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PK Music Performance, Inc. v. Timberlake

United States District Court, S.D. New York

June 13, 2017

PK MUSIC PERFORMANCE, INC., Plaintiff,
v.
JUSTIN TIMBERLAKE, et al., Defendants.

          Brian S. Levenson Matthew F. Schwartz Schwartz & Ponterio New York, New York Steven M. Lester La Reddola, Lester & Associates Garden City, New York Counsel for Plaintiff

          Davis Wright Tremaine LLP New York, New York Counsel for Defendants Justin Timberlake, Zomba Recording LLC, Sony Music Entertainment, Tennman Tunes, LLC, and Tennman Productions, LLC

          Prana A. Topper Robert A. Jacobs Manatt, Phelps & Phillips, LLP New York, New York Counsel for Defendants William Adams p/k/a will.i.am d/b/a will.i.am Music Publishing, i.am.composing, llc, will.i.am music, inc., and BMG Rights Management (US) LLC d/b/a BMG Sapphire Songs

          Richard S. Mandel Scott P. Ceresia Cowan, Liebowitz & Latman, P.C. New York, New York Bridget A. Crawford Jones Day New York, New York Counsel for Defendant Universal Music-Z Tunes LLC

          MEMORANDUM & OPINIONX

          Vernon S. Broderick United States District Judge.

         Before me is the motion to dismiss of Defendants William Adams p/k/a will.i.am d/b/a william Music Publishing, i.am composing, llc, will.i.am music, inc., and BMG Rights Management (US) LLC d/b/a BMG Sapphire Songs (the “moving Defendants”), on behalf of themselves and the other named defendants (collectively, “Defendants”). (Doc. 60.) Defendants seek to dismiss Plaintiff PK Music Performance, Inc.'s copyright infringement claim for all time periods prior to February 17, 2013, arguing that Plaintiff may only recover damages for the time period dating three years back from the filing of the complaint. For the reasons that follow, Defendants' motion to dismiss is denied with leave to refile.

         I. Background[1]

         Plaintiff acquired its interest in A New Day Is Here At Last on December 2, 2015, when Janis McQuinton, the principal of PK Music and the sister of Perry Kibble, who wrote the musical composition, assigned her ownership in A New Day Is Here At Last as well as all accrued copyright infringement claims to Plaintiff. (Compl. ¶¶ 18, 23, 25.)[2] Perry Kibble registered the original copyright in A New Day Is Here At Last with the United States Copyright Office with an effective date of August 1, 1969. (Id. ¶ 20.) A recording of A New Day Is Here At Last was made in 1969 by J.C. Davis on the New Day record label. (Id. ¶ 21.) Perry Kibble died in 1999 and, through his will, assigned ownership of the copyright to his sister. (Id. ¶ 23.) McQuinton then recorded the assignment with the United States Copyright Office on February 6, 2003, and Plaintiff registered a renewal with the Copyright Office with the effective date of January 11, 2016. (Id. ¶¶ 24, 27.) Plaintiff published A New Day Is Here At Last on December 26, 2015. (Id. ¶ 26.)

         On or about September 12, 2006, Defendants commercially released the musical composition and sound recording Damn Girl by Justin Timberlake on his album, Futuresex/Lovesounds. (Id. 28.) Plaintiff alleges that a “substantial amount” of the music in Damn Girl is copied from A New Day Is Here At Last, including the introduction, rhythm, harmony, melody, and “hook, ” and that Defendants “copied, reproduced, distributed, and/or publicly performed copyrightable elements of A New Day Is Here At Last in Damn Girl, and/or authorized the same . . . without authorization from plaintiff or Janis McQuinton.” (Id. ¶¶ 29, 32, 35.) Although the song was released in 2006, Plaintiff claims that its principal, McQuinton, first discovered that the music in Damn Girl was allegedly copied from A New Day Is Here At Last in August 2015. (Id. 37.) Based on the foregoing, Plaintiff brings a claim for copyright infringement under the Copyright Act, 17 U.S.C. § 101, et seq., and seeks injunctive and declaratory relief, as well as actual and statutory damages. (Id. ¶¶ 10, 42-50.) Plaintiff seeks damages for infringement beginning on September 12, 2006. (Id. at 10.)

         II. Procedural History

         Plaintiff filed its Complaint on February 18, 2016. (Doc. 4.) On May 9, 2016, the moving Defendants submitted a pre-motion letter on behalf of all Defendants in anticipation of filing a motion to dismiss the copyright infringement claim on statute of limitations grounds for all time periods prior to February 18, 2013, (Doc. 41), and, on May 12, 2016, Plaintiff responded to that letter, (Doc. 44).

         On June 16, 2016, I held a pre-motion conference, during which the parties discussed the anticipated motion as well as the limited discovery contemplated. (See Dkt. Entry June 16, 2016.) In accordance with the briefing schedule set, Defendants filed their motion to dismiss on July 18, 2016. (Docs. 60-61.) Plaintiff then submitted its opposition papers on August 17, 2016, (Docs. 62-64), and Defendants filed their reply papers on September 9, 2016, (Docs. 68-70). Plaintiff further filed a motion for leave to file a sur-reply on September 12, 2016, (Doc. 71), which Defendants opposed on September 13, 2016, (Doc. 72). On September 15, 2016, I denied Plaintiff's request, stating that, to the extent any issue could be considered a new argument under the relevant case law, I would disregard that argument. (Doc. 73.)

         Finally, Plaintiff also filed a number of notices of supplemental authority, (see Docs. 78, 80, 83-85), to which Defendants responded and, in some instances, supplemented with their own new authority, (see Docs. 79, 81-82, 86).

         III. L ...


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