Case 5:10-cv-01116-D Document 39 Filed 04/19/11 Page 1 of 7
`
`IN THE UNITED STATES DISTRICT COURT FOR THE
`WESTERN DISTRICT OF OKLAHOMA
`
`Case No. CIV-10-1116-D
`
`))
`
`))
`
`)
`)
`)
`
`))
`
`) O
`
`RDER
`
`CHARLES A. SYRUS,
`
`Plaintiff,
`
`vs.
`
`CLAY BENNETT, and OKLAHOMA
` CITY THUNDER,
`
`Defendants.
`
`Before the Court is the Motion to Dismiss [Doc. No. 13] of Defendants Clay Bennett and
`
`Oklahoma City Thunder.1 Pursuant to Fed. R. Civ. P. 8(a)(2) and Fed. R. Civ. P. 12(b)(6),
`
`Defendants argue the Complaint fails to allege sufficient facts to satisfy the requirements of these
`
`rules. Plaintiff, who appears pro se, has timely responded to the motion, and Defendants have filed
`
`a reply.
`
`In this action, Plaintiff alleges that Defendants have violated a copyright which he contends
`
`is registered to him. According to Plaintiff, Defendants violated federal copyright law by using
`
`the phrases “Go Thunder,” “Let’s go Thunder,” and “Thunder Up!” in connection with advertising
`
`and promotional activities for the Oklahoma City Thunder professional basketball team. Plaintiff
`
`alleges Defendants did so without his permission, thereby violating a copyright based on a song
`
`authored by Plaintiff. He seeks money damages for the alleged violation.
`
`The Federal Rules of Civil Procedure require a complaint to contain “a short and plain
`
`1Defendants state in the motion that the correct name of the entity sued as the Oklahoma City Thunder is
`Professional Basketball Club, LLC. Because the motion does not seek dismissal on that basis, the Court does not address
`this contention at this time.
`
`

`
`Case 5:10-cv-01116-D Document 39 Filed 04/19/11 Page 2 of 7
`
`statement of the claim showing that the pleader is entitled to relief....” Fed. R. Civ. P. 8(a)(2).
`
`However, a “blanket assertion” of entitlement to relief is insufficient to satisfy this requirement. Bell
`
`Atlantic Corp. v. Twombly, 540 U.S. 544, 556 n. 3 (2007). Instead, a plaintiff must set forth in the
`
`Complaint sufficient factual allegations to support a claim, and conclusory statements are
`
`insufficient. Id. at 555. Complaints failing to do so are subject to a Rule 12(b)(6) motion to dismiss
`
`for failure to state a claim upon which relief may be granted. Id.
`
`To avoid dismissal pursuant to Rule 12(b)(6), a complaint “must contain enough factual
`
`allegations ‘to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570;
`
`Robbins v. Oklahoma, 519 F. 3d 1242, 1247 (10th Cir. 2008); VanZandt v. Oklahoma Dept. of
`
`Human Services, 276 F. App’x 843, 846 (10th Cir. 2008) (unpublished opinion).
`
`To state a plausible claim, “the Plaintiff has the burden to frame a ‘complaint with enough
`
`factual matter (taken as true) to suggest’ that he or she is entitled to relief.” VanZandt, 276 F. App’x
`
`at 846 (quoting Robbins, 519 F. 3d at 1247.) “Factual allegations must be enough to raise a right
`
`to relief above the speculative level.” Twombly, 550 U. S. at 555. Thus, plaintiffs must allege
`
`sufficient facts to “nudge[ ] their claims across the line from conceivable to plausible.” Id. at 570;
`
`Robbins, 519 F. 3d at 1247. The “mere metaphysical possibility that some plaintiff could prove
`
`some set of facts in support of the pleaded claims is insufficient; the complaint must give the court
`
`reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these
`
`claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F. 3d 1174, 1177 (10th Cir. 2007) (emphasis
`
`in original). Although the Court must construe well-pleaded facts as true, not all factual allegations
`
`are “entitled to the assumption of truth.” Ashcroft v. Iqbal, U.S. , 129 S.Ct. 1937, 1951 (2009).
`
`“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
`
`2
`
`

