PK Music Performance, Inc. v. Timberlake et al

Filing 87

MEMORANDUM & OPINION: re: 60 MOTION to Dismiss filed by Will Adams, Will I Am Music, Inc., Arista US Holdings, Inc., Universal Music-Z Tunes LLC, BMG Rights Management (US) LLC, Zomba Recording LLC, Justin Timberlake, Sony Music Entertainment, I.Am.Composing, LLC, Tennman Productions, LLC, Tennman Tunes, LLC. For the foregoing reasons, Defendants' motion to dismiss Plaintiff's copyright infringement claim for all time periods prior to February 17, 2013 is DENIE D with leave to refile at a later stage in the litigation. The parties are directed to discuss a schedule for briefing the question of whether the discovery rule bars Plaintiff's claims. The Clerk of Court is directedto terminate the open motion at Document 60. SO ORDERED (Signed by Judge Vernon S. Broderick on 6/13/2017) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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PK MUSIC PERFORMANCE, INC.,
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Plaintiff,
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- against :
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JUSTIN TIMBERLAKE, et al.,
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Defendants. :
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16-CV-1215 (VSB)
MEMORANDUM & OPINION

Appearances:
Brian S. Levenson
Matthew F. Schwartz
Schwartz & Ponterio
New York, New York
Steven M. Lester
La Reddola, Lester & Associates
Garden City, New York
Counsel for Plaintiff
Marcia B. Paul
Davis Wright Tremaine LLP
New York, New York
Counsel for Defendants Justin Timberlake, Zomba Recording LLC, Sony Music Entertainment,
Tennman Tunes, LLC, and Tennman Productions, LLC
Prana A. Topper
Robert A. Jacobs
Manatt, Phelps & Phillips, LLP
New York, New York
Counsel for Defendants William Adams p/k/a will.i.am d/b/a will.i.am Music Publishing,
i.am.composing, llc, will.i.am music, inc., and BMG Rights Management (US) LLC d/b/a BMG
Sapphire Songs
Richard S. Mandel
Scott P. Ceresia
Cowan, Liebowitz & Latman, P.C.
New York, New York

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Bridget A. Crawford
Jones Day
New York, New York
Counsel for Defendant Universal Music-Z Tunes LLC
VERNON S. BRODERICK, United States District Judge:
Before me is the motion to dismiss of Defendants William Adams p/k/a will.i.am d/b/a
will.i.am Music Publishing, i.am composing, llc, will.i.am music, inc., and BMG Rights
Management (US) LLC d/b/a BMG Sapphire Songs (the “moving Defendants”), on behalf of
themselves and the other named defendants (collectively, “Defendants”). (Doc. 60.) Defendants
seek to dismiss Plaintiff PK Music Performance, Inc.’s copyright infringement claim for all time
periods prior to February 17, 2013, arguing that Plaintiff may only recover damages for the time
period dating three years back from the filing of the complaint. For the reasons that follow,
Defendants’ motion to dismiss is denied with leave to refile.
Background1
Plaintiff acquired its interest in A New Day Is Here At Last on December 2, 2015, when
Janis McQuinton, the principal of PK Music and the sister of Perry Kibble, who wrote the
musical composition, assigned her ownership in A New Day Is Here At Last as well as all
accrued copyright infringement claims to Plaintiff. (Compl. ¶¶ 18, 23, 25.)2 Perry Kibble
registered the original copyright in A New Day Is Here At Last with the United States Copyright
Office with an effective date of August 1, 1969. (Id. ¶ 20.) A recording of A New Day Is Here
At Last was made in 1969 by J.C. Davis on the New Day record label. (Id. ¶ 21.) Perry Kibble
died in 1999 and, through his will, assigned ownership of the copyright to his sister. (Id. ¶ 23.)
1
The following facts are taken from the complaint and are assumed to be true for purposes of these motions. See
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002). However, my references to the factual allegations
should not be construed as a finding as to their veracity, and I make no such findings.
2

“Compl.” refers to the Complaint and Demand for Jury Trial filed by Plaintiff on February 18, 2016
(“Complaint”). (Doc. 4.)

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McQuinton then recorded the assignment with the United States Copyright Office on February 6,
2003, and Plaintiff registered a renewal with the Copyright Office with the effective date of
January 11, 2016. (Id. ¶¶ 24, 27.) Plaintiff published A New Day Is Here At Last on December
26, 2015. (Id. ¶ 26.)
On or about September 12, 2006, Defendants commercially released the musical
composition and sound recording Damn Girl by Justin Timberlake on his album,
Futuresex/Lovesounds. (Id. ¶ 28.) Plaintiff alleges that a “substantial amount” of the music in
Damn Girl is copied from A New Day Is Here At Last, including the introduction, rhythm,
harmony, melody, and “hook,” and that Defendants “copied, reproduced, distributed, and/or
publicly performed copyrightable elements of A New Day Is Here At Last in Damn Girl, and/or
authorized the same . . . without authorization from plaintiff or Janis McQuinton.” (Id. ¶¶ 29,
32, 35.) Although the song was released in 2006, Plaintiff claims that its principal, McQuinton,
first discovered that the music in Damn Girl was allegedly copied from A New Day Is Here At
Last in August 2015. (Id. ¶ 37.) Based on the foregoing, Plaintiff brings a claim for copyright
infringement under the Copyright Act, 17 U.S.C. § 101, et seq., and seeks injunctive and
declaratory relief, as well as actual and statutory damages. (Id. ¶¶ 10, 42–50.) Plaintiff seeks
damages for infringement beginning on September 12, 2006. (Id. at 10.)
Procedural History
Plaintiff filed its Complaint on February 18, 2016. (Doc. 4.) On May 9, 2016, the
moving Defendants submitted a pre-motion letter on behalf of all Defendants in anticipation of
filing a motion to dismiss the copyright infringement claim on statute of limitations grounds for
all time periods prior to February 18, 2013, (Doc. 41), and, on May 12, 2016, Plaintiff responded
to that letter, (Doc. 44).

