Case 1:18-cv-09775-AT-SDA Document 120 Filed 11/12/19 Page 1 of 15
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`Plaintiff,
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`USDC SDNY
`DOCUMENT
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`ELECTRONICALLY FILED
`DOC #:
`DATE FILED: 11/12/2019
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`18 Civ. 9775 (AT)
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`ORDER
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`-against-
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`LEANDER C. PICKETT,
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`MIGOS TOURING, INC., CAPITOL
`RECORDS, LLC, QUALITY CONTROL
`MUSIC, LLC, QUAVIOUS MARSHALL p/k/a
`QUAVO, KIARI CEPHUS p/k/a OFFSET,
`KIRSNICK BALL p/k/a TAKEOFF, JOSHUA
`PARKER p/k/a OG PARKER and GRANT
`DECOUTO p/k/a DEKO,
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`Defendants.
`ANALISA TORRES, District Judge:
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`Plaintiff, Leander C. Pickett, a musical artist, songwriter, and producer, brings this
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`copyright infringement action against Defendants, Migos Touring, Inc. (“Migos”), Capitol
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`Records, LLC (“Capitol”), Quality Control Music, LLC (“Quality Control”), Quavious Marshall
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`p/k/a Quavo, Kiari Cephus p/k/a Offset, Kirsnick Ball p/k/a Takeoff, Joshua Parker p/k/a OG
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`Parker, and Grant Decouto p/k/a Deko. In the second amended complaint, Plaintiff alleges that
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`Defendant Migos’ musical composition “Walk It Talk It,” infringes on Plaintiff’s musical
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`composition “Walk It Like I Talk It.” Complaint ¶¶ 6, 10–16, ECF No. 42. Defendant Quality
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`Control moves to dismiss this action for lack of personal jurisdiction under Federal Rule of Civil
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`Procedure 12(b)(2). All Defendants move to dismiss for failure to state a claim under Rule
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`12(b)(6). ECF No. 65. For the reasons stated below, Quality Control’s motion is DENIED, and
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`Defendants’ motion is GRANTED.
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`BACKGROUND
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`The following facts are taken from the complaint and “are presumed to be true for
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`purposes of considering a motion to dismiss for failure to state a claim.” Fin. Guar. Ins. Co. v.
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`Case 1:18-cv-09775-AT-SDA Document 120 Filed 11/12/19 Page 2 of 15
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`Putnam Advisory Co., LLC, 783 F.3d 395, 398 (2d Cir. 2015); see also McDonald v. West, 138
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`F. Supp. 3d 448, 452 (S.D.N.Y. 2015), aff’d, 669 F. App’x 59 (2d Cir. 2016). Plaintiff, Leander
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`C. Pickett, is a musical artist, songwriter, and producer residing in Charlotte, North Carolina. He
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`is author of the music and lyrics of the song “Walk It Like I Talk It” (“Plaintiff’s Work”).
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`Complaint ¶¶ 6, 17. In 2007, Plaintiff recorded Plaintiff’s Work and, along with non-party DJ
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`Folk, released it on Plaintiff’s 2008 mixtape, “It’s Like a Movie.” Id. ¶¶ 17, 20. At the time,
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`non-party CTE Music employed non-parties DJ Folk and Kevin “Coach K” Lee. Id. ¶ 22. DJ
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`Folk sold the mixtape and played it for several individuals including Lee. Id. ¶ 23. Lee obtained
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`a copy of Plaintiff’s Work from DJ Folk. Id. ¶ 25.
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`In 2013, Lee and his partner, Pierre “Pee” Thomas founded the Atlanta-based record
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`label, Defendant Quality Control. Id. Quality Control’s premier artists are Migos, a musical
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`group, and its constituent members, Defendants Quavious Marshall p/k/a Quavo, Kiari Cephus
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`p/k/a Offset, and Kirsnick Ball p/k/a Takeoff. Id. ¶¶ 7, 26. Capitol is Quality Control’s
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`distributor. Id. ¶ 26. In January 2018, nearly a decade after Plaintiff released the mixtape, Migos
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`released “Walk It Talk It” (“Defendant’s Work”), the third single from the group’s third studio
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`album, “Culture II.” Id. ¶¶ 24, 33. Quality Control employed Defendant producers Joshua
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`Parker p/k/a OG Parker and Grant Decouto p/k/a Deko, who musically produced Defendant’s
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`Work. Id. ¶ 29.
