EDWARDS v. RAYMOND 293 Cite as 22 F.Supp.3d 293 (S.D.N.Y. 2014)

1. Copyrights and Intellectual Property Zacharia L. EDWARDS, Mitch Moses O51 and Vince McClean, Plaintiffs, A plaintiff asserting a copyright in- v. fringement claim must show: (1) ownership Usher RAYMOND IV (p/k/a Usher), Ar- of a valid copyright, and (2) unauthorized ista Records, Inc. (n/k/a RCA Records, copying of the copyrighted work. Inc.), Andre Harris, Vidal David, Ja- son Boyd, Ryan Toby, Universal Music 2. Copyrights and Intellectual Property Corporation (n/k/a Universal Music O53(1) Group, Inc.), Dirty Dre Music (d/b/a To demonstrate unauthorized copying, Universal Music Group, Inc.), Double a plaintiff alleging copyright infringement Oh Eight (d/b/a Universal Music must: (1) show that his work was actually Group, Inc.), Poo BZ Publishing, Inc., copied, and (2) he must establish substan- Hitco Music Publishing, LLC, Music tial similarity or that the copying amounts of Windswept, Pladis Music, Inc. and to an improper or unlawful appropriation. EMI April Music, Inc., Defendants. No. 13 Civ. 7985(DLC). 3. Copyrights and Intellectual Property O83(3.1) United States District Court, S.D. New York. In a copyright infringement action, ac- tual copying may be established by direct Signed May 23, 2014. or indirect evidence. Background: Music composers brought action against alleged infringers of their 4. Copyrights and Intellectual Property musical composition and sound recording O53(1) rights in song entitled ‘‘Caught Up,’’ as- serting claims for copyright infringement The plaintiff in a copyright infringe- and breach of contract. Defendants moved ment case must show that the copying to dismiss. amounts to an improper or unlawful appro- priation by demonstrating that substantial Holdings: The District Court, Denise Cote, J., held that: similarities relate to protectable material. (1) phrase ‘‘caught up,’’ used as title of 5. Copyrights and Intellectual Property both parties’ songs, was not eligible for O4.5 copyright protection; It is a fundamental principle of copy- (2) composers failed to plausibly allege right law that the similarity between two substantial similarity between parties’ songs; works must concern the expression of ideas, not the ideas themselves; this princi- (3) there was no substantial similarity in ple, known as the ‘‘idea/expression dichoto- the music; my,’’ assures authors the right to their (4) there was no substantial similarity in original expression, but encourages others the lyrics; and to build freely upon the ideas and informa- (5) exercise of supplemental jurisdiction tion conveyed by a work. over composers’ state law claim was See publication Words and Phras- not warranted. es for other judicial constructions Motion granted. and definitions. 294 22 FEDERAL SUPPLEMENT, 3d SERIES

6. Copyrights and Intellectual Property therein, do not plausibly give rise to an O53(1) entitlement of relief. Fed.Rules Civ.Proc. In assessing claims of substantial sim- Rule 12(b)(6), 28 U.S.C.A. ilarity between copyrighted material and allegedly infringing material, a court must 10. Copyrights and Intellectual Property O decide whether the similarities shared by 8 the works are something more than mere Phrase ‘‘caught up,’’ used as title of generalized idea or themes. both music composers’ song and alleged 7. Copyrights and Intellectual Property infringers’ song, was not eligible for copy- O66 right protection, where it was not original to composers, but, rather, was used in In the context of a case alleging music everyday speech in a variety of contexts, plagiarism, the plaintiff in a copyright in- and it enjoyed a robust existence in the fringement case is constrained to prove public domain long before composers em- that defendant took from plaintiff’s works ployed it for their song’s title and in the so much of what is pleasing to the ears of key lyrics. lay listeners, who comprise the audience for whom such music is composed, that 11. Copyrights and Intellectual Property defendant wrongfully appropriated some- O4, 12(1) thing which belongs to the plaintiff. Common phrases are not eligible for 8. Copyrights and Intellectual Property copyright protection, and only those com- O 82 ponents of a work that are original to the It is entirely appropriate for the dis- author are eligible for copyright protec- trict court to consider the similarity be- tion. tween copyrighted material and allegedly infringing material in connection with a 12. Copyrights and Intellectual Property motion to dismiss for failure to state a O12(1, 3) claim, because the court has before it all An original arrangement of unprotect- that is necessary in order to make such an able material can be protected by the evaluation. Fed.Rules Civ.Proc.Rule copyright laws; even a directory that con- 12(b)(6), 28 U.S.C.A. tains absolutely no protectible written ex- 9. Copyrights and Intellectual Property pression, only facts, meets the constitu- O53(1) tional minimum for copyright protection if When a court is called upon to consid- it features an original selection or arrange- er on a motion to dismiss for failure to ment. state a claim whether copyrighted material and allegedly infringing material are sub- 13. Copyrights and Intellectual Property O stantially similar, no discovery or fact-find- 66 ing is typically necessary, because what is Music composers failed to plausibly required is only a comparison of the allege substantial similarity between their works; if, in making that evaluation, the copyrighted song and alleged infringers’ district court determines that the two song, as required to state a copyright in- works are not substantially similar as a fringement claim, where their allegations matter of law, the district court can prop- addressed similarities in the ideas ex- erly conclude that the plaintiff’s complaint, pressed by the two songs, which were not together with the works incorporated copyrightable as a matter of law, and they EDWARDS v. RAYMOND 295 Cite as 22 F.Supp.3d 293 (S.D.N.Y. 2014)

