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BMG Rights Management, LLC v. Atlantic Recording Corp.

United States District Court, S.D. New York

August 24, 2017

BMG RIGHTS MANAGEMENT, LLC, et al., Plaintiffs,
v.
ATLANTIC RECORDING CORP., et al., Defendants.

          OPINION & ORDER

          KIMBA M. WOOD, DISTRICT JUDGE.

         BMG Rights Management, Primary Wave Music Publishing, Nicholas Balding, Robert Brackins, Jon Redwine, and Notting Dale Songs, Inc. (collectively, "Plaintiffs") bring this copyright infringement action against Atlantic Recording Corp. ("Atlantic"), WEA, Inc., Dijon McFarlane ("DJ Mustard"), Omari Grandberry ("Omarion"), Songs Music Publishing, and Universal Music.

         Atlantic, WEA, DJ Mustard, Omarion, and Universal Music (collectively, "Defendants") have moved to dismiss Plaintiffs' Complaint under Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 19.) For the reasons set forth below, Defendants' Motion to Dismiss is partially GRANTED.

         I. BACKGROUND

         Plaintiffs allege that the musical composition "Post to Be" is an unauthorized derivative of the musical composition "Came to Do."

         Plaintiffs, with R&B artist Chris Brown ("Brown"), are some of the co-owners of the song "Came to Do, " which was released on the album X by Brown, on September 12, 2014. "Came to Do" was composed around June of 2014, and was later recorded by Brown, featuring the musical artist Akon, before being released on Brown's album. (Complaint ¶ 15 (Doc. No. 1); Defs.' Mot. to Dismiss ("MTD") at 5 (Doc. No. 22).)

         Brown is also one of the co-authors of "Post to Be, " along with Defendants DJ Mustard and Omarion. It was first released as a single song on November 11, 2014, and later appeared on Omarion's album Sex Playlist. (MTD Exs. F-J.)[1] Defendant Atlantic released the "Post to Be" single and the Sex Playlist album. Defendant WEA allegedly distributed the album.[2] (Complaint ¶ 29.) The U.S. Copyright Office has not yet issued a registration for "Post to Be, " although Defendant Universal Music filed a copyright application, which listed Brown as a co-author. (MTD Ex. J.)

         Brown remains a copyright co-owner of "Post to Be." (MTD at 13.) He continues to receive performance and publishing royalties from both "Came to Do" and "Post to Be." (MTD Exs. D-E, H-J.)

         Plaintiffs allege that "Post to Be" is an unauthorized derivative work of "Came to Do, " based on, inter alia: (a) the two-measure synthesized bass line is the main instrumental feature in the opening four measures of both compositions, inclusive of similar syncopated rhythms; (b) the pre-chorus parts contain substantially similar vocal melodies, and are introduced at the same time in both; (c) claps or snaps in the backbeats are introduced at the same time in both; (d) "oh" and "oo" backing vocals commence exactly at the same time in both; (e) chanted or whispered background vocals commence at precisely the same time in both; (f) a more complex drum pattern is introduced at the same time in both; and (g) the tempo of both compositions is nearly identical, (Complaint ¶ 33), with allegedly identical "pitches, intervals, rhythmic durations and beat placement" for the melodies of the title lyrics. Id. ¶ 32.

         Plaintiffs seek an injunction forbidding further acts of copyright infringement, damages, recovery of profits, and a declaratory judgment setting forth the proportion of the publishing royalties due Plaintiffs in the future from the exploitation of "Came to Do." Id. ¶ 55. Defendant Songs Music Publishing answered the Complaint, denying the allegations. (See Doc. No. 18.)

         II. LEGAL STANDARD

         When deciding a motion to dismiss, a court must accept all well-pleaded factual allegations as true, while drawing all reasonable inferences in favor of the non-moving party. See Kaufman v. Time Warner, 836 F.3d 137, 141 (2d Cir. 2016). To survive a motion to dismiss under Rule 12(b)(6), a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell All. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. A claim has "facial plausibility" where the complaint's factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Tongue v. Sanofi, 816 F.3d 199, 209 (2d Cir. 2016) (quoting Iqbal, 556 U.S. at 678).

         On a motion to dismiss, a court may consider any documents attached to the complaint, incorporated by reference, or relied upon and integral to the complaint. See Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).

         III. ...


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