Bowen v. Paisley et al

Filing 58

MEMORANDUM signed by District Judge Aleta A. Trauger on 12/3/2013. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
AMY ELIZABETH CONNOR BOWEN,

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Plaintiff,
v.
BRAD DOUGLAS PAISLEY, et al.,
Defendants.

Case No. 3:13-cv-0414
Judge Aleta A. Trauger

MEMORANDUM
The defendants have filed a Motion to Dismiss (Docket No. 50), to which the plaintiff
filed a Response in opposition (Docket No. 56), and the defendants filed a Reply (Docket No.
57). For the reasons stated herein, the defendants’ Motion to Dismiss will be denied.
BACKGROUND
I.

Procedural History
On May 5, 2013, plaintiff Amy Elizabeth Connor Bowen filed this lawsuit, in which she

alleges that the defendants, including popular country music singers Brad Paisley and Carrie
Underwood, violated her copyright interests in the song “Remind Me,” a song that Bowen
copyrighted and recorded. (See Docket No. 1, Compl.) On July 2, 2013, Bowen filed an
Amended Complaint as a matter of right under Fed. R. Civ. P. 12(a)(1)(B), alleging a single
count of copyright infringement. (Docket No. 39, Am. Compl.)1 The defendants have moved to

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The Amended Complaint attaches two exhibits: (1) a CD containing two recordings of
“Remind Me” by Bowen and a recording of the song “Remind Me” by defendants Brad Paisley
and Carrie Underwood; and (2) a copy of Bowen’s copyright registration for “Remind Me”
(among other songs).

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dismiss the Amended Complaint.
In support of their Motion to Dismiss, the defendants filed a Memorandum of Law
(Docket No. 51), the Declaration of Jane Stevens (Docket No. 52), and a Request for Judicial
Notice (Docket No. 53). In the Request for Judicial Notice, the defendants ask the court to take
judicial notice of three exhibits to the Stevens Declaration: (1) a copy of the lyrics for “Remind
Me” as recorded by Bowen; (2) a copy of the lyrics for “Remind Me” as recorded by Paisley and
Underwood; and (3) a copy of the results of a search of the U.S. Copyright Office database using
the search term “Remind Me.”
The parties appear to agree that the court may take judicial notice of – and may consider –
the following materials without converting the Rule 12 motion into a motion for summary
judgment: (1) the materials listed in the Request for Judicial Notice, (2) Bowen’s original
recording of “Remind Me,” and (3) Paisley and Underwood’s recording of “Remind Me.”2 The
court finds that, because all of the referenced materials are either attached to the Amended
Complaint (the sound recordings), are incorporated by reference into the Amended Complaint
(the lyrics), or are publicly available(the Copyright Office database search results), it is
appropriate for the court to take judicial notice thereof without converting the Rule 12 motion.
II.

Facts3

2

The parties disagree about whether the court should consider a second recording of
“Remind Me” by Bowen, which Bowen did not register with the Copyright Office. As explained
herein, although the court need not reach the issue, the portions of that derivative work would
likely be relevant to the extent that they contain copyrightable elements from Bowen’s original
copyrighted recording.
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Unless otherwise noted, the facts are drawn from the Amended Complaint and
incorporated attachments and, as explained in the previous section, the materials of which the
court has taken judicial notice.
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A.

Bowen’s “Remind Me”

Bowen, who performs under the name “Lizza Connor,” is a performing artist and
composer of music. In 2007, Bowen composed the chorus, melody, and lyrics to a song entitled
“Remind Me” (the “Original Song”). At some point between March 2008 and October 2008,
Bowen recorded a solo, acoustic performance of the song, which recording the court will
hereinafter refer to as the “Original Demo Recording.”
On October 15, 2008, Bowen applied to register her copyright in the Original Song with
the United States Copyright Office, as part of a collection of songs she had written. She
submitted a digital copy of the Original Demo Recording along with a lyric sheet. The Copyright
Office approved the application and registered the copyright, effective December 3, 2008.
Between February and May 2008 – after Bowen had composed the Original Song but
before she had registered it and the Original Demo Recording with the Copyright Office – Bowen
and nine other songwriters participated in a 14-week “Country Music Songwriting Workshop.”
Throughout the workshop, Bowen performed “Remind Me.” Among those performances, on
March 3, 2008, Bowen performed “Remind Me” live for music composer and publisher John
Kelley Lovelace, who was a featured advisor for that week. After that particular performance,
Lovelace extensively critiqued Bowen’s song. During the song, Bowen told the audience, of
whom Lovelace was a part, that the song would work as a duet. Charles DuBois, a music
composer and publisher, also participated as an advisor during the program. Between 2008 and
2011, Bowen also performed the song many times at venues in and around Nashville.
At an unspecified point “near the end of 2008,” Bowen entered into a single-song
publishing deal for “Remind Me” with Rod Creagh d/b/a Wire Music (“3 Wire”). 3 Wire, acting

