Jones v. Atl. Records

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DENISE JONES Plaintiff, v. ATLANTIC RECORDS, WARNER MUSIC GROUP, 1501 CERTIFIED ENTERTAINMENT, 300 ENTERTAINMENT, MEGAN J. PETE, JORDEN THORPE, BELCALIS MARLENIS ALMANZAR, CRAIG KALEMAN, STEPHEN COOPER, CARL CRAWFORD, and KEVIN LILES, Defendants.

No. 22-CV-893 (ALC)

United States District Court, S.D. New York

August 29, 2023

OPINION AND ORDER ^[1]

ANDREW L. CARTER, JR., UNITED STATES DISTRICT JUDGE

Plaintiff Denise Jones, proceeding pro se, brings this action against Defendants Atlantic Recording Corporation (“Atlantic”), Warner Music Group Corp. (“Warner Music”), 1501 Certified Entertainment (“1501 Certified”), 300 Entertainment LLC (“300 Entertainment”)^[2], Megan J. Pete, Jorden Thorpe, Belcalis Marlenis Almanzar, Craig Kallman, Stephen Cooper, Carl Crawford and Kevin Liles for copyright infringement of lyrics from her original song, Grab Em by the P**** (“GEBTP”), by Defendants' songs, WAP and Thot Shit. Defendants move to dismiss Plaintiff's Complaint pursuant to Rule 8(a), 12(b)(5) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court finds that Plaintiff's Complaint fails to state a claim of copyright infringement as a matter of law. Defendants' motions to dismiss are GRANTED.

FACTUAL BACKGROUND

When determining whether to dismiss a case, the court accepts as true all well-pleaded factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. Faber v. Metro. Life Ins. Co., 648 F.3d 98 104 (2d Cir. 2011). The following facts alleged in the Complaint are thus assumed to be true for the purposes of this motion.

Plaintiff is an independent artist performing under the name “Necey X”. (Compl., ECF No. 2-1 ¶¶ 13 14, 16). Plaintiff alleges that at one time she partnered with Mathew Thorpe, a nonparty, on “an independent living company that provides housing and wrap-around service to adults.” (Id. ¶ 10.) Mathew Thorpe is allegedly Defendant Thorpe's father.^[3] (Id.) This partnership dissolved because Thorpe “couldn't hold up his end of the contract”, and the dispute was eventually resolved in Plaintiff's favor in court. (Id.) Plaintiff alleges that this dispute served as the motive for Defendants to retaliate against her by infringing on her copyrighted works. (Id.)

On December 8, 2019, Plaintiff created her song, GEBTP which she describes as follows:

It was created in a mild provocative manner to grasp the attention of the fans but the music had a message to the women in the word. G[E]BTP was created to encourage women to get inside the system and make a change. It's art so it was created in a way to appeal to everyone. The [persona] of the artist is wild, sexy, rebellious, and political. The song was inspired by the saying by Trump so the song was designed to talk about the wild side of politics. The creative work shines light to women like Monica Lewinsky, Maryln Monroe, and Kim kardashian. Women who were in politics and sexualized but played a major role in the changes rather good or bad.

(Id. ¶ 11.)

Defendant Pete is a rap artist who performs as “Megan Thee Stallion”. (Compl. ¶ 9.) Defendant Almanzar is also a rap artist who performs as “Cardi B”. (Id. ¶ 12.) Defendant Thorpe is a rapper and songwriter who also goes by “Pardison Fontaine”. (Id. ¶ 9.) Together, on August 25, 2020, Pete, Almanzar, and Thorpe collaborated on the hit song WAP (i.e., “Wet A** P****”). Thorpe and Pete also collaborated on the song Thot Shit. (Id. ¶ 12.)

Plaintiff does not allege that WAP and Thot Shit sound like GEBTP. Rather, she alleges that in creating the lyrics for WAP, “[t]hey cop[ied] and paste[d] [her] lyrics”, although she admits that they “sometimes [used] different slang terms([that] only the community/culture could interpret)that mean the same thing.” (Id. ¶ 12.) Plaintiff alleges that they knew “[she] had published the works on BMI and ASCAP so they took the parts they really liked and displayed it on a larger scale due to financial advantages.” (Id.) Specifically, Plaintiff alleges that Defendants took the lyrics “p**** so wet I got that n**** wild'n, p**** so wet got that n**** wild'n” from GEBTP to create “it's that WAP WAP it's some wet *ss p****”. (Id.) Plaintiff also alleges that the second portion of the lyric, “I got that n**** wild'n”, was copied to create “why you in the club with n****s wild'n[?]”in Thot Shit: (Id. ¶¶ 12, 15.) Plaintiff alleges that at least fourteen other lines were directly copied from three of her songs and used in Thot Shit (Compl. ¶ 15), although she does not specify the names of those songs or the specific lyrics in the Complaint.

