SOUTHEAST TEXAS RECORD

A federal appeals court has finally decided who should get the royalties from the popular 1993 hit song "Whoomp! (There It Is)."

On Dec. 18, the U.S. Court of Appeals for the Fifth Circuit affirmed that plaintiff Alvertis Isbell owned the copyright and that defendant DM Records Inc. was liable for copyright infringement.

Facts of the case 

In 1993, Cecil Glenn and Steven James, known as Tag Team, wrote and produced the song, “Whoomp! (There It Is).” They entered into a producers agreement with Bellmark Records.

According to court papers, Alvertis Isbell was the president of Bellmark, which was in the business of owning sound recordings. In 1977, Bell formed his own music publishing company, Alvert Music.

Bellmark filed for bankruptcy in 1997, and its assets were purchased by DM Records for $166,000.

“After purchasing Bellmark’s assets, DM exploited the composition copyright of Whoomp!,” court papers say.

Isbell, doing business as Alvert Music, filed a copyright infringement suit against DM in 2002 in the Northern District of Texas, seeking declaratory judgment that Alvert Music, not DM Records, was the purchaser of Bellmark’s assets and is the rightful owner of the composition copyright for Whoomp!

According to court papers, the case “bounced around several courts before landing in the Eastern District of Texas in 2007.”

The case finally went to trial in 2012. Isbell asked the court to rule that the recording agreement showed that Glenn and James transferred 50 percent of the composition copyright to Alvert Music.

DM asked the district court to rule that Isbell could not show that he was intended to be a third party beneficiary to the recording agreement and that Bellmark was the only assignee.

The court found that Alvert Music was the owner of Whoomp! and DM was liable for copyright infringement.

The jury found actual damages of $2,131,482, “a figure that is essentially 100 percent of the royalties DM collected from licensing Whoomp! The jury also awarded statutory damages of $132,500 for DM’s willful infringement.

After trial, DM filed a motion for judgment as a matter of law and/or a motion for a new trial. DM argued that even if the court found that Alvert Music was the assignee of 50 percent of the rights, the court erred in not reading the recording agreement to have assigned the other 50 percent interest to Bellmark.

DM contends that since Isbell owned only 50 percent of the copyright, “he should have only been awarded, at most, 50 percent of the royalties.” DM claims the district court failed to instruct the jury that it was only permitted to award Isbell damages for 50 percent interest in the infringement. However, the Fifth Circuit says there was “no plain error in the jury instructions.”

DM also argued that during closing arguments, the plaintiff’s counsel was abusive and improper for repeatedly accusing DM of “being a thief” and “stealing” from Isbell. Justices wrote that the statements “were not without basis in the record.”

The Fifth Circuit affirmed the trial court's decision and the damage award.

Court papers say the song's title "Whoomp!" refers to a chant “commonly uttered when women disrobed in South Florida strip clubs in the early 1990s.

 Case No. 13-40878