Document 8

No. 11-1708

UNITED STATES COURT OF APPEALSFOR THE SEVENTH CIRCUIT

VINCENT PETERS, professionally known asVINCE P.

Plaintiff-Appellant,

v.

KANYE WEST, ROC-A-FELLA RECORDS, LLC andUMG RECORDINGS, INC.

Defendants-Appellees.

Appeal from the United States District Courtfor the Northern District of Illinois, Eastern Division

Case No. 10-cv-3951The Honorable Judge Virginia Kendall

BRIEF OF APPELLEES

PRYOR CASHMAN LLP MICHAEL BEST & FRIEDRICH LLPIlene S. Farkas Ronald H. Balson7 Times Square Carrie A. HallNew York, New York 10036 Two Prudential Plaza(212) 421-4100 180 North Stetson Avenue, Suite 2000Fax: (212) 326-0806 Chicago, Illinois [email protected] (312) 222-0800

Fax: (312) [email protected]@michaelbest.com

Attorneys for Defendants-Appellees

Case: 11-1708 Document: 15-1 Filed: 11/18/2011 Pages: 68

i

DISCLOSURE STATEMENTS


ii


iii


iv

TABLE OF CONTENTS

DISCLOSURE STATEMENTS ....................................................................i

TABLE OF CONTENTS .............................................................................iv

TABLE OF AUTHORITIES........................................................................vi

JURISDICTIONAL STATEMENT..............................................................1

STATEMENT OF THE ISSUES .................................................................1

STATEMENT OF THE CASE .....................................................................2

STATEMENT OF THE FACTS...................................................................6

A. The Plaintiff.........................................................................................6

B. The Defendants ...................................................................................8

C. Plaintiff Brings Suit For Infringement ..............................................8

D. The District Court Properly Dismissed The Complaint..................11

SUMMARY OF ARGUMENT....................................................................16

ARGUMENT...............................................................................................19

I. Standard On A Motion To Dismiss ..................................................19

A. There Is Substantial Precedent Supporting The Dismissal Of Infringement Claims On Rule 12(b)(6) Motions ...19

II. Plaintiff Has Failed To Plausibly Plead That The Songs Are Substantially Similar As A Matter Of Law ...................22

A. The Seventh Circuit Employs The “Ordinary Observer” Test To Determine Substantial Similarity..................................22


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B. The Lyrics At Issue Are UnoriginalAnd Not Protected By Copyright Law.........................................24

1. Plaintiff Cannot Copyright The Title Of His Song.................26

2. Plaintiff Cannot Claim Ownership Of The Name “Kate Moss”....................................27

3. The Hook In Plaintiff’s Chorus Is Unoriginal And Is Thus Not Protected By Copyright...............................28

4. The Combination Of UnprotectableElements In Plaintiff’s Song Is Unprotectable.......................33

a. Plaintiff’s Combination Is Unoriginal ................................33

b. The District Court Properly Dismissed Plaintiff’s Combination Argument .....................................39

D. The District Court Properly Found, As An Ordinary Observer, That The Songs Are Not Substantially Similar.........47

E. The District Court Correctly Found No Fragmented Literal Similarity...............................................49

CONCLUSION ...........................................................................................54


vi

TABLE OF AUTHORITIES

CASES PAGE(s)

Acuff-Rose Music, Inc. v. Jostens, Inc.,155 F.3d 140 (2d Cir. 1998) ................................................13, 30, 31

Alberto-Culver Co. v. Andrea Dumon, Inc.,466 F.2d 705 (7th Cir. 1972)...............................................17, 24, 32

Allen v. Destiny’s Child,No. 06 C 6606, 2009 WL 2178676 (N.D. Ill. July 21, 2009)...........45

Anyere v. Wells Fargo, Co., No. 09 C 2769, 2010 WL 1292494 (N.D. Ill. Mar. 29, 2010) ..........31

Armour v. Knowles, No. H-05-2407, 2006 WL 2713787 (S.D. Tex. Sep. 21, 2006) ........33

Ashcroft v. Iqbal,556 U.S. 662, 129 S. Ct. 1937 (2009)..............................................19

Atari, Inc. v. North America Philips Consumer Electrics Corp.,672 F.2d 607 (7th Cir. 1982).........................................22, 23, 24, 47

Austin v. American Ass’n of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001)...........................................................31

BMS Entertainment/Heat Music LLC v. Bridges, No. 04 Civ. 2584 (PKC), 2005 WL 2675088 (S.D.N.Y. Oct. 20, 2005) .................................................................45

Bell Atlantic Corp. v. Twombly,127 S. Ct. 1955 (2007) ....................................................................19

Bell v. Blaze Magazine,No. 99 Civ. 12342 (RCC), 2001 WL 262718 (S.D.N.Y. Mar. 16, 2001) ..........................................................33, 49


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CASES PAGE(s)

Boone v. Jackson, 206 Fed. Appx. 30 (2d Cir. 2006)..............................................25, 32

Bridgeport Music, Inc. v. UMG Recordings, Inc.,585 F.3d 267 (6th Cir. 2009)...........................................................52

Bucklew v. Hawkins, Ash, Baptie & Co., LLP,329 F.3d 923 (7th Cir. 2003)...............................................40, 41, 42

Castle Rock Entertainment, Inc. v. Carol Publishing Grp., Inc.,150 F.3d 132 (2d Cir. 1998) ............................................................50

Clark v. G.A. Kayser & Sons, Inc., 472 F. Supp. 481 (W.D. Pa. 1979) ..................................................39

Currin v. Arista Records,724 F. Supp. 2d 286 (D. Conn. Apr. 15, 2010)................................26

Damiano v. Sony Music Entertainment, Inc.,975 F. Supp. 623 (D.N.J. 1996) ..........................................37, 38, 48

Darden v. Peters,488 F.3d 277 (4th Cir. 2007)...........................................................27

Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905 (2d Cir. 1980) ............................................................39

Feist Publ’ns, Inc. v. Rural Telegraph Serv. Co.,499 U.S. 340 (1991) ................................................................ passim

Gottlieb Development LLC v. Paramount Pictures Corp.,590 F. Supp. 2d 625 (S.D.N.Y. 2008)........................................21, 24

Grimes v. Navigant Consulting, Inc., 185 F. Supp. 2d 906 (N.D. Ill. 2002)...............................................31


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CASES PAGE(s)

Hayes v. Koch Entertainment, G-06-515, 2008 U.S. Dist. LEXIS 33418 (S.D. Tex. Mar. 14, 2008)..........................................................25, 26

Incredible Technologies, Inc. v. Virtual Technologies, Inc.,400 F.3d 1007 (7th Cir. 2005).............................................22, 23, 49

JCW Investments, Inc. v. Novelty, Inc.,482 F.3d 910 (7th Cir. 2007).........................................22, 23, 40, 41

Jarvis v. A&M Records,827 F. Supp. 282 (D.N.J. 1993) ......................................................52

Jean v. Bug Music, Inc.,No. 00 Civ. 4022 (DC), 2002 WL 287786 (S.D.N.Y. Feb. 27, 2002) .....................................................24, 25, 38

Johnson v. Gordon,409 F.3d 12 (1st Cir. 2005) .............................................................48

Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995) ..............................................................39

Kroencke v. General Motors Corp.,270 F. Supp. 2d 441 (S.D.N.Y. 2003), aff’d, 99 Fed. Appx. 339 (2d Cir. 2004).....................................51, 52

Lessem v. Taylor,766 F. Supp. 2d 504 (S.D.N.Y. 2011)..............................................46

Lil’ Joe Wein Music, Inc. v. Jackson, 245 Fed. Appx. 873 (11th Cir. 2007) ........................................33, 38

Martinez v. McGraw, No. 3:08-0738, 2009 WL 2447611 (M.D. Tenn. Aug. 10, 2009) .....33


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CASES PAGE(s)

Menominee Indian Tribe v. Thompson, 161 F.3d 449 (7th Cir. 1998)...........................................................31

Murray Hill Publ’ns, Inc. v. Twentieth Century Fox Film Corp.,361 F.3d 312 (6th Cir. 2004)...........................................................51

Narell v. Freeman,872 F.2d 907 (9th Cir. 1989)...........................................................32

Nelson v. PRN Productions, Inc.,873 F.2d 1141 (8th Cir. 1989).........................................................20

Newton v. Diamond,388 F.3d 1189 (9th Cir. 2004).........................................................50

Nova Design Build, Inc. v. Grace Hotels, LLC,652 F.3d 814 (7th Cir. 2011).....................................................18, 49

Peter Pan Fabrics, Inc. v. Martin Weiner Corp.,274 F.2d 487 (2d Cir. 1960) ............................................................47

Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57 (2d Cir. 2010) ..........................................................................21

Prunte v. Universal Music Group,699 F. Supp. 2d 15 (D.D.C. 2010).............................................14, 37

Ruolo v. Russ Berrie & Co.,886 F.2d 931 (7th Cir. 1989)...............................................12, 40, 41

Santrayll v. Burrell,No. 91 Civ. 3166 (PKL), 1996 WL 134803 (S.D.N.Y. Mar. 25, 1996) ................................................................45

Satava v. Lowry,323 F.3d 805 (9th Cir. 2003)...............................................15, 34, 43


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CASES PAGE(s)

Schroeder v. William Morrow & Co.,566 F.2d 3 (7th Cir. 1977) ..............................................................28

Softel, Inc. v. Dragon Med. and Scientific Communications, Inc., 118 F.3d 955 (2d Cir. 1997) ............................................................39

Staggs v. West, No. PJM 08-728, 2009 WL 2579665 (D. Md. Aug. 17, 2009)........................................................20, 32, 37

Steele v. Turner Broadcast System, Inc.,646 F. Supp. 2d 185 (D. Mass 2009)...................................14, 36, 37

