Kanye, Jay-Z and Others Avoid Copyright Infringement Claim Because Two "Made In America" Songs Not Substantially Similar

McDonald v. West et al., No. 14-cv-8794 (S.D.N.Y. Sep. 30, 2015) [Doc. 42].

In case about two songs both called "Made In America," the Court dismissed the Complaint against Kanye West, Jay-Z and others alleging copyright infringement of the plaintiff's song, pursuant to Rule 12(b)(6).  First, the Court found that even though the two songs shared the same title, the song title "Made In America" was not copyrightable.  "It is too brief, common, and unoriginal to create any exclusive right."  Second, the Court analyzed similarity between the lyrics in the chorus of each song, along with alleged musical similarity.  However, the Court found that plaintiff did not plausibly plead substantial similarity.  The Court then turned to a "holistic" comparison of the two songs, because even if the indvidual elements that make up Plaintiff's songs are uncopyrightable, they still may represent a protected selection and arrangement of unprotectable elements.  The Court found that no reasonable jury could find the two songs similar, lyrically or musically.  The differences were major.  "Where any reasonable juror would conclude - as here - that the differences are many, and what similarities exist are based on unprotectable elements, the two works are not substantially similar as a matter of law."  Accordingly, the Court dismissed the complaint.

"Everyday I'm Hustlin'" Phrase Not Copyrightable

Roberts v. Gordy, No. 13-cv-24700 (S.D. Fla. dated Sep. 15, 2015).

In a dispute between the alleged owners of the song "Hustlin'," whose chorus repeats the phrase "everday I'm hustlin'," and members of the group LFMAO who sell merchandise bearing the phrase "everday I'm shufflin'," a phrase from their hit song "Party Rock Anthem," the Court held that the isolated phrase "everyday I'm hustlin'" is not copyrightable.  The Court noted that "copyright protection does not automatically extend to every component of a copyrighted work," and that "the overwhelming authority is that short phrases or common or ordinary words are not copryightable."  It was indisputable that the plaintiff's "Hustlin'" composition and lyrics was an original creative work subject to copyright protection -- but, the question was whether the use of a three-word phrase appearing int he musical composition, divorced from the accompanying music, modified, and subsequently printed on merchandise, constituted an infringement of the composition.  "The answer, quite simply, is that it does not."  Moreover, the defendants set forth various evidence that the terms "hustling" or "hustlin'" have been used in numerous songs prior to Plaintiff's creation of "Hustlin'" and that at least one song pre-dating "Hustlin'" has the exact lyric "everday I'm hustlin'" in it.  Lastly, the Court was unable to find any basis or precedent supporting the conclusion that a short, modified, set of words printed on merchandise can infringe on the copyright for a musical composition.  Plaintiff's rights do not extend that far, the Court concluded.

Beastie Boys Avoid Several Copyright Claims In Sampling Case

TufAmerica, Inc. v. Diamond et al., No. 12-cv-3529-AJN (S.D.N.Y. filed Sep. 10, 2013).

Plaintiff brought a copyright infringement action against the Beastie Boys alleging unlawful sampling of 6 pieces of plaintiff's music in five Beastie Boys songs that appear on two Beastie Boys albums (Paul's Boutique and Licensed to Ill).  Defendants moved to dismiss for failure to state a claim under Rule 12(b)(6).

The Court agreed with plaintiff that the standard for determining substantial similarity was "fragmented literal similarity", rather than "ordinary observer" standard.  Under the "fragmented literal similarity" standard, the question was whether the copying went to trivial or substantive elements.  Thus, the "real question" for the Court was whether Plaintiff had alleged that each sample was "quantitatively and qualitatively important to the original work such that the fragmented similarity becomes sufficiently substantial for the use to become an infringement."  Under the quantitative analysis, the concept of de minimis copying is relevant.  Also, the analysis is of the original song -- not of the use in the allegedly infringing song; therefore, the Court was not persuaded by Plaintiff's allegation in its original complaint that the samples were concealed to a casual listener of the Beastie Boys' songs.  Thus, the Court then went on a song-by-song analysis, which included a discussion of whether the sampled portion was even copyrightable material, and dismissed four of the claims based on 4 of the samples.  Lastly, under the statute of limitations, the Court also limited the surviving claims to infringements occurring after May 2009 (3 years before the suit was filed).