Opinion
22-CV-04220 (PAE)(SN)
01-03-2023
JAMES GREENE, Plaintiff, v. MEGAN PETE, et al., Defendants.
REPORT AND RECOMMENDATION
Sarah Netburn, United States Magistrate Judge
TO THE HONORABLE PAUL A. ENGELMAYER:
James Greene, proceeding pro se, sues (1) Megan Pete, (2) Anthony White, (3) Beyonce Knowles-Carter, (4) 1501 Certified Entertainment, LLC (“1501”), (5) 300 Entertainment LLC (“300”), and (6) Warner Music Group Corp. (“WMG”).
Plaintiff, a music producer, alleges that Defendants infringed on his copyright in an instrumental musical composition titled “Its About To Be On.” Specifically, Plaintiff alleges that the song “Savage,”features a reproduction of or is otherwise based on Plaintiff's composition. Plaintiff's complaint alleges violations of 12 provisions of copyright law under Title 17, as well as “Public Policy, Public Trust, The United States Constitution and Bill of Rights.” ECF No. 1 (“Compl.”) at 7-8. The Court has liberally construed Plaintiff's Complaint as asserting causes of action under 17 U.S.C. §§ 501 and 602.
As performed by Pete (who performs under the name Megan Thee Stallion), featuring Knowles-Carter, produced by White, and released by 1501 and 300 (a subsidiary of WMG).
Defendants Pete, White, 300, and 1501 move to dismiss for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5). All Defendants move to dismiss for failure to state a claim under Rule 12(b)(6). I recommend that the Court grant Defendants' motions to dismiss in their entirety.
BACKGROUND
“We [] provide a brief recitation of the most pertinent factual allegations, which are presumed to be true for purposes of considering a motion to dismiss for failure to state a claim.” Fin. Guar. Ins. Co. v. Putnam Advisory Co., LLC, 783 F.3d 395, 398 (2d Cir. 2015).
Sometime around the year 2000, Plaintiff created a sound recording titled “Its About To Be On.” Plaintiff obtained a sound recording, or “SR,” copyright registration for that recording as part of an album of instrumental music on April 16, 2015. See Complaint at 18-19. On March 6, 2020, the song Savage was released by Defendants 1501 and 300. Plaintiff alleges that Savage “sounds clearly like a recreation or a reproduce [sic] version of Plaintiff's sound recording.” Complaint at 9. On April 22, 2022, Plaintiff mailed copyright infringement notices to the Defendants, and on May 23, 2022, he commenced this action.
At some point thereafter, Plaintiff obtained a performing arts, or “PA,” copyright registration for the same album of recordings containing Its About To Be On. See ECF No. 35 at 21-23. That registration bears an effective date of August 29, 2022.
DISCUSSION
I. Dismissal under Rule 12(b)(5)
“[B]ecause Plaintiff is proceeding pro se, the Court must construe his pleadings liberally ....However, [this] does not excuse a pro se party from compliance with relevant rules of procedural and substantive law.” Aponte v. Fischer, No. 14-cv-3989 (KMK), 2018 WL 1136614, at *4 (S.D.N.Y. Feb. 28, 2018).
“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.” Dynegy Midstream Servs., LP v. Trammochem, 451 F.3d 89, 94 (2d Cir. 2006). “The Copyright Act does not provide for nationwide service of process. Therefore, this Court looks to New York law to determine whether it has personal jurisdiction over [defendants].” Pickett v. Migos Touring, Inc., 420 F.Supp.3d 197, 203 (S.D.N.Y. 2019). “[I]n considering a motion to dismiss pursuant to 12(b)(5) for insufficiency of process, a Court must look to matters outside the complaint to determine whether it has jurisdiction.” Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F.Supp.2d 382, 387 (S.D.N.Y. 2002).
“A district court need not dismiss an action due to incomplete or improper service if ‘it appears that proper service may still be obtained.'” Urbont v. Sony Music Ent., No. 11-cv-4516 (NRB), 2012 WL 1592519, at *3 (S.D.N.Y. May 4, 2012) (quoting Jaiyeola v. Carrier Corp., 73 Fed.Appx. 492, 494 (2d Cir. 2003)).
Plaintiff has failed to properly serve Defendants Pete, Knowles-Carter, White, 1501, and 300. This is true despite Plaintiff's statement that the parties have “notice” of the lawsuit.
The proof of service for Pete indicates that Plaintiff served an individual named “Heather” at Roc Nation Management. ECF No. 13 at 3. But neither Heather nor Roc Nation Management are authorized to accept service on Pete's behalf. See ECF No. 21. The proof of service for White indicates that Plaintiff served Milk and Honey Management by certified mail. ECF No. 15 at 3. No one there is authorized to accept service on White's behalf, ECF No. 22, and in any event New York law does not permit service on an individual by certified mail. See N.Y. CPLR § 308. The proofs of service for 1501 (an LLC) and 300 (a corporation) indicate that they were served by certified mail. ECF Nos. 16 at 3, 17 at 3. New York Law does not permit service on either form of business entity by certified mail. See N.Y. CPLR §§ 311, 311-a. But cf, § 312-a (permitting service by first class mail but deeming such service complete only once a signed acknowledgement of receipt has been returned to the sender).
Finally, Plaintiff has been unable to serve Knowles-Carter within the time permitted by Federal Rule of Civil Procedure 4(m). See ECF No. 18. Plaintiff has not requested an extension of time to serve her, and the Court does not discern from Plaintiff's submissions a basis to find good cause for the delay.
Because proper service may still be obtained, and because Defendant WMG has not challenged the sufficiency of its service, I address Defendants' arguments for dismissal under Rule 12(b)(6).
