Lorenzo Pryor et al v. Wyclef Jean et al

Filing 48

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS THIRD AMENDED COMPLAINT by Judge Dean D. Pregerson. For the reasons stated above, Defendants' Motion to Dismiss is GRANTED. The First and Second claims for relief are DISMISSED, with prejudice. IT IS SO ORDERED. (See attached document for details.) (lom)

1
2

O

3
4

NO JS-6

5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

LORENZO PRYOR, TRENA
STEWARD; KARLA RAY,

12
Plaintiffs,
13
v.
14
15
16
17
18

WYCLE JEAN; SONY MUSIC
ENTERTAINMENT, INC.; SONY
CORPORATION OF AMERICA,
INC.; SONY MUSIC
ENTERTAINMENT (JAPAN), INC.,
et al.,
Defendants.
___________________________

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. CV 13-02867 DDP (AJWx)

ORDER GRANTING DEFENDANTS’ MOTION
TO DISMISS THIRD AMENDED
COMPLAINT

[Dkt. No. 36]

19
20

Presently before the court is Defendants’ Motion to Dismiss

21

Third Amended Complaint (“TAC”).

22

the submissions of the parties and heard oral argument, the court

23

GRANTS the Motion and adopts the following order.

24

I.

25

(Dkt. No. 36).

Having considered

Background
As described in this court’s earlier order, in 1974, David

26

Pryor (“Pryor”) wrote a musical composition to a song called

27

“Bumpin’ Bus Stop.”

28

and, along with his band, “The Play Boys,” recorded “Bumpin’ Bus

(TAC ¶ 9.)

That same year, Pryor produced

1

Stop” at Gold Future Recording Studio.

2

copies of the recording (hereinafter, “the Gold Future record”) and

3

sent them to radio stations and distributors.

4

Pryor did not register a copyright in the Gold Future record.

5

(TAC ¶ 10.)

Pryor made

(Id. ¶¶ 10-11)

In 1975, Pryor desired to promote and distribute the Gold

6

Future record on a wider scale.

7

(“Private Stock”) expressed an interest in “Bumpin’ Bus Stop.”

8

(Id.)

9

Future record, shortened the length of the Gold Future Record,

(TAC ¶ 12.)

Private Stock Records

With Pryor’s consent, Private Stock re-mastered the Gold

10

changed the name of Pryor’s band to “Thunder and Lightning,” and

11

placed its own label on a re-mastered recording of “Bumpin’ Bus

12

Stop.”1

13

the Private Stock record and the musical composition embodied

14

therein.

(Id.)

Private Stock obtained copyright registrations for

(Id. ¶ 15.)

15

In early 2004, Pryor was admitted to a skilled nursing

16

facility with numerous ailments, including senile dementia, and a

17

conservator was appointed.

18

(Id.)

(TAC ¶ 19.)

Pryor died in May 2006.

Plaintiffs here are Pryor’s heirs (Id. ¶¶ 4-6, 9, 21.)

19

In July 2006, Private Stock’s successor in interest, Douglas

20

Uttal (“Uttal”) granted Defendant Zomba Recording LLC (“Zomba”) a

21

limited license to sample a portion of the Private Stock record for

22

use in a single and/or film soundtrack entitled “Step Up.”

23

27.)

24

ownership rights in “Bumpin’ Bus Stop.”

25

Defendants Zomba, Sony Music Entertainment Inc., and Jean

(TAC ¶

Uttal explicitly refused to warrant that he actually had any
(Id.)

In August 2006,

26
27
28

1

Despite these changes, the TAC alleges that the Private
Stock version (the “Private Stock record”) is a literal copy of the
Gold Future record. (TAC ¶ 13.)
2

1

“produced, copied, distributed, and/or released” a musical

2

recording and music video for “Step Up,” which sampled “Bumpin’ Bus

3

Stop.”