Susan Wakeen Doll Co. v. Ashton-Drake Galleries,272 F.3d 441 (7th Cir. 2001).....................................................12, 23

Sweet v. City of Chicago,953 F. Supp. 225 (N.D. Ill. 1996)..............................................19, 26

Tabachnik v. Dorsey, 257 Fed. Appx. 409 (2d Cir. 2007)..................................................21

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 127 S. Ct. 2499 (2007)..............................................31

Tillman v. New Line Cinema Corp.,No. 05 C 910, 2008 WL 5427744 (N.D. Ill. Dec. 31, 2008), aff’d, 374 Fed. Appx. 664 (7th Cir. 2010) .......................................48

Tin Pan Apple, Inc. v. Miller Brewing Co.,No. 88 Civ. 4085 (CSH), 1994 WL 62360 (S.D.N.Y. Feb. 24, 1994) .................................................................45

Tiseo Architects, Inc. v. B&B Pools Serv. and Supply Co.,495 F.3d 344 (6th Cir. 2007).....................................................24, 49


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CASES PAGE(s)

Vaden v. Village of Maywood,809 F.2d 361 (7th Cir. 1987)...........................................................19

Wildlife Express Corp. v. Carol Wright Sales, Inc.,18 F.3d 502 (7th Cir. 1994) ................................................12, 24, 47

Williams v. Broadus,No. 99 Civ. 10957 (MBM), 2001 WL 984714 (S.D.N.Y. Aug. 27, 2001).................................................................52

Williams v. Crichton, 84 F.3d 581 (2d Cir. 1996) ..........................................................................21

Wihtol v. Wells, 231 F.2d 550 (7th Cir. 1956) .............................................................26

Zella v. E.W. Scripps Co.,529 F. Supp. 2d 1124 (C.D. Cal. 2007) .....................................20, 31

STATUTES

Fed. R. Civ. P. 12(b)(6).............................................................................19

TREATISE

4 Melville B. Nimmer, David Nimmer, Nimmer on Copyright, § 13.03[A][2] (Matthew Bender Rev. ed.)...........................................50


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JURISDICTIONAL STATEMENT

The Plaintiff’s Jurisdictional Statement is complete and correct.

STATEMENT OF THE ISSUES

1. Where the only alleged similarities between song lyrics are

five words and short phrases, all of which the Plaintiff concedes are

unoriginal to him, did the district court properly dismiss Plaintiff’s sole

claim for copyright infringement, finding that no ordinary observer could

find substantial similarity between the two works?

2. In determining whether Plaintiff had stated a claim for

copyright infringement, did the district court properly follow the

precedent of this Circuit by first identifying which elements of Plaintiff’s

work at issue are protected by copyright?

3. Once the unprotectable elements at issue were eliminated,

did the district court properly find that Plaintiff has not adequately pled

substantial similarity since there remained virtually no similarities

between the two works at issue?

4. Did the district court properly find that the combination of

four or five unprotectable elements in the two songs does not rise to the

level of protectable expression, where the few alleged similarities are


2

qualitatively and quantitatively minor as compared to the songs as a

whole, derive from a maxim, and even the alleged similarities contain

numerous differences?

5. Did the district court properly dismiss Plaintiff’s sole

copyright infringement claim on a motion to dismiss, where no amount of

discovery, fact-finding or expert testimony will change the lyrics to the

song or Plaintiff’s admission that the words and phrases at issue are

unoriginal to him?

STATEMENT OF THE CASE

Plaintiff has brought suit based upon a handful of alleged

similarities between the lyrics of two songs. Plaintiff does not claim any

similarity between the music of the two songs. Plaintiff concedes that

the alleged lyrical similarities are unoriginal to him and, individually,

unprotectable. Indeed, with the exception of one lyrical similarity (a

reference to the “Supermodel” Kate Moss, which is not copyrightable),

the remaining alleged similarities all concededly derive from a century-


3

old maxim by Friedrich Nietzsche, a maxim that, as the district court

found, “enjoyed a robust existence in the public domain.” (Opinion at 8.)1

Plaintiff bases his claim on the supposed copyrightability of the

“combination” of these otherwise unprotectable words and phrases

contained in completely different songs. Yet Plaintiff failed to cite a

single case that supports even the possibility of actionable infringement

based on the scant alleged similarities at issue herein. That is not

surprising, because if the alleged similarities here could state a claim for

copyright infringement, it would create a dangerously low threshold for

establishing copyright protection over otherwise commonplace words and

phrases. The copyright laws were not meant to create such a monopoly

in common words and phrases.

The district court, in a detailed and well-reasoned decision,

dismissed the Plaintiff’s one-count complaint, holding that (a) the

individual alleged similarities are unoriginal to Plaintiff and

unprotectable; and (b) the combination of these unprotectable elements

in the songs is not “substantially similar” as a matter of law.

1 A true and correct copy of the district court’s Opinion can be found in the Defendants’ Appendix at pages 1 through 12. Citations to Defendants’ Appendix are referenced herein as “Defs. Appx. at __.”


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Plaintiff now appeals the district court’s decision. On appeal,

Plaintiff concedes that the district court employed the proper standard in

determining substantial similarity. He concedes that there are only, at

most, five alleged lyrical similarities between the two songs. He

concedes that each one of these lyrics is unoriginal to him and

unprotectable. He cites no authority which supports his argument that

the combination of these five scattered unprotectable elements state a

claim for infringement based on substantial similarity. He does not

distinguish – much less address – the substantial authority cited by

Defendants below which granted motions to dismiss infringement claims

where the alleged similarities consisted of nothing more than

commonplace words and phrases.

Rather, Plaintiff simply argues that because the majority of these

similarities are contained in the “hook,” or chorus of the two songs, and

the “hook” is a “major element” of the song, the similarities alleged are

enough to state a claim for infringement. He cites no authority to

support his position, and ignores the simple fact that there are many

more differences in the choruses than similarities, and the alleged

similarities (which also contain many differences) all derive from a


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century-old maxim written by someone else – a maxim that has been

used in many songs before Plaintiff’s (and Defendants’) song.

Plaintiff’s remaining argument fares no better. While he admits

that the similarities contained in the songs are minimal, Plaintiff

nonetheless claims that an ordinary observer would find that the songs

as a whole are substantially similar, presumably based on the “total

concept and feel” of the two songs. The district court, however,

considered and dismissed this argument – and with good reason. In fact,

the side-by-side comparison of the lyrics conducted by the district court

demonstrates that there are so many differences that no ordinary

observer could find that the songs are substantially similar. Thus,

following well-established precedent, the district court properly found as

a matter of law that Plaintiff had failed to state a claim for infringement,

and properly dismissed Plaintiff’s Complaint.

Simply put, the lyrics are different. The music is different. Even

the alleged similarities are, in fact, quite different. The district court

properly held that the facts set forth in Plaintiff’s Complaint fall far

short of pleading a claim for copyright infringement and therefore must


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be dismissed as a matter of law. The decision of the district court should

be affirmed.

STATEMENT OF THE FACTS

A. The Plaintiff

Plaintiff Vincent Peters (“Plaintiff” or “Peters”) claims to be an “up-

and-coming” songwriter and performer in the “hip-hop” or “rap” field of

music. (Compl. ¶¶ 1, 9.)2 According to the Complaint, sometime in 2006,

Plaintiff wrote and recorded Plaintiff’s Song. (Id. ¶ 13.) Plaintiff alleges

that Interscope Records “was interested” in Plaintiff as a potential

recording artist, “and indicated to [Plaintiff] that it would consider

devoting substantial resources to the production of an album by

[Plaintiff] if he had a good executive producer.” (Id. ¶ 14.) In August

2006, Plaintiff alleges that he contacted John Monopoly to see whether

Monopoly would be interested in acting as his executive producer. (Id.)

Plaintiff concedes that this meeting had nothing to do with Defendant

Kanye West – Plaintiff was not seeking to work with Mr. West through

Monopoly; rather, he was seeking Monopoly’s help in producing his own

2 A true and correct copy of the Complaint can be found in Plaintiff’s Appendix at pages 1 through 10.


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material. Plaintiff alleges that Monopoly was Mr. West’s former

business manager. (Id.)

Plaintiff alleges that over the following months, he sent certain

songs to Monopoly’s administrative assistant. (Id. ¶ 16.) Plaintiff claims

that, on November 12, 2006, Plaintiff and Monopoly met and apparently

listened to some of Plaintiff’s recordings, including Plaintiff’s Song. (Id.

¶ 19.) At that meeting, Plaintiff allegedly gave Monopoly a CD

containing several of his songs, including Plaintiff’s Song. (Id. ¶ 20.)3

While Plaintiff alleges that Monopoly told him that he would act as the

executive producer on an Interscope project, apparently “the proposed

infusion of funds from Interscope did not materialize, and the project did

not proceed.” (Id. ¶ 24.)

Plaintiff does not allege that he ever gave a copy of Plaintiff’s Song

to Mr. West. Nor does Plaintiff allege that Mr. West had actually ever

heard Plaintiff’s Song. Rather, Plaintiff speculates that Mr. West had

access to Plaintiff’s Song via Mr. Monopoly. (Id. ¶ 35.) Plaintiff further

speculates that Mr. West may have had access to Plaintiff’s Song on

Plaintiff’s public MySpace website page. (Id. ¶ 36.)

3 Although not relevant on this appeal, Defendants dispute these allegations.


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B. The Defendants

Mr. West is a well-known Grammy Award-winning artist and

music producer. (Id. ¶ 10.) Mr. West has written dozens of highly

successful songs, including Defendants’ Song. Plaintiff alleges that Mr.

West released Defendants’ Song digitally in July 2007. (Id. ¶ 25.)

According to the Complaint, Defendant Roc-A-Fella Records and its

parent company, Defendant UMG Recordings, sold and distributed

Defendants’ Song. (Id. ¶¶ 11-12.)

