LEANDER C. PICKETT v. MIGOS TOURING, INC., CAPITOL RECORDS, LLC, QUALITY CONTROL MUSIC, LLC, QUAVIOUS MARSHALL p/k/a QUAVO, KIARI CEPHUS p/k/a OFFSET, KIRSNICK BALL p/k/a TAKEOFF, JOSHUA PARKER p/k/a OG PARKER and GRANT DECOUTO p/k/a DEKO
18 Civ. 9775 (AT)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
11/12/2019
ANALISA TORRES, District Judge
USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: DATE FILED: 11/12/2019
ANALISA TORRES, District Judge:
Plaintiff, Leander C. Pickett, a musical artist, songwriter, and producer, brings this copyright infringement action against Defendants, Migos Touring, Inc. (“Migos“), Capitol Records, LLC (“Capitol“), Quality Control Music, LLC (“Quality Control“), Quavious Marshall p/k/a Quavo, Kiari Cephus p/k/a Offset, Kirsnick Ball p/k/a Takeoff, Joshua Parker p/k/a OG Parker, and Grant Decouto p/k/a Deko. In the second amended complaint, Plaintiff alleges that Defendant Migos’ musical composition “Walk It Talk It,” infringes on Plaintiff‘s musical composition “Walk It Like I Talk It.” Complaint ¶¶ 6, 10-16, ECF No. 42. Defendant Quality Control moves to dismiss this action for lack of personal jurisdiction under
BACKGROUND
The following facts are taken from the complaint and “are presumed to be true for purposes of considering a motion to dismiss for failure to state a claim.” Fin. Guar. Ins. Co. v. Putnam Advisory Co., LLC, 783 F.3d 395, 398 (2d Cir. 2015); see also McDonald v. West, 138 F. Supp. 3d 448, 452 (S.D.N.Y. 2015), aff‘d, 669 F. App‘x 59 (2d Cir. 2016).
In 2013, Lee and his partner, Pierre “Pee” Thomas founded the Atlanta-based record label, Defendant Quality Control. Id. Quality Control‘s premier artists are Migos, a musical group, and its constituent members, Defendants Quavious Marshall p/k/a Quavo, Kiari Cephus p/k/a Offset, and Kirsnick Ball p/k/a Takeoff. Id. ¶¶ 7, 26. Capitol is Quality Control‘s distributor. Id. ¶ 26. In January 2018, nearly a decade after Plaintiff released the mixtape, Migos released “Walk It Talk It” (“Defendant‘s Work“), the third single from the group‘s third studio album, “Culture II.” Id. ¶¶ 24, 33. Quality Control employed Defendant producers Joshua Parker p/k/a OG Parker and Grant Decouto p/k/a Deko, who musically produced Defendant‘s Work. Id. ¶ 29.
Plaintiff claims that, without his consent, Defendants reproduced, distributed, and/or publically performed a substantial portion of Plaintiff‘s Work in Defendant‘s Work. Id. ¶ 24. He further claims that Quality Control, Migos, Capitol, Parker, and Decouto “worked in concert to distribute Defendant‘s Work in digital and online markets nationwide, including New York.” Id. ¶ 29.
On October 24, 2018, Plaintiff commenced this copyright infringement action. ECF No. 1. Plaintiff filed his first amended complaint on December 17, 2018, ECF No. 9, and a second amended complaint on March 26, 2019, ECF No. 42, adding Defendants Marshall, Cephus, Ball, Parker, and Decouto. Defendants now move to dismiss Plaintiff‘s second amended complaint. ECF No. 65.
DISCUSSION
I. Legal Standard
A. Personal Jurisdiction
“On a motion to dismiss pursuant to
“District courts deciding a motion to dismiss for lack of personal jurisdiction engage in a two-part analysis, first determining whether there is a statutory basis for exercising personal jurisdiction and second deciding whether the exercise of jurisdiction comports with due process.” BWP Media, 69 F. Supp. 3d at 349 (internal quotation marks and citation omitted). In a federal question case, the district court “applies the forum state‘s personal jurisdiction rules, unless a federal statute specifically provides for national service of process.” Id. at 350 (internal quotation marks, alteration, and citation omitted). Jurisdiction comports with due process if “the defendant has certain minimum contacts with the State such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Daimler AG v. Bauman, 571 U.S. 117, 126 (2014) (alterations, internal quotation marks, and citation omitted).
