IN THE UNITED STATES DISTRICT COURT
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`FOR THE MIDDLE DISTRICT OF TENNESSEE
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`NASHVILLE DIVISION
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`Case No. 3:08-0738
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`Judge Nixon
`Magistrate Judge Bryant
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`RDER
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`JAMES MARTINEZ,
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`Plaintiff,
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`V.
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`SAMUEL TIMOTHY MCGRAW, et al.,
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`Defendants.
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`Pending before the Court is Defendants Samuel Timothy McGraw, et al.’s Motion to
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`Dismiss (“Defendants’ Motion”) (Doc. No. 77) and Memorandum in Support (Doc. No. 78).
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`Plaintiff James Martinez filed a Response to Defendants’ Motion to Dismiss and Alternatively,
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`Motion for Leave to Amend Pleadings (“Plaintiffs Motion”) (Doc. No. 80). Defendants filed a
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`Response in Opposition to Plaintiffs Motion (Doc. No. 82), to which Plaintiff filed a Reply
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`(Doc. No. 86). For the reasons stated below, Defendants’ Motion is GRANTED and Plaintiffs
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`Motion is DENIED.
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`I.
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`BACKGROUND
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`A.
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`Factual Background 1
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`For the purpose of ruling on Defendants’ Motion to Dismiss, the Court accepts as true the
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`following factual allegations contained in Plaintiffs Complaint.
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`Plaintiff James Martinez (“Plaintiff” or “Mr. Martinez”) is a recording artist and music
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`1 Facts in this section are taken from Plaintiff‘ s Complaint (Doc. No. 1) unless otherwise noted.
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`producer with a principle place of business in Rockport, Texas. Defendant Samuel Timothy
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`McGraw (hereinafter “Defendant” or “Mr. McGraw”) is also a recording artist and music
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`producer. He is known professionally as “Tim McGraw,” and is a Nashville, Tennessee resident
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`with a place of business in Franklin, Tennessee. Plaintiff Martinez also identifies the following
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`individuals as Defendants in this matter: James Stroud, Byron Gallimore, Craig Wiseman, and
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`Mike Reid; Plaintiff further identifies both Mr. Wiseman and Mr. Reid as Defendant McGraw’s
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`songwriters. In addition Plaintiff identifies the following business entities as Defendants: Almo
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`Music Corp., Daddy Rabbit Music, Brio Blues Music, and Curb Records, Inc. However, it is
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`unclear what role these businesses played in the case.
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`In 1996, Plaintiff Martinez wrote a song, entitled Anytime, Anywhere Amanda, inspired
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`by his friendship with Amanda Little, a Miss Texas title holder. He recorded this song, along
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`with others he wrote and produced, on a compact disc (“CD”) (hereinafter the “Collection”). Mr.
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`Martinez copyrighted the Collection on December 6, 1996. Plaintiff is currently and has always
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`been the sole proprietor of all the rights, titles, and interest in the copyrighted material in the
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`Collection.
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`Defendant McGraw’s song, Everywhere, from Defendant’s CD also entitled, Everywhere,
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`is a copy of Anylime, Anywhere Amanda. Mr. Wiseman and Mr. Reid wrote Mr. McGraw’s
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`song, Everywhere, which Defendants copyrighted in 1997. Since early 1997, Defendants have
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`been unlawfully reproducing, distributing, promoting, publicly performing, and offering for sale
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`unauthorized copies of Plaintiff s song, Anytime, Anywhere Amanda in the form of Defendant
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`McGraw’s song, Everywhere.
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`Defendant McGraw had access to Mr. Martinez’s song via the studio where Mr. McGraw
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`recorded his CD Everywhere. Terri Clark} a non-party to the suit, is a recording artist who
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`recorded a CD in the same studio where Defendant McGraw recorded his CD. Moreover,
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`individuals who worked on Ms. Clark’s CD also worked on Defendant McGraw’s CD. Terri
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`Clark’s song You ’re Easy on the Eyes, incorporates lyrics from a song in Plaintiffs copyrighted
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`Collection, entitled Easy on the Eyes, Hard an the Heart. As a result of Ms. Clark’s similar song
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`and affiliation with the abovementioned studio, Defendants had access to Plaintiffs Collection,
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`thus enabling Defendants to copy it. In addition, Mr. McGraw’s Everywhere CD contains
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`another song, Hard on the Ticker, which is similar to the phrase, “hard on the heart,” which is
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`part of the title of a song in Plaintiffs Collection. This fact further illustrates Defendants’ access
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`to Plaintiffs Collection.
