United States Court of Appeals For the Second Circuit August Term 2022

Argued: March 31, 2023 Decided: October 17, 2023

No. 22-255

ERIC A. ELLIOTT, AKA FLY HAVANA,

Plaintiff-Appellant,

v.

JOSEPH ANTHONY CARTAGENA, AKA FAT JOE, KARIM KHARBOUCH, AKA FRENCH MONTANA, SHANDEL GREEN, AKA INFARED, REMINISCE SMITH MACKIE, AKA REMY MA, EDWARD F. DAVADI, JR., AKA EDSCLUSIVE, JOEY AND RYAN MUSIC, EXCUSE MY FRENCH MUSIC, EXCUSE MY FRENCH MUSIC II, MR. GREEN MUSIC, REMYNISCE MUSIC, UNIVERSAL MUSIC-Z TUNES LLC, DBA UNIVERSAL MUSIC Z SONGS, WARNER-TAMERLANE PUBLISHING CORP., WARNER/CHAPPELL MUSIC, INC., SONGS OF UNIVERSAL INC., ROC NATION LLC, ROC NATION MANAGEMENT LLC, SNEAKER ADDICT TOURING LLC, TERROR SQUAD PRODUCTIONS, INC., TERROR SQUAD ENTERTAINMENT, RNG (RAP'S NEW GENERATION), EMPIRE DISTRIBUTION, INC., BMG RIGHTS MANAGEMENT (US) LLC, DBA BMG PLATINUM SONGS US,

Defendants-Appellees,

KOBALT SONGS MUSIC PUBLISHING, KOBALT MUSIC PUBLISHING AMERICA, INC., REACH GLOBAL INC., SONY/ATV ALLEGRO, FIRST N PLATINUM PUBLISHING, SONY/ATV TUNES LLC, CUTS OF REACH MUSIC, SONGS OF REACH GLOBAL, FIRST N GOLD PUBLISHING, INC., REACH MUSIC PUBLISHING INC., SONY/ATV MUSIC PUBLISHING, INC., MARCELLO VALENZANO, AKA COOL, ANDRE LYON, AKA DRE, DADE CO. PROJECT MUSIC, INC., PO FOLKS MUSIC,

Defendants.

Appeal from the United States District Court for the Southern District of New York No. 1:19CV01998, Naomi Reice Buchwald, Judge.

Before: NARDINI AND MERRIAM, Circuit Judges. *

Plaintiff-appellant Eric A. Elliott alleges that he co-created the song “All the Way Up,” but that he has not been properly credited or compensated for his contribution. He filed this action in the United States District Court for the Southern District of New York (Buchwald, J.), asserting claims under the Copyright Act, 17 U.S.C. §101, et seq., as well as various tort claims. Defendants- appellees maintain that Elliott assigned away any rights he may have had in the song, but the agreement has never been produced, and the parties disagree about its content and effect. The District Court admitted a draft version of the missing agreement as a duplicate, and then granted defendants’ motion for summary judgment without allowing Elliott to conduct discovery. We hold that the District Court abused its discretion in finding the draft admissible as a duplicate original under Federal Rule of Evidence 1003, but properly admitted the draft as “other evidence of the content” of the original under Rule 1004. We further hold that the District Court abused its discretion in denying Elliott’s request to conduct discovery prior to the entry of summary judgment and erred in concluding that no genuine dispute of material fact existed based on the current record. We therefore VACATE the judgment and REMAND for further proceedings.

*Senior Circuit Judge Rosemary S. Pooler, originally a member of this panel, passed away on August 10, 2023. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. §46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457, 458-59 (2d Cir. 1998). 2 ALFRED J. (AJ) FLUEHR, Francis Alexander, LLC, Media, PA, for Plaintiff-Appellant.

ELEANOR M. LACKMAN, Mitchell Silberberg & Knupp LLP, New York, NY, for Defendants-