Case 6:22-cv-01792-PGB-RMN Document 39 Filed 04/13/23 Page 1 of 9 PageID 215
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`ORLANDO DIVISION
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`Plaintiff,
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`Case No: 6:22-cv-1792-PGB-RMN
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`GLOBAL MUSIC RIGHTS, LLC,
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`v.
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`SOUTHERN STONE
`COMMUNICATIONS, LLC and
`BLACK CROW MEDIA GROUP,
`LLC,
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`
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`Defendants.
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`/
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`ORDER
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`This cause comes before the Court on Defendants’ Motion to Dismiss (Doc.
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`28 (the “Motion”)) and Plaintiff’s response in opposition (Doc. 36). Upon
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`consideration, the Motion is due to be denied.
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`I.
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`BACKGROUND1
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`This case flows from radio stations playing copyrighted songs on the
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`airwaves for which they allegedly did not receive prior authorization. (Doc. 1).
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`Plaintiff Global Music Rights, LLC (“Plaintiff”) is a performance rights
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`organization which represents composers of musical compositions, holds the
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`exclusive licenses to perform those copyrighted works, and enforces those
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`1 This account of the facts comes from the Plaintiff’s Complaint. (Doc. 1). The Court accepts
`these well-pled factual allegations as true when considering motions to dismiss. See Williams
`v. Bd. of Regents, 477 F.3d 1282, 1291 (11th Cir. 2007).
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`Case 6:22-cv-01792-PGB-RMN Document 39 Filed 04/13/23 Page 2 of 9 PageID 216
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`copyrights if necessary. (Id. ¶¶ 4–5). Plaintiff currently represents a roster of over
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`100 artists and holds the rights to at least 182 songs relevant to this suit (the
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`“Compositions”). (Id. ¶¶ 5, 19). Each of the Compositions was registered with the
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`United States Copyright Office and issued a corresponding Certificate of
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`Registration. (Id. ¶¶ 20, 43). The owners of these copyrights granted to Plaintiff
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`the exclusive right to license the right to publicly perform these works, collect
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`applicable license fees for performances of those works, and enforce any associated
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`rights where necessary. (Id. ¶¶ 15, 21, 44).
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`Defendant Southern Stone Communications, LLC and Defendant Black
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`Crow Media Group, LLC (the “Defendants”) are media companies that
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`collectively own and/or operate radio stations, including WVYB-FM, WRTT-FM,
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`WAHR-FM, WHOG-FM, and WKRO-FM. (Id. ¶¶ 16–18). Plaintiff offered
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`Defendants multiple opportunities in writing to license the right to publicly
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`perform the Compositions on its airwaves starting in January 2017, but
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`Defendants did not respond to any these offers. (Id. ¶¶ 28–40, 46). Since January
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`2020, Defendants have nevertheless performed the Compositions by playing them
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`on the radio—without authorization—thousands of times.2 (Id. ¶¶ 19, 25, 44).
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`2 Defendants note that Plaintiff does not appear to limit its allegations to the applicable three-
`year statute of limitations. (Doc. 28, p. 12). In response, Plaintiff points out that while it
`included alleged events related to the alleged infringements that fall outside the applicable
`three-year statute of limitations under 17 U.S.C. § 507(b), the infringements subject to the suit
`have all allegedly occurred since January 2020. (Doc. 1, ¶ 19; Doc. 36, p. 9 n.7). The Court
`accepts this self-imposed limitation and interprets the Complaint in light of it.
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`2
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`Consequently, Plaintiff filed this one-count complaint to enforce the rights
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`associated with the Compositions. (Doc. 1). Defendants now move to dismiss the
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`Complaint (Doc. 28), and after Plaintiff’s response in opposition (Doc. 36), this
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`matter is ripe for review.
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`II. STANDARD OF REVIEW
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`To survive a Rule 12(b)(6) motion to dismiss, the complaint “must contain
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`sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
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`on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face when the
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`plaintiff “pleads factual content that allows the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged.” Id. Legal
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`conclusions and recitation of a claim’s elements are properly disregarded, and
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`courts are “not bound to accept as true a legal conclusion couched as a factual
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`allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Courts must also view the
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`complaint in the light most favorable to the plaintiff and must resolve any doubts
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`as to the sufficiency of the complaint in the plaintiff’s favor. Hunnings v. Texaco,
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`Inc., 29 F.3d 1480, 1484 (11th Cir. 1994) (per curiam).
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`In sum, courts must: reject conclusory allegations, bald legal assertions, and
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`formulaic recitations of the elements of a claim; accept well-pled factual allegations
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`as true; and view well-pled allegations in the light most favorable to the plaintiff.
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`Iqbal, 556 U.S. at 679.
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`3
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`III. DISCUSSION
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`Defendants argue that the Court should dismiss the Complaint either as a
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`shotgun pleading or for failure to state a claim. (Doc. 28, pp. 4–11). For the
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`following reasons, the Court disagrees.
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`A.
