Thompkins v. Lil' Joe Records, Inc.

This appeal requires us to consider what happens when a debtor-in-possession in a Chapter 11 bankruptcy case, who negotiated the purchase of copyrights prior to the bankruptcy proceeding, later uses the bankruptcy code to reject those contracts that transferred ownership of the copyrights to the debtor. Our resolution of that question determines the outcome of much of this suit by a rap artist who created the works giving rise to the copyrights in question. The artist sold copyrights in his works to a music recording company in exchange for a recording contract that entitled the artist to future royalties. The recording company later went bankrupt, becoming the debtor-in-possession. In confirming the debtor's reorganization plan, the bankruptcy court ordered that all of the debtor's contracts with the artist be rejected under the bankruptcy code and the copyrights sold to a rival recording company and its owner, two of the defendants in the instant case.

Years later, the artist sued the defendants, alleging that they did not actually gain ownership of the copyrights through the bankruptcy, or if they did, they now owe him royalties. Based on that premise, the artist asserts numerous claims sounding in federal and state law. The district court granted summary judgment in favor of the defendants on all claims, and for the reasons set forth below, we affirm.

The pertinent facts span a period of seventeen years. We recount first the history of the artist's business dealings with the debtor-in-possession, then the bankruptcy court's administration of the debtor's reorganization, and finally the proceedings leading to this appeal.

Jeffrey J. Thompkins ("Thompkins") is a rap artist who performs individually under the name "JT Money." As teenagers in the late 1980s, Thompkins and a partner were discovered at a Miami talent show by a member of the somewhat notorious South Florida-based rap group 2 Live Crew. Another member of 2 Live Crew, Luther Campbell ("Campbell"), owned a number of variously named record labels and was in the business of developing new artists. In May 1989, Campbell signed Thompkins to an Exclusive Recording Agreement (the "1989 Agreement" or "Agreement") with a predecessor company to Campbell's Luke Records, Inc. ("Luke Records").1 Under the 1989 Agreement, Thompkins would record albums under the group name "Poison Clan."2

The Agreement covered a contract period of five years. Under its terms, Thompkins was required to record and deliver master recordings ("masters") for production and release by Luke Records. Luke Records was given "exclusive, unlimited and perpetual rights throughout the world" to the copyrights "in sound recordings (as distinguished from the musical compositions embodied thereon) recorded by ARTIST during the Term." Thompkins also granted Luke Records a license for "[a]ll musical compositions or material recorded pursuant to this Agreement which are written or composed . . . or which are owned or controlled, directly or indirectly, in whole or in part, by ARTIST and/or . . . any producer of the masters subject hereto."3 In exchange for its ownership of the sound recording copyrights and its license to exploit the musical compositions, Luke Records agreed to pay Thompkins royalties according to specified rates. The Agreement obligated Luke Records generally to "commercially release each LP [album] recorded and delivered" by Thompkins under certain conditions, but specified:

[Thompkins] acknowledges that the sale of records is speculative and agrees that the judgment of [Luke Records] with regard to any matter affecting the sale, distribution or exploitation of such records shall be binding and conclusive upon [Thompkins]. Except [for the general provision requiring Luke Records to release completed albums], nothing contained in this Agreement shall obligate [Luke Records] to make, sell, license, or distribute records manufactured from masters delivered hereunder.

In addition to the 1989 Agreement, the validity of which neither party disputes on appeal, the record contains a number of other documents that appear to be contracts between Thompkins and various parties. Several of these suggest that, after the 1989 Agreement was signed, Thompkins in fact signed away to Luke Records all or part of his copyrights in the musical compositions embodied on his albums.4 Among these documents is an addendum to the 1989 Agreement, dated February 1992 (the "1992 Addendum" or "Addendum"), transferring to Luke Records "an undivided 50% of the publishing interest, in all compositions of [Thompkins] including without limitation, the copyrights therein and all renewal and or [sic] extensions throughout the world." In exchange, the Addendum recites that Thompkins is to receive, among other things, cash advances for each album and the entire royalty to which Poison Clan was entitled under the 1989 Agreement regardless of any future addition of other members to the group. Thompkins signed the Addendum, which also has an unsigned blank for a signature on behalf of Luke Records "By: Luther R. Campbell, President."

