NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 14a0790n.06

No. 14-5028

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

TARYN MURPHY and CHRIS LANDON,

Plaintiffs-Appellants,

v.

SERGEY LAZAREV,

Defendant-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE MIDDLE 

DISTRICT OF TENNESSEE

BEFORE: GIBBONS and McKEAGUE, Circuit Judges; LAWSON, District Judge.

JULIA SMITH GIBBONS, Circuit Judge. Sergey Lazarev is a Russian pop artist and 

entertainer. Taryn Murphy and Chris Landon are citizens of the United States and songwriters. 

Murphy and Landon co-authored a song, Almost Sorry, which they registered with the United 

States Copyright Office and pitched to Lazarev’s manager in 2006. In order that Lazarev exploit 

the song, plaintiffs Murphy and Landon entered into a sub-publisher’s agreement with a 

Moscow-based law firm, Levant & Partners, and into two licensing agreements with a Moscowbased record label, Style Records. Almost Sorry and its Russian-language version, Zachem 

Pridumali Lyubov, did well, but Murphy and Landon were remitted fewer royalties than they had 

expected. They brought suit in federal district court against Lazarev and Style for breach of 

contract and copyright infringement. Murphy and Landon voluntarily dismissed Style from the 

 



The Honorable David M. Lawson, United States District Judge for the Eastern District 

of Michigan, sitting by designation. 
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case, and the district court granted summary judgment to Lazarev on all claims. On appeal, 

plaintiffs reassert their claims that Lazarev waived his affirmative defenses by failing to file an 

answer to their amended complaint and that Lazarev infringed their copyright to Almost Sorry. 

We affirm.

I.

On April 14, 2005, Lazarev entered into a producer’s agreement with Style Records. 

The purpose of the agreement was to create an exclusive relationship between Lazarev and Style 

for the production, sale, and performances of three music albums recorded by Lazarev, as well as 

singles, music videos, and other objects. Pursuant to the agreement, Style obtained exclusive 

rights to exploit Lazarev’s performances, including audio and video recordings and recordings of 

live performances, and to collect the proceeds from such performances during the term of the 

agreement. Style retained the rights to the intellectual property described in the agreement “for 

the whole duration of copyright and related rights as provisioned by the current law of [the] 

Russian Federation.” In return, Style guaranteed to pay Lazarev royalties for the exploitation of 

his performances after recoupment of expenses.

In pertinent part, Style undertook the obligation “[t]o sign author’s agreements with 

owners of rights, authors [whose works Lazarev would record and perform] and to conduct 

payments for these under this agreement of Compositions, Music Videos and Audiovisual 

creations.” The producer’s agreement also required Style to provide a production budget for 

specific production periods and anticipated the expense of “author’s remuneration to the authors 

of music and lyrics of Compositions (fixed and/or royalties).” The agreement further required 

Style to sign a collateral agreement to retain Anna Zorina as Lazarev’s manager. The original 
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term of the producer’s agreement was to run for not more than four years from the date of 

execution, April 14, 2005.

Murphy and Landon co-wrote the song Almost Sorry in 2001 in Nashville, Tennessee. 

Murphy and Landon own the copyright to Almost Sorry, and the song is registered with the U.S. 

copyright office as well as Broadcast Music, Inc. (BMI) and the Russian Authors Society.

In June and November 2006, either Murphy or Murphy’s mother pitched Almost Sorry to 

Zorina, who expressed interest in the song on behalf of Style and Lazarev.1 According to 

Murphy, and consistent with the original producer’s agreement between Style and Lazarev, 

Zorina was the acting manager and representative of Lazarev. Following discussions with 

Zorina, the plaintiffs entered into a “sub-publishing agreement” with the law firm Levant & 

Partners. The agreement purported to grant Levant & Partners exclusive rights to exploit Almost 

Sorry, including the rights to record, reproduce, and distribute the song in Russia and “all the 

countries in the world” for the period between January 1, 2007 and December 31, 2010. The 

agreement delimited Levant & Partners’ right to exploit Almost Sorry to the performance of 

Lazarev, leaving plaintiffs the right to license the song to other artists outside of Russia and the 

countries of the former Soviet Union. The agreement contained no payment terms; however, 

plaintiffs received a $2000 advance ($1000 each) from Levant & Partners for the sub-publishing 

agreement. The sub-publishing agreement between plaintiffs and Levant & Partners is dated 

