UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF TENNESSEE
`NASHVILLE DIVISION
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`No. 3:16-cv-02075
`Chief Judge Sharp
`Magistrate Judge Brown
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`ROLAND PUGH,
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`Plaintiff,
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`v.
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`JERRY NORMAN p/k/a NORM
`DANIELS, et al.,
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`Defendants.
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`To: The Honorable Kevin H. Sharp, Chief United States District Judge
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`REPORT AND RECOMMENDATION
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`Presently pending is a motion to dismiss (Doc. 18) filed by Defendants Jerry Norman
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`p/k/a Norm Daniels, Paramountsong.com (“Paramount”), and StarTune Records (“StarTune”).
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`Upon consideration of the motion, the Magistrate Judge RECOMMENDS that the motion to
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`dismiss (Doc. 18) be GRANTED; the claims of copyright infringement, breach of contract, and
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`piracy be DISMISSED under Rule 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii); that any appeal
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`NOT BE CERTIFIED as taken in good faith under 28 U.S.C. § 1915(a)(3); and that the
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`Plaintiff’s motion to expedite the case (Doc. 25) be TERMINATED AS MOOT.
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`I.
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`BACKGROUND
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`In May 2015, the Plaintiff entered into a “Songwriter Contract” with Paramount. (Doc. 1-
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`1, p. 8). For a fee, Paramount would create a melody and produce a demo of a song written by
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`the Plaintiff titled “Momma Is Walking With Angels” (“Song”). (Doc. 1-1, p. 8). Daniels signed
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`the Songwriter Contract on Paramount’s behalf. (Doc. 1-1, p. 8).
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`On September 2, 2015, the Plaintiff entered into a “Record Contract” with StarTune.
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`(Doc. 1-1, p. 9). Pursuant to the Record Contract, StarTune would “reproduce, master and place
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`Case 3:16-cv-02075 Document 27 Filed 02/23/17 Page 1 of 16 PageID #: 106
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`in major online digital record stores, iTunes and Amazon MP3, recordings of” specified songs.
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`(Doc. 1-1, p. 9). It is assumed the Song was the subject of the Record Contract. In exchange for
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`StarTune acquiring nonexclusive rights to “reproduce, distribute and sell digital recordings,” the
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`Plaintiff would receive percentages of the sales. (Doc. 1-1, pp. 9-10). StarTune would pay the
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`Plaintiff when $10 or more was due. (Doc. 1-1, p. 10). The term of the Record Contract was one
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`year from September 2, 2015. (Doc. 1-1, p. 9). Norman signed the Record Contract on
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`StarTune’s behalf. (Doc. 1-1, p. 9). The Song was registered by the United States Copyright
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`Office effective November 6, 2015. (Doc. 1-1, p. 4).
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`On March 16, 2016, Paramount refunded the money the Plaintiff had paid to StarTune
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`and provided his earnings to-date from iTunes and Amazon. (Doc. 1-1, p. 5). Representatives
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`from Paramount stated “[p]lease be advised that we will no longer be maintaining your song on
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`iTunes and Amazon, nor do we wish to provide any other services for you.” (Doc. 1-1, p. 5).
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`The Plaintiff apparently sought legal assistance, for on May 5, 2016, Daniels responded
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`to a letter from an attorney in Texas. (Doc. 1-1, p. 6). Daniels stated the Plaintiff had received all
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`royalties and funds due to him plus a refund of his expenditures. (Doc. 1-1, p. 6). Though the
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`Plaintiff’s Song may be available on iTunes or Amazon, he only earns royalties when his music
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`is paid for and downloaded from those platforms. (Doc. 1-1, p. 6).
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`On June 29, 2016, the Plaintiff asked Amazon’s copyright department to remove his
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`Song from their online store and investigate piracy. (Doc. 1-1, p. 15). A screenshot of an
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`Amazon website, purportedly dated July 28, 2016, shows the Song was for sale as part of the
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`album “Rainbow Destiny.” (Doc. 1-1, pp. 1-3).