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as publisher, paid for a professional demo recording of “Remind Me,” using a recording studio,
studio engineer, and professional musicians (“Creagh Demo Recording”). Bowen did not
copyright the Creagh Demo Recording.
On September 21, 2009, Bowen and 3 Wire terminated their contractual relationship. On
or about September 17, 2009 (shortly before terminating her contract with 3 Wire), Bowen met
with Bobby Rymer, the head of “Montage Publishing,” now known as The Writer’s Den Music
Group (“Montage”). Bowen thereafter worked with Rymer and Montage to improve her songs,
including “Remind Me.” Laura Wright was an assistant “song plugger” for Montage during this
time frame. Wright later left Montage to join EMI Music Publishing, which is now known as
“EMI April” and acts as Lovelace’s publisher.
B.

Paisley and Underwood’s “Remind Me”

In late 2010 or early 2011, Brad Paisley, Lovelace, and DuBois worked together to
compose a song to be sung by Paisley and Underwood, called “Remind Me.” Bowen alleges that
they composed the song utilizing copyrightable elements from Bowen’s “Remind Me.” The
general inference is that Lovelace and DuBois were aware of Bowen’s song from the songwriting
workshop, that Lovelace may also have been aware of Bowen’s song through Laura Wright (the
former “song plugger” for Montage who later worked for Lovelace’s publishing agency), and that
some or all of the defendants heard the song during one or more of Bowen’s performances in
Nashville.
In February 2011, Paisley and Underwood recorded “Remind Me,” with Frank Rogers as
producer. At some point, Paisley, Underwood, and Rogers transferred their interests in the song
to Sony Music Entertainment d/b/a Arista Nashville (“Sony”). From approximately May 2011

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forward, Sony has distributed the song, and Paisley and Underwood have performed it, generally
separately. The Paisley/Underwood version of “Remind Me” was a commercial success,
including peaking at “No. 1” on Billboard’s chart of country songs and achieving “Platinum”
status (over 1 million copies sold).
In the Amended Complaint, Bowen alleges that the Paisley/Underwood version of
“Remind Me” is “substantially similar” to Bowen’s “Remind Me.” Bowen alleges that the “most
notable” similarity involves the songs’ “hooks,” which are musical and/or lyrical phrases that
stand out in a popular song and that are easily remembered, such as a particular song’s chorus.
Here, the hooks include the repetitive use of the phrase “remind me” and “baby, remind me” in
close proximity.4 The hooks occur 9 times in the Original Demo Recording, comprising
approximately 17% of the song’s 3-minute length, and approximately 19 times in the
Paisley/Underwood Recording, comprising approximately 32% of the song’s total length.
According to the Amended Complaint, the hooks in the Original Demo Recording contain slight
variations on underlying melodic elements, including, inter alia, (1) an ascension in pitch from
“re-” to “-mind”, then a descent in pitch from “-mind” to “me,” (2) a compositional technique
called “blurring” that accompanies the lyric “remind,” designed to create “rhythmic
disorientation,” and (3) a musical technique called a melisma, in which a lyrical syllable is held

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At times, but not always, Bowen appears to refer to the phrase “Remind me” as the
“hook” and the phrase “Baby, remind me” as a “partner phrase.” The defendants quibble with
Bowen’s lack of consistency as to the precise definition of the “hook.” At least for purposes of
the Motion to Dismiss, the court finds this issue to be largely semantic. After listening to the
Original Demo Recording and the Paisley/Underwood Recording, the court understands the
point: however they are characterized, the two phrases, along with their particular usage and the
associated melody/intonation by which they are expressed, are distinctive elements in each song
that are repeated multiple times and effectively constitute the chorus. For purposes of simplicity,
the court will refer to these phrases collectively herein as the “hooks” or the “chorus.”
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across more than one tone (here, holding “-mind” across two tones and “me” across three or more
tones). According to Bowen, because of these melodic elements, the hooks and associated
phrasing would sound essentially the same to a lay listener.
STANDARD OF REVIEW
I.