4

the same name, which Defendants Disney, Buena Vista, and Summit

5

Entertainment “created, produced, copied, distributed, and/or

6

released” around the same time.

7
8
9

(TAC ¶ 34.)

The “Step Up” song was featured in a film of

(Id.)

In October 2012, Private Stock assigned all of its rights in
“Bumpin’ Bus Stop” to Plaintiffs.

(TAC ¶ 25.)

In April 2013, Plaintiffs filed this infringement action

10

against fourteen different defendants.

11

allegations related to “Step Up,” the SAC alleges that several

12

other combinations of Defendants infringed upon Plaintiffs’

13

copyright in “Bumpin’ Bus Stop” in a variety of ways, such as

14

sampling it in other songs unrelated to “Step Up” and using songs

15

containing unauthorized samples in other movies and television

16

shows unrelated to “Step Up.”

17

In addition to the

On October 25, 2013, this court granted Defendants’ Motion to

18

Dismiss the Second Amended Complaint, with leave to amend, because,

19

though Plaintiffs alleged infringement of the Gold Future Record,

20

neither Plaintiffs nor Pryor ever registered a copyright in the

21

Gold Future record.

22

Plaintiffs filed the TAC on November 12, 2013.

The TAC alleges that Plaintiffs filed proper copyright

23

registration forms for the Gold Future record and underlying

24

musical composition in April 2012.

25

acknowledge that this allegation is not true.

26

Motion at 3.)

27

application until December 23, 2013, after the filing of the

28

instant Motion.

(TAC ¶ 24.)

Plaintiffs now

(Opposition to

Plaintiffs did not submit a proper copyright

(Reply at 3; Plaintiffs’ Request for Judicial
3

1

Notice, Ex. 1.)

2

record has now issued, effective as of that date.

3

RJN, Ex. 1.)

4

in both the Gold Future Record and the underlying musical

5

composition, the substantive allegations at issue here refer only

6

to a copyright in the Gold Future record, and not the “Bumpin’ Bus

7

Stop” musical composition.

8

registration provided to the court pertains to a sound recording.

9

(Plaintiffs’ RJN, Ex. 1).

10

A certificate of registration for the Gold Future
(Plaintiffs’

Though Plaintiffs’ TAC and Reply refer to copyrights

Similarly, the only certificate of

Defendants now move to dismiss the TAC’s First and Second

11

claims for relief, which pertain solely to the Gold Future record

12

copyright.

13

II.

14

Legal Standard
A complaint will survive a motion to dismiss when it contains

15

“sufficient factual matter, accepted as true, to state a claim to

16

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

17

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

18

570 (2007)).

19

“accept as true all allegations of material fact and must construe

20

those facts in the light most favorable to the plaintiff.” Resnick

21

v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

22

need not include “detailed factual allegations,” it must offer

23

“more than an unadorned, the-defendant-unlawfully-harmed-me

24

accusation.”

25

allegations that are no more than a statement of a legal conclusion

26

“are not entitled to the assumption of truth.” Id. at 679.

27

other words, a pleading that merely offers “labels and

28

conclusions,” a “formulaic recitation of the elements,” or “naked

When considering a Rule 12(b)(6) motion, a court must

Iqbal, 556 U.S. at 678.

4

Although a complaint

Conclusory allegations or

In

1

assertions” will not be sufficient to state a claim upon which

2

relief can be granted.

3

quotation marks omitted).

4

Id. at 678 (citations and internal

“When there are well-pleaded factual allegations, a court should

5

assume their veracity and then determine whether they plausibly

6

give rise to an entitlement of relief.” Id. at 679.

7

must allege “plausible grounds to infer” that their claims rise

8

“above the speculative level.”

9

“Determining whether a complaint states a plausible claim for

Plaintiffs

Twombly, 550 U.S. at 555.

10

relief” is a “context-specific task that requires the reviewing

11

court to draw on its judicial experience and common sense.”

12

556 U.S. at 679.

13

III. Discussion

Iqbal,

14

A.

