Buchanan v. Sony Music Entertainment Inc. ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
MOREH J. BUCHANAN, )
)
Plaintiff, )
)
v. ) No. 18-cv-3028 (KBJ)
)
SONY MUSIC ENTERTAINMENT, )
et. al., )
)
Defendants. )
)
MEMORANDUM OPINION
Pro se plaintiff Moreh J. Buchanan has filed the instant lawsuit against four
record companies and one movie studio under the Copyright Act, 17 U.S.C. § 501. (See
Compl., ECF No. 1, at 14–17.) 1 Buchanan alleges that he distributed four original
songs to Defendants Sony Music Entertainment, Warner Music Group Corp., UMG
Recordings, Inc., and Sony/ATV Music Publishing LLC (collectively, “the Record
Companies”) between 1992 and 1997, in an effort to persuade them to produce his
music (see id. at 4–5), and that these companies then unlawfully appropriated his music
and lyrics, using them to create scores of hit songs that were released between 1993 and
2018 (see id. at 10–14). Buchanan specifically alleges that the Record Companies
engaged in 56 individual acts of copyright infringement, and he further contends that
Defendant Universal Pictures derived the “plot, theme, story line, characters, cast,
scenes, etc. etc.” of the Fast and Furious film franchise from a copyrighted song that he
1
Page number citations to the documents that the parties have filed refer to those that the Court’s
electronic case filing system automatically assigns.
sent to that company. (Pl.’s Opp’n to Defs.’ Mots. to Dismiss (“Pl.’s Opp’n to All
Defs.”), ECF No. 22, at 6.) Buchanan also alleges that the Record Companies were
negligent, and strictly liable, for failing to monitor their “writers, producers[,] and
artist[s]” and for not protecting Buchanan “from harm of copyright infringement.”
(Compl. at 14–15.)
Before this Court at present are two motions to dismiss Buchanan’s complaint
that the Record Companies and Universal Pictures have filed. (See Defs. Record Cos.’
Mot. to Dismiss, ECF No. 19; Def. Universal Pictures’s Mot. to Dismiss (“Def. UP’s
Mot.”), ECF No. 18.) The Record Companies contend that Buchanan’s complaint fails
to plead his claims of copyright infringement sufficiently under Federal Rule of Civil
Procedure 12(b)(6); that the Copyright Act’s statute of limitations bars some of the
infringement claims; and that the Copyright Act preempts the complaint’s negligence
and strict liability tort claim. (See Defs. Record Cos.’ Mem. in Support of Mot. to
Dismiss (“Defs. Record Cos.’ Mem.”), ECF No. 19-1, at 6–7.) Universal Pictures
similarly argues that Buchanan has failed to plead facts that establish a plausible claim
of copyright infringement under Rule 12(b)(6). (See Def. UP’s Mot. at 1.) In response,
Buchanan generally maintains that the allegations in his complaint are sufficient to
support his copyright infringement claims. (See Pl.’s Opp’n to All Defs. at 2.)
For the reasons explained below, this Court concludes that Buchanan has failed
to state a claim for copyright infringement, because not all of the songs that he claims
were infringed have been registered with the U.S. Copyright Office, and he has not
sufficiently alleged that Defendants had access to his registered works or that there are
substantial similarities between protectable aspects of his registered works and most of
2
the infringing songs in his complaint. The Court further finds that the tort claim in
Buchanan’s complaint must be dismissed as preempted by the Copyright Act.
Accordingly, both Defendants’ motions will be GRANTED. A separate Order
consistent with this Memorandum Opinion will follow.
I. BACKGROUND
A. Alleged Facts 2
Plaintiff Moreh J. Buchanan is a “songwriter, music publisher, singer/rapper,
artist . . . and composer[.]” (Compl. ¶ 3.) In the 1990s, Buchanan allegedly wrote,
produced, and recorded several original demonstration songs—colloquially referred to
as “demos”—that he distributed to music-industry professionals in hopes of landing a
record deal. (Pl.’s Opp’n to All Defs. at 12.) According to the complaint, Buchanan
first traveled to Atlanta in 1994 and 1995 (see Compl. ¶¶ 40, 43) to present the demos
to certain relatives of his who worked in the music industry (see Pl.’s Opp’n to All
Defs. at 5; see also Compl. ¶¶ 20–23). Buchanan’s family members apparently
consistently rebuffed his repeated attempts to pitch the demos in this fashion (see
Compl. ¶¶ 24, 40–45), so Buchanan physically relocated to Atlanta (see id. ¶ 46), to
“search for a record deal by sharing his music” (id. ¶ 50). Once there, Buchanan
allegedly not only passed demo tapes to producers and music executives personally (see
2
Because “all factual allegations by a pro se litigant, whether contained in the complaint or other
filings in the matter, should be read together in considering whether a motion to dismiss should be
granted[,]” Muhammad v. F.D.I.C., 751 F. Supp. 2d 114, 119 (D.D.C. 2010), aff’d, 448 F. App’x 74
(D.C. Cir. 2012) (citations omitted), the facts recited herein are drawn from Buchanan’s complaint and
also the six briefs that he has submitted in opposition to Defendants’ motions to dismiss (see Pl.’s
Opp’n to All Defs.; Pl.’s Opp’n to Def. UP’s Mot. to Dismiss (“Pl.’s Opp’n to Def. UP’s Mot.”), ECF
No. 25; Pl.’s Exh. 11, ECF No. 26; Pl.’s Exh. 10 in Supp. of Second Aff. (“Pl.’s Registration Appl.”),
ECF No. 27; Pl.’s Reply in Support of Opp’n (“Pl.’s Surreply”), ECF No. 30; and Pl.’s Opp’n to Defs.’
