Case 1:18-cv-10387-PKC Document 60 Filed 04/08/19 Page 1 of 15
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`NAZIM I. GUITY CIVIL NO. 18-CV-10387-PKC
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`vs.
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`ANTHONY SANTOS P/K/A
`ROMEO SANTOS ET AL. :
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`___________________________________
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`O R D E R
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`AND NOW, to wit, this ___ day of __________, 2019
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`upon due consideration, it is hereby ORDERED and DECREED that
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`defendants’ Motion to Dismiss is DENIED.
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`Defendants are afforded Twenty-One (21) days from the date
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`of this Order to file their Answer to Complaint, failing which
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`an entry of default may be entered.
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`BY THE COURT:
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`_____________________________
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`HON. P. KEVIN CASTEL
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`U.S.D.J.
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`NAZIM I. GUITY CIVIL NO. 18-CV-10387-PKC
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`vs.
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`ANTHONY SANTOS P/K/A
`ROMEO SANTOS ET AL. :
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`___________________________________
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`O R D E R
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`AND NOW, to wit, this ___ day of __________, 2019
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`upon due consideration, it is hereby ORDERED and DECREED that
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`defendants’ Motion to Dismiss is DENIED.
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`Defendants are afforded Twenty-One (21) days from the date
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`of this Order to file their Answer to Complaint, failing which
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`an entry of default may be entered.
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`BY THE COURT:
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`_____________________________
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`HON. P. KEVIN CASTEL
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`U.S.D.J.
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`1
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`Case 1:18-cv-10387-PKC Document 60 Filed 04/08/19 Page 2 of 15
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`NAZIM I. GUITY CIVIL NO. 18-CV-10387-PKC
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`vs.
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`ANTHONY SANTOS P/K/A
`ROMEO SANTOS ET AL. :
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`___________________________________
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`PLAINTIFF’S RESPONSE TO DEFENDANTS
`RULE 12(b) MOTION TO DISMISS
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` COMES NOW your plaintiff/respondent NAZIM I. GUITY, who
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`through his counsel, Simon J. Rosen, Esq., respectfully responds
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`as follows:
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` For the reasons set forth in the accompanying Memorandum
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`of Law, and Exhibits thereto, plaintiff NAZIM I. GUITY
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`respectfully requests that defendants’ Rule 12(b) Motion to
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`Dismiss should be DENIED.
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`Dated: April 8, 2019 Respectfully submitted,
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` /Simon Rosen, Esq./ (#6279)
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` Counsel for Plaintiff/Respondent
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`Case 1:18-cv-10387-PKC Document 60 Filed 04/08/19 Page 3 of 15
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`NAZIM I. GUITY CIVIL NO. 18-CV-10387-PKC
` :
`vs.
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`ANTHONY SANTOS P/K/A
`ROMEO SANTOS ET AL. :
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`___________________________________
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`MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S RESPONSE
`TO DEFENDANTS’ RULE 12(b) MOTION TO DISMISS
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` COMES NOW your plaintiff/respondent NAZIM I. GUITY, who
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`through his counsel, Simon J. Rosen, Esq., respectfully responds
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`as follows:
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`Plaintiff Nazim I. Guity initiated this action against
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`I. FACTUAL BACKGROUND
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`defendant musical performer Romeo Santos et al. for copyright
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`infringement in regard to a song written solely by Mr. Guity
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`titled, “ERES MIA” (hereinafter “ERES MIA-1”). The song was
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`written by Mr. Guity in 2011, and Mr. Guity duly applied for,
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`and was granted federal copyright registration for the song by
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`3
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`Case 1:18-cv-10387-PKC Document 60 Filed 04/08/19 Page 4 of 15
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`the Library of Congress on March 25, 2014, Registration No. SRu-
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`1-163-479. See Exhibit, attached and incorporated by
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`reference.
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` ERES MIA-1 was recorded and mixed at co-defendant Los
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`Mejores Studio (now known as “We Loud Studios”), which studio
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`is owned and operated by co-defendant Milton Alcover. Notably,
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`Milton Alcover has been involved in the recordings of defendant
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`Santos’ music for many years.