Other documents pertain to Thompkins's work as a "sideman" on certain compositions and recordings created by Campbell, who performed as a solo artist in addition to performing with 2 Live Crew and managing his music production business. These one-paragraph letter agreements ("the Sideman Agreements") set forth Thompkins's compensation for his contributions to certain of Campbell's solo works.5 In slightly different language, each of the Sideman Agreements provides that the specified royalty rate and/or lump sum payment represents Thompkins's payment in full for his services on the listed songs and that he "will receive no other royalties" or "no other monies." The Sideman Agreements do not explicitly reference the ownership of any copyrights in those works.

From 1989 through 1994 (the year in which the 1989 Agreement expired by its terms), Thompkins recorded three albums as Poison Clan: 2 Low Life Muthas, Poisonous Mentality, and Rufftown Behavior. Luke Records distributed each of these.

On March 28, 1995, Luke Records became the subject of an involuntary Chapter 7 bankruptcy petition filed by its creditors in the U.S. Bankruptcy Court for the Southern District of Florida. That June, Campbell individually filed a voluntary Chapter 11 bankruptcy petition, and Luke Records moved to convert its Chapter 7 case into one under Chapter 11. The bankruptcy court granted Luke Records' motion on June 14, 1995 and jointly administered the Luke Records and Campbell bankruptcies.6

On November 22, 1995, Thompkins filed a proof of claim in the Luke Records bankruptcy for an unspecified amount owed to Poison Clan based on "Services performed" and "Royalties Due—Record & Copywright [sic]" from the period "1989 to 1994." In deposition testimony taken in the course of the instant case, Thompkins admitted that the address he listed on the proof of claim form was his residence at the time and that he did, in fact, receive notices at that address regarding the bankruptcy case.7

The bankruptcy cases continued throughout the following months, and by mid-February 1996, Luke Records, Campbell individually, and the Official Unsecured Creditors' Committee in the Luke Records bankruptcy had tentatively agreed upon a Joint Plan of Reorganization (the "Joint Plan" or "Plan") for the two debtors. The Joint Plan provided for the classification and treatment of all claims in both bankruptcies, specifying that after confirmation by the bankruptcy court, "all of the provisions of this Plan, including all appendices and other exhibits hereto, shall be binding on the Debtor, the Estate, all Creditors, and all other entities who are affected (or whose interests are affected) in any manner by the Plan." A Letter of Intent annexed as "Exhibit A" to the Joint Plan specified the proposed terms of the Plan's execution.

Under the Letter of Intent, the various Luke Records entities (including Luke Records, Inc., Pac Jam, and Campbell individually) proposed to convey a number of specified assets to Lil' Joe Records, Inc. and its owner, Joseph Weinberger ("Weinberger"). The assets were to be transferred "free and clear of any and all liens, claims, encumbrances, charges, setoffs or recoupments of any kind, except as noted hereinbelow." The assets to be conveyed included "[a]ll worldwide rights to the masters . . . owned or controlled by Luther Campbell or Luke Records" and "[a]ll worldwide copyrights and/or publishing interests held by Luther Campbell, Luke Records, Inc., or Pac Jam Publishing," except with regard to certain other artists not at issue here. Under the agreement, Campbell and Pac Jam would "receive no royalties, whether as artist, producer, writer, publisher, or in any other capacity, on any of the masters or compositions being sold." In exchange, Lil' Joe Records, Inc. and Weinberger agreed to pay a total of $800,000 to the two bankruptcy estates.

