Poindexter v. Cash Money Records

Filing 45

OPINION. Given the reasoning in this Opinion, Defendant's motion to dismiss and motion for summary judgment is granted in favor of Cash Money. re: 13 MOTION to Dismiss. MOTION for Summary Judgment filed by Cash Money Records. (Signed by Judge Robert W. Sweet on 2/25/2014) (rjm)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ROBERT POINDEXTER,

P

13 Civ. 1155

intiff,

OPINION

-againstCASH MONEY RECORDS,
Defendant.
--------------------­

------X

A P PEA RAN C E S:

PRO SE
ROBERT POINDEXTER
153-27 120 Avenue
Jamaica, NY 11434

ATTORNEYS FOR DEFENDANT
SHAPIRO, ARATO & ISSERLES LLP
500
fth Avenue, 40 th Floor
New York, NY 1010
Cynthia S. Arato, Esq.
James Darrow, Esq.

if

Sweet, D.J.

Defendant Cash Money Records

("Cash Money" or the
. R. Civ. P. 12 (b) (6) to

"Defendant") has moved pursuant to

dismiss the Complaint of pro se plaintiff Robert Poindexter
("Poindexter" or the "Plaintiff") and pursuant to Fed. R. Civ.
P. 56 for summary judgment. Upon the facts and conclusions set
forth below, the motions are granted.

Prior Proceedings

The Plaintiff

led his complaint on February 20, 2013

("Complaint") alleging that a sound recording and the underlying
musical composition that he, respectively, co-produced and co­
wrote were sampled without authorization in a recording by an
artist known as Bow Wow released by the Defendant.

The Complaint alleges that the PI

iff is a

songwriter and music producer and the Defendant, Cash Money, "is
in the business of recording, selling and distributing
[p]honograph [r]ecords." (Compl.

~

2). The Complaint concerns a

recording titled "Still Ballin," contained on an alleged "album"
titled "Green

ght 3," by t

artist Shad Gregory Moss,
1

-

pro

ssionally known as Bow Wow. It alleges that "Still Ballin"

contains an unauthorized sample of a musical composition and
sound recording titled "Love Gonna Pack Up and Walk Out

(Love

Gonna Pack Up)," which infringes Plaintiff's alleged rights in
these works.

The Complaint alleges that Poindexter co-wrote the
musical compos

ion "Love Gonna Pack Up," and co-produced a

"classic" recording of that work in 1972, performed by the
recording group The Persuaders.

~

~~

4-5). The Complaint

copyright owner" of "Love Gonna

notes that he is "not now
Pack Up," (id.

Id.

10), but that "a written agreement exists with

the copyright owner Warner/Chappell[Music]"
company - "granting [Poindexter] t
such a complaint as this,"
to likewise

ing

right to personally file
The Complaint alleges a "right

is action for t

master), as well as t

a music publishing

Sound recording (or

composition" of "Love Gonna Pack Up"

under the Copyright Act and the United States Constitution.
(Id.).

Cash Money is alleged to have re
in dispute.

id.

~

sed the reco

4 (alleging that "Cash Money

sampled" "Love Gonna Pack Up" "into it's [sic]
2

... recording

ng

'Still Ballin'''); id.

~

6 (that '[tJhe illegal usage is that

Cash Money did not acquire authorization, to use the legal
version"); id.

~

7 (alleging that "Cash Money infringed the

copyright ... by distributing" the work for free "to the general
public on internet downloads"); id. WHERETOFORE clause (seeking
damages "since the date of the first illegal use herein by Cash
Money") ) .

The instant motions were marked fully submitted on
October 16, 2013.

The Facts

The facts are set forth in the Defendant's Statement
of Undisputed Facts and the Affirmation in Opposition to the
Motion and are undisputed except as noted.

The Plaintiff is a songwriter and music producer and
Cash Money "is in the business of recording, selling and
distributing [pJhonograph [rJecords."

3

The Complaint concerns a recording titled "Still
Ballin," contained on an album titled "Green Light 3," by the
artist Shad Gregory Moss, professionally known as Bow Wow.

The Comp

int alleges that "Still Ballin" contains an

unauthorized sample of a musical composition and sound recording
titled "Love Gonna Pack Up and Walk Out (Love Gonna Pack Up),"
thereby in

inging Plaintiff's alleged copyrights

allegedly sampl

those

works and that Cash Money released and/or

"Still Ballin" on the Internet and that "Still

stribut

Ballin" is Cash Money's recording.

