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Attorney Needed to Sue Bob Dylan For Plagiarism & More
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Date: June 29th, 2012 1:36 PM Mail Referral Unit 950 Pennsylvania Avenue, NW Washington, DC 20530-0001
Re: DOJ Case No. 2462370
To Whom It May Concern:
My name is James Damiano and for over sixteen years I have been fighting in federal court to retain the rights to my Intellectual Property from Bob Dylan for the theft of my entire song catalog, which has taken thirty-seven years of my life to write. This catalog, in the hands of the right people, could be worth close to a half a billion dollars. That should set the facts straight.
On June 16, 2009 the following letter was sent to Bob Dylan's Attorney Orin Snyder written by James Damiano's Attorney Robert Church, regarding boxes of James Damiano's songs produced to Orin Snyder during discovery. There were approximately fifteen to twenty-five boxes filled with anywhere from 200 to 400 finished and unfinished songs in each box - thirty seven years of writing - that were never returned.
Dear Mr. Snyder:
I have one other matter. Mr. Damiano informs me that Steven Kramer (James Damiano's lead attorney) had several boxes of songs delivered to Parcher & Hayes during the discovery phase of his case against Dylan. Mr. Kramer never made copies of the documents, since I am presuming he felt pressed to comply with an overdue discovery request. Mr. Damiano informs me that he has never had all the original songs returned to his possession, even though the case is over. If you don't mind, please explain what you can recall about Mr. Damiano's song production. Do you still have songs unaccounted for? Can they be returned?
Sincerely,
Robert Church
Attached is a copy of my DVD detailing the allegations of theft leveled against Mr. Dylan in addition to the similar allegations of judicial corruption filed by 5forJustice now 6forJustice.
This DVD includes Bob Dylan's publicist's testimony when asked "Have you ever lied to James Damiano? Everyone I know that has seen this testimony believed it to be nothing less than shocking?
The enclosed DVD only supplies a small proportion of the actual amount of testimony that implicates not only Bob Dylan aka Robert Zimmerman but also Judge Simandle for aiding in Bob Dylan's Stealing of James Damiano's songs. There is another thirty four hours of testimony which I would be happy to produce upon request.
Please Note: Judge Simandle's rulings are a hundred percent inconsistent with the facts of this case. The DOJ is well aware that this case was illegally dismissed as per Rule 56 ( c ) of the Federal Rules of Civil Procedure. You know, Law 101?
Over seven years ago the following statement was downloaded by Bob Dylan's attorney Orin Snyder and produced to the court yet never contested or denied either publicly or judicially. It was then downloaded two more times and produced to Judge Simandle without being denied or contested and now rests within the docket of the court.
It is judicially uncontested that Bob Dylan and people in Bob Dylan's entourage have solicited songs written by James Damiano for a period of over ten years and eleven months
Another shocking fact in this case is Bob Dylan was subpoenaed to court and never appeared. Bob Dylan has never produced an affidavit of denial regarding the facts and allegations produced in the complaint and or during discovery. It appears Bob Dylan is above the law.
This DVD also incriminates Mr. Dylan's lead attorney Orin Snyder of LYING TO THE COURT by signing his name to declarations stating that I am delusional. Mr. Snyder made this statement in light of the testimony documented on this DVD which is one hundred percent adverse to Mr. Snyder's statement.
I was asked by the DOJ âs as a favor to them to ť not to file criminal charges against Judge Simandle for illegally dismissing my law suit against Bob Dylan. They also stated that they would Owe Me One So here's your chance to live up to your word, and pay me back my favor.
Note: This is by no means a comprehensive account of the facts in James Damiano Vs Bob Dylan CV95-4795 JBS.
Please file this DVD with their original complaint as the 5forJustice are now 6forJustice.
We stand united in our quest for getting our Constitutional right to a jury trial of our peers.
I cannot believe that this has gone this far especially since my grand-mother was a senator
Links to my websites are also provided for reference.
http://jamesdamiano.yolasite.com/plaintiffs-motion-for-default-against-bob-dylan1.php
http://jamesdamiano.yolasite.com/
Attorney Needed to Sue Bob Dylan For Plagiarism & More
As per filed motions "It is judicially uncontested by Bob Dylan and or Bob Dylan’s law firms Manatt, Phelps & Phillips , Parcher Hayes & Snyder, Gibson Dunn & Crutcher, Hecker Brown and Sherry and Sony House Counsel that Bob Dylan and people in Bob Dylan’s entourage have solicited James Damiano’s songs and music for over ten years and eleven months.
District Judge Jerome B. Simandle states in his decision “This court will accept as true Plaintiff’s allegations that Sony represented to him that he would be credited and compensated for his work if Dylan used it. Judge Simandle also stated in his decision “Plaintiff has demonstrated a genuine issue of material fact as to whether defendants had access to his work.
“No artist can lay claim to the controversy that has surrounded the career of songwriter James Damiano. Thirty two years ago James Damiano began an odyssey that led him into a legal maelstrom with Bob Dylan that, to this day, fascinates the greatest of intellectual minds. . .” ...Warner Bros Trailer 1 Bob Dylan's Stealing of James Damiano's Songs
After thirty-five hours of video taped depositions, and after three and a half million dollars have been spent on this litigation, defendants Sony Music and or Bob Dylan still to this date September 18th 2002, have never filed a counter, slander or libel suit against Damiano. Defendants have been aware of James Damiano's public statements made against Bob Dylan for over ten years.
See videos
http://www.youtube.com/watch?v=mBKiTVoWIUI
http://www.youtube.com/watch?v=avr9MIGcXxc
http://www.youtube.com/watch?v=3qTqE6gBk5s
He (Dyla) did not have enough songs that he wanted to put on an album
http://www.youtube.com/watch?v=jal8m1jjpFU
Seeking Attorney to File Default Motion Against Bob Dylan after following Bob Dylan admissions are added See below admissions and motion
“Well you have to understand that I’m not a melodist. My songs are either based on old Protestant hymns or Carter Family songs or variations of the blues form. What happens is, I’ll take a song and simply start playing it in my head. That’s the way I meditate". “I wrote ‘Blowin’ in the Wind’ in 10 minutes, just put words to an old spiritual, probably something I learned from Carter Family records. That’s the folk music tradition – you use what has been handed down. ‘The Times They Are A-Changing’ is probably from an old Scottish folk Song.”...."I'll be playing Bob Nolan's 'Tumbling Tumbleweeds,' for instance, in my head constantly -- while I'm driving a car or talking to a person or sitting around or whatever. People will think they are talking to me and I'm talking back, but I'm not. I'm listening to the song in my head. At a certain point, some of the words will change and I'll start writing a song.".......Bob Dylan
Motion For Default with Bob Dylan Admissions. All material facts cited in motion are judicially uncontested by defendants
http://www.jamesdamiano.yolasite.com/plaintiffs-motion-for-default-against-bob-dylan1.php
http://www.youtube.com/watch?v=0lb8ZJjmzQ8
http://www.jamesdamiano.yolasite.com
Bob Dylan Steals Hank Snow Song
http://blogs.reuters.com/fanfare/2009/05/23/bob-dylan-poem-not-first-artistic-borrowing/
On June 16th 2009 the following letter was sent to Bob Dylan's Attorney Orin Snyder written by James Damiano's Attorney in the Bob Dylan Damiano Plagiarism suit "Robert Church" regarding boxes of James Damiano's songs produced to Orin Snyder during discovery
There were approximately fifteen to twenty five boxes filled with anywhere from 200 to 400 finished and unfinished songs in each box (thirty five years of writing) that were never returned
Dear Mr. Snyder:
I have one other matter. Mr. Damiano informs me that Steven Kramer (James Damiano's lead attorney) had several boxes of songs delivered to Parcher & Hayes during the discovery phase of his case against Dylan. Mr. Kramer never made copies of the documents, since I am presuming he felt pressed to comply with an overdue discovery request. Mr. Damiano informs me that he has never had all the original songs returned to his possession, even though the case is over. If you don’t mind, please explain what you can recall about Mr. Damiano’s song production. Do you still have songs unaccounted for? Can they be returned?
Sincerely Robert Church
See last paragraph in Robert Church's letter below
http://www.jamesdamiano.yolasite.com
Orin Snyder wanted to End Elliot Mint's Deposition when asked one simple question
Deposition Over We're Leaving We're Leaving
http://www.youtube.com/watch?v=Nw3805SocQo
Snyder was the Attorney who ruined Bob Dylan's reputation
Snyder extorted Dylan and guess who's going to win when Dylan sues Snyder for destroying his professional reputation?
Or better yet try to imagine ho much Dylan will win when he does?
Bob Dylan's Stealing of James Damiano's Songs
http://www.jamesdamiano.yolasite.com
This lawsuit James Damiano vs. Bob Dylan for copyright infringement Civil # 95-4795 (JBS) was dismissed without prejudice by The Honorable Judge Jerome B. Simandle (Federal Court Camden, District of New Jersey). Since the dismissal Plaintiff has reregistered his version of the infringed song "Dignity" of which Plaintiff contends was legally unnecessary however chose to do so to satisfy the courts unnecessary requirement.
All documents and statements contained in this document have been produced to defendants in the previous lawsuit.
Exhibit A
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
JAMES DAMIANO, Plaintiff C 95-4795 (JBS)
against
SONY MUSIC ENTERTAINMENT INC and BOB DYLAN Defendants
SUPPLEMENT IN SUPPORT OF PLAINTIFF'S MOTION OF RECONSIDERATION OF JUDGE JEROME B. SIMANDLE'S MEMORANDUM OPINION OF FINDING JAMES DAMIANO IN CONTEMPT FOR ALLEGEDLY VIOLATING JUDGE JOEL B. ROSIN'S CONFIDENTIALITY ORDER, MOTION TO VACATE SAID ORDER, MOTION FOR ADMISSIONS, MOTION TO REVERSE JUDGE SIMANDLE'S DISMISSAL AND OPPOSITION TO DEFENDANTS BRIEF OPPOSING SAID MOTION And DEFAULT AGAINST BOB DYLAN
After five years, fifty hours of depositions, and after three million and a half dollars have been spent on this litigation there has not been a counter-suit filed by Bob Dylan and or Sony Music Entertainment.
Plaintiff's website declaration containing the material facts cited in this document was posted on the world wide internet for five years and five months and defendants still to this date, November 2001 have not contested the issues of fact or the issues of solicitation by defendants of plaintiffs songs cited herein. Defendants did however filed a motion for contempt against plaintiff for violating Judge Joel B. Rosen's order designating all discovery as confidential, including expert testimony, and deposition transcripts. When the court reads the abundance of incriminating evidence against the defendants It will know why Bob Dylan did not want the public to read what has been testified to by not only Plaintiff's witness's but by Bob Dylan's own witness's as well.
This court should know that Plaintiff has been counseled by many attorney's and some Judges who believe that the outcome of this lawsuit so far is unjust and as a matter of law and at the very least these unresolved issues could have only been decided by a jury.
DECLARATION OF JAMES DAMIANO #2.
James Damiano pursuant to U.S.C. Section 1746, declares under penalty of perjury that:
No unbiased facts, no unbiased evidence or no unbiased testimony exists to support Judge Jerome B. Simandle of the United States federal court, District of New Jersey's decision to dismiss Plaintiff James Domino’s lawsuit against Bob Dylan for copyright infringement case no 95- 4795 (JBS).
EXECUTED ON THIS _______ DAY OF ____________________YEAR OF 2001 IN ___________________________________________________________
James Damiano ____________________________________
CERTIFICATION OF JAMES DAMIANO SEPT 29 2000
Dated September 29, 2000
This motion conclusively refutes the courts decision to enter summary judgment in favor of the defendants.
This motion also conclusively refutes the foundation of defendant’s bias, fabricated, primary defense that Plaintiff was delusional and documents to the record that Defendants have intentionally made false statements to this court.
There are issues of facts left unresolved after the courts dismissal.
The decision of Judge Simandle to dismiss this lawsuit is subjective.
The primary Defendant in this litigation ( Bob Dylan ) has never been deposed
The primary Defendant in this litigation ( Bob Dylan ) never submitted an affidavit of denial or an affidavit addressing the unresolved issues cited herein.
Motion for Request for admissions:
Plaintiff stipulates that the facts expressed within this motion will be conclusively deemed as truth within 30 days of August 3, 2000, should they be left disproved by anyone. At such time said admissions and facts expressed within this motion will be deemed as truth, entered upon the record of this court and docketed with the clerk.
The fact issues expressed within this motion concerning Defendants eleven year association with Plaintiff and all fact issues expressed within this motion concerning Defendants solicitation of Plaintiff James Damiano's songs, will be deemed admitted after thirty days unless defendants deny the forgoing with specificity. pursuant to FRDCP rule 36.
1. OPINION OVER FACT
a. In all major decisions in this litigation, this court continuously chose as truth the opinion of Defendant's counsel as opposed to Plaintiff's true material facts.
This motion is based on part, in light of that all decisions made by this court in favor of the Defendants, were based on opinion only and that these opinions were held as truth over Plaintiff's true material facts which conclusively reveal the opposite of these findings.
Plaintiff's material facts substantiate the error within this injustice. Although said facts are massive, almost to many to cite Plaintiff will notify this court that there are indeed many other facts than what are presented here, which were produced to defendants during discovery, but for fear of submitting an oversized brief Plaintiff did not submit them. Plaintiff hereby reserves the right to enter upon the record other findings of fact not cited in this motion. Should this court provide an extension of time to allow Plaintiff to construct a more extensive brief Plaintiff is willing to comply.
Said decisions in 1a. were detrimental to the outcome of this law suit by which the evidence provided herein, acknowledged and upon consideration of this court, conclusively constitute reversible error, and judicially defeat summary judgment in favor of the defendants
With the recent development of the internet new finding of facts have surfaced regarding the truthfulness of defendants defense in this action.
DEFENDANTS TRY TO MAINTAIN TO THE COURT THAT THE PEOPLE AT CBS RECORDS / SONY MUSIC WHO WERE IN POSSESSION OF JAMES DAMIANO'S SONGS, WERE NOT IN ANY POSITION TO ADVANCE PLAINTIFFS CAREER AS A SONGWRITER IN THE MUSIC INDUSTRY.
James Damiano pursuant to 28 U.S.C. Sec. 1746, declares under penalty of perjury that:
1979
Years ago I read an unauthorized biography about Bob Dylan, in which the author made reference to a man who at one time was considered to be the president of CBS Records. His name was John Hammond, Sr. He was family to the Vanderbilts, Attended Yale law school, the most sought after record producer in the United States, and had signed Pete Seeger to Columbia Records 1960.
In fact John Hammond Sr. was and probably will always be considered the most influential music executive in the world by music industry professionals.
After years of working in the music industry, Mr. Hammond established himself as a legend and accomplished a reputation as having the best ears in the business by signing a fascinating number of legendary artists to the record world.
Artists like Billy Holiday, Count Basie, Charlie Christian, Duke Ellington, Aretha Franklin, George Benson, Bob Dylan, Bruce Springsteen along with many other artists including Stevie Ray Vaughan were John Hammond affiliates.
An article downloaded from the internet is displayed below about Mr. Hammond.
http://www.bluespower.com/a-mb.htm
Major talent scout, John Hammond Sir brought Stevie Ray Vaughan, Bob Dylan, Aretha Franklin, Leonard Cohen and Bruce Springsteen to Columbia Records. Hammond also worked as a producer with such early greats as Bessie Smith, Billie Holiday, Benny Goodman and Count Basie
Info@VanguardRecords.com,info@veerecords.com,webmaster@vprecords.com.
Inspired by the book I read, I decided to take a long shot and called CBS Records on the phone. The operator answered and I asked to be put through to John Hammond's office. The receptionist rang his office and Mikie Harris answered the phone.
I told Mikie that I was a lyricist and asked her if she had a few seconds to listen to one lyric. She replied yes by saying "Shoot." I then recited a lyric to her that I had recently written and said "the lyric is: Just think how beautiful you'd feel if you knew your love was real." Within a few seconds I could tell Mikie liked the lyric.
I in turn did not want to push to hard on the first phone call fearing that I might put her behind schedule, so I tried to inch my way out of the conversation politely while trying not to show my emotions but before the conversation ended between Mikie and me, she made it explicit that she wanted me to call again. She repeatedly told me to feel free to call her there at the office. So began a relationship where we would converse through actual meetings or correspond over the phone, that lasted close to seven and a half years.
Mikie told me that her name would be appearing in the credits on Stevie Ray Vaughan's album that was released in 1983. When the album was released it listed John Hammond Sr. As Executive producer and Mikie Harris as Production Assistant.
Stevie Ray Vaughan later recorded on Bob Dylan's "Under the Red Sky" album, released in 1990.
The article below appeared on the internet:
Plaintiff produces to this court the following article ( review ) to the court Please note that Stevie Ray Vaughan played on Bob Dylan's album "Under the Red Sky." In fact, numerous musicians that played on the "Bob Dylan Unplugged" album also shared similar credits on Stevie Ray Vaughan albums. Mikie Harris is given production credits as Assistant to Producer John Hammond. Exhibit 1
Stevie Ray Vaughan & Double Trouble "Soul To Soul" ON ANY GIVEN NIGHT IN AMERICA, IT'S POSSIBLE TO ENCOUNTER A CERTAIN WANDERING BREED OF SOULS WITH A PECULIAR HUNGER: ONE THAT CAN ONLY BE SATED IN CRYPT-DARK ROADHOUSES AND INKY ANTEROOMS WHERE LIKE-MINDED SOULS CAN BE FOUND VAMPING ON THE BLUES. And so it was that after midnight on the evening of June 24, 1985, guitarist Eric Clapton - then in the midst of a tour in support of his Behind The Sun LP - assembled a skeleton crew of superb players at Manhattan's Top Cat rehearsal studios to work another graveyard shift. Guitarist Danny Kortchmar, keyboard man Paul Shaffer, and drummer Steve Jordan had been jamming fiercely with the lord of hotwire British blues when, at 3 a.m., into their midst shyly sauntered one Stevie Ray Vaughan - there to rehearse his band Double Trouble for a show scheduled some 18 hours thence at Avery Fisher Hall. Clapton knew the timorous Texan by reputation only, but invited him to join in the proceedings. Vaughan promptly unpacked his favorite Fender, a '59 chocolate brown Start with a cracked and eroded sunburst finish, and slid his fingertips across the fat '58 Gibson jumbo bass frets, playing a few lightning runs on the heavy-gauge strings while the heel of his hand rode the tremolo bar. "Ah, so you've got your sweetheart with you," said Clapton admiringly. "Wish I had mine here too," he added, indicating the battered, anonymous studio-issue instrument he'd been tussling with. Out of courtesy, Stevie suggested they switch for a while and Clapton accepted. Gripping the Start with a small smile, Eric reignited the enlarged jam session with a rollicking twelve-bar shuffle, and Vaughan fell in behind, pulling some ferocious eloquence from the sorry guitar. Then the two men were off and roaring - the rising hotshot from Dallas deftly holding his own beside one of the leading musical role models of his boyhood, both testifying to the dark allure and enduring universality of blues power. "Those two were screaming along together, man!" whoops Steve Jordan, who continued to rumble and roll with Vaughan and the others long after a happily drained Clapton left to catch a plane. "Naturally, Eric was brilliant, and he really got off. But what impressed me about Stevie Ray was how intimate he was with his guitar, how phenomenally he had mastered it. The guy was scary." And getting scarier on Soul To Soul, the third album by Stevie Ray Vaughan and Double Trouble, featuring Chris "Whipper" Layton on drums, bassist Tommy Shannon, Reese Wynans on keyboards, and guest saxophonist Joe Sublett. Functioning as an intuitive unit, the band tears through blistering renditions of Hank Ballard's "Look At Little Sister," Earl King's "Come On (Part III)," and Willie Dixon's "You'll Be Mine," plus two Doyle Bramhall tunes and five tracks written by Stevie Ray himself, beginning with the sublimely surly, Hendrix-inspired "Say What!" It's the kind of latter-day blues fever that can only be bred in the bone. Released in October 1985, Soul To Soul took Vaughan's music one virtuoso step further, revealing a musician without limits. Quite literally, Stevie Ray convinced the listener that anything a guitarist can hear in his heart, he can create, in the next instant, with his instrument. Note for note, night to night, song to song, heart to heart, soul to soul. This writer had chatted with an eager-to-record Stevie Ray several times prior to the start of the Soul To Soul sessions. When he mailed me an unmastered pre-release cassette of Soul To Soul, I was awed by his compositional growth. Within a year, Vaughan commenced his ascent to guitar superstardom. It was an often-troubled but ultimately triumphant personal and professional process capped by the finest record of his career, 1989's In Step. In October 1989, Stevie Ray and I got together at a Manhattan studio to tape a national radio special for the Westwood One Network. The guitarist talked at length, often punctuating his stories with riffs from the chocolate brown '59 Stratocaster he cradled in his lap. It was the last time we ever spoke.
Credits were given to Mikie Harris: Assistant to Executive Producer: Mikie Harris
1. Say What! - S.R. Vaughan - 2. Lookin' Out The Window - D. Bramhall - 3. Look At Little Sister - H. Ballard - 4. Ain't Gone `N' Give Up On Love - S.R. Vaughan - 5. Gone Home - E. Harris - 6. Change It - D. Bramhall - 7. You'll Be Mine - W. Dixon - 8. Empty Arms - S.R. Vaughan - 9. Come On (Part III) - E. King - 10. Life Without You - S.R. Vaughan - 11. SRV Speaks 12. Little Wing/Third Stone From The Sun - J. Hendrix - 13. Slip Slidin' Slim - S.R. Vaughan - Stevie Ray Vaughan: guitar/vocals Chris "Whipper" Layton: drums Tommy Shannon: bass Reese Wynans: keyboards Joe Sublett: saxophone Produced by Stevie Ray Vaughan/Double Trouble and Richard Mullen Executive Producer: John Hammond Assistant to Executive Producer: Mikie Harris Engineer: Richard Mullen Assistant Engineer: Ron Cote Mixed by Richard Mullen Recorded at Dallas Sound Labs, Dallas, Texas and Riverside Sound, Austin, Texas This album is dedicated to the memory of Charlie Wirz The article below appeared on the internet:
Exhibit 2 (Taken off the internet) Brian Slawson
While playing marimba on the streets of New York City to finance his studies at Juilliard, Brian Slawson was discovered by Mikie Harris, assistant to Columbia Records talent scout John Hammond. Bach On Wood, Slawson's debut album on CBS/Sony, earned a Grammy nomination. Slawson has since released Bach Beat and Distant Drums, which features cameos by blues great Stevie Ray Vaughan, jazz trumpeter Freddie Hubbard and drummer Michael Shrieve. Slawson has performed with Leonard Bernstein, John Cage, Aaron Copland, Isaac Stern and Jessye Norman. His pop credits as drummer and percussionist include Pat Benetar, Peggy Lee, Johnny Mathis, Marie Osmond, The Mamas and Papas, and Ben Vereen. Slawson is Principal Timpanist with the Orlando and Brevard Symphony Orchestras, and Resident Percussion Instructor at the Academy of the Performing Arts.
1982
I (James Damiano) registered my first copyright with the Library of Congress in Washington DC. In 1982. The library registration number is PAU 409-107, Titled Collective songs by James Damiano. The computer print out of the registration describes the registration as lyric sheets and one Cassette tape. This tape included Dylan's 1994 hit song "Dignity" { Lyrical hook and melody line } In 1994 Bob Dylan released a song titled "Dignity" who he claims to have independently written. Dylan's copyright produced in this litigation by his attorney’s states that Dylan's first registration made to the Library of Congress was December 5th, 1991. Dignity was nominated for a Grammy by the National Academy of Popular.
Exhibit 3 below is an article which expresses the monetary value of being awarded a Grammy and or being nominated for a Grammy.
Grammies Boost Record Sales by Jeffrey Jolson-Colburn Mar 4, 1998, 6:15 PM PT
It's called the Grammy bump, and it goes something like this: See an act win a Grammy (or sing a song on the Grammy telecast), then go out and buy the album.
With 25 million viewers watching the show this year, that's a lot of potential record buyers.
True to form, the Titanic soundtrack was buoyed by Celine Dion's belting out "My Heart Will Go On" on the 40th Grammy Awards last Wednesday and berthed in the No. 1 slot for the eighth consecutive week. The collection of mostly orchestral tracks sold 505,000 units for the week ended March 1.
The Grammy cast also propelled the compilation album 1998 Grammy Nominees into the No. 11 spot with sales of 72,000 units, almost double the previous week's 37,000. The album features winning songs from the likes of Shawn Colvin, R. Kelly, Paula Cole, Fiona Apple and Erykah Badu.
Deservedly, the album getting the biggest boost was Bob Dylan's multiaward-winning Time Out of Mind, which jumped a whopping 95 places up to No. 27.
The sales on Titanic were off a bit from the soundtrack phenomenon's previous week's total of 563,000. Dion's Grammy crooning also helped her own album Let's Talk About Love hold the No. 2 spot. Both albums feature the song, which like the movie, has struck an emotional chord with fans.
Holding the No. 3 slot is rapper Silkk the Shocker, with a smooth 141,000 units of Charge It 2 Da Game, off from last week's debut of 248,000. Pop-rockers Savage Garden sowed a crop of 101,000 new fans in fourth place, while the goofy soundtrack to the Wedding Singer married 97,000 albums and fans to land at No. 5.
The Backstreet Boys sold a manly 91,000 copies of their self-titled debut to chart at No. 6, and Usher did it his way in seventh, selling 90,000 units of My Way.
K-Ci & JoJo have Love Always for another 88,000 people who bought their debut disc. The rookie rappers rose from eleventh to eighth.
Rock rounding out the last two spots in the Top 10. Matchbox 20--shut out of the Grammys--sold 79,000 copies of their debut Yourself of Someone Like You and Pearl Jam's Yield brought up the rear with sales of 73,000.
Since the beginning of my involvement with Mikie Harris, I had been sending her tapes that I recorded at home on my cassette deck. After of about a year and a half of talking on the phone, sending lyric sheets of my songs to Mikie as well as bringing cassettes with my music up to her at CBS Records, Mikie asked me if I would like to audition for Mr. Hammond.
None of my songs at that time had been recorded in a professional recording studio.
I accepted the invitation to audition for Mr. Hammond and Mikie told me that she would call me back in a week to set up the time and place.
A week later Mikie called and told me that she had set up the audition for three months from that date. The audition would be at Mr. Hammond's office in the Media Sound Building in New York on West 57th Street at Eleven O'clock in the Morning. I started practicing fifteen hours a day seven days a week. The three months seemed like forever.
The morning of the audition Mikie called me and told me that she would have to cancel the audition. I told her that I couldn't believe what she was telling me. She knew I quit my job three months prior, to practice for the audition. Finally after while she told me that she wanted to keep it out of the news and that Mr. Hammond was in the hospital. She then assured me that once Mr. Hammond was out of the hospital she would reschedule the audition.
A few months later Mikie called and rescheduled the audition for a few months from that date. I was excited and called a person who I was working with at the time named Allen LeWinter.
Allen worked with Don Kirshner and was associated with the band Kansas. Allen and his wife were living in a beautiful high rise condo on the East side. I loved going up there. They had a spectacular view from their balcony, and gold Kansas albums hanging on the wall.
Allen told me that his wife wrote scripts for soap operas.
Allen was a cool guy, well mannered, polite, modest, just your all around classy person. Kind of an artistic guy whose greatest attribute was his sincerity.
It seemed , Allen's job was to seek out talent in the suburbs. Everything else goes without saying. Allen respected Mr. Hammond immensely and was looking forward to going to the audition with me.
When I told Allen that the audition was back on we made arrangements for me to pick him up at his condo the morning of the audition.
Again I started practicing and practicing fourteen hours a day when Mikie sent me a book titled "John Hammond on Record." I was all practiced out, I couldn't practice anymore, so I read the book.
The book put me in semi-shock. It identified Mr. Hammond as the most influential music executive in the world.
The days counted down to three nights before the audition and I couldn’t not sleep. The following night I couldn't sleep, till finally the night before.
It was twelve midnight the night before. I laid in bed trying to go to sleep but still could not It seemed impossible. My adrenalin wouldn't stop pumping.
One A.M. rolled around, I was still wide awake and I hadn't slept in a couple days. Around two thirty I went downstairs grabbed a bottle of tequila and started drinking. Within a half hour I finally fell asleep.
The audition was for eleven o’clock in the morning. I woke at seven, jumped in the car, drove to New York, picked up Allen and we drove cross town to the audition. We parked the car, I grabbed my guitar and we started to walk to Mr. Hammond's office when I started feeling ill.
Allen quickly started trying to help me pull myself together with words of support, by calmly saying "You can do this " while I was thinking "he must be crazy, he doesn't understand how sick I feel" anyway I had no other alternative but to believe what Allen was saying to me and to simply pull myself together.
We entered the building and the receptionist called up to Mikie to tell her we were there, she hung up the phone and told us that Mikie said for us to go up. When we got to the office Mikie was waiting and quickly asked me if I'd like to tune my guitar. I said yes and she brought me down into a recording studio where she pointed to a piano and said "You can tune your guitar to this piano, it's the piano that Billy Joel records on." My first reaction was " Now that's a dose of reality not to many musicians could swallow." and with that thought I had to wonder what she expected from me. My second reaction was "Now that's inspiration.
I started tuning the guitar, when all of a sudden a string broke. I put down the quitter and said to Allen I'll be right back. I jumped up, ran down the stairs, stopped at the receptionist and asked her to get me some packets of salt, I ran a couple blocks down to the car and asked the valet where my car was. He pointed me to it and I ran down and grabbed a case that had guitar strings in it.
I ran back to the building , and as I ran past the receptionist she handed me the salt, I ran back up the stairs, put on the string, tuned the guitar, licked some salt and followed Mikie back up to Mr. Hammond's office .
Mikie told Allen and me to have a seat and that Mr. Hammond would be in a couple minutes. We waited a few minutes, then Mr. Hammond walked in. Mikie introduced us. We all shook hands, Mr. Hammond sat down at his desk and started out the conversation with a comment about Bruce Springsteen. We talked for a while and Mr. Hammond asked to hear one of my songs.
I played four songs for Mr. Hammond. One of which was titled "Living Proof." Mr. Hammond also read a song of mine that when I handed it to him I explained that I had written the song on an electric guitar and that since I only had an acoustic guitar with me, that I'd rather not try to play it. Mr. Hammond politely understood and said that he would like to hear it with music after it was recorded.
The song Mr. Hammond read is displayed below:
I've got a plush A frame overlooking the Ocean, with a fireplace to keep us warm when it's cold Cathedral ceilings for romantic evenings And lights that turn down low In the garage there's a brand new silver blue porche It's a 911- E And all these luxuries Can be yours for a while honey If you just say yes to me. Just say yes to me honey Just say yes to me Just say yes to me honey And give up your dignity I like playing golf racquetball and tennis And I bet on all the sports And I'm part owner of a nice little cottage Lodged up at a ski resort My boats docked down at little creek marina I just got a set of new sail On warm summer nights we'll sail out on the bay And watch falling stars make trails It's a good life when the money's right You can satisfy your curiosity And all you have to do honey Is just say yes to me Just say yes to me honey Just say yes to me Just say yes to me honey And give up your integrity My bank accounts bigger Than the houses I own Bigger than all three Live in maids clean all day To give us more time to be free Well go out every night Where you can show off all your New clothes and expensive jewelry And all you have to do honey is Just say yes to me Just say yes to me honey Just say yes to me Just say yes to me honey And give up your dignity
The song that Mr. Hammond read at the audition was untitled at the time but identified with two separate names. One of the identification of this song was "Just say yes to me" the second was "Dignity". I copyrighted this song with the Library of Congress in 1982.
Twelve years later Bob Dylan was nominated for a Grammy for a song titled "Dignity" released on his 1994 Bob Dylan's Greatest Hit's album and also on his MTV Bob Dylan Unplugged album.
The relationship between Mr. Hammond, CBS Records, Mikie , and myself continued for over Eleven Years. I kept submitting material. Musicians that I was playing with at the time would come up to CBS Records with me when I went to bring new songs that I had written up to Mikie.
Exhibit 4 1982 [later that year]
In 1982 Mikie sent me a Christmas card stating ;
Dear Jim,
"Wishing you a splendid Christmas and a most prosperous New Year."
(signed) - Love Mikie, Randy, Duke and Nikkie too. December 1982.
{ A true and correct copy of this letter will be produced upon request. Plaintiff's attorney Steven M. Kramer refused to produce this Christmas card to the court }
Mikie invited me to stay at her home for weeks at a time where I wrote and experimented with songs on her baby grand piano all the while submitting more and more material to her.
1986
I ( James Damiano) met Danny Gallagher in 1986. Danny was in one of Bruce Springsteen's first original bands "Doctor Zoom and the Sonic Boom". Rumor has it that Springsteen was sleeping on Danny's couch when he got signed to CBS Records. Nevertheless Danny and Springsteen still remain friends as of today {August 5th 1997.}.
Danny was a great steel guitar player. I asked Danny if he would put a steel guitar track on "Steal Guitars" (also identified as "Dignity" on James Damiano's 1982 copyright registration) and he agreed to do so. He also told me he that had a friend named Mario who played a great electric guitar and who did some touring with members of the New Riders of the Purple Sage.
Danny set up the recording session at Mario's home, we set up the equipment and recorded "Steal Guitars." (also identified as "Dignity" on James Damiano's 1982 copyright registration)
The Declaration of Danny Gallagher {Displayed below}
Exhibit 5
Danny Gallagher a musician who recorded the dobro guitar track on James Damiano's song "Steel Guitars" (also identified as "Dignity" on James Damiano's 1982 copyright registration) declares under penalty of perjury that:
I am a musician and I play the dobro guitar. I reside at -- _____________ Terrace __________Ireland. I recorded songs with James Damiano in the year 1986. I Danny Gallahger declare that in 1986 I played and recorded the dobro guitar track on James Damiano's song " Guitars" (also identified as "Dignity" on James Damiano's 1982 copyright registration) The song I am referring to in statement #5 of this declaration is the same song that is playing in the background of this taped statement or declaration. A week after James Damiano and I recorded the song "Steel Guitars" (also identified as "Dignity" on James Damiano's 1982 copyright registration)
Mr. Damiano told me that he went to New York to submit a copy of it to Mikie Harris at CBS.
{Plaintiff's Steven M. Kramer refused to submit Danny Gallagher's Declaration to the court, until the reconsideration motion. When Plaintiff asked Mr. Kramer why he was not submitting Mr. Gallegher's Declaration in his opposition brief to Defendants summary judgment motion, Mr. Kramer replied that "He didn't want to appear weak to the court"}
Exhibit 6
Mario Phillips a musician who recorded the electric guitar track on "Steel Guitars" aka (also identified as "Dignity" on James Damiano's 1982 copyright registration) during the same recording session with Danny Gallagher and James Damiano declares under penalty of perjury that:
My full Name is Gregory S. Phillipps (aka. Mario) I was born in _________________Washington. I reside at _____________________Washington In the year 1986 I played and recorded on an instrumental song of James Damiano's. Said song in #4 was recorded at the address I was living at in New Jersey Danny Gallagher also played the dobro guitar on this song The song I am referring to was played to me on the phone by James Damiano. I recognized the song as the song James, Danny and I recorded in 1986. [ This was signed after the plaintiff’s opposition brief to summary judgment]
http://www.bluespower.com/a-mb.htm
Major talent scout, John Hammond Sr. brought Stevie Ray Vaughan, Bob Dylan, Aretha Franklin, Leonard Cohen and Bruce Springsteen to Columbia Records. Hammond also worked as a producer with such early greats as Bessie Smith, Billie Holiday, Benny Goodman and Count Basie
Info@VanguardRecords.com,info@veerecords.com,webmaster@vprecords.com.
Shortly before Exhibit 7
On June 6th 1987 Mikie wrote a letter to me stating ;
Dear Jim:
Thanks for 'sharing' your lyrics / poetry with me. To me, your work represents a lot of time and effort but, from an artistic point of view, I feel that it is representative of poetry rather than a song in today's commercial market of music.
Since no tape accompanied the words, I have no way of knowing what your ideas are with regard to the music.
I just wish that there was some way for me to be of help to you, but with things the way they are, especially regarding Mr. Hammond's health, my hands are tied.
Our office has (at least since I've been associated with John) been actively involved with publishing, which is something I suggested you try to your material several years ago.
I still maintain that this is the best route for you. Publishers can reach major artists and guide you with regard to your material.
On the basis of the material that you have just now presented to me, I think it might stand a stronger chance of being recognized as a volume of straight poetry rather than songs.
Because of Mr. Hammond's policy with regard to his relationships with artists he has worked with, I will not be able to present your material to Bob Dylan.
Jim, I wish you the best ( but surely you know this by now after all these years ) and I'm only sorry that our office can't be of assistance to you. Take care……Mikie. A copy of the envelope which enclosed Mikie Harris's letter is displayed below.
This is the letter I received after Mikie took my songs for seven and a half years.
{ My attorney Steven M. Kramer never produced this actual letter to the court }
{Mikie Harris was never deposed in this litigation }
Plaintiff contends that many statements in Ms. Harris's letter are false and purposely misleading.
Taken from deposition disc also on video taped deposition.
Scott Patterson testified in a video tape deposition below:
Please note: All depositions besides Plaintiff's are video taped:
2 A. He never -- it was kind of like in
3 the beginning he had things to talk to me about
4 and then he came to the store and I think he made
5 the connection because I knew Tony and I also had
6 met Mikie Harris through Tony Tiller and I knew a
7 lot of those people.
Patterson Deposition
15 Q. Now, Mr. Patterson, when did you
16 first meet the plaintiff in this action, James
17 Damiano?
18 A. I guess it would be around '88. I'm
19 not sure of the date. I had met Jim at
20 Broccoli-Rabe Studios when he was recording there
21 and I worked on a couple of his sessions. That is
22 my extent of meeting Jim until last year when he
23 came up to my store.
24 Q. And you were working at Broccoli-Rabe
25 Studios in 1988?
24
1 Patterson
2 A. Right. I did assistant engineering
3 on and off there.
4 Q. Was that a formal position, assistant
5 engineer, or was it on an as-needed basis?
6 A. As-needed basis.
7 Q. Who owned Broccoli-Rabe?
8 A. Brian Draigo.
19
Q. Was there a chief engineer?
20 A. Yes.
21 Q. Who was that?
22 A. Phil Pfisterer. Phil and I had a
23 production company together called I-n-d-i-e Music
24 Productions
13 Q. Do you know when Mr. Damiano recorded
14 music at Broccoli-Rabe Studios?
15 A. It would probably be around '87,
16 because in '88 I worked with Tony Tiller out in
17 Sammy Fields.
23 A. Yes. The relationship between myself
24 and Tony Tiller came through Phil Pfisterer, not
25 through Jim Damiano. Phil met Tony Tiller through
26
1 Patterson
2 Jim Damiano at a party,
17 A. I met Tony Tiller through Phil
18 Pfisterer, who was my partner. Phil met Tony
19 through Jim Damiano at a party at Tony's house.
20 Phil went with Jim to the party.
21 Q. Did Mr. Damiano ask you to come to
22 this meeting?
23 A. Yes.
24 Q. What did he tell you the purpose of
25 the meeting was?
58
1 Patterson
2 A. He never -- it was kind of like in
3 the beginning he had things to talk to me about
4 and then he came to the store and I think he made
5 the connection because I knew Tony and I also had
6 met Mikie Harris through Tony Tiller and I knew a
7 lot of those people.
8 Q. When you say a lot of those people,
9 who else other than Tony Tiller and Mikie Harris?
10 A. Tony Tiller and Mikie Harris -- he
11 asked how he could get in touch with Mikie. I had
12 worked with her son, Duke, he has a band called
13 Marble.
14 Q. In working with Mikie Harris' son,
15 that had absolutely nothing to do with James
16 Damiano?
17 A. No, not at all. I didn't even know
18 Jim knew Mikie. I had met Mikie -- Tony had a
19 party at his house and I met Mikie there.
20 MR. SNYDER: Mr. Kramer, could you
21 go outside to do that.
22 MR. KRAMER: Oh, sure.
23 MR. SNYDER: Thanks.
24 Q. When you met Mikie, that again had
25 nothing to do with James Damiano and his recording
59
1 Patterson
2 of music or anything like that?
3 A. No. Actually, Mikie -- we were at a
4 party at Tony's house, and Mikie -- we started
5 talking and it ended up she knew a lot of people
6 that I knew through the studio and stuff.
Exhibit 8 Taken off the internet
Mikie Harris is on the National Academy of Popular Music / Songwriters Hall of Fame - Board of Director's
Plaintiff believes that this organization is instrumental in nominating Grammy nominees. This exhibit explains the caliber of the people Mikie was associated with in the music industry not that she needed and credentials after working with John Hammond Sr. the last ten years of his career.
Board Members and Trustees at our Awards Dinner included (standing from left) Michael Kerker, Linda Lorence, Ervin Drake, Cy Leslie, Jay Morgenstern, Bobby Weinstein, Karen Sherry, Mike Stoller, Randy Poe, Jim Lowe, Oscar Brand, Margaret Whiting, and Buddy Robbins; (seated from left) Burt Korall, Irv Lichtman, Al Feilich, 1996 SHOF Awards Dinner hostess/vocalist Maureen McGovern, Frank Military, Cy Coleman, Jules Goldberg, Anna Sosenko, and Irwin Z. Robinson. Board members not pictured: Martin Bandier, Mike Berniker, Jay Coleman, Milt Gabler, Sonny Golden, Mikie Harris, Clyde Otis, Phil Ramone, Larry Richmond, and George David Weiss. Listing of the Board of Directors and their Biographies
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
Martin Bandier Chairman and CEO of EMI Music Publishing. Administers the copyrights of close to one million songs. Billboard's Pop and Black Music Publisher of the Year in the U.S. for a record seven consecutive years. Board member of EMI Group plc, the NMPA, the BMI Foundation and Board of Trustees of Syracuse University, his Alma Mater.
Freddy Bienstock Chairman and Chief Executive Officer, Carlin Music International; Board Member of ASCAP, Harry Fox Agency and National Music Publishers Association; Recipient of Songwriters' Hall Of Fame Abe Olman Publishers Award, 1996.