Surreply, ECF No. 33).
3
id. ¶ 52–53), he also worked with a lawyer, E. Earle Burke, who, in 1997, “shopped”
Buchanan’s demo tapes to “Motown, Columbia, Sony, and MCA/Universal Records”
(Compl. ¶ 59; see also Pl.’s Opp’n to All Defs. at 5). Burke allegedly told Buchanan
that the record companies he approached were “very excited about [Buchanan’s] looks,
sound, and demo tape[,]” (Compl. ¶ 60), and further suggested that MCA or Motown
was interested in contracting with Buchanan (see id. ¶ 61).
Around that same time, Buchanan purportedly came to believe that the rapper
Will Smith had copied one of the demo songs in order to create the popular song
“Gettin’ Jiggy Wit It.” (See id. ¶¶ 64–71.) Buchanan sought counsel from Burke, and
Burke agreed to pursue the matter. (See id. ¶¶ 67, 82–83.) Ultimately, Burke failed to
take legal action because, according to Buchanan, Burke “was bribed by Will Smith[.]”
(Id. ¶ 101.) 3 In late 2012, Buchanan began to notice other popular songs—songs
“dating back as far as 1993”—that he believed “infringed on his . . . songs and music
copyright.” (Id. at 17.) The allegedly infringing works are songs that were marketed
between 1993 to 2018 and include popular hits like “Single Ladies” by Beyoncé,
“Shape of You” by Ed Sheeran, and “No Scrubs” by TLC. (See id. at 9–15.) In total,
Buchanan’s complaint identifies 56 songs that allegedly infringe on his copyrights. (See
id.) 4 In addition to the listed popular songs, Buchanan’s complaint further alleges that
3
In his consolidated opposition to Defendants’ motions to dismiss, Buchanan clarified that he is not
bringing a copyright infringement claim based on “Gettin’ Jiggy Wit It” in the instant lawsuit. (See
Pl.’s Opp’n to All Defs. at 6.)
4
In the briefs that he filed in opposition to Defendants’ motions to dismiss, Buchanan names an
additional five allegedly infringing songs. (See Pl.’s Opp’n to All Defs. at 3; Pl.’s Opp’n to Surreply,
at 3.) However, only the alleged acts of infringement that appear in the complaint are cognizable
claims in the instant lawsuit. See Budik v. Ashley, 36 F. Supp. 3d 132, 144 (D.D.C. 2014), aff’d sub
nom. Budik v. United States, No. 14-5102, 2014 WL 6725743 (D.C. Cir. Nov. 12, 2014) (holding in a
case involving a pro se plaintiff that “[i]t is a well-established principle of law in this Circuit that a
plaintiff may not amend her complaint by making new allegations in her opposition brief.” (citation
4
the Fast and Furious film franchise lifted its “plot, theme, story line, characters, cast,
scenes, etc. etc.” from his song entitled “I Gos Ta Roll.” (Pl.’s Opp’n to All Defs. at
6.)
Notably, Buchanan officially registered “I Gos Ta Roll” with the U.S. Copyright
Office in April of 1998. (See Exh. 2 to Pl.’s Compl., ECF No. 1-1, at 2; Pl.’s Opp’n to
All Defs., at 13; see also Defs. Record Cos.’ Mem., at 12; Exh. A to Defs. Record Cos.’
Mem., ECF No. 19-5, at 2.) However, none of the other demo songs that Buchanan
points to as having been subsequently pilfered by the Record Companies—including
“Krazy Bad,” “Gangsta Bass,” and “Zombie Beat”—were registered with the Copyright
Office prior to the initiation of the instant lawsuit. (See Pl.’s Exh. 10 in Supp. of
Second Aff. (“Pl.’s Registration Appl.”), ECF No. 27, at 4.)
B. Procedural History
On December 17, 2018, Buchanan filed a pro se complaint in this Court, alleging
“copyright infringement of his original demo song[s][.]” (Compl. ¶ 101.) Buchanan’s
complaint is not a model of clarity, but it appears to assail certain specified acts as
copyright violations, each of which this Court construes as a separate infringement
claim for the purpose of evaluating Defendants’ motions to dismiss. 5 Buchanan’s
complaint also appears to allege that the Record Companies have committed negligence,
omitted)).
5
As previously explained, the complaint alleges that the Record Companies unlawfully used
Buchanan’s four demo songs to create 56 infringing songs, each of which is specifically listed in the
pleading. (See id. at 9–14.) The complaint further maintains that Universal Pictures copied the
fundamental ideas from Buchanan’s “I Gos Ta Roll” song and relied on those ideas to create the plot,
characters, and theme of the Fast and Furious film franchise. (See Pl.’s Opp’n to Def. UP’s Mot., ECF
No. 25, at 2; see also Pl.’s Opp’n to All Defs. at 6.) Thus, the complaint alleges 57 separate acts of
copyright infringement.
5
and are strictly liable, for “failing to protect Plaintiff from harm of copyright
infringement.” (Compl. at 14.) As relief, Buchanan seeks damages totaling “$1
Quadrillion.” (Compl. at 17.)
