United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE
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
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).
foregoing reasons, the defendants' motion to dismiss is
Factual Allegations 
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
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). 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).
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)).
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). Lee's amended complaint alleges that
defendants do not have a license or authorization to use or
perform the copyrighted works. (AC ¶ 17).
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
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.
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).
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)).
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.
Pleading Copyright Infringement
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.
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
(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
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).
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.").
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).
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
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.")).
"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).
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 ...