Nichols v. Club for Growth Action
235 F. Supp. 3d 289
| D.D.C. | 2017Background
- Roger Nichols (and Three Eagles Music) own copyrights to the song "Times of Your Life."
- Club for Growth Action aired a 30-second political ad in 2015 using the song’s musical composition unchanged while altering most lyrics; no license or permission was obtained.
- Plaintiffs sued for copyright infringement and Lanham Act false association/endorsement; initial suit in California was voluntarily dismissed and refiled in D.D.C.
- Club for Growth moved to dismiss under Rule 12(b)(6), arguing Plaintiffs plead facts showing fair use and that the Lanham Act claim fails because the ad is political (noncommercial) speech.
- The court denied dismissal of the copyright claim (declining to decide fair use on a motion to dismiss) and granted dismissal of the Lanham Act claim for failure to plead commercial speech or a goods/services connection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Copyright ownership and copying | Nichols/Three Eagles: own registered copyrights and Club copied original musical elements and some lyrics | Club: overlaps are minimal and fair use applies; lyrics differences defeat infringement | Court: Ownership and copying adequately pleaded; denied dismissal of copyright claim (fair use not decided at this stage) |
| Substantial similarity of lyrics | Plaintiffs: lyric changes still take from the "heart" of the work | Club: lyric differences show no protectable copying | Court: Substantial similarity is fact-intensive; not resolved on Rule 12(b)(6) |
| Fair use defense on motion to dismiss | Plaintiffs: fact question; premature to resolve fair use now | Club: complaint’s allegations show fair use, so dismissal is proper | Court: Fair use is mixed law/fact and not decided on motion to dismiss; declined to resolve |
| Lanham Act (false association/endorsement) | Nichols: ad implies endorsement/association; actionable under §1125(a) | Club: ad is political expression, not commercial speech connected to goods/services; Lanham Act inapplicable | Court: Dismissed Count II — Lanham Act covers only commercial speech; political ad not within §1125(a) |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state a plausible claim)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (legal conclusions not assumed true on a motion to dismiss)
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (elements of copyright infringement: ownership and copying of original elements)
- Campbell v. Acuff‑Rose Music, Inc., 510 U.S. 569 (1994) (fair use requires contextual, fact‑intensive analysis and focuses on transformativeness)
- Sturdza v. United Arab Emirates, 281 F.3d 1287 (D.C. Cir. 2002) (protectable expression and ordinary observer substantial similarity test)
- Farah v. Esquire Magazine, 736 F.3d 528 (D.C. Cir. 2013) (Lanham Act limits: applies only to commercial speech)