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On June 16, 2016, I held a pre-motion conference, during which the parties discussed the
anticipated motion as well as the limited discovery contemplated. (See Dkt. Entry June 16,
2016.) In accordance with the briefing schedule set, Defendants filed their motion to dismiss on
July 18, 2016. (Docs. 60–61.) Plaintiff then submitted its opposition papers on August 17, 2016,
(Docs. 62–64), and Defendants filed their reply papers on September 9, 2016, (Docs. 68–70).
Plaintiff further filed a motion for leave to file a sur-reply on September 12, 2016, (Doc. 71),
which Defendants opposed on September 13, 2016, (Doc. 72). On September 15, 2016, I denied
Plaintiff’s request, stating that, to the extent any issue could be considered a new argument under
the relevant case law, I would disregard that argument. (Doc. 73.)
Finally, Plaintiff also filed a number of notices of supplemental authority, (see Docs. 78,
80, 83–85), to which Defendants responded and, in some instances, supplemented with their own
new authority, (see Docs. 79, 81–82, 86).
Legal Standard
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim will have “facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. This standard demands “more than a sheer possibility
that a defendant has acted unlawfully.” Id. “Plausibility . . . depends on a host of considerations:
the full factual picture presented by the complaint, the particular cause of action and its elements,
and the existence of alternative explanations so obvious that they render plaintiff’s inferences
unreasonable.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011).

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In considering a motion to dismiss, a court must accept as true all well-pleaded facts
alleged in the complaint and must draw all reasonable inferences in the plaintiff’s favor. Kassner
v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). A complaint need not make
“detailed factual allegations,” but it must contain more than mere “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (internal
quotation marks omitted). Finally, although all allegations contained in the complaint are
assumed to be true, this tenet is “inapplicable to legal conclusions.” Id.
Discussion
The viability of Defendants’ motion to dismiss comes down to a dispute between the
parties related to how the Supreme Court’s pronouncement of a limitation of three years of
retrospective relief from the date a copyright infringement claim is filed, see Petrella v. MetroGoldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014), interacts with the Second Circuit’s adoption of the
“discovery rule” when determining recovery for claims brought under the Copyright Act, see
Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120 (2d Cir. 2014).3 At its core, Defendants’
argument amounts to a request that this Court separate the Second Circuit’s pronouncement that
the discovery rule applies, see id. at 124, from the language supporting a three-year look back,
and find, as a result, that the three-year look back prohibits Plaintiff from recovering any
damages occurring more than three years prior to the filing of the complaint regardless of when
the infringement claim accrues, (see, e.g., Defs.’ Mem. 5 (Petrella “forecloses Plaintiff from
pursuing its claim or recovering damages more than three years prior to suit”), 6 (“The foregoing

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The Copyright Act provides that civil actions for copyright infringement must be “commenced within three years
after the claim accrued.” 17 U.S.C. § 507(b). The Copyright Act separately provides that “[t]he copyright owner is
entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the
infringer that are attributable to the infringement and are not taken into account in computing the actual damages.”
Id. § 504(b).

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principles doom Plaintiff’s attempt to pursue its copyright infringement claim and recover
damages from 2006 to the present.”); Defs.’ Reply 1 (“Psihoyos reaffirmed the application of the
discovery rule for claim accrual purposes without altering the traditional three-year look back
period for damages.”), 5 (“Psihoyos holds that the discovery rule determines the accrual of
copyright infringement claims, but does not discuss the time period during which damages may
be recovered for such claims.”)).4 Neither the Second Circuit nor the Supreme Court have
explicitly addressed this issue. Indeed, while noting that the limitations period allows plaintiffs
to gain three years retrospective relief from the date the complaint is filed, the Petrella Court
simultaneously stated that it had not decided whether the injury rule or discovery rule applies,
and did not address how application of either rule would interact with the three years
retrospective relief limitation. See Petrella, 134 S. Ct. at 1969 n.4, 1970, 1973.
In any event, Defendants also note that Plaintiff’s “purported delayed discovery of the
claims at issue” is “implausible,” and provide a brief summary of the reasons why Plaintiff
should have discovered the alleged infringement at an earlier date. (Defs.’ Mem. 3 n.2.)
Because I find that this issue may be case dispositive and, if found in Defendants’ favor, moot
Defendants’ argument as to the issue of damages, I decline to consider the question raised by
Defendants in their motion at this juncture.
Conclusion
For the foregoing reasons, Defendants’ motion to dismiss Plaintiff’s copyright
infringement claim for all time periods prior to February 17, 2013 is DENIED with leave to
refile at a later stage in the litigation. The parties are directed to discuss a schedule for briefing

4
“Defs.’ Mem.” refers to the Memorandum of Law of Defendants in support of Motion to Dismiss. (Doc. 61.)
“Defs.’ Reply” refers to the Reply Memorandum of Law of Defendants in Support of Motion to Dismiss. (Doc. 68.)

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the question of whether the discovery rule bars Plaintiff’s claims. The Clerk of Court is directed
to terminate the open motion at Document 60.
SO ORDERED.

Dated: June 13, 2017
New York, New York

______________________
Vernon S. Broderick
United States District Judge

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