Day on Torts
An email from a music publisher to a license company requesting that royalties from certain songs be credited to the publisher did not fall within the protections of the U.S. Constitution, and the Tennessee Public Protection Act therefore did not apply.
In 4U2ASKY Entertainment, Inc. v. Offor, No. M2023-00238-COA-R3-CV (Tenn. Ct. App. Mar. 9, 2026), the plaintiff music publisher sued the defendant musician for breach of contract. After lengthy litigation, the musician eventually filed for bankruptcy, which prompted the negotiation of an agreed order stating that the publisher had all right and title to music created by the musician from August 18, 2015, through December 15, 2017.
The publisher subsequently sent a letter to a licensing company stating that it owned “100%…rights in the songs written…, performed, etc., of Blessing Offor…” The publisher attached the agreed order to this letter. The musician, however, provided the licensing company a list of the songs that were actually included within the time limitations of the agreed order. The licensing company wrote back to the publisher expressing concerns with its earlier communication and stating that only the songs identified by the musician would be transferred to the publisher’s ownership.
After receiving this letter, the publisher filed this suit against the musician. The musician filed a counterclaim for tortious interference with prospective business relationships. The publisher then filed a petition to dismiss the counterclaim under the Tennessee Public Protection Act (TPPA), arguing that the tortious interference claim was connected to the publisher exercising its right to free speech. The trial court denied the TPPA petition to dismiss, and in a very lengthy opinion, the Court of Appeals affirmed.
The Court of Appeals explained that “this case centers upon whether [the publisher’s] communication with [the licensor] was an exercise of [the publisher’s] free speech rights.” The TPPA provides that “’the exercise of the right of free speech’ means a communication made in connection with a matter of public concern or religious expression that falls within the protection of the United States Constitution or the Tennessee Constitution.” (quoting Tenn. Code Ann. § 20-17-103(3)).
The TPPA defines “matter of public concern,” and it specifically includes “an issue related to…a literary, musical, artistic, political, theatrical, or audiovisual work[.]” Tenn. Code Ann. § 20-7-103(6). The Court noted that “matters of public concern are broadly defined under the statute,” and that it had previously “reject[ed] a narrower interpretation of matter of public concern than the one provided to us by the clear statutory language of the TPPA.” (internal citations omitted). Ultimately the Court agreed that the letter at issue here was related to a matter of public concern as defined by the TPPA, finding that the Court could not “say that a communication asserting ownership of a musical work is not related to that musical work; it plainly is.”
For the TPPA to be applicable, the communication also had to “fall within the protection of the United States Constitution or the Tennessee Constitution.” There was no assertion that the letter was protected by the Tennessee Constitution, so the only analysis on appeal surrounded the protections of the First Amendment to the U.S. Constitution. The Court spent sixteen pages analyzing this issue. The Court looked to caselaw surrounding commercial speech and the First Amendment, but also pointed out that “it has never been the law that criminal or tort liability may be avoided merely because the wrongdoer uses speech to accomplish his illicit purpose.” (internal citation omitted). The Court also explained that there is a difference in the interpretation of “matters of public concern” as it relates to the TPPA and the U.S. Constitution.
Regarding the tort of intentional interference with business relationships, the Court explained that “the tort is addressed to improper conduct extending beyond the bounds of doing business in a freely competitive economy.” (internal citation omitted). Looking to the facts of this case, the Court wrote:
The written words at issue in the present case are a private communication by [the publisher] to [the licensor] directing it to switch to whom it distributes royalty payments for the performances of certain songs. While accomplished through written words, this communication appears to be more of an act, switching the recipient of royalties, than it is speech as understood and protected under the First Amendment.
Although the Court found that this case was essentially based on business conduct, it nonetheless considered whether it should be pulled under the First Amendment protections as commercial speech. The Court rejected that argument, stating that “if the commercial speech is false, deceptive, or misleading, or proposed an illegal transaction, then it is outside the protective shield of the First Amendment.” (internal citation). The letter here was misleading at best, and the First Amendment did not apply.
Having reviewed all the arguments, the Court ruled that the speech, which was more aptly described as conduct, was not protected by the First Amendment. Because the letter at issue did not fall within the ambit of the U.S. Constitution, denial of the TPPA petition was affirmed.
The Court also affirmed the denial of attorney’s fees to the non-moving party, finding that the trial court did not abuse its discretion in determining that the TPPA petition was not frivolous.
This opinion is extensive and delves deeply into the intersection of the TPPA, commercial speech, and the protections of the U.S. Constitution. Litigants dealing with TPPA petitions that might be decided based on whether the speech at issue is protected by the First Amendment should read this opinion.
This opinion was released two years after oral arguments in this matter.