Poindexter v. Cash Money Records
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
13 Civ. 1155
-againstCASH MONEY RECORDS,
A P PEA RAN C E S:
153-27 120 Avenue
Jamaica, NY 11434
ATTORNEYS FOR DEFENDANT
SHAPIRO, ARATO & ISSERLES LLP
fth Avenue, 40 th Floor
New York, NY 1010
Cynthia S. Arato, Esq.
James Darrow, Esq.
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.
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"
ght 3," by t
artist Shad Gregory Moss,
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
Gonna Pack Up)," which infringes Plaintiff's alleged rights in
The Complaint alleges that Poindexter co-wrote the
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.
10), but that "a written agreement exists with
the copyright owner Warner/Chappell[Music]"
company - "granting [Poindexter] t
such a complaint as this,"
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.
Cash Money is alleged to have re
sed the reco
4 (alleging that "Cash Money
sampled" "Love Gonna Pack Up" "into it's [sic]
'Still Ballin'''); id.
6 (that '[tJhe illegal usage is that
Cash Money did not acquire authorization, to use the legal
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 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."
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.
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),"
inging Plaintiff's alleged copyrights
works and that Cash Money released and/or
"Still Ballin" on the Internet and that "Still
Ballin" is Cash Money's recording.
4, 6 7).
According to Bow Wow, Cash Money was not involved with
and did not participate in the creation, recording, production,
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
" 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
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),
in the complaint are accepted as true,
all inferences are drawn
12 F.3d 1170,
is not whether a
pleader. Mills v.
plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the claims
236, 94 S. Ct. 1683, 40 L. Ed. 2d 90
12 (b) (6),
accepted as true,
'state a claim to relief that is plaus
Ed. 2d 868
on its face.'1t Ashcroft v.
1937, 1949, 173 L.
(quoting Bell Atl.
factual allegations of a complaint as true, it is "'not bound to
U.S. at 555).
The 12 (b) (6) Motion Is Granted
Approximately 22 months ago, in Poindexter v. EMI
No. 11 Civ. 559(LTS) (JLC) , 2012 WL 1027639
(S.D.N.Y. Mar. 27, 2012), the Honorable Laura Taylor Swa
fringement claim brought by
against EMI Record Group Inc. Judge Swain held in EMI 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
st him in a
449 U.S. 90, 94
("once a court has decided an issue of fact or law necessary to
its judgment, that decision may precl
issue in a suit on a
ion of t
fferent cause of action invo
first case."). A p
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
(3 ) t
party had a full and
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,
337 F.3d 253, 258 & n.5
69 (2d Cir. 2006)
2003) ) .
Even though a plaintiff's factual allegations must be
rences drawn in the
aintiff's favor on a motion to dismiss,
will nonetheless bar a plaintiff's
"factual allegations have
aim when the plaintiff's
litigation." Jacobs v. Law Offices of Leona
Civ. 7607, 2005 WL 1844642, at *3 (S.D.N.Y. July 29, 2005); see
. v. N.Y.C. Econ. Dev. Co
08 Civ. 3810(RJS), 2011 WL 2226625, at *3 (S.D.N.Y. June 1,
("[IJt is well sett
that a court may
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 
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
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.
(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)
effect given to prior decision that plaintiff had no valid
s here, Pia
defendant record 1
iff alleged in EMI that t
1 had released a recording that "sampled" a
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,
"1998 Agreement"), which
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
on the agreement's atta
See EMI, 2012 WL 1027639, at *1, *3;
Ex. 1 at 9). One of those Masters (recording number one on the
exhibit) was titled "Thin
., 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
is the recording at issue here.
at 9 (listing "Love Gonna Pack [U]p")).
