b. Similarity to Infer Copying
In addition to showing defendants' access to his work, plaintiff must also show that his song and Dylan's song were substantially similar in order to infer that copying occurred. This is the so-called "extrinsic test" of substantial similarity, which calls for a dissection of the musical structure of the two pieces in search of objective similarities. Expert testimony is permitted, and often useful, in establishing substantial similarity at this phase of the inquiry. Although both sides retained experts for the comparison of plaintiff's "Steel Guitars" to Dylan's "Dignity," the experts analyzed the irrelevant Exhibit 71 version and not the one on the Copyright tape. Plaintiff's expert concluded that the melody of "Dignity" and plaintiff's Exhibit 71 version were thirty-two percent similar. Since the two versions of "Steel Guitars" are themselves different, however, the court will not consider the expert testimony as it might apply to the Copyright tape version. Without the benefit of expert testimony or other evidence specific to the Copyright tape version of plaintiff's song, the court must engage its own analysis of the components of the songs. To the ear of this court, there is no substantial similarity in the structure, instrumentation or melody of the two songs. These songs "speak" for themselves and no reasonable factfinder could find substantial similarity.
Although this alone would dispose of plaintiff's musical infringement claim, the court will continue so as to complete this analysis.
3. Substantial Similarity to Show Appropriation
The final step of an infringement analysis is the so-called intrinsic test of substantial similarity which seeks the response of a lay person to the "total concept and feel" of the two songs at issue. See Whelan, 797 F.2d at 1234. "The general test for determining substantial similarity is whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." Warner Bros. v. American Broadcasting Co., 654 F.2d 204, 208 (2d Cir. 1981).
After listening several times to both Dylan's "Dignity" and plaintiff's "Steel Guitars" as it appears on the Copyright tape, this court is convinced that no reasonable juror could find the two songs substantially similar in total concept and feel. Plaintiff's song, an instrumental, consists of two guitars -- one that plays a fairly repetitious baseline, and one that plays a seemingly improvised free melody. Dylan's song has full instrumentation and accompanying lyrics. The overall effect of the two pieces is quite dissimilar -- put simply, they just don't sound alike. The lack of substantial similarity necessarily leads to a conclusion that Bob Dylan did not improperly appropriate plaintiff's work and thus ends the analysis of plaintiff's music infringement claim. Summary judgment will be granted in favor of defendants as to all of plaintiff's copyright infringement claims.
D. Plaintiff's Remaining Claims
Mr. Damiano also asserts federal claims under the Lanham Act and RICO, and state law claims on the theories of fraud, breach of confidence and misappropriation. To the extent that they all are based on the alleged plagiarism or theft of plaintiff's work by Bob Dylan, the dismissal of his copyright infringement claim mandates dismissal of the others since Damiano cannot establish that Dylan copied or even used any of his work.
Defendants also raise additional grounds for dismissal of plaintiff's accompanying federal and state law claims.
1. Lanham Act
Plaintiff's claim here revolves around the contention that he is the "co-author" of works that Dylan has falsely designated as his own, thus misleading the public and depriving Damiano of proper credit for his work. Although, as plaintiff points out, the elements of copyright infringement and Lanham Act claims are somewhat different, the fact that Damiano cannot establish that his work was copied by Dylan surely precludes a reasonable juror from finding that the two co-authored any works. Plaintiff has failed to present any evidence that would support his Lanham Act claim, and thus, summary judgment will be granted in favor of the defendants.
Plaintiff alleges that defendants engaged in "massive mail fraud" by putting into interstate commerce recordings containing fraudulent statements, namely, that Bob Dylan created songs on the recordings which were actually created by plaintiff.
Plaintiff's RICO claims must fail because they are actually nothing more than copyright infringement claims presented as mail fraud and copyright infringement is not a predicate act under RICO. Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). Further, since plaintiff has failed to show that Dylan copied any of his work, he cannot show that the dissemination of Dylan's recordings or the statements contained therein were in any way fraudulent. Summary judgment is therefore granted on plaintiff's RICO claims.
3. State Claims
Defendants argue that plaintiff's state claims are pre-empted by the federal copyright law. Plaintiff does not respond to the pre-emption argument.
Section 301 of the copyright act explicitly preempts state laws that (1) fall within the subject matter of the federal copyright law and protect works that are fixed in tangible medium of expression; and (2) create legal or equitable rights that are equivalent to any of the exclusive rights granted to the copyright holder and specified in Section 106.
Jarvis, 827 F. Supp. at 296.
Insofar as any of plaintiff's state claims turn on the alleged unauthorized copying or use of his lyrics and music, they are pre-empted by federal copyright law. As an initial matter, the court notes that plaintiff has not attempted to argue that his state claims arise from anything other than the alleged theft of his songs by Bob Dylan.
a. Misappropriation of Property
Plaintiff's misappropriation claim is based on the alleged unauthorized use of plaintiff's materials by Bob Dylan. This claim is equivalent to plaintiff's copyright infringement claim and thus is pre-empted.
b. Breach of Confidence and Fraud
Without reaching the question of pre-emption on plaintiff's final state law claims, the court finds that plaintiff has failed to establish either claim. First, plaintiff has offered no proof to show that defendants owed him any duty or that such a duty could have been breached by their actions. Second, plaintiff has failed to establish a claim for fraud, especially to the degree of specificity required by Rule 9(b), Fed. R. Civ. P. Plaintiff has not produced any proof of direct misrepresentations by defendants. At best, this court will accept as true plaintiff's allegation that Sony represented to him that he would be credited and compensated if Dylan used his work. Plaintiff, however, has failed to show that his work was ever used, incorporated or copied by Dylan.
Plaintiff's state claims therefore fail as a matter of law and summary judgment will be entered in favor of defendants.
E. Plaintiff's Appeal of Judge Rosen's Orders
As a final matter, this court reserved decision on plaintiff's appeal of Judge Rosen's August 6, 1996, Orders pending the outcome of defendant's summary judgment motion. These appeals assert that Judge Rosen erred in denying plaintiff access to information related to data about the sales of Dylan's songs and about Dylan's alleged motive to copy the works of others. See Damiano v. Sony Music Entertainment, Inc., 168 F.R.D. 485 (D.N.J. 1996). Neither issue pertains to the questions decided herein, which are dispositive of the case. The granting of summary judgment in favor of defendants renders plaintiff's appeal moot.
For the reasons set forth above, summary judgment is granted for defendants on all counts of plaintiff's complaint. Defendants have fourteen days to apply for Rule 11 sanctions or statutory attorney's fees as detailed in part I of this Opinion. The appeal of Magistrate Judge Rosen's Orders of August 6, 1996, is dismissed as moot.
The accompanying Order has been entered.
JEROME B. SIMANDLE
United States District Judge
This matter having come before the court upon the defendants' motion for summary judgment; and the court having considered the submissions of the parties and heard oral argument on the matter; and for the reasons set forth in the Opinion of today's date;
It is this 16th day of December, 1996, hereby
ORDERED that the defendants' motion for summary judgment be, and hereby is GRANTED as to all counts of plaintiff's complaint; and it is
FURTHER ORDERED that plaintiff's appeal of Judge Rosen's Orders of August 6, 1996, be and hereby, is DISMISSED as moot; and it is
FURTHER ORDERED that any motion for statutory attorney's fees or Rule 11 sanctions shall be filed within 14 days of the entry of this Order.
JEROME B. SIMANDLE
United States District Judge