Pugh v. Daniel et al

Filing 27

REPORT AND RECOMMENDATION re 18 MOTION to Dismiss. The Magistrate Judge RECOMMENDS that the motion to dismiss (Doc. 18 ) be GRANTED; the claims of copyright infringement, breach of contract, and piracy be DISMISSED under Rule 12(b)(6) and 2 8 U.S.C. § 1915(e)(2)(B)(ii); that any appeal NOT BE CERTIFIED as taken in good faith under 28 U.S.C. § 1915(a)(3); and that the Plaintiff's motion to expedite the case (Doc. 25 ) be TERMINATED AS MOOT. Signed by Magistrate Judge Joe Brown on 2/23/2017. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ROLAND PUGH,

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Plaintiff,
v.
JERRY NORMAN p/k/a NORM
DANIELS, et al.,
Defendants.

No. 3:16-cv-02075
Chief Judge Sharp
Magistrate Judge Brown

To: The Honorable Kevin H. Sharp, Chief United States District Judge
REPORT AND RECOMMENDATION
Presently pending is a motion to dismiss (Doc. 18) filed by Defendants Jerry Norman
p/k/a Norm Daniels, Paramountsong.com (“Paramount”), and StarTune Records (“StarTune”).
Upon consideration of the motion, the Magistrate Judge RECOMMENDS that the motion to
dismiss (Doc. 18) be GRANTED; the claims of copyright infringement, breach of contract, and
piracy be DISMISSED under Rule 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii); that any appeal
NOT BE CERTIFIED as taken in good faith under 28 U.S.C. § 1915(a)(3); and that the
Plaintiff’s motion to expedite the case (Doc. 25) be TERMINATED AS MOOT.
I.

BACKGROUND

In May 2015, the Plaintiff entered into a “Songwriter Contract” with Paramount. (Doc. 11, p. 8). For a fee, Paramount would create a melody and produce a demo of a song written by
the Plaintiff titled “Momma Is Walking With Angels” (“Song”). (Doc. 1-1, p. 8). Daniels signed
the Songwriter Contract on Paramount’s behalf. (Doc. 1-1, p. 8).
On September 2, 2015, the Plaintiff entered into a “Record Contract” with StarTune.
(Doc. 1-1, p. 9). Pursuant to the Record Contract, StarTune would “reproduce, master and place
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in major online digital record stores, iTunes and Amazon MP3, recordings of” specified songs.
(Doc. 1-1, p. 9). It is assumed the Song was the subject of the Record Contract. In exchange for
StarTune acquiring nonexclusive rights to “reproduce, distribute and sell digital recordings,” the
Plaintiff would receive percentages of the sales. (Doc. 1-1, pp. 9-10). StarTune would pay the
Plaintiff when $10 or more was due. (Doc. 1-1, p. 10). The term of the Record Contract was one
year from September 2, 2015. (Doc. 1-1, p. 9). Norman signed the Record Contract on
StarTune’s behalf. (Doc. 1-1, p. 9). The Song was registered by the United States Copyright
Office effective November 6, 2015. (Doc. 1-1, p. 4).
On March 16, 2016, Paramount refunded the money the Plaintiff had paid to StarTune
and provided his earnings to-date from iTunes and Amazon. (Doc. 1-1, p. 5). Representatives
from Paramount stated “[p]lease be advised that we will no longer be maintaining your song on
iTunes and Amazon, nor do we wish to provide any other services for you.” (Doc. 1-1, p. 5).
The Plaintiff apparently sought legal assistance, for on May 5, 2016, Daniels responded
to a letter from an attorney in Texas. (Doc. 1-1, p. 6). Daniels stated the Plaintiff had received all
royalties and funds due to him plus a refund of his expenditures. (Doc. 1-1, p. 6). Though the
Plaintiff’s Song may be available on iTunes or Amazon, he only earns royalties when his music
is paid for and downloaded from those platforms. (Doc. 1-1, p. 6).
On June 29, 2016, the Plaintiff asked Amazon’s copyright department to remove his
Song from their online store and investigate piracy. (Doc. 1-1, p. 15). A screenshot of an
Amazon website, purportedly dated July 28, 2016, shows the Song was for sale as part of the
album “Rainbow Destiny.” (Doc. 1-1, pp. 1-3).
In August 2016, the Plaintiff filed a complaint pro se, alleging breach of contract, piracy,
and “possible copyright infringement.” (Doc. 1, p. 1 ¶ 1). Referring to documents attached to the