(CampI.

~~

4, 6 7).

According to Bow Wow, Cash Money was not involved with
and did not participate in the creation, recording, production,
re

se, or

stribution of "Green Light 3" or "Still Ballin"

and Bow Wow released "Green Light 3" and its recording "Still
Ballin" on his own. Before Plaintiff complained of the alleged
infringement, Bow Wow never noti
with Cash Money about "Green

ed or otherwise communicated

ght 3" or "Still

1

" and no

one did so on his behalf.

A copy of Cash Money's logo appears on certain
representations of the "cover" of "Green Light 3," as released
4

Internet, but Cash Money had nothing to do

by Bow Wow on t

with, and did not authorize, placing this logo on the cover.

The Applicable Standards

On a motion to dismiss pursuant to Rule 12 (b) (6),
factual

allegations

in the complaint are accepted as true,
favor of

all inferences are drawn
--------------~

,

12 F.3d 1170,

is not whether a

pleader. Mills v.

1174

r.

(2d

1993).

all
and

Polar

"'The issue

plaintiff will ultimately prevail but whether

the claimant is entitled to offer evidence to support the claims

,"
378

56
Cir.

1995)

(quoting

Scheuer

236, 94 S. Ct. 1683, 40 L. Ed. 2d 90

To
12 (b) (6),

survive

"a

complaint must

accepted as true,

to

a

motion

550 U.S.

(2007) ).

Plaintiffs

their

claims

544,

across

U.S.

232,

smiss

to

Rule

pursuant

sufficient

factual

matter,

'state a claim to relief that is plaus
1,

Ed. 2d 868

Twombly,

416

Rhodes,

375,

(1974)).

to

contain

on its face.'1t Ashcroft v.
1937, 1949, 173 L.

v.

F.3d

570,

must
the

556 U.S.

(2009)
127 S.

allege
line

5

678,

129 S.

(quoting Bell Atl.

ct.

1955,

sufficient

from

662,

167 L.
facts

conceivable

to
to

e
Ct.
. v.

Ed.

2d 929

"nudge [
plausible."

Twombly,

550

U.S.

at

570.

Though

Court

t

must

accept

the

factual allegations of a complaint as true, it is "'not bound to
accept

as

true

allegation.

a

,II

legal
129 S.

conclusion
Ct.

at

couched

1950

as

a

factual

(quoting Twombly,

550

U.S. at 555).

The 12 (b) (6) Motion Is Granted

Approximately 22 months ago, in Poindexter v. EMI
_R~e~_~__~~__~_,

No. 11 Civ. 559(LTS) (JLC) , 2012 WL 1027639

(S.D.N.Y. Mar. 27, 2012), the Honorable Laura Taylor Swa
di

ss

a copyright

fringement claim brought by

aintiff

against EMI Record Group Inc. Judge Swain held in EMI t

t

Plaintiff was not an owner of a set of sound recordings
including the sound recording at issue in t

s case - and thus

lacked standing to sue EMI for alleged copyright infringement of
one of those wor

. Id. at *3. Judge Swain's decision bars

Poindexter from re-litigating his lack of standing.

Collateral estoppel bars a party from re-l
a second proceeding an issue that was
prior proceeding. See Allen v. McCur

ided aga

igating

st him in a

449 U.S. 90, 94

(1980)

("once a court has decided an issue of fact or law necessary to
6

reliti

its judgment, that decision may precl
issue in a suit on a
to

ion of t

fferent cause of action invo

first case."). A p

a party

adverse ruling will have

collateral estoppel effect in a subsequent action when "(I)
identical issue was raised in a previous proceeding;
issue was actually litigat
proceeding;
litigate

(3 ) t

in t

and de

party had a full and

(2) the

previous

ir opportunity to

issue; and (4) the resolution of the issue was

necessary to support a valid and final judgment on the mer
Ball v. A.O. Smith

451 F.3d 66,

(quoting

337 F.3d 253, 258 & n.5

s."

69 (2d Cir. 2006)
(2d

r.

2003) ) .