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`In August 2016, the Plaintiff filed a complaint pro se, alleging breach of contract, piracy,
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`and “possible copyright infringement.” (Doc. 1, p. 1 ¶ 1). Referring to documents attached to the
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`complaint, summarized above, the Plaintiff’s statement of the claim was: “Company only paid
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`$2.80 for royalties for November 2015 thru [sic] December 2015. No further royalties paid this
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`year.” (Doc. 1, p. 2 ¶ 4). He prayed for the following relief: an accounting of royalties owed and
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`paid, removal of his Song from digital download stores, payment of fees earned and not paid
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`after the alleged breach of contract, a fine for use of his Song after the alleged breach of contract,
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`and closure of the “company” on account of fraudulent activity. (Doc. 1, p. 3 ¶ 5).
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`On initial review of the complaint, the Court concluded it pleaded a claim of copyright
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`infringement which provided the Court subject-matter jurisdiction. (Doc. 3, p. 2). The Plaintiff
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`was granted leave to proceed in forma pauperis, and the case was referred to the undersigned for
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`disposition of pre-trial, non-dispositive motions and for a report and recommendation on all
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`dispositive motions. (Doc. 3, pp. 1, 3).
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`The Plaintiff then filed a document titled “Breach of Contract/Copyright Infringement.”
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`(Doc. 5). He alleged he was not paid royalties or provided an accounting of earnings after
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`December 2015. (Doc. 5, p. 1). Despite Paramount’s notice that it no longer worked for him as of
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`March 16, 2016, the Plaintiff complained his song was still available for download online. (Doc.
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`5, p. 1). He prayed for attorneys’ fees, a “grievance fee,” unpaid royalties, and court costs. (Doc.
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`5, p. 2).
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`The Defendants collectively moved to dismiss the suit for lack of subject-matter
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`jurisdiction and for failing to state a claim upon which relief can be granted. (Doc. 18). The
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`Plaintiff filed a timely response. (Doc. 23). He claimed that Norm Daniels and Jerry Norman are
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`the same person. (Doc. 23, p. 1). Complaining he has not seen an accounting of his earnings, he
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`challenged the Defendants’ assertion that he did not earn additional royalties. (Doc. 23, p. 1). He
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`again claimed his song was advertised for sale after he received Paramount’s message that it no
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`longer worked for him. (Doc. 23, pp. 1-2). He requested punitive damages and alleged he is
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`entitled to $180,000 on account of emotional and mental damages to him and his family, as well
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`as a ruined songwriting career. (Doc. 23, pp. 2-3).
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`More than one month later, the Plaintiff filed a motion to expedite this case and deny the
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`motion to dismiss. (Doc. 25).1 The Defendants responded to the motion to expedite. (Doc. 26).
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`II.
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`LEGAL STANDARDS
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`Subject-matter jurisdiction is a prerequisite to suit in federal court, and it may not be
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`waived or forfeited by the parties or the court. Union Pac. R. Co. v. Bhd. of Locomotive
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`Engineers & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 81 (2009)
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`(quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)). Challenges to a court’s subject-
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`matter jurisdiction, i.e., the court’s power to hear a case may be facial or factual. Fed. R. Civ. P.
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`12(b)(1); DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004) (citations omitted). A facial
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`attack focuses on whether the allegations in the complaint, taken as true, provide grounds for
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`jurisdiction. Glob. Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806, 810
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`(6th Cir. 2015) (citation omitted). Where, as here,2 the factual basis for jurisdiction is challenged,
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`the allegations in the complaint are not presumed to be true, and the court may weigh evidence to
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`determine if subject-matter jurisdiction exists. Id. (citations omitted). The plaintiff bears the
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`burden of proving the court has subject-matter jurisdiction. Russell v. Lundergan-Grimes, 784
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`F.3d 1037, 1045 (6th Cir. 2015) (citing RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d
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`1125, 1134 (6th Cir. 1996)).
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`1 Notwithstanding the fact that the Plaintiff already filed a response to the motion to dismiss, this supplemental
`response is untimely.