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complaint, summarized above, the Plaintiff’s statement of the claim was: “Company only paid
$2.80 for royalties for November 2015 thru [sic] December 2015. No further royalties paid this
year.” (Doc. 1, p. 2 ¶ 4). He prayed for the following relief: an accounting of royalties owed and
paid, removal of his Song from digital download stores, payment of fees earned and not paid
after the alleged breach of contract, a fine for use of his Song after the alleged breach of contract,
and closure of the “company” on account of fraudulent activity. (Doc. 1, p. 3 ¶ 5).
On initial review of the complaint, the Court concluded it pleaded a claim of copyright
infringement which provided the Court subject-matter jurisdiction. (Doc. 3, p. 2). The Plaintiff
was granted leave to proceed in forma pauperis, and the case was referred to the undersigned for
disposition of pre-trial, non-dispositive motions and for a report and recommendation on all
dispositive motions. (Doc. 3, pp. 1, 3).
The Plaintiff then filed a document titled “Breach of Contract/Copyright Infringement.”
(Doc. 5). He alleged he was not paid royalties or provided an accounting of earnings after
December 2015. (Doc. 5, p. 1). Despite Paramount’s notice that it no longer worked for him as of
March 16, 2016, the Plaintiff complained his song was still available for download online. (Doc.
5, p. 1). He prayed for attorneys’ fees, a “grievance fee,” unpaid royalties, and court costs. (Doc.
5, p. 2).
The Defendants collectively moved to dismiss the suit for lack of subject-matter
jurisdiction and for failing to state a claim upon which relief can be granted. (Doc. 18). The
Plaintiff filed a timely response. (Doc. 23). He claimed that Norm Daniels and Jerry Norman are
the same person. (Doc. 23, p. 1). Complaining he has not seen an accounting of his earnings, he
challenged the Defendants’ assertion that he did not earn additional royalties. (Doc. 23, p. 1). He
again claimed his song was advertised for sale after he received Paramount’s message that it no

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longer worked for him. (Doc. 23, pp. 1-2). He requested punitive damages and alleged he is
entitled to $180,000 on account of emotional and mental damages to him and his family, as well
as a ruined songwriting career. (Doc. 23, pp. 2-3).
More than one month later, the Plaintiff filed a motion to expedite this case and deny the
motion to dismiss. (Doc. 25). 1 The Defendants responded to the motion to expedite. (Doc. 26).
II.

LEGAL STANDARDS

Subject-matter jurisdiction is a prerequisite to suit in federal court, and it may not be
waived or forfeited by the parties or the court. Union Pac. R. Co. v. Bhd. of Locomotive
Engineers & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 81 (2009)
(quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)). Challenges to a court’s subjectmatter jurisdiction, i.e., the court’s power to hear a case may be facial or factual. Fed. R. Civ. P.
12(b)(1); DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004) (citations omitted). A facial
attack focuses on whether the allegations in the complaint, taken as true, provide grounds for
jurisdiction. Glob. Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806, 810
(6th Cir. 2015) (citation omitted). Where, as here, 2 the factual basis for jurisdiction is challenged,
the allegations in the complaint are not presumed to be true, and the court may weigh evidence to
determine if subject-matter jurisdiction exists. Id. (citations omitted). The plaintiff bears the
burden of proving the court has subject-matter jurisdiction. Russell v. Lundergan-Grimes, 784
F.3d 1037, 1045 (6th Cir. 2015) (citing RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d
1125, 1134 (6th Cir. 1996)).

