Case 1:18-cv-10387-PKC Document 62 Filed 12/05/19 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`NAZIM I. GUITY,
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`Plaintiff,
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`-against-
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`ANTHONY SANTOS, et al.,
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`Defendants.
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`CASTEL, U.S.D.J.
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` 18-cv-10387 (PKC)
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` OPINION
` AND ORDER
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`Plaintiff Nazim I. Guity (“Guity”) brings this action against Anthony Santos,
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`professionally known as Romeo Santos, (“Santos”), Sony Music Entertainment, Inc., Sony Music
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`Holdings, Inc., and Sony Corporation of America (collectively, “Sony”), Milton “Alcover”
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`Restituyo (“Alcover”), and We Loud, LLC, doing business as We Loud Studios, LLC and formerly
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`known as Los Mejores Studios (“We Loud”). Guity alleges that defendants recorded, released,
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`and profited from a song by Santos that infringed Guity’s copyrighted work. Santos and Sony
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`(“Movants”) move to dismiss the case under Rule 12(b)(6) for failure to state a claim. For the
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`reasons below, Movants’ motion to dismiss will be granted.
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`BACKGROUND
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`In 2011, Guity composed and authored a musical composition, entitled “Eres Mia”
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`(the “Guity Song”). (Compl. ¶ 10). At some later point, Guity hired defendants Alcover and We
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`Loud to assist in the creation of a master recording of the Guity Song. (Compl. ¶¶ 11–12). On
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`March 25, 2014, Guity was granted a copyright for the Guity Song. (Compl. ¶ 18).
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`“Contemporaneously with, and subsequent to” the recording of the Guity Song, Alcover and We
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`Loud worked with Santos to record a song also entitled “Eres Mia” (the “Santos Song”). (Compl.
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`Case 1:18-cv-10387-PKC Document 62 Filed 12/05/19 Page 2 of 12
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`¶¶ 15–16). Following the recording of the Santo Song, Santos worked with Sony to market and
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`commercially distribute this work. (Compl. ¶¶ 38–39). Guity alleges that the Santos Song
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`incorporates protected elements of and is so substantially similar to the Guity Song as to constitute
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`copyright infringement. (Compl. ¶¶ 20–21).
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`In the present action, Guity brings four claims: (1) copyright infringement based
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`on a failure to obtain a mechanical license and/or pay royalties (Compl. ¶¶ 22–34); (2) copyright
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`infringement based on defendants’ creation, distribution, and claim of ownership in a work that
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`infringed Guity’s protected work (Compl. ¶¶ 35–44); (3) civil conspiracy to commit copyright
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`infringement (Compl. ¶¶ 46–48); and (4) an accounting and constructive trust (Compl. ¶¶ 49–52).
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`Guity initially filed this action in the Eastern District of Pennsylvania. (Compl.
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`at 1). On September 26, 2018, Judge Michael M. Baylson ordered the action transferred to the
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`Southern District of New York pursuant to both 28 U.S.C. § 1404(a) and § 1406(a). (Order, Guity
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`v. Santos, No. 17-cv-3447 (E.D. Pa. Sept. 26, 2018) (Doc. 39)). On March 7, 2019, Santos and
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`Sony filed a motion to dismiss the complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P., (Defs.’
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`Mot. to Dismiss Pls.’ Compl. Pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. 53)),1 arguing that Guity’s
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`claims fail as a matter of law because, there is no substantial similarity between the Guity Song
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`and the Santos Song and therefore is no copyright infringement, (Mem. of Law in Supp. of Defs.’
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`Mot. to Dismiss Pls.’ Compl. at 3 (Doc. 54 at 3)).
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`RULE 12(b)(6) STANDARD
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`Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted
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`as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
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`1 Though named as defendants in the complaint, Alcover and We Loud have not appeared in this action and there is
`no indication that either has even been served. The time to serve these two defendants under Rule 4(m), Fed. R. Civ.
`P., long ago expired.