January 1, 2007. In executing the sub-publishing agreement, plaintiffs understood that the 

 

1

The dates expressed in Murphy’s declaration conflict with Murphy’s deposition 

testimony that the song was pitched to Zorina in January or February, 2007. Murphy’s 

deposition also conflicts with the dates indicated in plaintiffs’ original complaint, which alleged 

that plaintiffs entered into an oral contract with Style in November 2006. The discrepancy as to 

when the song was pitched to Zorina, however, is immaterial. 
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contract authorized a recording of Almost Sorry to be made by Lazarev. Moreover, at that time, 

plaintiffs had a vague understanding that Style would be recording Lazarev’s use of the song.

At some point in late 2006 or early 2007, Lazarev recorded Almost Sorry at the Brian 

Rawlings recording studio in London, U.K., during the term of the original producer’s 

agreement. On May 10, 2007, Lazarev’s TV Show album, which contained an English-version 

recording of Almost Sorry, was released in Russia and Ukraine. In fact, the song was released on 

several albums produced by Style. In 2007, Lazarev also recorded a Russian version of the song, 

Zachem Pridumali Lyubov, which was first performed in November 2007.

At some point in 2008, several months after plaintiffs executed the sub-publishing 

agreement, Sergey Bobza, a representative of Style, contacted Murphy and explained that the 

plaintiffs had entered into a “bad contract” with Zorina and Levant & Partners. Bobza said that 

the relationship between Style and Zorina had been on the decline, that Style terminated Zorina, 

but prior to her termination, Zorina, acting out of spite, had induced authors to sign contracts, 

such as the sub-publishing agreements, with Levant & Partners, who apparently had no known 

affiliation with the music industry. Bobza suggested that plaintiffs try to annul the contract and 

send a letter to Zorina or to Levant & Partners, but plaintiffs did not pursue those options. Bobza 

also suggested that plaintiffs enter into “what should have been considered a legitimate 

agreement with Style Records.” Specifically, Bobza recommended that the plaintiffs and Style 

enter into a licensing agreement. At the time of her discussions with Bobza in 2008, Murphy 

assumed that Lazarev had already recorded Almost Sorry.

In February 2008, plaintiffs entered into a license agreement with Style (hereinafter “first 

license agreement”). The agreement was backdated to November 1, 2006, well before Style and 

plaintiffs had direct communications. According to Murphy, the agreement was backdated 
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because “Style wanted to show that they had the rights to the song before [Zorina] since they 

believed the [sub-publishing agreement] contract to be fraudulent or something of the like.”

Under the first license agreement, plaintiffs gave “their permission to record [Almost 

Sorry], performed by Sergey Lazarev.” The agreement specified that Lazarev intended to record 

Almost Sorry at the Brian Rawlings Production studio. The plaintiffs agreed to “ensure [Style] 

(as well as its licensees, affiliates and other third parties that will exploit the recording of [Almost 

Sorry]) with the possibility to receive without hindrance permissions to use [Almost Sorry] . . . .” 

Further, plaintiffs guaranteed “that neither they nor other persons involved in the Composition 

rights management, will forbid [Style] (as well as [Style’s] licensees that will us[e] the 

recordings of the [Almost Sorry] performance) to use [Almost Sorry] on condition that [Style] 

shall pay the fee for any kind of exploitation through a collecting society or a publishing 

company. . . .” In return, Style agreed to pay plaintiffs $3000 ($1500 each) within ten calendar 

days of its execution. The agreement contained no other terms specifying another form of 

payment for the exploitation of Almost Sorry, stated that it took effect from the moment of its 

signing, contained no time limitation, and did not include a choice of law provision.

