Case 9:21-cv-81870-RAR Document 30 Entered on FLSD Docket 01/11/2022 Page 1 of 21
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`CASE NO. 21-cv-81870-RUIZ
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`BRAINDON N. COOPER a/k/a MR COOPER, et al.,
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`Plaintiff,
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`v.
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`CHRIS BROWN ENTERTAINMENT, LLC d/b/a
`CHRISTOPHER BROWN ENTERTAINMENT, LLC.,
`et al.
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`Defendants.
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`______________________________________________/
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`MOTION TO DISMISS THE COMPLAINT
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`Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendants Chris Brown (“Brown”);
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`Chris Brown Entertainment, LLC (“CBE”); Culture Beyond Ur Experience; Sony/ATV Songs,
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`LLC (n/k/a Sony Music Publishing (US) LLC) (“SMP”); Sony Music Entertainment (“SME”);
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`Songs of Universal, Inc. (“Universal”); J-Louis Productions, LLC and Joshua Louis Huizar (“J-
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`Louis”); Anderson Hernandez (“Hernandez”) p/k/a Vinylz and Vinylz Music Group (“Vinylz”);
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`Amnija, LLC d/b/a Songs of Amnija; and Nija Charles p/k/a Njia (“Nija”) (collectively,
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`“Defendants”) move to dismiss the Complaint filed by plaintiffs Braindon N. Cooper a/k/a Mr.
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`Cooper (“Cooper”) and Timothy L. Valentine a/k/a Drum’N Skillz (“Valentine”) (together,
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`“Plaintiffs”).
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`INTRODUCTION
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`Plaintiffs bring this baseless suit, alleging that Defendants infringed the copyright for their
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`song, “I Love Your Dress” (“Plaintiffs’ Song”). Plaintiffs speculate that Defendants – who include
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`two of the biggest musical artists in the world, Brown and co-defendant Drake – accessed Plaintiffs’
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`obscure song; copied certain aspects of the song; and then promptly released a “forged” song,
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`entitled “No Guidance.” By Plaintiffs’ own account, “No Guidance” is an “enormous commercial
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`Case 9:21-cv-81870-RAR Document 30 Entered on FLSD Docket 01/11/2022 Page 2 of 21
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`success,” garnering more than “373 million” YouTube views, charting at number five on the
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`Billboard Hot 100, and earning a Grammy nomination for “Best R&B Song.”
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`The Complaint must be dismissed as Plaintiffs have not plausibly alleged copyright
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`infringement, nor can they. As an initial matter, Plaintiffs have not alleged that Defendants had
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`the requisite “access” to Plaintiffs’ Song in order to copy it – either through widespread
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`dissemination on the Internet or through a third-party intermediary. Moreover, Plaintiffs’ suit is
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`premised upon the alleged similarity between the wholly generic lyrical phrase “you got it” and
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`the alleged similar (and unoriginal) theme of a hard-working, attractive woman. No one, including
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`Plaintiffs, can own or monopolize the non-copyrightable phrase “you got it,” and it should come
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`as no surprise that this phrase appears in countless other works. Also, lyrical themes are simply
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`unprotectable as a matter of law.
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`The Court can hear for itself that the total concept and feel of the songs is vastly different.
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`Plaintiffs’ Song is a slow, R&B love ballad about the writer’s wife featuring one vocalist (Cooper)
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`and relatively few lyrics. In sharp contrast, “No Guidance” is a faster, longer, and sexually explicit
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`rap and R&B song about a new romantic interest. Further, “No Guidance” features two vocalists:
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`Brown and Drake. Any average listener can readily distinguish the two recordings and conclude
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`that Defendants did not copy “what is pleasing to the ears.” Plaintiffs’ copyright infringement
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`claims are therefore inadequate as a matter of law.
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`Plaintiffs’ state law claims are equally deficient. The claims for “common law” copyright
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`infringement and unjust enrichment are preempted by the Copyright Act because they are based
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`on the alleged unauthorized use of Plaintiffs’ Song. Plaintiffs’ accounting claim should also be
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`dismissed because it is a remedy, not a cause of action.