On May 6, 2019, the Record Companies moved to dismiss Buchanan’s complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Defs. Record Cos.’ Mem. at
10.) The Record Companies point out that Buchanan does not have a valid copyright
for three of the four demo songs (see id. at 10–12), and they further insist that his
complaint has “not plausibly pled” that the Record Companies had access to
Buchanan’s works in order to copy them (id. at 13). The Record Companies also argue
that Buchanan’s pleading fails to state a claim upon which relief can be granted,
because he does not identify similarities between most of his works and the allegedly
infringing songs, and the few similarities that he does identify are insufficient to
support his claims (id. at 15–22). Finally, the Record Companies point to the Copyright
Act’s statute of limitations, which they maintain bars many of Buchanan’s infringement
claims, and they assert further that the Copyright Act preempts his negligence/strict
liability claim. (See id. at 22–25.)
Universal Pictures filed its Rule 12(b)(6) motion to dismiss on May 2, 2019.
(See Mem. of P. & A. in Supp. of Def. Universal Pictures’s Mot. to Dismiss (“Def. UP’s
Mem.”), ECF No. 18-1.) The primary thrust of Universal Pictures’s argument is that
Buchanan has not “plausibly explain[ed] how Universal Pictures gained access” to “I
Gos Ta Roll” or any of his other demo songs, nor has he “set forth what copyrightable
elements of his works” Universal Pictures allegedly copied. (Id. at 5.)
Buchanan filed a consolidated opposition to both Defendants’ motions to dismiss
6
on June 7, 2019 (see Pl.’s Opp’n to All Defs., ECF No. 22), and flurry of responsive
briefing followed. Specifically, the Record Companies filed a reply brief on June 17,
2019 (see Defs. Record Cos.’ Reply in Supp. of Mot. to Dismiss, ECF No. 23), and
Universal Pictures filed its reply brief on that same day (see Reply Mem. in Supp. of
Def. Universal Pictures’s Mot. to Dismiss, ECF No. 24). Buchanan then filed several
additional documents in opposition to the Defendants’ motions to dismiss (see Pl.’s
Opp’n to Def. UP’s Mot., ECF No. 25; Pl.’s Exh. 11 in Supp. of 2nd Aff., ECF No. 26;
Pl.’s Registration Appl., ECF No. 27), and the Record Companies filed a surreply on
August 7, 2019 (see Defs. Record Cos.’ Surreply, ECF No. 34). Finally, Buchanan filed
an initial surreply on August 14, 2019 (see Pl.’s Reply in Supp. of Opp’n to Not
Dismiss (“Pl.’s Surreply”), ECF No. 30), which was followed by a final surreply on
August 23, 2019 (see Pl.’s Opp’n to Defs.’ Surreply, ECF No. 33).
II. MOTIONS TO DISMISS UNDER RULE 12(b)(6)
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to
dismiss a complaint against it on the grounds that it “fail[s] to state a claim upon which
relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) tests the sufficiency of
a plaintiff’s complaint, Herron v. Fannie Mae, 861 F.3d 160, 173 (D.C. Cir. 2017), and
it is well established that, to withstand a Rule 12(b)(6) motion, the plaintiff must allege
“sufficient factual matter, accepted as true, to state a claim to relief that is plausible on
its face[,]” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and
citation omitted). When evaluating a motion’s allegation that the complaint must be
dismissed for failure to state a cognizable claim, the court must “accept the plaintiff’s
factual allegations as true and construe the complaint liberally, granting plaintiff the
7
benefit of inferences that can reasonably be derived from the facts alleged.” Sickle v.
Torres Advanced Enter. Sols., LLC, 884 F.3d 338, 345 (D.C. Cir. 2018) (internal
quotation marks, alterations, and citation omitted).
It is also clear that, as a general matter, pleadings that are submitted by pro se
plaintiffs should be “held to less stringent standards than formal pleadings drafted by
lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also id. (“A document filed
pro se is to be liberally construed[.]” (internal quotation marks and citation omitted)).)
However, “[t]his benefit is not . . . a license to ignore the Federal Rules of Civil
Procedure[.]” Sturdza v. United Arab Emirates, 658 F. Supp. 2d 135, 137 (D.D.C.
2009). Thus, the court need not “accept legal conclusions cast as factual allegations[,]”
Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012), and “threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements” do not
pass muster under Rule 12(b)(6), Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 68
(D.C. Cir. 2015) (internal quotation marks, alterations, and citation omitted).
III. ANALYSIS
As previously mentioned, Defendants seek dismissal of the bulk of Buchanan’s
complaint on the grounds that Buchanan has failed to plead his copyright infringement
claims sufficiently, and the Record Companies further maintain that some of
Buchanan’s claims are either barred by the applicable statute of limitations or
preempted by the Copyright Act. (See Defs. Record Cos.’ Mem. at 10–24; Def. UP’s
Mem. at 11–15.) As explained below, this Court largely agrees with Defendants’
contentions. That is, to the extent that some of Buchanan’s claims pertain to certain
demo songs that he did not register with the Copyright Office, no claim pertaining to
8
infringement of those works can be sustained as a matter of law. And Buchanan has
also failed to identify a chain of events that supports a plausible inference that
Defendants actually had access to the one demo song he registered, nor has he
otherwise sufficiently identified protectible and infringed elements of that registered
work. Thus, none of Buchanan’s copyright claims can proceed. Furthermore, because
the Copyright Act preempts a tort liability claim that pertains to an alleged failure of
the defendant to shield registered creative works from alleged unlawful appropriation,
Buchanan’s negligence and strict liability claim must also be dismissed.