did not allege any original use of common 18. Federal Courts O2564 expressions used in both songs. District Court would not exercise sup- 14. Copyrights and Intellectual Property plemental jurisdiction over music compos- O66 ers’ state law breach of contract claim There was no substantial similarity in after it dismissed their federal copyright the music of composers’ copyrighted song infringement claim against alleged infring- and alleged infringers’ song, as would sup- ers, where the litigation was at an early port composers’ copyright infringement stage, discovery had not yet commenced, claim, where composers’ song was in sig- principles of judicial economy did not coun- nificant part a rap song while alleged in- sel in favor of the exercise of jurisdiction, fringers’ song had no rapping, composers’ and there was no reason grounded in prin- song consisted of a duet including male ciples of convenience, fairness, or comity to and female singer while alleged infringers’ depart from standard practice of declining song featured solo male lead singer, the to exercise jurisdiction over state law songs featured entirely dissimilar melo- claims once no federal law claims re- dies, and total concept and overall feel of mained. 28 U.S.C.A. § 1367(c)(3). the music was different. 15. Copyrights and Intellectual Property O66 There was no substantial similarity in David J. Voelker, Olga S. Dmytriyeva, the lyrics of composers’ copyrighted song Voelker Litigation Group, Chicago, IL, for and alleged infringers’ song, as would sup- the Plaintiffs Zacharia L. Edwards, Mitch port composers’ copyright infringement Moses, and Vince McClean. claim, although both songs used phrase Jonathan D. Davis, Jonathan D. Davis, ‘‘caught up’’ in its chorus, where ‘‘caught P.C., New York, NY, for the Defendants up’’ phrase was not copyrightable, and Usher Raymond IV and Sony Music En- there was no overlap between lyrics of the tertainment. songs beyond commonplace words like ‘‘hit’’ ‘‘girl,’’ and ‘‘control.’’ OPINION & ORDER 16. Federal Courts O2541 In deciding whether to exercise juris- DENISE COTE, District Judge: diction over supplemental state law claims, Zacharia L. Edwards, Mitch Moses, and district courts should balance the values of Vince McCLean (collectively, the ‘‘Plain- judicial economy, convenience, fairness, tiffs’’) bring this action against Usher Ray- and comity. 28 U.S.C.A. § 1367(c)(3). mond IV (‘‘Usher’’), Sony Music Entertain- 17. Federal Courts O2564 ment (‘‘Sony’’), and other related music When the federal claims are eliminat- industry defendants 1 (collectively, the ed in the early stages of litigation, courts ‘‘Defendants’’), asserting copyright in- should generally decline to exercise pen- fringement and breach of contract. The dent jurisdiction over remaining state law Plaintiffs plead one count of copyright in- claims. fringement. They allege that the Defen-

1. Those defendants are Andre Harris, Vidal Eight, Poo B Z Publishing, Inc., Hitco Music Davis, Jason Boyd, Ryan Toby, Universal Mu- Publishing, LLC, Music of Windswept, Pladis sic Corporation, Dirty Dre Music, Double Oh Music Inc., and EMI April Music, Inc. 296 22 FEDERAL SUPPLEMENT, 3d SERIES