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`While it is common knowledge in the music business that
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`defendant Santos does not write his songs by himself- he
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`utilizes the assistance of other songwriters, musicians and/or
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`music producers to write the songs which he performs on his
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`albums, the written credits on his albums consistently and
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`boldly assert that,
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`“All Songs [Are] Written by Romeo Santos” . . .
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` or something to that effect.
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`In actuality, defendant Santos collaborates with others on
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`his songs, which is common knowledge as above-stated. See
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`Declaration of plaintiff Nazim I. Guity, attached and
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`incorporated by reference.
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`During the many months that plaintiff recorded ERES MIA-1,
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`he was repeatedly told by co-defendant Alcover, defendant
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`Santos’ cohort, that plaintiff should change the style of music
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`of ERES MIA-1 to a “Bachata” style, which is Romeo Santos’ style
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`4
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`Case 1:18-cv-10387-PKC Document 60 Filed 04/08/19 Page 5 of 15
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`of music. “Bachata” is a distinct and popular Latin music style,
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`defined as,
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` “A style of romantic music originating in the Dominican
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`Republic”.
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`Plaintiff, who is of Dominican Republic origin, is well-
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`familiar with Bachata music, however plaintiff’s music favors a
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`rock and roll-infused style of Latin music. Accordingly, while
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`plaintiff was recording at Los Mujeres Studios under the
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`auspices of Alcover, Alcover and others at the studio repeatedly
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`implored plaintiff to change up the music style of ERES-MIA-1
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`from rock and roll Latin music to Bachata. It was clear that
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`Alcover and the folks at Los Mujeres had it clear in their
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`sights that ERES MIA-1 should be a Bachata song, and Alcover and
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`the folks at Los Mujeres had access to defendant Santos, and
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`were influences in Santos’ musical career. See Declaration of
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`Guity.
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`Plaintiff also has had a long relationship with defendant
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`Santos. This is important because the ability of plaintiff to
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`have access to defendant, and conversely, the ability of
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`defendant to have access to plaintiff, is a crucial element of
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`actionable copyright infringement. In fact, the sole elements
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`of copyright infringement are substantial similarity and access,
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`and this long history provides evidence of access.
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`5
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`Case 1:18-cv-10387-PKC Document 60 Filed 04/08/19 Page 6 of 15
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` During or about 2004, plaintiff started working as a hair
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`and fashion stylist and consultant for the musical group
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`“Aventura”. Defendant Santos, prior to embarking on a solo
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`career, was a member of the group Aventura. Plaintiff’s
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`connection with Aventura was founded on his relationship with
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`Henry Santos, defendant Santos’s cousin. Henry Santos was also
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`a member of Aventura. As stylist for Santos, and then Aventura,
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`plaintiff provided the musical group with a full image makeover,
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`which made them more attractive, literally and figuratively,
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`U.S. and international markets. This “new look” also helped
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`them to break out of the stereotypical, conventional mold
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`prevalent to “bachateros” of that era. In 2004, Bachata had
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`just begun to morph into an international phenomenon, and if you
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`wanted to ride the wave, you needed to upgrade your look- you
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`needed to look the part. Plaintiff enhanced the band’s image
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`and style, and in turn, enhanced the image and style of
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`defendant Romeo Santo. In 2005, plaintiff even conceived an
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`entire clothing line which he dubbed, “King of Bachata”, under
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`his own design brand, “Nazim Izzak Le Collezione”. Plaintiff’s
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`clothing line was based on his knowledge of the Bachata market
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`and the “pride factor” that this line of apparel would evoke.
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`In April of 2006, plaintiff styled Henry Santos for an
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`Aventura concert at the Nassau Coliseum, Long Island, N.Y.,
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`dressing him in a black hoodie sweatshirt, distressed denims and
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`6
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`Case 1:18-cv-10387-PKC Document 60 Filed 04/08/19 Page 7 of 15
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`a pair of custom painted Nike Uptown sneakers. The black hoodie
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`was custom-made, like much of the clothing plaintiff provided to
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`Aventura members, with the name “KING OF BACHATA” stitched on
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`it in studded gold letters. That night defendant Romeo Santos
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`gave plaintiff multiple compliments on that sweater and
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`professed how much he loved it.
