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DAMIANO v. SONY MUSIC ENTERTAINMENT

December 16, 1996

JAMES DAMIANO, Plaintiff,
v.
SONY MUSIC ENTERTAINMENT, INC., and BOB DYLAN, Defendants.



The opinion of the court was delivered by: SIMANDLE

 SIMANDLE, District Judge:

 Plaintiff brings this copyright infringement action accompanied by several federal and state claims all arising out of the alleged theft of plaintiff's lyrics and music by Sony recording artist Bob Dylan. Presently before the court is defendants' motion for summary judgment. For the reasons stated below, the motion will be granted in favor of defendants.

 I. Background

 Plaintiff's complaint lists six "works" allegedly infringed by Dylan. (Compl. at 3-6). Plaintiff claims that Dylan used several lyrics from five of the works originally composed and copyrighted by plaintiff. The sixth piece, an instrumental arrangement by Damiano, was allegedly infringed by Dylan's song "Dignity."

 Defendants not only deny plaintiff's allegations, they assert that plaintiff's complaint is frivolous and fraudulent. (Def. Br. at 5). Specifically, defendants show, through the deposition testimony of plaintiff, that the purported "works" set forth in the complaint were actually created for the first time in the complaint and not registered with the copyright office as alleged. (Damiano Dep. at 174, 178, 191, 201-2). *fn1" Defendants seek judgment on the merits, as well as dismissal as a sanction under Rule 11, Fed. R. Civ. P., for the filing of a complaint not well-grounded in fact or law.

 Apparently, for the sake of creating a side-by-side comparison of plaintiff's lines with Dylan's lines, plaintiff and/or his attorney pieced together lines from many different untitled verses composed by Damiano to create a total of five single "works." (Id. at 192-3, 196). The allegedly infringed lyrics are titled and organized in such a way that misleads the reader into thinking that a single piece by Damiano contains several words and phrases in common with those in a single piece by Dylan. The complaint also contains altered versions of some of Dylan's lyrics. (Id. at 175, 199). Some of the words in Dylan's songs are rearranged or left out, again giving an impression of similarity that otherwise does not exist.

 Although this court does not take lightly the misleading nature of plaintiff's complaint, especially in the face of the obligations imposed on parties and their attorneys by Rule 11, Fed. R. Civ. P., defendants' request for dismissal as a Rule 11 sanction need not be reached since an analysis of plaintiff's claims requires dismissal on the merits.

 Defendants will be given the opportunity, however, to submit within fourteen (14) days of this Opinion and Order a request for lesser Rule 11 sanctions and/or for attorney's fees under Rule 11 or under the Copyright Act, 17 U.S.C. ยง 505. See Lieb v. Topstone Indus., 788 F.2d 151 (3d Cir. 1986).

 II. Discussion

 A. Summary Judgment Standard

 A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L & F Prods., 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. denied, 465 U.S. 1091, 79 L. Ed. 2d 910, 104 S. Ct. 2144 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Supreme Court decisions mandate that: "when the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1987)). However, "the nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial." Brewer, 72 F.3d at 330 (citing Anderson, 477 U.S. 242 at 248). Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.

 B. Plaintiff's Lyric Infringement Claims

 Although plaintiff has not amended his complaint, he appears to have changed the nature of his claims in his opposition to the pending summary judgment motion. His argument now asserts that approximately fourteen of his lyrics -- from multiple works, not just the five "works" set forth in the complaint -- were "cherry-picked" by Bob Dylan for use in Dylan's songs. (Pl. Br. at 24) Eight of these lyrics were not in the complaint, but introduced for the first time in the plaintiff's opposition brief during summary judgment motion practice when this case was a year old. For the sake of completeness and since the defendants were able to respond to these lyrics in their reply brief, the court will consider these lyrics as part of plaintiff's infringement claim.

 Six of the lyrics presented in plaintiff's complaint are not addressed at all in his opposition brief. *fn2" Since plaintiff failed to come forth with any evidence or argument as to these claims, defendants' motion for summary judgment is considered unopposed with regard to these six lyrics and will be granted.

 To establish a case of copyright infringement for his remaining lyrics, plaintiff has the burden of proving 1) ownership of a valid copyright; 2) copying of protectible expression; and 3) that the copying went so far as to constitute an improper appropriation of the plaintiff's work. Whelan Assoc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d Cir. 1986), cert. denied, 479 U.S. 1031, 93 L. Ed. 2d 831, 107 S. Ct. 877 (1987); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.), cert. denied, 423 U.S. 863, 46 L. Ed. 2d 92, 96 S. Ct. 122 (1975); Jarvis v. A & M Records, 827 F. Supp. 282, 288 (D.N.J. 1993).

 Defendants claim that plaintiff cannot prove infringement because the words and phrases that he seeks to protect are non-copyrightable, have not been copyrighted prior to this lawsuit, or are not substantially similar to the allegedly infringing lyrics.

 1. Ownership

 Plaintiff's complaint, consisting of snippets of various origin that are rearranged and stitched together under made-for-litigation titles, is a cut and paste job. As such, the element of ownership is more complex to analyze than in the typical infringement case. Damiano claims that the "works" in his complaint were all registered with the Copyright Office, a prerequisite to his maintaining an infringement action. This is clearly not accurate since none of the works was registered or even exists as constructed in the complaint. Most of the individual lines or lyrics making up the "works," however, do appear to have been registered with the Copyright Office as components of other verses composed by plaintiff. Still, defendants contend that several of the allegedly infringed lyrics were not registered and are not among the lyrics submitted by plaintiff as part of the record in this case. *fn3"

 2. Copying of Protectible Expression

 Having assumed that plaintiff's remaining lyric fragments have been registered with the Copyright Office, the court now determines whether the surviving claims can meet the additional elements of infringement. The allegedly infringed lyrics that remain are as follows: *fn4" Damiano lyric Dylan lyric 1. "your dignity" "for dignity" 2. "Truer words have not "Truer words have never been spoken and once again been spoken or broken" the truce is broken" 3. "She stumbles upon things "I can handle whatever I I've never seen/ stumble upon" . . . One word from her lips "Don't even remember what can color a dream" her lips felt like on mine" *fn5" 4. "Maybe I should just leave it "She ain't even on my mind/ all behind" . . . "She's that far behind" "If she'd only learn to make up her mind" 5. "A different form of treason" "God don't call it treason" 6. "No one deserves anything "You won't get anything more than what they need" you don't deserve" 7. "Pilate was a king" "Jesus Christ was betrayed by a [king]" *fn6" 8. "On the door to heaven "Listen to the engine, There ain't no bell listen to the bell Probably the same way As the last fire truck ...


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