The Joint Plan and Letter of Intent also provided for the disposition of executory contracts to which Campbell or Luke Records were parties. The Joint Plan established as a default that any executory contracts not otherwise explicitly disposed of were to be deemed rejected pursuant to 11 U.S.C. § 365 (again, with certain exceptions not relevant here).8 The Letter of Intent proposed that "Luke Records . . . shall assume and assign to [Lil' Joe Records, Inc. and Weinberger], in [Weinberger's] sole discretion, . . . all existing artist and producer contracts to which Luke Records or its affiliates and subsidiaries is a party with Poison Clan." (Emphasis added.) Both the Joint Plan and the Letter of Intent provided that their terms were subject to an order of confirmation by the bankruptcy court.

In the interim between the filing of the Joint Plan and the bankruptcy court's confirmation order, the disposition of executory contracts remained an unresolved issue in the bankruptcy. On February 16, 1996 — the same day on which the Joint Plan was filed — Luke Records filed a motion pursuant to 11 U.S.C. § 365 to determine its ability to assume and assign various contracts it characterized as executory, including "Debtor's Exclusive Recording Agreement with: Poison Clan." According to the motion, "[a] material provision of [the Joint Plan and Letter of Intent] will be the assumption and ultimate assignment of the executory contracts described" to Lil' Joe Records, Inc. and Weinberger. Apparently, however, in the weeks that followed, Weinberger thought better of that aspect of the Plan, opting instead to exercise the discretion given to him in the Letter of Intent and direct Luke Records to reject the contracts. On March 21, 1996, the bankruptcy court entered an order withdrawing without prejudice Luke Records' motion to assume and assign the contracts; setting the confirmation hearing date as the intended deadline for any other motions to assume executory contracts; and reiterating that "[a]ny contracts not assumed will be deemed rejected."

On March 22, 1996, the bankruptcy court approved and confirmed the Joint Plan and Letter of Intent, ordering that "the parties are authorized and directed to perform thereunder" ("the Confirmation Order"). The order recites various findings required for plan confirmation under 11 U.S.C. § 1129, including that the Joint Plan was proposed in good faith, that it complied with the applicable provisions of the bankruptcy code, and that "[t]he sale of Debtors' assets to Joseph Weinberger and Lil' Joe Records, Inc. . . . pursuant to the terms of the Plan and the Letter of Intent is in the best interest of each of the Debtors' estates . . . . [Weinberger and Lil' Joe Records, Inc. are] independent third-party purchaser[s] and the Letter of Intent was negotiated in good faith and at arms'-length." Among its specific mandates, the Confirmation Order provides:

[A]ll executory contracts and unexpired leases of the Debtors are hereby rejected pursuant to Section 365(a) of the Bankruptcy Code. Parties to such rejected contracts and leases are directed to file proofs of claim for rejection damages . . . or be forever barred from asserting such claims . . . . All of the assets to be transferred under the Plan, the Letter of Intent or this Order shall . . . be transferred free and clear of any interest in such property of an entity other than the Debtors.

Following the plan confirmation, the bankruptcy court issued orders in both bankruptcy cases setting bar dates for claims arising from rejected executory contracts. The order in the Luke Records bankruptcy, issued on April 4, 1996, provided that "[a]ll of the Debtor's executory contracts . . ., including those exclusive recording contracts known to the Debtor shown on Exhibit `A' attached hereto and incorporated herein by reference . . . are rejected." The first artist listed on "Exhibit A" was Poison Clan. Parties to the rejected contracts were allowed thirty days to file "any claims arising as a result of such rejection," and claims not timely filed were to be "deemed waived and will not be entitled to distribution under the confirmed Joint Plan." Thompkins did not file any proof of claim for rejection damages.

