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DAMIANO v. SONY MUSIC ENTERTAINMENT

August 20, 1997

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



The opinion of the court was delivered by: SIMANDLE

OPINION UPON RECONSIDERATION

 SIMANDLE, District Judge:

 Plaintiff James Damiano filed 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 pending is plaintiff's motion for reconsideration of this court's December 16, 1996, Opinion and Order granting summary judgment to defendants on all counts of plaintiff's complaint. For the reasons that follow, plaintiff's motion will be denied.

 I. Background

 The central claim of plaintiff's complaint is that Bob Dylan infringed six separate works which plaintiff had composed and copyrighted. (Compl. at 3-6). As discussed in this court's Opinion of December 16, 1996, five of the purported works were actually compilations of lyrics by plaintiff which were created for the first time in the complaint. (Op. at 2-3). The sixth piece in plaintiff's complaint was an instrumental composition referred to as "Steel Guitars."

 In opposition to defendants' motion for summary judgment, rather than pursuing the five "works," plaintiff formulated his argument to address fourteen different lyric fragments, eight of which were not even in the complaint. The court nevertheless addressed each of the fourteen lyric claims and dismissed all of them on the grounds that they were either non-copyrightable or had not been copyrighted prior to the lawsuit. Six lyric fragments which were presented in plaintiff's complaint were not among the fourteen addressed by plaintiff in the summary judgment papers and at oral argument. Those six claims were dismissed because plaintiff failed to come forth with any evidence or argument in response to defendants' motion for summary judgment with regard to those particular lyrics. (Op. at 6).

 The court also granted summary judgment as to plaintiff's music infringement claim and his accompanying state and federal claims. Plaintiff now asks the court to reconsider its decision with respect to the dismissal of his music infringement claim, several of his lyric claims, and his state law claims. The court will address each argument below.

 II. Discussion

 A. Standard for Reconsideration

 Local Civil Rule 7.1(g) of the United States District Court, District of New Jersey, contains the standard to be applied to motions for reconsideration. *fn2" L. Civ. R. 7.1(g) requires that the moving party set forth concisely "the matters or controlling decision which counsel believes the court has overlooked." Oritani v. Sav. & Loan Ass'n v. Fidelity & Deposit Co. of Md., 744 F. Supp. 1311, 1314 (D.N.J. 1990). The Rule "does not contemplate a Court looking to matters which were not originally presented." Florham Park Chevron, Inc. v. Chevron U.S.A., Inc. 680 F. Supp. 159, 162 (D.N.J. 1988). Rather, motions for reargument succeed only where a "dispositive factual matter or controlling decision of law" was presented to the Court but not considered. Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987).

 To succeed on a motion for reconsideration, a party "must show more that a disagreement with the court's decision." Panna v. Firstrust Sav. Bank, 760 F. Supp. 432, 435 (D.N.J. 1991). A mere "recapitulation of the cases and argument considered by the court before rendering its original decision fails to carry the moving party's burden." Carteret Sav. Bank, F.A. v. Shushan, 721 F. Supp. 705 709 (D.N.J. 1989).

 Further, there is a strong policy against entertaining reconsideration motions based on evidence that was readily available at the time that the original motion was heard; and so the court may, in its discretion, refuse to consider such evidence. Florham Park Chevron, 680 F. Supp. at 162-63. "Because reconsideration of a judgment after its entry is an extraordinary remedy, requests pursuant to these rules are to be granted 'sparingly.'" NL Industries, Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996) (citing Maldonado v. Lucca, 636 F. Supp. 621, 630 (D.N.J. 1986).

 B. Plaintiff's Music Infringement Claim

 Plaintiff alleged in his complaint that his instrumental composition, "Steel Guitars" was infringed by Dylan's song "Dignity." As discussed in the court's Opinion, there are actually two different versions of the song plaintiff calls "Steel Guitars." (Op. at 13-14). The first, which was produced during discovery and was marked as Exhibit 71 of defendants' moving papers, was analyzed by both parties' experts and compared to "Dignity."