Rule 84 Pleading Form
The Federal Rules of Civil Procedure include an “Appendix of Forms,” which contains

form complaints for certain types of claims. Under Fed. R. Civ. P. 84, “the forms in the
Appendix suffice under these rules and illustrate the simplicity and brevity that these rules
contemplate.” The Advisory Committee Notes to the 1946 amendment of Rule 84 state that
“[t]he amendment serves to emphasize that the forms contained in the Appendix of Forms are
sufficient to withstand attack under the rules under which they are drawn, and that the
practitioner using them may rely on them to that extent.”
Form 19, entitled “Complaint for Copyright Infringement and Unfair Competition,”
contains a short form complaint for a copyright infringement claim. The form is only seven
paragraphs, and, in compliance with notice pleading standards, requires only basic allegations of
infringement. The form was added April 30, 2007, effective December 1, 2007. Three weeks
after that form was added to the appendix, the Supreme Court decided Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007). Beginning with Twombly, and as clarified in Iqbal and
other recent cases, the Supreme Court redefined the contours of the pleading standards for
purposes of Rules 8 and 12, requiring more than simple “notice pleading.” See Ashcroft v. Iqbal,

556 U.S. 662, 129 S. Ct. 1937, 1949-50 (2009); In re Bill of Lading Transmission & Processing
Sys. Patent Litig., 681 F.3d 1323, 1333 (Fed. Cir. 2012) (discussing impact of Twombly and

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Iqbal on sufficiency of Form 18 relating to patent infringement claims).
Following Twombly and Iqbal, courts have reached differing conclusions about the
continuing viability of Rule 84 in patent infringement cases involving Form 18, which is a form
patent infringement complaint.5 At least with respect to Form 18, the circuit courts to address the
issue have concluded that compliance with Form 18 is sufficient to state a direct patent
infringement claim but not an indirect patent infringement claim, which is now governed by the
plausibility standard. See, e.g., K-Tech. Telecomm., Inc. v. Time Warner Cable, Inc., 714 F.3d
1277, 1284 (Fed. Cir. 2013).6
Here, the parties have not identified, nor has the court located in its own research, any
authority directly addressing the continuing viability of Form 19, which concerns copyright
claims. However, the defendants argue that, in Nat’l Bus. Dev. Servs., Inc. v. Am. Credit Educ. &
Consulting Inc., 299 F. App’x 509, 511-512 (6th Cir. 2008), the Sixth Circuit implicitly
abrogated Rule 84 as it relates to Form 18. There, the district court had dismissed the plaintiff’s
copyright claim under the Twombly standard, because the plaintiff failed to identify which action
or publication by the defendant had infringed the plaintiff’s copyright. Id. at 510-11. On appeal,
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For example, in Proxyconn Inc. v. Microsoft Corp., 2012 WL 1835680, at *3-*4 (C.D.
Cal. May 16, 2012), the court found that “threadbare recitations of the language in Form 18 is
[sic] no longer sufficient to state a claim.” Id.; see also Tyco Fire Prods. LP v. Victaulic Co., 777
F. Supp. 2d 893, 905 (E.D. Pa. 2001) (“[T]he forms purporting to illustrate what level of
pleading is required do not reflect the sea change of Twombly and Iqbal.”); but see In re Bill of
Lading, 714 F.3d at 1284 (with respect to patent infringement claims, Rule 84 remains viable in
certain contexts).
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Consistent with their obligation to apply the procedural rules as interpreted by the
Federal Circuit with respect to patent infringement claims, district courts within this circuit have
applied the Federal Circuit’s approach to Form 18 in patent cases. See, e.g., Littlefuse, Inc. v.
Pacific Eng’g Corp., 2013 WL 4026918, at *1 (E.D. Mich. Aug. 7, 2013); Cronos Techs., LLC v.
v. Camping World, Inc., 2013 WL 3936899, at *2 (W.D. Ky. July 30, 2013); Panini S.p.A v.
Burroughs, Inc., 2013 WL 3909684, at *5 (S.D. Ohio July 29, 2013).
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the Sixth Circuit endorsed the district court’s application of the Twombly standard. The court
reasoned that “[c]opyright infringement, like anti-trust actions, lends itself readily to abusive
litigation, since the high cost of trying such a case can force a defendant who might otherwise be
successful in trial to settle in order to avoid the time and expenditure of a resource intensive
case.” Thus, it found that “greater particularity in pleading, through showing ‘plausible grounds,’
is required.” Id. at 512. Because the plaintiff had pleaded only “bare legal conclusions” and had
not “identif[ied] any specific works by defendants that infringe on plaintiff’s copyright,” the
Sixth Circuit affirmed. Id. Notably, however, National Business did not address the viability of
Form 19, which does not appear to have been raised as an issue. Furthermore, it appears that the
plaintiff’s allegations in that case would not have complied with Form 19 in any case.7
The court construes National Business as at least requiring application of the
Twombly/Iqbal standard to a copyright infringement claim that will be premised on indirect
evidence, which is essentially the type of infringement claim Bowen asserts here. Because, for
the reasons explained herein, Bowen’s infringement claim survives under the heightened postTwombly/Iqbal Rule 12 standard, the court need not determine whether the holding in National
Business implicitly abrogated Rule 84 as it relates to Form 19.
II.

