Saint-Amour v. Richmond Org., Inc.

388 F.Supp.3d 277

James SAINT-AMOUR and Alena Ivleva a/k/a Jerrra Blues, d/b/a Satorii, on behalf of themselves and all others similarly situated, Plaintiffs,

v.The RICHMOND ORGANIZATION, INC. and Ludlow Music, Inc., Defendants.

16 Civ. 4464 (DAB)

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

Signed March 27, 2019

Mark C. Rifkin, Gloria Kui Melwani, Randall Scott Newman, Wolf Haldenstein Adler Freeman & Herz LLP, New York, NY, for Plaintiffs.

Paul V. LiCalsi, Ofer Reger, Robins, Kaplan LLP, New York, NY, for Defendants.

MEMORANDUM & ORDER

DEBORAH A. BATTS, United States District Judge.

Plaintiffs James Saint-Amour ("Saint-Amour") and Alena Ivleva a/k/a Jerrra Blues, doing business as Satorii, bring this class action on behalf of themselves and all others similarly situated (collectively, "Plaintiffs") against Defendants The Richmond Organization, Inc. ("TRO") and Ludlow Music, Inc. ("Ludlow") (collectively, "Defendants"). Plaintiffs challenge Defendants' protectable copyright interest in the American folk song "This Land is Your Land" (the "Song" or "This Land").¹ Plaintiffs seek a declaratory judgment that Defendants' copyright of the Song is invalid and that the Song is in the public domain. They also seek injunctive relief and damages pursuant to various claims under federal copyright law and New York state law.

Before the Court is Defendants' Motion to Dismiss Plaintiff's Class Action Complaint for lack of subject matter jurisdiction and for failure to state a claim. (ECF No. 17.) For the following reasoning, Defendants' Motion to Dismiss is GRANTED in part and DENIED in part.

I. BACKGROUND

a. Factual Background

The following facts are drawn from the Complaint (ECF No. 6) and are assumed true for purposes of the instant Motion. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999).

i. Origins of the Song

According to Plaintiffs, the melody of This Land is substantially identical to that of a Baptist gospel hymn from the late 19th or early 20th century, which has been known by various names, including "Fire Song." (Id. ¶¶ 10; 19.) In 1940, the American folk singer Woody Guthrie ("Guthrie") heard "Fire Song," or some variation of it, and copied the melody for use with his own original lyrics. (Id. ¶¶ 19-22.) The lyrics Guthrie wrote in 1940 were as follows:

This land is your land, this land is my land From California to the New York Island, From the Redwood Forest, to the Gulf stream waters, This land was made for you and me.

As I went walking that ribbon of highway And saw above me that endless skyway, And saw below me the golden valley, I said: This land was made for you and me.

I roamed and rambled and followed my footsteps To the sparkling sands of her diamond deserts, And all around me, a voice was sounding: This land was made for you and me.

Was a high wall there that tried to stop me A sign was painted said: Private Property, But on the back side it didn't say nothing – This land was made for you and me.

When the sun come shining, then I was strolling In wheat fields waving and dust clouds rolling; The voice was chanting as the fog was lifting: This land was made for you and me.

One bright sunny morning in the shadow of the steeple By the Relief Office I saw my people – As they stood hungry, I stood there wondering if This land was made for you and me.

("1940 Lyrics")(Id. ¶ 22.) However, Guthrie did not publish the Song until 1945.²

ii. Disputed Copyright Claims

In April, 1944, Guthrie recorded This Land for Moses Asch, the owner of Folkways Records. (Id. ¶ 23.) In 1945, Guthrie wrote and published a songbook entitled "Ten 10 of Woody Guthrie's Songs Book One," ("10 Songs") (Id. ¶ 24.) Guthrie offered 10 Songs for sale to the general public. (Id. ¶ 25.) The songbook contained printed instructions about how to order additional copies of the book: "For more copies of this song book: Woody Guthrie, 3520 Mermaid Avenue, Brooklyn, 24, New York." (Id. )

Although 10 Songs was never registered with the United States Copyright Office ("Copyright Office"), the front cover of 10 Songs contained the following copyright notice: "Copyright 1945 W. Guthrie." (Id. ¶ 26.) The melody and lyrics for This Land, together with the notation "Words and music by W. Woody Guthrie," were printed on page 8 of 10 Songs as follows:

THIS LAND IS YOUR LAND, THIS LAND IS MY LAND FROM THE REDWOOD FOREST TO THE NEW YORK ISLAND THE CANADIAN MOUNTAIN, TO THE GULF STREAM WATERS THIS LAND IS MADE FOR YOU AND ME.

AS I GO WALKING THIS RIBBON OF HIGHWAY I SEE ABOVE ME THIS ENDLESS SKYWAY AND ALL AROUND ME THE WIND KEEPS SAYING: THIS LAND IS MADE FOR YOU AND ME.

I ROAM AND I RAMBLE AND I FOLLOW MY FOOTSTEPS TILL I COME TO THE SANDS OF HER MINERAL DESERT THE MIST IS LIFTING AND THE VOICE IS SAYING: THIS LAND IS MADE FOR YOU AND ME.