1

Notwithstanding the fact that the Plaintiff already filed a response to the motion to dismiss, this supplemental
response is untimely.

2

The Defendants did not clearly state whether the challenge was facial or factual. As the attachments to the
complaint are integral to the Defendants’ challenge, it is construed as a factual challenge.

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Whereas a motion to dismiss for lack of subject-matter jurisdiction is a procedural
challenge, a motion to dismiss under Rule 12(b)(6) seeks a dismissal of the suit on the merits. To
progress beyond a Rule 12(b)(6) dispositive motion, the complaint must contain sufficient
factual allegations, taken as true for purposes of the motion and construed in the plaintiff’s favor,
to state a plausible claim for relief. Luis v. Zang, 833 F.3d 619, 625-26 (6th Cir. 2016) (citations
omitted). The facts pled in the complaint must permit “the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The court may consider
materials attached to the complaint without turning the motion to dismiss into a motion for
summary judgment as long as the attachments are referred to in the complaint and are central to
the claims asserted therein. Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016) (citations omitted).
Complaints filed by individuals proceeding pro se are held to lower standards than pleadings
created by attorneys and should be liberally construed. Luis, 833 F.3d at 626 (quoting Williams v.
Curtin, 631 F.3d 380, 383 (6th Cir. 2011)). Pro se complaints are nevertheless held to basic
pleading standards. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989) (citations omitted). Stated
simply,
[d]istrict courts are not required to conjure up questions never squarely presented
to them or to construct full blown claims from sentence fragments. To do so
would “require . . . [the courts] to explore exhaustively all potential claims of a
pro se plaintiff, . . . [and] would . . . transform the district court from its legitimate
advisory role to the improper role of advocate seeking out the strongest arguments
and most successful strategies for a party.”
Black v. Read, No. 3:14-1181, 2016 WL 3561731, at *1 (M.D. Tenn. June 6, 2016), report and
recommendation adopted, No. CV 3-14-1181, 2016 WL 3460131 (M.D. Tenn. June 24, 2016)
(quoting Dixie v. Ohio, No. 1:08 CV 0450, 2008 WL 2185487, at *1 (N.D. Ohio May 23, 2008)).

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Where, as here, the Plaintiff is proceeding in forma pauperis, “the court shall dismiss the
case at any time if the court determines that . . . the action or appeal . . . fails to state a claim on
which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). The Rule 12(b)(6) dismissal
standard as explained in Iqbal and Twombly is applied to determine whether dismissal is
warranted under § 1915(e)(2)(B)(ii). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The
court’s ability to sua sponte review and dismiss claims filed in forma pauperis applies to both
prisoner and nonprisoner litigants. Gebremariam v. City of Nashville Police Dep’t, No. 3:16-CV0861, 2016 WL 2854362, at *1 (M.D. Tenn. May 16, 2016) (citing McGore v. Wrigglesworth,
114 F.3d 601, 608 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199
(2007)).
III.

ANALYSIS

Through his complaint, the Plaintiff purports to set forth three claims: copyright
infringement, breach of contract, and piracy. (Doc. 1, p. 1 ¶ 1). Because a Rule 12(b)(6) motion
may be mooted by the results of a Rule 12(b)(1) motion, the Court first considers whether it has
subject-matter jurisdiction over these claims.
A. COPYRIGHT INFRINGEMENT
1. SUBJECT-MATTER JURISDICTION
The Plaintiff did not clearly articulate the basis for his claim of copyright infringement.
Liberally construing the complaint and its attachments, the Plaintiff alleges that the Record
Contract was breached and that any sales of his Song after the breach constitute copyright
infringement. He demands an accounting of royalties owed and paid, his Song be removed from
online stores, the “company” be closed for fraudulent activity and be fined for using his Song