A. Buchanan’s Complaint Fails To State Any Valid Copyright
Infringement Claims
1. Federal Copyright Law Conveys Enforceable Rights To Owners Of
Creative Works, But Only Under Certain Specified Circumstances
Under Title 17 of the United States Code, the owner of a creative work that is
subject to copyright protection generally has several exclusive rights with respect to his
creation, including the right to “reproduce the copyrighted work[,]” to “prepare
derivative works[,]” to “distribute copies[,]” to “perform the copyrighted work
publicly[,]” and to “display the copyrighted work publicly[.]” 17 U.S.C. § 106.
Moreover, and significantly for present purposes, if the owner of a work has sought and
received “preregistration or registration of the copyright claim . . . in accordance with
[Title 17][,]” 17 U.S.C. § 411, then he also has “an exclusive right . . . to institute an
action for any infringement” of his copyright, 17 U.S.C. § 501.
According to the D.C. Circuit, to state a claim for copyright infringement, a
plaintiff must allege facts that, if true, would “prove both [1] ownership of a valid
copyright and [2] that the defendant copied original or ‘protectable’ aspects of the
copyrighted work.” Sturdza v. United Arab Emirates, 281 F.3d 1287, 1295 (D.C. Cir.
9
2002) (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348, 361
(1991)). The initial author of a protectible work typically qualifies as the “owner” of
the copyright, see 17 U.S.C. § 201, and such author “gains ‘exclusive rights’ in her
work immediately upon the work’s creation.” Fourth Estate Pub. Benefit Corp. v. Wall-
Street.com, LLC, 139 S. Ct. 881, 887 (2019) (citation omitted); see also 17 U.S.C § 408
(“[R]egistration is not a condition of copyright protection.”). In order for an author to
seek to enforce copyright protection of a work in court, however, the work must
ordinarily be registered with the Copyright Office; indeed, section 411(a) of Title 17
specifically states that “no civil action for infringement of the copyright . . . shall be
instituted until preregistration or registration of the copyright claim has been made[.]”
17 U.S.C. § 411(a); see also Fourth Estate, 139 S. Ct. at 887 (noting that the
requirement that a song be registered “is akin to an administrative exhaustion
requirement that the owner must satisfy before suing to enforce ownership rights”);
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157–58 (2010) (explaining that
copyright registration is “a condition . . . that plaintiffs ordinarily must satisfy before
filing [a copyright] infringement claim”). It is also clear beyond cavil that a timely
certificate of registration serves as prima facie evidence of a valid copyright. See 17
U.S.C. § 410(c); see also Stenograph L.L.C. v. Bossard Assocs., Inc., 144 F.3d 96, 99
(D.C. Cir. 1998) (explaining that “certificates of registration . . . constitute prima facie
evidence of the validity of the copyright”).
With respect to the copying element of a copyright infringement claim, in the
absence of direct evidence of copying, a plaintiff must allege “(1) that defendants had
access to the copyrighted work, and (2) the substantial similarity between the
10
protectible material in plaintiff’s and defendants’ works.” Prunte v. Universal Music
Grp., 484 F. Supp. 2d 32, 40–41 (D.D.C. 2007). Access generally means that an
infringer had a “reasonable opportunity to hear the plaintiff’s work” and, thus, had “the
opportunity to copy”; however, “access may not be inferred through mere speculation or
conjecture.” Jones v. Blige, 558 F.3d 485, 491 (6th Cir. 2009) (internal quotation
marks and citations omitted). Moreover, the second element—the substantial similarity
inquiry—proceeds in two distinct steps. See Sturdza, 281 F.3d at 1295. “The first step
requires identifying which aspects of the artist’s work, if any, are protectible by
copyright[,]” id., while the second step requires comparing the works to determine
“whether the infringing work is ‘substantially similar’ to protectable elements of the
artist’s work[,]” id. at 1296 (citation omitted). Protectible aspects of an artist’s work
are those “that display the stamp of the author’s originality”; thus, facts, ideas, and
“incidents, characters, and setting which are . . . standard[] in the treatment of a given
topic” are all considered unprotectible. Id. at 1295–96 (internal quotation marks and
citations omitted).
Applied here, these legal standards require that, in order to state a valid claim for
copyright infringement, Buchanan has to allege that Defendants had access to one or
more of his registered (validly copyrighted) demo songs, and that Defendants’ works
are substantially similar to protectible material in Buchanan’s copyrighted works.
Buchanan’s complaint falls far short of making sufficient allegations with respect to
these critical elements of a valid copyright claim, for the reasons explained below.
2. Some Of The Copyright Infringement Claims In Buchanan’s
Complaint Are Based On Unregistered Recordings
11
Buchanan’s various filings make clear that only one of the four demo songs upon
which his copyright infringement claims are based was registered with the U.S.
Copyright Office at the relevant time. Buchanan alleges that he registered the song “I
Gos Ta Roll” prior to the initiation of the instant lawsuit (see Compl. ¶ 100; Pl.’s Opp’n
to All Defs. at 13 ¶ 85), and at least for the purpose of their motion to dismiss,
Defendants appear to accept that Buchanan registered that song and thus had ownership
of a valid copyright in “I Gos Ta Roll” at the time Buchanan filed his complaint (see
Defs. Record Cos.’ Mem. at 13; Exh. A to Defs. Record Cos.’ Mem. at 2). Buchanan
proceeds to allege that 46 songs that the Record Companies produced infringe on his
copyright for “I Gos Ta Roll,” including “No Scrubs” by TLC, “Shape of You” by Ed
Sheeran, and “I Want It That Way” by The Backstreet Boys. (See Compl. at 9–14.)