`2 The Defendants did not clearly state whether the challenge was facial or factual. As the attachments to the
`complaint are integral to the Defendants’ challenge, it is construed as a factual challenge.
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`Whereas a motion to dismiss for lack of subject-matter jurisdiction is a procedural
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`challenge, a motion to dismiss under Rule 12(b)(6) seeks a dismissal of the suit on the merits. To
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`progress beyond a Rule 12(b)(6) dispositive motion, the complaint must contain sufficient
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`factual allegations, taken as true for purposes of the motion and construed in the plaintiff’s favor,
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`to state a plausible claim for relief. Luis v. Zang, 833 F.3d 619, 625-26 (6th Cir. 2016) (citations
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`omitted). The facts pled in the complaint must permit “the court to draw the reasonable inference
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`that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
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`(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The court may consider
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`materials attached to the complaint without turning the motion to dismiss into a motion for
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`summary judgment as long as the attachments are referred to in the complaint and are central to
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`the claims asserted therein. Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016) (citations omitted).
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`Complaints filed by individuals proceeding pro se are held to lower standards than pleadings
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`created by attorneys and should be liberally construed. Luis, 833 F.3d at 626 (quoting Williams v.
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`Curtin, 631 F.3d 380, 383 (6th Cir. 2011)). Pro se complaints are nevertheless held to basic
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`pleading standards. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989) (citations omitted). Stated
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`simply,
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`[d]istrict courts are not required to conjure up questions never squarely presented
`to them or to construct full blown claims from sentence fragments. To do so
`would “require . . . [the courts] to explore exhaustively all potential claims of a
`pro se plaintiff, . . . [and] would . . . transform the district court from its legitimate
`advisory role to the improper role of advocate seeking out the strongest arguments
`and most successful strategies for a party.”
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`Black v. Read, No. 3:14-1181, 2016 WL 3561731, at *1 (M.D. Tenn. June 6, 2016), report and
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`recommendation adopted, No. CV 3-14-1181, 2016 WL 3460131 (M.D. Tenn. June 24, 2016)
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`(quoting Dixie v. Ohio, No. 1:08 CV 0450, 2008 WL 2185487, at *1 (N.D. Ohio May 23, 2008)).
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`Where, as here, the Plaintiff is proceeding in forma pauperis, “the court shall dismiss the
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`case at any time if the court determines that . . . the action or appeal . . . fails to state a claim on
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`which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). The Rule 12(b)(6) dismissal
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`standard as explained in Iqbal and Twombly is applied to determine whether dismissal is
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`warranted under § 1915(e)(2)(B)(ii). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The
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`court’s ability to sua sponte review and dismiss claims filed in forma pauperis applies to both
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`prisoner and nonprisoner litigants. Gebremariam v. City of Nashville Police Dep’t, No. 3:16-CV-
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`0861, 2016 WL 2854362, at *1 (M.D. Tenn. May 16, 2016) (citing McGore v. Wrigglesworth,
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`114 F.3d 601, 608 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199
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`(2007)).
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`III. ANALYSIS
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`Through his complaint, the Plaintiff purports to set forth three claims: copyright
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`infringement, breach of contract, and piracy. (Doc. 1, p. 1 ¶ 1). Because a Rule 12(b)(6) motion
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`may be mooted by the results of a Rule 12(b)(1) motion, the Court first considers whether it has
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`subject-matter jurisdiction over these claims.
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`A. COPYRIGHT INFRINGEMENT
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`1. SUBJECT-MATTER JURISDICTION
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`The Plaintiff did not clearly articulate the basis for his claim of copyright infringement.
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`Liberally construing the complaint and its attachments, the Plaintiff alleges that the Record
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`Contract was breached and that any sales of his Song after the breach constitute copyright
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`infringement. He demands an accounting of royalties owed and paid, his Song be removed from
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`online stores, the “company” be closed for fraudulent activity and be fined for using his Song
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`after the breach of contract, and the Plaintiff be awarded a “grievance fee” for continued usage of
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`the Song after the breach of contract.