B. Failure to State a Claim
To survive a
A. Personal Jurisdiction Over Quality Control
Because it is improper for the Court to opine on the merits of a case where it lacks jurisdiction, the Court first addresses whether it has personal jurisdiction over Quality Control. See, e.g., Laydon v. Mizuho Bank, Ltd., No. 12 Civ. 3419, 2015 WL 1499185, at *7 (S.D.N.Y. Mar. 31, 2015); Arrowsmith v. United Press Int‘l, 320 F.2d 219, 221 (2d Cir. 1963) (“[L]ogic compel[s] initial consideration of the issue of jurisdiction over the defendant—a court without such jurisdiction lacks power to dismiss a complaint for failure to state a claim.“).
The
A plaintiff makes a prima facie showing of jurisdiction under
Plaintiff contends that Quality Control is subject to specific jurisdiction in New York based on (1) Quality Control‘s having entered into a recording and distribution agreement with Capitol, a company with its principal place of business in New York, and (2) Migos’ performing of Defendant‘s Work in New York City as part of the group‘s tour. Pl. Mem. at 27-28; see also Complaint ¶¶ 4, 16. Plaintiff argues that Quality Control “transacted business in New York by projecting themselves into New York to engage in a sustained and substantial transaction of business related to the infringement of [P]laintiff‘s work,” Pl. Mem. at 30, including by entering a joint venture with two New York based companies, including Capitol, and “curating” a tour with Grammy award winning artist Drake, which featured six consecutive performances in New York, where Defendant‘s Work was the only song shared by Migos and Drake, id. at 28. Plaintiff argues that “the tour was created around the [Defendant‘s Work].” Id. at 30.
Defendants contend that Plaintiff has failed to establish personal jurisdiction over Quality Control under either New York‘s long-arm statute or the Due Process Clause. Def. Mem. at 21, ECF No. 66. Although Defendants concede that Quality Control “entered an agreement with Capitol,” they note that the “agreement does not specifically provide for any distribution, public performance or other exploitation in New York.” Def. Mem. at 20.
Quality Control‘s contract with Capitol, on its own, is “not sufficient to constitute the transaction of business under”
Although Quality Control and Capitol‘s agreement may not specifically provide for any distribution, public performance or other exploitation in New York, Defendants cannot dispute that distribution and public performance did in fact occur there. That Quality Control arranged for the distribution and performance of Defendant‘s Work without being physically present in New York does not mean that Quality Control did not “purposefully avail[] itself of the privilege of conducting activities within New York.” Royalty Network Inc., 638 F. Supp. 2d at 417–18 (citation omitted); see also Golden Archer Investments, 2012 WL 123989, at *4 (“When a defendant‘s remote communications effectuate some purposeful business in New York, personal jurisdiction will be found.“). The Court holds that Plaintiff has pleaded facts which support a prima facie showing of jurisdiction under
Having determined that jurisdiction over Quality Control is permitted under New York‘s long-arm statute,
Accordingly, the Court finds that it has personal jurisdiction over Quality Control. Defendant Quality Control‘s motion to dismiss for lack personal jurisdiction is, therefore, DENIED.
B. Failure to State a Claim
Having addressed the jurisdictional question, the Court now turns to the merits of Defendants’ motion to dismiss. Defendants argue that Plaintiff‘s claim is barred because “Plaintiff has not satisfied the statutory mandate that he register a copyright in his musical composition with the United States Copyright Office before filing an infringement suit.” Def. Mem. at 2. Even if Plaintiff‘s claim were not statutorily barred, Defendants contend that the only alleged similarity between the two works is the lyric “walk it like I talk it,” and that this “short, prosaic phrase is” unprotectable, and cannot form the basis of a copyright infringement claim. Id. at 1. Because the Court agrees that the allegations in the complaint fail to “raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555, Defendants’ motion to dismiss is GRANTED.
