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[ lRIGINAL
`Case 1:12-cv-06648-LLS Document 13 Filed 04/02/13 Page 1 of 9
`USDC SL'. "
`DOCUMEf<'l
`v 1 '...: f'I' cD
`ELECTRO~ .
`1"-_ < " , i , i I
`DOC#:
`....._
`I D:\TE FILED:_~~ '). ·.2or~_
`
`(';4
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`- ------ -
`-
`- ---- - --
`CHARLES BARTON BOLLFRASS
`
`-- - -- -X
`
`Plaintiff,
`
`12 C
`
`. 6648
`
`(LLS)
`
`against
`
`MEMORANDUM AND ORDER
`
`WARNER MUSIC GROUP CORP.,
`
`Defendant.
`
`-
`
`---X
`
`Plaintiff Charles Bollfrass alleges that a song published
`
`by
`
`fendant Warner Music Group Corp.
`
`("Warner" )
`
`infringes his
`
`copyright on his screenplay,
`
`in violation of the Copyright Act
`
`of 1976, 17 U.S.C. §§ 101 et
`- -..~--"'
`
`and that Warner has compet
`
`unfairly by distributing the infringing song. Defendant moves
`
`to dismiss Bollfrass' complaint, and for costs and attorney's
`
`fees.
`
`On a motion to dismiss, the court "must accept as true all
`
`of
`
`the factual allegations set out
`
`in pIa
`
`iff's complaint,
`
`draw
`
`inferences
`
`from
`
`those allegations
`
`in
`
`the
`
`light most
`
`favorable to plaintiff
`
`f
`
`and construe the complaint 1
`
`ly, /I
`
`Inc. f
`e
`Rescuecom
`---------- •. ~~----.---.~~------
`
`562 F. 3d 123 f
`
`127
`
`(2d Cir.
`
`2009)
`
`f
`
`and should dismiss the complaint if it does not \\contain
`
`sufficient factual matter, accepted as true,
`
`to
`
`\ state a claim
`
`to relief that is plausible on its face.'" Ashcroft v.
`
`I
`
`129 S. Ct. 1937,
`
`1949
`
`(2009) f
`
`Bell Atl.
`
`v.
`
`1
`
`

`

`Case 1:12-cv-06648-LLS Document 13 Filed 04/02/13 Page 2 of 9
`
`Copyright
`
`The
`
`complaint
`
`alleges
`
`that
`
`"Panspermia/ExoGenesis, "
`
`Bollfrass'
`
`screenplay,
`
`and
`
`"Exogenesis: Symphony, "
`
`the
`
`song
`
`published by Warner,
`
`1
`
`are both stories of
`
`" (i) humanity's
`
`impending demise as a resul t of planetary breakdown,
`
`(ii)
`
`the
`
`use of astronauts and space
`
`travel
`
`to stave off humanity's
`
`demise by spreading human life to unpopulated planets, and (iii)
`
`the astronauts' /protagonists' realization that their actions are
`
`merely part of a
`
`larger cycle
`
`they have been predestined to
`
`undertake." Compl. ~~ 6, 12.
`
`"Panspermia/ExoGenesis"
`
`is a screenplay for a
`
`"cinematic
`
`science fiction
`
`rock opera," see Compl.
`
`~ 5,
`
`that
`
`includes
`
`characters, dialog, plot development,
`
`and stage and camera
`
`instruction.
`
`The screenplay does not contain any music.
`
`See
`
`Reiner Decl. Ex. A.
`
`"Exogenesis: Symphony" is a
`
`three-movement song. Although
`
`the online
`
`liner notes of "Exogenesis: Symphony" describe a
`
`story told by the song,
`
`the song lyrics are sparse and contain
`
`no discernible narrative.
`
`"Exogenesis: Symphony" has no dialog
`
`or characters. See rd. Ex. C.
`
`ipanspermia and exogenesis are related theories, not unique to these works,
`that life originated elsewhere in the universe and was spread to Earth, see
`Wikipedia, Panspermia, http://en.wikipedia.org/wiki/Panspermia (March 11,
`2013, 16:35 EST).
`
`2
`
`-----------------------------------------------------------------~--~------.---- --".
`
`