`
`Case 5:10-cv-01116-D Document 39 Filed 04/19/11 Page 3 of 7
`
`misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.’”
`
`Id. The Court need not accept as true the assertions in a complaint which “amount to nothing more
`
`than a ‘formulaic recitation of the elements’” of a claim. Ashcroft, 129 S. Ct. at 1951 (quoting
`
`Twombly, 550 U.S. at 554-555).
`
`Where a motion to dismiss for failure to state a claim is presented, a court must construe the
`
`allegations in the complaint in the light most favorable to the plaintiff. Buckley Construction, Inc.
`
`v. Shawnee Civil and Cultural Development Authority, 933 F.2d 853 (10th Cir. 1991). All well-
`
`pleaded allegations in the complaint must be taken as true. Id. at 855. However, a court is not
`
`“bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft, 129 S. Ct.
`
`at 1949.
`
`Where, as here, the Plaintiff appears pro se, the allegations must be construed liberally in his
`
`favor. Garrett v. Selby Connor Maddux & Janer, 425 F. 3d 836, 840 (10th Cir.2005). However,
`
`a pro se litigant must “follow the same rules of procedure that govern other litigants.” Shrader v.
`
`Biddinger, 633 F. 3d 1235, 1249 n.9 (10th Cir. 2011) (citing Garrett, 425 F. 3d at 840). It is not “the
`
`proper function of the district court to assume the role of advocate for the pro se litigant.” Garrett,
`
`425 F. 3d at 840.
`
`The Defendants seek dismissal of Defendant Clay Bennett because the Complaint asserts no
`
`allegations against him; it names him as a defendant, but contains no reference to any actions
`
`allegedly taken by him. Instead, the Complaint, construed liberally in Plaintiff’s favor, is limited
`
`to contentions against the Oklahoma City Thunder basketball team. Because Plaintiff has asserted
`
`no factual allegations on which a plausible claim against Defendant Bennett could be based, the
`
`motion to dismiss Bennett is GRANTED.
`
`3
`
`

`
`Case 5:10-cv-01116-D Document 39 Filed 04/19/11 Page 4 of 7
`
`Defendants also seek dismissal of Plaintiff’s copyright violation claims on the grounds that
`
`a plausible claim for relief cannot be based on such claims, as copyright protection does not extend
`
`to the words and phrases on which Plaintiff relies to support his claims. As Defendants point out,
`
`Plaintiff’s allegations in the Complaint assert that his copyright was violated by the chanting of
`
`“Thunder Up!” during basketball games, and the use in advertising, singing and chanting the phrases
`
`“Go Thunder!” and “Let’s Go Thunder.” He also alleges that cheerleaders and the mascot for the
`
`basketball team vocalize the phrases “Thunder Up,” “Go Thunder,” and “Let’s Go Thunder.” He
`
`further alleges these phrases appeared on banners displayed on buildings in Oklahoma City as well
`
`as inside the arena where the team plays.
`
`Construing his Complaint most liberally, Plaintiff contends he authored a song, with music
`
`and lyrics, a copy of which was delivered to the office of the Mayor of Oklahoma City in 2008 at
`
`the time efforts were underway to secure a professional basketball team in Oklahoma City. He
`
`alleges that, after the team located here, he gave a copy of the song to someone he thought was a
`
`coach and to a cheerleader. He alleges that he never heard from anyone. However, he later saw
`
`advertisements and heard songs and chants containing the phrases noted above, and he believes these
`
`were taken from his song.
`
`As Defendants correctly argue, Plaintiff cannot own a protected copyright in the phrases at
`
`issue because “[w]ords and short phrases such as names, titles, and slogans” and “ familiar symbols
`
`or designs” are “examples of works not subject to copyright.” 37 C. F. R. § 202.1(a). “It is
`
`axiomatic that copyright law denies protection to ‘fragmentary words and phrases’ and to ‘forms of
`
`expression dictated solely at functional considerations’ on the grounds that these materials do not
`
`exhibit the minimal level of creativity necessary to warrant copyright protection.” CMM Cable Rep.,
`
`4
`
`