dants willfully copied the Plaintiff’s origi- The Plaintiffs contend that Usher began nal composition, entitled ‘‘Caught Up’’ work on his album ‘‘Confessions’’ in late (‘‘Plaintiffs’ Song’’), to create Usher’s 2004 2002. On March 23, 2004 Usher released hit song of the same name (the ‘‘Chal- ‘‘Confessions,’’ which included as a track lenged Song’’) in violation of 17 U.S.C. the Challenged Song, also entitled ‘‘Caught § 501. The Plaintiffs contend that the Up.’’ The album and the Challenged Song Defendants violated the Plaintiffs’ musical achieved great popularity. The Chal- composition and sound recording rights in lenged Song peaked at number eight on their song. See 17 U.S.C. § 102(2) & (7). the U.S. Billboard ‘‘Hot 100’’ Chart. They also allege one count of breach of On November 7, 2013, the Plaintiffs filed contract against defendants Usher and this lawsuit. This is the second lawsuit Sony only. For the following reasons, the filed in this district against Usher alleging copyright infringement claim is dismissed. copyright infringement in connection with The Court declines to exercise supplemen- the Challenged Song. The first action, tal jurisdiction over the breach of contract brought by different plaintiffs, was re- claim. solved by Opinion and Order of May 19, BACKGROUND 2011 in Pyatt v. Raymond, 10 Civ. The following facts are undisputed or 8764(CM), 2011 WL 2078531 (S.D.N.Y. taken in the light most favorable to the May 19, 2011). In Pyatt, the court dis- Plaintiffs. The Plaintiffs are music com- missed the copyright action, finding that posers. In 2002, they composed an origi- the plaintiffs’ songs lacked the requisite nal musical composition entitled ‘‘Caught ‘‘substantial similarity’’ to the Challenged Up.’’ They filed an application for copy- Song under the ‘‘ordinary observer’’ test to right registration of that song on May 15, constitute unlawful copying. Id. at *1; see 2012. In October of 2002, Michael Barack- Peter F. Gaito Architecture, LLC v. Si- man, a Senior Director of Artist and Rep- mone Dev. Corp., 602 F.3d 57, 66 (2d Cir. ertoire at Arista Records, Inc.—a now de- 2010). funct record label that was previously a Usher and Sony moved to dismiss the Sony subsidiary 2—scheduled a meeting complaint in this action on January 16, with the Plaintiffs so that the Plaintiffs 2014. They attached with their motion an could present him with original songs for exhibit consisting of a side-by-side compar- possible use in one of Arista’s upcoming ison of the lyrics of the Plaintiffs’ Song and albums. At the meeting, the Plaintiffs the Challenged Song. They also attached played the Plaintiffs’ Song for Barackman. as exhibits two compact disks, containing, Barackman liked the song and, per his respectively, each song. The motion was request, the Plaintiffs provided him with a fully submitted on March 14. compact disk that included the Plaintiffs’ Song. The Plaintiffs contend that they pro- DISCUSSION vided the compact disk with their song to When deciding a motion to dismiss un- Barackman based on an agreement that der Rule 12(b)(6), Fed.R.Civ.P., a court any use of the song would be in exchange must ‘‘accept all allegations in the com- for ‘‘reasonable compensation’’ based on plaint as true and draw all inferences in ‘‘industry practices and standards.’’ the non-moving party’s favor.’’ LaFaro v.

2. Arista Records was initially erroneously ed in its place as a defendant. sued in this action. Sony has been substitut- EDWARDS v. RAYMOND 297 Cite as 22 F.Supp.3d 293 (S.D.N.Y. 2014)

New York Cardiothoracic Group, PLLC, tract claim is either time barred or void 570 F.3d 471, 475 (2d Cir.2009). To sur- under the statute of frauds. Because the vive a motion to dismiss, ‘‘a complaint two songs are not substantially similar as a must contain sufficient factual matter, ac- matter of law, the copyright claim is dis- cepted as true, to state a claim to relief missed and it is unnecessary to reach the that is plausible on its face.’’ Ashcroft v. issue of laches. The Court declines to Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, exercise supplemental jurisdiction over the 173 L.Ed.2d 868 (2009) (citation omitted). state law breach of contract claim. A complaint must do more, however, than I. Copyright Infringement offer ‘‘naked assertions devoid of further [1–4] A plaintiff asserting a copyright factual enhancement.’’ Id. (citation omit- infringement claim must show: ‘‘(i) own- ted). ership of a valid copyright; and (ii) unau- ‘‘For purposes of a motion to dismiss, we thorized copying of the copyrighted have deemed a complaint to include any work.’’ Jorgensen v. Epic/Sony Records, written instrument attached to it as an 351 F.3d 46, 51 (2d Cir.2003). The Defen- exhibit or any statements or documents dants do not contest that the Plaintiffs incorporated in it by reference, as well as have a valid copyright in their work. ‘‘To TTT documents that the plaintiffs either demonstrate unauthorized copying, the possessed or knew about and upon which plaintiff must first show that his work they relied in bringing the suit.’’ Roth- was actually copied; second, he must es- man v. Gregor, 220 F.3d 81, 88 (2d Cir. tablish ‘substantial similarity’ or that the 2000) (citation omitted). Although the copying amounts to an improper or un- Plaintiffs did not attach copies of the lyrics lawful appropriation TTTT’’ Tufenkian and audio recordings of the two songs, the Imp./Exp. Ventures, Inc. v. Einstein Plaintiffs clearly relied upon those materi- Moomjy, Inc., 338 F.3d 127, 131 (2d Cir. als in bringing this suit. Accordingly, this 2003) (citation omitted). ‘‘Actual copying Court will consider them in connection may be established by direct or indirect with this motion to dismiss. evidence.’’ Boisson v. Banian, Ltd, 273 The Defendants contend that the Plain- F.3d 262, 267 (2d Cir.2001) (citation omit- tiffs’ copyright infringement claim must be ted). ‘‘The plaintiff then must show that dismissed because the Plaintiffs’ Song and the copying amounts to an improper or the Challenged Song share no protectable unlawful appropriation by demonstrating expression and are not ‘‘substantially simi- that substantial similarities relate to pro- lar.’’ See Peter F. Gaito Architecture, 602 tectable material.’’ Laureyssens v. Idea F.3d at 66. They also contend that the Group, Inc., 964 F.2d 131, 139–40 (2d Cir. lawsuit is barred by the doctrine of laches 1992) (citation omitted). because the Plaintiffs waited nearly eight Because the Plaintiffs’ Song is not ‘‘sub- and a half years from the accrual of their stantially similar’’ to the Challenged Song, claim to file this action. See generally the Plaintiffs’ copyright infringement claim Petrella v. Metro–Goldwyn–Mayer, Inc., fails. As a result, it is unnecessary to ––– U.S. ––––, 134 S.Ct. 1962, 188 L.Ed.2d reach the question of whether the Plain- 979 (2014). Finally, they contend that the tiffs have adequately pled actual copying. breach of contract claim should be dis- missed because the Plaintiffs have not ade- A. Substantial Similarity quately alleged the existence of a contract The standard for the substantial similar- and that in any event their breach of con- ity inquiry is well established: 298 22 FEDERAL SUPPLEMENT, 3d SERIES

