The opinion of the court was delivered by: P. KEVIN CASTEL, District Judge
This action was filed on April 5, 2004. Plaintiffs Ramid Brown,
Theodore Green, Ronique Thomas, and Aldeen Wilson are members of
a Newark-based rap group that records and performs under the name
It's Only Family. These individual plaintiffs, along with
plaintiff BMS Entertainment/Heat Music LLC, are the copyright
owners of the musical composition "Straight Like That."
Defendants include recording and distribution entities, as well
as the artist Christopher Bridges, who records and performs under
the name Ludacris. Plaintiffs allege that their copyright in
"Straight Like That" was infringed by the defendants' composition
"Stand Up." (Amended Complaint ¶¶ 2, 25) With discovery now closed, the defendants move for summary
judgment dismissing the plaintiffs' claims. Defendants argue that
key sections of the plaintiffs' song "Straight Like That" are
unoriginal as a matter of law, and therefore not copyrightable.
Defendants further contend that once these unprotected elements
are removed from consideration, there is no substantial
similarity between the plaintiffs' song "Straight Like That" and
the defendants' song "Stand Up." For the reasons explained below,
the defendants' summary judgment motion is denied.
Summary judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Rule 56(c),
Fed.R.Civ.P. It is the initial burden of a movant on a summary
judgment motion to come forward with evidence on each material
element of his claim or defense, demonstrating that he or she is
entitled to relief. A fact is material if it "might affect the
outcome of the suit under the governing law . . ." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence on
each material element must be sufficient to entitle the movant to
relief in its favor as a matter of law. Vermont Teddy Bear Co.,
Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
An issue of fact is genuine "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 248. The Court must "view the evidence in
the light most favorable to the non-moving party and draw all
reasonable inferences in its favor, and may grant summary
judgment only when no reasonable trier of fact could find in
favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quotations and citations omitted);
accord Matsushita Electric Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587-88 (1986). In reviewing a motion for summary
judgment, the court must scrutinize the record, and grant or deny
summary judgment as the record warrants. See Fed.R.Civ.P.
56(c). In the absence of any disputed material fact, summary
judgment is appropriate. Id.
The elements necessary to establish copyright infringement are
well established. "To establish copyright infringement, `two
elements must be proven: (1) ownership of a valid copyright, and
(2) copying of constituent elements of the work that are
original.'" Williams v. Crichton, 84 F.3d 581, 587 (2d Cir.
1996) (quoting Feist Publications, Inc. v. Rural Telephone
Services Co., 499 U.S. 340, 361 (1991)). "In the absence of
direct evidence, copying is proven by showing `(a) that the
defendant had access to the copyrighted work, and (b) substantial
similarity of protectible material in the two works.'" Id.
(quoting Kregos v. Associated Press, 3 F.3d 656, 662 (2d Cir.
1993), cert. denied, 510 U.S. 1112 (1994)).
For the purposes of this motion, the defendants do not dispute
that plaintiffs have a registered copyright for "Straight Like
That," and that defendants had access to the plaintiffs'
composition.*fn1 Rather, their motion is based exclusively
on a contention that the arguably similar portions of the
plaintiffs' composition are unoriginal, and therefore ineligible
to receive protection under copyright law. Plaintiffs contend
that, once the portions of "Straight Like That" that lack
originality are removed from consideration, there is no
substantial similarity between the plaintiffs' composition and
the defendants' work "Stand Up." See Williams,
84 F.3d at 589-90 (examining the "total concept and feel" of plaintiffs' children's books before
concluding that the setting and individual characters were
unoriginal and not protected by copyright law); Walker v. Time
Life Films, Inc., 784 F.2d 44, 50 (2d Cir.) (thematic elements
in a non-fiction police memoir, including foot chases, officer
morale problems, and certain criminal conduct, were "stock"
themes and not protectable under copyright law), cert. denied,
476 U.S. 1159 (1986).
"Originality remains the sine qua non of copyright;