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`Case 1:18-cv-10387-PKC Document 62 Filed 12/05/19 Page 3 of 12
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`678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In assessing the
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`sufficiency of a pleading, a court must disregard legal conclusions, which are not entitled to the
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`presumption of truth. Id. Instead, the Court must examine the well-pleaded factual allegations,
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`which are accepted as true, and “determine whether they plausibly give rise to an entitlement to
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`relief.” Id. at 678–79. “Dismissal is appropriate when ‘it is clear from the face of the complaint,
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`and matters of which the court may take judicial notice, that the plaintiff’s claims are barred as a
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`matter of law.’” Parkcentral Global Hub Ltd. v. Porsche Auto. Holdings SE, 763 F.3d 198, 208–
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`09 (2d Cir. 2014) (quoting Conopco, Inc. v. Roll Int’l, 231 F.3d 82, 86 (2d Cir. 2000)).
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`“[T]he purpose of Federal Rule of Civil Procedure 12(b)(6) ‘is to test, in a
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`streamlined fashion, the formal sufficiency of the plaintiff’s statement of a claim for relief without
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`resolving a contest regarding its substantive merits.’” Halebian v. Berv, 644 F.3d 122, 130 (2d Cir.
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`2011) (quoting Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir.
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`2006)). A court reviewing a Rule 12(b)(6) motion “does not ordinarily look beyond the complaint
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`and attached documents in deciding a motion to dismiss brought under the rule.” Id. A court may,
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`however, “consider ‘any written instrument attached to [the complaint] as an exhibit or any
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`statements or documents incorporated in it by reference . . . and documents that the plaintiffs either
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`possessed or knew about and upon which they relied in bringing the suit.’” Stratte-McClure v.
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`Morgan Stanley, 776 F.3d 94, 100 (2d Cir. 2015) (first alteration in original) (quoting Rothman v.
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`Gregor, 220 F.3d 81, 88 (2d Cir. 2000)). As such, “[i]n copyright infringement actions, ‘the works
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`themselves supersede and control contrary descriptions of them.’” Peter F. Gaito Architecture,
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`LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010) (quoting Walker v. Time Life Films,
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`Inc., 784 F.2d 44, 52 (2d Cir. 1986)).
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`Case 1:18-cv-10387-PKC Document 62 Filed 12/05/19 Page 4 of 12
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`DISCUSSION
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`In support of their motion to dismiss, Movants submitted several exhibits, including
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`audio files of the two songs at issue, (Exs. B & E (Doc. 54 at 35, 45)), and a signed supporting
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`declaration, (Ex. C (Doc. 54 at 37)), as well as certified Spanish-to-English written translations of
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`the two songs, (Exs. D & F (Doc. 54 at 40, 47)). The Court considers these audio files because
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`the two works at issue “themselves supersede and control” and were relied upon by plaintiff when
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`crafting the complaint. Peter F. Gaito Architecture, 602 F.3d at 64; see also McDonald v. West,
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`138 F. Supp. 3d 448, 453 (S.D.N.Y. 2015), aff’d, 669 F. App’x 59 (2d Cir. 2016) (“Courts in this
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`district regularly apply this rule in music copyright cases to listen to the songs at issue when
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`evaluating a motion to dismiss.”). As plaintiff does not contest the accuracy of the certified
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`translations, the Court takes judicial notice of them. Grisales v. Forex Capital Mkts. LLC, No. 11-
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`cv-228 (NRB), 2011 WL 6288060, at *2 n.7 (S.D.N.Y. Dec. 9, 2011) (“We note that we can also
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`take judicial notice of this uncontested translation in proceeding under Rule 12(b)(6).” (citing
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`Negrin v. Kalina, No. 09-cv-6234 (BSJ), 2010 WL 2816809, at *2 n.4 (S.D.N.Y. July 15, 2010)).
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`Plaintiff’s opposition brief contains factual allegations not included in the
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`complaint, (Mem. of Law in Supp. of Pl.’s Resp. to Defs.’ Rule 12(b) Mot. to Dismiss at 4 (Doc.
