Case 0:09-cv-61144-MGC Document 33 Entered on FLSD Docket 09/01/2010 Page 1 of 11
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`Case No.: 09-61144-Civ-COOKE/BANDSTRA
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`JASON JAGGON,
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`Plaintiff
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`vs.
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`REBEL ROCK ENTERTAINMENT, INC., et al.,
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`Defendants.
`_______________________________________/
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`ORDER GRANTING IN PART AND DENYING IN PART
`DEFENDANTS’ MOTION TO DISMISS
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`THIS CASE is before me on the Defendants’ Joint Motion to Dismiss Counts II through
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`VIII of the Complaint [ECF No. 6]. I have reviewed the arguments, the complaint, and the
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`relevant legal authorities. As explained in this Order, the motion to dismiss is granted in part and
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`denied in part.
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`I. BACKGROUND1
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`This is a copyright infringement case, brought along with certain pendent state law
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`claims. The Plaintiff, Jason Jaggon, is a hip-hop musician who created an original musical
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`composition entitled “Just C U.” Defendants, Rebel Rock Entertainment and James Scheffer, are
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`music producers. Mr. Jaggon alleges that Rebel Rock and Mr. Scheffer received a copy of his
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`song, “Just C U,” through Mr. Jaggon’s agent. According to the Complaint Rebel Rock and Mr.
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`Scheffer copied and incorporated substantial and original portions of “Just C U” while producing
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`1 These facts are taken from the Complaint [ECF No. 1]. See Beck v. Deloitte & Touche, 144
`F.3d 732, 735 (11th Cir. 1998) (“In evaluating the sufficiency of a complaint, a court ‘must
`accept the well pleaded facts as true and resolve them in the light most favorable to the
`plaintiff.’”) (quoting St. Joseph’s Hosp., Inc. v. Hosp. Corp. of Am., 795 F.2d 948, 954 (11th
`Cir. 1986)).
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`Case 0:09-cv-61144-MGC Document 33 Entered on FLSD Docket 09/01/2010 Page 2 of 11
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`a musical composition and sound recording of another song, “I Run.” Mr. Jaggon alleges that
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`Rebel Rock and Mr. Scheffer then conveyed the song “I Run,” which contained Mr. Jaggon’s
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`composition from “Just C U,” to Defendants, E-1 Entertainment and Koch Entertainment, who
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`distributed the song.
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`Mr. Jaggon filed this suit for copyright infringement (count I), as well as seven state law
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`claims, including misappropriation of ideas, unjust enrichment, conversion, quantum meruit,
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`unfair competition, constructive trust, and an accounting (counts II-VIII). The Defendants filed a
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`joint motion to dismiss the state law claims, arguing that Federal Copyright Law preempts the
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`state law claims (counts II-VIII). (Mot. To Dismiss 1 [ECF No. 6]). The Defendants argue that
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`the state law counts should be dismissed for failure to state a claim (Id.).
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`III. LEGAL STANDARDS
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`A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)
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`A complaint “must contain . . . a short and plain statement of the claim showing that the
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`pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A plaintiff must articulate “enough facts to
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`state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
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`(2007) (abrogating Conley v. Gibson, 355 U.S. 41 (1957)). “A claim has facial plausibility when
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`the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
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`Detailed factual allegations are not required, but a pleading “that offers ‘labels and conclusions’
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`or a ‘formulaic recitation of the elements of a cause of action will not do.’” Id. at 1949 (quoting
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`Twombly, 550 U.S. at 555). “[O]nly a complaint that states a plausible claim for relief survives a
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`motion to dismiss.” Id. at 1950. When considering a motion to dismiss, the court must accept
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`all of the plaintiff’s allegations as true and construe them in the light most favorable to the
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`2
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`Case 0:09-cv-61144-MGC Document 33 Entered on FLSD Docket 09/01/2010 Page 3 of 11
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`plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).