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`Shotgun Pleading
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`Federal Rule of Civil Procedure 8 requires a complaint to contain “a short
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`and plain statement of the claim showing that the pleader is entitled to relief,” and
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`Rule 10 requires “[a] party [to] state its claims or defenses in numbered
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`paragraphs, each limited as far as practicable to a single set of circumstances.” FED.
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`R. CIV. P. 8(a)(2), 10(b). “Complaints that violate either Rule 8(a)(2) or Rule 10(b),
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`or both, are often disparagingly referred to as ‘shotgun pleadings.’” Weiland v.
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`Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015).
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`There are four categories of shotgun pleadings: (1) “a complaint containing
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`multiple counts where each count adopts the allegations of all preceding counts”;
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`(2) a complaint that is “replete with conclusory, vague, and immaterial facts not
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`obviously connected to any particular cause of action”; (3) a complaint “that
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`commits the sin of not separating into a different count each cause of action or
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`claim for relief”; and (4) a complaint that asserts “multiple claims against multiple
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`defendants without specifying which of the defendants are responsible for which
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`acts or omissions, or which of the defendants the claim is brought against.” Id. at
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`1321–23. “The unifying characteristic of all types of shotgun pleadings is that they
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`fail to one degree or another, and in one way or another, to give the defendants
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`adequate notice of the claims against them and the grounds upon which each claim
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`rests.” Id. at 1323.
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`Plaintiff’s Complaint is not a shotgun pleading. First, while Defendants
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`argue it is full of “conclusory, vague, and immaterial facts,” they fail to specify
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`precisely with which allegations they take issue. (Doc. 28, pp. 10–11). Charitably
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`interpreted, perhaps they insinuate that Plaintiff’s allegations are too vague as they
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`encompass a broad stretch of time and a large catalog of copyrighted songs. (See
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`id.). Such a contention is without merit. See e.g., Erickson v. Hunter, 932 F. Supp.
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`1380, 1384 (M.D. Fla. 1996) (noting allegations of a “continuous mode of behavior”
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`did not necessarily require pleading specific instances of the same). Plaintiff’s
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`allegations of a continuous pattern of infringement are specific enough to put
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`Defendants on notice of the many infringements which they allegedly committed.
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`(Doc. 1, ¶¶ 19, 25, 44). Putting Defendants on proper notice did not require
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`enumerating every individual instance of alleged infringement within this
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`continuous pattern of infringement.
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`Second, Defendants argue that Plaintiff should have separated each
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`allegation regarding each individual copyright infringement by Composition into
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`a separate cause of action or claim for relief. (Doc. 28, p. 10–11). Defendants’
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`interpretation of this requirement is too cramped by far. This is not an instance
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`where Plaintiff has combined its copyright infringement claim with an altogether
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`different claim, say for example, breach of contract. Bickerstaff Clay Prods. Co. v.
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`Harris Cnty., 89 F.3d 1481, 1485 n.4 (11th Cir. 1996) (finding the complaint to be
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`Case 6:22-cv-01792-PGB-RMN Document 39 Filed 04/13/23 Page 6 of 9 PageID 220
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`a typical shotgun pleading because “some of the counts present[ed] more than one
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`discrete claim for relief”). Here, providing a list of the copyrighted Compositions
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`and the period of time over which the infringements allegedly occurred gives
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`Defendants sufficient detail to prepare their defenses moving forward in the
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`litigation. See Arbitron Inc. v. Renda Broad. Corp., No. 3:13-cv-716, 2014 WL
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`1268587, at *8 (M.D. Fla. Mar. 27, 2014) (“requiring [the plaintiff] to plead a
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`separate claim for each allegation relating to each of the fourteen identified
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`copyrights . . . would produce a muddled and unnecessarily redundant
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`complaint.”).
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`Third, Defendants assert that because Plaintiff brings a claim against two
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`Defendants, Plaintiff failed to properly specify which of the Defendants is
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`responsible for each alleged act or omission. (Doc. 28, pp. 10–11). This
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`interpretation again raises the bar beyond what is required. In Weiland, the Court
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`assembled various cases to illustrate when lumping multiple defendants together
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`in a pleading raises shotgun pleading concerns. 792 F.3d at 1321–23 n.14. On one
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`hand, instances where a complaint is “replete with allegations that ‘the defendants’
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`engaged in certain conduct, making no distinction among the fourteen defendants
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`charged, though geographic and temporal realities make plain that all of the
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`defendants could not have participated in every act complained of” are suspect.
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`Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001). On the other, “[t]he fact
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`that defendants are accused collectively does not render the complaint deficient”
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`because such a “complaint can be fairly read to aver that all defendants are
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`Case 6:22-cv-01792-PGB-RMN Document 39 Filed 04/13/23 Page 7 of 9 PageID 221
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`responsible for the alleged conduct.” Kyle K. v. Chapman, 208 F.3d 940, 944 (11th
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`Cir. 2000). Here, Plaintiff’s one-count complaint against two defendants can also
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`be fairly read to aver that the two defendants collectively own and/or operate the
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`radio stations which have allegedly infringed Plaintiff’s copyrights by playing the
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`Compositions on air thousands of times. (Doc. 1, ¶¶ 18–19). Consequently, the
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`Court turns to Defendants’ request to dismiss for failure to state a claim.
