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Lee v. Karaoke

United States District Court, D. New Jersey

June 19, 2019

BEOM SU LEE, Plaintiff,



         Pro se plaintiff Beom Su Lee brings this action against defendants, various karaoke bars and clubs, for copyright infringement. Lee claims to be the assignee of a copyright that covers his father's musical works under the title "The Collection of Lee, Jae Ho's Musical Compositions." In April of 2018, Lee visited the defendants' bars and clubs and discovered that 42 of his copyrighted works had been programmed into the defendants' karaoke machines and listed in their songbooks.

         Lee filed an amended complaint on September 20, 2018 against fourteen defendants. Of these fourteen defendants, ten have filed a joint motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(b)(7), or alternatively, for a more definite statement under Rule 12(e). (DE 25).

         For the foregoing reasons, the defendants' motion to dismiss is denied.

         I. Factual Allegations [1]

         Lee originally filed this action on April 30, 2018. (DE 1). He filed an amended complaint on September 20, 2018 against the following defendants: Roku Karaoke; Nagasoo Karaoke; Encore Karaoke; Rodeo Karaoke; Sf Karaoke; Assa Karaoke; Daebak Karaoke; Sing Out Karaoke; Soo Karaoke; Fort Lee Ziller Karaoke; Crown Karaoke; Boss Karaoke; K-Pop Karaoke; and Volume Up Karaoke. (AC ¶5). Of these fourteen defendants, ten have moved to dismiss the complaint.[2]

         Lee, the fourth son of Jae Ho Lee ("Jae Ho"), holds the copyright to his father's musical works, reflected in U.S. Copyright Certificate TX5-432-807. (AC ¶6). Upon the death of Jae Ho in 1960, the worldwide copyright was inherited by Lee's mother, Jung Sun Kim, who transferred the copyright to her eldest son, Beom Seung Lee ("Seung"), Lee's brother. (AC ¶8; DE 3-1, Ex. 3[3]). In 1999, Lee registered 125 of Jae Ho's musical works under the title "The Collection of Lee, Jae Ho's Musical Compositions." (AC ¶7). On August 1, 2001, Seung assigned Lee the copyrights of Jae Ho's musical works for all areas except Korea and Japan. (DE 3-1, Ex. 3). Lee received the copyright certificate in 2001. (AC ¶7). In another suit that Lee brought in the Central District of California, that Court determined on summary judgment that his copyright was "valid." (AC ¶9).

         Between April 6 and 18, 2018, Lee visited New York and New Jersey, and "investigate[d]" defendants' karaoke bars. (AC ¶ 10). Defendants' bars use karaoke machines from either TJ Media Karaoke or Kumyoung Karaoke. (AC ¶ 10). Lee discovered that 42 of Jae Ho's musical works had been programmed into the TJ Media Karaoke machines. (AC ¶¶ 10-11; DE 3-1, Ex. 5 (list of the 42 works in the TJ Media Karaoke machine and songbook)).

         Lee alleges that he went to defendants' establishments and obtained video evidence of the playing of "each [of] Jae Ho Lee's Musical Works." (AC ¶ 10). Lee paid to enter the defendants' karaoke rooms, which were equipped with karaoke machines, a songbook, and a "big screen." (AC ¶¶ 10, 12). He took pictures of the rooms, the songbooks, and the screens while various melodies [he implies that these were the copyrighted works] were playing. (AC ¶ 10; DE 25-5). Lee did not obtain video evidence from all defendants because of cost. (AC ¶ 14).[4] Lee's amended complaint alleges that defendants do not have a license or authorization to use or perform the copyrighted works. (AC ¶ 17).

         II. Standard

         A. Rule 12(b)(6)

         In considering a motion to dismiss a pro se complaint, a court must bear in mind that pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); see Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004) ("Courts are to construe complaints so as to do substantial justice . . . keeping in mind that pro se complaints in particular should be construed liberally." (citations omitted)). This does not, however, absolve a pro se plaintiff of the need to adhere to the Federal Rules of Civil Procedure. See, e.g., Fantone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015) ("a pro se complaint. . . must be held to less stringent standards than formal pleadings drafted by lawyers;'. . . but we nonetheless review the pleading to ensure that it has 'sufficient factual matter; accepted as true; to state a claim to relief that is plausible on [its] face.''').

         Federal Rule of Civil Procedure 8(a) does not require that a complaint contain detailed factual allegations. Nevertheless, "a plaintiffs obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (Rule 8 "requires a 'showing' rather than a blanket assertion of an entitlement to relief." (citation omitted)). Thus, the complaint's factual allegations must be sufficient to raise a plaintiffs right to relief above a speculative level, so that a claim is "plausible on its face." Twombly, 550 U.S. at 570; see also West Run Student Hous. Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). While "[t]he plausibility standard is not akin to a 'probability requirement'... it asks for more than a sheer possibility." Id.

         Rule 12(b)(6) provides for the dismissal of a complaint if it fails to state a claim upon which relief can be granted. The defendant, as the moving party, bears the burden of showing that no claim has been stated. Animal Science Products, Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011). For the purposes of a motion to dismiss, the facts alleged in the complaint are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).