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`Plaintiff claims that, without his consent, Defendants reproduced, distributed, and/or
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`publically performed a substantial portion of Plaintiff’s Work in Defendant’s Work. Id. ¶ 24.
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`He further claims that Quality Control, Migos, Capitol, Parker, and Decouto “worked in concert
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`to distribute Defendant’s Work in digital and online markets nationwide, including New York.”
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`Id. ¶ 29.
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`Case 1:18-cv-09775-AT-SDA Document 120 Filed 11/12/19 Page 3 of 15
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`In March 2018, Plaintiff applied for and received a certificate of registration (the
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`“Certificate”) from the United States Copyright Office for “Walk It Like I Talk It.” Id. ¶ 18.
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`Certificate, ECF No. 42-1.1 On June 6, 2018, Plaintiff provided written notice to Defendants that
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`Defendant’s Work infringed on Plaintiff’s Work and demanded that Defendants immediately
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`cease and desist from any further use of Plaintiff’s Work. Complaint ¶ 32.
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`On October 24, 2018, Plaintiff commenced this copyright infringement action. ECF No.
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`1. Plaintiff filed his first amended complaint on December 17, 2018, ECF No. 9, and a second
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`amended complaint on March 26, 2019, ECF No. 42, adding Defendants Marshall, Cephus, Ball,
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`Parker, and Decouto. Defendants now move to dismiss Plaintiff’s second amended complaint.
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`ECF No. 65.
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`DISCUSSION
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`I.
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`Legal Standard
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`A. Personal Jurisdiction
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`“On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2), the
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`plaintiff bears the burden of establishing personal jurisdiction.” BWP Media USA Inc. v.
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`Hollywood Fan Sites, LLC, 69 F. Supp. 3d 342, 349 (S.D.N.Y. 2014) (citing MacDermid, Inc. v.
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`Deiter, 702 F.3d 725, 727 (2d Cir. 2012)). When the jurisdictional facts are in dispute, “the
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`district court may consider materials outside the pleadings, including affidavits and other written
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`materials.” Jonas v. Estate of Leven, 116 F. Supp. 3d 314, 323 (S.D.N.Y. 2015). “Because the
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`Court has not held an evidentiary hearing on this issue, Plaintiff need only make a prima facie
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`showing of jurisdiction through affidavits and supporting materials to satisfy this burden.”
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`1 Plaintiff alleges that he “registered with the [United States] Copyright Office his Musical Composition and Sound
`Recordings in a single application, Registration No. SR 816-366.” Complaint ¶ 18. The Certificate, however, states
`that the registration is for the “Sound Recording,” not the “Musical Composition and Sound Recordings.”
`Certificate.
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`3
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`Case 1:18-cv-09775-AT-SDA Document 120 Filed 11/12/19 Page 4 of 15
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`Golden Archer Investments, LLC v. Skynet Fin. Sys., No. 11 Civ. 3673, 2012 WL 123989, at *3
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`(S.D.N.Y. Jan. 3, 2012).
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`“District courts deciding a motion to dismiss for lack of personal jurisdiction engage in a
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`two-part analysis, first determining whether there is a statutory basis for exercising personal
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`jurisdiction and second deciding whether the exercise of jurisdiction comports with due process.”
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`BWP Media, 69 F. Supp. 3d at 349 (internal quotation marks and citation omitted). In a federal
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`question case, the district court “applies the forum state’s personal jurisdiction rules, unless a
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`federal statute specifically provides for national service of process.” Id. at 350 (internal
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`quotation marks, alteration, and citation omitted). Jurisdiction comports with due process if “the
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`defendant has certain minimum contacts with the State such that maintenance of the suit does not
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`offend traditional notions of fair play and substantial justice.” Daimler AG v. Bauman, 571 U.S.
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`117, 126 (2014) (alterations, internal quotation marks, and citation omitted).
