Guy HOBBS, Plаintiff-Appellant, v. Elton JOHN, also known as Sir Elton Hercules John, et al., Defendants-Appellees.
No. 12-3652.
United States Court of Appeals, Seventh Circuit.
July 17, 2013.
Argued May 31, 2013.
1089
The Frenches also challenge the district court‘s award of attorney‘s fees and costs. We “review the district court‘s award of attorney‘s fees for abuse of discretion and its legal analysis and methodology de novo.” Johnson v. GDF, Inc., 668 F.3d 927, 931 (7th Cir. 2012). Under Wisconsin law the trial court may shift a prеvailing trustee‘s defense costs to the trust if the court finds that the trustee acted honestly and in good faith. McGeoch Bldg. Co. v. Dick & Reuteman Co., 256 Wis. 242, 40 N.W.2d 577, 579 (1950); In re Estate of Cole, 102 Wis. 1, 78 N.W. 402, 406 (1899). Having found no evidence of bad faith, the district court held that Wachovia was entitled to recover its attorney‘s fees and costs.
Usually the fees and costs are paid from the corpus of the trust, but here the district court ordered the Frenches personally to pay. There is no dispute that the court has the equitable power to do this. See Cleveland v. Second Nat‘l Bank & Trust Co., 149 F.2d 466, 469 (6th Cir. 1945); duPont v. S. Nat‘l Bank of Hous., Tex., 771 F.2d 874, 885 (5th Cir. 1985); Brisacher v. Tracy-Collins Trust Co., 277 F.2d 519, 524 (10th Cir. 1960); see also Robert L. Rossi, 2 ATTORNEYS’ FEES § 11:63 (3d ed. 2011) (collecting cases). The court held that the equities favored ordering the beneficiaries to pay the trustee‘s attorney‘s fees and costs. The successor trustee was not a party, and the court concluded that requiring Wachovia to pursue its fees award in a separate action against the new trustee would needlessly “multiply costs and delay the inevitable.” The court also noted that the successor trustee had agreed to reimburse the Frenches for their own attorney‘s fees. Finally, the court observed that the Frenches “are of substantial means” and “can dеtermine the proper allocation of the fee award amongst themselves and the successor trustee.”
This decision was entirely sensible. To attack it, the Frenches simply rehash their merits arguments about self-dealing and bad faith, which we have already rejected. We find no abuse of discretion.
AFFIRMED.
Daniel J. Voelker (argued), Attorney, Voelker Litigation Grоup, Chicago, IL, for Plaintiff-Appellant.
Tom J. Ferber (argued), Attorney, Pryor Cashman, New York, NY, for Defendants-Appellees.
Before FLAUM, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge.
While working on a Russian cruise ship, Guy Hobbs composed a song entitled “Natasha” that was inspired by a brief love affair he had with a Russian waitress. Hobbs tried to publish his song, but was unsuccessful. A few years later, Elton John and Bernie Taupin released a song entitled “Nikita” through a publishing company to which Hobbs had sent a copy of “Natasha.” Believing that “Nikita” was based upon “Natasha,” Hobbs eventually demanded compensation from John and Taupin, and ultimately filed suit asserting a copyright infringement claim and two related state law claims. The defendants moved to dismiss Hobbs‘s complaint for failure to state a claim, and the district court granted the defendants’ motion. Hobbs appeals. We affirm.
I. Facts
In 1982, Guy Hobbs began working as a photographer on a Russian cruise ship where he met and romanced a Russian waitress. His experience inspired him to write a song entitled “Natasha” about an ill-fated romance between a man from the
However, in 1985, John released a song entitled “Nikita,” wherein the singer (who is from “the west“) describеs heartfelt love for Nikita, whom the singer “saw ... by the wall” and who is on the other side of a “line” held in by “guns and gates.” Big Pig registered the copyright for “Nikita,” and the copyright application lists both John and Taupin. “Nikita” proved to be extremely successful.
