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PRUNTEi v. UNIVERSAL MUSIC GROUP, INC. 15 Cite as 699 F.Supp.2d 15 (D.D.C. 2010) if those claims were being considered to An Order consistent with this Opinion will place in context plaintiff’s allegations of be issued this same day. discourteous treatment as a part of his SO ORDERED hostile work environment claim, that claim still would not survive. ‘‘Hostile work environment claims are , not meant to set a general code for the workplace; rather a workplace environment becomes hostile ‘only when offensive conduct permeate[s] [the workplace] with discriminatory intimidation, ridicule, and Robert R. PRUNTE,i Plaintiff, insult that is sufficiently severe or perva- sive to alter the conditions of the victim’s v. employment.’ ’’ Ramey v. Potomac Elec. UNIVERSAL MUSIC GROUP, Power Co., 468 F.Supp.2d 51, 58 n. 8 INC., et al., Defendants. (D.D.C.2006) (citing Stewart v. Evans, 275 F.3d 1126, 1133 (D.C.Cir.2002)). Plaintiff’s Civil Action No. 06–0480 (PLF). conclusory allegation about unspecified United States District Court, discourteous and abusive treatment does District of Columbia. not meet this standard, nor is there any basis to infer that any such treatment was March 29, 2010. motivated by discriminatory or retaliatory Background: Hip-hop music composer animus. See Badibanga v. Howard Univ. brought action against recording and pub- Hosp., 679 F.Supp.2d 99, 103–04 (D.D.C. lishing companies, alleging copyright in- 2010) (dismissing hostile work environment fringement. Following partial dismissal, claim because allegations did not show req- 484 F.Supp.2d 32, and stay of further dis- uisite level of severity); Hunter v. Clinton, covery, 563 F.Supp.2d 41, parties cross- 653 F.Supp.2d at 124–25. This claim moved for summary judgment. therefore is dismissed. See Middlebrooks Holding: The District Court, Paul L. v. Bonner Kiernan Trebach & Crociata, Friedman, J., held that composer’s songs, 671 F.Supp.2d 61, 63–64 (D.D.C.2009) (con- ‘‘Fire in the Hole,’’ ‘‘God, Pick Up the clusory statements regarding discrimina- Phone,’’ ‘‘I’m So High,’’ ‘‘Smoke, Drink, tion do not survive a motion to dismiss) Cuss, Fight,’’ ‘‘Kings in the City,’’ ‘‘We Got (citing Ashcroft v. Iqbal, 129 S.Ct. at 1949). It Poppin,’’ ‘‘Wish a Muthafugga Would,’’ ‘‘Stripper Girl,’’ ‘‘Slow Neck,’’ ‘‘Every- IV. CONCLUSION body’s Talkin’ ‘Bout Us,’’ ‘‘Shoot to Kill,’’ For the reasons stated above, the Court ‘‘I’m a Maniac,’’ ‘‘First Blood,’’ and ‘‘That’s will grant defendant’s motion to dismiss in What’s Up’’ did not contain any copyright- part and will deny it in part, and the Court able aspects. will grant plaintiff’s Rule 56(f) motion for Defendants’ motion granted. discovery in part and deny it in part. Dis- covery in this case will proceed, but will be limited to whether or not plaintiff exhaust- 1. Copyrights and Intellectual Property ed his claims regarding his formal repri- O51 mand on October 13, 1999 and the SEC’s To establish copyright infringement, alleged imposition of a curfew upon him. plaintiff must prove: (1) ownership of valid 16 699 FEDERAL SUPPLEMENT, 2d SERIES copyright, and (2) copying of constituent 8. Copyrights and Intellectual Property elements of work that are original. O53(1) 2. Copyrights and Intellectual Property One work is substantially similar to O53(1) another, as required to establish copyright To establish copying of original con- infringement, if ordinary reasonable per- stituent elements, plaintiff must show that: son would conclude that defendant unlaw- (1) defendant actually copied plaintiff’s fully appropriated plaintiff’s protectible ex- work, and (2) defendant’s work is substan- pression by taking material of substance tially similar to protectable elements of and value. plaintiff’s work. 9. Copyrights and Intellectual Property 3. Copyrights and Intellectual Property O53(1) O53(1) In determining whether work is sub- First step in substantial similarity in- stantially similar to another, as required to quiry requires identifying which aspects of establish copyright infringement, court or artist’s work, if any, are protectible by fact-finder must consider works as whole copyright, i.e., which aspects display au- as well as individual elements of works in thor’s stamp of originality. isolation, since protectible expression may 4. Copyrights and Intellectual Property arise through ways in which artists com- O36 bine unprotectable elements. Mere fact that book, play, or piece of 10. Copyrights and Intellectual Property music is copyrighted does not mean that O8 every part of it is protected. Hip-hop music composer’s song, ‘‘Fire 5. Copyrights and Intellectual Property in the Hole,’’ did not contain any copy- O4.5, 12(2) rightable aspects that could be infringed Ideas and facts contained in copy- by defendants’ work, ‘‘Fire in Da Hole’’; righted works are not protected, even neither titles nor short, common phrases though creative expression of those ideas such as ‘‘fire in the hole’’ were protectible, or facts may be. and asserted theme of vengeful young peo- 6. Copyrights and Intellectual Property ple was an idea and unprotectable. 37 C.F.R. § 202.1(a). O12(2) Sequences of events that necessarily 11. Copyrights and Intellectual Property result from choice of setting or situations, O8 and stock themes or settings that often Hip-hop music composer’s song, ‘‘God, arise in works of particular genre, are not Pick Up the Phone,’’ did not contain any protected under copyright laws. copyrightable aspects that could be in- 7. Copyrights and Intellectual Property fringed by defendants’ work, ‘‘Lord, Give O53(1) Me a Sign’’; concept of person reaching out Once unprotectable elements of copy- and asking for help or counsel from a god right are excluded, substantial similarity was precisely the type of broad, general inquiry involves determining whether al- concept not safeguarded by copyright, and legedly infringing work is substantially fact that composer invoked the concept of similar to protectible elements of plaintiff’s divine intervention in five syllables did not work. render that concept protectible. PRUNTEi v. UNIVERSAL MUSIC GROUP, INC. 17 Cite as 699 F.Supp.2d 15 (D.D.C. 2010)