Buchanan further alleges that the Fast and Furious film franchise infringes on “I Gos
Ta Roll.” (See id. at 15.)
The remaining nine songs that the complaint assails as infringing works—“Born
to Roll” by Masta Ace, “Single Ladies” by Beyoncé, “Rap God” by Eminem, “6 Foot 7
Foot” by Lil Wayne, “Rockstar” by Post Malone, “Started From the Bottom” by Drake,
“Yes Yes Y’all” by Will Smith, “Country Grammar” by Nelly, “Hell Yeah” by Ginuane,
and “Roving Gangster” by Kid Rock—purportedly infringe upon three other demo
songs that Buchanan recorded: “Krazy Bad,” “Gangsta Bass,” and “Zombie Beat.” (See
id. at 9–14.) But Buchanan does not allege that he submitted any registration
application with respect to these three works prior to the initiation of this lawsuit, and
the fact that he sought registration for them after Defendants filed their motions to
dismiss strongly suggests that these songs were not previously registered. (See Pl.’s
12
Registration Appl. at 4 (explaining that the registration application fee for the three
songs was submitted on July 3, 2019 and that the songs were not previously registered
“because [Buchanan] did not think [the songs] would be infringed”).)
The lack of any allegation regarding pre-suit registration with respect to those
three songs compels the conclusion that the nine infringement claims that relate to
Buchanan’s unregistered works must be dismissed for failure to state a claim on which
relief can be granted. In other words, Buchanan did not register the three allegedly
copied works before pursuing a copyright infringement lawsuit based on those songs,
and as a result, he cannot maintain copyright infringement claims with respect to any
new songs that allegedly infringe his ownership rights related to those unregistered
works. See Fourth Estate, 139 S. Ct. at 887; see also, e.g., Newborn v. Yahoo!, Inc.,
391 F. Supp. 2d 181, 188 (D.D.C. 2005) (finding that where “there [is] no current
copyright for this document, it cannot form the basis for a copyright infringement
claim”).
3. Buchanan’s Complaint Does Not Contain Sufficient Facts To Give
Rise To A Reasonable Possibility That Defendants Had Access To
His Registered Work
The copyright claims that pertain to the one registered demo song that appears in
Buchanan’s complaint (“I Gos Ta Roll”) fail because, notwithstanding the copyright
registration, Buchanan has not plausibly alleged that Defendants had access to this
song. To establish that a defendant had access to a plaintiff’s work for the purpose of
stating a cognizable copyright claim under federal law, the plaintiff must allege, and
ultimately prove, circumstances that suggest “a reasonable possibility, not merely a
bare possibility, that an alleged infringer had the chance to view the protected work.”
Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016) (internal quotation marks and
13
citation omitted); see also Cottrill v. Spears, 87 F. App’x 803, 806 (3d Cir. 2004), as
amended on reh’g (June 2, 2004); Towler v. Sayles, 76 F.3d 579, 582 (4th Cir. 1996);
Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939, 942 (8th Cir. 1992). A plaintiff
can make this showing in one of two ways: “(1) a particular chain of events is
established between the plaintiff’s work and the defendant’s access to that work . . . or
(2) the plaintiff’s work has been widely disseminated.” Olson v. Tenney, 466 F. Supp.
2d 1230, 1235 (D. Or. 2006) (quoting Three Boys Music Corp. v. Bolton, 212 F.3d 477,
482 (9th Cir. 2000)).
Here, Buchanan says only that his lawyer, E. Earle Burke, distributed “cassette
tapes” with his songs to “Motown, Columbia, Sony, and MCA/Universal” (Compl. ¶¶
58–59), and that these tapes “included 4 new songs that [Buchanan] wrote and recorded
in summer 1997” (id. ¶ 58 (emphasis added)). Buchanan does not state that this
distribution included “I Gos Ta Roll[,]” and such is unlikely, given Buchanan’s
allegation that he had recorded that particular song more than three years prior, in April
of 1994. (See id. ¶ 40.) Moreover, and importantly, while Buchanan generally alleges
that he mailed “copies of ‘I Gos Ta Roll’ to many record labels[,]” he does not allege
that he mailed the song to any of the named Defendants specifically. (Pl.’s Opp’n to
All Defs. at 11 ¶ 43). 6
Buchanan has also failed to allege that “I Gos Ta Roll” was “so widely
disseminated that the defendant can be presumed to have . . . heard it.” Design Basics,
LLC v. Lexington Homes, Inc., 858 F.3d 1093, 1100 (7th Cir. 2017). “[W]idespread
6
Buchanan’s assertion that he handed his demo songs to music executives at various record labels, such
as Interscope, Mercury, Jive, and Epic Records (see Compl. ¶¶ 50, 52), is not sufficient because he has
not alleged any connection between those record labels and the named Defendants, nor has he identified
which demo songs he provided to these executives.
14
dissemination centers on the degree of a work’s commercial success and on its
distribution through radio, television, and other relevant mediums.” Loomis, 836 F.3d
at 997. And far from alleging that “I Gos Ta Roll” was widely disseminated prior to
Defendants’ alleged acts of infringement, Buchanan asserts that he published the song
for the first time when he released it digitally on October 26, 2009. (See Compl. ¶ 100.)
