Estate of Barr v. Carter, CIVIL ACTION CASE NO. 17–1057
| Decision Date | 25 July 2017 |
| Docket Number | CIVIL ACTION CASE NO. 17–1057 |
| Parties | The ESTATE OF Anthony BARRÉ and his Sole Heir, Angel Barré v. Beyoncé Knowles CARTER, et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Roy J. Rodney, Jr., John Karl Etter, Rodney & Etter, LLC, New Orleans, LA, for the Estate of Anthony Barré and His Sole Heir, Angel Barré.
Mary Ellen Roy, Dan Brian Zimmerman, Phelps Dunbar, LLP, New Orleans, LA, Alonzo Bernard Wickers, IV, Nicolas A. Jampol, Cydney Swofford Freeman, Davis, Wright, & Tremaine, LLP, Los Angeles, CA, Amanda M. Collura–Day, Bradley C. Myers, Katie Deranger Bell, Kean Miller, Baton Rouge, LA, for Beyoncé Knowles Carter, et al.
SECTION: "G" (5)
In this litigation, the Estate of Anthony Barré and Angel Barré (collectively, "Plaintiffs"), allege that the writers, performers, producers, record labels, distributors, and publishers who produced the song "Formation," the album "Lemonade," and the "Formation World Tour" used the actual voice and copyrighted works of Anthony Barré without authorization or compensation.1 Pending before the Court is Defendants Beyoncé Knowles Carter ("Carter"), Parkwood Entertainment, LLC, Sony Music Entertainment, Michael L. Williams III, Khalif Brown, Asheton Hogan, Eardrummers Entertainment, LLC, Eardrummers Music Publishing, LLC, Oakland 13 Music, Warner–Tamerlane Corporation, Warner–Tamerlane Publishing Corp., Pretty Bird Pictures, Inc., Melina Matsoukas, and Aspiro AB's (collectively, "Defendants") "Motion to Dismiss for Failure to State a Claim."2 Having considered the motion, the memoranda in support and opposition, and the applicable law, the Court will grant Defendants' motion to the extent that it seeks dismissal of Plaintiffs' unjust enrichment claim, as there are other remedies available at law to Plaintiffs such that Louisiana law precludes an unjust enrichment claim here, and deny Defendants' motion as to the extent that it seeks dismissal of Plaintiffs' copyright infringement claims on fair use grounds, Plaintiffs' false endorsement claim under the Lanham Act, and Plaintiffs' LUTPA claim.
In this litigation, Plaintiffs allege that they own a protectable copyright interest in two YouTube videos created by Anthony Barré, also known as "Messy Mya:" (1) "Booking the Hoes from New Wildings;" and (2) "A 27 Piece Huh?"3 According to Plaintiffs, Anthony Barré was a well-known performance comedian and music artist in New Orleans who published more than a hundred videos of his performances, receiving over two million views on YouTube.4 Plaintiffs further allege that Anthony Barré produced or was featured in numerous songs with other famous local artists, such as Freddie Ross ("Big Freedia") and Magnolia Shorty.5 Plaintiffs argue that Anthony Barré's voice was a unique instrument and inextricably linked to his performance art.6
Plaintiffs aver that Anthony Barré created "Booking the Hoes from New Wildings" in New Orleans on August 19, 2010, and published the work on YouTube the same day.7 Plaintiffs point out that the video includes Anthony Barré saying, "What happened at the New Orleans," which Plaintiffs allege was misappropriated and infringed by Defendants.8 Plaintiffs also state that Anthony Barré created "A 27 Piece Huh?" in New Orleans on September 3, 2010, and published that work the same day.9 According to Plaintiffs, that video features Anthony Barré saying, and "Bitch I'm back by popular demand," which Plaintiffs allege was misappropriated and infringed by Defendants as well.10
Plaintiffs aver that Anthony Barré was murdered on November 10, 2010.11 Plaintiffs contend that Angel Barré, Anthony Barré's sister and sole heir, was appointed as the Independent Administrator of the Estate of Anthony Barré.12 Plaintiffs assert that on April 25, 2016, Plaintiffs applied for and received copyright registrations for both YouTube videos as "works of performance art."13
Plaintiffs assert that Defendants released the single song "Formation" on February 6, 2016, in which the voice of Anthony Barré is featured saying three phrases from Anthony Barré's works, i.e. "What happened at the New Orleans," "Bitch I'm back, by popular demand," and 14 Plaintiffs further state that "Formation" was included on the album "Lemonade," which was released on April 23, 2016.15 Plaintiffs also argue that Anthony Barré's voice, performance, and words were used and exploited by Defendants during the "Formation World Tour."16 For example, Plaintiffs allege that Anthony Barré's voice is heard saying, "Oh yeah baby, I like that" during the introductory performance of "Formation," and that Defendants utilized other performers, such as Big Freedia, to imitate Anthony Barré's voice and cadence in saying, "Bitch I'm Back by Popular Demand" before Carter appeared onstage.17
