SOLOMON CLANTON p/k/a SLUGGA, an individual, v. UMG RECORDINGS, INC., a Delaware corporation; GAMEBREAD, LLC, a limited liability company; TAUHEED EPPS p/k/a 2CHAINZ, an individual; KENNON JACKSON p/k/a YG, an individual; KIARI CEPHUS p/k/a OFFSET, an individual, TYLER MATTHEW CARL WILLIAMS p/k/a T-MINUS, an individual; JOSH VALLE, an individual; MATTHEW JEHU SAMUELS, an individual;
20-cv-5841 (LJL)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
August 16, 2021
LEWIS J. LIMAN, United States District Judge
USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: DATE FILED: 8/16/2021
OPINION AND ORDER
LEWIS J. LIMAN, United States District Judge:
Defendants UMG Recordings, Inc., Gamebread, LLC, Tauheed Epps, known professionally as “2Chainz” (“2Chainz“), and Kiari Cephus, professionally known as
BACKGROUND
Solomon Clanton, professionally known as “Slugga” (“Slugga” or “Plaintiff“) is a hip-hop artist. Dkt. No. 18 at 1. In 2015, Slugga recorded and released a musical composition and sound recording entitled “Proud” (the “Subject Composition“). The Subject Composition is available online and on social media. Id. ¶ 16. Slugga included the Subject Composition as part of his mixtape “Metamorphosis: From Forces to Red Bottoms” (the “Mixtape“), which was published on the website datpiff.com in 2015. Id. ¶ 17. The Mixtape was published on several other hip-hop music sites in 2015. Id. ¶ 18. The Subject Composition was published on YouTube as early as April 2017 and on the music site worldstarhiphop.com as early as April 2017. Id. ¶ 19. Slugga registered the recording of the Subject Composition with the United States Copyright Office on July 21, 2021, with Registration Number SR 875-198. Id. ¶ 15.
At some time no later than March 2018, 2Chainz, a well-known hip-hop artist, began publicly performing a song entitled “Proud” (“2Chainz‘s Composition“), which was released on his album “The Play Don‘t Care Who Makes It.” Id. ¶ 21. 2Chainz‘s Composition was authored by 2Chainz and Offset, along with Defendants Josh Valle, Kennon Jackson, Kiari Cephus, Matthew Jehu Samuels and Matthew Carl Williams. Id. ¶ 22. The complaint alleges that: “Without limiting the access and knowledge of other Defendants, Slugga is informed and believes and thereon alleges that, at all relevant times, 2Chainz, Jackson, Valle and their agents were specifically aware of “Proud” [i.e., the Subject Composition].” Id. ¶ 20. The complaint further alleges, on information and belief, that “Defendants, and each of them, had access to the Subject Composition including, without limitation, through (a) listening to the recording via Slugga‘s public performances or recordings, (b) streaming the Subject Composition online, and (c) listening to the Subject Composition through a third party.” Id. ¶ 38.
Plaintiff alleges that the Subject Composition and 2Chainz‘s Composition share the following similarities:
- The notes and rhythm of the principal hook are identical. The lyrics of the principal hook in the Subject Composition are “Proud, I‘m just tryin’ to make my ma-ma proud.” The lyrics of the principal hook in 2Chainz‘s Composition are “Yeah, I‘m just try-na make my ma-ma proud.” Id. ¶¶ 23-24.
- Both songs use call-and-response techniques and have a 2/4 time signature. Id. ¶ 24.
- The music videos for both songs use a media clip and a spoken word introduction. Id. ¶ 25.
- Both works open with a sustained note or chord played by an organ. Id. ¶ 26.
According to Plaintiff, these similarities “demonstrate that portions of [2Chainz‘s Composition] were copied wholesale from the Subject Composition.” Id. ¶ 27.
