Case: 11-1708 Document: 15-1 Filed: 11/18/2011 Pages: 68

Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
No. 11-1708
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
VINCENT PETERS, professionally known as VINCE P. Plaintiff-Appellant, v. KANYE WEST, ROC-A-FELLA RECORDS, LLC and UMG RECORDINGS, INC. Defendants-Appellees. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division Case No. 10-cv-3951 The Honorable Judge Virginia Kendall
BRIEF OF APPELLEES
PRYOR CASHMAN LLP Ilene S. Farkas 7 Times Square New York, New York 10036 (212) 421-4100 Fax: (212) 326-0806 ifarkas@pryorcashman.com
MICHAEL BEST & FRIEDRICH LLP Ronald H. Balson Carrie A. Hall Two Prudential Plaza 180 North Stetson Avenue, Suite 2000 Chicago, Illinois 60601 (312) 222-0800 Fax: (312) 222-0818 rhbalson@michaelbest.com cahall@michaelbest.com
Attorneys for Defendants-Appellees
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
DISCLOSURE STATEMENTS
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
ii
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
iii
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
TABLE OF CONTENTS DISCLOSURE STATEMENTS ....................................................................i TABLE OF CONTENTS .............................................................................iv TABLE OF AUTHORITIES........................................................................vi JURISDICTIONAL STATEMENT..............................................................1 STATEMENT OF THE ISSUES .................................................................1 STATEMENT OF THE CASE .....................................................................2 STATEMENT OF THE FACTS ...................................................................6 A. The Plaintiff.........................................................................................6 B. The Defendants ...................................................................................8 C. Plaintiff Brings Suit For Infringement ..............................................8 D. The District Court Properly Dismissed The Complaint..................11 SUMMARY OF ARGUMENT....................................................................16 ARGUMENT...............................................................................................19 I. Standard On A Motion To Dismiss ..................................................19 A. There Is Substantial Precedent Supporting The Dismissal Of Infringement Claims On Rule 12(b)(6) Motions ...19 II. Plaintiff Has Failed To Plausibly Plead That The Songs Are Substantially Similar As A Matter Of Law ...................22 A. The Seventh Circuit Employs The Ordinary Observer Test To Determine Substantial Similarity..................................22
iv
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
B. The Lyrics At Issue Are Unoriginal And Not Protected By Copyright Law.........................................24 1. Plaintiff Cannot Copyright The Title Of His Song.................26 2. Plaintiff Cannot Claim Ownership Of The Name Kate Moss....................................27 3. The Hook In Plaintiffs Chorus Is Unoriginal And Is Thus Not Protected By Copyright...............................28 4. The Combination Of Unprotectable Elements In Plaintiffs Song Is Unprotectable.......................33 a. Plaintiffs Combination Is Unoriginal ................................33 b. The District Court Properly Dismissed Plaintiffs Combination Argument .....................................39 D. The District Court Properly Found, As An Ordinary Observer, That The Songs Are Not Substantially Similar.........47 E. The District Court Correctly Found No Fragmented Literal Similarity...............................................49 CONCLUSION ...........................................................................................54
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
TABLE OF AUTHORITIES CASES PAGE(s)
Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140 (2d Cir. 1998) ................................................13, 30, 31 Alberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705 (7th Cir. 1972)...............................................17, 24, 32 Allen v. Destinys Child, No. 06 C 6606, 2009 WL 2178676 (N.D. Ill. July 21, 2009)...........45 Anyere v. Wells Fargo, Co., No. 09 C 2769, 2010 WL 1292494 (N.D. Ill. Mar. 29, 2010) ..........31 Armour v. Knowles, No. H-05-2407, 2006 WL 2713787 (S.D. Tex. Sep. 21, 2006) ........33 Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009)..............................................19 Atari, Inc. v. North America Philips Consumer Electrics Corp., 672 F.2d 607 (7th Cir. 1982)......................................... 22, 23, 24, 47 Austin v. American Assn of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001)...........................................................31 BMS Entertainment/Heat Music LLC v. Bridges, No. 04 Civ. 2584 (PKC), 2005 WL 2675088 (S.D.N.Y. Oct. 20, 2005) .................................................................45 Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) ....................................................................19 Bell v. Blaze Magazine, No. 99 Civ. 12342 (RCC), 2001 WL 262718 (S.D.N.Y. Mar. 16, 2001) ..........................................................33, 49
vi
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
CASES
PAGE(s)
Boone v. Jackson, 206 Fed. Appx. 30 (2d Cir. 2006)..............................................25, 32 Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267 (6th Cir. 2009)...........................................................52 Bucklew v. Hawkins, Ash, Baptie & Co., LLP, 329 F.3d 923 (7th Cir. 2003)...............................................40, 41, 42 Castle Rock Entertainment, Inc. v. Carol Publishing Grp., Inc., 150 F.3d 132 (2d Cir. 1998) ............................................................50 Clark v. G.A. Kayser & Sons, Inc., 472 F. Supp. 481 (W.D. Pa. 1979) ..................................................39 Currin v. Arista Records, 724 F. Supp. 2d 286 (D. Conn. Apr. 15, 2010)................................26 Damiano v. Sony Music Entertainment, Inc., 975 F. Supp. 623 (D.N.J. 1996) ..........................................37, 38, 48 Darden v. Peters, 488 F.3d 277 (4th Cir. 2007)...........................................................27 Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905 (2d Cir. 1980) ............................................................39 Feist Publns, Inc. v. Rural Telegraph Serv. Co., 499 U.S. 340 (1991) ................................................................ passim Gottlieb Development LLC v. Paramount Pictures Corp., 590 F. Supp. 2d 625 (S.D.N.Y. 2008)........................................21, 24 Grimes v. Navigant Consulting, Inc., 185 F. Supp. 2d 906 (N.D. Ill. 2002)...............................................31
vii
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
CASES
PAGE(s)
Hayes v. Koch Entertainment, G-06-515, 2008 U.S. Dist. LEXIS 33418 (S.D. Tex. Mar. 14, 2008)..........................................................25, 26 Incredible Technologies, Inc. v. Virtual Technologies, Inc., 400 F.3d 1007 (7th Cir. 2005).............................................22, 23, 49 JCW Investments, Inc. v. Novelty, Inc., 482 F.3d 910 (7th Cir. 2007)......................................... 22, 23, 40, 41 Jarvis v. A&M Records, 827 F. Supp. 282 (D.N.J. 1993) ......................................................52 Jean v. Bug Music, Inc., No. 00 Civ. 4022 (DC), 2002 WL 287786 (S.D.N.Y. Feb. 27, 2002) .....................................................24, 25, 38 Johnson v. Gordon, 409 F.3d 12 (1st Cir. 2005) .............................................................48 Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995) ..............................................................39 Kroencke v. General Motors Corp., 270 F. Supp. 2d 441 (S.D.N.Y. 2003), affd, 99 Fed. Appx. 339 (2d Cir. 2004).....................................51, 52 Lessem v. Taylor, 766 F. Supp. 2d 504 (S.D.N.Y. 2011)..............................................46 Lil Joe Wein Music, Inc. v. Jackson, 245 Fed. Appx. 873 (11th Cir. 2007) ........................................33, 38 Martinez v. McGraw, No. 3:08-0738, 2009 WL 2447611 (M.D. Tenn. Aug. 10, 2009) .....33
viii
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
CASES
PAGE(s)
Menominee Indian Tribe v. Thompson, 161 F.3d 449 (7th Cir. 1998)...........................................................31 Murray Hill Publns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312 (6th Cir. 2004)...........................................................51 Narell v. Freeman, 872 F.2d 907 (9th Cir. 1989)...........................................................32 Nelson v. PRN Productions, Inc., 873 F.2d 1141 (8th Cir. 1989).........................................................20 Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2004).........................................................50 Nova Design Build, Inc. v. Grace Hotels, LLC, 652 F.3d 814 (7th Cir. 2011).....................................................18, 49 Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960) ............................................................47 Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57 (2d Cir. 2010) ..........................................................................21 Prunte v. Universal Music Group, 699 F. Supp. 2d 15 (D.D.C. 2010).............................................14, 37 Ruolo v. Russ Berrie & Co., 886 F.2d 931 (7th Cir. 1989)...............................................12, 40, 41 Santrayll v. Burrell, No. 91 Civ. 3166 (PKL), 1996 WL 134803 (S.D.N.Y. Mar. 25, 1996) ................................................................45 Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003)...............................................15, 34, 43
ix
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
CASES
PAGE(s)
Schroeder v. William Morrow & Co., 566 F.2d 3 (7th Cir. 1977) ..............................................................28 Softel, Inc. v. Dragon Med. and Scientific Communications, Inc., 118 F.3d 955 (2d Cir. 1997) ............................................................39 Staggs v. West, No. PJM 08-728, 2009 WL 2579665 (D. Md. Aug. 17, 2009)........................................................20, 32, 37 Steele v. Turner Broadcast System, Inc., 646 F. Supp. 2d 185 (D. Mass 2009)...................................14, 36, 37 Susan Wakeen Doll Co. v. Ashton-Drake Galleries, 272 F.3d 441 (7th Cir. 2001).....................................................12, 23 Sweet v. City of Chicago, 953 F. Supp. 225 (N.D. Ill. 1996)..............................................19, 26 Tabachnik v. Dorsey, 257 Fed. Appx. 409 (2d Cir. 2007)..................................................21 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 127 S. Ct. 2499 (2007)..............................................31 Tillman v. New Line Cinema Corp., No. 05 C 910, 2008 WL 5427744 (N.D. Ill. Dec. 31, 2008), affd, 374 Fed. Appx. 664 (7th Cir. 2010) .......................................48 Tin Pan Apple, Inc. v. Miller Brewing Co., No. 88 Civ. 4085 (CSH), 1994 WL 62360 (S.D.N.Y. Feb. 24, 1994) .................................................................45 Tiseo Architects, Inc. v. B&B Pools Serv. and Supply Co., 495 F.3d 344 (6th Cir. 2007).....................................................24, 49
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
CASES
PAGE(s)
Vaden v. Village of Maywood, 809 F.2d 361 (7th Cir. 1987)...........................................................19 Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502 (7th Cir. 1994) ................................................12, 24, 47 Williams v. Broadus, No. 99 Civ. 10957 (MBM), 2001 WL 984714 (S.D.N.Y. Aug. 27, 2001).................................................................52 Williams v. Crichton, 84 F.3d 581 (2d Cir. 1996) ..........................................................................21 Wihtol v. Wells, 231 F.2d 550 (7th Cir. 1956) .............................................................26 Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124 (C.D. Cal. 2007) .....................................20, 31
