Opinion
24-CV-2856 (LTS)
05-28-2024
CAZE D. THOMAS, Plaintiff, v. DOJA CAT; SZA; RCA; KEMOSABE RECORDS, Defendants.
ORDER OF DISMISSAL
LAURA TAYLOR SWAIN CHIEF UNITED STATES DISTRICT JUDGE
Plaintiff brings this action pro se. He alleges that Doja Cat's song, “Kiss me more,” includes sounds that are similar to sounds in his song, “Love me more.” By order dated April 25, 2024, the Court granted Plaintiff's request to proceed in forma pauperis, that is, without prepayment of fees. For the reasons set forth below, the Court dismisses the complaint, with 30 days' leave to replead.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. See Fed.R.Civ.P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits -to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
Rule 8 requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
BACKGROUND
The following allegations are drawn from Plaintiff's complaint. In 2020, Plaintiff created a song titled, “Love me more,” using an app that makes voice memos. Plaintiff labeled his song with emojis of astronauts falling from the sky because astronauts are “a theme of [his] branding.” (ECF 1 at 5.) Plaintiff made a “screen recording” of his song playing on the app and then posted the screen recording to “Twitter.” (Id.) Later, Plaintiff posted the recording on YouTube.
On an unspecified date, Plaintiff heard a song called, “Kiss me more,” by Doja Cat. Part of Plaintiff's song was recorded on the subway, and the video of Doja Cat's song “contain[s] sounds substantially similar to th[ose] on [Plaintiff's] song.” (Id.) Moreover, Doja Cat uses an astronaut in her video, as did Plaintiff. Plaintiff contacted Doja Cat and “she claim[ed] she had asked her staff who “Kiss me more” sounds like, and they decided to go with Olivia Newton John's song.” (Id. at 6.)
Plaintiff seeks damages and to “remove [his] intellectual property from all contracts unauthorized ....” (Id.) He invokes, as the basis for his claims, “Infringement” “All Intellectual property rights,” “Branding dilution/Business Interferes,” “Trade dress and trademark violations.” (Id. at 2.)
Plaintiff has brought numerous suits in this court, many of which involve allegations of copyright infringement. See, e.g., Thomas v. Universal Music Group, No. 24-CV-2222 (VSB) (S.D.N.Y.); Thomas v. Universal Music Group, No. 23-CV-10013 (VSB) (S.D.N.Y.); Thomas v. Twitter Corporate Office, No. 22-CV-5341 (KPF) (S.D.N.Y. Dec. 6, 2023).
DISCUSSION
A. Copyright Infringement
Plaintiff alleges Defendants have engaged in “infringement,” which the Court construes as a claim a copyright infringement under the federal Copyright Act, 17 U.S.C. § 501. To state a claim for copyright infringement, a plaintiff must allege facts suggesting the “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ'ns, Inc. v. Rural Telephone Serv. Co., 499 U.S. 340, 361 (1991); see also Matthew Bender & Co. v. W. Pub. Co., 158 F.3d 674, 679 (2d Cir. 1998).
Registration with the United States Copyright Office is not required for a work to obtain copyright protection. See 17 U.S.C. § 408(a) (“[R]egistration is not a condition of copyright protection.”). Nevertheless, registration of a copyright with the United States Copyright Office is a precondition for bringing an infringement action in federal court. Section 411(a) of the Copyright Act provides that “no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title.” 17 U.S.C. § 411(a); see also Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 158 (2010) (holding that copyright registration is a condition that a plaintiff “must satisfy before filing an infringement claim and invoking the [Copyright] Act's remedial provisions”); Newton v. Penguin/Berkley Publ'g USA, No. 13-CV-1283, 2014 WL 61232, at *4 (S.D.N.Y. Jan. 6, 2014) (“The Supreme Court has held that this provision imposes a ‘precondition' to filing a claim for copyright infringement.”).
Plaintiff does not allege that he registered his original work, “Love me more,” with the U.S. Copyright Office. See Home & Nature, Inc. v. Sherman Specialty Co., Inc., 322 F.Supp.2d 260, 266 (E.D.N.Y. 2004) (noting that alleging copyright registration is pleading requirement). Because registration of a copyright is a precondition to suit, and Plaintiff does not allege that he has a registered copyright for the work at issue, Plaintiff's copyright infringement claim is dismissed without prejudice.
Although the Court need not reach the issue, the Court also notes that insofar as Plaintiff is alleging only that both his song and Doja Cat's song have similar background noise from having been recorded on the subway, such allegations are insufficient to show copying of the original elements of a work.
B. Trademark Infringement
Plaintiff references trademark infringement, and he therefore appears to assert a claim under the Federal Trademark Act of 1946, 15 U.S.C. §1051, et seq., which is also known as the Lanham Act. To state a claim of trademark infringement under the Lanham Act, “a plaintiff ‘must allege sufficient facts to establish: (1) that the plaintiff's mark is entitled to protection, and (2) that the defendant's use of [the] mark is likely to cause consumers confusion as to the origin or sponsorship of [its] goods [or services].” Adidas Am., Inc. v. Thom Brown Inc., 599 F.Supp.3d 151, 158 (S.D.N.Y. 2022) (citation omitted, second alteration in original). “A certificate of registration with the [United States Patent and Trademark Office] is prima facie evidence that the mark is registered and valid (i.e., protectible), that the registrant owns the mark, and that the registrant has the exclusive right to use the mark in commerce.” Lane Capital Mgmt. Inc. v. Lane Capital Mgmt., Inc., 192 F.3d 337, 345 (2d Cir. 1999) (citing 15 U.S.C. § 1115(a)).
It is unclear what mark Plaintiff has registered and seeks to protect. Plaintiff's allegations that his “brand” has a “theme” of astronauts are insufficient to allege that he has a registered mark entitled to protection. The Court therefore dismisses Plaintiff's trademark infringement claim for failure to state a claim on which relief can be granted.
C. Leave to Replead
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because it is not clear that granting leave to amend would be futile, the Court grants Plaintiff 30 days' leave to amend his complaint to detail his claims. If Plaintiff repleads his copyright infringement claim, he must plead facts showing that he has a registered copyright.
CONCLUSION
Plaintiff's claims under the Copyright Act and Lanham Act are dismissed for failure to state a claim on which relief can be granted, and the Court declines under 28 U.S.C. § 1367(c)(3) to exercise supplemental jurisdiction of any state law claims. Plaintiff may submit an amended complaint within 30 days. An amended complaint form is attached to this order. The amended complaint must be labeled with the docket number 24-CV-2856 (LTS).
If Plaintiff fails to file an amended complaint within 30 days, the Court will direct the Clerk of Court to enter judgment.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.