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`B. Failure to State a Claim
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`To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient factual
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`allegations in the complaint that, accepted as true, “state a claim to relief that is plausible on its
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`face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
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`544, 570 (2007) (internal quotation marks omitted)). A plaintiff is not required to provide
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`“detailed factual allegations” in the complaint, but must assert “more than labels and
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`conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
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`Twombly, 550 U.S. at 555. Ultimately, the facts pleaded in the complaint “must be enough to
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`raise a right to relief above the speculative level.” Id. The Court must accept the allegations in
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`the pleadings as true and draw all reasonable inferences in favor of the non-movant. See West,
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`138 F. Supp. 3d at 452.
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`II.
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`Analysis
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`A. Personal Jurisdiction Over Quality Control
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`Because it is improper for the Court to opine on the merits of a case where it lacks
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`jurisdiction, the Court first addresses whether it has personal jurisdiction over Quality Control.
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`See, e.g., Laydon v. Mizuho Bank, Ltd., No. 12 Civ. 3419, 2015 WL 1499185, at *7 (S.D.N.Y.
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`Mar. 31, 2015); Arrowsmith v. United Press Int’l, 320 F.2d 219, 221 (2d Cir. 1963) (“[L]ogic
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`compel[s] initial consideration of the issue of jurisdiction over the defendant—a court without
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`such jurisdiction lacks power to dismiss a complaint for failure to state a claim.”).
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`The Copyright Act does not provide for nationwide service of process. Therefore, this
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`Court looks to New York law to determine whether it has personal jurisdiction over Quality
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`Control. See Royalty Network Inc. v. Dishant.com, LLC, 638 F. Supp. 2d 410, 417 (S.D.N.Y.
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`2009). Plaintiff argues that there is a statutory basis for specific personal jurisdiction over
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`Quality Control, a Georgia limited liability company with a principal place of business in
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`Atlanta, Georgia, Complaint ¶ 9, pursuant to N.Y. CPLR § 302(a)(1), which provides that a court
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`may exercise personal jurisdiction over a non-domiciliary who “transacts any business within the
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`state or contracts anywhere to supply goods or services in the state.” Pl. Mem. at 29, ECF No.
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`74.2
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`A plaintiff makes a prima facie showing of jurisdiction under § 302(a)(1) by establishing
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`“first, that defendant transacted business within the state of New York, and second, that this
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`action arises from that transaction of business.” Royalty, 638 F. Supp. 2d at 417 (citation
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`omitted). “[A] party transacts business within the state when it purposefully avails itself of the
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`privilege of conducting activities within New York.” Id. at 417–18 (quotation marks and citation
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`2 Pincites to Plaintiff’s Memorandum of Law refer to the ECF-assigned page number.
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`omitted). Section 302(a) is a “single act statute” wherein “proof of one transaction in New York
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`is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as
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`the defendant's activities [] were purposeful and there is a substantial relationship between the
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`transaction and the claim asserted.” Id. at 418 (citation omitted).
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`Plaintiff contends that Quality Control is subject to specific jurisdiction in New York
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`based on (1) Quality Control’s having entered into a recording and distribution agreement with
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`Capitol, a company with its principal place of business in New York, and (2) Migos’ performing
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`of Defendant’s Work in New York City as part of the group’s tour. Pl. Mem. at 27–28; see also
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`Complaint ¶¶ 4, 16. Plaintiff argues that Quality Control “transacted business in New York by
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`projecting themselves into New York to engage in a sustained and substantial transaction of
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`business related to the infringement of [P]laintiff’s work,” Pl. Mem. at 30, including by entering
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`a joint venture with two New York based companies, including Capitol, and “curating” a tour
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`with Grammy award winning artist Drake, which featured six consecutive performances in New
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`York, where Defendant’s Work was the only song shared by Migos and Drake, id. at 28.
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`Plaintiff argues that “the tour was created around the [Defendant’s Work].” Id. at 30.
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`Defendants contend that Plaintiff has failed to establish personal jurisdiction over Quality
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`Control under either New York’s long-arm statute or the Due Process Clause. Def. Mem. at 21,
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`ECF No. 66. Although Defendants concede that Quality Control “entered an agreement . . . with
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`Capitol,” they note that the “agreement does not specifically provide for any distribution, public
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`performance or other exploitation in New York.” Def. Mem. at 20.