STATUTES Fed. R. Civ. P. 12(b)(6).............................................................................19 TREATISE 4 Melville B. Nimmer, David Nimmer, Nimmer on Copyright, 13.03[A][2] (Matthew Bender Rev. ed.)...........................................50
xi
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
JURISDICTIONAL STATEMENT The Plaintiffs Jurisdictional Statement is complete and correct. STATEMENT OF THE ISSUES 1. Where the only alleged similarities between song lyrics are
five words and short phrases, all of which the Plaintiff concedes are unoriginal to him, did the district court properly dismiss Plaintiffs sole claim for copyright infringement, finding that no ordinary observer could find substantial similarity between the two works? 2. In determining whether Plaintiff had stated a claim for
copyright infringement, did the district court properly follow the precedent of this Circuit by first identifying which elements of Plaintiffs work at issue are protected by copyright? 3. Once the unprotectable elements at issue were eliminated,
did the district court properly find that Plaintiff has not adequately pled substantial similarity since there remained virtually no similarities between the two works at issue? 4. Did the district court properly find that the combination of
four or five unprotectable elements in the two songs does not rise to the level of protectable expression, where the few alleged similarities are 1
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
qualitatively and quantitatively minor as compared to the songs as a whole, derive from a maxim, and even the alleged similarities contain numerous differences? 5. Did the district court properly dismiss Plaintiffs sole
copyright infringement claim on a motion to dismiss, where no amount of discovery, fact-finding or expert testimony will change the lyrics to the song or Plaintiffs admission that the words and phrases at issue are unoriginal to him? STATEMENT OF THE CASE Plaintiff has brought suit based upon a handful of alleged similarities between the lyrics of two songs. Plaintiff does not claim any similarity between the music of the two songs. Plaintiff concedes that the alleged lyrical similarities are unoriginal to him and, individually, unprotectable. Indeed, with the exception of one lyrical similarity (a reference to the Supermodel Kate Moss, which is not copyrightable), the remaining alleged similarities all concededly derive from a century-
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
old maxim by Friedrich Nietzsche, a maxim that, as the district court found, enjoyed a robust existence in the public domain. (Opinion at 8.)1 Plaintiff bases his claim on the supposed copyrightability of the combination of these otherwise unprotectable words and phrases contained in completely different songs. Yet Plaintiff failed to cite a single case that supports even the possibility of actionable infringement based on the scant alleged similarities at issue herein. That is not surprising, because if the alleged similarities here could state a claim for copyright infringement, it would create a dangerously low threshold for establishing copyright protection over otherwise commonplace words and phrases. The copyright laws were not meant to create such a monopoly in common words and phrases. The district court, in a detailed and well-reasoned decision, dismissed the Plaintiffs one-count complaint, holding that (a) the individual alleged similarities are unoriginal to Plaintiff and unprotectable; and (b) the combination of these unprotectable elements in the songs is not substantially similar as a matter of law.
A true and correct copy of the district courts Opinion can be found in the Defendants Appendix at pages 1 through 12. Citations to Defendants Appendix are referenced herein as Defs. Appx. at __.
1
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
Plaintiff now appeals the district courts decision. On appeal, Plaintiff concedes that the district court employed the proper standard in determining substantial similarity. He concedes that there are only, at most, five alleged lyrical similarities between the two songs. He concedes that each one of these lyrics is unoriginal to him and unprotectable. He cites no authority which supports his argument that the combination of these five scattered unprotectable elements state a claim for infringement based on substantial similarity. He does not distinguish much less address the substantial authority cited by Defendants below which granted motions to dismiss infringement claims where the alleged similarities consisted of nothing more than commonplace words and phrases. Rather, Plaintiff simply argues that because the majority of these similarities are contained in the hook, or chorus of the two songs, and the hook is a major element of the song, the similarities alleged are enough to state a claim for infringement. He cites no authority to support his position, and ignores the simple fact that there are many more differences in the choruses than similarities, and the alleged similarities (which also contain many differences) all derive from a 4
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
century-old maxim written by someone else a maxim that has been used in many songs before Plaintiffs (and Defendants) song. Plaintiffs remaining argument fares no better. While he admits that the similarities contained in the songs are minimal, Plaintiff nonetheless claims that an ordinary observer would find that the songs as a whole are substantially similar, presumably based on the total concept and feel of the two songs. The district court, however, considered and dismissed this argument and with good reason. In fact, the side-by-side comparison of the lyrics conducted by the district court demonstrates that there are so many differences that no ordinary observer could find that the songs are substantially similar. Thus, following well-established precedent, the district court properly found as a matter of law that Plaintiff had failed to state a claim for infringement, and properly dismissed Plaintiffs Complaint. Simply put, the lyrics are different. The music is different. Even the alleged similarities are, in fact, quite different. The district court properly held that the facts set forth in Plaintiffs Complaint fall far short of pleading a claim for copyright infringement and therefore must
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
be dismissed as a matter of law. The decision of the district court should be affirmed. STATEMENT OF THE FACTS A. The Plaintiff
Plaintiff Vincent Peters (Plaintiff or Peters) claims to be an upand-coming songwriter and performer in the hip-hop or rap field of music. (Compl. 1, 9.)2 According to the Complaint, sometime in 2006, Plaintiff wrote and recorded Plaintiffs Song. (Id. 13.) Plaintiff alleges that Interscope Records was interested in Plaintiff as a potential recording artist, and indicated to [Plaintiff] that it would consider devoting substantial resources to the production of an album by [Plaintiff] if he had a good executive producer. (Id. 14.) In August 2006, Plaintiff alleges that he contacted John Monopoly to see whether Monopoly would be interested in acting as his executive producer. (Id.) Plaintiff concedes that this meeting had nothing to do with Defendant Kanye West Plaintiff was not seeking to work with Mr. West through Monopoly; rather, he was seeking Monopolys help in producing his own
A true and correct copy of the Complaint can be found in Plaintiffs Appendix at pages 1 through 10.
2
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
material. Plaintiff alleges that Monopoly was Mr. Wests former business manager. (Id.) Plaintiff alleges that over the following months, he sent certain songs to Monopolys administrative assistant. (Id. 16.) Plaintiff claims that, on November 12, 2006, Plaintiff and Monopoly met and apparently listened to some of Plaintiffs recordings, including Plaintiffs Song. (Id. 19.) At that meeting, Plaintiff allegedly gave Monopoly a CD containing several of his songs, including Plaintiffs Song. (Id. 20.)3 While Plaintiff alleges that Monopoly told him that he would act as the executive producer on an Interscope project, apparently the proposed infusion of funds from Interscope did not materialize, and the project did not proceed. (Id. 24.) Plaintiff does not allege that he ever gave a copy of Plaintiffs Song to Mr. West. Nor does Plaintiff allege that Mr. West had actually ever heard Plaintiffs Song. Rather, Plaintiff speculates that Mr. West had access to Plaintiffs Song via Mr. Monopoly. (Id. 35.) Plaintiff further speculates that Mr. West may have had access to Plaintiffs Song on Plaintiffs public MySpace website page. (Id. 36.)
Although not relevant on this appeal, Defendants dispute these allegations.
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
B.
The Defendants
Mr. West is a well-known Grammy Award-winning artist and music producer. (Id. 10.) Mr. West has written dozens of highly successful songs, including Defendants Song. Plaintiff alleges that Mr. West released Defendants Song digitally in July 2007. (Id. 25.) According to the Complaint, Defendant Roc-A-Fella Records and its parent company, Defendant UMG Recordings, sold and distributed Defendants Song. (Id. 11-12.) Defendants Song won the Grammy Award for Best Rap Solo Performance in 2008 and reached number one on the music charts in numerous countries. (Id. 26.) It has also been commercially successful, selling over three million singles and has been named the 16th most downloaded song on iTunes of all time. (Id.) C. Plaintiff Brings Suit For Infringement
In June 2010, three years after the release of Defendants Song, Plaintiff brought this action, which appeared to coincide with his attempts to publicize his new album. Plaintiff had not previously registered his song (which was allegedly created in 2006) for copyright registration with the U.S. Copyright Office, nor had he obtained a valid 8
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
registration. Rather, weeks before commencing the action, on March 28, 2010, Plaintiff submitted an application for registration of Plaintiffs Song to the U.S. Copyright Office. (Id. 40.) Plaintiff concedes that that there is no actionable similarity between the music of the two songs. Instead, Plaintiff bases his single infringement claim solely on the alleged similarity between four words or phrases, and the shared one-word title of the two songs. Specifically, Plaintiffs claim is based on the following alleged similarities: 1. 2. Both songs share the same title, Stronger. (Id. 34.) Both songs make one reference to the well-known supermodel
Kate Moss (albeit differently). (Id. 32.) 3. The choruses contain some similar words, which are
highlighted below:4
In fact, out of the 33 total words in Plaintiffs chorus, only 9 are claimed to be copied in Defendants Song; only 9 words out of the 51 words in Defendants chorus are alleged to be similar. No sentence is the same. Instead, only a few random words are similar, yet those words are set forth in an entirely different sequence. Even the expression of the Friedrich Nietzsche proverb is different.
4
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
Plaintiffs Song What dont kill me make me stronger The more I blow up the more you wronger You coped my CD you can feel my hunger The wait is over couldnt wait no longer
Defendants Song N-N-N-now th-th-that dont kill me Can only make me stronger I need you to hurry up now Cause I cant wait much longer I know I got to be right now Cause I cant get much wronger Man Ive been waitin all night now Thats how long Ive been on ya
