House of Bryant Publications, L.L.C. v. A&E Television Networks
Filing
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RESPONSE in Opposition re 6 MOTION to Dismiss for failure to state a claim filed by House of Bryant Publications, L.L.C.. (Attachments: # 1 Appendix Case law, # 2 Appendix Case law)(Busch, Richard)
House of Bryant Publications, L.L.C. v. A&E Television Networks
Doc. 17
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
House of Bryant Publications, L.L.c., Plaintiff, v. A&E Television Networks, Defendant. ) ) ) ) ) ) ) ) ) ) )
Civil Action No. 3:09-0502 Judge Trauger JURY DEMAND
PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS Plaintiff, House of Bryant, L.L.C. ("House of Bryant") responds to the Motion to Dismiss of defendant A&E Television Networks ("AETN"). should be denied. I. INTRODUCTION As discussed below, defendant's Motion
House of Bryant is the administrator of the rights of Dane B. Bryant, Del R. Bryant and the Estate of Felice Bryant, owners of a composition entitled "Rocky Top." Doc. No. 1, ~~ 8 and 9. The Bryants have compiled with the laws regarding registration of the copyright of this work. Id., ~ 9. House of Bryant actively licenses "Rocky Top" for live performances and
synchronization in audio-visual works. Id., ~ 10. House of Bryant has alleged that, along with production company Jupiter Entertainment, defendant created an episode of the program City Confidential entitled "Episode #122-Knoxville, TN: Phantom Hitman." ("Phantom Hitman"). Id., ~ 11. One scene in "Phantom Hitman"
contains a "lengthy and recognizable"
portion of "Rocky Top" played by the University of
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Tennessee's "Pride of the Southland Band." Id., ~ 13. Defendant used this portion of "Rocky Top" without license from House of Bryant . Id, ~ 15. House of Bryant filed this lawsuit on June 3, 2009. instant "Motion to Dismiss" on August 11,2009. Doc. NO.7. Defendant's Motion to Dismiss does not contest the above allegations, which give rise to a prima facie case of copyright infringement.' Feist Publ 'ns, Inc. v. Rural Tel. Servo Co., 499 two elements must be proven: Doc. No. 1. Defendant filed the
U.S. 340, 361 (U.S. 1991) ("To establish infringement,
(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are origina1.") Rather, defendant moves this court to dismiss this case because it claims its use of "Rocky Top" is "fair use as a matter oflaw." Defendant's Doc. No.7, p. 1.
fair use defense was created only after defendant did not want to pay a
licensing fee require by House of Bryant. Defendant knows that discovery will prove fatal to its ad hoc defense, so it now moves this Court to dismiss the case without hearing any evidence at al1. Defendant has not proven its fair use defense, and this Court should deny the motion. II. A. ARGUMENT
Defendant has Misstated and Misapplied the Appropriate Legal Standard At the heart of defendant's motion is a procedural sleight-of-hand-first, defendant
attempts to have matters outside the complaint incorporated
by judicial reference to avoid
converting its motion to dismiss into a motion for summary judgment under Federal Rule of Civil Procedure 12(d). Next, emboldened by language in recent Supreme Court decisions,
1 Defendant makes reference to a potential challenge as to the proper party-in-interest but does not seriously contest the Bryants' ownership of the composition. Doc. No.7, p. 2, n. 1. Likewise, defendant claims House of Bryant has not attached any copyright certificate to the Complaint, but House of Bryant has included the Copyright Numbers in question in its Complaint, Doc. No. 1, ~ 9, and the certificates are public record documents available online at .
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defendant urges the Court to disregard "conclusory" substitute defendant's own interpretation of the facts.
statements made in the Complaint and
Defendant attempts to create a procedural catch-22, urging the Court to ignore what House of Bryant has pleaded, but, at the same time, attempting to ensure no actual factual discovery takes place. Defendant cannot reasonably claim there are no issues of material fact such that summary judgment can be granted; however, the moving party faces a lower burden on summary judgment than it does moving to dismiss. McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) ("A party endeavoring to defeat a lawsuit by a motion to dismiss for failure to state
a claim faces a higher burden than a party proceeding on a motion for summary judgment.") (emphasis added); see also 11 James Wm. Moore, Moore's Federal Practice § 56.30[3][c] (3d ed. 2008). Thus, defendant is attempting to take advantage of confusion surrounding changes to the Motion to Dismiss standard to have this case thrown out of court. Based on defendant's own procedural wrangling, it
IS
clear they believe summary
judgment would be inappropriate at this stage in the litigation. Motion to Dismiss would be equally inappropriate. 1.
