WINSTEAD v. JACKSON et al
Filing
45
OPINION. Signed by Judge Stanley R. Chesler on 10-5783. (dc, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SHADRACH WINSTEAD,
:
:
Plaintiff, :
:
v.
:
:
CURTIS JACKSON, aka, “50 CENT,”
:
INTERSCOPE RECORDS, INC.,
:
UNIVERSAL MUSIC GROUP, INC., G:
UNIT RECORDS, SHADY RECORDS,
:
AFTERMATH ENTERTAINMENT,
:
POLYDOR LTD., JOHN DOES 1-10
:
(individuals whose identities are as of yet
:
unknown) and ABC CORPORATIONS 1:
100 (heretofore unidentified corporations,
:
partnerships, and/or business entities),
:
:
Defendants. :
:
Civil Action No. 10-5783 (SRC)
OPINION
CHESLER, District Judge
This matter comes before the Court on the motion by Defendants Curtis Jackson;
Interscope Records; UMG Recordings, Inc.; G-Unit Records, LLC; Shady Records; Aftermath
Records; and Polydor Ltd. (collectively, “Defendants”) to dismiss the Amended Complaint,
pursuant to Federal Rule of Civil Procedure 12(b)(6) [docket entry 19]. Plaintiff Shadrach
Winstead (“Plaintiff”) has opposed the motion. This Court heard oral argument on these motions
on September 14, 2011. For the reasons expressed below, Defendants’ motion to dismiss will be
granted.
I.
BACKGROUND
In this copyright infringement action, Plaintiff alleges that Defendants’ movie (the
“Film”) and companion album (the “Album”), both entitled Before I Self Destruct, infringe upon
Plaintiff’s copyright in his book, The Preachers Son - But the Streets Turned Me Into a Gangster
(the “Book”).
Plaintiff is the author and sole owner of the copyright for the Book. From 2007 to 2008,
Plaintiff dictated his autobiography onto electrostatic tapes, which he provided to Mary Gregory
(“Gregory”), who in turn transcribed the tapes into written product. According to Plaintiff, prior
to the Book’s publication, Gregory either released the Book to Defendants, or to individuals who
provided the Book to Defendants. Plaintiff then alleges that Defendants infringed upon the
copyright of the Book by publishing and selling the Movie and the Album, both of which
Plaintiff contends derive their content from the Book.
Based on these allegations, Plaintiff asserts claims of direct, contributory and vicarious
copyright infringement, as well as statutory and common law unfair competition,
conversion/misappropriation, and unjust enrichment. Defendants filed the instant motion to
dismiss for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P.
12(b)(6). In addition, Defendant Polydor Ltd. (“Polydor”) seeks to dismiss the Complaint for
lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2).1
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The Court declines to render judgment on the personal jurisdiction issue since the case
will be dismissed against all Defendants, including Polydor, for failure to state a claim upon
which relief can be granted.
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II.
LEGAL ANALYSIS
A.
Standard of Review
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) may be granted only
if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light
most favorable to the plaintiff, a court finds that plaintiff’s claims have facial plausibility. Bell
Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). This means that the Complaint must
contain sufficient factual allegations to raise a right to relief above the speculative level,
assuming the factual allegations are true. Id. at 1965; Phillips v. County of Allegheny, 515 F.3d
224, 234 (3d Cir. 2008). The Supreme Court has made clear that “a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 127 S.Ct. at 1964-65; see also Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1950 (2009) (“While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.”).
In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court may
consider only the complaint, exhibits attached to the complaint, matters of public record, and
undisputedly authentic documents if the complainant’s claims are based upon those documents.
See Pension Benefit Guar. Corp., 998 F.2d at 1196. The issue before the Court “is not whether
plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support
of the claims.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997)
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
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B.
Discussion
1.
Copyright Infringement
“To establish a claim of copyright infringement, a plaintiff must establish: (1) ownership
of a valid copyright; and (2) unauthorized copying of original elements of the plaintiff’s work.”
Dun & Bradstreet Software Servs. v. Grace Consulting, Inc., 307 F.3d 197, 206 (3d Cir. 2002).
