766 F. Supp. 2d 504
S.D.N.Y.2011Background
- Lessem and Johnson wrote Elevator (2002) and registered it with the Copyright Office on May 3, 2002; Elevator was not commercially distributed or widely released.
- How We Do (2004) was written by The Game, Dr. Dre, 50 Cent, and Michael Elizondo; it appeared on The Documentary (2005) and shares the phrase 'this is how we do' four times in each chorus with the same tempo.
- Plaintiffs claim access to Elevator via a close relationship between Pope and the How We Do Writers; Pope allegedly interacted with their music at Sam Ash and in Chung King sessions, though memories are contested.
- Jackson contributed the phrase 'this is how we do' to How We Do; Pope states no involvement, but there is evidence of a working relationship between Pope and How We Do Writers.
- BWS Defendants move for summary judgment arguing they do not own the copyright in How We Do and did not cause damages; Taylor asserts ownership of Black Wall Street entities, but the registration lists only individual authors.
- The court denies plaintiffs' and UMG Defendants' motions for summary judgment and grants BWS Defendants' motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Access proof sufficiency | Lessem/Johnson show Pope's access via intermediaries. | No clear evidence Pope heard Elevator; mere possibility inadequate. | Issue for jury; genuine dispute over access. |
| Probative similarity as copying evidence | Harrington's analysis shows substantial similarities in phrases and rhythm. | Harrington's methodology flawed; similarities are commonplace and not probative. | Jury questions remain; not suitable for summary judgment. |
| Improper appropriation viability | Combination of similar phrase, rhythm, and chorus repetition is protectible. | Phrase and rhythm are common; unprotectible; similarity insufficient. | Not conclusively unprotectible; reasonable jurors could find infringement. |
| Independent creation defense | Independent creation weak against the existing connections. | How We Do Writers independently created; declarations unrebutted. | Issues of independent creation factual; not suited for summary judgment. |
| BWS Defendants' ownership and damages | BWS entities owned by Taylor; liable for infringement. | BWS entities did not own copyrights or receive damages; no link. | BWS motion granted; no ownership or damages shown. |
Key Cases Cited
- Jorgensen v. Epic/Sony Records, 351 F.3d 46 (2d Cir. 2003) (ownership + copying proof required for infringement)
- Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (U.S. 1991) (copyrightability requires originality; minimal creativity)
- Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995) (unprotectible elements; originality in selection/arrangement)
- Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140 (2d Cir. 1998) (common phrases and unoriginal elements; protection limits)
- Repp v. Webber, 132 F.3d 882 (2d Cir. 1997) (probative similarity and expert testimony in copying analysis)