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`Quality Control’s contract with Capitol, on its own, is “not sufficient to constitute the
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`transaction of business under” § 302(a)(1). See Pieczenik v. Cambridge Antibody Tech. Grp.,
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`No. 03 Civ. 6336, 2004 WL 527045, at *4 (S.D.N.Y. Mar. 16, 2004) (quotation marks and
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`citation omitted). Plaintiff, however, alleges that Quality Control transacted business in New
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`York beyond the mere signing of an agreement with Capitol. He alleges that Quality Control
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`worked in concert with the other Defendants to “distribute the infringing work in digital and
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`online markets nationwide, including New York,” Complaint ¶ 29, and that Migos, Quality
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`Control’s “premier artists,” id. ¶ 26, performed Defendant’s Work in New York, id. ¶ 32, for six
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`consecutive dates, where Defendant’s Work was the only song shared by Migos and Drake, Pl.
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`Mem. at 28, 30.
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`Although Quality Control and Capitol’s agreement may not specifically provide for any
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`distribution, public performance or other exploitation in New York, Defendants cannot dispute
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`that distribution and public performance did in fact occur there. That Quality Control arranged
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`for the distribution and performance of Defendant’s Work without being physically present in
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`New York does not mean that Quality Control did not “purposefully avail[] itself of the privilege
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`of conducting activities within New York.” Royalty Network Inc., 638 F. Supp. 2d at 417–18
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`(citation omitted); see also Golden Archer Investments, 2012 WL 123989, at *4 (“When a
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`defendant’s remote communications effectuate some purposeful business in New York, personal
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`jurisdiction will be found.”). The Court holds that Plaintiff has pleaded facts which support a
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`prima facie showing of jurisdiction under § 302(a)(1) because Quality Control transacted
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`business here by arranging for the distribution and performance of Defendant’s Work within the
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`state of New York, and that Plaintiff’s action for copyright infringement, arises from that
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`transaction of business.
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`Having determined that jurisdiction over Quality Control is permitted under New York’s
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`long-arm statute, § 302(a)(1), the Court must decide whether the exercise of jurisdiction
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`comports with due process. BWP Media, 69 F. Supp. 3d at 349. The New York long arm
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`statute, however, “does not extend in all respects to the constitutional limits.” Chatwal Hotels &
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`Resorts LLC v. Dollywood Co., 90 F. Supp. 3d 97, 108 (S.D.N.Y. 2015) (quoting Licci ex rel.
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`Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 60–61 (2d Cir. 2012)). “Because the New
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`York long-arm statute is more restrictive than the federal due process requirements, by virtue of
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`satisfying the long-arm statute the minimum contacts and reasonableness requirements of due
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`process have similarly been met.” Id.
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`Accordingly, the Court finds that it has personal jurisdiction over Quality Control.
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`Defendant Quality Control’s motion to dismiss for lack personal jurisdiction is, therefore,
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`DENIED.
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`B. Failure to State a Claim
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`Having addressed the jurisdictional question, the Court now turns to the merits of
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`Defendants’ motion to dismiss. Defendants argue that Plaintiff’s claim is barred because
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`“Plaintiff has not satisfied the statutory mandate that he register a copyright in his musical
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`composition with the United States Copyright Office before filing an infringement suit.” Def.
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`Mem. at 2. Even if Plaintiff’s claim were not statutorily barred, Defendants contend that the
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`only alleged similarity between the two works is the lyric “walk it like I talk it,” and that this
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`“short, prosaic phrase is” unprotectable, and cannot form the basis of a copyright infringement
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`claim. Id. at 1. Because the Court agrees that the allegations in the complaint fail to “raise a
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`right to relief above the speculative level,” Twombly, 550 U.S. at 555, Defendants’ motion to
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`dismiss is GRANTED.