II. Dismissal under Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss, a complaint “must allege sufficient facts . . . to state a plausible claim for relief.” Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In reviewing such a motion, courts “accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007).
The “submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (cleaned up); see also Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). The Court must, however, examine a pro se plaintiff's complaint “for factual allegations sufficient to meet the plausibility requirement.” Hill, 657 F.3d at 122; see Twombly, 550 U.S. at 570 (a complaint must allege “enough facts to state a claim for relief that is plausible on its face”). Courts “are obligated to draw the most favorable inferences that [a pro se] complaint supports,” but “cannot invent factual allegations that [the plaintiff] has not pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). “[The] leniency accorded pro se plaintiffs when attempting to understand the claims raised in often inartfully worded complaints does not create a predisposition toward such plaintiffs in the substantive determination of whether their claims are frivolous.” Anderson v. Coughlin, 700 F.2d 37, 43-44 (2d Cir. 1983). The Court will not assume the truth of legal conclusions or conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 67879 (2009).
“[N]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title ....” 17 U.S.C. § 411(a). “[A]lthough an owner's rights exist apart from registration, see § 408(a), registration is akin to an administrative exhaustion requirement that the owner must satisfy before suing to enforce ownership rights.” Fourth Est. Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S.Ct. 881, 887 (2019). “As courts in this district have held, a copyright infringement claim will be dismissed where the allegedly infringed work . . . was not registered at the time the original complaint was filed.” Pickett, 420 F.Supp.3d at 205 (gathering cases).
“A copyright in a musical composition is distinct from a copyright in a particular recording thereof.” TufAmerica, Inc. v. WB Music Corp., 67 F.Supp.3d 590, 591 (S.D.N.Y. 2014). “Copyright protection extends to two distinct aspects of music: (1) the musical composition, which is itself usually composed of two distinct aspects-music and lyrics; and (2) the physical embodiment of a particular performance of the musical composition, usually in the form of a master recording.” Ulloa v. Universal Music & Video Distribution Corp., 303 F.Supp.2d 409, 412 (S.D.N.Y. 2004) (citation omitted); see also 6 Nimmer on Copyright § 30.03 (2022) (“Copyright ownership of the physical embodiment of the performance of a musical composition (e.g. a master recording) is distinct from the ownership of the copyright in the musical composition itself ....”).
“The United States Copyright Office has issued circulars which detail the differences between copyrights for sound recordings and musical compositions. Copyrights for sound recordings are registered on Copyright Office form SR, while musical compositions are registered on Copyright Office form PA.” Very Music Inc. v. Kid Glove Prods., Inc., No. EDCV 12-4891 (JGB), 2016 WL 6674991, at *4 (C.D. Cal. Apr. 28, 2016) (internal citations omitted); see also U.S. Copyright Office Circulars 50, 56, 56A.
It is undisputed that at the time Plaintiff filed his complaint, he possessed only SR registration for Its About To Be On. See Compl. at 18-19. As revealed in Plaintiff's brief in opposition, he acquired PA registration at some point after filing. See ECF No. 35 at 4-5, 21-23. Plaintiff's surreply implicitly concedes this point. ECF No. 40 at 3. Because registration is a prerequisite to bringing an infringement action, in this suit Plaintiff may assert only claims for infringement of his sound recording. In other words, Plaintiff is limited to claiming that Defendants sampled or otherwise directly copied his recording.
Captioned “Plaintiff's Reply to Defendants [sic] Support of Motion to Dismiss”
Plaintiff, however, has not claimed that Defendants copied his recording. He concedes that Savage uses different chords, has a different tempo, and uses a different “siren” than Its About To Be On. Compl. at 3. Plaintiff has instead brought a suit for infringement of the underlying musical composition. See id. at 3-4 (“[B]oth compositions share substantial similarities . . . and share the same expression of idea .... defendants clearly recreated and reproduced the copyrighted music ....” (internal quotations marks and citations omitted)).
Because Plaintiff failed to satisfy the statutory prerequisite of registration, his complaint must be dismissed. See Pickett, 420 F.Supp.3d at 205 (ordering dismissal of a complaint containing similar allegations by a plaintiff who held only SR registration at the time of filing).
LEAVE TO AMEND
Rule 15(a)(2) requires that leave to amend be freely given when justice so requires. Fed.R.Civ.P. 15(a)(2). “However, in determining whether leave to amend should be granted, the district court has discretion to consider, inter alia, the apparent futility of amendment.” Grace v. Rosenstock, 228 F.3d 40, 53 (2d Cir. 2000) (internal citations and quotation marks omitted); Cancel v. New York City Hum. Res. Admin./Dep't of Soc. Servs., 527 Fed.Appx. 42, 44 (2d Cir. 2013) (“While district courts should generally not dismiss pro se claims without affording leave to amend, it need not do so when amendment would be futile.”).
Because copyright registration is a statutory prerequisite to the filing of an infringement action, no amendment can cure the deficiency in Plaintiff's complaint. Therefore, leave to amend should not be granted. Because the deficiency is due to the timing of registration, itself akin to an administrative exhaustion requirement, dismissal should be without prejudice. See Malibu Media, LLC v. Doe, No. 18-cv-10956 (JMF), 2019 WL 1454317, at *4 (S.D.N.Y. Apr. 2, 2019).
CONCLUSION
Because Plaintiff acquired “PA” registration after the filing of his complaint, he is statutorily barred from bringing the kind of claims he has asserted in this action and has therefore failed to state a claim upon which relief may be granted. Accordingly, I recommend that the Court grant Defendants' motions, and dismiss this action without prejudice.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Engelmayer at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Engelmayer. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).