Since 2018, 2Chainz‘s Composition has been performed, sold, played, and streamed on many platforms. Id. ¶ 28. In October 2019, Slugga sent UMG a cease and desist letter demanding that Defendants stop infringing the Subject Composition. Id. ¶ 29. Defendants did not respond
PROCEDURAL HISTORY
Plaintiff initiated this action by complaint filed July 28, 2020. Dkt. No. 1. Plaintiff filed an amended complaint on October 8, 2020. Dkt. No. 18. Defendants UMG Recordings, Gamebread, and 2Chainz filed this motion to dismiss on November 6, 2020. Dkt. No. 25. Defendant Kiari Cephus joined the motion to dismiss by notice dated December 7, 2020. Dkt. No. 32. Plaintiff filed a brief in opposition to the motion to dismiss on December 11, 2020, Dkt. No. 33, and Defendants replied on January 15, 2021. Dkt. No. 36.
LEGAL STANDARD
To survive a motion to dismiss pursuant to
DISCUSSION
“To establish [copyright] infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ‘ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). For the purposes of this motion, the Court assumes that Clanton owns a valid copyright in the Subject Composition, as pleaded in the complaint. Accordingly, ownership and validity are not at issue on this motion. In order to establish that a defendant copied constituent elements of an original work, a plaintiff must establish that: “(1) the defendant has actually copied the plaintiff‘s work; and (2) the copying is illegal because a substantial similarity exists between the defendant‘s work and the protectible elements of plaintiff‘s.” Knitwave, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir. 1995).
Defendants argue that the complaint must be dismissed for two reasons. First, Plaintiff has failed to plausibly allege that Defendants had access to his song. Dkt. No. 26 at 7. Second, Plaintiff fails to allege any actionable similarities between the songs. Id. The Court addresses the two arguments in turn.
I. Access
Actual copying can be shown through either (1) direct evidence of copying
“A work is ‘widely disseminated’ when it has had ‘considerable commercial success’ or is ‘readily available on the market.‘” Stallone, 910 F. Supp. 2d at 686 (quoting Silberstein v. Fox Entm‘t Grp., 424 F. Supp. 2d 616, 627 (S.D.N.Y. 2004)). Access can be inferred where “a party had a reasonable possibility of viewing the prior work.” Boisson v. Banian, Ltd., 273 F.3d 262, 270 (2d Cir. 2001). “‘A reasonable possibility’ is not simply a ‘bare possibility‘; ‘access cannot be based on mere speculation or conjecture.‘” Muller v. Twentieth Century Fox Film Corp., 794 F. Supp. 2d 429, 440 (S.D.N.Y. 2011) (quoting Jorgensen, 351 F.3d at 51).
Plaintiff argues that his work was widely disseminated enough that Defendants’ access to the Subject Composition can be inferred. Plaintiff has failed to support this allegation. Plaintiff alleges no facts supporting his argument that the Subject Composition was widely disseminated beyond the bare facts that it was on a mixtape that was posted to several hip-hop websites and that the Subject Composition was posted on YouTube, and the vague and conclusory claim that the Subject Composition “has been widely shared and listened to online and on social media.” Dkt. No. 18 at 16.
As a matter of law, the fact that the Subject Composition was posted on the internet is insufficient on its own to show “wide dissemination.” See O‘Keefe v. Ogilvy & Mather Worldwide, Inc., 590 F. Supp. 2d 500, 515 (S.D.N.Y. 2008) (“[T]he mere fact that [the plaintiff‘s] work was posted on the internet prior to the creation of defendants’ work is insufficient by itself to demonstrate wide dissemination.“); Hayes v. Minaj, 2012 WL 12887393, at *3 (C.D. Cal. Dec. 18, 2012) (dismissing complaint because “[t]he fact that the video was placed on YouTube does not imply it was disseminated widely . . . “). Were it otherwise, any work that any person uploaded publicly to the internet would have to be considered sufficiently “widely disseminated” to give rise to an inference that every person had heard it—an inference that would be plainly unreasonable. Plaintiff has made no specific allegations about how many times the song was accessed on YouTube or on the specialty hip-hop websites to which the Mixtape was uploaded or the general time periods during which it was accessed. The conclusory claim that the Subject Composition was “widely shared” is insufficient to meet Plaintiff‘s burden to show considerable commercial success. In the absence of specific facts showing that the Subject Composition was widely accessed on the internet before publication of the allegedly infringing work, cf. Smart Study Co. v. A Pleasant Trip Store, 2020 WL 2227016, at *5 (S.D.N.Y. May 7, 2020) (finding a likelihood of success on a claim of wide dissemination where a video had over 3.1 billion views on YouTube), Plaintiff‘s complaint fails to adequately state a claim.2