In April 2008, Aleksey Kruzin, another representative of Style, contacted plaintiffs and 

circulated a second licensing agreement for Almost Sorry. Plaintiffs and Style executed this 

agreement at some point in May 2008, although the agreement was backdated to November 20, 

2006. In pertinent part, the second licensing agreement purported to grant a license from the 

plaintiffs to Style to exploit Almost Sorry worldwide to the extent it was performed by Lazarev 

and the right to exploit Almost Sorry within Russia and certain other countries to the extent it 

was performed by other artists. The second licensing agreement also permitted Style “to grant 

sublicenses, i.e. to grant the Rights to third parties (sublicensees), including the right to grant 
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further sublicenses, solely in order to use [Almost Sorry] more effectively in the interests of the 

Authors.” In return, Style agreed to pay plaintiffs a fixed advance of $4000 ($2000 each) and 

periodic royalty payments as a percentage of Style’s profits from exploiting Almost Sorry. The 

second licensing agreement specified that Russian law governs its interpretation and provided 

that the license term would be “five (5) years commencing on signature hereof.” The agreement 

was signed by Murphy, Landon, and Oleg Lobov, on behalf of Style. Plaintiffs accepted and 

received the promised $4000 ($2000 each) advance under the second licensing agreement.

On September 7, 2009, the date the producer’s agreement expired, Lazarev and Style 

entered into a supplemental producer’s agreement. In the supplemental agreement, Style granted 

Lazarev the right to use recordings of his performances and to perform compositions, including 

Almost Sorry, for which rights were granted to Style during the term of the original producer’s 

agreement.

Plaintiffs received and accepted royalty payments for the exploitation of Almost Sorry. 

Style was obligated to remit royalties to the Russian Authors Society, which then remitted those 

payments to BMI, which would in turn remit those payments to plaintiffs. Murphy received and 

accepted the following royalty payments: $12.34 on January 19, 2010; $436.70 on June 28, 

2010; $1190.08 on September 23, 2011; and $217.30 on September 21, 2012. Landon also 

received royalty payments with respect to the English and Russian versions of Almost Sorry. 

The plaintiffs concede they have never been a party to an agreement with Lazarev. The plaintiffs 

also admit that they have never attempted to retract, reject, renounce, or withdraw the first or 

second licensing agreements. Lazarev alleges that he has avoided performing the song since 

2010.
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On May 28, 2010, Murphy and Landon filed a complaint against Lazarev and Style in the 

United States District Court for the Middle District of Tennessee. The complaint alleged that 

plaintiffs entered into an oral contract with Style on or about November 20, 2006, through which 

they agreed to license Almost Sorry to Style. The complaint further alleged that Lazarev 

recorded Almost Sorry in both English and Russian and that the song became popular in Russia. 

Despite its popularity, plaintiffs alleged that they had been inadequately compensated under the 

licensing agreement. Without identifying the precise relationships between themselves and 

Lazarev or between Lazarev and Style, plaintiffs asserted causes of action against Lazarev and 

Style for (1) breach of contract, (2) copyright infringement under 17 U.S.C. § 501 et seq., and 

(3) violations of Articles 1301 and 1302 of the Russian Civil Code. Plaintiffs also asserted a 

separate intentional-misrepresentation claim against Style.

After filing the original complaint, plaintiffs apparently attempted to effect service in 

Russia on both Lazarev and Style. On January 10, 2011, Lazarev, acting pro se, filed a letter 

with the court in which he acknowledged receipt of the summons and denied plaintiffs’ 

allegations. Lazarev stated that plaintiffs and Style entered into an agreement on November 1, 

2006, under which he was authorized to record and perform Almost Sorry. Lazarev further 

averred that, at the time plaintiffs and Style entered into a licensing agreement, he was acting 

under a separate producer’s agreement with Style executed on April 14, 2005. Under this 

producer’s agreement, Lazarev alleged that Style was obliged to enter into licensing agreements 

with the authors of musical works and compositions and to carry the responsibilities incurred by 

those agreements. Lazarev alleged that he was not personally responsible for making any royalty 

payments, responsibilities that were contractually required of Style for the commercial 
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exploitation of the song’s recordings and public performances of the work. Lazarev’s letter was 

docketed as an answer.

On March 3, 2011, the magistrate judge entered a scheduling order, which set a targeted 

trial date of February 28, 2012. On February 14, 2012, the district court received a telephone 

call from plaintiffs’ counsel inquiring about the target trial date. From this call, the district court 

surmised that Style was never served. The district court then ordered plaintiffs’ counsel to 

inform the court whether he intended to proceed against Style. On February 22, 2012, the 

plaintiffs voluntarily dismissed Style.