12. Copyrights and Intellectual Property 16. Copyrights and Intellectual Property O8 O8 Hip-hop music composer’s song, ‘‘I’m Hip-hop music composer’s song, So High,’’ did not contain any copyrighta- ‘‘Wish a Muthafugga Would,’’ did not con- ble aspects that could be infringed by de- tain any copyrightable aspects that could fendants’ work, ‘‘So High’’; neither titles be infringed by defendants’ work, ‘‘The nor short phrases such as ‘‘so high,’’ were Heat’’; combination of speaker’s wish plus protectible, and lyrics using clichéd lan- common swear word was a simple short guage, such as the equation of being high phrase and thus not protectible, and man- to touching the sky, were too trite to warner in which phrase was used in each song rant copyright protection. 37 C.F.R. was distinct. § 202.1(a). 17. Copyrights and Intellectual Property 13. Copyrights and Intellectual Property O8 O8 Hip-hop music composer’s song, Hip-hop music composer’s song, ‘‘Stripper Girl,’’ did not contain any copy- ‘‘Smoke, Drink, Cuss, Fight,’’ did not con- rightable aspects that could be infringed tain any copyrightable aspects that could by defendants’ work, ‘‘I’m N Luv (Wit a be infringed by defendants’ works, ‘‘I Stripper)’’; composer had no protectible Smoke, I Drank,’’ and ‘‘By Myself’’; use interest in word ‘‘stripper’’ or idea of a words ‘‘smoke’’ and ‘‘drink,’’ whether to- narrator being in love with a stripper, and gether or separately, was not protectible similarities between the songs related sole- expression. ly to setting, strip club, stock themes of 14. Copyrights and Intellectual Property men enjoying watching strippers, and se- O8 quences of events, strippers dancing on Hip-hop music composer’s song, poles that necessarily result from choice of ‘‘Kings in the City,’’ did not contain any situation and part of a scène à faire that copyrightable aspects that could be in- did not enjoy copyright protection. fringed by defendants’ work, ‘‘I’m a King’’; 18. Copyrights and Intellectual Property concept of narrator who was popular and O8 vengeful toward his enemies was unprotectable idea, word ‘‘king’’ was itself unpro- Hip-hop music composer’s song, ‘‘Slow tectable, and, aside from repeated use of Neck,’’ did not contain any copyrightable word ‘‘king,’’ lyrics of the two songs were aspects that could be infringed by defen- entirely different. dants’ work, ‘‘Slow Motion’’; singers’ preference that sexual acts be ‘‘slow’’ was 15. Copyrights and Intellectual Property merely concept that could not be protected O8 by copyright. Hip-hop music composer’s song, ‘‘We Got It Poppin,’’ did not contain any copy- 19. Copyrights and Intellectual Property rightable aspects that could be infringed O8 by defendants’ work, ‘‘Get It Poppin’’; ti- Hip-hop music composer’s song, ‘‘Ev- tles and common phrases such as ‘‘get it erybody’s Talkin’ ‘Bout Us,’’ did not con- poppin’’ were not protectible by copyright, tain any copyrightable aspects that could and neither was the idea of ‘‘girls getting be infringed by defendants’ work, ‘‘Talk promiscuous after hours’’ in a club. About Our Love’’; idea of two lovers decid- 18 699 FEDERAL SUPPLEMENT, 2d SERIES ing to ignore gossip about them was not 24. Copyrights and Intellectual Property protectible, nor were short, common O8 phrases such as ‘‘just running their Hip-hop music composer’s song, mouths.’’ ‘‘That’s What’s Up’’ did not contain any copyrightable aspects that could be in- 20. Copyrights and Intellectual Property fringed by defendants’ work, ‘‘That What’s O8 Up’’; ‘‘that’s what’s up’’ was a common, Hip-hop music composer’s song, short phrase and so was not protectible. ‘‘Shoot to Kill,’’ did not contain any copyrightable aspects that could be infringed by defendants’ work ‘‘Welcome to the South’’; neither the common phrase ‘‘shoot Robert R. Prunté, Rex Village, GA, pro to kill,’’ nor the idea of taking lives, nor a se. rhyme scheme using words ending in the Michael Brian Desanctis, Jenner & commonplace ‘‘ill’’ sound was protectible. Block LLP, Washington, DC, for Defen- dants. 21. Copyrights and Intellectual Property O8 OPINION Hip-hop music composer’s song, PAUL L. FRIEDMAN, District Judge. ‘‘Shoot to Kill,’’ did not contain any copyrightable aspects that could be infringed Plaintiff Robert R. Prunté alleges that by defendants’ work, ‘‘Battle Song’’; even if approximately 45 named defendants have ‘‘Battle Song’’ included phrase ‘‘shoot to infringed his copyright in numerous songs kill,’’ that common phrase was unprotecta- that he wrote and produced. He seeks to ble, as was theme of killing with gunfire. recover damages pursuant to the Copy- right Act, 17 U.S.C. §§ 101 et seq., for 22. Copyrights and Intellectual Property direct and contributory copyright viola- O8 tions. Of the many defendants currently named in this case, only two—UMG Re- Hip-hop music composer’s song, ‘‘I’m cordings, Inc. (‘‘UMG’’ or ‘‘Universal’’), a Maniac,’’ did not contain any copyrighta- and Warner Music Group Corp. (‘‘War- ble aspects that could be infringed by de- ner’’) (collectively ‘‘the defendants’’), have fendants’ work, ‘‘Break Bread’’; phrase responded to the complaint. These defen- ‘‘I’m a maniac’’ was not entitled to copy- dants have filed a motion for summary right protection. judgment, and Mr. Prunté has filed a cross-motion. Mr. Prunté has also submit- 23. Copyrights and Intellectual Property ted two plainly frivolous motions in which O8 he (1) alleges that the defendants are in Hip-hop music composer’s song, contempt of court, and (2) requests that ‘‘First Blood’’ did not contain any copy- the Court ‘‘take judicial notice of certain rightable aspects that could be infringed adjudicative facts and facts of law.’’ Dock- by defendants’ work, ‘‘It’s Okay (One et No. 94 at 1. The defendants have moved Blood)’’; single word, ‘‘blood’’ was not to strike various papers filed by Mr. copyrightable, no matter how many times Prunté, including his motion alleging con- it was repeated in defendant’s work. 37 tempt of court and his motion for summary C.F.R. § 202.1(a). judgment.1 PRUNTEi v. UNIVERSAL MUSIC GROUP, INC. 19 Cite as 699 F.Supp.2d 15 (D.D.C. 2010)

Upon consideration of the entire record Prunté’s music in various urban areas. in this case, the parties’ arguments, and See Compl. ¶ 65; id., Exs. F, H, M; First the relevant law, the Court concludes that Am. Compl. ¶¶ 73, 75.2 As President of the defendants’ works are not substantially YoWorld, Mr. Prunté took part in a service similar to those of the plaintiff and that the provided by Inside Sessions, a division of defendants therefore are entitled to sum- defendant Universal, which involved his mary judgment on all claims. Having al- purchasing an educational CD–ROM on ready ruled that expert reports would not how to succeed in the music industry and be accepted at this stage of the litigation, submitting samples of his musical work for see Prunté v. Universal Music Group, Civ- professional industry feedback. Compl. il Action No. 06–0480, Memorandum Opin- ¶ 65; id., Ex. D; First Am. Compl. at 8; ion and Order at 5–6 (D.D.C. Mar. 25, id. ¶ 89. Mr. Prunté submitted 38 songs 2009), the Court will also grant the defen- to Inside Sessions in 2001 and received dants’ motion to strike the plaintiff’s ex- written critiques from Inside Sessions in pert report. Each of the remaining out- 2002. See Compl. ¶ 65; id., Exs. B–C. standing motions will be denied as either On March 25, 2006, Mr. Prunté com- meritless or moot. menced this action by filing a complaint on his own behalf and that of YoWorld against approximately 45 corporate and I. BACKGROUND individual recording industry defendants, According to his various complaints, including large production companies such plaintiff Robert Prunté is a composer of as Universal, Warner, and Viacom and hip-hop songs and the president of Yo- well-known artists such as Eminem, Kanye World Music (‘‘YoWorld’’), a company West, and Lil Wayne.3 Mr. Prunté assert- whose street teams sell and give away Mr. ed a total of twelve claims against all