Plaintiff argues that, at the pleading stage, he is not required to prove that any Defendants actually listened to the Subject Composition and “it is enough to prove that the infringer (or his intermediary) had the mere opportunity to see the work.” Jorgensen, 351 F.3d at 54-55. But this language, drawn from a citation to the Fourth Circuit‘s decision in Bouchat v. Baltimore Ravens, Inc., 241 F.3d 305, 354-55 (4th Cir. 2001) in the Second Circuit‘s decision in Jorgenson, is misleadingly quoted out of context. In Jorgenson, the plaintiff—who was a singer-songwriter—mass mailed copies of his songs to a “multitude” of record companies. Id. at 49. He alleged that recording artists at two of those companies subsequently infringed on his copyrights by incorporating elements of his songs into their own songs. Id. Executives at one of the two companies admitted in depositions that they received the plaintiff‘s submissions, id. at 52, and the plaintiff testified that he had several conversations with one of the executives over the course of several years, id. at 50. The Second Circuit held that the plaintiff had shown a “reasonable possibility of access” by the alleged infringer, because he had shown “a clear nexus” between the executive who had admitted receiving the recording and the record company‘s A&R department. Id. at 45.
Jorgensen is inapposite to the facts of this case, because the plaintiff there sought to prove actual copying by alleging a “chain of events” through which the defendant gained access to his works, rather than by alleging that his works were widely disseminated. The plaintiff in Jorgensen put forth a specific and well-supported theory of how his recording came into the possession of the writers of the allegedly infringing songs. The language from Jorgensen stating that all a plaintiff must show is that the defendant “had the mere opportunity to see the work” applies only
Alternatively, Plaintiff argues that the Subject Composition and 2Chainz‘s Composition are so “strikingly similar” that the Court should permit the case to go forward, even in the absence of a finding of access. “To prove that similarities are striking, claimant must demonstrate that such similarities are of a kind that can only be explained by copying, rather than by coincidence, independent creation, or prior common source.” Stratchborneo v. Arc Music Corp., 357 F. Supp. 1393, 1403 (S.D.N.Y. 1973); see also Jorgenson, 351 F.3d at 56 (“where the works in question are ‘so strikingly similar as to preclude the possibility of independent creation, copying may be proved without a showing of access.‘” (citing Lipton v. Nature Co., 71 F.3d 464, 471 (2d Cir. 1995))); Cox v. Abrams, 1997 WL 251532, at *5 (S.D.N.Y. May 14, 1997) (“[S]triking similarity exists when two works are so nearly alike that the only reasonable explanation for such a great degree of similarity is that the later . . . was copied from the first.“); 4 Melville Nimmer & David Nimmer, Nimmer on Copyright § 13.02 (2021) (“At base, ‘striking similarity’ simply means that, in human experience, it is virtually impossible that the two works could have been independently created.“). The striking similarity test “is applied with particular stringency in cases . . . involving popular music.” Tisi v. Patrick, 97 F. Supp. 2d 539, 548 (S.D.N.Y. 2000).
The similarities between the two compositions are not sufficiently striking to overcome the access requirement. The principal similarity between the two songs is the use of the expression “I‘m just tryin’ to make my mama proud,” spoken in approximately the same cadence, in the chorus of each of the two compositions. The two compositions share no other lyrics, and the only other similarities cited by Plaintiff are the vague facts that both use call-and-response, have a 2/4 time signature, and begin with a sustained note or chord played by an organ. A 2/4 signature and organ instrumentation are common to music. No inference can be drawn that Defendants had access to Plaintiff‘s composition because they both used a 2/4 time signature and an organ. Cf. Boone v. Jackson, 206 F. App‘x 30, 32 (2d Cir. 2006) (finding no probative similarity between two songs where “the call and response applied only generically to the two songs and was executed in defendants’ song ‘in a different way and to varying degrees‘“). Thus, the similarities between the compositions are not sufficient to establish that there is no possibility that the works were composed independently, and accordingly there can be no “striking similarity.” See, e.g., Guzman v. Hacienda Records & Recording Studio, Inc., 808 F.3d 1031, 1034-35 (5th Cir. 2015) (holding that the fact that two Tejano songs began with the words “Yo tengo en mi poder unas cartas de amor que tu me las mandastes pidiendo compassion” failed to establish striking similarity).