15

At the outset, the court notes that as early as October 2012,

Registration of the Gold Future Copyright

16

well before the filing of this action, let alone the TAC, the

17

Copyright Office informed Plaintiff Steward that her copyright

18

application was deficient.

19

Plaintiffs’ counsel was apprised no later than September 17, 2013

20

that Plaintiffs’ application remained deficient.

21

Plaintiffs and their counsel therefore knew at the time the TAC was

22

filed that the TAC’s allegations regarding Plaintiffs’ copyright

23

application were false.

24

reiterated those allegations during the court-mandated conference

25

of counsel pursuant to Local Rule 7-3 in connection with this

26

Motion, those representations, too, were false.

27

did not cure the deficiencies in their application until after that

28

conference of counsel, and after Defendants highlighted some of the

(Defendants’ Supplemental RJN, Ex. 6.)

(Id., Ex. 7.)

To the extent Plaintiffs’ counsel

5

Indeed, Plaintiffs

1

application’s likely shortcomings in the instant Motion.

(Id.)

2

While the pleading deficiencies resulting from this questionable

3

conduct could themselves justify dismissal of the TAC, 17 U.S.C. §

4

411(a), the court concludes that, Plaintiffs having since perfected

5

their registration, efficiency is best served by proceeding to the

6

merits without requiring Plaintiffs to first re-allege registration

7

in accordance with 17 U.S.C. § 411(a).

8

B.

Infringement of the Gold Future record

9

As an initial matter, Plaintiffs’ TAC and Opposition to the

10

instant Motion somewhat confusingly conflate the Private Stock

11

record and the Gold Future record.

12

internally inconsistent.

13

Stock record “literally copies” the Gold Future record, the TAC

14

also acknowledges that the separately copyrighted Private Stock

15

record is a “re-master” of the Gold Future record, with a truncated

16

playing length and other “minor technical adjustments.”

17

12-13.)

18

Future record and the Private Stock remaster) is important, as the

19

substantive allegations at issue here refer only to copyright to

20

the Gold Future record, and not to the “Bumpin’ Bus Stop” musical

21

composition featured in both the Gold Future record and the Private

22

Stock record.

23

Furthermore, the TAC is

While Plaintiffs allege that the Private

(TAC ¶¶

The existence of two separate sound recordings (the Gold

A “sound recording copyright does not attach to the underlying

24

[musical] work per se, but only to the aural version of such work

25

as fixed on [a] material object.”

26

2.10[A][2].

27

scope of exclusive rights as for other types of copyrighted works.”

1-2 Nimmer on Copyright §

“Copyright in a sound recording does not give the same

28
6

1

Griffin v. J-Records, 398 F. Supp. 2d 1137, 1142 (E.D. Wash 2005);

2

17 U.S.C. § 114(a).

3
4
5
6
7
8
9
10

As 17 U.S.C. § 114(b) states:

The exclusive right of the owner of copyright in a sound
recording under clause (1) of section 106 is limited to the
right to duplicate the sound recording in the form of
phonorecords or copies that directly or indirectly
recapture the actual sounds fixed in the recording. The
exclusive right of the owner of copyright in a sound
recording under clause (2) of section 106 is limited to the
right to prepare a derivative work in which the actual
sounds fixed in the sound recording are rearranged,
remixed, or otherwise altered in sequence or quality. The
exclusive rights of the owner of copyright in a sound
recording under clauses (1) and (2) of section 106 do not
extend to the making or duplication of another sound
recording that consists entirely of an independent fixation
of other sounds, even though such sounds imitate or
simulate those in the copyrighted sound recording.

11
12

17 U.S.C. § 114(b) (emphases added).

13

owner of a sound recording copyright is largely limited to

14

proceeding against the tape or record ‘pirate’ who without

15

permission makes a reproduction of the actual sounds in a protected

16

recording.”

