291 F.Supp.3d 422
S.D.N.Y.2018Background
- Plaintiff Abiodun Oyewole, founding member of The Last Poets, claims copyright in the 1968 poem/song "When the Revolution Comes," which uses the refrain "party and bullshit" as a condemnatory admonition. Oyewole alleges ownership of registered copyright EU 188915 (although the original registration listed Douglas Music Corp.).
- Defendants include artists and music companies tied to The Notorious B.I.G.'s 1993 song "Party and Bullshit" and Rita Ora's 2012 song "How We Do (Party)," both of which use or repeat the phrase "party and bullshit" in a celebratory sense.
- Oyewole sued asserting copyright infringement (Count I) and derivative remedies (constructive trust, accounting, injunctive relief — Counts II–IV) based on alleged sampling, copying of a hook/refrain, and improper exploitation.
- Procedurally: several defendants moved to dismiss for insufficient process/service (Kobalt Music; Downtown Music) and others ("B.I.G. Defendants" and "Rita Ora Defendants") moved to dismiss for failure to state a claim under Rule 12(b)(6). The court granted dismissal for insufficient service for multiple defendants who were not properly served.
- On the merits the court assumed arguendo Oyewole’s ownership and protectability of the phrase, but analyzed fair use as an affirmative defense and found the secondary works transformative and therefore noninfringing; Counts II–IV therefore failed as remedies dependent on infringement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of service of process | Oyewole relied on process server affidavits claiming service on named corporate representatives | Defendants showed the individuals served were not authorized officers/agents and affidavits contradicted authorization; summons/formalities also allegedly defective | Service on Kobalt and Downtown insufficient; claims against several unserved defendants dismissed for failure to effect proper service and no extension granted |
| Technical sufficiency of the summons | Oyewole did not dispute the form defects as dispositive | Defendants argued summons lacked required elements under Fed. R. Civ. P. 4 | Court did not reach merits of summons defects after finding service insufficient |
| Copyright infringement / substantial similarity & protectability | Oyewole alleged defendants copied and sampled his hook/refrain and that the coined phrase "party and bullshit" is protectable | Defendants argued phrase not protectable, works not substantially similar, fair use (transformative) or time-barred | Court assumed protectability/similarity for analysis but found fair use (transformative uses that glorified the phrase vs. original’s condemnation) — granted dismissal of infringement claim |
| Remedies dependent on infringement (constructive trust, accounting, injunction) | Oyewole sought equitable and monetary remedies based on alleged infringement | Defendants argued no infringement so no remedy liability; also moved to dismiss these counts as not standalone causes of action | Because infringement claim failed, Counts II–IV dismissed as remedies tied to infringement |
Key Cases Cited
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (ownership and originality requirement in copyright) (establishes elements for copyright infringement)
- Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (fair use transformative inquiry) (first factor and transformative use analysis)
- Cariou v. Prince, 714 F.3d 694 (2d Cir.) (secondary works transformative if they imbue new character/meaning) (applies transformation standard in visual-arts context)
- Blanch v. Koons, 467 F.3d 244 (2d Cir.) (fair use factors, purpose and character analysis) (describes heart of fair use inquiry)
- Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132 (2d Cir.) (fair use and market substitution analysis) (discusses transformation and effect on market)
- Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57 (2d Cir.) (in copyright cases, the works control contrary pleading allegations) (court may rely on the works themselves)
- Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir.) (burden of proof for fair use as an affirmative defense) (places burden on defendant asserting fair use)
- TCA Television Corp. v. McCollum, 839 F.3d 168 (2d Cir.) (transformativeness requires new purpose/character, not merely different context) (distinguishes uses that merely change genre without transforming meaning)
- Woolridge v. (included to reflect procedural authority) DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54 (S.D.N.Y.) (service of process governed by Rule 4) (procedural guidance on Rule 12(b)(5) motions)
- Mende v. Milestone Tech., Inc., 269 F. Supp. 2d 246 (S.D.N.Y.) (plaintiff bears burden to show adequate service) (service burden allocation)
- Warner Bros. Entm’t, Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y.) (elements of prima facie copyright claim) (sets out ownership and copying requirements)
(Note: the court also relied on Rule 4 and Rule 12 procedural law and other district and circuit decisions applying fair use factors.)