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`As a result of the copyright infringement, Defendants’ conduct has and continues to
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`deprive Plaintiff of the benefits of selling his song. Moreover, as a direct and proximate result of
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`Defendants’ conduct, Plaintiff has suffered irreparable damage and lost profits.
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`B.
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`Procedural History
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`On March 8, 2008, Plaintiff Martinez filed suit against Defendants in the United States
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`District Court of the Southern District of Texas. Mr. Martinez asserts the following claims: (1)
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`declaratory judgment; (2) copyright infringement pursuant to 17 U.S.C. §§ 101 et seq. (2009); (3)
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`violation of the Universal Copyright Convention; (4) violation of Convention for Protection of
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`Phonographs; (5) violation of Section 43(a) of the Lanham Act pursuant to 15 U.S.C. §§ 1121
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`and 1125(a); and (6) accounting.
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`2 Plaintiffidentifies Ms. Clark as “Terry Clark” in the Complaint. Presumably, Plaintiff meant to refer to
`Terri Clark, a country music artist who recorded an album,H0w [Fee], that contains a song entitled, You ’re Easy on
`the Eyes, which was released in 1998 on Mercury Records.
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`The District Court of the Southern District of Texas transferred the case to this Court
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`pursuant to 28 U.S.C. § 1404(a) on July 24, 2008. (Doc. No. 54). On October 9, 2008
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`Defendants filed a Motion to Dismiss (Doc. No. 77) and Memorandum in Support (Doc. No. 78).
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`On the following day, October 10th, Defendants also field Appendix B to the Memorandum in
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`Support (Doc. No. 79). Plaintiff Martinez filed his Response and Alternatively, Motion for
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`Leave to Amend Pleadings (Doc. No. 80) on October 24, 2008. On November 6, 2008,
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`Defendants filed a Response in Opposition to Plaintiff’ s Motion (Doc. No. 82), to which Plaintiff
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`filed a Reply on November 24, 2008 (Doc. No. 86).
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`As a result of Defendants’ alleged conduct, Mr. Martinez seeks declaratory and injunctive
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`relief as well as damages. Specifically, Plaintiff requests the Court to issue a decree declaring
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`Mr. Martinez owner of the song Anytime, Anywhere Amanda within the meaning of 17 U.S.C.
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`§201(a) and to enjoin Defendants from continuing the alleged unlawful conduct. Mr. Martinez
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`also seeks to recover twenty million dollars ($20,000,000.00) in undeserved profits from
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`Defendants. In addition, Martinez requests attorney’s fees and costs.
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`The Court’sjurisdiction over Plaintiffs claims arises under 28 U.S.C. §§ 1331, 1338(a),
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`and 13 67(a).
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`II.
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`LEGAL STANDARD
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`In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court
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`will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as
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`true, and draw all reasonable inferences in favor of the plaintiff.” Directv Inc. v. Treesh, 487
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`F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The
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`Federal Rules of Civil Procedure require only that a plaintiff provide
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`a short and plain
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`666
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`statement of the claim’ that will give the defendant fair notice of what the plaintiffs claim is and
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`the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court must
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`determine only whether “the claimant is entitled to offer evidence to support the claims,” not
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`whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534
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`U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). “Indeed it may
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`appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the
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`test.” , 416 U.S. at 236. Rather, challenges to the merits of a plaintiff’ s claim should be
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`“dealt with through summary judgment under Rule 56.” Swierkiewcz, 534 U.S. at 514.
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`In Bell Atlantic Corp. v. Twombly, the Supreme Court readdressed the pleading
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`requirements under the Federal Rules. The Court stressed that, although a complaint need not
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`plead “detailed factual allegations,” those allegations “must be enough to raise a right to relief
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`above the speculative level.” 550 U.S. 544, 545 (2007). “The factual allegations, assumed to be
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`true, must do more than create speculation or suspicion of a legally cognizable cause of action;
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`they must show entitlement to relief.” League of United Latin Am. Citizens v. Bredesen, 500
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`F.3d 523, 527 (6th Cir. 2007) (citing Twombly, 550 U.S. at 555) (emphasis in original). Further,
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`the Court observed that Federal Rule of Civil Procedure 8(a)(2) requires a “showing” that the
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`plaintiff is entitled to relief and that this substantive threshold is not achieved by “blanket
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`assertion[s].” Twombly, 550 U.S. at 556 n.3.