Plaintiff admits that both choruses derive from the well-known maxim by Friedrich Nietzsche, That which does not kill us makes us stronger. (Id. 30; Pl. Br. at 17.) They both include the word wronger, which rhymes with the last word of the maxim, stronger. (Id. 33-34.) And Plaintiffs Song includes the line couldnt wait no longer, while Defendants Song includes the generic line cant wait much longer. (Id. 31.) That is the full extent of the alleged similarities. There are hundreds of other words and phrases contained in both songs, none of which are allegedly similar. (Dkt. 18, Exh. C.)5
A side-by-side comparison of the Songs can be found in Defendants Appendix at page 13.
10
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
D.
The District Court Dismissed The Complaint
On March 3, 2011, the district court dismissed Plaintiffs Complaint, finding that the songs are not substantially similar as a matter of law. (Defs. Appx. at 6.) The district court had before it the Plaintiffs allegations as to which lyrics are supposedly similar, the complete lyrics of the two songs, recordings of the two songs (Dkt. 18, Exh. B), as well as a side by side comparison of the lyrics (Defs. Appx. at 13). In a detailed, 12-page decision, the district court reviewed the lyrics at issue, the arguments presented by Plaintiff and the authorities cited by the parties. In finding no substantial similarity between the five phrases and lyrics at issue and granting Defendants motion to dismiss, the district court held that, to withstand a motion to dismiss,6 Plaintiff must sufficiently plead substantial similarity between the two songs at issue:
Unless direct evidence of copying is available, a plaintiff must also sufficiently plead that defendants had access to plaintiffs work. Because the issue of whether a defendant had access to plaintiffs work is inherently a factually-intensive analysis, solely for the purposes of this motion, Defendants did not move to dismiss based on access. However, if this case proceeds to discovery, Defendants will demonstrate that none of the Defendants were ever given a copy of Plaintiffs Song or otherwise had access to this work (assuming, arguendo, it even existed prior to the creation of Defendants Song).
6
11
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
Peters must also plausibly plead that Wests Song is substantially similar to Peterss Song. To do so, Peters must plausibly plead that the accused work is so similar to the plaintiffs work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiffs protectable expression. Susan Wakeen Doll, 272 F.3d at 451 (citation omitted). Although the ordinary observer test depends on whether the accused work has captured the total concept and feel of the copyrighted work, the Court must first identify which elements of the work are protected by the copyright. Wildlife Express,18 F.3d at 511-12 (citation omitted); see also Ruolo v. Russ Berrie & Co., 886 F.2d 931, 939 (7th Cir. 1989); FASA Corp. v. Playmates Toys, Inc., 912 F. Supp. 1124, 1147 (N.D. Ill. 1996) . . . Because Peters claims that Wests Song infringes on his song due to their similar titles, references to Kate Moss, and portions of the hooks, the Court must first identify whether those elements of Peterss Song are protected by copyright. The Court then addresses whether Peters has adequately pled that an ordinary observer would find substantial similarity between the protectable elements of the two works. (Defs. Appx. at 6-7) (emphasis added). In reaching its decision, the district court then analyzed whether the lyrics at issue are protected by copyright. (Id. at 6-10.) It held that the title of the Plaintiffs Song and the singular reference to the name Kate Moss are not copyrightable. (Id. at 7-8.) With respect to the remaining alleged similarities between the song lyrics all of which are contained in the hook or chorus of each song, and all of which are based on an admittedly famous Friedrich Nietzsche maxim the district court 12
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
held these lyrics to be unoriginal to Plaintiff, and unprotectable. (Id. at 8-9): The phrase [t]hat which does not kill me makes me stronger in Peterss Song is unprotectable. To qualify for copyright protection, a work must be original to the author. Feist, 499 U.S. at 345. Although the requisite level of creativity [for originality] is extremely low, the work must have been independently created by the author to be original. Id. Here, Peters concedes in his Complaint that the reference is to a maxim. (Compl. 30.) Maxims that enjoy a robust existence in the public domain long before being employed in song lyrics lack the requisite originality to warrant protection. Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 144 (2d Cir. 1998) (holding that the phrase [y]ouve got to stand for something or youll fall for anything is too common to be protectable) (citations omitted); see also Selle, 741 F.2d at 901 ([I]f both works were copied from a common source in the public domain, then there is no infringement.). Because this maxim was copied from a common source that enjoyed a robust existence in the public domain, it is unprotectable. (Defs. Appx. at 8.) With respect to the two remaining words and short phrases that derive from this maxim: couldnt wait no longer and wronger, the court held that these are not protected by copyright (Id. at 8-9.) As the district court held, common, trite, and clichd language conveying ideas generally expressed in a limited number of ways are unprotectable. (Id.
13
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
at 9.) The district court went on to reject Plaintiffs reliance on these short phrases, each of which was based on the Nietzsche maxim: Here, couldnt wait no longer in Peterss Song is a short phrase expressing impatience in trite and clichd language. While the word wronger may not be common, it is not unique to Peters and is instead part of a common rhyme scheme ending in -er. Common rhyme schemes, however, are not protectable. See, e.g., Steele v. Turner Broad. Sys., Inc., 646 F. Supp. 2d 185, 192 (D. Mass. 2009) (A common rhyme scheme or structure does not qualify as original expression protectable under federal copyright law.); Prunte v. Universal Music Group, 699 F. Supp. 2d 15, 29 (D.D.C. 2010) ([A] rhyme scheme using words ending in the commonplace -ill sound is [not] protectible.). Therefore, Peterss use of the words longer and wronger in a triple rhyme with stronger is not protectable. As such, Peterss Complaint does not plausibly allege that the hook of Peters Song is a protectable element of the work. (Id. at 9.) The district court then rejected Plaintiffs argument that the combination of the unprotectable elements at issue here is otherwise protectable. It noted that while courts have stated that combinations of unprotectable elements can be protectable, they have done so in limited contexts. (Id. at 9-11.) The court held that an original combination of unprotectable elements is only protectable when those [unprotectable] elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of 14
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
authorship. Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003). (Defs. Appx. at 10.) The district court addressed and distinguished the cases relied upon by Plaintiff for his argument that the combination of lyrical similarities is enough to state a claim for infringement. (Id.) The court rejected Plaintiffs argument, finding that the hook in Wests Song differs significantly from the hook in Peterss Song and contains a triple rhyme instead of Peterss quadruple rhyme. Indeed, [unlike the cases relied upon by Plaintiff] none of the sentences that comprise the two hooks even those referencing the maxim are identical. (Id.) The district court found that the combination of Plaintiffs unprotectable elements is not protectable. (Id. at 10-11.) Then, the district court analyzed whether, once the unprotectable elements are eliminated, an ordinary observer would find that the two works are substantially similar. (Id. at 11.) The court engaged in a sideby-side comparison of the two sets of lyrics and held that an ordinary observer would find that the Songs are not substantially similar. (Id.) The district court found that the hooks and verses no longer have any similarities and are different in content and style. (Id.) 15
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
The district court also dismissed Plaintiffs final argument that the Songs have fragmented literal similarity, a theory employed in other circuits. (Id. at 11-12.) The court held that the few identical words contained in the Songs do not rise to the level of fragmented literal similarity, and they do not have readily recognizable qualitative significance in relation to the [Plaintiffs] work as a whole. (Id. at 12.)7 As shown below, the district courts analysis was sound, and in full accord with Seventh Circuit jurisprudence. It is respectfully submitted that the district courts dismissal of the Complaint should be affirmed. SUMMARY OF ARGUMENT Plaintiff bases his claim for copyright infringement on the Defendants alleged use of five unoriginal and unprotectable words and short phrases appearing in Plaintiffs Song. Plaintiff makes no claim of similarity regarding the music of Defendants Song; it is only this handful of lyrics at issue. Plaintiff concedes that the alleged lyrical similarities are unoriginal to him and individually unprotectable.
While Plaintiff claims that the district court improperly filtered out the lyrics at issue, Plaintiff concedes that a substantial similarity analysis requires the court to first identify the elements of the work that are protected by copyright, which necessitates an examination of the lyrics at issue and whether they are protectable. Indeed, the cases cited by the district court on this point are relied upon by Plaintiff. (Compare Defs. Appx. at 6-7 with Pl. Br. at 27.)
7
16
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
The district court properly dismissed this action based on relevant precedent. On a motion to dismiss based on the failure to plausibly plead substantial similarity, courts routinely examine whether the lyrics at issue are protectable under copyright law. Here, the district court correctly determined that each of the five words and phrases at issue are unoriginal and thus unprotectible as a matter of law. While Plaintiff generally contends that titles, words and phrases are protectable, controlling caselaw is to the contrary. See, e.g., Alberto-Culver Co. v.
Andrea Dumon, Inc., 466 F.2d 705, 710 (7th Cir. 1972) (short phrase not
protectable under copyright law). Moreover, Plaintiff does not seriously contend that the particular words and phrases at issue are original to him. Nor could he, since he admits that all but one of the lyrics derive from a famous Nietzsche proverb. The remaining lyrical similarity is the use of the name of a famous supermodel albeit, in different contexts which Plaintiff concedes is not protectable as a matter of law. In addition, the district court properly found that merely combining the unprotectable lyrics in Plaintiffs Song does not, as Plaintiff asserts, render them protectable. The district court found the purported combination to be unoriginal, and in addition, that even the combination 17
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
of words and phrases in Defendants Song were significantly different than the combination of those words in Plaintiffs Song. Finally, the district court conducted a side-by-side comparison of the lyrics as an ordinary observer, and determined that the Songs lyrics are not substantially similar. While Plaintiff faults the district court for filtering out the lyrics at issue, the district court followed Seventh Circuit precedent in conducting its ordinary observer analysis, which requires a court to first determine which elements at issue are protectable by copyright. See, e.g., Nova Design Build, Inc. v. Grace
Hotels, LLC, 652 F.3d 814, 818 (7th Cir. 2011).