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`60 at 4)), and attaches as exhibits a declaration, (Declaration of Nazim I. Guity (Doc. 60-2)), and
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`two musicological reports, (Eres Mia Musicological Report (Doc. 60-3); Musicological Report
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`Prt. 2 (Doc. 60-4)). The facts newly alleged in plaintiff’s opposition brief and the attached exhibits
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`were neither incorporated by reference into the complaint nor relied upon by plaintiff when crafting
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`the complaint and, as such, were not considered by the Court when deciding Movants’ motion to
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`dismiss.
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`I.
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`Legal Standard for a Copyright Infringement Claim.
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`A claim of copyright infringement requires a plaintiff to plausibly allege “(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.” McDonald, 138 F. Supp. 3d at 453 (citing Feist Publ’ns, Inc. v.
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`Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). A showing of copying in turn requires plaintiff
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`to plausibly allege that “(1) the defendant has actually copied the plaintiff’s work; and (2) the
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`copying is illegal because a substantial similarity exists between the defendant’s work and the
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`protectible elements of plaintiff’s.” Peter F. Gaito Architecture, 602 F.3d at 63 (quoting Hamil
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`Am. Inc. v. GFI, 193 F.3d 92, 99 (2d Cir. 1999)). For the purposes of this motion, the Court
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`assumes, and Movants do not dispute, that plaintiff has sufficiently alleged ownership of a valid
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`copyright and actual copying of plaintiff’s work by defendants. Movants instead argue that
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`plaintiff has failed to plausibly allege substantial similarity between the Guity Song and the Santos
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`Song. (Doc. 54 at 5–15).
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`A district court may “resolve the question of substantial similarity as a matter of
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`law on a Rule 12(b)(6) motion to dismiss.” Peter F. Gaito Architecture, 602 F.3d at 65. For the
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`substantial similarity analysis, “no discovery or fact-finding is typically necessary, because what
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`is required is only a visual [or] [aural] comparison of the works.” May v. Sony Music
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`Entertainment, 399 F. Supp. 3d 169, 181 (2019) (second alternation in original) (quoting Peter F.
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`Gaito Architecture, 602 F.3d at 64). “If, in making that evaluation, the district court determines
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`that the two works are not substantially similar as a matter of law, the district court can properly
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`conclude that the plaintiff’s complaint, together with the works incorporated therein, do not
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`plausibly give rise to an entitlement to relief.” Peter F. Gaito Architecture, 602 F.3d at 64 (internal
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`citation and quotation marks omitted). Two works are not substantially similar as a matter of law
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`“either because the similarity between two works concerns only non-copyrightable elements of the
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`plaintiff’s work, or because no reasonable jury, properly instructed, could find that the two works
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`are substantially similar.” Id. at 63 (quoting Warner Bros. Inc. v. Am. Broad. Cos., 720 F.2d 231,
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`240 (2d Cir. 1983)).
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`Copyright protects only the original elements of a work, meaning those components
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`which were independently created and display “at least some minimal degree of creativity.” Feist,
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`499 U.S. at 345. “Single words or short phrases ‘which do not exhibit the minimal creativity for
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`copyright protection’ are not protectible expression.” Pyatt v. Raymond, No. 10-cv-8764 (CM),
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`2011 WL 2078531, at *6 (S.D.N.Y. May 19, 2011), aff’d, 462 F. App’x 22 (2d Cir. 2012), as
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`amended (Feb. 9, 2012) (quoting Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1072 (2d Cir. 1992)).
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`Similarly, copyright protects neither “generalized idea[s] or themes,” Walker, 784 F.2d at 48–49,
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`nor “the basic building blocks of music, including tempo and individual notes,” McDonald, 138
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`F. Supp. 3d at 454. However, “a work may be copyrightable even though it is entirely a
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`compilation of unprotectible elements” if the work consists of “the original way in which the
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`author has ‘selected, coordinated, and arranged’ [its] elements.” Knitwaves, Inc. v. Lollytogs Ltd.
