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Case 1:10-cv-08764-CM Document 88 Filed 05/19/11 Page 1 of 21 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ______________________________~x WADENA PYATT and BANG HITZ PUBLISHING, 10 Civ. 8764 (CM) Plaintiffs, -against- USHER RAYMOND IV aIkIa USHER, ALICIA AUGELLO COOK alkla ALICIA KEYS, KRUCIAL USDSSDNY KEYS, INC., JEFFREY ROBINSON, MBK DOCUMENT ENTERTAINMENT, INC., SONY BMG ELECTRONICALLY FILED MANAGEMENT CO, LLC, SONY MUSIC DOC#: ______~~--_ ENTERTAINMENT DIGITAL, LLC, ZOMBA RECORDING LLC, ARISTA RECORDS, INC., DATE FILED: 5 j,qf'l LA FACE RECORDS, INC., EMI MUSIC PUBLISHING, INC., JERMAINE DUPRE MAULDIN aIkIa JERMAINE DUPRE, MAURICE RYAN TOBY aIkIa RYAN TOBY, ANDRE HARRIS, VIDAL DAVIS, JASON BOYD, DOMINIQUE MURO, EMI APRIL MUSIC, INC., PLADIS MUSIC, INC., C. SILLS PUBLISHING, INC., HITCO MUSIC PUBLISHING LLC, DIRTY DRE MUSICIUNIVERSAL PUBLISHING INC., DOUBLE OH EIGHT MUSICIUNIVERSAL PUBLISHING, INC., POO BZ PUBLISHING, INC., SONY BMG, SONY MUSIC ENTERTAINMENT, INC., SONY/ATV TUNES, LLC, and SONY/ATV MUSIC PUBLISHING, LLC, Defendants. MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS McMahon, J. Wadena Pyatt and Bang Hitz Publishing (collectively, the "Plaintiffs") commenced this action against numerous defendants in the music industry, including well-known recording artists Usher and Alicia Keys. The crux of Plaintiffs' Complaint is that Usher's song, titled "Caught Up," is copied from Pyatt's song, also by the same name. Pending before the Court are four 1 Case 1:10-cv-08764-CM Document 88 Filed 05/19/11 Page 2 of 21 motions to dismiss filed by four different groups ofdefendants. For the reasons discussed below, the motions to dismiss are granted. I. BACKGROUND A. The Parties I. The Plaintiffs Wadena Pyatt is a singer and songwriter. (Compl. ~ 40.) Bang Hitz Publishing is her publishing company. (Id. ~ 41.) 2. The Moving Defendants (aj The Usher Defendants Usher Raymond IV ("Usher") is a Grammy-winning performing and recording artist. ~ ~ 46.) The allegedly infringing song is part of Usher's album, titled "Confessions." Sony BMG Management Co., LLC, Sony Music Entertainment Digital LLC, Zomba Recording LLC, and Arista Records, Inc. are New York-based record labels. (ld. ~~ 51-54.) LaFace Records, Inc. is a California-based record label. ~ ~ 55.) Sony BMG and Sony Music Entertainment, Inc. are Delaware corporations with their principal places of business in New York. ~ ~~ 42-43.) Sony/ATV Tunes LLC and Sony/ ATV Music Publishing LLC are Delaware limited liability companies with their principal places of business in New York. (ld. ~~ 44-45.) Usher, Sony BMG Management, Sony Music Entertainment Digital, Zomba Recording, Arista Records, LaFace Records, Sony BMG, Sony Music Entertainment, Sony/ATV Tunes, and Sony/ATV Music Publishing (collectively, the "Usher Defendants") filed a motion to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). 2 Case 1:10-cv-08764-CM Document 88 Filed 05/19/11 Page 3 of 21 (b) The Keys Defendants Alicia Augello Cook, better known by her stage name Alicia Keys, is a Gramtny-winning recording artist and musician. (Id. ~47.) Krucial Keys, Inc. is a New York corporation with its principal place of business in New York. (Id. ~ 48.) Keys and Krucial Keys (collectively, the "Keys Defendants") also moved to dismiss the Complaint as against themselves. (c) The Robinson Defendants Jeffrey Robinson is president ofMBK Entertainment, Inc. (ld. ~ 49.) MBK Entertainment, Inc. is a New York-based record label and management production and film company. (ld. ~ 50.) Pyatt alleges that MBK Entertainment is a joint business venture between Keys and Robinson. ilih ~~ 47,49.) Maurice Ryan Toby, known as Ryan Toby, is a songwriter who is listed as a co-writer of Usher's album. ilih ~ 58.) EMI April Music, Inc. is a New York-based record label. (Id. ~ 63.) Although EMI Music Publishing, Inc. is named as a defendant, no information describing the entity is provided in the Complaint. EMI Music Inc. is a Delaware corporation with its principal place ofbusiness in New York. (Id. ~ 56.) Pladis Music, Inc. is a music publishing company based in Georgia. (ld. ~ 64.) Robinson, MBK Entertainment, Toby, EMI April Music, EMI Music Publishing, EMI Music, and Pladis Music (collectively, the "Robinson Defendants") also moved to dismiss the Complaint. 