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`No amount of discovery or re-pleading is going to change the songs or the generic,
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`unprotectable nature of what is alleged to be similar. Accordingly, the Court can compare the
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`songs, find non-infringement as a matter of law, and dismiss the Complaint with prejudice.
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`Page | 2
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`Case 9:21-cv-81870-RAR Document 30 Entered on FLSD Docket 01/11/2022 Page 3 of 21
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`A.
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`The Parties.
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`BACKGROUND
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`Cooper is a singer, songwriter, and producer whose musical style “combines smooth R&B
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`vocals and lyrics with heavy hitting beats.” (Compl. ¶ 9).1 Valentine is a drummer and producer.
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`(Id. ¶ 10). Together, Plaintiffs recorded Plaintiffs’ Song and registered the composition with the
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`U.S. Copyright Office on August 17, 2020. (Id. ¶ 11).2
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`Brown is one of the most influential and successful R&B singers of all time. Drake is a
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`Grammy award-winning rapper and singer who is one of the world’s best-selling musicians.
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`Brown and Drake wrote “No Guidance” with Vinylz, J-Louis, and Nija, along with five other
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`credited writers (who are separately represented) (the “No Guidance Composition”). (Id. ¶¶ 16,
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`17, 19). SME released Brown’s and Drake’s performance of the No Guidance Composition on
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`June 8, 2019 (the “No Guidance Recording,” collectively with the No Guidance Composition,
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`“Defendants’ Works”). (See id. ¶¶ 1, 14-15).
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`CBE registered the No Guidance Recording with the U.S. Copyright Office on June 19,
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`2019. (See id. ¶¶ 11, 13). The No Guidance Composition was registered with the U.S. Copyright
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`Office on May 5, 2020. (Id. ¶¶ 14, 25, 29).
`B.
`The Complaint’s Deficient “Access” Allegations.
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`Plaintiffs allege that they wrote and recorded Plaintiffs’ Song in 2016. (Id. ¶ 37). Despite
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`claiming that they published Plaintiffs’ Song on SoundCloud (an online audio distribution platform)
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`for a “few months” in 2016, Plaintiffs conspicuously fail to allege the total number of “plays” that
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`the song received before its removal from SoundCloud. (See id. ¶ 38).
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`1 For the purpose of this motion only, Defendants assume the truth of the allegations contained in
`the Complaint, including Plaintiffs’ ownership of Plaintiffs’ Song. Should Plaintiffs’ Complaint
`survive dismissal, Defendants intend to vigorously dispute the veracity of Plaintiffs’ allegations.
`2 Given Plaintiffs’ belated registration of their Song, they are precluded from recovering statutory
`damages or attorneys’ fees as a matter of law. See MidLevelU, Inc. v. ACI Info. Group, 989 F.3d
`1205, 1219 (11th Cir. 2021).
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`Approximately two years later, in August 2018, Cooper allegedly performed Plaintiffs’
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`Song at an event in Miami with “many people in attendance.” (Id. ¶ 40). There is no allegation
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`that any of the Defendants, much less the writers of the No Guidance Composition, attended the
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`Miami performance. Plaintiffs further claim that, shortly after the performance, Cooper posted it
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`on YouTube. (Id. ¶ 41). There is no allegation that any Defendants accessed this YouTube video,
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`which had garnered only modest views prior to this litigation.
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`Cooper also allegedly published Plaintiffs’ Song on streaming and downloading platforms
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`on January 25, 2019 and published a music video on YouTube on May 7, 2019. (Id. ¶¶ 43-44).
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`Once more, Plaintiffs do not identify the number of views or streams that Plaintiffs’ Song received
`on these platforms before Defendants’ Works were released on June 8, 2019. Plaintiffs
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`nonetheless baldly assert, with no proof whatsoever, that “Defendants” had access to Plaintiffs’
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`Song through those platforms. (Id. ¶ 46).
