DENISE COTE, District Judge.
Zacharia L. Edwards, Mitch Moses, and Vince McCLean (collectively, the "Plaintiffs") bring this action against Usher Raymond IV ("Usher"), Sony Music Entertainment ("Sony"), and other related music industry defendants
The following facts are undisputed or taken in the light most favorable to the Plaintiffs. The Plaintiffs are music composers. In 2002, they composed an original musical composition entitled "Caught Up." They filed an application for copyright registration of that song on May 15, 2012. In October of 2002, Michael Barackman, a Senior Director of Artist and Repertoire at Arista Records, Inc.—a now defunct record label that was previously a Sony subsidiary
The Plaintiffs contend that Usher began work on his album "Confessions" in late 2002. On March 23, 2004 Usher released "Confessions," which included as a track the Challenged Song, also entitled "Caught Up." The album and the Challenged Song achieved great popularity. The Challenged Song peaked at number eight on the U.S. Billboard "Hot 100" Chart.
On November 7, 2013, the Plaintiffs filed this lawsuit. This is the second lawsuit filed in this district against Usher alleging copyright infringement in connection with the Challenged Song. The first action, brought by different plaintiffs, was resolved by Opinion and Order of May 19, 2011 in Pyatt v. Raymond, 10 Civ. 8764(CM), 2011 WL 2078531 (S.D.N.Y. May 19, 2011). In Pyatt, the court dismissed the copyright action, finding that the plaintiffs' songs lacked the requisite "substantial similarity" to the Challenged Song under the "ordinary observer" test to constitute unlawful copying. Id. at *1; see Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 66 (2d Cir. 2010).
Usher and Sony moved to dismiss the complaint in this action on January 16, 2014. They attached with their motion an exhibit consisting of a side-by-side comparison of the lyrics of the Plaintiffs' Song and the Challenged Song. They also attached as exhibits two compact disks, containing, respectively, each song. The motion was fully submitted on March 14.
When deciding a motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P., a court must "accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor." LaFaro v.
"For purposes of a motion to dismiss, we have deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference, as well as. . . documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit." Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (citation omitted). Although the Plaintiffs did not attach copies of the lyrics and audio recordings of the two songs, the Plaintiffs clearly relied upon those materials in bringing this suit. Accordingly, this Court will consider them in connection with this motion to dismiss.
The Defendants contend that the Plaintiffs' copyright infringement claim must be dismissed because the Plaintiffs' Song and the Challenged Song share no protectable expression and are not "substantially similar." See Peter F. Gaito Architecture, 602 F.3d at 66. They also contend that the lawsuit is barred by the doctrine of laches because the Plaintiffs waited nearly eight and a half years from the accrual of their claim to file this action. See generally Petrella v. Metro-Goldwyn-Mayer, Inc., ___ U.S. ___, 134 S.Ct. 1962, 188 L.Ed.2d 979 (2014). Finally, they contend that the breach of contract claim should be dismissed because the Plaintiffs have not adequately alleged the existence of a contract and that in any event their breach of contract claim is either time barred or void under the statute of frauds. Because the two songs are not substantially similar as a matter of law, the copyright claim is dismissed and it is unnecessary to reach the issue of laches. The Court declines to exercise supplemental jurisdiction over the state law breach of contract claim.
A plaintiff asserting a copyright infringement claim must show: "(i) ownership of a valid copyright; and (ii) unauthorized copying of the copyrighted work." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003). The Defendants do not contest that the Plaintiffs have a valid copyright in their work. "To demonstrate unauthorized copying, the plaintiff must first show that his work was actually copied; second, he must establish `substantial similarity' or that the copying amounts to an improper or unlawful appropriation. . . ." Tufenkian Imp./Exp. Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 131 (2d Cir. 2003) (citation omitted). "Actual copying may be established by direct or indirect evidence." Boisson v. Banian, Ltd, 273 F.3d 262, 267 (2d Cir.2001) (citation omitted). "The plaintiff then must show that the copying amounts to an improper or unlawful appropriation by demonstrating that substantial similarities relate to protectable material." Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139-40 (2d Cir. 1992) (citation omitted).