As a final step in the reorganization process, the parties executed the various transactions required under the Plan. Among these was a copyright assignment to Lil' Joe Records, Inc. of "all of [Luke Records', Campbell's and Pac Jam's] portion of all rights, title and interest set forth in and to the musical compositions, comprising 100% of all worldwide rights owned by [Luke Records, Campbell and Pac Jam] . . . including but not limited to the lyrics, music, and title of the compositions, and any and all works derived therefrom, together with the copyrights and proprietary rights therein." The copyright assignment was executed on April 8, 1996.

Nearly six years later, on March 5, 2002, Thompkins filed the instant suit against Lil' Joe Records, Inc., Lil' Joe Wein Music, Inc., and Weinberger (hereinafter collectively, "Lil' Joe") in the U.S. District Court for the Northern District of Georgia seeking damages, declaratory relief, and permanent injunctive relief for alleged violations of the Copyright Act, 17 U.S.C. § 501, Lanham Trademark Act, 15 U.S.C. §§ 1114, 1125, and state common law contract claims. Later that year, the case was transferred to the Southern District of Florida, where Thompkins filed an amended complaint on November 7, 2002 adding a claim of fraud under Florida common law. The parties conducted discovery and filed opposing motions for summary judgment. On March 16, 2004, after a hearing on the motions for summary judgment, a magistrate judge issued a report and recommendation that both motions be denied. Lil' Joe objected to the magistrate report. On December 7, 2004, the district court declined to adopt the report, granted Lil' Joe's motion for summary judgment on the ground that the earlier bankruptcy Confirmation Order precluded Thompkins's claims, and denied Thompkins's motion for summary judgment. The district court entered final judgment for Lil' Joe on December 16, 2004. Thompkins now appeals, challenging the district court's order granting Lil' Joe's motion for summary judgment.

We review de novo a grant of summary judgment, applying the same standard as the district court and reviewing all facts and reasonable inferences in the light most favorable to the nonmoving party. Calhoun v. Lillenas Publ'g, 298 F.3d 1228, 1232 (11th Cir.2002). Summary judgment is proper when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

The district court granted summary judgment in favor of Lil' Joe on the ground that the bankruptcy court's Confirmation Order precluded all of Thompkins's claims in the district court. Neither the parties nor the district court, however, refer to the precedent of this circuit governing the preclusive effect of bankruptcy orders in subsequent collateral litigation. See, e.g., Eastman Kodak Co. v. Atlanta Retail, Inc. (In re Atlanta Retail, Inc.), 456 F.3d 1277 (11th Cir.2006); Kaiser Aerospace & Elecs. Corp. v. Teledyne Indus., Inc. (In re Piper Aircraft Corp.), 244 F.3d 1289 (11th Cir.2001); Wallis v. Justice Oaks II, Ltd. (In re Justice Oaks II, Ltd.), 898 F.2d 1544 (11th Cir.1990). We think it less than clear whether the Confirmation Order precludes altogether Thompkins's claims in this case, but we find it unnecessary to enter that thicket in our review. The essence of the parties' quarrel on appeal is how certain assets were disposed of in the bankruptcy; both Thompkins and Lil' Joe now contend that the bankruptcy reorganization gave them ownership over these assets or other collateral rights. Although both parties couch their arguments in terms of "res judicata," their dispute is not simply whether Thompkins's claims were precluded before he even came through the courthouse door to file the instant complaint. Instead, this case depends upon the substance of the bankruptcy reorganization of Luke Records.

Accordingly, we decline to re-examine the grant of summary judgment on preclusion grounds, but we consider instead the merits of the parties' respective arguments, as we may do in our review on appeal. See Lucas v. W. W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir.2001) (holding that a judgment can be affirmed on appeal "on any ground that finds support in the record," including alternate grounds for summary judgment (quoting Jaffke v. Dunham, 352 U.S. 280, 281, 77 S.Ct. 307, 308, 1 L.Ed.2d 314 (1957))). In the sections that follow, we examine each of Thompkins's claims or related group of claims under the Copyright Act, the Lanham Act, Florida contract law, and Florida tort law of fraud, respectively.9

Thompkins first asserts a claim of infringement under the Copyright Act, 17 U.S.C. § 501,10 alleging that Lil' Joe has illegally exploited copyrights owned by Thompkins in dozens of songs that he authored and performed on recordings.11 Thompkins created and performed these compositions either for his Poison Clan records under the 1989 Agreement ("the Poison Clan Songs") or in collaboration with Luther Campbell for use on records Campbell released as a performer ("the Campbell Songs"). We examine separately the copyright claims on the Poison Clan Songs and the Campbell Songs.