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`Plaintiffs also allege that they sent their Song to an individual named “Mic Tee,” a
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`purported A&R representative3 associated with non-parties Cash Money Records (“Cash Money”)
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`and the AMAG Collective. (Id. ¶¶ 47, 61). Plaintiffs do not allege that Mic Tee, Cash Money or
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`AMAG had anything to do with the creation of Defendants’ Works. Nor do Plaintiffs allege that
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`any of these non-parties provided Plaintiffs’ Song to any of the creators of Defendants’ Works or
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`any specific facts that would support a theory of access through a third-party intermediatory.
`Rather, Plaintiffs speculate that a “Defendant” might have heard their song because the AMAG
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`Collective “scouts” talent for Cash Money, and its founder, non-party Bryan Williams a/k/a
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`“Birdman,” was allegedly filming a movie with Brown at the time. (Id. ¶ 48 n.1). As demonstrated
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`herein, such rank speculation is insufficient to allege access as a matter of well-established law.
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`Plaintiffs’ allegations of similarity are centered around the two songs’ lyrics. Specifically,
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`Plaintiffs allege that their Song contains the repeated phrases, “she got it” and “you got it,” while
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`3 “A&R” is the department of a record label “responsible for helping the company find, sign and
`guide new talent.” See Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003).
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`Case 9:21-cv-81870-RAR Document 30 Entered on FLSD Docket 01/11/2022 Page 5 of 21
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`“No Guidance” repeats the phrase, “you got it, girl, you got it.” (Id. ¶¶ 5, 39, 52, 53, 74). Plaintiffs
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`further allege that both songs involve the lyrical theme of “an attractive woman working hard.”
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`(Id. ¶ 57). Plaintiffs further vaguely contend that the two songs have similar “beat[s],” “beat
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`patterns,” “rhythmic structure,” “metrical placement,” “primary scale degrees,” “melodies,” and
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`“distinctive sound effect[s].” None of these alleged similarities are articulated with any detail. (Id.
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`¶¶ 4-6, 52, 55). These allegations are defied by a cursory listen of the two songs, as the Court can
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`hear for itself that these are two very different songs, and that any lyrical similarity consists of
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`nothing more than generic, short phrases that are not original to Plaintiffs and not protectable as a
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`matter of law.
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`Plaintiffs’ Complaint impermissibly lumps all of the Defendants together and includes
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`claims for common law copyright infringement (Count I), federal copyright infringement (Count
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`II), vicarious copyright infringement (Count III), declaratory judgment of copyright infringement
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`(Count IV), accounting (Count V), and unjust enrichment (Count VI). (Id. ¶¶ 70-124). Each of
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`these claims fail as a matter of law.
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`A.
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`Relevant Legal Standards.
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`ARGUMENT
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`A motion to dismiss under Rule 12(b)(6) tests whether the complaint “state[s] a claim upon
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`which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a
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`complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
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`plausible 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 plaintiff must do more than solely recite the elements for
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`a violation – he must plead facts with sufficient particularity so that his right to relief is more than
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`mere conjecture. See Twombly, 550 U.S. at 561-62; Iqbal, 556 U.S. at 677-78 (explaining that
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`Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the defendant-unlawfully-
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`harmed-me accusation”).
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`Case 9:21-cv-81870-RAR Document 30 Entered on FLSD Docket 01/11/2022 Page 6 of 21
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`In ruling on a Rule 12(b)(6) motion, the Court may consider “documents incorporated into
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`the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc.
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`v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The Court may also consider exhibits
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`attached to a motion to dismiss if the attached documents are: (1) central to the plaintiff’s claim;
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`and (2) undisputed. Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002).
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` Plaintiffs’ Complaint explicitly incorporates and relies upon the works at issue. (See, e.g.,
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`Compl. ¶¶ 1-8, 51-69). Consequently, the Court may consider the songs and their lyrics at the
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`dismissal stage and determine, as a matter of law, that no protectable elements have been copied
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`and no substantial similarity exists. See, e.g., Pickett v. Migos Touring, Inc., 420 F. Supp. 3d 197,
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`208 (S.D.N.Y. 2019).