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`(Inc.), 71 F.3d 996, 1004 (1995) (quoting Feist, 499 U.S. at 358). Therefore, a song that combines
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`and organizes non-protected lyrical phrases, notes, tempos, and themes into a unique work may
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`still be protected under the copyright laws.
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`“The standard test for substantial similarity between two items is whether an
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`ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them,
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`and regard [the] aesthetic appeal as the same.” Peter F. Gaito Architecture, 602 F.3d at 66
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`(alteration in original) (quoting Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111 (2d Cir.
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`2001)). “In applying the socalled ‘ordinary observer test,’ we ask whether ‘an average lay observer
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`would recognize the alleged copy as having been appropriated from the copyrighted work.’” Id.
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`(quoting Knitwaves, 71 F.3d at 1002). “In the context of music plagiarism, the Second Circuit has
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`described this ordinary observer test as requiring proof that ‘defendant took from plaintiff’s works
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`so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such
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`. . . music is composed, that defendant wrongfully appropriated something which belongs to the
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`plaintiff.’” Pyatt, 2011 WL 2078531, at *4 (alternation in original) (quoting Repp & K & R Music,
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`Inc. v. Webber, 132 F.3d 882, 889 (2d Cir. 1997)).
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`When evaluating “works ‘that have both protectible and unprotectible elements,’
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`[the court’s] analysis must be ‘more discerning’ and [the court] instead ‘must attempt to extract
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`the unprotectible elements from [its] consideration and ask whether the protectible elements,
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`standing alone, are substantially similar.’” Peter F. Gaito Architecture, 602 F.3d at 66 (first
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`quoting Fisher–Price, Inc. v. Well–Made Toy Mfg. Corp., 25 F.3d 119, 123 (2d Cir. 1994) and
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`then quoting Knitwaves, 71 F.3d at 1002). However, when applying this “more discerning
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`observer” test, courts should not “dissect the works into their separate components, and compare
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`only those elements which are in themselves copyrightable,” but instead “compar[e] the contested
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`design’s ‘total concept and overall feel’ with that of the allegedly infringed work as instructed by
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`our ‘good eyes and common sense.’” Id. (first quoting Tufenkian Imp./Exp. Ventures, Inc. v.
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`Einstein Moomjy, Inc., 338 F.3d 127, 133 (2d Cir. 2003) and then quoting Hamil Am., 193 F.3d
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`at 102). “Thus, in the end, [the] inquiry necessarily focuses on whether the alleged infringer has
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`misappropriated ‘the original way in which the author has “selected, coordinated, and arranged”
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`the elements of his or her work.’” Id. (quoting Knitwaves, 71 F.3d at 1004).
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`II.
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`Plaintiff Fails to State a Claim for Copyright Infringement
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`Plaintiff argues that the Santos Song infringes upon the copyrighted Guity Song,
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`alleging substantial similarity between the works taken in their entireties. (Compl. ¶¶ 20–21).
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`Plaintiff also generally identifies protectible elements of the Guity Song and alleges that “[c]ertain”
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`of these elements were infringed upon by the Santos Song. (Compl. ¶¶ 14, 17). As explained
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`below, plaintiff’s claims fail because (1) the alleged protectible elements of the Guity Song are
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`either not protected under copyright or insufficiently pled as to allow for a finding of protectiblity,
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`and, (2) taken in their entireties, the songs are not substantially similar.
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`A.
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`The Alleged Protected Elements of the Guity Song Are Either Not Protected or
`Insufficiently Pled, so Cannot Support a Claim of Copyright Infringement.
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`Plaintiff alleges that the Guity Song contained several protectible elements under
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`copyright law, “[c]ertain” of which have been infringed by the Santos Song. (Compl. ¶¶ 14, 17).
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`Upon examination, none of the listed components alone are sufficient to support a claim of
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`copyright infringement.
