United States District Court, S.D. New York
For Plaintiff: Kelly D. Talcott.
For Defendants: Brad D. Rose, Ilene S. Farkas, Erik T. Kindschi, PRYOR CASHMAN LLP.
Lewis A. Kaplan, United States District Judge.
This musical copyright case, which is before the Court on defendants' motion to dismiss the complaint, comes down to the question whether the defendants' alleged sampling and use of the word " oh" in an audio recording and music video entitled Run This Town gives rise to a plausible claim of infringement. Plaintiff's allegedly infringed works are a composition and a recording thereof in each of which that word -- " oh" -- appears once. Even assuming that defendants copied, or " sampled," a portion of plaintiff's works, plaintiff has not stated a plausible claim.
Plaintiff allegedly owns copyrights in a musical work called Hook & Sling Part I (the " Composition" ) and a performance thereof by Eddie Bo and the Soul Finders that is contained in a master recording (the " Hook & Sling Master" or the " Master" ). Defendants allegedly produced and released an audio recording entitled Run This Town as well as a music video of the same title, each of which contains a performance of the song by Jay-Z, Rihanna, and Kanye West.
The complaint alleges that " defendants
used one or more unauthorized samples of significant portions of the Hook & Sling Master and Composition" in Run This Town. In fact, however, this dispute is far narrower than that allegation suggests. Plaintiff's pre-suit claim letter, and its acquiescence on this motion in defendants' characterization of its claim, establish that the dispute relates entirely to defendants' alleged sampling and use of the word " oh" -- which appears once in the Hook & Sling Master at approximately 0:03 and allegedly appears 42 times in Run This Town, the first of which may occur at approximately 0:22.
Plaintiff asserts four infringement claims. The first and second allege common law copyright infringement of the Hook & Sling Master by defendants' audio recording and music video, respectively. The third and fourth allege statutory copyright infringement of the Composition by the same accused works, respectively.
The Allegedly Infringed and the Accused Works
The Hook & Sling Master begins with Eddie Bo calling out " Are ya ready?" A group responds " Yeah!" At 0:03, Bo calls or shouts " oh!" and then " one, two, a-one, two, three, four." Percussive music then begins, followed by more lyrics and a guitar melody with bass support. The lyrics indicate that Hook & Sling Part I was designed to introduce or accompany a dance called the " Hook and Sling."
Run This Town bears very little and perhaps no similarity at all to Hook & Sling Part I. The melody and lyrics are entirely different. The lyrics do not contain the word " oh." And while the Court assumes, as plaintiff contends, that the alleged " sample" of that word appears in the accused recording and video 42 separate times, it must be said also that it does so, if at all, only in the background and in such a way as to be audible and aurally
intelligible only to the most attentive and ...