The standard test for substantial simi- shared by the works are something more larity between two items is whether an than mere generalized idea or themes.’’ ordinary observer, unless he set out to Walker v. Time Life Films, Inc., 784 F.2d detect the disparities, would be disposed 44, 48–49 (2d Cir.1986) (citation omitted). to overlook them, and regard the aesth- [7] In the context of etic appeal as the same. In applying the so-called ‘‘ordinary observer’’ test, we a case alleging music plagiarism, the ask whether an average lay observer claimant is constrained to prove that would recognize the alleged copy as hav- defendant took from plaintiff’s works so ing been appropriated from the copy- much of what is pleasing to the ears of righted work. lay listeners, who comprise the audience Peter F. Gaito Architecture, 602 F.3d at 66 for whom such music is composed, that (citation omitted). defendant wrongfully appropriated something which belongs to the plaintiff. On occasion TTT [the Second Circuit has] noted that when faced with works that Repp v. Webber, 132 F.3d 882, 889 (2d have both protectable and unprotectable Cir.1997) (citation omitted). elements, [the] analysis must be more [8, 9] A district court in the Second discerning, and that [a court] instead Circuit may resolve a ‘‘substantial similari- must attempt to extract the unprotecta- ty’’ challenge on a Rule 12(b)(6) motion to ble elements from TTT consideration and dismiss. ‘‘[I]t is entirely appropriate for ask whether the protectable elements, the district court to consider the similarity standing alone, are substantially similar. between those [relevant] works in connec- Id. (citation omitted). tion with a motion to dismiss, because the No matter which test we apply, howev- court has before it all that is necessary in er, we have disavowed any notion that order to make such an evaluation.’’ Peter we are required to dissect the works F. Gaito Architecture, 602 F.3d at 64. into their separate components, and ‘‘When a court is called upon to consider compare only those elements which are whether the works are substantially simi- in themselves copyrightable. Instead, lar, no discovery or fact-finding is typically we are principally guided by comparing necessary, because what is required is only the contested design’s total concept and a TTT comparison of the works.’’ Id. (cita- overall feel with that of the allegedly tion omitted). ‘‘If, in making that evalua- infringed work as instructed by our good tion, the district court determines that the eyes and common sense. two works are not substantially similar as Id. (citation omitted). a matter of law, the district court can [5, 6] It is a fundamental principle of properly conclude that the plaintiff’s com- copyright law that ‘‘the similarity between plaint, together with the works incorporat- two works must concern the expression of ed therein, do not plausibly give rise to an ideas, not the ideas themselves. This prin- entitlement of relief.’’ Id. (quoting Iqbal, ciple, known as the ‘idea/expression dichot- 556 U.S. at 679, 129 S.Ct. 1937). omy,’ assures authors the right to their original expression, but encourages others 1. The Phrase ‘‘Caught Up’’ to build freely upon the ideas and informa- [10, 11] As an initial matter, the phrase tion conveyed by a work.’’ Id. at 67 (cita- ‘‘caught up,’’ which is the title of both the tion omitted). Consequently, a court Plaintiffs’ Song and the Challenged Song, ‘‘must decide whether the similarities is not eligible for copyright protection. It EDWARDS v. RAYMOND 299 Cite as 22 F.Supp.3d 293 (S.D.N.Y. 2014)