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`Although Federal Rule of Civil Procedure 8 establishes a “liberal system of notice
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`pleading,” _s_ee E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001), “a
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`plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than
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`A.
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`Plaintifi”s Claimfor Declaratory Judgment is Not Ripe
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`Mr. Martinez requests the Court to enter an order, pursuant to 28 U.S.C. §2201, declaring
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`that he is the owner ofAnytime, Anywhere Amanda within the meaning of 17 U.S.C. § 201(a).
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`However, Plaintiff has failed to demonstrate to the Court that there is an “actual controversy” (28
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`U.S.C. §2201(a) (2009)) regarding the ownership ofAnytime, Anywhere Amanda. Plaintiff does
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`not allege that Defendants ever claimed a right to Plaintiffs song at issue. Federal courts require
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`the party seeking a declaratory judgment to allege facts that “show that there is a substantial
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`controversy, between parties having adverse legal interests, of sufficient immediacy and reality to
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`warrant the issuance of a declaratory judgment.” Maryland Cas. Co. v. Pacific Coal & Oil Co.,
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`312 U.S. 270, 273 (1941); see also TCI/TKR Cable v. Johnson, 30 Fed. Appx. 581 (6th Cir.
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`labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
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`do.” Twombly, 550 U.S. at 555 (citing Papasan V. Allain, 478 U.S. 265, 286 (1986)).
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`Accordingly, to survive a motion to dismiss, “[fjactual allegations must be enough to raise a right
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`to relief above the speculative level .
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`.
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`. on the assumption that all the allegations in the complaint
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`are true (even if doubtful in fact)?’ Twombly, 550 U.S. at 555; S_6§3_ a_s_o Swierkiewicz, 534 U.S.
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`at 508 n.1; Neitzke V. Williams, 490 U.S. 319, 327 (1989) (“Rule l2(b)(6) does not countenance
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`.
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`.
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`. dismissals based on a judge’s disbelief of a complaint’s factual allegations”); Scheuer, 416
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`U.S. at 236 (a well-pleaded complaint may proceed, even if it appears “that a recovery is very
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`remote and unlikely”). With this standard in mind, the court turns to an analysis of Mr.
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`Martinez’s claims.
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`III.
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`ANALYSIS
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`2002) (holding that absent an actual controversy there can be no declaratory judgment).
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`In his Response, Plaintiff merely states that he sufficiently pled facts proving copyright
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`infringement in the Complaint and therefore, he is entitled to a declaratory judgment. However,
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`this assertion does not change the fact that there is no controversy regarding the ownership of
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`Plaintiff’ s song. Furthermore, an award of ownership over an infringing work is not a remedy
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`provided under the Copyright Act for copyright infringement. E 17 U.S.C. §§ 502-05 (2009)
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`(the exclusive remedies for copyright infringement include injunctive relief, impounding and
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`disposition of the infringing articles, damages and profits, and costs and attorney’s fees).
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`Thus, Defendants’ Motion to Dismiss Plaintiffs claim for declaratory judgment is
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`GRANTED.
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`B.
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`Plaintiflhas Failed to Plead Facts Supporting a Claim of Copyright Infringement
`and is Thus Not Entitled to Relief
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`To establish a copyright infringement claim, a plaintiff must prove (1) that he had
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`ownership of a valid copyright; and (2) that another person copied a protected interest in the
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`work. Coles v. Wonder, 283 F.3d 798, 801 (6th Cir. 2002). If the plaintiff lacks direct evidence
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`of copying, he may “establish an inference of copying by showing (1) access to the allegedly-
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`infringed work by the defendants(s) and (2) a substantial similarity between the two works at
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`issue.” Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir. 1999). The Sixth Circuit recognizes that
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`evidence of direct copying is rare, therefore many plaintiffs rely on establishing an inference of
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`copying to prove their claim. §e_e Q; Robert R. Jones Assocs.
`Inc. v. Nino Homes, 858 F.2d
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`274, 276-77 (6th Cir. 1988); Wickham v. Knoxville lnt’l Energy Exposition, Inc., 739 F.2d 1094,
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`1097 (6th Cir. 1984); gt: ali 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, §
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`13.02 (revised 1998).