The district court also properly held that there is no fragmented literal similarity here. Contrary to Plaintiffs argument, a simple reading of the lyrics shows that the words and phrases contained in the choruses of both Songs are not exact or even nearly exact. Thus, the district court correctly determined as a matter of law that the Songs share no similarities, let alone similarities that can be categorized as substantial.
18
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
ARGUMENT I. Standard On A Motion To Dismiss To survive a motion to dismiss, a plaintiff must do more than solely recite the elements for a violation; he must plead facts with sufficient particularity so that his right to relief is more than mere conjecture. See
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009); Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1969 (2007). The Court need not
accept conclusory legal allegations as true. Vaden v. Village of Maywood, 809 F.2d 361, 363 (7th Cir. 1987). Dismissal is warranted where the complaint fails to allege enough facts to state a claim for relief that is plausible on its face. Twombly, 127 S. Ct. at 1974. A. There Is Substantial Precedent Supporting The Dismissal Of Infringement Claims On Rule 12(b)(6) Motions
The district courts decision is in line with many other decisions that have dismissed copyright infringement claims on a Rule 12(b)(6) motion where the court can determine, as a matter of law, that no substantial similarity exists between the works at issue. For example, in
Sweet v. City of Chicago, 953 F. Supp. 225, 228-29 (N.D. Ill. 1996), the
plaintiffs sued for infringement based on, inter alia, the similar titles of the works. The Northern District of Illinois granted the defendants 19
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
motion to dismiss with prejudice, holding that titles are not protected by copyright and the works were not otherwise substantially similar. Id. at 230. Similarly, in Staggs v. West, No. PJM 08-728, 2009 WL 2579665, at *3-5 (D. Md. Aug. 17, 2009), the plaintiff sued Mr. West and UMG Recordings, among other defendants, alleging that, inter alia, the defendants infringed his musical composition by copying portions of his song lyrics. Id. at *2-4. The court granted defendants motion to dismiss, finding that, as a matter of law, the alleged lyrical similarities consisted of nothing more than commonplace words and phrases, which is insufficient to plead substantial similarity. Id. at *7-8. Simply put, [t]here is ample authority for holding that when the copyrighted work and the alleged infringement are both before the court, capable of examination and comparison, non-infringement can be determined on a motion to dismiss. Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124, 1130 (C.D. Cal. 2007) (citation & quotations omitted); see
also Nelson v. PRN Prods., Inc., 873 F.2d 1141, 1143-44 (8th Cir. 1989)
(The trial judge could properly determine the matter of substantial similarity as a matter of law and did so by granting defendants motion to dismiss the copyright count on the ground that it failed to state a 20
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
claim for infringing use); Tabachnik v. Dorsey, 257 Fed. Appx. 409, 410 (2d Cir. 2007) (granting motion to dismiss where no substantial similarity existed); Gottlieb Dev. LLC v. Paramount Pictures Corp., 590 F. Supp. 2d 625, 634 (S.D.N.Y. 2008) (dismissing copyright infringement claim on motion to dismiss where any copying was de minimis as a matter of law and therefore no reasonable juror could find substantial similarity); Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir. 2010);Williams v. Crichton, 84 F.3d 581, 589 (2d Cir. 1996). Like the plaintiffs in the cases cited above, Plaintiff has failed to allege sufficient facts to plausibly establish substantial similarity. Here, the district court had the lyrics before it. (See Defs. Appx. at 13.) The district court was clearly capable of examining and comparing the lyrics at issue and determining, based on the few similarities alleged, whether Plaintiff had stated a claim for copyright infringement. While Plaintiff half-heartedly argues that there is some purported need for discovery and expert testimony (see Pl. Br. at 9-10), no amount of discovery will change the simple fact that there are only four or five alleged similarities
21
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
between the Songs lyrics at issue, and none of them are original to the Plaintiff. Accordingly, the district courts decision should be affirmed. II. Plaintiff Has Failed To Plausibly Plead That The Songs Are Substantially Similar As A Matter Of Law A. The Seventh Circuit Employs The Ordinary Observer Test To Determine Substantial Similarity
To succeed on his claim for copyright infringement, Plaintiff must prove: (1) ownership of a valid copyright; and (2) unauthorized copying of constituent elements of the work that are original. JCW Invs., Inc. v.
Novelty, Inc., 482 F.3d 910, 914 (7th Cir. 2007) (quoting Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). Because direct
evidence of copying is rarely available, copying may be inferred only where a plaintiff can prove that a defendant had access to the plaintiffs work and the accused work is substantially similar to the plaintiffs copyrighted work. Atari, Inc. v. North Am. Philips Consumer Elecs.
Corp., 672 F.2d 607, 614 (7th Cir. 1982). To prove substantial similarity,
a plaintiff must show that the defendants copied from the plaintiffs work and that the copying, if proven, went so far as to constitute an improper appropriation. Incredible Techs., Inc. v. Virtual Techs., Inc., 400 F.3d 1007, 1011 (7th Cir. 2005), quoting Atari, 672 F.2d at 614. 22
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
Courts in the Seventh Circuit employ the ordinary observer test to determine whether two works are substantially similar. The test is whether the accused work is so similar to the plaintiffs work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiffs protectible expression by taking material of substance and value. Susan Wakeen Doll Co. v. Ashton-
Drake Galleries, 272 F.3d 441, 451 (7th Cir. 2001) (emphases added;
citation & quotations omitted). This test must take into account that the copyright laws preclude appropriation of only those elements of the work that are protected by the copyright. Atari, 672 F.2d at 614;
Incredible Techs., 400 F.3d at 1011 ([C]opyright laws preclude