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`So much so, in fact, that when Santos became a solo artist, he
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`recorded an album titled, “King of Bachata” and did a world tour
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`called, “King of Bachata”.
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`well-known to defendant Santos when Guity was in Los Mujeres
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`Studios recording ERES-MIA-1.
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`Based upon the above history, plaintiff Nazim I. Guity was
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`Subsequently, plaintiff learned that defendant Santos
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`recorded and released a musical composition titled “ERES MIA”
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`(hereinafter ERES-MIA-2). Santos’ version of ERES-MIA-1
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`was the exact same title, however Santos’ version was Bachata
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`style. Musically, there were various substantial similarities,
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`despite the fact that a casual listener might not note these
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`similarities, due to the variances in style of music. See
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`comparison chart, pages 1 and 2, attached as and incorporated by
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`reference.
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`Further, and quite significantly the chorus, and hook, of
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`the two songs are substantially similar. See Declaration,
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`infra. Accordingly, plaintiff possesses a plausibly cognizable
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`7
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`Case 1:18-cv-10387-PKC Document 60 Filed 04/08/19 Page 8 of 15
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`claim against defendants for copyright infringement.
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`Notwithstanding, defendant Santos filed for dismissal under
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`Rules 12(b)(6) to preclude plaintiff’s case from reaching into a
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`courtroom. Plaintiff possesses a viable and justiciable
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`copyright infringement claim against Santos. In a light most
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`favorable to movant, this Court should deny said motion,
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`suggesting that defendant is at liberty to re-assert these
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`defenses at the conclusion of discovery vis a vis motion for
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`summary judgment.
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`Accordingly, the Rule 12(b)(6) dismissal motion should be
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`denied, and defendants should stand ready to answer the
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`allegations set forth in the Complaint.
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`II. ARGUMENT
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`A. LEGAL STANDARDS APPLICABLE
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`Our U.S. Supreme Court, in Bell Atl. Corp v. Twombly, 550
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`U.S. 544, 570 (2007), opined that dismissal at this stage of the
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`proceedings is inappropriate so long as plaintiff presents,
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`“enough facts to state a claim for relief that is plausible on
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`its case”. Plaintiff queries: Why should our beloved New York
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`District Court in the Southern District mess with “The
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`Supremes”?
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`It is axiomatic that when considering a Rule 12(b)(6)
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`motion to dismiss, the Court is required accept the Complaint’s
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`allegations as true, read those allegations in the light most
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`8
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`Case 1:18-cv-10387-PKC Document 60 Filed 04/08/19 Page 9 of 15
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`favorable to the plaintiff,and determine whether a reasonable
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`reading indicates that relief may be warranted.
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`In copyright cases, it has been held that the Court
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`may consider the similarity between the two works. This is
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`easier done in a copyright infringement action between two
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`movies, two television shows, or two books, because the observer
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`can merely read or watch, and it is readily obvious if
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`similarity exists. Music is more nuanced, more difficult to
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`detect similarities in certain instances. Notwitstanding same,
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`this Court merely needs to determine that plaintiff possesses a
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`plausible infringement claim to deny defendants’ motion to
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`dismiss.
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`B. APPLYING THE COURTS’ RULINGS IN CASES SUCH AS BMS AND GRIFFIN,
`PLAINTIFF’S COPYRIGHT INFRINGEMENT CLAIM SHOULD WITHSTAND RULE
`12(b)(6) SCRUTINY, BECAUSE PROTECTABLE ELEMENTS WERE INFRINGED
`UPON, AND THE ORDINARY OBSERVER TEST IS NOT DISPOSITIVE OF
`INFRINGEMENT AT THIS EARLY JUNCTURE.
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`It is well-known that under applicable law, in order to
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`state a claim for copyright infringement, the plaintiff must
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`allege:
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`1. Ownership of a valid copyright; and,
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`2. Defendant’s unauthorized copying of protectable
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`elements of plaintiff’s copyrighted work.