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`B. Preemption under the U.S. Copyright Act
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`Federal copyright law preempts state law claims “that are equivalent to any of the
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`exclusive rights within the general scope of copyright as specified by section 1062 in works of
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`authorship3 that are fixed in a tangible medium of expression4 and come within the subject
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`matter of copyright as specified by sections 102 and 103.”5 17 U.S.C. § 301(a). In evaluating
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`whether the Copyright Act preempts a particular state law claim, a court must first decide
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`“whether the rights at issue fall within the ‘subject matter of copyright.’” Crow v. Wainwright,
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`720 F.2d 1224, 1225-26 (11th Cir. 1983) (internal citation omitted). “[T]he subject matter of
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`copyright, in terms of preemption, includes only those elements that are substantively qualified
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`for copyright protection.” Dunlap v. G&L Holding Group, Inc., 381 F.3d 1285, 1295 (11th Cir.
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`2004).
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`If the state law rights at issue fall within the subject matter of copyright, then the court
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`applies the “extra element test” to determine whether the rights at issue are equivalent to the
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`exclusive rights of section 106. Lipscher v. LRP Publ’ns, Inc., 266 F.3d 1305, 1311 (11th Cir.
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`2001). “If an extra element is required instead of or in addition to the acts of reproduction,
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`2 The exclusive rights under section 106 include the right to reproduce the copyrighted work, to
`prepare derivative works, to distribute copies to the public, to perform the work publicly, and
`to display the work publicly. 17 U.S.C. § 106.
`3 “Works of authorship include . . . musical works, . . . [and] sound recordings.” 17 U.S.C. §
`102(a).
`4 “A work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or
`phonorecord, by or under the authority of the author, is sufficiently permanent or stable to
`permit it to be perceived, reproduced, or otherwise communicated for a period of more than
`transitory duration.” 17 U.S.C. § 101.
`5 Section 102 defines the subject matter of copyright as consisting of “original works of
`authorship,” which includes musical works and sound recordings. 17 U.S.C. § 102(a).
`Section 103 addresses the subject matter of copyright in the context of compilations and
`derivative works. 17 U.S.C. § 103.
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`3
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`Case 0:09-cv-61144-MGC Document 33 Entered on FLSD Docket 09/01/2010 Page 4 of 11
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`performance, distribution or display, in order to constitute a state-created [cause] of action, then
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`the right does not lie within the general scope of copyright and there is no preemption.”6 Id. at
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`1311-12 (citation omitted). The name “extra element test,” however, is somewhat misleading
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`because this analysis is not a rote comparison of the elements of the two claims. The extra
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`element of the state law claim must change the nature of the claim, so that it is “qualitatively
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`different from a copyright infringement claim.” Foley v. Luster, 249 F.3d 1281, 1285 (11th Cir.
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`2001) (citation omitted). “For example, awareness and intent are not considered to be
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`qualitatively different elements substantial enough to serve as an ‘extra element.’” Id.
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`A. Misappropriation of Ideas (Count II)
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`III. ANALYSIS
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`To establish a cause of action for misappropriation of an idea, a plaintiff must show that:
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`(1) the idea was novel; (2) disclosure of the idea was made in confidence; and (3) that the idea
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`was adopted and used by the defendant. Alevizos v. John D. & Catherine T. MacArthur Found.,
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`764 So. 2d 8, 11 (Fla. Dist. Ct. App. 1999). It is essential in a misappropriation claim that the
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`idea was revealed in confidence; in other words, that it was a secret. Garrido v. Burger King
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`Corp., 558 So. 2d 79, 83 (Fla. Dist. Ct. App. 1990).
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`“Misappropriation” is not necessarily synonymous with copyright infringement,
`and thus a cause of action labeled as “misappropriation” is not preempted if it is
`fact based neither on a right within the general scope of copyright as specified by
`section 106 [section 106 of this title] nor on a right equivalent thereto.
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`6 “Two elements must be proven in order to establish a prima facie claim for copyright
`infringement: (1) that [the plaintiff] owns a valid copyright . . . and (2) that [the defendant]
`copied constituent elements of the copyrighted work that are original.” Calhoun v. Lillenas
`Publ’g, 298 F.3d 1228, 1232 (11th Cir. 2002) (citation omitted).
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`Case 0:09-cv-61144-MGC Document 33 Entered on FLSD Docket 09/01/2010 Page 5 of 11
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`Notes of the H. Comm. On the Judiciary on the 1976 Amendments to the Copyright Act, H. Rep.
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`No. 94-1476, reprinted at 17 U.S.C.A. § 301. The critical inquiry is whether the
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`misappropriation claim, as pleaded, is equivalent to a claim for copyright infringement.