3 Case 1:10-cv-08764-CM Document 88 Filed 05/19/11 Page 4 of 21 (d) The Boyd Defendants Hitco Music Publishing, LLC is a music publishing company located in Georgia. (Id. ~ 66.) Poo BZ Publishing, Inc. is a music publishing company listed on the copyrigh~s for Usher's song, "Caught Up." ilih ~ 68.) Jason Boyd is a songwriter who is also a co-writer of Usher's album, "Confessions," and Usher's song, "Caught Up." (Id. ~ 61.) Hitco Music, Poo BZ Publishing, and Boyd (collectively, the "Boyd Defendants") are the final group of defendants to file a motion to dismiss. 3. The Non-Moving Defendants The following defendants have not moved to dismiss the Complaint and have not joined the motions filed by the other defendants. Jermaine Dupre Mauldin is a songwriter and president of So So Def Record Label. (Id. ~ 57.) Dupre is also a producer of Usher's "Confessions" album. (Id.) Andre Harris, Dominique Muro, and Vidal Davis are songwriters, listed as co-writers of the album, "Confessions," and the song, "Caught Up." (Id. ~~ 59-60,62.) Dirty Dre MusiclUniversal Publishing, Inc. is the music publishing company used by Andre Harris. (Id. ~ 67.) C Sills Publishing, Inc. is a music publishing company located in Georgia. (Id. ~ 65.) B. Plaintiffs' Allegations For purposes ofthese motions, the allegations in the Complaint are accepted as true. See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). 4 Case 1:10-cv-08764-CM Document 88 Filed 05/19/11 Page 5 of 21 In 2002, Robinson and Keys wanted new artists for their record label and, as Ii result, talent scouts for MBK Entertainment approached Pyatt to discuss a record deal. (Id. ~ 75.) MBK Entertainment recruited Pyatt and, in 2003, Robinson offered Pyatt a one-album record deal under the MBK Entertainment-JlRecords Label. (ld. ~~ 76-77.) According to Pyatt, Robinson instructed her to begin work on her album before the written contract with MBK Entertainment was finalized. (Id. ~~ 79, 81.) In 2003, Robinson assigned employees ofMBK Entertainment (none named as defendants in this action) to work with Pyatt. (Id. ~ 83.) Robinson told Pyatt to submit copies of her lyrics, songs, and other materials for her album to MBK Entertainment. (Id. ~ 84.) In 2003, Pyatt named her album "Caught Up" and gave MBK Entertainment hand-written and typed lyrics for the album. (Id. ~ 85.) Pyatt also wrote a song titled "Caught Up," which she included in the "Caught Up" album. Pyatt alleges that she wrote the lyrics, melodies, and composition for her song as early as the 1990s. (Id. ~ 69.) In 2003, Pyatt received a copyright in her song "Caught Up." (Id. ~ 70.) In 2004, Kenneth Spratt, an MBK Entertainment employee, approached Pyatt with a new proposal: Pyatt was asked to release the rights to her song, "Caught Up," to MBK Entertainment for $7,500 to $10,000 and Pyatt was asked to ghost write songs for Alicia Keys and other MBK Entertainment artists without receiving credit or royalties for the work. (Id. ~~ 15,89.) Pyatt rej ected Spratt's proposal. According to Pyatt, Robinson promised that MBK Entertainment would not release any ofher song materials to third parties without her consent. (Id. ~ 102.) While working on her album for MBK Entertainment, Pyatt discovered that Usher was working on a new album­ "Confessions." (Id. ~~ 17-18.) Despite his promise, Robinson submitted Pyatt's song, "Caught 5 Case 1:10-cv-08764-CM Document 88 Filed 05/19/11 Page 6 of 21 Up," to Usher for his album, and Robinson also gave Pyatt's songs to other artists at MBK