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`First, some of the listed protectible elements do not qualify as such on the facts
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`here. For instance, plaintiff alleges that the Guity Song’s “unique lyrical themes” and
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`“substantially similar concept behind the song’s theme” are protected. (Compl. ¶ 14). However,
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`the themes at issue in the Guity Song, love and desire, are the exact type of broad themes that lie
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`beyond copyright’s protection. Walker, 784 F.2d at 48–49. Similarly, plaintiff identifies the Guity
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`Song’s “unique song title,” “Eres Mia,” as a protectible element and then points to the Santos
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`Song’s use of the same title as evidence of defendants’ infringement. (Compl. ¶¶ 14, 20). Yet,
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`this phrase, which translates as “You’re Mine” in English, is too short and generic to meet the
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`required threshold for creativity and thereby qualify for copyright protection. Arica Inst., Inc., 970
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`F.2d at 1072–73; see also McDonald, 138 F. Supp. 3d at 56 (holding that “Made in America” was
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`not copyrightable as a song title). As such, the shared titles of the Guity and Santos Songs cannot
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`serve as the basis for a copyright infringement claim.
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`Second, for the remaining listed protectible elements of the Guity Song, plaintiff
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`fails to plausibly allege which, if any, of these elements have actually been infringed by the Santos
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`Song. Specifically, while several of plaintiff’s alleged protectible elements could qualify as such,
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`including the “unique lyrical hook,” “unique lyrical content,” “substantially similar melody,” and
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`“substantially similar guitar arrangements,” (Compl. ¶ 14), plaintiff only actually alleges that
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`“[c]ertain of the copyrightable elements contained in plaintiff’s [Guity] Song were incorporated
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`into defendant’s song.” (Compl. ¶ 17). Without a specific identification of the protected elements
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`actually infringed upon by the Santos Song, plaintiff’s complaint fails to plead substantial
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`similarity concerning a protected element of the Guity Song and therefore fails “state a claim to
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`relief that is plausible on its face.”
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`Plaintiff fails to plausibly allege that specific protectible elements of the Guity Song
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`were infringed by the Santos Song and therefore cannot maintain claims of copyright infringement
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`on this theory.
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`B.
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`The Guity Song and the Santos Song Taken in Their Entireties Are Not
`Substantially Similar.
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`Plaintiff also alleges that the Santos Song “is so substantially similar to” the
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`copyrighted Guity Song as to constitute copyright infringement. (Compl. ¶ 21). Upon
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`examination, the Court finds that the Guity Song and the Santos Song are not substantially similar
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`and plaintiff therefore cannot support a claim of copyright infringement.
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`Though plaintiff has failed to adequately allege infringement of specific protectible
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`elements of the Guity Song, copyright extends protection to non-protected elements organized and
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`arranged into an original work. Knitwaves, 71 F.3d at 1004. As such, plaintiff can still maintain
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`a claim for copyright infringement if he can adequately plead that the Santos Song has taken “from
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`plaintiff’s works so much of what is pleasing to the ears of lay listeners.” Pyatt, 2011 WL 2078531,
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`at *4. Here, plaintiff cannot do so.
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`Under either the reasonable observer test, which requires the Court to evaluate the
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`similarities between works through the eyes of an average lay listener, or the more discerning
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`observer test, which requires the Court to look mainly at the protected elements of a song, the
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`“total concept[s] and overall feel[s]” of the Guity Song and the Santos Song respectively are so
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`distinct as to prevent a finding of substantial similarity. Specifically, though plaintiff argues that
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`the songs’ lyrics contribute to their alleged substantial similarity, (Doc. 60 at 12), the only
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`commonalities apparent between the songs’ lyrics are the use of the phrase “eres mia” and some
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`individual words, such as “love,” “mine,” “night,” and “baby” (as a term of affection). However,
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`“eres mia” appears only three times in the Guity Song and does not play a unique or important role
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`in the composition. The infrequent use of such a short generic phrase is insufficient to support a
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`finding that the total concept and overall feel of the songs’ lyrics are substantially similar. See
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`Pyatt, 2011 WL 2078531, at *8 (“Nor will substantial similarly [sic] be found if only a small,
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`common phrase appears in both the accused and complaining songs; unless the reappearing phrase
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`is especially unique or qualitatively important, there is no basis for inferring copying.” (quoting
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`Stratchborneo v. Arc Music Corp., 357 F. Supp. 1393, 1404 (S.D.N.Y. 1973))). The shared usage
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`of single everyday words also fails to show substantial similarity between the two songs. Id. at *6
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`(“Single words . . . ‘which do not exhibit the minimal creativity for copyright protection’ are not
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`protectible expression.”). This is especially true when, as here, the single words are employed
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`differently in the two relevant works.