On March 14, 2012, the plaintiffs sought leave to amend the complaint to assert 

“continuing infringements” by Lazarev (the only remaining defendant), which the court granted 

on April 9, 2012. On April 16, 2012, the plaintiffs filed an amended complaint, which remains 

the operative pleading. The amended complaint alleged that the plaintiffs orally had entered into 

a November 20, 2006 licensing agreement with Style and that plaintiffs had executed a written 

licensing agreement in mid-2007. The amended complaint further alleged that Lazarev infringed 

and continued to infringe the plaintiffs’ copyright in Almost Sorry by performing, selling, and 

promoting the work through various forms of media, in violation of federal and Russian law. 

The plaintiffs asserted the same three causes of action: (1) breach of contract, (2) copyright 

infringement under 17 U.S.C. § 501 et seq., and (3) violation of Articles 1301 and 1302 of the 

Russian Civil Code.

On May 16, 2012, counsel entered appearances on behalf of Lazarev, and on May 25, 

2012, Lazarev timely filed a motion to dismiss, which the court treated as a motion for summary 

judgment. On August 22, 2012, the court initially granted the motion. On September 19, 2012, 

the plaintiffs filed a motion to alter or amend judgment, seeking reconsideration only with 
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respect to the copyright claims, thus abandoning their breach-of-contract and Russian-law 

claims. First, the plaintiffs argued that the licensing agreement dated November 20, 2006 was 

for a five-year term and, thus, had expired by its terms on November 20, 2011. Second, based on 

the complete translations of the producer’s agreements between Lazarev and Style, which did not 

specifically reference Almost Sorry, the plaintiffs argued that the producer’s agreements did not 

convey a valid sub-license to Lazarev. On December 12, 2012, the district court granted 

plaintiffs’ motion to alter or amend, concluding that further discovery was warranted. In 

particular, the court noted that the relationship between the November 1, 2006 agreement (the 

first licensing agreement which contained no time limitation) and the November 20, 2006 

agreement (the second licensing agreement which contained a five-year time limitation) was 

unclear. The court also observed that it was unclear when those agreements became operative.

On September 11, 2013, Lazarev filed a renewed motion for summary judgment. In 

support of that motion, Lazarev filed a stipulation; declarations of Alexei Smirnow, Ilya 

Mikhailenko, and of himself; deposition testimony given by Landon, Murphy, and himself; a 

statement of undisputed material facts, and a memorandum of law. In response, the plaintiffs 

filed a memorandum of law, a response to Lazarev’s statement of undisputed material facts, and 

a declaration of Murphy. In opposition to Lazarev’s motion for summary judgment, the 

plaintiffs argued (1) that Lazarev waived his “license” and “sub-license” defenses by failing to 

file an answer to the amended complaint, (2) that Lazarev did not have a valid sub-license to use 

Almost Sorry before 2008, and (3) Lazarev’s sub-license expired in 2009, making any 

exploitation of Almost Sorry after that date unlawful.

The district court granted summary judgment to Lazarev. First, the court held that 

Lazarev did not waive the defenses argued in support of his motion for summary judgment. The 
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court found that, even though Lazarev did not formally file an answer to the amended complaint, 

the plaintiffs had been on notice of these defenses since the early stages of the case and had “a 

full and fair opportunity to probe those defenses.” 

Second, the district court found that, at a minimum, Style possessed a valid license to 

Almost Sorry as of February 2008 and that the second licensing agreement remained in effect 

from May 2008 to May 2013, when it expired. The district court reasoned that (1) the first and 

second licensing agreements between plaintiffs and Style were valid under Russian law and that 

the terms of the latter supplemented and amended the former; (2) because Style acquired the 

license to Almost Sorry before the expiration date of the original producer’s agreement, Lazarev 

possessed a valid sub-license from at least May 2008 through September 7, 2009; and 

(3) because Style and Lazarev agreed to extend the provisions of the producer’s agreement in the 

supplemental producer’s agreement, Lazarev possessed a valid sub-license for the same time 

frame that Style possessed a valid license—i.e., through May 2013. The district court 

additionally found that plaintiffs retained full rights to Almost Sorry since May 2013 but that the 

record contained no evidence that Lazarev performed it after that time. The district court noted 

that because of the expiration of the license and associated sub-license, Lazarev can no longer 

legally exploit Almost Sorry without reaching an agreement with the plaintiffs.