Motion to Dismiss Standard

In deciding a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6),
the court will “construe the complaint in the light most favorable to the plaintiff, accept its
allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v.

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Form 19 requires the plaintiff to identify the infringing material or infringing acts. See
Form 19 at ¶ 6.
8

Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.
2002). The Federal Rules of Civil Procedure require that a plaintiff provide “‘a short and plain
statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and
the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80
(1957) (quoting Fed. R. Civ. P. 8(a)(2)). The court must determine whether “the claimant is
entitled to offer evidence to support the claims,” not whether the plaintiff can ultimately prove
the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S. Ct. 992, 152 L. Ed. 2d
1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)).
The complaint’s allegations, however, “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. To establish the “facial plausibility” as required to
“unlock the doors of discovery,” the plaintiff cannot rely on “legal conclusions” or “[threadbare]
recitals of the elements of a cause of action,” but, instead, the plaintiff must plead “factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S. Ct. at 1949-50.
ANALYSIS
I.

Standard for Copyright Infringement
A claim of copyright infringement has two elements: (1) ownership of a valid copyright,

and (2) copying of constituent elements of the work that are original. Feist Publ’ns, Inc. v. Rural
Tele. Serv. Co., Inc., 499 U.S. 340, 361 (1991). To be original, an element must be both an
independent creation of its author and involve at least minimal creativity. Bridgestone Music,
Inc. v. UMG Recordings, Inc., 585 F.3d 267, 274 (6th Cir. 2009). To establish that a work has
been copied, a plaintiff must present either (1) direct evidence of the defendant’s copying, or (2)

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prove it indirectly by showing that (a) the defendant had access to the plaintiff’s work and (b)
that there is substantial similarity between it and the defendant’s work, thus giving rise to an
inference of copying. Id.
Here, for purposes of the Motion to Dismiss only, the defendants do not dispute that the
Amended Complaint sufficiently alleges “access” to Bowen’s copyrighted material. Although
that aspect of the “copying” element of Bowen’s infringement claim is not in dispute, the court
notes that the Sixth Circuit has indicated that proof of access can affect the degree of proof of
similarity required to show copyright infringement.
[I]n some cases[,] the relationship between the degree of proof required for
similarity and access may be inversely proportional: where the similarity between
the two works is strong, less compelling proof of access may suffice. [Citing Ellis
v. Diffie, 177 F.3d 503, 507 (6th Cir. 2004).] See Three Boys Music Corp. v.
Bolton, 212 F.3d 477, 485 (9th Cir. 2000) (stating that under the “inverse ratio
rule,” a lower standard of proof of similarity is required where a high degree of
access is shown); Arnstein v. Porter, 154 F.2d 464, 469 (2d Cir. 1946) (stating
that “a case could occur in which the similarities were so striking that we would
reverse a finding of no access, despite weak evidence of access (or no evidence
thereof other than the similarities).”)
Stromback v. New Line Cinema, 384 F.3d 283, 293 (6th Cir. 2004) (emphasis added); see also
Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996) (“[W]e require a lower standard of proof on
substantial similarity when a high degree of access is shown.”).
Within the Sixth Circuit, the “substantial similarity” inquiry involves a two-part test: (1)
the court must identify which aspects of the artist’s work, if any, are protectable by copyright,
and (2) the court must determine whether the relevant portions of the allegedly infringing work
are substantially similar to the protectible elements of the artist’s work. Bridgestone, 585 F.3d at
274. To complete the first part of this test, the court must filter out elements of the work that are
not original to the author, as well as so-called scenes a faire (or “stock themes”), the

