Robbins v. Usher et al

Filing 69

ORDER denying 34 Motion to Amend/Correct; denying 46 Motion ; denying 47 Motion to Strike ; denying 48 Motion ; denying 50 Motion for Leave of Absence; denying as moot 57 Motion ; denying 58 Motion to Expedite; denying 59 Motion to Amend/Correct; denying 63 Motion ; denying 64 Motion ; denying 65 Motion to Amend/Correct; denying 66 Motion ; denying 16 Motion. Signed by Magistrate Judge G. R. Smith on 411cv193. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

KELVIN J. ROBBINS,
Plaintiff,
V.

Case No. CV411-193

USHER RAYMOND, IV, et al.,
Defendants.

REPORT AND RECOMMENDATION
Proceeding pro se, Kelvin J. Robbins brought this copyright
infringement case against, among others, "Artits-Usher" (sic) doe, 1 at

1,' later named "Usher-Artist." Doc. 12 at 1. The Court surmised that he
meant Usher Raymond, IV, a/k/a "Usher," who is also being sued for
copyright infringement in Straughter u. Raymond, 2011 WL 3651350 at *
3 (C.D. Cal. Aug. 19, 2011), so it amended the caption of this case

accordingly. After Robbins supplemented his pleadings to meet the
copyright-infringement pleading requirements set forth in a prior Order,
doe. 10, reported at 2011 WL 5840257, the Court ruled that his complaint
All documents referenced in this Order use the electronic screen-page pagination
printed across the top of each page by the Court's CMJECF software. Those page
cites may not always line up with each paper document's printed pagination.

El

just barely survived frivolity-screening under 28 U.S.C. § 1915(e)(2).
Doe. 14, reported at 2011 WL 6032972.

Noting that Robbins has never served Usher, doe. 51-1 at 7 n. 1,
defendants Sony Music Entertainment, joined by defendant LaFace
Records LLC (see doe. 25 at 1), move for summary judgment. Doe. 51.
While they cite pleading defects and thus point to Fed. R. Civ. P.
12(b)(6)-dismissal grounds (doe. 514 at 7-13, 19-24), they rest their first
ground for relief on summary judgment under Fed. R. Civ. P. 56. They
argue that "no reasonable jury applying the 'average lay observer' test
would find that the Works [Robbins 's "Comein Over" rap song versus
Usher's "Hey Daddy" song] are substantially similar,' [so Robbins']
copyright claim must be dismissed." Id. at 13. To that end, they assume
arguendo that plaintiff's copyright in his song is valid, "leaving only the

issue of copying in dispute." Id. at 14, n. 7. Robbins, meanwhile, also
moves for summary judgment and judgment on the pleadings, does. 23 &
39, plus for other relief like a motion to amend, doe. 34, etc.
I. GOVERNING STANDARDS
A. Copyright
Defendants have focused on the core element in copyright cases:

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The gravamen of a copyright infringement suit is copying. The
plaintiff must show that the defendant copied elements of an
original work that is protected by the plaintiffs valid copyright.
Direct evidence of copying is rarely available, so the law provides a
method of proving copying indirectly, which creates a presumption
of copying that may be negated with evidence of independent
creation.
Watts v. Butler, 457 F. App'x 856, 858 (11th Cir. 2012) (cites omitted).

