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)

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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

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