In the instant case, the ownership of the copyrighted property is undisputed, as is its validity. In
addition, for the purposes of this motion, Defendants concede that they had access to the
copyrighted work and that there is substantial similarity between the works to support an
inference of unlawful copying.2 (Defs.’ Rep. Br. 4, July 25, 2011.) However, not all copying
amounts to copyright infringement. To give rise to copyright infringement, a court must
determine “whether a ‘lay-observer’ would believe that the copying was of protectible aspects of
the copyrighted work.” Dam Things From Denmark v. Russ Berrie & Co., Inc., 290 F.3d 548,
562 (3d Cir. 2002). This test has been described as whether “the ordinary observer, unless he set
out to detect the disparities, would be disposed to overlook them, and regard their aesthetic
appeal as the same.” Id.
In his opposition, Plaintiff avers that the Film duplicates the generalized theme and story
of the Book and amounts to actionable copying. However, general plot ideas and themes lie in
the public domain and are not protected by copyright law. Daley v. Granada US Productions,
No. 02-2629, 2003 U.S. Dist. LEXIS 3133 at *4 (E.D. Pa. Jan. 29, 2003). In addition, all
situations and incidents which flow naturally from a basic plot premise, known as scenes a faire,
2
Absent proof of direct copying, copying must be proven by showing that the defendant
had access to the allegedly infringed copyrighted work and substantial similarity between the two
works. Damiano v. Sony Music Entm’t, 975 F. Supp. 623, 630 (D.N.J. 1996).
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are not entitled to copyright protection. Whelan Assocs. Inc. V. Jaslow Dental Lab., Inc., 797
F.2d 1222, 1236 (3d Cir. 1986); Pino v. Viacom, Inc., No. 07-3313, 2008 U.S. Dist. LEXIS
24453 at *12 (D.N.J. Mar. 4, 2008) (finding elements common to both works - including the
presence of hosts who provide witty commentary on the contestants and competition and
introductory sequences that feature highlights of sporting events and sounds associated with
various sports - to be scenes a faire that flow from the idea of a sports-themed reality show that
pits amateurs against professional athletes); Daley, 2003 U.S. Dist. LEXIS 3133 at *5 (holding
archery tournaments, sword fighting, Nottingham Castle, Sherwood Forest, and appearances by
Robin Hood and his Merry Men to be unprotectable scenes a faire naturally flowing from works
derived by the Robin Hood legend). Copyright law protects a writer’s expression of ideas, not
the ideas themselves. Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 908 (3d Cir. 1975).
There is no doubt that the Book and Film do share similar characters, themes, as well as a
similar setting. However, this sharing of common features is only natural since both works
feature a protagonist who has a difficult upbringing and turns to a life of violence and street
crime, a story which has long ago been part of the public domain and which has been the subject
of numerous movies and television shows. Thus, both works may properly contain gang life in
inner-city New Jersey, characters spending time in jail, the search for an ex-girlfriend upon
release from prison, making love in the shower, obtaining money through criminal activity,
purchasing fancy clothes and accessories with the proceeds of crime, shoot-outs, murder, and the
loss of a parent. Moreover, a simple viewing of the two works reveals that they are entirely
different with respect to plot, mood, and sequence of events. The Book details Plaintiff’s rise
above a life of violence to achieve redemption whereas the Film portrays the protagonist’s
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descent into moral apathy and eventual death. Any common themes of a young male whose
tumultuous upbringing leads him to resort to a life of crime and violence in order to gain power
and money are scenes a faire, or standard to any coming of age story of a young man from an
inner-city.
In addition, Plaintiff contends that direct phrases from his Book appear in the Film and
Album and are protectable under copyright law. However, it is well-established that commonly
used words, phrases and cliches are not protectable. See Douglas v. Osteen, 317 Fed. Appx. 97,
99 (3d Cir. 2009) (“words and short phrases are excluded from copyright protection”); see also
Jarvis v. A & M Records, 827 F. Supp. 282, 291-92 (D.N.J. 1993) (cliched language, phrases and
expressions conveying an idea that is typically expressed in a limited number of stereotypic
fashions, are not subject to copyright protection, nor are easily arrived at phrases and chord
progressions); Cottrill v. Spears, No. 02-3646, 2002 U.S. Dist. LEXIS 8823 at *33 (E.D. Pa. May
22, 2003) (elements of the work must be original and nontrivial to constitute improper
appropriation). As a preliminary matter, Plaintiff misquotes and misstates many of the
illustrations he provides as examples of identical wording. Further, the language that is
accurately quoted - “putting work in,” names “ringing,” “stash,” and “get the dope, cut the dope”merely amounts to generic short words and phrases, common in gangster movies and hip hop
music. The average layman, who would be observing these phrases in the context of an overall
story or song, would not regard these minute snippets as unique and protectable. As such,
Defendants did not improperly appropriate Plaintiff’s work and Defendants’ motion to dismiss
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the copyright infringement claim will be granted.3
2.
