IP Law Daily, COPYRIGHT—S.D.N.Y.: No evidence that the work for hire doctrine existed in Haiti in the 1960s, (Jun 17, 2025)

By Matthew Hersh, J.D.

Without that evidence, a copyright infringement claim over a work created and performed during that time could not go forward.

Two Florida music companies did not adequately allege that they owned the rights to a song first recorded in Haiti in the mid-1960s because their claim turned on the work being written and performed as a work for hire but failed to put forward any evidence that Haiti even recognized the work-for-hire doctrine at the time, the federal court for Manhattan has held. The court, in dismissing the claim, settled only one piece of a dispute that involves multiple claimants to the 1960s sound recording—as well as two later re-masterings of the song as well as a different 2018 song by another artist that allegedly infringed on the original—by a wide variety of plaintiffs, counterclaimants, cross-claimants, and third-party claimants within the same action (Keep On Kicking Music, Inc. v. Universal Music Group, No. 1:23-cv-04400-JPO-BCM (S.D.N.Y. Jun. 12, 2025)).

The song at the heart of the dispute is Espoir Composition X, a song performed by Haitian band Les Difficiles de Petion-Ville and first released in the mid-1960s. Robert Pierre Martino wrote the song and performed on the sound recording as a guitarist. He claimed to be the owner of the song as the result. Henry Celestin was the owner and the leader of the band at the time the song was released. He claimed to own the song because Martino’s contribution was done as a work for hire. The band broke up in the 1970s, but came back in 1984 and did a new album of their greatest hits, including a new version of Espoir Composition X. The record company that produced the 1984 remake claimed to have acquired the rights to the song from Celestin.

At that point, two different sets of claimants to the song emerged—one set tracking back to Martino, and another set tracing back to Celestin. In 1995, the record company that produced the greatest hits album sold its rights to the album, including the underlying composition and sound recording rights, to Kreyol Music and Melodie Music, both of which were owned by Florida music producer Jeff Wainwright. Kreyol and Melodie, in turn, registered their claim to the song with Haitian authorities. Martino, meanwhile, registered his own claim to the song and sound recording in 2000 with the French Société des Auteurs, Compositeurs et Éditeurs de Musique, or SACEM and then transferred his rights to Keep on Kicking Music, another Florida company. Keep on Kicking, in turn, registered its copyright in the song in the United States.

Things came to a head with two more recent events. In 2018, a label owned by Universal Music released a song called Narcos by popular Georgia hip hip group Migos. Universal claimed to have obtained permission to use the song from a company called Idaly, a Florida company affiliated with Kreyol and Melodie. The song allegedly sampled liberally from Espoir Composition X. Seven years later, in 2022, Keep on Kicking worked with Martino to remaster and re-release Espoir Composition X.

At this point, litigation broke out on multiple fronts. Keep on Kicking, believing that it owned the rights to the song by transfer from Martino, sued Universal and several of its labels (along with Idaly, Kreyol, and Melodie) for copyright infringement over the Migo song Narcos. Universal, in turn, cross-claimed against Idaly, Kreyol, and Melodie, claiming that to the extent that Universal infringed, those companies should be on the hook as well. Kreyol and Melodie, in turn, filed a counterclaim against Keep on Kicking as well as a third-party complaint bringing Martino into the case, claiming that Martino and Keep on Kicking owed it for the 2022 remaster of Espoir Composition X. The parties also filed a plethora of declaratory judgment actions seeking that the court untangle the knotty questions of just who owned what song.

Martino moved to dismiss the third-party complaint of Kreyol and Melodie, leading to this opinion.

Copyright infringement complaint. The court found that the claim of copyright infringement failed. In order to demonstrate that they owned the copyright to Espoir Composition X, the court noted, Kreyol and Melodia would have to demonstrate the following facts: first, that Martino wrote and performed the work as a work for hire on behalf of Celestin; second, that Celestin transferred his rights in the work to the record label that did the 1984 remake of the song; and third, that they obtained the rights to the work from that label. The claim failed to make it past the threshold of steps one and two, the court found.

The complaint failed to allege that Martino’s contribution was done as a work for hire, the court found, because it failed to establish that the work for hire concept even existed in Haiti at the time the work was originally created. Under firm Second Circuit precedent, the court noted, Haitian law applied to the issue because the work was recorded and released in Haiti and therefore the law of that country had “the most significant relationship” to the question of ownership. But other than briefly citing to Haiti’s general law of intellectual property, the court noted, Kreyol and Melodie failed to cite any case law, treatise, or other authority on Haitian law. Nor did they provide expert briefing, which, the court noted, while not the only way, “remains the basic mode of proving foreign law.” The claim of work for hire would therefore fail.

Moreover, even assuming Celestin owned the song as a work for hire, the court noted, Kreyol and Melodie failed to state if and how that ownership was then transferred to the record label that allegedly passed on the rights to them. In fact, when discussing the 1984 remake, the court noted, the two third party plaintiffs merely repeated their allegation that Martino participated in that album, as well, as a work for hire for Celestin. From that account, the court noted, it would have that Celestin would still have ownership over the song, not the record label. Nor was there any other explanation in the complaint, the court noted, about how the record label eventually came to own the work. For that reason, too, the infringement complaint against Martino would fail.

Breach of contract. Although the copyright claim as to Espoir Composition X would be dismissed, the court found, Martino would still need to face—at least in part—a contract breach claim by the two Florida third-party plaintiffs. That contract claim arose out of Martino’s alleged recording agreement with them over Espoir Composition X as two other songs, Oye Chica and Ti DWET. The agreement had plainly expired by its terms by the time of the 2022 remaster of Espoir Composition X, the court found, so any contract claims about that song were out. But there were enough allegations to allow the action to go forward over the other songs, the court found.

The Case is No. 1:23-cv-04400-JPO-BCM.

Judge: Oetken, J.

Attorneys: Michael Douglas Steger (Law Offices of Michael D. Steger, PLLC) for Keep On Kicking Music, Inc. Adam Ivan Rich (Davis Wright Tremaine LLP) for Universal Music Group, Inc.

Companies: Keep On Kicking Music, Inc.; Kreyol Music, Inc.; Melodie Makers, Inc.; Idaly Publishing, Inc.; Universal Music Group, Inc.

Cases: Copyright NewYorkNews