Even though a plaintiff's factual allegations must be
accept

as true

all reasonable

rences drawn in the

aintiff's favor on a motion to dismiss,
will nonetheless bar a plaintiff's
"factual allegations have

lateral estoppel

aim when the plaintiff's

en decided

rwise

previous

litigation." Jacobs v. Law Offices of Leona

No. 04

Civ. 7607, 2005 WL 1844642, at *3 (S.D.N.Y. July 29, 2005); see
also Li

. v. N.Y.C. Econ. Dev. Co

No.

~~~~~~~~~~~~~~-~--------------~------~--~~

08 Civ. 3810(RJS), 2011 WL 2226625, at *3 (S.D.N.Y. June 1,
2011)

("[IJt is well sett

that a court may
7

ss a

a

on

res judicata or collateral estoppel grounds on a Rule 12(b) (6)
motion." (quoting Sassower v. Abrams, 833 F. Supp. 253, 264 n.18
(S.D.N.Y. 1993)). In that event, "a court may take judicial
notice of those proceedings and find that plaintiff []

[is]

estopped from re-alleging those facts." Jacobs, 2005 WL 1844642,
at *3; see also Linden Airport, 2011 WL 2226625, at *3
(dismissal under Rule 12(b) (6)

on collateral estoppel grounds

appropriate where "it is clear from the face of the complaint,
and consideration of matters which the court may take judicial
notice of, that the plaintiff's claims are barred as a matter of
law" (quoting Conopco, Inc. v. Roll Int'l, 231 F.3d 82, 86 (2d
Cir. 2000)).

Collateral estoppel effect has been given to prior
determinations that a plaintiff is not a valid copyright owner
and, thus, lacks standing to sue for infringement. See, e.g.,
Akhenaten v. Najee, LLC, 544 F. Supp. 2d 320, 331-33 (S.D.N.Y.
2008)

(collateral estoppel effect given to prior decision that,

inter alia, plaintiff did not establish he had rights in the
intellectual property at issue); Whimsicality, Inc. v. Battat,
27 F. Supp. 2d 456,

463 (S.D.N.Y. 1998)

(collateral estoppel

effect given to prior decision that plaintiff had no valid
copyright) .
8

s here, Pia

As he
defendant record 1
different reco

iff alleged in EMI that t

1 had released a recording that "sampled" a

ng t

Pia

iff had co-produced and over

which he allegedly enjoyed a right to sue. See EMI, 2012 WL
1027639, at *1. Judge Swain found that Plaintiff lacked standing
to sue for infringement of his alleged recording,
terms of a 1998 agreement between Pia

sed on the

iff and his co

producers, on the one hand, and Atlantic Recording Corporation,
on the

r

(

"1998 Agreement"), which

aintiff had

attached to his initial pleading in the case. Id. at *1, *3;
(see also Declaration of James Darrow, Aug. 23, 2013 ("Darrow
Decl."), Ex. 1, at 6-9).

Judge Swain found that the 1998 Agreement governs t
ownership of ten sound recordings ("Masters"), co-produced
Plaintiff and others and identifi
Exhibit "A.

II

on the agreement's atta

See EMI, 2012 WL 1027639, at *1, *3;

(Darrow Declo,

Ex. 1 at 9). One of those Masters (recording number one on the
exhibit) was titled "Thin
De

., Ex. 1 at 9), and was

ne Between Love and Hate," (Darrow
recording at issue in EMI. See

EMI, 2012 WL 1027639, at *1. Another of the Masters (recording

9

number six)

is the recording at issue here.

(Darrow Decl.,

. 1

at 9 (listing "Love Gonna Pack [U]p")).

As Judge Swain observed in EMI, the 1998 Agreement
states that

the Masters (together with all reproductions
derived therefrom and per rmances embodied
thereon), from the inception of the recording
thereof, shall be [Atlantic's] property in
perpetuity throughout the world free from any
claims whatsoever by you [i.e., Poindexter], and
[Atlantic] shall have the exclusive right
throughout the world to copyright the Masters
our name as the author and owner of them .
Each Master shall be consi red a "work made for
hire" for us .

2012 WL 1027639, at *1;

(Darrow Decl. Ex. 1 at 6). In light of

these express terms, Judge Swain concluded that the 1998