As Judge Swain observed in EMI, the 1998 Agreement
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
works. See Wolk v. Kodak
741 ( S . D. N . Y. 2012)
("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
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
Dec. 23, 2008)
(applying collateral estoppel to preclude plaintiff's ownership
claim in light of prior determination where, "[a]lthough the
s Court involves a different property from
at issue before the
ior courtJ," the claimed ownership rights
in both proceedings were bas
Because Plaintiff's ownership of his recording was a
necessary element of his in
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
on the merits.
smissal in EMI constitutes a final and
binding judgment that PIa
ingement of t
iff does not have standing to sue
recordings governed by t
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
s "a written agreement w
owner Warner/Chappell granting [him] t
a complaint as this," (Compl.
h the copyright
right to personally
agreement with Plaintiff is a publishing agreement concerning
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
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.").
iff has sought to avoid collateral estoppel
asserts, "the sound recording issue is not the same
in this case as in EMI." (Memorandum Of Law In Opposition To
Complaint And For Summary
Defendant's Motion To Dismiss
. Br.") at 6); see Ball v. A.a.
69 (2d Cir. 2006)
"the identical issue was raised in a previous
only his "ri
," whereas \\
on royalty rights."
to sue for reasons of copyright
sound recording issue in this case is
. Br. 6).
Plaintiff appears to rely on Sect
(first element of collateral estoppel
proceeding,,).l Plaintiff has asserted that t
izes that ei
cial" owners of an exclusive
r "legal" or
under a copyr
infringement. See 17 U.S.C. § 501(b)
Plaintiff grants that "the resolution of sound recording
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).
legal or beneficial owner of an exclusive right under a
copyright is entitled . .
stitute an action for any
infringement of that particular right committed while
is the owner of it"). Under
anyone who holds tit
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, --~----~
646 F. Supp. 2d 622,
payment of royalties
Harris v. Simon & Schuster, Inc.,
632 (S.D.N.Y. 2009)
. qualifies as a
standing to sue
copyrights, and did not
sed on his being a "benefic
However, Judge Swain found
party to a 1998 agreement (the "1998
ng a right to a "beneficial
erest"); id. at 1, 3 (same);
eked standing to sue for infringement as a
"legal" owner of
PI.'s Br. 5
rights in the Work in exchange
for copyright purposes). Plaintiff appears to cont
held only that
recordings co-produced by Plaintiff,
EMI that Plaintiff was a
") with Atlantic
ownership of ten sound
luding "Love Gonna Pack
(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
red and rejected the argument
advanced here, namely, that "his continued entitlement to
royalties makes him a bene
*3. As Judge Swa
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
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
infringement based upon the sound recording "Love Gonna Pack
Also, the Plaintiff attempts to distinguish EMI on the
ground that even after that
for failure to pay production royalt
he retains a "right to sue
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,
rty to the 1998
into this contract.
(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
y is not a
breach of contract c
t entity." Hotel
rius B.V. v. PRT
., 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)
0133(GBD), 2004 WL 2793213, at *4
a contractual relationship, there can be
no alleged breach."). Plaintiff's effort to convert his
into a breach of contract claim therefore
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
"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 element11 of his claim.
. 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
of offensive collateral estoppel). Cash Money does not contend
Given the reasoning above, Plaintiff is collaterally
estopped for lack of standing, and Defendant's motion to dismiss
The Motion For Summary Judgment Dismissing The Complaint Is Granted
As the Second Circuit has explained, while
pleadings are read "liberallyll and
rpreted " to raise the
strongest arguments that they suggest," a court's "application
does not relieve plaintiff of his
irements necessary to defeat a motion for
duty to meet the
summary judgment." Jorgensen v. Epic/Sony Records,
50 (2d Cir. 2003)
s alleged that Cash Money
purportedly released the re
dispute, the evidence
Money had no involvement in this
work. A defendant cannot be
infringement when it did not parti
infringing acts. As this Court has
liability" for copyright in
351 F.3d 46,
conduct' that 'causes' the infri
840 F. Supp. 2d
at 742 (citing
F.3d 121, 130-31 (2d Cir. 2008). Where"
to establish any volitional conduct," a
Plaintiff has failed
defendant "[is] not liable for direct infri
judgment should be granted in favor of the
nt," and summary
. Id. at
743; see also Zappa v. Rykodisc, Inc., 819 F. Supp. 2d 307, 316
("Here, there is no evidence establishing
liability, since ZFT cannot point to volitional conduct by
caused the distribution. Rather, Apple, not Ryko,
these tracks."). The Second Circuit has stres
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.