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after the breach of contract, and the Plaintiff be awarded a “grievance fee” for continued usage of
the Song after the breach of contract.
Subject-matter jurisdiction is conferred by 28 U.S.C. § 1338(a) which grants district
courts original jurisdiction over civil actions arising under Congressional Acts relating to
copyrights. This civil action arises under the Copyright Act, 17 U.S.C. § 101 et seq. 3 Citing the
T.B. Harms test, courts in this circuit have found that a claim arises under the Copyright Act
if and only if [1] the complaint is for a remedy expressly granted by the Act, e.g.,
a suit for infringement or for the statutory royalties for record reproduction, [2] or
asserts a claim requiring construction of the Act, . . . [3] or, at the very least and
perhaps more doubtfully, presents a case where a distinctive policy of the Act
requires that federal principles control the disposition of the claim.
Puetz v. Spectrum Health Hosps., No. 1:14-CV-275, 2015 WL 3935984, at *3 (W.D. Mich. June
26, 2015) (quoting T. B. Harms Co. v. Eliscu, 339 F.2d 823, 828 (2d Cir. 1964)); see also
Eberhard Architects, LLC v. Bogart Architecture, Inc., 314 F.R.D. 567, 571 (N.D. Ohio 2016);
Frazier v. Capitol CMG Publ’g, No. 3:14-CV-02310, 2015 WL 8179684, at *3 (M.D. Tenn.
Dec. 7, 2015).
The clarity of the T.B. Harms test was muddled by a subsequent Second Circuit opinion,
Schoenberg v. Shapolsky Publishers, Inc., 971 F.2d 926 (2d Cir. 1992). In dictum, the
Schoenberg court determined whether subject-matter existed where a plaintiff claimed the
defendants breached a licensing agreement and that subsequent sales of the plaintiff’s work
constituted copyright infringement. Id. at 930-33. Though the complaint alleged copyright
infringement and sought damages under the Copyright Act, thus satisfying the T.B. Harms test,
the court did not end the jurisdictional analysis there. Id. at 931-33. Rather, the Schoenberg court
expanded the inquiry to a three-part analysis: (1) determine whether the infringement claim is

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Consequently, this Court also has jurisdiction under 28 U.S.C. § 1331, which grants district courts “original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”

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incidental to a claim of ownership or a contractual claim; (2) if it is not incidental, determine
whether the plaintiff alleged a breach of a condition to as opposed to a covenant of the contract;
and (3) the court has jurisdiction if the infringement claim is not incidental and the plaintiff
alleges a breach of condition to the contract or alleges a material breach of a contractual
covenant which creates a right of rescission. Id. at 932-33. The court recognized the three-step
inquiry would determine the “essence” of the claim. Id. at 933.
In 2000, the Second Circuit Court of Appeals abrogated Schoenberg and reaffirmed the
T.B. Harms test. Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343 (2d Cir. 2000). The Basset
court recognized that the T.B. Harms test was different from the preceding “essence-of-thedispute or merely-incidental test.” Id. at 349. Rather than considering the defense that would be
proffered, the T.B. Harms test solely considered the allegations made in the complaint. Id. The
Bassett court explained that the “essence” approach deprived plaintiffs of copyright remedies,
such as “injunctive relief, impoundment remedies, statutory damages, and attorneys fees
provided by the Act” which would not be available in state court. Id. at 348 (citing 17 U.S.C. §§
502-505). The “essence” approach also required the “court to make findings at the outset of the
litigation that could not be discerned from the complaint but instead required a deep
understanding of the dispute not usually gained until the case had been heard at trial.” Id. The
Bassett court noted that through dictum the Schoenberg court had greatly expanded the T.B.
Harms test into a three-prong inquiry. Id. at 351-52. Explaining in depth that the Schoenberg test
was unworkable, the Bassett court concluded “for claims of infringement arising from, or in the
context of, an alleged contractual breach, this circuit’s standard for determining jurisdiction
under Section 1338 is furnished by T.B. Harms, and not by Schoenberg.” Id. at 352-55; see also
Kousnsky v. Amazon.Com, Inc., 631 F. App’x 22, 24-25 (2d Cir. 2015) (applying Bassett).

