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Peggy Harley v Ann Nesby

Peggy Harley v Ann Nesby

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llSDCSDNYDOCUMENT
ELECTRONICALLY FILED
UNITED STATES
DISTRICT
COURT
DOC
#:--
....
~ ~ - 1 " I ~ m r l l
SOUTHERN
DISTRICT
OF
NEW
YORK
DATE FILE'Q
----------------------------------
X
PEGGY
HARLEY,
08
Civ.
5791
(KBF) (HBP)
Plaintiff,
MEMORANDUM
&
ORDER
-v-
ANN
NESBY,
et
al.,
Defendants.
----------------------------------
XKATHERINE
B.
FORREST,
District
Judge:
At
the April
13,
2012
conference
in
the
above-captioned
matter, the
Court
granted
pro se
plaintiff
Peggy
Harley's
motion
for
summary
judgment
as
to
defendants
Shanachie
EntertainmentCorporation
("Shanachie")
and
Ann
Nesby
("Nesby") on
hercopyright
infringement claim
only,
and
denied
in part
and
granted
in part
the
motion
for
summary
judgment
by
Shanachie,
in
which
de
fendant
Vaughn
Harper ("Harper
ll
)
joined.
1
The
Court
provided
its
reasoning,
in pertinent
part,
at
theApril
13
conference,
but
stated that
the
bases
for
its
decision
would
be
1
At
the
January
12,
2012
status
conference,
the
Court
set
a
briefing
schedule
for
dispositive
motions
which
set
the date for
any
such motion
to
be
made
as
February
9,2012. (Dkt.
No.
71.)
Shanachie
filed
its
motion--and
Vaughn
filed
his
joinder therein--on
February
8,
2012.
(Dkt.
No.
82,
92.)
Plaintiff
did
not
file
her
motion
for
summary
judgment by
February
9, 2012.
However,
in
construingheropposition
to
that
motion
liberally
asthe
Court
must
for
a
pro se
litigant,
Byng
v.
Wright,
NO.
09
civ.
9924,
2012
WL
967430,
at
*6
(S.D.N.Y.
Mar.
20,
2012)
("A
pro
se
party's
submissions
areto
be
read
liberally,
a
requirement
that
is
especially
strong
in
the
summary
judgment
context
where
claims
are subject
to
a
final
dismissal")
(citing
Graham
v.
Lewinski,
848
F.2d
342,
344
(2d
Cir.
1998)),
the
Court
finds
that
plaintiff
styled
the opposition
as
a
cross-motion
for
summary
judgment.
(See
Dkt.
No.98
("Notice
of
Motion
. . .
Against
Shanachie
EntertainmentCorporation
. .
.")
.)
1
Case 1:08-cv-05791-KBF Document 105 Filed 04/30/12 Page 1 of 17
 
set
forth
in
further
detail
in
a
written
opinion
to
follow.This
is
that
opinion.
Plaintiff
commenced
this
action
in
June
2008,
and
filed
an
amended
complaint
on August22, 2008.
(Dkt.
No.2,
4.)
This
action
relates
to
the
Grammy-nominated
song
"I
Apologize"
as
sung by
defendant
Nesby
and
produced
by
defendantShanachie.
Plaintiff
alleges
that
her
song
"It
Will
Never
Happen
Again"
is
infringed
by
that
song.
As
mentioned,
plaintiff
is
proceeding
pro
se,
which
has
carried
some
attendant
difficulties.
But
this
action
is
now
at
the stage
where
dispositive
motions
have
been
filed
and
this
Court
finds
that
it
can
rule
on
liability
as
to
some
defendants.
BACKGROUND
The
following
facts
are
undisputed
unless
otherwise
noted.
The
facts
are
derived
from
the
evidence
submitted
by
defendants
in
support
of
their
motion
as
well as
key
evidence
from
plaintiff.
Pro
se
plaintiff
Peggy
Harley
submitted
a
CD
with
both
her
song
and
"I
Apologize,"
the
alleged
infringing
song.
Those
songs
were
incorporated
by
reference
into
Harley's
Amended
Complaint--thecrux
of
which
is
the
substantial
similarity
between
her
song and
"I
Apologize"--and
thus, the
Court
accepted
for
filing
the
CD
filed
in
connection with
her
motion
for
2 
Case 1:08-cv-05791-KBF Document 105 Filed 04/30/12 Page 2 of 17
 
summary
judgment.
2
In addition, the
Court
considered the
allegations
of
plaintiff's
complaint
as
an
affidavit
for
summary
judgment
purposes
because
it
was
signed
under
penalty
of
perjury.
See
Colon
v.
Coughlin,
58
F.3d
865,
872
(2d
Cir.
1995)
.
Plaintiff
Peggy
Harley
composed
a
song
entitled
"It
Will
Never
Happen
Again"
in
2002,
which
has
a
registered
copyrightdated
January
7, 2008.
See
Decl.
of
Roger
Juan
Maldonado
in
Support
of
Mot.
for
Summ.
J.
("Maldonado
Decl.")
(Dkt.
No. 83)
Ex.
A.)
On
September
26,
2006,
Harley
met
with
a
radio
personality
named
Vaughn
Harper
(a
defendant
in
this
action)
and
provided
him
with
herpress
kit
which
comprised,
inter
alia,
five
copiesof
Harley's
ten-song
CD
on
which
the
song
"It
will
Never
Happen
Again"
was
contained.
(Am.
Compl.
(Dkt.
No.4)
at
4.)
That
meeting
transpired
after
Harper
requested
to
meet
with
Harley subsequent
to
hearing
a
sampling
of
her
music
marketed
on
the radio
station
for
which
he worked,
WBLS.
(Id.
at
5.)
Although Harper
originally
asked Harley
to
be
part
of various
projects,
including
a
tribute
album,
Harley
declined
the
invitation
because
Harper
stated
that
attorneys
shouldnot
be
Because
the recordings
were
incorporated
into
the
Amended
Complaint,
meaning
that
defendants
were
very
much
"on
notice"
that
the
similarity
between
the
two
songs
is
at
the
heart
of
this
matter, the recordings
themselves
not
"new"
discovery.
Accordingly,
the
Court's
acceptance
of
therecordings
is
not
at
odds
with
thediscovery
ruling
imposed by
Magistrate
Judge
Pitman which
precluded
plaintiff
from
submitting
documents
or other
discovery
after
February
17,
2011.
(See
Dkt.
No.
65.)
3 
2
Case 1:08-cv-05791-KBF Document 105 Filed 04/30/12 Page 3 of 17

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