Because the Plaintiffs' Song is not "substantially similar" to the Challenged Song, the Plaintiffs' copyright infringement claim fails. As a result, it is unnecessary to reach the question of whether the Plaintiffs have adequately pled actual copying.
The standard for the substantial similarity inquiry is well established:
Peter F. Gaito Architecture, 602 F.3d at 66 (citation omitted).
Id. (citation omitted).
Id. (citation omitted).
It is a fundamental principle of copyright law that "the similarity between two works must concern the expression of ideas, not the ideas themselves. This principle, known as the `idea/expression dichotomy,' assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work." Id. at 67 (citation omitted). Consequently, a court "must decide whether the similarities shared by the works are something more than mere generalized idea or themes." Walker v. Time Life Films, Inc., 784 F.2d 44, 48-49 (2d Cir. 1986) (citation omitted).
In the context of a case alleging music plagiarism, the claimant is constrained to prove that defendant took from plaintiff's works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such music is composed, that defendant wrongfully appropriated something which belongs to the plaintiff.
Repp v. Webber, 132 F.3d 882, 889 (2d Cir.1997) (citation omitted).
A district court in the Second Circuit may resolve a "substantial similarity" challenge on a Rule 12(b)(6) motion to dismiss. "[I]t is entirely appropriate for the district court to consider the similarity between those [relevant] works in connection with a motion to dismiss, because the court has before it all that is necessary in order to make such an evaluation." Peter F. Gaito Architecture, 602 F.3d at 64. "When a court is called upon to consider whether the works are substantially similar, no discovery or fact-finding is typically necessary, because what is required is only a . . . comparison of the works." Id. (citation omitted). "If, in making that evaluation, the district court determines that the two works are not substantially similar as a matter of law, the district court can properly conclude that the plaintiff's complaint, together with the works incorporated therein, do not plausibly give rise to an entitlement of relief." Id. (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937).
As an initial matter, the phrase "caught up," which is the title of both the Plaintiffs' Song and the Challenged Song, is not eligible for copyright protection. It
It is true, however, that an original arrangement of unprotectable material can be protected by the copyright laws. "[E]ven a directory that contains absolutely no protectible written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement." Feist Publ'ns, 499 U.S. at 348, 111 S.Ct. 1282. The Plaintiffs contend that the Defendants copied the "manner" in which the Plaintiffs used the phrase "Caught Up" in their song. They argue that the Plaintiffs' use of the phrase is one example of the Defendants' misappropriation of a number of expressive elements of the Plaintiffs' Song which together suffice to render the Challenged Song "substantially similar." This allegation will be addressed below in conjunction with the Plaintiffs' other contentions of substantial similarity between the two songs.
The Plaintiffs devote ten paragraphs of their complaint to allegations of similarity between their song and the Challenged Song. Four of those allegations are addressed to similarities in the ideas expressed by the two songs, which are not copyrightable as a matter of law. See id. at 344-45, 111 S.Ct. 1282 ("The most fundamental axiom of copyright law is that no author may copyright his ideas or the facts he narrates." (citation omitted)). Those allegations include: 1) that both songs use the phrase "caught up" to "tell the same story [of] a man who is becoming so involved with a woman to become oblivious to the reality of the situation;" 2) that the "themes" of both songs "depict a man caught up in a lost love;" 3) that "the male singer is shocked by the state of his woman's grasp on him;" and that 4) both songs end with expressions "that the male singer is in a total state of confusion."
