Opinion
Case No. 19-22813-CIV-WILLIAMS
2020-08-06
Newton Enrique Canga CORTES, Plaintiff, v. UNIVERSAL MUSIC LATINO, et al., Defendants.
Newton Enrique Canga Cortes, Decatur, GA, pro se. James George Sammataro, Pryor Cashman LLP, Miami, FL, for Defendants Universal Music Latino, Luis Alfonso Rodriguez Lopez. Joshua B. Spector, Law Offices of Joshua Spector, P.A., James George Sammataro, Pryor Cashman LLP, Miami, FL, for Defendant Erika Ender. Edwin Javier Prado-Galarza, Prado, Nunez, Associates, CSP, Orlando, FL, James George Sammataro, Pryor Cashman LLP, Miami, FL, for Defendant Ramon L. Ayala.
Newton Enrique Canga Cortes, Decatur, GA, pro se.
James George Sammataro, Pryor Cashman LLP, Miami, FL, for Defendants Universal Music Latino, Luis Alfonso Rodriguez Lopez.
Joshua B. Spector, Law Offices of Joshua Spector, P.A., James George Sammataro, Pryor Cashman LLP, Miami, FL, for Defendant Erika Ender.
Edwin Javier Prado-Galarza, Prado, Nunez, Associates, CSP, Orlando, FL, James George Sammataro, Pryor Cashman LLP, Miami, FL, for Defendant Ramon L. Ayala.
ORDER
KATHLEEN M. WILLIAMS, UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court on the converted motions for summary judgment of Ramon L. Ayala (DE 18), Erika Ender (DE 25), Luis Alfonso Rodriguez Lopez and UMG Recordings, Inc. (DE 37). The motions are now ripe for the Court's review. For the reasons set forth below, the motions are GRANTED .
I. BACKGROUND
In this copyright infringement action, pro se Plaintiff, Newton Cortes, alleges that the lyrics of the hit song "Despacito" infringe the lyrics to his song, "Despasito." The lyrics of both songs are in Spanish. The named defendants are the co-writers of "Despacito," Erika Ender and Ramon L. Ayala ("Daddy Yankee"), the recording artist Luis Alfonso Rodriguez Lopez ("Luis Fonsi" or "Fonsi"), and the record company UMG Recordings, Inc. ("UMG"). "Despacito," released in January 2017, obtained impressive global success, breaking records as the most streamed song track and viewed online music video world-wide.
UMG does not contest that it is the publisher of "Despacito," but explains that it was incorrectly named in the Complaint as "Universal Music Latino, a division of UMG Recordings, Inc." (See DE 37 at 2.)
The Court takes judicial notice of the reporting on the success of "Despacito." See Billboard, Luis Fonsi Breaks Seven Guinness World Records Titles Thanks to ‘Despacito ,’ (Oct. 17, 2018), https://www.billboard.com/articles/columns/latin/8480426/luis-fonsi-despacito-breaks-guinness-world-records.
Plaintiff alleges that on November 27, 2006, the lyrics to his song were registered with the United States Copyright Office (bearing Registration No. SRu000654074). (DE 1 at 4.) In October 2009, Cortes met a music producer named Juan Jose Rodriguez at a Latin music talent contest. (Id. at 9.) At that event, Plaintiff gave Rodriguez a CD compilation of his work with "Despasito" as a track. (Id. ) In November 2009, Cortes and Rodriguez discussed promoting his song, but their relationship deteriorated within a month. (Id. ) The Complaint suggests that after the fall out, Erika Ender and Daddy Yankee somehow obtained access to Plaintiff's lyrics through friends they had in common with Rodriguez's sister and business partner. (Id. ) When "Despacito" was released in January 2017, Plaintiff claims that he sent cease and desist letters to Defendants, who nonetheless, "continue[d] to engage in copyright infringement." (Id. at 4.)