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`In copyright cases, courts routinely grant motions to dismiss based on a plaintiff’s failure
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`to properly allege that the defendants accessed and copied their songs. See, e.g., Dixon v. Sony
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`Corp. of Am., No. 12-cv-60160, 2012 WL 1886550, at *3 (S.D. Fla. May 23, 2012); Adams v.
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`Musk, No. 15-cv-6756, 2016 WL 2757392, at *4 (E.D.N.Y. May 11, 2016).
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`Courts also routinely decide non-infringement at the dismissal stage by comparing the
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`works at issue. See Christianson v. W. Pub. Co., 149 F.2d 202, 203 (9th Cir. 1945) (“[W]hen the
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`copyrighted work and alleged infringement are both before the court, capable of examination and
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`comparison, non-infringement can be determined on a motion to dismiss.”); Devil’s Advocate,
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`LLC v. Zurich Am. Ins. Co., 666 F. App’x. 256, 263 (4th Cir. 2016) (“a district court may
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`properly dismiss a copyright claim in the absence of substantial similarity”). This is because the
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`“works themselves supersede and control contrary descriptions of them in the pleadings.” See
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`Lane v. Knowles-Carter, 2015 WL 6395940, at *1, n.2 (S.D.N.Y. Oct. 21, 2015). Indeed, in music
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`cases, “[c]ourts . . . regularly . . . listen to the songs at issue when evaluating a motion to dismiss.”
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`McDonald v. West, 138 F. Supp. 3d 448, 453 (S.D.N.Y. 2015) (emphasis added); see also Lane,
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`2015 WL 6395940, at *6 (dismissing case after comparing two songs).
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`Here, the two compositions and two recordings are plainly incorporated by reference,
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`integral to the Complaint, and subject to judicial notice.4 Accordingly, in ruling on this Motion,
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`the Court may compare the lyrics as well as the YouTube videos:
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` https://www.youtube.com/watch?v=nVfPiandMwY&ab_channel=MrCooper
`Plaintiffs’ live performance of Plaintiffs’Song, uploaded on August 28, 2018;
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` https://www.youtube.com/watch?v=LldZBzkDgk4&ab_channel=MrCooper
`Plaintiffs’ music video for Plaintiffs’ Song, uploaded on May 7, 2019;
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` https://www.youtube.com/watch?v=oOni4BMeMp0&ab_channel=ChrisBrownVEVO
`the No Guidance Recording, uploaded on June 8, 2019; and
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` https://www.youtube.com/watch?v=6L_k74BOLag&ab_channel=ChrisBrownVEVO
`Defendants’ music video for the No Guidance Recording, uploaded on July 26, 2019.5
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`Plaintiffs Fail to State a Claim for Copyright Infringement.
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`B.
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`To establish copyright infringement, Plaintiffs must prove: “(1) ownership of a valid
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`copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns,
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`Inc. v. Rural Telephone Serv. Co., Inc., 499 U.S. 340, 361 (1991). For the second element, where
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`a “plaintiff does not have direct proof of copying,” a plaintiff may satisfy the copying element by
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`adequately pleading “that the defendants had access to the copyrighted work and that the works
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`are ‘substantially similar.’” Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1223
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`(11th Cir. 2008) (quoting Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1248 (11th Cir. 1999)).
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`In order to allege substantial similarity, a plaintiff is required to allege that the defendant’s
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`work copied protectable elements of plaintiff’s work, as not all “copying” amounts to actionable
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`copying. Id. at 1224. Indeed, when the alleged similarities consist of unprotectable elements, such
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`as concepts or commonplace unoriginal phrases, no claim of infringement has been alleged. See
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`4 Courts may take judicial notice of YouTube videos not attached to the Complaint pursuant to
`Federal Rule of Evidence 201(b). See, e.g., City of Inglewood v. Teixiera, No. 15-cv-01815, 2015
`WL 5025839, at *2 (C.D. Cal. Aug. 20, 2015) (taking judicial notice of six YouTube videos).
`5 Together with this motion, Defendants are conventionally filing a USB drive containing these
`four YouTube videos.