1. The papers submitted by the parties and complaint all allegations and arguments made reviewed by the Court include: plaintiff’s in previous complaints. The Court therefore original complaint (‘‘Compl.’’); defendants’ has referenced all three complaints in sum- motion to dismiss (‘‘Defs.’ MTD’’); plaintiff’s marizing the plaintiff’s contentions. first amended complaint (‘‘First Am. Compl.’’); plaintiff’s second amended com- 3. The following are the defendants, other than plaint (‘‘Second Am. Compl.’’); plaintiff’s mo- Universal and Warner, named in Mr. Prunt´e’s tion for summary judgment (‘‘Pl.’s MSJ’’); Pl.’s MSJ, Ex. A (‘‘Music CD’’); Pl.’s MSJ, Ex. most recent complaint: the board of directors B (‘‘Lyrics’’); plaintiff’s motion for judicial of Universal, Zach Horowitz, Nick Henry, notice (‘‘Pl.’s MJN’’); plaintiff’s supplemental Shawn (Jay–Z) Carter, L.A. Reid, Cash Money report of music expert, Ex. A (‘‘Mikeal Re- Records, Inside Sessions, Dino Delvaille, Da- port’’); plaintiff’s motion alleging contempt of mon Dash, Def Jam Music Group, Interscope court by defendants (‘‘Pl.’s Cont. Mot.’’); de- Records, Geoff Seigel, Brian Wittmer, Kanye fendants’ motion for summary judgment West, Brandy Norwood, G–Unit Records, 50 (‘‘Defs.’ MSJ’’); defendants’ opposition and Cent, Juvenile, Lil Wayne, Roy Jones, Jr., motion to strike plaintiff’s motion for con- Eminem, DMX, T.I., Ying Yang Twins, Fat tempt, motion for summary judgment and Joe, Ludacris, Shawnna, Akon, T–Pain, Yo expert report (‘‘Defs.’ Opp.’’); plaintiff’s op- Gotti (Young Gotti), the Game, John Legend, position to defendants’ motion for summary Ted Turner, the board of directors of Warner, judgment (‘‘Pl.’s Opp.’’); and defendants’ re- Ahmet Ertegun, Adam Fischell, Black Rob, ply to plaintiff’s opposition to defendants’ mo- Rich Christina, Sum[n]er Redstone, BET, tion for summary judgment (‘‘Defs.’ Reply’’). MTV, VH1, Paramount Pictures, Rolf 2. Mr. Prunt´e, a pro se litigant, appears to Schmidt–Holtz, and Tim Bowen. Second incorporate by reference into each successive Am. Compl. at 1. 20 699 FEDERAL SUPPLEMENT, 2d SERIES

defendants collectively. Two of those motion for summary judgment prior to the claims asserted copyright infringement, commencement of discovery on the issue of while the remaining ten alleged breach of whether the defendants’ allegedly infring- fiduciary duty, violations of the Lanham ing songs are substantially similar to Mr. Act, civil RICO claims, criminal extortion, Prunté’s music. Prunté v. Universal Mu- and bank fraud. See First Am. Compl. sic Group, 563 F.Supp.2d 41, 43–45 ¶¶ 131–312. Although his complaint (D.D.C.2008). The Court reasoned that, in named numerous defendants, Mr. Prunté all likelihood, the only evidence necessary obtained summonses for just three of to a decision on substantial similarity them—Universal, Warner, and Viacom— would be (1) recordings of all the songs at and served process only upon Universal issue, and (2) transcriptions of the songs’ and Warner. See Prunté v. Universal lyrics. Id. at 44. The parties could easily Music Group, 484 F.Supp.2d 32, 36 exchange that evidence among themselves (D.D.C.2007). and provide it to the Court, thus avoiding the expense of formal discovery at least On March 30, 2007, ruling on a motion to temporarily. Id. In the event that Mr. dismiss filed by Universal and Warner, the Prunté determined that he would need Court dismissed all of the pending claims further evidence in order to answer the except those alleging copyright infringe- defendants’ motion, he would be permitted ment. Prunté v. Universal Music Group, to move for limited discovery pursuant to 484 F.Supp.2d at 44. The Court also dis- Rule 56(f) of the Federal Rules of Civil missed all claims brought by YoWorld on Procedure. Id. at 45. the ground that Mr. Prunté, proceeding During the several months following the pro se, could not represent an artificial issuance of the Court’s June 2, 2008 Order, entity. Id. at 37–38. On March 11, 2008, the parties were unable to complete the the Court dismissed all pending claims exchange of evidence contemplated by the against Viacom, finding that Mr. Prunté Court and failed to agree on a briefing had never effected proper service upon schedule for the defendants’ motion for that defendant. Prunté v. Universal Mu- summary judgment. See Prunté v. Uni- sic Group, 248 F.R.D. 335, 339 (D.D.C. versal Music Group, Civil Action No. 06– 2008). As a result of those rulings, Mr. 0480, Memorandum Opinion and Order at Prunté’s complaint now consists only of 1–2 (D.D.C. Mar. 25, 2009). In that peri- claims alleging direct and contributory od, Mr. Prunté filed six ‘‘baseless’’ mo- copyright infringement against Universal, tions, prompting the Court to warn him Warner, and a host of individuals and com- that he could be barred from filing further panies for whom summonses have not been papers without leave if he continued to issued and who have never appeared in ‘‘clog[ ] [the Court’s] docket TTT with mer- this litigation. Mr. Prunté alleges that the itless motions.’’ Id. at 3 (internal quota- various defendants conspired to imitate tion marks omitted). To facilitate the protectible elements of fourteen songs in briefing and resolution of the anticipated which he holds the copyrights and to feed motion for summary judgment, the Court the resulting sixteen infringing songs to stated that it required five pieces of evi- ‘‘already hot artist[s] on the [defendant dence: (1) a list of the allegedly infringed production companies’] roster[s].’’ First songs; (2) a list of the allegedly infringing Am. Compl. ¶ 5; see also Pl.’s MSJ at 6. songs; (3) a document ‘‘explaining which On June 2, 2008, the Court ruled that portions of Mr. Prunté’s works were, in his the defendants would be permitted to file a view, infringed by [the defendants’] works’’ PRUNTEi v. UNIVERSAL MUSIC GROUP, INC. 21 Cite as 699 F.Supp.2d 15 (D.D.C. 2010)