WHERE THE WIND IS BLOWING I GO A STROLLING THE WHEAT FIELD WAVING AND THE DUST A ROLLING THE FOG IS LIFTING AND THE WIND IS SAYING: THIS LAND IS MADE FOR YOU AND ME.

NOBODY LIVING CAN EVER STOP ME AS I GO WALKING MY FREEDOM HIGHWAY NOBODY LIVING CAN MAKE ME TURN BACK THIS LAND IS MADE FOR YOU AND ME.

("1945 Lyrics")(Id. ¶ 27.)

In 1951, with permission from Guthrie, Folkways Records released a phonograph entitled "This Land is My Land: A Collection of American Folk Songs," which included a recording of Guthrie performing This Land. (Id. ¶ 30.) The lyrics were printed on the liner notes without any copyright notice as follows:

This land is your land, this land is my land. From California to the New York island, From the redwood forest to the Gulf Stream waters, This land was made for you and me.

As I went walking that ribbon of highway, I saw above me that endless skyway, I saw below me that golden valley, This land was made for you and me.

I roamed and rambled, and I followed my footsteps, To the sparkling sands of her diamond deserts, And all around me a voice was sounding, This land was made for you and me.

When the sun come shining, then I was strolling, And the wheat fields waving, and the dust clouds rolling, A voice was chanting as the fog was lifting, This land was made for you and me.

This land is your land, this land is my land. From California to the New York island, From the redwood forest to the Gulf Stream waters, This land was made for you and me.

When the sun come shining, and I was strolling, The wheat fields waving, the dust clouds rolling, A voice was chanting and the fog was lifting, This land was made for you and me.

("1951, 1956, & 1961 Lyrics") (Id. ¶ 31.)

On March 30, 1956, Defendant Ludlow filed an Application for Registration of a Claim to Copyright (Reg. No. EU432559) (the "1956 Application") for an unpublished work with the Copyright Office. (Id. ¶ 33.)³ Ludlow is a wholly-owned subsidiary of Defendant TRO. (Id. ¶ 5.)

That same year – 1956 – Folkways Records, with permission from Ludlow or Guthrie, released a phonograph entitled "Bound for Glory: The Songs and Story of Woody Guthrie," which included a recording of This Land. (Id. ¶ 41.) The lyrics to the Song were printed on the liner notes without any copyright notice as follows:

This land is your land, this land is my land, From California to the New York Island, From the redwood forest to the Gulf Stream waters, This land was made for you and me.

As I went walking that ribbon of highway, I saw above me that endless skyway, I saw below me that golden valley This land was made for you and me.

I roamed and I rambled, and I followed my footsteps, To the sparkling sands of her diamond deserts, All around me a voice was sounding, This land was made for you and me.

When the sun come shining, then I was strolling, And the wheat fields waving, and the dust clouds rolling, A voice was chanting as the fog was lifting, This land was made for you and me.

This land is your land, this land is my land, From California to the New York Island, From Redwood Forest to the Gulf Stream Waters, This land was made for you and me.

When the sun come shining, and I was strolling, The wheat fields waving, the dust clouds rolling, A voice was chanting and fog was lifting, This land was made for you and me.

("1951, 1956, & 1961 Lyrics") (Id. ¶ 42.)

On December 15, 1958, Ludlow filed an Application for Registration of a Claim to Copyright (Reg. No. EP126345) (the "1958 Application") for a derivative work with the Copyright Office. (Id. ¶ 37.) The 1958 Application claimed a copyright in "new matter" consisting only of a new piano accompaniment. (Id. ¶ 38.)⁴

In 1961, with permission from Ludlow or Guthrie, Folkways Records re-released the 1951 phonograph record under the title "This Land is My Land, Songs to Grow On, Vol. 3: American Work Songs," which included the same recording of This Land as the 1951 phonograph record. (Id. ¶ 44.) The lyrics were printed in the liner notes without any copyright notice as follows:

This land is your land, this land is my land. From California to the New York island, From the redwood forest to the Gulf Stream waters, This land was made for you and me.

As I went walking that ribbon of highway, I saw above me that endless skyway, I saw below me that golden valley, This land was made for you and me.

I roamed and rambled, and I followed my footsteps, To the sparkling sands of her diamond deserts, And all around me a voice was sounding, This land was made for you and me.

When the sun come shining, then I was strolling, And the wheat fields waving, and the dust clouds rolling, A voice was chanting as the fog was lifting, This land was made for you and me.

This land is your land, this land is my land. From California to the New York island, From the redwood forest to the Gulf Stream waters, This land was made for you and me.

When the sun come shining, and I was strolling, The wheat fields waving, the dust clouds rolling, A voice was chanting and the fog was lifting, This land was made for you and me.

("1951, 1956, & 1961 Lyrics") (Id. ¶ 44.)

July 21, 1970, Defendant Ludlow filed an Application for Registration of a Claim to Copyright (Reg. No. EP276540) (the "1970 Application") for a...