That "method of proving copying indirectly" employs shifting burdens of
proof:
A plaintiff can establish prima fade evidence of copying by showing
(1) that the defendant had access to the plaintiffs work; that is, a
reasonable opportunity to come across the work, and (2) that there
is a substantial similarity between plaintiffs and defendant's work;
that is, an average lay observer would recognize defendant's work
as having been taken from plaintiffs work. If the plaintiff is able to
make the showing, then a presumption of copying arises and the
burden of production shifts to the defendant. A defendant can
negate the presumption of copying by presenting evidence that he
independently created the work. Once the defendant does so, the
presumption is negated and the plaintiff has the burden of proving
that the defendant in fact copied his work.
457 F. App'x at 858-59 (emphasis added).
Access and substantial similarity showings are thus interrelated,
and although a copyright plaintiff can rely on circumstantial evidence, he
cannot rest on speculation. Id. at 859-60 (evidence did not support a
finding that defendant rap artist had access to plaintiffs copyrighted
musical work as would support prima facie evidence of copying in
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copyright infringement action; plaintiffs work was never commercially
distributed, neither plaintiffs work nor his rap group became a
commercial success, defendant was too young to have attended clubs
where plaintiffs work was being performed, and assumption that
members of rap community shared copies of plaintiffs work was
conjectural and speculative).
However, "{s]triking similarity evidence is generally considered to
be a substitute for access." Id. at 861. That is,
{wjhen a plaintiff in a copyright action cannot demonstrate access,
"he may, nonetheless, establish copying by demonstrating that his
original work and the putative infringing work are strikingly
similar." Corwin v. Walt Disney, 475 F.3d 1239, 1253 (11th Cir.
2007). Strikingly similar means that "the proof of similarity in
appearance is 'so striking that the possibilities of independent
creation, coincidence and prior common source are, as a practical
matter, precluded.' "Id. (quoting Selle u. Gibb, 741 F.2d 896, 901
(7th Cir.1984)).
Id.2
Otherwise, to show mere substantial similarity the plaintiff must
demonstrate that an average lay observer would recognize the challenged

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Here, however, the plaintiff "must present evidence that the similarities between
the two works are unique or complex" Watts, 457 F. App'x. at 862 "This
requirement is particularly important with respect to popular music, in which all
songs are relatively short and tend to build on or repeat a basic theme." Id. at 861-62
(quotes and cite omitted). Robbins makes no such showing here.

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song as having been taken from original song. Id. at 860. Even if he
does, his claim can still be defeated by the Independent Creation defense.
Thus if a song or "riff" is shown to be substantially similar (as a riff was
so shown in Watts, id. at 860-61), then even an uncorroborated claim
that the author created it on his own can be enough to rebut the
presumption of copying that the law otherwise supplies. Id. at 861-62
(defendant rap artist's uncorroborated claim of independent creation was
sufficient to rebut presumption of copying in composer's copyright
infringement action alleging that three-note riff, or ostinato, in
composer's musical work, "Come Up," was copied by rap artist in his
song, "Betcha Can't Do it Like Me"; rap artist's claim that be wrote the
riff using three adjacent keys on his laptop keyboard and music
production software was plausible).'
Finally, trivial amounts of copying do not make the grade.
Saregama India Ltd. v. Mosley, 687 F. Supp. 2d 1325, 1338 (S.D. Fla.

2009) (original song and recording in which sample occurred were not
"substantially similar," for purposes of copyright infringement claim
brought by recording company against musicians, stemming from
Possibly because Usher has yet to be served in this case and thus does not want to
otherwise make appearance, defendants do not invoke that defense here.
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sampling of song in which company allegedly owned rights; sampling
constituted snippet of music approximately one second in length).
B. Summary Judgment4
"The question of substantial similarity can be decided as a matter
of law on a motion for summary judgment either where the similarity
concerns only noncopyrightable elements of a plaintiffs work, or when
no reasonable trier of fact could find the works substantially similar."
Lii' Joe Wein Music, Inc. v. Jackson, 245 F. App'x 873, 877 (11th Cir.

2007) (quotes and cite omitted). Judges thus compare the musical and
artistic differences between the disputed work and "determine whether,

As the Eleventh Circuit recently explained:
Summary judgment is proper where there are no genuine issues as to any
material fact and the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Crawford v. City of Fairburn, 482 F.3d 1305, 1308 (11th
Cir,2007). Genuine disputes arise from evidence sufficient for a reasonable
jury to return a verdict for the non-movant. Mize v. Jefferson City Rd. of Educ.,
93 F.3d 739, 742 (11th Cir, 1996). In deciding whether there is a genuine issue
of fact, the court must view all of the evidence, and all inferences reasonably
drawn from the evidence, in the light most favorable to the non-movant.
Raney, 120 F.3d at 1196. If the non-movant fails to make a sufficient showing
as to any essential element of her case for which she has the burden of proof,
the moving party is entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U S. 317, 322 -23, 106 S.Ct. 2548, 2552 (1986).
Kurtts v. Chiropractic Strategies Group, Inc., 2012 WL 1991929 at * 1 (11th Cir. Jun.
1, 2012).