and ‘‘clearly identify[ing] the allegedly in- substantial similarly on June 15, 2009. fringed portions of Mr. Prunté’s works and That motion is now ripe and appropriate the allegedly infringing portions of [the for resolution. defendants’] works’’; (4) a compact disc containing recordings of the allegedly in- II. LEGAL FRAMEWORK fringed songs; and (5) a separate compact A. Standard of Review disc containing recordings of the allegedly Under Rule 56 of the Federal Rules of infringing songs. Id. at 5. The Court Civil Procedure, summary judgment warned that ‘‘[n]o other evidence will be should be granted if the pleadings, deposi- permitted except by leave of Court’’ and tions, answers to interrogatories, admis- ordered Mr. Prunté to submit the five sions on file and affidavits show that there requested pieces of evidence. Id. at 5–6. is no genuine issue of material fact in Finally, the Court instructed Mr. Prunté dispute and that the moving party is enti- to file the requested evidence on or before tled to judgment as a matter of law. FED. May 1, 2009, and ordered the defendants R. CIV. P 56(c). Material facts are those to file their motion for summary judgment ‘‘that might affect the outcome of the suit on or before June 15, 2009. Id. at 6. under the governing law.’’ Anderson v. Instead of following the Court’s explicit Liberty Lobby, Inc., 477 U.S. 242, 248, 106 instructions by submitting only the five S.Ct. 2505, 91 L.Ed.2d 202 (1986). In pieces of evidence requested and permit- considering a motion for summary judg- ted, Mr. Prunté responded to the Court’s ment, the ‘‘evidence of the non-movant is March 25, 2009 Order by filing three mo- to be believed, and all justifiable inferences tions and the report of a purported music are to be drawn in his favor.’’ Id. at 255, expert. See Pl.’s MSJ; Mikeal Report; 106 S.Ct. 2505; see also Wash. Post Co. v. Pl.’s MJN; Pl.’s Cont. Mot. The first mo- U.S. Dep’t of Health and Human Servs., tion alleges that the defendants should be 865 F.2d 320, 325 (D.C.Cir.1989). held in contempt of Court because they Pro se complaints filed without the assis- failed to file their motion for summary tance of counsel are held ‘‘to less stringent judgment by April 20, 2009. See Pl.’s standards than formal pleadings drafted Cont. Mot at 2. The second requests the by lawyers,’’ Chandler v. W.E. Welch & entry of summary judgment in Mr. Assocs., 533 F.Supp.2d 94, 102 (D.D.C. Prunté’s favor. See Pl.’s MSJ. That mo- 2008) (quoting Haines v. Kerner, 404 U.S. tion is accompanied by some but not all of 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 the evidence requested by the Court. See (1972)) (internal quotation marks omitted), Music CD; Lyrics. The third motion, in and, when necessary, the Court may exam- which Mr. Prunté requests ‘‘judicial notice ine other pleadings ‘‘to understand the na- of certain adjudicative facts and facts of ture and basis of [a plaintiff’s] pro se law,’’ merely reiterates the facts alleged in claims.’’ Gray v. Poole, 275 F.3d 1113, plaintiff’s complaints and his motion for 1115 (D.C.Cir.2002). A pro se plaintiff’s summary judgment. inferences ‘‘need not be accepted ‘if such The defendants moved to strike several inferences are unsupported by the facts of Mr. Prunté’s filings as frivolous and/or set out in the complaint.’ ’’ Caldwell v. not permitted by the terms of the Court’s District of Columbia, 901 F.Supp. 7, 10 March 25, 2009 Order. See Defs.’ Opp. at (D.D.C.1995) (quoting Henthorn v. Dep’t of 1–2. They then timely filed their motion Navy, 29 F.3d 682, 684 (D.C.Cir.1994)). for summary judgment on the issue of Furthermore, a pro se plaintiff’s opposition 22 699 FEDERAL SUPPLEMENT, 2d SERIES to a motion for summary judgment, like Even if actual copying is established, a any other, must consist of more than mere plaintiff must establish actionable copying unsupported allegations and must be sup- to prevail. In other words, ‘‘[c]opying as a ported by affidavits or other competent factual matter is insufficient, if [actionable evidence setting forth specific facts show- copying] is lacking.’’ NIMMER ing that there is a genuine issue for trial. § 13.01[B] at 13–9; see also id. at 13–14 FED.R.CIV.P. 56(e); Celotex Corp. v. Ca- (actionable copying ‘‘remains an indispensi- trett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 ble [component] of plaintiff’s proof, even in L.Ed.2d 265 (1986). The non-moving par- cases TTT in which defendant does not ty is ‘‘required to provide evidence that contest factual copying’’). Courts employ would permit a reasonable jury to find’’ in a two-step analysis to determine whether his favor. Laningham v. U.S. Navy, 813 defendants have engaged in actionable F.2d 1236, 1242 (D.C.Cir.1987). If the evi- copying: dence is ‘‘merely colorable’’ or ‘‘not signifi- The first [step] requires identifying cantly probative,’’ summary judgment may which aspects of the artist’s work, if any, be granted. Anderson v. Liberty Lobby, are protectible by copyright. No author Inc., 477 U.S. at 249–50, 106 S.Ct. 2505. may copyright facts or ideas. The copy- B. Copyright Infringement right is limited to those aspects of the work—termed ‘‘expression’’—that dis- [1, 2] To establish copyright infringe- play the stamp of the author’s originali- ment, a plaintiff must prove ‘‘(1) ownership tyTTTT of a valid copyright, and (2) copying of constituent elements of the work that are Once unprotectible elements such as original.’’ Feist Publications, Inc. v. Ru- ideas and scènes a` faire are excluded, ral Telephone Service Co., 499 U.S. 340, the [second] step of the inquiry involves 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 determining whether the allegedly in- (1991); see also Stenograph L.L.C. v. Bos- fringing work is ‘‘substantially similar’’ sard Assocs., Inc., 144 F.3d 96, 99 to protectible elements of the [complain- (D.C.Cir.1998). The second require- ing] artist’s work. ‘‘Substantial similari- ment—that is, the copying of original ‘‘con- ty’’ exists where the accused work is so stituent elements’’—is composed of two similar to the plaintiff’s work that an sub-parts. Specifically, ‘‘[t]he plaintiff ordinary reasonable person would con- must show not only that the defendant clude that the defendant unlawfully ap- actually copied the plaintiff’s work, but propriated the plaintiff’s protectible ex- also that the defendant’s work is ‘substan- pression by taking material of substance tially similar’ to protectible elements of the and value. plaintiff’s work.’’ Sturdza v. United Arab Sturdza v. United Arab Emirates, 281 Emirates, 281 F.3d 1287, 1295 (D.C.Cir. F.3d at 1295–96 (internal quotation marks 2002). The first sub-element is generally and citations omitted). referred to as ‘‘actual’’ or ‘‘factual’’ copying and the second is generally referred to as 1. Unprotectible Elements ‘‘improper’’ or ‘‘actionable’’ copying. See [3–5] The first step in the substantial Johnson v. Gordon, 409 F.3d 12, 18 (1st similarity inquiry ‘‘requires identifying Cir.2005); see also 4 MELVILLE B. NIMMER which aspects of the artist’s work, if any, & DAVID NIMMER, NIMMER ON COPYRIGHT are protectible by copyright’’—that is, § 13.01[B] at 13–8 (2008) (hereinafter which aspects display the author’s ‘‘stamp ‘‘NIMMER’’). of originality.’’ Sturdza v. United Arab PRUNTEi v. UNIVERSAL MUSIC GROUP, INC. 23 Cite as 699 F.Supp.2d 15 (D.D.C. 2010)

Emirates, 281 F.3d at 1295. The mere F.3d at 1295–96. For instance, the use of fact that a book, play, or piece of music is a police car chase in an action movie is not copyrighted does not mean that every part copyrightable, although the way a particu- of it is protected. See Feist Publications, lar car chase is depicted may be copyright- Inc. v. Rural Tel. Serv. Co., 499 U.S. at able. As the Ninth Circuit has explained: 348, 111 S.Ct. 1282; Stenograph L.L.C. v. ‘‘[D]epictions of the small miseries of do- Bossard Assocs., Inc., 144 F.3d at 99 mestic life, romantic frolics at the beach, (copyright protection does not extend to and conflicts between ambitious young every element of a copyrighted work, people on one hand, and conservative or merely those components of the work that evil bureaucracies on the other [are] un- are original to the creator). For example, protectible. These familiar scenes and because ‘‘the sine qua non of copyright is themes are among the very staples of mod- originality,’’ ‘‘no author may copyright ern American literature and film. The ideas or the facts he narrates.’’ Feist common use of such stock TTT merely re- Publications, Inc. v. Rural Tel. Serv. Co., minds us that TTT there is only rarely 499 U.S. at 345, 111 S.Ct. 1282 (quoting anything new under the sun.’’ Berkic v. Harper Row Publishers, Inc. v. Nation Crichton, 761 F.2d 1289, 1294 (9th Cir.), Enterprises, 471 U.S. 539, 556, 105 S.Ct. cert. denied, 474 U.S. 826, 106 S.Ct. 85, 88 2218, 85 L.Ed.2d 588 (1985)). Ideas and L.Ed.2d 69 (1985); see also Whitehead v. facts contained in copyrighted works Paramount Pictures, Corp., 53 F.Supp.2d therefore are not protected even though 38, 46–47 (D.D.C.1999). the creative expression of those ideas or Like scènes a` faire, individual words and facts may be. See Feist Publications, Inc. short phrases are generally not protected v. Rural Tel. Serv. Co., Inc., 499 U.S. at because they lack the requisite originality. 348, 111 S.Ct. 1282; Nelson v. Grisham, See 37 C.F.R. § 202.1(a) (‘‘Words and 942 F.Supp. 649, 652 (D.D.C.1996), aff’d, short phrases such as names, titles, and 132 F.3d 1481 (D.C.Cir.1997), cert. denied, slogans’’ are not subject to copyright.); 522 U.S. 1148, 118 S.Ct. 1166, 140 L.Ed.2d Acuff–Rose Music, Inc. v. Jostens, 155 176 (1998). As Judge Boudin has ex- F.3d 140, 144 (2d Cir.1998) (phrases that plained for the First Circuit, ‘‘the underly- ‘‘enjoy[ ] a robust existence in the public ing idea (e.g., the travails of two star- domain’’ are not protectible); Narell v. crossed lovers), even if original, cannot be Freeman, 872 F.2d 907, 911 (9th Cir.1989) removed from the public realm; but its (‘‘Ordinary phrases are not entitled to expression in the form of a play script copyright protection.’’); Whitehead v. Par- (such as William Shakespeare’s Romeo amount Pictures Corp., 53 F.Supp.2d at 47 and Juliet ) can be protected. Needless to n. 5 (‘‘[T]he isolated use of a word or say, the line is a blurry one.’’ Matthews v. phrase such as ‘kind of cute’ is not copy- Freedman, 157 F.3d 25, 27 (1st Cir.1998). rightable.’’). [6] Similarly, sequences of events that 2. Assessing Substantial Similarity ‘‘necessarily result from the choice of set- [7–9] ‘‘Once unprotectible elements ting or situations,’’ known as scènes a` such as ideas and scènes a` faire are ex- faire, and stock themes or settings that cluded, the next step of the [substantial often arise in works of a particular genre similarity inquiry] involves determining also are not protected. Williams v. Crich- whether the allegedly infringing work is ton, 84 F.3d 581, 587 (2d Cir.1996); see substantially similar to protectible ele- also Sturdza v. United Arab Emirates, 281 ments of the [plaintiff’s] work.’’ Sturdza 24 699 FEDERAL SUPPLEMENT, 2d SERIES