On July 8, 2019, Plaintiff initiated this action, seeking twenty percent of the royalties generated from Defendants’ song, $50,000 "as compensation for the unauthorized use" of his work, and statutory damages of $150,000. (Id. ) Subsequently, Daddy Yankee filed a motion to dismiss on November 21, 2019 (DE 18), Erika Ender moved to dismiss on December 17, 2019 (DE 25), and UMG and Luis Fonsi filed a joint motion to dismiss on January 17, 2020 (DE 37). Among other arguments, Defendants assert that Plaintiff cannot state a copyright infringement claim because the works are not substantially similar at the level of protected expression. In support, UMG and Fonsi submitted a side-by-case comparison of the competing lyrics in Spanish and in their certified English translation. (See DE 37-3.)
In Plaintiff's response to Defendants’ motions, Cortes submitted documents and diagrams, which he argues identifies similarities between the works, including: (1) the shared title; (2) an overlapping theme; (3) certain words and short phrases used in both choruses; (4) shared "expressions" found in the choruses; (5) similar word count (both are about 450 words); (6) identical lyrics repeated a similar number of times (e.g. , Plaintiff argues that "Despacito" is used nine times in his song and ten times in Defendants’ work); (7) the use of a pair of rhyming words in the chorus ("Oido" and "Conmigo," which translate to "ear" and "with me"); (8) the songs both belong to the "Reggaeton" genre; and (9) vulgar words are not used in the lyrics. (See DE 31 at 57-64; DE 45 at 6-7; DE 45-1 at 2-5.)
In his response, Plaintiff also asserts for the first time that the music video for "Despacito" infringes certain elements of his lyrics. (DE 45 at 7.) In the Complaint, Plaintiff alleges that his claim is based only on the lyrics of Defendants’ song: "I am suing for a copyright infringement concerning the lyrics of the song ‘Despacito’ ...." (DE 1 at 4.) The Court will therefore not consider this argument regarding the video, as it was not properly raised in the Complaint. See Huls v. Llabona , 437 F. App'x 830, 832 n. 5 (11th Cir. 2011).
Because the Parties rely on extrinsic evidence that fall outside of the pleadings to support their briefing, on July 10, 2020, the Court converted Defendants’ motions to dismiss into motions for summary judgment, so that it could properly consider these submissions. (DE 53.) Consistent with this Circuit's notice of conversion requirement, the Court informed the Parties that they could supplement the record with affidavits and other probative evidence limited to the issue of substantial similarity, and that it would take the motions under advertisement on July 31, 2020. (Id. ) The Parties have supplemented the record with additional evidence. (DE 54 – DE 58.) Accordingly, Defendants’ motions are now ripe for the Court's review.
See Griffith v. Wainwright , 772 F.2d 822, 826 (11th Cir. 1985) (explaining that an adverse party to a converted motion for summary judgment "must be given express, ten-day notice of the summary judgment rules, of his right to file affidavits or other material in opposition to the motion, and of the consequences of default.").
The Court will consider Plaintiff's supplemental briefing and evidence, even though they were untimely filed on August 3, 2020, three days after the Court's July 31, 2020 deadline. (DE 56; DE 57; DE 58.)
II. LEGAL STANDARD
A. Motion for Summary Judgment
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Under this standard, "[o]nly disputes over facts that might affect the outcome of the suit under the governing [substantive] law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And any such dispute is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
In evaluating a motion for summary judgment, the Court considers the evidence in the record, "including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials ...." Fed. R. Civ. P. 56(c)(1)(A). The Court "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party, and must resolve all reasonable doubts about the facts in favor of the non-movant." Rioux v. City of Atlanta , 520 F.3d 1269, 1274 (11th Cir. 2008) (quotation marks and citations omitted). At the summary judgment stage, the Court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson , 477 U.S. at 249, 106 S.Ct. 2505.
Finally, "[s]ummary judgment for a defendant is appropriate when the plaintiff ‘fails to make a sufficient showing to establish the existence of an element essential to [his] case, and on which [he] will bear the burden at trial.’ " Cleveland v. Policy Mgmt. Sys. Corp. , 526 U.S. 795, 805-06, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Thus, "[i]f the non-movant ... fails to adduce evidence which would be sufficient ... to support a jury finding for the non-movant, summary judgment may be granted." Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1370 (11th Cir. 1997) (citation omitted).