Oscar Brand Singer/Songwriter; Composer for Broadway Musicals (Hyman Kaplan, A Joyful Noise, Kennedy Center Bicentennial Musical Sing American Sing), Ballets (Gold Rush for Agnes Demille) and Films (Blue Chips, The Fox, Sybil, The Long Riders). Songs Include: A Guy is a Guy, My Old Man's a Sailor, When I First Came to This Land, Where Were You Last Night, Wayward Boy. Founding Director and Curator of the Songwriters' Hall of Fame; TV and Radio Broadcaster; Author (The Ballad Mongers, Songs of '76, Singing Holidays, etc.).
Irving Burgie Songwriter; Publisher; Member of ASCAP and Songwriters' Guild since 1956. Songs Include: Day O; Jamaica Farewell; Island in the Sun; and 34 songs recorded by Harry Belafonte. Musical: Ballad for Bimshire. Honorary Doctor of Letters, University of the West Indies (1989).
Tita Cahn Widow of lyricist Sammy Cahn, President Emeritus of the Songwriters' Hall of Fame, 1973-1993.
Ervin Drake Vice President, NAPM; Scholarship Committee Chairman, NAPM; Songwriter; Writer and/or Producer of Stage and T.V. Shows; Former President of Songwriters' Guild of America; Songwriters' Hall of Fame Inductee; Songs include: It Was a Very Good Year; I Believe; Perdido; Good Morning, Heartache; Tico Tico; A Room Without Windows; Al Di La. All songs in cast album revival CD "Her First Roman," 1994; All songs in Leslie Uggams CD "Painted Mem'ries," 1995; Eight songs in current CD "From John Gabriel with Love."
Al Feilich Dinner Committee Chairman, NAPM; Retired Vice President, Information & Research, BMI; B'nai B'rith, District One Board Of Governors; Executive Committee, Peninsula Chapter Cancer Care; Lifetime Member, Basketball Hall of Fame; Serves on Executive, Museum, Scholarship, Nominations and Special Awards Committees, NAPM.
Charles Feldman Vice President BMI, Came from EMI where he was Vice President, worked with The Neville Brothers, Barry Mann, Carol King, Gerry Goffin, Tony Joe White, Toni Wine, and Wendy Waldman, Music supervisor and executive soundtrack producer of motion picture "Tender Mercies," Started out as songwriter signed to Muscle Shoals Music, National Trustee of NARAS, Vice Chairman of Entertainment Division UJA-Federation.
Mark Fried President, Spirit Music Group; Board of Directors - Songwriter Associations of Boston, Philadelphia and Washington; Co-Producer of Songwriters: Inside Out.
Milt Gabler Record Producer; Founder of Commodore Records; Worked with Decca/MCA until 1971; Founding Father of NARAS; Produced songs in Grammy Hall of Fame: Bill Haley's Rock Around the Clock, Billie Holiday's Strange Fruit and Lover Man and Lionel Hampton's Flying Home. Other songs include: Danke Schoen; L-O-V-E; In a Mellow Tone; Choo-Choo-Ch'boogie.
Jules Goldberg Executive Director, NAPM; Ex-Officio on Museum, Dinner, Nominating and all other Committees; Realtor; Former President of Old Westbury Hebrew Congregation (still a trustee); Chairman af the Village Board of Appeals; Member of the Council of Temple Presidents of Nassau County.
Sonny Golden Business Manager; Golden/Goldberg Accountancy Corporation.
Mikie Harris Record Producer; President/Creative Affairs, Theatre Video Playhouse, Inc. and MIRI Music Companies.
[NAPM] [Links] [Board of Directors] [Showcases] [Workshops] [Membership] [Newsletter] [SHOF] ©1999 Songwriters' Hall of Fame, The National Academy Of Popular Music. Inquires email April Anderson Web site questions email webmaster@12ptrule.com
Another new finding of fact which has surfaced concerning Mikie Harris is identified as exhibit 13 below. This exhibit displays production credits on the album: Produced and arranged by Bruce Springsteen and Miami Steve Van Zandt. Other production credits listed are Mikie Harris for background vocals. A true and correct copy of this web site of the production credits Exhibit 9
There is also a Bob Dylan song on the album titled From a Buick 6.
SONGS * BIOGRAPHY * TIMELINE * NEWS DADDY'S COME HOME from LP: "Dedication" Gary U.S. Bonds 1981, EMI America Records
Dedication Gary U.S. Bonds 1981, EMI America Records Songs Jole Blon (Moon Mullican / Fort Knox Music Co.BMI)* This Little Girl (Bruce Springsteen ASCAP)* Your Love (Bruce Springsteen ASCAP)* Dedication (Bruce Springsteen ASCAP)* Daddy's Come Home (Stevie Van Zandt / Blue Midnight Music)** It's Only Love (J. Lennon - P. McCartney / Maclen Music, Inc. BMI)** The Pretender (Jackson Browne / Swallow Turn Music/WB Music Corp. ASCAP)** Way Back When (G. U.S. Bonds-G. Bruno / King Kong Music/Gary Bonds Music BMI)*** From A Buick 6 (Bob Dylan / Warner Bros. Inc. ASCAP)** Just Like A Child (J. Clemente-L. Conte-L. Anderson / King Kong Music/Gary Bonds Music/Smooth Sailing Music BMI/ASCAP)**
Liner Notes & Production Credits * Produced & Arranged by Miami Steve & Bruce Springsteen ** Produced & Arranged by Miami Steve Associate Producer: Garry Tallent *** Produced by Gary U.S. Bonds, Lanny Lambert & Rob Parissi Additional Recording & Mix Produced by Miami Steve with Garry Tallent MUSICIANS: Accordion: Danny Federici Bass: Garry Tallent; John Clemente Drums: Mike Micara; Max Weinberg Fuzz Bass & Bongos: Miami Steve Guitars: Louie Conte; Rob Parissi; Bruce Springsteen; Miami Steve Keyboards: Roy Bittan; Rusty Cloud; Danny Federici Baritone Sax: Joey Stann Tenor Sax: Clarence Clemons (all solos); Ed Manion Trombone: La Bamba Trumpet: Rick Gazda; Michael Spengler Vocals: Ben E. King & Chuck Jackson on "Your Love" Background Vocals: Ellie Greenwich; Mikie Harris; Ula Hedwig; Brenda Hilliard (solo on "The Pretender"); Carol Sylvan; Carol Williams; Bruce Springsteen (solo on "Jole Blon" and "This Little Girl"); Miami Steve; Clarence Clemons Thank You BEN E. and CHUCK Chuck Jackson appears courtesy of Sugarhill Records Bruce Springsteen appears courtesy CBS Records Inc. Ben E. King appears courtesy Atlantic Records Corporation Engineers: Neil Dorfsman; Bob Clearmountain; Tony Bongiovi; Larry Alexander; Bill Scheniman Assistant Engineers: Jason Corsaro; Dave Greenberg; Jeffry Hendrickson; Garry Rindfuss; Ray Willhard Recorded & Mixed at the Power Station, New York City (except "Way Back When," recorded and mixed at Sound Mixers, Randy Mason, Engineer) Mastered at Precision Lacquer by Larry Emerine & Stephen Marcussen Swoopman Apocalypse Chuck Plotkin Management: John Apostol, Apostol Enterprises, Ltd. Album Design & Photography: Jimmy Wachtel, for Dawn Patrol Additional Photography: Tom Gibson & Barry Goldenberg Hand Lettering: Gloria Von Jansky Special thanks to: Big Laurie Anderson & Little Laurie Anderson, Gary Gersh, and Everybody at EMI
Mikie Harris also was given production credit on Stevie Ray Vaughan's album "Soul to Soul."
Plaintiff produces to this court the following article ( review ) to the court Please note that Stevie Ray Vaughan played on Bob Dylan's album "Under the Red Sky." In fact, numerous musicians that played on the "Bob Dylan Unplugged" album also shared similar credits on Stevie Ray Vaughan albums. Mikie Harris is given production credits as Assistant to Producer John Hammond. Exhibit 10
When I (James Damiano ) received the June 15th, 1987 letter from Mikie Harris stating that she could not be of assistance to me, I called her at CBS and asked to speak to her. A man answered the phone and told me that Mikie was at the hospital with Mr. Hammond. His name was Tony Tiller and he said that he was watching over the office while Mikie was out.
Mr. Tiller then asked me if I was the person who wrote the material on Mr. Hammond' s desk. I asked him what material he was referring to and he replied the songs in the big black notebook. I replied yes and we started to converse about the songs. He told me that he liked them and invited me up to CBS to meet with him. Tony showed a great deal of enthusiasm for my material. We started meeting or corresponding over the phone as Mikie and I had and Anthony started inviting me to parties in New York that other CBS people would attend.
The following article in which Tony Tiller's name appears and is given credit on an album which contained songs released by Bob Dylan.
Exhibit 14 displays the album credits Tony Tiller as the Project Coordinator on The Byrds Box set which contained songs written by Bob Dylan.
Exhibit 10
4k. THE BYRDS BOXED SET (Columbia/Legacy C4K 46773; 1990) _ Credits: Released October 1990. Compilation produced by Don DeVito and Bob Irwin. Musical Consultant: Roger McGuinn. Remastered and remixed by Tim Geelan & Vic Anesini. Project Director: Gary Pacheco. Project Coordination: Tony Tiller. Art Direction: Joel Zimmerman and Lisa Sparagano. Personnel: The Byrds v. 1.0 The Byrds v. 2.0 The Byrds v. 3.1 The Byrds v. 4.0 The Byrds v. 6.0 The Byrds v. 6.1 and on all new material: The Byrds v. 8.0: Roger McGuinn: vocals, 12-string guitar David Crosby: vocals Chris Hillman: vocals, bass plus: On "Turn! Turn! Turn!" Add John Jorgenson on guitar Add Steve Duncan on drums On "Mr. Tambourine Man" Add John Jorgenson on guitar Add Steve Duncan on drums With Bob Dylan on vocals & guitar On "Paths of Victory" Add John Jorgenson on mandolin Add Stan Lynch on drums On "From A Distance" David Crosby add guitar Add John Jorgenson on guitar, and mandolin Add Stan Lynch on drums On "Love That Never Dies" Chris Hillman plays guitar and not bass Add John Jorgenson on lead guitar and bass Add Stan Lynch on drums Add Al Kooper on keyboards Songwriting Credits: "Turn! Turn! Turn!" by Pete Seeger; lyrics adapted from the Book of Ecclesiastes "Mr. Tambourine Man" by Bob Dylan "He Was A Friend of Mine" by Jim McGuinn "Paths of Victory" by Bob Dylan " Musically, The Byrds Boxed Set lives up to its billing as a "definitive" collection.
[Back to top.] _ Byrds Albums | The Byrds Boxed Set Welcome | News | LPs | History | Members | Spinoffs | Related | Reference | Sanctuary | About | NEXT SECTION Mr. Tambourine Man | Turn! Turn! Turn! | Fifth Dimension | Younger | Notorious | Sweetheart | Dr. Byrds | Ballad | (Untitled) | Byrdmaniax | Farther Along | Byrds | Beginning | Never Before | Box | NEXT CHAPTER This page and entire ByrdWatcher Website Copyright © 1997 Tim Connors. All rights reserved. If you have any questions, comments or bug reports about the content or design of ByrdWatcher, please direct them to: byrds@ebni.com. Please tell me about browser compatibility problems. The URL of this page is: http://ebni.com/byrds/lpbox.html This page was last revised on February 20, 1997
DEFENDANTS TRY TO MAINTAIN TO THE COURT THAT THE PEOPLE AT CBS RECORDS / SONY MUSIC WERE IN POSSESSION OF JAMES DAMIANO'S SONGS, WERE NOT IN ANY POSITION TO ADVANCE PLAINTIFFS CAREER AS A SONGWRITER IN THE MUSIC INDUSTRY.
The following exhibits downloaded from the internet conclusively refute Defendants position of said defense.
I brought a sound engineer that I had worked with in the studio to one of Tony's parties. Not long after this, the engineer started working in the studio with Mr. Tiller on a musical project that Tony Tiller was producing.
Scott Patterson testified below Please note: All depositions besides Plaintiff's are video taped:
23 A. Yes. The relationship between myself
24 and Tony Tiller came through Phil Pfisterer, not
25 through Jim Damiano. Phil met Tony Tiller through
26
1 Patterson
2 Jim Damiano at a party,
17 A. I met Tony Tiller through Phil
18 Pfisterer, who was my partner. Phil met Tony
19 through Jim Damiano at a party at Tony's house.
20 Phil went with Jim to the party.
July 10th, 1987
July 10th, 1987 Tony Tiller asked me If I would like to submit material to Bob Dylan. I told him sure I would. He told me to mail the songs to Dylan at the Meadowlands Arena in East Rutherford New Jersey. I mailed them certified mail with return receipt requested. Produced during discovery in this litigation is Exhibit # 27 a certified mail receipt sent to Bob Dylan at the Meadowlands Arena Route 20, East Rutherford New Jersey. The date of this receipt is July 10th, 1987.
[ a copy the Meadowlands arena certified mail receipt is displayed below ]
On the same day July 10th, 1987 John Hammond. Sr. passed away. An article downloaded from the internet is displayed below.
One day shortly before Mr. Hammond's death I was in New York and I called him from the lobby house phone at CBS as he told me to do from the first time I went to see him. Usually when I called from the lobby house phone he would tell me to come up to his office. He would call the security guard at the front desk and give his tell the security guard to permit me to enter the elevator and I would go up to his office.
This particular day he said to me "don't come up because I'm coming down shortly" . His voice had a ringing excitement to it when he then asked me if I'd like to go with him to Carnegie Hall that night where he was going to record Stevie Ray Vaughan live. I remember the excitement in his voice still to this day. I was just excited and honored that he asked me to go with him. I was extremely flattered and honored.
I told Mr. Hammond I would love to go and he told me to meet him at the back entrance. He told me that he would be at the mobile recording unit outside of the back stage entrance and to look for a large truck or van.
I met Mr. Hammond there. As soon as we entered through the backstage door Mr. Hammond was swarmed by reporters attempting to ask him questions mostly about his health because he was recently released from the hospital. Mr. Hammond wasn't concerned with answering questions about himself. I stood back and watched. He was surrounded by reporters all talking to him all at once. I could feel his excitement, I could feel his adrenalin flowing, and I knew his intentions were not to talk about himself but to record Stevie Ray Vaughan yet I could see him trying to slow himself down so as to be polite to the reporters like a Jockey on a racehorse trying to slow the horse down after a race.
Mr. Hammond spoke to the reporters for a short while, then tried to make an exit but they wouldn't let him go. The reporters kept asking him questions. From my recollection Mr. Hammond's reaction to their questions could only be best described as reminiscent of a tv newsperson flashing a microphone in a politicians face who was caught in a scandal as he walked out of the court room, although Mr. Hammond was not in that position. It was just the look on his face that resembled the notion of that similar situation I described. It appeared to me that all Mr. Hammond wanted to say to the reporters was "Are you kidding Stevie Ray |
 |
Date: July 7th, 2012 4:28 PM James DAMIANO, Plaintiff, v. SONY MUSIC ENTERTAINMENT, INC., and Bob Dylan, Defendants.
Civ. A. No. 95-4795(JBS). United States District Court, D. New Jersey.
December 16, 1996. Opinion Denying Reconsideration August 20, 1997. 624*624 625*625 Steven M. Kramer,[*] Steven M. Kramer & Associates, New York City, for Plaintiff.
Steven D. Johnson, Hecker, Brown, Sherry & Johnson, Haddonfield, NJ, Stephen M. Hayes, Orin Snyder, Parcher, Hayes & Liebman, New York City, for Defendants.
OPINION
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).[1] Defendants seek judgment on the merits, as well as dismissal as a sanction under Rule 11, Fed.R.Civ.P., 626*626 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. § 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, 104 S.Ct. 2144, 79 L.Ed.2d 910 (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, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Supreme Court decisions mandate that: "[w]hen 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, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (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. at 248, 106 S.Ct. at 2510). 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 meta-physical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (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, 106 S.Ct. at 2511.
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 627*627 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.[2] 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 Associates v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.), cert, denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (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.[3]
Plaintiff has not presented evidence to the contrary, but merely asserts that "[p]laintiff has registered almost all of his works" and the rest will be registered prior to this court's decision. (Pl. Br. at 25) (emphasis added). Specifically, plaintiff alleges that his work "Only God Knows," which contains several lines that are allegedly infringed by Dylan's "God Knows," and the lyric "Conceit 628*628 is a disease" were in the process of being copyrighted at the time he submitted his opposition brief. Defendants, however, dispute the accuracy of this assertion and argue that a search of U.S. Copyright Office records revealed no new registrations by Damiano in 1996. (Def. Reply Br. at 5). Further, plaintiff has failed to produce any proof of filing to support his claim of pending registration for the two sets of lyrics in question. See Wilson v. Mr. Tee's, 855 F.Supp. 679, 682 (D.N.J.1994). Thus, summary judgment will be granted for these lyric infringement claims since plaintiff has failed to establish a prima facie case of infringement.
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:[4]
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"[5]
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]"[6]
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 On the door to hell" from hell goes rolling by"
9. "No one to run from "I don't cheat on myself And no reason to hide" I don't run and hide"
10. "I can pretend" "I don't pretend" 629*629 11. "Maybe there's a reason for "God knows there's a purpose" a purpose"
12. "What good is a man" "What good am I" a. Originality
A key point in this case is the disagreement between the parties as to the amount of originality needed for a work to be copyrightable. Plaintiff contends that "just a dash" will suffice. See Universal Athletic Sales Co., 511 F.2d at 908 ("[E]ven a modicum of creativity may suffice for a work to be protected."). Defendants, however, argue that the common words and phrases and cliches used in plaintiff's lyrics are not subject to copyright protection. See Jarvis, 827 F.Supp. at 291 (citing Perma Greetings, Inc. v. Russ Berrie & Co., Inc., 598 F.Supp. 445, 448 (E.D.Mo.1984)); O'Brien v. Chappel & Co., 159 F.Supp. 58 (S.D.N.Y.1958) (holding that phrase "night and noon" is not protectible).
Plaintiff relies on the decision in Jarvis v. A & M Records, for the proposition that even common words can be protected if placed in a certain arrangement. For example, he argues that coupling the word "stumble" with the word "lips" creates a sufficiently original arrangement of otherwise trite words. Likewise, plaintiff argues that an arrangement combining the cliche "truer words have not been spoken" with the word "broken" is creative enough to be worthy of protection. Thus, plaintiff concludes, Bob Dylan cannot subsequently use the same pairs of words or phrases together in a lyric, even if separated by many intervening lines and ideas in some instances, without infringing plaintiff's original work.
The law of copyright does not support the logical extension of plaintiff's theory. In effect, he asks us to grant him a monopoly over the use of common combinations of words such as "bell" and "hell," "run" and "hide," or "mind" and "behind" merely because they are found together in a single song — regardless of context or placement within the song. Such a result would not only stifle creativity, it would contravene the very policy behind copyright law and the rule requiring sufficient originality for a work to be protected. As the Jarvis court noted, "the policy behind the rule is to prevent a deterring effect on the creations of new works because of author's fears of copying innocuous segments." Jarvis, 827 F.Supp. at 291. Indeed, the law of copyright has absolutely no interest in tying up random, fortuitous combinations of words.
Additionally, the court notes that plaintiff's reliance on Jarvis is misplaced. In that case, the defendants admitted to copying elements of the plaintiff's song via digital sampling. Since sections of the plaintiff's work were actually reproduced and used in the infringing work, there was no question as to whether the arrangement was similar — it was identical. Unlike in the present case, "the precise relationship of the phrases vis a vis each other was copied." Id. at 292 (emphasis in original). Thus, the issue was not simply whether the common words "move" and "free your body" were protectible in a given arrangement, but rather, whether the copying was qualitatively or quantitatively sufficient to constitute an appropriation of plaintiff's work. The defendants in Jarvis raised a fact question on that issue and so summary judgment was denied.
In this case, copying has not been conceded, and the question of whether plaintiff's arrangement of common words and phrases is distinctive enough to deserve protection is at the heart of the parties' dispute. Even if copying were conceded as in Jarvis plaintiff would not survive summary judgment because no reasonable jury could conclude that the words and phrases allegedly copied by Dylan were quantitatively or qualitatively important to the whole of plaintiff's allegedly infringed works. The words and phrases in question comprise nothing more 630*630 than a single line or two of an entire song, and the songs themselves provide completely different contexts for the allegedly infringed words and phrases. Further, when taken as a whole, no jury could find substantial similarity between the lyrics of Damiano and Dylan. Summary judgment is appropriate in copyright actions based on lyrics where no reasonable jury could find substantial similarity between the works at issue. Nelson v. PRN Productions, Inc., 873 F.2d 1141 (8th Cir.) (trial court carefully studied lyrics involved and determined that reasonable minds could not differ as to absence of substantial similarity), cert. denied, 493 U.S. 994, 110 S.Ct. 544, 107 L.Ed.2d 541 (1989). The issue of substantial similarity need not be reached here, however, because plaintiff fails to demonstrate a threshold of originality of his lyrics.
Insofar as the infringement of plaintiff's lyrics depends on there being some protectible element in his work, plaintiff cannot establish a copyright action. The lyrics he claims were infringed are nothing more than unprotectible phrases and cliches, and even when taken as a whole, they are not substantially similar to Dylan's work. Thus, summary judgment is granted on plaintiff's lyric claims, without the need to reach any additional elements comprising an infringement action.
C. Plaintiff's Music Infringement Claim
In addition to his lyric infringement claims, plaintiff asserts infringement of his instrumental composition, "Steel Guitars," by Dylan's "Dignity."
1. Ownership
There has been a fair amount of confusion concerning the registration of plaintiff's song. Plaintiff produced during discovery a tape, marked as Exhibit 71 of defendants' moving papers, which contained the song he called "Steel Guitars." (Exhibit 71 version). That song has been analyzed by both parties' experts and compared to "Dignity."
Defendants now contend, however, that the Exhibit 71 version of "Steel Guitars" was never registered with the Copyright Office. Plaintiff claims to have submitted a tape for registration in 1988, marked PAU X-XXX-XXX, which, according to plaintiff's attorney, contains "Steel Guitars" as the last song on side B. (Copyright tape version). The version of "Steel Guitars" on the copyright tape, however, is not the same as the one on Exhibit 71. While there are common elements in the two versions, they are certainly not identical. Because of the confusion, the court has considered both versions of the allegedly infringed song.
First, the court notes that the Exhibit 71 version cannot be the basis of an infringement claim because plaintiff is unable to show that the work was registered with the Copyright Office. Thus, he has failed to establish a prima facie case of musical infringement for that version of "Steel Guitars." The Copyright tape version, on the other hand, although not originally identified as infringed work, apparently was registered. The court will therefore analyze the remaining elements of an infringement claim for the registered version only.
2. Copying
Since there is no direct proof of copying in this case, plaintiff may establish copying if he can show (a) defendants' access to the copyrighted work; and (b) substantial similarity between the works to support an inference of unlawful copying. 827 F.Supp. at 289 (citing Whelan Associates, Inc., 797 F.2d at 1232).
a. Access
Plaintiff asserts that "the bulk of his life's work" was submitted to Sony beginning in 1982. (Compl. at 2). He also alleges that he was told to bring his songs to several concerts which he attended courtesy of Sony. Plaintiff has produced evidence that after these concerts, he was allowed backstage and gave his work to Dylan or his agents. (Damiano Decl. at ¶¶ 2, 5; Dep. of Pam Damiano at 77-84, 97-104; Dep. of Brad Wright at 105-112). Taking these allegations as true, plaintiff has demonstrated a genuine issue of material fact as to whether defendants had access to his work.
631*631 b. Similarity to Infer Copying
In addition to showing defendants' access to his work, plaintiff must also show that his song and Dylan's song were substantially similar in order to infer that copying occurred. This is the so-called "extrinsic test" of substantial similarity, which calls for a dissection of the musical structure of the two pieces in search of objective similarities. Expert testimony is permitted, and often useful, in establishing substantial similarity at this phase of the inquiry. Although both sides retained experts for the comparison of plaintiff's "Steel Guitars" to Dylan's "Dignity," the experts analyzed the irrelevant Exhibit 71 version and not the one on the Copyright tape. Plaintiff's expert concluded that the melody of "Dignity" and plaintiff's Exhibit 71 version were thirty-two percent similar. Since the two versions of "Steel Guitars" are themselves different, however, the court will not consider the expert testimony as it might apply to the Copyright tape version. Without the benefit of expert testimony or other evidence specific to the Copyright tape version of plaintiff's song, the court must engage its own analysis of the components of the songs. To the ear of this court, there is no substantial similarity in the structure, instrumentation or melody of the two songs. These songs "speak" for themselves and no reasonable factfinder could find substantial similarity.
Although this alone would dispose of plaintiff's musical infringement claim, the court will continue so as to complete this analysis.
3. Substantial Similarity to Show Appropriation
The final step of an infringement analysis is the so-called intrinsic test of substantial similarity which seeks the response of a lay person to the "total concept and feel" of the two songs at issue. See Whelan, 797 F.2d at 1234. "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 Cos., 654 F.2d 204, 208 (2d Cir.1981).
After listening several times to both Dylan's "Dignity" and plaintiff's "Steel Guitars" as it appears on the Copyright tape, this court is convinced that no reasonable juror could find the two songs substantially similar in total concept and feel. Plaintiff's song, an instrumental, consists of two guitars — one that plays a fairly repetitious baseline, and one that plays a seemingly improvised free melody. Dylan's song has full instrumentation and accompanying lyrics. The overall effect of the two pieces is quite dissimilar — put simply, they just don't sound alike. The lack of substantial similarity necessarily leads to a conclusion that Bob Dylan did not improperly appropriate plaintiff's work and thus ends the analysis of plaintiff's music infringement claim. Summary judgment will be granted in favor of defendants as to all of plaintiff's copyright infringement claims.
D. Plaintiff's Remaining Claims
Mr. Damiano also asserts federal claims under the Lanham Act and RICO, and state law claims on the theories of fraud, breach of confidence and misappropriation. To the extent that they all are based on the alleged plagiarism or theft of plaintiff's work by Bob Dylan, the dismissal of his copyright infringement claim mandates dismissal of the others since Damiano cannot establish that Dylan copied or even used any of his work.
Defendants also raise additional grounds for dismissal of plaintiff's accompanying federal and state law claims.
1. Lanham Act
Plaintiff's claim here revolves around the contention that he is the "co-author" of works that Dylan has falsely designated as his own, thus misleading the public and depriving Damiano of proper credit for his work. Although, as plaintiff points out, the elements of copyright infringement and Lanham Act claims are somewhat different, the fact that Damiano cannot establish that his work was copied by Dylan surely precludes a reasonable juror from finding that the two coauthored 632*632 any works. Plaintiff has failed to present any evidence that would support his Lanham Act claim, and thus, summary judgment will be granted in favor of the defendants.
2. RICO
Plaintiff alleges that defendants engaged in "massive mail fraud" by putting into interstate commerce recordings containing fraudulent statements, namely, that Bob Dylan created songs on the recordings which were actually created by plaintiff.
Plaintiff's RICO claims must fail because they are actually nothing more than copyright infringement claims presented as mail fraud and copyright infringement is not a predicate act under RICO. Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir.1996). Further, since plaintiff has failed to show that Dylan copied any of his work, he cannot show that the dissemination of Dylan's recordings or the statements contained therein were in any way fraudulent. Summary judgment is therefore granted on plaintiff's RICO claims.
3. State Claims
Defendants argue that plaintiff's state claims are pre-empted by the federal copyright law. Plaintiff does not respond to the pre-emption argument.
Section 301 of the copyright act explicitly preempts state laws that (1) fall within the subject matter of the federal copyright law and protect works that are fixed in tangible medium of expression; and (2) create legal or equitable rights that are equivalent to any of the exclusive rights granted to the copyright holder and specified in Section 106. Jarvis, 827 F.Supp. at 296.
Insofar as any of plaintiff's state claims turn on the alleged unauthorized copying or use of his lyrics and music, they are preempted by federal copyright law. As an initial matter, the court notes that plaintiff has not attempted to argue that his state claims arise from anything other than the alleged theft of his songs by Bob Dylan.
a. Misappropriation of Property
Plaintiff's misappropriation claim is based on the alleged unauthorized use of plaintiff's materials by Bob Dylan. This claim is equivalent to plaintiff's copyright infringement claim and thus is pre-empted.
b. Breach of Confidence and Fraud
Without reaching the question of pre-emption on plaintiff's final state law claims, the court finds that plaintiff has failed to establish either claim. First, plaintiff has offered no proof to show that defendants owed him any duty or that such a duty could have been breached by their actions. Second, plaintiff has failed to establish a claim for fraud, especially to the degree of specificity required by Rule 9(b), Fed.R.Civ.P. Plaintiff has not produced any proof of direct misrepresentations by defendants. At best, this court will accept as true plaintiff's allegation that Sony represented to him that he would be credited and compensated if Dylan used his work. Plaintiff, however, has failed to show that his work was ever used, incorporated or copied by Dylan.
Plaintiff's state claims therefore fail as a matter of law and summary judgment will be entered in favor of defendants.
E. Plaintiff's Appeal of Judge Rosen's Orders
As a final matter, this court reserved decision on plaintiff's appeal of Judge Rosen's August 6, 1996, Orders pending the outcome of defendant's summary judgment motion. These appeals assert that Judge Rosen erred in denying plaintiff access to information related to data about the sales of Dylan's songs and about Dylan's alleged motive to copy the works of others. See Damiano v. Sony Music Entertainment, Inc., 168 F.R.D. 485 (D.N.J.1996). Neither issue pertains to the questions decided herein, which are dispositive of the case. The granting of summary judgment in favor of defendants renders plaintiff's appeal moot.
633*633 III. Conclusion
For the reasons set forth above, summary judgment is granted for defendants on all counts of plaintiff's complaint. Defendants have fourteen days to apply for Rule 11 sanctions or statutory attorney's fees as detailed in part I of this Opinion. The appeal of Magistrate Judge Rosen's Orders of August 6, 1996, is dismissed as moot.
The accompanying Order has been entered.
ORDER
This matter having come before the court upon the defendants, motion for summary judgment; and the court having considered the submissions of the parties and heard oral argument on the matter; and for the reasons set forth in the Opinion of today's date;
It is this 16th day of December, 1996, hereby
ORDERED that the defendants' motion for summary judgment be, and hereby is GRANTED as to all counts of plaintiff's complaint; and it is
FURTHER ORDERED that plaintiff's appeal of Judge Rosen's Orders of August 6, 1996, be and hereby, is DISMISSED as moot; and it is
FURTHER ORDERED that any motion for statutory attorney's fees or Rule 11 sanctions shall be filed within 14 days of the entry of this Order.
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 625). 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 627).
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 634*634 for reconsideration.[1] 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 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 than 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 630). 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 Associates 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 635*635 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 631). 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 "[w]e 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 631). 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 Cos., 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. 636*636 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 628). 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 637*637 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 629). 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 627, 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 627).
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 638*638 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 632). 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 632).
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.[2]
An appropriate order follows.
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., 639*639 and/or for statutory attorney's fees shall be filed within twenty (20) days hereof.
[*] On April 24, 1997, the Supreme Court of New Jersey suspended Steven M. Kramer from the practice of law, for reasons not related to this case, for a period of six months effective May 16, 1997. In the Matter of Steven M. Kramer, An Attorney at Law, 149 N.J. 19, 691 A.2d 816 (1997). This court has not entered a suspension order for reciprocal discipline as of today's date.
[1] For example, in what appears to be plaintiff's strongest claim, he sets forth the lyrics of his purported work "Only God Knows" as compared to Dylan's "God Knows."
Damiano lyrics Dylan lyrics
Only God knows the hurt God knows you ain't pretty Only God knows the pain God knows it's true, Only God knows the struggle God knows there ain't anybody, Of the misery that you claim Ever gonna take the place of you Only God knows the anguish God knows it's a struggle, Only God knows the faith God knows it's a crime, Only God knows the truth God knows there gonna be no more Of the secrets of your fate Water for fire the next time, A different form a treason God don't call it treason, A different type of hypocrisy God don't call it wrong, Not your usual form It was supposed to last a season of adulturism or betrayal But it's been so strong, Of intimacy For so long, Only God knows the reason God knows it's fragile, Only God knows what's wrong God knows everything, Only God knows how fragile it is ... God knows there's a river, Only God knows how strong God knows how to make it flow, He made the winding rivers ... God knows there's a purpose You can watch them flow Faith is your reason Belief your purpose Don't tell me you Didn't know. Although these two works do appear to be similar as presented in the complaint, discovery has revealed that plaintiff never sought a copyright for the purported work "Only God Knows" before initiating this litigation. Only the lyrics that have here been placed into boldface had previously even existed and been copyrighted — as verses in other songs. Indeed, the court suspects that any similarity between these two songs is the result of an appropriation of Dylan's work by Damiano, not the other way around.
[2] The following verses composed by plaintiff were presented in his complaint as infringed lyrics but not addressed after defendants' motion for summary judgment:
1. "I'm not sure of anything half the time anymore"
2. "A cloud of confusion filled the room to thick to withstand"
3. "Against the pale blue sky"
4. "Sunbird up in the sky/Sunbird your flyin to high"
5. "Born are new ideas" "Against the pale blue sky"
6. "Lost days and forgotten years"
[3] Defendants submit that the following lyrics were not found in any of the Damiano works in the record:
Damiano lyric Dylan lyric
1. "buried inside" "buried deep down inside"
2. "Wanna try and help mankind" "I can smile in the face "I can smile in the face of mankind" of reality"
3. "Conceit is a disease" "Conceit is a disease"
4. multiple lines from multiple lines from purported work, Dylan's song, Only God Knows God Knows [4] The first five lyrics listed are those designated by plaintiff's attorney at oral argument as plaintiff's "Top Five" claims.
[5] As an example of how plaintiff misrepresents and alters Dylan's lyrics, these two lines from Dylan's song "Most of the Time" are presented in the complaint as if they follow one another in the song. In reality, the lines are separated by over one hundred words.
[6] Plaintiff incorrectly asserts that Dylan changed the lyric in the 1994 re-release of his song, "With God On Our Side," originally composed and copyrighted in 1963, from "kiss" to "king," thereby repeating the historical error made by Damiano in his untitled song. A review of Dylan's song reveals that the lyric is actually still "kiss." (Defendants' exhibits 64 and 66; Dylan's "Unplugged" CD and video).
[1] Effective April 1, 1997, General Rule 121, which previously governed motions for reargument, was renumbered Rule 7.1(g). The language of General Rule 121 was not altered in Rule 7.1(g).
[2] Defendants' initial application for summary judgment on the merits was accompanied by an application for dismissal as a sanction under Rule 11, Fed.R.Civ.P., for the filing of a complaint not well-grounded in fact or law. (See Op. filed Dec. 16, 1996, at 625-26). The court deferred consideration of Rule 11 sanctions and/or for attorney's fees under Rule 11 or under the less demanding standard of the Copyright Act, 17 U.S.C. § 505, until such an application could be filed, within fourteen days thereafter. (Id. at 626). When defendants sought to enlarge the period to seek attorney's fees because of the prospect that plaintiff would be seeking reconsideration, the court extended the application deadline until fourteen (14) days after decision of any reconsideration motion, which is now further enlarged to give sufficient time to include costs and fees expended in defense of this reconsideration motion as well. |
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Date: July 7th, 2012 11:25 PM
Compare the Opinion with the material facts below
http://www.youtube.com/watch?v=0lb8ZJjmzQ8 |
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Date: June 29th, 2012 1:37 PM |
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Date: June 29th, 2012 6:24 PM |
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Date: June 29th, 2012 10:42 PM
There were approximately fifteen to twenty five boxes filled with anywhere from 200 to 400 finished and unfinished songs in each box (thirty five years of writing) that were never returned
Dear Mr. Snyder:
I have one other matter. Mr. Damiano informs me that Steven Kramer (James Damiano's lead attorney) had several boxes of songs delivered to Parcher & Hayes during the discovery phase of his case against Dylan. Mr. Kramer never made copies of the documents, since I am presuming he felt pressed to comply with an overdue discovery request. Mr. Damiano informs me that he has never had all the original songs returned to his possession, even though the case is over. If you don’t mind, please explain what you can recall about Mr. Damiano’s song production. Do you still have songs unaccounted for? Can they be returned?
Sincerely Robert Church
See last paragraph in Robert Church's letter below http://www.jamesdamiano.yolasite.com |
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Date: June 29th, 2012 11:33 PM
http://bobdylanplagiarisms.yolasite.com/testimony.php |
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Date: July 7th, 2012 4:28 PM James DAMIANO, Plaintiff, v. SONY MUSIC ENTERTAINMENT, INC., and Bob Dylan, Defendants.
Civ. A. No. 95-4795(JBS). United States District Court, D. New Jersey.
December 16, 1996. Opinion Denying Reconsideration August 20, 1997. 624*624 625*625 Steven M. Kramer,[*] Steven M. Kramer & Associates, New York City, for Plaintiff.
Steven D. Johnson, Hecker, Brown, Sherry & Johnson, Haddonfield, NJ, Stephen M. Hayes, Orin Snyder, Parcher, Hayes & Liebman, New York City, for Defendants.
OPINION
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).[1] Defendants seek judgment on the merits, as well as dismissal as a sanction under Rule 11, Fed.R.Civ.P., 626*626 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. § 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, 104 S.Ct. 2144, 79 L.Ed.2d 910 (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, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Supreme Court decisions mandate that: "[w]hen 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, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (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. at 248, 106 S.Ct. at 2510). 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 meta-physical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (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, 106 S.Ct. at 2511.
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 627*627 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.[2] 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 Associates v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.), cert, denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (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.[3]
Plaintiff has not presented evidence to the contrary, but merely asserts that "[p]laintiff has registered almost all of his works" and the rest will be registered prior to this court's decision. (Pl. Br. at 25) (emphasis added). Specifically, plaintiff alleges that his work "Only God Knows," which contains several lines that are allegedly infringed by Dylan's "God Knows," and the lyric "Conceit 628*628 is a disease" were in the process of being copyrighted at the time he submitted his opposition brief. Defendants, however, dispute the accuracy of this assertion and argue that a search of U.S. Copyright Office records revealed no new registrations by Damiano in 1996. (Def. Reply Br. at 5). Further, plaintiff has failed to produce any proof of filing to support his claim of pending registration for the two sets of lyrics in question. See Wilson v. Mr. Tee's, 855 F.Supp. 679, 682 (D.N.J.1994). Thus, summary judgment will be granted for these lyric infringement claims since plaintiff has failed to establish a prima facie case of infringement.
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:[4]
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"[5]
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]"[6]
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 On the door to hell" from hell goes rolling by"
9. "No one to run from "I don't cheat on myself And no reason to hide" I don't run and hide"
10. "I can pretend" "I don't pretend" 629*629 11. "Maybe there's a reason for "God knows there's a purpose" a purpose"
12. "What good is a man" "What good am I" a. Originality
A key point in this case is the disagreement between the parties as to the amount of originality needed for a work to be copyrightable. Plaintiff contends that "just a dash" will suffice. See Universal Athletic Sales Co., 511 F.2d at 908 ("[E]ven a modicum of creativity may suffice for a work to be protected."). Defendants, however, argue that the common words and phrases and cliches used in plaintiff's lyrics are not subject to copyright protection. See Jarvis, 827 F.Supp. at 291 (citing Perma Greetings, Inc. v. Russ Berrie & Co., Inc., 598 F.Supp. 445, 448 (E.D.Mo.1984)); O'Brien v. Chappel & Co., 159 F.Supp. 58 (S.D.N.Y.1958) (holding that phrase "night and noon" is not protectible).
Plaintiff relies on the decision in Jarvis v. A & M Records, for the proposition that even common words can be protected if placed in a certain arrangement. For example, he argues that coupling the word "stumble" with the word "lips" creates a sufficiently original arrangement of otherwise trite words. Likewise, plaintiff argues that an arrangement combining the cliche "truer words have not been spoken" with the word "broken" is creative enough to be worthy of protection. Thus, plaintiff concludes, Bob Dylan cannot subsequently use the same pairs of words or phrases together in a lyric, even if separated by many intervening lines and ideas in some instances, without infringing plaintiff's original work.
The law of copyright does not support the logical extension of plaintiff's theory. In effect, he asks us to grant him a monopoly over the use of common combinations of words such as "bell" and "hell," "run" and "hide," or "mind" and "behind" merely because they are found together in a single song — regardless of context or placement within the song. Such a result would not only stifle creativity, it would contravene the very policy behind copyright law and the rule requiring sufficient originality for a work to be protected. As the Jarvis court noted, "the policy behind the rule is to prevent a deterring effect on the creations of new works because of author's fears of copying innocuous segments." Jarvis, 827 F.Supp. at 291. Indeed, the law of copyright has absolutely no interest in tying up random, fortuitous combinations of words.
Additionally, the court notes that plaintiff's reliance on Jarvis is misplaced. In that case, the defendants admitted to copying elements of the plaintiff's song via digital sampling. Since sections of the plaintiff's work were actually reproduced and used in the infringing work, there was no question as to whether the arrangement was similar — it was identical. Unlike in the present case, "the precise relationship of the phrases vis a vis each other was copied." Id. at 292 (emphasis in original). Thus, the issue was not simply whether the common words "move" and "free your body" were protectible in a given arrangement, but rather, whether the copying was qualitatively or quantitatively sufficient to constitute an appropriation of plaintiff's work. The defendants in Jarvis raised a fact question on that issue and so summary judgment was denied.
In this case, copying has not been conceded, and the question of whether plaintiff's arrangement of common words and phrases is distinctive enough to deserve protection is at the heart of the parties' dispute. Even if copying were conceded as in Jarvis plaintiff would not survive summary judgment because no reasonable jury could conclude that the words and phrases allegedly copied by Dylan were quantitatively or qualitatively important to the whole of plaintiff's allegedly infringed works. The words and phrases in question comprise nothing more 630*630 than a single line or two of an entire song, and the songs themselves provide completely different contexts for the allegedly infringed words and phrases. Further, when taken as a whole, no jury could find substantial similarity between the lyrics of Damiano and Dylan. Summary judgment is appropriate in copyright actions based on lyrics where no reasonable jury could find substantial similarity between the works at issue. Nelson v. PRN Productions, Inc., 873 F.2d 1141 (8th Cir.) (trial court carefully studied lyrics involved and determined that reasonable minds could not differ as to absence of substantial similarity), cert. denied, 493 U.S. 994, 110 S.Ct. 544, 107 L.Ed.2d 541 (1989). The issue of substantial similarity need not be reached here, however, because plaintiff fails to demonstrate a threshold of originality of his lyrics.