v. United Arab Emirates, 281 F.3d at 1296 ing works. Prunté v. Universal Music (internal quotation marks omitted). One Group, Civil Action No. 06–0480, Memo- work is substantially similar to another if randum Opinion and Order at 5 (D.D.C. ‘‘an ordinary reasonable person would con- Mar. 25, 2009). The parties were warned clude that the defendant unlawfully ap- that ‘‘[n]o other evidence will be permitted propriated the plaintiff’s protectible ex- except by leave of the Court.’’ Id. pression by taking material of substance Mr. Prunté flagrantly disobeyed that and value.’’ Id. (internal quotation marks Order by submitting without leave an ‘‘ex- and citation omitted). In assessing sub- pert report’’ that was prepared by one stantial similarity, a court or factfinder David Mikeal and purports to analyze the must consider ‘‘the works as a whole’’ as similarities and differences between four well as ‘‘individual elements [of the works] sets of allegedly infringing/infringed songs. in isolation,’’ because ‘‘protectible expres- See Mikeal Report. As evidence of Mr. sion may arise through the ways in which Mikeal’s expertise, Mr. Prunté has submit- artists combine even unprotectible ele- ted only a printout of the welcome page ments.’’ Id. (internal quotation marks and from Mr. Mikeal’s website, which states citations omitted). that ‘‘David is a well known singer, song- III. DISCUSSION writer, producer[,] engineer and multi-in- strumentalist.’’ Plaintiff’s Supplemental A. Permissible Evidence Report of Music Expert, Ex. B. Because Before analyzing the substance of Mr. Mr. Prunté has improperly submitted Mr. Prunté’s claims, the Court must determine Mikeal’s report, and because the Court has what material is properly included in the already determined that expert reports record. In its June 2, 2008 Memorandum should not be used to prove substantial Opinion and Order, the Court determined similarity in this matter, the Court will that it would resolve any motion for sum- grant the defendants’ motion to strike Mr. mary judgment regarding the issue of sub- Mikeal’s report and will not consider it in stantial similarity without relying upon ex- deciding the defendants’ motion for sum- pert affidavits or reports submitted by the mary judgment.4 parties. Prunté v. Universal Music B. Analysis Group, 563 F.Supp.2d at 42–43. Accord- ingly, the Court instructed Mr. Prunté to Having determined which materials it submit as evidence only (1) transcriptions will consider, the Court now must analyze of the lyrics at issue, and (2) sound record- the substance of Mr. Prunté’s claims of ings of the allegedly infringed and infring- substantial similarity. Those claims fail to

4. The Court notes that the report would be of and feel (groove)’’ of defendants’ ‘‘Fire in Da no help to Mr. Prunté in any case. With Hole’’ and plaintiff’s ‘‘Fire in the Hole’’ ‘‘are regard to each of the four sets of songs upon quite different.’’ Id. Aside from a trivial simi- which Mr. Mikeal opines, he finds that the larity in the flute accompaniment to plaintiff’s music of Mr. Prunté’s song differs substantial- song ‘‘Kings in the City’’ and defendants’ song ly from that of the defendants. The music of ‘‘I’m a King,’’ ‘‘the musical parts and ar- defendants’ ‘‘The Heat,’’ for example, ‘‘isn’t rangement of both songs are different.’’ Id. very similar’’ to that of Mr. Prunté’s ‘‘Wish a at 1. Mr. Mikeal’s report thus validates the Muthafugga Would.’’ Mikeal Report at 1. defendants’ contention that no reasonable ‘‘The musical parts and structure’’ of defen- person would consider the music of their dants’ ‘‘Talk About Our Love’’ and plaintiff’s songs substantially similar to that of Mr. ‘‘Everybody’s Talkin Bout Us’’ ‘‘are quite dif- Prunté’s songs. ferent.’’ Id. at 2. ‘‘The keys, musical parts PRUNTEi v. UNIVERSAL MUSIC GROUP, INC. 25 Cite as 699 F.Supp.2d 15 (D.D.C. 2010)

demonstrate that any genuine issue of ma- Having explained the gist of Mr. terial fact exists as to the question of Prunté’s arguments, the Court may now substantial similarity in this case. The assess his allegations with regard to par- plaintiff’s assertions follow a pattern. ticular songs. While weighing Mr. With respect to each pair of allegedly in- Prunté’s arguments, the Court painstak- fringed or infringing songs, Mr. Prunté ingly and repeatedly listened to the audio identifies one or two common, unprotecti- recordings of the allegedly infringed and ble elements—a word or common phrase, infringing songs submitted by the plaintiff. an idea, a scène a` faire—in the defendants’ It also carefully reviewed the transcrip- song that is also present in his own song, tions of the songs’ lyrics provided by Mr. often in the title or chorus. He then Prunté. Based on this thorough analysis points out that the songs share a theme or of the songs’ music and lyrics, the Court subject—another unprotectible element. concludes that no trier of fact could find Finally, he asserts that in combination, the the works substantially similar. unprotectible elements shared by the two songs constitute his own protected expres- Since Mr. Prunté’s arguments follow a sion. See, e.g., Pl.’s Opp. at 49–50. pattern, as explained above, so too will the Court’s analysis: it will first identify the As the defendants point out, see Defs.’ elements of each allegedly infringed song Reply at 6, Mr. Prunté seems draw this that Mr. Prunté believes to be present in line of argument from Sturdza v. United Arab Emirates, 281 F.3d 1287 (D.C.Cir. an allegedly infringing song, and then ex- 2002), in which the court of appeals ruled plain why those elements are not protecti- that two architectural works may be sub- ble and so cannot be a source of substan- stantially similar, in spite of numerous tial similarity. In cases where Mr. Prunté small differences between them, if their has identified a string of trivial similarities, ‘‘overall look and feel’’ is very similar. Id. the Court explains how the differences be- at 1297; see Pl.’s Opp. at 14. That line of tween the two works in question far out- reasoning simply cannot be applied in Mr. weigh any minor similarities. Prunté’s case, however. In Sturdza, the 1. Plaintiff’s ‘‘Fire in the Hole’’ court of appeals found that the two archi- Defendants’ ‘‘Fire in Da tectural works in question might have a Hole’’ similar ‘‘overall look and feel’’ because they shared numerous design elements and con- [10] Mr. Prunté contends that defen- veyed a similar visual ‘‘effect.’’ See id. at dants’ song ‘‘Fire in Da Hole’’ by Black 1297–99. In contrast, Mr. Prunté typically Rob infringes his work ‘‘Fire in the Hole’’ asserts that each allegedly infringing song because the songs have ‘‘the same theme has in common with one of his songs (1) concerning rowdy young people acting out use of a stock phrase, such as ‘‘that’s their desires to do harm to their enemies.’’ what’s up,’’ and (2) a very broad theme or Pl.’s MSJ at 20. He also relies on the fact subject, such as sex and drugs. The use of that the songs have the same title and a cliché short phrase in a hip-hop song contain the phrase ‘‘fire in the hole’’ in treating a very common subject cannot be their chorus lines. Id. Of course, titles said to create a distinctive musical effect, are not protectible, and neither are short, and so Mr. Prunté cannot rely upon Sturd- common phrases such as ‘‘fire in the hole.’’ za to transform his combination of a few See 37 C.F.R. § 202.1(a); Narell v. Free- unprotectible elements into protected ex- man, 872 F.2d at 911. The theme of pression. vengeful young people is an idea and so is 26 699 FEDERAL SUPPLEMENT, 2d SERIES