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`1. Copyright Registration
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`Pursuant to the Copyright Act, “no civil action for infringement of the copyright in any
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`United States work shall be instituted until preregistration or registration of the copyright claim
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`Case 1:18-cv-09775-AT-SDA Document 120 Filed 11/12/19 Page 9 of 15
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`has been made in accordance with this title.” 17 U.S.C. § 411(a). The Supreme Court recently
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`held that a plaintiff must “apply for registration and receive the Copyright Office’s decision on
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`[the] application before instituting suit.” Fourth Estate Pub. Benefit Corp. v. Wall-Street.com,
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`LLC, 139 S. Ct. 881, 891 (2019).
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`Plaintiff alleges that he obtained a certificate of copyright registration for his “[m]usical
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`[c]omposition, ‘Walk It Like I Talk It.’” Complaint ¶ 18. Plaintiff contends that he registered
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`his musical composition and sound recording “in a single application.” Complaint ¶ 18.
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`Although the Court must accept the allegations in the pleadings as true and draw all reasonable
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`inferences in favor of the non-movant, see West, 138 F. Supp. 3d at 452, when a document relied
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`on in the complaint contradicts allegations in the complaint, the document, not the allegations,
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`controls, 2002 Lawrence R. Buchalter Alaska Tr. v. Philadelphia Fin. Life Assur. Co., 96 F.
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`Supp. 3d 182, 199 (S.D.N.Y. 2015).
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`“Copyright protection extends to two distinct aspects of music: (1) the musical
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`composition, which is itself usually composed of two distinct aspects—music and lyrics; and (2)
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`the physical embodiment of a particular performance of the musical composition, usually in the
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`form of a master recording.” Ulloa v. Universal Music & Video Distribution Corp., 303 F. Supp.
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`2d 409, 412 (S.D.N.Y. 2004) (quotation marks and citation omitted). Here, Plaintiff’s complaint
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`is not that Defendants incorporated “the physical embodiment,” or sound recording of Plaintiff’s
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`Work. Rather, Plaintiff argues that Defendants infringed on his “[m]usical [c]omposition,”
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`Complaint ¶ 19—in other words, the “music and lyrics,” Ulloa, 303 F. Supp. 2d at 412, of
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`Plaintiff’s Work. As is clear from the Certificate, Plaintiff did not obtain a certificate of
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`registration for his musical composition. See Certificate. As such, Plaintiff has failed to satisfy
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`the requirement that he register his musical composition prior to initiating this action. See
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`Fourth Estate Pub. Benefit Corp., 139 S. Ct. at 891.
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`In his opposition brief, Plaintiff asserts that he sought to correct errors in his original
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`copyright application, including amending the Certificate to cover the music composition aspect
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`of his work along with the sound recording aspect. Pl. Mem. at 26. Plaintiff also states that the
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`U.S. Copyright Office advised him that “the deposit of Plaintiff’s original work via MP3
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`recording covers the entire original work – sound recording and musical composition.” Id.
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`Plaintiff, however, provides no evidence to support this claim, which does not appear in the
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`complaint. Even assuming that Plaintiff were able to amend the registration to cover the musical
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`composition aspect of his work, this action would still warrant dismissal. As courts in this
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`district have held, a copyright infringement claim will be dismissed where the allegedly infringed
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`work, in this case, the musical composition, was not registered at the time the original complaint
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`was filed. See, e.g., Malibu Media, LLC v. Doe, No. 18 Civ. 10956, 2019 WL 1454317, at *1
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`(S.D.N.Y. Apr. 2, 2019) (dismissing complaint where plaintiff filed suit before copyright was
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`registered and holding that “a prematurely filed suit must be dismissed notwithstanding a
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`plaintiff’s post-registration amendment”); Pablo Chavez v. British Broad. Corp., No. 17 Civ.
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`572, 2019 WL 2250446, at *3 (S.D.N.Y. May 23, 2019) (“Because the plaintiff has failed to
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`allege that he owns a valid, fully registered copyright over the allegedly infringed music and his
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`performance in the [v]ideo, his copyright claim fails.”).
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`Because Plaintiff did not register a musical composition before initiating this lawsuit, the
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`complaint must be dismissed.
