United States District Court, S.D. New York
ROBERT POINDEXTER, Jamaica, NY, Pro se.
SHAPIRO, ARATO & ISSERLES LLP, Cynthia S. Arato, Esq., James Darrow, Esq., New York, NY. Attorneys for Defendant.
ROBERT W. SWEET, District Judge.
Defendant Cash Money Records ("Cash Money" or the "Defendant") has moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the Complaint of pro se plaintiff Robert Poindexter ("Poindexter" or the "Plaintiff") and pursuant to Fed.R.Civ.P. 56 for summary judgment. Upon the facts and conclusions set forth below, the motions are granted.
The Plaintiff filed his complaint on February 20, 2013 ("Complaint") alleging that a sound recording and the underlying musical composition that he, respectively, co-produced and co-wrote were sampled without authorization in a recording by an artist known as Bow Wow released by the Defendant.
The Complaint alleges that the Plaintiff is a songwriter and music producer and the Defendant, Cash Money, "is in the business of recording, selling and distributing [p]honograph [r]ecords." (Compl. ¶ 2). The Complaint concerns a recording titled "Still Bailin, " contained on an alleged "album" titled "Green Light 3, " by the artist Shad Gregory Moss, professionally known as Bow Wow. It alleges that "Still Ballin" contains an unauthorized sample of a musical composition and sound recording titled "Love Gonna Pack Up and Walk Out (Love Gonna Pack Up), " which infringes Plaintiff's alleged rights in these works.
The Complaint alleges that Poindexter co-wrote the musical composition "Love Gonna Pack Up, " and co-produced a "classic" recording of that work in 1972, performed by the recording group The Persuaders. (Id. ¶¶ 4-5). The Complaint notes that he is "not now the copyright owner" of "Love Gonna Pack Up, " (id. ¶ 10), but that "a written agreement exists with the copyright owner Warner/Chappell[Music]" - a music publishing company - "granting [Poindexter] the right to personally file such a complaint as this, " (id.). The Complaint alleges a "right to likewise bring this action for the Sound recording (or master), as well as the composition" of "Love Gonna Pack Up" under the Copyright Act and the United States Constitution. (Id.).
Cash Money is alleged to have released the recording in dispute. (See, e.g., id. ¶ 4 (alleging that "Cash Money sampled" "Love Gonna Pack Up" "into it's [sic]... recording Still Ballin'"); id. ¶ 6 (that [t]he illegal usage is that Cash Money did not acquire authorization, to use the legal version"); id. ¶ 7 (alleging that "Cash Money infringed the copyright... by distributing" the work for free "to the general public on internet downloads"); id. WHERETOFORE clause (seeking damages "since the date of the first illegal use herein by Cash Money")).
The instant motions were marked fully submitted on October 16, 2013.
The facts are set forth in the Defendant's Statement of Undisputed Facts and the Affirmation in Opposition to the Motion and are undisputed except as noted.
The Plaintiff is a songwriter and music producer and Cash Money "is in the business of recording, selling and distributing [p]honograph [r]ecords."
The Complaint concerns a recording titled "Still Bailin, " contained on an album titled "Green Light 3, " by the artist Shad Gregory Moss, professionally known as Bow Wow.
The Complaint alleges that "Still Bailin" contains an unauthorized sample of a musical composition and sound recording titled "Love Gonna Pack Up and Walk Out (Love Gonna Pack Up), " thereby infringing Plaintiff's alleged copyrights in those allegedly sampled works and that Cash Money released and/or distributed "Still Ballin" on the Internet and that "Still Bailin" is Cash Money's recording. (Compl. ¶¶ 4, 6-7).
According to Bow Wow, Cash Money was not involved with and did not participate in the creation, recording, production, release, or distribution of "Green Light 3" or "Still Ballin" and Bow Wow released "Green Light 3" and its recording "Still Bailin" on his own. Before Plaintiff complained of the alleged infringement, Bow Wow never notified or otherwise communicated with Cash Money about "Green Light 3" or "Still Bailin, " and no one did so on his behalf.
A copy of Cash Money's logo appears on certain representations of the "cover" of "Green Light 3, " as released by Bow Wow on the Internet, but Cash Money had nothing to do with, and ...