unprotectible. These unprotectible ele- Pl.’s MSJ at 20–21. Neither titles nor ments cannot serve as a basis for a finding short phrases such as ‘‘so high,’’ however, of substantial similarity. are protectible. See 37 C.F.R. § 202.1(a); Narell v. Freeman, 872 F.2d at 911. Fur- 2. Plaintiff’s ‘‘God, Pick Up the thermore, lyrics using clichéd language— Phone’’ Defendants’ ‘‘Lord, such as the equation of being high to Give Me a Sign’’ touching the sky—‘‘are too trite to warrant [11] As an initial matter, the Court copyright protection.’’ Johnson v. Gor- notes that Mr. Prunté, contrary to the don, 409 F.3d at 24. Any similarity based Court’s instructions, has failed to submit on those elements therefore cannot give an audio recording of these songs and has rise to a finding of actionable copyright provided a transcription only of the two infringement. songs’ chorus lines. The Court therefore addresses only Mr. Prunté’s arguments re- 4. Plaintiff’s ‘‘Smoke, Drink, Cuss, garding the lyrics of the chorus lines. Fight’’ Defendants’ ‘‘I Smoke, I Mr. Prunté alleges that defendants’ Drank’’ and ‘‘By Myself’’ ‘‘Lord, Give Me a Sign’’ by DMX infringes his song ‘‘God, Pick Up the Phone’’ be- [13] Mr. Prunté has not provided an cause ‘‘both works TTT ask[ ] God to do audio recording of defendants’ songs ‘‘I something for the speaker’’ using a phrase Smoke, I Drank’’ by Roy Jones, Jr., and five syllables long. See Second Am. ‘‘By Myself’’ by the Ying Yang Twins, nor Compl. at 35–36. It is nearly impossible to has he submitted a transcription of the think of a theme more transcendent of songs’ lyrics. His arguments regarding culture and history than that of a person these songs are based entirely on the lyr- reaching out and asking for help or counsel ics of their chorus lines, which he quotes in from a god. Such an idea is precisely the his second amended complaint. See Sec- type of broad, general concept not safe- ond Am. Compl. at 40. Even if the Court guarded by copyright. See Berkic v. assumes that the lyrics of the songs are Crichton, 761 F.2d 1289, 1293 (9th Cir. exactly as the plaintiff describes them in 1985) (‘‘General plot ideas are not protect- his complaint, his infringement claim fails. ed by copyright law; they remain forever Mr. Prunté’s claim of similarity appears to the common property of artistic man- be based entirely on the fact that the kind.’’). The fact that Mr. Prunté invokes defendants’ two songs use the words the concept of divine intervention in five ‘‘smoke’’ and ‘‘drink’’ in their choruses. syllables does not render that concept pro- See id. Needless to say, the mere use of those two words, whether together or sep- tectible. See NIMMER § 13.03[A] at 13–36 (‘‘[S]light or trivial similarities are not sub- arately, is not protectible expression. stantial and are not therefore infringing.’’). 3. Plaintiff’s ‘‘I’m So High 5. Plaintiff’s ‘‘Kings in the City’’ Defendants’ ‘‘So High’’ Defendants’ ‘‘I’m a King’’ [12] According to Mr. Prunté, the De- [14] The similarities alleged to exist fendants’ song ‘‘So High’’ by John Legend between the defendants’ ‘‘I’m a King’’ by is substantially similar to his song ‘‘I’m So T.I. and the plaintiff’s ‘‘Kings in the City’’ High’’ because the songs’ titles are ‘‘virtu- consist of the following: Both songs use ally identical,’’ and both songs use contact the word ‘‘king’’ in their title and chorus; with the sky as a metaphor for being high. both mention a car and an item of clothing PRUNTEi v. UNIVERSAL MUSIC GROUP, INC. 27 Cite as 699 F.Supp.2d 15 (D.D.C. 2010) in the chorus; and both feature a narrator sions contained in the defendants’ song. who is ‘‘immensely popular’’ and ‘‘speak[s] See Nelson v. PRN Prods., 873 F.2d 1141, of destroying enemies.’’ Pl.’s MSJ at 21– 1143 (8th Cir.1989) (‘‘There must be sub- 22; Pl.’s Opp. at 30. Mr. Prunté also stantial similarity not only of the general argues that both narrators ‘‘speak of mov- ideas but of the expression of those ideas ing through cities or cross-country,’’ Pl.’s as well.’’) (internal quotation marks omit- Opp. at 30, but in fact, defendants’ song ted). does not speak of moving; it says only that 6. Plaintiff’s ‘‘We Got It Poppin’ ’’ the narrator is ‘‘connected nationwide.’’ Defendants’ ‘‘Get It Poppin’ ’’ Lyrics at 6. [15] Mr. Prunté alleges that the defen- The concept of a narrator who is popular dants infringed his copyright in the song and vengeful toward his enemies is an ‘‘We Got It Poppin’ ’’ by using the phrase unprotectible idea. The word ‘‘king’’ is ‘‘get it poppin’ ’’ to refer to ‘‘the sex act’’ in itself unprotectible. As a whole, the simi- ‘‘Get It Poppin’’ by Fat Joe. Pl.’s MSJ at lar elements listed by Mr. Prunté amount 60. Furthermore, he asserts that the to nothing more than a ‘‘random’’ assort- songs are similar because both are set in a ment of ‘‘similarities scattered throughout dance club and involve ‘‘girls getting prom- the works,’’ which ‘‘does not support a iscuous after hours.’’ Id. at 33. Mr. finding of substantial similarity where Prunté does not claim that the phrase ‘‘get [the] works as a whole are not substantial- it poppin’ ’’ originated with him, but in- ly similar.’’ Whitehead v. Paramount Pic- stead contends that ‘‘there is only (1) one tures Corp., 53 F.Supp.2d at 50 (internal hip hop song with this title and expression, quotation marks and citation omitted); see and it belongs to this plaintiff.’’ Pl.’s Opp. also Bridgeport Music, Inc. v. UMG Re- at 34. Once again, however, the Court cordings, Inc., 585 F.3d 267, 275 (6th Cir. must point out that titles and common 2009) (‘‘[R]andom similarities TTT are not a phrases such as ‘‘get it poppin’ ’’ are not proper basis for a finding of substantial protectible by copyright, and neither is the similarity.’’). Furthermore, aside from the idea of ‘‘girls getting promiscuous after repeated use of the word ‘‘king,’’ the lyrics hours’’ in a club. See Scott–Blanton v. of the two songs are entirely different. Universal City Studios Prods., 539 For example, the fact that both songs F.Supp.2d 191, 201 (D.D.C.2008) (‘‘[T]he mention an article of clothing in their cho- public domain would have scant selection if rus is hardly significant, since the meaning stock settings such as TTT a club were and nature of the clothing mentioned is subject to copyright protection’’). different for each song. ‘‘Kings in the City’’ compares the hooded sweatshirts 7. Plaintiff’s ‘‘Wish a Muthafugga worn by the song’s narrators to ‘‘crowns,’’ Would’’ Defendants’ ‘‘The while ‘‘I’m a King’’ alludes to the wealth of Heat’’ the narrator by claiming that he has ‘‘[b]ank rolls in the pockets of my jeans.’’ [16] Mr. Prunté alleges that the defen- Lyrics at 6. Mr. Prunté cannot claim sub- dants’ ‘‘The Heat’’ by Lil Wayne infringes stantial similarity based on the idea of an his song ‘‘Wish a Muthafugga Would’’ be- article of clothing—or being a king, or cause defendants’ chorus contains the being popular—when his expression of phrase, ‘‘I wish a motherfucker would trip those ideas is so different from the expres- this year,’’ while the chorus Mr. Prunté’s 28 699 FEDERAL SUPPLEMENT, 2d SERIES song repeatedly uses the phrase, ‘‘We wish 8. Plaintiff’s ‘‘Stripper Girl’’ Defendants’ them muther fuckers would.’’ Pl.’s MSJ at ‘‘I’m N Luv (Wit a Stripper)’’ 22. According to Mr. Prunté, both songs [17] According to Mr. Prunté, defen- use the phrase to warn listeners that if dants’ song ‘‘I’m N Luv (Wit a Stripper)’’ they ‘‘do anything the speaker doesn’t by T–Pain is substantially similar to his like,’’ the speaker ‘‘will retaliate with gun- song ‘‘Stripper Girl’’ because both mention play if forced.’’ See Second Am. Comp. at a stripper in their title and chorus, and 48. The combination of a speaker’s wish both express the narrator’s ‘‘deep love and admiration for the ‘Stripper Girl’ or the plus a common swear word, however, is a ‘Girl Who Strips.’ ’’ Pl.’s MSJ at 22. Fur- simple short phrase and thus not protecti- thermore, both songs feature a stripper ble. See Narell v. Freeman, 872 F.2d at using a pole to dance. Id. These claims 911 (lyrics combining an ordinary phrase are light-years away from establishing and other unprotectible elements will not substantial similarity. Mr. Prunté has no be infringing unless the defendants copied protectible interest in the word ‘‘stripper’’ an entire ‘‘sequence of creative expres- or the idea of a narrator being in love with sion,’’ such as a ‘‘unique line or stanza’’) a stripper. Similarities between the songs Furthermore, the manner in which that relate solely to setting (strip club), stock phrase is used in each song is distinct. themes (men enjoying watching strippers), The plaintiff’s song uses the phrase to list and sequences of events (strippers dancing various actions that enemies should not on poles) ‘‘that necessarily result from the choice of TTT situation’’; they are thus all take unless they wished to be killed by the part of a scène a` faire that does not enjoy narrators (e.g., ‘‘try to set up shop on this copyright protection. Whitehead v. Para- block,’’ ‘‘come to this table runnin the sta- mount Pictures Corp., 53 F.Supp.2d at 46 ble,’’ ‘‘try to fuck with our skrilla,’’ ‘‘try to (internal quotation marks and citation state their case in our face’’). See Lyrics omitted). at 10. In contrast, ‘‘The Heat’’ uses the phrase once in each repetition of its chorus 9. Plaintiff’s ‘‘Slow Neck’’ Defendants’ to express a wish that ‘‘a motherfucker ‘‘Slow Motion’’ would trip this year’’; it is not clear which [18] Mr. Prunté claims his song ‘‘Slow meaning of the word ‘‘trip’’ is intended. Neck’’ was infringed by defendants’ song Id. There is no indication that the speaker ‘‘Slow Motion’’ by Juvenile because defen- is warning the audience away from a spe- dants’ song ‘‘expresses scandalous sexual cific act. Mr. Prunté thus can establish no situations in the same candid manner as more than that both songs use the word plaintiff’[’]s [song],’’ with both singers em- ‘‘wish’’ and the word ‘‘motherfucker’’ in the phasizing their preference that sexual acts be ‘‘slow.’’ See Second Am. Compl. at 52– same phrase. Such a trivial point of com- 53. Such a broad theme is merely a con- monality cannot establish substantial simi- cept that cannot be protected by copyright. larity. See Stratchborneo v. Arc Music See Johnson v. Gordon, 409 F.3d at 19 Corp., 357 F.Supp. 1393, 1404 (S.D.N.Y. (‘‘[C]opyright law protects original expres- 1973) (‘‘[S]ubstantial similarity cannot be sions of ideas but it does not safeguard established TTT simply by showing that either the ideas themselves or banal ex- both TTT songs focus on [a particular] idea; pressions of them.’’ (quoting Feist Publica- [the plaintiff] to prevail must establish that tions, Inc. v. Rural Telephone Service Co., the [defendants], in a material way, 499 U.S. at 345–51, 111 S.Ct. 1282) (inter- tracked his TTT treatment of that idea.’’). nal quotation marks omitted)); Whitehead PRUNTEi v. UNIVERSAL MUSIC GROUP, INC. 29 Cite as 699 F.Supp.2d 15 (D.D.C. 2010)