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` Subject-matter jurisdiction is conferred by 28 U.S.C. § 1338(a) which grants district
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`courts original jurisdiction over civil actions arising under Congressional Acts relating to
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`copyrights. This civil action arises under the Copyright Act, 17 U.S.C. § 101 et seq.3 Citing the
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`T.B. Harms test, courts in this circuit have found that a claim arises under the Copyright Act
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`if and only if [1] the complaint is for a remedy expressly granted by the Act, e.g.,
`a suit for infringement or for the statutory royalties for record reproduction, [2] or
`asserts a claim requiring construction of the Act, . . . [3] or, at the very least and
`perhaps more doubtfully, presents a case where a distinctive policy of the Act
`requires that federal principles control the disposition of the claim.
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`Puetz v. Spectrum Health Hosps., No. 1:14-CV-275, 2015 WL 3935984, at *3 (W.D. Mich. June
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`26, 2015) (quoting T. B. Harms Co. v. Eliscu, 339 F.2d 823, 828 (2d Cir. 1964)); see also
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`Eberhard Architects, LLC v. Bogart Architecture, Inc., 314 F.R.D. 567, 571 (N.D. Ohio 2016);
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`Frazier v. Capitol CMG Publ’g, No. 3:14-CV-02310, 2015 WL 8179684, at *3 (M.D. Tenn.
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`Dec. 7, 2015).
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`The clarity of the T.B. Harms test was muddled by a subsequent Second Circuit opinion,
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`Schoenberg v. Shapolsky Publishers, Inc., 971 F.2d 926 (2d Cir. 1992). In dictum, the
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`Schoenberg court determined whether subject-matter existed where a plaintiff claimed the
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`defendants breached a licensing agreement and that subsequent sales of the plaintiff’s work
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`constituted copyright infringement. Id. at 930-33. Though the complaint alleged copyright
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`infringement and sought damages under the Copyright Act, thus satisfying the T.B. Harms test,
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`the court did not end the jurisdictional analysis there. Id. at 931-33. Rather, the Schoenberg court
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`expanded the inquiry to a three-part analysis: (1) determine whether the infringement claim is
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`3 Consequently, this Court also has jurisdiction under 28 U.S.C. § 1331, which grants district courts “original
`jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”
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`incidental to a claim of ownership or a contractual claim; (2) if it is not incidental, determine
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`whether the plaintiff alleged a breach of a condition to as opposed to a covenant of the contract;
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`and (3) the court has jurisdiction if the infringement claim is not incidental and the plaintiff
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`alleges a breach of condition to the contract or alleges a material breach of a contractual
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`covenant which creates a right of rescission. Id. at 932-33. The court recognized the three-step
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`inquiry would determine the “essence” of the claim. Id. at 933.
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`In 2000, the Second Circuit Court of Appeals abrogated Schoenberg and reaffirmed the
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`T.B. Harms test. Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343 (2d Cir. 2000). The Basset
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`court recognized that the T.B. Harms test was different from the preceding “essence-of-the-
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`dispute or merely-incidental test.” Id. at 349. Rather than considering the defense that would be
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`proffered, the T.B. Harms test solely considered the allegations made in the complaint. Id. The
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`Bassett court explained that the “essence” approach deprived plaintiffs of copyright remedies,
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`such as “injunctive relief, impoundment remedies, statutory damages, and attorneys fees
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`provided by the Act” which would not be available in state court. Id. at 348 (citing 17 U.S.C. §§
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`502-505). The “essence” approach also required the “court to make findings at the outset of the
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`litigation that could not be discerned from the complaint but instead required a deep
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`understanding of the dispute not usually gained until the case had been heard at trial.” Id. The
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`Bassett court noted that through dictum the Schoenberg court had greatly expanded the T.B.