Defendants’ Song won the Grammy Award for Best Rap Solo

Performance in 2008 and reached number one on the music charts in

numerous countries. (Id. ¶ 26.) It has also been commercially successful,

selling over three million singles and has been named the 16th most

downloaded song on iTunes of all time. (Id.)

C. Plaintiff Brings Suit For Infringement

In June 2010, three years after the release of Defendants’ Song,

Plaintiff brought this action, which appeared to coincide with his

attempts to publicize his new album. Plaintiff had not previously

registered his song (which was allegedly created in 2006) for copyright

registration with the U.S. Copyright Office, nor had he obtained a valid


9

registration. Rather, weeks before commencing the action, on March 28,

2010, Plaintiff submitted an application for registration of Plaintiff’s

Song to the U.S. Copyright Office. (Id. ¶ 40.)

Plaintiff concedes that that there is no actionable similarity

between the music of the two songs. Instead, Plaintiff bases his single

infringement claim solely on the alleged similarity between four words or

phrases, and the shared one-word title of the two songs. Specifically,

Plaintiff’s claim is based on the following alleged similarities:

1. Both songs share the same title, “Stronger.” (Id. ¶ 34.)

2. Both songs make one reference to the well-known supermodel

Kate Moss (albeit differently). (Id. ¶ 32.)

3. The choruses contain some similar words, which are

highlighted below:4

4 In fact, out of the 33 total words in Plaintiff’s chorus, only 9 are claimed to be “copied” in Defendants’ Song; only 9 words out of the 51 words in Defendants’ chorus are alleged to be similar. No sentence is the same. Instead, only a few random words are similar, yet those words are set forth in an entirely different sequence. Even the expression of the Friedrich Nietzsche proverb is different.


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Plaintiff’s Song Defendants’ Song

What don’t kill me make me strongerThe more I blow up the more you wrongerYou coped my CD you can feel my hungerThe wait is over couldn’t wait no longer

N-N-N-now th-th-that don’t kill meCan only make me strongerI need you to hurry up nowCause I can’t wait much longerI know I got to be right nowCause I can’t get much wrongerMan I’ve been waitin’ all night nowThat’s how long I’ve been on ya

Plaintiff admits that both choruses derive from the well-known

maxim by Friedrich Nietzsche, “That which does not kill us makes us

stronger.” (Id. ¶ 30; Pl. Br. at 17.) They both include the word

“wronger,” which rhymes with the last word of the maxim, “stronger.”

(Id. ¶¶ 33-34.) And Plaintiff’s Song includes the line “couldn’t wait no

longer,” while Defendants’ Song includes the generic line “can’t wait

much longer.” (Id. ¶ 31.)

That is the full extent of the alleged similarities. There are

hundreds of other words and phrases contained in both songs, none of

which are allegedly similar. (Dkt. 18, Exh. C.)5

5 A side-by-side comparison of the Songs can be found in Defendants’ Appendix at page 13.


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D. The District Court Dismissed The Complaint

On March 3, 2011, the district court dismissed Plaintiff’s

Complaint, finding that the songs are not “substantially similar” as a

matter of law. (Defs. Appx. at 6.) The district court had before it the

Plaintiff’s allegations as to which lyrics are supposedly “similar,” the

complete lyrics of the two songs, recordings of the two songs (Dkt. 18,

Exh. B), as well as a side by side comparison of the lyrics (Defs. Appx. at

13).

In a detailed, 12-page decision, the district court reviewed the lyrics

at issue, the arguments presented by Plaintiff and the authorities cited

by the parties. In finding no substantial similarity between the five

phrases and lyrics at issue and granting Defendants’ motion to dismiss,

the district court held that, to withstand a motion to dismiss,6 Plaintiff

must sufficiently plead substantial similarity between the two songs at

issue:

6 Unless direct evidence of copying is available, a plaintiff must also sufficiently plead that defendants had access to plaintiff’s work. Because the issue of whether a defendant had access to plaintiff’s work is inherently a factually-intensive analysis, solely for the purposes of this motion, Defendants did not move to dismiss based on access. However, if this case proceeds to discovery, Defendants will demonstrate that none of the Defendants were ever given a copy of Plaintiff’s Song or otherwise had access to this work (assuming, arguendo, it even existed prior to the creation of Defendants’ Song).


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Peters must also plausibly plead that West’s Song is substantially similar to Peters’s Song. To do so, Peters must plausibly plead that “the accused work is so similar to the plaintiff’s work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff’s protectable expression.” Susan Wakeen Doll, 272 F.3d at 451 (citation omitted). Although the ordinary observer test depends on whether the accused work has captured the “total concept and feel” of the copyrighted work, the Court must first identify which elements of the work are protected by the copyright. Wildlife Express,18 F.3d at 511-12 (citation omitted); see also Ruolo v. Russ Berrie & Co., 886 F.2d 931, 939 (7th Cir. 1989); FASA Corp. v. Playmates Toys, Inc., 912 F. Supp. 1124, 1147 (N.D. Ill. 1996) . . . Because Peters claims that West’s Song infringes on his song due to their similar titles, references to Kate Moss, and portions of the hooks, the Court must first identify whether those elements of Peters’s Song are protected by copyright. The Court then addresses whether Peters has adequately pled that an ordinary observer would find substantial similarity between the protectable elements of the two works. (Defs. Appx. at 6-7) (emphasis added).

In reaching its decision, the district court then analyzed whether

the lyrics at issue are protected by copyright. (Id. at 6-10.) It held that

the title of the Plaintiff’s Song and the singular reference to the name

“Kate Moss” are not copyrightable. (Id. at 7-8.) With respect to the

remaining alleged similarities between the song lyrics – all of which are

contained in the “hook” or chorus of each song, and all of which are based

on an admittedly famous Friedrich Nietzsche maxim – the district court


13

held these lyrics to be unoriginal to Plaintiff, and unprotectable. (Id. at

8-9):

The phrase “[t]hat which does not kill me makes me stronger” in Peters’s Song is unprotectable. “To qualify for copyright protection, a work must be original to the author.” Feist, 499 U.S. at 345. Although the “requisite level of creativity [for originality] is extremely low,” the work must have been independently created by the author to be original. Id. Here, Peters concedes in his Complaint that the reference is to a “maxim.” (Compl. ¶30.) Maxims that enjoy a “robust existence in the public domain” long before being employed in song lyrics lack the “requisite originality to warrant protection.” Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 144 (2d Cir. 1998) (holding that the phrase “[y]ou’ve got to stand for something or you’ll fall for anything” is too common to be protectable) (citations omitted); see also Selle, 741 F.2d at 901 (“[I]f both works were copied from a common source in the public domain, then there is no infringement.”). Because this maxim was copied from a common source that enjoyed a robust existence in the public domain, it is unprotectable. (Defs. Appx. at 8.)

With respect to the two remaining words and short phrases that

derive from this maxim: “couldn’t wait no longer” and “wronger,” the

court held that these are not protected by copyright (Id. at 8-9.) As the

district court held, “common, trite, and clichéd language conveying ideas

generally expressed in a limited number of ways are unprotectable.” (Id.


14

at 9.) The district court went on to reject Plaintiff’s reliance on these

short phrases, each of which was based on the Nietzsche maxim:

Here, “couldn’t wait no longer” in Peters’s Song is a short phrase expressing impatience in trite and clichéd language. While the word “wronger” may not be common, it is not unique to Peters and is instead part of a common rhyme scheme ending in “-er.” Common rhyme schemes, however, are not protectable. See, e.g., Steele v. Turner Broad. Sys., Inc., 646 F. Supp. 2d 185, 192 (D. Mass. 2009) (“A common rhyme scheme or structure does not qualify as original expression protectable under federal copyright law.”); Prunte v. Universal Music Group, 699 F. Supp. 2d 15, 29 (D.D.C. 2010) (“[A] rhyme scheme using words ending in the commonplace ‘-ill’ sound is [not] protectible.”). Therefore, Peters’s use of the words “longer” and “wronger” in a triple rhyme with “stronger” is not protectable.” As such, Peters’s Complaint does not plausibly allege that the hook of Peter’s Song is a protectable element of the work. (Id. at 9.)

The district court then rejected Plaintiff’s argument that the

combination of the unprotectable elements at issue here is otherwise

protectable. It noted that while courts “have stated that combinations of

unprotectable elements can be protectable, they have done so in limited

contexts.” (Id. at 9-11.) The court held that an original combination of

unprotectable elements is only protectable when “‘those [unprotectable]

elements are numerous enough and their selection and arrangement

original enough that their combination constitutes an original work of


15

authorship.’ Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003).” (Defs.

Appx. at 10.)

The district court addressed – and distinguished – the cases relied

upon by Plaintiff for his argument that the “combination” of lyrical

similarities is enough to state a claim for infringement. (Id.) The court

rejected Plaintiff’s argument, finding that the “hook in West’s Song

differs significantly from the hook in Peters’s Song and contains a triple

rhyme instead of Peters’s quadruple rhyme. Indeed, [unlike the cases

relied upon by Plaintiff] none of the sentences that comprise the two

hooks – even those referencing the maxim – are identical.” (Id.) The

district court found that the combination of Plaintiff’s unprotectable

elements is not protectable. (Id. at 10-11.)

Then, the district court analyzed whether, once the unprotectable

elements are eliminated, an “ordinary observer” would find that the two

works are substantially similar. (Id. at 11.) The court engaged in a side-

by-side comparison of the two sets of lyrics and held that an ordinary

observer would find that the Songs are not substantially similar. (Id.)

The district court found that “the hooks and verses no longer have any

similarities and are different in content and style.” (Id.)