v. Paramount Pictures Corp., 53 11. Plaintiff’s ‘‘Shoot to Kill’’ F.Supp.2d at 49 (noting that ‘‘general con- Defendants’ ‘‘Welcome to the cept[s],’’ such as the idea ‘‘of an interracial South’’ and ‘‘Battle Song’’ relationship’’ or ‘‘two star-crossed lovers,’’ [20] Mr. Prunté contends that defen- are ‘‘not copyrightable’’). dants’ song ‘‘Welcome to the South’’ by Youngbuck is substantially similar to his 10. Plaintiff’s ‘‘Everybody’s Talkin’ song ‘‘Shoot to Kill’’ because both songs (1) ‘Bout Us’’ Defendants’ ‘‘Talk include the phrase ‘‘shoot to kill’’ in their About Our Love’’ chorus, (2) rhyme words ending in an ‘‘-ill’’ sound in their chorus (e.g., kill, pill), (3) [19] Mr. Prunté lists the following sim- ‘‘talk about cars’’ and ‘‘taking lives’’ ‘‘in the ilarities between his song ‘‘Everybody’s chorus lines,’’ and (4) ‘‘speak about Talkin’ ‘Bout Us’’ and defendants’ song ‘wheels.’ ’’ Pl.’s Opp. at 46. This list of ‘‘Talk About Our Love’’ by Brandy Nor- supposed similarities is not accurate. The wood and Kanye West: Both songs are chorus of Mr. Prunté’s song does not ‘‘talk ‘‘about two lovers who notice that people about cars’’; it says that the narrator will are discussing or talking about their love leave enemies ‘‘slumped behind the [steer- affair, [but] TTT then decide[ ] to let [peo- ing] wheel.’’ Lyrics at 22. The defen- ple] think whatever they want’’; both ‘‘talk dants’ song, on the other hand, mentions about family members’’ who gossip about ‘‘coupe Devilles.’’ Id. Nor do the songs the lovers; both ‘‘are moderately paced’’; ‘‘speak about ‘wheels’ ’’—or at least, not both include the phrase ‘‘just running their the same kind of wheel, for Mr. Prunté’s mouths’’; and both ‘‘are considered upbeat song refers to a steering wheel, while and urban contemporary.’’ Pl.’s Opp. at ‘‘Welcome to the South’’ mentions ‘‘22’s’’— 43–44. Again, ideas—such as the idea of slang for tire rims. two lovers deciding to ignore gossip about Of the supposed similarities listed by them—are not protectible, nor are short, Mr. Prunté, only three have some basis in common phrases such as ‘‘just running reality. Both songs do use the phrase their mouths.’’ Furthermore, ‘‘random ‘‘shoot to kill’’ in their choruses and, hav- similarities,’’ such as references to family ing used that phrase, necessarily refer to members who gossip, ‘‘moderate[ ]’’ pac- taking lives. The chorus of the defen- ing, and an ‘‘upbeat’’ tone, ‘‘do[ ] not sup- dants’ song does rhyme two words ending port a finding of substantial similarity in an ‘‘—ill’’ sound, ‘‘pills’’ and ‘‘kill.’’ where [the] works as a whole are not Plaintiff’s song, in contrast, rhymes ‘‘kill,’’ substantially similar.’’ Whitehead v. Para- ‘‘will,’’ ‘‘hill,’’ and ‘‘bills.’’ Neither the com- mount Pictures Corp., 53 F.Supp.2d at 50 mon phrase ‘‘shoot to kill,’’ nor the idea of (internal quotation marks and citation taking lives, nor a rhyme scheme using omitted). Aside from their use of the com- words ending in the commonplace ‘‘—ill’’ mon phrase ‘‘just running their mouths,’’ sound is protectible. See Steele v. Turner the songs feature completely different lyr- Broadcasting System, Inc., 646 F.Supp.2d ics, and the music of the two works is 185, 192 (D.Mass.2009) (‘‘A common rhyme entirely different, with distinctly different scheme TTT does not qualify as original melodies, accompaniment, tempos, and expression protectable under federal copy- rhythms. As a result, no reasonable fact- right law.’’). finder could conclude that the songs are [21] The plaintiff’s claims regarding substantially similar. Eminem’s ‘‘Battle Song’’ are similarly 30 699 FEDERAL SUPPLEMENT, 2d SERIES