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`Harms test into a three-prong inquiry. Id. at 351-52. Explaining in depth that the Schoenberg test
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`was unworkable, the Bassett court concluded “for claims of infringement arising from, or in the
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`context of, an alleged contractual breach, this circuit’s standard for determining jurisdiction
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`under Section 1338 is furnished by T.B. Harms, and not by Schoenberg.” Id. at 352-55; see also
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`Kousnsky v. Amazon.Com, Inc., 631 F. App’x 22, 24-25 (2d Cir. 2015) (applying Bassett).
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`The District Court for the Northern District of Ohio recently relied on the Bassett
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`decision and the T.B. Harms test in a suit factually similar to the instant case. Eberhard
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`Architects, LLC v. Bogart Architecture, Inc., 314 F.R.D. 567 (N.D. Ohio 2016). In Eberhard, the
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`plaintiff licensed its copyrighted material to the defendants. Id. at 570. When the defendants
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`allegedly failed to make the payments due under the license agreement, the plaintiff terminated
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`the license. Id. The defendants continued to use the copyrighted material. Id. The plaintiff then
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`sued the defendants for copyright infringement and breach of contract. Id. The plaintiff
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`demanded statutory damages, attorneys’ fees, and injunctive relief under the Copyright Act. Id.
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`at 572. The court concluded it had jurisdiction over the matter because the complaint explicitly
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`alleged copyright infringement and sought damages available under the Copyright Act. Id.
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`Rejecting the defendants’ argument that the copyright infringement claim was really a breach of
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`contract claim based on the license agreement, the court explained that jurisdiction is derived
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`from the allegations in the complaint, not the potential defenses. Id.
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`Jurisdictional decisions from other courts in the Sixth Circuit provide additional context.
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`See Severe Records, LLC v. Rich, 658 F.3d 571, 581-83 (6th Cir. 2011) (finding the court had
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`jurisdiction to consider a declaratory judgment action concerning authorship of a song because
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`the claim required construction of the Act); Perry v. Broad. Music, Inc., 23 F. App’x 210, 211-12
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`(6th Cir. 2001) (finding no jurisdiction over a contractual dispute about copyright ownership
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`which was previously decided in another court); Combs v. Plough, Inc., 681 F.2d 469, 470-71
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`(6th Cir. 1982) (finding no jurisdiction over contractual dispute about ownership of patent
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`rights); Frazier, No. 3:14-CV-02310, 2015 WL 8179684, at *3 (concluding the court had
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`jurisdiction to consider claims that the defendants infringed on copyrighted compositions beyond
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`the scope of the parties’ contract); Puetz, No. 1:14-CV-275, 2015 WL 3935984, at *3-5 (finding
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`no jurisdiction to resolve the contractual question of copyright ownership); ACS Transp. Sols.,
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`Inc. v. Nashville Metro. Transit Auth., No. 3:13-CV-1137, 2015 WL 1481461, at *2-3 (M.D.
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`Tenn. Mar. 31, 2015) (finding jurisdiction where the plaintiff alleged copyright infringement
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`based on the defendant’s continued use of the copyrighted material after the defendant
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`terminated the license agreement); Peay v. Morton, 571 F. Supp. 108, 113-17 (M.D. Tenn. 1983)
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`(relying on cases that applied the “incidental/essence” standard before the Bassett decision).
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`Based on the complaint and its attachments, the District Judge previously concluded that
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`the Court has subject-matter jurisdiction over the Plaintiff’s claim of copyright infringement.
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`(Doc. 3, p. 2). The undersigned sees no basis to disturb this finding. The Plaintiff alleges
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`StarTune usurped his exclusive right to reproduce and distribute the copyrighted Song, i.e.,
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`infringement of a copyright, and seeks remedies expressly granted by the Copyright Act: an
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`injunction, damages, and profits. 17 U.S.C. §§ 502, 504. StarTune may rely on a valid license as
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`a defense to a claim of copyright infringement, but this defense does not deprive the Court of
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`subject-matter jurisdiction. See Eberhard Architects, LLC, 314 F.R.D. at 572; see also Edgenet,
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`Inc. v. Home Depot U.S.A., Inc., 658 F.3d 662, 664 (7th Cir. 2011); Nova Design Build, Inc. v.