1. Copyright Registration
Pursuant to the Copyright Act, “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim
Plaintiff alleges that he obtained a certificate of copyright registration for his “[m]usical [c]omposition, ‘Walk It Like I Talk It.‘” Complaint ¶ 18. Plaintiff contends that he registered his musical composition and sound recording “in a single application.” Complaint ¶ 18. Although the Court must accept the allegations in the pleadings as true and draw all reasonable inferences in favor of the non-movant, see West, 138 F. Supp. 3d at 452, when a document relied on in the complaint contradicts allegations in the complaint, the document, not the allegations, controls, Lawrence R. Buchalter Alaska Tr. v. Philadelphia Fin. Life Assur. Co., 96 F. Supp. 3d 182, 199 (S.D.N.Y. 2015).
“Copyright protection extends to two distinct aspects of music: (1) the musical composition, which is itself usually composed of two distinct aspects—music and lyrics; and (2) the physical embodiment of a particular performance of the musical composition, usually in the form of a master recording.” Ulloa v. Universal Music & Video Distribution Corp., 303 F. Supp. 2d 409, 412 (S.D.N.Y. 2004) (quotation marks and citation omitted). Here, Plaintiff‘s complaint is not that Defendants incorporated “the physical embodiment,” or sound recording of Plaintiff‘s Work. Rather, Plaintiff argues that Defendants infringed on his “[m]usical [c]omposition,” Complaint ¶ 19—in other words, the “music and lyrics,” Ulloa, 303 F. Supp. 2d at 412, of Plaintiff‘s Work. As is clear from the Certificate, Plaintiff did not obtain a certificate of registration for his musical composition. See Certificate. As such, Plaintiff has failed to satisfy
In his opposition brief, Plaintiff asserts that he sought to correct errors in his original copyright application, including amending the Certificate to cover the music composition aspect of his work along with the sound recording aspect. Pl. Mem. at 26. Plaintiff also states that the U.S. Copyright Office advised him that “the deposit of Plaintiff‘s original work via MP3 recording covers the entire original work – sound recording and musical composition.” Id. Plaintiff, however, provides no evidence to support this claim, which does not appear in the complaint. Even assuming that Plaintiff were able to amend the registration to cover the musical composition aspect of his work, this action would still warrant dismissal. As courts in this district have held, a copyright infringement claim will be dismissed where the allegedly infringed work, in this case, the musical composition, was not registered at the time the original complaint was filed. See, e.g., Malibu Media, LLC v. Doe, No. 18 Civ. 10956, 2019 WL 1454317, at *1 (S.D.N.Y. Apr. 2, 2019) (dismissing complaint where plaintiff filed suit before copyright was registered and holding that “a prematurely filed suit must be dismissed notwithstanding a plaintiff‘s post-registration amendment“); Pablo Chavez v. British Broad. Corp., No. 17 Civ. 572, 2019 WL 2250446, at *3 (S.D.N.Y. May 23, 2019) (“Because the plaintiff has failed to allege that he owns a valid, fully registered copyright over the allegedly infringed music and his performance in the [v]ideo, his copyright claim fails.“).
Because Plaintiff did not register a musical composition before initiating this lawsuit, the complaint must be dismissed.