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`Mr. Jaggon alleges that his ideas were conveyed to the Defendants in confidence, and that
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`the Defendants knew or should have known that Mr. Jaggon expected the Defendants to keep his
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`ideas a secret. (Compl. ¶¶ 41-42). As a threshold matter, although the Plaintiff’s original
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`musical composition, “Just C U,” is within the subject matter of copyright since it is a musical
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`work, the Plaintiff’s idea for the song is not within the subject matter of copyright. 17 U.S.C. §
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`102(b) (“In no case does copyright protection for an original work of authorship extend to any
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`idea.”). Additionally, the “in confidence” element of the Plaintiff’s misappropriation of ideas
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`claim is an extra element that renders the misappropriation of ideas claim qualitatively different
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`from a copyright infringement claim. The Defendants’ motion to dismiss the misappropriation
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`of ideas claim must be denied because the Plaintiff has laid out a claim that is plausible on its
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`face.
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`B. Unjust Enrichment (Count III)
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`To prove unjust enrichment under Florida law, a plaintiff must demonstrate that: (1) he or
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`she conferred a benefit on the defendant, (2) the defendant voluntarily accepted and retained the
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`benefit conferred, and (3) the circumstances are such that it would be inequitable for the
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`defendant to retain the benefit without paying its value to the plaintiff. Merkle v. Health
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`Options, Inc., 940 So. 2d 1190, 1199 (Fla. Dist. Ct. App. 2006) (citations omitted). The basis of
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`Mr. Jaggon’s unjust enrichment claim is that the Defendants, with knowledge that Mr. Jaggon
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`created the song, retained the benefits of the song’s success, without compensating or crediting
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`Mr. Jaggon. (Compl.¶¶ 50, 54-55).
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`Case 0:09-cv-61144-MGC Document 33 Entered on FLSD Docket 09/01/2010 Page 6 of 11
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`Mr. Jaggon’s original musical composition, “Just C U,” is within the subject matter of
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`copyright since it is a musical work. The requirement that a plaintiff convey a benefit to the
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`defendant, and the requirement that the defendant accept that benefit, in an unjust enrichment
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`claim, are extra elements beyond what a plaintiff needs to prove in a copyright infringement
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`claim. These extra elements (conveyance and acceptance) render the unjust enrichment claim
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`qualitatively different from a copyright infringement claim. Cf. Utopia Provider Sys., Inc. v.
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`Pro-Med Clinical Sys., L.L.C., 596 F.3d 1313, 1326-27 (11th Cir. 2010) (finding that a plaintiff’s
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`breach of contract claims were not preempted since the plaintiff would have the existence of an
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`agreement, which constituted an extra element). The Defendants’ motion to dismiss the unjust
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`enrichment claim must be denied because the Plaintiff has laid out a claim that is plausible on its
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`face.
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`C. Conversion (Count IV)
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`“[C]onversion is an unauthorized act which deprives another of his property permanently
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`or for an indefinite time.” Mayo v. Allen, 973 So. 2d 1257, 1259 (Fla. Dist. Ct. App. 2008).
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`Copyright law does not preempt a state law claim for conversion of an idea. Dunlap v. G&L
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`Holding Group, Inc., 381 F.3d 1285, 1295 (11th Cir. 2004). Conversely, a claim for conversion
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`of a work may be preempted. Id.
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`Mr. Jaggon alleges that the Defendants “copied and incorporated substantial and original
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`portions of Plaintiff’s composition ‘Just C U’ while producing ‘Slim Thug’s’ musical
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`composition and sound recording ‘I Run,’ constituting conversion of Mr. Jaggon’s property.”
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`(Compl. ¶¶ 60, 64). Mr. Jaggon’s original musical composition, “Just C U,” is within the subject
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`matter of copyright since it is a musical work. Mr. Jaggon’s claim for conversion of his musical
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`composition does not contain any extra elements that render the claim qualitatively different
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`Case 0:09-cv-61144-MGC Document 33 Entered on FLSD Docket 09/01/2010 Page 7 of 11
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`from a copyright infringement claim. The Defendants’ motion to dismiss the conversion claim is
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`granted because the Plaintiff’s claim is preempted by Copyright law.