Agreement "foreclose[s] Plainti

's argument that he ever had

ownership rights in the masters," id. at *3, held that Plaintiff
lacked standing to sue for infringement of the recording at
issue in EMI and dismissed

aintiff's claim that this recording

had been infringed, id. at *3, *5.

Plaintiff necessarily rais

the issue of his

ownership of the recordings governed by the 1998 Agreement when
he sued EMI for copyright in

ingement regarding one of these
10

works. See Wolk v. Kodak
741 ( S . D. N . Y. 2012)
in

Network

("To est ab 1 ish a

840 F. Supp. 2d 724,

aim of copyright

ingement, a plaintiff must establish," inter al

"ownership of a valid copyright").

Plaintiff's lack of ownership of the works governed by
the 1998 Agreement was actually litigated and decided in the
previous proceeding: Judge Swain expressly found Plaintiff's
"argument that

ever had ownersh

rights in the masters" to

"foreclose[d]" by the 1998 Agreement and applicable law. EMI,
2012 WL 1027639, at *3. Although EMI concerned Plaintiff's
alleged rights to the"

in Line Between Love and Hate"

recording, Judge Swain's determination bars PIa
litigating the owne

ip issue with re

Pack Up" recording as well, given

iff from re

ct to the "Love Gonna
both recordings are

governed by the same 1998 Agreement on which Judge Swain's
determination is based. See Galin v. United States, No. 08-CV­
2508(JFB) (ETB), 2008 WL 5378387, *7

(E.D.N.Y.

Dec. 23, 2008)

(applying collateral estoppel to preclude plaintiff's ownership
claim in light of prior determination where, "[a]lthough the
case

fore

s Court involves a different property from

at issue before the

ior courtJ," the claimed ownership rights

in both proceedings were bas

on "identical"
11

cts) .

Because Plaintiff's ownership of his recording was a
necessary element of his in

ingement claim

EMI, see Wolk,

840 F. Supp. 2d at 741, the resolution of the ownership issue
was necessary to support Judge Swain's valid and f

1 judgment

on the merits.

Judge Swain's

smissal in EMI constitutes a final and

binding judgment that PIa
for

ingement of t

iff does not have standing to sue

recordings governed by t

1998

Agreement. In light of this prior judgment, Plaintiff lacks
ng to sue for infringement of

"Love Gonna Pack Up"

recording based on this work. Although Plaintiff's Complaint
alleges

he

s "a written agreement w

owner Warner/Chappell granting [him] t
file

a complaint as this," (Compl.

h the copyright

right to personally
~

10), Warner/Chappell's

agreement with Plaintiff is a publishing agreement concerning
PIa

iff's rights in and to various musical compositions, EMI,

2012 WL 1027639, at *3.
purport to grant h

is publishing agreement does not

the right to sue for i

ringement of a

sound recording, and Judge Swain previously rejected this same
allegation in EMI. See id.

("Even if the Court were to assume

(1) that this clause contemplated suits for in
12

ngement of the

ng copyright, and (2) that

master as well as the sound reco

Warner/Chappell Music owned the master, the clause could not
on Plaintiff to bring suit.").

confer st

PIa

iff has sought to avoid collateral estoppel

asserts, "the sound recording issue is not the same

because,

in this case as in EMI." (Memorandum Of Law In Opposition To
Complaint And For Summary

Defendant's Motion To Dismiss
Judgment ("
F.3d 66,
requires

. Br.") at 6); see Ball v. A.a.

69 (2d Cir. 2006)

owne
bas

"the identical issue was raised in a previous

only his "ri
," whereas \\

on royalty rights."

Act, which

sue

EMI decision

to sue for reasons of copyright
sound recording issue in this case is
(

. Br. 6).

Plaintiff appears to rely on Sect

"

451

(first element of collateral estoppel

proceeding,,).l Plaintiff has asserted that t
foreclos

.,