With regard to the Poison Clan Songs, Thompkins argues that any copyrights he transferred to Luke Records under the 1989 Agreement reverted to his ownership when Luke Records rejected the Poison Clan contracts as executory under the bankruptcy Joint Plan.12 Thompkins further argues that, upon reversion of the copyrights, those assets ceased to constitute part of the bankruptcy estate and thus were not transferred to Lil' Joe under the Joint Plan, notwithstanding the language of the Plan and the various supporting documents and bankruptcy orders suggesting that the copyrights were meant to be transferred. Accordingly, Thompkins argues, Lil' Joe infringed his copyrights when it exploited them after the plan confirmation. Lil' Joe disputes Thompkins's interpretation of the effect of the Joint Plan confirmation, arguing instead that Luke Records' ownership of the copyrights was unaffected by its rejection of any contracts. Thus, Lil' Joe contends, those copyrights were transferred to Lil' Joe among other Luke Records assets disposed of by the terms of the Joint Plan.

The terms of the 1989 Agreement clearly transferred ownership of the disputed copyrights to Luke Records in the course of its business relationship with Thompkins, well before the bankruptcy. The parties now dispute the effect on copyright ownership caused by Luke Records' rejection of the 1989 Agreement in the bankruptcy as an executory contract pursuant to 11 U.S.C. § 365.13 Because post-bankruptcy ownership of the copyrights determines Thompkins's ability to assert copyright claims on the Poison Clan Songs in this suit, we must decide whether Luke Records' rejection of the 1989 Agreement had any effect on Luke Records' — or, more precisely, its bankruptcy estate's — continued ownership of those copyrights in the bankruptcy.

We hold that the rejection of the 1989 Agreement did not cause ownership of the Poison Clan Song copyrights to revert to Thompkins; thus, the copyrights properly passed into Luke Records' bankruptcy estate and from there were legally assigned to Lil' Joe. In essence, Thompkins asks this court to deem an executory contract rejection under § 365 to be the functional equivalent of a rescission, rendering void the contract and requiring that the parties be put back in the positions they occupied before the contract was formed.14 This is not the purpose of § 365, nor does Thompkins cite any authority to show otherwise.

In support of his argument, Thompkins relies on the proposition that a debtor cannot accept only the benefits of an executory contract while eschewing the burdens. See, e.g., In re Beverage Canners Int'l Corp., 255 B.R. 89, 95 (Bankr. S.D.Fla.2000); 3 Collier on Bankruptcy § 365.03[1] (15th ed. rev.2005). He also correctly observes that § 365 of the bankruptcy code ordinarily deems rejection of an executory contract to be "a breach of such contract . . . immediately before the date of the filing of the [bankruptcy] petition." 11 U.S.C. § 365(g); see also Cohen v. Drexel Burnham Lambert Group, Inc. (In re Drexel Burnham Lambert Group, Inc.), 138 B.R. 687, 711 (Bankr.S.D.N.Y. 1992). Thompkins apparently concludes that because Luke Records' rejection of the 1989 Agreement constituted a pre-petition breach of that contract, that event somehow reverses any transfer of asset ownership previously carried out by the rejected contract. In other words, Luke Records' rejection of the "burdens" of the 1989 Agreement prevents Luke Records from keeping the "benefits," which, in Thompkins's view, are the copyrights Luke Records received.