(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)
211 F. Supp. 2d 450, 472
intiffs "have brought forward
absolutely no evidence suggesting that Kodak itself engaged in
olated any of the exclusive rights grant
copyright holders .
. plaintiffs cannot hold Kodak liab
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.
292 F. Supp. 39, 41
(granting summary judgment in favor of individual
fendant's evidence showed they "did not
participate in [corporate defendant's] copyright infringement").
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.
(See Moss Declo
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
s logo fails to establish Cash
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." (
of the work. See Brown v. Henderson
in the creation or release
257 F.3d 246, 252 (2d Cir.
evidence sufficient to allow a rea
[s] that Cash Money was
lly involved" in t
spute [i.e., t
artist Bow Wow's track "Still
mixtape "Green Light 3"] was released on the
Cash Money I
1."(PI. Br. 11). As "evidence"
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,
Cash Money, and certain
appears to be Cash Money's logo affixed.
to find in
at a motion for summary judgment, pIa
come forth wi
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,
involved or notifi
sh Money was not
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
iff insists t
1" because the producer of the alle
credible or 1
infringing musical bed underl
Bow Wow i
Bow Wow's declaration "is not
fact as to the credibil
of New York
ion that Crack Beatz might dispute
Bow Wow's account is insuffi
Kulak v. _ _
. ") ) .
6), has not had
re are no documents .
if producer Crack Beatz admits to, or denies t
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
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
(2d Cir. 1996)
ulation by the
will not defeat summary judgment.");
51 F.3d 14, 18
(2d Cir. 1995)
(summary judgment motion "will not be defeated
923 F.2d 979, 982 (2d
r. 1991)). Rather,
iff bears the burden to produce "affirmative evidence
basis of conjecture or surmise" (citing
an adverse inference" to controvert Bow Wow's
ration. ~~--------------------~----------~-------------------Island So
Inc. v. Microso
Corp., 413 F.3d 257, 262
(2d Cir. 2005).
Poindexter purports to
statements" in Bow Wow's
aration. In parti
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
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
and produced the track, and Bow Wow rapped
his lyrics over that music to create, and then release, the
(Moss DecL 'If'If 3, 6) i see also Note, What's In A
Song? Copyright's Un
ir Treatment Of Record Producers And S
ans, 61 Vand. L Rev. 1235, 1237 (2008)
"[r]ecord producers often create or influence t
. implement sound
parts played by recording artists, and .
the recording studio that give a
s unique character").
Poindexter also contends that Cash Money's opening
cts" Bow Wow's declaration because "Bow Wow
that he was totally responsible for the inf
Cash Money said." (Pl. Br. 12-13). Cash Money summarized Bow
Wow's own testimony t
t he, not Ca
distributed and released "Green Light 3" and the recording
"Still Ballin." (Def. Br. 11-12). There are no inconsistencies
in Bow Wow's dec
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
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
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
has made a properly supported [summary
judgment] motion, the plaintiff may not respond simply with
general attacks upon t
's credibility, but rather
must identify affirmative evidence from which a jury cou
s or her burden" (footnote
that the plaintiff has car
ndanch Union Free Sch. Dist.
F.3d 272, 280 (2d Cir.1999)
(plaintiff does not create an issue
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
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
recording "was release[d] and exploited in all manners on t
Cash Money label." (Pl. Br. 4). This is unsupported by the
record, and Plaintiff's own Complaint mentions only exploitation
through "alleged free downloads" on the Internet.
7 (mentioning only
stribution "on internet downloads")).
Plaintiff's assertion that "['Still Ballin'] was
allowed to be expl
ted by Cash Money (and still is),"
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.
. Br. 3 (allegi
that the Green Light mixtapes are "a series of albums
released on the Cash Money Record label")). But the Green
3 cover adds nothing to the record,
nothing to do with Plaintiff's
Money's logo is insuff
Green Light 4 and 5 have
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
il to create a genuine issue of
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
Defendant's motion for summary judgment is granted.
reasoning above, Defendant's motion to
dismiss and motion for summa
judgment is granted in favor of
New York, NY
February l:J-' 2014
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