16

The district court also dismissed Plaintiff’s final argument that the

Songs have “fragmented literal similarity,” a theory employed in other

circuits. (Id. at 11-12.) The court held that the few identical words

contained in the Songs do not rise to the level of fragmented literal

similarity, and they “do not have readily recognizable qualitative

significance in relation to the [Plaintiff’s] work as a whole.” (Id. at 12.)7

As shown below, the district court’s analysis was sound, and in full

accord with Seventh Circuit jurisprudence. It is respectfully submitted

that the district court’s dismissal of the Complaint should be affirmed.

SUMMARY OF ARGUMENT

Plaintiff bases his claim for copyright infringement on the

Defendants’ alleged use of five unoriginal and unprotectable words and

short phrases appearing in Plaintiff’s Song. Plaintiff makes no claim of

similarity regarding the music of Defendants’ Song; it is only this

handful of lyrics at issue. Plaintiff concedes that the alleged lyrical

similarities are unoriginal to him and individually unprotectable.

7 While Plaintiff claims that the district court improperly “filtered out” the lyrics at issue, Plaintiff concedes that a substantial similarity analysis requires the court to first identify the elements of the work that are protected by copyright, which necessitates an examination of the lyrics at issue and whether they are protectable. Indeed, the cases cited by the district court on this point are relied upon by Plaintiff. (Compare Defs. Appx. at 6-7 with Pl. Br. at 27.)


17

The district court properly dismissed this action based on relevant

precedent. On a motion to dismiss based on the failure to plausibly plead

substantial similarity, courts routinely examine whether the lyrics at

issue are protectable under copyright law. Here, the district court

correctly determined that each of the five words and phrases at issue are

unoriginal and thus unprotectible as a matter of law. While Plaintiff

generally contends that titles, words and phrases are protectable,

controlling caselaw is to the contrary. See, e.g., Alberto-Culver Co. v.

Andrea Dumon, Inc., 466 F.2d 705, 710 (7th Cir. 1972) (short phrase not

protectable under copyright law). Moreover, Plaintiff does not seriously

contend that the particular words and phrases at issue are original to

him. Nor could he, since he admits that all but one of the lyrics derive

from a famous Nietzsche proverb. The remaining lyrical similarity is the

use of the name of a famous supermodel – albeit, in different contexts –

which Plaintiff concedes is not protectable as a matter of law.

In addition, the district court properly found that merely combining

the unprotectable lyrics in Plaintiff’s Song does not, as Plaintiff asserts,

render them protectable. The district court found the purported

combination to be unoriginal, and in addition, that even the combination


18

of words and phrases in Defendants’ Song were significantly different

than the combination of those words in Plaintiff’s Song.

Finally, the district court conducted a side-by-side comparison of

the lyrics as an ordinary observer, and determined that the Songs’ lyrics

are not substantially similar. While Plaintiff faults the district court for

“filtering out” the lyrics at issue, the district court followed Seventh

Circuit precedent in conducting its ordinary observer analysis, which

requires a court to first determine which elements at issue are

protectable by copyright. See, e.g., Nova Design Build, Inc. v. Grace

Hotels, LLC, 652 F.3d 814, 818 (7th Cir. 2011).

The district court also properly held that there is no fragmented

literal similarity here. Contrary to Plaintiff’s argument, a simple

reading of the lyrics shows that the words and phrases contained in the

choruses of both Songs are not exact or even nearly exact. Thus, the

district court correctly determined as a matter of law that the Songs

share no similarities, let alone similarities that can be categorized as

“substantial.”


19

ARGUMENT

I. Standard On A Motion To Dismiss

To survive a motion to dismiss, a plaintiff must do more than solely

recite the elements for a violation; he must plead facts with sufficient

particularity so that his right to relief is more than mere conjecture. See

Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009); Bell Atl.

Corp. v. Twombly, 127 S. Ct. 1955, 1969 (2007). The Court need not

accept conclusory legal allegations as true. Vaden v. Village of Maywood,

809 F.2d 361, 363 (7th Cir. 1987). Dismissal is warranted where the

complaint fails to allege enough facts to state a claim for relief that is

plausible on its face. Twombly, 127 S. Ct. at 1974.

A. There Is Substantial Precedent Supporting The Dismissal Of Infringement Claims On Rule 12(b)(6) Motions

The district court’s decision is in line with many other decisions

that have dismissed copyright infringement claims on a Rule 12(b)(6)

motion where the court can determine, as a matter of law, that no

substantial similarity exists between the works at issue. For example, in

Sweet v. City of Chicago, 953 F. Supp. 225, 228-29 (N.D. Ill. 1996), the

plaintiffs sued for infringement based on, inter alia, the similar titles of

the works. The Northern District of Illinois granted the defendants’


20

motion to dismiss with prejudice, holding that titles are not protected by

copyright and the works were not otherwise substantially similar. Id. at

230. Similarly, in Staggs v. West, No. PJM 08-728, 2009 WL 2579665, at

*3-5 (D. Md. Aug. 17, 2009), the plaintiff sued Mr. West and UMG

Recordings, among other defendants, alleging that, inter alia, the

defendants infringed his musical composition by copying portions of his

song lyrics. Id. at *2-4. The court granted defendants’ motion to dismiss,

finding that, as a matter of law, the alleged lyrical similarities consisted

of nothing more than commonplace words and phrases, which is

insufficient to plead substantial similarity. Id. at *7-8.

Simply put, “[t]here is ample authority for holding that when the

copyrighted work and the alleged infringement are both before the court,

capable of examination and comparison, non-infringement can be

determined on a motion to dismiss.” Zella v. E.W. Scripps Co., 529 F.

Supp. 2d 1124, 1130 (C.D. Cal. 2007) (citation & quotations omitted); see

also Nelson v. PRN Prods., Inc., 873 F.2d 1141, 1143-44 (8th Cir. 1989)

(“The trial judge could properly determine the matter of substantial

similarity as a matter of law and did so by granting defendants’ motion

to dismiss the copyright count on the ground that it failed to state a


21

claim for infringing use”); Tabachnik v. Dorsey, 257 Fed. Appx. 409, 410

(2d Cir. 2007) (granting motion to dismiss where no substantial

similarity existed); Gottlieb Dev. LLC v. Paramount Pictures Corp., 590

F. Supp. 2d 625, 634 (S.D.N.Y. 2008) (dismissing copyright infringement

claim on motion to dismiss where any copying was de minimis as a

matter of law and therefore no reasonable juror could find substantial

similarity); Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602

F.3d 57, 63 (2d Cir. 2010);Williams v. Crichton, 84 F.3d 581, 589 (2d Cir.

1996).

Like the plaintiffs in the cases cited above, Plaintiff has failed to

allege sufficient facts to plausibly establish substantial similarity. Here,

the district court had the lyrics before it. (See Defs. Appx. at 13.) The

district court was clearly capable of examining and comparing the lyrics

at issue and determining, based on the few similarities alleged, whether

Plaintiff had stated a claim for copyright infringement. While Plaintiff

half-heartedly argues that there is some purported need for discovery

and expert testimony (see Pl. Br. at 9-10), no amount of discovery will

change the simple fact that there are only four or five alleged similarities


22

between the Songs’ lyrics at issue, and none of them are original to the

Plaintiff. Accordingly, the district court’s decision should be affirmed.

II. Plaintiff Has Failed To Plausibly Plead That The Songs Are Substantially Similar As A Matter Of Law

A. The Seventh Circuit Employs The “Ordinary Observer”Test To Determine Substantial Similarity

To succeed on his claim for copyright infringement, Plaintiff must

prove: (1) ownership of a valid copyright; and (2) unauthorized copying of

constituent elements of the work that are original. JCW Invs., Inc. v.

Novelty, Inc., 482 F.3d 910, 914 (7th Cir. 2007) (quoting Feist Publ’ns,

Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). Because direct

evidence of copying is rarely available, copying may be inferred only

where a plaintiff can prove that a defendant had access to the plaintiff’s

work and the accused work is “substantially similar” to the plaintiff’s

copyrighted work. Atari, Inc. v. North Am. Philips Consumer Elecs.

Corp., 672 F.2d 607, 614 (7th Cir. 1982). To prove substantial similarity,

a plaintiff must show that the defendants copied from the plaintiff’s work

and that the copying, if proven, “‘went so far as to constitute an improper

appropriation.’” Incredible Techs., Inc. v. Virtual Techs., Inc., 400 F.3d

1007, 1011 (7th Cir. 2005), quoting Atari, 672 F.2d at 614.


23

Courts in the Seventh Circuit employ the “ordinary observer test”

to determine whether two works are substantially similar. The test “is

whether the accused work is so similar to the plaintiff’s work that an

ordinary reasonable person would conclude that the defendant

unlawfully appropriated the plaintiff’s protectible expression by taking

material of substance and value.” Susan Wakeen Doll Co. v. Ashton-

Drake Galleries, 272 F.3d 441, 451 (7th Cir. 2001) (emphases added;

citation & quotations omitted). This test “must take into account that

the copyright laws preclude appropriation of only those elements of the

work that are protected by the copyright.” Atari, 672 F.2d at 614;

Incredible Techs., 400 F.3d at 1011 (“[C]opyright laws preclude

appropriation of only those elements of the work that are protected by

the copyright.”)

“The sine qua non of the ordinary observer test, however, is the

overall similarities rather than the minute differences between the two

works.” Id. at 618. The test for substantial similarity is an objective one.

JCW Invs., Inc., 482 F.3d at 916. “Th[e] test does not involve analytic

dissection and expert testimony, but depends on whether the accused

work has captured the total concept and feel of the copyrighted work.”


24

Atari, 672 F.2d at 614 (internal citation & quotations omitted). Courts

often employ a side-by-side comparison of the two works to determine

whether they are indeed substantially similar. See, e.g., Wildlife

Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 510 (7th Cir.

1994); Alberto-Culver Co., 466 F.2d at 710.

