House of Bryant Publications, L.L.C. v. A&E Television Networks

Filing 7

MEMORANDUM in Support of 6 MOTION to Dismiss for failure to state a claim filed by A&E Television Networks. (Attachments: # 1 Supplement Unpublished Case - Payne, # 2 Supplement Unpublished Case - Phoenix Hill)(Harvey, Robb)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION HOUSE OF BRYANT PUBLICATIONS, L.L.C., Plaintiff, v. A&E TELEVISION NETWORKS, Defendant. ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 3:09-0502 Judge Trauger

DEFENDANT AETN'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Defendant A&E Television Networks ("AETN"), pursuant to Fed. R. Civ. P. 12(b)(6) and Local Rule 7.01 (a), respectfully moves this Honorable Court to dismiss the Complaint against it for failure to state a claim upon which relief may be granted. As demonstrated in its simultaneously-filed Memorandum, Plaintiff's cause of action for copyright infringement should be dismissed as a matter of law pursuant to the fair use doctrine, codified at 17 U.S.C. § 107. AETN respectfully submits that the incorporation of documentary footage from Neyland Stadium during a University of Tennessee-Knoxville ("UTK") football game which captures twelve seconds of background noise including the UTK marching band playing "Rocky Top," in the context of the forty-eight minute documentary television show and its description of the culture of Knoxville, Tennessee, constitutes fair use as a matter of law. This unusually clear example of fair use makes this case particularly appropriate for a Rule 12(b)(6) motion.

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3005907

For the reasons set forth more fully in their Memorandum of Law, AETN respectfully requests that this Court GRANT its Motion to Dismiss for failure to state a claim. In connection with this Motion, AETN has simultaneously filed a Request for Judicial Notice with materials referred to in Plaintiff's Complaint. Respectfully submitted, /s/ Robb S. Harvey
Robb S. Harvey (Tenn. BPR No. 011519) Heather J. Hubbard (Tenn. BPR No. 023699) WALLER LANSDEN DORTCH & DAVIS, LLP 511 Union Street, Suite 2700 Nashville, TN 37219 Phone: [phone]

Facsimile: [phone] E-mails: [e-mail] and [e-mail] Counsel for Defendant CERTIFICATE OF SERVICE I hereby certify that the foregoing Motion was served by hand-delivery and was electronically filed with the Court on this 11th day of August, 2009, to the following counsel of record: Richard S. Busch King & Ballow 315 Union Street, Suite 1100 Nashville, TN 37201 /s/ Robb S. Harvey Counsel for Defendants

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