Insofar as the infringement of plaintiff's lyrics depends on there being some protectible element in his work, plaintiff cannot establish a copyright action. The lyrics he claims were infringed are nothing more than unprotectible phrases and cliches, and even when taken as a whole, they are not substantially similar to Dylan's work. Thus, summary judgment is granted on plaintiff's lyric claims, without the need to reach any additional elements comprising an infringement action.
C. Plaintiff's Music Infringement Claim
In addition to his lyric infringement claims, plaintiff asserts infringement of his instrumental composition, "Steel Guitars," by Dylan's "Dignity."
1. Ownership
There has been a fair amount of confusion concerning the registration of plaintiff's song. Plaintiff produced during discovery a tape, marked as Exhibit 71 of defendants' moving papers, which contained the song he called "Steel Guitars." (Exhibit 71 version). That song has been analyzed by both parties' experts and compared to "Dignity."
Defendants now contend, however, that the Exhibit 71 version of "Steel Guitars" was never registered with the Copyright Office. Plaintiff claims to have submitted a tape for registration in 1988, marked PAU X-XXX-XXX, which, according to plaintiff's attorney, contains "Steel Guitars" as the last song on side B. (Copyright tape version). The version of "Steel Guitars" on the copyright tape, however, is not the same as the one on Exhibit 71. While there are common elements in the two versions, they are certainly not identical. Because of the confusion, the court has considered both versions of the allegedly infringed song.
First, the court notes that the Exhibit 71 version cannot be the basis of an infringement claim because plaintiff is unable to show that the work was registered with the Copyright Office. Thus, he has failed to establish a prima facie case of musical infringement for that version of "Steel Guitars." The Copyright tape version, on the other hand, although not originally identified as infringed work, apparently was registered. The court will therefore analyze the remaining elements of an infringement claim for the registered version only.
2. Copying
Since there is no direct proof of copying in this case, plaintiff may establish copying if he can show (a) defendants' access to the copyrighted work; and (b) substantial similarity between the works to support an inference of unlawful copying. 827 F.Supp. at 289 (citing Whelan Associates, Inc., 797 F.2d at 1232).
a. Access
Plaintiff asserts that "the bulk of his life's work" was submitted to Sony beginning in 1982. (Compl. at 2). He also alleges that he was told to bring his songs to several concerts which he attended courtesy of Sony. Plaintiff has produced evidence that after these concerts, he was allowed backstage and gave his work to Dylan or his agents. (Damiano Decl. at ¶¶ 2, 5; Dep. of Pam Damiano at 77-84, 97-104; Dep. of Brad Wright at 105-112). Taking these allegations as true, plaintiff has demonstrated a genuine issue of material fact as to whether defendants had access to his work.
631*631 b. Similarity to Infer Copying
In addition to showing defendants' access to his work, plaintiff must also show that his song and Dylan's song were substantially similar in order to infer that copying occurred. This is the so-called "extrinsic test" of substantial similarity, which calls for a dissection of the musical structure of the two pieces in search of objective similarities. Expert testimony is permitted, and often useful, in establishing substantial similarity at this phase of the inquiry. Although both sides retained experts for the comparison of plaintiff's "Steel Guitars" to Dylan's "Dignity," the experts analyzed the irrelevant Exhibit 71 version and not the one on the Copyright tape. Plaintiff's expert concluded that the melody of "Dignity" and plaintiff's Exhibit 71 version were thirty-two percent similar. Since the two versions of "Steel Guitars" are themselves different, however, the court will not consider the expert testimony as it might apply to the Copyright tape version. Without the benefit of expert testimony or other evidence specific to the Copyright tape version of plaintiff's song, the court must engage its own analysis of the components of the songs. To the ear of this court, there is no substantial similarity in the structure, instrumentation or melody of the two songs. These songs "speak" for themselves and no reasonable factfinder could find substantial similarity.
Although this alone would dispose of plaintiff's musical infringement claim, the court will continue so as to complete this analysis.
3. Substantial Similarity to Show Appropriation
The final step of an infringement analysis is the so-called intrinsic test of substantial similarity which seeks the response of a lay person to the "total concept and feel" of the two songs at issue. See Whelan, 797 F.2d at 1234. "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 Cos., 654 F.2d 204, 208 (2d Cir.1981).
After listening several times to both Dylan's "Dignity" and plaintiff's "Steel Guitars" as it appears on the Copyright tape, this court is convinced that no reasonable juror could find the two songs substantially similar in total concept and feel. Plaintiff's song, an instrumental, consists of two guitars — one that plays a fairly repetitious baseline, and one that plays a seemingly improvised free melody. Dylan's song has full instrumentation and accompanying lyrics. The overall effect of the two pieces is quite dissimilar — put simply, they just don't sound alike. The lack of substantial similarity necessarily leads to a conclusion that Bob Dylan did not improperly appropriate plaintiff's work and thus ends the analysis of plaintiff's music infringement claim. Summary judgment will be granted in favor of defendants as to all of plaintiff's copyright infringement claims.
D. Plaintiff's Remaining Claims
Mr. Damiano also asserts federal claims under the Lanham Act and RICO, and state law claims on the theories of fraud, breach of confidence and misappropriation. To the extent that they all are based on the alleged plagiarism or theft of plaintiff's work by Bob Dylan, the dismissal of his copyright infringement claim mandates dismissal of the others since Damiano cannot establish that Dylan copied or even used any of his work.
Defendants also raise additional grounds for dismissal of plaintiff's accompanying federal and state law claims.
1. Lanham Act
Plaintiff's claim here revolves around the contention that he is the "co-author" of works that Dylan has falsely designated as his own, thus misleading the public and depriving Damiano of proper credit for his work. Although, as plaintiff points out, the elements of copyright infringement and Lanham Act claims are somewhat different, the fact that Damiano cannot establish that his work was copied by Dylan surely precludes a reasonable juror from finding that the two coauthored 632*632 any works. Plaintiff has failed to present any evidence that would support his Lanham Act claim, and thus, summary judgment will be granted in favor of the defendants.
2. RICO
Plaintiff alleges that defendants engaged in "massive mail fraud" by putting into interstate commerce recordings containing fraudulent statements, namely, that Bob Dylan created songs on the recordings which were actually created by plaintiff.
Plaintiff's RICO claims must fail because they are actually nothing more than copyright infringement claims presented as mail fraud and copyright infringement is not a predicate act under RICO. Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir.1996). Further, since plaintiff has failed to show that Dylan copied any of his work, he cannot show that the dissemination of Dylan's recordings or the statements contained therein were in any way fraudulent. Summary judgment is therefore granted on plaintiff's RICO claims.
3. State Claims
Defendants argue that plaintiff's state claims are pre-empted by the federal copyright law. Plaintiff does not respond to the pre-emption argument.
Section 301 of the copyright act explicitly preempts state laws that (1) fall within the subject matter of the federal copyright law and protect works that are fixed in tangible medium of expression; and (2) create legal or equitable rights that are equivalent to any of the exclusive rights granted to the copyright holder and specified in Section 106. Jarvis, 827 F.Supp. at 296.
Insofar as any of plaintiff's state claims turn on the alleged unauthorized copying or use of his lyrics and music, they are preempted by federal copyright law. As an initial matter, the court notes that plaintiff has not attempted to argue that his state claims arise from anything other than the alleged theft of his songs by Bob Dylan.
a. Misappropriation of Property
Plaintiff's misappropriation claim is based on the alleged unauthorized use of plaintiff's materials by Bob Dylan. This claim is equivalent to plaintiff's copyright infringement claim and thus is pre-empted.
b. Breach of Confidence and Fraud
Without reaching the question of pre-emption on plaintiff's final state law claims, the court finds that plaintiff has failed to establish either claim. First, plaintiff has offered no proof to show that defendants owed him any duty or that such a duty could have been breached by their actions. Second, plaintiff has failed to establish a claim for fraud, especially to the degree of specificity required by Rule 9(b), Fed.R.Civ.P. Plaintiff has not produced any proof of direct misrepresentations by defendants. At best, this court will accept as true plaintiff's allegation that Sony represented to him that he would be credited and compensated if Dylan used his work. Plaintiff, however, has failed to show that his work was ever used, incorporated or copied by Dylan.
Plaintiff's state claims therefore fail as a matter of law and summary judgment will be entered in favor of defendants.
E. Plaintiff's Appeal of Judge Rosen's Orders
As a final matter, this court reserved decision on plaintiff's appeal of Judge Rosen's August 6, 1996, Orders pending the outcome of defendant's summary judgment motion. These appeals assert that Judge Rosen erred in denying plaintiff access to information related to data about the sales of Dylan's songs and about Dylan's alleged motive to copy the works of others. See Damiano v. Sony Music Entertainment, Inc., 168 F.R.D. 485 (D.N.J.1996). Neither issue pertains to the questions decided herein, which are dispositive of the case. The granting of summary judgment in favor of defendants renders plaintiff's appeal moot.
633*633 III. Conclusion
For the reasons set forth above, summary judgment is granted for defendants on all counts of plaintiff's complaint. Defendants have fourteen days to apply for Rule 11 sanctions or statutory attorney's fees as detailed in part I of this Opinion. The appeal of Magistrate Judge Rosen's Orders of August 6, 1996, is dismissed as moot.
The accompanying Order has been entered.
ORDER
This matter having come before the court upon the defendants, motion for summary judgment; and the court having considered the submissions of the parties and heard oral argument on the matter; and for the reasons set forth in the Opinion of today's date;
It is this 16th day of December, 1996, hereby
ORDERED that the defendants' motion for summary judgment be, and hereby is GRANTED as to all counts of plaintiff's complaint; and it is
FURTHER ORDERED that plaintiff's appeal of Judge Rosen's Orders of August 6, 1996, be and hereby, is DISMISSED as moot; and it is
FURTHER ORDERED that any motion for statutory attorney's fees or Rule 11 sanctions shall be filed within 14 days of the entry of this Order.
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 625). 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 627).
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 634*634 for reconsideration.[1] 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 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 than 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 630). 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 Associates 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 635*635 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 631). 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 "[w]e 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 631). 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 Cos., 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. 636*636 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 628). 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 637*637 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 629). 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 627, 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 627).
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 638*638 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 632). 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 632).
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.[2]
An appropriate order follows.
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., 639*639 and/or for statutory attorney's fees shall be filed within twenty (20) days hereof.
[*] On April 24, 1997, the Supreme Court of New Jersey suspended Steven M. Kramer from the practice of law, for reasons not related to this case, for a period of six months effective May 16, 1997. In the Matter of Steven M. Kramer, An Attorney at Law, 149 N.J. 19, 691 A.2d 816 (1997). This court has not entered a suspension order for reciprocal discipline as of today's date.
[1] For example, in what appears to be plaintiff's strongest claim, he sets forth the lyrics of his purported work "Only God Knows" as compared to Dylan's "God Knows."
Damiano lyrics Dylan lyrics
Only God knows the hurt God knows you ain't pretty Only God knows the pain God knows it's true, Only God knows the struggle God knows there ain't anybody, Of the misery that you claim Ever gonna take the place of you Only God knows the anguish God knows it's a struggle, Only God knows the faith God knows it's a crime, Only God knows the truth God knows there gonna be no more Of the secrets of your fate Water for fire the next time, A different form a treason God don't call it treason, A different type of hypocrisy God don't call it wrong, Not your usual form It was supposed to last a season of adulturism or betrayal But it's been so strong, Of intimacy For so long, Only God knows the reason God knows it's fragile, Only God knows what's wrong God knows everything, Only God knows how fragile it is ... God knows there's a river, Only God knows how strong God knows how to make it flow, He made the winding rivers ... God knows there's a purpose You can watch them flow Faith is your reason Belief your purpose Don't tell me you Didn't know. Although these two works do appear to be similar as presented in the complaint, discovery has revealed that plaintiff never sought a copyright for the purported work "Only God Knows" before initiating this litigation. Only the lyrics that have here been placed into boldface had previously even existed and been copyrighted — as verses in other songs. Indeed, the court suspects that any similarity between these two songs is the result of an appropriation of Dylan's work by Damiano, not the other way around.
[2] The following verses composed by plaintiff were presented in his complaint as infringed lyrics but not addressed after defendants' motion for summary judgment:
1. "I'm not sure of anything half the time anymore"
2. "A cloud of confusion filled the room to thick to withstand"
3. "Against the pale blue sky"
4. "Sunbird up in the sky/Sunbird your flyin to high"
5. "Born are new ideas" "Against the pale blue sky"
6. "Lost days and forgotten years"
[3] Defendants submit that the following lyrics were not found in any of the Damiano works in the record:
Damiano lyric Dylan lyric
1. "buried inside" "buried deep down inside"
2. "Wanna try and help mankind" "I can smile in the face "I can smile in the face of mankind" of reality"
3. "Conceit is a disease" "Conceit is a disease"
4. multiple lines from multiple lines from purported work, Dylan's song, Only God Knows God Knows [4] The first five lyrics listed are those designated by plaintiff's attorney at oral argument as plaintiff's "Top Five" claims.
[5] As an example of how plaintiff misrepresents and alters Dylan's lyrics, these two lines from Dylan's song "Most of the Time" are presented in the complaint as if they follow one another in the song. In reality, the lines are separated by over one hundred words.
[6] Plaintiff incorrectly asserts that Dylan changed the lyric in the 1994 re-release of his song, "With God On Our Side," originally composed and copyrighted in 1963, from "kiss" to "king," thereby repeating the historical error made by Damiano in his untitled song. A review of Dylan's song reveals that the lyric is actually still "kiss." (Defendants' exhibits 64 and 66; Dylan's "Unplugged" CD and video).
[1] Effective April 1, 1997, General Rule 121, which previously governed motions for reargument, was renumbered Rule 7.1(g). The language of General Rule 121 was not altered in Rule 7.1(g).
[2] Defendants' initial application for summary judgment on the merits was accompanied by an application for dismissal as a sanction under Rule 11, Fed.R.Civ.P., for the filing of a complaint not well-grounded in fact or law. (See Op. filed Dec. 16, 1996, at 625-26). The court deferred consideration of Rule 11 sanctions and/or for attorney's fees under Rule 11 or under the less demanding standard of the Copyright Act, 17 U.S.C. § 505, until such an application could be filed, within fourteen days thereafter. (Id. at 626). When defendants sought to enlarge the period to seek attorney's fees because of the prospect that plaintiff would be seeking reconsideration, the court extended the application deadline until fourteen (14) days after decision of any reconsideration motion, which is now further enlarged to give sufficient time to include costs and fees expended in defense of this reconsideration motion as well. |
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Date: July 7th, 2012 11:40 PM
"To The Ear of This Court The Song's Don't Sound Similar"
Damiano's musicologist graduated Magna Cum Laude from Harvard and was a PhD.
So now That You've Exposed Judge Simandle's Corruption as of rule 56 (C) of the Federal Rules of Civil Procedure let us compare the facts of the case with the Judges opinion
The facts of the case are not at all consistent with the Judge Simandles Opinion
The law states that the verdict must be consistent with the facts of the case right. Let Us compare.
It's a ten thousand page lawsuit. Dylan and or his attorneys never contested any of the issues of fact on the website or in The Motion to the court which mirrors the website and the pdf file "Default Motion Against Bob Dylan"
Dylan's Attorney Orin Snyder download the website and produced it to the court without ever contesting even one issues of fact. There was no affidavit of denial.
Also Dylan was a no show to the subpoena.
Docket Link see 142
12/02/2002 142
Notice of MOTION for reconsideration of [139-1] order; to vacate protective order; for admissions of defendants; recusal of Judge Simandle; and for default against Sony Entertainment and Bob Dylan by JAMES DAMIANO, Motion set for 1/3/03 on [142-1] motion. (Exhibits in Binder Subm) (sb) (Entered: 12/03/2002)
Docket http://www.jamesdamiano.yolasite.com/james-damiano-bob-dylan-federal-court-docket.php
Now Compare the Motion to Judge Simandle's Opinion at Link below
http://www.jamesdamiano.yolasite.com/plaintiffs-motion-for-default-against-bob-dylan1.php
Plaintiff has been afforded Additional information since the development of the internet and only recently it has come to our attention that Bob Dylan lied to the court when asked if he had ever been sued for plagiarism His answer to the court was no. The fact is that he had been sued twice.
Cases to be cited soon
Also Dylan recently in a Los Angeles times interview admitted to plagiarism by definition :
In a 2004 interview with Robert Hilburn of the Los Angeles Times, Bob Dylan stated,
“Well you have to understand that I’m not a melodist. My songs are either based on old Protestant hymns or Carter Family songs or variations of the blues form. What happens is, I’ll take a song and simply start playing it in my head. That’s the way I meditate.” “I wrote ‘Blowin’ in the Wind’ in 10 minutes, just put words to an old spiritual, probably something I learned from Carter Family records. That’s the folk music tradition – you use what has been handed down. ‘The Times They Are A-Changing’ is probably from an old Scottish folk Song.” "I'll be playing Bob Nolan's 'Tumbling Tumbleweeds,' for instance, in my head constantly -- while I'm driving a car or talking to a person or sitting around or whatever. People will think they are talking to me and I'm talking back, but I'm not. I'm listening to the song in my head. At a certain point, some of the words will change and I'll start writing a song.".......Bob Dylan
This case was never dismissed with prejudice
lets compare the facts with the verdict below for it is uncontested by Bob Dylan and or Bob Dylan's law firms Manatt, Phelps & Phillips ,Parcher Hayes & Snyder, Gibson Dunn & Crutcher and Hecker Brown and Sherry that Bob Dylan and people in Bob Dylan's entourage have solicited James Damiano's songs and music for over ten years.
Trailer 1
http://www.youtube.com/watch?v=0lb8ZJjmzQ8
Trailer 2
http://www.youtube.com/watch?feature=endscreen&NR=1&v=qRe-ZBozwac
Back with more later
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Date: July 8th, 2012 3:25 AM
After thirty-five hours of video taped depositions, and after three and a half million dollars have been spent on this litigation, defendants Sony Music and or Bob Dylan still to this date September 18th 2002, have never filed a counter, slander or libel suit against Damiano. Defendants have been aware of James Damiano's public statements made against Bob Dylan for over ten years.
See videos
http://www.youtube.com/watch?v=mBKiTVoWIUI
http://www.youtube.com/watch?v=avr9MIGcXxc
http://www.youtube.com/watch?v=3qTqE6gBk5s
He (Dyla) did not have enough songs that he wanted to put on an album
http://www.youtube.com/watch?v=jal8m1jjpFU
Seeking Attorney to File Default Motion Against Bob Dylan after following Bob Dylan admissions are added See below admissions and motion
“Well you have to understand that I’m not a melodist. My songs are either based on old Protestant hymns or Carter Family songs or variations of the blues form. What happens is, I’ll take a song and simply start playing it in my head. That’s the way I meditate". “I wrote ‘Blowin’ in the Wind’ in 10 minutes, just put words to an old spiritual, probably something I learned from Carter Family records. That’s the folk music tradition – you use what has been handed down. ‘The Times They Are A-Changing’ is probably from an old Scottish folk Song.”...."I'll be playing Bob Nolan's 'Tumbling Tumbleweeds,' for instance, in my head constantly -- while I'm driving a car or talking to a person or sitting around or whatever. People will think they are talking to me and I'm talking back, but I'm not. I'm listening to the song in my head. At a certain point, some of the words will change and I'll start writing a song.".......Bob Dylan
Motion For Default with Bob Dylan Admissions. All material facts cited in motion are judicially uncontested by defendants
http://www.jamesdamiano.yolasite.com/plaintiffs-motion-for-default-against-bob-dylan1.php
http://www.youtube.com/watch?v=0lb8ZJjmzQ8 |
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Date: June 29th, 2012 11:45 PM
http://www.freerepublic.com/focus/f-chat/2317114/posts |
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Date: June 29th, 2012 11:50 PM
http://wikileaksyola.yolasite.com/ |
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Date: July 7th, 2012 4:29 PM James DAMIANO, Plaintiff, v. SONY MUSIC ENTERTAINMENT, INC., and Bob Dylan, Defendants.
Civ. A. No. 95-4795(JBS). United States District Court, D. New Jersey.
December 16, 1996. Opinion Denying Reconsideration August 20, 1997. 624*624 625*625 Steven M. Kramer,[*] Steven M. Kramer & Associates, New York City, for Plaintiff.
Steven D. Johnson, Hecker, Brown, Sherry & Johnson, Haddonfield, NJ, Stephen M. Hayes, Orin Snyder, Parcher, Hayes & Liebman, New York City, for Defendants.
OPINION
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).[1] Defendants seek judgment on the merits, as well as dismissal as a sanction under Rule 11, Fed.R.Civ.P., 626*626 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. § 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, 104 S.Ct. 2144, 79 L.Ed.2d 910 (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, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Supreme Court decisions mandate that: "[w]hen 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, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (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. at 248, 106 S.Ct. at 2510). 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 meta-physical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (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, 106 S.Ct. at 2511.
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 627*627 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.[2] 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 Associates v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.), cert, denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (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.[3]
Plaintiff has not presented evidence to the contrary, but merely asserts that "[p]laintiff has registered almost all of his works" and the rest will be registered prior to this court's decision. (Pl. Br. at 25) (emphasis added). Specifically, plaintiff alleges that his work "Only God Knows," which contains several lines that are allegedly infringed by Dylan's "God Knows," and the lyric "Conceit 628*628 is a disease" were in the process of being copyrighted at the time he submitted his opposition brief. Defendants, however, dispute the accuracy of this assertion and argue that a search of U.S. Copyright Office records revealed no new registrations by Damiano in 1996. (Def. Reply Br. at 5). Further, plaintiff has failed to produce any proof of filing to support his claim of pending registration for the two sets of lyrics in question. See Wilson v. Mr. Tee's, 855 F.Supp. 679, 682 (D.N.J.1994). Thus, summary judgment will be granted for these lyric infringement claims since plaintiff has failed to establish a prima facie case of infringement.
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:[4]
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"[5]
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]"[6]
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 On the door to hell" from hell goes rolling by"
9. "No one to run from "I don't cheat on myself And no reason to hide" I don't run and hide"
10. "I can pretend" "I don't pretend" 629*629 11. "Maybe there's a reason for "God knows there's a purpose" a purpose"
12. "What good is a man" "What good am I" a. Originality
A key point in this case is the disagreement between the parties as to the amount of originality needed for a work to be copyrightable. Plaintiff contends that "just a dash" will suffice. See Universal Athletic Sales Co., 511 F.2d at 908 ("[E]ven a modicum of creativity may suffice for a work to be protected."). Defendants, however, argue that the common words and phrases and cliches used in plaintiff's lyrics are not subject to copyright protection. See Jarvis, 827 F.Supp. at 291 (citing Perma Greetings, Inc. v. Russ Berrie & Co., Inc., 598 F.Supp. 445, 448 (E.D.Mo.1984)); O'Brien v. Chappel & Co., 159 F.Supp. 58 (S.D.N.Y.1958) (holding that phrase "night and noon" is not protectible).
Plaintiff relies on the decision in Jarvis v. A & M Records, for the proposition that even common words can be protected if placed in a certain arrangement. For example, he argues that coupling the word "stumble" with the word "lips" creates a sufficiently original arrangement of otherwise trite words. Likewise, plaintiff argues that an arrangement combining the cliche "truer words have not been spoken" with the word "broken" is creative enough to be worthy of protection. Thus, plaintiff concludes, Bob Dylan cannot subsequently use the same pairs of words or phrases together in a lyric, even if separated by many intervening lines and ideas in some instances, without infringing plaintiff's original work.
The law of copyright does not support the logical extension of plaintiff's theory. In effect, he asks us to grant him a monopoly over the use of common combinations of words such as "bell" and "hell," "run" and "hide," or "mind" and "behind" merely because they are found together in a single song — regardless of context or placement within the song. Such a result would not only stifle creativity, it would contravene the very policy behind copyright law and the rule requiring sufficient originality for a work to be protected. As the Jarvis court noted, "the policy behind the rule is to prevent a deterring effect on the creations of new works because of author's fears of copying innocuous segments." Jarvis, 827 F.Supp. at 291. Indeed, the law of copyright has absolutely no interest in tying up random, fortuitous combinations of words.
Additionally, the court notes that plaintiff's reliance on Jarvis is misplaced. In that case, the defendants admitted to copying elements of the plaintiff's song via digital sampling. Since sections of the plaintiff's work were actually reproduced and used in the infringing work, there was no question as to whether the arrangement was similar — it was identical. Unlike in the present case, "the precise relationship of the phrases vis a vis each other was copied." Id. at 292 (emphasis in original). Thus, the issue was not simply whether the common words "move" and "free your body" were protectible in a given arrangement, but rather, whether the copying was qualitatively or quantitatively sufficient to constitute an appropriation of plaintiff's work. The defendants in Jarvis raised a fact question on that issue and so summary judgment was denied.
In this case, copying has not been conceded, and the question of whether plaintiff's arrangement of common words and phrases is distinctive enough to deserve protection is at the heart of the parties' dispute. Even if copying were conceded as in Jarvis plaintiff would not survive summary judgment because no reasonable jury could conclude that the words and phrases allegedly copied by Dylan were quantitatively or qualitatively important to the whole of plaintiff's allegedly infringed works. The words and phrases in question comprise nothing more 630*630 than a single line or two of an entire song, and the songs themselves provide completely different contexts for the allegedly infringed words and phrases. Further, when taken as a whole, no jury could find substantial similarity between the lyrics of Damiano and Dylan. Summary judgment is appropriate in copyright actions based on lyrics where no reasonable jury could find substantial similarity between the works at issue. Nelson v. PRN Productions, Inc., 873 F.2d 1141 (8th Cir.) (trial court carefully studied lyrics involved and determined that reasonable minds could not differ as to absence of substantial similarity), cert. denied, 493 U.S. 994, 110 S.Ct. 544, 107 L.Ed.2d 541 (1989). The issue of substantial similarity need not be reached here, however, because plaintiff fails to demonstrate a threshold of originality of his lyrics.
Insofar as the infringement of plaintiff's lyrics depends on there being some protectible element in his work, plaintiff cannot establish a copyright action. The lyrics he claims were infringed are nothing more than unprotectible phrases and cliches, and even when taken as a whole, they are not substantially similar to Dylan's work. Thus, summary judgment is granted on plaintiff's lyric claims, without the need to reach any additional elements comprising an infringement action.
C. Plaintiff's Music Infringement Claim
In addition to his lyric infringement claims, plaintiff asserts infringement of his instrumental composition, "Steel Guitars," by Dylan's "Dignity."
1. Ownership
There has been a fair amount of confusion concerning the registration of plaintiff's song. Plaintiff produced during discovery a tape, marked as Exhibit 71 of defendants' moving papers, which contained the song he called "Steel Guitars." (Exhibit 71 version). That song has been analyzed by both parties' experts and compared to "Dignity."
Defendants now contend, however, that the Exhibit 71 version of "Steel Guitars" was never registered with the Copyright Office. Plaintiff claims to have submitted a tape for registration in 1988, marked PAU X-XXX-XXX, which, according to plaintiff's attorney, contains "Steel Guitars" as the last song on side B. (Copyright tape version). The version of "Steel Guitars" on the copyright tape, however, is not the same as the one on Exhibit 71. While there are common elements in the two versions, they are certainly not identical. Because of the confusion, the court has considered both versions of the allegedly infringed song.
First, the court notes that the Exhibit 71 version cannot be the basis of an infringement claim because plaintiff is unable to show that the work was registered with the Copyright Office. Thus, he has failed to establish a prima facie case of musical infringement for that version of "Steel Guitars." The Copyright tape version, on the other hand, although not originally identified as infringed work, apparently was registered. The court will therefore analyze the remaining elements of an infringement claim for the registered version only.
2. Copying
Since there is no direct proof of copying in this case, plaintiff may establish copying if he can show (a) defendants' access to the copyrighted work; and (b) substantial similarity between the works to support an inference of unlawful copying. 827 F.Supp. at 289 (citing Whelan Associates, Inc., 797 F.2d at 1232).
a. Access
Plaintiff asserts that "the bulk of his life's work" was submitted to Sony beginning in 1982. (Compl. at 2). He also alleges that he was told to bring his songs to several concerts which he attended courtesy of Sony. Plaintiff has produced evidence that after these concerts, he was allowed backstage and gave his work to Dylan or his agents. (Damiano Decl. at ¶¶ 2, 5; Dep. of Pam Damiano at 77-84, 97-104; Dep. of Brad Wright at 105-112). Taking these allegations as true, plaintiff has demonstrated a genuine issue of material fact as to whether defendants had access to his work.
631*631 b. Similarity to Infer Copying
In addition to showing defendants' access to his work, plaintiff must also show that his song and Dylan's song were substantially similar in order to infer that copying occurred. This is the so-called "extrinsic test" of substantial similarity, which calls for a dissection of the musical structure of the two pieces in search of objective similarities. Expert testimony is permitted, and often useful, in establishing substantial similarity at this phase of the inquiry. Although both sides retained experts for the comparison of plaintiff's "Steel Guitars" to Dylan's "Dignity," the experts analyzed the irrelevant Exhibit 71 version and not the one on the Copyright tape. Plaintiff's expert concluded that the melody of "Dignity" and plaintiff's Exhibit 71 version were thirty-two percent similar. Since the two versions of "Steel Guitars" are themselves different, however, the court will not consider the expert testimony as it might apply to the Copyright tape version. Without the benefit of expert testimony or other evidence specific to the Copyright tape version of plaintiff's song, the court must engage its own analysis of the components of the songs. To the ear of this court, there is no substantial similarity in the structure, instrumentation or melody of the two songs. These songs "speak" for themselves and no reasonable factfinder could find substantial similarity.
Although this alone would dispose of plaintiff's musical infringement claim, the court will continue so as to complete this analysis.
3. Substantial Similarity to Show Appropriation
The final step of an infringement analysis is the so-called intrinsic test of substantial similarity which seeks the response of a lay person to the "total concept and feel" of the two songs at issue. See Whelan, 797 F.2d at 1234. "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 Cos., 654 F.2d 204, 208 (2d Cir.1981).
After listening several times to both Dylan's "Dignity" and plaintiff's "Steel Guitars" as it appears on the Copyright tape, this court is convinced that no reasonable juror could find the two songs substantially similar in total concept and feel. Plaintiff's song, an instrumental, consists of two guitars — one that plays a fairly repetitious baseline, and one that plays a seemingly improvised free melody. Dylan's song has full instrumentation and accompanying lyrics. The overall effect of the two pieces is quite dissimilar — put simply, they just don't sound alike. The lack of substantial similarity necessarily leads to a conclusion that Bob Dylan did not improperly appropriate plaintiff's work and thus ends the analysis of plaintiff's music infringement claim. Summary judgment will be granted in favor of defendants as to all of plaintiff's copyright infringement claims.
D. Plaintiff's Remaining Claims
Mr. Damiano also asserts federal claims under the Lanham Act and RICO, and state law claims on the theories of fraud, breach of confidence and misappropriation. To the extent that they all are based on the alleged plagiarism or theft of plaintiff's work by Bob Dylan, the dismissal of his copyright infringement claim mandates dismissal of the others since Damiano cannot establish that Dylan copied or even used any of his work.
Defendants also raise additional grounds for dismissal of plaintiff's accompanying federal and state law claims.
1. Lanham Act
Plaintiff's claim here revolves around the contention that he is the "co-author" of works that Dylan has falsely designated as his own, thus misleading the public and depriving Damiano of proper credit for his work. Although, as plaintiff points out, the elements of copyright infringement and Lanham Act claims are somewhat different, the fact that Damiano cannot establish that his work was copied by Dylan surely precludes a reasonable juror from finding that the two coauthored 632*632 any works. Plaintiff has failed to present any evidence that would support his Lanham Act claim, and thus, summary judgment will be granted in favor of the defendants.
2. RICO
Plaintiff alleges that defendants engaged in "massive mail fraud" by putting into interstate commerce recordings containing fraudulent statements, namely, that Bob Dylan created songs on the recordings which were actually created by plaintiff.
Plaintiff's RICO claims must fail because they are actually nothing more than copyright infringement claims presented as mail fraud and copyright infringement is not a predicate act under RICO. Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir.1996). Further, since plaintiff has failed to show that Dylan copied any of his work, he cannot show that the dissemination of Dylan's recordings or the statements contained therein were in any way fraudulent. Summary judgment is therefore granted on plaintiff's RICO claims.
3. State Claims
Defendants argue that plaintiff's state claims are pre-empted by the federal copyright law. Plaintiff does not respond to the pre-emption argument.
Section 301 of the copyright act explicitly preempts state laws that (1) fall within the subject matter of the federal copyright law and protect works that are fixed in tangible medium of expression; and (2) create legal or equitable rights that are equivalent to any of the exclusive rights granted to the copyright holder and specified in Section 106. Jarvis, 827 F.Supp. at 296.
Insofar as any of plaintiff's state claims turn on the alleged unauthorized copying or use of his lyrics and music, they are preempted by federal copyright law. As an initial matter, the court notes that plaintiff has not attempted to argue that his state claims arise from anything other than the alleged theft of his songs by Bob Dylan.
a. Misappropriation of Property
Plaintiff's misappropriation claim is based on the alleged unauthorized use of plaintiff's materials by Bob Dylan. This claim is equivalent to plaintiff's copyright infringement claim and thus is pre-empted.
b. Breach of Confidence and Fraud
Without reaching the question of pre-emption on plaintiff's final state law claims, the court finds that plaintiff has failed to establish either claim. First, plaintiff has offered no proof to show that defendants owed him any duty or that such a duty could have been breached by their actions. Second, plaintiff has failed to establish a claim for fraud, especially to the degree of specificity required by Rule 9(b), Fed.R.Civ.P. Plaintiff has not produced any proof of direct misrepresentations by defendants. At best, this court will accept as true plaintiff's allegation that Sony represented to him that he would be credited and compensated if Dylan used his work. Plaintiff, however, has failed to show that his work was ever used, incorporated or copied by Dylan.
Plaintiff's state claims therefore fail as a matter of law and summary judgment will be entered in favor of defendants.
E. Plaintiff's Appeal of Judge Rosen's Orders
As a final matter, this court reserved decision on plaintiff's appeal of Judge Rosen's August 6, 1996, Orders pending the outcome of defendant's summary judgment motion. These appeals assert that Judge Rosen erred in denying plaintiff access to information related to data about the sales of Dylan's songs and about Dylan's alleged motive to copy the works of others. See Damiano v. Sony Music Entertainment, Inc., 168 F.R.D. 485 (D.N.J.1996). Neither issue pertains to the questions decided herein, which are dispositive of the case. The granting of summary judgment in favor of defendants renders plaintiff's appeal moot.
633*633 III. Conclusion
For the reasons set forth above, summary judgment is granted for defendants on all counts of plaintiff's complaint. Defendants have fourteen days to apply for Rule 11 sanctions or statutory attorney's fees as detailed in part I of this Opinion. The appeal of Magistrate Judge Rosen's Orders of August 6, 1996, is dismissed as moot.
The accompanying Order has been entered.
ORDER
This matter having come before the court upon the defendants, motion for summary judgment; and the court having considered the submissions of the parties and heard oral argument on the matter; and for the reasons set forth in the Opinion of today's date;
It is this 16th day of December, 1996, hereby
ORDERED that the defendants' motion for summary judgment be, and hereby is GRANTED as to all counts of plaintiff's complaint; and it is
FURTHER ORDERED that plaintiff's appeal of Judge Rosen's Orders of August 6, 1996, be and hereby, is DISMISSED as moot; and it is
FURTHER ORDERED that any motion for statutory attorney's fees or Rule 11 sanctions shall be filed within 14 days of the entry of this Order.
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 625). 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 627).
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 634*634 for reconsideration.[1] 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 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 than 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 630). 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 Associates 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 635*635 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 631). 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 "[w]e 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 631). 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 Cos., 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. 636*636 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 628). 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 637*637 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 629). 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 627, 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 627).
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 638*638 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 632). 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 632).
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.[2]
An appropriate order follows.
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., 639*639 and/or for statutory attorney's fees shall be filed within twenty (20) days hereof.
[*] On April 24, 1997, the Supreme Court of New Jersey suspended Steven M. Kramer from the practice of law, for reasons not related to this case, for a period of six months effective May 16, 1997. In the Matter of Steven M. Kramer, An Attorney at Law, 149 N.J. 19, 691 A.2d 816 (1997). This court has not entered a suspension order for reciprocal discipline as of today's date.
[1] For example, in what appears to be plaintiff's strongest claim, he sets forth the lyrics of his purported work "Only God Knows" as compared to Dylan's "God Knows."
Damiano lyrics Dylan lyrics
Only God knows the hurt God knows you ain't pretty Only God knows the pain God knows it's true, Only God knows the struggle God knows there ain't anybody, Of the misery that you claim Ever gonna take the place of you Only God knows the anguish God knows it's a struggle, Only God knows the faith God knows it's a crime, Only God knows the truth God knows there gonna be no more Of the secrets of your fate Water for fire the next time, A different form a treason God don't call it treason, A different type of hypocrisy God don't call it wrong, Not your usual form It was supposed to last a season of adulturism or betrayal But it's been so strong, Of intimacy For so long, Only God knows the reason God knows it's fragile, Only God knows what's wrong God knows everything, Only God knows how fragile it is ... God knows there's a river, Only God knows how strong God knows how to make it flow, He made the winding rivers ... God knows there's a purpose You can watch them flow Faith is your reason Belief your purpose Don't tell me you Didn't know. Although these two works do appear to be similar as presented in the complaint, discovery has revealed that plaintiff never sought a copyright for the purported work "Only God Knows" before initiating this litigation. Only the lyrics that have here been placed into boldface had previously even existed and been copyrighted — as verses in other songs. Indeed, the court suspects that any similarity between these two songs is the result of an appropriation of Dylan's work by Damiano, not the other way around.
[2] The following verses composed by plaintiff were presented in his complaint as infringed lyrics but not addressed after defendants' motion for summary judgment:
1. "I'm not sure of anything half the time anymore"
2. "A cloud of confusion filled the room to thick to withstand"
3. "Against the pale blue sky"
4. "Sunbird up in the sky/Sunbird your flyin to high"
5. "Born are new ideas" "Against the pale blue sky"
6. "Lost days and forgotten years"
[3] Defendants submit that the following lyrics were not found in any of the Damiano works in the record:
Damiano lyric Dylan lyric
1. "buried inside" "buried deep down inside"
2. "Wanna try and help mankind" "I can smile in the face "I can smile in the face of mankind" of reality"
3. "Conceit is a disease" "Conceit is a disease"
4. multiple lines from multiple lines from purported work, Dylan's song, Only God Knows God Knows [4] The first five lyrics listed are those designated by plaintiff's attorney at oral argument as plaintiff's "Top Five" claims.
[5] As an example of how plaintiff misrepresents and alters Dylan's lyrics, these two lines from Dylan's song "Most of the Time" are presented in the complaint as if they follow one another in the song. In reality, the lines are separated by over one hundred words.
[6] Plaintiff incorrectly asserts that Dylan changed the lyric in the 1994 re-release of his song, "With God On Our Side," originally composed and copyrighted in 1963, from "kiss" to "king," thereby repeating the historical error made by Damiano in his untitled song. A review of Dylan's song reveals that the lyric is actually still "kiss." (Defendants' exhibits 64 and 66; Dylan's "Unplugged" CD and video).
[1] Effective April 1, 1997, General Rule 121, which previously governed motions for reargument, was renumbered Rule 7.1(g). The language of General Rule 121 was not altered in Rule 7.1(g).
[2] Defendants' initial application for summary judgment on the merits was accompanied by an application for dismissal as a sanction under Rule 11, Fed.R.Civ.P., for the filing of a complaint not well-grounded in fact or law. (See Op. filed Dec. 16, 1996, at 625-26). The court deferred consideration of Rule 11 sanctions and/or for attorney's fees under Rule 11 or under the less demanding standard of the Copyright Act, 17 U.S.C. § 505, until such an application could be filed, within fourteen days thereafter. (Id. at 626). When defendants sought to enlarge the period to seek attorney's fees because of the prospect that plaintiff would be seeking reconsideration, the court extended the application deadline until fourteen (14) days after decision of any reconsideration motion, which is now further enlarged to give sufficient time to include costs and fees expended in defense of this reconsideration motion as well. |
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Date: June 29th, 2012 11:54 PM Now That You've Exposed Judge Simandle's Corruption as of Rule 56 (c)of the Federal Rules Of Civil Procedure Let us Compare
Now That You've Exposed Judge Simandle's Corruption as of rule 56 (C) of the Federal Rules of Civil Procedure let us compare the facts of the case with the Judges opinion
And lets take a poll to see who believes that the facts of the case are consistent with the Judge Simandles Opinion The law states that the verdict has to be consistent with the facts of the case right. Let Us compare.
It's a ten thousand page lawsuit. Dylan and or his attorneys never contested any of the issues of fact on the website or in The Motion to the court which mirrors the website and the pdf file "Default Motion Against Bob Dylan"
of which Dylan's Attorney Orin Snyder download and produced to the court without contesting the issues of fact. There was no affidavit of denial and Dylan was a no show to the subpoena.
Docket Link see 142
12/02/2002 142
Notice of MOTION for reconsideration of [139-1] order; to vacate protective order; for admissions of defendants; recusal of Judge Simandle; and for default against Sony Entertainment and Bob Dylan by JAMES DAMIANO, Motion set for 1/3/03 on [142-1] motion. (Exhibits in Binder Subm) (sb) (Entered: 12/03/2002)
Docket http://www.jamesdamiano.yolasite.com/james-damiano-bob-dylan-federal-court-docket.php
Motion Link
http://www.jamesdamiano.yolasite.com/plaintiffs-motion-for-default-against-bob-dylan1.php
Plaintiff has been afforded Additional information since the development of the internet and only recently it has come to our attention that Bob Dylan lied to the court when asked if he had ever been sued for plagiarism His answer to the court was no. The fact is that he had been sued twice.