without merit.5 Mr. Prunté contends that Pl.’s MSJ at 23. Being a single word, ‘‘Battle Song’’ infringes ‘‘Shoot to Kill’’ be- however, ‘‘blood’’ is not copyrightable, no cause both songs use the phrase ‘‘shoot to matter how many times it is repeated. kill’’ in their choruses and ‘‘express the See, e.g., 37 C.F.R. 202.1(a) (individual same thematic purposes.’’ Pl.’s MSJ at 24. words are not copyrightable). In fact, ‘‘Battle Song’’ does not use the phrase ‘‘shoot to kill.’’ Rather, the singer 14. Plaintiff’s ‘‘That’s What’s states, ‘‘If I can’t shoot you, I’m ‘a halfta Up’’ Defendants’ ‘‘That [sic] kill you by spittin.’ ’’ Second Am. What’s Up’’ Compl. at 58. Even if ‘‘Battle Song’’ did [24] According to Mr. Prunté, defen- include the phrase ‘‘shoot to kill,’’ however, dants’ song ‘‘That’s What’s Up’’ by Yo it would not infringe the plaintiff’s song. Gotti is substantially similar to his song Again, a common phrase such as ‘‘shoot to ‘‘That’s What’s Up’’ because they (1) have kill’’ is unprotectible, as is the theme of ‘‘completely identical titles,’’ (2) have the killing with gunfire. same ‘‘thematic expression,’’ and (3) feature ‘‘a ‘call and answer’ sequence that is 12. Plaintiff’s ‘‘I’m a Maniac’’ answered by the phrase ‘That’s What’s Defendants’ ‘‘Break Up.’ ’’ Pl.’s MSJ at 24. These claims lack Bread’’ merit. First, ‘‘that’s what’s up’’ is a com- [22] Mr. Prunté contends that the cho- mon, short phrase and so is not protecti- rus line in defendants’ song ‘‘Break Bread’’ ble. Second, themes are unprotectible by Ludacris infringes his song ‘‘I’m a Ma- ideas. Finally, Mr. Prunté is utterly incor- niac’’ by using the phrase ‘‘I’m a maniac’’ rect in asserting that defendants’ chorus repeatedly and ‘‘employ[ing]’’ ‘‘the same has a call-and-answer section involving the thematic purpose.’’ Pl.’s MSJ at 24.6 But phrase ‘‘that’s what’s up.’’ An ordinary short phrases such as ‘‘I’m a maniac’’ are listener can discern that the same vocalist not entitled to copyright protection. See who says ‘‘that’s what’s up’’ in the chorus Narell v. Freeman, 872 F.2d at 911. Fur- of defendants’ song also says the preceding thermore, as the Court has already noted words; the section lacks the alternation several times, themes are ideas and hence between musicians or vocalists that is not protectible. characteristic of call-and-response. Be- cause Mr. Prunté has not identified any 13. Plaintiff’s ‘‘First Blood’’ Defendants’ elements in defendants’ song that are simi- ‘‘It’s Okay (One Blood)’’ lar to protectible elements of his song, he [23] Mr. Prunté’s claims regarding the cannot demonstrate substantial similarity. defendants’ song ‘‘It’s Okay (One Blood)’’ by The Game consist entirely of the obser- IV. CONCLUSION vation that the word ‘‘blood’’ is repeated For the foregoing reasons, the Court several times in the chorus line of that will grant the defendants’ motion to strike song, just as it is in his song ‘‘First Blood.’’ Mr. Mikeal’s report, but deny the remain-

5. Contrary to the Court’s instructions, Mr. 6. Mr. Prunté has failed to submit an audio Prunté has failed to submit an audio record- recording of ‘‘Break Bread’’ and has provided ing of ‘‘Battle Song’’ and has provided a tran- a transcription only of the song’s chorus. The scription only of the song’s chorus. The Court therefore addresses only Mr. Prunté’s Court therefore addresses only Mr. Prunté’s arguments regarding the lyrics of the chorus. arguments regarding the lyrics of the chorus. ELZENEINY v. DISTRICT OF COLUMBIA 31 Cite as 699 F.Supp.2d 31 (D.D.C. 2010)

der of that motion. It will deny as frivo- 1. Civil Rights O1532 lous both Mr. Prunté’s motion for judicial Budget analyst’s allegations that em- notice and his motion alleging contempt of ployer discriminated and retaliated against court. Finally, it will grant defendants’ her on the basis of her disability failed to motion for summary judgment and deny state a claim under Title VII, despite ana- Mr. Prunté’s cross-motion. Because this lyst’s contention that Americans with Dis- Opinion disposes of all of Mr. Prunté’s abilities Act (ADA) incorporated same claims on the merits, the Court will enter remedies as Title VII; fact that ADA con- judgment for all defendants, including tained same remedies did not convert ADA those who have not appeared. An Order claim to one under Title VII. Americans consistent with this Opinion shall issue this with Disabilities Act of 1990, § 2 et seq., same day. 42 U.S.C.A. § 12101 et seq.; Civil Rights SO ORDERED. Act of 1964, § 717(a), 42 U.S.C.A. § 2000e–16(a). , 2. District of Columbia O36 Employee sought unliquidated damages, and therefore, dismissal of employee’s action against employer under the District of Columbia Human Rights Act Amina ELZENEINY, Plaintiff, (DCHRA) was warranted, where employee v. sought compensatory damages for pain and suffering, and failed to give required DISTRICT OF COLUMBIA, notice under District of Columbia notice et al., Defendants. statute. D.C. Official Code, 2001 Ed. Civil Action No. 09–889 (CKK). §§ 2–1401.01 et seq., 12–309.

United States District Court, 3. District of Columbia O36 District of Columbia. Claims such as back pay are easily March 29, 2010. ascertainable and thus qualify as liqui- Background: Budget analyst brought ac- dated damages for purposes of District of tion against District of Columbia, Office of Columbia notice statute. D.C. Official Chief Financial Officer and chief financial Code, 2001 Ed. § 12–309. officer, alleging discrimination in violation 4. District of Columbia 36 of the Americans with Disabilities Act O (ADA), Title VII and the District of Co- Back pay awards in employment dis- lumbia Human Rights Act (DCHRA). De- crimination cases are generally considered fendants filed motion for partial dismissal. a form of equitable relief, and equitable Holdings: The District Court, Colleen relief is not barred District of Columbia Kollar–Kotelly, J., held that: notice statute. D.C. Official Code, 2001 Ed. § 12–309. (1) allegations were insufficient to state a claim under Title VII, and 5. District of Columbia O36 (2) employee sought unliquidated dam- Attorneys’ fees are not generally con- ages. sidered damages at all under District of Motion granted in part, and denied in part. Columbia law and thus are not encom-