II. Actionable Similarities
In order to show that a defendant unlawfully copied a plaintiff‘s work,
“The sine qua non of copyright is originality.” Feist Publ‘ns, 499 U.S. at 345-46; see also
“The test for infringement of a copyright is of necessity vague.” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960). “[B]ecause the question of substantial similarity typically presents an extremely close question of fact, questions of non-infringement have traditionally been reserved for the trier of fact.” Peter F. Gaito, 602 F.3d at 63. However, “it is entirely appropriate for a district court to resolve that question as a matter of law, ‘either because the similarity between the two works concerns only non-copyrightable elements of the plaintiff‘s work, or because no reasonable jury, properly instructed, could find that the two works are substantially similar.‘” Id. (quoting Warner Bros. Inc. v. Am. Broad. Cos., 720 F.2d 231, 240 (2d Cir. 1983)). “When evaluating substantial similarity on a motion to dismiss, no discovery or fact-finding is typically necessary, because what is required is only a visual or aural comparison of the works.” McDonald v. West, 138 F. Supp. 3d 448, 454 (S.D.N.Y. 2015). “Courts in this district regularly apply this rule in music copyright cases to
“Words and short phrases, including titles and slogans, rarely if ever exhibit sufficient originality to warrant copyright protection.” West, 138 F. Supp. 3d at 454 (citing Bell v. Blaze Magazine, 2001 WL 262718, at *2 (S.D.N.Y. Mar. 16, 2001)). “Longer phrases are also not protectable if they are common or cliché.” Id.; see also
The question before the Court is whether the expression “I‘m tryna make my momma proud” possesses the requisite “minimal degree of creativity,” or “scintilla of creativity” to be “original” and correspondingly protectable as a matter of law. The Court concludes that it is not.
The sentiment of trying to look good in the eyes of one‘s parents or to make them pleased—a notion common enough to human relations as well as to art and literature for millennia, see, e.g., Proverbs 10:1 (“A wise son maketh a glad father“); William Shakespeare, Coriolanus act 1, sc. 1, l. 36-38 (“Though soft-conscienced men can be content to say it was for his country, he did it to please his mother . . .“); F. Marryat, Percival Keene, I. xvii. 268 (1842) (“That‘s the way to go to a parent‘s heart: make him feel proud of you.“)—is of course not protectable. Copyright does not protect ideas or themes. See Williams v. Crichton, 84 F.3d 581, 587 (2d Cir. 1996); Walker v. Time Life Films, Inc., 784 F.2d 44, 48-49 (2d Cir. 1986); Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir. 1980); see also
The manner in which that sentiment or concept is expressed in the Subject Composition, moreover, is wholly conventional. The words “I‘m just tryna make my momma proud” use the ordinary building blocks of the English language in a functional manner to express the unprotectible idea. See CMM Cable Rep, Inc v. Ocean Coast Props., Inc., 97 F.3d 1504, 1519 (1st Cir. 1996) (“It is axiomatic that copyright law denies protection to ‘fragmentary words and phrases’ and to ‘forms of expression dictated solely at function considerations’ on the grounds that these materials do not exhibit the minimal level of creativity necessary to warrant copyright protection.” (quoting Nimmer, supra, § 2.01[B])). The words employed are those in wide circulation in the English language the public domain. “Momma” is, by this time, a conventional slang form of the word “mother,” see Oxford English Dictionary, Momma, “tryna” is a simple common contraction of “trying to,” Merriam Webster Dictionary, Tryna, and there are few synonyms that express the concept of proud—the idea of feeling deep pleasure or satisfaction as a result of the achievements of oneself or another. See Oxford English Dictionary, Proud (“Feeling greatly honoured, pleased, or satisfied by something which or someone who does one
This holding is in accordance with other cases that have considered the question whether a short lyric is protectible under the Copyright Act. In Puckett v. Hernandez, 2016 WL 7647555, at *5 (C.D. Cal. Dec. 21, 2016), the court determined that the lyrics “I would die for you baby” and “You won‘t do the same” were not protectable:
[T]hose lines are common phrases that do not possess the requisite originality to be copyrightable. Saying ‘I would die for you’ is a common way of emphasizing the extreme lengths to which one would go for another person, and it used in countless movies and songs, not to mention everyday conversations. The phrase ‘You won‘t do the same’ is so common that it hardly requires explanation. Neither of these phrases possesses the requisite originality or uniqueness to qualify for copyright protection.