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“indispensable or standard aspects of a work,” or “those that follow directly from unprotectable
ideas.” Id. at 274 (internal quotation omitted). After separating out the unprotectable ideas from
the original expressions, “the two works can be compared to determine whether they are
substantially similar, a question of fact.” Id. at 275.
“[T]he copying of a relatively small but qualitatively important or crucial element can be
an appropriate basis upon which to find substantial similarity.” Bridgestone, 585 F.3d at 275; see
also Stromback, 384 F.3d at 297 (“The misappropriation of even a small portion of a copyrighted
work may constitute an infringement under certain circumstances. Even if a copied portion [is]
relatively small in proportion to the entire work, if qualitatively important, the finder of fact may
properly find substantial similarity. No plagiarist can excuse the wrong by showing how much of
his work he did not pirate.”).8 On the other hand, “random similarities scattered throughout the
works are not a proper basis for a finding of substantial similarity.” Id. (internal quotation
omitted). Ultimately, “[s]ubstantial similarity exists where the accused work is so similar to the
plaintiff’s work that an ordinary reasonable person would conclude that the defendant unlawfully
appropriated the plaintiff’s protectible expression by taking material of substance and value.”
Stromback, 384 F.3d at 297 (internal quotation omitted).
The defendants, largely relying on authority from outside the Sixth Circuit, argue that the
court can and should determine at this stage that the Original Recording and the
Paisley/Underwood Recording are not “substantially similar” as a matter of law. (See Docket

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In Bridgeport, the Sixth Circuit recognized that a copyright claim may be based on
“fragmented literal similarity,” in which a “smaller fragment of a work has been copied literally,
but not the overall theme or concept-in approach . . . .” Id. “In such situations, even a small
degree of copying may support a finding of substantial similarity, depending on the context.” Id.
(citing Murray Hill Publ’gs, Inc. v. ABC Commnc’n, Inc., 264 F.3d 622, 633 (6th Cir. 2001)).

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No. 51 at p. 11 (collecting cases); see also id. at p. 8.) In this circuit, however, the Sixth Circuit
has cautioned that granting summary judgment motions in copyright infringement cases,
including cases involving allegedly infringing musical works, is generally disfavored, because the
issue of “substantial similarity” can present a close factual question.
In copyright infringement cases, “summary judgment, particularly in favor of a
defendant, is a practice to be used sparingly” because substantial similarity is often
an extremely close question of fact, but “a court may compare the two works and
render a judgment for the defendant on the ground that as a matter of law a trier of
fact would not be permitted to find substantial similarity.”
Jones v. Blige, 558 F.3d 485, 490 (6th Cir. 2009) (quoting Kohus v. Mariol, 328 F.3d 848, 853
(6th Cir. 2003)).
Given that summary judgment motions premised on a developed record – often with the
benefit of expert testimony – are to be granted “sparingly,” it is not surprising that the defendants
have identified only one case within this circuit in which a district court has granted a Rule 12
motion involving a copyright claim – and that case is readily distinguishable. See Pollick v.
Kimberly Clark-Corp., 817 F. Supp. 2d 1005 (E.D. Mich. 2011).9 Although the court accepts the
proposition that it could, under appropriate circumstances, dismiss a copyright claim at the Rule
12 stage by comparing the holder’s copyrighted work to an allegedly infringing work, the court’s
role at this stage is necessarily limited to whether Bowen can plausibly demonstrate copyright

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Pollick involved a suit by the holder of a copyright for “diaper jeans” against the
manufacturer of Huggies “jeans diapers.” At the time, “the law had been long established that
Plaintiff’s copyright did not confer a broad right to exclude others from producing diapers
‘designed to resemble jeans’ – but a narrow right to prevent others from reproducing Plaintiff’s
particular design of diaper jeans.” Id. at 1013. After comparing images of the two types of jeans,
the court concluded that the plaintiffs’ lawsuit was “objectively unreasonable,” because the two
types of jeans were “not only . . . not substantially similar, they are substantially different,”
including differences in color, pattern, stitching, pocketing, fly, belt loops, and back label. Id. at
1012-13.