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`Guity v. Santos, No. 18-cv-10387, 2019 WL 6619217, at *5 (S.D.N.Y. Dec. 5, 2019) (dismissing
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`plaintiff’s claims for copyright infringement where “[t]he shared usage of single everyday words
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`[ ] fail[ed] to show substantial similarity between the two songs.”), reconsideration denied, No.
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`18-cv-10387, 2020 WL 4340417 (S.D.N.Y. July 28, 2020); Lane, 2015 WL 6395940, at *5-8
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`(granting the defendants’ Rule 12(b)(6) motion to dismiss because the purported similarities
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`between the lyrics and title of Beyonce’s song “X.O.” and the plaintiff’s song “X.O.X.O” were
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`insufficient to support a copyright infringement claim).
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`As explained below, Plaintiffs fail to allege that Defendants had access to Plaintiffs’ Song
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`or that the two songs are substantially similar. Consequently, Plaintiffs’ claims should be
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`summarily dismissed.
`1.
`Plaintiffs Fail to Plausibly Allege Access.
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`No infringement can occur without the creators of the allegedly infringing work having
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`access to and copying the plaintiff’s work. To sufficiently plead access, the plaintiff must allege
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`the defendant “had a reasonable possibility of viewing [the work] – speculation, conjecture or bare
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`possibility are not sufficient.” Ross v. Apple, Inc., 741 F. App’x. 733, 737 (11th Cir. 2018); see
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`also Davis v. Raymond, No. 12-cv-22578, 2012 WL 12868729, at *3 (S.D. Fla. Nov. 30, 2012)
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`(dismissing complaint that alleges “nothing more than ‘mere speculation [and] conjecture’
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`regarding Defendants’ access”); Dixon, 2012 WL 1886550, at *3 (dismissing complaint that “does
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`not allege any . . . specific facts suggesting that Defendant would have had access to his work”).
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`Access can be alleged either by a chain of events that show a nexus between the creators
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`of the defendants’ work to the plaintiffs’ work or, “[i]n some instances, proof that a copyright
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`holder’s work was ‘widely disseminated’ has been held to constitute circumstantial evidence of
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`access.” Olem Shoe Corp. v. Washington Shoe Corp., 591 F. App’x. 873, 882 (11th Cir. 2015)
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`(citing L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 846–47 (9th Cir. 2012)); Herzog,
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`193 F.3d at 1251. Copyright infringement claims are routinely dismissed at the pleading stage for
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`failure to adequately allege access. See, e.g., Davis, 2012 WL 12868729, at *3; Dixon, 2012 WL
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`1886550, at *3.
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`Plaintiffs purport to allege access by two methods – widespread dissemination and a third-
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`party intermediary. (See Compl. ¶¶ 51, 61). Neither theory is supported by any factual allegations
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`that remotely satisfy the applicable pleading requirements.
`a.
`Plaintiffs Do Not Allege Widespread Dissemination of Plaintiffs’ Song.
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`“[F]or a work to be widely disseminated, it must achieve a high degree of commercial
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`success or be readily available in the relevant market.” Loomis v. Cornish, No. 12-cv-5525, 2013
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`WL 6044345, at *10 (C.D. Cal. Nov. 13, 2013). “In music cases, widespread dissemination has
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`traditionally been demonstrated ‘through sales of sheet music, records, and radio performances.’”
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`Batts v. Adams, No. 10-cv-8123, 2011 WL 13217923, at *3 (C.D. Cal. Feb. 8, 2011) (quoting
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`Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000)). The availability of the
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`work must be so widespread “that the defendant can be presumed to have seen or heard it.” Design
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`Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093, 1100 (7th Cir. 2017).