Plaintiff also alleges that Defendants mocked, stalked, and harassed her in various ways. For instance, Plaintiff alleges that she derived her nickname “Necey X” from the character Nisi, played by Halle Berry in the film BAPS. (Id. ¶ 13.) WAP was “inspired by BAPS, which Plaintiff believes was done on purpose by the “record label and their employees [] to word play on Necey X name to let [Plaintiff] know that they are bullying her and taking her style.” (Id.) She explains that in the music video for WAP, Defendants used her “trademark hairstyle and expression to copy, annoy, and mock” her. (Id. ¶ 13.) Additionally, Plaintiff maintains that she was stalked via her social media, which Defendants used to further mine her content for their own works. (Id. ¶¶ 14, 23.) She also makes allegations about other individuals' conduct towards her, who are not named as Defendants, such as Crystal Woodfoord, her former stylist who “posed as [her] best friend” and “scam[med]” her and Digital X records who allegedly produced a video detailing how Plaintiff and other artists had been “sacrificed so they can steal their content.” (Id. ¶ 21.)

PROCEDURAL HISTORY

Plaintiff initiated this action on February 2, 2022. (Compl., ECF No. 2-1.) The summonses and complaint were served on Defendants 300 Entertainment, Kallman, Cooper, Liles, Atlantic, Warner Music on May 5, 2022. (ECF Nos. 17-22.) Defendants 1501 Entertainment and Crawford (collectively, the “Crawford Defendants”) were purportedly served June 30, 2022. (ECF No. 40.)

On February 22, 2022, Plaintiff filed a motion asking the Court to “[i]ssue a subpoena to all defendants to authorize and order the service providers to expeditiously disclose to the copyright owner or court's information sufficient to identify the alleged infringers to the extent such information is available to the service providers. The identity of Megan J Pete, Pardison Fontaine (Jorden Thorpe), and Becalis Marlenis Almanzar.” (ECF No. 13.) The Court denied this motion without prejudice to renewal. (ECF No. 16.) Defendants Pete, Thorpe and Almanzar have not yet been served with the summons and complaint because Plaintiff did not provide an address for service. Jones v. Atl. Recs., No. 22-CV-0893 (ALC), 2022 WL 769214, at *1 (S.D.N.Y. Feb. 18, 2022).

Defendants Atlantic, Warner Music, 300 Entertainment, Kallman, Cooper and Liles (collectively, the “Atlantic Defendants”) filed a motion to dismiss the Complaint on November 1, 2022, arguing that it fails to state a claim of copyright infringement and that Liles, Kallman, Cooper and 300 Entertainment were not properly served. (ECF No. 124.) The Crawford Defendants also filed a motion to dismiss, joining in the same arguments made by the Atlantic Defendants. (ECF No. 130.) Plaintiff filed a memorandum in opposition to the motions on November 23, 2022, which also attaches additional information and exhibits for the Court's consideration. (ECF No. 135.)^[4] Defendants filed further memorandum in support of their motions on December 13, 2022. (ECF Nos. 136, 137.)

LEGAL STANDARD

On a Rule 12(b)(6) motion, the court must “assume all ‘well-pleaded factual allegations' to be true, and ‘determine whether they plausibly give rise to an entitlement to relief.'” Selevan v. New York Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Allegations that are “no more than conclusions[ ] are not entitled to the assumption of truth,” and “‘naked assertion[s]' devoid of ‘further factual enhancement'” or “the defendant-unlawfully-harmed-me accusation[s]” are not sufficient to show that a plaintiff is entitled to relief. Iqbal, 556 U.S. at 678-79 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 555, 557 (2007)). Nor must a court accept as true “legal conclusions” or “a legal conclusion couched as a factual allegation.” Id.

Additionally, “[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal citations and quotation marks omitted). In particular, “the pleadings of a pro se plaintiff must be read liberally and should be interpreted to raise the strongest arguments that they suggest.” Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)) (internal quotation marks omitted).

DISCUSSION

I. Copyright Infringement

Defendants argue that Plaintiff has not adequately alleged a claim of copyright infringement because: (1) she does not allege that Defendants had access to GEBTP; (2) Plaintiff does not allege that there is “substantial similarity” between her lyrics and Defendants' lyrics; (3) Plaintiff's lyrics constitute short, unoriginal phrases over which Plaintiff cannot assert copyright infringement and (4) Plaintiff does not allege specific facts against the individual defendants. (ECF No. 125 at 8-16.) As outlined below, the Court finds that the Complaint does not state a claim of copyright infringement of Plaint...