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The District Court for the Northern District of Ohio recently relied on the Bassett
decision and the T.B. Harms test in a suit factually similar to the instant case. Eberhard
Architects, LLC v. Bogart Architecture, Inc., 314 F.R.D. 567 (N.D. Ohio 2016). In Eberhard, the
plaintiff licensed its copyrighted material to the defendants. Id. at 570. When the defendants
allegedly failed to make the payments due under the license agreement, the plaintiff terminated
the license. Id. The defendants continued to use the copyrighted material. Id. The plaintiff then
sued the defendants for copyright infringement and breach of contract. Id. The plaintiff
demanded statutory damages, attorneys’ fees, and injunctive relief under the Copyright Act. Id.
at 572. The court concluded it had jurisdiction over the matter because the complaint explicitly
alleged copyright infringement and sought damages available under the Copyright Act. Id.
Rejecting the defendants’ argument that the copyright infringement claim was really a breach of
contract claim based on the license agreement, the court explained that jurisdiction is derived
from the allegations in the complaint, not the potential defenses. Id.
Jurisdictional decisions from other courts in the Sixth Circuit provide additional context.
See Severe Records, LLC v. Rich, 658 F.3d 571, 581-83 (6th Cir. 2011) (finding the court had
jurisdiction to consider a declaratory judgment action concerning authorship of a song because
the claim required construction of the Act); Perry v. Broad. Music, Inc., 23 F. App’x 210, 211-12
(6th Cir. 2001) (finding no jurisdiction over a contractual dispute about copyright ownership
which was previously decided in another court); Combs v. Plough, Inc., 681 F.2d 469, 470-71
(6th Cir. 1982) (finding no jurisdiction over contractual dispute about ownership of patent
rights); Frazier, No. 3:14-CV-02310, 2015 WL 8179684, at *3 (concluding the court had
jurisdiction to consider claims that the defendants infringed on copyrighted compositions beyond
the scope of the parties’ contract); Puetz, No. 1:14-CV-275, 2015 WL 3935984, at *3-5 (finding

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no jurisdiction to resolve the contractual question of copyright ownership); ACS Transp. Sols.,
Inc. v. Nashville Metro. Transit Auth., No. 3:13-CV-1137, 2015 WL 1481461, at *2-3 (M.D.
Tenn. Mar. 31, 2015) (finding jurisdiction where the plaintiff alleged copyright infringement
based on the defendant’s continued use of the copyrighted material after the defendant
terminated the license agreement); Peay v. Morton, 571 F. Supp. 108, 113-17 (M.D. Tenn. 1983)
(relying on cases that applied the “incidental/essence” standard before the Bassett decision).
Based on the complaint and its attachments, the District Judge previously concluded that
the Court has subject-matter jurisdiction over the Plaintiff’s claim of copyright infringement.
(Doc. 3, p. 2). The undersigned sees no basis to disturb this finding. The Plaintiff alleges
StarTune usurped his exclusive right to reproduce and distribute the copyrighted Song, i.e.,
infringement of a copyright, and seeks remedies expressly granted by the Copyright Act: an
injunction, damages, and profits. 17 U.S.C. §§ 502, 504. StarTune may rely on a valid license as
a defense to a claim of copyright infringement, but this defense does not deprive the Court of
subject-matter jurisdiction. See Eberhard Architects, LLC, 314 F.R.D. at 572; see also Edgenet,
Inc. v. Home Depot U.S.A., Inc., 658 F.3d 662, 664 (7th Cir. 2011); Nova Design Build, Inc. v.
Grace Hotels, LLC, 652 F.3d 814, 816 (7th Cir. 2011); Scandinavian Satellite Sys., AS v. Prime
TV Ltd., 291 F.3d 839, 845 (D.C. Cir. 2002); Wallenfang v. Havel, 707 F. Supp. 2d 800, 807
(E.D. Wis. 2010).
2. FAILURE TO STATE A CLAIM/SCREENING UNDER 28 U.S.C. § 1915(e)(2)
As pled, the claim of copyright infringement fails under Rule 12(b)(6) and 28 U.S.C. §
1915(e)(2)(B)(ii). The owner of a copyright may maintain an action for direct copyright
infringement where the offending party has violated the copyright owner’s exclusive rights,
which include the right to reproduce and distribute the copyrighted work. 17 U.S.C. §§ 106, 501.