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`Grace Hotels, LLC, 652 F.3d 814, 816 (7th Cir. 2011); Scandinavian Satellite Sys., AS v. Prime
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`TV Ltd., 291 F.3d 839, 845 (D.C. Cir. 2002); Wallenfang v. Havel, 707 F. Supp. 2d 800, 807
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`(E.D. Wis. 2010).
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`2. FAILURE TO STATE A CLAIM/SCREENING UNDER 28 U.S.C. § 1915(e)(2)
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`As pled, the claim of copyright infringement fails under Rule 12(b)(6) and 28 U.S.C. §
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`1915(e)(2)(B)(ii). The owner of a copyright may maintain an action for direct copyright
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`infringement where the offending party has violated the copyright owner’s exclusive rights,
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`which include the right to reproduce and distribute the copyrighted work. 17 U.S.C. §§ 106, 501.
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`A copyright infringement claim contains two elements: “(1) ownership of a valid copyright; and
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`(2) copying of constituent elements of the work that are original.” Bridgeport Music, Inc. v. WM
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`Music Corp., 508 F.3d 394, 398 (6th Cir. 2007) (quoting Stromback v. New Line Cinema, 384
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`F.3d 283, 293 (6th Cir. 2004)).
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`“[A]nyone who is authorized by the copyright owner to use the copyrighted work in a
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`way specified in the statute or who makes a fair use of the work is not an infringer of the
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`copyright with respect to such use.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S.
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`417, 433 (1984). Consequently, when the owner of a copyright grants either exclusive or
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`nonexclusive rights to use the owner’s copyrighted material, the owner waives the right to sue
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`the licensee for copyright infringement and may only pursue a breach of contract claim. Murphy
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`v. Lazarev, 589 F. App’x 757, 764 (6th Cir. 2014) (citing Sony Corp. of Am., 464 U.S. at 433;
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`Graham v. James, 144 F.3d 229, 236 (2d Cir. 1998)); Mahavisno v. Compendia Bioscience, Inc.,
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`164 F. Supp. 3d 964, 968-69 (E.D. Mich. 2016).
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`The court may consider the merit of an affirmative defense on a motion to dismiss where
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`the affirmative defense is apparent on the face of the complaint. Jones v. Bock, 549 U.S. 199,
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`215 (2007) (citations omitted) (“Whether a particular ground for opposing a claim may be the
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`basis for dismissal for failure to state a claim depends on whether the allegations in the complaint
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`suffice to establish that ground, not on the nature of the ground in the abstract.”); Cataldo v. U.S.
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`Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012). The District Court for the Southern District of
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`New York explained that this principle applies when a party relies on a license as a defense to a
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`claim of copyright infringement:
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`A defendant may raise a complete defense to a copyright infringement claim by
`presenting the court with the license or sublicense on a motion to dismiss, and
`“[d]ismissal of a claim for copyright infringement is proper where a contract
`underlying the suit clearly and unambiguously demonstrates the existence of the
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`defendant’s license to exploit the plaintiff’s copyrights and where plaintiff has not
`shown any limitation on that license.”
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`Spinelli v. Nat’l Football League, 96 F. Supp. 3d 81, 121 (S.D.N.Y. 2015) (quoting Ariel (UK)
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`Ltd. v. Reuters Grp. PLC, No. 05 CIV. 9646 (JFK), 2006 WL 3161467, at *5 (S.D.N.Y. Oct. 31,
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`2006) and citing Jasper v. Sony Music Entm’t, Inc., 378 F. Supp. 2d 334, 338 (S.D.N.Y. 2005)).
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`The complaint does not adequately state a claim for direct copyright infringement. Under
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`the terms of the Record Contract, StarTune possessed a nonexclusive license to place the Song
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`for sale in online digital record stores, such as Amazon, for a period of one year beginning
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`September 2, 2015. (Doc. 1-1, p. 9). As evidence of infringement, the Plaintiff attached to his
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`complaint a screenshot of an Amazon webpage which purportedly showed the Song for sale as of
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`July 28, 2016. (Doc. 1-1, pp. 1-3). This was within the one-year term of the Record Contract.