For even greater reason, then, a
Defendant's Motion should be judged under the Rule 56 standard, which it cannot meet. objection to defendant's request for judicial notice,
As argued in House of Bryant's contemporaneously-filed
herewith, this Court should not take judicial notice of the television
program "Phantom Hitman." The Federal Rules provide that when matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Fed. R. Civ. P. 12(d).
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Summary judgment is only proper if "there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 US. 317 (1986). The "genuine issue of material fact" need not be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial. Anderson v. Liberty Lobby, Inc., 477 US. 242, 248-49 (1986). This Court must construe the evidence produced in the light most favorable to House of Bryant, as the non-moving party, drawing all justifiable inferences in its favor. Id at 255. Thus, "if reasonable minds could differ as to the import of the evidence," summary judgment is not proper. See id. at 250. It is well-established that the plaintiff must recerve "a full opportunity to conduct
discovery" to be able to successfully defeat a motion for summary judgment. See Anderson, 477 US. at 257; see also Celotex Corp., 477 US. at 322 ("the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial"); White's Landing Fisheries, Inc. v. Buchholzer, 29 F.3d 229, 231-32 (6th Cir. 1994) ("[in light of Anderson and Celotex,] a grant of summary judgment is improper if the non-movant is given an insufficient opportunity for discovery"). In the instant case, no discovery has taken place. As will be discussed below, defendant's motion merely disagrees with the factual assertions of the Complaint. stage, without any record or testimony, would be improper? Summary judgment at this
Plaintiff intends to move for summary judgment only after sufficient discovery has been taken to establish defendant's copying and other facts relevant to rebut whatever affirmative defenses are raised in defendant's answer.
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2.
Twombley and Iqbal do not raise the "Motion to Dismiss" standard above the Rule 56 summary judgment standard.
As discussed above, defendant's Motion should be denied under the summary judgment standard, which is more favorable to defendant's cause. For even greater reason, defendant's Motion fails under the Motion to Dismiss standard. Defendant relies principally on an improper reading of two recent Supreme Court cases, Bell Atlantic Corp. v. Twombley, 550 US. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), to raise the pleading standard far beyond the requirements of the Federal Rules. As was the standard before, under both Twombley and Iqbal, "to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face." Iqbal, 129 S. Ct. at 1949 (citing Twombley, 550 US. at 570)
(emphasis added). The Sixth Circuit, in explaining the new standard compared with the previous "no-set-of-facts" standard of Conley v. Gibson, 355 US. 41, 78 (1957), wrote, "Indeed, while this new Iqbal/Twombley standard screens out the 'little green men' cases just as Conley did, it is Courie v.
designed to also screen out cases that, while not utterly impossible, are' implausible."
Alcoa Wheel & Forged Prods., No. 07-4440, 2009 US. App. LEXIS 18561, at *6 (6th Cir. Aug. 18, 2009) (emphasis added). Although higher than the Conley standard, the Sixth Circuit has also cautioned against raising the pleading bar too high: In Erickson v. Pard us, 551 US. 89, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007), decided two weeks after Twombly [... ] the Supreme Court affirmed that "Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief.' Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Id at 2200 (quoting Twombly, 127 S. Ct. at 1964). [ ... ] We read the Twombly and Erickson decisions in conjunction with one another when reviewing a district court's decision to grant a motion to
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dismiss for failure to state a claim or a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12. Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291,294 (6th Cir. 2008). 3. Defendant's motion impermissibly seeks to lower the bar for dismissal.