State Law Claims
Defendants argue that Plaintiff’s unfair competition, conversion/misappropriation, and
unjust enrichment claims are pre-empted by the federal copyright law. Section 301 of the
Copyright Act explicitly preempts state laws that (1) fall within the subject matter of the federal
copyright law and protect works that are fixed in tangible medium of expression; and (2) create
legal or equitable that are equivalent to any of the exclusive rights granted to the copyright holder
and specified in section 106. Jarvis, 827 F. Supp. at 296; see 17 U.S.C. § 301. The issue here is
whether the state laws asserted by Plaintiff create rights which are “equivalent to” any of the
exclusive rights granted to the copyright holder under § 106. If so, they are preempted.4 The
inquiry performed under the § 301 preemption analysis is as follows:
3
Because the Court holds that Defendants did not infringe on Plaintiff’s copyright,
Plaintiff’s claims of vicarious and contributory infringement fail since they hinge on a
preliminary finding of direct infringement. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster,
Ltd., 545 U.S. 913, 930 (2005) (“one fringes contributorily by intentionally inducing or
encouraging direct infringement, and infringes vicariously by profiting from direct infringement
while declining to exercise a right to stop or limit it”); Arista Records Inc. v. Flea World, Inc.,
No. 03-2670, 2006 U.S. Dist. LEXIS 73485 at *26 (D.N.J. Mar. 31, 2006) (“Any finding of
either contributory infringement or vicarious liability by this Court hinges on the Court first
concluding that vendors in the Market have directly infringed Plaintiffs’ copyrighted
recordings.”).
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“Courts have generally concluded that the theory of unjust enrichment protects rights
that are essentially ‘equivalent’ to the rights protected by the Copyright Act; thus, unjust
enrichment claims relating to the use of copyrighted material are generally preempted.” Video
Pipeline, 210 F. Supp. 2d at 567. In addition, courts interpreting 17 U.S.C. § 301 have
consistently held that “unfair competition actions arising from an allegedly unauthorized copying
. . . are preempted by the Copyright Act.” Tannock v. Review Trad. Corp. Inc., No. 85-2864,
1986 U.S. Dist. LEXIS 25963 at *11 (D.N.J. May 2, 1986). Likewise, “misappropriation . . . is
grounded in the alleged unauthorized copying and use of another’s copyrighted expression, and
thus fails the extra element test. Video Pipeline, 210 F. Supp. 2d at 565.
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[A] right which is “equivalent to copyright” is one which is infringed by the mere
act of reproduction, performance, distribution or display. . . . If, under state law,
the act of reproduction, performance, distribution or display . . . will in itself
infringe the state created right, then such right is preempted. But if other elements
are required, in addition to or instead of, the acts of reproduction, performance,
distribution or display, in order to constitute a state created cause of action, then
the right does not lie “within the general scope of copyright,” and there is no
preemption.
Jarvis, 827 F. Supp. at 297. In other words, the federal Copyright Act does not preempt a claim
where
an extra element is required instead of or in addition to the acts of reproduction,
performance, distribution or display, in order to constitute a state-created cause of
action . . . A state law claim is not preempted if the extra element changes the
nature of the action so that it is qualitatively different from a copyright
infringement claim.
Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc., 210 F. Supp. 2d 552, 564 (D.N.J. 2002).
The factual allegations in support of Plaintiff’s state law claims are premised entirely
upon Defendants’ copying of Plaintiff’s work: Plaintiff’s unjust enrichment claim is based on the
“profits” arising “from the infringement of [Plaintiff’s] copyright” (Am. Compl. ¶ 73), Plaintiff’s
unfair competition claims are based on “the misappropriation of [Plaintiff’s] copyrighted
materials” and “Defendants’ unauthorized use of [Plaintiff’s] copyrighted materials” (Am.
Compl. ¶¶ 72, 70), and Plaintiff’s conversion/misappropriation claim is based on Defendants’
purchase and possession of Plaintiff’s Book for their own use. (Am. Compl. ¶ 66). Plaintiff fails
to distinguish the underlying factual predicate of his infringement claim with that of his state law
claims. Accordingly, Plaintiff’s state law claims are preempted by the Copyright Act and will be
dismissed.
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III.
CONCLUSION
For the foregoing reasons, the Court grants Defendants’ motion to dismiss. An
appropriate form of Order will be filed together with this Opinion.
s/ Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
DATED: September 20, 2011
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