appropriation of only those elements of the work that are protected by the copyright.) The sine qua non of the ordinary observer test, however, is the overall similarities rather than the minute differences between the two works. Id. at 618. The test for substantial similarity is an objective one.
JCW Invs., Inc., 482 F.3d at 916. Th[e] test does not involve analytic
dissection and expert testimony, but depends on whether the accused work has captured the total concept and feel of the copyrighted work. 23
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
Atari, 672 F.2d at 614 (internal citation & quotations omitted). Courts
often employ a side-by-side comparison of the two works to determine whether they are indeed substantially similar. See, e.g., Wildlife
Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 510 (7th Cir.
1994); Alberto-Culver Co., 466 F.2d at 710. The elements that are alleged to be similar (and thus protected) must be original, creative expressions and must be more than de
minimis. Gottlieb Dev., 590 F. Supp. 2d at 634; see also Jean v. Bug Music, Inc., No. 00 Civ. 4022 (DC), 2002 WL 287786, at *5 (S.D.N.Y. Feb.
27, 2002) (copying that is so trivial as to fall below the quantitative and qualitative threshold of substantial similarity will be considered de
minimis and thus not actionable).

B. The Lyrics At Issue Are Unoriginal And Not Protected By Copyright Law
The district court properly held that, to determine substantial similarity, a court must first determine whether the elements at issue are protectable under copyright law. See Tiseo Architects, Inc. v. B&B
Pools Serv. and Supply Co., 495 F.3d 344, 347-48 (6th Cir. 2007) (the
substantial similarity analysis of a copyright infringement claim is divided into two steps: the first step requires identifying which aspects of 24
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
the artists work, if any, are protectable by copyright; the second involves determining whether the allegedly infringing work is substantially similar to protectable elements of the artists work) (citation & quotations omitted). As a result, courts must extract unprotectable elements from consideration to determine if the protectable elements standing alone are substantially similar. Boone v. Jackson, 206 Fed. Appx. 30, 33 (2d Cir. 2006). To be protected by copyright law, an element must be original to its author. Feist, 499 U.S. at 345. As the Supreme Court has described, an original work must be one that has been independently created by the author (as opposed to copied from other works) . . . Id.; Bug Music, Inc., 2002 WL 287786, at *5 (The copied elements of the work must be original and nontrivial to constitute improper appropriation); see also
Hayes v. Koch Entmt, G-06-515, 2008 U.S. Dist. LEXIS 33418, at *3

(S.D. Tex. Mar. 14, 2008) (Cole Porter could not own moonlight. Hank Williams had to share cheating hearts. Willie Nelson cannot fence blue eyes in. The Beach Boys plunged into the surf with Jan and Dean. Irving Berlin holds the copyright to God Bless America, but he had to share both God and America). 25
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
1.
Plaintiff Cannot Copyright The Title Of His Song
Plaintiffs copyright infringement claim is premised in part on the two songs having the same title, Stronger. (Pl. Br. at 21-22.) The district court properly held that titles by themselves are not subject to copyright protection. (Defs. Appx. at 7) (citing Wihtol v. Wells, 231 F.2d 550, 553 (7th Cir. 1956); Sweet, 953 F. Supp. at 229 (It is wellestablished that titles . . . are not protected by copyright).) Therefore, Plaintiffs Complaint does not plausibly allege that the title of Plaintiffs Song is a protectable element of the work. (Defs. Appx. at 7.) Plaintiff concedes, as he must, that titles are not copyrightable. (Pl. Br. at 21-22); Hayes, 2008 U.S. Dist. LEXIS 33418, at *1 (the similarity of the titles does not matter because they are categorically not protectable); see also Currin v. Arista Records, 724 F. Supp. 2d 286, 293 (D. Conn. Apr. 15, 2010) (holding that the title of the song, frontin, is a non-protectible element of the plaintiffs song). Accordingly, the district court properly held that the title of the two songs is unprotectable.8
There are at least 145 other songs with the identical title, Stronger, and more than 1,100 songs with the word Stronger in the title. (See Dkt. 18, Exhs. D, F.)
8
26
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
2.
Plaintiff Cannot Claim Ownership Of The Name Kate Moss
Plaintiff also relies upon the single reference that both Songs make to Kate Moss, the popular English supermodel. (Pl. Br. at 16-17.) Plaintiff claims that he made the creative choice of referring to Kate Moss. (Id. at 16.) Each song uses this name differently: In Plaintiffs Song, the name appears in the following lyric line: Trying get a model chick like Kate Moss. In Defendants Song, the name appears as follows: You could be my black Kate Moss tonight. (See Defs. Appx. at 13.) The district court properly found that no one can claim originality as to facts, including names. (Defs. Appx. at 7; citing Feist, 499 U.S. at 347); see also, Darden v. Peters, 488 F.3d 277, 286 (4th Cir. 2007) (The Copyright Office established a regulation providing examples of the types of works that fall into the category of works that lack a minimum level of creativity and do not qualify for copyright protection, including [w]ords and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents. 37 C.F.R. 202.1(a).);
27
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
Schroeder v. William Morrow & Co., 566 F.2d 3, 5 (7th Cir. 1977)
(individual names . . . are in the public domain and not copyrightable).) Indeed, Plaintiff does not cite a single case for the proposition that a party can claim copyright protection in the use of someone elses name nor could he. It is indisputable that Plaintiff did not independently coin the name Kate Moss, which is used only once in both songs, and he cannot stop anyone else from using this name in a song lyric. Indeed, the name Kate Moss would not even be copyrightable by Ms. Moss herself. Therefore, Plaintiffs use of the name Kate Moss no matter how allegedly creative he was in choosing to include her name in his Song is unprotectable. 3. The Hook In Plaintiffs Chorus Is Unoriginal And Is Thus Not Protected By Copyright
Plaintiff also claims that Defendants copied the hook in his Song.9 Specifically, he claims that (1) the hooks in both Songs reference the famous maxim, That which does not kill us makes us stronger; (2) the hook in Plaintiffs Song contains the phrase couldnt wait no longer
Plaintiff repeatedly refers to the hook being copied by Defendants, as if to suggest that the entire chorus has been copied. This is incorrect, as the Plaintiff concedes that only certain, limited similarities exist between the lyrics of the two hooks all of which are based on a maxim created by Friedrich Nietzsche, not Plaintiff. (Pl. Br. at 21.) The majority of song lyrics in the hook are not at issue. (See Defs. Appx. at 13.)
9
28
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
while the hook in Defendants Song contains the phrase Cant wait much longer; and (3) each hook contains the word wronger. (Pl. Br. at 15-16; 21.) Contrary to Plaintiffs claims, neither a century-old proverb written by a famous philosopher nor single words or phrases are protectable under copyright law. Plaintiff admits that his lyrical phrase what dont kill me make me stronger is not original to him. He concedes that this phrase is taken directly from the 120 year-old proverb by the famous German philosopher Friedrich Nietzsche, That which does not kill us makes us stronger. (Pl. Br. at 15; Compl. 30 (referring to the phrase as a maxim); see also Friedrich Nietzsche, Twilight of the Idols, 1888.)10 Having conceded that his lyrics are unoriginal, he nevertheless argues that the lyrical phrase n-n-now th-that dont kill me can only make me stronger in Defendants Song copies from the phrase in Plaintiffs Song, what dont kill me make me stronger. (Pl. Br. at 20.) As Plaintiffs lyric is unoriginal to Plaintiff (he copied the phrase from Nietzsche) the district court properly held that they cannot possibly form the basis of a
This quote is available at http://www.brainyquote.com/quotes/quotes/f/friedrichn159167.html.

10
29
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
copyright claim. Feist, 499 U.S. at 345; Acuff-Rose Music, Inc. v.
Jostens, Inc., 155 F.3d 140 (2d Cir. 1998).

The case of Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140 (2d Cir. 1998) is directly on point. There, the plaintiff recorded a song containing the phrase: Youve got to stand for something, or youll fall for anything. Id. at 141. Later, the defendant, a ring manufacturer, launched a nationwide advertising campaign that prominently featured the slogan: If you dont stand for something, youll fall for anything.
Id. The plaintiff sued alleging copyright infringement. Id. In affirming