`

`Case 1:12-cv-06648-LLS Document 13 Filed 04/02/13 Page 3 of 9
`
`To succeed in his copyright infringement claim, Bollfrass
`
`must show copying by Warner, see Reyher v. Children's Television
`
`Workshop, 533 F.2d 87, 90
`
`(2d Cir. 1976), cert. denied, 429 U.S.
`
`980 (1976), which can be "proved by circumstantial evidence of
`
`access to the copyrighted work and substantial similarities as
`
`to protectible material in the two works." Reyher, 533 F.2d at
`
`90.
`
`Whether any similarities between two works are protectible
`
`is a question of
`
`law
`
`that can be
`
`resolved on a motion
`
`to
`
`dismiss. Peter F. Gaito Architecture, LLC v. Simone Dev. Corp.,
`
`602 F. 3d 57, 63 -64
`
`(2d Cir. 2010).
`
`"It is an axiom of copyright
`
`law that the protection granted to a copyrightable work extends
`
`only to the particular expression of an idea and never to the
`
`idea itself." Reyher, 533 F.2d at 90, citing Mazer v. Stein, 347
`
`U.S. 201, 217
`
`(1954) and Baker v. Selden, 101 U.S. 99, 102-103
`
`(1880) .
`
`This axiom has been codified in section 102(b) of the
`
`Copyright Act, which provides that "In no case does copyright
`
`protection for an original work of authorship extend to any
`
`idea, procedure, process, system, method of operation, concept,
`
`principle, or discovery, regardless of the form in which it is
`
`described, explained, illustrated or embodied in such work."
`
`17
`
`U.S.C. § 102(b)
`
`Bollfrass
`
`argues
`
`that
`
`"Exogenesis:
`
`Symphony"
`
`is
`
`substantially similar to "Panspermia/ExoGensis" because the two
`
`3
`
`

`

`Case 1:12-cv-06648-LLS Document 13 Filed 04/02/13 Page 4 of 9
`
`works have similar plots of planetary breakdown and the use of
`
`astronauts and space travel in the attempt to spread human life
`
`to other planets.
`
`A plot may be afforded copyright protection without running
`
`afoul of
`
`the maxim
`
`that
`
`ideas are not copyrightable.
`
`See
`
`Nichols v. Universal Pictures Corp., 45 F.2d 119, 121
`
`(2d Cir.
`
`1930), cert. denied, 282 U.S. 902
`
`(1931)
`
`But the infringement
`
`occurs only when
`
`the
`
`telling of
`
`the story
`
`that
`
`is,
`
`the
`
`expression of
`
`the
`
`idea
`
`is substantially similar
`
`to
`
`the
`
`expression of
`
`that
`
`idea
`
`in a protected work.
`
`Cf. Dymow v.
`
`Bolton,
`
`11F.2d 690,
`
`691
`
`(2d Cir.
`
`1926)
`
`("[CJopyright
`
`law
`
`protects the means of expressing an idea; and it is as near the
`
`whole truth as generalization can usually reach that,
`
`if the
`
`same idea can be expressed in a plurality of totally different
`
`manners,
`
`a
`
`plurality of
`
`copyrights may
`
`result,
`
`and
`
`no
`
`infringement will exist.")
`
`A similar plot does not infringe if
`
`the similarity is only at general levels of abstraction, because
`
`then it is the ideas that are similar, and not the way they are
`
`expressed:
`
`Upon any work, and especially upon a play, a
`great
`number of patterns of
`increasing
`generality will fit equally well, as more
`and more of the
`incident is left out. The
`last may perhaps be no more
`than the most
`general statement of what the play is about,
`and at
`times might consist only of
`its
`ti tIe; but there is a point in this series
`of abstractions where
`they are no
`longer
`
`4
`
`the playwright
`since otherwise
`protected,
`could prevent
`the use of his
`'ideas'
`to
`which,
`apart
`fro
`
`

