
- You say he used it in other places.
- That is correct.
424
00:20:06,066 --> 00:20:08,667
There's no remedy if
he uses it in other places.
425
00:20:08,734 --> 00:20:13,367
You only have a remedy, sir,
if he sells it or rents it.
426
00:20:13,433 --> 00:20:15,900
And you're not asking
for injunctive relief.
427
00:20:15,967 --> 00:20:17,233
- There's no action.
- I don't know what he did with it.
428
00:20:18,467 --> 00:20:20,033
- What?
- I don't know what he's done.
429
00:20:20,100 --> 00:20:23,500
I've asked him for a complete
statement of where he's used it,
430
00:20:23,567 --> 00:20:25,166
- and what payment.
- Just a second.
431
00:20:25,233 --> 00:20:26,667
- Mr. Kerper.
- Yes.
432
00:20:26,734 --> 00:20:28,166
- You're the plaintiff.
- Yes.
433
00:20:28,233 --> 00:20:31,266
It's not his burden.
It's your burden.
434
00:20:31,767 --> 00:20:34,433
What you're saying is he was
limited to using it
435
00:20:34,500 --> 00:20:36,367
on one particular program,
436
00:20:36,433 --> 00:20:38,567
- according to this, and promotional...
- Mm-hmm.
437
00:20:38,633 --> 00:20:41,533
...and he's used it in other places.
And I said--
438
00:20:41,600 --> 00:20:43,333
Shh! Put your hand down!
439
00:20:43,400 --> 00:20:47,000
When it doesn't appear that you're losing,
you're supposed to keep your mouth closed.
440
00:20:48,934 --> 00:20:53,834
It's your burden to show me that
he used it in other places. That's first.
441
00:20:53,934 --> 00:20:54,934
- Okay.
- Show me.
442
00:20:55,000 --> 00:20:56,767
I can do that. Just, I have the papers.
443
00:20:56,834 --> 00:21:00,100
I had it quite orderly
before I came into court,
444
00:21:00,166 --> 00:21:03,166
and... I guess nerves happen.
445
00:21:03,233 --> 00:21:05,734
You can look for it, sir.
I'm just advising you...
446
00:21:05,800 --> 00:21:06,800
Yes.
447
00:21:06,867 --> 00:21:08,834
...that your action
is for breach of contract.
448
00:21:08,900 --> 00:21:11,500
That's what you filed.
Right now I have two contracts.
449
00:21:11,567 --> 00:21:16,633
One contract was fulfilled with the
payment of $300 and camera equipment.
450
00:21:16,700 --> 00:21:18,767
There is an agreement here, however,
451
00:21:18,834 --> 00:21:21,900
that says he can use
that music on certain things.
452
00:21:21,967 --> 00:21:23,767
It doesn't say exclusively
on certain things.
453
00:21:23,834 --> 00:21:27,233
It says he can use it on
The Ding Dong Show and promotional video.
454
00:21:27,300 --> 00:21:31,233
I assume promotional video,
if you're inferring what that means,
455
00:21:31,300 --> 00:21:32,500
is for The Ding Dong Show.
456
00:21:32,567 --> 00:21:35,667
Now, it doesn't say if he uses
the music someplace
457
00:21:35,734 --> 00:21:38,133
other than The Ding Dong Show
and promotional video
458
00:21:38,200 --> 00:21:40,900
and he gets paid for it,
I get a certain amount of money.
459
00:21:40,967 --> 00:21:45,200
Your original contract
provides for a 75/25 split
460
00:21:45,266 --> 00:21:47,633
if the music is rented or sold.
461
00:21:47,700 --> 00:21:49,800
- Right.
- That's what it provides for.
462
00:21:49,867 --> 00:21:52,767
So when I accepted the payment
on the contract,
463
00:21:52,834 --> 00:21:55,934
that was with the notion
that he was going to give me credit
464
00:21:56,000 --> 00:21:58,066
in the future, which he has not done.
465
00:21:58,133 --> 00:22:01,233
Okay, we're done here.
Mr. Kerper, it's unfortunate,
466
00:22:01,300 --> 00:22:03,834
but you are bound by
the terms of this contract.
467
00:22:03,900 --> 00:22:06,166
The terms of the contract
are absolutely clear.
468
00:22:06,233 --> 00:22:10,533
You have one in 2018
and you have one in 2016.
469
00:22:10,600 --> 00:22:12,934
The one in 2016 is crystal clear.
470
00:22:13,000 --> 00:22:15,767
You're a transcriber,
and as a transcriber,
471
00:22:15,834 --> 00:22:20,066
you will get 25% if the music
is either rented or sold.
