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In BMS Entertainment/Heat Music LLC v. Bridges, No. 04 Civ. 2584 (PKC), 2005 WL 1593013 (S.D.N.Y. July 7, 2005) defendants Ludacris and Kanye West contended "that key portions of plaintiffs' composition are unoriginal" because the composition "uses what is known as a call-and-response format."
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04 Civ. 2584 (PKC).
July 6, 2005
MEMORANDUM AND ORDER
This action was filed on April 5, 2004. Plaintiffs Ramid Brown, Theodore Green, Ronique Thomas, and Aldeen Wilson are members of a Newark-based rap group that records and performs under the name It's Only Family. These individual plaintiffs, along with plaintiff BMS Entertainment/Heat Music LLC, are the copyright owners of the musical composition "Straight Like That." Defendants include recording and distribution entities, as well as the artist Christopher Bridges, who records and performs under the name Ludacris. Plaintiffs allege that their copyright in "Straight Like That" was infringed by the defendants' composition "Stand Up." (Amended Complaint ¶¶ 2, 25)
With discovery now closed, the defendants move for summary judgment dismissing the plaintiffs' claims. Defendants argue that key sections of the plaintiffs' song "Straight Like That" are unoriginal as a matter of law, and therefore not copyrightable. Defendants further contend that once these unprotected elements are removed from consideration, there is no substantial similarity between the plaintiffs' song "Straight Like That" and the defendants' song "Stand Up." For the reasons explained below, the defendants' summary judgment motion is denied.
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he or she is entitled to relief. A fact is material if it "might affect the outcome of the suit under the governing law . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence on each material element must be sufficient to entitle the movant to relief in its favor as a matter of law. Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248. The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quotations and citations omitted);accord Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In reviewing a motion for summary judgment, the court must scrutinize the record, and grant or deny summary judgment as the record warrants. See Fed.R.Civ.P. 56(c). In the absence of any disputed material fact, summary judgment is appropriate. Id.
The elements necessary to establish copyright infringement are well established. "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.'" Williams v. Crichton, 84 F.3d 581, 587 (2d Cir. 1996) (quoting Feist Publications, Inc. v. Rural Telephone Services Co., 499 U.S. 340, 361 (1991)). "In the absence of direct evidence, copying is proven by showing `(a) that the defendant had access to the copyrighted work, and (b) substantial similarity of protectible material in the two works.'" Id. (quoting Kregos v. Associated Press, 3 F.3d 656, 662 (2d Cir. 1993), cert. denied, 510 U.S. 1112 (1994)).
For the purposes of this motion, the defendants do not dispute that plaintiffs have a registered copyright for "Straight Like That," and that defendants had access to the plaintiffs' composition. Rather, their motion is based exclusively on a contention that the arguably similar portions of the plaintiffs' composition are unoriginal, and therefore ineligible to receive protection under copyright law. Plaintiffs contend that, once the portions of "Straight Like That" that lack originality are removed from consideration, there is no substantial similarity between the plaintiffs' composition and the defendants' work "Stand Up." See Williams, 84 F.3d at 589-90 (examining the "total concept and feel" of plaintiffs' children's books before concluding that the setting and individual characters were unoriginal and not protected by copyright law); Walker v. Time Life Films, Inc., 784 F.2d 44, 50 (2d Cir.) (thematic elements in a non-fiction police memoir, including foot chases, officer morale problems, and certain criminal conduct, were "stock" themes and not protectable under copyright law), cert. denied, 476 U.S. 1159 (1986).
Though not material to the disposition of this summary judgment motion, plaintiffs assert that on three separate occasions, Mr. Bridges "was personally handed" a CD that contained It's Only Family's song "Straight Like That." (Amended Complaint ¶ 15).
"Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author." Feist Publications, 499 U.S. at 348. Copyright law protects a particularized expression of an idea, although the underlying idea itself is not protectable. Mattel, Inc. v. Azrak-Hamway Int'l, Inc., 724 F.2d 357, 360 (2d Cir. 1983) (concept of "a superhuman muscleman crouching in what since Neanderthal times has been a traditional fighting pose" is unprotectable, but the particularized rendering of such a person's musculature as rendered in a toy action figure is protectable). The level of creativity required for an original work of art has been described as "extremely low," and only "a slight amount," which was derived from "some creative spark, no matter how crude, humble, or obvious it might be." Mattel, Inc. v. Goldberger Doll Mfg. Co., 365 F.3d 133, 135 (2d Cir. 2004) (quoting Feist, 499 U.S. at 340). "[T]he quantity of originality that need be shown is modest — only a dash of it will do." Rogers v. Koons, 960 F.2d 301, 307 (2d Cir.), cert. denied, 506 U.S. 934 (1992).
Defendants contend that key portions of plaintiffs' composition are unoriginal. "Straight Like That" uses what is known as a call-and-response format. Dr. Tricia Rose, a professor at the University of California-Santa Cruz who studies African-American culture and hip hop music, was retained by the defendants as an expert. Dr. Rose describes the call-and-response format as "a foundational element in virtually all West African derived musics. . . . In a call-and-response phrase, the two parts: the call and the response, must be understood in tandem, together making one phrase or hook." (Rose Report at 5, attached at Lepera Dec. Ex. N) In "Straight Like That," lyrics such as, "You get it on and poppin," constitute the "call," to which the response is "straight like that." (Rose Report at 4) In the defendants' song, "Stand Up," the lyrics, "When I move you move" serve as the "call," to which the response is "just like that." (Rose Report at 4) According to the plaintiffs' expert, Dr. Judith Finell, both "Straight Like That" and "Stand Up" utilize a three-note rhythmic pattern comprised of an eighth note, quarter note, and eighth note accompanying the respective lyrics "straight like that" and "just like that." (Finell Report ¶ 22, attached at Lepera Dec. Ex. J)
Defendants argue these three discrete aspects of the plaintiffs' composition — the words "like that" proceeded by a one-syllable word, the composition's call-and-response format, and the underlying rhythmic pattern of an eighth note, followed by a quarter note, followed by an eighth note — are unoriginal as a matter of law, and therefore should not receive copyright protection. Additionally, plaintiffs contend that if these elements are removed, there are, as a matter of law, no remaining substantial similarities between "Straight Like That" and "Stand Up," thus precluding a reasonable jury from finding copyright infringement.