Cases to be cited soon
Also Dylan recently in a Los Angeles times interview admitted to plagiarism by definition :
In a 2004 interview with Robert Hilburn of the Los Angeles Times, Bob Dylan stated,
“Well you have to understand that I’m not a melodist. My songs are either based on old Protestant hymns or Carter Family songs or variations of the blues form. What happens is, I’ll take a song and simply start playing it in my head. That’s the way I meditate.” “I wrote ‘Blowin’ in the Wind’ in 10 minutes, just put words to an old spiritual, probably something I learned from Carter Family records. That’s the folk music tradition – you use what has been handed down. ‘The Times They Are A-Changing’ is probably from an old Scottish folk Song.” "I'll be playing Bob Nolan's 'Tumbling Tumbleweeds,' for instance, in my head constantly -- while I'm driving a car or talking to a person or sitting around or whatever. People will think they are talking to me and I'm talking back, but I'm not. I'm listening to the song in my head. At a certain point, some of the words will change and I'll start writing a song.".......Bob Dylan
This case was never dismissed with prejudice
lets compare the facts with the verdict below for it is uncontested by Bob Dylan and or Bob Dylan's law firms Manatt, Phelps & Phillips ,Parcher Hayes & Snyder, Gibson Dunn & Crutcher and Hecker Brown and Sherry that Bob Dylan and people in Bob Dylan's entourage have solicited James Damiano's songs and music for over ten years.
Trailer 1
http://www.youtube.com/watch?v=0lb8ZJjmzQ8
Trailer 2
http://www.youtube.com/watch?feature=endscreen&NR=1&v=qRe-ZBozwac
There's about 35 more hours of video taped depositions I'll keep posting enjoy
Or we Can always go to the "Instant Replay" It's your choice
http://wikileaksyola.yolasite.com/
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Date: June 29th, 2012 11:55 PM
http://wikileaksyola.yolasite.com/ |
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Date: June 30th, 2012 12:06 AM |
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Date: June 30th, 2012 12:24 AM |
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Date: June 30th, 2012 12:25 AM Probably Dylan's Lawyer incognito or maybe just another jealous musician. I bet you play the guitar and sing Come on tell the truth
Here go study (Lessons in Law) http://www.jamesdamiano.yolasite.com
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Date: June 30th, 2012 12:50 AM |
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Date: June 30th, 2012 12:54 AM |
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Date: July 7th, 2012 4:29 PM James DAMIANO, Plaintiff, v. SONY MUSIC ENTERTAINMENT, INC., and Bob Dylan, Defendants.
Civ. A. No. 95-4795(JBS). United States District Court, D. New Jersey.
December 16, 1996. Opinion Denying Reconsideration August 20, 1997. 624*624 625*625 Steven M. Kramer,[*] Steven M. Kramer & Associates, New York City, for Plaintiff.
Steven D. Johnson, Hecker, Brown, Sherry & Johnson, Haddonfield, NJ, Stephen M. Hayes, Orin Snyder, Parcher, Hayes & Liebman, New York City, for Defendants.
OPINION
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).[1] Defendants seek judgment on the merits, as well as dismissal as a sanction under Rule 11, Fed.R.Civ.P., 626*626 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. § 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, 104 S.Ct. 2144, 79 L.Ed.2d 910 (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, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Supreme Court decisions mandate that: "[w]hen 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, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (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. at 248, 106 S.Ct. at 2510). 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 meta-physical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (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, 106 S.Ct. at 2511.
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 627*627 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.[2] 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 Associates v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.), cert, denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (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.[3]
Plaintiff has not presented evidence to the contrary, but merely asserts that "[p]laintiff has registered almost all of his works" and the rest will be registered prior to this court's decision. (Pl. Br. at 25) (emphasis added). Specifically, plaintiff alleges that his work "Only God Knows," which contains several lines that are allegedly infringed by Dylan's "God Knows," and the lyric "Conceit 628*628 is a disease" were in the process of being copyrighted at the time he submitted his opposition brief. Defendants, however, dispute the accuracy of this assertion and argue that a search of U.S. Copyright Office records revealed no new registrations by Damiano in 1996. (Def. Reply Br. at 5). Further, plaintiff has failed to produce any proof of filing to support his claim of pending registration for the two sets of lyrics in question. See Wilson v. Mr. Tee's, 855 F.Supp. 679, 682 (D.N.J.1994). Thus, summary judgment will be granted for these lyric infringement claims since plaintiff has failed to establish a prima facie case of infringement.
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:[4]
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"[5]
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]"[6]
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 On the door to hell" from hell goes rolling by"
9. "No one to run from "I don't cheat on myself And no reason to hide" I don't run and hide"
10. "I can pretend" "I don't pretend" 629*629 11. "Maybe there's a reason for "God knows there's a purpose" a purpose"
12. "What good is a man" "What good am I" a. Originality
A key point in this case is the disagreement between the parties as to the amount of originality needed for a work to be copyrightable. Plaintiff contends that "just a dash" will suffice. See Universal Athletic Sales Co., 511 F.2d at 908 ("[E]ven a modicum of creativity may suffice for a work to be protected."). Defendants, however, argue that the common words and phrases and cliches used in plaintiff's lyrics are not subject to copyright protection. See Jarvis, 827 F.Supp. at 291 (citing Perma Greetings, Inc. v. Russ Berrie & Co., Inc., 598 F.Supp. 445, 448 (E.D.Mo.1984)); O'Brien v. Chappel & Co., 159 F.Supp. 58 (S.D.N.Y.1958) (holding that phrase "night and noon" is not protectible).
Plaintiff relies on the decision in Jarvis v. A & M Records, for the proposition that even common words can be protected if placed in a certain arrangement. For example, he argues that coupling the word "stumble" with the word "lips" creates a sufficiently original arrangement of otherwise trite words. Likewise, plaintiff argues that an arrangement combining the cliche "truer words have not been spoken" with the word "broken" is creative enough to be worthy of protection. Thus, plaintiff concludes, Bob Dylan cannot subsequently use the same pairs of words or phrases together in a lyric, even if separated by many intervening lines and ideas in some instances, without infringing plaintiff's original work.
The law of copyright does not support the logical extension of plaintiff's theory. In effect, he asks us to grant him a monopoly over the use of common combinations of words such as "bell" and "hell," "run" and "hide," or "mind" and "behind" merely because they are found together in a single song — regardless of context or placement within the song. Such a result would not only stifle creativity, it would contravene the very policy behind copyright law and the rule requiring sufficient originality for a work to be protected. As the Jarvis court noted, "the policy behind the rule is to prevent a deterring effect on the creations of new works because of author's fears of copying innocuous segments." Jarvis, 827 F.Supp. at 291. Indeed, the law of copyright has absolutely no interest in tying up random, fortuitous combinations of words.
Additionally, the court notes that plaintiff's reliance on Jarvis is misplaced. In that case, the defendants admitted to copying elements of the plaintiff's song via digital sampling. Since sections of the plaintiff's work were actually reproduced and used in the infringing work, there was no question as to whether the arrangement was similar — it was identical. Unlike in the present case, "the precise relationship of the phrases vis a vis each other was copied." Id. at 292 (emphasis in original). Thus, the issue was not simply whether the common words "move" and "free your body" were protectible in a given arrangement, but rather, whether the copying was qualitatively or quantitatively sufficient to constitute an appropriation of plaintiff's work. The defendants in Jarvis raised a fact question on that issue and so summary judgment was denied.
In this case, copying has not been conceded, and the question of whether plaintiff's arrangement of common words and phrases is distinctive enough to deserve protection is at the heart of the parties' dispute. Even if copying were conceded as in Jarvis plaintiff would not survive summary judgment because no reasonable jury could conclude that the words and phrases allegedly copied by Dylan were quantitatively or qualitatively important to the whole of plaintiff's allegedly infringed works. The words and phrases in question comprise nothing more 630*630 than a single line or two of an entire song, and the songs themselves provide completely different contexts for the allegedly infringed words and phrases. Further, when taken as a whole, no jury could find substantial similarity between the lyrics of Damiano and Dylan. Summary judgment is appropriate in copyright actions based on lyrics where no reasonable jury could find substantial similarity between the works at issue. Nelson v. PRN Productions, Inc., 873 F.2d 1141 (8th Cir.) (trial court carefully studied lyrics involved and determined that reasonable minds could not differ as to absence of substantial similarity), cert. denied, 493 U.S. 994, 110 S.Ct. 544, 107 L.Ed.2d 541 (1989). The issue of substantial similarity need not be reached here, however, because plaintiff fails to demonstrate a threshold of originality of his lyrics.
Insofar as the infringement of plaintiff's lyrics depends on there being some protectible element in his work, plaintiff cannot establish a copyright action. The lyrics he claims were infringed are nothing more than unprotectible phrases and cliches, and even when taken as a whole, they are not substantially similar to Dylan's work. Thus, summary judgment is granted on plaintiff's lyric claims, without the need to reach any additional elements comprising an infringement action.
C. Plaintiff's Music Infringement Claim
In addition to his lyric infringement claims, plaintiff asserts infringement of his instrumental composition, "Steel Guitars," by Dylan's "Dignity."
1. Ownership
There has been a fair amount of confusion concerning the registration of plaintiff's song. Plaintiff produced during discovery a tape, marked as Exhibit 71 of defendants' moving papers, which contained the song he called "Steel Guitars." (Exhibit 71 version). That song has been analyzed by both parties' experts and compared to "Dignity."
Defendants now contend, however, that the Exhibit 71 version of "Steel Guitars" was never registered with the Copyright Office. Plaintiff claims to have submitted a tape for registration in 1988, marked PAU X-XXX-XXX, which, according to plaintiff's attorney, contains "Steel Guitars" as the last song on side B. (Copyright tape version). The version of "Steel Guitars" on the copyright tape, however, is not the same as the one on Exhibit 71. While there are common elements in the two versions, they are certainly not identical. Because of the confusion, the court has considered both versions of the allegedly infringed song.
First, the court notes that the Exhibit 71 version cannot be the basis of an infringement claim because plaintiff is unable to show that the work was registered with the Copyright Office. Thus, he has failed to establish a prima facie case of musical infringement for that version of "Steel Guitars." The Copyright tape version, on the other hand, although not originally identified as infringed work, apparently was registered. The court will therefore analyze the remaining elements of an infringement claim for the registered version only.
2. Copying
Since there is no direct proof of copying in this case, plaintiff may establish copying if he can show (a) defendants' access to the copyrighted work; and (b) substantial similarity between the works to support an inference of unlawful copying. 827 F.Supp. at 289 (citing Whelan Associates, Inc., 797 F.2d at 1232).
a. Access
Plaintiff asserts that "the bulk of his life's work" was submitted to Sony beginning in 1982. (Compl. at 2). He also alleges that he was told to bring his songs to several concerts which he attended courtesy of Sony. Plaintiff has produced evidence that after these concerts, he was allowed backstage and gave his work to Dylan or his agents. (Damiano Decl. at ¶¶ 2, 5; Dep. of Pam Damiano at 77-84, 97-104; Dep. of Brad Wright at 105-112). Taking these allegations as true, plaintiff has demonstrated a genuine issue of material fact as to whether defendants had access to his work.
631*631 b. Similarity to Infer Copying
In addition to showing defendants' access to his work, plaintiff must also show that his song and Dylan's song were substantially similar in order to infer that copying occurred. This is the so-called "extrinsic test" of substantial similarity, which calls for a dissection of the musical structure of the two pieces in search of objective similarities. Expert testimony is permitted, and often useful, in establishing substantial similarity at this phase of the inquiry. Although both sides retained experts for the comparison of plaintiff's "Steel Guitars" to Dylan's "Dignity," the experts analyzed the irrelevant Exhibit 71 version and not the one on the Copyright tape. Plaintiff's expert concluded that the melody of "Dignity" and plaintiff's Exhibit 71 version were thirty-two percent similar. Since the two versions of "Steel Guitars" are themselves different, however, the court will not consider the expert testimony as it might apply to the Copyright tape version. Without the benefit of expert testimony or other evidence specific to the Copyright tape version of plaintiff's song, the court must engage its own analysis of the components of the songs. To the ear of this court, there is no substantial similarity in the structure, instrumentation or melody of the two songs. These songs "speak" for themselves and no reasonable factfinder could find substantial similarity.
Although this alone would dispose of plaintiff's musical infringement claim, the court will continue so as to complete this analysis.
3. Substantial Similarity to Show Appropriation
The final step of an infringement analysis is the so-called intrinsic test of substantial similarity which seeks the response of a lay person to the "total concept and feel" of the two songs at issue. See Whelan, 797 F.2d at 1234. "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 Cos., 654 F.2d 204, 208 (2d Cir.1981).
After listening several times to both Dylan's "Dignity" and plaintiff's "Steel Guitars" as it appears on the Copyright tape, this court is convinced that no reasonable juror could find the two songs substantially similar in total concept and feel. Plaintiff's song, an instrumental, consists of two guitars — one that plays a fairly repetitious baseline, and one that plays a seemingly improvised free melody. Dylan's song has full instrumentation and accompanying lyrics. The overall effect of the two pieces is quite dissimilar — put simply, they just don't sound alike. The lack of substantial similarity necessarily leads to a conclusion that Bob Dylan did not improperly appropriate plaintiff's work and thus ends the analysis of plaintiff's music infringement claim. Summary judgment will be granted in favor of defendants as to all of plaintiff's copyright infringement claims.
D. Plaintiff's Remaining Claims
Mr. Damiano also asserts federal claims under the Lanham Act and RICO, and state law claims on the theories of fraud, breach of confidence and misappropriation. To the extent that they all are based on the alleged plagiarism or theft of plaintiff's work by Bob Dylan, the dismissal of his copyright infringement claim mandates dismissal of the others since Damiano cannot establish that Dylan copied or even used any of his work.
Defendants also raise additional grounds for dismissal of plaintiff's accompanying federal and state law claims.
1. Lanham Act
Plaintiff's claim here revolves around the contention that he is the "co-author" of works that Dylan has falsely designated as his own, thus misleading the public and depriving Damiano of proper credit for his work. Although, as plaintiff points out, the elements of copyright infringement and Lanham Act claims are somewhat different, the fact that Damiano cannot establish that his work was copied by Dylan surely precludes a reasonable juror from finding that the two coauthored 632*632 any works. Plaintiff has failed to present any evidence that would support his Lanham Act claim, and thus, summary judgment will be granted in favor of the defendants.
2. RICO
Plaintiff alleges that defendants engaged in "massive mail fraud" by putting into interstate commerce recordings containing fraudulent statements, namely, that Bob Dylan created songs on the recordings which were actually created by plaintiff.
Plaintiff's RICO claims must fail because they are actually nothing more than copyright infringement claims presented as mail fraud and copyright infringement is not a predicate act under RICO. Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir.1996). Further, since plaintiff has failed to show that Dylan copied any of his work, he cannot show that the dissemination of Dylan's recordings or the statements contained therein were in any way fraudulent. Summary judgment is therefore granted on plaintiff's RICO claims.
3. State Claims
Defendants argue that plaintiff's state claims are pre-empted by the federal copyright law. Plaintiff does not respond to the pre-emption argument.
Section 301 of the copyright act explicitly preempts state laws that (1) fall within the subject matter of the federal copyright law and protect works that are fixed in tangible medium of expression; and (2) create legal or equitable rights that are equivalent to any of the exclusive rights granted to the copyright holder and specified in Section 106. Jarvis, 827 F.Supp. at 296.
Insofar as any of plaintiff's state claims turn on the alleged unauthorized copying or use of his lyrics and music, they are preempted by federal copyright law. As an initial matter, the court notes that plaintiff has not attempted to argue that his state claims arise from anything other than the alleged theft of his songs by Bob Dylan.
a. Misappropriation of Property
Plaintiff's misappropriation claim is based on the alleged unauthorized use of plaintiff's materials by Bob Dylan. This claim is equivalent to plaintiff's copyright infringement claim and thus is pre-empted.
b. Breach of Confidence and Fraud
Without reaching the question of pre-emption on plaintiff's final state law claims, the court finds that plaintiff has failed to establish either claim. First, plaintiff has offered no proof to show that defendants owed him any duty or that such a duty could have been breached by their actions. Second, plaintiff has failed to establish a claim for fraud, especially to the degree of specificity required by Rule 9(b), Fed.R.Civ.P. Plaintiff has not produced any proof of direct misrepresentations by defendants. At best, this court will accept as true plaintiff's allegation that Sony represented to him that he would be credited and compensated if Dylan used his work. Plaintiff, however, has failed to show that his work was ever used, incorporated or copied by Dylan.
Plaintiff's state claims therefore fail as a matter of law and summary judgment will be entered in favor of defendants.
E. Plaintiff's Appeal of Judge Rosen's Orders
As a final matter, this court reserved decision on plaintiff's appeal of Judge Rosen's August 6, 1996, Orders pending the outcome of defendant's summary judgment motion. These appeals assert that Judge Rosen erred in denying plaintiff access to information related to data about the sales of Dylan's songs and about Dylan's alleged motive to copy the works of others. See Damiano v. Sony Music Entertainment, Inc., 168 F.R.D. 485 (D.N.J.1996). Neither issue pertains to the questions decided herein, which are dispositive of the case. The granting of summary judgment in favor of defendants renders plaintiff's appeal moot.
633*633 III. Conclusion
For the reasons set forth above, summary judgment is granted for defendants on all counts of plaintiff's complaint. Defendants have fourteen days to apply for Rule 11 sanctions or statutory attorney's fees as detailed in part I of this Opinion. The appeal of Magistrate Judge Rosen's Orders of August 6, 1996, is dismissed as moot.
The accompanying Order has been entered.
ORDER
This matter having come before the court upon the defendants, motion for summary judgment; and the court having considered the submissions of the parties and heard oral argument on the matter; and for the reasons set forth in the Opinion of today's date;
It is this 16th day of December, 1996, hereby
ORDERED that the defendants' motion for summary judgment be, and hereby is GRANTED as to all counts of plaintiff's complaint; and it is
FURTHER ORDERED that plaintiff's appeal of Judge Rosen's Orders of August 6, 1996, be and hereby, is DISMISSED as moot; and it is
FURTHER ORDERED that any motion for statutory attorney's fees or Rule 11 sanctions shall be filed within 14 days of the entry of this Order.
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 625). 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 627).
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 634*634 for reconsideration.[1] 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 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 than 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 630). 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 Associates 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 635*635 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 631). 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 "[w]e 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 631). 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 Cos., 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. 636*636 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 628). 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 637*637 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 629). 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 627, 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 627).
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 638*638 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 632). 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 632).
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.[2]
An appropriate order follows.
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., 639*639 and/or for statutory attorney's fees shall be filed within twenty (20) days hereof.
[*] On April 24, 1997, the Supreme Court of New Jersey suspended Steven M. Kramer from the practice of law, for reasons not related to this case, for a period of six months effective May 16, 1997. In the Matter of Steven M. Kramer, An Attorney at Law, 149 N.J. 19, 691 A.2d 816 (1997). This court has not entered a suspension order for reciprocal discipline as of today's date.
[1] For example, in what appears to be plaintiff's strongest claim, he sets forth the lyrics of his purported work "Only God Knows" as compared to Dylan's "God Knows."
Damiano lyrics Dylan lyrics
Only God knows the hurt God knows you ain't pretty Only God knows the pain God knows it's true, Only God knows the struggle God knows there ain't anybody, Of the misery that you claim Ever gonna take the place of you Only God knows the anguish God knows it's a struggle, Only God knows the faith God knows it's a crime, Only God knows the truth God knows there gonna be no more Of the secrets of your fate Water for fire the next time, A different form a treason God don't call it treason, A different type of hypocrisy God don't call it wrong, Not your usual form It was supposed to last a season of adulturism or betrayal But it's been so strong, Of intimacy For so long, Only God knows the reason God knows it's fragile, Only God knows what's wrong God knows everything, Only God knows how fragile it is ... God knows there's a river, Only God knows how strong God knows how to make it flow, He made the winding rivers ... God knows there's a purpose You can watch them flow Faith is your reason Belief your purpose Don't tell me you Didn't know. Although these two works do appear to be similar as presented in the complaint, discovery has revealed that plaintiff never sought a copyright for the purported work "Only God Knows" before initiating this litigation. Only the lyrics that have here been placed into boldface had previously even existed and been copyrighted — as verses in other songs. Indeed, the court suspects that any similarity between these two songs is the result of an appropriation of Dylan's work by Damiano, not the other way around.
[2] The following verses composed by plaintiff were presented in his complaint as infringed lyrics but not addressed after defendants' motion for summary judgment:
1. "I'm not sure of anything half the time anymore"
2. "A cloud of confusion filled the room to thick to withstand"
3. "Against the pale blue sky"
4. "Sunbird up in the sky/Sunbird your flyin to high"
5. "Born are new ideas" "Against the pale blue sky"
6. "Lost days and forgotten years"
[3] Defendants submit that the following lyrics were not found in any of the Damiano works in the record:
Damiano lyric Dylan lyric
1. "buried inside" "buried deep down inside"
2. "Wanna try and help mankind" "I can smile in the face "I can smile in the face of mankind" of reality"
3. "Conceit is a disease" "Conceit is a disease"
4. multiple lines from multiple lines from purported work, Dylan's song, Only God Knows God Knows [4] The first five lyrics listed are those designated by plaintiff's attorney at oral argument as plaintiff's "Top Five" claims.
[5] As an example of how plaintiff misrepresents and alters Dylan's lyrics, these two lines from Dylan's song "Most of the Time" are presented in the complaint as if they follow one another in the song. In reality, the lines are separated by over one hundred words.
[6] Plaintiff incorrectly asserts that Dylan changed the lyric in the 1994 re-release of his song, "With God On Our Side," originally composed and copyrighted in 1963, from "kiss" to "king," thereby repeating the historical error made by Damiano in his untitled song. A review of Dylan's song reveals that the lyric is actually still "kiss." (Defendants' exhibits 64 and 66; Dylan's "Unplugged" CD and video).
[1] Effective April 1, 1997, General Rule 121, which previously governed motions for reargument, was renumbered Rule 7.1(g). The language of General Rule 121 was not altered in Rule 7.1(g).
[2] Defendants' initial application for summary judgment on the merits was accompanied by an application for dismissal as a sanction under Rule 11, Fed.R.Civ.P., for the filing of a complaint not well-grounded in fact or law. (See Op. filed Dec. 16, 1996, at 625-26). The court deferred consideration of Rule 11 sanctions and/or for attorney's fees under Rule 11 or under the less demanding standard of the Copyright Act, 17 U.S.C. § 505, until such an application could be filed, within fourteen days thereafter. (Id. at 626). When defendants sought to enlarge the period to seek attorney's fees because of the prospect that plaintiff would be seeking reconsideration, the court extended the application deadline until fourteen (14) days after decision of any reconsideration motion, which is now further enlarged to give sufficient time to include costs and fees expended in defense of this reconsideration motion as well. |
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Date: July 7th, 2012 11:48 PM
Now That You've Exposed Judge Simandle's Corruption as of Rule 56 (c)of the Federal Rules Of Civil Procedure Let us Compare
Now That You've Exposed Judge Simandle's Corruption as of rule 56 (C) of the Federal Rules of Civil Procedure let us compare the facts of the case with the Judges opinion
And lets take a poll to see who believes that the facts of the case are consistent with the Judge Simandles Opinion The law states that the verdict has to be consistent with the facts of the case right. Let Us compare.
It's a ten thousand page lawsuit. Dylan and or his attorneys never contested any of the issues of fact on the website or in The Motion to the court which mirrors the website and the pdf file "Default Motion Against Bob Dylan"
of which Dylan's Attorney Orin Snyder download and produced to the court without contesting the issues of fact. There was no affidavit of denial and Dylan was a no show to the subpoena.
Docket Link see 142
12/02/2002 142
Notice of MOTION for reconsideration of [139-1] order; to vacate protective order; for admissions of defendants; recusal of Judge Simandle; and for default against Sony Entertainment and Bob Dylan by JAMES DAMIANO, Motion set for 1/3/03 on [142-1] motion. (Exhibits in Binder Subm) (sb) (Entered: 12/03/2002)
Docket http://www.jamesdamiano.yolasite.com/james-damiano-bob-dylan-federal-court-docket.php
Motion Link
http://www.jamesdamiano.yolasite.com/plaintiffs-motion-for-default-against-bob-dylan1.php
Plaintiff has been afforded Additional information since the development of the internet and only recently it has come to our attention that Bob Dylan lied to the court when asked if he had ever been sued for plagiarism His answer to the court was no. The fact is that he had been sued twice.
Cases to be cited soon
Also Dylan recently in a Los Angeles times interview admitted to plagiarism by definition :
In a 2004 interview with Robert Hilburn of the Los Angeles Times, Bob Dylan stated,
“Well you have to understand that I’m not a melodist. My songs are either based on old Protestant hymns or Carter Family songs or variations of the blues form. What happens is, I’ll take a song and simply start playing it in my head. That’s the way I meditate.” “I wrote ‘Blowin’ in the Wind’ in 10 minutes, just put words to an old spiritual, probably something I learned from Carter Family records. That’s the folk music tradition – you use what has been handed down. ‘The Times They Are A-Changing’ is probably from an old Scottish folk Song.” "I'll be playing Bob Nolan's 'Tumbling Tumbleweeds,' for instance, in my head constantly -- while I'm driving a car or talking to a person or sitting around or whatever. People will think they are talking to me and I'm talking back, but I'm not. I'm listening to the song in my head. At a certain point, some of the words will change and I'll start writing a song.".......Bob Dylan
This case was never dismissed with prejudice
lets compare the facts with the verdict below for it is uncontested by Bob Dylan and or Bob Dylan's law firms Manatt, Phelps & Phillips ,Parcher Hayes & Snyder, Gibson Dunn & Crutcher and Hecker Brown and Sherry that Bob Dylan and people in Bob Dylan's entourage have solicited James Damiano's songs and music for over ten years.
Trailer 1
http://www.youtube.com/watch?v=0lb8ZJjmzQ8
Trailer 2
http://www.youtube.com/watch?feature=endscreen&NR=1&v=qRe-ZBozwac
There's about 35 more hours of video taped depositions I'll keep posting enjoy
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Date: June 30th, 2012 12:01 AM
http://www.jamesdamiano.yolasite.com |
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Date: June 30th, 2012 12:19 AM |
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Date: June 30th, 2012 12:49 AM |
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Date: June 30th, 2012 1:02 AM
http://www.promotionsllc.com/bob-dylan-revealed.html |
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Date: July 1st, 2012 8:04 AM
http://www.youtube.com/watch?v=mBKiTVoWIUI |
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Date: July 1st, 2012 8:08 AM |
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Date: July 1st, 2012 8:55 AM Under The Subject of Mistruths Spoken to Your Client During the course of these telephone conversations he would frequently ask me to pass along information, ask question about Bob or to Bob, and I in fact told him that I would and that I did.......Elliot Mintz See video LOL
http://www.youtube.com/watch?v=mBKiTVoWIUI |
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Date: July 1st, 2012 9:00 AM |
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Date: July 1st, 2012 10:12 AM probably your soul means as much
Someday maybe You'll be able to tell The greatest story Say the greatest line Give the greatest performance Find the greatest find
http://www.jamesdamiano.yolasite.com |
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Date: July 1st, 2012 10:17 AM |
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Date: July 1st, 2012 10:43 AM
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Date: July 1st, 2012 10:17 AM
All discovery complete exept for Dylan's Deposition
http://www.jamesdamiano.yolasite.com |
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Date: July 1st, 2012 10:46 AM
Stay tune for the finale coming today
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Date: July 2nd, 2012 3:26 AM
http://www.youtube.com/watch?v=0lb8ZJjmzQ8
http://www.youtube.com/user/lawjournal1?feature=watch
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Date: July 2nd, 2012 4:20 AM |
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Date: July 2nd, 2012 11:54 AM
http://wikileaksyola.yolasite.com/ |
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Date: July 3rd, 2012 1:58 AM |
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Date: July 2nd, 2012 4:33 AM |
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Date: July 2nd, 2012 11:53 AM
http://wikileaksyola.yolasite.com/ |
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Date: July 2nd, 2012 12:27 PM |
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Date: July 3rd, 2012 10:26 AM Default Motion Against Bob Dylan
http://www.jamesdamiano.yolasite.com/plaintiffs-motion-for-default-against-bob-dylan.php |
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Date: July 2nd, 2012 11:56 AM |
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Date: July 2nd, 2012 12:23 PM
http://www.youtube.com/watch?v=Nw3805SocQo |
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Date: July 2nd, 2012 12:25 PM
http://www.jamesdamiano.yolasite.com |
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Date: July 2nd, 2012 12:26 PM |
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Date: July 2nd, 2012 12:31 PM
http://www.jamesdamiano.yolasite.com |
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Date: July 2nd, 2012 12:32 PM |
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Date: July 2nd, 2012 12:53 PM
No artist can lay claim to the controversy that has surrounded the career of songwriter James Damiano. Thirty two years ago James Damiano began an odyssey that led him into a legal maelstrom with Bob Dylan that, to this day, fascinates the greatest of intellectual minds.
Since auditioning for the legendary CBS Record producer John Hammond, Sr., who influenced the careers of music industry icons Charlie Christian, Billy Holiday, Bob Dylan, Pete Seger, Bruce Springsteen and Stevie Ray Vaughan , James has engaged in a half a billion dollar copyright infringement law suit with Bob Dylan.
As the curtain rises on the stage of deceit we learn that CBS / Sony international recording artist, Bob Dylan not only used songs and lyrics written by James Damiano but also solicited Mr. Damiano's materials for a period of over ten years and eleven months.
As per Judicial filings Bob Dylan's name is credited to the songs. One of those songs is nominated for a Grammy as the best rock song of the year. Ironically the title of that song is Dignity.
Bob Dylan Refusues To Give Back Songs Produced During Discovery 35 years of Damiano's writing
The Most Censored Story In The History Of Rock & Roll
Bob Dylan's Stealing of James Damiano's Songs
http://www.jamesdamiano.yolasite.com |
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Date: July 2nd, 2012 12:57 PM
http://www.jamesdamiano.yolasite.com/plaintiffs-motion-for-default-against-bob-dylan.php |
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Date: July 2nd, 2012 12:59 PM
http://www.jamesdamiano.yolasite.com/plaintiffs-motion-for-default-against-bob-dylan.php
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Date: July 2nd, 2012 1:00 PM
http://www.jamesdamiano.yolasite.com/plaintiffs-motion-for-default-against-bob-dylan.php |
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Date: July 2nd, 2012 1:05 PM
http://www.jamesdamiano.yolasite.com/plaintiffs-motion-for-default-against-bob-dylan.php |
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Date: July 2nd, 2012 1:09 PM
http://bobdylanplagiarisms.yolasite.com/ |
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Date: July 3rd, 2012 12:35 AM
http://www.youtube.com/watch?v=Ri3Pl7SMZwo&feature=relmfu |
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Date: July 3rd, 2012 1:55 AM
http://www.youtube.com/watch?v=APeME9CROdE |
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Date: July 3rd, 2012 2:52 AM Bob Dylan Didn't Have Enough Songs Deposition
http://www.youtube.com/watch?v=RVev8SVKpSw |
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Date: July 3rd, 2012 4:23 AM
http://www.youtube.com/watch?v=mBKiTVoWIUI |
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Date: July 3rd, 2012 10:57 AM
http://www.jamesdamiano.yolasite.com |
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Date: July 3rd, 2012 7:57 PM Avalanche of Evidence
http://www.youtube.com/watch?v=giDBAEJb1_g |
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Date: July 4th, 2012 12:20 AM
http://www.youtube.com/watch?v=doNoAAGil2g |
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Date: July 4th, 2012 12:37 AM The Impeachment of Elliot Mintz
http://www.youtube.com/watch?v=mBKiTVoWIUI |
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Date: July 4th, 2012 2:05 AM
http://www.jamesdamiano.yolasite.com |
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Date: July 4th, 2012 7:38 PM
http://www.youtube.com/watch?v=qRe-ZBozwac |
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Date: July 4th, 2012 7:41 PM |
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Date: July 5th, 2012 1:03 AM
http://www.youtube.com/user/lawjournal1?feature=watch
http://www.jamesdamiano.yolasite.com |
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Date: July 5th, 2012 1:03 AM |
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Date: July 5th, 2012 1:05 AM
http://www.youtube.com/user/lawjournal1?feature=watch |
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Date: July 5th, 2012 1:24 AM
http://blogs.reuters.com/fanfare/2009/05/23/bob-dylan-poem-not-first-artistic-borrowing/ |
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Date: July 5th, 2012 1:26 AM |
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Date: July 5th, 2012 1:37 AM You should really reconsider who's desperate
Bob Dylan's Plagiarism of Rita Mae
http://bobdylanplagiarisms.yolasite.com/rita-mae-plagiarism.php |
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Date: July 5th, 2012 1:40 AM |
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Date: July 5th, 2012 2:04 AM
http://www.youtube.com/user/lawjournal1?feature=watch |
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Date: July 5th, 2012 2:12 AM
Bob Dylan has revealed that his famous protest song, The Times They Are A-Changin, was inspired by a Scottish folk tune.
Following its release in 1964, the song quickly became an anthem for the counter-culture movement.
Forty years later, it has emerged the song was influenced by Hamish Henderson, the Scottish former army intelligence officer who later became a left-wing peace campaigner and poet.
The songwriter, who rarely talks about his songwriting, admitted last week that the song came from folklorist Hamish Henderson’s The 51st (Highland) Division’s Farewell to Sicily.
Dylan said: "You use what’s been handed down. The Times They Are A-Changin’ is from an old Scottish folk song.
"I’ll take a song I know and start playing it in my head. At a certain point, some of the words will change and I’ll start writing a song."
Although Dylan has acknowledged the influence of British folk music on his song writing before, it is the first time he has directly linked one of his songs to another artist’s work.
Hamish Henderson is considered one of Scotland’s most important poets and drew on his army experience during the Second World War for the song about soldiers returning from Italy.
The singer-songwriter and producer Rab Noakes, who has studied Dylan’s Scottish influences in detail, said: "When I studied the song I realised that the phrasing is identical to Henderson’s piece and you could sing Dylan’s words on top of either tune.
"Although there are differences in the main melodies, the chorus tune that became The Times Are A-Changin’ is almost identical.
http://bobdylanplagiarisms.yolasite.com/the-times-they-are-a-changin-admission.php
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Date: July 5th, 2012 2:25 AM
http://bobdylanplagiarisms.yolasite.com/
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Date: July 5th, 2012 2:51 AM
From Wikipedia, the free encyclopedia
Paul Clayton Birth name Paul Clayton Worthington[1] Also known as Pablo Clayton Born March 3, 1931 New Bedford, Massachusetts, USA Died March 30, 1967 (aged 36) New York, New York, USA Genres Traditional folksongs Occupations Singer-songwriter, folksong collector, field recorder Instruments Vocals, guitar, dulcimer Years active 1950-1967[1] Labels Folkways, Riverside, Tradition, Monument, Elektra Associated acts Dixie Mountain Boys, Dave Van Ronk, Jean Ritchie, Liam Clancy, Bob Dylan
Paul Clayton (born Paul Clayton Worthington March 3, 1931 - died March 30, 1967) was an American folksinger and folklorist, who was prominent in the folk music revival of the 1950s and 1960s.[1]
A graduate of the University of Virginia, where he earned a master's degree in Folklore, Clayton specialized in traditional music, primarily New England sea shanties and ballads and Appalachian songs. He became interested in the first of these as a youngster and began playing guitar as a teen. While attending college, he expanded his interests to include the music of Virginia and the surrounding states. Within a short time after leaving college, he began recording. His first releases were for a small specialty record company, but in 1956 he joined Folkways Records, the day's leading folk music label. He recorded six solo albums for Folkways from 1956–58, issued albums for a few specialty labels, moved to another prominent folk label, Elektra Records, for two albums in 1958-59, and collaborated with artists such as Jean Ritchie and Dave Van Ronk on other releases. He made his last recording in 1965.[2]
As much a scholar as a musician, Clayton began collecting songs at a young age in his hometown of New Bedford, Massachusetts. At the university, he studied under a professor who was a leading folklorist. Soon he was combing the hills and valleys of Virginia and surrounding states for songs that formed the region's musical heritage. In making field recordings, he "discovered" Etta Baker and Hobart Smith, homespun musicians who have come to be regarded as all-time greats.[3]
Clayton became a prominent figure in the Greenwich Village folk scene in New York City during the early 1960s. He was close with artists such as Dave Van Ronk and Liam Clancy and was also a mentor and friend of Bob Dylan during the first years of Dylan's career. A song Clayton wrote was stolen by Dylan in 1962 as the basis for one of his most famous tunes, "Don't Think Twice, It's All Right".[4] The resulting lawsuits by their record companies were settled out of court, and the two remained friends for several years afterwards.[5]
Clayton was beset with personal problems in his mid-20s, including frustrations with his career, doubts arising from his homosexuality, manic depression, drug abuse and a related arrest.[6] He died by his own hand in 1967.[7] Contents
Early years
Clayton was born Paul Clayton Worthington in New Bedford, Massachusetts, in 1931, during the early years of the Great Depression.[7] His parents, Clayton Worthington and Adah (Hardy), were married four years before, and Paul was to be their only child. Despite the hard economic times, his father was comfortably employed as a salesman with a national company, where he eventually would become an executive.[8] The Worthingtons lived with Adah's parents in the West End of New Bedford, a prosperous New England seaport. Paul's parents, however, were both highly charged, Adah especially, and they fought whenever her husband returned home after days on the road. Less than four years following Paul's birth, they divorced.[9]
Paul and his mother continued to live with her parents, Charles and Elizabeth Hardy. Paul's introduction to music came early. His parents both played musical instruments, though casually, his father the banjo and his mother the piano. His grandparents would be an even greater influence. Charles Hardy sang songs he had picked up from seafarers and landlubbers alike, while Elizabeth contributed songs she grew up with in Canada's Prince Edward Island.[10] By his teen years, in the mid-1940s, Paul had learned to play guitar, performing traditional songs he learned from his grandparents as well as from folk music programs on the radio.[11] He also hunted down standards from collections available at school and in his explorations, chanced upon a trove of original manuscripts of seafaring songs on a visit one day to the New Bedford Whaling Museum.[12]
Intrigued by the possibilities of using radio to bring traditional music to larger audiences, he landed a weekly series of 15-minute folk programs on New Bedford's WFMR and later on WBSM. Besides writing and announcing his own material, he performed live, singing the traditional songs he had been collecting to his own guitar accompaniment. He was successful enough that the program was expanded to an hour per week. He was still only in high school.[13] Folklorist
After graduating in 1949, Clayton attended the University of Virginia, where hoped to gain a better grounding in musical scholarship.[14] One of his professors was Arthur Kyle Davis, Jr., an eminent folklorist.[15] Davis took three students under his wing, including Clayton, encouraging them to transcribe songs, write commentary and tape the university's collection of deteriorating aluminum recordings.[16] In 1950, Paul's unusual musical background caught the attention of Helen Hartness Flanders, the wife of U.S. Senator Ralph E. Flanders of Vermont and an internationally-recognized folk music authority. Flanders showed up at Paul's house one day with a tape recorder while he was home from college, and she recorded 11 of his songs. The roles had reversed. Now Clayton was the one being collected.[17]
That same year he discovered a new instrument, the Appalachian dulcimer.[18] Seeking out traditional players in North Carolina, Kentucky and Virginia, he learned a variety of styles, becoming more proficient on dulcimer than he was on guitar. Through the knowledge he had gathered on the instrument, he collaborated on a booklet, The Appalachian Dulcimer, writing authoritatively on the subject. Meanwhile, he scoured the countryside for traditional players and songs. To help finance his field trips, he performed at colleges, schools, bars and coffeehouses along the way.[19] Around this time, Paul began using his father's name as his stage name.[20]
Another side of Clayton's personality emerged during college. The university had an almost entirely male student body, and a gay subculture had existed there for many years. Because of the times and the university's conservative traditions, it all remained closeted.[21] Free of his home ties, however, Clayton had an active if private romantic life and sought liaisons whenever and wherever he could.[22]
Clayton continued to assist in editing Davis's book More Traditional Ballads of Virginia (published 1960). He reported his research in a quarterly journal, Southern Folklore, and for a time planned a book of his own, also on traditional Virginian songs, though the work never materialized.[23] Recordings
In 1952, Clayton recorded a tape of bluegrass material with a friend, musician Bill Clifton, and sent it off to Stinson Records in New York with the hopes of interesting the label in issuing an album. Stinson declined, but considered four tracks for singles. However, the sides went unissued.[24][25] After college, Stinson put out Clayton's first album, Whaling Songs & Ballads, which was released in cooperation with the New Bedford Whaling Museum.[2] Another Stinson release, Waters of Tyne, followed, and over the next few years he recorded for a series of other relatively obscure labels, releasing Whaling and Sailing Songs on Tradition Records and Wanted for Murder: Songs of Outlaws and Desperados and Bloody Ballads: British and American Murder Ballads on Riverside Records, among others.[2]
Through his tireless efforts at promotion, Clayton developed many useful connections, one of which brought him to the attention of a small but highly significant record company, Folkways Records. Folkways, led by Moe Asch, later recognized as the father of World Music,[citation needed] specialized in traditional material of a wide range, from Inuit and Patagonian songs to ballads sung by Serbo-Croats and Bulgarians. The venue was perfect for the traditional music Clayton specialized in.[26]
Refocusing his attentions on the basics, he issued a series of albums for Folkways that brought together his grandfather's ballads and shanties with the rarities uncovered through his scholarly pursuits in Virginia.[27] Four Clayton albums were released by Folkways in 1956 alone: his first, Bay State Ballads, followed by Folk Songs and Ballads of Virginia, Cumberland Mountain Folksongs and The Folkways-Viking Record of Folk Ballads of the English Speaking World. The next year, Folkways put out two more Clayton releases, American Broadside Ballads in Popular Tradition and Dulcimer Songs and Solos. In a span of just three years, he had recorded twelve albums.[28]
In 1958, Clayton switched labels again, moving over to Elektra, an eclectic label that also specialized in folk music. He recorded Unholy Matrimony that year with Bob Yellin backing him on banjo and the next year released Bobby Burns' Merry Muses of Caledonia.[2] His work was also featured in 1959 on the Folkways album Foc'sle Songs and Shanties with the Foc'sle Singers, whose members included Dave Van Ronk, Roger Abrahams and Bob Brill. His stay at Elektra was short, and following his second release with the label, he joined Monument Records, a smaller outfit, where he issued an EP, a series of singles and his final album, Paul Clayton, Folk Singer!, in 1965.[2]
Other significant recordings by Clayton included a collaboration with Diane Hamilton and Liam Clancy entitled Instrumental Music of the Southern Appalachians, which featured field recordings of Etta Baker, Hobart Smith and other indigenous artists, and an album with Jean Ritchie, American Folk Tales & Songs, both for Tradition. He also recorded for the Library of Congress, and tapes he made of Rev. Gary Davis and Pink Anderson were used for the album American Street Songs on Riverside Records.[2] Alleged plagiarism by Bob Dylan
Bob Dylan's friendship with Clayton dated back to 1961, Dylan's first year in New York City. Dylan traveled cross-country with Clayton and two other friends in 1963, during which they visited poet Carl Sandburg in North Carolina, attended Mardi Gras in New Orleans and rendezvoused with Joan Baez in California.[29]
In an interview published as part of a history of Greenwich Village folk club Gerde's Folk City, folksinger Barry Kornfeld described how Clayton's "Who's Gonna Buy You Ribbons (When I'm Gone)" morphed into Dylan's "Don't Think Twice":
"I was with Paul one day, and Dylan wanders by and says, 'Hey, man, that's a great song. I'm going to use that song.' And he wrote a far better song, a much more interesting song - 'Don't Think Twice, It's All Right'."[30]
Dylan's and Clayton's publishing companies sued each other over the alleged plagiarism. As it turned out, Clayton's song was derived from an earlier folksong entitled "Who's Gonna Buy You Chickens When I'm Gone?",[31] which was in the public domain. The lawsuits, which were settled out of court, had no effect on the friendship between the two songwriters.[5]
In the notes to Biograph (album) (1985), Dylan acknowledges that "'Don't Think Twice' was a riff that Paul [Clayton] had." He also credits Clayton for the melody line to "Percy's Song".[32] Suicide
On March 30, 1967, he committed suicide by taking an electric heater into his bathtub with him.[33] He is buried at Oak Grove Cemetery, New Bedford, Massachusetts.[34] Discography Albums
1954? Whaling Songs & Ballads, Stinson Records 1956? Waters of Tyne: English North Country Songs & Ballads, Stinson Records 1956 Bay State Ballads, Folkways Records 1956 Folk Songs and Ballads of Virginia, Folkways Records 1956 Cumberland Mountain Folksongs, Folkways Records 1956 Viking Record of Folk Ballads of the English Speaking World, Folkways Records 1956 Whaling and Sailing Songs from the Days of Moby Dick, Tradition Records 1956 Bloody Ballads: British and American Murder Ballads, Riverside Records 195? Wanted for Murder: Songs of Outlaws and Desperados, Riverside Records 1957 American Broadside Ballads in Popular Tradition, Folkways Records 1957 Dulcimer Songs and Solos, Folkways Records 1957 American Songs of Revolutionary Times, Olympic Records 1958 Timber-r-r! Lumberjack Folk Songs & Ballads, Riverside Records 195? Concert of British and American Folksongs, Riverside Records 1958 Unholy Matrimony, Elektra Records 1958 Bobby Burns' Merry Muses of Caledonia, Elektra Records 1959 Foc'sle Songs and Shanties (with The Foc'sle Singers), Folkways Records 1961 Home-Made Songs & Ballads, Monument Records 1965 Paul Clayton: Folk Singer!, Monument Records 1975 Bill Clifton & Paul Clayton: The First Recordings, A Bluegrass Session, 1952, Bear Family Records 2008 Folk Singer & Sings Home Made Songs & Ballads, Monument albums and singles, Bear Family Records
EP
1961 Home-Made Songs and Ballads, Monument Records
Singles
1959 "Who's Gonna Buy You Ribbons (When I'm Gone)" (Clayton), Monument Records
"This Land Is Your Land" (Guthrie)
1960 "Last Cigarette" (Clayton), Monument Records
"So Long (It's Been Good to Know You)" (Clayton)
1960 "So Long (It's Been Good to Know You)" (Clayton), London Records
"Wings of a Dove" (Ferguson)
1964 "Wings of a Dove" (Ferguson), Monument Records
"The Convent at Ronda"
196? "Yellow Bird" (Monton, Durand), Monument Records
"Kilgary Mountain" (Gibson, Camp, Warner)
196? "San Francisco Bay Blues" (Fuller), Monument Records
"Green Rocky Road" (L. Chandler, Kaufman, arr. Van Ronk)
http://bobdylanplagiarisms.yolasite.com/dont-think-twice-plagiarism.php |
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Date: July 5th, 2012 1:27 PM
http://www.jamesdamiano.yolasite.com |
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Date: July 5th, 2012 5:48 PM
http://wikileaksyola.yolasite.com/
http://www.jamesdamiano.yolasite.com/plaintiffs-motion-for-default-against-bob-dylan.php |
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Date: July 5th, 2012 5:51 PM
So Bob Dylan stood out from his contemporaries as a song-writer because he stole more boldly and with more imagination. He had hardly heard someone sing Scarborough Fair when he cannibalized it for Girl from the North Country, apparently mistaking the word fair for an adjective. As a privateer of song, no wonder Captain Kidd the pirate was his hero. They both spotted other people's treasure and brought it home as their own.......Christopher Howse
Plagiarism? I've heard that one before Imitation is more than flattery, it's the soul of wit, as someone said, writes Christopher Howse. Bob Dylan Bob Dylan Photo: Rex Christopher Howse
Christopher Howse
5:28PM GMT 19 Jan 2011
Three cheers for plagiarism! Without it there'd be no jokes, and, what's almost as bad, no culture worth the name.