The latter two allegations also contain quotes from the lyrics in the two songs expressing the ideas in question. If the quotes were intended to show similarity of expression, they fail to do so. With respect to the first, the singer's shock at a woman's "grasp on him" is expressed in the Plaintiffs' Song as "I can't believe it." In the Challenged Song, it is expressed as "I can't believe it, but it seems she's got me twisted." "I can't believe it" is a commonplace phrase ineligible for copyright protection. See Acuff-Rose Music, 155
Two of the remaining six allegations of similarity in the Plaintiffs' complaint state, respectively, a legal conclusion that "an ordinary lay observer . . . [would] find that the songs are substantially similar and that an infringement has occurred," and the Plaintiffs' contention that "upon hearing the two (2) musical compositions at issue, several individuals have informed Plaintiffs that, in their lay opinions, Defendants have copied Plaintiffs' musical composition." A court is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. And the Plaintiffs' contention that "several individuals" have told them that the two songs are similar is not entitled to significant weight.
The remaining four allegations of similarity between the two songs in the Plaintiffs' complaint allege similarities in copyrightable expression. But, they still do not suffice to state a plausible claim of substantial similarity. The Plaintiffs contend that: 1) the "[t]he theme, melody, hook, lyrics, and chorus of the musical compositions are substantially similar;" that 2) the two songs "begin similarly, with each respective singer building the song and then leading into the first verse, which introduces the plot of the composition, a man caught up in lost love; that 3) "[t]he choruses of the two . . . musical compositions are similarly arranged. Both musical compositions have one line, followed by the phrase, `Caught Up,' which is then followed by one line and the phrase, `Caught Up';" and that (4) "the songs "end with similar lyrics expressing . . . confusion. . . . In Plaintiffs' musical composition . . . the composition ends with the lyric, "She's messing with my mind." Comparably, Usher's version . . . ends with the lyric, "I'm losin' control, this girl's got a hold on me."
These four allegations do not plausibly plead substantial similarity. The first is a bare legal conclusion. The second contends first that both songs "build the song and lead[ ] into the first verse," which is a necessary and non-copyrightable part of nearly any song, and second that it introduces the idea of a man in love, which is an non-protectable idea. The third contention fails because, as explained above, the phrase "caught up" is a common phrase not eligible for copyright protection. Putting the phrase "caught up" in a chorus and situating it between two other lines is not an "original contribution[ ]" eligible for protection by the copyright laws. Feist Publ'ns, 499 U.S. at 359, 111 S.Ct. 1282. Many choruses feature a phrase repeating on every other line. And the fourth allegation fails to show any similarity of expression. While the lyrics "she's messing with my mind," and "this girl's got a hold on me," both express the idea of a man under the influence of a woman, there is no overlap in the mode of expression of that idea. In sum, nothing in the Plaintiffs' complaint plausibly alleges copyright infringement.
The Plaintiffs argue that even if the "areas of similarity between the two songs at issue that Plaintiffs previously identified" do not independently plead substantial similarity, the Second Circuit requires
The Defendants argue vigorously that there is no substantial similarity in the music of the two songs. The Plaintiffs fail to respond to these arguments. The Defendants are correct, in any event.
A comparison of the sound recordings of the two songs confirms that their music is not substantially similar. There are a number of material differences. First, the Plaintiffs' Song is in significant part a rap song. The Challenged Song has no rapping; Usher sings all of the lyrics. The Plaintiffs' Song also consists of a duet including a male and a female singer, whereas the Challenged Song features a solo male lead singer. Moreover, the Challenged Song contains significantly sparser instrumentation backing the singers' vocals than does the Plaintiffs' Song. The Challenged Song also features "unmistakable Motown influences" influences, Pyatt, 2011 WL 2078531, at *9, whereas the Plaintiffs' Song does not. And the chorus, or hook, of each song, although both employing the phrase "Caught Up," feature entirely dissimilar melodies.
Finally, the "feel" of the two songs is dissimilar. The Plaintiffs' Song is an upbeat, optimistic song, whereas the Challenged Song has a contemplative, questioning feel. Because of these differences, the "total concept and overall feel" of the music in the two songs are different, and an average observer would not find that the Defendants have taken "from [P]laintiff[s'] works so much of what is pleasing to the ears of lay listeners . . . that [D]efendant[s] wrongfully appropriated something which belongs to the [P]laintiff[s]." Repp, 132 F.3d at 889 (citation omitted).