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`The Complaint fails to plead sufficient facts to allege widespread dissemination. Plaintiffs
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`contend that “Defendants” had access to Plaintiffs’ Song because it was “available to the public”
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`for “a few months” in 2016, and then later “available” through “a number of social media
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`applications and Internet-based websites” shortly before the creation of the No Guidance
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`Composition. (See Compl. ¶¶ 38-46.) The law is clear, however, that the mere “availability of a
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`copyrighted work on the Internet, in and of itself, is insufficient to show access through widespread
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`dissemination.” Loomis, 2013 WL 6044345, at *12 (citing Art Attacks Ink, LLC v. MGA Entm’t
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`Inc., 581 F.3d 1138, 1145 (9th Cir. 2009)); see also O’Keefe v. Ogilvy & Mather Worldwide, Inc.,
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`590 F. Supp. 2d 500, 515 (S.D.N.Y. 2008) (“[T]he mere fact that [plaintiff’s] work was posted on
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`the internet prior to the creation of defendants’ work is insufficient by itself to demonstrate wide
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`dissemination.”); Tate-Robertson v. Walmart, Inc., No. 19-cv-27, 2019 WL 6448960, at *4 (C.D.
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`Cal. May 16, 2019) (dismissing copyright infringement claim and noting “[s]imply because a work
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`is available for sale does not mean that the work has been ‘widely disseminated’”).
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`Rather, a plaintiff must plausibly allege facts suggesting that plaintiff’s work has “reach[ed]
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`a wide audience” on the Internet. See Dixon, 2012 WL 1886550, at *3 (citing Art Attacks Ink, 581
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`F.3d at 1145). Indeed, Courts have rejected copyright claims where, as here, plaintiff cannot
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`establish widespread Internet popularity. Compare Apps v. Universal Music Group, Inc., No. 2:16-
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`cv-01132, 2018 WL 10455903, at *5 (D. Nev. Apr. 27, 2018) (finding no widespread
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`dissemination where plaintiff performed song at nightclubs and posted song on YouTube where
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`plaintiff was unable to show how many people came to shows or listened to the song on the internet
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`and song was never played on radio or television) with Gray v. Perry, No. 2:15-cv-05642, 2018
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`WL 3954008, at *4 (C.D. Cal. Aug. 13, 2018) (finding that access was plausible where plaintiff’s
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`videos had amassed nearly four million views).
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`Tellingly, Plaintiffs fail to allege how many people accessed Plaintiffs’ Song on the
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`Internet before Defendants created the No Guidance Composition. Plaintiffs also conspicuously
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`fail to allege facts sufficient to establish the requisite “high degree of commercial success” such
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`“that the defendant can be presumed to have seen or heard” Plaintiffs’ Song. Loomis, 2013 WL
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`6044345, at *12; Meynart-Hanzel v. Turner Broad. Sys., No. 17-cv-6308, 2018 WL 4467147, at
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`*6 (N.D. Ill. Sept. 18, 2018) (rejecting plaintiff’s claim of commercial success where the complaint
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`did not detail the alleged breadth of that distribution, including, the number of views, subscribers,
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`traffic). These omissions speak volumes – and are fatal to Plaintiffs’ infringement claims.
`b. Plaintiffs Fail to Plausibly Allege Access Through a Third-Party
`Intermediary.
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`Plaintiffs also speculate that “Defendants” had access to Plaintiffs’ Song through a non-
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`party named “Mic Tee,” an alleged A&R representative “associated with” non-parties Cash Money
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`and the AMAG Collective. Mic Tee purportedly contacted Cooper in March 2019 and was
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`allegedly provided a copy of Plaintiffs’ Song. (See Compl. ¶ 47). Here, too, Plaintiffs’ allegations
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`are nothing more than wholesale speculation, and insufficient to allege access as a matter of law.
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`“[A] court may infer access ‘if the author sent the copyrighted work to a third party
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`intermediary who has a close relationship with the infringer.’” Davis, 2012 WL 12868729, at *3
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`(quoting Herzog, 193 F.3d at 1250). To allege access based on a third-party intermediary, Courts
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`require the intermediary to have “(1) … supervisory responsibility for the allegedly infringing
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`project, (2) contributed ideas and materials to it, or (3) worked in the same unit as the creators.’”