So Bob Dylan stood out from his contemporaries as a song-writer because he stole more boldly and with more imagination. He had hardly heard someone sing Scarborough Fair when he cannibalised it for Girl from the North Country, apparently mistaking the word fair for an adjective. As a privateer of song, no wonder Captain Kidd the pirate was his hero. They both spotted other people's treasure and brought it home as their own.
Girl from the North Country From Wikipedia, the free encyclopedia
This article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (January 2008) "Girl from the North Country" Song by Bob Dylan from the album The Freewheelin' Bob Dylan Released May 27, 1963 Genre Folk Length 3:22 Label Columbia Records Writer Bob Dylan Composer Bob Dylan The Freewheelin' Bob Dylan track listing
"Girl from the North Country" (occasionally known as "Girl of the North Country") is a song written by Bob Dylan. It was first released in 1963 as the second track on Dylan's second studio album, The Freewheelin' Bob Dylan. Dylan re-recorded the song as a duet with Johnny Cash in 1969. That recording became the first track on Nashville Skyline, Dylan's ninth studio album. Live performances by Dylan appear on the albums Real Live and The 30th Anniversary Concert Celebration. Contents
1 Origin of the song 2 Notable versions 3 See Also 4 External links 5 References 5.1 Notes
Origin of the song
The song was written following his first trip to England in December, 1962, upon what he thought to be the completion of his second album. It is debated as to whom this song is a tribute to, some claim former girlfriend, Echo Helstrom, and some Bonnie Beecher, both of whom Dylan knew before leaving for New York. However, it is suspected that this song could have been inspired by his then girlfriend, Suze Rotolo. Dylan left England for Italy to search for Suze, whose continuation of studies there had caused a serious rift in their relationship. Unbeknownst to Dylan, Rotolo had already returned to the United States, leaving about the same time that Dylan arrived in Italy. It was here that he finished the song, ostensibly inspired by the apparent end of his relationship with Rotolo. Upon his return to New York in mid-January, he convinced Rotolo to get back together, and to move back into his apartment on 4th Street. Suze Rotolo is the woman featured on the album cover, walking arm in arm with Dylan down Jones Street, not far from their apartment.
While in London, Dylan met several figures in the local folk scene, including English folksinger Martin Carthy. "I ran into some people in England who really knew those [traditional English] songs," Dylan recalled in 1984. "Martin Carthy, another guy named [Bob] Davenport. Martin Carthy's incredible. I learned a lot of stuff from Martin." Carthy exposed Dylan to a repertoire of traditional English ballads, including Carthy's own arrangement of "Scarborough Fair," which Dylan drew upon for aspects of the melody and lyrics of "Girl from the North Country," including the line from the refrain "Remember me to one who lives there, she once was a true love of mine". Musically, this song is nearly identical to his composition "Boots of Spanish Leather",[1] composed and recorded one year later for the album The Times They Are a-Changin'. |
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Date: July 6th, 2012 12:22 AM
http://www.jamesdamiano.yolasite.com/plaintiffs-motion-for-default-against-bob-dylan1.php |
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Date: July 6th, 2012 12:41 AM |
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Date: July 6th, 2012 12:42 AM
http://www.jamesdamiano.yolasite.com |
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Date: July 6th, 2012 12:45 AM
http://www.jamesdamiano.yolasite.com |
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Date: July 6th, 2012 1:44 AM
http://www.youtube.com/watch?feature=player_embedded&v=uMy6zrFI7fU#! |
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Date: July 6th, 2012 2:30 AM
http://www.jamesdamiano.yolasite.com/plaintiffs-motion-for-default-against-bob-dylan1.php |
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Date: July 6th, 2012 2:38 AM |
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Date: July 6th, 2012 4:22 AM |
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Date: July 6th, 2012 5:15 PM Video Going Viral The Embarrassment of Bob Dylan
http://www.youtube.com/watch?v=Ri3Pl7SMZwo&feature=related |
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Date: July 6th, 2012 9:15 PM
http://www.youtube.com/watch?v=mBKiTVoWIUI&feature=relmfu |
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Date: July 7th, 2012 1:06 AM
http://jamesdamiano.yolasite.com |
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Date: July 7th, 2012 6:24 AM
http://articles.latimes.com/2004/apr/04/entertainment/ca-dylan04/5 |
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Date: July 7th, 2012 8:13 AM
http://www.jamesdamiano.yolasite.com/ |
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Date: July 7th, 2012 10:21 AM
http://www.jamesdamiano.yolasite.com |
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Date: July 7th, 2012 10:54 AM
http://www.youtube.com/watch?v=mBKiTVoWIUI |
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Date: July 7th, 2012 10:56 AM
http://www.youtube.com/watch?v=Ri3Pl7SMZwo&feature=related |
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Date: July 7th, 2012 11:29 AM |
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Date: July 7th, 2012 11:42 AM
Here's your tough talk
http://www.youtube.com/watch?v=uMy6zrFI7fU |
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Date: July 7th, 2012 12:17 PM |
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Date: July 7th, 2012 11:42 AM |
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Date: July 7th, 2012 11:48 AM
The threat thing was pretty creative Magnum but it revealed your stupidity or should I say ignorance. But I must say your pretty talented at being stupid especially when you prided yourself in being so intelligent.
So now you opened up a Hugh can of worms. Should I elaborate?
The artist never stops seeking For what he knows he'll never find
http://www.jamesdamiano.yolasite.com |
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Date: July 7th, 2012 12:21 PM Anyone know how to record on justin.tv? |
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Date: July 7th, 2012 12:25 PM |
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Date: July 7th, 2012 12:32 PM |
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Date: July 7th, 2012 12:30 PM
“Well you have to understand that I’m not a melodist. My songs are either based on old Protestant hymns or Carter Family songs. What happens is, I’ll take a song and simply start playing it in my head. That’s the way I meditate.” “I wrote ‘Blowin’ in the Wind’ in 10 minutes, just put words to an old spiritual, probably something I learned from Carter Family records. ‘The Times They Are A-Changing’ is probably from an old Scottish folk Song.” "I'll be playing Bob Nolan's 'Tumbling Tumbleweeds,' for instance, in my head constantly, while I'm driving a car or talking to a person or sitting around or whatever. People will think they are talking to me and I'm talking back, but I'm not. I'm listening to the song in my head. At a certain point, some of the words will change and I'll start writing a song.".......Bob Dylan
Dylan's admitting to plagiarizing the melody line. Try to imagine why he admitted it?
The dots are all connected
Bob Dylan Stealing Poems At 16 Imagine that Weenie.
http://blogs.reuters.com/fanfare/2009/05/23/bob-dylan-poem-not-first-artistic-borrowing/
Another thing Weinee You should seriously look into getting some psychological help seriously even maybe just anger management. Just a thought and also don't be mad a me be mad at Orin Snyder he's the one who ruined Dylan's reputation by giving him extremely bad legal advice
Or on another note no pun intended how about Bob himself why don't you get mad at him He's the one who stole the songs. Which leads me to a song that you just inspired me to write "angry if you will". There just think Weinee there was a song written about you by someone who had his material published by Bob Dylan You should be flattered. |
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Date: July 7th, 2012 12:36 PM
anyway here's a link for you have fun trying to protect your man Dylan against this
http://wikileaksyola.yolasite.com/
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Date: July 7th, 2012 12:41 PM Didn't click on any of your silly links, but then again, nobody else did either. Shouldn't be hard to protect the client from bullshit nobody will ever read. Hope you enjoy your ramen noodle dinner. *glazes your face with more manjam* |
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Date: July 7th, 2012 12:48 PM
Tough talkin Weenie's not only stupid but he's a a liar as well
Bob Dylan's Stealing of James Damiano's Songs
http://www.jamesdamiano.yolasite.com |
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Date: July 7th, 2012 2:38 PM |
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Date: July 7th, 2012 3:30 PM
http://www.jamesdamiano.yolasite.com
|
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Date: July 7th, 2012 12:44 PM
http://www.youtube.com/watch?v=Nw3805SocQo
Snyder was the Attorney who ruined Bob Dylan's reputation Snyder extorted Dylan and guess who's going to win when Dylan sues Snyder for destroying his professional reputation?
Or better yet try to imagine ho much Dylan will win when he does?
Bob Dylan's Stealing of James Damiano's Songs
http://www.jamesdamiano.yolasite.com |
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Date: July 7th, 2012 12:55 PM
Judicially Uncontested and Entered upon the record of the court
http://www.jamesdamiano.yolasite.com |
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Date: July 7th, 2012 12:59 PM let me know if you want to see the statcounter.
And here's something for you to watch in the meantime Orin Snyder at his best
http://www.youtube.com/watch?v=SW0sjj9Wm64
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Date: July 7th, 2012 2:43 PM |
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Date: July 7th, 2012 1:28 PM
After you send me your e-mail I will send you their information so you can call them and explain your intentions and reason for the threat you made
to save them the trip of coming to see you. I would suggest you contact them before they contact you. They may or may not come to see you.
They will probably make that decision after their phone interview with you send me your e-mail at uslawjournal@gmail.com
I would do it if I were you believe me it's better to surrrender than to be sought out You'll probably just have to give them your word that your not serious about your threat |
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Date: July 7th, 2012 2:41 PM |
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Date: July 7th, 2012 1:48 PM
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Date: July 7th, 2012 1:49 PM |
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Date: July 7th, 2012 1:58 PM
A diversion of reality
That the worst segregation
In the world today
Is not between
Yellow, Red, Black or White men
Muslims Jews Buddists or Christians
But between
The rich and the poor
Damiano (C) 2003
All rights are reserved. Permission to use any or all of this material must be addressed to the publisher at uslawjournal@gmail.com |
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Date: July 7th, 2012 2:49 PM 2) There is no "publisher". Just some crazy chump with an internet connection. 3) Yet more black bukkake upon you. |
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Date: July 7th, 2012 2:46 PM |
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Date: July 7th, 2012 3:11 PM You can't possibly think that I would make something like that up being in the position I'm in.
You can't possibly think that I'm a person that plays. I don't. You want to talk tough you can talk tough to the Marshalls.
You made the threat and your going to answer to it believe me.
The link has been sent It's been reported pdf and url so don't try deleting anything or you'll be in serious trouble what do you think this case was a walk in the park.
Damiano's still alive isn't he. Think about who you threatened. Now send the e-mail so I can give you the information of the people you need to contact because if they have to go through the trouble of tracking you down they're not going to be happy about that.
This is real now uslawjournal@gmail.com
You know what weinee don't bother |
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Date: July 7th, 2012 3:21 PM
check for "EAT A DICK, FAGGOT!!" in subject line
hth |
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Date: July 7th, 2012 5:19 PM
Before you made the threat you should have considered who you were threatening. Mr. Damiano's Cousin is a prosecutor for the state of New Jersey. Another one of his cousins is married to the ex president of Morgan Stanley, he has a senator in his family as well as a governor in his extended family. His brother In Law is Richard Frankel of Richard Frankel Productions who is in business with the Weinstein Brothers of The Weinstein Company Previous owners of Merimac. Your in trouble for real send me your email now and make it easy on yourself. All correspondence is being recorded and is official.
I would have had leniency and tried to help you but you never recanted your threat.
uslawjournal@gmail.com |
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Date: July 7th, 2012 5:49 PM James DAMIANO, Plaintiff, v. SONY MUSIC ENTERTAINMENT, INC., and Bob Dylan, Defendants.
Civ. A. No. 95-4795(JBS). United States District Court, D. New Jersey.
December 16, 1996. Opinion Denying Reconsideration August 20, 1997. 624*624 625*625 Steven M. Kramer,[*] Steven M. Kramer & Associates, New York City, for Plaintiff.
Steven D. Johnson, Hecker, Brown, Sherry & Johnson, Haddonfield, NJ, Stephen M. Hayes, Orin Snyder, Parcher, Hayes & Liebman, New York City, for Defendants.
OPINION
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).[1] Defendants seek judgment on the merits, as well as dismissal as a sanction under Rule 11, Fed.R.Civ.P., 626*626 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. § 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, 104 S.Ct. 2144, 79 L.Ed.2d 910 (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, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Supreme Court decisions mandate that: "[w]hen 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, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (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. at 248, 106 S.Ct. at 2510). 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 meta-physical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (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, 106 S.Ct. at 2511.
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 627*627 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.[2] 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 Associates v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.), cert, denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (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.[3]
Plaintiff has not presented evidence to the contrary, but merely asserts that "[p]laintiff has registered almost all of his works" and the rest will be registered prior to this court's decision. (Pl. Br. at 25) (emphasis added). Specifically, plaintiff alleges that his work "Only God Knows," which contains several lines that are allegedly infringed by Dylan's "God Knows," and the lyric "Conceit 628*628 is a disease" were in the process of being copyrighted at the time he submitted his opposition brief. Defendants, however, dispute the accuracy of this assertion and argue that a search of U.S. Copyright Office records revealed no new registrations by Damiano in 1996. (Def. Reply Br. at 5). Further, plaintiff has failed to produce any proof of filing to support his claim of pending registration for the two sets of lyrics in question. See Wilson v. Mr. Tee's, 855 F.Supp. 679, 682 (D.N.J.1994). Thus, summary judgment will be granted for these lyric infringement claims since plaintiff has failed to establish a prima facie case of infringement.
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:[4]
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"[5]
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]"[6]
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 On the door to hell" from hell goes rolling by"
9. "No one to run from "I don't cheat on myself And no reason to hide" I don't run and hide"
10. "I can pretend" "I don't pretend" 629*629 11. "Maybe there's a reason for "God knows there's a purpose" a purpose"
12. "What good is a man" "What good am I" a. Originality
A key point in this case is the disagreement between the parties as to the amount of originality needed for a work to be copyrightable. Plaintiff contends that "just a dash" will suffice. See Universal Athletic Sales Co., 511 F.2d at 908 ("[E]ven a modicum of creativity may suffice for a work to be protected."). Defendants, however, argue that the common words and phrases and cliches used in plaintiff's lyrics are not subject to copyright protection. See Jarvis, 827 F.Supp. at 291 (citing Perma Greetings, Inc. v. Russ Berrie & Co., Inc., 598 F.Supp. 445, 448 (E.D.Mo.1984)); O'Brien v. Chappel & Co., 159 F.Supp. 58 (S.D.N.Y.1958) (holding that phrase "night and noon" is not protectible).
Plaintiff relies on the decision in Jarvis v. A & M Records, for the proposition that even common words can be protected if placed in a certain arrangement. For example, he argues that coupling the word "stumble" with the word "lips" creates a sufficiently original arrangement of otherwise trite words. Likewise, plaintiff argues that an arrangement combining the cliche "truer words have not been spoken" with the word "broken" is creative enough to be worthy of protection. Thus, plaintiff concludes, Bob Dylan cannot subsequently use the same pairs of words or phrases together in a lyric, even if separated by many intervening lines and ideas in some instances, without infringing plaintiff's original work.
The law of copyright does not support the logical extension of plaintiff's theory. In effect, he asks us to grant him a monopoly over the use of common combinations of words such as "bell" and "hell," "run" and "hide," or "mind" and "behind" merely because they are found together in a single song — regardless of context or placement within the song. Such a result would not only stifle creativity, it would contravene the very policy behind copyright law and the rule requiring sufficient originality for a work to be protected. As the Jarvis court noted, "the policy behind the rule is to prevent a deterring effect on the creations of new works because of author's fears of copying innocuous segments." Jarvis, 827 F.Supp. at 291. Indeed, the law of copyright has absolutely no interest in tying up random, fortuitous combinations of words.
Additionally, the court notes that plaintiff's reliance on Jarvis is misplaced. In that case, the defendants admitted to copying elements of the plaintiff's song via digital sampling. Since sections of the plaintiff's work were actually reproduced and used in the infringing work, there was no question as to whether the arrangement was similar — it was identical. Unlike in the present case, "the precise relationship of the phrases vis a vis each other was copied." Id. at 292 (emphasis in original). Thus, the issue was not simply whether the common words "move" and "free your body" were protectible in a given arrangement, but rather, whether the copying was qualitatively or quantitatively sufficient to constitute an appropriation of plaintiff's work. The defendants in Jarvis raised a fact question on that issue and so summary judgment was denied.
In this case, copying has not been conceded, and the question of whether plaintiff's arrangement of common words and phrases is distinctive enough to deserve protection is at the heart of the parties' dispute. Even if copying were conceded as in Jarvis plaintiff would not survive summary judgment because no reasonable jury could conclude that the words and phrases allegedly copied by Dylan were quantitatively or qualitatively important to the whole of plaintiff's allegedly infringed works. The words and phrases in question comprise nothing more 630*630 than a single line or two of an entire song, and the songs themselves provide completely different contexts for the allegedly infringed words and phrases. Further, when taken as a whole, no jury could find substantial similarity between the lyrics of Damiano and Dylan. Summary judgment is appropriate in copyright actions based on lyrics where no reasonable jury could find substantial similarity between the works at issue. Nelson v. PRN Productions, Inc., 873 F.2d 1141 (8th Cir.) (trial court carefully studied lyrics involved and determined that reasonable minds could not differ as to absence of substantial similarity), cert. denied, 493 U.S. 994, 110 S.Ct. 544, 107 L.Ed.2d 541 (1989). The issue of substantial similarity need not be reached here, however, because plaintiff fails to demonstrate a threshold of originality of his lyrics.
Insofar as the infringement of plaintiff's lyrics depends on there being some protectible element in his work, plaintiff cannot establish a copyright action. The lyrics he claims were infringed are nothing more than unprotectible phrases and cliches, and even when taken as a whole, they are not substantially similar to Dylan's work. Thus, summary judgment is granted on plaintiff's lyric claims, without the need to reach any additional elements comprising an infringement action.
C. Plaintiff's Music Infringement Claim
In addition to his lyric infringement claims, plaintiff asserts infringement of his instrumental composition, "Steel Guitars," by Dylan's "Dignity."
1. Ownership
There has been a fair amount of confusion concerning the registration of plaintiff's song. Plaintiff produced during discovery a tape, marked as Exhibit 71 of defendants' moving papers, which contained the song he called "Steel Guitars." (Exhibit 71 version). That song has been analyzed by both parties' experts and compared to "Dignity."
Defendants now contend, however, that the Exhibit 71 version of "Steel Guitars" was never registered with the Copyright Office. Plaintiff claims to have submitted a tape for registration in 1988, marked PAU X-XXX-XXX, which, according to plaintiff's attorney, contains "Steel Guitars" as the last song on side B. (Copyright tape version). The version of "Steel Guitars" on the copyright tape, however, is not the same as the one on Exhibit 71. While there are common elements in the two versions, they are certainly not identical. Because of the confusion, the court has considered both versions of the allegedly infringed song.
First, the court notes that the Exhibit 71 version cannot be the basis of an infringement claim because plaintiff is unable to show that the work was registered with the Copyright Office. Thus, he has failed to establish a prima facie case of musical infringement for that version of "Steel Guitars." The Copyright tape version, on the other hand, although not originally identified as infringed work, apparently was registered. The court will therefore analyze the remaining elements of an infringement claim for the registered version only.
2. Copying
Since there is no direct proof of copying in this case, plaintiff may establish copying if he can show (a) defendants' access to the copyrighted work; and (b) substantial similarity between the works to support an inference of unlawful copying. 827 F.Supp. at 289 (citing Whelan Associates, Inc., 797 F.2d at 1232).
a. Access
Plaintiff asserts that "the bulk of his life's work" was submitted to Sony beginning in 1982. (Compl. at 2). He also alleges that he was told to bring his songs to several concerts which he attended courtesy of Sony. Plaintiff has produced evidence that after these concerts, he was allowed backstage and gave his work to Dylan or his agents. (Damiano Decl. at ¶¶ 2, 5; Dep. of Pam Damiano at 77-84, 97-104; Dep. of Brad Wright at 105-112). Taking these allegations as true, plaintiff has demonstrated a genuine issue of material fact as to whether defendants had access to his work.
631*631 b. Similarity to Infer Copying
In addition to showing defendants' access to his work, plaintiff must also show that his song and Dylan's song were substantially similar in order to infer that copying occurred. This is the so-called "extrinsic test" of substantial similarity, which calls for a dissection of the musical structure of the two pieces in search of objective similarities. Expert testimony is permitted, and often useful, in establishing substantial similarity at this phase of the inquiry. Although both sides retained experts for the comparison of plaintiff's "Steel Guitars" to Dylan's "Dignity," the experts analyzed the irrelevant Exhibit 71 version and not the one on the Copyright tape. Plaintiff's expert concluded that the melody of "Dignity" and plaintiff's Exhibit 71 version were thirty-two percent similar. Since the two versions of "Steel Guitars" are themselves different, however, the court will not consider the expert testimony as it might apply to the Copyright tape version. Without the benefit of expert testimony or other evidence specific to the Copyright tape version of plaintiff's song, the court must engage its own analysis of the components of the songs. To the ear of this court, there is no substantial similarity in the structure, instrumentation or melody of the two songs. These songs "speak" for themselves and no reasonable factfinder could find substantial similarity.
Although this alone would dispose of plaintiff's musical infringement claim, the court will continue so as to complete this analysis.
3. Substantial Similarity to Show Appropriation
The final step of an infringement analysis is the so-called intrinsic test of substantial similarity which seeks the response of a lay person to the "total concept and feel" of the two songs at issue. See Whelan, 797 F.2d at 1234. "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 Cos., 654 F.2d 204, 208 (2d Cir.1981).
After listening several times to both Dylan's "Dignity" and plaintiff's "Steel Guitars" as it appears on the Copyright tape, this court is convinced that no reasonable juror could find the two songs substantially similar in total concept and feel. Plaintiff's song, an instrumental, consists of two guitars — one that plays a fairly repetitious baseline, and one that plays a seemingly improvised free melody. Dylan's song has full instrumentation and accompanying lyrics. The overall effect of the two pieces is quite dissimilar — put simply, they just don't sound alike. The lack of substantial similarity necessarily leads to a conclusion that Bob Dylan did not improperly appropriate plaintiff's work and thus ends the analysis of plaintiff's music infringement claim. Summary judgment will be granted in favor of defendants as to all of plaintiff's copyright infringement claims.
D. Plaintiff's Remaining Claims
Mr. Damiano also asserts federal claims under the Lanham Act and RICO, and state law claims on the theories of fraud, breach of confidence and misappropriation. To the extent that they all are based on the alleged plagiarism or theft of plaintiff's work by Bob Dylan, the dismissal of his copyright infringement claim mandates dismissal of the others since Damiano cannot establish that Dylan copied or even used any of his work.
Defendants also raise additional grounds for dismissal of plaintiff's accompanying federal and state law claims.
1. Lanham Act
Plaintiff's claim here revolves around the contention that he is the "co-author" of works that Dylan has falsely designated as his own, thus misleading the public and depriving Damiano of proper credit for his work. Although, as plaintiff points out, the elements of copyright infringement and Lanham Act claims are somewhat different, the fact that Damiano cannot establish that his work was copied by Dylan surely precludes a reasonable juror from finding that the two coauthored 632*632 any works. Plaintiff has failed to present any evidence that would support his Lanham Act claim, and thus, summary judgment will be granted in favor of the defendants.
2. RICO
Plaintiff alleges that defendants engaged in "massive mail fraud" by putting into interstate commerce recordings containing fraudulent statements, namely, that Bob Dylan created songs on the recordings which were actually created by plaintiff.
Plaintiff's RICO claims must fail because they are actually nothing more than copyright infringement claims presented as mail fraud and copyright infringement is not a predicate act under RICO. Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir.1996). Further, since plaintiff has failed to show that Dylan copied any of his work, he cannot show that the dissemination of Dylan's recordings or the statements contained therein were in any way fraudulent. Summary judgment is therefore granted on plaintiff's RICO claims.
3. State Claims
Defendants argue that plaintiff's state claims are pre-empted by the federal copyright law. Plaintiff does not respond to the pre-emption argument.
Section 301 of the copyright act explicitly preempts state laws that (1) fall within the subject matter of the federal copyright law and protect works that are fixed in tangible medium of expression; and (2) create legal or equitable rights that are equivalent to any of the exclusive rights granted to the copyright holder and specified in Section 106. Jarvis, 827 F.Supp. at 296.
Insofar as any of plaintiff's state claims turn on the alleged unauthorized copying or use of his lyrics and music, they are preempted by federal copyright law. As an initial matter, the court notes that plaintiff has not attempted to argue that his state claims arise from anything other than the alleged theft of his songs by Bob Dylan.
a. Misappropriation of Property
Plaintiff's misappropriation claim is based on the alleged unauthorized use of plaintiff's materials by Bob Dylan. This claim is equivalent to plaintiff's copyright infringement claim and thus is pre-empted.
b. Breach of Confidence and Fraud
Without reaching the question of pre-emption on plaintiff's final state law claims, the court finds that plaintiff has failed to establish either claim. First, plaintiff has offered no proof to show that defendants owed him any duty or that such a duty could have been breached by their actions. Second, plaintiff has failed to establish a claim for fraud, especially to the degree of specificity required by Rule 9(b), Fed.R.Civ.P. Plaintiff has not produced any proof of direct misrepresentations by defendants. At best, this court will accept as true plaintiff's allegation that Sony represented to him that he would be credited and compensated if Dylan used his work. Plaintiff, however, has failed to show that his work was ever used, incorporated or copied by Dylan.
Plaintiff's state claims therefore fail as a matter of law and summary judgment will be entered in favor of defendants.
E. Plaintiff's Appeal of Judge Rosen's Orders
As a final matter, this court reserved decision on plaintiff's appeal of Judge Rosen's August 6, 1996, Orders pending the outcome of defendant's summary judgment motion. These appeals assert that Judge Rosen erred in denying plaintiff access to information related to data about the sales of Dylan's songs and about Dylan's alleged motive to copy the works of others. See Damiano v. Sony Music Entertainment, Inc., 168 F.R.D. 485 (D.N.J.1996). Neither issue pertains to the questions decided herein, which are dispositive of the case. The granting of summary judgment in favor of defendants renders plaintiff's appeal moot.
633*633 III. Conclusion
For the reasons set forth above, summary judgment is granted for defendants on all counts of plaintiff's complaint. Defendants have fourteen days to apply for Rule 11 sanctions or statutory attorney's fees as detailed in part I of this Opinion. The appeal of Magistrate Judge Rosen's Orders of August 6, 1996, is dismissed as moot.
The accompanying Order has been entered.
ORDER
This matter having come before the court upon the defendants, motion for summary judgment; and the court having considered the submissions of the parties and heard oral argument on the matter; and for the reasons set forth in the Opinion of today's date;
It is this 16th day of December, 1996, hereby
ORDERED that the defendants' motion for summary judgment be, and hereby is GRANTED as to all counts of plaintiff's complaint; and it is
FURTHER ORDERED that plaintiff's appeal of Judge Rosen's Orders of August 6, 1996, be and hereby, is DISMISSED as moot; and it is
FURTHER ORDERED that any motion for statutory attorney's fees or Rule 11 sanctions shall be filed within 14 days of the entry of this Order.
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 625). 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 627).
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 634*634 for reconsideration.[1] 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 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 than 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 630). 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 Associates 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 635*635 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 631). 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 "[w]e 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 631). 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 Cos., 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. 636*636 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 628). 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 637*637 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 629). 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 627, 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 627).
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 638*638 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 632). 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 632).
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.[2]
An appropriate order follows.
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., 639*639 and/or for statutory attorney's fees shall be filed within twenty (20) days hereof.
[*] On April 24, 1997, the Supreme Court of New Jersey suspended Steven M. Kramer from the practice of law, for reasons not related to this case, for a period of six months effective May 16, 1997. In the Matter of Steven M. Kramer, An Attorney at Law, 149 N.J. 19, 691 A.2d 816 (1997). This court has not entered a suspension order for reciprocal discipline as of today's date.
[1] For example, in what appears to be plaintiff's strongest claim, he sets forth the lyrics of his purported work "Only God Knows" as compared to Dylan's "God Knows."
Damiano lyrics Dylan lyrics
Only God knows the hurt God knows you ain't pretty Only God knows the pain God knows it's true, Only God knows the struggle God knows there ain't anybody, Of the misery that you claim Ever gonna take the place of you Only God knows the anguish God knows it's a struggle, Only God knows the faith God knows it's a crime, Only God knows the truth God knows there gonna be no more Of the secrets of your fate Water for fire the next time, A different form a treason God don't call it treason, A different type of hypocrisy God don't call it wrong, Not your usual form It was supposed to last a season of adulturism or betrayal But it's been so strong, Of intimacy For so long, Only God knows the reason God knows it's fragile, Only God knows what's wrong God knows everything, Only God knows how fragile it is ... God knows there's a river, Only God knows how strong God knows how to make it flow, He made the winding rivers ... God knows there's a purpose You can watch them flow Faith is your reason Belief your purpose Don't tell me you Didn't know. Although these two works do appear to be similar as presented in the complaint, discovery has revealed that plaintiff never sought a copyright for the purported work "Only God Knows" before initiating this litigation. Only the lyrics that have here been placed into boldface had previously even existed and been copyrighted — as verses in other songs. Indeed, the court suspects that any similarity between these two songs is the result of an appropriation of Dylan's work by Damiano, not the other way around.
[2] The following verses composed by plaintiff were presented in his complaint as infringed lyrics but not addressed after defendants' motion for summary judgment:
1. "I'm not sure of anything half the time anymore"
2. "A cloud of confusion filled the room to thick to withstand"
3. "Against the pale blue sky"
4. "Sunbird up in the sky/Sunbird your flyin to high"
5. "Born are new ideas" "Against the pale blue sky"
6. "Lost days and forgotten years"
[3] Defendants submit that the following lyrics were not found in any of the Damiano works in the record:
Damiano lyric Dylan lyric
1. "buried inside" "buried deep down inside"
2. "Wanna try and help mankind" "I can smile in the face "I can smile in the face of mankind" of reality"
3. "Conceit is a disease" "Conceit is a disease"
4. multiple lines from multiple lines from purported work, Dylan's song, Only God Knows God Knows [4] The first five lyrics listed are those designated by plaintiff's attorney at oral argument as plaintiff's "Top Five" claims.
[5] As an example of how plaintiff misrepresents and alters Dylan's lyrics, these two lines from Dylan's song "Most of the Time" are presented in the complaint as if they follow one another in the song. In reality, the lines are separated by over one hundred words.
[6] Plaintiff incorrectly asserts that Dylan changed the lyric in the 1994 re-release of his song, "With God On Our Side," originally composed and copyrighted in 1963, from "kiss" to "king," thereby repeating the historical error made by Damiano in his untitled song. A review of Dylan's song reveals that the lyric is actually still "kiss." (Defendants' exhibits 64 and 66; Dylan's "Unplugged" CD and video).
[1] Effective April 1, 1997, General Rule 121, which previously governed motions for reargument, was renumbered Rule 7.1(g). The language of General Rule 121 was not altered in Rule 7.1(g).
[2] Defendants' initial application for summary judgment on the merits was accompanied by an application for dismissal as a sanction under Rule 11, Fed.R.Civ.P., for the filing of a complaint not well-grounded in fact or law. (See Op. filed Dec. 16, 1996, at 625-26). The court deferred consideration of Rule 11 sanctions and/or for attorney's fees under Rule 11 or under the less demanding standard of the Copyright Act, 17 U.S.C. § 505, until such an application could be filed, within fourteen days thereafter. (Id. at 626). When defendants sought to enlarge the period to seek attorney's fees because of the prospect that plaintiff would be seeking reconsideration, the court extended the application deadline until fourteen (14) days after decision of any reconsideration motion, which is now further enlarged to give sufficient time to include costs and fees expended in defense of this reconsideration motion as well. |
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Date: July 7th, 2012 2:03 PM
A diversion of reality
That the worst segregation
In the world today
Is not between
Yellow, Red, Black or White men
Muslims Jews Buddists or Christians
But between
The rich and the poor
Damiano (C) 2003
All rights are reserved. Permission to use any or all of this material must be addressed to the publisher at Law_Review@yahoo.com |
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Date: July 7th, 2012 2:45 PM |
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Date: July 7th, 2012 3:15 PM
http://www.youtube.com/watch?v=SW0sjj9Wm64 |
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Date: July 7th, 2012 3:46 PM I'm out of here or if you want to really enjoy yourself you can watch the movie. Life's full of choices see if you can make at least one good decision today.
Later Fool
PS Let me know when you want to see the statcounter
The embarrassment of Bob Dylan
http://www.youtube.com/watch?v=Ri3Pl7SMZwo&feature=relmfu |
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Date: July 7th, 2012 3:55 PM
http://www.youtube.com/watch?v=Nw3805SocQo |
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Date: July 7th, 2012 3:57 PM
As the curtain rises on the stage of deceit we learn that CBS used songs and lyrics for international recording artist, Bob Dylan. Bob Dylan's name is credited to the songs. One of those songs is nominated for a Grammy as best rock song of the year. Ironically the title of that song is Dignity.
Since auditioning for the legendary CBS Record producer John Hammond, Sr., who influenced the careers of music industry icons Billy Holiday, Bob Dylan, Pete Seger, Bruce Springsteen and Stevie Ray Vaughan, James has engaged in a multimillion dollar copyright infringement law suit with Bob Dylan.
About something else
I might have lied
Something personal
I might deny
Another time
I might have tried
About something else
I might have lied
I have faith
I can do without
Be the fool
Find cause to doubt
If I didn't believe
I wouldn't try
To live the truth
I'd live a lie
James Damiano copyright damiano
It is uncontested by Bob Dylan and or Bob Dylan's law firms Manatt, Phelps & Phillips ,Parcher Hayes & Snyder, Gibson Dunn & Crutcher and Heck Brown and Sherry that Bob Dylan and people in Bob Dylan's entourage have solicited James Damiano's songs and music for over ten years.
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Date: July 7th, 2012 4:00 PM
http://www.jamesdamiano.yolasite.com
http://www.youtube.com/watch?v=0lb8ZJjmzQ8 |
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Date: July 7th, 2012 4:08 PM |
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Date: July 7th, 2012 4:29 PM |
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Date: July 7th, 2012 4:50 PM
Before he made his threat he should have considered who he was threatening. Mr. Damiano's Cousin is a prosecutor for the state of New Jersey. His cousin is married to the ex president of Morgan Stanley and he has a senator in his family as well as a governor in his extended family. His brother In Law is Richard Frankel of Richard Frankel Productions who is in business with the Weinstein Brothers of The Weinstein Company Previous owners of Merimac. Tell this clown he's in trouble for real or tell him to send me his email now to make it easy on himself. All correspondence is being recorded and is official. I tried to help the kid but he never recanted his threat. uslawjournal@gmail.com |
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Date: July 7th, 2012 5:50 PM James DAMIANO, Plaintiff, v. SONY MUSIC ENTERTAINMENT, INC., and Bob Dylan, Defendants.
Civ. A. No. 95-4795(JBS). United States District Court, D. New Jersey.
December 16, 1996. Opinion Denying Reconsideration August 20, 1997. 624*624 625*625 Steven M. Kramer,[*] Steven M. Kramer & Associates, New York City, for Plaintiff.
Steven D. Johnson, Hecker, Brown, Sherry & Johnson, Haddonfield, NJ, Stephen M. Hayes, Orin Snyder, Parcher, Hayes & Liebman, New York City, for Defendants.
OPINION
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).[1] Defendants seek judgment on the merits, as well as dismissal as a sanction under Rule 11, Fed.R.Civ.P., 626*626 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. § 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, 104 S.Ct. 2144, 79 L.Ed.2d 910 (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, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Supreme Court decisions mandate that: "[w]hen 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, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (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. at 248, 106 S.Ct. at 2510). 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 meta-physical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (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, 106 S.Ct. at 2511.
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 627*627 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.[2] 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 Associates v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.), cert, denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (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.[3]
Plaintiff has not presented evidence to the contrary, but merely asserts that "[p]laintiff has registered almost all of his works" and the rest will be registered prior to this court's decision. (Pl. Br. at 25) (emphasis added). Specifically, plaintiff alleges that his work "Only God Knows," which contains several lines that are allegedly infringed by Dylan's "God Knows," and the lyric "Conceit 628*628 is a disease" were in the process of being copyrighted at the time he submitted his opposition brief. Defendants, however, dispute the accuracy of this assertion and argue that a search of U.S. Copyright Office records revealed no new registrations by Damiano in 1996. (Def. Reply Br. at 5). Further, plaintiff has failed to produce any proof of filing to support his claim of pending registration for the two sets of lyrics in question. See Wilson v. Mr. Tee's, 855 F.Supp. 679, 682 (D.N.J.1994). Thus, summary judgment will be granted for these lyric infringement claims since plaintiff has failed to establish a prima facie case of infringement.