Hobbs alleges that he first encountered the written lyrics of “Nikita” in 2001. Believing that “Nikita” infringed his copyright of “Natasha,” Hobbs sought compensation from John and Taupin, but his requests were apparently rebuffed. Consequently, in 2012, Hobbs sued John, Taupin, and Big Pig in the Northern District of Illinois for copyright infringement in violation of the
II. Lyrics
The lyrics to “Natasha” are:
You held my hand a bit too tight
I held back the tears
I wanted just to hold you, whisper in your ear
I love you, girl I need you
Natasha ... Natasha ... I didn‘t want to go
Natasha ... Natasha ... the freedom you‘ll never know
The freedom you‘ll never know
But a Ukraine girl and a UK guy just never stood a chance
Never made it to the movies, never took you to a dance
You never sent me a Valentine, I never gave you flowers
There was so much I had to say
But time was never ours
You sailed away—no big goodbyes
Misty tears in those pale blue eyes
I wanted just to hold you, whisper in your ear
I love you, girl I need you
Run my fingers through your hair
Natasha ... Natasha ... I didn‘t want to go
Natasha ... Natasha ... the freedom you‘ll never know
The freedom you‘ll never know
You held my hand a bit too tight
I held back the tears
I wanted just to hold you, whisper in your ear
I love you, girl I need you
Natasha ... Natasha ... I didn‘t want to go
Natasha ... Natasha ... the freedom you‘ll never know
The freedom you‘ll never know
(Spoken quietly) But Natasha ... Remember me
The lyrics to “Nikita” are:
Hey Nikita is it cold
In your little corner of the world
You could roll around the globe
And never find a warmer soul to know
Oh I saw you by the wall
Ten of your tin soldiers in a row
With eyes that looked like ice on fire
The human heart a captive in the snow
Oh Nikita you will never know, anything about my home
I‘ll never know how good it feels to hold you
Nikita I need you so
Oh Nikita is the other side of any given line in time
Counting ten tin soldiers in a row
Oh no, Nikita you‘ll never know
Do you ever dream of me
Do you ever see the letters that I write
When you look up through the wire
Nikita do you count the stars at night
And if there comes a time
Guns and gates no longer hold you in
And if you‘re free to make a choice
Just look towards the west and find a friend
Oh Nikita you will never know, anything about my home
I‘ll never know how good it feels to hold you
Oh no, Nikita you‘ll never know
Oh Nikita you will never know, anything about my home
I‘ll never know how good it feels to hold you
Nikita I need you so
Oh Nikita is the other side of any given line in time
Counting ten tin soldiers in a row
Oh no, Nikita you‘ll never know
Counting ten tin soldiers in a row.
On appeal, Hobbs relies solely upon his “unique combination” theory.3 Hobbs contends that the unique selection, arrangement, and combination of individually unprotectable elements in a song can be entitled to copyright protection. Hobbs argues that Peters does not preclude such a theory, or alternatively, that we should overrule Peters. Finally, Hobbs contends that the similar elements found in “Natasha” and “Nikita,” when considered in combination, support a claim for copyright infringement.
Ultimately, as explained below, we hold that Hobbs failed to state a claim for copyright infringement because, even when the allegedly similar elements between the sоngs are considered in combination, the songs are not substantially similar. Therefore, we need not decide if Hobbs is correct when he argues that a unique selection, arrangement, and combination of individually unprotectable elements in a song can support a copyright infringement claim. Similarly, we need not decide whether the district court correctly interpreted Peters as prohibiting such a theory.4
Hobbs contends that the two songs are “substantially similar” because “Nikita” appropriates “Natasha” ‘s unique selection, arrangement, and combination of certain elements. In support of this argument, Hobbs identifies the following allegedly similar elements that are found in both songs:
- A theme оf impossible love between a Western man and a Communist woman during the Cold War;
- References to events that never happened;
- Descriptions of the beloved‘s light eyes;
- References to written correspondence to the beloved;
- Repetition of the beloved‘s name, the word “never,” the phrase “to hold you,” the phrase “I need you,” and some form of the phrase “you will never know;” and
- A title which is a one-word, phonetically-similar title consisting of a three-syllable female5 Russian name, both beginning with the letter “N” and ending with the letter “A.”