B. Copyright Infringement
To establish copyright infringement, "two elements must be proven: (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., Inc. , 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) ; Oravec v. Sunny Isles Luxury Ventures, L.C. , 527 F.3d 1218, 1223 (11th Cir. 2008). To satisfy the first element, a plaintiff must establish that "the work as a whole is original and that the plaintiff complied with applicable statutory formalities." MiTek Holdings, Inc. v. Arce Eng'g Co. , 89 F.3d 1548, 1553-1554 (11th Cir. 1996) (citation omitted).
The Eleventh Circuit has explained that the second element breaks down into "two separate inquiries: 1) whether the defendant, as a factual matter, copied portions of the plaintiff's [work]; and 2) whether, as a mixed issue of fact and law, those elements of the [work] that have been copied are protected expression and of such importance to the copied work that the appropriation is actionable." Id. (quoting Gates Rubber Co. v. Bando Chem. Indus., Ltd. , 9 F.3d 823, 832 (10th Cir. 1993) ); see also Compulife Software Inc. v. Newman , 959 F.3d 1288, 1301 (11th Cir. 2020) ("Copying comprises two subparts, ‘factual and legal copying,’ both of which Compulife, as the plaintiff, has the burden to prove.") (citing BUC Int'l Corp. v. Int'l Yacht Council Ltd. , 489 F.3d 1129, 1148 n.40 (11th Cir. 2007) ).
Factual copying may be established with either direct or circumstantial evidence. Id. "If the plaintiff does not have direct proof of copying, the plaintiff may show copying by demonstrating that the defendants had access to the copyrighted work and that the works are ‘substantially similar.’ " Oravec , 527 F.3d at 1223 (quoting Herzog v. Castle Rock Entm't , 193 F.3d 1241, 1248 (11th Cir. 1999) ). As to the second inquiry, "copyright protects only the author's original contributions...." Feist , 499 U.S. at 359, 111 S.Ct. 1282. "Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity." Id. at 345, 111 S.Ct. 1282.
III. DISCUSSION
For purposes of deciding Defendants’ motions, the Court limits its focus on the second element of a copyright infringement claim: copying of constituent elements of the work that are original. Plaintiff admits that he cannot establish copying with direct evidence. Thus, to prevail on his claim, Cortes must establish that Defendants had access to "Despasito," and that the competing works are substantially similar at the level of protected expression. Here, to resolve Defendants’ motions, the Court need only focus on the case dispositive issue of substantial similarity.
See DE 31 at 5 ("In these cases of Copyright Infringement, it is well known that direct evidence of proof of access rarely exists. However, I, Newton Canga, as a pro se litigant, can show circumstantial evidence."); and DE 45 at 8 ("Every court in this nation know[s] that direct proof of access rarely exists. However, I, Newton Canga, as a pro se litigant, can show circumstantial evidence.").
Although the issue of substantial similarity is often reserved for a trier of fact, courts, including the Eleventh Circuit, have held that it is appropriate to decide substantial similarity as a matter of law at the summary judgement stage, "where it is clear that the plaintiff cannot make out the elements of the claim" of a copyright infringement. Lil’ Joe Wein Music, Inc. v. Jackson , 245 F. App'x 873, 876 (11th Cir. 2007) (citation omitted); Beal v. Paramount Pictures Corp. , 20 F.3d 454, 459 (11th Cir. 1994). Specifically, the Eleventh Circuit has explained that "[t]he question of substantial similarity can be decided as a matter of law on a motion for summary judgment either where the similarity concerns only noncopyrightable elements of a plaintiff's work, or when no reasonable trier of fact could find the works substantially similar." Lil’ Joe Wein Music , 245 F. App'x at 877 (quoting Lassin v. Island Def Jam Music , 2005 WL 5632056 (S.D. Fla. Aug. 8, 2005) ). The Eleventh Circuit has approved of deciding infringement prior to trial, observing that it "signals an important development in the law of copyright, permitting courts to put ‘a swift end to meritless litigation’ and to avoid lengthy and costly trials." Id. at 876 (citing Hoehling v. Universal City Studios, Inc. 618 F.2d 972, 977 (2d Cir. 1980) ) (internal brackets omitted).