Entertainment-all without her consent. (Id. ~~ 18-19,96.) Pyatt objected to Robinson's sending her song materials to Usher and refused to give MBK Entertainment pennission to use her song. (Id. ~~ 20,93, 105-06, 113.) Pyatt alleges that Keys and Robinson used her materials (i.e., her melodies and lyrics) for Usher's album without her consent. (Id. ~~ 24-25,97.) In March 2004, Usher released his "Confessions" album, which contains the allegedly infringing song, also titled "Caught Up." Pyatt discovered the infringement in 2005, when she heard Usher's song played on the radio. C!!L. ~ 100.) Pyatt alleges that she did not authorize Usher to record, release, or perfonn any version ofher song. (Id. ~ 113.) Pyatt's "Caught Up" album was never completed, because MBK Entertainment placed her album budget "on hold." (Id. ~ 36.) Pyatt alleges that MBK Entertainment agreed to pay her living expenses and provide her with advances while she was working on her album. (Id. ~ 32.) Pyatt did not receive the promised payments. On November 19,20 I 0, Pyatt commenced this action against Defendants, asserting five causes of action: (1) copyright infringement (Count One); (2) punitive damages (Count Two); (3) fraud in the inducement (Count Three); (4) breach ofcontract (Count Four); and (5) quantum meruit (Count Five). The Usher Defendants, the Keys Defendants, and the Robinson Defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) on February 25, 2011. The Boyd Defendants filed their motion to dismiss on April 15,2011. The only basis for federal jurisdiction is Plaintiffs' claim for copyright infringement of Pyatt's song, "Caught Up." See 28 U.S.C. § 1338(a). 6 Case 1:10-cv-08764-CM Document 88 Filed 05/19/11 Page 7 of 21 II. DISCUSSION A Motion to Dismiss In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court must liberally construe all claims, accept all factual allegations in the complaint as true, and draw aU reasonable inferences in favor ofthe plaintiff.
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  • Grammy-Nominated Singer/Songwriter Ro James Returns with 4- Track Smoke Ep

    Grammy-Nominated Singer/Songwriter Ro James Returns with 4- Track Smoke Ep

    GRAMMY-NOMINATED SINGER/SONGWRITER RO JAMES RETURNS WITH 4- TRACK SMOKE EP AVAILABLE NOW AT ALL DIGITAL SERVICE PROVIDERS VIA BYSTORM ENTERTAINMENT/RCA RECORDS CLICK HERE TO LISTEN [March 23, 2018, New York, NY] Grammy-nominated singer/songwriter Ro James returns today with the release of his 4-track Smoke EP. The EP is now available to purchase and stream at all digital service providers via ByStorm Entertainment/RCA Records. Smoke EP is the first of two EP installments, which will be released in anticipation for Ro’s sophomore album due out later this year. The second installment, entitled Mirrors EP is due out later this spring. Click here to listen to Smoke EP. Ro James first treated fans to “Lost My Mind” ft. Notorious B.I.G. on March 9th, the anniversary of the legendary Brooklyn-rapper’s death. “Lost My Mind” ft. Notorious B.I.G. is produced by Salaam Remi (Amy Winehouse, Nas, Miguel). Click here to see Ro’s tribute post on Instagram. The Smoke EP features additional production by Soundz (Bryson Tiller, Justin Bieber, Wale), Andre Harris (Rae Sremmurd, Jill Scott, Yo Gotti), and Tricky Stewart (Frank Ocean, Beyoncé, Usher). On the release of the EP, Ro James says: “Smoke is just the intro into the fire. Mirrors is about reflection and self. I’ve been away for a bit recalibrating, growing and learning. I’m ready to share again. Decided to drop an EP and warm it up a little while I finish off the album. Smoke & Mirrors.” The release of the Smoke EP follows Ro’s critically acclaimed debut album ELDORADO, which included his hit single “Permission.” “Permission” has been streamed over 100 million times worldwide, earned Ro his first-ever Grammy nomination for Best R&B Performance and spent 10 weeks at #1 on the Urban Adult Radio chart.