17

“Thus, the remedy of the

Griffin, 398 F. Supp. 2d at 1142.

Defendants concede that the separately-copyrighted Private

18

Stock record is a derivative work.

19

not appear to contest the validity of the Private Stock record

20

copyright registration.

21
22
23

(Reply at 4.)

Plaintiffs do

As a leading treatise explains:

In some cases, the editing of a previously recorded work
may in itself involve such originality as to command
copyright, as where it involves such acts as equalizing,
changing the highs and lows, providing more bass and
treble, adding echo, or abridging by making discretionary
and not obvious internal cuts. . . .

24
25
26
27

[I]t is difficult to envisage a situation that will not
involve at least the recorder’s minimal originality in
selecting the particular sound to be recorded, at a
particular point in time, with a particular sound volume,
and physical distance and angle between microphone and
subject.

28
7

1

Nimmer, § 2.10[A][2][b] (internal quotations omitted).

2

Of course, “copyright in a derivative work does not extend to any

3

part of the work in which pre-existing material has been used

4

unlawfully.”

5

that Private Stock’s re-mastering was in any way unlawful.

6

the TAC itself alleges that Pryor and Private Stock agreed that

7

Private Stock would re-master the Gold Future record and distribute

8

copies of the newly-engineered Private Stock record.

9

Nimmer, § 2.10[A].

Plaintiffs do not, however, argue
Indeed,

(TAC ¶ 12.)

Instead, Plaintiffs appear to argue that Zomba infringed the

10

Gold Future sound recording copyright by sampling a portion of the

11

Private Stock record “and, in turn, the Gold Future [r]ecord,”

12

presumably because of the Private Stock record’s “literal copying”

13

of the Gold Future record.

14

In other words, Plaintiffs suggest that because the Private Stock

15

record is a derivative work, and because Private Stock had no right

16

to license the Gold Future record, Defendants’ use of the Private

17

Stock record constitutes infringement of the original Gold Future

18

record.

19

(Opposition at 17 (emphasis added).)

(Opp. at 15-17.)

Defendants argue that issues regarding derivative works and

20

licenses are irrelevant because, as a matter of law, copyright in a

21

sound recording extends only to the actual sounds fixed in a

22

recording.

23

Private Stock could or did license the Gold Future record to

24

Defendants because Defendants never sampled anything from the Gold

25

Future record.2

Thus, Defendants contend, it does not matter whether

The court agrees.

Under 17 U.S.C. § 114(b),

26
2

27
28

To the extent Defendants suggest that Pryor’s actions with
respect to Private Stock necessarily demonstrate an intent to grant
Private Stock an implied license “to take any action consistent
(continued...)
8

1

Plaintiffs have the exclusive right to duplicate, rearrange, or re-

2

mix the “actual sounds” of the Gold Future record.

3

not do anything with those “actual sounds.”

4

used licensed “actual sounds” from the Private Stock record.

5

Because the TAC’s First and Second claims for relief are premised

6

solely upon infringement of the Gold Future sound recording

7

copyright, those claims are DISMISSED, with prejudice.3

8

IV.

9

Defendants did

Rather, Defendants

Conclusion
For the reasons stated above, Defendants’ Motion to Dismiss is

10

GRANTED.

11

with prejudice.

The First and Second claims for relief are DISMISSED,

12
13
14
15

IT IS SO ORDERED.

16
17
18

Dated: October 8, 2014
DEAN D. PREGERSON
United States District Judge

19
20
21
22
23
2

24
25
26
27
28

(...continued)
with copyright ownership,” the court disagrees. The scope of any
such license, however, is not relevant, for the reasons discussed
above.
3

Defendants’ Motion and oral argument made passing references
to Plaintiffs’ Third, Fourth, Fifth, and Sixth Causes of Action.
Those references appear to have been based on Plaintiffs’ failure
to register a copyright in the Gold Future record. As discussed
above, Plaintiffs have since remedied that deficiency.
9