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.