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:[4]
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"[5]
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]"[6]
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 On the door to hell" from hell goes rolling by"
9. "No one to run from "I don't cheat on myself And no reason to hide" I don't run and hide"
10. "I can pretend" "I don't pretend" 629*629 11. "Maybe there's a reason for "God knows there's a purpose" a purpose"
12. "What good is a man" "What good am I" a. Originality
A key point in this case is the disagreement between the parties as to the amount of originality needed for a work to be copyrightable. Plaintiff contends that "just a dash" will suffice. See Universal Athletic Sales Co., 511 F.2d at 908 ("[E]ven a modicum of creativity may suffice for a work to be protected."). Defendants, however, argue that the common words and phrases and cliches used in plaintiff's lyrics are not subject to copyright protection. See Jarvis, 827 F.Supp. at 291 (citing Perma Greetings, Inc. v. Russ Berrie & Co., Inc., 598 F.Supp. 445, 448 (E.D.Mo.1984)); O'Brien v. Chappel & Co., 159 F.Supp. 58 (S.D.N.Y.1958) (holding that phrase "night and noon" is not protectible).
Plaintiff relies on the decision in Jarvis v. A & M Records, for the proposition that even common words can be protected if placed in a certain arrangement. For example, he argues that coupling the word "stumble" with the word "lips" creates a sufficiently original arrangement of otherwise trite words. Likewise, plaintiff argues that an arrangement combining the cliche "truer words have not been spoken" with the word "broken" is creative enough to be worthy of protection. Thus, plaintiff concludes, Bob Dylan cannot subsequently use the same pairs of words or phrases together in a lyric, even if separated by many intervening lines and ideas in some instances, without infringing plaintiff's original work.
The law of copyright does not support the logical extension of plaintiff's theory. In effect, he asks us to grant him a monopoly over the use of common combinations of words such as "bell" and "hell," "run" and "hide," or "mind" and "behind" merely because they are found together in a single song — regardless of context or placement within the song. Such a result would not only stifle creativity, it would contravene the very policy behind copyright law and the rule requiring sufficient originality for a work to be protected. As the Jarvis court noted, "the policy behind the rule is to prevent a deterring effect on the creations of new works because of author's fears of copying innocuous segments." Jarvis, 827 F.Supp. at 291. Indeed, the law of copyright has absolutely no interest in tying up random, fortuitous combinations of words.
Additionally, the court notes that plaintiff's reliance on Jarvis is misplaced. In that case, the defendants admitted to copying elements of the plaintiff's song via digital sampling. Since sections of the plaintiff's work were actually reproduced and used in the infringing work, there was no question as to whether the arrangement was similar — it was identical. Unlike in the present case, "the precise relationship of the phrases vis a vis each other was copied." Id. at 292 (emphasis in original). Thus, the issue was not simply whether the common words "move" and "free your body" were protectible in a given arrangement, but rather, whether the copying was qualitatively or quantitatively sufficient to constitute an appropriation of plaintiff's work. The defendants in Jarvis raised a fact question on that issue and so summary judgment was denied.
In this case, copying has not been conceded, and the question of whether plaintiff's arrangement of common words and phrases is distinctive enough to deserve protection is at the heart of the parties' dispute. Even if copying were conceded as in Jarvis plaintiff would not survive summary judgment because no reasonable jury could conclude that the words and phrases allegedly copied by Dylan were quantitatively or qualitatively important to the whole of plaintiff's allegedly infringed works. The words and phrases in question comprise nothing more 630*630 than a single line or two of an entire song, and the songs themselves provide completely different contexts for the allegedly infringed words and phrases. Further, when taken as a whole, no jury could find substantial similarity between the lyrics of Damiano and Dylan. Summary judgment is appropriate in copyright actions based on lyrics where no reasonable jury could find substantial similarity between the works at issue. Nelson v. PRN Productions, Inc., 873 F.2d 1141 (8th Cir.) (trial court carefully studied lyrics involved and determined that reasonable minds could not differ as to absence of substantial similarity), cert. denied, 493 U.S. 994, 110 S.Ct. 544, 107 L.Ed.2d 541 (1989). The issue of substantial similarity need not be reached here, however, because plaintiff fails to demonstrate a threshold of originality of his lyrics.
Insofar as the infringement of plaintiff's lyrics depends on there being some protectible element in his work, plaintiff cannot establish a copyright action. The lyrics he claims were infringed are nothing more than unprotectible phrases and cliches, and even when taken as a whole, they are not substantially similar to Dylan's work. Thus, summary judgment is granted on plaintiff's lyric claims, without the need to reach any additional elements comprising an infringement action.
C. Plaintiff's Music Infringement Claim
In addition to his lyric infringement claims, plaintiff asserts infringement of his instrumental composition, "Steel Guitars," by Dylan's "Dignity."
1. Ownership
There has been a fair amount of confusion concerning the registration of plaintiff's song. Plaintiff produced during discovery a tape, marked as Exhibit 71 of defendants' moving papers, which contained the song he called "Steel Guitars." (Exhibit 71 version). That song has been analyzed by both parties' experts and compared to "Dignity."
Defendants now contend, however, that the Exhibit 71 version of "Steel Guitars" was never registered with the Copyright Office. Plaintiff claims to have submitted a tape for registration in 1988, marked PAU X-XXX-XXX, which, according to plaintiff's attorney, contains "Steel Guitars" as the last song on side B. (Copyright tape version). The version of "Steel Guitars" on the copyright tape, however, is not the same as the one on Exhibit 71. While there are common elements in the two versions, they are certainly not identical. Because of the confusion, the court has considered both versions of the allegedly infringed song.
First, the court notes that the Exhibit 71 version cannot be the basis of an infringement claim because plaintiff is unable to show that the work was registered with the Copyright Office. Thus, he has failed to establish a prima facie case of musical infringement for that version of "Steel Guitars." The Copyright tape version, on the other hand, although not originally identified as infringed work, apparently was registered. The court will therefore analyze the remaining elements of an infringement claim for the registered version only.
2. Copying
Since there is no direct proof of copying in this case, plaintiff may establish copying if he can show (a) defendants' access to the copyrighted work; and (b) substantial similarity between the works to support an inference of unlawful copying. 827 F.Supp. at 289 (citing Whelan Associates, Inc., 797 F.2d at 1232).
a. Access
Plaintiff asserts that "the bulk of his life's work" was submitted to Sony beginning in 1982. (Compl. at 2). He also alleges that he was told to bring his songs to several concerts which he attended courtesy of Sony. Plaintiff has produced evidence that after these concerts, he was allowed backstage and gave his work to Dylan or his agents. (Damiano Decl. at ¶¶ 2, 5; Dep. of Pam Damiano at 77-84, 97-104; Dep. of Brad Wright at 105-112). Taking these allegations as true, plaintiff has demonstrated a genuine issue of material fact as to whether defendants had access to his work.
631*631 b. Similarity to Infer Copying
In addition to showing defendants' access to his work, plaintiff must also show that his song and Dylan's song were substantially similar in order to infer that copying occurred. This is the so-called "extrinsic test" of substantial similarity, which calls for a dissection of the musical structure of the two pieces in search of objective similarities. Expert testimony is permitted, and often useful, in establishing substantial similarity at this phase of the inquiry. Although both sides retained experts for the comparison of plaintiff's "Steel Guitars" to Dylan's "Dignity," the experts analyzed the irrelevant Exhibit 71 version and not the one on the Copyright tape. Plaintiff's expert concluded that the melody of "Dignity" and plaintiff's Exhibit 71 version were thirty-two percent similar. Since the two versions of "Steel Guitars" are themselves different, however, the court will not consider the expert testimony as it might apply to the Copyright tape version. Without the benefit of expert testimony or other evidence specific to the Copyright tape version of plaintiff's song, the court must engage its own analysis of the components of the songs. To the ear of this court, there is no substantial similarity in the structure, instrumentation or melody of the two songs. These songs "speak" for themselves and no reasonable factfinder could find substantial similarity.
Although this alone would dispose of plaintiff's musical infringement claim, the court will continue so as to complete this analysis.
3. Substantial Similarity to Show Appropriation
The final step of an infringement analysis is the so-called intrinsic test of substantial similarity which seeks the response of a lay person to the "total concept and feel" of the two songs at issue. See Whelan, 797 F.2d at 1234. "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 Cos., 654 F.2d 204, 208 (2d Cir.1981).
After listening several times to both Dylan's "Dignity" and plaintiff's "Steel Guitars" as it appears on the Copyright tape, this court is convinced that no reasonable juror could find the two songs substantially similar in total concept and feel. Plaintiff's song, an instrumental, consists of two guitars — one that plays a fairly repetitious baseline, and one that plays a seemingly improvised free melody. Dylan's song has full instrumentation and accompanying lyrics. The overall effect of the two pieces is quite dissimilar — put simply, they just don't sound alike. The lack of substantial similarity necessarily leads to a conclusion that Bob Dylan did not improperly appropriate plaintiff's work and thus ends the analysis of plaintiff's music infringement claim. Summary judgment will be granted in favor of defendants as to all of plaintiff's copyright infringement claims.
D. Plaintiff's Remaining Claims
Mr. Damiano also asserts federal claims under the Lanham Act and RICO, and state law claims on the theories of fraud, breach of confidence and misappropriation. To the extent that they all are based on the alleged plagiarism or theft of plaintiff's work by Bob Dylan, the dismissal of his copyright infringement claim mandates dismissal of the others since Damiano cannot establish that Dylan copied or even used any of his work.
Defendants also raise additional grounds for dismissal of plaintiff's accompanying federal and state law claims.
1. Lanham Act
Plaintiff's claim here revolves around the contention that he is the "co-author" of works that Dylan has falsely designated as his own, thus misleading the public and depriving Damiano of proper credit for his work. Although, as plaintiff points out, the elements of copyright infringement and Lanham Act claims are somewhat different, the fact that Damiano cannot establish that his work was copied by Dylan surely precludes a reasonable juror from finding that the two coauthored 632*632 any works. Plaintiff has failed to present any evidence that would support his Lanham Act claim, and thus, summary judgment will be granted in favor of the defendants.
2. RICO
Plaintiff alleges that defendants engaged in "massive mail fraud" by putting into interstate commerce recordings containing fraudulent statements, namely, that Bob Dylan created songs on the recordings which were actually created by plaintiff.
Plaintiff's RICO claims must fail because they are actually nothing more than copyright infringement claims presented as mail fraud and copyright infringement is not a predicate act under RICO. Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir.1996). Further, since plaintiff has failed to show that Dylan copied any of his work, he cannot show that the dissemination of Dylan's recordings or the statements contained therein were in any way fraudulent. Summary judgment is therefore granted on plaintiff's RICO claims.
3. State Claims
Defendants argue that plaintiff's state claims are pre-empted by the federal copyright law. Plaintiff does not respond to the pre-emption argument.
Section 301 of the copyright act explicitly preempts state laws that (1) fall within the subject matter of the federal copyright law and protect works that are fixed in tangible medium of expression; and (2) create legal or equitable rights that are equivalent to any of the exclusive rights granted to the copyright holder and specified in Section 106. Jarvis, 827 F.Supp. at 296.
Insofar as any of plaintiff's state claims turn on the alleged unauthorized copying or use of his lyrics and music, they are preempted by federal copyright law. As an initial matter, the court notes that plaintiff has not attempted to argue that his state claims arise from anything other than the alleged theft of his songs by Bob Dylan.
a. Misappropriation of Property
Plaintiff's misappropriation claim is based on the alleged unauthorized use of plaintiff's materials by Bob Dylan. This claim is equivalent to plaintiff's copyright infringement claim and thus is pre-empted.
b. Breach of Confidence and Fraud
Without reaching the question of pre-emption on plaintiff's final state law claims, the court finds that plaintiff has failed to establish either claim. First, plaintiff has offered no proof to show that defendants owed him any duty or that such a duty could have been breached by their actions. Second, plaintiff has failed to establish a claim for fraud, especially to the degree of specificity required by Rule 9(b), Fed.R.Civ.P. Plaintiff has not produced any proof of direct misrepresentations by defendants. At best, this court will accept as true plaintiff's allegation that Sony represented to him that he would be credited and compensated if Dylan used his work. Plaintiff, however, has failed to show that his work was ever used, incorporated or copied by Dylan.
Plaintiff's state claims therefore fail as a matter of law and summary judgment will be entered in favor of defendants.
E. Plaintiff's Appeal of Judge Rosen's Orders
As a final matter, this court reserved decision on plaintiff's appeal of Judge Rosen's August 6, 1996, Orders pending the outcome of defendant's summary judgment motion. These appeals assert that Judge Rosen erred in denying plaintiff access to information related to data about the sales of Dylan's songs and about Dylan's alleged motive to copy the works of others. See Damiano v. Sony Music Entertainment, Inc., 168 F.R.D. 485 (D.N.J.1996). Neither issue pertains to the questions decided herein, which are dispositive of the case. The granting of summary judgment in favor of defendants renders plaintiff's appeal moot.
633*633 III. Conclusion
For the reasons set forth above, summary judgment is granted for defendants on all counts of plaintiff's complaint. Defendants have fourteen days to apply for Rule 11 sanctions or statutory attorney's fees as detailed in part I of this Opinion. The appeal of Magistrate Judge Rosen's Orders of August 6, 1996, is dismissed as moot.
The accompanying Order has been entered.
ORDER
This matter having come before the court upon the defendants, motion for summary judgment; and the court having considered the submissions of the parties and heard oral argument on the matter; and for the reasons set forth in the Opinion of today's date;
It is this 16th day of December, 1996, hereby
ORDERED that the defendants' motion for summary judgment be, and hereby is GRANTED as to all counts of plaintiff's complaint; and it is
FURTHER ORDERED that plaintiff's appeal of Judge Rosen's Orders of August 6, 1996, be and hereby, is DISMISSED as moot; and it is
FURTHER ORDERED that any motion for statutory attorney's fees or Rule 11 sanctions shall be filed within 14 days of the entry of this Order.
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 625). 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 627).
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 634*634 for reconsideration.[1] 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 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 than 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 630). 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 Associates 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 635*635 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 631). 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 "[w]e 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 631). 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 Cos., 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. 636*636 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 628). 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 637*637 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 629). 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 627, 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 627).
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 638*638 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 632). 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 632).
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.[2]
An appropriate order follows.
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., 639*639 and/or for statutory attorney's fees shall be filed within twenty (20) days hereof.
[*] On April 24, 1997, the Supreme Court of New Jersey suspended Steven M. Kramer from the practice of law, for reasons not related to this case, for a period of six months effective May 16, 1997. In the Matter of Steven M. Kramer, An Attorney at Law, 149 N.J. 19, 691 A.2d 816 (1997). This court has not entered a suspension order for reciprocal discipline as of today's date.
[1] For example, in what appears to be plaintiff's strongest claim, he sets forth the lyrics of his purported work "Only God Knows" as compared to Dylan's "God Knows."
Damiano lyrics Dylan lyrics
Only God knows the hurt God knows you ain't pretty Only God knows the pain God knows it's true, Only God knows the struggle God knows there ain't anybody, Of the misery that you claim Ever gonna take the place of you Only God knows the anguish God knows it's a struggle, Only God knows the faith God knows it's a crime, Only God knows the truth God knows there gonna be no more Of the secrets of your fate Water for fire the next time, A different form a treason God don't call it treason, A different type of hypocrisy God don't call it wrong, Not your usual form It was supposed to last a season of adulturism or betrayal But it's been so strong, Of intimacy For so long, Only God knows the reason God knows it's fragile, Only God knows what's wrong God knows everything, Only God knows how fragile it is ... God knows there's a river, Only God knows how strong God knows how to make it flow, He made the winding rivers ... God knows there's a purpose You can watch them flow Faith is your reason Belief your purpose Don't tell me you Didn't know. Although these two works do appear to be similar as presented in the complaint, discovery has revealed that plaintiff never sought a copyright for the purported work "Only God Knows" before initiating this litigation. Only the lyrics that have here been placed into boldface had previously even existed and been copyrighted — as verses in other songs. Indeed, the court suspects that any similarity between these two songs is the result of an appropriation of Dylan's work by Damiano, not the other way around.
[2] The following verses composed by plaintiff were presented in his complaint as infringed lyrics but not addressed after defendants' motion for summary judgment:
1. "I'm not sure of anything half the time anymore"
2. "A cloud of confusion filled the room to thick to withstand"
3. "Against the pale blue sky"
4. "Sunbird up in the sky/Sunbird your flyin to high"
5. "Born are new ideas" "Against the pale blue sky"
6. "Lost days and forgotten years"
[3] Defendants submit that the following lyrics were not found in any of the Damiano works in the record:
Damiano lyric Dylan lyric
1. "buried inside" "buried deep down inside"
2. "Wanna try and help mankind" "I can smile in the face "I can smile in the face of mankind" of reality"
3. "Conceit is a disease" "Conceit is a disease"
4. multiple lines from multiple lines from purported work, Dylan's song, Only God Knows God Knows [4] The first five lyrics listed are those designated by plaintiff's attorney at oral argument as plaintiff's "Top Five" claims.
[5] As an example of how plaintiff misrepresents and alters Dylan's lyrics, these two lines from Dylan's song "Most of the Time" are presented in the complaint as if they follow one another in the song. In reality, the lines are separated by over one hundred words.
[6] Plaintiff incorrectly asserts that Dylan changed the lyric in the 1994 re-release of his song, "With God On Our Side," originally composed and copyrighted in 1963, from "kiss" to "king," thereby repeating the historical error made by Damiano in his untitled song. A review of Dylan's song reveals that the lyric is actually still "kiss." (Defendants' exhibits 64 and 66; Dylan's "Unplugged" CD and video).
[1] Effective April 1, 1997, General Rule 121, which previously governed motions for reargument, was renumbered Rule 7.1(g). The language of General Rule 121 was not altered in Rule 7.1(g).
[2] Defendants' initial application for summary judgment on the merits was accompanied by an application for dismissal as a sanction under Rule 11, Fed.R.Civ.P., for the filing of a complaint not well-grounded in fact or law. (See Op. filed Dec. 16, 1996, at 625-26). The court deferred consideration of Rule 11 sanctions and/or for attorney's fees under Rule 11 or under the less demanding standard of the Copyright Act, 17 U.S.C. § 505, until such an application could be filed, within fourteen days thereafter. (Id. at 626). When defendants sought to enlarge the period to seek attorney's fees because of the prospect that plaintiff would be seeking reconsideration, the court extended the application deadline until fourteen (14) days after decision of any reconsideration motion, which is now further enlarged to give sufficient time to include costs and fees expended in defense of this reconsideration motion as well. |
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Date: July 7th, 2012 4:30 PM James DAMIANO, Plaintiff, v. SONY MUSIC ENTERTAINMENT, INC., and Bob Dylan, Defendants.
Civ. A. No. 95-4795(JBS). United States District Court, D. New Jersey.
December 16, 1996. Opinion Denying Reconsideration August 20, 1997. 624*624 625*625 Steven M. Kramer,[*] Steven M. Kramer & Associates, New York City, for Plaintiff.
Steven D. Johnson, Hecker, Brown, Sherry & Johnson, Haddonfield, NJ, Stephen M. Hayes, Orin Snyder, Parcher, Hayes & Liebman, New York City, for Defendants.
OPINION
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).[1] Defendants seek judgment on the merits, as well as dismissal as a sanction under Rule 11, Fed.R.Civ.P., 626*626 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. § 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, 104 S.Ct. 2144, 79 L.Ed.2d 910 (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, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Supreme Court decisions mandate that: "[w]hen 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, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (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. at 248, 106 S.Ct. at 2510). 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 meta-physical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (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, 106 S.Ct. at 2511.
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 627*627 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.[2] 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 Associates v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.), cert, denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (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.[3]
Plaintiff has not presented evidence to the contrary, but merely asserts that "[p]laintiff has registered almost all of his works" and the rest will be registered prior to this court's decision. (Pl. Br. at 25) (emphasis added). Specifically, plaintiff alleges that his work "Only God Knows," which contains several lines that are allegedly infringed by Dylan's "God Knows," and the lyric "Conceit 628*628 is a disease" were in the process of being copyrighted at the time he submitted his opposition brief. Defendants, however, dispute the accuracy of this assertion and argue that a search of U.S. Copyright Office records revealed no new registrations by Damiano in 1996. (Def. Reply Br. at 5). Further, plaintiff has failed to produce any proof of filing to support his claim of pending registration for the two sets of lyrics in question. See Wilson v. Mr. Tee's, 855 F.Supp. 679, 682 (D.N.J.1994). Thus, summary judgment will be granted for these lyric infringement claims since plaintiff has failed to establish a prima facie case of infringement.
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:[4]
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"[5]
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]"[6]
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 On the door to hell" from hell goes rolling by"
9. "No one to run from "I don't cheat on myself And no reason to hide" I don't run and hide"
10. "I can pretend" "I don't pretend" 629*629 11. "Maybe there's a reason for "God knows there's a purpose" a purpose"
12. "What good is a man" "What good am I" a. Originality
A key point in this case is the disagreement between the parties as to the amount of originality needed for a work to be copyrightable. Plaintiff contends that "just a dash" will suffice. See Universal Athletic Sales Co., 511 F.2d at 908 ("[E]ven a modicum of creativity may suffice for a work to be protected."). Defendants, however, argue that the common words and phrases and cliches used in plaintiff's lyrics are not subject to copyright protection. See Jarvis, 827 F.Supp. at 291 (citing Perma Greetings, Inc. v. Russ Berrie & Co., Inc., 598 F.Supp. 445, 448 (E.D.Mo.1984)); O'Brien v. Chappel & Co., 159 F.Supp. 58 (S.D.N.Y.1958) (holding that phrase "night and noon" is not protectible).
Plaintiff relies on the decision in Jarvis v. A & M Records, for the proposition that even common words can be protected if placed in a certain arrangement. For example, he argues that coupling the word "stumble" with the word "lips" creates a sufficiently original arrangement of otherwise trite words. Likewise, plaintiff argues that an arrangement combining the cliche "truer words have not been spoken" with the word "broken" is creative enough to be worthy of protection. Thus, plaintiff concludes, Bob Dylan cannot subsequently use the same pairs of words or phrases together in a lyric, even if separated by many intervening lines and ideas in some instances, without infringing plaintiff's original work.
The law of copyright does not support the logical extension of plaintiff's theory. In effect, he asks us to grant him a monopoly over the use of common combinations of words such as "bell" and "hell," "run" and "hide," or "mind" and "behind" merely because they are found together in a single song — regardless of context or placement within the song. Such a result would not only stifle creativity, it would contravene the very policy behind copyright law and the rule requiring sufficient originality for a work to be protected. As the Jarvis court noted, "the policy behind the rule is to prevent a deterring effect on the creations of new works because of author's fears of copying innocuous segments." Jarvis, 827 F.Supp. at 291. Indeed, the law of copyright has absolutely no interest in tying up random, fortuitous combinations of words.
Additionally, the court notes that plaintiff's reliance on Jarvis is misplaced. In that case, the defendants admitted to copying elements of the plaintiff's song via digital sampling. Since sections of the plaintiff's work were actually reproduced and used in the infringing work, there was no question as to whether the arrangement was similar — it was identical. Unlike in the present case, "the precise relationship of the phrases vis a vis each other was copied." Id. at 292 (emphasis in original). Thus, the issue was not simply whether the common words "move" and "free your body" were protectible in a given arrangement, but rather, whether the copying was qualitatively or quantitatively sufficient to constitute an appropriation of plaintiff's work. The defendants in Jarvis raised a fact question on that issue and so summary judgment was denied.
In this case, copying has not been conceded, and the question of whether plaintiff's arrangement of common words and phrases is distinctive enough to deserve protection is at the heart of the parties' dispute. Even if copying were conceded as in Jarvis plaintiff would not survive summary judgment because no reasonable jury could conclude that the words and phrases allegedly copied by Dylan were quantitatively or qualitatively important to the whole of plaintiff's allegedly infringed works. The words and phrases in question comprise nothing more 630*630 than a single line or two of an entire song, and the songs themselves provide completely different contexts for the allegedly infringed words and phrases. Further, when taken as a whole, no jury could find substantial similarity between the lyrics of Damiano and Dylan. Summary judgment is appropriate in copyright actions based on lyrics where no reasonable jury could find substantial similarity between the works at issue. Nelson v. PRN Productions, Inc., 873 F.2d 1141 (8th Cir.) (trial court carefully studied lyrics involved and determined that reasonable minds could not differ as to absence of substantial similarity), cert. denied, 493 U.S. 994, 110 S.Ct. 544, 107 L.Ed.2d 541 (1989). The issue of substantial similarity need not be reached here, however, because plaintiff fails to demonstrate a threshold of originality of his lyrics.
Insofar as the infringement of plaintiff's lyrics depends on there being some protectible element in his work, plaintiff cannot establish a copyright action. The lyrics he claims were infringed are nothing more than unprotectible phrases and cliches, and even when taken as a whole, they are not substantially similar to Dylan's work. Thus, summary judgment is granted on plaintiff's lyric claims, without the need to reach any additional elements comprising an infringement action.
C. Plaintiff's Music Infringement Claim
In addition to his lyric infringement claims, plaintiff asserts infringement of his instrumental composition, "Steel Guitars," by Dylan's "Dignity."
1. Ownership
There has been a fair amount of confusion concerning the registration of plaintiff's song. Plaintiff produced during discovery a tape, marked as Exhibit 71 of defendants' moving papers, which contained the song he called "Steel Guitars." (Exhibit 71 version). That song has been analyzed by both parties' experts and compared to "Dignity."
Defendants now contend, however, that the Exhibit 71 version of "Steel Guitars" was never registered with the Copyright Office. Plaintiff claims to have submitted a tape for registration in 1988, marked PAU X-XXX-XXX, which, according to plaintiff's attorney, contains "Steel Guitars" as the last song on side B. (Copyright tape version). The version of "Steel Guitars" on the copyright tape, however, is not the same as the one on Exhibit 71. While there are common elements in the two versions, they are certainly not identical. Because of the confusion, the court has considered both versions of the allegedly infringed song.
First, the court notes that the Exhibit 71 version cannot be the basis of an infringement claim because plaintiff is unable to show that the work was registered with the Copyright Office. Thus, he has failed to establish a prima facie case of musical infringement for that version of "Steel Guitars." The Copyright tape version, on the other hand, although not originally identified as infringed work, apparently was registered. The court will therefore analyze the remaining elements of an infringement claim for the registered version only.
2. Copying
Since there is no direct proof of copying in this case, plaintiff may establish copying if he can show (a) defendants' access to the copyrighted work; and (b) substantial similarity between the works to support an inference of unlawful copying. 827 F.Supp. at 289 (citing Whelan Associates, Inc., 797 F.2d at 1232).
a. Access
Plaintiff asserts that "the bulk of his life's work" was submitted to Sony beginning in 1982. (Compl. at 2). He also alleges that he was told to bring his songs to several concerts which he attended courtesy of Sony. Plaintiff has produced evidence that after these concerts, he was allowed backstage and gave his work to Dylan or his agents. (Damiano Decl. at ¶¶ 2, 5; Dep. of Pam Damiano at 77-84, 97-104; Dep. of Brad Wright at 105-112). Taking these allegations as true, plaintiff has demonstrated a genuine issue of material fact as to whether defendants had access to his work.
631*631 b. Similarity to Infer Copying
In addition to showing defendants' access to his work, plaintiff must also show that his song and Dylan's song were substantially similar in order to infer that copying occurred. This is the so-called "extrinsic test" of substantial similarity, which calls for a dissection of the musical structure of the two pieces in search of objective similarities. Expert testimony is permitted, and often useful, in establishing substantial similarity at this phase of the inquiry. Although both sides retained experts for the comparison of plaintiff's "Steel Guitars" to Dylan's "Dignity," the experts analyzed the irrelevant Exhibit 71 version and not the one on the Copyright tape. Plaintiff's expert concluded that the melody of "Dignity" and plaintiff's Exhibit 71 version were thirty-two percent similar. Since the two versions of "Steel Guitars" are themselves different, however, the court will not consider the expert testimony as it might apply to the Copyright tape version. Without the benefit of expert testimony or other evidence specific to the Copyright tape version of plaintiff's song, the court must engage its own analysis of the components of the songs. To the ear of this court, there is no substantial similarity in the structure, instrumentation or melody of the two songs. These songs "speak" for themselves and no reasonable factfinder could find substantial similarity.
Although this alone would dispose of plaintiff's musical infringement claim, the court will continue so as to complete this analysis.
3. Substantial Similarity to Show Appropriation
The final step of an infringement analysis is the so-called intrinsic test of substantial similarity which seeks the response of a lay person to the "total concept and feel" of the two songs at issue. See Whelan, 797 F.2d at 1234. "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 Cos., 654 F.2d 204, 208 (2d Cir.1981).
After listening several times to both Dylan's "Dignity" and plaintiff's "Steel Guitars" as it appears on the Copyright tape, this court is convinced that no reasonable juror could find the two songs substantially similar in total concept and feel. Plaintiff's song, an instrumental, consists of two guitars — one that plays a fairly repetitious baseline, and one that plays a seemingly improvised free melody. Dylan's song has full instrumentation and accompanying lyrics. The overall effect of the two pieces is quite dissimilar — put simply, they just don't sound alike. The lack of substantial similarity necessarily leads to a conclusion that Bob Dylan did not improperly appropriate plaintiff's work and thus ends the analysis of plaintiff's music infringement claim. Summary judgment will be granted in favor of defendants as to all of plaintiff's copyright infringement claims.
D. Plaintiff's Remaining Claims
Mr. Damiano also asserts federal claims under the Lanham Act and RICO, and state law claims on the theories of fraud, breach of confidence and misappropriation. To the extent that they all are based on the alleged plagiarism or theft of plaintiff's work by Bob Dylan, the dismissal of his copyright infringement claim mandates dismissal of the others since Damiano cannot establish that Dylan copied or even used any of his work.
Defendants also raise additional grounds for dismissal of plaintiff's accompanying federal and state law claims.
1. Lanham Act
Plaintiff's claim here revolves around the contention that he is the "co-author" of works that Dylan has falsely designated as his own, thus misleading the public and depriving Damiano of proper credit for his work. Although, as plaintiff points out, the elements of copyright infringement and Lanham Act claims are somewhat different, the fact that Damiano cannot establish that his work was copied by Dylan surely precludes a reasonable juror from finding that the two coauthored 632*632 any works. Plaintiff has failed to present any evidence that would support his Lanham Act claim, and thus, summary judgment will be granted in favor of the defendants.
2. RICO
Plaintiff alleges that defendants engaged in "massive mail fraud" by putting into interstate commerce recordings containing fraudulent statements, namely, that Bob Dylan created songs on the recordings which were actually created by plaintiff.
Plaintiff's RICO claims must fail because they are actually nothing more than copyright infringement claims presented as mail fraud and copyright infringement is not a predicate act under RICO. Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir.1996). Further, since plaintiff has failed to show that Dylan copied any of his work, he cannot show that the dissemination of Dylan's recordings or the statements contained therein were in any way fraudulent. Summary judgment is therefore granted on plaintiff's RICO claims.
3. State Claims
Defendants argue that plaintiff's state claims are pre-empted by the federal copyright law. Plaintiff does not respond to the pre-emption argument.
Section 301 of the copyright act explicitly preempts state laws that (1) fall within the subject matter of the federal copyright law and protect works that are fixed in tangible medium of expression; and (2) create legal or equitable rights that are equivalent to any of the exclusive rights granted to the copyright holder and specified in Section 106. Jarvis, 827 F.Supp. at 296.
Insofar as any of plaintiff's state claims turn on the alleged unauthorized copying or use of his lyrics and music, they are preempted by federal copyright law. As an initial matter, the court notes that plaintiff has not attempted to argue that his state claims arise from anything other than the alleged theft of his songs by Bob Dylan.
a. Misappropriation of Property
Plaintiff's misappropriation claim is based on the alleged unauthorized use of plaintiff's materials by Bob Dylan. This claim is equivalent to plaintiff's copyright infringement claim and thus is pre-empted.
b. Breach of Confidence and Fraud
Without reaching the question of pre-emption on plaintiff's final state law claims, the court finds that plaintiff has failed to establish either claim. First, plaintiff has offered no proof to show that defendants owed him any duty or that such a duty could have been breached by their actions. Second, plaintiff has failed to establish a claim for fraud, especially to the degree of specificity required by Rule 9(b), Fed.R.Civ.P. Plaintiff has not produced any proof of direct misrepresentations by defendants. At best, this court will accept as true plaintiff's allegation that Sony represented to him that he would be credited and compensated if Dylan used his work. Plaintiff, however, has failed to show that his work was ever used, incorporated or copied by Dylan.
Plaintiff's state claims therefore fail as a matter of law and summary judgment will be entered in favor of defendants.
E. Plaintiff's Appeal of Judge Rosen's Orders
As a final matter, this court reserved decision on plaintiff's appeal of Judge Rosen's August 6, 1996, Orders pending the outcome of defendant's summary judgment motion. These appeals assert that Judge Rosen erred in denying plaintiff access to information related to data about the sales of Dylan's songs and about Dylan's alleged motive to copy the works of others. See Damiano v. Sony Music Entertainment, Inc., 168 F.R.D. 485 (D.N.J.1996). Neither issue pertains to the questions decided herein, which are dispositive of the case. The granting of summary judgment in favor of defendants renders plaintiff's appeal moot.
633*633 III. Conclusion
For the reasons set forth above, summary judgment is granted for defendants on all counts of plaintiff's complaint. Defendants have fourteen days to apply for Rule 11 sanctions or statutory attorney's fees as detailed in part I of this Opinion. The appeal of Magistrate Judge Rosen's Orders of August 6, 1996, is dismissed as moot.
The accompanying Order has been entered.
ORDER
This matter having come before the court upon the defendants, motion for summary judgment; and the court having considered the submissions of the parties and heard oral argument on the matter; and for the reasons set forth in the Opinion of today's date;
It is this 16th day of December, 1996, hereby
ORDERED that the defendants' motion for summary judgment be, and hereby is GRANTED as to all counts of plaintiff's complaint; and it is
FURTHER ORDERED that plaintiff's appeal of Judge Rosen's Orders of August 6, 1996, be and hereby, is DISMISSED as moot; and it is
FURTHER ORDERED that any motion for statutory attorney's fees or Rule 11 sanctions shall be filed within 14 days of the entry of this Order.
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 625). 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 627).
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 634*634 for reconsideration.[1] 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 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 than 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 630). 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 Associates 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 635*635 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 631). 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 "[w]e 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 631). 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 Cos., 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. 636*636 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 628). 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 637*637 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 629). 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 627, 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 627).
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 638*638 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 632). 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 632).
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.[2]
An appropriate order follows.
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., 639*639 and/or for statutory attorney's fees shall be filed within twenty (20) days hereof.
[*] On April 24, 1997, the Supreme Court of New Jersey suspended Steven M. Kramer from the practice of law, for reasons not related to this case, for a period of six months effective May 16, 1997. In the Matter of Steven M. Kramer, An Attorney at Law, 149 N.J. 19, 691 A.2d 816 (1997). This court has not entered a suspension order for reciprocal discipline as of today's date.
[1] For example, in what appears to be plaintiff's strongest claim, he sets forth the lyrics of his purported work "Only God Knows" as compared to Dylan's "God Knows."
Damiano lyrics Dylan lyrics
Only God knows the hurt God knows you ain't pretty Only God knows the pain God knows it's true, Only God knows the struggle God knows there ain't anybody, Of the misery that you claim Ever gonna take the place of you Only God knows the anguish God knows it's a struggle, Only God knows the faith God knows it's a crime, Only God knows the truth God knows there gonna be no more Of the secrets of your fate Water for fire the next time, A different form a treason God don't call it treason, A different type of hypocrisy God don't call it wrong, Not your usual form It was supposed to last a season of adulturism or betrayal But it's been so strong, Of intimacy For so long, Only God knows the reason God knows it's fragile, Only God knows what's wrong God knows everything, Only God knows how fragile it is ... God knows there's a river, Only God knows how strong God knows how to make it flow, He made the winding rivers ... God knows there's a purpose You can watch them flow Faith is your reason Belief your purpose Don't tell me you Didn't know. Although these two works do appear to be similar as presented in the complaint, discovery has revealed that plaintiff never sought a copyright for the purported work "Only God Knows" before initiating this litigation. Only the lyrics that have here been placed into boldface had previously even existed and been copyrighted — as verses in other songs. Indeed, the court suspects that any similarity between these two songs is the result of an appropriation of Dylan's work by Damiano, not the other way around.
[2] The following verses composed by plaintiff were presented in his complaint as infringed lyrics but not addressed after defendants' motion for summary judgment:
1. "I'm not sure of anything half the time anymore"
2. "A cloud of confusion filled the room to thick to withstand"
3. "Against the pale blue sky"
4. "Sunbird up in the sky/Sunbird your flyin to high"
5. "Born are new ideas" "Against the pale blue sky"
6. "Lost days and forgotten years"
[3] Defendants submit that the following lyrics were not found in any of the Damiano works in the record:
Damiano lyric Dylan lyric
1. "buried inside" "buried deep down inside"
2. "Wanna try and help mankind" "I can smile in the face "I can smile in the face of mankind" of reality"
3. "Conceit is a disease" "Conceit is a disease"
4. multiple lines from multiple lines from purported work, Dylan's song, Only God Knows God Knows [4] The first five lyrics listed are those designated by plaintiff's attorney at oral argument as plaintiff's "Top Five" claims.
[5] As an example of how plaintiff misrepresents and alters Dylan's lyrics, these two lines from Dylan's song "Most of the Time" are presented in the complaint as if they follow one another in the song. In reality, the lines are separated by over one hundred words.
[6] Plaintiff incorrectly asserts that Dylan changed the lyric in the 1994 re-release of his song, "With God On Our Side," originally composed and copyrighted in 1963, from "kiss" to "king," thereby repeating the historical error made by Damiano in his untitled song. A review of Dylan's song reveals that the lyric is actually still "kiss." (Defendants' exhibits 64 and 66; Dylan's "Unplugged" CD and video).
[1] Effective April 1, 1997, General Rule 121, which previously governed motions for reargument, was renumbered Rule 7.1(g). The language of General Rule 121 was not altered in Rule 7.1(g).
[2] Defendants' initial application for summary judgment on the merits was accompanied by an application for dismissal as a sanction under Rule 11, Fed.R.Civ.P., for the filing of a complaint not well-grounded in fact or law. (See Op. filed Dec. 16, 1996, at 625-26). The court deferred consideration of Rule 11 sanctions and/or for attorney's fees under Rule 11 or under the less demanding standard of the Copyright Act, 17 U.S.C. § 505, until such an application could be filed, within fourteen days thereafter. (Id. at 626). When defendants sought to enlarge the period to seek attorney's fees because of the prospect that plaintiff would be seeking reconsideration, the court extended the application deadline until fourteen (14) days after decision of any reconsideration motion, which is now further enlarged to give sufficient time to include costs and fees expended in defense of this reconsideration motion as well. |
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Date: July 7th, 2012 5:07 PM lets compare the Sic Opinion to the actual facts of the case give me a minute to find the link. He's going to love you. If Orin Snyder and six 5th Avenue Law Firms couldn't defend Dylan how are you going to. Excuse me be right back |
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Date: July 7th, 2012 5:51 PM James DAMIANO, Plaintiff, v. SONY MUSIC ENTERTAINMENT, INC., and Bob Dylan, Defendants.
Civ. A. No. 95-4795(JBS). United States District Court, D. New Jersey.
December 16, 1996. Opinion Denying Reconsideration August 20, 1997. 624*624 625*625 Steven M. Kramer,[*] Steven M. Kramer & Associates, New York City, for Plaintiff.
Steven D. Johnson, Hecker, Brown, Sherry & Johnson, Haddonfield, NJ, Stephen M. Hayes, Orin Snyder, Parcher, Hayes & Liebman, New York City, for Defendants.
OPINION
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).[1] Defendants seek judgment on the merits, as well as dismissal as a sanction under Rule 11, Fed.R.Civ.P., 626*626 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. § 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, 104 S.Ct. 2144, 79 L.Ed.2d 910 (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, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Supreme Court decisions mandate that: "[w]hen 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, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (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. at 248, 106 S.Ct. at 2510). 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 meta-physical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (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, 106 S.Ct. at 2511.
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 627*627 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.[2] 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 Associates v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.), cert, denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (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.[3]
Plaintiff has not presented evidence to the contrary, but merely asserts that "[p]laintiff has registered almost all of his works" and the rest will be registered prior to this court's decision. (Pl. Br. at 25) (emphasis added). Specifically, plaintiff alleges that his work "Only God Knows," which contains several lines that are allegedly infringed by Dylan's "God Knows," and the lyric "Conceit 628*628 is a disease" were in the process of being copyrighted at the time he submitted his opposition brief. Defendants, however, dispute the accuracy of this assertion and argue that a search of U.S. Copyright Office records revealed no new registrations by Damiano in 1996. (Def. Reply Br. at 5). Further, plaintiff has failed to produce any proof of filing to support his claim of pending registration for the two sets of lyrics in question. See Wilson v. Mr. Tee's, 855 F.Supp. 679, 682 (D.N.J.1994). Thus, summary judgment will be granted for these lyric infringement claims since plaintiff has failed to establish a prima facie case of infringement.
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:[4]
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"[5]
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]"[6]
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 On the door to hell" from hell goes rolling by"
9. "No one to run from "I don't cheat on myself And no reason to hide" I don't run and hide"
10. "I can pretend" "I don't pretend" 629*629 11. "Maybe there's a reason for "God knows there's a purpose" a purpose"
12. "What good is a man" "What good am I" a. Originality
A key point in this case is the disagreement between the parties as to the amount of originality needed for a work to be copyrightable. Plaintiff contends that "just a dash" will suffice. See Universal Athletic Sales Co., 511 F.2d at 908 ("[E]ven a modicum of creativity may suffice for a work to be protected."). Defendants, however, argue that the common words and phrases and cliches used in plaintiff's lyrics are not subject to copyright protection. See Jarvis, 827 F.Supp. at 291 (citing Perma Greetings, Inc. v. Russ Berrie & Co., Inc., 598 F.Supp. 445, 448 (E.D.Mo.1984)); O'Brien v. Chappel & Co., 159 F.Supp. 58 (S.D.N.Y.1958) (holding that phrase "night and noon" is not protectible).