is well established that common phrases dants’ misappropriation of a number of are not eligible for copyright protection. expressive elements of the Plaintiffs’ Song See, e.g., Acuff–Rose Music, Inc. v. Jos- which together suffice to render the Chal- tens, Inc., 155 F.3d 140, 143 (2d Cir.1998) lenged Song ‘‘substantially similar.’’ This (the phrase ‘‘ ‘[y]ou’ve got to stand for allegation will be addressed below in con- something, or you’ll fall for anything,’ lacks junction with the Plaintiffs’ other conten- originality and was therefore not protect- tions of substantial similarity between the ed’’ by the plaintiff’s copyright.). Only two songs. those components of a work that are origi- nal to the author are eligible for copyright 2. The Plaintiffs’ Specific Allegations protection. Feist Publ’ns, Inc. v. Rural of Similarity Tel. Serv. Co., 499 U.S. 340, 345, 111 S.Ct. [13] The Plaintiffs devote ten para- 1282, 113 L.Ed.2d 358 (1991) (‘‘[t]he sine graphs of their complaint to allegations of qua non of copyright is originality.’’). The similarity between their song and the phrase ‘‘caught up’’ is not original to the Challenged Song. Four of those allegations Plaintiffs; it is used in everyday speech in are addressed to similarities in the ideas a variety of contexts. See Pyatt, 2011 WL expressed by the two songs, which are not 2078531, at *8 (providing examples: ‘‘ ‘I’m copyrightable as a matter of law. See id. all caught up with my homework;’ ‘I’m at 344–45, 111 S.Ct. 1282 (‘‘The most fun- caught up in traffic;’ or ‘I’ll be late because damental axiom of copyright law is that no I’m caught up at work’ ’’). The phrase has author may copyright his ideas or the facts ‘‘enjoyed a robust existence in the public he narrates.’’ (citation omitted)). Those domain long before [the plaintiffs] em- allegations include: 1) that both songs use ployed it for [their] song’s title and in the the phrase ‘‘caught up’’ to ‘‘tell the same key lyrics.’’ Acuff–Rose Music, Inc., 155 story [of] a man who is becoming so in- F.3d at 144 (citation omitted). Indeed, the volved with a woman to become oblivious Plaintiffs concede that ‘‘short phrases to the reality of the situation;’’ 2) that the which do not exhibit the minimal creativity ‘‘themes’’ of both songs ‘‘depict a man for copyright protection are not protecta- caught up in a lost love;’’ 3) that ‘‘the male ble expression.’’ And they do not argue singer is shocked by the state of his wom- that the phrase ‘‘caught up’’ is an excep- an’s grasp on him;’’ and that 4) both songs tion to that rule. end with expressions ‘‘that the male singer [12] It is true, however, that an origi- is in a total state of confusion.’’ nal arrangement of unprotectable material The latter two allegations also contain can be protected by the copyright laws. quotes from the lyrics in the two songs ‘‘[E]ven a directory that contains absolute- expressing the ideas in question. If the ly no protectible written expression, only quotes were intended to show similarity of facts, meets the constitutional minimum expression, they fail to do so. With re- for copyright protection if it features an spect to the first, the singer’s shock at a original selection or arrangement.’’ Feist woman’s ‘‘grasp on him’’ is expressed in Publ’ns, 499 U.S. at 348, 111 S.Ct. 1282. the Plaintiffs’ Song as ‘‘I can’t believe it.’’ The Plaintiffs contend that the Defendants In the Challenged Song, it is expressed as copied the ‘‘manner’’ in which the Plaintiffs ‘‘I can’t believe it, but it seems she’s got used the phrase ‘‘Caught Up’’ in their me twisted.’’ ‘‘I can’t believe it’’ is a com- song. They argue that the Plaintiffs’ use monplace phrase ineligible for copyright of the phrase is one example of the Defen- protection. See Acuff–Rose Music, 155 300 22 FEDERAL SUPPLEMENT, 3d SERIES