Third, the district court rejected plaintiffs’ contention that Lazarev lacked a valid sublicense to use Almost Sorry before February 2008. The district court found that the subpublishing agreement with Levant & Partners specifically authorized Lazarev to record and 

perform Almost Sorry, which reflected plaintiffs’ understanding and intention at the time. The 

district court also found that, in the first and second license agreements, the plaintiffs specifically 
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entered into agreements that they intended to govern Lazarev’s recordings of Almost Sorry

retroactive to November 2006. 

The district court concluded by noting that if the plaintiffs are correct that Style failed to 

pay them required royalties under the first or second licensing agreements, it is Style, not 

Lazarev, who is at fault. The district court noted, however, that plaintiffs chose not to pursue 

Levant & Partners, Zorina, or Style. Accordingly, the district court entered final judgment for 

Lazarev. Plaintiffs timely filed a notice of appeal.

II.

On appeal, plaintiffs argue that the district court erred in holding that Lazarev did not 

waive his affirmative defenses by failing to file an answer to their amended complaint. We 

review a finding that a party did not waive an affirmative defense for abuse of discretion. See 

Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997). Plaintiffs point to Rule 8 and categorically 

assert that failure to plead an affirmative defense results in a waiver of that defense. But 

“[f]ailure to raise an affirmative defense by responsive pleading does not always result in 

waiver.” Smith, 117 F.3d at 969 (citing Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 

1445 (6th Cir. 1993)). “The purpose of Rule 8(c) of the Federal Rules of Civil Procedure is to 

give the opposing party notice of the affirmative defense and a chance to respond.” Id. (citing 

Coffey, 992 F.2d at 1445). “Thus, if a plaintiff receives notice of an affirmative defense by some 

means other than pleadings, ‘the defendant’s failure to comply with Rule 8(c) does not cause the 

plaintiff any prejudice.’” Coffey, 992 F.2d at 1445 (quoting Grant v. Preferred Research, Inc.,

885 F.2d 795, 797 (11th Cir. 1989)).

In this case, plaintiffs received notice of Lazarev’s defenses that he had a valid license 

and sublicense to use Almost Sorry from the inception of the case. In his pro se letter, filed on 
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January 10, 2011, which the district court docketed as an answer, Lazarev asserted he had a 

sublicense and license to use Almost Sorry pursuant to the licensing agreements between 

plaintiffs and Style and the producer’s agreements between Style and himself. Lazarev attached 

to his letter the first licensing agreement, the original producer’s agreement, and the 

supplemental producer’s agreement. Lazarev filed the same letter on May 4, 2011. And, after he 

was represented by counsel, Lazarev filed a motion to dismiss that relied on the affirmative 

defenses of license and sublicense, which the court considered in ruling upon that motion and 

upon plaintiffs’ motion to alter or amend the judgment. Even though Lazarev did not file an 

answer to the amended complaint, plaintiffs were on notice of his affirmative defenses from an 

early stage in the lawsuit, thus satisfying the purposes of Rule 8. See Smith, 117 F.3d at 969. 

Therefore, the district court did not abuse its discretion by concluding that Lazarev did not waive 

his affirmative defenses argued in support of his motion for summary judgment.

Plaintiffs also reassert their argument that Lazarev infringed their copyright to Almost 

Sorry. The district court granted summary judgment to Lazarev on plaintiffs’ copyrightinfringement claim, and this court reviews that decision de novo. See Walton v. Ford Motor Co., 

424 F.3d 481, 485 (6th Cir. 2005). Plaintiffs offer two arguments in support of their claim: 

First, they allege that Lazarev lacked a valid license to use their work before February 2008 

when plaintiffs expressly entered into a license agreement with Style. Second, they renew their 

contention that Lazarev’s sub-license expired in 2009 and “[t]herefore, any use of . . . Almost 

Sorry and Zachem Pridumali Lyubov from 2009 to present was without a valid sublicense and 

constituted infringement of Plaintiffs’ copyright.” Presumably, plaintiffs’ argument refers to 

September 7, 2009, the date the original producer’s agreement between Lazarev and Style 

expired. The district court correctly rejected these arguments, and we “may affirm for any 
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reason supported by the record.” Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 514 (6th Cir. 

2003).