~~~~~~~--~~~~~~

izes that ei

cial" owners of an exclusive

501(b) of

r "legal" or
under a copyr

infringement. See 17 U.S.C. § 501(b)

(prov

may

ng that

Plaintiff grants that "the resolution of sound recording
may
have been a substantial element of my
claim," "agree(s] that I
did have a full and fair opportunity to lit
e the issue in EMI " and
concedes that the issue was an element (but "not the only element")
"necessary in Judge Swain's final and
judgment regarding the right to
sue" in that case. (PI's Br. 8).

13

"

legal or beneficial owner of an exclusive right under a

copyright is entitled . .

stitute an action for any

. to

infringement of that particular right committed while
is the owner of it"). Under
anyone who holds tit
§

to t

or

t provision, a legal owner can
t exclusive right,

see 17 U.S.C.

201(d), whereas beneficial owners are limited to the original

author who transfer such title to another, but who are entit
t new owner for the expl

to receive royalties
the author's work, --~----~
see
646 F. Supp. 2d 622,
"granted .

. 1

t

payment of royalties

Harris v. Simon & Schuster, Inc.,

632 (S.D.N.Y. 2009)

(hoi

ng

rty who

. qualifies as a

'beneficial owner'"

standing to sue

ownersh

copyrights, and did not
sed on his being a "benefic

a

However, Judge Swain found
party to a 1998 agreement (the "1998
Recording Co

ss Plaintiff's
1" owner.

ng a right to a "beneficial

erest"); id. at 1, 3 (same);

/

that EMI

eked standing to sue for infringement as a

"legal" owner of

PI.'s Br. 5

r the

rights in the Work in exchange

for copyright purposes). Plaintiff appears to cont
held only that

tation of

ration concerning

recordings co-produced by Plaintiff,
14

(See

lty
. ,

6 (same)).

EMI that Plaintiff was a
") with Atlantic
ownership of ten sound
luding "Love Gonna Pack

Up"

(the "Masters") and further found that the 1998 Agreement

established that Atlantic was the work-for-hire owner of the
Masters and that the agreement, accordingly, "foreclose[d]
Plaintiff's argument that he ever had ownership rights in the
[M]asters." EMI, 2012 WL 1027639, at *1-*3. In so holding, Judge
Swain consi

red and rejected the argument

aintiff has

advanced here, namely, that "his continued entitlement to
royalties makes him a bene
*3. As Judge Swa
issue

s

cial owner" of the Masters. Id. at

explained, "[e]very circuit to consider the

ld that the creator of a work for hire [as the

Masters are under the 1998 Agreement] who rece
does not qualify as a

s royalties

neficial owner." Id. Accordingly, Judge

Swain's controlling judgment in EMI was that "Plaintiff is not
an owner, benefi

al or otherwise," of the Masters.

Id. at *2.

That issue is presented here, and under settled principles of
collateral estoppel Plaintiff may not relitigate it.
Br. 7-9). The Plainti

lacks standing to bring a

(See Def.
aim for

infringement based upon the sound recording "Love Gonna Pack
Up."

Also, the Plaintiff attempts to distinguish EMI on the
ground that even after that

is

for failure to pay production royalt

15

he retains a "right to sue
s" sounding

"breach of

contract." (Pl.
claim re

es to t

7). Plaintiff asse

s that this putative

alleged "royalty rights granted me in the

1998 agreement," which purportedly "obligates" Cash Money "to
pay [Plaintiff] production royalties

"Love Gonna Pack U[p]."

(Pl. Br. 8). However, Cash Money is not a
y Poindexter, his coproducers,

Agreement.
ente

rty to the 1998

into this contract.

Atlantic

(See Declaration of James Darrow,

sworn to Aug. 23, 2013 ("Darrow Decl."), Ex. 1 p. 8 (Compl. Ex.
I at 3)). Consequently, "[iJn general, if an ent
party to a contract, no val
against
Civ. 4498

y is not a

breach of contract c

t entity." Hotel

rius B.V. v. PRT

--------~----

im exists
., No. 92

-------------------~

(MBM), 1992 WL 391264, at *6 (S.D.N.Y. Dec. 22, 1992)

(granting motion to dismiss breach of contract cla
nonparty to contract); see also
Corp., No. 00 C
Dec. 6, 2004)

("Wi

against

~I~n_t~e~r ___A-~_S~.~A~._E_.~v~.~C~o~m_t~r~a~d~e
_

0133(GBD), 2004 WL 2793213, at *4

(S.D.N.Y.

a contractual relationship, there can be

no alleged breach."). Plaintiff's effort to convert his
infringement cla

rred

into a breach of contract claim therefore

fails.

Plaintiff observes that Cash Money cannot use EMI to
preclude his claim

infringement based upon the musical

composition underlying "Love Gonna Pack Up." (See PI. Br. 1 (EMI
16

"did not deny my rights in the compos

ion")). Poindexter has

asserted that "Judge Swain[']s Judgment saying that I have a
valid copyright in the compos

ion" is "indisputable evidence

of one "essential element[]11 of his claim.

ll

. Br. 1011).

However, EMI says nothing at all about the musical composition
underlying "Love Gonna Pack Up,1I and merely "assume[d]1I a valid
copyright and a copying in the irrelevant compos
in order to

ion at issue

smiss Plaintiff's claim on other grounds. 2012 WL

1027639, at *4. In addition, Poindexter cannot use EMI
affirmatively in this case, because Cash Money was not a
defendant in the prior proceedings. See Parklane Hosie
Inc.v. Shore, 439 U.S. 322, 326 n.4

(1979)

Co.