the district courts dismissal of plaintiffs claim, the Second Circuit held that the origin of the phrase at issue predated the plaintiffs song. Id. at 143 (the origin of the phrase came from a variety of sources, including the Bible, Abraham Lincoln, Martin Luther King and lyrics contained in previous written songs). The plaintiff like the Plaintiff here did not independently create the lyric and could not sue for infringement based on the use of that phrase by others. Id. at 144. Plaintiff does not distinguish this holding (nor could he), other than to point out that it was decided after a bench trial. (Pl. Br. at 19-20.) However, no amount of discovery will change the undisputed fact that 30
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
Plaintiffs lyrics are not original to him; they are based on the Nietzsche maxim, and thus unprotectable. Importantly, Plaintiff concedes this point. Thus, the procedural posture of Acuff is insignificant. Moreover, this Court can take judicial notice that many artists have incorporated this well-known phrase into their works before Plaintiffs Song (or Defendants Song).11 For example, in 2004, the singer Natalia released a song with the title: What Dont Kill You, Makes You Stronger.12 Variations of this clichd phrase have also been used in JayZs American Gangster, 2Pacs Only God Can Judge Me, Maxims Backward Bullet, and Megadeths Skin O My Teeth. There are at least 11 songs that use this phrase in their title. (See Dkt. 18, Ex. E.) Just as the plaintiff in Acuff-Rose could not claim ownership over a
In deciding a motion to dismiss, courts may consider the complaint as well as documents incorporated into the complaint by reference, and matters of which a court may take judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 127 S. Ct. 2499, 2509 (2007); Anyere v. Wells Fargo, Co., No. 09 C 2769, 2010 WL 1292494, at *1, fn 2 (N.D. Ill. Mar. 29, 2010). A court may consider judicially noticed documents without converting a motion to dismiss into a motion for summary judgment. Judicial notice of historical documents, documents contained in the public record, and reports of administrative bodies is proper. Menominee Indian Tribe v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998) (citations omitted). The Seventh Circuit has approved taking judicial notice of information contained on the internet. See Austin v. American Assn of Neurological Surgeons, 253 F.3d 967, 971 (7th Cir. 2001); see also Grimes v. Navigant Consulting, Inc., 185 F. Supp. 2d 906, 914, fn 7 (N.D. Ill. 2002). In the context of copyright claims, a court may take judicial notice of general elements of creative works. See Zella, 529 F. Supp. 2d at 1128-29.
11
Natalias song titled, What Dont Kill You, Makes You Stronger is available at http://www.lyricstime.com/natalia-what-don-t-kill-you-makes-you-stronger-lyrics.html.
12
31
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
phrase that originated hundreds of years earlier, Plaintiff cannot claim ownership of a proverb attributable to a 19th Century philosopher that has been used over and over again in other songs and works. Nor can Plaintiff claim copyright protection over the other fragmented words and phrases at issue. Plaintiff has identified only two other lyrics that apparently support his claim of substantial similarity between Plaintiffs Song and Defendants Song: (1) couldnt wait no longer, and (2) wronger. (Pl. Br. at 16; Compl. 30-34.) Each of these purported similarities the only other similarities cited in Plaintiffs Complaint and Brief (and the only similarities that exist based on a sideby-side comparison) derives from the Nietzsche maxim. Moreover, each of them falls under the very definition of unprotected elements names, phrases, slogans, titles and words are not subject to copyright protection. See Alberto-Culver Co., 466 F.2d at 710 (short phrase not protectable under copyright law); Boone, 206 Fed. Appx. at 33 (finding that the common phrase holla back is not protectable); Narell v.
Freeman, 872 F.2d 907, 911 (9th Cir. 1989) ([p]hrases and expressions
conveying an idea typically expressed in a limited number of stereotyped fashions are not subject to copyright protection); Staggs, 2009 WL 32
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
2579665, at *3-4 (handful of allegedly similar words and phrases not copyrightable); Bell v. Blaze Magazine, No. 99 Civ. 12342 (RCC), 2001 WL 262718, at *2 (S.D.N.Y. Mar. 16, 2001) (Words and short phrases, such as titles or slogans, are insufficient to warrant copyright protection, as they do not exhibit the minimal creativity required for such protection. Similarly, copyright protection does not extend to a concept or idea, regardless of the form in which it is communicated, explained, illustrated, or embodied) (internal citations omitted).13 4. The Combination Of Unprotectable Elements In Plaintiffs Song Is Unprotectable a. Plaintiffs Combination Is Unoriginal
Plaintiff concedes that the words and phrases at issue are unoriginal to him and thus unprotectable. Yet Plaintiff claims, as he did below, that the combination of those few and scattered unoriginal and unprotectable words and phrases can form the basis of an infringement claim. (Pl. Br. at 17-22.) The district court properly held that an original combination of unprotectable elements may be eligible for copyright protection only in limited contexts, and only when those elements are
See also Martinez v. McGraw, No. 3:08-0738, 2009 WL 2447611, at *4-6 (M.D. Tenn. Aug. 10, 2009); Lil Joe Wein Music, Inc. v. Jackson, 245 Fed. Appx. 873, 880 (11th Cir. 2007); Armour v. Knowles, No. H-05-2407, 2006 WL 2713787, at *3 (S.D. Tex. Sep. 21, 2006).
13
33
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship. (Defs. Appx. at 10; citing Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003) (it is not true that any combination of unprotectable elements automatically qualifies for copyright protection) (emphasis in original).) Simply put, a plaintiff cannot select a few non-copyrightable elements contained in his song, claim a monopoly on their use, and prevent others from employing similar unprotectable individual words and phrases in their works. See Feist, 499 U.S. at 363 (holding that the selection, coordination and arrangement of elements to be unoriginal and unprotectable). Indeed, a plaintiff cannot pick and choose five words or phrases out of hundreds in their work and sue for infringement, clinging to the notion that any combination is protectable. But that is exactly what Plaintiff is attempting to do here. While Plaintiff contends that his triple rhyme of stronger, wronger, and longer is original (Pl. Br. at 16), Plaintiff ignores the fact that the Nietzsche proverb ends with the word stronger, and thus it is not particularly surprising, unusual or creative to use the word longer or other words which rhyme with stronger at the end of the next line in 34
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
order to rhyme with this proverb. There are very few words that rhyme with stronger, and longer is one of the few exact rhymes. Unsurprisingly, the combination of these generic words has been used in many other songs. For example, in 1971 the artist Dusk released a song entitled I Hear Those Church Bells Ringing which includes the following lyrics: Aint getting much stronger Cant resist you much longer To let you go would be wronger Than to love you right now14 Plaintiff uses the same three words in the same exact order as Dusks song. (See Defs. Appx. at 13.) Indeed, Plaintiffs Song is more similar to Dusks song than it is to Defendants Song. Under Plaintiffs flawed interpretation of the law, Dusk would have an actionable claim for copyright infringement against Plaintiff for using the purportedly original combination of the rhyming words stronger, wronger, and longer in its song. So would the many other artists that have used a combination of the words and phrases found in Plaintiffs Song. Lil Waynes song, Mafia Music, uses the triple rhyme of
The lyrics to Dusks I Hear Those Church Bells Ringing are available at http://www.burbler.com/dusk-i-hear-those-church-bells-ringing-lyrics.html.
14
35
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
stronger, wronger and longer. T-Pains song, Distorted, also uses the triple rhyme of stronger, wronger and longer.15 Bill Kirchens song, Get a Little Goner, contains the words longer and wronger in the chorus: If youre gonna move along, move a little bit longer, You think I want you back, well, you couldnt be
wronger.16 According to Plaintiff, Mr. Kirchen has a monopoly over the

rhyme of longer and wronger and no other subsequent artist can incorporate that rhyme into a song. But Mr. Kirchen holds no monopoly over the words longer and wronger just as Lil Wayne, T-Pain, Natalia and Plaintiff cannot hold a monopoly over the words and phrases at issue here. These examples were all before the district court, without any meaningful response from Plaintiff. This prior art highlights the weakness in Plaintiffs attempt to claim copyright over such insignificant lyrics. There are no issues of fact Plaintiffs combination of unprotectable elements is unprotectable itself. Steele v. Turner Broad.
Lyrics to Lil Waynes song, Mafia Music can be found at: http://www.elyricsworld.com/mafia_music_lyrics_lil_wayne.html. T-Pains lyrics to Distorted can be found at http://www.lyricsbay.com/distorted_lyrics-t_pain.html.
15
The lyrics of Bill Kirchens Get a Little Goner are available at http://www.cowboylyrics.com/lyrics/kirchen-bill/get-a-little-goner-20536.html.
16
36
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
Sys., Inc., 646 F. Supp. 2d 185, 192 (D. Mass. 2009) (A common rhyme
scheme or structure does not qualify as original expression protectable under federal copyright law.); Prunte v. Universal Music Group, 699 F. Supp. 2d 15, 29 (D.D.C. 2010) ([A] rhyme scheme using words ending in the commonplace -ill sound is [not] protectible.). Plaintiffs combination argument has been rejected many times before this action. For example, in the recent case of Staggs v. West, the plaintiff sued the Defendants herein, among others, alleging that defendants copied numerous lyrics from his song. 2009 WL 2579665, at *2-4. In support of his claim, the plaintiff submitted a chart detailing the alleged lyrical similarities between the songs. Id. at *4. On defendants motion to dismiss, the court found the combination of the individual, scattered and common words and phrases to be unprotectable and granted defendants motion. Id. at *3 (each of these allegedly identical phrases contain common words or phrases such as good life that simply are not copyrightable). The same result should apply here. Other plaintiffs have made similarly unavailing arguments. For example, in Damiano v. Sony Music Entmt, Inc., 975 F. Supp. 623, 625 (D.N.J. 1996), the plaintiff claimed that defendant Bob Dylan copied 37
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
several lyrics from his song. The plaintiff conceded that the lyrics at issue consisted of common and unoriginal words and phrases, but nonetheless argued that the arrangement of those words and phrases was protectable. Id. at 629. In fact, the plaintiff there argued as does Plaintiff here that Dylan could not subsequently use the same pairs of words or phrases together in a lyric, even if separated by intervening lines or ideas. Id. The court disagreed and said that the plaintiff cannot hold a monopoly over the use of common combinations of words . . . merely because they are found together in a single song. Id. According to the court, [s]uch a result would . . . contravene the very policy behind copyright law and the rule requiring sufficient originality for a work to be protected . . . . Indeed, the law of copyright has absolutely no interest in tying up the random, fortuitous combination of words. Id. (citation
omitted); see also Lil Joe Wein Music, Inc. v. Jackson, 245 Fed. Appx.
873, 878-80 (11th Cir. 2007) (holding that combination of lyrics is unoriginal and unprotectable); Bug Music, Inc., 2002 WL 287786, at *6 (the lyrical phrase and three notes are so common and unoriginal that even when they are combined they are not protectible).
38
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
b.
The District Court Properly Dismissed Plaintiffs Combination Argument
The district court properly analyzed the combination of Plaintiffs unprotectable elements under the correct standard: an original combination of unprotectable elements can be protectable only when those elements are numerous enough and original enough that their combination constitutes an original work. (Defs. Appx. at 10.) That is exactly the standard that Plaintiff claims the court failed to consider. (Pl. Br. at 22.)17 Then, the district court compared Plaintiffs combination of unprotectable elements to the words and phrases contained in Defendants Song to determine substantial similarity.
Plaintiff claims that the district court improperly weeded out the unprotectable components of Plaintiffs Song, citing Softel, Inc. v. Dragon Med. and Scientific Commcns, Inc., 118 F.3d 955 (2d Cir. 1997) and Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995). (Pl. Br. at 32.) In so arguing, Plaintiff ignores this Circuits test for substantial similarity, and ignores the analysis undertaken by the district court. As this Court stated in Atari (a case cited by Plaintiff), [w]hile dissection is generally disfavored, the ordinary observer test, in application, must take into account that the copyright laws preclude appropriation of only those elements of the work that are protected by the copyright. 672 F.2d at 614-15 (citing Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 913 (2d Cir. 1980); Clark v. G.A. Kayser & Sons, Inc., 472 F. Supp. 481, 482 (W.D. Pa. 1979)). In both Sofitel and Knitwaves, the Second Circuit held that, in order to determine whether substantial similarity exists, a court must examine whether the similarities at issue consist of protectable or unprotectable elements. See, e.g., Knitwaves, 71 F.3d at 1002 (we must attempt to extract the unprotectible elements from our consideration and ask whether the protectible elements, standing alone, are substantially similar) (emphasis in original). These cases also stand for the undisputed proposition that a court must also look at the combination of the allegedly similar elements and whether the defendants work has captured the total concept and feel of the plaintiffs work. The district court here employed that very analysis, and held that, viewing the two works as a whole, no substantial similarity exists. (Defs. Appx. at 9-11.)
17
39
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
(Defs. Appx. at 10.) In doing so, the district court found that Defendants did not copy the combination in a nearly identical manner, but even more, that none of the words and phrases in Defendants Song were even close to being similar to the combination of those words in Plaintiffs Song. (Id. at 10-11.) Thus, Plaintiff has no basis to contend that the district court created an unprecedented new test to determine substantial similarity. Plaintiff did not distinguish the significant, on point authority cited by Defendants in the district court. Instead, Plaintiff relied heavily on three cases, all of which are entirely distinguishable from the instant case and expressly (and properly) rejected by the district court. Plaintiff relied, and continues to rely, upon JCW Investments, Roulo and
Bucklew. None of these cases involved an infringement claim based on