Central to defendant's attempted procedural gambit is the statement in Iqbal that "[T]he Federal Rules do not require courts to credit a complaint's reference to the factual context." conclusory statements without
Iqbal, 129 S. Ct. at 1954. While House of Bryant does not
contest that proclamation, defendant simply substitutes its own factual and legal claims in place of what House of Bryant has pleaded in the Complaint. For example, defendant urges the Court
to "disregard" a portion of paragraph 13 of the Complaint which states "One scene in 'Phantom Hitman' features a lengthy and recognizable portion of the song 'Rocky Top' as played by the University of Tennessee's 'Pride of the Southland' Marching Band." Doc. No.7, p.2. Instead of a "lengthy and recognizable portion," defendant's "fleeting, indistinct and non-prominent." make the factual allegation that its use is
Doc. No.7, p. 11. Defendant has merely substituted
its own allegations for those of the plaintiff. In a motion for summary judgment, both parties would be required to put forth the evidence they had, and any conflict would be decided in favor of the non-movant. Anderson, supra. See Celotex;
Defendant, citing Iqbal, attempts to abrogate that procedural protection.,
urging the Court merely to disregard what House of Bryant has pleaded (which the Court must accept as true) and instead adopt their version of the facts. Doc. No.7, p. 12. What defendant advocates would impermissibly lower the bar for a motion to dismiss. Rather than having to rebut House of Bryant's factual allegations as in a motion for summary judgment, defendant could merely substitute its own allegations and argument and ask the Court to disregard the House of Bryant's "conclusory" statements.
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B.
Defendant's "Fair Use" Analysis is Legally Incorrect and Factually Unsupported. House of Bryant does not disagree with defendant's recitation of the law regarding fair
use. Initially developed by the courts, the doctrine was codified at 17 US.c.
§ 107 in 1976.
Princeton Univ. Press v. Michigan Doc. Servs., 99 F.3d 1381, 1385 (6th Cir. 1996). Section 107 provides: The fair use of a copyrighted work, including such use by reproduction in copies . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. . . . 17 US.C. § 107; Princeton Univ. Press, 99 F.3d at 1385. The Supreme Court has stated that the fourth fair use factor may be the most important. Harper & Row Publishers, Inc. v. National Enters., 471 US. 539, 566 (1985). 1. The AETN program commercial work. "Phantom Hitman" is a non-transformative,
The first fair use factor is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." 17 US.C. § 107(1).
Princeton Univ. Press, 99 F.3d at 1385. In evaluating the purpose and character of the use of the work at issue, a court considers whether the new work is "transformative" and whether the use of that work is for commercial or noncommercial purposes. Inc., 491 F.3d 574, 582 (6th Cir. 2007). Zomba Enters. v. Panorama Records,
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AETN has made a commercial, non-transformative
use of the song "Rocky Top" by
simply synchronizing House of Bryant's composition with their television program, which they broadcast on their cable network for profit. House of Bryant pleads both of the facts in the
Complaint and facts disclosed in discovery will show this point. Doc No. 1, ~~ 19, 20, 28, 29. As such, this factor favors House of Bryant. a. "Phantom Hitman" is a commercial work and defendant does not dispute that point.
Under the first prong of fair use, a court will consider whether a work is made for commercial or noncommercial purposes. Zomba, supra. The Supreme Court has stated, "[E]very commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright." Sony Corp. of Am. v. Universal City distinction is
Studios, 464 U.S. 417, 451 (1984).3 Further, "the crux of the profit/non-profit
whether the user stands to profit from exploitation of the copyrighted material without paying the customary price." Harper & Row Publishers, Inc. v. National Enters., 471 U.S. 539, 562 (1985) (emphasis added). Deciding a case under this first factor for the purposes of a preliminary injunction, a court in the Southern District of New York observed, "It appears that plaintiff normally charges customers for the privilege of copying portions of its database and accordingly, it is likely that plaintiffs would prevail on the first factor of the fair use defense." 689 F. Supp. 221, 229 (S.D.N.Y. 1988). Telerate Sys., Inc. v. Caro,
House of Bryant has pleaded, and will prove, it
normally charges to synchronize "Rocky Top" in audio-visual works. Doc. No. 1, ~ 10. In their motion, AETN does not contest that their use is noncommercial. See Doc. No.7,
p. 9. Thus, the parties do not reasonably dispute that "Phantom Hitman" is a commercial work.