The elements that are alleged to be similar (and thus protected)

must be original, creative expressions and must be more than de

minimis. Gottlieb Dev., 590 F. Supp. 2d at 634; see also Jean v. Bug

Music, Inc., No. 00 Civ. 4022 (DC), 2002 WL 287786, at *5 (S.D.N.Y. Feb.

27, 2002) (“copying that is so trivial as to fall below the quantitative and

qualitative threshold of substantial similarity will be considered de

minimis and thus not actionable”).

B. The Lyrics At Issue Are UnoriginalAnd Not Protected By Copyright Law

The district court properly held that, to determine substantial

similarity, a court must first determine whether the elements at issue

are protectable under copyright law. See Tiseo Architects, Inc. v. B&B

Pools Serv. and Supply Co., 495 F.3d 344, 347-48 (6th Cir. 2007) (“the

substantial similarity analysis of a copyright infringement claim is

divided into two steps: the first step requires identifying which aspects of


25

the artist’s work, if any, are protectable by copyright; the second involves

determining whether the allegedly infringing work is substantially

similar to protectable elements of the artist’s work”) (citation &

quotations omitted). As a result, courts must extract unprotectable

elements from consideration to determine if the protectable elements

standing alone are substantially similar. Boone v. Jackson, 206 Fed.

Appx. 30, 33 (2d Cir. 2006).

To be protected by copyright law, an element must be original to its

author. Feist, 499 U.S. at 345. As the Supreme Court has described, an

original work must be one that has been “independently created by the

author (as opposed to copied from other works) . . .” Id.; Bug Music, Inc.,

2002 WL 287786, at *5 (“The copied elements of the work must be

original and nontrivial to constitute improper appropriation”); see also

Hayes v. Koch Entm’t, G-06-515, 2008 U.S. Dist. LEXIS 33418, at *3

(S.D. Tex. Mar. 14, 2008) (“Cole Porter could not own moonlight. Hank

Williams had to share cheating hearts. Willie Nelson cannot fence blue

eyes in. The Beach Boys plunged into the surf with Jan and Dean.

Irving Berlin holds the copyright to ‘God Bless America,’ but he had to

share both God and America”).


26

1. Plaintiff Cannot Copyright The Title Of His Song

Plaintiff’s copyright infringement claim is premised in part on the

two songs having the same title, “Stronger.” (Pl. Br. at 21-22.) The

district court properly held that “titles by themselves are not subject to

copyright protection.” (Defs. Appx. at 7) (citing Wihtol v. Wells, 231 F.2d

550, 553 (7th Cir. 1956); Sweet, 953 F. Supp. at 229 (“It is well-

established that titles . . . are not protected by copyright”).) Therefore,

Plaintiff’s Complaint does not plausibly allege that the title of Plaintiff’s

Song is a protectable element of the work.” (Defs. Appx. at 7.)

Plaintiff concedes, as he must, that titles are not copyrightable.

(Pl. Br. at 21-22); Hayes, 2008 U.S. Dist. LEXIS 33418, at *1 (“the

similarity of the titles does not matter because they are categorically not

protectable”); see also Currin v. Arista Records, 724 F. Supp. 2d 286, 293

(D. Conn. Apr. 15, 2010) (holding that the title of the song, “frontin,” is a

“non-protectible element of the plaintiffs’ song”). Accordingly, the district

court properly held that the title of the two songs is unprotectable.8

8 There are at least 145 other songs with the identical title, “Stronger,” and more than 1,100 songs with the word “Stronger” in the title. (See Dkt. 18, Exhs. D, F.)


27

2. Plaintiff Cannot Claim Ownership Of The Name “Kate Moss”

Plaintiff also relies upon the single reference that both Songs make

to Kate Moss, the popular English supermodel. (Pl. Br. at 16-17.)

Plaintiff claims that he made the “creative choice of referring to Kate

Moss.” (Id. at 16.) Each song uses this name differently: In Plaintiff’s

Song, the name appears in the following lyric line: “Trying get a model

chick like Kate Moss.” In Defendants’ Song, the name appears as

follows: “You could be my black Kate Moss tonight.” (See Defs. Appx. at

13.)

The district court properly found that “no one can claim originality

as to facts,” including names. (Defs. Appx. at 7; citing Feist, 499 U.S. at

347); see also, Darden v. Peters, 488 F.3d 277, 286 (4th Cir. 2007) (“The

Copyright Office established a regulation providing examples of the types

of works that fall into the category of works that lack a minimum level of

creativity and do not qualify for copyright protection, including ‘[w]ords

and short phrases such as names, titles, and slogans; familiar symbols or

designs; mere variations of typographic ornamentation, lettering or

coloring; mere listing of ingredients or contents.’ 37 C.F.R. § 202.1(a).”);


28

Schroeder v. William Morrow & Co., 566 F.2d 3, 5 (7th Cir. 1977)

(“individual names . . . are in the public domain and not copyrightable”).)

Indeed, Plaintiff does not cite a single case for the proposition that

a party can claim copyright protection in the use of someone else’s name

– nor could he. It is indisputable that Plaintiff did not independently

coin the name “Kate Moss,” which is used only once in both songs, and he

cannot stop anyone else from using this name in a song lyric. Indeed, the

name Kate Moss would not even be copyrightable by Ms. Moss herself.

Therefore, Plaintiff’s use of the name Kate Moss – no matter how

allegedly “creative” he was in choosing to include her name in his Song –

is unprotectable.

3. The Hook In Plaintiff’s Chorus Is Unoriginal And Is Thus Not Protected By Copyright

Plaintiff also claims that Defendants copied the “hook” in his Song.9

Specifically, he claims that (1) the hooks in both Songs reference the

famous maxim, “That which does not kill us makes us stronger;” (2) the

hook in Plaintiff’s Song contains the phrase “couldn’t wait no longer”

9 Plaintiff repeatedly refers to the “hook” being copied by Defendants, as if to suggest that the entire chorus has been copied. This is incorrect, as the Plaintiff concedes that only certain, limited similarities exist between the lyrics of the two hooks – all of which are based on a maxim created by Friedrich Nietzsche, not Plaintiff. (Pl. Br. at 21.) The majority of song lyrics in the hook are not at issue. (See Defs. Appx. at 13.)


29

while the hook in Defendants’ Song contains the phrase “Can’t wait

much longer;” and (3) each hook contains the word “wronger.” (Pl. Br. at

15-16; 21.) Contrary to Plaintiff’s claims, neither a century-old proverb

written by a famous philosopher nor single words or phrases are

protectable under copyright law.

Plaintiff admits that his lyrical phrase “what don’t kill me make me

stronger” is not original to him. He concedes that this phrase is taken

directly from the 120 year-old proverb by the famous German

philosopher Friedrich Nietzsche, “That which does not kill us makes us

stronger.” (Pl. Br. at 15; Compl. ¶ 30 (referring to the phrase as a

“maxim”); see also Friedrich Nietzsche, Twilight of the Idols, 1888.)10

Having conceded that his lyrics are unoriginal, he nevertheless argues

that the lyrical phrase “n-n-now th-that don’t kill me can only make me

stronger” in Defendants’ Song copies from the phrase in Plaintiff’s Song,

“what don’t kill me make me stronger.” (Pl. Br. at 20.) As Plaintiff’s

lyric is unoriginal to Plaintiff (he copied the phrase from Nietzsche) the

district court properly held that they cannot possibly form the basis of a

10 This quote is available at http://www.brainyquote.com/quotes/quotes/f/friedrichn159167.html.


30

copyright claim. Feist, 499 U.S. at 345; Acuff-Rose Music, Inc. v.

Jostens, Inc., 155 F.3d 140 (2d Cir. 1998).

The case of Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140 (2d

Cir. 1998) is directly on point. There, the plaintiff recorded a song

containing the phrase: “You’ve got to stand for something, or you’ll fall

for anything.” Id. at 141. Later, the defendant, a ring manufacturer,

launched a nationwide advertising campaign that prominently featured

the slogan: “If you don’t stand for something, you’ll fall for anything.”

Id. The plaintiff sued alleging copyright infringement. Id. In affirming

the district court’s dismissal of plaintiff’s claim, the Second Circuit held

that the origin of the phrase at issue predated the plaintiff’s song. Id. at

143 (the origin of the phrase came from a variety of sources, including

“the Bible, Abraham Lincoln, Martin Luther King” and lyrics contained

in previous written songs). The plaintiff – like the Plaintiff here – did

not independently create the lyric and could not sue for infringement

based on the use of that phrase by others. Id. at 144.

Plaintiff does not distinguish this holding (nor could he), other than

to point out that it was decided after a bench trial. (Pl. Br. at 19-20.)

However, no amount of discovery will change the undisputed fact that


31

Plaintiff’s lyrics are not original to him; they are based on the Nietzsche

maxim, and thus unprotectable. Importantly, Plaintiff concedes this

point. Thus, the procedural posture of Acuff is insignificant.

Moreover, this Court can take judicial notice that many artists

have incorporated this well-known phrase into their works before

Plaintiff’s Song (or Defendants’ Song).11 For example, in 2004, the singer

Natalia released a song with the title: “What Don’t Kill You, Makes You

Stronger.”12 Variations of this clichéd phrase have also been used in Jay-

Z’s “American Gangster,” 2Pac’s “Only God Can Judge Me,” Maxim’s

“Backward Bullet,” and Megadeth’s “Skin O’ My Teeth.” There are at

least 11 songs that use this phrase in their title. (See Dkt. 18, Ex. E.)