F.3d at 143. The Plaintiffs have not phrase, ‘Caught Up,’ which is then fol- shown that they have made any original lowed by one line and the phrase, ‘Caught use of the phrase ‘‘I can’t believe it’’ wor- Up’;’’ and that (4) ‘‘the songs ‘‘end with thy of copyright protection. Second, the similar lyrics expressing TTT confusionTTTT idea that the male singer is in ‘‘a state of In Plaintiffs’ musical composition TTT the confusion’’ is expressed in the Plaintiffs’ composition ends with the lyric, ‘‘She’s Song as ‘‘What could I do?’’ and in the messing with my mind.’’ Comparably, Challenged Song as ‘‘I can’t figure out Usher’s version TTT ends with the lyric, why.’’ There is nothing similar about the ‘‘I’m losin’ control, this girl’s got a hold on expression identified there other than the me.’’ use of the word ‘‘I.’’ These four allegations do not plausibly Two of the remaining six allegations of plead substantial similarity. The first is a similarity in the Plaintiffs’ complaint state, bare legal conclusion. The second con- respectively, a legal conclusion that ‘‘an tends first that both songs ‘‘build the song ordinary lay observer TTT [would] find that and lead[ ] into the first verse,’’ which is a the songs are substantially similar and necessary and non-copyrightable part of that an infringement has occurred,’’ and nearly any song, and second that it intro- the Plaintiffs’ contention that ‘‘upon hear- duces the idea of a man in love, which is an ing the two (2) musical compositions at non-protectable idea. The third conten- issue, several individuals have informed tion fails because, as explained above, the Plaintiffs that, in their lay opinions, Defen- phrase ‘‘caught up’’ is a common phrase dants have copied Plaintiffs’ musical com- not eligible for copyright protection. Put- position.’’ A court is ‘‘not bound to accept ting the phrase ‘‘caught up’’ in a chorus as true a legal conclusion couched as a and situating it between two other lines is factual allegation.’’ Iqbal, 556 U.S. at 678, not an ‘‘original contribution[ ]’’ eligible for 129 S.Ct. 1937. And the Plaintiffs’ conten- protection by the copyright laws. Feist tion that ‘‘several individuals’’ have told Publ’ns, 499 U.S. at 359, 111 S.Ct. 1282. them that the two songs are similar is not Many choruses feature a phrase repeating entitled to significant weight. on every other line. And the fourth alle- The remaining four allegations of simi- gation fails to show any similarity of ex- larity between the two songs in the Plain- pression. While the lyrics ‘‘she’s messing tiffs’ complaint allege similarities in copy- with my mind,’’ and ‘‘this girl’s got a hold rightable expression. But, they still do on me,’’ both express the idea of a man not suffice to state a plausible claim of under the influence of a woman, there is substantial similarity. The Plaintiffs con- no overlap in the mode of expression of tend that: 1) the ‘‘[t]he theme, melody, that idea. In sum, nothing in the Plain- hook, lyrics, and chorus of the musical tiffs’ complaint plausibly alleges copyright compositions are substantially similar;’’ infringement. that 2) the two songs ‘‘begin similarly, with each respective singer building the song 3. Holistic Comparison of the Two and then leading into the first verse, which Songs introduces the plot of the composition, a The Plaintiffs argue that even if the man caught up in lost love; that 3) ‘‘[t]he ‘‘areas of similarity between the two songs choruses of the two TTT musical composi- at issue that Plaintiffs previously identi- tions are similarly arranged. Both musical fied’’ do not independently plead substan- compositions have one line, followed by the tial similarity, the Second Circuit requires EDWARDS v. RAYMOND 301 Cite as 22 F.Supp.3d 293 (S.D.N.Y. 2014) this Court to compare the ‘‘total concept sic in the two songs are different, and an and overall feel’’ of the two songs, ‘‘as average observer would not find that the instructed by our good eyes and common Defendants have taken ‘‘from [P]laintiff[s’] sense TTT focus[ing] on whether the al- works so much of what is pleasing to the leged infringer has misappropriated the ears of lay listeners TTT that [D]efen- original way in which the author has se- dant[s] wrongfully appropriated something lected, coordinated, and arranged the ele- which belongs to the [P]laintiff[s].’’ Repp, ments of his or her work.’’ Peter F. Gaito, 132 F.3d at 889 (citation omitted). 602 F.3d at 66 (citation omitted). Careful analysis of the two songs’ music and lyrics, b. Lyrics considered as a whole, confirms a lack of [15] The lyrics of the two songs are substantial similarity. also not substantially similar. Attached to this Opinion as an Appendix is a side by a. Music side comparison of the two songs’ lyrics. [14] The Defendants argue vigorously The only significant point of overlap is the that there is no substantial similarity in use of the phrase ‘‘caught up’’ in the cho- the music of the two songs. The Plaintiffs rus of each song. As explained above, that fail to respond to these arguments. The phrase is not copyrightable. Nor have the Defendants are correct, in any event. Defendants copied any original arrange- A comparison of the sound recordings of ment of that phrase that would constitute the two songs confirms that their music is protectable expression. Beyond the not substantially similar. There are a phrase ‘‘caught up’’ there is no overlap number of material differences. First, the between the lyrics of the two songs beyond Plaintiffs’ Song is in significant part a rap commonplace words like ‘‘hit’’ ‘‘girl’’ and song. The Challenged Song has no rap- ‘‘control.’’ Moreover, the Plaintiffs’ Song’s ping; Usher sings all of the lyrics. The lyrics are structured as a back-and-forth Plaintiffs’ Song also consists of a duet in- between the male protagonist and the cluding a male and a female singer, where- woman who is the object of his affections. as the Challenged Song features a solo The Challenged Song’s lyrics do not con- male lead singer. Moreover, the Chal- tain any back-and-forth and consist solely lenged Song contains significantly sparser of the male narrator telling his story. instrumentation backing the singers’ vo- Nor does the fact that both songs’ lyrics cals than does the Plaintiffs’ Song. The tell the story of ‘‘a man caught up in love’’ Challenged Song also features ‘‘unmistak- save the Plaintiffs’ claim. Themes are not able Motown influences’’ influences, Pyatt, independently protectable. Cf. Feist 2011 WL 2078531, at *9, whereas the Publ’ns, 499 U.S. at 344–45, 111 S.Ct. Plaintiffs’ Song does not. And the chorus, 1282. And as explained above, the Plain- or hook, of each song, although both em- tiffs have not shown any misappropriation ploying the phrase ‘‘Caught Up,’’ feature of any protected expression of that theme entirely dissimilar melodies. through original arrangement or other Finally, the ‘‘feel’’ of the two songs is contribution by the Plaintiffs. In sum, ‘‘an dissimilar. The Plaintiffs’ Song is an up- average lay observer would [not] recognize beat, optimistic song, whereas the Chal- the alleged[ly] [copied lyrics] as having lenged Song has a contemplative, question- been appropriated from the copyrighted ing feel. Because of these differences, the work.’’ Peter F. Gaito, 602 F.3d at 67 ‘‘total concept and overall feel’’ of the mu- (citation omitted). 302 22 FEDERAL SUPPLEMENT, 3d SERIES