A. The Substantial Similarity Test
In the Eleventh Circuit, to establish substantial similarity, a plaintiff "must satisfy a two-pronged test: (1) an extrinsic, objective test, and (2) an intrinsic, subjective test." Lil’ Joe Wein Music , 245 F. App'x at 877 (citing Herzog , 193 F.3d at 1257 ). "Under the extrinsic test, a court will inquire into whether, as an objective matter, the works are substantially similar in protected expression." Id. For this test, "analytic dissection" is appropriate. Herzog , 193 F.3d 1241 at 1257.
First, "a court must filter out and disregard the non-protectable elements." Kouf v. Walt Disney Pictures & Television , 16 F.3d 1042, 1045 (9th Cir. 1994) ; Compulife Software Inc. , 959 F.3d at 1303 ("Filtration, again, refers to the process of separating the protectable elements of a copyrighted work from elements that, for one reason or another, aren't protected."). The defendant has the burden of proving that elements of a work are unprotectable. See Compulife Software Inc. , 959 F.3d at 1306. After filtering out similarities as to the non-protectable elements, "the burden shifts back to the plaintiff to prove substantial similarity between any remaining (i.e. , unfiltered) protectable material and the allegedly infringing work." Id. If the defendant demonstrates that the works are similar only as to "unprotectable material, such that no substantial similarities remain after filtration, the defendant is entitled to summary judgment." Id.
Simply put, for the extrinsic test, "the court will determine whether [the plaintiff] seeks to protect only uncopyrightable elements," and if so, the works are not substantially similar as a matter of law, and summary judgment is appropriate. Lil’ Joe Wein Music , 245 F. App'x at 877. "Under the intrinsic test, a court will determine whether, upon proper instruction, a reasonable jury would find that the works are substantially similar." Id.
B. Application
For the substantial similarity analysis, courts must compare the competing works side-by-side. See Beal , 20 F.3d at 456 ("When called upon to adjudicate a copyright dispute, a court must compare the works in question."). Having done so here, the Court finds that Defendants are entitled to summary judgment because the works are only similar as to unprotectable elements and share no commonality at the level of protectable expression. In applying the extrinsic test, the Court will engage in "analytic dissection" by "breaking the works into their constituent elements." Latele Television, C.A. v. Telemundo Commc'ns Grp., LLC , 2014 WL 7150626, at *7 (S.D. Fla. Dec. 15, 2014).
The Parties have separately submitted copies of the competing Spanish lyrics. (See DE 31-1 at 56-64; DE 37-3; DE 56 at 9-11.) Both Parties have also separately provided the certified, English translation of Plaintiff's lyrics. (See DE 37-3; DE 56 at 9-11.) Only Defendants have submitted a certified, English translation of Defendants’ lyrics. (See DE 37-3.) The Court will rely on these submissions for the substantial similarity analysis.
1. "Despacito" or "Despasito" As Title and Lyric
Upon examination, the most apparent similarity between the works is use of "Despacito," also spelled as "Despasito," as the song title and in the lyrics of the chorus. But this term, which translates to "slowly" in English, is too short and generic to meet the required threshold for creativity to qualify for copyright protection. See Guity v. Santos , 2019 WL 6619217, at *4 (S.D.N.Y. Dec. 5, 2019) (finding phrase "Eres Mia" as the shared title and song lyric was not copyrightable); McDonald v. West , 138 F. Supp. 3d 448, 456 (S.D.N.Y. 2015), aff'd , 669 F. App'x 59 (2d Cir. 2016) (finding phrase "Made in America" was "not copyrightable, either as a title, or as a lyric."); Edwards v. Raymond , 22 F. Supp. 3d 293, 298–99 (S.D.N.Y. 2014) ("the phrase ‘caught up,’ which is the title of both the Plaintiffs’ Song and the Challenged Song, is not eligible for copyright protection."). Defendants submitted U.S. Copyright Office records showing that there are 67 songs entitled "Despacito" that have been registered, with many registrations dated well before 2006, when Plaintiff's lyrics were composed. (DE 37-4.) Accordingly, they have demonstrated that "Despacito" enjoyed a "robust existence in the public domain long before [Plaintiff] employed it in his song's title and in the key lyrics." Acuff-Rose Music, Inc. v. Jostens, Inc. , 155 F.3d 140, 144 (2d Cir. 1998). Thus, Plaintiff's use of "Despacito," or "Despasito," in the title and lyrics is an unprotectable element of his work.