Just as the plaintiff in Acuff-Rose could not claim ownership over a

11 In deciding a motion to dismiss, courts may consider the complaint as well as documents incorporated into the complaint by reference, and matters of which a court may take judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 127 S. Ct. 2499, 2509 (2007); Anyere v. Wells Fargo, Co., No. 09 C 2769, 2010 WL 1292494, at *1, fn 2 (N.D. Ill. Mar. 29, 2010). “A court may consider judicially noticed documents without converting a motion to dismiss into a motion for summary judgment. Judicial notice of historical documents, documents contained in the public record, and reports of administrative bodies is proper.” Menominee Indian Tribe v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998) (citations omitted). The Seventh Circuit has approved taking judicial notice of information contained on the internet. See Austin v. American Ass’n of Neurological Surgeons, 253 F.3d 967, 971 (7th Cir. 2001); see also Grimes v. Navigant Consulting, Inc., 185 F. Supp. 2d 906, 914, fn 7 (N.D. Ill. 2002). In the context of copyright claims, a court may take judicial notice of general elements of creative works. See Zella, 529 F. Supp. 2d at 1128-29.

12 Natalia’s song titled, “What Don’t Kill You, Makes You Stronger” is available at http://www.lyricstime.com/natalia-what-don-t-kill-you-makes-you-stronger-lyrics.html.


32

phrase that originated hundreds of years earlier, Plaintiff cannot claim

ownership of a proverb attributable to a 19th Century philosopher that

has been used over and over again in other songs and works.

Nor can Plaintiff claim copyright protection over the other

fragmented words and phrases at issue. Plaintiff has identified only two

other lyrics that apparently support his claim of substantial similarity

between Plaintiff’s Song and Defendants’ Song: (1) “couldn’t wait no

longer,” and (2) “wronger.” (Pl. Br. at 16; Compl. ¶¶ 30-34.) Each of these

purported “similarities” – the only other “similarities” cited in Plaintiffs’

Complaint and Brief (and the only similarities that exist based on a side-

by-side comparison) – derives from the Nietzsche maxim. Moreover,

each of them falls under the very definition of “unprotected elements” –

names, phrases, slogans, titles and words are not subject to copyright

protection. See Alberto-Culver Co., 466 F.2d at 710 (short phrase not

protectable under copyright law); Boone, 206 Fed. Appx. at 33 (finding

that the common phrase “holla back” is not protectable); Narell v.

Freeman, 872 F.2d 907, 911 (9th Cir. 1989) (“[p]hrases and expressions

conveying an idea typically expressed in a limited number of stereotyped

fashions are not subject to copyright protection”); Staggs, 2009 WL


33

2579665, at *3-4 (handful of allegedly similar words and phrases not

copyrightable); Bell v. Blaze Magazine, No. 99 Civ. 12342 (RCC), 2001

WL 262718, at *2 (S.D.N.Y. Mar. 16, 2001) (“Words and short phrases,

such as titles or slogans, are insufficient to warrant copyright protection,

as they do not exhibit the minimal creativity required for such

protection. Similarly, copyright protection does not extend to a concept

or idea, regardless of the form in which it is communicated, explained,

illustrated, or embodied”) (internal citations omitted).13

4. The Combination Of UnprotectableElements In Plaintiff’s Song Is Unprotectable

a. Plaintiff’s Combination Is Unoriginal

Plaintiff concedes that the words and phrases at issue are

unoriginal to him and thus unprotectable. Yet Plaintiff claims, as he did

below, that the combination of those few and scattered unoriginal and

unprotectable words and phrases can form the basis of an infringement

claim. (Pl. Br. at 17-22.) The district court properly held that an original

combination of unprotectable elements may be eligible for copyright

protection only in “limited contexts,” and only when “those elements are

13 See also Martinez v. McGraw, No. 3:08-0738, 2009 WL 2447611, at *4-6 (M.D. Tenn. Aug. 10, 2009); Lil’ Joe Wein Music, Inc. v. Jackson, 245 Fed. Appx. 873, 880 (11th Cir. 2007); Armour v. Knowles, No. H-05-2407, 2006 WL 2713787, at *3 (S.D. Tex. Sep. 21, 2006).


34

numerous enough and their selection and arrangement original enough

that their combination constitutes an original work of authorship.”

(Defs. Appx. at 10; citing Satava v. Lowry, 323 F.3d 805, 811 (9th Cir.

2003) (“it is not true that any combination of unprotectable elements

automatically qualifies for copyright protection”) (emphasis in original).)

Simply put, a plaintiff cannot select a few non-copyrightable

elements contained in his song, claim a monopoly on their use, and

prevent others from employing similar unprotectable individual words

and phrases in their works. See Feist, 499 U.S. at 363 (holding that the

selection, coordination and arrangement of elements to be unoriginal and

unprotectable). Indeed, a plaintiff cannot pick and choose five words or

phrases out of hundreds in their work and sue for infringement, clinging

to the notion that any “combination” is protectable.

But that is exactly what Plaintiff is attempting to do here. While

Plaintiff contends that his “triple rhyme of stronger, wronger, and

longer” is original (Pl. Br. at 16), Plaintiff ignores the fact that the

Nietzsche proverb ends with the word “stronger,” and thus it is not

particularly surprising, unusual or creative to use the word “longer” or

other words which rhyme with “stronger” at the end of the next line in


35

order to rhyme with this proverb. There are very few words that rhyme

with “stronger,” and “longer” is one of the few exact rhymes.

Unsurprisingly, the combination of these generic words has been

used in many other songs. For example, in 1971 the artist Dusk released

a song entitled “I Hear Those Church Bells Ringing” which includes the

following lyrics:

Ain’t getting much strongerCan’t resist you much longerTo let you go would be wrongerThan to love you right now14

Plaintiff uses the same three words in the same exact order as

Dusk’s song. (See Defs. Appx. at 13.) Indeed, Plaintiff’s Song is more

similar to Dusk’s song than it is to Defendants’ Song.

Under Plaintiff’s flawed interpretation of the law, Dusk would have

an actionable claim for copyright infringement against Plaintiff for using

the purportedly “original” combination of the rhyming words stronger,

wronger, and longer in its song. So would the many other artists that

have used a combination of the words and phrases found in Plaintiff’s

Song. Lil’ Wayne’s song, “Mafia Music,” uses the “triple rhyme” of

14 The lyrics to Dusk’s “I Hear Those Church Bells Ringing” are available at http://www.burbler.com/dusk-i-hear-those-church-bells-ringing-lyrics.html.


36

“stronger, wronger and longer.” T-Pain’s song, “Distorted,” also uses the

“triple rhyme” of “stronger, wronger and longer.”15

Bill Kirchen’s song, “Get a Little Goner,” contains the words

“longer” and “wronger” in the chorus: “If you’re gonna move along, move

a little bit longer, You think I want you back, well, you couldn’t be

wronger.”16 According to Plaintiff, Mr. Kirchen has a monopoly over the

rhyme of longer and wronger and no other subsequent artist can

incorporate that rhyme into a song. But Mr. Kirchen holds no monopoly

over the words longer and wronger just as Lil’ Wayne, T-Pain, Natalia

and Plaintiff cannot hold a monopoly over the words and phrases at issue

here.

These examples were all before the district court, without any

meaningful response from Plaintiff. This prior art highlights the

weakness in Plaintiff’s attempt to claim copyright over such insignificant

lyrics. There are no issues of fact – Plaintiff’s combination of

unprotectable elements is unprotectable itself. Steele v. Turner Broad.

15 Lyrics to Lil Wayne’s song, “Mafia Music” can be found at: http://www.elyricsworld.com/mafia_music_lyrics_lil_wayne.html. T-Pain’s lyrics to “Distorted” can be found at http://www.lyricsbay.com/distorted_lyrics-t_pain.html.

16 The lyrics of Bill Kirchen’s “Get a Little Goner” are available athttp://www.cowboylyrics.com/lyrics/kirchen-bill/get-a-little-goner-20536.html.


37

Sys., Inc., 646 F. Supp. 2d 185, 192 (D. Mass. 2009) (“A common rhyme

scheme or structure does not qualify as original expression protectable

under federal copyright law.”); Prunte v. Universal Music Group, 699 F.

Supp. 2d 15, 29 (D.D.C. 2010) (“[A] rhyme scheme using words ending in

the commonplace ‘-ill’ sound is [not] protectible.”).

Plaintiff’s “combination” argument has been rejected many times

before this action. For example, in the recent case of Staggs v. West, the

plaintiff sued the Defendants herein, among others, alleging that

defendants copied numerous lyrics from his song. 2009 WL 2579665, at

*2-4. In support of his claim, the plaintiff submitted a chart detailing the

alleged lyrical similarities between the songs. Id. at *4. On defendants’

motion to dismiss, the court found the combination of the individual,

scattered and common words and phrases to be unprotectable and

granted defendants’ motion. Id. at *3 (“each of these allegedly identical

phrases contain common words or phrases – such as ‘good life’ – that

simply are not copyrightable”). The same result should apply here.

Other plaintiffs have made similarly unavailing arguments. For

example, in Damiano v. Sony Music Entm’t, Inc., 975 F. Supp. 623, 625

(D.N.J. 1996), the plaintiff claimed that defendant Bob Dylan copied


38

several lyrics from his song. The plaintiff conceded that the lyrics at

issue consisted of common and unoriginal words and phrases, but

nonetheless argued that the arrangement of those words and phrases

was protectable. Id. at 629. In fact, the plaintiff there argued – as does

Plaintiff here – that Dylan could not subsequently use the same pairs of

words or phrases together in a lyric, even if separated by intervening

lines or ideas. Id. The court disagreed and said that the plaintiff cannot

hold a “monopoly over the use of common combinations of words . . .

merely because they are found together in a single song.” Id. According

to the court, “[s]uch a result would . . . contravene the very policy behind

copyright law and the rule requiring sufficient originality for a work to

be protected . . . . Indeed, the law of copyright has absolutely no interest

in tying up the random, fortuitous combination of words.” Id. (citation

omitted); see also Lil’ Joe Wein Music, Inc. v. Jackson, 245 Fed. Appx.

