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DAMIANO v. SONY MUSIC ENTERTAINMENT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


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.

 Significantly, plaintiff never sought to amend his complaint at any time prior to this court's decision on defendants' summary judgment motion. In fact, plaintiff has still not sought leave of this court to amend his complaint. Thus, there is nothing for the court to "reconsider" because plaintiff's amendment argument was raised for the first time in this motion for reconsideration. See NL Industries, Inc., 935 F. Supp. at 516 ("Reconsideration motions . . . may not be used . . . to raise arguments or present evidence that could have been raised prior to the entry of judgment.").

 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 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).

 Finally, plaintiff attempts to argue in his motion for reconsideration, as he did prior to dismissal of the music infringement claim, that the Exhibit 71 version is substantially similar to Dylan's "Dignity". Incredibly, to support this argument, plaintiff submits for the very first time in his reply brief on this motion for reconsideration affidavits from twelve individuals. Their purported "lay testimony" consists of form affidavits which all include the following statements:

 

I have listened to James Damiano's song "Steel Guitars" marked exhibit # 71.

 

I have listened to Bob Dylan's son "Dignity" released on the Bob Dylan, Greatest Hits volume III album.

 

It appears to me that the melody of "dignity" is similar to "Steel Guitars".

 Each of the affidavits is dated March 1, 1997, which was two and one-half months after this claim was adjudicated. There is no explanation given for why these affidavits were not submitted earlier, in response to defendants' summary judgment motion and prior to the resolution of this issue on summary judgment. This evidence, like the supplemental expert statement, will not be considered on plaintiff's motion for reconsideration. It should be abundantly clear to plaintiff that "[a] litigant seeking reconsideration must show that any new evidence presented to the court was unavailable or unknown at the time of the original hearing." DeLong Corp. v. Raymond Int'l, Inc., 622 F.2d 1135, 1140 (3d Cir. 1980). Plaintiff does not attempt to make such a showing, and by his various attempts to relitigate previously resolved issues with the aid of previously unrevealed evidence, mocks the reconsideration process.

 Thus, the court will not reconsider its decision regarding the 1988 version or the Exhibit 71 version of "Steel Guitars" as plaintiff has failed to show that a dispositive factual issue or controlling decision law was overlooked. The entry of summary judgment in favor of defendants on plaintiff's music infringement claim will not be disturbed.

 C. Plaintiff's Lyric Infringement Claims

 Next, plaintiff argues that the court should reconsider its decision to grant summary judgment on plaintiff's lyric claims. He argues, as he did in response to defendants' motion for summary judgment, that his unique arrangements of commonplace lyrics is protectible under copyright laws. In support of this argument, plaintiff does not raise any factual issues or controlling law which the court overlooked.

 Indeed, the court previously carefully considered more than fourteen separate lyrics by plaintiff, some which were not even included in his complaint, before concluding that plaintiff could not establish a lyric infringement claim for any of those lyrics. Plaintiff now asks the court to reconsider six of his lyrics, which were all previously dismissed for various reasons.

 1. "Conceit is a disease"

 Plaintiff contends that this phrase was infringed by the lyrics of Bob Dylan's 1989 song "Disease of Conceit." In the Opinion of December 16, 1996, the court noted that plaintiff had not registered this lyric with the copyright office. Although plaintiff asserted at oral argument that he was in the process of registering this lyric when he submitted his opposition brief, he failed to produce any proof of filing to support his claim of pending registration. (Op. at 8). Thus, summary judgment was granted as to this lyric because plaintiff failed to establish a prima facie case of infringement.

 Plaintiff now claims that he registered this lyric with copyright office on December 5, 1996, and argues that "by way of amendment to the complaint it must be considered." (Pl. Br. at 6). As noted above, plaintiff has never moved to amend his complaint as to either his music infringement claim or any of his lyric infringement claims, nor does he now seek leave to amend. Moreover, as a practical matter, the court does not see how plaintiff could establish that Dylan infringed a lyric copyrighted by plaintiff in 1996, in a song released by Dylan in 1989.

 Plaintiff fails to provide a justification for reconsidering this claim which was dismissed for failure to provide proof of ownership of a valid copyright. Plaintiff's post-complaint registration does not cure the defect when he made no attempt to amend his complaint prior to the entry of summary judgment.

 2. "A different form of treason"

 This lyric is one of the twelve considered by the court and found to be unprotectible because the lyrics consisted of common words or cliches, or combinations thereof. This lyric in particular, allegedly infringed by Dylan's line "God don't call it treason," is clearly insufficient to form the basis of an infringement claim. The word "treason," which is the only word in common between Dylan's lyric and plaintiff's lyric, is not, as plaintiff asserts in his motion for reconsideration, "anything but a common phrase." To the contrary, it is an ordinary single word, used in one context in Damiano's lyric, and another in Dylan's song. Surely, plaintiff cannot think that he is entitled to prevent all musicians from using the word "treason" in a song because he used it in a single lyric. Plaintiff does not own the copyright for the word "treason," although plaintiff may be seeking to perfect a new meaning of the word "frivolous."

 3. "Truer words have not been spoken and once again the truce is broken."

 This lyric, allegedly infringed by Dylan's lyric "Truer words have never been spoken or broken" was fully considered by the court when it rejected plaintiff's argument that Bob Dylan could not, without infringing plaintiff's work, use the cliche "truer words have not been spoken" in combination with the rhyming word "broken," even when separated by many intervening lines and ideas. (Op. at 11). Plaintiff has offered no reasons to reconsider this determination.