the alleged copying of a small fraction of unprotectable elements of a copyrightable work, and thus none of them stand for the proposition that a small fraction of a work or a combination of those elements constituting a small fraction can form the basis of a copyright claim.
40
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
The district court expressly considered these cases and properly held that Plaintiff had not demonstrated that the combination of the unprotectable elements at issue could possibly rise to the level of substantial similarity. Rather, in each of these cases, the plaintiffs claimed that their works as a whole were copied. For example, in Roulo v. Russ Berrie &
Co., 886 F.2d 931, 934-35 (7th Cir. 1989), the plaintiff claimed that
defendant who undeniably had access to her greeting card line as a former licensee had copied her card and display as whole. The cards were identical in size, style, background color, ink color and format and were found, overall, to be strikingly similar in appearance. Id. at 939.
JCW Invs., Inc., 482 F.3d at 915, involved two plush novelty toys that
were so similar that the inference of copying even without access [even though defendant admitted access] is irresistible. Both dolls depicted white, middle-aged, overweight men with black hair, a receding hairline, crooked smiles that showed their teeth, and a rather protruding nose, sitting in an armchair wearing a white tank top and blue pants, both of whom passed gas when their finger was pulled. Id. at 916. In Bucklew
v. Hawkins, Ash, Baptie & Co., LLP, 329 F.3d 923, 926 (7th Cir. 2003),
41
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
the defendants forms copied many aspects of plaintiffs form (such as format, font and headings), and also copied mistakes contained in plaintiffs form, known as a copyright trap. For example, defendants forms included an exact substitute of an arbitrary pattern of boldfacing of cells, a missing vertical line on one part of the form and other aspects of plaintiffs form that served no function all of which proved that, by copying these mistakes and unusual nonfunctional elements, defendant had actually copied significant aspects of plaintiffs form, which defendant ultimately conceded. Id. at 926-27, 931. In each of these cases, access to the plaintiffs work was admitted, as was similarity of the two works as a whole. The defendants simply tried to avoid liability by claiming that the plaintiffs work as a whole was not copyrightable because the works as a whole were comprised of non-copyrightable elements. The courts simply noted, in rejecting these defenses, that copyrightable works can (and often do) consist of individual non-copyrightable elements. These cases are entirely distinguishable from the instant case as none of them held that a small
42
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
combination of non-protectable elements could form the basis of an infringement claim.18 Here, Defendants do not dispute that the lyrics of Plaintiffs Song, as a whole, can be a copyrightable work. Nor do Defendants dispute that many, if not most, creative works consist of individual elements that are not, in and of themselves, copyrightable. Indeed, the lyrics of songs generally consist of individual words and phrases that are commonplace. It is the combination of those lyrics as a whole that make the song lyrics, as a whole work, protectable. But simply because the work as a whole consists of non-copyrightable elements does not mean that a plaintiff can select a few of these non-copyrightable elements, claim a monopoly on their use, and prevent others from employing similar unprotectable individual words and phrases in their works. A plaintiff cannot pick and choose five words or phrases out of hundreds in their work and sue for
The district courts reliance on Satava does not constitute a departure from established Seventh Circuit precedent. (Pl. Br. at 24). The district court cited Satava for the proposition that an original combination of unprotectable elements can be protectable when those [unprotectable] elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship. (Defs. Appx. at 9-10, quoting Satava, 323 F.3d at 811.) This is entirely in line with Seventh Circuit precedent, and Plaintiff has cited no authority to the contrary, nor could he. The holding of Satava is not limited, as Plaintiff suggests, to lifelike jellyfish sculptures, but rather stands for the proposition that when the allegedly similar elements are unprotectable whether because they are commonplace or otherwise unoriginal to a plaintiff courts will not give a plaintiff a monopoly on these elements. Satava, 323 F.3d at 812.
18
43
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
infringement, clinging to the notion that any combination is protectable. The district court properly rejected the remaining cases cited by Plaintiff as distinguishable. Allen v. Destinys Child, No. 06 C 6606, 2009 WL 2178676 (N.D. Ill. July 21, 2009) does not stand for the proposition that four or five words can form the basis of an infringement claim, much less lyrics that derive from an admittedly publicly-available proverb. Indeed, the court in Allen noted that [s]hort phrases tend to be excluded from copyright protection because they do not demonstrate a sufficient amount of creative expression, and that [a]uthors who rely upon public sources for their inspiration are not liable for copyright infringement. Id. at *8-9. As distinct from the instant case, the Allen court noted dozens of potential lyrical similarities between the two songs and found that it was up to the trier of fact to determine whether the many lyrical similarities between the songs constituted an original expression of the theme of plaintiffs song or unprotectable scenes a faire.
Id. This is entirely different than the issue presented herein. Moreover,
the court dismissed the plaintiffs claim that a three-note phrase contained in the chorus of the songs at issue was protectable, holding 44
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
that no reasonable jury could find that the three-note phrase . . . is sufficiently unique . . . as a matter of law. Id. at *12. Likewise, in Santrayll v. Burrell, No. 91 Civ. 3166 (PKL), 1996 WL 134803, at *2 (S.D.N.Y. Mar. 25, 1996), the court held that the combination of the non-protectable word uh-oh coupled with a
distinctive rhythm rendered it protectable under copyright law. But

here, unlike in Santrayll, Plaintiff concedes that there is absolutely no similarity between the music of the two songs the songs merely share a few random and scattered words in common.
Tin Pan Apple, Inc. v. Miller Brewing Co., No. 88 Civ. 4085 (CSH),
1994 WL 62360 (S.D.N.Y. Feb. 24, 1994) and BMS Entmt/Heat Music
LLC v. Bridges, No. 04 Civ. 2584 (PKC), 2005 WL 2675088 (S.D.N.Y.