873, 878-80 (11th Cir. 2007) (holding that combination of lyrics is

unoriginal and unprotectable); Bug Music, Inc., 2002 WL 287786, at *6

(“the lyrical phrase and three notes are so common and unoriginal that

even when they are combined they are not protectible”).


39

b. The District Court Properly Dismissed Plaintiff’s Combination Argument

The district court properly analyzed the combination of Plaintiff’s

unprotectable elements under the correct standard: an original

combination of unprotectable elements can be protectable only when

those elements are numerous enough and original enough that their

combination constitutes an original work. (Defs. Appx. at 10.) That is

exactly the standard that Plaintiff claims the court failed to consider.

(Pl. Br. at 22.)17 Then, the district court compared Plaintiff’s

combination of unprotectable elements to the words and phrases

contained in Defendants’ Song to determine substantial similarity.

17 Plaintiff claims that the district court improperly “weeded out” the unprotectable components of Plaintiff’s Song, citing Softel, Inc. v. Dragon Med. and Scientific Commc’ns, Inc., 118 F.3d 955 (2d Cir. 1997) and Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995). (Pl. Br. at 32.) In so arguing, Plaintiff ignores this Circuit’s test for substantial similarity, and ignores the analysis undertaken by the district court. As this Court stated in Atari (a case cited by Plaintiff), “[w]hile dissection is generally disfavored, the ordinary observer test, in application, must take into account that the copyright laws preclude appropriation of only those elements of the work that are protected by the copyright.” 672 F.2d at 614-15 (citing Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 913 (2d Cir. 1980); Clark v. G.A. Kayser & Sons, Inc., 472 F. Supp. 481, 482 (W.D. Pa. 1979)). In both Sofiteland Knitwaves, the Second Circuit held that, in order to determine whether substantial similarity exists, a court must examine whether the similarities at issue consist of protectable or unprotectable elements. See, e.g., Knitwaves, 71 F.3d at 1002 (“we must attempt to extract the unprotectible elements from our consideration and ask whether the protectible elements, standing alone, are substantially similar”) (emphasis in original). These cases also stand for the undisputed proposition that a court must also look at the combination of the allegedly similar elements and whether the defendants’ work has captured the “total concept and feel” of the plaintiff’s work. The district court here employed that very analysis, and held that, viewing the two works as a whole, no substantial similarity exists. (Defs. Appx. at 9-11.)


40

(Defs. Appx. at 10.) In doing so, the district court found that Defendants

did not copy the combination in a nearly identical manner, but even

more, that none of the words and phrases in Defendants’ Song were even

close to being similar to the combination of those words in Plaintiff’s

Song. (Id. at 10-11.) Thus, Plaintiff has no basis to contend that the

district court created an “unprecedented” new test to determine

substantial similarity.

Plaintiff did not distinguish the significant, on point authority cited

by Defendants in the district court. Instead, Plaintiff relied heavily on

three cases, all of which are entirely distinguishable from the instant

case and expressly (and properly) rejected by the district court. Plaintiff

relied, and continues to rely, upon JCW Investments, Roulo and

Bucklew. None of these cases involved an infringement claim based on

the alleged copying of a small fraction of unprotectable elements of a

copyrightable work, and thus none of them stand for the proposition that

a small fraction of a work – or a combination of those elements

constituting a small fraction – can form the basis of a copyright claim.


41

The district court expressly considered these cases and properly held

that Plaintiff had not demonstrated that the combination of the

unprotectable elements at issue could possibly rise to the level of

substantial similarity.

Rather, in each of these cases, the plaintiffs claimed that their

works as a whole were copied. For example, in Roulo v. Russ Berrie &

Co., 886 F.2d 931, 934-35 (7th Cir. 1989), the plaintiff claimed that

defendant – who undeniably had access to her greeting card line as a

former licensee – had copied her card and display as whole. The cards

were identical in size, style, background color, ink color and format and

were found, overall, to be “strikingly similar in appearance.” Id. at 939.

JCW Invs., Inc., 482 F.3d at 915, involved two plush novelty toys that

were “so similar that the inference of copying even without access [even

though defendant admitted access] is irresistible.” Both dolls depicted

white, middle-aged, overweight men with black hair, a receding hairline,

crooked smiles that showed their teeth, and a rather protruding nose,

sitting in an armchair wearing a white tank top and blue pants, both of

whom passed gas when their finger was pulled. Id. at 916. In Bucklew

v. Hawkins, Ash, Baptie & Co., LLP, 329 F.3d 923, 926 (7th Cir. 2003),


42

the defendant’s forms copied many aspects of plaintiff’s form (such as

format, font and headings), and also copied mistakes contained in

plaintiff’s form, known as a “copyright trap.” For example, defendant’s

forms included an “exact substitute” of “an arbitrary pattern of

boldfacing of cells,” a missing vertical line on one part of the form and

other aspects of plaintiff’s form that served no function – all of which

proved that, by copying these mistakes and unusual nonfunctional

elements, defendant had actually copied significant aspects of plaintiff’s

form, which defendant ultimately conceded. Id. at 926-27, 931.

In each of these cases, access to the plaintiff’s work was admitted,

as was similarity of the two works as a whole. The defendants simply

tried to avoid liability by claiming that the plaintiff’s work – as a whole –

was not copyrightable because the works as a whole were comprised of

non-copyrightable elements. The courts simply noted, in rejecting these

defenses, that copyrightable works can (and often do) consist of

individual non-copyrightable elements. These cases are entirely

distinguishable from the instant case as none of them held that a small


43

combination of non-protectable elements could form the basis of an

infringement claim.18

Here, Defendants do not dispute that the lyrics of Plaintiff’s Song,

as a whole, can be a copyrightable work. Nor do Defendants dispute that

many, if not most, creative works consist of individual elements that are

not, in and of themselves, copyrightable. Indeed, the lyrics of songs

generally consist of individual words and phrases that are commonplace.

It is the combination of those lyrics as a whole that make the song lyrics,

as a whole work, protectable. But simply because the work as a whole

consists of non-copyrightable elements does not mean that a plaintiff can

select a few of these non-copyrightable elements, claim a monopoly on

their use, and prevent others from employing similar unprotectable

individual words and phrases in their works. A plaintiff cannot pick and

choose five words or phrases out of hundreds in their work and sue for

18 The district court’s reliance on Satava does not constitute a “departure from established Seventh Circuit precedent.” (Pl. Br. at 24). The district court cited Satava for the proposition that an original combination of unprotectable elements can be protectable when “those [unprotectable] elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.” (Defs. Appx. at 9-10, quoting Satava, 323 F.3d at 811.) This is entirely in line with Seventh Circuit precedent, and Plaintiff has cited no authority to the contrary, nor could he. The holding of Satava is not limited, as Plaintiff suggests, to “lifelike jellyfish sculptures,” but rather stands for the proposition that when the allegedly similar elements are unprotectable – whether because they are commonplace or otherwise unoriginal to a plaintiff – courts will not give a plaintiff “a monopoly” on these elements. Satava, 323 F.3d at 812.


44

infringement, clinging to the notion that any “combination” is

protectable.

The district court properly rejected the remaining cases cited by

Plaintiff as distinguishable. Allen v. Destiny’s Child, No. 06 C 6606,

2009 WL 2178676 (N.D. Ill. July 21, 2009) does not stand for the

proposition that four or five words can form the basis of an infringement

claim, much less lyrics that derive from an admittedly publicly-available

proverb. Indeed, the court in Allen noted that “[s]hort phrases tend to be

excluded from copyright protection because they do not demonstrate a

sufficient amount of creative expression,” and that “[a]uthors who rely

upon public sources for their inspiration are not liable for copyright

infringement.” Id. at *8-9. As distinct from the instant case, the Allen

court noted dozens of potential lyrical similarities between the two songs

and found that it was up to the trier of fact to determine whether the

many lyrical similarities between the songs constituted an original

expression of the theme of plaintiff’s song or unprotectable scenes a faire.

Id. This is entirely different than the issue presented herein. Moreover,

the court dismissed the plaintiff’s claim that a three-note phrase

contained in the chorus of the songs at issue was protectable, holding


45

that “no reasonable jury could find that the three-note phrase . . . is

sufficiently unique . . .” as a matter of law. Id. at *12.

Likewise, in Santrayll v. Burrell, No. 91 Civ. 3166 (PKL), 1996 WL

134803, at *2 (S.D.N.Y. Mar. 25, 1996), the court held that the

combination of the non-protectable word “uh-oh” coupled with a

distinctive rhythm rendered it protectable under copyright law. But

here, unlike in Santrayll, Plaintiff concedes that there is absolutely no

similarity between the music of the two songs – the songs merely share a

few random and scattered words in common.

Tin Pan Apple, Inc. v. Miller Brewing Co., No. 88 Civ. 4085 (CSH),

1994 WL 62360 (S.D.N.Y. Feb. 24, 1994) and BMS Entm’t/Heat Music

LLC v. Bridges, No. 04 Civ. 2584 (PKC), 2005 WL 2675088 (S.D.N.Y.

Oct. 20, 2005), also involved unique musical elements in conjunction with

the allegedly infringing lyrics. For example, in Tin Pan Apple, the court

noted that the “Brrr and Hugga-Hugga sounds were uniquely associated

with” the plaintiffs, one of which was one of the first rap artists to be

nationally known for creating “human beat box sounds,” including the

ones at issue, and thus those unique sounds and lyrical components were

sufficiently original and complex to be copyrightable. Id. at *3. The


46

instant case does not involve any uniquely original individual elements,

nor does it involve music. All lyrics at issue were derived from the

Nietzsche proverb, and each element at issue here has been used many

times before.