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`Mr. Martinez does not plead facts that would establish direct copying, but rather he
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`attempts to rely on facts to show an inference of copying after establishing he had valid
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`ownership. As proof of ownership of his song, Mr. Martinez submits a copy of the Certificate of
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`Registration. (Doc. No. 1, Ex. A). In the Complaint, Mr. Martinez states that Defendants had
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`“access” to his song Anytime, Anywhere Amanda and that Defendants’ song Everywhere is
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`“substantially similar.” However, Plaintiff fails to plead facts that amount to Defendants having
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`access to Anytime, Anywhere Amanda. Moreover, Plaintiff fails to plead facts demonstrating that
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`Defendant McGraw’s song, Everywhere is “substantially similar” to Plaintiff’ s song, Anytime,
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`Anywhere Amanda beyond stating that the two works are “substantially similar.” Thus, Plaintiff
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`has failed to plead facts that would entitle him to relief for Defendants’ alleged copyright
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`infringement.
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`Within the context of copyright infringement, “access means hearing or .
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`.
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`. having a
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`reasonable opportunity to hear the plaintiffs’ work and thus having the opportunity to copy.”
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`Tree Pub. Co.
`Inc. V. Warner Bros. Records, 785 F.Supp. 1272, 1274 (MD. Tenn 1991). Mr.
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`Martinez claims that
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`Defendants had access to [Plaintiffs] song based upon the fact that
`[Plaintiff’ s] Collection also contains a song titled Easy on the Eyes, Hard
`on the Heart. Plaintiff coined this title and it is unique. Terr[i] Clark’s
`song You ’re Easy on the Eyes in which the Plaintiffs exact title is
`incorporated into the lyrics .
`.
`. [T]he studio that recorded Terry Clark’s cd
`and Tim McGraw’s Everywhere cd are closely related in songwriters and
`personnel. In fact, the same writers who worked on Tim McGraw’s
`Everywhere cd wrote four of the song[s] on Terr[i] Clark’s Easy on the
`Eyes cd. Moreover, Tim McGraw’s Everywhere cd contains another song
`entitled Hard on the Ticker, further demonstrating access to Plaintiff’ s
`Collection.
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`(Doc. No. l, at 3-4). Plaintiff further claims that there are “obvious connections between” Terri
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`Clark’s How I Feel CD and Defendant McGraw’s Everywhere CD, specifically, that “both artists
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`shared many of the same recording personnel in recording their cds and both were copyrighted in
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`1997.” (Doc. No. 80, at 7). In support, Plaintiff identifies EMI Blackwood Music Inc., Stephony
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`Smith, and Hamstein Cumberland Music as common contributors to both Ms. Clark’s and
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`Defendant McGraw’s albums. (Doc. No. 80, Att. 2).
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`Although Plaintiff is not required to plead “detailed factual allegations,” the “[f]actual
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`allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550
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`U.S. at 555. Here, Mr. Martinez fails to assert factual allegations that raise a right to relief above
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`the speculative level. In the Complaint, Mr. Martinez alleges that Terri Clark, a non-party
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`musician, recorded a song with a title that is comprised of a common phrase3 also used by
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`Plaintiff in his song title. Mr. Martinez then alleges that both Ms. Clark and Mr. McGraw used
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`the same studio to record their albums and used some of the same songwriters and personnel to
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`create their albums. Plaintiff concludes that this tenuous string of facts resulted in Defendants
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`having access to Plaintiffs song. Yet, Plaintiff fails to state facts that could raise even an
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`inference of access. Plaintiff does not allege how his song Anytime, Anywhere Amanda got into
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`the hands of Ms. Clark’s personnel and songwriters or even that his song was played in hearing
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`range of Ms. Clark’s personnel and songwriters or that Ms. Clark’s personnel and songwriters
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`had any contact with Plaintiff or Plaintiff’ s Collection. Instead, Plaintiff relies on the fact that
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`3According to the American Society of Composers, Authors and Publishers (“ASCAP”) as of August 7,
`2009, there are thirteen other copyrighted songs, besides Ms. Clark’s song, that contain the phrase “easy on the eyes”
`in the title. Moreover, there is a copyrighted song by Simpson James Roger entitled, ‘Easy on the Eyes (Tough on
`the Heart)”
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`Ms. Clark produced a song entitled, You ’re Easy on the Eyes, that contains a well—known phrase,
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`which is similar to Plaintiff’ s song titled, Easy on the Eyes, Hard on the Ticker.