The lyrics of the two songs are also not substantially similar. Attached to this Opinion as an Appendix is a side by side comparison of the two songs' lyrics. The only significant point of overlap is the use of the phrase "caught up" in the chorus of each song. As explained above, that phrase is not copyrightable. Nor have the Defendants copied any original arrangement of that phrase that would constitute protectable expression. Beyond the phrase "caught up" there is no overlap between the lyrics of the two songs beyond commonplace words like "hit" "girl" and "control." Moreover, the Plaintiffs' Song's lyrics are structured as a back-and-forth between the male protagonist and the woman who is the object of his affections. The Challenged Song's lyrics do not contain any back-and-forth and consist solely of the male narrator telling his story.
Nor does the fact that both songs' lyrics tell the story of "a man caught up in love" save the Plaintiffs' claim. Themes are not independently protectable. Cf. Feist Publ'ns, 499 U.S. at 344-45, 111 S.Ct. 1282. And as explained above, the Plaintiffs have not shown any misappropriation of any protected expression of that theme through original arrangement or other contribution by the Plaintiffs. In sum, "an average lay observer would [not] recognize the alleged[ly] [copied lyrics] as having been appropriated from the copyrighted work." Peter F. Gaito, 602 F.3d at 67 (citation omitted).
The Plaintiffs also plead a breach of contract claim under state law. A federal district court's supplemental jurisdiction over state law claims is governed by 28 U.S.C. § 1367. Under that provision, a district court "may decline to exercise supplemental jurisdiction over a claim" if, inter alia, "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). "In deciding whether to exercise jurisdiction over supplemental state-law claims, district courts should balance the values of judicial economy, convenience, fairness, and comity—the `Cohill factors.'" Klein & Co. Futures, Inc. v. Bd. of Trade of City of New York, 464 F.3d 255, 262 (2d Cir. 2006) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988)). "It is well settled that where . . . the federal claims are eliminated in the early stages of litigation, courts should generally decline to exercise pendent jurisdiction over remaining state law claims." Klein & Co. Futures, 464 F.3d at 262.
Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Centers Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir.2013) (citation omitted).
The federal claim of copyright infringement having been dismissed, this Court declines to exercise supplemental jurisdiction over the state law breach of contract claim. This litigation is at an early stage; discovery has not yet commenced, and principles of judicial economy do not counsel in favor of the exercise of jurisdiction. Nor is there any reason grounded in principles of convenience, fairness, or comity to depart from the standard practice of declining to exercise jurisdiction over state claims once no federal law claims remain.
The Defendants' January 16, 2014 motion to dismiss is granted. The Clerk of Court shall close the case.
SO ORDERED.