`

`Case 1:12-cv-06648-LLS Document 13 Filed 04/02/13 Page 5 of 9
`
`my
`Ap
`You stole my overture
`in God's program
`Oh I can't escape
`Who are we?
`are we?
`When are we?
`Why are we?
`Who are we?
`Where are we?
`Why, why, why?
`I can't forgive you
`I can't forget you
`Who are we?
`Where are we?
`are we?
`Why are we in here?
`Who are we?
`are we?
`are we?
`Why are we in
`
`?
`
`Part
`
`2
`
`Cross-
`
`se above the c
`And wade through toxic clouds
`Breach the outer
`re
`The edge of
`1 our fears
`Rest with you
`We are count
`It's up to you
`to the stars
`Spread, our
`You must rescue us all
`Tell us, tell us your final wish?
`Now we know you can never return
`Tell us, t
`1 us your final wi
`?
`We will tell it to the world
`
`on you
`
`Let's start over again
`Why can't we start it over again
`Just let us start it over again
`And we'll
`good
`This time we'll get it,
`
`it
`
`6
`
`.........~------------------------.
`
`
`

`

`Case 1:12-cv-06648-LLS Document 13 Filed 04/02/13 Page 6 of 9
`
`It's our last chance to forgive ourselves
`
`Reiner Decl. Ex. C.
`
`Music,
`
`from
`
`its
`
`lyrics,
`
`cannot
`
`infringe on
`
`the
`
`copyright
`
`a written work. Because the lyrics of "Exogenesis:
`
`Symphony" do not express a plot,
`
`they do not
`
`infringe on
`
`"
`
`rmia: ExoGenesis.H
`
`The online liner notes describe a
`
`plot, but one that is far too abstract and general to infringe
`
`on Bollfrass' copyright.
`
`Thus, Bollfrass fails
`
`to state a
`
`claim
`
`for copyright
`
`infringement, and
`
`smissal of count one of
`
`the compl
`
`is
`
`granted.
`
`Unfair
`
`ition
`
`Bollfrass alleges that Warner is 1 iable for unfair trade
`
`practices and unfair competition for "publ ishing, selling, and
`
`otherwise marketing" "Exogenesis: Symphony. II Compl.
`
`~1 23.
`
`The Copyright Act provides that:
`
`[A]ll
`
`that are
`legal or equitable rights
`lent to any of
`the exclusive rights
`the general
`within
`scope of copyright as
`specified
`by
`section
`106
`in works
`of
`that are
`fixed
`in a
`tangible
`authorship
`medium of expression and come within
`the
`subj ect matter
`copyright as specified by
`sections 102 and 103
`are governed
`exclusive
`by this title.
`
`17 U.S.C.
`
`§ 301(a).
`
`Section 106 affords a copyright owner the
`
`exclusi ve right "to distribute copies or phonorec
`
`of
`
`the
`
`7
`
`

`

`Case 1:12-cv-06648-LLS Document 13 Filed 04/02/13 Page 7 of 9
`
`copyrighted work to the public by sale or ot
`
`transfer of
`
`ownership, or by rental, lease, or 1
`
`/I
`
`The subj ect matter of Boll
`
`s'
`
`air
`
`i tion claim
`
`II
`
`ls squarely within
`
`ect matter of
`
`the copyright
`
`laws,lI Mu::er v. Twentieth
`
`. , 794 F.Supp.2d
`
`429, 448
`
`(S.D.N. Y. 2001)
`
`(citations omitt
`
`).
`
`Bo 11 f r ass' cIa i m
`
`for unfair competi tion
`
`on Warner's distribution of
`
`the a:leged:y inf
`
`song
`
`is
`
`there
`
`pyeempted by
`
`the
`
`Copyright Act.
`
`Count two of the
`
`is
`
`smis
`
`Costs
`
`'s Fees
`
`Section 505 of
`
`Act pyovides:
`
`1 action under this ti t:e,
`In any c
`the
`the
`i
`s
`scretion may
`allow
`court
`recovery of full costs by oy against any
`party
`r
`than
`United States or an
`thereof.
`Except
`as
`otherwise
`officer
`provi
`this title, the court may also
`a
`award
`e attorney's
`fee
`to
`the
`as part of the costs.
`iling
`
`17 U.S.C. § 505.
`
`The
`
`Court
`
`made clear that defendants may
`
`prevailing
`
`ies for the puyposes of § 505.
`
`See
`
`v.
`
`Inc., 510 U.S. 517, 534
`----~~---
`
`(1994) ("?revailing
`
`aintiffs
`
`and
`
`ing defendants are to be tyeated alike
`
`. ")
`
`Costs
`
`at
`
`'s
`
`are awarded
`
`to pyevailing
`
`ies
`
`under § 505 as a matter of the court's equitab:e
`
`scyet
`
`8
`
`....... ----..-~~-----•...- -----------------------­
`
`