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`In determining Factor #2, above, the Court shall also
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`examine as to whether defendant had “access” to plaintiff’s
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`music.
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`9
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`Case 1:18-cv-10387-PKC Document 60 Filed 04/08/19 Page 10 of 15
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`In the case at bar, the existence of a valid copyright, and
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`defendant’s “access” are conceded by the defendants- their
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`instant motion is silent on these major issues. Defendants hang
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`their hat on their mis-assertion that “Eres Mia” is not a
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`protectable element, and that a comparison of the two songs will
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`not survive the casual observer test. Defendants’ reliance is
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`amiss.
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` Under the law within this District and Circuit, “protect-
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`ibility” can be established to ordinarily unprotectable elements
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`if used or arranged in a creative and original manner by the
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`author. See, e.g., BMS Entm’ t/Heat Music LLC v. Bridges, 04-
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`CV-2584-PKC, 2005 WL 1593013 (S.D.N.Y. July 7, 2005)
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`(https://casetext.com/case/bms-entertainmentheat-music-v-
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`bridges); also, Griffin v. Ed Sheeran, __ F. Supp. 3d __, 2019
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`WL 95482 (S.D.N.Y. Jan. 3, 2019).
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`(https://law.justia.com/cases/federal/district-courts/new-
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`york/nysdce/1:2017cv05221/477309/93/)
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`The
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`BMS
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`and
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`Griffin
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`cases
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`prove
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`favorable
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`to
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`plaintiff/respondent in two regards:
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`First, they uphold the notion that while arguably
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`unoriginal work alone is not protectable (here, movant alleges
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`that the mere term “Eres Mia” is, per se, “unoriginal”),
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`unoriginal work arranged in such a manner with other original
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`(such as the case here) is ostensibly protectable. BMS, 2005 WL
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`10
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`Case 1:18-cv-10387-PKC Document 60 Filed 04/08/19 Page 11 of 15
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`1593013, at *6 (See also Knitwaves, Inc. v. Lollytogs Ltd.
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`(Inc.), 71 F.3d 996, 1004 (2d Cir. 1995), in which the 2nd
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`Circuit opined that a sweater's commonplace visual elements —
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`such as leaves and squirrels, a “fall palette” of colors, and a
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`design that combined these images and colors — were sufficiently
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`original in combination to warrant copyright protection).
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`Second, the Court applies the “total concept and feel” test
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`should be applied as part of the ordinary observer test when
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`comparing two works. Hence, an ordinary observer with no
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`musical background may very well be incapable of applying the
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`“total concept and feel test” to determine substantial
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`similarity.
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` Further, BMS follows Knitwaves stand on limiting the
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`extraction of unprotectable elements from protectable elements
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`when comparing works. If the extraction of unprotectable
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`elements from protectable elements was taken to its logical
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`conclusion, then a court would need to determine that all
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`elements of the compared works were used in some past works.
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`(See BMS, 2005 WL 1593013, at *6).
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`Paragraph 14 of plaintiff’s Complaint describe protectable
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`elements of plaintiff’s song which was infringed upon, to
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`wit,
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`“14. The Subject Song contains “protectable elements”
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`11
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`Case 1:18-cv-10387-PKC Document 60 Filed 04/08/19 Page 12 of 15
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`afforded copyright protection, which protectable elements are
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`inclusive but not limited to the unique lyrical hook,
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`mesmerizing hook, hook containing the same sound, feel cadence,
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`timing and structure; such protectable elements also include
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`unique lyrical themes, unique lyrical content, unique song
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`title, substantially similar concept behind the song’s theme,
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`substantially similar melody, substantially similar guitar
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`arrangements, and substantially similar hook and chorus.”
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`Further, the Comparison Chart compiled by plaintiff Nazim
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`I. Guity denotes similarities with protectable elements,
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`including the choral hook, “Eres Mia”, as follows:
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`“similar phrasing, lyrics, and rhythm in the lead
`vocal line. In both compositions, there is a chorus that
`feature two small connecting phrases in the vocal line that
`are rhythmically similar. In Nazim’s composition, the
`lyrcis “mía mía” and “sol o mía” are sung in two small
`connecting phrases using pickup rhythms in the chorus. In
`Romeo Santos’s composition, the lyrics “eres mía” as well
`as “mía mía” are sung in two small connected phrases using
`pickup rhythms in the chorus.”