Hobbs‘s argument flounders on two well-established principles of copyright law. First, the Copyright Act does not protect general ideas, but only the particular expression of an idea. Atari, Inc. v. N. Am. Philips Consumer Elecs. Corp., 672 F.2d 607, 615 (7th Cir. 1982) (“It is an axiom of copyright law that the protection granted to a copyrightable work extends only to the particular expression of an ideа
Specifically, Hobbs‘s first allegedly similar element is that each song tells the tale of an impossible romance between “a Western man and a Communist woman” separated by the Cold War (a widespread concern at the time the songs were authored). Although both songs contain the idea of an impossible love affair due to a conflict, each song expresses this general idеa differently. That is, “Natasha” and “Nikita” tell different stories about impossible romances during the Cold War. “Natasha” tells the story of two people who briefly become intimate, but who are forced to part ways because one is not free
Hobbs‘s second, third, and fourth allegedly similar elements fare no better. While it is true that “Natasha” and “Nikita” both contain references to unfulfilled desires or events that never occur, what matters is that the particular ways that each song expresses these concepts are dissimilar. “Natasha” refers to “the freedom [the woman will] never know,” a relationship that “never stood a chance,” and never going to the movies or a dance. In contrast, “Nikita” says that the woman could “never find a warmer soul to know” and “will never know anything about [the man‘s] home,” and that the man will “never know how good it feels to hold [thе woman].” Similarly, while both songs refer to the beloved‘s light eyes and to written correspondence between the lovers, they do so in entirely different ways. “Natasha” refers to “pale blue eyes,” whereas “Nikita” talks about “eyes that looked like ice on fire.” Again, “Natasha” contains the complaint that, “You never sent me a Valentine,” while “Nikita” contains the wholly dissimilar query, “Do you ever see the letters that I write[?]” In short, Hobbs cannot rely upon a combination of dissimilar expressions to establish that “Nikita” infringes upon “Natasha” ‘s
However, Hobbs‘s fifth and sixth similar elements are expressed in similar ways (more or less) within both songs.6 Both “Natasha” and “Nikita” make liberal use of repetition—including repeatedly using the word “never,” the phrases “to hold you” and “you‘ll never know,” as well as the beloved‘s name. Additionally, each song‘s title is a Russian name beginning with the letter “N” and ending with the letter “A.” While these similar elements are present at the level of expression, they are also rudimentary, commonplace, standard, or unavoidable in popular love songs.7 Repetition is ubiquitous in popular music. See Selle v. Gibb, 741 F.2d 896, 905 (7th Cir. 1984) (observing that “popular music” is a field “in which all songs are relatively short and tend to build on or repeat a basic theme“). And, as the district court observed, the United States Copyright Office‘s Registered Works Database reveals that numerous works share the titles “Natasha” and “Nikita.” See http://cocatаlog.loc.gov/ (last visited July 9, 2013). Thus, that “Natasha” and “Nikita” share a few similar expressions that are commonplace in love songs could not support a finding that the songs are “substantially similar.” Cf. Johnson v. Gordon, 409 F.3d 12, 22 (1st Cir. 2005).
We agree with the district court that “Natasha” and “Nikita” simply “tell different stories,” Hobbs v. John, No. 12C3117, 2012 WL 5342321, at *7 (N.D. Ill. Oct. 29, 2012), and “are separated by much more than ‘small cosmetic differences,‘” Peters, 692 F.3d at 636 (quoting JCW, 482 F.3d at 916). “Natashа” tells the story of an actual, though brief, romantic encounter between a man from the United Kingdom and a woman from Ukraine. Their tangible relationship is severed because the woman must sail away. In contrast, “Nikita” tells the tale of man who sees and loves a woman from afar. But that love can never find physical expression because the two are separated by “guns and gates.”
We conclude that as a matter of law “Natasha” and “Nikita” are not “substantially similar” because they do not “share enough unique features to give rise to a breach of the duty not to copy another‘s work.” Peters, 692 F.3d at 633-34.
IV. Conclusion
Because “Natasha” and “Nikita” are not “substantially similar” as a matter of law, Hobbs‘s copyright infringement claim fаils as a matter of law. Therefore, we AFFIRM the judgment of the district court.