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.

Everyday I'm Hustlin' Lawsuit Against LMFAO Survives

Roberts v. Gordy, No. 13-24700 (S.D. Fla. dated Feb. 5, 2015).

Performer Rick Ross brought this action against the group LMFAO over use of "Everyday I'm Hustlin'" / "Everyday I'm Shufflin'"  in defendant's song Party Rock Anthem.  LMFAO moved to dismiss on the pleadings plaintiff's copyright and trademark infringement claims.  The Court denied the motion, finding at this stage of the proceedings, plaintiff's allegations were sufficient.  Whether the phrase was copyrightable, or the works were substantially similar, were not appropriate for a motion on the pleadings as those issues would require a fact intensive inquiry.  Similarly, a factual inquiry was required on the trademark claim as to whether the phrase had acquired distinctiveness/secondary meaning.

Copyright Claim Dismissed Against Usher Because No Substantial Similarity

Edwards et al. v Usher Raymond IV et al., No. 1:13-cv-07985-DLC (S.D.N.Y. filed 05/23/14) [Doc. 36].

Plaintiffs alleged that a song recorded and published by defendants, including Usher, willfully copied the plaintiffs' original musical composition.  On defendants' Fed. R. Civ. P. 12(b)(6) motion to dismiss, the Court found that plaintiffs failed to state a claim for copyright infringement because the two songs were not substantially similar as a matter of law.  Accordingly, the Court dismissed the sole copyright infringement claim, and declined to exercise supplemental jurisdiction over the state law claim for breach of contract.

First, the Court found that the phrase "caught up," which is the title of both songs, is not eligible for copyright protection because it is a common phrase.  Second, the Court found that lyrics from the two songs expressing the ideas in question were not substantially similar.  Third, the Court ignored bare legal conclusions in the complaint that the songs are substantially similar.  Lastly, the Court also took a "holistic" approach, and determined that the two songs' music and lyrics, considered as a whole, confirmed a lack of substantial similarity.

3d Cir. Affirms Dismissal of Author's Suit Against 50 Cent

Winstead v. Jackson, No. 11-3771 (3d Cir. opinion filed Jan. 11, 2013).

The Third Circuit affirmed an order of the District Court dismissing the amended complaint as to all defendants.  In this copyright case, the parties respective works at issue include Plaintiff's book, The Preacher’s Son – But the Streets Turned Me into a Gangster, and defendant Curtis Jackson's (50 Cent's) Before I Self-Destruct album/CD, featuring songs and lyrics written by Jackson; and his companion film of the same name, which Jackson wrote, starred in, and directed.  Jackson and the record companies moved to dismiss the amended complaint pursuant to Fed. R. Civ. Pro. 12(b)(6), arguing that the copyright infringement claim failed because Plaintiff's book and Jackson's album/CD and film are not substantially similar as a matter of law, and that Plaintiff's state law claims are preempted by the Copyright Act because they are premised on the same underlying facts.  The Circuit Court affirmed dismissal, finding inter alia:

We agree with the District Court that a lay observer would not believe that Jackson's album/CD and film copied protectable aspects of [Plaintiff]'s book.
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There was a failure to state an actionable claim for copyright infringement here because, although [Plaintiff]'s book and Jackson's works share similar themes and setting, the story of an angry and wronged protagonist who turns to a life of violence and crime has long been a part of the public domain.

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In addition, [Plaintiff]'s book and Jackson's works are different with respect to character, plot, mood, and sequence of events.

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[Plaintiff] contends that direct phrases from his book appear in Jackson's film. ... The average person reading or listening to these phrases in the context of an overall story or song would not regard them as unique and protectable. ... Moreover, words and short phrases do not enjoy copyright protection.