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`Accordingly, under the principles as espoused by the Court
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`in BMS and the aforecited law, the manner in which plaintiff
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`used his “Eres Mia” lyrics in his songs are afforded
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`protectability under the Copyright Act.
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`Additional case law is supportive of plaintiff’s position
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`that the protectable elements of his song were violated by
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`defendant.
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`12
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`Case 1:18-cv-10387-PKC Document 60 Filed 04/08/19 Page 13 of 15
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`For example, it has been held that the level of creativity
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`required for an original work of art has been described as
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`“extremely low,” and only “a slight amount,” which was derived
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`from "some creative spark, no matter how crude, humble, or
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`obvious it might be." Mattel, Inc. v. Goldberger Doll Mfg. Co.,
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`365 F.3d 133, 135 (2d Cir. 2004) (quoting Feist, 499 U.S. at
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`340). Originality looks to whether a work was independently
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`created by the author. BMS, 2005 WL 1593013, at *7. “Originality
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`does not signify novelty; a work may be original even though it
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`closely resembles other works so long as the similarity is
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`fortuitous, not the result of copying. Feist, 499 U.S. at 345-
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`46. With respect to lyrics, though an “ordinary’ [i.e.,
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`uncopyrightable] phrase may be quoted without fear of
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`infringement, a copier may not quote or paraphrase the sequence
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`of creative expression that includes such a phrase.” Salinger v.
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`Random House, Inc., 811 F.2d 90, 98 (2d Cir.1987).
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`Under the facts at bar, respondent vehemently asserts that
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`defendant Santos did not create his song independently of
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`plaintiff-author Nazim I. Guity. Plaintiff Guity recorded his
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`version of “Eres Mia” first, at the We Loud recording studios in
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`the Bronx, NY, with recording studio personnel who regularly
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`work with defendant Santos. Santos then recorded his own
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`version of “Eres Mia”, but not independently of plaintiff’s
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`13
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`Case 1:18-cv-10387-PKC Document 60 Filed 04/08/19 Page 14 of 15
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`version. This constitutes plausible actionable infringement
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`under applicable case law, warranting denial of the Rule 12(b)
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`motion.
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`Liability upon defendant can also be found based upon
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`“fragmented literal similarity”, which “focuses upon copying of
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`direct quotations or close paraphrasing.” Castle Rock Ent., Inc.
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`v. Carol Pub. Group, Inc., 150 F.3d 132, 140 (2d Cir. 1998).
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`“Fragmented literal similarity exists where the defendant copies
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`a portion of the plaintiff’s work exactly or nearly exactly,
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`without appropriating the work’s overall essence or structure.”
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`TufAmerica, 968 F. Supp. 2d at 597 (citing Newton v. Diamond,
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`388 F.3d 1189, 1194 (9th Cir. 2004)).
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`Accordingly, for these reasons, defendants’ Rule 12(b)(6)
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`motion to dismiss should be denied.
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`III. CONCLUSION
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`For the above-stated reasons, defendants’ Rule 12(b)(6)
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`motion to dismiss should be DENIED.
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`
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`Dated: April 8, 2019 /Simon Rosen, Esq./
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` Counsel for Respondent
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` Plaintiff Nazim I. Guity
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`14
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`Case 1:18-cv-10387-PKC Document 60 Filed 04/08/19 Page 15 of 15
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`CERTIFICATE OF SERVICE
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`I, Simon J. Rosen, Esq., hereby certify that the foregoing
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`Response to Motion to Dismiss and accompanying papers were duly
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`served upon all interested parties through the ECF system and by
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`fax and email on April 8, 2019 as follows:
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`David Aronoff, Esq.
`Fax-310-556-9828
`Email: daronoff@foxrothschild.com
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`April 8, 2019
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` /Simon J. Rosen, Esq./
` Counsel for Respondent/Plaintiff
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`15
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