 4. "What good is a man"

 Plaintiff claims that this lyric is infringed by Dylan's lyric "what good am I." Plaintiff urges the court not to accept as mere coincidence that the common words "what good" were used by both Dylan and Damiano. Plaintiff made the identical "coincidence" argument in response to summary judgment and has shown the court no controlling law or fact which was overlooked in rejecting the argument the first time. Plaintiff cannot monopolize the common interrogatory phrase "what good."

 5. "I'm not sure of anything half the time anymore""Lost days and forgotten years"

 These two claims which appear in plaintiff's complaint were among six lyrics expressly abandoned by plaintiff when he failed to address them in response to defendants' motion for summary judgment. These six lyric were reproduced in the court's Opinion at page six, footnote 2, and summary judgment was granted as to each of them since plaintiff failed to come forth with any evidence or argument with respect to those claims. (Op. at 6).

 Further, at oral argument upon defendants' summary judgment motion, plaintiff's counsel assured the court that he was limiting his case to the 14 lyrics contained in his opposition brief, and would not be seeking any further consideration as to the claims which he failed to pursue. Defendants cite to the pertinent colloquy at oral argument:

 

THE COURT: But the complaint, I understand I should more or less set aside because the infringements that are alleged are the 14 items [contained in the Opposition Brief]

 

MR. KRAMER: Yes, Sir.

 

THE COURT: Is that right?

 

MR. KRAMER: Yes, Sir.

 

THE COURT: Because if I decide this case based on those 14 items, I don't then want a reconsideration motion by either side that says the dispute was really different; it had to do with these six songs [contained in the complaint].

 

MR. KRAMER: I don't think Your Honor would face that.

 

THE COURT: All right.

 

MR. KRAMER: At least not from plaintiff.

 (Tr. at 86).

 Despite these clear representations by plaintiff's attorney, the court now faces exactly what it was assured it would not -- a reconsideration motion which seeks to revive two of the abandoned claims. Needless to say, the court is not impressed with Mr. Kramer's cavalier disregard for his word as an officer of the court. Claims in litigation are not fungible items to be abandoned and revived at will, rendering plaintiff's theories a moving target. These claims will not now be considered when plaintiff had every opportunity to make these arguments in response to defendants' motion for summary judgment but chose not to.

 Plaintiff's final point, that the court overlooked plaintiff's overall argument that it was not the use but the combination of common words that formed the basis of his claims, is completely without merit. Plaintiff argued this point at oral argument and in his papers. Since he now does no more than express disagreement with the court's decision, his motion for reconsideration as to his lyric infringement claims will be denied. See Panna, 760 F. Supp. at 435.

 E. Plaintiff's State Law Claims

 In his final argument, plaintiff argues that the court should reconsider the dismissal of his pendent state law claims, arguing that although a work may not be copyrightable, it may still be the subject of a state claim. Plaintiff originally raised claims for misappropriation of property, breach of confidence and fraud. He does not indicate which of these causes of action is the basis of an argument that the court overlooked a dispositive fact or controlling decision of law.

 Plaintiff merely asserts that he presented evidence that plaintiff gave his lyrics to the defendants and that the lyrics had not been used by defendants prior to plaintiff's submission. Plaintiff does not explain how this evidence, even if accepted as true, establishes any of his state law claims.

 The court held in the December 16, 1996 Opinion that plaintiff's misappropriation claim was pre-empted by federal copyright law. (Op. at 18). The court further held that plaintiff failed to establish his breach of confidence claim because he offered no proof that defendants owed him a duty or that such a duty could have been breached by their actions. Finally, the court held that plaintiff failed to produce proof of direct misrepresentations by defendants or that his work was ever used, incorporated or copied by Dylan. (Op. at 19).

 While plaintiff obviously disagrees with the court's conclusions, he has pointed to no factual issue or controlling decision of law which was overlooked by the court in reaching these decisions. To the extent that plaintiff cites case law that was not previously presented to the court and is not controlling in this court, those cases will not be considered as support for this motion. Also, the court will deny plaintiff's request that the court rely upon the recent case of Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 690 A.2d 575 (1997), because it has no relevance to this case. Sons of Thunder deals with a breach of contract claim, which plaintiff has not asserted in this case.

 Therefore, plaintiff's motion for reconsideration of his state law claims is insufficient and will be denied.

 III. Conclusion

 For the reasons above, plaintiff's motion for reconsideration of the court's Opinion of December 16, 1996, granting summary judgment to defendants on all of plaintiff's claims, will be denied. Defendants shall have twenty (20) days to apply for sanctions under Rule 11, Fed. R. Civ. P., and/or for statutory attorney's fees, as previously detailed in the Opinion and Order of December 16, 1996. *fn3"

 An appropriate order follows.

 JEROME B. SIMANDLE

 United States District Judge

 ORDER

 This matter having come before the court upon plaintiff's motion for reconsideration of the court's Opinion and Order dated December 16, 1996, in which the court granted defendants' motion for summary judgment as to all of plaintiff's federal and state claims; and the court having considered the submissions of the parties; and for the reasons set forth in the Opinion of today's date;

 IT IS this 20th day of August, 1997, hereby

 ORDERED that plaintiff's motion for reconsideration be and hereby is DENIED, and that any application by defendants for sanctions under Rule 11, Fed. R. Civ. P., and/or for statutory attorney's fees shall be filed within twenty (20) days hereof.

 JEROME B. SIMANDLE

 United States District Judge


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