It is true that a debtor must either assume an executory contract in its entirety or completely reject it, see Byrd v. Gardinier, Inc. (In re Gardinier, Inc.), 831 F.2d 974, 975 (11th Cir.1987), but Thompkins misunderstands the implications of rejection under § 365. Thompkins's argument basically calls for an interpretation of rejection as an outright dissolution of the contract. But rejection "does not embody the contract-vaporizing properties so commonly ascribed to it . . . . Rejection merely frees the estate from the obligation to perform; it does not make the contract disappear." In re Drexel Burnham Lambert Group, Inc., 138 B.R. at 703. More specifically, "[r]ejection has absolutely no effect upon the contract's continued existence; the contract is not cancelled, repudiated, rescinded, or in any other fashion terminated." Id. at 703 (quotations omitted); see also Eastover Bank for Savings v. Sowashee Venture (In re Austin Dev. Co.), 19 F.3d 1077, 1082 (5th Cir.1994) (holding that rejection under § 365(g) "does not mean that the executory contract . . . has been terminated, but only that a breach has been deemed to occur"); O'Neill v. Cont'l Airlines, Inc. (In re Cont'l Airlines), 981 F.2d 1450, 1459 (5th Cir.1993) ("To assert that a contract effectively does not exist as of the date of rejection is inconsistent with deeming the same contract breached."); cf. Enter. Energy Corp. v. United States (In re Columbia Gas Sys., Inc.), 50 F.3d 233, 239 n. 8 (3d Cir.1995) ("Rejection, which is appropriate when a contract is a liability to the bankrupt, is equivalent to a nonbankruptcy breach.").

The Drexel Burnham Lambert Group case, cited by Thompkins himself, presents a useful illustration of what a § 365 rejection does and does not affect. The corporate debtor, in an attempt to avoid its prospective obligations to compensate its former general counsel under the terms of an employment agreement, sought to reject the agreement as executory under § 365. In re Drexel Burnham Lambert Group, Inc., 138 B.R. at 694-95. Among the compensation provided for in the agreement were various monetary payments, plus three stock portfolios purchased by the former general counsel from the debtor upon execution of the agreement and held in escrow for future disbursement. Id. at 692. The debtor claimed that by rejecting the employment contract — the means by which the stock portfolios were purchased and escrowed by the general counsel — the debtor "pull[ed] the plug" on the general counsel's rights to the escrowed portfolios. Id. at 695.

The bankruptcy court granted the debtor's motion to reject the contract, resulting in a prepetition breach under the terms of § 365(g) and converting the monetary balance owed to the general counsel into "a general unsecured claim that can be paid in `tiny Bankruptcy Dollars.'" Id. at 711 (citation omitted). As to the stock portfolios, however, the court "repudiate[d] Debtor's contention that rejection vaporizes or otherwise avoids [the general counsel's] interest in the escrowed funds." Id. The terms of the agreement gave the general counsel "both legal title and the equitable interest" in the escrowed stock, and the only right the debtor company retained in the stock upon execution of the agreement was a contingent interest subject to a condition subsequent, which ultimately never materialized. Id. at 710. When the condition subsequent became moot, the general counsel "became entitled to immediate possession" of the stocks, and that possession was unaffected by the rejection of the contract. Id.