“[A]nyone who is authorized by the copyright owner to use the copyrighted work in a 

way specified in the statute . . . is not an infringer of the copyright with respect to such use.” 

Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984). “The ownership of 

a copyright may be transferred in whole or in part by any means of conveyance or by operation 

of law. . . .” 17 U.S.C. § 201(d)(1). A copyright owner who grants an exclusive or nonexclusive 

license to use his copyrighted material waives his right to sue the licensee for copyright 

infringement. See Sony, 464 U.S. at 433; Graham v. James, 144 F.3d 229, 236 (2d Cir. 1998). 

A written and signed conveyance is necessary to find an exclusive license to use copyright 

material. Under 17 U.S.C. § 101, an exclusive license is a “transfer of copyright ownership” and 

therefore “is not valid unless an instrument of conveyance, or a note or memorandum of the 

transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly 

authorized agent.” 17 U.S.C. § 204(a). In contrast, “[a] non-exclusive license may be granted 

orally, or may be implied from conduct.” Johnson v. Jones, 149 F.3d 494, 500 (6th Cir. 1998)

(alteration in original) (quoting M. Nimmer and D. Nimmer, 3 Nimmer on Copyright § 10.03[A], 

at 10–38 (1994)). This is true because a nonexclusive license is not a transfer of ownership 

under 17 U.S.C. § 101 “and is not, therefore, subject to the writing requirement of § 204.” Id.

(citing 17 U.S.C. § 101; Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 558 (9th Cir. 1990)). The 

key to finding an implied license is in the intent of the copyright holder. See Johnson, 149 F.3d 

at 502 (“Without intent, there can be no implied license.”); see also John G. Danielson, Inc. v. 

Winchester-Conant Props., Inc., 322 F.3d 26, 40−41 (1st Cir. 2003); Nelson–Salabes, Inc. v. 

Morningside Dev., LLC, 284 F.3d 505, 514–16 (4th Cir. 2002). Like an express license, “the 
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existence of an implied license to use the copyright for a particular purpose precludes a finding 

of infringement.” Johnson, 149 F.3d at 500 (citing Effects, 908 F.2d at 559; I.A.E., Inc. v. 

Shaver, 74 F.3d 768 (7th Cir. 1996)).

Plaintiffs’ claim that Lazarev infringed their copyright after 2009 fails because Lazarev 

had a valid, express sublicense to use Almost Sorry until May 2013. In May 2008, plaintiffs 

executed a second licensing agreement with Style. This agreement was valid throughout its 

term, which ran for five years from its execution—that is, until May 2013. The second licensing 

agreement also included a choice of law provision stating that Russian law applies.

Under Russian law, the second licensing agreement, in combination with the producer’s 

agreement, endowed Lazarev with a sublicense to use Almost Sorry.

2

 In the second licensing 

 

2

Several provisions of the Civil Code of the Russian Federation are relevant. First, Article 431 

states: 

While interpreting the terms of the contract, the court shall take into account the 

literal meaning of the words and expressions, contained in it. The literal meaning 

of the terms of the contract in case of its being vague shall be identified by way of 

comparison with the other terms and with the meaning of the contract as a whole. 

If the rules, contained in the first part of the present Article, do not make it 

possible to identify the content of the contract, the actual common will of the 

parties shall be found out with account for the purpose of the contract. All the 

corresponding circumstances, including the negotiations and the correspondence, 

preceding the conclusion of the contract, the habitual practices in the relationships 

between the parties, the customs of the business turnover and the subsequent 

behavior of the parties shall be taken into account.

Grazhdanskii Kodeks Rossiiskoi Federatsii [GK RF] [Civil Code] art. 431 (Russ.). Further, 

Article 1238, “Sublicense Contract” states:

1. With the written consent by the licensor the licensee shall have the right to 

grant under a contract the right to use a result of intellectual activity or a means of 

individualization to another person (sublicense contract). 

2. Under a sublicense contract the sublicensee shall be granted the right to use a 

result of intellectual activity or means of individualization only within the limits 
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agreement, which modified and amended the first licensing agreement, plaintiffs entitled Style to 

grant sublicenses. And under the terms of the producer’s agreement, Lazarev was required to 

record and perform music for which Style obtained rights during the agreement’s duration. 