II. Supplemental Jurisdiction risdiction doctrine—judicial economy, [16, 17] The Plaintiffs also plead a convenience, fairness, and comity—will breach of contract claim under state law. point toward declining to exercise juris- A federal district court’s supplemental ju- diction over the remaining state-law risdiction over state law claims is governed claims. by 28 U.S.C. § 1367. Under that provi- Pension Ben. Guar. Corp. ex rel. St. Vin- sion, a district court ‘‘may decline to exer- cent Catholic Med. Centers Ret. Plan v. cise supplemental jurisdiction over a Morgan Stanley Inv. Mgmt. Inc., 712 F.3d claim’’ if, inter alia, ‘‘the district court has 705, 727 (2d Cir.2013) (citation omitted). dismissed all claims over which it has orig- inal jurisdiction.’’ 28 U.S.C. § 1367(c)(3). [18] The federal claim of copyright in- ‘‘In deciding whether to exercise jurisdic- fringement having been dismissed, this tion over supplemental state-law claims, Court declines to exercise supplemental district courts should balance the values of jurisdiction over the state law breach of judicial economy, convenience, fairness, contract claim. This litigation is at an and comity—the ‘Cohill factors.’ ’’ Klein early stage; discovery has not yet com- & Co. Futures, Inc. v. Bd. of Trade of City menced, and principles of judicial economy of New York, 464 F.3d 255, 262 (2d Cir. do not counsel in favor of the exercise of 2006) (citing Carnegie–Mellon Univ. v. Co- jurisdiction. Nor is there any reason hill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 grounded in principles of convenience, fair- L.Ed.2d 720 (1988)). ‘‘It is well settled ness, or comity to depart from the stan- that where TTT the federal claims are elim- dard practice of declining to exercise juris- inated in the early stages of litigation, diction over state claims once no federal courts should generally decline to exercise law claims remain. pendent jurisdiction over remaining state law claims.’’ Klein & Co. Futures, 464 CONCLUSION F.3d at 262. The Defendants’ January 16, 2014 mo- It is well to recall that in the usual case tion to dismiss is granted. The Clerk of in which all federal-law claims are elimi- Court shall close the case. nated before trial, the balance of factors to be considered under the pendant ju- SO ORDERED.

APPENDIX Plaintiffs’ Song Challenged Song

Female Rap Verse 1 Male Introduction

Aye yo, was it cool for you to be with Ohhh her and me? G’s up Hey, what you doin’ Ohhh Is you tryin’ to play with me? Ohhh And is it wrong for me to put it on you G’s up And never call you Ohhh Hit me e’ry day and I ignore you Ohhh I don’t wanna do that Ohhh Too dime for that You know how I do An’ you too cute for me to wanna get If you pimpin’ pop a bottle down like that Cause it’s like that and that’s the way Male Vocal/Verse 1 it is EDWARDS v. RAYMOND 303 Cite as 22 F.Supp.3d 293 (S.D.N.Y. 2014)

APPENDIX—Continued Got you caught up in a girl I’m the kind of brother When I made your toes curl Who been doin’ it my way Anything I want, anything I need Getting my way for years, in my career Anything I got, anything I see And every lover, y’all You got it for me In and out of my life And I saw it all when I made this man I’ve hit, loved, and left in tears cry Without a care Was the power of the p-u-s-s-y Pre-Hook Male Vocal/Verse 1 Until I met this girl who turned the Almost every weekend, I’m in my spot tables around Getting’ my groove on She caught me by surprise and I never Tryin’ to make it pop thought I’d be the one On this evening, the finest thing Breakin’ down I can’t figure it out why walked up to me I’m so And this is what she said Hook Female/Male Vocal (Alternating Lines) Caught up You got that vibe about you Got me feelin’ it Then I looked her up and down and said Caught up you too I don’t know what it is but it seems Do you wanna take a ride, is that cool? She got me twisted I’m so Well I’m a man and she’s a dime, what Caught up could I do? Got me feelin’ it Caught up Chorus I’m losing control, this girl’s got A hold on me Now I’m caught up Yeah It’s the jumpoff now (Caught up) Ohhh Bout to be on and poppin’ (Caught up) Let me go baby Let’s do the damn thing (Caught up) Ohhh Can’t believe that Now listen Now I’m caught up Ohhh It’s the jumpoff now (Caught up) Bout to be on and poppin’ (Caught up) Male Vocal/Verse 2 Let’s do the damn thing (Caught up) She’s messin’ with my mind My mama told me Be careful who you do Male Vocal/Verse 2 ’Cause karma comes back around Same ol’ song Jumped in her beamer But I was so sure Drove to her spot That it wouldn’t happen to me Think I got it made ’Cause I know how to put it down ‘Cause damn the place was hot But I was so wrong Excused herself Came back lookin’ just like a queen Pre-Hook Straight Victoria magazine This girl was mean, (so mean) she Female/Male Vocal really turned me out Her body was so tight Can I get you a drink? I’m looking for her in the daytime And would you like to take a bubble With a flashlight bath with me? My homies say this girl is cramping Oh damn. What do you think? (she’s cramping) my style I’m alive with her, And I can’t figure it out Let’s get this thing poppin’ And I’m so

