Pro Se Plaintiff's Taylor Swift Case Dismissed At In Forma Pauperis Stage

Braham v. Sony/ATV Music Publishing et al., 15-cv-8422 (C.D. Cal. Nov. 10, 2015).

A magistrate judge denied the pro se plaintiff's request to proceed in forma pauperis on the basis that he failed to state a claim against Taylor Swift and her label/publisher for alleged copyright infringement.  According to the Complaint, defendants used a 22 word phrase from Plaintiff's song "Haters gone hate".  Without ident ifying the specific phrase, Plaintiff alleges that “92% of the lyrics” of “Shake It Off” come from his song, that his “song phrase string is used over 70+ times,” and that Taylor Swift would not have written “Shake It Off” had he not written “Haters gone hate.”  The Court found that the plaintiff failed to adequately allege copying under Rule 8.  The Court further noted that if the plaintiff chose to refile an amended complaint, it had significant concerns that he lacked a claim based solely on the lyrics.  Moreover, the plaintiff would need to allege that his lyrics are original.

Hip Hop Producer Failed To State A Claim Against Her Former Attorneys In An Earlier Copyright Action

Boone v. Codispoti & Assocs., No. 15-cv-01391 (S.D.N.Y. filed Oct. 7, 2015).

The Court held that a hip-hop producer, proceeding pro se, did not state a claim for fraud, conspiracy and denial of due process arising from her former attorney's prior representation in a copyright infringement action.  Plaintiff alleged that her former attorneys falsely led her to believe that a jury trial would occur, and to amend her pleadings, knowing that almost all copyright infringement actions do not survive summary judgment.  The claim failed because the alleged statements were a mere expression of future expectations that did not constitute actionable fraud.  Moreover, the alleged actions were not fraudulent representations or omissions.  The claim was also time-barred.  Lacking a fraud claim, her conspiracy claim also failed.  The due process claim, under 42 USC 1983, failed because there was no statement of a constitutional violation.  The summary judgment decision dismissing her earlier case was affirmed on appeal.  Nor did defendants act under color of state law.  The defendants were private attorneys who represented plaintiff in federal court in a copyright action.  Leave to amend was denied, and the complaint was dismissed.

Reality Poems Infringed by Reality TV?

Parker v. MTV et al., No. 1:08-cv-02479 (N.D.Ill, Eastern Dist. complaint filed pro se Apr. 30, 2008).

Thoughts? Comments?

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Trademark Issue in Usher Copyright Suit?

Straughter v. Raymond, No. 08 cv 2170-CAS-CWX (C.D.Cal. filed Apr. 1st, 2008) is a copyright infringement action brought pro se by the author of a composition against the performer Usher arising out of Usher's sound recording "Burn" appearing on the album "Confessions". It appears that plaintiff's composition was previously performed with authorization by an earlier artist, and that Usher sampled that recording. It is not clear whether the label and/or publisher for the earlier recording of the composition are parties to the suit.

What grabbed OTCS attention to this case was plaintiff's third claim under the Lanham Act:

33. Mr. Straughter is a highly successful and well known Grammy-winning artist, composer, producer and performer. He has established a reputation at the top of his field and achieved world wide renown, expending substantial amounts of time and money to maintain the goodwill he has established.

34. Defendants and their representatives have distributed and provided goods and services in interstate commerce in connection with Plaintiff’s goodwill, notoriety and ownership interest in the copyright and Defendants have realized substantial income from the provision and sale of such goods and services.

35. Defendant’s use of Plaintiff’s sound recording and/or his copyrighted song in the performance of “Burn” is likely to cause confusion, mistake or deception by misleading consumers and the trade into believing that Plaintiff licensed or otherwise authorized the use of their performance, or that the “Burn” composition and Confessions Album associated with or otherwise endorsed by Plaintiff. Defendants conduct is in willful and deliberate violation of section 43(a) of the Lanham Act, 15 U.S.C. Section 1125(a) (1) (A) and highly damaging to Plaintiff’s reputation and specific financial entitlements.

36. Defendants have profited and continue to profit from their unlawful conduct and will, unless restrained, further impair Plaintiff’s goodwill and reputation, and Plaintiff will suffer irreparable injury which cannot be adequately calculated or compensated solely by money damages.

Reading this count reminded us of the recent holding in Contractual Obligations Productions LLC v. AMC Networks, Inc., No. 04 cv 2867, 4/7/08 NYLJ "Decision of Interest" (S.D.N.Y. decided Mar. 25, 2008) which cited Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) for the proposition that the Lanham Act does not apply to claims arising out of failure to credit or attribute the origin of a creative work.

Trademark Issue in Usher Copyright Suit?

Straughter v. Raymond, No. 08 cv 2170-CAS-CWX (C.D.Cal. filed Apr. 1st, 2008) is a copyright infringement action brought pro se by the author of a composition against the performer Usher arising out of Usher's sound recording "Burn" appearing on the album "Confessions". It appears that plaintiff's composition was previously performed with authorization by an earlier artist, and that Usher sampled that recording. It is not clear whether the label and/or publisher for the earlier recording of the composition are parties to the suit.

What grabbed OTCS attention to this case was plaintiff's third claim under the Lanham Act:

33. Mr. Straughter is a highly successful and well known Grammy-winning artist, composer, producer and performer. He has established a reputation at the top of his field and achieved world wide renown, expending substantial amounts of time and money to maintain the goodwill he has established.

34. Defendants and their representatives have distributed and provided goods and services in interstate commerce in connection with Plaintiff’s goodwill, notoriety and ownership interest in the copyright and Defendants have realized substantial income from the provision and sale of such goods and services.