Plaintiff concedes that the title is an unprotectable element of song lyrics, stating "[f]irst, we all know that titles are not copyrightable, but it's no coincidence that we both have the same Title." (DE 45 at 2.)
And while Plaintiff's original arrangement of the word "Despacito" in his lyrics is protectable, Defendants did not copy any creative selection that could constitute protectable expression. The chorus in Plaintiff's song features "Despacito" twice, back to back, and only in the very beginning of the chorus. (See DE 31 at 56-64; DE 37-3.) (" Despacito, Despacito , ahora tu cuerpo, Relajalo") (emphasis added). By contrast, "Despacito" appears four times throughout Defendants’ chorus, each time followed by other phrases. See id. (" Despacito , Quiero respirar tu cuello Despacito , Deja que te diga cosas al oído, Para que te acuerdes si no estás conmigo Despacito Quiero desnudarte a besos Despacito ....") (emphasis added). For these reasons, this similarity cannot support a finding that the works are substantially similar at the level of protected expression.
"Slowly, slowly, now your body (‘Relax’)." (See DE 37-3; DE 56 at 9-11.)
"Slowly, I want to breathe in your neck slowly, Let me say things to you in your ear so you can remember if you're not with me, Slowly I want to get you naked with my kisses, Slowly." (See DE 37-3.)
2. Shared Common Words and Short Phrases
Second, both songs use commonplace Spanish words and short phrases, including those that translate to "with me," "ear," "you," "yeah," "until," "me," "mouth," "love," "heart," "scream," "body," and "dance." (DE 31 at 56-64; DE 37-3; DE 56 at 9-11.) However, these musically ubiquitous lyrics are not a copyrightable element of Plaintiff's work. Defendants have submitted the certified, English translation of the Spanish song "Bailando," by Enrique Iglesias, which also features many of the shared lyrics, evidencing their lack of originality. (DE 37-5.) This Court has previously explained that "[t]he overwhelming weight of authority recognizes ... [that] common or ordinary words are not copyrightable." James v. Brandon v. New Power Generation , No. 15-22738, 10, 2017 WL 1437560 (S.D.F.L. Apr. 3, 2017) ; Lane , 2015 WL 6395940, at *7 (finding the "musically ubiquitous words ‘I,’ ‘You,’ ‘Your,’ ‘Is,’ and ‘Baby’ " to be unprotectable); Guity , 2019 WL 6619217, at *5 (finding the lyrics "love," "mine," "night," and "baby" to be unprotectable). Moreover, these lyrics do not play a particularly unique or important role in Plaintiff's composition, appearing only a few times throughout, further supporting the conclusion that they are not copyrightable. See id. at *5 ("[t]he infrequent use of such a short generic phrase is insufficient to support a finding that the ... songs’ lyrics are substantially similar."); Pyatt v. Raymond , 2011 WL 2078531, at *8 (S.D.N.Y. May 19, 2011) ("unless the reappearing phrase is especially unique or qualitatively important, there is no basis for inferring copying.").
Putting aside the fact that these common words are featured in both songs, there is no similarity in how the lyrics are used in the works. For example, Plaintiff uses the terms "love" and "heart" to describe his relationships with multiple women around the world. (See DE 56 at 9-11; DE 37-3) ("[s]tarting from below South America, Ecuador, going up to Central America they love me from their heart , Pointing to the Caribbean where all my queens are.") (emphasis added). By contrast, these terms are used in Defendants’ song to express longing and lust for a single love interest. (See DE 37-3) ("[y]ou know your heart goes boom, boom with me," and "I want to, want to, want to see how much love fits in you.") (emphasis added).