Like the debtor in Drexel Burnham Lambert Group, Thompkins argues that Luke Records "pulled the plug" on its own claim of ownership over the copyrights when it rejected the contract; thus, he contends, the copyrights could not have been assigned to Lil' Joe out of Luke Records' estate. But like the bankruptcy court in Drexel Burnham Lambert Group, other courts have observed that rejection differently affects the unperformed portions of an executory agreement and those provisions of the agreement that, by their nature, are fully executed. See Rudaw/Empirical Software Prods. Ltd. v. Elgar Elecs. Corp. (In re Rudaw/Empirical Software Prods. Ltd.), 83 B.R. 241, 246 (Bankr.S.D.N.Y.1988); In re Executive Tech. Data Sys., 79 B.R. 276, 282 (Bankr. E.D.Mich.1987) ("Section 365 addresses only future performance obligations of the parties. It does not have any impact upon the executed portions of a contract."); cf. Leasing Serv. Corp. v. First Tenn. Bank Nat'l Ass'n, 826 F.2d 434, 436-37 (6th Cir.1987) (holding that a security interest, which was created by covenant in an executory agreement, was fully vested and thus non-executory, leaving it unaffected by the bankruptcy trustee's rejection of the executory agreement) (citing Jenson v. Cont'l Fin. Corp., 591 F.2d 477, 482 (8th Cir. 1979)). The rejection of a pre-petition executory contract pursuant to which the debtor acquired property does not obligate the debtor to return the property. In re Executive Tech. Data Sys., 79 B.R. at 282; see also In re Rudaw/Empirical Software Prods. Ltd., 83 B.R. at 245-46 ("[T]he debtor cannot undo an executed sale of property where title has passed. Such property does not revert . . . as a result of the debtor's rejection of the executory contract."); In re DMR Fin. Servs., Inc., 274 B.R. 465, 472 (Bankr.E.D.Mich.2002) (dictum); cf. Fain v. Irving Trust Co. (In re Waterson, Berlin & Snyder Co.), 48 F.2d 704, 710 (2d Cir.1931) (holding that where copyright assignments from composers to debtor "were absolute," "title is in the bankrupt estate . . . . The composers cannot object if the trustee sells the copyrights").

There is no debate that Thompkins's transfer of his copyrights to Luke Records under the 1989 Agreement was an executed sale of property. The terms of the Agreement leave Thompkins not even so much as a contingent interest in the copyrights. Nor did Thompkins negotiate any specific requirements for the sale or promotion of his records; Luke Records needed only to "commercially release" each record, which it undisputedly did, and all matters of business judgment in such efforts were reserved to Luke Records and binding on Thompkins. To the extent the 1989 Agreement was "executory," in the sense of not being fully executed, it was only insofar as Luke Records was required to pay Thompkins royalties based on any future sales of his records. The transfer of the copyrights was fully executed, however, and Luke Records held full legal and equitable title under the terms of the Agreement.

Thus, when the bankruptcy court approved the rejection of the Agreement, it freed Luke Records from the obligation, or "burden," to pay royalties under the contractual terms and gave Thompkins a pre-petition claim for damages resulting from the breach. See In re Gardinier, Inc., 831 F.2d at 976 n. 2; In re Austin Dev. Co., 19 F.3d at 1082; In re Drexel Burnham Lambert Group, Inc., 138 B.R. at 711. It also would have released Thompkins from any outstanding obligation to perform under the Agreement — i.e., to convey any as-yet unrealized "benefit" to Luke Records. But the bankruptcy court's Confirmation Order did not effectively rescind the 1989 Agreement and reverse the executed transfer of the Poison Clan Song copyrights to Luke Records. The rejection had no effect on Luke Records' ownership of the copyrights, and they passed from the estate to Lil' Joe under the terms of the Joint Plan and Confirmation Order (and the later documents executing the agreed upon and confirmed terms of the reorganization). Accordingly, Thompkins cannot support a claim of copyright infringement against Lil' Joe as to the Poison Clan Songs, and we affirm the grant of summary judgment on that claim in favor of Lil' Joe.

Thompkins's complaint also alleges copyright infringement as to songs that he created and performed in collaboration with Luther Campbell for use on Campbell's records. In his amended complaint, Thompkins alleges that he granted Luke Records only "a non-exclusive license to exploit his performances" on these Campbell Songs in exchange for royalties, and that the four Sideman Agreements he signed regarding these songs did not "transfer any of Plaintiff's ownerships [sic] interests in the copyright in either the sound recordings or the compositions." There is scant evidence in the record pertaining to the Campbell Songs, and none of it appears to address ownership of copyrights, whether in the sound recordings or musical compositions. Presumably, under 17 U.S.C. § 201(a), Thompkins was at least a co-owner of the copyrights in joint works to which he contributed.