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`2. Substantial Similarity
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`Even if Plaintiff were not statutorily barred from bringing this action, dismissal would be
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`warranted because there is no protectable similarity between the two works at issue. “To state a
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`claim for copyright infringement, a plaintiff must plausibly allege facts that demonstrate (1)
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`ownership of a valid copyright, and (2) the defendants’ copying of constituent, original elements
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`of plaintiff’s copyrighted work.” West, 138 F. Supp. 3d at 453. “To demonstrate the element of
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`unauthorized copying, Plaintiff must make two showings. First, he must show that Defendants
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`‘actually copied’ his work, and second, he must show substantial similarity between the two
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`works such that the copying ‘amounts to an improper or unlawful appropriation.’” Id. (quoting
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`Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir. 2003). “Two works are not
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`substantially similar as a matter of law if the similarity between two works concerns only non-
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`copyrightable elements of the plaintiff’s work, or if no reasonable jury, properly instructed, could
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`find that the two works are substantially similar.” Id. at 454. (alterations, quotation marks, and
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`citation omitted). Plaintiff’s claim fails to meet the substantial similarity prong of unauthorized
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`copying.
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`“District courts in this circuit may evaluate a question of substantial similarity at the
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`motion to dismiss stage under Rule 12(b)(6).” Id. at 454 (citing Peter F. Gaito Architecture,
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`LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010)). “When evaluating substantial
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`similarity on a motion to dismiss, no discovery or fact-finding is typically necessary, because
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`what is required is only a visual or aural comparison of the works.” Id. (alterations, quotation
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`marks, and citation omitted). In a copyright infringement action, “the works themselves
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`supersede and control contrary descriptions of them” contained in the pleadings or elsewhere.
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`Peter F. Gaito Architecture, 602 F.3d at 64 (quotation marks omitted). “Courts in this district
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`regularly apply this rule in music copyright cases to listen to the songs at issue when evaluating a
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`motion to dismiss.” West, 138 F. Supp. 3d at 453. The two works at issue here, although not
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`attached to the complaint, are incorporated by reference and included in a declaration in support
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`of Defendants’ motion to dismiss. See Dickstein Declaration, ECF No. 67.
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`“[W]hen faced with works that have both protectible and unprotectible
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`elements, . . . [the Court] . . . must attempt to extract the unprotectible elements from [its]
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`consideration and ask whether the protectible elements, standing alone, are substantially similar.”
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`Peter F. Gaito Architecture, 602 F.3d at 66 (internal quotation marks and citation omitted). The
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`only meaningful similarity between Plaintiff’s Work and Defendant’s Work is that the lyrics
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`“walk it like I talk it” form each song’s chorus, or hook. See Def Mem. at 1; Pl. Mem. at 19.
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`Having carefully listened to the two songs, the Court concludes that the similarity between the
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`two works concerns only “unprotectible elements” of Plaintiff’s Work. See Peter F. Gaito
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`Architecture, 602 F.3d at 66.
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`“To qualify for copyright protection, a work must be original to the author.” Feist
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`Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). An original work is one that
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`“was independently created by the author” and “possesses at least some minimal degree of
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`creativity.” Id. The Copyright Office, and courts in this district, have repeatedly held that “short
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`phrases” such as “slogans” are not protectable. West, 138 F. Supp. 3d at 454 (“Short phrases,
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`including titles and slogans, rarely if ever exhibit sufficient originality to warrant copyright
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`protection. Longer phrases are also not protectable if they are common or cliché.” (internal
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`citation omitted)); TufAmerica, Inc. v. Diamond, 968 F. Supp. 2d 588, 602 (S.D.N.Y. 2013)
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`(“Common phrases are generally not susceptible to copyright protection.” (quotation marks
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`omitted)).
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`Case 1:18-cv-09775-AT-SDA Document 120 Filed 11/12/19 Page 13 of 15
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`Because songwriters must be free to borrow sayings and expressions from popular
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`culture, the Second Circuit and courts in this district have found that short and commonplace
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`phrases are not protectable, even when used as the title or repeated lyrics of a song, as is the case
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`here. See, e.g., Acujf-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 144 (2d Cir. 1998) (the
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`phrase “you’ve got to stand for something, or you’ll fall for anything” is too short and
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`commonplace to be protected by copyright, even when sung repeatedly in plaintiff’s song);
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`Boone v. Jackson, 206 F. App’x 30, 33 (2d Cir. 2006) (finding no infringement of repeated
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`phrase “holla back” because “common phrases are not protectable under copyright”); Edwards v.