Plaintiff relies on the decision in Jarvis v. A & M Records, for the proposition that even common words can be protected if placed in a certain arrangement. For example, he argues that coupling the word "stumble" with the word "lips" creates a sufficiently original arrangement of otherwise trite words. Likewise, plaintiff argues that an arrangement combining the cliche "truer words have not been spoken" with the word "broken" is creative enough to be worthy of protection. Thus, plaintiff concludes, Bob Dylan cannot subsequently use the same pairs of words or phrases together in a lyric, even if separated by many intervening lines and ideas in some instances, without infringing plaintiff's original work.
The law of copyright does not support the logical extension of plaintiff's theory. In effect, he asks us to grant him a monopoly over the use of common combinations of words such as "bell" and "hell," "run" and "hide," or "mind" and "behind" merely because they are found together in a single song — regardless of context or placement within the song. Such a result would not only stifle creativity, it would contravene the very policy behind copyright law and the rule requiring sufficient originality for a work to be protected. As the Jarvis court noted, "the policy behind the rule is to prevent a deterring effect on the creations of new works because of author's fears of copying innocuous segments." Jarvis, 827 F.Supp. at 291. Indeed, the law of copyright has absolutely no interest in tying up random, fortuitous combinations of words.
Additionally, the court notes that plaintiff's reliance on Jarvis is misplaced. In that case, the defendants admitted to copying elements of the plaintiff's song via digital sampling. Since sections of the plaintiff's work were actually reproduced and used in the infringing work, there was no question as to whether the arrangement was similar — it was identical. Unlike in the present case, "the precise relationship of the phrases vis a vis each other was copied." Id. at 292 (emphasis in original). Thus, the issue was not simply whether the common words "move" and "free your body" were protectible in a given arrangement, but rather, whether the copying was qualitatively or quantitatively sufficient to constitute an appropriation of plaintiff's work. The defendants in Jarvis raised a fact question on that issue and so summary judgment was denied.
In this case, copying has not been conceded, and the question of whether plaintiff's arrangement of common words and phrases is distinctive enough to deserve protection is at the heart of the parties' dispute. Even if copying were conceded as in Jarvis plaintiff would not survive summary judgment because no reasonable jury could conclude that the words and phrases allegedly copied by Dylan were quantitatively or qualitatively important to the whole of plaintiff's allegedly infringed works. The words and phrases in question comprise nothing more 630*630 than a single line or two of an entire song, and the songs themselves provide completely different contexts for the allegedly infringed words and phrases. Further, when taken as a whole, no jury could find substantial similarity between the lyrics of Damiano and Dylan. Summary judgment is appropriate in copyright actions based on lyrics where no reasonable jury could find substantial similarity between the works at issue. Nelson v. PRN Productions, Inc., 873 F.2d 1141 (8th Cir.) (trial court carefully studied lyrics involved and determined that reasonable minds could not differ as to absence of substantial similarity), cert. denied, 493 U.S. 994, 110 S.Ct. 544, 107 L.Ed.2d 541 (1989). The issue of substantial similarity need not be reached here, however, because plaintiff fails to demonstrate a threshold of originality of his lyrics.
Insofar as the infringement of plaintiff's lyrics depends on there being some protectible element in his work, plaintiff cannot establish a copyright action. The lyrics he claims were infringed are nothing more than unprotectible phrases and cliches, and even when taken as a whole, they are not substantially similar to Dylan's work. Thus, summary judgment is granted on plaintiff's lyric claims, without the need to reach any additional elements comprising an infringement action.
C. Plaintiff's Music Infringement Claim
In addition to his lyric infringement claims, plaintiff asserts infringement of his instrumental composition, "Steel Guitars," by Dylan's "Dignity."
1. Ownership
There has been a fair amount of confusion concerning the registration of plaintiff's song. Plaintiff produced during discovery a tape, marked as Exhibit 71 of defendants' moving papers, which contained the song he called "Steel Guitars." (Exhibit 71 version). That song has been analyzed by both parties' experts and compared to "Dignity."
Defendants now contend, however, that the Exhibit 71 version of "Steel Guitars" was never registered with the Copyright Office. Plaintiff claims to have submitted a tape for registration in 1988, marked PAU X-XXX-XXX, which, according to plaintiff's attorney, contains "Steel Guitars" as the last song on side B. (Copyright tape version). The version of "Steel Guitars" on the copyright tape, however, is not the same as the one on Exhibit 71. While there are common elements in the two versions, they are certainly not identical. Because of the confusion, the court has considered both versions of the allegedly infringed song.
First, the court notes that the Exhibit 71 version cannot be the basis of an infringement claim because plaintiff is unable to show that the work was registered with the Copyright Office. Thus, he has failed to establish a prima facie case of musical infringement for that version of "Steel Guitars." The Copyright tape version, on the other hand, although not originally identified as infringed work, apparently was registered. The court will therefore analyze the remaining elements of an infringement claim for the registered version only.
2. Copying
Since there is no direct proof of copying in this case, plaintiff may establish copying if he can show (a) defendants' access to the copyrighted work; and (b) substantial similarity between the works to support an inference of unlawful copying. 827 F.Supp. at 289 (citing Whelan Associates, Inc., 797 F.2d at 1232).
a. Access
Plaintiff asserts that "the bulk of his life's work" was submitted to Sony beginning in 1982. (Compl. at 2). He also alleges that he was told to bring his songs to several concerts which he attended courtesy of Sony. Plaintiff has produced evidence that after these concerts, he was allowed backstage and gave his work to Dylan or his agents. (Damiano Decl. at ¶¶ 2, 5; Dep. of Pam Damiano at 77-84, 97-104; Dep. of Brad Wright at 105-112). Taking these allegations as true, plaintiff has demonstrated a genuine issue of material fact as to whether defendants had access to his work.
631*631 b. Similarity to Infer Copying
In addition to showing defendants' access to his work, plaintiff must also show that his song and Dylan's song were substantially similar in order to infer that copying occurred. This is the so-called "extrinsic test" of substantial similarity, which calls for a dissection of the musical structure of the two pieces in search of objective similarities. Expert testimony is permitted, and often useful, in establishing substantial similarity at this phase of the inquiry. Although both sides retained experts for the comparison of plaintiff's "Steel Guitars" to Dylan's "Dignity," the experts analyzed the irrelevant Exhibit 71 version and not the one on the Copyright tape. Plaintiff's expert concluded that the melody of "Dignity" and plaintiff's Exhibit 71 version were thirty-two percent similar. Since the two versions of "Steel Guitars" are themselves different, however, the court will not consider the expert testimony as it might apply to the Copyright tape version. Without the benefit of expert testimony or other evidence specific to the Copyright tape version of plaintiff's song, the court must engage its own analysis of the components of the songs. To the ear of this court, there is no substantial similarity in the structure, instrumentation or melody of the two songs. These songs "speak" for themselves and no reasonable factfinder could find substantial similarity.
Although this alone would dispose of plaintiff's musical infringement claim, the court will continue so as to complete this analysis.
3. Substantial Similarity to Show Appropriation
The final step of an infringement analysis is the so-called intrinsic test of substantial similarity which seeks the response of a lay person to the "total concept and feel" of the two songs at issue. See Whelan, 797 F.2d at 1234. "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 Cos., 654 F.2d 204, 208 (2d Cir.1981).
After listening several times to both Dylan's "Dignity" and plaintiff's "Steel Guitars" as it appears on the Copyright tape, this court is convinced that no reasonable juror could find the two songs substantially similar in total concept and feel. Plaintiff's song, an instrumental, consists of two guitars — one that plays a fairly repetitious baseline, and one that plays a seemingly improvised free melody. Dylan's song has full instrumentation and accompanying lyrics. The overall effect of the two pieces is quite dissimilar — put simply, they just don't sound alike. The lack of substantial similarity necessarily leads to a conclusion that Bob Dylan did not improperly appropriate plaintiff's work and thus ends the analysis of plaintiff's music infringement claim. Summary judgment will be granted in favor of defendants as to all of plaintiff's copyright infringement claims.
D. Plaintiff's Remaining Claims
Mr. Damiano also asserts federal claims under the Lanham Act and RICO, and state law claims on the theories of fraud, breach of confidence and misappropriation. To the extent that they all are based on the alleged plagiarism or theft of plaintiff's work by Bob Dylan, the dismissal of his copyright infringement claim mandates dismissal of the others since Damiano cannot establish that Dylan copied or even used any of his work.
Defendants also raise additional grounds for dismissal of plaintiff's accompanying federal and state law claims.
1. Lanham Act
Plaintiff's claim here revolves around the contention that he is the "co-author" of works that Dylan has falsely designated as his own, thus misleading the public and depriving Damiano of proper credit for his work. Although, as plaintiff points out, the elements of copyright infringement and Lanham Act claims are somewhat different, the fact that Damiano cannot establish that his work was copied by Dylan surely precludes a reasonable juror from finding that the two coauthored 632*632 any works. Plaintiff has failed to present any evidence that would support his Lanham Act claim, and thus, summary judgment will be granted in favor of the defendants.
2. RICO
Plaintiff alleges that defendants engaged in "massive mail fraud" by putting into interstate commerce recordings containing fraudulent statements, namely, that Bob Dylan created songs on the recordings which were actually created by plaintiff.
Plaintiff's RICO claims must fail because they are actually nothing more than copyright infringement claims presented as mail fraud and copyright infringement is not a predicate act under RICO. Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir.1996). Further, since plaintiff has failed to show that Dylan copied any of his work, he cannot show that the dissemination of Dylan's recordings or the statements contained therein were in any way fraudulent. Summary judgment is therefore granted on plaintiff's RICO claims.
3. State Claims
Defendants argue that plaintiff's state claims are pre-empted by the federal copyright law. Plaintiff does not respond to the pre-emption argument.
Section 301 of the copyright act explicitly preempts state laws that (1) fall within the subject matter of the federal copyright law and protect works that are fixed in tangible medium of expression; and (2) create legal or equitable rights that are equivalent to any of the exclusive rights granted to the copyright holder and specified in Section 106. Jarvis, 827 F.Supp. at 296.
Insofar as any of plaintiff's state claims turn on the alleged unauthorized copying or use of his lyrics and music, they are preempted by federal copyright law. As an initial matter, the court notes that plaintiff has not attempted to argue that his state claims arise from anything other than the alleged theft of his songs by Bob Dylan.
a. Misappropriation of Property
Plaintiff's misappropriation claim is based on the alleged unauthorized use of plaintiff's materials by Bob Dylan. This claim is equivalent to plaintiff's copyright infringement claim and thus is pre-empted.
b. Breach of Confidence and Fraud
Without reaching the question of pre-emption on plaintiff's final state law claims, the court finds that plaintiff has failed to establish either claim. First, plaintiff has offered no proof to show that defendants owed him any duty or that such a duty could have been breached by their actions. Second, plaintiff has failed to establish a claim for fraud, especially to the degree of specificity required by Rule 9(b), Fed.R.Civ.P. Plaintiff has not produced any proof of direct misrepresentations by defendants. At best, this court will accept as true plaintiff's allegation that Sony represented to him that he would be credited and compensated if Dylan used his work. Plaintiff, however, has failed to show that his work was ever used, incorporated or copied by Dylan.
Plaintiff's state claims therefore fail as a matter of law and summary judgment will be entered in favor of defendants.
E. Plaintiff's Appeal of Judge Rosen's Orders
As a final matter, this court reserved decision on plaintiff's appeal of Judge Rosen's August 6, 1996, Orders pending the outcome of defendant's summary judgment motion. These appeals assert that Judge Rosen erred in denying plaintiff access to information related to data about the sales of Dylan's songs and about Dylan's alleged motive to copy the works of others. See Damiano v. Sony Music Entertainment, Inc., 168 F.R.D. 485 (D.N.J.1996). Neither issue pertains to the questions decided herein, which are dispositive of the case. The granting of summary judgment in favor of defendants renders plaintiff's appeal moot.
633*633 III. Conclusion
For the reasons set forth above, summary judgment is granted for defendants on all counts of plaintiff's complaint. Defendants have fourteen days to apply for Rule 11 sanctions or statutory attorney's fees as detailed in part I of this Opinion. The appeal of Magistrate Judge Rosen's Orders of August 6, 1996, is dismissed as moot.
The accompanying Order has been entered.
ORDER
This matter having come before the court upon the defendants, motion for summary judgment; and the court having considered the submissions of the parties and heard oral argument on the matter; and for the reasons set forth in the Opinion of today's date;
It is this 16th day of December, 1996, hereby
ORDERED that the defendants' motion for summary judgment be, and hereby is GRANTED as to all counts of plaintiff's complaint; and it is
FURTHER ORDERED that plaintiff's appeal of Judge Rosen's Orders of August 6, 1996, be and hereby, is DISMISSED as moot; and it is
FURTHER ORDERED that any motion for statutory attorney's fees or Rule 11 sanctions shall be filed within 14 days of the entry of this Order.
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 625). 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 627).
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 634*634 for reconsideration.[1] 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 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 than 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 630). 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 Associates 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 635*635 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 631). 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 "[w]e 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 631). 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 Cos., 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. 636*636 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 628). 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 637*637 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 629). 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 627, 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 627).
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 638*638 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 632). 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 632).
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.[2]
An appropriate order follows.
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., 639*639 and/or for statutory attorney's fees shall be filed within twenty (20) days hereof.
[*] On April 24, 1997, the Supreme Court of New Jersey suspended Steven M. Kramer from the practice of law, for reasons not related to this case, for a period of six months effective May 16, 1997. In the Matter of Steven M. Kramer, An Attorney at Law, 149 N.J. 19, 691 A.2d 816 (1997). This court has not entered a suspension order for reciprocal discipline as of today's date.
[1] For example, in what appears to be plaintiff's strongest claim, he sets forth the lyrics of his purported work "Only God Knows" as compared to Dylan's "God Knows."
Damiano lyrics Dylan lyrics
Only God knows the hurt God knows you ain't pretty Only God knows the pain God knows it's true, Only God knows the struggle God knows there ain't anybody, Of the misery that you claim Ever gonna take the place of you Only God knows the anguish God knows it's a struggle, Only God knows the faith God knows it's a crime, Only God knows the truth God knows there gonna be no more Of the secrets of your fate Water for fire the next time, A different form a treason God don't call it treason, A different type of hypocrisy God don't call it wrong, Not your usual form It was supposed to last a season of adulturism or betrayal But it's been so strong, Of intimacy For so long, Only God knows the reason God knows it's fragile, Only God knows what's wrong God knows everything, Only God knows how fragile it is ... God knows there's a river, Only God knows how strong God knows how to make it flow, He made the winding rivers ... God knows there's a purpose You can watch them flow Faith is your reason Belief your purpose Don't tell me you Didn't know. Although these two works do appear to be similar as presented in the complaint, discovery has revealed that plaintiff never sought a copyright for the purported work "Only God Knows" before initiating this litigation. Only the lyrics that have here been placed into boldface had previously even existed and been copyrighted — as verses in other songs. Indeed, the court suspects that any similarity between these two songs is the result of an appropriation of Dylan's work by Damiano, not the other way around.
[2] The following verses composed by plaintiff were presented in his complaint as infringed lyrics but not addressed after defendants' motion for summary judgment:
1. "I'm not sure of anything half the time anymore"
2. "A cloud of confusion filled the room to thick to withstand"
3. "Against the pale blue sky"
4. "Sunbird up in the sky/Sunbird your flyin to high"
5. "Born are new ideas" "Against the pale blue sky"
6. "Lost days and forgotten years"
[3] Defendants submit that the following lyrics were not found in any of the Damiano works in the record:
Damiano lyric Dylan lyric
1. "buried inside" "buried deep down inside"
2. "Wanna try and help mankind" "I can smile in the face "I can smile in the face of mankind" of reality"
3. "Conceit is a disease" "Conceit is a disease"
4. multiple lines from multiple lines from purported work, Dylan's song, Only God Knows God Knows [4] The first five lyrics listed are those designated by plaintiff's attorney at oral argument as plaintiff's "Top Five" claims.
[5] As an example of how plaintiff misrepresents and alters Dylan's lyrics, these two lines from Dylan's song "Most of the Time" are presented in the complaint as if they follow one another in the song. In reality, the lines are separated by over one hundred words.
[6] Plaintiff incorrectly asserts that Dylan changed the lyric in the 1994 re-release of his song, "With God On Our Side," originally composed and copyrighted in 1963, from "kiss" to "king," thereby repeating the historical error made by Damiano in his untitled song. A review of Dylan's song reveals that the lyric is actually still "kiss." (Defendants' exhibits 64 and 66; Dylan's "Unplugged" CD and video).
[1] Effective April 1, 1997, General Rule 121, which previously governed motions for reargument, was renumbered Rule 7.1(g). The language of General Rule 121 was not altered in Rule 7.1(g).
[2] Defendants' initial application for summary judgment on the merits was accompanied by an application for dismissal as a sanction under Rule 11, Fed.R.Civ.P., for the filing of a complaint not well-grounded in fact or law. (See Op. filed Dec. 16, 1996, at 625-26). The court deferred consideration of Rule 11 sanctions and/or for attorney's fees under Rule 11 or under the less demanding standard of the Copyright Act, 17 U.S.C. § 505, until such an application could be filed, within fourteen days thereafter. (Id. at 626). When defendants sought to enlarge the period to seek attorney's fees because of the prospect that plaintiff would be seeking reconsideration, the court extended the application deadline until fourteen (14) days after decision of any reconsideration motion, which is now further enlarged to give sufficient time to include costs and fees expended in defense of this reconsideration motion as well. |
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Date: July 7th, 2012 5:37 PM
On June 16th 2009 the following letter was sent to Bob Dylan's Attorney Orin Snyder written by James Damiano's Attorney in the Bob Dylan Damiano Plagiarism suit "Robert Church" regarding boxes of James Damiano's songs produced to Orin Snyder during discovery
There were approximately fifteen to twenty five boxes filled with anywhere from 200 to 400 finished and unfinished songs in each box (thirty five years of writing) that were never returned
Dear Mr. Snyder:
I have one other matter. Mr. Damiano informs me that Steven Kramer (James Damiano's lead attorney) had several boxes of songs delivered to Parcher & Hayes during the discovery phase of his case against Dylan. Mr. Kramer never made copies of the documents, since I am presuming he felt pressed to comply with an overdue discovery request. Mr. Damiano informs me that he has never had all the original songs returned to his possession, even though the case is over. If you don’t mind, please explain what you can recall about Mr. Damiano’s song production. Do you still have songs unaccounted for? Can they be returned?
Sincerely Robert Church
It is judicially uncontested by Bob Dylan and or Bob Dylan's law firm Manatt, Phelps & Phillips, Parcher Hayes & Snyder, Gibson Dunn & Crutcher, Hecker Brown & Sherry including Mary Jo White, Steven Hayes, Jonathan Liebman, and Sony House counsel that Bob Dylan and people in Bob Dylan's entourage have solicited James Damiano's songs and music for over ten years and eleven and a half months.
http://www.jamesdamiano.yolasite.com |
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Date: July 7th, 2012 5:51 PM James DAMIANO, Plaintiff, v. SONY MUSIC ENTERTAINMENT, INC., and Bob Dylan, Defendants.
Civ. A. No. 95-4795(JBS). United States District Court, D. New Jersey.
December 16, 1996. Opinion Denying Reconsideration August 20, 1997. 624*624 625*625 Steven M. Kramer,[*] Steven M. Kramer & Associates, New York City, for Plaintiff.
Steven D. Johnson, Hecker, Brown, Sherry & Johnson, Haddonfield, NJ, Stephen M. Hayes, Orin Snyder, Parcher, Hayes & Liebman, New York City, for Defendants.
OPINION
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).[1] Defendants seek judgment on the merits, as well as dismissal as a sanction under Rule 11, Fed.R.Civ.P., 626*626 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. § 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, 104 S.Ct. 2144, 79 L.Ed.2d 910 (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, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Supreme Court decisions mandate that: "[w]hen 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, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (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. at 248, 106 S.Ct. at 2510). 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 meta-physical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (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, 106 S.Ct. at 2511.
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 627*627 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.[2] 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 Associates v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.), cert, denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (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.[3]
Plaintiff has not presented evidence to the contrary, but merely asserts that "[p]laintiff has registered almost all of his works" and the rest will be registered prior to this court's decision. (Pl. Br. at 25) (emphasis added). Specifically, plaintiff alleges that his work "Only God Knows," which contains several lines that are allegedly infringed by Dylan's "God Knows," and the lyric "Conceit 628*628 is a disease" were in the process of being copyrighted at the time he submitted his opposition brief. Defendants, however, dispute the accuracy of this assertion and argue that a search of U.S. Copyright Office records revealed no new registrations by Damiano in 1996. (Def. Reply Br. at 5). Further, plaintiff has failed to produce any proof of filing to support his claim of pending registration for the two sets of lyrics in question. See Wilson v. Mr. Tee's, 855 F.Supp. 679, 682 (D.N.J.1994). Thus, summary judgment will be granted for these lyric infringement claims since plaintiff has failed to establish a prima facie case of infringement.
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:[4]
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"[5]
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]"[6]
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 On the door to hell" from hell goes rolling by"
9. "No one to run from "I don't cheat on myself And no reason to hide" I don't run and hide"
10. "I can pretend" "I don't pretend" 629*629 11. "Maybe there's a reason for "God knows there's a purpose" a purpose"
12. "What good is a man" "What good am I" a. Originality
A key point in this case is the disagreement between the parties as to the amount of originality needed for a work to be copyrightable. Plaintiff contends that "just a dash" will suffice. See Universal Athletic Sales Co., 511 F.2d at 908 ("[E]ven a modicum of creativity may suffice for a work to be protected."). Defendants, however, argue that the common words and phrases and cliches used in plaintiff's lyrics are not subject to copyright protection. See Jarvis, 827 F.Supp. at 291 (citing Perma Greetings, Inc. v. Russ Berrie & Co., Inc., 598 F.Supp. 445, 448 (E.D.Mo.1984)); O'Brien v. Chappel & Co., 159 F.Supp. 58 (S.D.N.Y.1958) (holding that phrase "night and noon" is not protectible).
Plaintiff relies on the decision in Jarvis v. A & M Records, for the proposition that even common words can be protected if placed in a certain arrangement. For example, he argues that coupling the word "stumble" with the word "lips" creates a sufficiently original arrangement of otherwise trite words. Likewise, plaintiff argues that an arrangement combining the cliche "truer words have not been spoken" with the word "broken" is creative enough to be worthy of protection. Thus, plaintiff concludes, Bob Dylan cannot subsequently use the same pairs of words or phrases together in a lyric, even if separated by many intervening lines and ideas in some instances, without infringing plaintiff's original work.
The law of copyright does not support the logical extension of plaintiff's theory. In effect, he asks us to grant him a monopoly over the use of common combinations of words such as "bell" and "hell," "run" and "hide," or "mind" and "behind" merely because they are found together in a single song — regardless of context or placement within the song. Such a result would not only stifle creativity, it would contravene the very policy behind copyright law and the rule requiring sufficient originality for a work to be protected. As the Jarvis court noted, "the policy behind the rule is to prevent a deterring effect on the creations of new works because of author's fears of copying innocuous segments." Jarvis, 827 F.Supp. at 291. Indeed, the law of copyright has absolutely no interest in tying up random, fortuitous combinations of words.
Additionally, the court notes that plaintiff's reliance on Jarvis is misplaced. In that case, the defendants admitted to copying elements of the plaintiff's song via digital sampling. Since sections of the plaintiff's work were actually reproduced and used in the infringing work, there was no question as to whether the arrangement was similar — it was identical. Unlike in the present case, "the precise relationship of the phrases vis a vis each other was copied." Id. at 292 (emphasis in original). Thus, the issue was not simply whether the common words "move" and "free your body" were protectible in a given arrangement, but rather, whether the copying was qualitatively or quantitatively sufficient to constitute an appropriation of plaintiff's work. The defendants in Jarvis raised a fact question on that issue and so summary judgment was denied.
In this case, copying has not been conceded, and the question of whether plaintiff's arrangement of common words and phrases is distinctive enough to deserve protection is at the heart of the parties' dispute. Even if copying were conceded as in Jarvis plaintiff would not survive summary judgment because no reasonable jury could conclude that the words and phrases allegedly copied by Dylan were quantitatively or qualitatively important to the whole of plaintiff's allegedly infringed works. The words and phrases in question comprise nothing more 630*630 than a single line or two of an entire song, and the songs themselves provide completely different contexts for the allegedly infringed words and phrases. Further, when taken as a whole, no jury could find substantial similarity between the lyrics of Damiano and Dylan. Summary judgment is appropriate in copyright actions based on lyrics where no reasonable jury could find substantial similarity between the works at issue. Nelson v. PRN Productions, Inc., 873 F.2d 1141 (8th Cir.) (trial court carefully studied lyrics involved and determined that reasonable minds could not differ as to absence of substantial similarity), cert. denied, 493 U.S. 994, 110 S.Ct. 544, 107 L.Ed.2d 541 (1989). The issue of substantial similarity need not be reached here, however, because plaintiff fails to demonstrate a threshold of originality of his lyrics.
Insofar as the infringement of plaintiff's lyrics depends on there being some protectible element in his work, plaintiff cannot establish a copyright action. The lyrics he claims were infringed are nothing more than unprotectible phrases and cliches, and even when taken as a whole, they are not substantially similar to Dylan's work. Thus, summary judgment is granted on plaintiff's lyric claims, without the need to reach any additional elements comprising an infringement action.
C. Plaintiff's Music Infringement Claim
In addition to his lyric infringement claims, plaintiff asserts infringement of his instrumental composition, "Steel Guitars," by Dylan's "Dignity."
1. Ownership
There has been a fair amount of confusion concerning the registration of plaintiff's song. Plaintiff produced during discovery a tape, marked as Exhibit 71 of defendants' moving papers, which contained the song he called "Steel Guitars." (Exhibit 71 version). That song has been analyzed by both parties' experts and compared to "Dignity."
Defendants now contend, however, that the Exhibit 71 version of "Steel Guitars" was never registered with the Copyright Office. Plaintiff claims to have submitted a tape for registration in 1988, marked PAU X-XXX-XXX, which, according to plaintiff's attorney, contains "Steel Guitars" as the last song on side B. (Copyright tape version). The version of "Steel Guitars" on the copyright tape, however, is not the same as the one on Exhibit 71. While there are common elements in the two versions, they are certainly not identical. Because of the confusion, the court has considered both versions of the allegedly infringed song.
First, the court notes that the Exhibit 71 version cannot be the basis of an infringement claim because plaintiff is unable to show that the work was registered with the Copyright Office. Thus, he has failed to establish a prima facie case of musical infringement for that version of "Steel Guitars." The Copyright tape version, on the other hand, although not originally identified as infringed work, apparently was registered. The court will therefore analyze the remaining elements of an infringement claim for the registered version only.
2. Copying
Since there is no direct proof of copying in this case, plaintiff may establish copying if he can show (a) defendants' access to the copyrighted work; and (b) substantial similarity between the works to support an inference of unlawful copying. 827 F.Supp. at 289 (citing Whelan Associates, Inc., 797 F.2d at 1232).
a. Access
Plaintiff asserts that "the bulk of his life's work" was submitted to Sony beginning in 1982. (Compl. at 2). He also alleges that he was told to bring his songs to several concerts which he attended courtesy of Sony. Plaintiff has produced evidence that after these concerts, he was allowed backstage and gave his work to Dylan or his agents. (Damiano Decl. at ¶¶ 2, 5; Dep. of Pam Damiano at 77-84, 97-104; Dep. of Brad Wright at 105-112). Taking these allegations as true, plaintiff has demonstrated a genuine issue of material fact as to whether defendants had access to his work.
631*631 b. Similarity to Infer Copying
In addition to showing defendants' access to his work, plaintiff must also show that his song and Dylan's song were substantially similar in order to infer that copying occurred. This is the so-called "extrinsic test" of substantial similarity, which calls for a dissection of the musical structure of the two pieces in search of objective similarities. Expert testimony is permitted, and often useful, in establishing substantial similarity at this phase of the inquiry. Although both sides retained experts for the comparison of plaintiff's "Steel Guitars" to Dylan's "Dignity," the experts analyzed the irrelevant Exhibit 71 version and not the one on the Copyright tape. Plaintiff's expert concluded that the melody of "Dignity" and plaintiff's Exhibit 71 version were thirty-two percent similar. Since the two versions of "Steel Guitars" are themselves different, however, the court will not consider the expert testimony as it might apply to the Copyright tape version. Without the benefit of expert testimony or other evidence specific to the Copyright tape version of plaintiff's song, the court must engage its own analysis of the components of the songs. To the ear of this court, there is no substantial similarity in the structure, instrumentation or melody of the two songs. These songs "speak" for themselves and no reasonable factfinder could find substantial similarity.
Although this alone would dispose of plaintiff's musical infringement claim, the court will continue so as to complete this analysis.
3. Substantial Similarity to Show Appropriation
The final step of an infringement analysis is the so-called intrinsic test of substantial similarity which seeks the response of a lay person to the "total concept and feel" of the two songs at issue. See Whelan, 797 F.2d at 1234. "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 Cos., 654 F.2d 204, 208 (2d Cir.1981).
After listening several times to both Dylan's "Dignity" and plaintiff's "Steel Guitars" as it appears on the Copyright tape, this court is convinced that no reasonable juror could find the two songs substantially similar in total concept and feel. Plaintiff's song, an instrumental, consists of two guitars — one that plays a fairly repetitious baseline, and one that plays a seemingly improvised free melody. Dylan's song has full instrumentation and accompanying lyrics. The overall effect of the two pieces is quite dissimilar — put simply, they just don't sound alike. The lack of substantial similarity necessarily leads to a conclusion that Bob Dylan did not improperly appropriate plaintiff's work and thus ends the analysis of plaintiff's music infringement claim. Summary judgment will be granted in favor of defendants as to all of plaintiff's copyright infringement claims.
D. Plaintiff's Remaining Claims
Mr. Damiano also asserts federal claims under the Lanham Act and RICO, and state law claims on the theories of fraud, breach of confidence and misappropriation. To the extent that they all are based on the alleged plagiarism or theft of plaintiff's work by Bob Dylan, the dismissal of his copyright infringement claim mandates dismissal of the others since Damiano cannot establish that Dylan copied or even used any of his work.
Defendants also raise additional grounds for dismissal of plaintiff's accompanying federal and state law claims.
1. Lanham Act
Plaintiff's claim here revolves around the contention that he is the "co-author" of works that Dylan has falsely designated as his own, thus misleading the public and depriving Damiano of proper credit for his work. Although, as plaintiff points out, the elements of copyright infringement and Lanham Act claims are somewhat different, the fact that Damiano cannot establish that his work was copied by Dylan surely precludes a reasonable juror from finding that the two coauthored 632*632 any works. Plaintiff has failed to present any evidence that would support his Lanham Act claim, and thus, summary judgment will be granted in favor of the defendants.
2. RICO
Plaintiff alleges that defendants engaged in "massive mail fraud" by putting into interstate commerce recordings containing fraudulent statements, namely, that Bob Dylan created songs on the recordings which were actually created by plaintiff.
Plaintiff's RICO claims must fail because they are actually nothing more than copyright infringement claims presented as mail fraud and copyright infringement is not a predicate act under RICO. Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir.1996). Further, since plaintiff has failed to show that Dylan copied any of his work, he cannot show that the dissemination of Dylan's recordings or the statements contained therein were in any way fraudulent. Summary judgment is therefore granted on plaintiff's RICO claims.
3. State Claims
Defendants argue that plaintiff's state claims are pre-empted by the federal copyright law. Plaintiff does not respond to the pre-emption argument.
Section 301 of the copyright act explicitly preempts state laws that (1) fall within the subject matter of the federal copyright law and protect works that are fixed in tangible medium of expression; and (2) create legal or equitable rights that are equivalent to any of the exclusive rights granted to the copyright holder and specified in Section 106. Jarvis, 827 F.Supp. at 296.
Insofar as any of plaintiff's state claims turn on the alleged unauthorized copying or use of his lyrics and music, they are preempted by federal copyright law. As an initial matter, the court notes that plaintiff has not attempted to argue that his state claims arise from anything other than the alleged theft of his songs by Bob Dylan.
a. Misappropriation of Property
Plaintiff's misappropriation claim is based on the alleged unauthorized use of plaintiff's materials by Bob Dylan. This claim is equivalent to plaintiff's copyright infringement claim and thus is pre-empted.
b. Breach of Confidence and Fraud
Without reaching the question of pre-emption on plaintiff's final state law claims, the court finds that plaintiff has failed to establish either claim. First, plaintiff has offered no proof to show that defendants owed him any duty or that such a duty could have been breached by their actions. Second, plaintiff has failed to establish a claim for fraud, especially to the degree of specificity required by Rule 9(b), Fed.R.Civ.P. Plaintiff has not produced any proof of direct misrepresentations by defendants. At best, this court will accept as true plaintiff's allegation that Sony represented to him that he would be credited and compensated if Dylan used his work. Plaintiff, however, has failed to show that his work was ever used, incorporated or copied by Dylan.
Plaintiff's state claims therefore fail as a matter of law and summary judgment will be entered in favor of defendants.
E. Plaintiff's Appeal of Judge Rosen's Orders
As a final matter, this court reserved decision on plaintiff's appeal of Judge Rosen's August 6, 1996, Orders pending the outcome of defendant's summary judgment motion. These appeals assert that Judge Rosen erred in denying plaintiff access to information related to data about the sales of Dylan's songs and about Dylan's alleged motive to copy the works of others. See Damiano v. Sony Music Entertainment, Inc., 168 F.R.D. 485 (D.N.J.1996). Neither issue pertains to the questions decided herein, which are dispositive of the case. The granting of summary judgment in favor of defendants renders plaintiff's appeal moot.
633*633 III. Conclusion
For the reasons set forth above, summary judgment is granted for defendants on all counts of plaintiff's complaint. Defendants have fourteen days to apply for Rule 11 sanctions or statutory attorney's fees as detailed in part I of this Opinion. The appeal of Magistrate Judge Rosen's Orders of August 6, 1996, is dismissed as moot.
The accompanying Order has been entered.
ORDER
This matter having come before the court upon the defendants, motion for summary judgment; and the court having considered the submissions of the parties and heard oral argument on the matter; and for the reasons set forth in the Opinion of today's date;
It is this 16th day of December, 1996, hereby
ORDERED that the defendants' motion for summary judgment be, and hereby is GRANTED as to all counts of plaintiff's complaint; and it is
FURTHER ORDERED that plaintiff's appeal of Judge Rosen's Orders of August 6, 1996, be and hereby, is DISMISSED as moot; and it is
FURTHER ORDERED that any motion for statutory attorney's fees or Rule 11 sanctions shall be filed within 14 days of the entry of this Order.
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 625). 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 627).
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 634*634 for reconsideration.[1] 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 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 than 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 630). 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 Associates 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 635*635 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 631). 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 "[w]e 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 631). 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 Cos., 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. 636*636 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 628). 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 637*637 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 629). 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 627, 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 627).
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 638*638 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 632). 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 632).
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.[2]
An appropriate order follows.
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., 639*639 and/or for statutory attorney's fees shall be filed within twenty (20) days hereof.
[*] On April 24, 1997, the Supreme Court of New Jersey suspended Steven M. Kramer from the practice of law, for reasons not related to this case, for a period of six months effective May 16, 1997. In the Matter of Steven M. Kramer, An Attorney at Law, 149 N.J. 19, 691 A.2d 816 (1997). This court has not entered a suspension order for reciprocal discipline as of today's date.
[1] For example, in what appears to be plaintiff's strongest claim, he sets forth the lyrics of his purported work "Only God Knows" as compared to Dylan's "God Knows."
Damiano lyrics Dylan lyrics
Only God knows the hurt God knows you ain't pretty Only God knows the pain God knows it's true, Only God knows the struggle God knows there ain't anybody, Of the misery that you claim Ever gonna take the place of you Only God knows the anguish God knows it's a struggle, Only God knows the faith God knows it's a crime, Only God knows the truth God knows there gonna be no more Of the secrets of your fate Water for fire the next time, A different form a treason God don't call it treason, A different type of hypocrisy God don't call it wrong, Not your usual form It was supposed to last a season of adulturism or betrayal But it's been so strong, Of intimacy For so long, Only God knows the reason God knows it's fragile, Only God knows what's wrong God knows everything, Only God knows how fragile it is ... God knows there's a river, Only God knows how strong God knows how to make it flow, He made the winding rivers ... God knows there's a purpose You can watch them flow Faith is your reason Belief your purpose Don't tell me you Didn't know. Although these two works do appear to be similar as presented in the complaint, discovery has revealed that plaintiff never sought a copyright for the purported work "Only God Knows" before initiating this litigation. Only the lyrics that have here been placed into boldface had previously even existed and been copyrighted — as verses in other songs. Indeed, the court suspects that any similarity between these two songs is the result of an appropriation of Dylan's work by Damiano, not the other way around.
[2] The following verses composed by plaintiff were presented in his complaint as infringed lyrics but not addressed after defendants' motion for summary judgment:
1. "I'm not sure of anything half the time anymore"
2. "A cloud of confusion filled the room to thick to withstand"
3. "Against the pale blue sky"
4. "Sunbird up in the sky/Sunbird your flyin to high"
5. "Born are new ideas" "Against the pale blue sky"
6. "Lost days and forgotten years"
[3] Defendants submit that the following lyrics were not found in any of the Damiano works in the record:
Damiano lyric Dylan lyric
1. "buried inside" "buried deep down inside"
2. "Wanna try and help mankind" "I can smile in the face "I can smile in the face of mankind" of reality"
3. "Conceit is a disease" "Conceit is a disease"
4. multiple lines from multiple lines from purported work, Dylan's song, Only God Knows God Knows [4] The first five lyrics listed are those designated by plaintiff's attorney at oral argument as plaintiff's "Top Five" claims.
[5] As an example of how plaintiff misrepresents and alters Dylan's lyrics, these two lines from Dylan's song "Most of the Time" are presented in the complaint as if they follow one another in the song. In reality, the lines are separated by over one hundred words.
[6] Plaintiff incorrectly asserts that Dylan changed the lyric in the 1994 re-release of his song, "With God On Our Side," originally composed and copyrighted in 1963, from "kiss" to "king," thereby repeating the historical error made by Damiano in his untitled song. A review of Dylan's song reveals that the lyric is actually still "kiss." (Defendants' exhibits 64 and 66; Dylan's "Unplugged" CD and video).
[1] Effective April 1, 1997, General Rule 121, which previously governed motions for reargument, was renumbered Rule 7.1(g). The language of General Rule 121 was not altered in Rule 7.1(g).
[2] Defendants' initial application for summary judgment on the merits was accompanied by an application for dismissal as a sanction under Rule 11, Fed.R.Civ.P., for the filing of a complaint not well-grounded in fact or law. (See Op. filed Dec. 16, 1996, at 625-26). The court deferred consideration of Rule 11 sanctions and/or for attorney's fees under Rule 11 or under the less demanding standard of the Copyright Act, 17 U.S.C. § 505, until such an application could be filed, within fourteen days thereafter. (Id. at 626). When defendants sought to enlarge the period to seek attorney's fees because of the prospect that plaintiff would be seeking reconsideration, the court extended the application deadline until fourteen (14) days after decision of any reconsideration motion, which is now further enlarged to give sufficient time to include costs and fees expended in defense of this reconsideration motion as well. |
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Date: July 7th, 2012 5:54 PM And lets take a poll to see who believes that the facts of the case are consistent with the Judge Simandles Opinion (Not Decision)The law states that the verdict has to be consistent with the facts of the case right. We'll lets compare.
It's a ten thousand page lawsuit. Dylan and or his attorneys never contested any of the issues of fact on the website or The Motion to the court which mirrors the website and the pdf file "Default Motion Against Bob Dylan" which you can read here.
http://www.jamesdamiano.yolasite.com/plaintiffs-motion-for-default-against-bob-dylan1.php
Additional information has been found out since the development of the internet and only recently it has come to our attention that Bob Dylan lied to the court when asked if he had ever been sued for plagairism His answer to the court was no. The fact is that he had been sued twice.
Also Dylan recently in a Los Angeles times interview admitted to plagiarism by definition :
in a 2004 interview with Robert Hilburn of the Los Angeles Times, Bob Dylan stated,
“Well you have to understand that I’m not a melodist. My songs are either based on old Protestant hymns or Carter Family songs or variations of the blues form. What happens is, I’ll take a song and simply start playing it in my head. That’s the way I meditate.” “I wrote ‘Blowin’ in the Wind’ in 10 minutes, just put words to an old spiritual, probably something I learned from Carter Family records. That’s the folk music tradition – you use what has been handed down. ‘The Times They Are A-Changing’ is probably from an old Scottish folk Song.” "I'll be playing Bob Nolan's 'Tumbling Tumbleweeds,' for instance, in my head constantly -- while I'm driving a car or talking to a person or sitting around or whatever. People will think they are talking to me and I'm talking back, but I'm not. I'm listening to the song in my head. At a certain point, some of the words will change and I'll start writing a song.".......Bob Dylan
This case was never dismissed with prejudice
lets compare the facts with the verdict below for it is It is uncontested by Bob Dylan and or Bob Dylan's law firms Manatt, Phelps & Phillips ,Parcher Hayes & Snyder, Gibson Dunn & Crutcher and Hecker Brown and Sherry that Bob Dylan and people in Bob Dylan's entourage have solicited James Damiano's songs and music for over ten years.
http://www.youtube.com/watch?v=jal8m1jjpFU
Back with more later |
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Date: July 7th, 2012 5:58 PM James DAMIANO, Plaintiff, v. SONY MUSIC ENTERTAINMENT, INC., and Bob Dylan, Defendants.
