473 F.Supp.3d 288
S.D.N.Y.2020Background:
- Plaintiff Zoltan Krisko owns the copyright to the theme of the 1980s Hungarian TV show Linda (composer Gyorgy Vukan) and alleges the X-Men: The Animated Series opening theme copies Linda’s primary melodic subject.
- Defendants include media companies (Marvel, Fox, Disney, Chappell, BVT, NBC, Amazon, Apple), Saban founders Haim Saban and Shuki Levy, and composer Ronald A. Wasserman (a former Saban employee).
- Krisko filed a second amended complaint alleging striking similarity (melody, key, tempo, harmonization, instrumentation, and sound-effects placement) and relies partly on a Hungarian expert panel opinion.
- Defendants moved to dismiss; Wasserman moved to dismiss for lack of personal jurisdiction; other defendants moved under Rule 12(b)(6).
- The Court dismissed Wasserman for lack of personal jurisdiction and denied in part the motions to dismiss by finding Krisko plausibly pleaded striking similarity (excusing access) and preserved certain secondary-liability claims against Saban and Levy.
Issues:
| Issue | Krisko's Argument | Defendants' Argument | Held |
|---|---|---|---|
| Personal jurisdiction over Wasserman | Wasserman knew the theme would be exploited in New York and thus reasonably expected effects there | Wasserman had no purposeful contacts with NY; mere employment and downstream distribution to NY companies are too attenuated | Dismissed for lack of personal jurisdiction (C.P.L.R. §302 failure) |
| Adequacy of pleading copying (access vs. striking similarity) | Alleged the two works are "note by note" identical in subject and list multiple musical congruities; argues striking similarity excuses access pleading | Defendants say similarities are common/unprotectable musical features and Hungarian opinion is inadequate to show striking similarity | Complaint plausibly alleges striking similarity; pleading survives Rule 12(b)(6) (access need not be pleaded) |
| Wrongful copying / substantial similarity of protectible elements | Krisko alleges copied melodic subject and other elements that are protectible | Defendants contend similarities concern routine elements (key, tempo, common progressions) and differences undermine infringement | Court limited analysis to pleading stage and held Krisko plausibly pleaded probative/striking similarity; wrongful-copying merits discovery and factual development |
| Secondary liability (contributory and vicarious) | Seeks contributory and vicarious liability against Saban, Levy, Marvel, Chappell, Disney, BVT | Defendants argue complaint lacks factual allegations of knowledge, material contribution, or right/ability to supervise | Contributory and vicarious claims survive as to Saban and Levy; contributory/vicarious claims against Marvel, Chappell, Disney, BVT largely dismissed for lack of factual support |
Key Cases Cited
- Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30 (2d Cir. 2010) (prima facie showing required for personal jurisdiction at pleading stage)
- Fort Knox Music Inc. v. Baptiste, 203 F.3d 193 (2d Cir. 2000) (forum law governs personal jurisdiction in copyright cases)
- Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158 (2d Cir. 2005) (two-part analysis for personal jurisdiction in copyright disputes)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (apply plausibility standard; courts need not accept legal conclusions)
- Jorgensen v. Epic/Sony Records, 351 F.3d 46 (2d Cir. 2003) (access plus probative similarity; inverse relation between access and similarity)
- Repp v. Webber, 132 F.3d 882 (2d Cir. 1997) (striking similarity can excuse proof of access; focus on melody)
- Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95 (2d Cir. 2014) (ordinary observer test and need to focus on protectible elements)
- Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995) (substantial similarity is a legal question)
- Boisson v. Banian, Ltd., 273 F.3d 262 (2d Cir. 2001) (direct and circumstantial proof of copying)
- Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57 (2d Cir. 2010) (works attached to complaint control over contrary pleadings)