Buchanan’s pleading also lacks any allegations with respect to the scope of that song’s
dissemination after it was published online; that is, Buchanan does not allege that a
mass of people either purchased “I Gos Ta Roll” or listened to it. Yet, widespread
dissemination of the type that gives rise to an inference of access in support of a
copyright infringement claim generally requires a significant showing of ubiquity. See,
e.g., Art Attacks Ink, LLC v. MGA Entm’t Inc., 581 F.3d 1138, 1144 (9th Cir. 2009)
(holding that the sale of 2,000 t-shirts per year was not sufficient to show wide
dissemination); Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1178 (9th Cir. 2003)
(holding that sale of 17,000 video copies over a thirteen-year period could not be
considered widely disseminated); Jason v. Fonda, 526 F. Supp. 774, 776 (C.D. Cal.
1981), aff’d 698 F.2d 966 (9th Cir. 1982) (holding book sales of approximately 2,000
copies did not create more than a bare possibility of access). Indeed, it is quite well
established that “the mere fact that [Buchanan’s] work was posted on the internet . . . is
insufficient by itself to demonstrate wide dissemination.” O’Keefe v. Ogilvy & Mather
Worldwide, Inc., 590 F. Supp. 2d 500, 515 (S.D.N.Y. 2008); see also Meynart-Hanzel v.
Turner Broad. Sys., No. 17 C 6308, 2018 WL 4467147, at *6 (N.D. Ill. Sept. 18, 2018)
(explaining that sufficiently pleading wide dissemination requires “facts concerning the
15
alleged breadth of that distribution (e.g., the number of views, subscribers, traffic,
etc.)”).
With respect to Buchanan’s allegation that Burke provided a demo of “I Gos Ta
Roll” to UMG Recordings (“UMG”), and that Universal Pictures got access to the song
through that distribution (see Compl. at 15), Buchanan has suggested a particular mode
of transmission of this work to those Defendants, but his access allegations are
insufficient nonetheless because there must be a “reasonable possibility” that allegedly
infringing actors within UMG and Universal Pictures had the opportunity to copy his
song, Moore, 972 F.2d at 942, and there is nothing in Buchanan’s pleadings upon which
to base any such inference. For instance, where a plaintiff has alleged access through a
third-party intermediary, “[a] court may infer that the alleged infringer had a reasonable
possibility of access if the author sent the copyrighted work to a third party
intermediary who has a close relationship with the infringer.” Towler v. Sayles, 76
F.3d 579, 583 (4th Cir. 1996) (emphasis added); see also id. (explaining that a close
relationship can be shown where the intermediary “supervises or works in the same
department as the infringer or contributes creative ideas to him”). But Buchanan has
not made any factual allegations with respect to Burke’s relationship with any of the
Defendants, much less to whom Burke provided the demo tape at UMG and/or how the
song was then transferred to the allegedly infringing writers and producers within UMG
or at Universal Pictures. See Schkeiban v. Cameron, No. CV 12-0636-R (MANX), 2012
WL 12895721, at *2 (C.D. Cal. July 20, 2012) (explaining that plaintiff has not pleaded
“facts showing a chain of events from [intermediary] to [alleged infringer]” or shown
that “their relationship is sufficiently strong to raise a reasonable possibility of
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access”); cf. Peters v. West, 692 F.3d 629, 634 (7th Cir. 2012) (finding access
sufficiently pled where plaintiff provided song to intermediary who was alleged to have
had a close relationship with creator of infringing work).
Nor has Buchanan identified any of the writers and music producers who created
the allegedly infringing works, or alleged that any of these infringers was employed by,
or otherwise had a relationship with, UMG or Universal Pictures such that they could
possibly have received a copy of “I Gos Ta Roll” after Burke purportedly provided it to
UMG. See Griffin v. Peele, No. EDCV 17-01153 JGB, 2018 WL 5117555, at *5 (C.D.
Cal. Jan. 18, 2018) (finding plaintiff’s chain of events “too speculative” where plaintiff
did not allege that the infringing work was actually provided to alleged infringer).
Buchanan identifies the recording artists associated with each allegedly infringing
work, but he does not allege that these artists were responsible for writing or producing
the infringing works, nor does he allege any facts from which the Court could infer that
the recording artists had access to his work. See Lyles v. Capital-EMI Music Inc., No.
2:12-CV-00751, 2013 WL 6000991, at *4 (S.D. Ohio Nov. 12, 2013) (finding access
insufficiently pled where “there are no facts alleged that would allow any reasonable
inference that the record companies to which Plaintiff sent his songs had any
relationship with [alleged infringing artist]”). And the similarly bald contention that “I
Gos Ta Roll” was “passed on” to Universal Pictures from UMG (Compl. at 15) is
likewise not enough. Cf. Marcus v. ABC Signature Studios, Inc., 279 F. Supp. 3d 1056,
1064 (C.D. Cal. 2017) (finding access sufficiently pled where plaintiff alleged that she
submitted a script to a script-writing contest, the contest’s director had a close
relationship with the creator of the infringing work, and creator of infringing work
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received the script from the contest director). In short, Buchanan’s allegations do not
allege facts that make the allegedly infringing producers’ access to “I Gos Ta Roll” a
“reasonable possibility”; therefore, Buchanan has failed to provide the plausible
allegation of access that copyright law requires. See Towler, 76 F.3d at 583 (“The
‘tortious chain of hypothetical transmittals’ that [plaintiff] attempts to forge is
insufficient to infer access.” (quoting Meta-Film Associates, Inc. v. MCA, Inc., 586 F.
Supp. 1346, 1355 (C.D. Cal. 1984))).