35. Defendant’s use of Plaintiff’s sound recording and/or his copyrighted song in the performance of “Burn” is likely to cause confusion, mistake or deception by misleading consumers and the trade into believing that Plaintiff licensed or otherwise authorized the use of their performance, or that the “Burn” composition and Confessions Album associated with or otherwise endorsed by Plaintiff. Defendants conduct is in willful and deliberate violation of section 43(a) of the Lanham Act, 15 U.S.C. Section 1125(a) (1) (A) and highly damaging to Plaintiff’s reputation and specific financial entitlements.

36. Defendants have profited and continue to profit from their unlawful conduct and will, unless restrained, further impair Plaintiff’s goodwill and reputation, and Plaintiff will suffer irreparable injury which cannot be adequately calculated or compensated solely by money damages.

Reading this count reminded us of the recent holding in Contractual Obligations Productions LLC v. AMC Networks, Inc., No. 04 cv 2867, 4/7/08 NYLJ "Decision of Interest" (S.D.N.Y. decided Mar. 25, 2008) which cited Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) for the proposition that the Lanham Act does not apply to claims arising out of failure to credit or attribute the origin of a creative work.

Kanye & Jay-Z "What? What?"

Kanye West and Jay-Z are among the co-defendants in a case filed in the District of Maryland (which Plaintiff erroneously describes in the caption as being in the Sixth Circuit).

Plaintiff Dayna D. Staggs -- who is likely appearing pro se -- has asserted...request your own copy of the complaint here. The complaint is an interesting, if not sometime confusing, read. But don't get the wrong idea; OTCS believes plaintiff's complaint would withstand a 12(b)(6) motion to dismiss for failure to state a claim!

From what we gather from the single spaced, unnumbered, 6 page complaint (which includes a single signature line for the multiple defendants), Plaintiff seeks injunctive relief, damages, and legal fees arising for copyright infringement, unfair competition, and "unauthorized use of Plaintiff [sic] likeness and Mtv sound recording, composition and internationally musical content entitled 'Volume of Good Life' herein described on phonorecord white label by the United States Library of Congress." Though Plaintiff's grammar and syntax could be improved, the allegations have a good chance of satisfying FRCP's liberal pleading standards (Rule 8). What could be a more "short and plain statement" than one completely lacking legalese?

Plaintiff alleges that he is the songwriter for the composition "Hollar at Me" (1985), released on EMI by R&B artists ICEE HOTT. But, this is all of minor relevance because the alleged infringement relates to Kanye West's release of "Good Life" on Roc-a-fella records. Plaintiff alleges to be the author of a composition and sound recording entitled "Volume of Good Life", which Kanye West sampled without authorization (and which his label released).

Additionally, "the vulgar, sexual and racially-charged nature of the Infringing master work is directly counter to [Plaintiff's] long established public persona, utterly inconsistent with the musician, artist clean image. And harms the reputation of the Dayna D Staggs Copyrighted Rock/Pop master work clean titled 'Volume of Good Life." [sic].

Despite the numerous grammatical errors in his complaint, Plaintiff appears to have some idea of what he is doing. For example, he sent cease and desist letters which "did not receive a favorable response". He alleges the labels have commercially profited from the infringement. He alleges willful infringement -- "Defendants are undoubtedly familiar with [Plaintiff], his songwriter likeness, and also are friends of the Plaintiffs myspace page located at www.myspace.com/dmystro." He makes claims for legal fees, and claims that he has no adequate remedy at law (though he later requests punitive damages and states "the Actual harm Plaintiff suffered is reflected in the amount of licensing fee that Plaintiffs lost because of the infringement").

So in sum, Plaintiff has asserted an unauthorized sampling claim against Kanye West and his label and publishers.

[Staggs v. West et al., No. 08-cv-0728-PJM (D.Md. filed Mar. 20, 2008).]

Pro Se Can You See?

You will want to read the complaint, filed by plaintiff appearing pro se, in this action: Duncan v. Universal Music Group et al., No. 08 cv 2762 (S.D.N.Y. complaint filed Mar. 14, 2008). [Request a copy from OTCS.]

A sample [all sic]:

That as a pupil I experienced racism and I suspected that I was being watched and under surveillance both professionally and domestically. I tried to avoid conflict however the stress became severe and I converted to Christianity in 1993.

As a way to relieve stress I sant to myself and became increasingly creative. As part of my devotional time and personal worship I wrote and composed many gospel songs.

That during this period of extreme stress I openly expressed the hope that my songs would be recorded by certain established vocalists and recording artists. I indicated whose these artists were, and made certain stipulation with respect to my work, contained in the Terms of License below. [Eds.: Note the following "terms": "Permission was granted for songs to be recorded and released over a period of years to facilitate the restoration to health of the Plaintiff and to build the Kingdom of God and for the work of the Lord to continue...That in the case of income derived from collections in the United States of America a portion was to be invested in then non existent companies to include Amazon, Yahoo, Ebay, Crocs, Liberty Media...]

That at no time did I intend to party with my legal interest as copyright owner of these songs. Further at no time did I sign any document transferring an or any whole or in ipart of an interest in the songs to anyone or any organization.

...amazing...

Pro Se Success Rate?

A case filed late last month by a pro se plaintiff in the Southern District of New York for copyright (and patent) infringement against media giant Viacom Int'l and affiliated company VH1 raised OTCS's eyebrows a bit: how successful are pro se plaintiffs in copyright infringement cases?

Professor Patry has noted in his blog the perils (and annoyances) of proceeding pro se, but does anyone have hard numbers? This is potentially an interesting topic for a law review note or article to explore.

[Jincea Butler v. Viacom Int'l.; VH1; Lee Rolantz; Jack Benson; Louis Horvitz; Tim Cohen; filed 1/23/2008; case no. CV-0557]