Accordingly, this similarity also cannot support a finding that the works are substantially similar at the level of protected expression. See Lane v. Knowles-Carter , 2015 WL 6395940, at *7 (S.D.N.Y. Oct. 21, 2015) ("the two songs deploy the letters ‘X’ and ‘O’ differently...."); Puckett v. Hernandez , 2016 WL 7647555, at *5 (C.D. Cal. Dec. 21, 2016) ("while these two short lines appear together in ‘Grenade,’ they do not appear together in ‘Cry.’ ").
3. Shared Expressions
Relying on side-by-side diagrams of the lyrics, Plaintiff further argues that Defendants copied certain "expressions" in his chorus. (DE 45-1 at 4-5.) For instance, Cortes explains that his work contains phrases such as, "your problems (‘forget them’)," "Gently next to me," and "Candy in your ears," which he claims Defendants copied with the lines, "forget your last name," "Gently gently we are getting closer little by little," and "let me tell you things to the ear." (DE 31 at 57-64; DE 45-1 at 4-5.) This commonality also cannot support a finding that the works are substantially similar at the level of protected expression.
In his response to UMG and Fonsi's motion, Cortes provided diagrams comparing the translated lyrics, to demonstrate that similar expressions are featured in both choruses. (DE 45-1 at 4-5.) The diagrams are not based on certified English translations. Despite being given the opportunity to do so, Plaintiff did not supplement the record with diagrams containing certified translations. However, for the sole purpose of addressing this argument, the Court will assume the accuracy of the uncertified English translation in the diagrams. But see Marine Turbo Eng'g, Ltd. v. Turbocharger Servs. Worldwide, LLC , 2011 WL 13217498, at *2 (S.D. Fla. Nov. 15, 2011) (declining to consider translations that have not been certified). It should be noted that the certified translations largely mirror Cortes’ uncertified translation. (See DE 37-3; DE 56 at 9-11.)
For one, the lines Plaintiff cites to are "common expressions and clichés" that are not copyright protectable. Steele v. Turner Broad. Sys., Inc. , 646 F. Supp. 2d 185, 191 (D. Mass. 2009) ; Puckett , 2016 WL 7647555, at *5 (finding the lines "I would die for you baby," and "But you didn't do the same" could not sustain a finding of substantial similarity); Hobbs v. John , 2012 WL 5342321, at *6 (N.D. Ill. Oct. 29, 2012), aff'd , 722 F.3d 1089 (7th Cir. 2013) (finding the phrases "you'll never know," "to hold you," and "I need you" not copyright protectable) (citation omitted). Indeed, similar lines have appeared in the lyrics of other popular songs, evidencing their lack of requisite originality to qualify for copyright protection.
See , e.g. , Julie Garland, "Get Happy," (contains the lyrics "Forget your troubles"); Elvis Presley, "Gently," (contains the lyrics "Gently your eyes met mine" and "Gently your hand took mine"); The Beatles, "Do You Want to Know a Secret," (contains the lyrics "Let me whisper in your ear").
Second, Plaintiff's original selection and arrangement of these lines have not been copied. As evidenced by Plaintiff's own diagrams, the phrases appear in different parts of the respective choruses. (See DE 45-1 at 4-5.) While Plaintiff's line "your problems (‘forget them’)," appears in the beginning of his chorus, "forget your last name" appears in the very last line of Defendants’ chorus. Id. Similarly, while "candy in your ears" appears near the end of Plaintiff's chorus, "let me tell you things to the ear" is in the second line of Defendants’ chorus. Id.
4. Shared Theme
While the songs share a general theme of "female courtship through seductive dance," this focus is a non-copyrightable idea, and only the original expression of this theme is copyright protectable. (DE 37 at 3.) See Guity , 2019 WL 6619217, at *4 ("[t]he themes at issue in the Guity Song, love and desire, are the exact broad themes that lie beyond copyright's protection."); Puckett , 2016 WL 7647555, at *5 ("themes are not protectable as a matter of law ... Instead, only the expression of that idea is properly copyrightable."). The works share no overlap in their expression of this theme. Plaintiff's description of his amorous overtures is explicit and ribald, with lines such as, "[m]arking my territory, I'll leave them all a hickey in the neck," and "[m]akes women clap with their buttocks." (DE 56 at 9-11.) By contrast, Defendants’ song contains descriptions of affection that are suggestive and metaphorical: "I want to make your hair dance, I want to be your rhythm," and "that beauty is a puzzle, but to finish it I have the missing piece." (DE 37-3.)