         When deciding a motion to dismiss, a court typically does not consider matters outside the pleadings. However, a court may consider documents that are "integral to or explicitly relied upon in the complaint" or any "undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiffs claims are based on the document[.]" In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999) (emphasis and citations omitted); see In re Asbestos Prods. Liab. Litig. (No. VI), 822 F.3d 125, 133 n.7 (3d Cir. 2016); Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). Moreover, "in cases where a pro se plaintiff is faced with a motion to dismiss, it is appropriate for the court to consider materials outside of the complaint to the extent they 'are consistent with the allegations in the complaint."' Bush v. City of Phila., 367 F.Supp.2d 722, 725-26 (E.D. Pa. 2005) (quoting Donhauser v. Goord, 314 F.Supp.2d 119, 121 (N.D.N.Y. 2004)).

         Under this standard, the Court must disregard the declarations from the moving defendants' attorney (DE 25-2, 30). First, the Court will not consider external evidence that is not integral or relied upon in the complaint on a motion to dismiss. Second, the attorney's declarations largely contain legal arguments and interpretation of the allegations which are inappropriate at this stage. See L. Civ. R. 7.2(a). On a motion to dismiss, the Court is concerned only with the sufficiency of the allegations, not the strength of plaintiffs case.

         B. Pleading Copyright Infringement

         As a threshold issue, the moving defendants urge this Court to follow Gee v, CBS, Inc., 471 F.Supp. 600 (E.D. Pa. 1979), aff'd, 612 F.2d 572 (3d Cir. 1979), and impose a heightened standard of specific pleading standard for a copyright infringement claim. (DBr at 5). I decline to do so; the Gee holding, I believe, has been subsumed by the subsequent Supreme Court authority of Twombly and Iqbal, See Section II. A, supra.

         The Copyright Act of 1976 provides that the owner of copyright has the exclusive rights "to do" and "to authorize" any of the following:

(1) to reproduce the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

         17 U.S.C. § 106. "Anyone who violates any of the exclusive rights of the copyright owner, that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work ... is an infringer of the copyright." Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) (quotation and citation omitted).

         A claim for copyright infringement involves two "essential elements: ownership of copyright, and copying by the defendant." Dam Things from Denmark, a/k/a Troll Company ApS v. Russ Berrie & Company, Inc., 290 F.3d 548, 561 (3d Cir. 2002) (citing Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d Cir. 1986)); see also Winstead v. Jackson, 509 Fed.Appx. 139, 143 (3d Cir. 2013) (stating that "[t]o establish a claim of copyright infringement, the plaintiff must establish ownership of a valid copyright, and unauthorized copying of protectable elements of the plaintiffs work.").

         For the first element, a certificate of registration with the copyright office constitutes "prima facie evidence of the validity of the copyright and of the facts stated in the certificate," including those pertaining to ownership. See Granger v. ACME Abstract Co., 900 F.Supp.2d 419, 422 (D.N.J. 2012). The second element "contemplates use of the plaintiffs work in a way that interferes with any of a copyright owner's rights under 17 U.S.C. § 106." John Wiley & Sons, Inc. v. Golden, 2015 U.S. Dist. LEXIS 19558, at*21 (D.N.J. Feb. 19, 2015) (internal quotation and citation omitted).

         The heightened pleading standard advanced by the moving defendants was announced by the Eastern District of Pennsylvania in Gee, which predates Twombly and Iqbal Under Gee, for a plaintiff to properly plead a copyright infringement claim, a plaintiff must include allegations describing "which specific original work is the subject of the copyright claim, that plaintiff owns the copyright, that the work in question has been registered in compliance with the statute and by what acts and during what time defendant has infringed the copyright." Id. at 64 (citing 2a Moore's Federal Practice and Procedure 8.17(7) at 1767 (2d ed. 1978)). "Plaintiffs must also allege that each work is suitably registered, provide registration numbers." Id. at 644. Some district courts have embraced this more detailed pleading standard. See John Wiley & Sons, Inc., 2015 U.S. Dist. LEXIS 19558, at *22 (collecting cases).

         However, the pleading standard in Gee "has not been embraced by any Third Circuit panel (other than the one that affirmed without opinion that court's disposition)." Id. (citing Bradshaw v. Am. Inst, for History Educ, 2013 WL 1007219, *4 n.4 (D.N.J. March 13, 2013) (quotation omitted)); see also Fish Kiss LLC v. N. Star Creations, LLC, 2018 U.S. Dist. LEXIS 136147, at*18 (D.N.J. Aug. 13, 2018) ("[T]he Third Circuit no longer applies the Gee standard for adequately pleading a claim of copyright infringement, after its underpinnings have been substantially weakened." (citing Richard Feiner & Co., Inc. v. Larry Harmon Pictures Corp., 38 F.Supp.2d 276 (S.D.N.Y. 1999) (noting that Gee "relies heavily on a section from Moore's Federal Practice, Second Edition, that has been deleted in the more recent edition.")).

         Accordingly, "courts in this district have routinely allowed copyright infringement claims to proceed upon a plaintiffs allegations of the two essential elements of ownership and copying, without seeming to require more." See John Wiley & Sons, Inc., 2015 U.S. Dist. LEXIS 19558, at *22 (listing cases).

         The Court follows these decisions, and "declines to engraft a Gee analysis." Id. at 22-23. A plaintiff alleging copyright infringement states a claim if the facts pleaded establish ownership and unauthorized use. Fish Kiss LLC, 2018 U.S. Dist. LEXIS 136147, at *19 (citing Levey v. Brownstone Inv. Grp., LLC, 590 Fed.Appx. 132, 135 (3d Cir. 2014)). It is this ...

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