4. Buchanan’s Complaint Fails To Allege Facts That Support A
Plausible Inference Of Substantial Similarity
Finally, it is clear to this Court that, even if Buchanan has adequately pled that
Defendants had access to his registered song “I Gos Ta Roll,” Buchanan has not
identified protectible elements of that song, and has failed to allege a substantial
similarity between those protectible elements and the allegedly infringing works.
Instead, to support the vast majority of his copyright infringement claims, Buchanan
merely asserts that the infringing work “steals from” his song. Courts have consistently
held that the bare assertion that a work “steals from” a plaintiff’s work is insufficient to
state a claim of copyright infringement. See, e.g., Evans v. McCoy-Harris, No. CV
178-345-DMG, 2019 WL 4284504, at *3 (C.D. Cal. May 9, 2019) (granting the
defendant’s motion to dismiss where the “[p]laintiff does not address the substantial
similarities, if any, between [one of her works] and [the defendant’s work]”); Ritani,
LLC v. Aghjayan, 880 F. Supp. 2d 425, 442 (S.D.N.Y. 2012) (noting that “failure to
plead facts regarding how the [works] are ‘substantially similar,’ including identifying
the protectable elements of the works as part of its claim, will result in the dismissal of
the copyright claim”); Zendel v. ABC Video Prods., No. CV 10-2889-VBF(EX), 2010
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WL 11549713, at *1 (C.D. Cal. Nov. 22, 2010) (granting motion to dismiss where
plaintiff “fail[ed] to identify or describe any of the alleged similarities with reasonable
particularity”); Phillips v. Murdock, 543 F. Supp. 2d 1219, 1226 (D. Haw. 2008)
(granting dismissal where “[t]he Complaint does not identify any specific text in
[plaintiff’s] work that is copied in [defendant’s] publications”). Forty-three of
Buchanan’s infringement claims simply maintain that the listed song “steals from” “I
Gos Ta Roll,” with nothing more, and therefore, must be dismissed for failure to state a
claim upon which relief can be granted. (See Compl. at 9–14.)
With respect to Buchanan’s claim that Universal Pictures infringed on his song
“I Gos Ta Roll” in order to create the “plot, theme, story line, characters, cast, scenes,
etc. etc.” of the Fast and Furious films (Pl.’s Opp’n to All Defs. at 6), Buchanan only
identifies one element of “I Gos Ta Roll” that the motion picture company allegedly
copied—he alleges that “I Gos Ta Roll” includes the lyric “I’m on the freeway zooming
fast[,]” (Pl.’s Opp’n to Def. UP’s Mot. at 3) and maintains that there are “scenes within
the movie that depict the actors . . . zooming fast and furious on the freeway and other
road scenes” (id.). Even assuming arguendo that the creator of the film franchise
listened to Buchanan’s song, the notion of fast freeway movement that that one lyric
embodies is not a protectable element of the song, because “no author may copyright
facts or ideas.” Feist Publ’ns, 499 U.S. at 350 (internal quotation marks and citation
omitted). Only “those aspects of the work—termed ‘expression’—that display the
stamp of the author’s originality” receive copyright protection. Id. (internal quotation
marks and citation omitted). Therefore, just as the idea “of a police car chase in an
action movie is not copyrightable[,]” the mere idea of cars speeding down a highway is
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not copyrightable. Prunte v. Universal Music Grp., Inc., 699 F. Supp. 2d 15, 23
(D.D.C. 2010), aff’d, 425 F. App’x 1 (D.C. Cir. 2011). And because Buchanan has
“failed to identify any [] protected elements of [“I Gos Ta Roll”] upon which [Universal
Pictures] infringed, [Buchanan] has failed to state a claim” for copyright infringement
against Universal Pictures. Gaines v. D.C., 961 F. Supp. 2d 218, 222 (D.D.C. 2013)
(emphasis added); cf. Nichols v. Club for Growth Action, 235 F. Supp. 3d 289, 296
(D.D.C. 2017) (finding that plaintiffs had “adequately alleged copying of original
elements with respect to the musical composition” where plaintiffs alleged that the
defendant “copied a 30-second portion of the musical composition and made no
alterations to the melody or tone of portion of the musical composition”).
Buchanan has managed to identify certain other protectible elements of “I Gos
Ta Roll” that he claims are substantially similar to three allegedly infringing songs of
the Record Companies—“This is How We Roll” and “Cruise,” both by the band Florida
Georgia Line, and “Shake Ya Tailfeather” by the rapper Nelly. (See Exh. 10 to Compl.,
ECF No. 1-1, at 22–23.) However, neither “I Gos Ta Roll” nor any of these songs is in
the record, and all of the circuit courts that have addressed substantial similarity at the
motion to dismiss stage agree that a district court may only decide whether works are
substantially similar this early in the litigation if (1) both the copyrighted and allegedly
infringing works are in the record and (2) “no trier of fact could rationally determine
the [works] to be substantially similar.” Tanksley v. Daniels, 902 F.3d 165, 172 (3d Cir.
2018), cert. denied, 139 S. Ct. 1175 (2019)(internal quotation and citation omitted); see
3 William F. Patry, Patry on Copyright § 9:86.50 (2020) (citing published opinions
from the Second, Third, Seventh, Eighth, Ninth, and Tenth Circuits finding same).