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`The Plaintiff does not allege that the Amazon listing exceeded the terms of the Record Contract.
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`Nor does the Plaintiff allege that the Song was reproduced and distributed by StarTune after the
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`one-year term of the contract. Rather, the Plaintiff alleges that all online sales of his Song after
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`receipt of a letter from Paramount in March 2016 were unauthorized and therefore infringed on
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`his copyright. In pertinent part, the Paramount letter stated, “[p]lease be advised that we will no
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`longer be maintaining your song on iTunes and Amazon, nor do we wish to provide any other
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`services for you.” (Doc. 1-1, p. 5). As the Songwriter Contract between Paramount and the
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`Plaintiff involved the development of a song recording, not the distribution of the Song online
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`(Doc. 1-1, p. 8), this allegation is insufficient to limit StarTune’s license defense. Further, none
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`of the allegations or attachments to the complaint suggest that either the Plaintiff or StarTune, the
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`only parties to the Record Contract, terminated or otherwise modified the agreement. Nor has it
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`been alleged that Paramount had authority to terminate the Record Contract on StarTune’s
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`behalf. Because the complaint and its attachments demonstrate the existence of a valid defense to
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`
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`a claim of direct copyright infringement, the claim should be DISMISSED under Rule 12(b)(6)
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`and 28 U.S.C. § 1915(e)(2)(B)(ii).
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`B. BREACH OF CONTRACT
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`1. SUBJECT-MATTER JURISDICTION
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`Liberally construing the complaint, the Plaintiff alleges two common law breach of
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`contract claims. First, the Plaintiff alleges StarTune only paid him $2.80 in royalties in 2015 and
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`no royalties in 2016. This is reasonably construed as a claim that StarTune breached the royalty
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`requirement in the Record Contract. Second, the Plaintiff attached to the complaint a notice from
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`Paramount in which Paramount refunded the expenses the Plaintiff had paid StarTune, paid the
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`Plaintiff the full amount of royalties owed, and stated “[p]lease be advised that we will no longer
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`be maintaining your song on iTunes and Amazon, nor do we wish to provide any other services
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`for you.” (Doc. 1-1, p. 5). This is liberally construed as a claim that Paramount breached the
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`Record Contract or Songwriter Contract.
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`With some exceptions, “in any civil action of which the district courts have original
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`jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are
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`so related to claims in the action within such original jurisdiction that they form part of the same
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`case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).
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`“Claims form part of the same case or controversy when they derive from a common nucleus of
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`operative facts.” Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d 576, 588 (6th Cir. 2016) (quoting
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`Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195, 209 (6th Cir. 2004)). That is to say, the claims
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`must “arise from the same contract, dispute, or transaction.” Id. (citing Carnegie-Mellon Univ. v.
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`Cohill, 484 U.S. 343, 350-51 (1988); Capital Park Ltd. Dividend Hous. Ass’n v. Jackson, 202 F.
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`App’x 873, 877 (6th Cir. 2006)).
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`
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`The Court may exercise supplemental jurisdiction over these state law claims. The
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`Plaintiff alleges that the Record Contract was breached by nonpayment of royalties and
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`Paramount’s letter. Any subsequent sale of his Song, alleges the Plaintiff, constitutes copyright
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`infringement. As this Court has original jurisdiction over the Plaintiff’s claim of copyright
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`infringement, the Court may assert supplemental jurisdiction over these breach of contract claims
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`which arise out of the same dispute. See 28 U.S.C. § 1367(a).
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`2. FAILURE TO STATE A CLAIM/SCREENING UNDER 28 U.S.C. § 1915(e)(2)
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`The complaint does not state a plausible claim for breach of contract arising out of
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`deficient royalty payments. The basic elements of a breach of contract claim are: (1) an
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`enforceable contract, (2) nonperformance amounting to a breach of that contract, and (3)
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`resulting damages. Ingram v. Cendant Mobility Fin. Corp., 215 S.W.3d 367, 374 (Tenn. Ct. App.