`

`Case 1:12-cv-06648-LLS Document 13 Filed 04/02/13 Page 8 of 9
`
`See Medforms
`
`Inc. v.
`
`thcare
`
`. Solut
`
`Inc., 290 F.3d
`
`98, 117
`
`(2d
`
`r. 2002)
`
`"When determining whether to award
`
`attorneys fees, dist ct courts may consider such factors as (1)
`
`frivolousness of
`
`the non-prevailing party's claims or
`
`defenses;
`
`(2)
`
`party's motivation;
`
`(3) whether the claims or
`
`defenses were objectively unreasonable; and
`
`(4) compensation and
`
`deterrence."
`
`--~--~~~~--------~---------~-------~--~---
`
`v. Media
`
`Product
`
`Inc., 603 F. 3d
`
`135, 144
`
`(2d Cir. 2010), cert. denied, 131 S.Ct. 656
`
`(2010),
`
`cit
`
`---=--------"­
`
`, 510 U.S. 534 n.19.
`
`Warner argues
`
`that it is entitled to its fees because
`
`Boll
`
`ss'
`
`cIa
`
`is objectively unreasonable
`
`and
`
`to deter
`
`potential plaintiffs from bringing such meritless cases. Warner
`
`also speculates
`
`that, because Bollfrass wait
`
`until nearly
`
`years after "
`
`sis: Symphony" was publi
`
`to file
`
`this claim, he was motivated by a desire to piggyback on the
`
`publicity for a recent follow-up album published by Warner.
`
`The obj ective unreasonableness of a claim or defense is
`
`"substantial weight"
`
`in this Circuit.
`
`lVlatthew Bender &
`
`Co.
`
`Inc. v. West Publ' Co., 240 F.3d 116, 122
`
`(2d Cir. 2001).
`
`---~~--------~~---------~~-----
`
`"The grant of a motion to dismiss does not in itself render a
`
`claim unreasonable."
`
`Jovani Fashion Ltd. v. Cinderlla Divine
`
`Inc., 820 F.Supp.2d 569,
`
`573
`
`(S.D.N.Y. 2011).
`
`A claim is
`
`objectively unreasonable if it is "cl
`
`y without merit or
`
`9
`
`

`

`Case 1:12-cv-06648-LLS Document 13 Filed 04/02/13 Page 9 of 9
`
`otherwise patently devoid of
`
`legal or factual basis.ff
`
`Id.
`
`(quotations and citations omitted) .
`
`Bollfrass' claims are insufficient, and have practically no
`
`legal or factual basis. Nevertheless, methods of expression of
`
`plots have received copyright protection, and it would be unduly
`
`cri tical to characteri ze the complaint as frivolous. Although
`
`an
`
`inference of
`
`improper motivation could be drawn
`
`from
`
`the
`
`timing of the complaint,
`
`there is no evidence that Boll
`
`s
`
`brought this action with any such motivation.
`
`As
`
`a matter of discretion, on
`
`a close call, Warner's
`
`application for attorney's fees is denied.
`
`Conclusion
`
`Defendant's motion
`
`to
`
`dismiss
`
`is
`
`granted
`
`and
`
`its
`
`application for
`
`the award of attorney's
`
`fees and costs
`
`is
`
`denied.
`
`The Clerk shall enter judgment accordingly.
`
`So ordered.
`
`
`Dated: New York, NY
`
`April 1, 2013
`
`l.~ L\silt.;-&.
`
`LOUIS L. STANTON
`U.S.D.J.
`
`10
`
`
`

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