(explaining contours

of offensive collateral estoppel). Cash Money does not contend
otherwise.

Given the reasoning above, Plaintiff is collaterally
estopped for lack of standing, and Defendant's motion to dismiss
is granted.

The Motion For Summary Judgment Dismissing The Complaint Is Granted

As the Second Circuit has explained, while
pleadings are read "liberallyll and

se

rpreted " to raise the

strongest arguments that they suggest," a court's "application
17

of this

does not relieve plaintiff of his

st

f

irements necessary to defeat a motion for

duty to meet the

summary judgment." Jorgensen v. Epic/Sony Records,
50 (2d Cir. 2003)

tat

omitted) .

Although Plaintiff

s alleged that Cash Money

purportedly released the re
submitted establishes

ng

dispute, the evidence

Money had no involvement in this

Ca

work. A defendant cannot be

rectly 1

for copyright

infringement when it did not parti
infringing acts. As this Court has
liability" for copyright in

351 F.3d 46,

allegedly
ined, "[d]irect
res

1

conduct' that 'causes' the infri

" Walk

itional
840 F. Supp. 2d

at 742 (citing

536

F.3d 121, 130-31 (2d Cir. 2008). Where"
to establish any volitional conduct," a

Plaintiff has failed
i

defendant "[is] not liable for direct infri
judgment should be granted in favor of the

infringement
nt," and summary

f

. Id. at

743; see also Zappa v. Rykodisc, Inc., 819 F. Supp. 2d 307, 316
(S.D.N.Y. 2011)

("Here, there is no evidence establishing

liability, since ZFT cannot point to volitional conduct by
t

caused the distribution. Rather, Apple, not Ryko,
st

these tracks."). The Second Circuit has stres
18

rect

that evidence of the defendant's "volitional conduct" is "an
rect liability." Cartoon Network, 536

important element of
F.3d at 131.

Accordingly, where a plaintiff has established a
defendant's involvement in the allegedly infringing conduct,
summary judgment must be awarded

the defendant's favor. See,

or, 766 F. Supp. 2d 504, 514

e.g., Lessem v.

(S.D.N.Y. 2011)

(granting summary judgment where "plaintiffs have produced no
evidence whatsoever that [defendant record companies] had
anything to do with the copyright infringement alleged
case"); Faulkner v. Nat'l Geo. Soc'
(S. D. N. Y. 2002)

(where p

this

211 F. Supp. 2d 450, 472

intiffs "have brought forward

absolutely no evidence suggesting that Kodak itself engaged in
conduct that

olated any of the exclusive rights grant

copyright holders .

to

. plaintiffs cannot hold Kodak liab

as a

direct infringer as a matter of law"), modified on other
-""----

, 220 F. Supp.2d 237, aff'd sub nom. Faulkner v. Nat'l

Geo. Enters. Inc., 409 F.3d 26 (2d Cir. 2005); Pickwick Music
v. Record Prods.
1968)

Inc.

292 F. Supp. 39, 41

(S.D.N.Y.

(granting summary judgment in favor of individual

defendants where

fendant's evidence showed they "did not

participate in [corporate defendant's] copyright infringement").
19

Plaintiff has not presented any evidence that Cash
Money undertook any conduct including the requisite "volitional
conduct" with respect to the allegedly infringing work. As set
forth in the declaration of Bow Wow, it was Bow Wow, and not
Cash Money, who created, self-released and self-distributed
"Green Light 3" and its recording "Still Ballin.'" (See
Declaration of Shad Gregory Moss p/k/a "Bow Wow," sworn to March
2013 ("Moss Decl."), at

~

3 ("I self-released.

. a mixtape

entitled 'Green Light 3,' which included the track 'Still
Ballin.''')). This sworn testimony establishes that Cash Money
engaged in no conduct whatsoever with respect to "Still
Ballin,'" volitional or otherwise, and Plaintiff has not
presented any substantial evidence or facts of Cash Money's
involvement. Defendant thus cannot be liable for any allegedly
infringing material contained in that work.