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`D. Quantum Meruit (Count V)
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`To recover under quantum meruit, a plaintiff must show that: (1) the recipient acquiesced
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`in the provision of the services, (2) the recipient was aware that the provider expected to be
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`compensated, and (3) the recipient was unjustly enriched. Hermanowski v. Naranja Lakes
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`Condo., 421 So. 2d 558, 561 (Fla. Dist. Ct. App. 1982). “[T]he remedy of quantum meruit
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`derives from contracts implied in fact . . . [where] the parties have in fact entered into an
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`agreement but without sufficient clarity, so a fact finder must examine and interpret the parties’
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`conduct to give definition to their unspoken agreement.” Tooltrend, Inc. v. CMT Utensili, SRL,
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`198 F.3d 802, 806 (11th Cir. 1999) (citations omitted).
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`Mr. Jaggon’s claim for quantum meruit is based on his allegation that a valuable benefit,
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`in the form of his musical composition “Just C U,” was provided by Mr. Jaggon to the
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`Defendants, and was retained by the Defendants without compensation to Mr. Jaggon. (Compl.
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`¶¶ 73-74). Mr. Jaggon’s claim for quantum meruit, as pleaded, does not contain an assertion the
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`Defendants acquiesced in the provision of Mr. Jaggon’s song, nor does the claim allege that the
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`Defendants were aware that Mr. Jaggon expected to be compensated. Here, Mr. Jaggon has not
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`alleged anything more than a prima facie case for copyright infringement, i.e., that he owns a
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`valid copyright and that the defendant copied essential elements of the copyrighted work that are
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`original. (See Compl. ¶¶ 67-75); see also Foley v. Luster, 249 F.3d 1281, 1285 (11th Cir. 2001)
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`(“[A]wareness and intent are not considered to be qualitatively different elements substantial
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`enough to serve as an ‘extra element.’”).
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`Mr. Jaggon’s original musical composition, “Just C U,” is within the subject matter of
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`Case 0:09-cv-61144-MGC Document 33 Entered on FLSD Docket 09/01/2010 Page 8 of 11
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`copyright since it is a musical work. Mr. Jaggon’s claim for quantum meruit does not allege any
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`extra elements that render the claim qualitatively different from a copyright infringement claim.
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`(See Compl. ¶¶ 67-75); see also Foley, 249 F.3d at 1285. The Defendants’ motion to dismiss the
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`conversion claim is granted because Copyright law preempts the Plaintiff claim.
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`E. Unfair Competition (Count VI)
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`To prove unfair competition, a plaintiff must establish: (1) deceptive or fraudulent
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`conduct of a competitor, and (2) the likelihood of consumer confusion. Donald Frederick Evans
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`& Assocs., Inc., v. Cont’l Homes, Inc., 785 F.2d 897, 914 (11th Cir. 1986). Generally, Copyright
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`law does not preempt a claim for unfair competition, because the elements of deceptive or
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`fraudulent conduct and likelihood of customer confusion are additional to, and qualitatively
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`different from, the elements of a copyright infringement claim. See id.; but see M.G.B. Homes,
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`Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1494 (11th Cir. 1990) (explaining that a claim for
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`unfair competition based solely on allegations of copying, “and in the absence of proof of any
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`element of unfair competition other than copying,” is preempted).
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`Mr. Jaggon asserts that the Defendants’ wrongly copied his original work, and that “[t]he
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`Defendants use of Compact Discs, digital downloads, the media, the newspapers, and other
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`methods of promotion . . . constitutes unfair competition as it causes confusion and deception in
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`the marketplace.” (Compl. ¶¶ 79-80, 85). As a musical work, Mr. Jaggon’s musical composition
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`is within the subject matter of copyright. Mr. Jaggon’s claim for unfair competition, however, is
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`not preempted because it alleges that the Defendants’ engaged in deceptive or fraudulent acts
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`beyond merely copying. Specifically, Mr. Jaggon’s allegations regarding the Defendants’
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`methods of promotion render this claim not solely based on allegations of copying. The
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`Defendants’ motion to dismiss the unfair competition claim must be denied.