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`“[E]vidence that a third party with whom both the plaintiff and defendant were
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`concurrently dealing had possession of plaintiffs work [may be] sufficient to establish access by
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`the defendant, [however] access may not be inferred through mere speculation or conjecture.”
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`Jones v. Blige, 558 F.3d 485, 491 (6th Cir. 2009) (quoting Murg; Hill Publ’n, Inc. V. Twentieth
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`Century Fox Film Corp, 361 F.3d 312, 316 (6th Cir. 2004). Here, Plaintiff fails to provide facts
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`that would show Ms. Clark had possession of Plaintiff’ s song or Collection at any point or that
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`she, or people she worked with, made Plaintiffs song available to Defendants. Instead, Plaintiff
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`speculates that because Ms. Clark and Defendant McGraw recorded their albums at the same
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`studio and shared musical personnel to produce their albums, Defendants had access to Plaintiffs
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`song. Moreover, Plaintiff further speculates that Ms. Clark had concurrent dealings with himself
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`and Defendants based on the fact that one of Ms. Clark’s song titles is similar to Plaintiffs and
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`Ms. Clark and Mr. McGraw recorded their albums in the same studio with help from some of the
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`same individuals.
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`With regard to substantial similarity, Plaintiff merely states that the two works are
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`“substantially similar” and that Defendants created the copyright infringing song “through blatant
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`and literal copying, altering and reproducing [Plaintiff s] song.” (Doc. No. 1, at 3 and 5).
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`However, as stated above, “plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to
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`relief’ requires more than .
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`.
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`. a formulaic recitation of the elements of a cause of action.”
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`Twombly, 550 U.S. at 555 (citing , 478 U.S. at 286). Here, Plaintiff merely restates the
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`elements of the cause of action.
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`Plaintiff also asserts that Defendants’ Motion relies primarily on case law involving
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`motions for summary judgment in an attempt to prematurely litigate this case on the merits.
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`(Doc. No. 80, at 5-6). Regardless of the cases that Defendants relied on in their Motion, the
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`Court relies exclusively on the standard for a motion to dismiss for failure to state a claim upon
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`which relief can be granted. Using this standard, as articulated above, Plaintiff has failed to
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`plead allegations that raise a right to relief for copyright infringement above the speculative level.
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`Accordingly, Defendants’ Motion to Dismiss Plaintiffs claim of copyright infringement is
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`GRANTED.
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`C.
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`Because PlaintiflFailed to Allege Facts to Warrant Relieffor Copyright
`Infringement, Plainttfi" is Not Entitled to Relieffor Defendant ’s Alleged Violation
`of the Universal Copyright Convention
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`“[T]he Universal Copyright Convention (U.C.C.) .
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`.
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`. mandates a policy of national
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`treatment in which copyright holders are afforded the same protection in foreign nations that
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`those nations provide their own authors.” Creative Tech, Ltd. v. Aztech Sys. Pte., Ltd., 61 F.3d
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`696, 700 (9th Cir. 1995). However, “in order to recover for extraterritorial damages, ‘at least one
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`alleged [act of] infringement must be completed entirely within the United States’ that would
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`subject the defendant to liability under the Copyright Act.” Newton V. Diamond, 204 F.Supp. 2d
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`1244, 1259 (C.D. Cal. 2002) (dismissing claim for international copyright infringement in
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`violation of the U.C.C.) (citing Los Angeles News Serv. v. Reuters Television Intern, Ltd., 149
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`F.3d 987, 992 (9th Cir. 1998)); c_f_. De Bardossy v. Puski, 763 F.Supp. 1239, 1243 (S.D.N.Y.
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`1991) (holding that domestic jurisdiction is proper if plaintiff can show that an infringing act
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`occurred domestically and that the act led to further infringement abroad).
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`Given that the Court dismissed Plaintiffs claim for relief under the Copyright Act,
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`Plaintiff is not entitled to relief under the Universal Copyright Convention. In support of his
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`U.C.C. claim, Plaintiff merely reiterates the argument that he sufficiently pled his copyright
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`infringement claim to survive a l2(b)(6) motion. As a result, Plaintiff claims his factual
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`allegations for violation of the U.C.C. are also sufficient. However, the law does not support
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`Plaintiffs argument. Thus, Defendant’s Motion to Dismiss Plaintiffs claim of violation of the
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`U.C.C. is GRANTED.
