Clanton v. UMG Recordings, Inc.

556 F.Supp.3d 322

Solomon CLANTON p/k/a Slugga, an individual, Plaintiff,

v.UMG RECORDINGS, INC., a Delaware corporation; Gamebread, LLC, a limited liability company; Tauheed Epps p/k/a 2Chainz, an individual; Kennon Jackson p/k/a YG, an individual; Kiari Cephus p/k/a Offset, an individual, Tyler Matthew Carl Williams p/k/a T-Minus, an individual; Josh Valle, an individual; Matthew Jehu Samuels, an individual; and Does 1 through 20, Defendants.

20-cv-5841 (LJL)

United States District Court, S.D. New York.

Signed August 16, 2021

Laura Maria Zaharia, Doniger/Burroughs, Brooklyn, NY, Scott Alan Burroughs, Doniger/Burroughs, Venice, CA, Michael Douglas Steger, Law Offices of Michael D. Steger, PC, Orangeburg, NY, for Plaintiff.

Cynthia S. Arato, Amelia Courtney Hritz, Shapiro Arato Bach LLP, New York, NY, for Defendants UMG Recordings, Inc., Gamebread, LLC, Tauheed Epps.

OPINION AND ORDER

LEWIS J. LIMAN, United States District Judge:

Defendants UMG Recordings, Inc., Gamebread, LLC, Tauheed Epps, known professionally as "2Chainz" ("2Chainz"), and Kiari Cephus, professionally known as "Offset" ("Offset"), move to dismiss Plaintiff Solomon Clanton's complaint. For the following reasons, the motion to dismiss is granted.

BACKGROUND

Solomon Clanton, professionally known as "Slugga" ("Slugga" or "Plaintiff") is a hip-hop artist. Dkt. No. 18 at 1. In 2015, Slugga recorded and released a musical composition and sound recording entitled "Proud" (the "Subject Composition"). The Subject Composition is available online and on social media. Id. ¶ 16. Slugga included the Subject Composition as part of his mixtape "Metamorphosis: From Forces to Red Bottoms" (the "Mixtape"), which was published on the website datpiff.com in 2015. Id. ¶ 17. The Mixtape was published on several other hip-hop music sites in 2015. Id. ¶ 18. The Subject Composition was published on YouTube as early as April 2017 and on the music site worldstarhiphop.com as early as April 2017. Id. ¶ 19. Slugga registered the recording of the Subject Composition with the United States Copyright Office on July 21, 2021, with Registration Number SR 875-198. Id. ¶ 15.

At some time no later than March 2018, 2Chainz, a well-known hip-hop artist, began publicly performing a song entitled "Proud" ("2Chainz's Composition"), which was released on his album "The Play Don't Care Who Makes It." Id. ¶ 21. 2Chainz's Composition was authored by 2Chainz and Offset, along with Defendants Josh Valle, Kennon Jackson, Kiari Cephus, Matthew Jehu Samuels and Matthew Carl Williams. Id. ¶ 22. The complaint alleges that: "Without limiting the access and knowledge of other Defendants, Slugga is informed and believes and thereon alleges that, at all relevant times, 2Chainz, Jackson, Valle and their agents were specifically aware of "Proud" [i.e., the Subject Composition]." Id. ¶ 20. The complaint further alleges, on information and belief, that "Defendants, and each of them, had access to the Subject Composition including, without limitation, through (a) listening to the recording via Slugga's public performances or recordings, (b) streaming the Subject Composition online, and (c) listening to the Subject Composition through a third party." Id. ¶ 38.

Plaintiff alleges that the Subject Composition and 2Chainz's Composition share the following similarities:

• The notes and rhythm of the principal hook are identical. The lyrics of the principal hook in the Subject Composition are "Proud, I'm just tryin’ to make my ma-ma proud." The lyrics of the principal hook in 2Chainz's Composition are "Yeah, I'm just try-na make my ma-ma proud." Id. ¶¶ 23-24.

• Both songs use call-and-response techniques and have a 2/4 time signature. Id. ¶ 24.

• The music videos for both songs use a media clip and a spoken word introduction. Id. ¶ 25.

• Both works open with a sustained note or chord played by an organ. Id. ¶ 26.

According to Plaintiff, these similarities "demonstrate that portions of [2Chainz's Composition] were copied wholesale from the Subject Composition." Id. ¶ 27.