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A copyright infringement claim contains two elements: “(1) ownership of a valid copyright; and
(2) copying of constituent elements of the work that are original.” Bridgeport Music, Inc. v. WM
Music Corp., 508 F.3d 394, 398 (6th Cir. 2007) (quoting Stromback v. New Line Cinema, 384
F.3d 283, 293 (6th Cir. 2004)).
“[A]nyone who is authorized by the copyright owner to use the copyrighted work in a
way specified in the statute or who makes a fair use of the work is not an infringer of the
copyright with respect to such use.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S.
417, 433 (1984). Consequently, when the owner of a copyright grants either exclusive or
nonexclusive rights to use the owner’s copyrighted material, the owner waives the right to sue
the licensee for copyright infringement and may only pursue a breach of contract claim. Murphy
v. Lazarev, 589 F. App’x 757, 764 (6th Cir. 2014) (citing Sony Corp. of Am., 464 U.S. at 433;
Graham v. James, 144 F.3d 229, 236 (2d Cir. 1998)); Mahavisno v. Compendia Bioscience, Inc.,
164 F. Supp. 3d 964, 968-69 (E.D. Mich. 2016).
The court may consider the merit of an affirmative defense on a motion to dismiss where
the affirmative defense is apparent on the face of the complaint. Jones v. Bock, 549 U.S. 199,
215 (2007) (citations omitted) (“Whether a particular ground for opposing a claim may be the
basis for dismissal for failure to state a claim depends on whether the allegations in the complaint
suffice to establish that ground, not on the nature of the ground in the abstract.”); Cataldo v. U.S.
Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012). The District Court for the Southern District of
New York explained that this principle applies when a party relies on a license as a defense to a
claim of copyright infringement:
A defendant may raise a complete defense to a copyright infringement claim by
presenting the court with the license or sublicense on a motion to dismiss, and
“[d]ismissal of a claim for copyright infringement is proper where a contract
underlying the suit clearly and unambiguously demonstrates the existence of the
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defendant’s license to exploit the plaintiff’s copyrights and where plaintiff has not
shown any limitation on that license.”
Spinelli v. Nat’l Football League, 96 F. Supp. 3d 81, 121 (S.D.N.Y. 2015) (quoting Ariel (UK)
Ltd. v. Reuters Grp. PLC, No. 05 CIV. 9646 (JFK), 2006 WL 3161467, at *5 (S.D.N.Y. Oct. 31,
2006) and citing Jasper v. Sony Music Entm’t, Inc., 378 F. Supp. 2d 334, 338 (S.D.N.Y. 2005)).
The complaint does not adequately state a claim for direct copyright infringement. Under
the terms of the Record Contract, StarTune possessed a nonexclusive license to place the Song
for sale in online digital record stores, such as Amazon, for a period of one year beginning
September 2, 2015. (Doc. 1-1, p. 9). As evidence of infringement, the Plaintiff attached to his
complaint a screenshot of an Amazon webpage which purportedly showed the Song for sale as of
July 28, 2016. (Doc. 1-1, pp. 1-3). This was within the one-year term of the Record Contract.
The Plaintiff does not allege that the Amazon listing exceeded the terms of the Record Contract.
Nor does the Plaintiff allege that the Song was reproduced and distributed by StarTune after the
one-year term of the contract. Rather, the Plaintiff alleges that all online sales of his Song after
receipt of a letter from Paramount in March 2016 were unauthorized and therefore infringed on
his copyright. In pertinent part, the Paramount letter stated, “[p]lease be advised that we will no
longer be maintaining your song on iTunes and Amazon, nor do we wish to provide any other
services for you.” (Doc. 1-1, p. 5). As the Songwriter Contract between Paramount and the
Plaintiff involved the development of a song recording, not the distribution of the Song online
(Doc. 1-1, p. 8), this allegation is insufficient to limit StarTune’s license defense. Further, none
of the allegations or attachments to the complaint suggest that either the Plaintiff or StarTune, the
only parties to the Record Contract, terminated or otherwise modified the agreement. Nor has it
been alleged that Paramount had authority to terminate the Record Contract on StarTune’s
behalf. Because the complaint and its attachments demonstrate the existence of a valid defense to
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a claim of direct copyright infringement, the claim should be DISMISSED under Rule 12(b)(6)
and 28 U.S.C. § 1915(e)(2)(B)(ii).
B. BREACH OF CONTRACT
1. SUBJECT-MATTER JURISDICTION
Liberally construing the complaint, the Plaintiff alleges two common law breach of
contract claims. First, the Plaintiff alleges StarTune only paid him $2.80 in royalties in 2015 and
no royalties in 2016. This is reasonably construed as a claim that StarTune breached the royalty
requirement in the Record Contract. Second, the Plaintiff attached to the complaint a notice from
Paramount in which Paramount refunded the expenses the Plaintiff had paid StarTune, paid the
Plaintiff the full amount of royalties owed, and stated “[p]lease be advised that we will no longer
be maintaining your song on iTunes and Amazon, nor do we wish to provide any other services
for you.” (Doc. 1-1, p. 5). This is liberally construed as a claim that Paramount breached the
Record Contract or Songwriter Contract.
With some exceptions, “in any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are
so related to claims in the action within such original jurisdiction that they form part of the same
case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).
“Claims form part of the same case or controversy when they derive from a common nucleus of
operative facts.” Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d 576, 588 (6th Cir. 2016) (quoting
Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195, 209 (6th Cir. 2004)). That is to say, the claims
must “arise from the same contract, dispute, or transaction.” Id. (citing Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350-51 (1988); Capital Park Ltd. Dividend Hous. Ass’n v. Jackson, 202 F.
App’x 873, 877 (6th Cir. 2006)).