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`2006) (citation omitted). Even if the Plaintiff is able to prove receipt of $2.80 in royalties in 2015
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`and no royalties in 2016, that alone is insufficient to state a claim for breach of contract. Fatal to
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`this claim, the Plaintiff fails to allege facts suggesting he did not receive the royalties owed to
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`him under the Record Contract. The contract plainly states that the Plaintiff is entitled to a
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`percentage of revenue from Song sales during the contract period. (Doc. 1-1, pp. 9-10).
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`Noticeably absent from the complaint are factual allegations plausibly showing that the royalties
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`paid were inconsistent with Song sales. Absent any indication of nonperformance, the complaint
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`does not state claim for breach of contract based on royalty nonpayment.
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`Second, the notice from Paramount does not plausibly give rise to a claim for breach of
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`contract. Based on the materials attached to the complaint, the only contract between the Plaintiff
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`and Paramount was the Songwriter Contract. Reviewing the complaint and its accompanying
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`materials, there are no factual allegations that Paramount’s notice violated the terms of the
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`
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`Songwriter Contract. Maintaining the Song online for digital sales was required under the Record
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`Contract, not the Songwriter Contract. The Record Contract was between the Plaintiff and
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`StarTune. Absent any allegations that Paramount may make contractual decisions on StarTune’s
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`behalf, the notice from Paramount does not plausibly state a claim for breach of contract.
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`Because the complaint does not plausibly state a claim for breach of contract, these
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`claims should be DISMISSED under Rule 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii).
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`C. PIRACY
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`The Plaintiff alleged piracy in his complaint. No legal basis for this claim was provided.
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`Given the context of this suit it is assumed that the Plaintiff is referring to criminal infringement
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`of a copyright. See 17 U.S.C. § 506; 18 U.S.C. § 2319. Federal courts have subject-matter
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`jurisdiction to hear claims of criminal copyright infringement. 18 U.S.C. § 3231; United States v.
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`Liu, 731 F.3d 982, 987 (9th Cir. 2013). However, there is no private right of action to pursue a
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`claim of criminal copyright infringement under 17 U.S.C. § 506 and 18 U.S.C. § 2319. Taylor v.
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`Ahold, USA/Martin’s Food & Pharmacy, No. 3:16-CV-248, 2016 WL 1752763, at *2 (E.D. Va.
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`May 2, 2016); Roy v. Wrenn, No. 12-CV-303-JD, 2013 WL 4541389, at *4 n.4 (D.N.H. Aug. 27,
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`2013) (citing Kelly v. L.L. Cool J., 145 F.R.D. 32, 39 (S.D.N.Y. 1992)); McCants v. Tolliver, No.
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`1:11 CV 0664, 2011 WL 2893058, at *1 & n.2 (N.D. Ohio July 15, 2011) (citing Donald
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`Frederick Evans & Assocs., Inc. v. Cont’l Homes, Inc., 785 F.2d 897, 912-13 (11th Cir. 1986));
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`Prunte v. Universal Music Grp., 484 F. Supp. 2d 32, 37, 42-43 (D.D.C. 2007).
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`Because there is no private right of action to enforce criminal copyright law, the claim of
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`piracy should be DISMISSED pursuant to Rule 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii). See
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`Galaria v. Nationwide Mut. Ins. Co., No. 15-3386, 2016 WL 4728027, at *5 (6th Cir. Sept. 12,
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`2016) (explaining that dismissal for lack of statutory standing because the plaintiff does not have
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`
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`a cause of action should be done under Rule 12(b)(6)) (citing Roberts v. Hamer, 655 F.3d 578,
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`581 (6th Cir. 2011)); M.J. Whitman & Co. Pension Plan v. Am. Fin. Enterprises, Inc., 725 F