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`Case 0:09-cv-61144-MGC Document 33 Entered on FLSD Docket 09/01/2010 Page 9 of 11
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`F. Constructive Trust (Count VII)
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`A constructive trust is an equitable remedy that applies when the property at issue was
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`obtained by fraud and there is no adequate remedy at law. Bender v. Centrust Mortg. Corp., 51
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`F.3d 1027, 1029-30 (11th Cir. 1995), modified on other grounds, 60 F.3d 1507 (11th Cir. 1995).
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`To obtain a constructive trust, a plaintiff must show there was a confidential relationship by
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`which one acquired an advantage he or she should not, in equity and good conscience, retain. Id.
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`(citations omitted). The subject of the inequitable transaction must be specific, identifiable
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`property, or must be clearly traceable in assets of the defendant. Id. (citing Finkelstein v. Se.
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`Bank, N.A., 490 So. 2d 976, 983-84 (Fla. Dist. Ct. App. 1986) (noting that “[d]efinitive,
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`designated property, wrongfully withheld from another, is the very heart and soul of the
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`constructive trust theory.”)).
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`The Complaint states that the Defendants obtained a copy of his song, “Just C U,”
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`through Mr. Jaggon’s agent. (Compl. ¶ 25). Mr. Jaggon also alleges that the Defendant’s
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`“wrongfully received money and profits” that belonged to Mr. Jaggon as a result of the
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`misappropriation of his property, and that the money can be traced and located. (Compl. ¶¶ 86-
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`87). Again here, Mr. Jaggon’s musical composition is within the subject matter of copyright
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`since it is a musical work. Mr. Jaggon’s claim for constructive trust, however, is not preempted
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`because it alleges that the Defendants’ acquired an advantage through a confidential relationship.
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`The “confidential relationship” element of Mr. Jaggon’s constructive trust claim is an extra
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`element that renders the constructive trust claim qualitatively different from a copyright
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`infringement claim. The Defendants’ motion to dismiss the constructive trust claim must be
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`denied based on the Plaintiff’s preemption argument.
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`Case 0:09-cv-61144-MGC Document 33 Entered on FLSD Docket 09/01/2010 Page 10 of 11
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`G. Accounting (Count VIII)
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`Under Florida law, a party that requests an equitable accounting must show that the
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`parties share a fiduciary relationship or that the questioned transactions are complex, and that a
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`remedy at law is inadequate. Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1071 (11th
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`Cir. 2007). The basis for Mr. Jaggon’s accounting claim is that he has a right to recover profits
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`of the Defendants that are attributable to their misappropriation of Plaintiff’s ideas, and that the
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`exact amount of money due from the Defendant’s is unknown and can only be ascertained
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`through an accounting. (Compl. ¶¶ 88-90). The Complaint sets out a facially plausible claim for
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`relief in that it alleges that the questioned transactions are complex and that an accounting is the
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`only adequate remedy.
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`The alleged wrongdoing on the part of the Defendants is still the unauthorized copying of
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`Mr. Jaggon’s musical composition, which is within the subject matter of copyright since it is a
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`musical work. Mr. Jaggon’s claim for an accounting, however, is not preempted because the
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`elements of Mr. Jaggon’s accounting claim are qualitatively different from a copyright
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`infringement claim. Specifically, the elements of complexity and lack of adequate remedy at
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`law, render this claim different from a copyright claim. The Defendants’ motion to dismiss the
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`accounting claim must be denied based on the Plaintiff’s preemption argument.
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`IV. CONCLUSION
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`For the reasons explained, it is ORDERED and ADJUDGED that the Defendants’ Joint
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`Motion to Dismiss Counts II through VIII of the Complaint [ECF No. 6] is GRANTED in part
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`and DENIED in part, as follows:
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`1. Count IV (Conversion) and count V (Quantum Meruit) are DISMISSED without
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`prejudice.
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`Case 0:09-cv-61144-MGC Document 33 Entered on FLSD Docket 09/01/2010 Page 11 of 11
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`2. The remaining counts of the Plaintiff’s Complaint remain. The Defendants’ Motion to
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`Dismiss is DENIED as to these counts.
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`DONE and ORDERED in chambers, at Miami, Florida, this 31st day of August 2010.
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`Copies furnished to:
`Ted E. Bandstra, U.S. Magistrate Judge
`Counsel of record
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