Oct. 20, 2005), also involved unique musical elements in conjunction with the allegedly infringing lyrics. For example, in Tin Pan Apple, the court noted that the Brrr and Hugga-Hugga sounds were uniquely associated with the plaintiffs, one of which was one of the first rap artists to be nationally known for creating human beat box sounds, including the ones at issue, and thus those unique sounds and lyrical components were sufficiently original and complex to be copyrightable. Id. at *3. The 45
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
instant case does not involve any uniquely original individual elements, nor does it involve music. All lyrics at issue were derived from the Nietzsche proverb, and each element at issue here has been used many times before. And finally, Lessem v. Taylor, 766 F. Supp. 2d 504 (S.D.N.Y. 2011), is factually and procedurally inapposite. In Lessem, the plaintiffs claimed that the defendants infringed their copyrighted song. Id. at 50607. The plaintiffs premised their claim on three uncontroverted similarities between the two songs: (1) the choruses contain the same exact five word phrase that is repeated four times in each song; (2) the choruses of both songs are set to the same rhythm; and (3) the songs share the same tempo. Id. In denying both parties motions for summary judgment, the court noted that plaintiffs claims were based on alleged similarities in rhythm and tempo, neither of which is at issue here. Id. at 513-14. Here, as the district court properly found, the music is not at issue, and the song lyrics as a whole contain virtually no similarities, indeed, none coming close to the identical five word phrases in Lessem. This is not a case like Lessem where the defendants copied the exact original phrase, tempo and rhythm in the plaintiffs song. 46
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
D.
The District Court Properly Found, As An Ordinary Observer, That The Songs Are Not Substantially Similar
After eliminating the unprotectable words and phrases, a court must decide whether the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same. Atari, Inc., 672 F.2d at 614 (quoting
Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d
Cir. 1960) (Hand, J.).) The district court properly based this ordinary observer test on whether the defendants work has captured the total concept and feel of the plaintiffs work, and employed a side-by-side comparison to determine whether two works are substantially similar.
See Wildlife Express Corp., 18 F.3d at 510; Atari, 672 F.2d at 614.
The district court properly held that an ordinary observer could not conclude that the Songs lyrics are substantially similar. After eliminating the unprotectable elements from the Songs, the court conducted a side-by-side comparison of the Songs lyrics and found that the hooks and verses no longer have any similarities and are different in content and style. (Defs. Appx. at 11-12.) The district court reached the proper conclusion as a matter of law. Indeed, a side-by-side comparison of the Songs makes objectively clear 47
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
that, once the alleged similarities are eliminated (and, even if they were included), the Songs contain virtually no similarities. (See Defs. Appx. at 13.) In sum, the lyrics are different. The themes are different. The music is different. The songs are different. Defendants Song simply does not come close to capturing the total concept and feel of Plaintiffs Song. Thus, after a simple review of the lyrics, and upon listening to the songs, the district court was correct to find that an ordinary observer would detect no meaningful similarities. See Tillman v. New Line
Cinema Corp., No. 05 C 910, 2008 WL 5427744, at *8 (N.D. Ill. Dec. 31,
2008), affd, 374 Fed. Appx. 664 (7th Cir. 2010); See Johnson v. Gordon, 409 F.3d 12, 22-23 (1st Cir. 2005) (finding no infringement where no facial similarity existed between two melodies); Damiano, 975 F. Supp. at 629-30 (finding no copyright infringement where [t]he words and phrases in question comprise nothing more than a single line or two of an entire song . . .). While Plaintiff relies upon many of the same cases as the district court, he argues, incongruously, that the district court erred by filtering out the unprotectable words and phrases to determine substantial 48
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
similarity. (Pl. Br. at 31-33.) However, the district court properly followed the very same Seventh Circuit precedent relied upon by Plaintiff, including Incredible Techs. Indeed, the Seventh Circuit has recently stated: After identifying these original, protectable elements, we then proceed to analyze whether the allegedly infringing work is so similar to the [plaintiffs] work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the protectable elements of the work. Nova Design Build, Inc., 652 F.3d at 818, quoting
Incredible Techs., Inc., 400 F.3d at 1011; Tiseo Architects, 495 F.3d at
347-48. The district courts decision that substantial similarity does not exist between the two songs at issue should be affirmed. Bell, 2001 WL 262718, at *8 (finding no substantial similarity between two works as a matter of law). E. The District Court Correctly Found No Fragmented Literal Similarity
Though Plaintiff concedes that the quantum of copying is relatively small, Plaintiff argues that substantial similarity exists because Defendants hook is a close paraphrase of Plaintiffs hook. (Pl. Br. at 33-35.) In so arguing, he relies on the fragmented literal 49
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
similarity test, which, according to other circuits, may justify a finding of substantial similarity where the defendant copies a [crucial] portion of the plaintiffs work exactly or nearly exactly, without appropriating the works overall essence or structure. See Newton v. Diamond, 388 F.3d 1189, 1195 (9th Cir. 2004) (citing 4 Melville B. Nimmer, David Nimmer, Nimmer on Copyright, 13.03[A][2] (Matthew Bender Rev. ed.)). To constitute fragmented literal similarity, the fragment must be a direct quotation[] or close paraphrasing. Castle Rock Entmt, Inc. v.
Carol Publg Grp., Inc., 150 F.3d 132, 140 (2d Cir. 1998). Glaringly
absent from Plaintiffs brief is any indication of what portions of Defendants Song are literally similar to Plaintiffs Song. The district court correctly held that fragmented literal similarity does not exist here because the words and phrases contained in the choruses of both songs are not exact or even nearly exact, nor are they qualitatively or quantitatively significant. (Defs. Appx. at 11-12.) Below is a comparison of the four lines of the chorus of Plaintiffs Song as compared to the chorus of Defendants Song, with the differing lyrics highlighted:
50
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
PLAINTIFFS SONG What dont kill me make me stronger The more I blow up the more you wronger You coped my CD you can feel my hunger The wait is over couldnt wait no longer
DEFENDANTS SONG N-N-N-now th-th-that dont kill me Can only make me stronger I need you to hurry up now Cause i cant wait much longer I know i got to be right now Cause i cant get much wronger Man ive been waitin all night now Thats how long ive been on ya
The choruses contain many more differences than similarities. Indeed, the majority of the alleged similarities derive from someone elses work Nietzsche. This falls far short of the literal similarity required under the fragmented literal similarity test. See Murray Hill
Publns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 320
(6th Cir. 2004) (random similarities scattered throughout the works are not a proper basis for a finding of substantial similarity) (citation & quotations omitted). Contrary to Plaintiffs argument, courts have dismissed actions as a matter of law where the similarities are not literal. For example, in
Kroencke v. General Motors Corp., 270 F. Supp. 2d 441, 444 (S.D.N.Y.

2003), affd, 99 Fed. Appx. 339 (2d Cir. 2004), the plaintiff relied on the theory of fragmented literal similarity to show substantial similarity. 51
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
The court dismissed the complaint with prejudice, however, because none of the details contained in the defendants works bore a substantial literal similarity to any of the details in the plaintiffs works. Id. The cases cited by Plaintiff only bolster Defendants arguments. In each of the cases cited by Plaintiff, the works at issue contained identical or nearly identical phrases. Plaintiff relies principally on Bridgeport
Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267 (6th Cir. 2009). But
in that case, the court found substantial similarity where the defendant copied the exact refrain Bow wow wow, yippie yo, yippie yea verbatim in his song. Id. at 276. The facts here differ significantly from
Bridgeport as Plaintiff concedes that the alleged similarities are not

identical or even close to being identical. (Pl. Br. at 33.) Similarly, in Jarvis v. A&M Records, 827 F. Supp. 282, 289-92 (D.N.J. 1993), the court similarly found substantial similarity where the defendant copied the exact bridge section contained in the plaintiffs song, ooh . . . move . . . free your body. And in Williams v. Broadus, No. 99 Civ. 10957 (MBM), 2001 WL 984714, at *3 (S.D.N.Y. Aug. 27, 2001), the court found substantial similarity where the defendant copied parts of the plaintiffs song note for note. Indeed, none of these cases, or any 52
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
others cited by Plaintiff, support Plaintiffs contention that there is substantial similarity where only certain lyrics are the same but the majority are not, much less where any similarities derive from a common public domain source. The district court properly rejected Plaintiffs arguments and found the four or five words and short phrases at issue unprotectable, whether examined on their own or combined. The decision of the district court should be affirmed.
53
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
CONCLUSION For the foregoing reasons, it is respectfully submitted that this Court should affirm the district courts decision in its entirety. Dated: November 18, 2011 Respectfully submitted, s/ Carrie A. Hall PRYOR CASHMAN LLP Ilene S. Farkas 7 Times Square New York, New York 10036 (212) 421-4100 Fax: (212) 326-0806 ifarkas@pryorcashman.com MICHAEL BEST & FRIEDRICH LLP Ronald H. Balson Carrie A. Hall Two Prudential Plaza 180 North Stetson Avenue, Suite 2000 Chicago, IL 60601 (312) 222-0800 Fax: (312) 222-0818 rhbalson@michaelbest.com cahall@michaelbest.com
Attorneys for Defendants-Appellees
54
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7) This brief complies with type-volume requirements of Federal Rule of Appellate Procedure 32(a)(7) because this brief contains 10,140 words, excluding the Appendix and the parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii).
s/ Carrie A. Hall
55
Case: 11-1708
Document: 15-1
Filed: 11/18/2011
Pages: 68
CERTIFICATE OF SERVICE The undersigned, an attorney, hereby certifies that a copy of the foregoing Brief of Appellees and a copy of the Appendix was electronically filed with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit and was served upon the following counsel via the Courts CM/ECF system on the 18th day of November 2011: William T. McGrath wmcgrath@davismcgrath.com
s/ Carrie A. Hall
56

Case: 11-1708 Document: 15-1 Filed: 11/18/2011 Pages: 68

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Case: 11-1708 Document: 15-1 Filed: 11/18/2011 Pages: 68

Uploaded by

Copyright:

Available Formats

Case: 11-1708

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Attorneys for Defendants-Appellees

TABLE OF AUTHORITIES CASES PAGE(s)

Although not relevant on this appeal, Defendants dispute these allegations.

The District Court Dismissed The Complaint

Hotels, LLC, 652 F.3d 814, 818 (7th Cir. 2011).

Incredible Techs., 400 F.3d at 1011 ([C]opyright laws preclude

minimis and thus not actionable).

Hayes v. Koch Entmt, G-06-515, 2008 U.S. Dist. LEXIS 33418, at *3

Plaintiff Cannot Copyright The Title Of His Song

Plaintiff Cannot Claim Ownership Of The Name Kate Moss

This quote is available at http://www.brainyquote.com/quotes/quotes/f/friedrichn159167.html.

copyright claim. Feist, 499 U.S. at 345; Acuff-Rose Music, Inc. v.

Jostens, Inc., 155 F.3d 140 (2d Cir. 1998).

Id. The plaintiff sued alleging copyright infringement. Id. In affirming

wronger.16 According to Plaintiff, Mr. Kirchen has a monopoly over the

The District Court Properly Dismissed Plaintiffs Combination Argument

Bucklew. None of these cases involved an infringement claim based on

distinctive rhythm rendered it protectable under copyright law. But

LLC v. Bridges, No. 04 Civ. 2584 (PKC), 2005 WL 2675088 (S.D.N.Y.

Kroencke v. General Motors Corp., 270 F. Supp. 2d 441, 444 (S.D.N.Y.

Bridgeport as Plaintiff concedes that the alleged similarities are not

Attorneys for Defendants-Appellees

You might also like