Plaintiffs' Song Challenged Song
Female Rap Verse 1 Male Introduction
Aye yo, was it cool for you to be with Ohhh
her and me? G's up
Hey, what you doin' Ohhh
Is you tryin' to play with me? Ohhh
And is it wrong for me to put it on you G's up
And never call you Ohhh
Hit me e'ry day and I ignore you Ohhh
I don't wanna do that Ohhh
Too dime for that You know how I do
An' you too cute for me to wanna get If you pimpin' pop a bottle
down like that
Cause it's like that and that's the way Male Vocal/Verse 1
it is
Got you caught up in a girl I'm the kind of brother When I made your toes curl Who been doin' it my way Anything I want, anything I need Getting my way for years, in my career Anything I got, anything I see And every lover, y'all You got it for me In and out of my life And I saw it all when I made this man I've hit, loved, and left in tears cry Without a care Was the power of the p-u-s-s-y Male Vocal/Verse 1 Pre-Hook Almost every weekend, I'm in my spot Until I met this girl who turned the Getting' my groove on tables around Tryin' to make it pop She caught me by surprise and I never On this evening, the finest thing thought I'd be the one walked up to me Breakin' down I can't figure it out why And this is what she said I'm soFemale/Male Vocal (Alternating Lines) Hook Caught up You got that vibe about you Got me feelin' it Then I looked her up and down and said Caught up you too I don't know what it is but it seems Do you wanna take a ride, is that cool? She got me twisted I'm so Well I'm a man and she's a dime, what Caught up could I do? Got me feelin' it Caught upChorus I'm losing control, this girl's got A hold on me Now I'm caught up Yeah It's the jumpoff now (Caught up) Ohhh Bout to be on and poppin' (Caught up) Let me go baby Let's do the damn thing (Caught up) Ohhh Can't believe that Now listen Now I'm caught up Ohhh It's the jumpoff now (Caught up) Bout to be on and poppin' (Caught up)Male Vocal/Verse 2 Let's do the damn thing (Caught up) She's messin' with my mind My mama told me Be careful who you doMale Vocal/Verse 2 `Cause karma comes back around Same of song Jumped in her beamer But I was so sure Drove to her spot That it wouldn't happen to me Think I got it made `Cause I know how to put it down Cause damn the place was hot But I was so wrong Excused herself Came back lookin' just like a queenPre-Hook Straight Victoria magazine This girl was mean, (so mean) sheFemale/Male Vocal really turned me out Her body was so tight Can I get you a drink? I'm looking for her in the daytime And would you like to take a bubble With a flashlight bath with me? My homies say this girl is cramping Oh damn. What do you think? (she's cramping) my style I'm alive with her, And I can't figure it out Let's get this thing poppin' And I'm so
Chorus Hook Now I'm caught up Caught up It's the jumpoff now (Caught up) Got me feelin' it Bout to be on and poppin' (Caught up) Caught up Let's do the damn thing (Caught up) I don't know what it is but it seems Can't believe that She got me twisted I'm so Now I'm caught up Caught up It's the jumpoff now (Caught up) Got me feelin' it Bout to be on and poppin' (Caught up) Caught up Let's do the damn thing (Caught up) I'm losing control, this girl's got She's messin' with my mind A hold I'm soMale Vocal/Bridge Hook Used to be the one Caught up That's in control Really feelin' it But I'm not mad at all Caught up (hey hey) How you flipped the script on me I don't know what it is but it seems Whatever you wanna do She's got me twisted I'm so Girl, take me there (take me there) Caught up I'm with you Really feelin' it Female Rap Verse 2 Caught up Yo I got you caught up I'm losing control, this girl's got With this honey A hold on me You think its funny Ohhh You laughin' And I think I like it baby Still don't nuttin' move but the money Ohhh (move but the money) Oh no Let's get the jumpoff jumped off Ohhh You headed up north If you pimpin' pop a bottle I'm `bout to turn you around Ohhh, yeah, oh my You goin' downtown Can't stop You want it to pop? Hit the right spot If you pimpin' pop a bottle You ready to stop? No. Steady the flow This girl was mean, she really turned Gotta run, you wanna catch up to me Me out Who would you thought it would be Yeah, yeah, yeah, suga Sleep with a B-Y-M-B My homies say this girl is cramping my style (style) I'm soChorus (Repeated 3 Times) Now I'm caught upHook It's the jumpoff now (caught up) Bout to be on and poppin' (Caught up) Caught up Let's do the damn thing (Caught up) Caught up Can't believe that I don't know what it is (what it is) Now I'm caught up It's the jumpoff now but it seems (caught up) She got me twisted Bout to be on and poppin' (Caught up) I'm so Let's do the damn thing (Caught up) Caught up She's messin' with my mind Really feelin' it Caught up I'm losin' control, this girl's got A hold I'm so Hook Caught up I'm so Caught up
I don't know what it is but it seems She's got me twisted I'm Caught up Really feelin' it Caught up I'm losin' control, this girl's got A hold on me Ohhh Ohhh Ohhh Ohhh