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upon proper instruction, a reasonable jury would find that the works are
substantially similar." Id. (quotes and cite omitted),' That was done in
Lii' Joe. 245 F. App'x at 880 (summary judgment to alleged infringer

because plaintiff failed to meet the intrinsic test; rap song "In Da Club"
was not substantially similar to rap song "Its Your Birthday" under
intrinsic test for copyright infringement, where the only similarity
between the two works was the non-protected phrase "Go _____, it's your
birthday" at the beginning of "In Da Club," and this represented only 11
seconds of a three minute, 13-second song).

The inquiry subdivides where the original work bears uncopyrightable elements; to
establish substantial similarity, a plaintiff
must satisfy a two-pronged test: (1) an extrinsic, objective test, and (2) an
intrinsic, subjective test. Under the extrinsic test, a court will inquire into
whether, as an objective matter, the works are substantially similar in
protected expression. As a part of this test, the Court will determine whether
[the plaintiff] seeks to protect only uncopyrightable elements; if so, the court
will grant summary judgment for defendant. Under the extrinsic test, expert
testimony is appropriate. Under the intrinsic test, a court will determine
whether, upon proper instruction, a reasonable jury would find that the works
are substantially similar.
245 F. App'x at 877. Defendants here do not claim that any uncopyrightable element
is in play. Doe. 51-1. Nevertheless they basically rely on the intrinsic test, which
drives many a summary judgment ruling Marquardt v. King, 2011 WL 5042054 at * 7
8 (N.D. Ga. Aug. 10, 2011) ("the Eleventh Circuit has affirmed summary judgment,
often with only minimal discovery permitted, on the basis of the intrinsic test.").
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II. ANALYSIS
A. Copying
Defendants insist that Robbins's case fails because he cannot
establish a facie evidence of copying by showing: (1) that Usher had
access to his work (i.e., a reasonable opportunity to come across the
work); and (2) that there is a substantial similarity between plaintiffs
and defendant's work. Doc. 51-1 at 14-24. Further, his failure to meet
the second element moots the first.
To that end, they have tendered a copy of Usher's "Raymond

V.

Raymond" album, and the Court has listened to track two ('Hey Daddy
(Daddy's Home)"), doc. 51-4, and compared it to plaintiff's "Comein
Over" song that plaintiff has furnished on a CD. Doe. 39. Applying the
above summary judgment- standards, the Court agrees with defendants'
description (they reference the two songs as "Works"):
As is readily apparent after listening to the Works under the
"average lay observer" test, the Works sound entirely different and
have no musical similarities between them. Davis Deci. at Exs. G
and H (copies of Plaintiff's Song and the Challenged Song
accompany this motion).
The songs at issue here have nothing in common. The Plaintiff's
Song, solidly in the hip-hop genre, is comprised of a sung chorus
that is interspersed between rapped (i.e., not sung) verses. The
melody in Robbins's chorus is very simple. Most of the musical
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interest in Robbins's song is created in the rapped verses via
rhyming and wordplay.
In stark contrast, the Challenged Song is in the contemporary R&B
genre, functioning mainly as a showcase for Usher's vocal
performance. Usher's melody, which is varied and often highly
contoured, is a vehicle for highlighting his skills as a singer. The
pacing of the melody and lyrics enables Usher to profile his abilities
with vocal runs and turns. Furthermore, Plaintiffs chorus melody
and rapped verses are very simple, which is the polar opposite of
the dense vocal harmonies and the complex interplay between the
lead and background vocals in the Challenged Song.
The instrumental music in the two songs is also entirely dissimilar.
Plaintiffs Song is hard-edged and dark, full of dissonant chords
and dramatic accents in the percussion and synthesizers. The
Challenged Song, on the other hand, has a softer, more romantic
feel. Usher's harmonies and melodies in the instrumental parts are
pleasant and flowing. In addition, the Challenged Song's
instrumental arrangement is dynamic with a wide variety of
textures and volume levels in contrast to Plaintiffs Song. Finally,
the lyrics in the two songs share no similarity because they are
completely different from beginning to end.
Doe, 51-1 at 17-18.
Because plaintiffs case fails on this core element (no copying), it is
not necessary to reach the defendants' "access" and other arguments.
They are entitled to summary judgment on the core element and thus
dismissal of Robbins's case, Plaintiffs own summary judgment and
judgment on the pleadings motions (docs. 23 & 39) are baseless, if not
nonsensical, and should be denied. The same must be said for the