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`D.
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`Plaintiff’s Alleged Facts Involving the Convention for the Protection ofProducers
`0fPh0nograms Do Not Raise a Right to ReliefAb0ve the Speculative Level
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`The Convention for the Protection of Producers of Phonograms protects producers of
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`phonograms against unauthorized duplication and distribution of their phonograms. Convention
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`for the Protection of Producers of Phonograms Against Unauthorized Duplication, March 10,
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`1974, 25 U.S.T. 309 (hereinafter “Phonograms Convention”). The Phonograms Convention
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`defines phonograms as “exclusively aural fixation of sounds of a performance or of other
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`sounds.” 1d_. at Art. 1(a). It further defines duplicate as “an article which contains sounds taken
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`directly or indirectly from a phonogram and which embodies all or substantial part of the sounds
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`fixed in that phonogram.” I_cL at Art. l(c).
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`In the Complaint, Plaintiff provides “a formulaic recitation of the elements,” Twombly,
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`550 U.S. at 555 (citing , 478 U.S. at 286 (1986)), of what would constitute a violation of
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`the Phonograms Convention: “Defendants caused phonorecords serving to reproduce
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`mechanically Plaintiffs song, and as an unauthorized record[] to be imported or duplicated in
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`various Phonogram Convention Territories, in direct violation of Plaintiffs exclusive rights in
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`Plaintiffs song.” (Doc. No. l, at 9). Here, Plaintiff merely states that Defendants “reproduced
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`mechanically Plaintiff’s song” and “imported or duplicated” it “in various Phonogram
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`Convention Territories.” Such a recitation of the elements is insufficient to show that Plaintiff is
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`entitled to relief. Twombly, 550 U.S. at 545.
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`Although Plaintiff is not required to provide “detailed factual allegations,” the allegations
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`must raise the right to relief above a speculative level.
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`I_d. Here, Plaintiff merely states that
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`“Defendant caused” Plaintiffs song to be duplicated and imported or duplicated abroad. He fails
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`to mention where Defendants allegedly imported the duplications and who allegedly duplicated
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`the song. The assertion that Defendants “caused” the duplication implies that a non-party was
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`involved in the duplication. Thus, the Court and Defendants are left to speculate how
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`Defendants allegedly violated Plaintiffs rights under the Phonograms Convention. As a result,
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`Defendants’ Motion to Dismiss as to the Phonograms Convention is GRANTED.
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`E.
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`Plaintiff’s Claims Under the Lanham Act are Moot Given his Voluntary Nonsuit.
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`In his Response, Mr. Martinez submits a voluntarily nonsuit for his claim involving
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`Defendants’ alleged violation of Section 43(a) of the Lanham Act pursuant to 15 USC. §§ 1121.
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`(Doc. No. 80, at 9-10). Federal Rule of Civil Procedure Rule 41(a)(l) permits a plaintiff to
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`voluntarily dismiss an action. Accordingly, Plaintiffs claim for violation under the Lanham Act
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`is DISMISSED without prejudice and Defendants’ Motion to Dismiss Plaintiff’ s claim under
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`the Lanham Act is rendered MOOT.
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`F.
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`Plaintiff is Not Entitled to Accounting
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`Plaintiff claims that as a result of Defendants’ alleged copyright infringement, Plaintiff is
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`entitled to an accounting of Defendants’ profits from Defendants’ song, Everywhere. Plaintiff
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`argues that he is entitled to 100 percent of Defendants’ profits, which Plaintiff claims are in
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`excess of twenty million dollars ($20,000,000.00). (Doc. No. 1 at 11).
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`In support, Plaintiff relies on Goodman V. Lee, 78 F.3d 1007, 1012 (5th Cir. 1996), in
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`which the court awarded royalties to a song’s co-author and joint owner of the copyright
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`registration. However, Plaintiffs interpretation of Goodman is incorrect. Accounting is not a
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`remedy for copyright infringement, but rather a well-established principle that co-owners of a
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`copyright must account to other co—owners for any profits earned from use of the copyright. 78
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`F.3d at 1012. “[T]he duty to account does not derive from the copyright law’s proscription of
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`infringement[, r]ather, it comes from equitable doctrines relating to unjust enrichment and
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`general principles of law governing the rights of co—owners.” Oddo v. Reis, 743 F.2d 630, 633
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`(9th Cir. 1984). Accordingly, “[a] co-owner of a copyright cannot be liable to another co-owner
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`for infringement of the copyright.” Richmond v. Weiner, 353 F.2d 41, 46 (9th Cir. 1965).
