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Perry v ATV Music

Perry v ATV Music

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Published by Mark H. Jaffe
Barney Perry, guitarist and songwriter for the Blackbyrds, sued Sony and ATV Music for alleged infringement of his songs, including "Walking in Rhythm." The District Court in the Middle District of Tennessee dismissed the case on the grounds that Perry failed to allege any infringing action within the three year statute of limitations.
Barney Perry, guitarist and songwriter for the Blackbyrds, sued Sony and ATV Music for alleged infringement of his songs, including "Walking in Rhythm." The District Court in the Middle District of Tennessee dismissed the case on the grounds that Perry failed to allege any infringing action within the three year statute of limitations.

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Categories:Business/Law
Published by: Mark H. Jaffe on Sep 26, 2013
Copyright:Attribution Non-commercial

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10/05/2013

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UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF TENNESSEENASHVILLE DIVISIONBARNEY PERRY, ))Plaintiff ))No. 3:13-0227v. )Judge Sharp/Brown)ATV MUSIC, Inc., Ltd; ) JEFF SMARR, Executive, ))Defendants )
TO:THE HONORABLE KEVIN H. SHARPREPORT AND RECOMMENDATION
Presently pending is the Defendants’ motion to dismissthe Plaintiffs claimunder Federal Rule of Civil Procedure12(b)(6)
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for failure to state a claimupon which relief can begranted (Docket Entry 36). This motion is supported by a memorandumof law (Docket Entry 37). The time for a response has long sincepassed and Plaintiff has failed to respond to this motion. The Magistrate Judge recommends that the motion beGRANTED and this case be DISMISSED with prejudice.
BACKGROUND
 The amended complaint, which now governs this case, wasfiled on July 2, 2013 (Docket Entry 32). The named Defendants areSony/ATV Music, Inc., Jeff Smarr-Executive. The Plaintiff allegescopyright ownership of the songs “Walking in Rhythm” and “A Hot Day
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Although the Defendants contend that Plaintiffs did not name theproper parties and did not affect service of process in accordance withRule 4, they have accepted service of process in the matter and will relyon their motion to dismiss for failure to state a cause of action ratherthan other grounds.
Case 3:13-cv-00227 Document 39 Filed 09/24/13 Page 1 of 5 PageID #: 166
 
 Today.The Plaintiff alleges that the Defendants are using thesesongs without his permission as the copyright owner. He furtheralleges that they did not send the Plaintiff a compulsory licensein order to establish their legal use of his copyright property. Healleges that the Defendants have refused to pay the Plaintifaccording to the Plaintiffs requests for payment and accounting. The Defendants in their memorandumnote that thePlaintiff has not alleged that any of the copyright infringementoccurred within the three-year statute of limitations set by 17U.S.C. § 507(b). The Defendants in their motion have set forth theprocedural history of the case, which began on March 14, 2013, whenthe Plaintiff and Perryal Music Company, Inc. filed the originalcomplaint (Docket Entry 1).As an initial matter the Plaintiff proceeding
 pro se
could not file a lawsuit on behalf of a company. There were anumber of difficulties with the original complaint and theattempted service of process. The Magistrate Judge conducted atelephone conference on June 27, 2013, with the parties about thematter in an effort to sort out the case at that point. In an orderas a result of that telephone conference (Docket Entry 30), thePlaintiff was allowed to file an amended complaint that would nameSony/ATV as the Defendant and would not name Mr. Smarr, since Mr.Smarr is an executive and not an actual distributor of materials. The Magistrate Judge suggested that Mr. Perry include with hiscomplaint copies of his copyrights to the two songs and such
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Case 3:13-cv-00227 Document 39 Filed 09/24/13 Page 2 of 5 PageID #: 167
 
information that he has that Sony/ATV has within the statute olimitations used the material without either obtaining the properlicense or paying the required royalties. Defendants’ counselagreed to accept service of process by certified mail. The Plaintiffs amended complaint still included Mr.Smarr as a Defendant. The Plaintiff failed to respond to thismotion and it appears that certified mail sent to himat thataddress was returned as unclaimed. The unclaimed mail whichcontained the Magistrate Judges order was also sent by regularmail and that was not returned.LEGAL DISCUSSIONAs the Defendants point out in their memorandum, underBell
Atl. Corp. v. Twombly 
, 550 U.S. 544, 127 S. Ct. 1955, 1965,167 L. Ed. 2d 868 (2007) and
Ashcroft v. Iqbal
, 556 U.S. 662, 129S. Ct. 1937, 173 L. Ed. 2d 868 (2009):Only a complaint that states a plausible claimfor reliesurvives a motion to dismiss. Determining whether acomplaint states a plausible claimfor relief will [] bea context specific task that requires the reviewing courtto draw on its judicial experience and common sense.
Iqbal
at 4, 556 U.S. 662 (internal citations omitted). The Defendants are correct that under the Copyright Actno civil action shall be maintained under the provisions of thatact unless it is commenced within three years after the claimaccrued. 17 U.S.C. § 507(b). They argue the Plaintiff has assertedno facts that allege any activities that were within the threeyears prior to Plaintiff brining this lawsuit.
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Case 3:13-cv-00227 Document 39 Filed 09/24/13 Page 3 of 5 PageID #: 168

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