Talk about "Tardy for the Party."
More than three years after the song "Tardy for the Party" became an unlikely novelty dance hit for former "Real Housewives of Atlanta" cast member Kim Zolciak, producer and current RHOA cast member Kandi Burruss is suing Zolciak for not compensating her properly for her work.
In the lawsuit filed Tuesday in the United States District Court of the Northern District of Georgia, Burruss and co-writer Rodney Richards are seeking "damages for copyright infringement due to Defendants' unauthorized and unlawful licensing, distribution and sale of Plaintiffs' creative works, namely a sound recording embodying a performance of a musical composition entitled 'Tardy for the Party. ' "
The song, in which Zolciak's daughter Brielle gets songwriting credit, sold 102,000 copies, the lawsuit said.
This issue was a major plot point on the show season three, which aired in 2010 and 2011. On the show, Burruss complained that Zolciak hadn't paid her what she was due for her work producing and co-writing the song. The conflict was addressed yet again last year during the season four reunion show though it appeared Burruss was ready to put it behind her.
“That was a learning experience, but I feel like good things have come out of me working with her," Burruss told Bravo executive and reunion host Andy Cohen.
In past news stories, Burruss said she had been paid only a one-time $4,000 fee. According to a Hollywood Reporter story in 2011, Burruss "didn't have an agreement in place concerning royalties but also because she handed over rights to Bravo."
She added at the time: “I know Kim was new to the music industry so I don't feel like she was purposely trying to wrong me. I just think she was misinformed.”
In October, 2010, Burruss explained the situation on a Bravo blog.
I hardly got anything from "Tardy For The Party." That is the truth. I am not mad about it. I really blame myself, because I didn't handle my business correctly. The back story is that when we first did the song, I had Vito (the producer that helped me with the music) talk to Kim about how we would get paid. I didn't want to have that discussion with her because sometimes doing business can make a friendship uncomfortable. We had already signed a publishing split sheet that split the publishing (writer's royalty) equally between myself, Vito, her daughter, and Ed (the guy who wrote the country version). I totally wrote the version that everyone knows and is for sale all by myself, but since I took the title "Tardy For The Party" from the country version Kim originally had, I wanted to be fair and give Kim's daughter and Ed something. Okay, I hope y'all are following me.
When Vito talked to Kim the agreement was supposed to be that we were just going to split all the royalties from the song (not just the publishing royalties) equally. Mind you I wrote it, pulled in the people to get the music done, gave her free studio time, produced her vocals, etc. with no upfront fee. So I thought, "Cool, we can split the royalties equally, and it's all good." I didn't know if the song was going to make money or not, so I definitely didn't want to charge her all this money upfront not knowing if she would make any. As a friend I wouldn't do that. If it's just business I don't care, but it wasn't just business.
So when the money first came in, Kim gave me a check of a third of the money she had received at that point. Everything was cool, but then she came back to me a week later saying she was all upset because her attorney said she shouldn't have to pay me on the overall royalties, and that she should just pay me on part of the publishing royalties. She asked me for her money back. It kind of came off like she felt I was taking advantage of her. So it irritated me. Mind you, even though Kim and Vito verbally agreed to splitting all royalties, we never put that in writing. So I just gave her the money back. She gave me a much smaller check that her lawyer said I should receive, and I never got another check. Period. Even though the song has gained more royalties since then, and another dance version was released that I never received a publishing check from.
As a writer you're supposed to get paid everytime that song is played on radio and TV. Since I'm on this show, I allowed Real Housewives of Atlanta to play the song for free so that she could fully benefit off of the song getting played multiple times on our show. She doesn't have a major label pushing her song to radio, so she doesn't get the same airplay an artist that is on a major label gets. That's why I said, "If I would have given this song to another artist, I could have made way more money." Meaning I would have gotten royalties off of record sales, licensing fees from TV, radio airplay royalties, and I would have charged them a fee upfront. But it's ok, I am not mad. I will write many more songs that I can do that on. Kim just went along with what her lawyer said, which is what you should do in most cases. I should've put what our agreement was in writing from the begining so there wouldn't be any confusion. This situation in no way makes me have ill feelings towards Kim. The money won't make or break our bond. I just know going forward we have to treat business as business and friendship as friendship.
It was clear her agreement with Zolciak was a verbal agreement, not a written agreement. Question: was it an enforceable contract?
Later, Burruss recorded a second song with Zolciak, as chronicled on "Real Housewives of Atlanta" called "Ring Didn't Mean a Thing." But that song was never released. Burruss explains in a Bravo blog dated Dec. 3, 2012:
Kim and I have had a shaky relationship ever since the whole Tardy for the Party drama. People always ask, “Why do you never go hard on Kim like you do with NeNe?” Well Kim and I started off on the right foot. We became close quickly. Our daughters had become good friends, and we were taking multiple trips together and had lots of fun. I have made a vow to myself that I will never fall out with friends/family about money. So when she first came to me and said her attorney felt she didn’t have to split the royalties with Don Vito (the producer) and me, I was caught off guard. We never signed an agreement giving her rights to release the song. We could have easily had the song pulled, but I was like whatever at the time. I didn’t want to fall out about money. The problem was this became the topic of every discussion. So of course it became a problem. Then when she asked me to do the next song, Ring Didn’t Mean a Thing, I did it, but I was going to charge her up front instead of just agreeing to split whatever came from sales, which is what we said we were going to do the first time. She didn’t want to pay up front. You may get over once, but never twice. So I would never allow her to release the song. That’s why you never heard any more about it. That for me made the relationship more awkward. So the communication became less and less.
The song was recorded on April 30 and May 1 of 2009. Burruss also sued TuneCore, which distributes music to online retailers.
Zolciak has used "Tardy for the Party" as a catchphrase and it's the name of her upcoming spinoff show, debuting April 16 on Bravo, at 9 p.m., followed by Burruss' "The Kandi Factory" spinoff music show at 10 p.m.
Fellow "Real Housewives of Atlanta" cast mate Phaedra Parks is representing Burruss.
Coincidentally or not, Burruss, Zolciak and the other housewives are taping the reunion show this week, a source told me.