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Ordinarily, then, this Court would permit those claims to proceed on the ground that it
is not in a position to evaluate Defendants’ dismissal argument with respect to those
three alleged acts of infringement. But given the lack of sufficient allegations
concerning access or any allegation that the works are so strikingly similar so as to
“preclude the possibility of independent creation[,]” Jorgensen v. Epic/Sony Records,
351 F.3d 46, 56 (2d Cir. 2003), Defendants have already established that these claims,
too, must be dismissed. (See supra Part III.A.3.)
B. The Copyright Act Preempts Buchanan’s Negligence And Strict
Liability Claim
In addition to asserting that Defendants infringed his rights under the Copyright
Act, Buchanan also maintains that the Record Companies are negligent and strictly
liable because they “failed to perform” their duty to “protect [him] from harm of
copyright infringement.” (Compl. at 14–15.) But section 301 of the Copyright Act is
crystal clear that the federal statute is the sole vehicle for recovery of damages due to
an alleged theft of a plaintiff’s creative work: it plainly provides that “all legal and
equitable rights that are equivalent to any of the exclusive rights within the general
scope of copyright . . . are governed exclusively by this title[,]” and thus, “no person is
entitled to any such right or equivalent right . . . under the common law or statutes of
any State.” 17 U.S.C. § 301(a) (emphasis added). The D.C. Circuit has further
explained that this broad state-law preemption provision was intended to “‘enhanc[e]
predictability and certainty of copyright ownership,’ by establishing a ‘uniform method
for protecting and enforcing certain rights in intellectual property[.]’” Sturdza, 281
F.3d at 1303 (first quoting Cmty. For Creative Non-Violence v. Reid, 490 U.S. 730, 740
(1989); then quoting Daboub v. Gibbons, 42 F.3d 285, 288 (5th Cir. 1995)). Thus, no
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common law claims concerning infringement can be maintained where (1) “the
copyrighted work [is] the type of work protected by copyright law”; and (2) “the state
law right [is] equivalent to a right protected by the Copyright Act.” Id. at 1304
(citation omitted). As relevant here, “musical works” are explicitly protected in the
Copyright Act, 17 U.S.C. § 102, so the first preemption prong is satisfied in the instant
case. Thus, the only remaining question is whether the tort claim that Buchanan brings
here is “equivalent to a right protected by the Copyright Act.” Sturdza, 281 F.3d at
1304.
A right arising under state law is equivalent to one of the “‘exclusive rights
within the general scope of copyright’ where the ‘state law may be abridged by an act
which, in and of itself, would infringe one of [the Copyright Act’s] exclusive rights.”
Id. at 1304 (quoting Harper & Row, Publishers, Inc. v. Nation Enters., 723 F.2d 195,
200 (2d Cir. 1983), rev’d on other grounds, 471 U.S. 539 (1985)). Thus, this Court
must determine whether there is an “extra element” of the state law claim that “changes
the nature of the action so that it is qualitatively different from a copyright infringement
claim[,]” and in order to do so, it looks to “both the elements of the state law cause of
action and the way the plaintiff has actually pled that cause of action.” Id. (quoting
Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 456 (6th Cir. 2001)). Under the laws of
the District of Columbia, the elements of a claim of negligence are “(1) that the
defendant owed a duty to the plaintiff, (2) breach of that duty, and (3) injury to the
plaintiff that was proximately caused by the breach.” Poola v. Howard Univ., 147 A.3d
267, 289 (D.C. 2016) (internal quotation marks and citation omitted). And in his
complaint, Buchanan alleges that the Record Companies are negligent and strictly liable
22
because they “failed to monitor their several numerous writers, producers and artist[s]”
and thereby “failed to protect [Buchanan] from the harm of copyright infringement[,]
. . . failed to maintain and uphold a social and fiduciary responsibility[,] . . . [and]
failed to perform these duties in a safe and effective manner leading to the injuries
sustained by [Buchanan].” (Compl. at 14–15.) Buchanan’s negligence and strict
liability claim thus suggests that the Record Companies owed him a duty to prevent
their employees from creating infringing works, and that they breached the duty by
creating infringing works, thereby injuring him.
This Court finds that such a claim is not “qualitatively different” from a claim of
infringement under the Copyright Act, because the alleged breach of duty “rest[s]
on [defendant’s] unauthorized copying—an act which in and of itself would infringe on
one of th[e] exclusive rights protected by the Copyright Act.” Sturdza, 281 F.3d at
1305 (internal quotation marks and citation omitted); see also id. (finding that a state-
law claim for interference with a contract is not preempted where the alleged infringer
caused cancellation of a contract by conduct other than the infringing conduct).
Moreover, copyright infringement is a strict liability tort, see 6 Patry on Copyright
§ 21:38, and there is no “extra element” in a claim characterized as a strict liability
negligence claim rather than a copyright infringement claim, see Dielsi v. Falk, 916 F.
Supp. 985, 992 (C.D. Cal. 1996) (“[R]echaracterization of the claim as one of
‘negligence’ does not add a legally cognizable additional element because a general
claim for copyright infringement is fundamentally one founded on strict liability.”).
Consequently, the common law negligence and strict liability claim that Buchanan
asserts in his complaint is the functional equivalent of the no-infringement right that the
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Copyright Act protects such that Buchanan’s tort claim is preempted and must be
dismissed.
IV. CONCLUSION
For the reasons explained herein, this Court finds both that Buchanan has not
stated any claims for copyright infringement against any of the Defendants, and that
Buchanan’s common-law tort claims cannot proceed because they are preempted.
Therefore, as set forth in a forthcoming order, Defendants’ motions to dismiss are
GRANTED.
DATE: May 26, 2020 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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