Bow Wow did improperly affix a small copy of Cash
Money's logo to certain representations of Green
"cover" on the Internet.
Statement

~

(See Moss Declo

~

ght 3's

5; Defendant's 56.1

11). For example, the logo can be discerned in the

screenshot attached as Exhibit A to the Complaint. But even
viewed in the light most favo

to Plaintiff, the presence of
20

t

s logo fails to establish Cash

's volitional
fringing

rticipation in creating or releasing the allegedly

"Cash Money had nothing to

work, because Bow Wow has stated

do with, and did not authorize, placing this logo on t
mixtape's cover." (

Money's participat

establish Ca

of the work. See Brown v. Henderson
2001)

(to de

in the creation or release
257 F.3d 246, 252 (2d Cir.

evidence sufficient to allow a rea

PIa

iff "mainta

[s] that Cash Money was

lly involved" in t

recording

alleged infri

spute [i.e., t

Ballin,'" on

because "the

artist Bow Wow's track "Still

mixtape "Green Light 3"] was released on the

Cash Money I

1."(PI. Br. 11). As "evidence"

proposition,

aintiff po

unau

ng agreement wi

s to the fact

Bow Wow is si

ticated screenshots of Green Light 3's "cover" with what

CampI. Ex. A, Bi Poindexter Affirmation,

under

r this

Cash Money, and certain

appears to be Cash Money's logo affixed.

[sic]

e jury

s] favor").

to find in

to a

iff "must

at a motion for summary judgment, pIa

come forth wi

substant

self, is insufficient to

.). The logo, by

(See id. at 1, 4, 13 i
ed Sept. 27, 3013

("Poindexter Aff."), Ex. A at 1). However, Bow Wow states,
lty of perjury, that he created, self-released,
21

"

self-distribut

involved or notifi

sh Money was not

ill Ballin";
about the work; a

that he affixed t

Cash Money logo on the mixtape's cover without Cash Money's
authorization or involvement.

(Def. Br. 11-13; Declaration of

Shad Gregory Moss p/k/a "Bow Wow," sworn on March 2013 ("Moss
Declo")

3-5).

<]I<]I

iff insists t

a

1" because the producer of the alle

credible or 1

infringing musical bed underl
Bow Wow i

Bow Wow's declaration "is not

if

(Moss Decl.

fact as to the credibil
~

~L-

of New York

__________

accusations

ion that Crack Beatz might dispute

Bow Wow's account is insuffi

Kulak v. _ _
Ci

. showing

. ") ) .

him .

Plaintiff's al

________

6), has not had

re are no documents .

if producer Crack Beatz admits to, or denies t
made

<]I

lf in a court of law," (Pl. Br.

. at 13 (" [T]

12; see also

ng "Still Ballin," a person who

s as Crack Beatz,

"the opportunity to defend

y

~

ent to create a

y of Bow Wow's sworn testimony. See
88 F.3d 63, 71

("[C]onclusory statements, conjecture, or
party resisting the mot

issue of

(2d Cir. 1996)
ulation by the

will not defeat summary judgment.");
51 F.3d 14, 18
22

(2d Cir. 1995)

(summary judgment motion "will not be defeated

. on

merely

v. Maffucci
PIa

923 F.2d 979, 982 (2d

r. 1991)). Rather,

iff bears the burden to produce "affirmative evidence

warranti
dec

basis of conjecture or surmise" (citing

an adverse inference" to controvert Bow Wow's

ration. ~~--------------------~----------~-------------------Island So
er Servo
Inc. v. Microso

Corp., 413 F.3d 257, 262

(2d Cir. 2005).

Poindexter purports to
statements" in Bow Wow's

ify "conflicting

aration. In parti

ar, PIa

iff

compares Cash Money's (accurate) statement in its opening brief
that "it was Bow Wow, and not Cash Money, who created, selfreleased and self

stributed "Green Light 3" and its recording

"Still Ballin" (Def. Br. 11-12) with Bow Wow's statement in
declaration that Crack Beatz "crea

the

s

rlying musical bed

for, and produced, Still Ballin" (Moss DecL 'If 6).

(See PI. Br.

12-13). These statements, however, do not conflict but describe
a music production arrangement, whereby Crack Beatz supplied the
underlying music

and produced the track, and Bow Wow rapped

his lyrics over that music to create, and then release, the
final track.

(Moss DecL 'If'If 3, 6) i see also Note, What's In A

Song? Copyright's Un
Musi

ir Treatment Of Record Producers And S

ans, 61 Vand. L Rev. 1235, 1237 (2008)
23

(observi

that

instrumental

"[r]ecord producers often create or influence t

. implement sound

parts played by recording artists, and .
manipulation techniques
recorded composition

the recording studio that give a
s unique character").