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`Loomis, 2013 WL 6044345, at *5. “An inference of access ‘requires more than a mere allegation
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`that someone known to the defendant possessed the work in question.’” Batts v. Adams, No. 10-
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`cv-8123, 2011 WL 13217923, at *3 (C.D. Cal. Feb. 8, 2011) (citing Herzog, 193 F.3d at 1252).
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`Plaintiffs do not allege a single fact that supports an inference of access. They do not allege
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`that Mic Tee (or anyone else who was purportedly provided a copy of Plaintiffs’ Song) had any
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`relationship with the creators of Defendants’ Works (much less a “close relationship”); had any
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`involvement with (much less supervisory responsibility for) Defendants’ Works; contributed any
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`material to Defendants’ Works or were physically present with the creators of Defendants’ Works
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`during the creative process.6 Rather, a charitable read of the Complaint is that Plaintiffs gave their
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`song to someone in the music business who might have known someone who knows one of the
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`“Defendants” involved in the creation of Defendants’ Works, but that Plaintiffs have no idea who
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`that person might be, whether it actually happened, or when it happened.7
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`6 Indeed, given that the alleged delivery of Plaintiffs’ song to “Mic Tee” occurred in March 2019,
`and Defendants’ Works were commercially released in early June 2019, this delivery likely
`occurred after the No Guidance Composition was already written.
`7 In violation of Rule 8’s pleading requirements, Plaintiffs improperly lump all Defendants
`together and fail to allege which specific Defendants allegedly had access to Plaintiffs’ Song. See
`Kabbaj v. Obama, 568 F. App’x 875, 880 (11th Cir. 2014) (a plaintiff cannot “refer[] to the
`defendants collectively, making it impossible to identify which particular defendant engaged in
`what allegedly wrongful conduct”). This is an independent ground for dismissal. See Barmapov
`v. Amuial, 986 F.3d 1321, 1324 (11th Cir. 2021).
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`Plaintiffs’ speculative allegations are far too attenuated to infer a reasonable possibility of
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`access. See Loomis, 2013 WL 6044345, at *10 (rejecting claim of access through an intermediary
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`because it was supported only by “Plaintiff’s bald assertions, made without personal knowledge,
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`that [an A&R representative] actually worked with” the writers of the song in question); Watt v.
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`Butler, 457 F. App’x 856, 860 (11th Cir. 2012) (“assumption that members of the Atlanta rap
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`community share music among themselves” is “too conjectural and speculative” to show access).
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`Plaintiffs have failed to plausibly allege that any of the creators of Defendants’ Works had
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`access to Plaintiffs’ Song through either widespread dissemination or a third-party intermediary.
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`Dismissal is required on this basis alone.8
`2.
`Plaintiffs Have Not Plead Actionable Similarity.
`
`Even if Plaintiffs had adequately alleged access, Plaintiffs’ claims should nevertheless be
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`dismissed because they have failed to allege that the two works are “substantially similar.”
`
`Copyright protection does not extend to every component of a copyrighted work. Instead,
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`copyright law only protects the plaintiff’s protected original expression. See Oravec, 527 F.3d at
`
`1224; Apps, 283 F. Supp.3d at 952 (“Even if an entire song is copyrighted, copyright protection
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`only extends to those elements of the work that are original to the author.”).
`
`Originality is “the sine qua non of copyright; accordingly, copyright protection may extend
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`only to those components of a work that are original to the author.” Feist, 499 U.S. at 348. Within
`
`
`8 In rare cases, a plaintiff can establish copying without proof of access if they prove that the two
`works are “strikingly similar.” While Plaintiffs utter the conclusion “striking similarity” in their
`Complaint (see ¶¶ 52, 74) – a tacit concession that they cannot plausibly plead access given the
`obscurity of their song – there is no factual basis for alleging that the two works at issue are
`“strikingly similar.” The striking similarity test is “applied with particular stringency in cases . . .
`involving popular music.” Tisi v. Patrick, 97 F. Supp. 2d 539, 548 (S.D.N.Y. 2000). “Strikingly
`similar means that ‘the proof of similarity in appearance is so striking that the possibilities of
`independent creation, coincidence and prior common source are, as a practical matter, precluded.’”