Because plaintiffs granted Style a license to use Almost Sorry before the expiration of the 

original producer’s agreement between Lazarev and Style, Lazarev possessed a valid sublicense 

to use that work through September 7, 2009, when the original producer’s agreement expired. 

And because, in the supplemental producer’s agreement, executed on September 7, 2009, Style 

granted Lazarev a license to use compositions, including Almost Sorry, that were received by 

Style during the term of the original producer’s agreement, Lazarev continued to possess a valid 

sublicense until the term of the second licensing agreement between plaintiffs and Style expired 

in May 2013. Moreover, in the second licensing agreement, plaintiffs explicitly authorized Style 

to use Almost Sorry in the territory of all the countries of the world if Almost Sorry was 

performed by Lazarev. We find that the second licensing agreement, in combination with the 

producer’s agreement, created a sublicense in Lazarev to use Almost Sorry from May 2008 to 

May 2013. Furthermore, the district court correctly found that the record contains no evidence 

that Lazarev used Almost Sorry after May 2013.

 

of those rights and those means as provided for by the license contract for the 

licensee. 

3. The sublicense contract concluded for a time period exceeding the duration of 

the license contract shall be considered as concluded for the duration of the 

license contract. 

4. The licensee shall bear liability to the licensor for actions of the sublicensee 

unless the license contract provides otherwise. 

5. The provisions of the present Code on a license contract shall apply to the 

sublicense contract. 

Id., art. 1238; see also Fed. R. Civ. P. 44.1 (“In determining foreign law, the court may consider 

any relevant material or source . . . whether or not submitted by a party. . . .”).
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We also reject plaintiffs’ argument that Lazarev infringed their copyright before 2008, 

that is, before they entered the first and second licensing agreements with Style. As of late 2006 

or early 2007, plaintiffs intended to authorize Lazarev to record and perform Almost Sorry. First, 

in June and November 2006, Murphy or Murphy’s mother pitched Almost Sorry to Zorina, 

Lazarev’s agent at the time. Second, in the sub-publishing agreement that plaintiffs entered into 

with Levant & Partners on January 1, 2007, plaintiffs plainly authorized Lazarev to record and 

perform Almost Sorry. That agreement provided that plaintiffs transferred to Levant & Partners 

“the exclusive rights to Almost Sorry in the territory of all the countries with the exception of 

Russia and CIS (the countries of the former Soviet Union but including Latvia, Lithuania, 

Estonia) only in the performance of artist, Sergey Lazarev.”3 Third, plaintiffs’ first and second 

licensing agreements with Style evince plaintiffs’ intent to authorize Lazarev’s use of the song as 

of late 2006. Plaintiffs intended that those agreements, which effectively granted Lazarev a 

sublicense to use Almost Sorry, be applied retroactively to November 1, 2006, the date at which 

plaintiffs and Style backdated the first licensing agreement. Therefore, because plaintiffs 

intended to authorize Lazarev to use that work in late 2006 and early 2007, plaintiffs’ claim that 

 

3

The sub-publisher’s agreement with Levant & Partners did not contain a choice of law 

provision. The parties have not engaged in a choice of law analysis with respect to that 

agreement. But it does not matter whether Russian law or Tennessee law applies. Under either 

body of law, the agreement authorizes Lazarev to record and perform Almost Sorry. Compare 

Simonton v. Huff, 60 S.W.3d 820, 825 (Tenn. Ct. App. 2000) (“When the language of the 

contract is plain and unambiguous, the court must determine the parties’ intention from the four 

corners of contract, interpreting and enforcing it as written.”), with Grazhdanskii Kodeks 

Rossiiskoi Federatsii [GK RF] [Civil Code] art. 431 (Russ.) (“While interpreting the terms of the 

contract, the court shall take into account the literal meaning of the words and expressions, 

contained in it.”); see also Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 816 (1985) (“We must 

first determine whether Kansas law conflicts in any material way with any other law which could 

apply. There can be no injury in applying Kansas law if it is not in conflict with that of any other 

jurisdiction connected to this suit.”).
No. 14-5028

Murphy, et al. v Lazarev

-17-

Lazarev infringed their copyright to Almost Sorry before February 2008 fails. See Sony, 

464 U.S. at 433.

III.

For the foregoing reasons, the judgment of the district court is affirmed.