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`B. Direct Copyright Infringement
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`At this stage, Plaintiff must plead the following to make out a prima facie
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`case of direct copyright infringement under the Copyright Act: “(1) ownership of a
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`valid copyright, and (2) copying of constituent elements of the work that are
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`original.”3 Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1541 (11th Cir. 1996)
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`(quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)).4
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`3 The Copyright Act protects songwriters’ exclusive right to “perform . . . publicly” their
`copyrighted musical works. 17 U.S.C. § 106(4). Public performances include radio broadcasts.
`See id. § 101 (defining public performance to include “transmit[ting] or otherwise
`communicat[ing] a performance . . . of the work . . . to the public, by means of any device or
`process”). Anyone who publicly performs a copyrighted musical work without permission or
`a license from its owner commits copyright infringement. Id. § 501(a).
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` Defendants argue that Plaintiff must satisfy a more exacting standard when alleging the
`unauthorized public performance of copyrighted musical compositions, but every case which
`Defendants cite in support is a district court opinion that applied this standard at the summary
`judgment stage. See Broadcast Music, Inc. v. Bisla & Bisla, LLC, No. 8:11–cv–02273, 2012
`WL 5387890, at *1–2 (M.D. Fla. Nov. 2, 2012) (applying five-element standard to probe the
`record evidence submitted for a summary judgment motion).4
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`In contrast, the Eleventh Circuit, in a more recent opinion, did not find such an exacting
`standard necessary when deciding the merits of a motion to dismiss. See Smith v. Casey, 741
`F.3d 1236, 1241 (11th Cir. 2014) (requiring only the two ownership and copying elements while
`reversing a district court’s dismissal of a complaint for failure to state a direct copyright
`infringement claim regarding musical compositions). As such, the Court will not depart from
`the Eleventh Circuit’s approach.
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`Case 6:22-cv-01792-PGB-RMN Document 39 Filed 04/13/23 Page 8 of 9 PageID 222
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`First, there are two ways a plaintiff can plausibly allege ownership of a valid
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`copyright: 1) allege actual ownership, or 2) allege status as the exclusive licensee of
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`a valid copyright. 17 U.S.C. § 501(b); see Dish Network L.L.C. v. Fraifer, No. 8:16-
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`cv-2549, 2020 WL 1515938, at *9 (M.D. Fla. Jan. 31, 2020) (“Under the
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`[Copyright] Act, copyright owners and exclusive licensees may enforce a
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`copyright.”), report & recommendation adopted, 2020 WL 1512090 (M.D. Fla.
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`Mar. 30, 2020). To that end, Plaintiff plausibly alleges that it is the exclusive
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`licensee of the musical compositions in question.5 (Doc. 1, ¶¶ 15, 21, 30–39, 44).
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`Moreover, Plaintiff properly alleges the United States Copyright Office issued
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`Certificates of Copyright Registration for these compositions such that the
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`statutory formalities under the Copyright Act to sue are plausibly satisfied. 17
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`U.S.C. § 411(a) (“no civil action for infringement of the copyright in any United
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`States work shall be instituted until preregistration or registration of the copyright
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`claim has been made in accordance with this title.”); (Doc. 1, ¶¶ 20, 43). While
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`Plaintiff may need to provide further detail regarding copyright registration for the
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`subject Compositions as well as the assignment and grant of their associated rights
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`moving forward, it has done enough to plausibly establish ownership at this
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`procedural stage.
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`5 Defendants spill much ink discussing the requirements of a valid copyright assignment. (Doc.
`28, pp. 6–9). However, the Court finds that Plaintiff has alleged enough regarding its status
`as an exclusive licensee to satisfy any concerns Defendants raise in this argument by stating
`that the original copyright holders of the compositions in question “have granted [Plaintiff]
`the right to license to others the [Plaintiff] compositions. [Plaintiff] has the right to license
`their [its] works, collect applicable license fees for performances of those works, remit
`payments, and enforce the intellectual property rights in court if necessary.” (Doc. 1, ¶¶ 15,
`19–21).
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`Second, Plaintiff plausibly alleges the Defendants copied the constituent
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`elements of the copyrighted works in question by stating that Defendants’ radio
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`stations performed these compositions knowingly without authorization on the air
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`thousands of times since January 2020. Broad. Music, Inc. v. Star Amusements,
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`Inc., 44 F.3d 485, 486 (7th Cir. 1995) (“An act of copyright infringement occurred
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`every time an unregistered jukebox played a copyrighted song in public.”); (Doc. 1,
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`¶¶ 19, 21, 24, 29–32, 40, 45). With both elements of the underlying claim plausibly
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`alleged, Plaintiff’s allegations survive the Motion.
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`IV. CONCLUSION
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`Accordingly, it is ORDERED AND ADJUDGED that Defendant’s Motion
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`to Dismiss (Doc. 28) is DENIED.
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`DONE AND ORDERED in Orlando, Florida on April 13, 2023.
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`Copies furnished to:
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`Counsel of Record
`Unrepresented Parties
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`9
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