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`Musically, plaintiff alleges that are “various substantial similarities” between the
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`Guity Song and the Santos Song, pointing to the songs’ respective choruses and hooks. (Doc. 60
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`at 7). Plaintiff also argues, despite explicit case law to the contrary, that “an ordinary observer
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`with no musical background may very well be incapable of applying the ‘total concept and feel
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`test’ to determine substantial similarity.” (Doc. 60 at 11). Disregarding plaintiff’s flatly incorrect
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`characterization of the relevant standard, the Court has listened to both the Guity Song and Santo
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`Song, with a particular focus on the highlighted chorus and hook, to determine if the “total concept
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`and overall feel” of both songs would suggest to the ordinary listener that the Santos Song has
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`appropriated from the Guity Song.
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`The Court concludes that, upon listening to the Santos Song, the average listener
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`could find little in common with the Guity Song and, as such, no reasonable jury could find the
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`two works to be substantially similar. Overall, the two songs have little to nothing in common
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`other than their title. The Guity Song is a straightforwardly brooding hard rock song, containing
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`extended guitar riffs. In contrast, the Santos Song is a light but complex bachata,2 containing
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`varying rhythms and a bongo accompaniment. The lyrical narratives, tempos, and melodies of the
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`two songs are distinct, and plaintiff himself admits that the bachata Santos Song is stylistically
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`distinct from the rock-and-roll Guity Song. (Doc. 60 at 5). As the average listener would not
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`recognize the Santos Song as having appropriated from the Guity Song “what is pleasing to the
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`ears,” the Court concludes plaintiff’s claim fails the ordinary observer test and, as a matter of law,
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`cannot show substantial similarity between the two songs taken in their entireties. See Pyatt v.
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`Raymond, 462 F. App’x 22, 24 (2d Cir. 2012), as amended (Feb. 9, 2012) (“The songs are lyrically
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`and musically distinct and the district court correctly concluded that the claim failed the ordinary
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`observer test.”).
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`2 “Bachata” is “[a] style of romantic music originating in the Dominican Republic.” (Doc. 60 at 5).
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`Focusing closely on the potentially protectible elements of the Guity Song,
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`including the chorus and hook, does not aid plaintiff’s cause. The complaint fails to allege that
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`any specifically protectible portion of the Guity Song, such as song structure, chord progression,
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`or lyrical rhythms, was appropriated by the Santos Song. Evaluating the total concept and overall
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`feel of the Santos Song in light of Guity Song, the Court concludes plaintiff’s claim fails the more
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`discerning observer test and, as a matter of law, cannot support a finding of substantial similarity.
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`As such, plaintiff cannot maintain a claim for copyright infringement.
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`* * *
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`As no reasonable jury could find substantial similarity between the Santos Song
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`and either specific protectible elements of the Guity Song or the Guity Song taken in its entirety,
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`plaintiff cannot make out a claim for copyright infringement and Movants’ motion to dismiss the
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`complaint will be granted.
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`CONCLUSION
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`The motions of Santos and Sony to dismiss the complaint are GRANTED. The
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`Clerk is directed to terminate this motion. (Doc. 53). Plaintiff having failed to either (a) serve
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`Alcover and We Loud within the time provided in Rule 4(m), Fed. R. Civ. P., or (b) seek an
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`exclusion of time to do so, Alcover and We Loud are dismissed without prejudice. The Clerk shall
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`enter judgment for the defendants and close the case.
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`SO ORDERED.
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`Dated: New York, New York
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`December 5, 2019
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