And finally, Lessem v. Taylor, 766 F. Supp. 2d 504 (S.D.N.Y. 2011),

is factually and procedurally inapposite. In Lessem, the plaintiffs

claimed that the defendants infringed their copyrighted song. Id. at 506-

07. The plaintiffs premised their claim on three uncontroverted

similarities between the two songs: (1) the choruses contain the same

exact five word phrase that is repeated four times in each song; (2) the

choruses of both songs are set to the same rhythm; and (3) the songs

share the same tempo. Id. In denying both parties’ motions for

summary judgment, the court noted that plaintiffs’ claims were based on

alleged similarities in rhythm and tempo, neither of which is at issue

here. Id. at 513-14. Here, as the district court properly found, the music

is not at issue, and the song lyrics as a whole contain virtually no

similarities, indeed, none coming close to the identical five word phrases

in Lessem. This is not a case like Lessem where the defendants copied

the exact original phrase, tempo and rhythm in the plaintiffs’ song.


47

D. The District Court Properly Found, As An Ordinary Observer, That The Songs Are Not Substantially Similar

After eliminating the unprotectable words and phrases, a court

must decide whether “‘the ordinary observer, unless he set out to detect

the disparities, would be disposed to overlook them, and regard their

aesthetic appeal as the same.’” Atari, Inc., 672 F.2d at 614 (quoting

Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d

Cir. 1960) (Hand, J.).) The district court properly based this ordinary

observer test on whether the defendants’ work has captured the “total

concept and feel” of the plaintiff’s work, and employed a side-by-side

comparison to determine whether two works are substantially similar.

See Wildlife Express Corp., 18 F.3d at 510; Atari, 672 F.2d at 614.

The district court properly held that an ordinary observer could not

conclude that the Songs’ lyrics are substantially similar. After

eliminating the unprotectable elements from the Songs, the court

conducted a side-by-side comparison of the Songs’ lyrics and found that

“the hooks and verses no longer have any similarities and are different in

content and style.” (Defs. Appx. at 11-12.)

The district court reached the proper conclusion as a matter of law.

Indeed, a side-by-side comparison of the Songs makes objectively clear


48

that, once the alleged similarities are eliminated (and, even if they were

included), the Songs contain virtually no similarities. (See Defs. Appx. at

13.)

In sum, the lyrics are different. The themes are different. The

music is different. The songs are different. Defendants’ Song simply

does not come close to capturing the “total concept and feel” of Plaintiff’s

Song. Thus, after a simple review of the lyrics, and upon listening to the

songs, the district court was correct to find that an ordinary observer

would detect no meaningful similarities. See Tillman v. New Line

Cinema Corp., No. 05 C 910, 2008 WL 5427744, at *8 (N.D. Ill. Dec. 31,

2008), aff’d, 374 Fed. Appx. 664 (7th Cir. 2010); See Johnson v. Gordon,

409 F.3d 12, 22-23 (1st Cir. 2005) (finding no infringement where no

facial similarity existed between two melodies); Damiano, 975 F. Supp.

at 629-30 (finding no copyright infringement where “[t]he words and

phrases in question comprise nothing more than a single line or two of an

entire song . . .”).

While Plaintiff relies upon many of the same cases as the district

court, he argues, incongruously, that the district court erred by filtering

out the unprotectable words and phrases to determine substantial


49

similarity. (Pl. Br. at 31-33.) However, the district court properly

followed the very same Seventh Circuit precedent relied upon by

Plaintiff, including Incredible Techs. Indeed, the Seventh Circuit has

recently stated: “‘After identifying these original, protectable elements,

we then proceed to analyze whether the allegedly infringing work is so

similar to the [plaintiff’s] work that an ordinary reasonable person would

conclude that the defendant unlawfully appropriated the protectable

elements of the work.’” Nova Design Build, Inc., 652 F.3d at 818, quoting

Incredible Techs., Inc., 400 F.3d at 1011; Tiseo Architects, 495 F.3d at

347-48.

The district court’s decision that substantial similarity does not

exist between the two songs at issue should be affirmed. Bell, 2001 WL

262718, at *8 (finding no substantial similarity between two works as a

matter of law).

E. The District Court Correctly FoundNo Fragmented Literal Similarity

Though Plaintiff concedes that the “quantum of copying is

relatively small,” Plaintiff argues that substantial similarity exists

because Defendants’ hook is a “close paraphrase” of Plaintiff’s hook. (Pl.

Br. at 33-35.) In so arguing, he relies on the “fragmented literal


50

similarity” test, which, according to other circuits, may justify a finding

of substantial similarity “where the defendant copies a [crucial] portion

of the plaintiff’s work exactly or nearly exactly, without appropriating

the work’s overall essence or structure.” See Newton v. Diamond, 388

F.3d 1189, 1195 (9th Cir. 2004) (citing 4 Melville B. Nimmer, David

Nimmer, Nimmer on Copyright, § 13.03[A][2] (Matthew Bender Rev.

ed.)). To constitute “fragmented literal similarity,” the fragment must be

a “direct quotation[] or close paraphrasing.” Castle Rock Entm’t, Inc. v.

Carol Publ’g Grp., Inc., 150 F.3d 132, 140 (2d Cir. 1998). Glaringly

absent from Plaintiff’s brief is any indication of what portions of

Defendants’ Song are literally similar to Plaintiff’s Song.

The district court correctly held that fragmented literal similarity

does not exist here because the words and phrases contained in the

choruses of both songs are not exact or even nearly exact, nor are they

qualitatively or quantitatively significant. (Defs. Appx. at 11-12.) Below

is a comparison of the four lines of the chorus of Plaintiff’s Song as

compared to the chorus of Defendants’ Song, with the differing lyrics

highlighted:


51

PLAINTIFF’S SONG DEFENDANTS’ SONG

What don’t kill me make me strongerThe more I blow up the more youwrongerYou coped my CD you can feel my hungerThe wait is over couldn’t wait nolonger

N-N-N-now th-th-that don’t kill meCan only make me strongerI need you to hurry up nowCause i can’t wait much longerI know i got to be right nowCause i cant get much wrongerMan i’ve been waitin’ all night nowThat’s how long i’ve been on ya

The choruses contain many more differences than similarities.

Indeed, the majority of the alleged similarities derive from someone

else’s work – Nietzsche. This falls far short of the “literal similarity”

required under the fragmented literal similarity test. See Murray Hill

Publ’ns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 320

(6th Cir. 2004) (“random similarities scattered throughout the works” are

not a proper basis for a finding of substantial similarity) (citation &

quotations omitted).

Contrary to Plaintiff’s argument, courts have dismissed actions as

a matter of law where the similarities are not “literal.” For example, in

Kroencke v. General Motors Corp., 270 F. Supp. 2d 441, 444 (S.D.N.Y.

2003), aff’d, 99 Fed. Appx. 339 (2d Cir. 2004), the plaintiff relied on the

theory of fragmented literal similarity to show substantial similarity.


52

The court dismissed the complaint with prejudice, however, because

none of the details contained in the defendants’ works bore a “substantial

‘literal’ similarity to any of the details in” the plaintiff’s works. Id.

The cases cited by Plaintiff only bolster Defendants’ arguments. In

each of the cases cited by Plaintiff, the works at issue contained identical

or nearly identical phrases. Plaintiff relies principally on Bridgeport

Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267 (6th Cir. 2009). But

in that case, the court found substantial similarity where the defendant

copied the exact refrain “Bow wow wow, yippie yo, yippie yea” verbatim

in his song. Id. at 276. The facts here differ significantly from

Bridgeport as Plaintiff concedes that the alleged similarities are not

“identical” or even close to being identical. (Pl. Br. at 33.)

Similarly, in Jarvis v. A&M Records, 827 F. Supp. 282, 289-92

(D.N.J. 1993), the court similarly found substantial similarity where the

defendant copied the exact bridge section contained in the plaintiff’s

song, “ooh . . . move . . . free your body.” And in Williams v. Broadus, No.

99 Civ. 10957 (MBM), 2001 WL 984714, at *3 (S.D.N.Y. Aug. 27, 2001),

the court found substantial similarity where the defendant copied parts

of the plaintiff’s song “note for note.” Indeed, none of these cases, or any


53

others cited by Plaintiff, support Plaintiff’s contention that there is

substantial similarity where only certain lyrics are the same but the

majority are not, much less where any similarities derive from a common

public domain source.

The district court properly rejected Plaintiff’s arguments and found

the four or five words and short phrases at issue unprotectable, whether

examined on their own or “combined.” The decision of the district court

should be affirmed.


54

CONCLUSION

For the foregoing reasons, it is respectfully submitted that this

Court should affirm the district court’s decision in its entirety.

Dated: November 18, 2011

Respectfully submitted,

s/ Carrie A. Hall

PRYOR CASHMAN LLPIlene S. Farkas7 Times SquareNew York, New York 10036(212) 421-4100Fax: (212) [email protected]

MICHAEL BEST & FRIEDRICH LLPRonald H. BalsonCarrie A. HallTwo Prudential Plaza180 North Stetson Avenue, Suite 2000Chicago, IL 60601(312) 222-0800Fax: (312) [email protected]@michaelbest.com

Attorneys for Defendants-Appellees


55

CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7)

This brief complies with type-volume requirements of Federal

Rule of Appellate Procedure 32(a)(7) because this brief contains 10,140

words, excluding the Appendix and the parts of the brief exempted by

Federal Rule of Appellate Procedure 32(a)(7)(B)(iii).

s/ Carrie A. Hall


56

CERTIFICATE OF SERVICE

The undersigned, an attorney, hereby certifies that a copy of the foregoing Brief of Appellees and a copy of the Appendix was electronically filed with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit and was served upon the following counsel via the Court’s CM/ECF system on the 18th day of November 2011:

William T. [email protected]

s/ Carrie A. Hall


Documents

Document 8