Since 2018, 2Chainz's Composition has been performed, sold, played, and streamed on many platforms. Id. ¶ 28. In October 2019, Slugga sent UMG a cease and desist letter demanding that Defendants stop infringing the Subject Composition. Id. ¶ 29. Defendants did not respond to the letter. Id.¹

PROCEDURAL HISTORY

Plaintiff initiated this action by complaint filed July 28, 2020. Dkt. No. 1. Plaintiff filed an amended complaint on October 8, 2020. Dkt. No. 18. Defendants UMG Recordings, Gamebread, and 2Chainz filed this motion to dismiss on November 6, 2020. Dkt. No. 25. Defendant Kiari Cephus joined the motion to dismiss by notice dated December 7, 2020. Dkt. No. 32. Plaintiff filed a brief in opposition to the motion to dismiss on December 11, 2020, Dkt. No. 33, and Defendants replied on January 15, 2021. Dkt. No. 36.

LEGAL STANDARD

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must include "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937. Put another way, the plausibility requirement "calls for enough fact to raise a reasonable expectation that discovery will reveal evidence [supporting the claim]." Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ; accord Matrixx Initiatives, Inc. v. Siracusano , 563 U.S. 27, 46, 131 S.Ct. 1309, 179 L.Ed.2d 398 (2011).

DISCUSSION

"To establish [copyright] infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co. , 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). For the purposes of this motion, the Court assumes that Clanton owns a valid copyright in the Subject Composition, as pleaded in the complaint. Accordingly, ownership and validity are not at issue on this motion. In order to establish that a defendant copied constituent elements of an original work, a plaintiff must establish that: "(1) the defendant has actually copied the plaintiff's work; and (2) the copying is illegal because a substantial similarity exists between the defendant's work and the protectible elements of plaintiff's." Knitwaves, Inc. v. Lollytogs Ltd. (Inc.) , 71 F.3d 996, 1002 (2d Cir. 1995).

Defendants argue that the complaint must be dismissed for two reasons. First, Plaintiff has failed to plausibly allege that Defendants had access to his song. Dkt. No. 26 at 7. Second, Plaintiff fails to allege any actionable similarities between the songs. Id. The Court addresses the two arguments in turn.

I. Access

Actual copying can be shown through either (1) direct evidence of copying or (2) circumstantial evidence that the defendants had access to the plaintiff's work. See Jorgensen v. Epic/Sony Records , 351 F.3d 46, 51 (2d Cir. 2003). Such circumstantial evidence can be demonstrated through either (1) "a particular chain of events ... by which the defendant might have gained access to the work," Tomasini v. Walt Disney Co. , 84 F. Supp. 2d 516, 519 (S.D.N.Y. 2000) (internal citation omitted); or (2) facts showing "that plaintiff's work was ‘widely disseminated," such that access can be inferred, Webb v. Stallone , 910 F. Supp. 2d 681, 686 (S.D.N.Y. 2012) (citations omitted), aff'd on other grounds , 555 F. App'x 31 (2d Cir. 2014).

"A work is ‘widely disseminated’ when it has had ‘considerable commercial success’ or is ‘readily available on the market.’ " Stallone , 910 F. Supp. 2d at 686 (quoting Silberstein v. Fox Entm't Grp. , 424 F. Supp. 2d 616, 627 (S.D.N.Y. 2004) ). Access can be inferred where "a party had a reasonable possibility of viewing the prior work." Boisson v. Banian, Ltd. , 273 F.3d 262, 270 (2d Cir. 2001). " ‘A reasonable possibility’ is not simply a ‘bare possibility’; ‘access cannot be based on mere speculation or conjecture.’ " Muller v. Twentieth Century Fox Film Corp. , 794 F. Supp. 2d 429, 440 (S.D.N.Y. 2011) (quoting Jorgensen , 351 F.3d at 51 ).

Plaintiff argues that his work was widely disseminated enough that Defendants’ access to the Subject Composition can be inferred. Plaintiff has failed to support this allegation. Plaintiff alleges no facts supporting his argument that the Subject Composition was widely disseminated beyond the bare facts that it was on a mixtape that was posted to several hip-hop websites and that the Subject Composition was posted on YouTube, and the vague and conclusory claim that the Subject Composition "has been widely shared and listened to online and on social media." Dkt. No. 18 at 16.

As a matter of law, the fact that the Subject Composition was posted on the internet is insufficient on its own to show "wide dissemination." See O'Keefe v. Ogilvy & Mather Worldwide, Inc. , 590 F. Supp. 2d 500, 515 (S.D.N.Y. 2008) ("[T]he mere fact that [the plaintiff's] work was posted on the internet prior to the creation of defendants’ work is insufficient by itself to demonstrate wide dissemination."); Hayes v. Minaj , 2012 WL 12887393, at *3 (C.D. Cal. Dec. 18, 2012) (dismissing complaint because "[t]he fact that the video was placed on YouTube does not imply it was disseminated widely ..."). Were it otherwise, any work that any person uploaded publicly to the internet would have to be considered sufficiently "widely disseminated" to give rise to an inference that every person had heard...