Poindexter also contends that Cash Money's opening
brief "contra
de

cts" Bow Wow's declaration because "Bow Wow

that he was totally responsible for the inf

ngement as

Cash Money said." (Pl. Br. 12-13). Cash Money summarized Bow
Wow's own testimony t

t he, not Ca

Money, created,

distributed and released "Green Light 3" and the recording
"Still Ballin." (Def. Br. 11-12). There are no inconsistencies
in Bow Wow's dec

ration.

Plaintiff also asserts that Bow Wow
credible because it "lacks proven evidence

laration is not
support [of] the

credibility of it." (Pl. Br. 11). However, Cash Money is not
required to bolster its own witness's testimony with additional
corroborating evidence. Rather, it is Poindexter's burden to
produce "specific
issue so as to precl

s" that put the w

ness's "credibility in

summary judgment." Charles Alan Wright

et al., lOA Fed. Prac. & Proc. Civ. § 2726 (3d ed. April 2013).
Plaintiff has submitted only his "[uJnsupport
24

all

tions that

credibility is in issue," which "will not suffice." rd.; see
also Crawford-El v. Britton, 523 U.S. 574, 600 (1998)
that "if the [defendant

(holding

has made a properly supported [summary

judgment] motion, the plaintiff may not respond simply with
general attacks upon t

's credibility, but rather

de

must identify affirmative evidence from which a jury cou

find

s or her burden" (footnote

that the plaintiff has car

ed

omitted)); McCull

ndanch Union Free Sch. Dist.

F.3d 272, 280 (2d Cir.1999)

(plaintiff does not create an issue

187

of fact merely by "impugning [a witness'] honesty"); Zito v.
Fried, Frank, Harris, Shriver & Jacobson, LLP, 869 F. Supp. 2d
378, 391 (S.D.N.Y. 2012)

("Neither conclusory assertions, nor

contentions that the affidavits supporting the motion are not
credible, create a genuine issue of material fact."
omitted)). Because Poindexter points to no "specific
putting

(citations
cts"

credibility of Bow Wow's declaration in issue,

cannot withstand summary judgment.

Plaintiff's opposition has failed to create a genuine
issue of fact as to Cash Money's involvement with the alleged
infringement. Plaintiff asserted in his brief that t

sound

recording "was release[d] and exploited in all manners on t
Cash Money label." (Pl. Br. 4). This is unsupported by the
25

record, and Plaintiff's own Complaint mentions only exploitation
through "alleged free downloads" on the Internet.
id. i

7 (mentioning only

4;

stribution "on internet downloads")).

Plaintiff's assertion that "['Still Ballin'] was
allowed to be expl

(Compl. i

lIlly

ted by Cash Money (and still is),"

. Br.

11), is also unsupport

Plaintiff has attached various unauthenticated
documents to his unsigned affirmation.

(Poindexter Aff. at 1 2).

For example, Exhibit A to the affirmat

contains what he

claims are covers of three Bow Wow mixtapes, Green Light 3, 4
and 5, which appear to have been posted (by anonymous sources)
with what looks Ii

Cash Money logos.

(See

. Br. 3 (allegi

that the Green Light mixtapes are "a series of albums

all

released on the Cash Money Record label")). But the Green

ght

3 cover adds nothing to the record,
nothing to do with Plaintiff's
Money's logo is insuff
re
de

Green Light 4 and 5 have

aim.

presence of Cash

ient to establish that Cash Money

sed that work. Cash Money has submitted an additional
aration, evidencing that Cash Money had nothing to do with

any album in Bow Wow's Greenlight series.

(See Declaration of

Shad Gregory Moss, October 11, 2013, at i i 2-5). P
unauthenticated screenshots

intiff's

il to create a genuine issue of
26

fact as to Cash Money's involvement with "Still Ballin," and do
not withstand summary judgment.

The press reports attached as Exhibit E to the ef
t Cash Money was sued regarding other worKs that it did, in
, release, do not prove that Cash Money released the album
in question here.

Given the evidence shows the named Defendant
action had no involvement with the alleged in

this

ngement,

Defendant's motion for summary judgment is granted.

Conclusion

Given t

reasoning above, Defendant's motion to

dismiss and motion for summa

judgment is granted in favor of

Cash Money.

New York, NY
February l:J-' 2014

27