472
00:22:20,133 --> 00:22:23,600
Subsequently,
there was a writing that says,
473
00:22:23,667 --> 00:22:26,467
you don't want to be known
as the transcriber.
474
00:22:26,533 --> 00:22:28,367
You want to be known as the Music Man.
475
00:22:28,433 --> 00:22:30,734
Your Honor,
I did not transcribe anything.
476
00:22:30,800 --> 00:22:32,166
I wrote the music,
and that's why there's subsequent paper.
477
00:22:32,233 --> 00:22:34,500
Mr. Kerper, we're done.
You got paid $300
478
00:22:34,567 --> 00:22:36,467
for writing the music
and camera equipment.
479
00:22:36,533 --> 00:22:37,834
We're done. Your case is dismissed.
480
00:22:37,900 --> 00:22:39,467
This court is adjourned.
481
00:22:39,533 --> 00:22:43,867
{\an8}Mr. Fortinberry approached me
to transcribe a piece of music he...
482
00:22:43,934 --> 00:22:47,000
Well, I'm sorry she had to listen
to so many lies.
483
00:22:47,066 --> 00:22:49,200
{\an8}...presented me as completed,
which it was not.
484
00:22:49,266 --> 00:22:52,567
{\an8}And I'm glad she had something
in print, like contracts.
485
00:22:52,633 --> 00:22:56,567
{\an8}I helped develop the lyrics further
and also write the music.
486
00:22:56,633 --> 00:22:59,900
{\an8}I hope that he would see the truth...
487
00:22:59,967 --> 00:23:01,767
{\an8}Well, there's always more songs,
isn't there?
488
00:23:01,834 --> 00:23:04,467
{\an8}...and correct his lies.
489
00:23:05,500 --> 00:23:08,800
While I really appreciate that
these two, plaintiff and defendant,
490
00:23:08,867 --> 00:23:10,333
had a written contract,
491
00:23:10,400 --> 00:23:13,767
it's always a risk as a layperson
to write a contract yourself.
492
00:23:13,834 --> 00:23:16,967
It has to be fully integrated.
All the points have to be hit.
493
00:23:17,033 --> 00:23:20,233
And one major part that was
lacking here was a remedy section.
494
00:23:20,300 --> 00:23:22,200
So if the plaintiff is claiming
495
00:23:22,266 --> 00:23:24,400
that he deserves
some sort of credit
496
00:23:24,467 --> 00:23:27,133
or some sort of payment for a show
or an exploitation...
497
00:23:27,200 --> 00:23:28,200
Going forward.
498
00:23:28,266 --> 00:23:29,600
...of the song going forward,
499
00:23:29,667 --> 00:23:30,900
there needs to be a sentence,
500
00:23:30,967 --> 00:23:32,633
at least, that's a meeting of the minds
501
00:23:32,700 --> 00:23:34,667
as to what's going to happen
if that condition is not met.
502
00:23:34,734 --> 00:23:36,667
- In-in the future.
- In the future.
503
00:23:36,734 --> 00:23:40,500
Because the contract,
the second contract in 2018,
504
00:23:40,567 --> 00:23:42,333
- clearly said he was paid.
- Mm-hmm.
505
00:23:42,400 --> 00:23:44,100
- And he was paid.
- And he signed it.
506
00:23:44,166 --> 00:23:47,500
He was paid $300
and some camera equipment.
507
00:23:47,567 --> 00:23:48,567
Yeah.
508
00:23:48,633 --> 00:23:50,967
The defendant said it was worth $1,500.
509
00:23:51,033 --> 00:23:52,300
I don't know whether it was or it wasn't.
510
00:23:52,367 --> 00:23:54,567
Anyway, it was inartfully done.
511
00:23:54,633 --> 00:23:56,400
You have to give them credit for trying.
512
00:23:56,467 --> 00:23:58,300
- Yes.
- For trying.
513
00:23:58,367 --> 00:23:59,834
They're music people.
They're artists.
514
00:23:59,900 --> 00:24:00,967
Yeah.
515
00:24:01,033 --> 00:24:05,200
Language and specifics and details
is more our forte as lawyers.
516
00:24:05,266 --> 00:24:07,700
More important. It's so frightening
that I think I have
517
00:24:07,767 --> 00:24:10,500
a memory somewhere
back here of The Ding Dong Show.
518
00:24:10,567 --> 00:24:13,567
So I'm going in the back now
and look up The Ding Dong Show.
519
00:24:13,633 --> 00:24:16,467
Well, I'd like to hear that origin story!
520
00:24:18,066 --> 00:24:21,266
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