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The Court may exercise supplemental jurisdiction over these state law claims. The
Plaintiff alleges that the Record Contract was breached by nonpayment of royalties and
Paramount’s letter. Any subsequent sale of his Song, alleges the Plaintiff, constitutes copyright
infringement. As this Court has original jurisdiction over the Plaintiff’s claim of copyright
infringement, the Court may assert supplemental jurisdiction over these breach of contract claims
which arise out of the same dispute. See 28 U.S.C. § 1367(a).
2. FAILURE TO STATE A CLAIM/SCREENING UNDER 28 U.S.C. § 1915(e)(2)
The complaint does not state a plausible claim for breach of contract arising out of
deficient royalty payments. The basic elements of a breach of contract claim are: (1) an
enforceable contract, (2) nonperformance amounting to a breach of that contract, and (3)
resulting damages. Ingram v. Cendant Mobility Fin. Corp., 215 S.W.3d 367, 374 (Tenn. Ct. App.
2006) (citation omitted). Even if the Plaintiff is able to prove receipt of $2.80 in royalties in 2015
and no royalties in 2016, that alone is insufficient to state a claim for breach of contract. Fatal to
this claim, the Plaintiff fails to allege facts suggesting he did not receive the royalties owed to
him under the Record Contract. The contract plainly states that the Plaintiff is entitled to a
percentage of revenue from Song sales during the contract period. (Doc. 1-1, pp. 9-10).
Noticeably absent from the complaint are factual allegations plausibly showing that the royalties
paid were inconsistent with Song sales. Absent any indication of nonperformance, the complaint
does not state claim for breach of contract based on royalty nonpayment.
Second, the notice from Paramount does not plausibly give rise to a claim for breach of
contract. Based on the materials attached to the complaint, the only contract between the Plaintiff
and Paramount was the Songwriter Contract. Reviewing the complaint and its accompanying
materials, there are no factual allegations that Paramount’s notice violated the terms of the

