United States District Court, S.D. New York
OPINION & ORDER
M. WOOD, DISTRICT JUDGE.
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
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.
allege that the musical composition "Post to Be" is
an unauthorized derivative of the musical composition
"Came to Do."
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).)
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.) Defendant Atlantic released the "Post
to Be" single and the Sex Playlist album.
Defendant WEA allegedly distributed the album. (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.)
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.)
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.
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.)
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).
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