3 Criticism of this point certainly exists, but no court or commentator has sought to abolish the distinction. B. Nimmer and David Nimmer, Nimmer on Copyright § 13.05[A][1][c] (2008).
4 Melvin
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b.
"Phantom Hitman" is not a "transformative" use of "Rocky Top" distinction, a court will consider whether
In addition to the commercial/noncommercial
the new work is a "transformative" use. To determine whether the new work is "transformative" the court considers whether the allegedly infringing work "merely supersedes" the original work "or instead adds something new, with a further purpose or different character, altering the first with new meaning or message." Castle Rock Entm 't v. Carol Publ'g Group, 150 F.3d 132, 141
(2d Cir. 1998) (internal punctuation omitted). "If the secondary use adds value to the originalif [copyrightable expression in the original work] is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings-this is the very
type of activity that the fair use doctrine intends to protect for the enrichment of society." Id Defendant's use of "Rocky Top" adds nothing to it. House of Bryant licenses the song to third parties for use in various settings, including synchronization with audio-visual images
(television and movies). Doc. No. 1, ~ 10. Defendant has synchronized the song in connection with images in their television program. and defendant's use are identical. Defendant spends much of this portion of their Motion attempting to argue their use of the song "Rocky Top" somehow makes critical comment on Knoxville, the University of Tennessee, or "Rocky Top," itself. Doc. No.7, p. 10. This discussion is misplaced. In discussing parody under the first prong of the fair use defense, the Supreme Court has said, "For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works." Campbell v. Acuff-Rose Music, 510 U.S. 569, 580 (1994) (emphasis added). The same standard Id., ~ 13, 15. Thus, House of Bryant's licensed uses
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applies in considering defendant's work in the fair use setting. Blanch v. Koons, 467 F.3d 244, 255 (2d Cir. 2006) ("We have applied Campbell in too many non-parody cases to require citation for the proposition that the broad principles of Campbell are not limited to cases involving parody.") Viewed in the light most favorable to House of Bryant, as it must be, if it is viewed at all, "Phantom Hitman" has nothing to do with the University of Tennessee or the game of football-the Knoxville. subjects of the "documentary" have no connection to either, other than living in The
Football is hardly referenced after the scene in which "Rock Top" is played.
"fair use" analysis simply does not embrace defendant's
use to "illustrat[ e] an aspect of the
culture of Knoxville, Tennessee and the experience of attending a UTK football game at Neyland Stadium." Doc. No.7, p. 8. Application of this factor also illustrates yet again why this matter is inappropriate for a motion to dismiss, since the parties do not agree on the purpose and characterization of defendant's use of "Rocky Top." Next, defendant claims it has created a "commentary upon the notions presented by the song itself." Doc. No.7, p. 9. Defendant quotes sections of the lyrics of 'Rocky Top" and
fantasizes about how "Phantom Hitman" criticizes the notions therein. Of course, defendant did not actually use the lyrics in "Phantom Hitman," which contains only the instrumental portion of "Rocky Top." Defendant makes no attempt to demonstrate how the instrumental portion of
"Rocky Top" it actually used is criticized in "Phantom Hitman.,,4
Several times in their motion defendant refers to their use of "Rocky Top" as "actual noise occurring within the stadium" and "background noise." E.g., Doc. No.7, p. 4, 11. This is completely disingenuous. House of Bryant expects discovery to show that 1) defendant selected the portion used out of many hours of football game footage, specifically for the presence of "Rocky Top" therein, and 2) defendant synchronized the audio footage of "Rocky Top" with footage from the game when the song was not actually being played in the stadium. This second point is clear because there are several jumps in the action while "Rocky Top" is playing in "Phantom Hitrnan" and, of course, NCAA rules prohibit bands from playing music when the ball is in play. ("Persons subject to the rules, including bands, shall not create any noise that prohibits a team from hearing its signals (Rule 1-1-6)." The NCAA football rulebook is available for download at
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