Smith v. Thomas

Filing 19

ENTRY AND ORDER denying 15 Plaintiff's Motion for Summary Judgment. Signed by Judge Thomas M. Rose on 8-3-2017. (de)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ROBERT L. SMITH JR.,

:
Case No. 3:16-cv-168
:
Plaintiff,
:
Judge Thomas M. Rose
:
v.
:
:
BERNARD THOMAS,
:
:
Defendant.
:
______________________________________________________________________________
ENTRY AND ORDER DENYING PLAINTIFF ROBERT L. SMITH JR.’S
MOTION FOR SUMMARY JUDGMENT (DOC. 15)
______________________________________________________________________________
This case is before the Court on the Motion for Summary Judgment (Doc. 15) filed by
Plaintiff Robert L. Smith Jr. (“Plaintiff”). Plaintiff alleges that Defendant Bernard Thomas
(“Defendant”) infringed Plaintiff’s copyright in a song called “Looking for a Country Girl.” (Doc.
15 at 1.) Defendant opposes the Motion for Summary Judgment. (Doc. 18.) Plaintiff declined to
file any reply to Defendant’s opposition, and the time to do so has expired. The motion is therefore
ripe for the Court’s review. For the reasons below, the Court DENIES the Motion for Summary
Judgment (Doc. 15).
I.

BACKGROUND

Plaintiff, who is professionally known as “Bigg Robb,” is a musical artist and songwriter.
(Doc. 15-4 at 2.) He wrote a song called “Looking for a Country Girl,” which appeared on his
album entitled “Think Bigg.” (Id.; Doc. 1-1.) Plaintiff registered a copyright in “Looking for a
Country Girl” with the United States Copyright Office. (Doc. 1-1.) He released the album “Think
Big” on compact disc on March 12, 2012. (Doc. 15-4 at 2.)
Plaintiff asserts that, around March 5, 2014, he became aware that Defendant had

“reproduced, distributed, and/or publicly performed . . . a substantial portion of” the song
“Looking for a Country Girl” without Plaintiff’s authorization in a public performance at an event
called the Southern Soul Blues Fest. (Id.) More specifically, Plaintiff claims that Defendant used a
portion of or “sample” from the song “Looking for a Country Girl” in Defendant’s song called
“Hell 2 the Naw Naw.” (Id. at 2-3.) In May 2015, through a music publishing administrator,
Plaintiff notified Defendant that “Hell 2 the Naw Naw” infringed Plaintiff’s copyright in “Looking
for a Country Girl.” (Id. at 3.) On October 6, 2015, Plaintiff brought this copyright infringement
action against Defendant.
In a one-page letter to the Court, Defendant asserts that Plaintiff gave him permission to
use “a beat” from one of his songs. (Doc. 18 at 1.) He further asserts that Plaintiff stole the same
beat from two of Marvin Gaye’s songs, namely “Sexual Healing” and “Let’s Get It On.” (Id.)
Neither of the parties is represented by counsel in this case.
II.

ANALYSIS

A district court “shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A dispute of material fact is genuine so long as “the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Ford v. Gen. Motors Corp., 305
F.3d 545, 551 (6th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“The district court, and this Court in its review of the district court, must view the facts and any
inferences reasonably drawn from them in the light most favorable to the party against whom
judgment was entered.” Kalamazoo Acquisitions, L.L.C. v. Westfield Ins. Co., Inc., 395 F.3d 338,
342 (6th Cir. 2005).
Here, neither of the parties have submitted much in the form of admissible evidence for the
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Court’s consideration. The Court may take judicial notice of Plaintiff’s copyright registration,
which is an exhibit to the Complaint. Nothing else submitted by the parties constitutes admissible
evidence. Neither Plaintiff nor Defendant submitted an affidavit or declaration supporting the
assertions in their papers. The failure to present admissible evidence alone can be fatal to a motion
for summary judgment. See Fed. R. Civ. P. 56(c). Nonetheless, even putting aside the lack of
admissible evidence, the parties’ assertions plainly demonstrate that genuine issues of material fact
preclude the entry of summary judgment in this case. Plaintiff asserts that Defendant’s use of a
sample from “Looking For a Country Girl” was unauthorized. (Doc. 15-4 at 2.) Defendant asserts
that he was given permission. (Doc. 18.) Plaintiff claims that he is the sole author of his
copyrighted work, but Defendant contends that the portion that he allegedly used without
authorization was taken from works by Marvin Gaye. (Doc. 15-4 at 2; Doc. 18.) If either of
Defendant’s assertions is proven at trial, it would establish a valid defense to Plaintiff’s copyright
infringement claim. These genuine issues of material fact cannot be resolved by the Court as a
matter of law. Plaintiff’s Motion for Summary Judgment will therefore be denied.
III.

CONCLUSION

For the reasons above, the Court DENIES Plaintiff’s Motion for Summary Judgment
(Doc. 15).
DONE and ORDERED in Dayton, Ohio, this Thursday, August 3, 2017.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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