 Defendants argued in their motion papers and at oral argument that the Exhibit 71 version had never been registered with the Copyright Office. For that reason, the court dismissed plaintiff's musical infringement claim with respect to the Exhibit 71 version of "Steel Guitars" because plaintiff failed to meet the prima facie element of proving ownership of a valid copyright. See Whelan Assoc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d Cir. 1986); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir. 1975); Jarvis v. A & M Records, 827 F. Supp. 282, 288 (D.N.J. 1993).

 The second version of "Steel Guitars" was registered with the Copyright Office in 1988, and although it was not originally identified by plaintiff as an infringed work, the court analyzed the copyrighted version and found that there was no substantial similarity between it and "Dignity." Therefore, summary judgment was granted on plaintiff's musical infringement claim as plaintiff had failed to establish a prima facie case of infringement.

 Plaintiff now argues that the court erred in failing to consider the Exhibit 71 version, which he claims was finally registered with the Copyright Office on December 5, 1996 -- after the summary judgment motion was briefed by both sides, after oral argument on the motion, and nearly fifteen months after plaintiff's complaint was filed. Plaintiff insists he is entitled to amend the complaint to include his post-complaint registration, citing the liberal construction of Rule 15, Fed. R. Civ. P. He also points to the fact that the parties have already analyzed the tape and submitted expert testimony on that version.

 Moreover, even a liberal construction of Rule 15 would not permit the amendment of a complaint that has been dismissed after more than a year of litigation. Bermingham v. Sony Corp., 820 F. Supp. 834, 862 (D.N.J. 1993) (leave to amend complaint denied after action dismissed when plaintiff had opportunities to amend prior to dismissal). Plaintiff could have sought leave to amend his complaint as early as June of 1996, when he should have become aware through defendants' motion for summary judgment that the Exhibit 71 version was not registered with the copyright office. He did not do so, however, and chose to join issue upon the non-copyrighted version. At the time defendants' summary judgment motion was argued, the court could not consider the Exhibit 71 version of "Steel Guitars" as the basis of an infringement claim because it was not registered with the Copyright Office. Plaintiff has offered no justification for reconsidering that decision.

 Plaintiff also argues that the court overlooked the "striking similarity of the background melodies" between "Dignity" and the Exhibit 71 version of "Steel Guitars." As previously discussed, the court did not consider the Exhibit 71 version because it was not registered, and thus could not have overlooked any portion of it. The court did however, determine that the 1988 version of "Steel Guitars" was not substantially similar to Dylan's "Dignity" as it differed "in total concept and feel." (Op. at 16). Plaintiff's moving papers do not indicate that he is seeking reconsideration of that finding. Thus, the court was surprised to receive a document on March 18, 1997, entitled "supplement in support of motion for reconsideration." Attached to the supplement is a statement by plaintiff's expert Paul D. Greene, Ph.D. pertaining to the 1988 version of "Steel Guitars," which had been fully analyzed and dismissed after the court concluded that there was no substantial similarity from which appropriation could be inferred. In short, plaintiff now seeks to generate new expert opinion testimony, after judgment has been entered, to contradict this court's finding upon matters which the court had thoroughly considered when the matter was extensively briefed and argued. Neither L. Civ. R. 7.1 (g), nor any known concept of jurisprudence, permits a party to generate new expert opinions and offer them, after the fact, as evidence that the court had somehow overlooked.

 The court will not, at this late date, consider evidence which could and should have been submitted earlier. This court has previously held that "we are in fact bound not to consider such new materials, lest the strictures of our reconsideration rule erode entirely." Resorts International v. Greate Bay Hotel and Casino, Inc., 830 F. Supp. 826, 831 (D.N.J. 1992). Even if the court were to consider Dr. Greene's report, however, it would not disturb the court's determination that summary judgment was appropriate as to plaintiff's music infringement claim. As discussed in the court's Opinion of December 16, 1996, the final step of an infringement analysis is not dependent on expert testimony. (Op. at 16). Instead, "the general test for determining substantial similarity is ...


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