Id. Because the lines expressed a common sentiment in a common way, the case was dismissed as a matter of law. Similarly, in Johnson v. Gordon, 409 F.3d 12, 24 (1st Cir. 2005), the First Circuit concluded, at the summary judgment phase, that the phrase “You‘re the One for Me” could not be copyrighted. See id. (“It is readily apparent that this lyric is too trite to warrant copyright protection.“); see also Pickett v. Migos Touring, Inc., 420 F. Supp. 3d 197, 207 (S.D.N.Y. 2019) (finding that the use of the term “walk it like I talk it” was not copyrightable, because the phrase was in common use“).4
Plaintiff relies upon May v. Sony Music Entertainment, 399 F. Supp. 3d 169 (S.D.N.Y. 2019) in support of his argument that the phrase “I‘m just tryna make my momma proud” is protectible. In May, a
Plaintiff argues alternatively that the Court should look to the “combination of elements” in the Subject Composition to find infringement. See Griffin v. Sheeran, 351 F. Supp. 3d 492, 499 (S.D.N.Y. 2019) (“[W]e are principally guided ‘by comparing the contested design‘s total concept and overall feel with that of the allegedly infringed work.‘” (quoting Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 133 (2d Cir. 2003))). But Plaintiff‘s “combination of elements” are unconnected with the allegedly infringed “I‘m just tryna make my momma proud” lyric. Instead, they are just a list of minor (and unprotectable) similarities between the Subject Composition and 2Chainz‘s Composition, including that: (1) the opening note or chord of the compositions are played on an organ; (2) the time signature; and (3) that the music videos for both compositions include a spoken word introduction. These elements are not a combination at all and none of them, alone or in combination, is protectable. Time signatures are among the most basic building blocks of music and are generally not copyrightable. See John R. Autry, Toward a Definition of Striking Similarity in Infringement Actions for Copyrighted Musical Works, 10 J. Intell. Prop. L. 113, 137-38 (2002) (“Time signature is extremely generic and leaves little room for artistic choices by the composer.“); Allen v. Walt Disney Prods., 41 F. Supp. 134, 138 (S.D.N.Y. 1941) (stating that the Court did “not place much reliance” on the fact that two compositions were both written in 3/4 time). Similarly, the choice of a particular instrument is not copyrightable; there is a limited universe of instruments to choose from in composing music. Slugga‘s choice of an organ for the opening note or chord does not give him a right to withdraw that instrumentation from the public domain. Finally, the references to the music video are irrelevant—according to the complaint, Slugga registered a copyright for a sound recording of the song, not for the music video. He alleges infringement of the sound recording, not the video.
CONCLUSION
For the foregoing reasons, the motion to dismiss is GRANTED. The Clerk of Court is respectfully directed to close the motion at Dkt. No. 25. In light of the Court‘s finding that there are no actionable similarities between the two compositions as a matter of law, amendment would be futile and the dismissal of the complaint is with prejudice. See, e.g., Kaye v. Cartoon Network Inc., 297 F. Supp. 3d 362, 371 (S.D.N.Y. 2017) (“[T]he finding of a lack of substantial similarity turns on the works themselves and not on the artfulness or sufficiency of the pleading.“); Thai v. Cayre Grp., Ltd., 726 F. Supp. 2d 323, 338 (S.D.N.Y. 2010) (denying leave to amend where there was “no additional substantive information [plaintiff] could offer to cure the deficient pleadings with respect to her . . . claim“). The Clerk of Court is respectfully directed to close the case.
SO ORDERED.
Dated: August 16, 2021
New York, New York
LEWIS J. LIMAN
United States District Judge