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`Raymond, 22 F. Supp. 3d 293, 298–99 (S.D.N.Y. 2014) (granting motion to dismiss where court
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`found that the phrase “caught up,” was not protectable even though it was used in both the title
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`and chorus of both songs); see also Apps v. Universal Music Grp., Inc., 763 F. App’x 599, 600
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`(9th Cir. 2019) (finding no substantial similarity where “[t]he only lyrical commonality between
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`both songs is the phrase ‘I need to know now’” and there were “at least 11 songs pre-dating
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`[plaintiff’s] song that included this common phrase.”).
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`As in Apps, the term “walk it like I talk it,” and slight variations of it, has been regularly
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`used in several contexts. See Def. Mem. at 3–6 (noting 32 instances of the term, or slight
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`variations, being used in literature, music, and motion pictures, prior to the composition of
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`Plaintiff’s Work). The Court takes judicial notice of these 32 instances as they can be obtained
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`from widely available and reliable sources, the accuracy of which cannot reasonably be
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`questioned. See Fed. R. Evid. 201(b) (a court may take judicial notice of acts that are “not
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`subject to reasonable dispute” and that “can be accurately and readily determined from sources
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`whose accuracy cannot reasonably be questioned”); Poindexter v. Warner/Chappell Music Inc.,
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`No. 06 Civ. 3403, 2009 WL 302064, at *1 n.l (S.D.N.Y. Feb. 9, 2009) (“The Court takes judicial
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`Case 1:18-cv-09775-AT-SDA Document 120 Filed 11/12/19 Page 14 of 15
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`notice of the fact that the aforementioned titles appeared on The Persuaders’ first two albums
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`published in the 1970’s”), aff’d, 372 F. App’x 103 (2d Cir. 2010); Boarding Sch. Review, LLC v.
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`Delta Career Educ. Corp., No. 11 Civ. 8921, 2013 WL 6670584, at *1 n.1 (S.D.N.Y. Mar. 29,
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`2013) (taking judicial notice of four websites on motion to dismiss because courts in this Circuit
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`“generally ha[ve] the discretion to take judicial notice of internet material”).
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`Plaintiff alleges that he recorded Plaintiff’s Work in 2007. Complaint ¶ 20. But there are
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`multiple instances of the term “walk it like I talk it”, or variations of it, being used prior to 2007,
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`including by other rap and hip-hop artists. These include rap artist Paul Wall’s 2005 song titled
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`“March ‘n’ Step” featuring the repeated lyrics “walk it how you talk it / [y]ou gotta walk it like
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`you talk it,” Def. Mem. at 5, rap artist Young Jeezy’s 2006 song “3 A.M.” featuring the lyric “I
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`walk it how I talk it,” Def. Mem. at 6, and rap artist Wiz Khalifa’s 2007 song “Be Easy,”
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`featuring the lyric “walk it how I talk it so I talk it how I live it,” Def. Mem. at 6, among many
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`others.
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`The only similarity between the two works at issue, the lyrics “walk it like I talk it,” is
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`not original to the author and is, therefore, not protected by the copyright laws. See Feist, 499
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`U.S. at 345. Plaintiff has not plausibly alleged facts that demonstrate that Defendants copied
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`“original elements of plaintiff’s copyrighted work.” See West, 138 F. Supp. 3d at 453.
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`Accordingly, Defendants’ motion to dismiss for failure to state a claim is GRANTED.
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`Case 1:18-cv-09775-AT-SDA Document 120 Filed 11/12/19 Page 15 of 15
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`CONCLUSION
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`For the reasons stated above, Defendant Quality Control’s motion to dismiss this action
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`for lack of personal jurisdiction is DENIED and Defendants’ motion to dismiss for failure to
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`state a claim is GRANTED. The Clerk of Court is directed to terminate the motion at ECF No.
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`65.
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`SO ORDERED.
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`Dated: November 12, 2019
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`New York, New York
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