Even if Plaintiff were not statutorily barred from bringing this action, dismissal would be warranted because there is no protectable similarity between the two works at issue. “To state a claim for copyright infringement, a plaintiff must plausibly allege facts that demonstrate (1) ownership of a valid copyright, and (2) the defendants’ copying of constituent, original elements of plaintiff‘s copyrighted work.” West, 138 F. Supp. 3d at 453. “To demonstrate the element of unauthorized copying, Plaintiff must make two showings. First, he must show that Defendants ‘actually copied’ his work, and second, he must show substantial similarity between the two works such that the copying ‘amounts to an improper or unlawful appropriation.‘” Id. (quoting Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir. 2003)). “Two works are not substantially similar as a matter of law if the similarity between two works concerns only non-copyrightable elements of the plaintiff‘s work, or if no reasonable jury, properly instructed, could find that the two works are substantially similar.” Id. at 454 (alterations, quotation marks, and citation omitted). Plaintiff‘s claim fails to meet the substantial similarity prong of unauthorized copying.
“District courts in this circuit may evaluate a question of substantial similarity at the motion to dismiss stage under
“[W]hen faced with works that have both protectible and unprotectible elements, . . . [the Court] . . . must attempt to extract the unprotectible elements from [its] consideration and ask whether the protectible elements, standing alone, are substantially similar.” Peter F. Gaito Architecture, 602 F.3d at 66 (internal quotation marks and citation omitted). The only meaningful similarity between Plaintiff‘s Work and Defendant‘s Work is that the lyrics “walk it like I talk it” form each song‘s chorus, or hook. See Def Mem. at 1; Pl. Mem. at 19. Having carefully listened to the two songs, the Court concludes that the similarity between the two works concerns only “unprotectible elements” of Plaintiff‘s Work. See Id.
“To qualify for copyright protection, a work must be original to the author.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). An original work is one that “was independently created by the author” and “possesses at least some minimal degree of creativity.” Id. The Copyright Office, and courts in this district, have repeatedly held that “short phrases” such as “slogans” are not protectable. West, 138 F. Supp. 3d at 454 (“Short phrases, including titles and slogans, rarely if ever exhibit sufficient originality to warrant copyright protection. Longer phrases are also not protectable if they are common or cliché.” (internal citation omitted)); TufAmerica, Inc. v. Diamond, 968 F. Supp. 2d 588, 602 (S.D.N.Y. 2013) (“Common phrases are generally not susceptible to copyright protection.” (quotation marks omitted)).
As in Apps, the term “walk it like I talk it,” and slight variations of it, has been regularly used in several contexts. See Def. Mem. at 3–6 (noting 32 instances of the term, or slight variations, being used in literature, music, and motion pictures, prior to the composition of Plaintiff‘s Work). The Court takes judicial notice of these 32 instances as they can be obtained from widely available and reliable sources, the accuracy of which cannot reasonably be questioned. See
Plaintiff alleges that he recorded Plaintiff‘s Work in 2007. Complaint ¶ 20. But there are multiple instances of the term “walk it like I talk it“, or variations of it, being used prior to 2007, including by other rap and hip-hop artists. These include rap artist Paul Wall‘s 2005 song titled “March ‘n’ Step” featuring the repeated lyrics “walk it how you talk it / [y]ou gotta walk it like you talk it,” Def. Mem. at 5, rap artist Young Jeezy‘s 2006 song “3 A.M.” featuring the lyric “I walk it how I talk it,” Def. Mem. at 6, and rap artist Wiz Khalifa‘s 2007 song “Be Easy,” featuring the lyric “walk it how I talk it so I talk it how I live it,” Def. Mem. at 6, among many others.
The only similarity between the two works at issue, the lyrics “walk it like I talk it,” is not original to the author and is, therefore, not protected by the copyright laws. See Feist, 499 U.S. at 345. Plaintiff has not plausibly alleged facts that demonstrate that Defendants copied “original elements of plaintiff‘s copyrighted work.” See West, 138 F. Supp. 3d at 453. Accordingly, Defendants’ motion to dismiss for failure to state a claim is GRANTED.
For the reasons stated above, Defendant Quality Control‘s motion to dismiss this action for lack of personal jurisdiction is DENIED and Defendants’ motion to dismiss for failure to state a claim is GRANTED. The Clerk of Court is directed to terminate the motion at ECF No. 65.
SO ORDERED.
ANALISA TORRES
United States District Judge
Dated: November 12, 2019
New York, New York