Although the Second Circuit has made clear that some stock themes may be so universal that they cannot be considered original for copyright purposes, it also has made clear that unoriginal elements, when combined, may constitute an original, copyrightable work. In Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1004 (2d Cir. 1995), the Court concluded that a sweater's commonplace visual elements — such as leaves and squirrels, a "`fall' palette" of colors, and a design that combined these images and colors — were sufficiently original in combination to warrant copyright protection. The Second Circuit rejected the defendants' contention "that, in comparing designs for copyright infringement, we are required to dissect them into their separate components, and compare only those elements which are in themselves copyrightable." Id. at 1003. It took note of the district judge's observation that, "if we took this argument to its logical conclusion, we might have to decide that `there can be no originality in a painting because all colors of paint have been used somewhere in the past." Id. Instead, Knitwaves emphasized that a court should evaluate a work's "total concept and feel." Id.
At oral argument, I offered the following hypothetical situation to defendants' counsel: Suppose an author combines the unoriginal lyrics of "Mary Had a Little Lamb" with the unoriginal melody of "Old McDonald" and an unoriginal reggae beat. Would such a composition meet the originality requirement? It was counsel's view that such a work could be protectable, provided that the combination of unoriginal elements was original to the author. The response is consistent with my reading ofKnitwaves.
Similarly, in Santrayll v. Burrell, 1996 WL 134803, at *2 (S.D.N.Y. Mar. 25, 1996), Judge Leisure denied the defendants' motion for summary judgment, and concluded that "the repetition of the non-protectible word `uh-oh' in a distinctive rhythm comprises a sufficiently original composition to render it protectible by the copyright laws." Santrayll observed in dictum that it was possible for two otherwise unprotectable elements to create "a sufficiently original, and indeed, commercially marketable composition." Id. By contrast, in Jean v. Bug Music, Inc., 2002 WL 287786, at *6 (S.D.N.Y. Feb. 27, 2002), the district court concluded that summary judgment was appropriate where the lyrics "clap your hands" accompanied by a common three-note sequence were "so common and unoriginal that even when they are combined they are not protectible," and that remaining portions of the song were not substantially similar.Santrayll and Jean underscore the highly fact-specific nature of the inquiry.
At oral argument, the defendants attempted to distinguish the facts of this case from Knitwaves and Santrayll by asserting that the unoriginal elements of "Straight Like That" had been combined in a composition also titled "Straight Like That," recorded by another rap group, Capone-N-Noreaga. That earlier composition utilizes the lyrics "straight like that" in a call-and-response format, accompanied by a rhythm that defendants contend is substantially the same as that in plaintiffs' composition. According to the defendants, the Capone-N-Noreaga composition renders the plaintiffs' composition unoriginal, and therefore unprotectable.
The concept of originality in copyright law is fundamentally different from concepts of anticipation and novelty in patent law. See Alfred Bell Co. v. Catalda Fine Arts, 191 F.2d 99, 103 (2d Cir. 1951) (distinguishing copyright from the doctrine of anticipation in patent law). Originality looks to whether a work was independently created by the author. "Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable."Feist, 499 U.S. at 345-46; see also Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 110 (2d Cir. 2001) ("Under the Copyright Act, one may market a product identical to a copyrighted work so long as the second comer designed his product independently.").
Upon my review of the record on this summary judgment motion and as conceded at oral argument, defendants do not have direct evidence that plaintiffs were aware of the Capone-N-Noreaga song at the time they composed "Straight Like That." Similarly, the defendants' Rule 56.1 Statement does not include any averments that the plaintiffs were aware of the Capone-N-Noreaga song.4 As taught by Feist and its predecessors, an already-existing combination may be original to the author if independently created. Despite the defendants' efforts to portray the plaintiffs' composition "Straight Like That" as unoriginal, the facts submitted on this motion do not foreclose the possibility that this case falls within the Second Circuit's classic example of "a man who had never known it" composing anew Keats's "Ode on a Grecian Urn." Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir.), cert. denied, 298 U.S. 669 (1936).
Plaintiffs' copyrighted composition "Straight Like That" and defendants' later composition "Stand Up" each combines a call-and-response format, the lyrics "like that" preceded by a one-syllable word, and a rhythm pattern consisting of an eighth note, quarter note, eighth note. These elements in combination are repeated multiple times in each composition and arguably constitute the hooks in each song. On the record before me, I cannot rule, as a matter of law, that these elements in combination lack originality and therefore cannot be protected by copyright. Similarly, I cannot conclude that, as a matter of law, the Capone-N-Noreaga composition renders the plaintiffs' composition unoriginal. Finally, I cannot conclude that, as a matter of law, the above-referenced portions of the parties' compositions are not substantially similar.
Accordingly, the defendants' motion for summary judgment is DENIED.
SO ORDERED.