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infringement, which here turns on whether Bowen has plausibly established that copyrightable
elements of the Original Song are “substantially similar” enough to copyrightable elements of the
Paisley/Underwood Recording so as to raise an inference of copying.
The Sixth Circuit has indicated that the use of a word or phrase repeated in a song, such
as the song’s chorus, can support a copyright infringement claim. For example, in Bridgeport
Music, the plaintiffs argued that the defendants’ song violated the plaintiffs’ copyrighted original
song recording, where the defendants’ recording appropriated the term “bow wow wow, yippee
yo, yippea yea,” repeated the word “dog” in a low tone of voice at periodic intervals, and
included the sound of rhythmic panting. 585 F.3d at 272. After a jury found for the plaintiffs,
the Sixth Circuit upheld the verdict, concluding that, (1) although the individual word “dog” was
not in and of itself copyrightable, the combination of the three disputed elements was sufficiently
original to justify copyright protection, and (2) it was appropriate for the jury to make a finding
of substantial similarity, where “the copied elements had such great qualitative importance to the
song.” Id. at 276-77; see also Brainard v. Vassar, 625 F. Supp. 2d 608, 620 (M.D. Tenn. 2009)
(stating that, “[g]iven the central importance of the choruses to the songs’ commercial viability
and value, sufficient similarity here could, potentially, demonstrate substantial similarity between
the songs as a whole”); Santrayll v. Burrell, 1996 WL 134803, at *1-*2 (S.D.N.Y. Mar. 25,
1996) (denying motion for summary judgment, because the word “uh-oh” repeated four times to
a particular “distinctive” rhythm was protectible and could support a copyright infringement
claim); McKinley v. Raye, 1998 WL 119530 (N.D. Tex. Mar. 10, 1998) (reasonable trier of fact
could find “substantial similarity,” where, inter alia, hooks contained identical lyrics, similar
melodies, and specialized use within the song compared to other types of songs).

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III.

The Creagh Recording
The parties argue at some length about the relevance of the Creagh Recording, which is a

derivative recording of “Remind Me” that Bowen did not register with the copyright office. As
explained in the next section, the court need not rely on the Creagh Recording, because plausibly
protectable elements in the Original Song support a finding of substantial similarity without
reference to the Creagh Recording.10
IV.

Application
A.

The Words

With the exception of the words “remind me” and “baby, remind me,” the lyrics of the
songs are different. The parties appear to agree, as they must, that the words “Remind me” and
“Baby, remind me” are, in and of themselves, not copyrightable. However, Bowen argues that
the defendants appropriated not only the words “Remind me” and “Baby, remind me,” but the
manner in which Bowen utilized those words in the song “Remind Me,” as well as the associated
melodies and distinctive vocal intonations.
The court finds that Bowen has the better argument: Bowen has plausibly shown that,
taken in combination, the lyrics and associated melodies, intonations, and usage could be

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Because the Creagh Recording is not copyrighted, it could be relevant at least (and only)
to the extent that it contains essentially the same copyrightable elements as the Original Song, but
not to the extent that it contains different elements. See Nicholls v. Tufenkian Import/Expert, 367
F. Supp. 2d 514, 520 (S.D.N.Y. 2005). Based on a comparison of the two songs, it appears to the
court, at least at first blush, that the Creagh Recording and the Original Song contain
substantially the same hooks, both in terms of lyrics and melody/intonation. The court also notes
that the Creagh Recording, which was produced professionally in a studio, is much clearer and
“cleaner” than the Original Song recording, which was merely an acoustic recording. At any
rate, the court expresses no opinion at this stage concerning the ultimate potential relevance of
the Creagh Recording and/or whether it can support Bowen’s infringement claim.

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sufficiently original to constitute protectable material. Therefore, the next question is whether
those hooks, which incorporate that potentially distinctive combination of elements, are
“substantially similar” as between the Original Demo Recording and the Paisley/Underwood
Recording.
B.