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Songwriter Contract. Maintaining the Song online for digital sales was required under the Record
Contract, not the Songwriter Contract. The Record Contract was between the Plaintiff and
StarTune. Absent any allegations that Paramount may make contractual decisions on StarTune’s
behalf, the notice from Paramount does not plausibly state a claim for breach of contract.
Because the complaint does not plausibly state a claim for breach of contract, these
claims should be DISMISSED under Rule 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii).
C. PIRACY
The Plaintiff alleged piracy in his complaint. No legal basis for this claim was provided.
Given the context of this suit it is assumed that the Plaintiff is referring to criminal infringement
of a copyright. See 17 U.S.C. § 506; 18 U.S.C. § 2319. Federal courts have subject-matter
jurisdiction to hear claims of criminal copyright infringement. 18 U.S.C. § 3231; United States v.
Liu, 731 F.3d 982, 987 (9th Cir. 2013). However, there is no private right of action to pursue a
claim of criminal copyright infringement under 17 U.S.C. § 506 and 18 U.S.C. § 2319. Taylor v.
Ahold, USA/Martin’s Food & Pharmacy, No. 3:16-CV-248, 2016 WL 1752763, at *2 (E.D. Va.
May 2, 2016); Roy v. Wrenn, No. 12-CV-303-JD, 2013 WL 4541389, at *4 n.4 (D.N.H. Aug. 27,
2013) (citing Kelly v. L.L. Cool J., 145 F.R.D. 32, 39 (S.D.N.Y. 1992)); McCants v. Tolliver, No.
1:11 CV 0664, 2011 WL 2893058, at *1 & n.2 (N.D. Ohio July 15, 2011) (citing Donald
Frederick Evans & Assocs., Inc. v. Cont’l Homes, Inc., 785 F.2d 897, 912-13 (11th Cir. 1986));
Prunte v. Universal Music Grp., 484 F. Supp. 2d 32, 37, 42-43 (D.D.C. 2007).
Because there is no private right of action to enforce criminal copyright law, the claim of
piracy should be DISMISSED pursuant to Rule 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii). See
Galaria v. Nationwide Mut. Ins. Co., No. 15-3386, 2016 WL 4728027, at *5 (6th Cir. Sept. 12,
2016) (explaining that dismissal for lack of statutory standing because the plaintiff does not have

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a cause of action should be done under Rule 12(b)(6)) (citing Roberts v. Hamer, 655 F.3d 578,
581 (6th Cir. 2011)); M.J. Whitman & Co. Pension Plan v. Am. Fin. Enterprises, Inc., 725 F.2d
394, 396 n.2 (6th Cir. 1984) (citations omitted).
IV.

RECOMMENDATION

For the reasons explained above, the Magistrate Judge RECOMMENDS that the motion
to dismiss (Doc. 18) be GRANTED; the claims of copyright infringement, breach of contract,
and piracy claims be DISMISSED under Rule 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii); that
any appeal NOT BE CERTIFIED as taken in good faith under 28 U.S.C. § 1915(a)(3); and that
the Plaintiff’s motion to expedite the case (Doc. 25) be TERMINATED AS MOOT.
The parties have fourteen (14) days after being served with a copy of this R&R to serve
and file written objections to the findings and recommendation proposed herein. A party shall
respond to the objecting party’s objections to this R&R within fourteen (14) days after being
served with a copy thereof. Failure to file specific objections within fourteen (14) days of receipt
of this R&R may constitute a waiver of further appeal. 28 U.S.C. § 636(b)(1); Thomas v. Arn,
474 U.S. 140, 155 (1985).
ENTERED this 23rd day of February, 2017.
/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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