accordingly, copyright protection may extend only to those
components of a work that are original to the author." Feist
Publications, 499 U.S. at 348. Copyright law protects a
particularized expression of an idea, although the underlying
idea itself is not protectable. Mattel, Inc. v. Azrak-Hamway
Int'l, Inc., 724 F.2d 357, 360 (2d Cir. 1983) (concept of "a
superhuman muscleman crouching in what since Neanderthal times
has been a traditional fighting pose" is unprotectable, but the
particularized rendering of such a person's musculature as
rendered in a toy action figure is protectable). The level of
creativity required for an original work of art has been
described as "extremely low," and only "a slight amount," which
was derived from "some creative spark, no matter how crude,
humble, or obvious it might be." Mattel, Inc. v. Goldberger Doll
Mfg. Co., 365 F.3d 133, 135 (2d Cir. 2004) (quoting Feist,
499 U.S. at 340). "[T]he quantity of originality that need be shown
is modest only a dash of it will do." Rogers v. Koons,
960 F.2d 301, 307 (2d Cir.), cert. denied, 506 U.S. 934 (1992).
Defendants contend that key portions of plaintiffs' composition
are unoriginal. "Straight Like That" uses what is known as a
call-and-response format. Dr. Tricia Rose, a professor at the
University of California-Santa Cruz who studies African-American culture and hip hop music, was retained by the defendants as an
expert. Dr. Rose describes the call-and-response format as "a
foundational element in virtually all West African derived
musics. . . . In a call-and-response phrase, the two parts: the
call and the response, must be understood in tandem, together
making one phrase or hook." (Rose Report at 5, attached at Lepera
Dec. Ex. N) In "Straight Like That," lyrics such as, "You get it
on and poppin," constitute the "call," to which the response is
"straight like that." (Rose Report at 4) In the defendants' song,
"Stand Up," the lyrics, "When I move you move" serve as the
"call," to which the response is "just like that." (Rose Report
at 4) According to the plaintiffs' expert, Dr. Judith Finell,
both "Straight Like That" and "Stand Up" utilize a three-note
rhythmic pattern comprised of an eighth note, quarter note, and
eighth note accompanying the respective lyrics "straight like
that" and "just like that." (Finell Report ¶ 22, attached at
Lepera Dec. Ex. J)
Defendants argue these three discrete aspects of the
plaintiffs' composition the words "like that" proceeded by a
one-syllable word, the composition's call-and-response format,
and the underlying rhythmic pattern of an eighth note, followed
by a quarter note, followed by an eighth note are unoriginal as
a matter of law, and therefore should not receive copyright
protection. Additionally, plaintiffs contend that if these
elements are removed, there are, as a matter of law, no remaining
substantial similarities between "Straight Like That" and "Stand
Up," thus precluding a reasonable jury from finding copyright
Although the Second Circuit has made clear that some stock
themes may be so universal that they cannot be considered
original for copyright purposes, it also has made clear that
unoriginal elements, when combined, may constitute an original, copyrightable work. In Knitwaves, Inc. v. Lollytogs Ltd.
(Inc.), 71 F.3d 996, 1004 (2d Cir. 1995), the Court concluded
that a sweater's commonplace visual elements such as leaves and
squirrels, a "`fall' palette" of colors, and a design that
combined these images and colors were sufficiently original in
combination to warrant copyright protection. The Second Circuit
rejected the defendants' contention "that, in comparing designs
for copyright infringement, we are required to dissect them into
their separate components, and compare only those elements which
are in themselves copyrightable." Id. at 1003. It took note of
the district judge's observation that, "if we took this argument
to its logical conclusion, we might have to decide that `there
can be no originality in a painting because all colors of paint
have been used somewhere in the past." Id. Instead, Knitwaves
emphasized that a court should evaluate a work's "total concept
and feel." Id.*fn2
Similarly, in Santrayll v. Burrell, 1996 WL 134803, at *2
(S.D.N.Y. Mar. 25, 1996), Judge Leisure denied the defendants'
motion for summary judgment, and concluded that "the repetition
of the non-protectible word `uh-oh' in a distinctive rhythm
comprises a sufficiently original composition to render it
protectible by the copyright laws." Santrayll observed in
dictum that it was possible for two otherwise unprotectable
elements to create "a sufficiently original, and indeed,
commercially marketable composition." Id. By contrast, in Jean
v. Bug Music, Inc., 2002 WL 287786, at *6 (S.D.N.Y. Feb. 27,
2002), the district court concluded that summary judgment was appropriate where the lyrics "clap your hands" accompanied by a
common three-note sequence were "so common and unoriginal that
even when they are combined they are not protectible," and that
remaining portions of the song were not substantially similar.
Santrayll and Jean underscore the highly fact-specific nature
of the inquiry.
At oral argument, the defendants attempted to distinguish the
facts of this case from Knitwaves and Santrayll by asserting
that the unoriginal elements of "Straight Like That" had been
combined in a composition also titled "Straight Like That,"
recorded by another rap group, Capone-N-Noreaga. That earlier
composition utilizes the lyrics "straight like that" in a
call-and-response format, accompanied by a rhythm that defendants
contend is substantially the same as that in plaintiffs'
composition. According to the defendants, the Capone-N-Noreaga
composition renders the plaintiffs' composition unoriginal, and
The concept of originality in copyright law is fundamentally
different from concepts of anticipation and novelty in patent
law. See Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99,
103 (2d Cir. 1951) (distinguishing copyright from the doctrine of
anticipation in patent law). Originality looks to whether a work
was independently created by the author. "Originality does not
signify novelty; a work may be original even though it closely
resembles other works so long as the similarity is fortuitous,
not the result of copying. To illustrate, assume that two poets,
each ignorant of the other, compose identical poems. Neither work
is novel, yet both are original and, hence, copyrightable."
Feist, 499 U.S. at 345-46; see also Yurman Design, Inc. v.
PAJ, Inc., 262 F.3d 101, 110 (2d Cir. 2001) ("Under the
Copyright Act, one may market a product identical to a copyrighted work so long as the second
comer designed his product independently.").
Upon my review of the record on this summary judgment motion
and as conceded at oral argument, defendants do not have direct
evidence that plaintiffs were aware of the Capone-N-Noreaga song
at the time they composed "Straight Like That." Similarly, the
defendants' Rule 56.1 Statement does not include any averments
that the plaintiffs were aware of the Capone-N-Noreaga
song.*fn3 As taught by Feist and its predecessors, an
already-existing combination may be original to the author if
independently created. Despite the defendants' efforts to portray
the plaintiffs' composition "Straight Like That" as unoriginal,
the facts submitted on this motion do not foreclose the
possibility that this case falls within the Second Circuit's