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`Here, in order for the Court to award Plaintiff a share of the profits made from
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`Defendants’ song Everywhere according to the principle of accounting, Plaintiff would need to
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`plead facts showing that Plaintiff is a co-owner of the copyright for Everywhere. Plaintiff has not
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`pled such facts. Moreover, because Plaintiffs cause of action for accounting is based on the
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`allegation that Defendants infringed on Plaintiffs copyrighted work, Plaintiff’s accounting claim
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`is preempted by Section 301 of the Copyright Act, 17 U.S.C. § 301 (2009). Motown Record
`
`
`Corp. v. George A. Hormel & Co., 657 F.Supp. 1236, 1241 (C.D. Cal. 1987); Falcon Enter. Inc.
`
`
`
`v. Nobel Dev.
`lnc., 2007 WL 737347, * 3 (WD. Wash. Mar. 5, 2007); Pelt v. CBS Inc., 1993
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`WL 273683, *1 (C.D.Cal. Apr. 28, 1993); see fig Brainard V. Vassar, 561 F.Supp. 2d 922, 933
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`(M.D. Tenn. 2008).
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`Thus, Defendants’ Motion to Dismiss with respect to Plaintiff s accounting claim is
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`GRANTED.
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`G.
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`Amending the Complaint
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`In his Response to Defendants’ Motion, Plaintiff also requests leave from the Court to
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`amend his Complaint if the Court grants Defendants’ Motion. (Doc. No. 80, at 10). However,
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`Plaintiff fails to provide the Court with his proposed amended complaint or give the Court any
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`indication of how he intends to amend his Complaint. As a result, Plaintiffs Motion must fail.
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`The Federal Rules of Civil Procedure recognize a liberal pleading practice. Pursuant to
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`Rule 15(a), a party may petition the Court for an amendment of an earlier complaint by leave of
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`the Court. Fed. R. Civ. P. 15(a). Courts regularly grant a party’s motion to amend for a variety
`
`of reasons, including the addition of claims, additional defenses, and increased damages. fige
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`generally Wright, Miller and Kane, Federal Practice and Procedure, Civil 2d § 1474. However,
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`in order for the district court to determine whether justice requires a plaintiff to amend his
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`complaint “the court must have before it the substance of the proposed amendment.” m
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`Baking Co., Inc. v. Lanham Mach. Co., Inc., 288 F.3d 895, 906 (6th Cir. 2002); Kostyu v. Ford
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`Motor Co., 1986 WL 16190, *2 (6th Cir. Jul. 18, 1986) (denying plaintiffs motion to amend his
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`complaint because “plaintiff did not submit a proposed amended complaint and failed to disclose
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`what amendments he intended to make”).
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`Here, Plaintiff fails to submit a proposed amended complaint and he neglects to disclose
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`what amendments he intends to make. Rather, Plaintiff merely states that “should the Court
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`[grant Defendants’ Motion to Dismiss], Plaintiff only asks for an opportunity to amend its
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`Complaint before being dismissed.” (Doc. No. 86, at 4).
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`Thus, Plaintiffs Motion is DENIED.
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`IV.
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`CONCLUSION
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`For the foregoing reasons, Defendants’ Motion is GRANTED with regard to Plaintiffs
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`claims brought under the Copyright Act, 17 U.S.C. §§ 101 et seq. (2009), the Universal
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`Copyright Convention, the Convention for Protection of Phonographs, and 28 U.S.C. § 2201.
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`Plaintiff’ s claim brought under Section 43(a) of the Lanharn Act pursuant to 15 U.S.C. §§ 1121
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`is DISMISSED with prejudice and Plaintiff’s Motion to Amend the Complaint is DENIED.
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`It is so ORDERED.
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`’?“\
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`Entered this the
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`[G
`
`day ofAugust, 2009.
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`
`
`UNITED STATES DISTRICT COURT
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