The Hooks

The defendants argue that, as a matter of law, the court should find that a lay listener
could not reasonably conclude that the hooks are “substantially similar.” The defendants argue
that, in undertaking this analysis, the court should ignore the portions of the Amended Complaint
that, using musicological terms, purport to identify the types of similarities between the hooks.11
Having listened to and compared both works, the court finds that the hooks are
sufficiently similar to support a plausible claim of infringement. As Bowen points out, in both
recordings, (1) the phrase “Remind me” is often followed by the partner phrase “Baby, remind

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As an initial matter, the court is not yet convinced that expert analysis is irrelevant to the
issue of substantial similarity, a proposition for which the defendants cite no Sixth Circuit
authority. The Sixth Circuit has indicated that expert testimony is at least relevant to the issue of
“filtering,” the process by which original elements of the disputed works are distilled for
purposes of direct comparison. See Bridgeport, 585 F.3d at 275-276. In Bridgeport, the Sixth
Circuit found that, in light of expert musicological testimony presented at trial, the district court
appropriately permitted the jury to consider whether “the word ‘dog’ as musical punctuation
[and] the rhythmic panting in ‘D.O.G. in Me’” constituted original protectable elements of the
infringed song, rather than non-protectable expression that should have been “filtered out.” Id.
The Sixth Circuit relied, among other things, on “expert testimony at trial that these elements
were not just the ‘mere abstract idea’ of a dog or of the activity of panting because, in [the
composition at issue], the word ‘dog’ constituted a stand-alone melody of one word’ used as
musical punctuation at intervals on the tonic note of the song and because the sound of panting
followed the rhythm of the song.” Id. at 276. This court has also relied on expert testimony in
determining whether, at the Rule 56 stage, a plaintiff sufficiently established that the chorus of an
allegedly infringing song was “substantially similar” to the chorus of the allegedly infringed
song. See Brainard, 625 F. Supp. 2d at 620-621. At any rate, the court need not rule on the
relevance of expert testimony to particular issues here, an issue that must be reserved for a later
stage in this case.

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Me,” which essentially echoes the hook; (2) the hooks are repeated in close proximity and with
similar intonation – higher the second time than the first; (3) the hooks rise in pitch from “re-“ to
“-mind” and descend in pitch from “re-” to “-mind,”; and (4) the syllable “re-” crosses two tones
and the syllable “-me” crosses at least three tones. Although the precise melodies accompanying
these phrases do vary within each song, they plausibly could be construed as identifiable
variations on an underlying theme. The hooks also feature prominently in both works and could
be considered the “catchiest” and most distinctive elements of both the Original Song and the
Paisley/Underwood Recording – i.e., the material having the most musical (and ultimately
commercial) value in each song.
Moreover, if Bowen’s access-related allegations are true, Bowen plausibly could show
that the appearance and use (including melody, intonation, etc.) of the phrases “Remind me” and
“Baby, remind me” in the Paisley/Underwood Recording are more than mere coincidence, and in
fact reflected copying of the Original Song by composers who were already familiar with
Bowen’s work from the Country Music Songwriting Workshop – if not from other avenues as
well.12
C.

Summary

The court finds that, for purposes of the Motion to Dismiss, Bowen has established a
plausible claim of copyright infringement. To be clear, in reaching that holding, the court has not

12

Depending on the strength of her proof of access, Bowen may argue that she can
establish her indirect infringement claim with a lower showing of substantial similarity than
might otherwise be required. See Stromback, 384 F.3d at 293. The court expresses no opinion
as to whether this case presents circumstances under which “less compelling proof” of substantial
similarity will be required, as the Sixth Circuit in Stromback suggested might be appropriate “in
some cases.” 384 F.3d at 293.

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found that, as a matter of law, the defendants necessarily infringed Bowen’s work by copying
protectable elements of the Original Song. The court has simply found that, based on her
allegations and based on the court’s comparison of the Original Demo Recording and the
Paisley/Underwood Recording, Bowen has met her burden to plead a plausible claim of
infringement, sufficient to “unlock the doors of discovery.” Iqbal, 129 S. Ct. at 1949-50.
Whether Bowen’s allegations ultimately have merit (and/or whether the issue will be tried to a
jury) appropriately will be resolved at a later stage in these proceedings, based on a developed
factual record and, perhaps, with the benefit of expert testimony on certain issues.
CONCLUSION
For the reasons stated herein, the defendants’ Motion to Dismiss will be denied.
An appropriate order will enter.
_____________________________
ALETA A. TRAUGER
United States District Judge

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