remainder of his motions. Does. 16, 34, 46, 47, 48, 54, 58, 59, 64-66.

B. Capacity for Suit
Sony points out that Robbins has sued two of its corporate divisions
-- Epic Label Group and RCA Records. Doc. 51-1 at 7 n. 1.
Unincorporated corporate divisions lack the capacity to be sued. Burns
& Russell Co. of Baltimore v. Oldcastle, Inc., 166 F. Supp. 2d 432, 440
(D.Md. 2001). Unincorporated divisions, after all, "do not possess any
assets -- all assets are owned by the corporation." Id., cited in 9
FLETCHER Cyc. CORP. § 4226

(Feb. 2012). The Clerk shall therefore

terminate these named defendants from this case.
C. Fed. R. Civ. P. 4(m)
The above rulings leave Usher Raymond -- still unserved -- as the
remaining defendant in this case. Plaintiff shall therefore show, within
14 days of the date this Report and Recommendation is served, good
cause why his case against Usher should not be dismissed under Fed. R.
Civ, P. 4(m). He may do so in a special filing or within any Fed. R. Civ.
P. 72(b)(2) Objection he may care to make to this Report and
Recommendation (R&R).

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In. CONCLUSION
The motions of defendants Sony Music Entertainment and LaFace
Records LLC for summary judgment should be GRANTED. Doc. 51.
Plaintiffs case against them should therefore be DISMISSED WITH
PREJUDICE. Plaintiffs summary judgment and judgment on the
pleadings motions (does. 23 & 39), in turn, should be DENIED.
The remainder of plaintiffs motions (does. 16, 34, 46, 47, 48, 58,
59, 64, 65 & 66) are DENIED as frivolous. The motion of Sony and
LaFace for a Scheduling Conference is DENIED as moot, doe. 57, as is
Sony's motion for a leave of absence. Doe. 50. And their "muzzling"
motion, doe. 63, is also DENIED, with this exception: Because he has
unduly burdened this Court with frivolous and nonsensical filings,
plaintiff is now restricted (between now and the district judge's ruling on
this R&R) to no more than two filings: his Rule 4(m) showing, see
supra Part 11(C), and a Fed. R. Civ. P. 72(b)(2) Objection,' The Clerk

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This Court previously warned plaintiff that attorney fees and punitive damages can
be awarded against those who bring false or otherwise bogus copyright claims.
Robbins, 2011 WL 5840257 at * 2 n. 3. Attorney fees and costs were just awarded in
another "Usher Raymond" lawsuit also dismissed on non-similarity grounds. There
the court reasoned that
[t]o permit plaintiffs, who filed a meritless action with no cognizable legal or
factual basis, to escape without penalty for their conduct would only encourage
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shall terminate from this case named defendants RCA Records and Epic
Records. Finally, Bobbins is directed to abstain from telephonically
contacting this Court's staff, including its Clerk's office. All of his
communications shall be restricted to written submissions (motions and
briefs) by mail or at the Clerk's window.
SO REPORTED AND RECOMMENDED this ,13 day of
June, 2012.

UNITED $WES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

plaintiffs, who have previously filed frivolous copyright infringement claims, to
commence yet further unsustainable litigations that have the potential to chill
and significantly burden the independent creation of creative musical works.
Pyatt v. Raymond, 2012 WL 1668248 at *8 (S.D.N.Y. May 10, 2012) (granting award

based on 17 U.S.C. § 505). Should they be pursued here, then plaintiff may respond.

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