`Watt, 457 F. App’x. at 861-62 (quoting Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 1984)). In other
`words, the similarities must be of such a nature that the only plausible explanation for the
`similarities is copying. Given the generic lyrical phrases at issue herein, Plaintiffs’ allegations of
`“striking similarity” can be swiftly dismissed.
`
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`the meaning of copyright law, “original” means that the work was independently created by the
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`author as opposed to copied from other works, and that it possesses some minimal degree of
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`creativity. Id. at 345. Consequently, “not all copying is copyright infringement,” id. at 361, and
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`“parrotry does not always mean piracy,” Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d
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`119, 123 (2d Cir. 1994).
`
`The critical inquiry is whether the defendant copied any original element of the plaintiff’s
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`work that is protected by copyright law. Feist, 499 U.S. at 348, 361. Where, as here, the
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`similarities alleged – common words and lyrical themes – are not copyrightable elements, no claim
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`of infringement has been alleged. Id. at 364. Plaintiffs have not alleged that any purported
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`similarities rise to the level of protectable expression required to state a claim for copyright
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`infringement.
`a. The Short, Commonplace Phrases “She Got It” and “You Got It” Are Not
`Copyrightable as a Matter of Law.
`
`
`Plaintiffs’ copyright claim is centered around the alleged similarity between a generic
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`phrase contained in both Plaintiffs’ Song (“she got it she got it” and “you got it you got it”) and in
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`the No Guidance Composition (“you got it girl, you got it ayy, you got it girl, you got it (yeah)”).
`
`(Compl, ¶¶ 54, 56.) A side-by-side comparison of the pertinent lyrics are set forth below:
`
`Plaintiffs’ Song
`You Got It You Got It
`You Got It You Got It
`I Love Your Dress
`You Got It You Got It
`You Got It You Got It
`I Love Your Dress
`I Love Your Dress
`
`No Guidance
`You got it, girl, you got it (Oh, ooh, ayy)
`You got it, girl, you got it (Got it)
`
`
`
`
`
`
`
`(The songs’ complete lyrics are attached as Exhibit 1.)
`
`
`As an initial matter, the lyrics are not identical. The actual lyric contained in the No
`Guidance Composition is: “You got it girl, you got it (ayy), you got it girl, you got it (yeah)”
`
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`(emphasis added), while Plaintiffs’ Song consists of the words, “You got it You got it” and “She
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`got it, She got it.”
`
`In any event, Plaintiffs cannot exercise a monopoly over these words. Indeed, there is no
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`shortage of case law holding that short, commonplace phrases are not protectable as a matter of
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`law. See, e.g., Pickett, 420 F. Supp. at 207 (phrase “walk it like I talk it” not protectable); Guity,
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`2019 WL 6619217, at *4 (phrase “you’re mine” not protectable because it is “too short and generic
`
`to meet the required threshold for creativity”); West, 138 F. Supp. 3d at 456 (phrase “made in
`
`America” not protectable because “[i]t is far too brief, common, and unoriginal to create any
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`exclusive right vested in Plaintiff.”), aff’d, 669 F. App’x 59 (2d Cir. 2016); Edwards v. Raymond,
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`22 F. Supp. 3d 293, 299 (S.D.N.Y. 2014) (phrase “caught up” not protectable because it “is not
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`original to the Plaintiffs; it is used in everyday speech in a variety of contexts.”).9
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`“You got it” and “she got it” are textbook examples of commonplace, everyday phrases
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`that are not entitled to copyright protection.
`b.
`Plaintiffs Did Not Create the Phrase “You Got It” Which Has Been Used
`In Countless Prior Musical Works.
`
`
`Plaintiffs cannot credibly claim that they coined the phrase “You got it” because this phrase
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`“existed long before []he included it in h[is] song.” See Pyatt, 2011 WL 2078531, at *8. The
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`Court may take judicial notice that a search for the phrase “You got it” with the United States
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`Copyright Office reveals that 911 works have been registered with that phrase in the title, the vast
`majority of which we