But whether or not Thompkins might have been able to make out a claim of infringement on the Campbell Songs, he does not specifically address that claim in his arguments on appeal. Accordingly, we determine that the claim is waived, and we do not consider it here. See Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1542 (11th Cir.1994) ("Issues that clearly are not designated in the initial brief ordinarily are considered abandoned."). Although Thompkins filed a general notice of appeal from the entry of final judgment on all his claims, and "[a]lthough we have a practice of reading briefs liberally to ascertain the issues raised on appeal," United States v. Milam, 855 F.2d 739, 743 (11th Cir.1988), under no fair reading of Thompkins's briefs could we conclude that he asserted on appeal an argument pertaining to his claim of infringement of the Campbell Songs. See id.

Thompkins has failed to mention these songs at all on appeal, and his initial brief's statement of the issues relevant to the copyright claims focus entirely on the effect of rejection under § 365. Based on the scant record regarding Thompkins's claim of infringement on the Campbell Songs, it appears his theory is that Luke Records never obtained any ownership interest in the Campbell Song copyrights in the first instance. If that were true (and we express no opinion either way on the issue), the Luke Records bankruptcy proceedings would be irrelevant to that claim. Thompkins would ostensibly have retained whatever ownership interest he originally had in the Campbell Song copyrights, and his infringement claim against Lil' Joe would be uncomplicated by the intervening transfer of assets through the bankruptcy and its attendant affects on the parties' rights to the assets. Because Thompkins chose to argue on appeal only his interpretation of the effects of rejection under § 365 — relevant only to those assets that might have transferred through the bankruptcy, i.e., the copyrights in the Poison Clan Songs — and because he nowhere mentions his claim regarding the Campbell Songs, we must deem that claim to be waived. See id. (deeming an untimely-raised alternate argument to be waived on appeal where, "[i]ntentionally or not, the appellants . . . took an `all or nothing' approach" by not appealing the district court's decision on the alternate ground).

In addition to his copyright claims, Thompkins alleges that Lil' Joe has violated provisions of the Lanham Trademark Act of 1946, ch. 540, 60 Stat. 427 (codified as amended in scattered sections of 15 U.S.C.). On appeal, Thompkins argues that Lil' Joe runs afoul of two separate provisions of the Act: 15 U.S.C. § 1114,15 dealing with trademark infringement, and 15 U.S.C. § 1125,16 dealing with false designation of origin. First, Thompkins's § 1114 claim was not properly raised in the district court, and thus we do not consider it here. Even a generous reading of Thompkins's amended complaint in light of liberal pleading rules reveals that the complaint nowhere states a claim under § 1114. The complaint never so much as mentions the word "trademark," let alone alleges that Thompkins owns one and that Lil' Joe used it in an infringing manner. Thompkins apparently first attempted to assert his would-be § 1114 claim in his response to Lil' Joe's motion for summary judgment. This is procedurally improper; at the summary judgment stage, Thompkins should have sought to amend his complaint in accordance with Federal Rule of Civil Procedure 15(a) if he wished to add a claim. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.2004).17

We dispose just as easily of Thompkins's § 1125 claim for false designation of origin. Thompkins essentially claims that by selling copies of records that he wrote and performed, Lil' Joe is falsely designating itself the "origin" of those "goods," in contravention of the statute. Thompkins does not allege that Lil' Joe is selling his records under someone else's name — i.e., passing off his works as those of another artist — but simply that Lil' Joe is selling copies of Thompkins's works with Lil' Joe indicated as the creator of the actual physical records. The Supreme Court has explicitly held that such conduct does not give rise to a claim under § 1125. Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 37-38, 123 S.Ct. 2041, 2050,