The theme is also expressed through different styles of narration. Defendants’ lyrics are narrated from the perspective of the singer speaking to his love interest. This narration remains the same throughout the entire song, which employs first and second person pronouns exclusively. (See , e.g. , DE 37-3) (" I want to make your hair dance I want to be your rhythm....") (emphasis added). However, the narration in Plaintiff's song switches between him speaking to a love interest using first and second person pronouns (e.g. , "[t]ouch me as I like it, come down as I like...."), and speaking to the listener using third person pronouns (e.g. , "Hypnotizing them , controlling them , operating their channels with my Bemba kissing them."). (See DE 56 at 9-11) (emphasis added).
And as previously discussed, while Defendants’ song is based on the singer's pursuit of a single woman, Plaintiff recounts his "prodigious conquests of many women" around the world. (DE 37 at 19.) Because the works’ expression of a common theme is not at all similar, their focus on seduction cannot support a finding of substantial similarity.
In his response to UMG and Fonsi's motion, Plaintiff explains "in all my expression I speak of many women and at the same time I speak of a woman who is dancing with me, this can begin to be heard in the choir." (DE 45 at 6.)
5. Other Elements
The other similarities Plaintiff identifies are also incapable of copyright protection. The number of times a word is repeated within a work is not protectable. See Hobbs , 2012 WL 5342321, at *6 ("Although both songs repeat the women's name throughout the song, courts have recognized that in popular music, most songs are ‘relatively short and tend to build on or repeat a basic theme.’ ") (citation omitted). Nor is Plaintiff's use of the words "oido" (ear) and "conmigo" (with me) to create a rhyme a copyrightable element. See Steele , 646 F. Supp. 2d at 192 ("A common rhyme scheme or structure does not qualify as original expression protectable under federal copyright law."); Prunte v. Universal Music Grp., Inc. , 699 F. Supp. 2d 15, 29 (D.D.C. 2010), aff'd , 425 F. App'x 1 (D.C. Cir. 2011) ("A rhyme scheme using words ending in the commonplace ‘-ill’ sound" is not copyright protectable.). Finally, Cortes cannot claim protection for the musical genre of "Reggaeton," the word count or length of a work, or the absence of vulgar words in the lyrics. See Williams v. Gaye , 895 F.3d 1106, 1140 (9th Cir. 2018) (Dissenting, Nguyen, J.) (explaining that musical genre is an "unprotectable idea"); Peters v. West , 692 F.3d 629, 636 (7th Cir. 2012) ("no poet can claim copyright protection in the form of a sonnet or a limerick.").
After filtering out similarities as to non-protectable elements, a side-by-side comparison reveals no commonalities between the works as to any protectable elements. The verses in the works contain different lyrical content and employ different styles. Moreover, Plaintiff has submitted no expert reports or other probative evidence capable of raising a genuine issue of material fact as to substantial similarity. Accordingly, the Court finds that the works are not substantially similar as a matter of law and that Defendants are entitled to summary judgment.
IV. CONCLUSION
For the foregoing reasons, it is ORDERED AND ADJUDGED that:
1. Defendant Ramon L. Ayala's motion for summary judgment (DE 18); Erika Ender's motion for summary judgment (DE 25); and Luis Alfonso Rodriguez Lopez and UMG Recordings, Inc.’s motion for summary judgment (DE 37) are GRANTED . Final judgment will be entered in a separate order.
2. All hearings, trial settings, and deadlines are CANCELED . All pending motions are DENIED AS MOOT . The Clerk is instructed to CLOSE this case.
DONE AND ORDERED in chambers in Miami, Florida, this 6th day of August, 2020.