Peters v. Kanye West

• Decision Date: 03 March 2011
• Docket Number: Case No. 10 C 3951.
• Citation: 776 F.Supp.2d 742,97 U.S.P.Q.2d 2019
• Parties: Vincent PETERS, professionally known as Vince P., Plaintiff,v.Kanye WEST, Roc–A–Fella Records, LLC, and UMG Recordings, Inc., Defendants.
• Court: U.S. District Court — Northern District of Illinois

776 F.Supp.2d 742

97 U.S.P.Q.2d 2019

Vincent PETERS, professionally known as Vince P., Plaintiff,

v.Kanye WEST, Roc–A–Fella Records, LLC, and UMG Recordings, Inc., Defendants.

Case No. 10 C 3951.

United States District Court, N.D. Illinois, Eastern Division.

March 3, 2011.

Marsha Kathryn Hoover, William T. McGrath, Davis, Mannix & McGrath, Chicago, IL, for Plaintiff.Ilene S. Farkas, Eric Matthew Fishman, Pryor Cashman LLP, New York, NY, Carrie A. Hall, Ronald Hanley Balson, Michael Best & Friedrich LLP, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

VIRGINIA M. KENDALL, District Judge.

Plaintiff Vincent Peters (“Peters”) filed a copyright infringement suit against Kanye West, Roc–A–Fella Records, LLC, and UMG Recordings, Inc. (together “West”). Peters alleged that West copied portions of his song “Stronger,” infringing his copyright. West moves to dismiss Peters's claim pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons stated below, the Court grants West's motion.

STATEMENT OF FACTS

The following facts are taken from Peters's Complaint and are assumed to be true for purposes of this Motion to Dismiss. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir.1995).

Peters is a songwriter and rapper, and wrote and recorded the song “Stronger” in 2006 (“Peters's Song”). (Compl. ¶¶ 9, 13.) He also posted this song on his MySpace website, where it was publicly accessible from late 2006 to early 2007. (Compl. ¶ 36.)

After a music production company told Peters that it would produce his rap album if he found an executive producer, Peters approached John Monopoly (“Monopoly”) to be his executive producer. (Compl. ¶ 14.) Monopoly is well-known in the music industry as Kanye West's close friend and business manager, and is an executive at Kanye West's own record label. (Compl. ¶¶ 14, 15.) Beginning in August 2006, Peters contacted Monopoly several times and sent him several of his songs, including “Stronger.” (Compl. ¶ 16.) Monopoly eventually arranged a meeting with Peters on November 12, 2006, where they listened to several of Peters's songs, including “Stronger.” (Compl. ¶¶ 17, 19.) After the meeting, Monopoly told Peters that he would be his executive producer, but the album production deal never materialized. (Compl. ¶¶ 23, 24.)

On July 31, 2007, Kanye West released a song called “Stronger” (“West's Song”). (Compl. ¶ 25.) West's Song became the number one single on various song charts both in the United States and abroad, received numerous awards, and sold over three million copies by December 2008. (Compl. ¶ 26.) It continues to be publicly performed in numerous locations both in the United States and abroad. (Compl. ¶ 27.)

Peters does not allege infringement based on the music of West's Song; rather he claims that West's Song infringes because of similarities in the lyrics. First, both songs have an identical title, “Stronger.” (Compl. ¶ 34.) Second, both lyrics include the name of English model Kate Moss. (Compl. ¶ 32.) Third, the refrains, or “hooks,” of both songs are similar.

The hook in Peters's Song is:

What don't kill me make me stronger

The more I blow up the more you wronger

You coped my CD you can feel my hunger

The wait is over couldn't wait no longer

The hook in West's Song is:

N–N–N–now th-th-that don't kill me

Can only make me stronger

I need you to hurry up now

Cause I can't wait much longer

I know I got to be right now

Cause I can't get much wronger

Man I've been waitin' all night now

That's how long I've been on ya

(R. 18, Mot. to Dismiss Exb. C.) Both hooks reference the maxim “that which does not kill me makes me stronger.” (Compl. ¶ 30.) Moreover, the hook in West's Song includes the line “can't wait much longer,” while the hook in Peters's Song includes the line “couldn't wait no longer.” (Compl. ¶ 31.) Finally, both hooks use the word “wronger.” (Compl. ¶ 33.)