304 22 FEDERAL SUPPLEMENT, 3d SERIES

APPENDIX—Continued Chorus Hook

Now I’m caught up Caught up It’s the jumpoff now (Caught up) Got me feelin’ it Bout to be on and poppin’ (Caught up) Caught up Let’s do the damn thing (Caught up) I don’t know what it is but it seems Can’t believe that She got me twisted I’m so Now I’m caught up Caught up It’s the jumpoff now (Caught up) Got me feelin’ it Bout to be on and poppin’ (Caught up) Caught up Let’s do the damn thing (Caught up) I’m losing control, this girl’s got She’s messin’ with my mind A hold I’m so

Male Vocal/Bridge Hook

Used to be the one Caught up That’s in control Really feelin’ it But I’m not mad at all Caught up (hey hey) How you flipped the script on me I don’t know what it is but it seems Whatever you wanna do She’s got me twisted I’m so Girl, take me there (take me there) Caught up I’m with you Really feelin’ it Female Rap Verse 2 Caught up Yo I got you caught up I’m losing control, this girl’s got With this honey A hold on me You think its funny Ohhh You laughin’ And I think I like it baby Still don’t nuttin’ move but the money Ohhh (move but the money) Oh no Let’s get the jumpoff jumped off Ohhh You headed up north If you pimpin’ pop a bottle I’m ‘bout to turn you around Ohhh, yeah, oh my You goin’ downtown Can’t stop You want it to pop? Hit the right spot If you pimpin’ pop a bottle You ready to stop? No. Steady the flow This girl was mean, she really turned Gotta run, you wanna catch up to me Me out Who would you thought it would be Yeah, yeah, yeah, suga Sleep with a B–Y–M–B My homies say this girl is cramping my style (style) I’m so

Chorus (Repeated 3 Times)

Now I’m caught up Hook It’s the jumpoff now (caught up) Bout to be on and poppin’ (Caught up) Caught up Let’s do the damn thing (Caught up) Caught up Can’t believe that I don’t know what it is (what it is) Now I’m caught up It’s the jumpoff now but it seems (caught up) She got me twisted Bout to be on and poppin’ (Caught up) I’m so Let’s do the damn thing (Caught up) Caught up She’s messin’ with my mind Really feelin’ it Caught up I’m losin’ control, this girl’s got A hold I’m so Hook Caught up I’m so Caught up RAHMAN v. SCHRIRO 305 Cite as 22 F.Supp.3d 305 (S.D.N.Y. 2014)

APPENDIX—Continued I don’t know what it is but it seems She’s got me twisted I’m Caught up Really feelin’ it Caught up I’m losin’ control, this girl’s got A hold on me Ohhh Ohhh Ohhh Ohhh ,

(2) officer’s act of setting machine to high- Malik RAHMAN, Plaintiff, er radiation dose on one occasion did v. not constitute excessive force; (3) commissioner was not entitled to quali- Dora SCHRIRO—Commissioner; Luis fied immunity, at motion to dismiss Rivera—Warden; Deputy Warden— stage; Russo; Deputy of Security—Pervus; (4) officers were entitled to qualified im- Captain—Lee; Captain—Levy; Offi- munity; and cer—Othman, Defendants. (5) Prison Litigation Reform Act (PLRA) No. 13–CV–6095 (CS). did not preclude detainee from assert- United States District Court, ing claim for compensatory damages. S.D. New York. Motion granted in part and denied in part. Signed May 27, 2014. 1. Evidence O48 Background: Pretrial detainee brought O § 1983 action against state prison commis- Federal Civil Procedure 1832 sioner, warden, deputy warden, deputy of In deciding motion to dismiss for fail- security, and officers, alleging they violat- ure to state a claim in § 1983 action ed the Fourteenth Amendment’s Due Pro- brought by pretrial detainee against prison officials, alleging violations of Fourteenth cess Clause by forcing him to go through a Amendment’s Due Process Clause based radiation-emitting X-ray security screen- on being forced to go through full-body X- ing machine in order to get to and from his ray security screening machine in order to daily work assignment. Defendants moved get to and from his daily work assignment, to dismiss for failure to state a claim. district court would consider fact sheet on Holdings: The District Court, Seibel, J., radiation published on website of Environ- held that: mental Protection Agency (EPA), since (1) detainee stated a claim for deliberate court was permitted to take judicial notice indifference; of United States government publications.