Plaintiffs point out that "Formation" was initially released exclusively via the "Tidal" music distribution service, which allegedly resulted in Defendants receiving more than a million new subscribers paying $12.99 per month.18 Plaintiffs also allege that Defendants sold more than 543,000 copies of "Formation" in the United States, and that some or all of those sales included Plaintiffs' intellectual property.19 Moreover, Plaintiffs contend that Defendants' "Formation World Tour," during which the infringing works were allegedly performed, resulted in sales of more than two million tickets and revenues of more than $250 million.20 Additionally, Plaintiffs argue that Anthony Barré's voice, words, and performance from "A 27 Piece Huh?" were used and exploited during the "Formation World Tour" to provide a false and unauthorized endorsement of Carter and the "Formation World Tour."21
Plaintiffs argue that Anthony Barré's voice set the tone, mood, setting, and location for "Formation."22 However, Plaintiffs aver that Defendants failed to secure any license or offer compensation to copy and exploit Anthony Barré's two works.23 Plaintiffs further contend that Anthony Barré's voice, words, and performance were used and exploited by Defendants to provide a false and unauthorized endorsement of "Formation" and the "Formation World Tour" that created consumer confusion as to Anthony Barré's and Plaintiffs' involvement with Defendants' works.24 According to Plaintiffs, Defendants are liable for $20 million in damages for copyright infringement under the Copyright Act, false endorsements under the Lanham Act, violations of the Louisiana Unfair Trade Practices Act ("LUTPA"), and unjust enrichment under Louisiana law.25
Plaintiffs filed a complaint in this Court on February 6, 2017.26 On February 7, 2017, Plaintiffs filed an amended complaint.27 On March 10, 2017, and March 31, 2017, the Court granted Defendants' motions for extensions of time to answer Plaintiffs' complaint.28 On April 14, 2017, Defendants filed the instant motion to dismiss.29 On April 28, 2017, the Court granted Plaintiffs' motion to continue the submission date on the instant motion, and set the motion for submission on June 7, 2017.30 On May 19, 2017, Plaintiffs filed an opposition.31 On June 5, 2017, with leave of Court, Defendants filed a reply.32 On June 12, 2017, with leave of Court, Plaintiffs filed a sur-reply.33 On June 20, 2017, Defendants filed a "Notice of Supplemental Authority in Support of Motion to Dismiss."34 On June 21, 2017, Plaintiffs filed a response to Defendants' notice of supplemental authority.35
On May 30, 2017, the Court granted Plaintiffs' request for oral argument on Defendants' instant motion to dismiss and Defendants' motion to strike, and set the motions for oral argument on June 7, 2017, at 10:00 a.m.36 On June 6, 2017, Defendants filed a motion to continue oral argument to June 21, 2017.37 However, because the Court determined it had sufficient information to decide the motions without oral argument, and because the parties' proposed date of June 21, 2017, conflicted with a jury trial that was expected to move forward, the Court cancelled oral argument in lieu of continuing it.38
In their motion to dismiss, Defendants concede that the "Formation" music video and the live performances during the "Formation World Tour" include approximately ten seconds of audio from two of Anthony Barré's YouTube videos.39 In particular, Defendants aver that the music video uses four seconds of audio from Anthony Barré's five minute and fourteen second YouTube video titled "Booking the Hoes from New Wildings."40 Defendants also state that the music video uses approximately six seconds of audio of Anthony Barré from the one minute and fifty-three second YouTube video titled "A 27 Piece Huh?"41
However, Defendants argue that Anthony Barré's YouTube videos were not used in the sound recording and composition of the single "Formation" or during the Super Bowl Half–Time show.42 Therefore, Defendants argue that all Defendants who were solely involved in producing the sound recording and composition of "Formation" or the Super Bowl Half–Time show should be dismissed with prejudice.43 Defendants point out that the Court may consider the source material itself on this motion to dismiss, as all of the works were referred to and incorporated by reference into Plaintiffs' complaint.44 Defendants contend that courts "routinely consider" such works at the pleading stage in copyright and trademark actions.45 Defendants further inform the Court that, while beyond the scope of a motion to dismiss, Defendant Pretty Bird also received a license from Anthony Barré's family to use his works.46
Defendants argue...
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