STANDARD OF REVIEW

To state a claim upon which relief can be granted, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a motion to dismiss, a complaint must be “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir.2010). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. Determining whether a complaint states a plausible claim for relief will require “the reviewing court to draw on its judicial experience and common sense.” Id. at 1950.

When documents are attached to a motion to dismiss, “the motion shall be treated as one for summary judgment under Rule 56.” Fed R. Civ. P. 12(b). However, “[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [his] claim.” Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.1993). Thus, the Court may consider these attached documents in deciding a motion to dismiss without converting the motion to one for summary judgment. Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir.2002). Here, West attaches both sets of song lyrics to his Motion to Dismiss. (Def.'s Mot. Dismiss Ex. C.) Because the lyrics are referred to in Peters's Complaint and are central to his copyright infringement claim, this Court will consider them in deciding this motion to dismiss.

DISCUSSION

Peters alleges that West infringed on the copyright of Peters's Song. “Anyone who violates any of the exclusive rights of the copyright owner ... is an infringer of the copyright or right of the author....” 17 U.S.C. § 501 (2006). To establish copyright infringement, the plaintiff must plausibly plead two elements: (1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). The Court addresses each element in turn.

I. Ownership of a Valid Copyright

The Court turns first to whether Peters owns a valid copyright to his song. “[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). This precondition to a copyright infringement suit is not jurisdictional, and therefore does not deprive federal courts of subject-matter jurisdiction to adjudicate copyright infringement claims involving unregistered works. See Reed Elsevier, Inc. v. Muchnick, –––U.S. ––––, 130 S.Ct. 1237, 1242, 176 L.Ed.2d 17 (2010). Instead, “[i]n any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” 17 U.S.C. § 410(c); see also Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 507 (7th Cir.1994). The effective date of Peters's copyright registration certificate (Compl. Exb. 1) is March 28, 2010—within five years of the first publication of Peters's Song in 2006—and is thus presumptively valid. Although this presumption can be rebutted, West did not do so. Therefore, the Court concludes that Peters plausibly pled ownership of a valid copyright to Peters's Song.

II. Copying of Constituent Elements

Next, the Court determines whether West has copied the protected work. Copying may be plausibly pled with direct factual allegations, but that is “often hard to come by.” JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 915 (7th Cir.2007). Peters's Complaint alleges no direct evidence of copying. Copying, however, may be inferred where the defendant had access to the copyrighted work and the accused work is substantially similar to the copyrighted work. See Susan Wakeen Doll Co., Inc. v. Ashton–Drake Galleries, 272 F.3d 441 (7th Cir.2001) (citation omitted).

A. Access to the Copyrighted Work

Peters's Complaint must plausibly plead that West had access to the copyrighted work. A plaintiff may do so by plausibly pleading that the two works are so strikingly similar that the possibility of independent creation is precluded. See Selle v. Gibb, 741 F.2d 896, 901 (7th Cir.1984). Peters's Complaint does not plead any facts alleging such a striking similarity between the two songs.

Peters, however, may also plausibly plead access to the copyrighted work with facts alleging that the defendant had the opportunity to view the protected item. See Wildlife Express, 18 F.3d at 508 n. 5. A defendant has the opportunity to view the protected item when the work was sent directly to “a close associate of the defendant,” Selle, 741 F.2d at 901, or when the plaintiff's work has been widely disseminated to the public. See id.; see, e.g., Ty, Inc. v. GMA Accessories, Inc., 959 F.Supp. 936, 940 (N.D.Ill.1997) (“Broad public display of a product may give rise to an inference of access.”).

Here, Peters's Complaint alleges that by November 2006, he provided a copy of Peters's Song to Monopoly, who was Kanye West's “close friend, advisor and business associate.” (Compl. ¶ 21.) Moreover, Peters alleges that he and Monopoly listened to Peters's Song at their November 12, 2006 meeting. Peters also claims that he widely disseminated Peters's Song by posting it on his publicly accessible MySpace page in late 2006 and early 2007. These allegations plausibly allege that West had multiple opportunities to listen to Peters's Song prior to the release of West's Song on July 31, 2007. Therefore, Peters adequately pleads access to the...