`
`Case 5:10-cv-01116-D Document 39 Filed 04/19/11 Page 5 of 7
`
`Inc. v. Ocean Coast Properties, Inc., 97 F. 3d 1504, 1519 (1st Cir. 1996) (quoting 1 Melville B.
`
`Nimmer & David Nimmer, Nimmer on Copyright § 2.01[B]). Even where a phrase appears in a
`
`copyrighted work, the phrase is not entitled to copyright protection. Arica Institute, Inc. v. Palmer,
`
`970 F. 2d 1067, 1072-73 (2d Cir. 1992). Thus, to the extent that Plaintiff’s Complaint alleges a
`
`copyright violation based on the use of “Go Thunder,” “Let’s Go Thunder,” and “Thunder Up,” he
`
`cannot state a plausible claim for relief because those phrases are not protected by copyright law,
`
`even if the phrases were contained in a song or other work which is copyrighted.
`
`In his response to the Motion, Plaintiff argues that Defendants are in default because they
`
`did not file an answer within the time prescribed by the Federal Rules of Civil Procedure, and they
`
`instead filed the instant motion. The Court has addressed that issue in a separate order, and has
`
`determined Plaintiff’s argument is without merit because Defendants are not in default.
`
`Accordingly, these arguments do not impact the Court’s ruling on the Motion to Dismiss.
`
`Plaintiff’s response to the Motion to Dismiss does not address the requirements of Twomby,
`
`and does not respond to Defendants’ argument regarding the scope of copyright protection.2
`
`Because such protection does not, as a matter of law, extend to the words and phrases cited by
`
`Plaintiff in the Complaint, even if those words and phrases are contained in copyrighted material,
`
`Plaintiff cannot state a plausible claim for relief based on copyright infringement. The Motion is
`
`GRANTED.
`
`Having so concluded, the Court must consider whether Plaintiff should be allowed to amend
`
`2Since filing his response, Plaintiff has filed with the Court numerous additional materials, some of which were
`stricken as exhibits improperly submitted without first obtaining leave of Court. The submission of what Plaintiff
`considers evidentiary material in support of his claim does not impact the Court’s ruling on the Motion because a Rule
`12(b)(6) motion to dismiss tests only the sufficiency of the pleadings, and materials outside the scope of the Complaint
`may not, as a general rule, be considered. See, e.g., MacArthur v. San Juan County, 309 F. 3d 1216, 1221 (10th Cir.
`2002).
`
`5
`
`

`
`Case 5:10-cv-01116-D Document 39 Filed 04/19/11 Page 6 of 7
`
`to cure the pleading deficiencies in the Complaint. Where, as here, Plaintiff does not expressly seek
`
`leave to amend in the event of dismissal, the Court is not required to consider the propriety of an
`
`amendment, and has the authority to dismiss the claims with or without leave to amend. Brever v.
`
`Rockwell International Corp., 40 F. 3d 1119, 1131 (10th Cir. 1994). However, “‘if it is at all
`
`possible that the party against whom the dismissal is directed can correct the defect in the pleading
`
`or state a claim for relief, the court should dismiss with leave to amend.’” Id. (quoting 6 C. Wright
`
`& A. Miller, Federal Practice & Procedure § 1483, at 587 (2d ed. 1990) and United States v.
`
`McGee, 993 F.2d 184, 187 (9th Cir. 1993)).
`
`A court properly may deny a motion for leave to amend as futile when the proposed amended
`
`complaint would be subject to dismissal for any reason; leave to amend may also be denied where
`
`an amended pleading would not survive a motion for summary judgment. Foman v. Davis, 371 U.S.
`
`178, 182 (1962); Bauchman for Bauchman v. West High School, 132 F. 3d 542, 562 (10th Cir.
`
`1997)(citations omitted); Hom v. Squire, 81 F. 3d 969, 973 (10th Cir.1996). “A dismissal with
`
`prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting
`
`leave to amend would be futile.” Brereton v. Bountiful City Corp., 434 F. 3d 1213, 1219 (10th Cir.
`
`2006). That rule applies even if a plaintiff appears pro se. Roth v. Wilder, 2011 WL 1035728, at
`
`*1 (10th Cir. Mar. 23, 2011)(unpublished opinion) (citing Brereton, 434 F. 3d at 1219).
`
`Construing Plaintiff’s allegations most liberally in his favor, the basis for his copyright
`
`infringement claim is limited to the use of the words and phrases which he contends are contained
`
`in a work protected by a copyright. As set forth herein, that contention does not withstand dismissal
`
`because the words and phrases are not protected by federal copyright law. Accordingly, it would
`
`be futile to permit Plaintiff to attempt to amend the Complaint to state sufficient factual material to
`
`6
`
`

`
`Case 5:10-cv-01116-D Document 39 Filed 04/19/11 Page 7 of 7
`
`support his claim.
`
`For the foregoing reasons, the Motion to Dismiss [Doc. No. 13] is GRANTED, and this
`
`action is dismissed with prejudice. Judgment shall enter accordingly.
`
`IT IS SO ORDERED this 19th day of April, 2011.
`
`
`
`7