Civ. A. No. 95-4795(JBS). United States District Court, D. New Jersey.
December 16, 1996. Opinion Denying Reconsideration August 20, 1997. 624*624 625*625 Steven M. Kramer,[*] Steven M. Kramer & Associates, New York City, for Plaintiff.
Steven D. Johnson, Hecker, Brown, Sherry & Johnson, Haddonfield, NJ, Stephen M. Hayes, Orin Snyder, Parcher, Hayes & Liebman, New York City, for Defendants.
OPINION
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).[1] Defendants seek judgment on the merits, as well as dismissal as a sanction under Rule 11, Fed.R.Civ.P., 626*626 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. § 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, 104 S.Ct. 2144, 79 L.Ed.2d 910 (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, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Supreme Court decisions mandate that: "[w]hen 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, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (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. at 248, 106 S.Ct. at 2510). 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 meta-physical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (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, 106 S.Ct. at 2511.
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 627*627 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.[2] 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 Associates v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.), cert, denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (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.[3]
Plaintiff has not presented evidence to the contrary, but merely asserts that "[p]laintiff has registered almost all of his works" and the rest will be registered prior to this court's decision. (Pl. Br. at 25) (emphasis added). Specifically, plaintiff alleges that his work "Only God Knows," which contains several lines that are allegedly infringed by Dylan's "God Knows," and the lyric "Conceit 628*628 is a disease" were in the process of being copyrighted at the time he submitted his opposition brief. Defendants, however, dispute the accuracy of this assertion and argue that a search of U.S. Copyright Office records revealed no new registrations by Damiano in 1996. (Def. Reply Br. at 5). Further, plaintiff has failed to produce any proof of filing to support his claim of pending registration for the two sets of lyrics in question. See Wilson v. Mr. Tee's, 855 F.Supp. 679, 682 (D.N.J.1994). Thus, summary judgment will be granted for these lyric infringement claims since plaintiff has failed to establish a prima facie case of infringement.
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:[4]
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"[5]
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]"[6]
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 On the door to hell" from hell goes rolling by"
9. "No one to run from "I don't cheat on myself And no reason to hide" I don't run and hide"
10. "I can pretend" "I don't pretend" 629*629 11. "Maybe there's a reason for "God knows there's a purpose" a purpose"
12. "What good is a man" "What good am I" a. Originality
A key point in this case is the disagreement between the parties as to the amount of originality needed for a work to be copyrightable. Plaintiff contends that "just a dash" will suffice. See Universal Athletic Sales Co., 511 F.2d at 908 ("[E]ven a modicum of creativity may suffice for a work to be protected."). Defendants, however, argue that the common words and phrases and cliches used in plaintiff's lyrics are not subject to copyright protection. See Jarvis, 827 F.Supp. at 291 (citing Perma Greetings, Inc. v. Russ Berrie & Co., Inc., 598 F.Supp. 445, 448 (E.D.Mo.1984)); O'Brien v. Chappel & Co., 159 F.Supp. 58 (S.D.N.Y.1958) (holding that phrase "night and noon" is not protectible).
Plaintiff relies on the decision in Jarvis v. A & M Records, for the proposition that even common words can be protected if placed in a certain arrangement. For example, he argues that coupling the word "stumble" with the word "lips" creates a sufficiently original arrangement of otherwise trite words. Likewise, plaintiff argues that an arrangement combining the cliche "truer words have not been spoken" with the word "broken" is creative enough to be worthy of protection. Thus, plaintiff concludes, Bob Dylan cannot subsequently use the same pairs of words or phrases together in a lyric, even if separated by many intervening lines and ideas in some instances, without infringing plaintiff's original work.
The law of copyright does not support the logical extension of plaintiff's theory. In effect, he asks us to grant him a monopoly over the use of common combinations of words such as "bell" and "hell," "run" and "hide," or "mind" and "behind" merely because they are found together in a single song — regardless of context or placement within the song. Such a result would not only stifle creativity, it would contravene the very policy behind copyright law and the rule requiring sufficient originality for a work to be protected. As the Jarvis court noted, "the policy behind the rule is to prevent a deterring effect on the creations of new works because of author's fears of copying innocuous segments." Jarvis, 827 F.Supp. at 291. Indeed, the law of copyright has absolutely no interest in tying up random, fortuitous combinations of words.
Additionally, the court notes that plaintiff's reliance on Jarvis is misplaced. In that case, the defendants admitted to copying elements of the plaintiff's song via digital sampling. Since sections of the plaintiff's work were actually reproduced and used in the infringing work, there was no question as to whether the arrangement was similar — it was identical. Unlike in the present case, "the precise relationship of the phrases vis a vis each other was copied." Id. at 292 (emphasis in original). Thus, the issue was not simply whether the common words "move" and "free your body" were protectible in a given arrangement, but rather, whether the copying was qualitatively or quantitatively sufficient to constitute an appropriation of plaintiff's work. The defendants in Jarvis raised a fact question on that issue and so summary judgment was denied.
In this case, copying has not been conceded, and the question of whether plaintiff's arrangement of common words and phrases is distinctive enough to deserve protection is at the heart of the parties' dispute. Even if copying were conceded as in Jarvis plaintiff would not survive summary judgment because no reasonable jury could conclude that the words and phrases allegedly copied by Dylan were quantitatively or qualitatively important to the whole of plaintiff's allegedly infringed works. The words and phrases in question comprise nothing more 630*630 than a single line or two of an entire song, and the songs themselves provide completely different contexts for the allegedly infringed words and phrases. Further, when taken as a whole, no jury could find substantial similarity between the lyrics of Damiano and Dylan. Summary judgment is appropriate in copyright actions based on lyrics where no reasonable jury could find substantial similarity between the works at issue. Nelson v. PRN Productions, Inc., 873 F.2d 1141 (8th Cir.) (trial court carefully studied lyrics involved and determined that reasonable minds could not differ as to absence of substantial similarity), cert. denied, 493 U.S. 994, 110 S.Ct. 544, 107 L.Ed.2d 541 (1989). The issue of substantial similarity need not be reached here, however, because plaintiff fails to demonstrate a threshold of originality of his lyrics.
Insofar as the infringement of plaintiff's lyrics depends on there being some protectible element in his work, plaintiff cannot establish a copyright action. The lyrics he claims were infringed are nothing more than unprotectible phrases and cliches, and even when taken as a whole, they are not substantially similar to Dylan's work. Thus, summary judgment is granted on plaintiff's lyric claims, without the need to reach any additional elements comprising an infringement action.
C. Plaintiff's Music Infringement Claim
In addition to his lyric infringement claims, plaintiff asserts infringement of his instrumental composition, "Steel Guitars," by Dylan's "Dignity."
1. Ownership
There has been a fair amount of confusion concerning the registration of plaintiff's song. Plaintiff produced during discovery a tape, marked as Exhibit 71 of defendants' moving papers, which contained the song he called "Steel Guitars." (Exhibit 71 version). That song has been analyzed by both parties' experts and compared to "Dignity."
Defendants now contend, however, that the Exhibit 71 version of "Steel Guitars" was never registered with the Copyright Office. Plaintiff claims to have submitted a tape for registration in 1988, marked PAU X-XXX-XXX, which, according to plaintiff's attorney, contains "Steel Guitars" as the last song on side B. (Copyright tape version). The version of "Steel Guitars" on the copyright tape, however, is not the same as the one on Exhibit 71. While there are common elements in the two versions, they are certainly not identical. Because of the confusion, the court has considered both versions of the allegedly infringed song.
First, the court notes that the Exhibit 71 version cannot be the basis of an infringement claim because plaintiff is unable to show that the work was registered with the Copyright Office. Thus, he has failed to establish a prima facie case of musical infringement for that version of "Steel Guitars." The Copyright tape version, on the other hand, although not originally identified as infringed work, apparently was registered. The court will therefore analyze the remaining elements of an infringement claim for the registered version only.
2. Copying
Since there is no direct proof of copying in this case, plaintiff may establish copying if he can show (a) defendants' access to the copyrighted work; and (b) substantial similarity between the works to support an inference of unlawful copying. 827 F.Supp. at 289 (citing Whelan Associates, Inc., 797 F.2d at 1232).
a. Access
Plaintiff asserts that "the bulk of his life's work" was submitted to Sony beginning in 1982. (Compl. at 2). He also alleges that he was told to bring his songs to several concerts which he attended courtesy of Sony. Plaintiff has produced evidence that after these concerts, he was allowed backstage and gave his work to Dylan or his agents. (Damiano Decl. at ¶¶ 2, 5; Dep. of Pam Damiano at 77-84, 97-104; Dep. of Brad Wright at 105-112). Taking these allegations as true, plaintiff has demonstrated a genuine issue of material fact as to whether defendants had access to his work.
631*631 b. Similarity to Infer Copying
In addition to showing defendants' access to his work, plaintiff must also show that his song and Dylan's song were substantially similar in order to infer that copying occurred. This is the so-called "extrinsic test" of substantial similarity, which calls for a dissection of the musical structure of the two pieces in search of objective similarities. Expert testimony is permitted, and often useful, in establishing substantial similarity at this phase of the inquiry. Although both sides retained experts for the comparison of plaintiff's "Steel Guitars" to Dylan's "Dignity," the experts analyzed the irrelevant Exhibit 71 version and not the one on the Copyright tape. Plaintiff's expert concluded that the melody of "Dignity" and plaintiff's Exhibit 71 version were thirty-two percent similar. Since the two versions of "Steel Guitars" are themselves different, however, the court will not consider the expert testimony as it might apply to the Copyright tape version. Without the benefit of expert testimony or other evidence specific to the Copyright tape version of plaintiff's song, the court must engage its own analysis of the components of the songs. To the ear of this court, there is no substantial similarity in the structure, instrumentation or melody of the two songs. These songs "speak" for themselves and no reasonable factfinder could find substantial similarity.
Although this alone would dispose of plaintiff's musical infringement claim, the court will continue so as to complete this analysis.
3. Substantial Similarity to Show Appropriation
The final step of an infringement analysis is the so-called intrinsic test of substantial similarity which seeks the response of a lay person to the "total concept and feel" of the two songs at issue. See Whelan, 797 F.2d at 1234. "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 Cos., 654 F.2d 204, 208 (2d Cir.1981).
After listening several times to both Dylan's "Dignity" and plaintiff's "Steel Guitars" as it appears on the Copyright tape, this court is convinced that no reasonable juror could find the two songs substantially similar in total concept and feel. Plaintiff's song, an instrumental, consists of two guitars — one that plays a fairly repetitious baseline, and one that plays a seemingly improvised free melody. Dylan's song has full instrumentation and accompanying lyrics. The overall effect of the two pieces is quite dissimilar — put simply, they just don't sound alike. The lack of substantial similarity necessarily leads to a conclusion that Bob Dylan did not improperly appropriate plaintiff's work and thus ends the analysis of plaintiff's music infringement claim. Summary judgment will be granted in favor of defendants as to all of plaintiff's copyright infringement claims.
D. Plaintiff's Remaining Claims
Mr. Damiano also asserts federal claims under the Lanham Act and RICO, and state law claims on the theories of fraud, breach of confidence and misappropriation. To the extent that they all are based on the alleged plagiarism or theft of plaintiff's work by Bob Dylan, the dismissal of his copyright infringement claim mandates dismissal of the others since Damiano cannot establish that Dylan copied or even used any of his work.
Defendants also raise additional grounds for dismissal of plaintiff's accompanying federal and state law claims.
1. Lanham Act
Plaintiff's claim here revolves around the contention that he is the "co-author" of works that Dylan has falsely designated as his own, thus misleading the public and depriving Damiano of proper credit for his work. Although, as plaintiff points out, the elements of copyright infringement and Lanham Act claims are somewhat different, the fact that Damiano cannot establish that his work was copied by Dylan surely precludes a reasonable juror from finding that the two coauthored 632*632 any works. Plaintiff has failed to present any evidence that would support his Lanham Act claim, and thus, summary judgment will be granted in favor of the defendants.
2. RICO
Plaintiff alleges that defendants engaged in "massive mail fraud" by putting into interstate commerce recordings containing fraudulent statements, namely, that Bob Dylan created songs on the recordings which were actually created by plaintiff.
Plaintiff's RICO claims must fail because they are actually nothing more than copyright infringement claims presented as mail fraud and copyright infringement is not a predicate act under RICO. Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir.1996). Further, since plaintiff has failed to show that Dylan copied any of his work, he cannot show that the dissemination of Dylan's recordings or the statements contained therein were in any way fraudulent. Summary judgment is therefore granted on plaintiff's RICO claims.
3. State Claims
Defendants argue that plaintiff's state claims are pre-empted by the federal copyright law. Plaintiff does not respond to the pre-emption argument.
Section 301 of the copyright act explicitly preempts state laws that (1) fall within the subject matter of the federal copyright law and protect works that are fixed in tangible medium of expression; and (2) create legal or equitable rights that are equivalent to any of the exclusive rights granted to the copyright holder and specified in Section 106. Jarvis, 827 F.Supp. at 296.
Insofar as any of plaintiff's state claims turn on the alleged unauthorized copying or use of his lyrics and music, they are preempted by federal copyright law. As an initial matter, the court notes that plaintiff has not attempted to argue that his state claims arise from anything other than the alleged theft of his songs by Bob Dylan.
a. Misappropriation of Property
Plaintiff's misappropriation claim is based on the alleged unauthorized use of plaintiff's materials by Bob Dylan. This claim is equivalent to plaintiff's copyright infringement claim and thus is pre-empted.
b. Breach of Confidence and Fraud
Without reaching the question of pre-emption on plaintiff's final state law claims, the court finds that plaintiff has failed to establish either claim. First, plaintiff has offered no proof to show that defendants owed him any duty or that such a duty could have been breached by their actions. Second, plaintiff has failed to establish a claim for fraud, especially to the degree of specificity required by Rule 9(b), Fed.R.Civ.P. Plaintiff has not produced any proof of direct misrepresentations by defendants. At best, this court will accept as true plaintiff's allegation that Sony represented to him that he would be credited and compensated if Dylan used his work. Plaintiff, however, has failed to show that his work was ever used, incorporated or copied by Dylan.
Plaintiff's state claims therefore fail as a matter of law and summary judgment will be entered in favor of defendants.
E. Plaintiff's Appeal of Judge Rosen's Orders
As a final matter, this court reserved decision on plaintiff's appeal of Judge Rosen's August 6, 1996, Orders pending the outcome of defendant's summary judgment motion. These appeals assert that Judge Rosen erred in denying plaintiff access to information related to data about the sales of Dylan's songs and about Dylan's alleged motive to copy the works of others. See Damiano v. Sony Music Entertainment, Inc., 168 F.R.D. 485 (D.N.J.1996). Neither issue pertains to the questions decided herein, which are dispositive of the case. The granting of summary judgment in favor of defendants renders plaintiff's appeal moot.
633*633 III. Conclusion
For the reasons set forth above, summary judgment is granted for defendants on all counts of plaintiff's complaint. Defendants have fourteen days to apply for Rule 11 sanctions or statutory attorney's fees as detailed in part I of this Opinion. The appeal of Magistrate Judge Rosen's Orders of August 6, 1996, is dismissed as moot.
The accompanying Order has been entered.
ORDER
This matter having come before the court upon the defendants, motion for summary judgment; and the court having considered the submissions of the parties and heard oral argument on the matter; and for the reasons set forth in the Opinion of today's date;
It is this 16th day of December, 1996, hereby
ORDERED that the defendants' motion for summary judgment be, and hereby is GRANTED as to all counts of plaintiff's complaint; and it is
FURTHER ORDERED that plaintiff's appeal of Judge Rosen's Orders of August 6, 1996, be and hereby, is DISMISSED as moot; and it is
FURTHER ORDERED that any motion for statutory attorney's fees or Rule 11 sanctions shall be filed within 14 days of the entry of this Order.
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 625). 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 627).
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 634*634 for reconsideration.[1] 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 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 than 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 630). 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 Associates 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 635*635 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 631). 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 "[w]e 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 631). 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 Cos., 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. 636*636 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 628). 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 637*637 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 629). 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 627, 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 627).
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 638*638 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 632). 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 632).
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.[2]
An appropriate order follows.
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., 639*639 and/or for statutory attorney's fees shall be filed within twenty (20) days hereof.
[*] On April 24, 1997, the Supreme Court of New Jersey suspended Steven M. Kramer from the practice of law, for reasons not related to this case, for a period of six months effective May 16, 1997. In the Matter of Steven M. Kramer, An Attorney at Law, 149 N.J. 19, 691 A.2d 816 (1997). This court has not entered a suspension order for reciprocal discipline as of today's date.
[1] For example, in what appears to be plaintiff's strongest claim, he sets forth the lyrics of his purported work "Only God Knows" as compared to Dylan's "God Knows."
Damiano lyrics Dylan lyrics
Only God knows the hurt God knows you ain't pretty Only God knows the pain God knows it's true, Only God knows the struggle God knows there ain't anybody, Of the misery that you claim Ever gonna take the place of you Only God knows the anguish God knows it's a struggle, Only God knows the faith God knows it's a crime, Only God knows the truth God knows there gonna be no more Of the secrets of your fate Water for fire the next time, A different form a treason God don't call it treason, A different type of hypocrisy God don't call it wrong, Not your usual form It was supposed to last a season of adulturism or betrayal But it's been so strong, Of intimacy For so long, Only God knows the reason God knows it's fragile, Only God knows what's wrong God knows everything, Only God knows how fragile it is ... God knows there's a river, Only God knows how strong God knows how to make it flow, He made the winding rivers ... God knows there's a purpose You can watch them flow Faith is your reason Belief your purpose Don't tell me you Didn't know. Although these two works do appear to be similar as presented in the complaint, discovery has revealed that plaintiff never sought a copyright for the purported work "Only God Knows" before initiating this litigation. Only the lyrics that have here been placed into boldface had previously even existed and been copyrighted — as verses in other songs. Indeed, the court suspects that any similarity between these two songs is the result of an appropriation of Dylan's work by Damiano, not the other way around.
[2] The following verses composed by plaintiff were presented in his complaint as infringed lyrics but not addressed after defendants' motion for summary judgment:
1. "I'm not sure of anything half the time anymore"
2. "A cloud of confusion filled the room to thick to withstand"
3. "Against the pale blue sky"
4. "Sunbird up in the sky/Sunbird your flyin to high"
5. "Born are new ideas" "Against the pale blue sky"
6. "Lost days and forgotten years"
[3] Defendants submit that the following lyrics were not found in any of the Damiano works in the record:
Damiano lyric Dylan lyric
1. "buried inside" "buried deep down inside"
2. "Wanna try and help mankind" "I can smile in the face "I can smile in the face of mankind" of reality"
3. "Conceit is a disease" "Conceit is a disease"
4. multiple lines from multiple lines from purported work, Dylan's song, Only God Knows God Knows [4] The first five lyrics listed are those designated by plaintiff's attorney at oral argument as plaintiff's "Top Five" claims.
[5] As an example of how plaintiff misrepresents and alters Dylan's lyrics, these two lines from Dylan's song "Most of the Time" are presented in the complaint as if they follow one another in the song. In reality, the lines are separated by over one hundred words.
[6] Plaintiff incorrectly asserts that Dylan changed the lyric in the 1994 re-release of his song, "With God On Our Side," originally composed and copyrighted in 1963, from "kiss" to "king," thereby repeating the historical error made by Damiano in his untitled song. A review of Dylan's song reveals that the lyric is actually still "kiss." (Defendants' exhibits 64 and 66; Dylan's "Unplugged" CD and video).
[1] Effective April 1, 1997, General Rule 121, which previously governed motions for reargument, was renumbered Rule 7.1(g). The language of General Rule 121 was not altered in Rule 7.1(g).
[2] Defendants' initial application for summary judgment on the merits was accompanied by an application for dismissal as a sanction under Rule 11, Fed.R.Civ.P., for the filing of a complaint not well-grounded in fact or law. (See Op. filed Dec. 16, 1996, at 625-26). The court deferred consideration of Rule 11 sanctions and/or for attorney's fees under Rule 11 or under the less demanding standard of the Copyright Act, 17 U.S.C. § 505, until such an application could be filed, within fourteen days thereafter. (Id. at 626). When defendants sought to enlarge the period to seek attorney's fees because of the prospect that plaintiff would be seeking reconsideration, the court extended the application deadline until fourteen (14) days after decision of any reconsideration motion, which is now further enlarged to give sufficient time to include costs and fees expended in defense of this reconsideration motion as well. |
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Date: July 7th, 2012 9:47 PM
Now That You've Exposed Judge Simandle's Corruption as of rule 56 (C) of the Federal Rules of Civil Procedure let us compare the facts of the case with the Judges opinion
And lets take a poll to see who believes that the facts of the case are consistent with the Judge Simandles Opinion The law states that the verdict has to be consistent with the facts of the case right. Let Us compare.
It's a ten thousand page lawsuit. Dylan and or his attorneys never contested any of the issues of fact on the website or in The Motion to the court which mirrors the website and the pdf file "Default Motion Against Bob Dylan" of which Dylan's Attorney Orin Snyder download and produced to the court without contesting the issues of fact. There was no affidavit of denial and Dylan was a no show to the subpoena.
Docket Link see 142
12/02/2002 142 Notice of MOTION for reconsideration of [139-1] order; to vacate protective order; for admissions of defendants; recusal of Judge Simandle; and for default against Sony Entertainment and Bob Dylan by JAMES DAMIANO, Motion set for 1/3/03 on [142-1] motion. (Exhibits in Binder Subm) (sb) (Entered: 12/03/2002)
Docket http://www.jamesdamiano.yolasite.com/james-damiano-bob-dylan-federal-court-docket.php
Motion Link
http://www.jamesdamiano.yolasite.com/plaintiffs-motion-for-default-against-bob-dylan1.php
Plaintiff has been afforded Additional information since the development of the internet and only recently it has come to our attention that Bob Dylan lied to the court when asked if he had ever been sued for plagiarism His answer to the court was no. The fact is that he had been sued twice.
Cases to be cited soon
Also Dylan recently in a Los Angeles times interview admitted to plagiarism by definition :
In a 2004 interview with Robert Hilburn of the Los Angeles Times, Bob Dylan stated,
“Well you have to understand that I’m not a melodist. My songs are either based on old Protestant hymns or Carter Family songs or variations of the blues form. What happens is, I’ll take a song and simply start playing it in my head. That’s the way I meditate.” “I wrote ‘Blowin’ in the Wind’ in 10 minutes, just put words to an old spiritual, probably something I learned from Carter Family records. That’s the folk music tradition – you use what has been handed down. ‘The Times They Are A-Changing’ is probably from an old Scottish folk Song.” "I'll be playing Bob Nolan's 'Tumbling Tumbleweeds,' for instance, in my head constantly -- while I'm driving a car or talking to a person or sitting around or whatever. People will think they are talking to me and I'm talking back, but I'm not. I'm listening to the song in my head. At a certain point, some of the words will change and I'll start writing a song.".......Bob Dylan
This case was never dismissed with prejudice
lets compare the facts with the verdict below for it is uncontested by Bob Dylan and or Bob Dylan's law firms Manatt, Phelps & Phillips ,Parcher Hayes & Snyder, Gibson Dunn & Crutcher and Hecker Brown and Sherry that Bob Dylan and people in Bob Dylan's entourage have solicited James Damiano's songs and music for over ten years.
Trailer 1
http://www.youtube.com/watch?v=jal8m1jjpFU
Trailer 2
http://www.youtube.com/watch?feature=endscreen&NR=1&v=qRe-ZBozwac
Back with more later |
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Date: July 7th, 2012 9:53 PM James DAMIANO, Plaintiff, v. SONY MUSIC ENTERTAINMENT, INC., and Bob Dylan, Defendants.
Civ. A. No. 95-4795(JBS). United States District Court, D. New Jersey.
December 16, 1996. Opinion Denying Reconsideration August 20, 1997. 624*624 625*625 Steven M. Kramer,[*] Steven M. Kramer & Associates, New York City, for Plaintiff.
Steven D. Johnson, Hecker, Brown, Sherry & Johnson, Haddonfield, NJ, Stephen M. Hayes, Orin Snyder, Parcher, Hayes & Liebman, New York City, for Defendants.
OPINION
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).[1] Defendants seek judgment on the merits, as well as dismissal as a sanction under Rule 11, Fed.R.Civ.P., 626*626 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. § 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, 104 S.Ct. 2144, 79 L.Ed.2d 910 (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, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Supreme Court decisions mandate that: "[w]hen 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, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (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. at 248, 106 S.Ct. at 2510). 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 meta-physical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (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, 106 S.Ct. at 2511.
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 627*627 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.[2] 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 Associates v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.), cert, denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (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.[3]
Plaintiff has not presented evidence to the contrary, but merely asserts that "[p]laintiff has registered almost all of his works" and the rest will be registered prior to this court's decision. (Pl. Br. at 25) (emphasis added). Specifically, plaintiff alleges that his work "Only God Knows," which contains several lines that are allegedly infringed by Dylan's "God Knows," and the lyric "Conceit 628*628 is a disease" were in the process of being copyrighted at the time he submitted his opposition brief. Defendants, however, dispute the accuracy of this assertion and argue that a search of U.S. Copyright Office records revealed no new registrations by Damiano in 1996. (Def. Reply Br. at 5). Further, plaintiff has failed to produce any proof of filing to support his claim of pending registration for the two sets of lyrics in question. See Wilson v. Mr. Tee's, 855 F.Supp. 679, 682 (D.N.J.1994). Thus, summary judgment will be granted for these lyric infringement claims since plaintiff has failed to establish a prima facie case of infringement.
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:[4]
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"[5]
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]"[6]
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 On the door to hell" from hell goes rolling by"
9. "No one to run from "I don't cheat on myself And no reason to hide" I don't run and hide"
10. "I can pretend" "I don't pretend" 629*629 11. "Maybe there's a reason for "God knows there's a purpose" a purpose"
12. "What good is a man" "What good am I" a. Originality
A key point in this case is the disagreement between the parties as to the amount of originality needed for a work to be copyrightable. Plaintiff contends that "just a dash" will suffice. See Universal Athletic Sales Co., 511 F.2d at 908 ("[E]ven a modicum of creativity may suffice for a work to be protected."). Defendants, however, argue that the common words and phrases and cliches used in plaintiff's lyrics are not subject to copyright protection. See Jarvis, 827 F.Supp. at 291 (citing Perma Greetings, Inc. v. Russ Berrie & Co., Inc., 598 F.Supp. 445, 448 (E.D.Mo.1984)); O'Brien v. Chappel & Co., 159 F.Supp. 58 (S.D.N.Y.1958) (holding that phrase "night and noon" is not protectible).
Plaintiff relies on the decision in Jarvis v. A & M Records, for the proposition that even common words can be protected if placed in a certain arrangement. For example, he argues that coupling the word "stumble" with the word "lips" creates a sufficiently original arrangement of otherwise trite words. Likewise, plaintiff argues that an arrangement combining the cliche "truer words have not been spoken" with the word "broken" is creative enough to be worthy of protection. Thus, plaintiff concludes, Bob Dylan cannot subsequently use the same pairs of words or phrases together in a lyric, even if separated by many intervening lines and ideas in some instances, without infringing plaintiff's original work.
The law of copyright does not support the logical extension of plaintiff's theory. In effect, he asks us to grant him a monopoly over the use of common combinations of words such as "bell" and "hell," "run" and "hide," or "mind" and "behind" merely because they are found together in a single song — regardless of context or placement within the song. Such a result would not only stifle creativity, it would contravene the very policy behind copyright law and the rule requiring sufficient originality for a work to be protected. As the Jarvis court noted, "the policy behind the rule is to prevent a deterring effect on the creations of new works because of author's fears of copying innocuous segments." Jarvis, 827 F.Supp. at 291. Indeed, the law of copyright has absolutely no interest in tying up random, fortuitous combinations of words.
Additionally, the court notes that plaintiff's reliance on Jarvis is misplaced. In that case, the defendants admitted to copying elements of the plaintiff's song via digital sampling. Since sections of the plaintiff's work were actually reproduced and used in the infringing work, there was no question as to whether the arrangement was similar — it was identical. Unlike in the present case, "the precise relationship of the phrases vis a vis each other was copied." Id. at 292 (emphasis in original). Thus, the issue was not simply whether the common words "move" and "free your body" were protectible in a given arrangement, but rather, whether the copying was qualitatively or quantitatively sufficient to constitute an appropriation of plaintiff's work. The defendants in Jarvis raised a fact question on that issue and so summary judgment was denied.
In this case, copying has not been conceded, and the question of whether plaintiff's arrangement of common words and phrases is distinctive enough to deserve protection is at the heart of the parties' dispute. Even if copying were conceded as in Jarvis plaintiff would not survive summary judgment because no reasonable jury could conclude that the words and phrases allegedly copied by Dylan were quantitatively or qualitatively important to the whole of plaintiff's allegedly infringed works. The words and phrases in question comprise nothing more 630*630 than a single line or two of an entire song, and the songs themselves provide completely different contexts for the allegedly infringed words and phrases. Further, when taken as a whole, no jury could find substantial similarity between the lyrics of Damiano and Dylan. Summary judgment is appropriate in copyright actions based on lyrics where no reasonable jury could find substantial similarity between the works at issue. Nelson v. PRN Productions, Inc., 873 F.2d 1141 (8th Cir.) (trial court carefully studied lyrics involved and determined that reasonable minds could not differ as to absence of substantial similarity), cert. denied, 493 U.S. 994, 110 S.Ct. 544, 107 L.Ed.2d 541 (1989). The issue of substantial similarity need not be reached here, however, because plaintiff fails to demonstrate a threshold of originality of his lyrics.
Insofar as the infringement of plaintiff's lyrics depends on there being some protectible element in his work, plaintiff cannot establish a copyright action. The lyrics he claims were infringed are nothing more than unprotectible phrases and cliches, and even when taken as a whole, they are not substantially similar to Dylan's work. Thus, summary judgment is granted on plaintiff's lyric claims, without the need to reach any additional elements comprising an infringement action.
C. Plaintiff's Music Infringement Claim
In addition to his lyric infringement claims, plaintiff asserts infringement of his instrumental composition, "Steel Guitars," by Dylan's "Dignity."
1. Ownership
There has been a fair amount of confusion concerning the registration of plaintiff's song. Plaintiff produced during discovery a tape, marked as Exhibit 71 of defendants' moving papers, which contained the song he called "Steel Guitars." (Exhibit 71 version). That song has been analyzed by both parties' experts and compared to "Dignity."
Defendants now contend, however, that the Exhibit 71 version of "Steel Guitars" was never registered with the Copyright Office. Plaintiff claims to have submitted a tape for registration in 1988, marked PAU X-XXX-XXX, which, according to plaintiff's attorney, contains "Steel Guitars" as the last song on side B. (Copyright tape version). The version of "Steel Guitars" on the copyright tape, however, is not the same as the one on Exhibit 71. While there are common elements in the two versions, they are certainly not identical. Because of the confusion, the court has considered both versions of the allegedly infringed song.
First, the court notes that the Exhibit 71 version cannot be the basis of an infringement claim because plaintiff is unable to show that the work was registered with the Copyright Office. Thus, he has failed to establish a prima facie case of musical infringement for that version of "Steel Guitars." The Copyright tape version, on the other hand, although not originally identified as infringed work, apparently was registered. The court will therefore analyze the remaining elements of an infringement claim for the registered version only.
2. Copying
Since there is no direct proof of copying in this case, plaintiff may establish copying if he can show (a) defendants' access to the copyrighted work; and (b) substantial similarity between the works to support an inference of unlawful copying. 827 F.Supp. at 289 (citing Whelan Associates, Inc., 797 F.2d at 1232).
a. Access
Plaintiff asserts that "the bulk of his life's work" was submitted to Sony beginning in 1982. (Compl. at 2). He also alleges that he was told to bring his songs to several concerts which he attended courtesy of Sony. Plaintiff has produced evidence that after these concerts, he was allowed backstage and gave his work to Dylan or his agents. (Damiano Decl. at ¶¶ 2, 5; Dep. of Pam Damiano at 77-84, 97-104; Dep. of Brad Wright at 105-112). Taking these allegations as true, plaintiff has demonstrated a genuine issue of material fact as to whether defendants had access to his work.
631*631 b. Similarity to Infer Copying
In addition to showing defendants' access to his work, plaintiff must also show that his song and Dylan's song were substantially similar in order to infer that copying occurred. This is the so-called "extrinsic test" of substantial similarity, which calls for a dissection of the musical structure of the two pieces in search of objective similarities. Expert testimony is permitted, and often useful, in establishing substantial similarity at this phase of the inquiry. Although both sides retained experts for the comparison of plaintiff's "Steel Guitars" to Dylan's "Dignity," the experts analyzed the irrelevant Exhibit 71 version and not the one on the Copyright tape. Plaintiff's expert concluded that the melody of "Dignity" and plaintiff's Exhibit 71 version were thirty-two percent similar. Since the two versions of "Steel Guitars" are themselves different, however, the court will not consider the expert testimony as it might apply to the Copyright tape version. Without the benefit of expert testimony or other evidence specific to the Copyright tape version of plaintiff's song, the court must engage its own analysis of the components of the songs. To the ear of this court, there is no substantial similarity in the structure, instrumentation or melody of the two songs. These songs "speak" for themselves and no reasonable factfinder could find substantial similarity.
Although this alone would dispose of plaintiff's musical infringement claim, the court will continue so as to complete this analysis.
3. Substantial Similarity to Show Appropriation
The final step of an infringement analysis is the so-called intrinsic test of substantial similarity which seeks the response of a lay person to the "total concept and feel" of the two songs at issue. See Whelan, 797 F.2d at 1234. "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 Cos., 654 F.2d 204, 208 (2d Cir.1981).
After listening several times to both Dylan's "Dignity" and plaintiff's "Steel Guitars" as it appears on the Copyright tape, this court is convinced that no reasonable juror could find the two songs substantially similar in total concept and feel. Plaintiff's song, an instrumental, consists of two guitars — one that plays a fairly repetitious baseline, and one that plays a seemingly improvised free melody. Dylan's song has full instrumentation and accompanying lyrics. The overall effect of the two pieces is quite dissimilar — put simply, they just don't sound alike. The lack of substantial similarity necessarily leads to a conclusion that Bob Dylan did not improperly appropriate plaintiff's work and thus ends the analysis of plaintiff's music infringement claim. Summary judgment will be granted in favor of defendants as to all of plaintiff's copyright infringement claims.
D. Plaintiff's Remaining Claims
Mr. Damiano also asserts federal claims under the Lanham Act and RICO, and state law claims on the theories of fraud, breach of confidence and misappropriation. To the extent that they all are based on the alleged plagiarism or theft of plaintiff's work by Bob Dylan, the dismissal of his copyright infringement claim mandates dismissal of the others since Damiano cannot establish that Dylan copied or even used any of his work.
Defendants also raise additional grounds for dismissal of plaintiff's accompanying federal and state law claims.
1. Lanham Act
Plaintiff's claim here revolves around the contention that he is the "co-author" of works that Dylan has falsely designated as his own, thus misleading the public and depriving Damiano of proper credit for his work. Although, as plaintiff points out, the elements of copyright infringement and Lanham Act claims are somewhat different, the fact that Damiano cannot establish that his work was copied by Dylan surely precludes a reasonable juror from finding that the two coauthored 632*632 any works. Plaintiff has failed to present any evidence that would support his Lanham Act claim, and thus, summary judgment will be granted in favor of the defendants.
2. RICO
Plaintiff alleges that defendants engaged in "massive mail fraud" by putting into interstate commerce recordings containing fraudulent statements, namely, that Bob Dylan created songs on the recordings which were actually created by plaintiff.
Plaintiff's RICO claims must fail because they are actually nothing more than copyright infringement claims presented as mail fraud and copyright infringement is not a predicate act under RICO. Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir.1996). Further, since plaintiff has failed to show that Dylan copied any of his work, he cannot show that the dissemination of Dylan's recordings or the statements contained therein were in any way fraudulent. Summary judgment is therefore granted on plaintiff's RICO claims.
3. State Claims
Defendants argue that plaintiff's state claims are pre-empted by the federal copyright law. Plaintiff does not respond to the pre-emption argument.
Section 301 of the copyright act explicitly preempts state laws that (1) fall within the subject matter of the federal copyright law and protect works that are fixed in tangible medium of expression; and (2) create legal or equitable rights that are equivalent to any of the exclusive rights granted to the copyright holder and specified in Section 106. Jarvis, 827 F.Supp. at 296.
Insofar as any of plaintiff's state claims turn on the alleged unauthorized copying or use of his lyrics and music, they are preempted by federal copyright law. As an initial matter, the court notes that plaintiff has not attempted to argue that his state claims arise from anything other than the alleged theft of his songs by Bob Dylan.
a. Misappropriation of Property
Plaintiff's misappropriation claim is based on the alleged unauthorized use of plaintiff's materials by Bob Dylan. This claim is equivalent to plaintiff's copyright infringement claim and thus is pre-empted.
b. Breach of Confidence and Fraud
Without reaching the question of pre-emption on plaintiff's final state law claims, the court finds that plaintiff has failed to establish either claim. First, plaintiff has offered no proof to show that defendants owed him any duty or that such a duty could have been breached by their actions. Second, plaintiff has failed to establish a claim for fraud, especially to the degree of specificity required by Rule 9(b), Fed.R.Civ.P. Plaintiff has not produced any proof of direct misrepresentations by defendants. At best, this court will accept as true plaintiff's allegation that Sony represented to him that he would be credited and compensated if Dylan used his work. Plaintiff, however, has failed to show that his work was ever used, incorporated or copied by Dylan.
Plaintiff's state claims therefore fail as a matter of law and summary judgment will be entered in favor of defendants.
E. Plaintiff's Appeal of Judge Rosen's Orders
As a final matter, this court reserved decision on plaintiff's appeal of Judge Rosen's August 6, 1996, Orders pending the outcome of defendant's summary judgment motion. These appeals assert that Judge Rosen erred in denying plaintiff access to information related to data about the sales of Dylan's songs and about Dylan's alleged motive to copy the works of others. See Damiano v. Sony Music Entertainment, Inc., 168 F.R.D. 485 (D.N.J.1996). Neither issue pertains to the questions decided herein, which are dispositive of the case. The granting of summary judgment in favor of defendants renders plaintiff's appeal moot.
633*633 III. Conclusion
For the reasons set forth above, summary judgment is granted for defendants on all counts of plaintiff's complaint. Defendants have fourteen days to apply for Rule 11 sanctions or statutory attorney's fees as detailed in part I of this Opinion. The appeal of Magistrate Judge Rosen's Orders of August 6, 1996, is dismissed as moot.
The accompanying Order has been entered.
ORDER
This matter having come before the court upon the defendants, motion for summary judgment; and the court having considered the submissions of the parties and heard oral argument on the matter; and for the reasons set forth in the Opinion of today's date;
It is this 16th day of December, 1996, hereby
ORDERED that the defendants' motion for summary judgment be, and hereby is GRANTED as to all counts of plaintiff's complaint; and it is
FURTHER ORDERED that plaintiff's appeal of Judge Rosen's Orders of August 6, 1996, be and hereby, is DISMISSED as moot; and it is
FURTHER ORDERED that any motion for statutory attorney's fees or Rule 11 sanctions shall be filed within 14 days of the entry of this Order.
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 625). 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 627).
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 634*634 for reconsideration.[1] 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 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 than 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 630). 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 Associates 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 635*635 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 631). 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 "[w]e 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 631). 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 Cos., 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. 636*636 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 628). 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 637*637 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 629). 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 627, 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 627).
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 638*638 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 632). 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 632).
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.[2]
An appropriate order follows.
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., 639*639 and/or for statutory attorney's fees shall be filed within twenty (20) days hereof.
[*] On April 24, 1997, the Supreme Court of New Jersey suspended Steven M. Kramer from the practice of law, for reasons not related to this case, for a period of six months effective May 16, 1997. In the Matter of Steven M. Kramer, An Attorney at Law, 149 N.J. 19, 691 A.2d 816 (1997). This court has not entered a suspension order for reciprocal discipline as of today's date.
[1] For example, in what appears to be plaintiff's strongest claim, he sets forth the lyrics of his purported work "Only God Knows" as compared to Dylan's "God Knows."
Damiano lyrics Dylan lyrics
Only God knows the hurt God knows you ain't pretty Only God knows the pain God knows it's true, Only God knows the struggle God knows there ain't anybody, Of the misery that you claim Ever gonna take the place of you Only God knows the anguish God knows it's a struggle, Only God knows the faith God knows it's a crime, Only God knows the truth God knows there gonna be no more Of the secrets of your fate Water for fire the next time, A different form a treason God don't call it treason, A different type of hypocrisy God don't call it wrong, Not your usual form It was supposed to last a season of adulturism or betrayal But it's been so strong, Of intimacy For so long, Only God knows the reason God knows it's fragile, Only God knows what's wrong God knows everything, Only God knows how fragile it is ... God knows there's a river, Only God knows how strong God knows how to make it flow, He made the winding rivers ... God knows there's a purpose You can watch them flow Faith is your reason Belief your purpose Don't tell me you Didn't know. Although these two works do appear to be similar as presented in the complaint, discovery has revealed that plaintiff never sought a copyright for the purported work "Only God Knows" before initiating this litigation. Only the lyrics that have here been placed into boldface had previously even existed and been copyrighted — as verses in other songs. Indeed, the court suspects that any similarity between these two songs is the result of an appropriation of Dylan's work by Damiano, not the other way around.
[2] The following verses composed by plaintiff were presented in his complaint as infringed lyrics but not addressed after defendants' motion for summary judgment:
1. "I'm not sure of anything half the time anymore"
2. "A cloud of confusion filled the room to thick to withstand"
3. "Against the pale blue sky"
4. "Sunbird up in the sky/Sunbird your flyin to high"
5. "Born are new ideas" "Against the pale blue sky"
6. "Lost days and forgotten years"
[3] Defendants submit that the following lyrics were not found in any of the Damiano works in the record:
Damiano lyric Dylan lyric
1. "buried inside" "buried deep down inside"
2. "Wanna try and help mankind" "I can smile in the face "I can smile in the face of mankind" of reality"
3. "Conceit is a disease" "Conceit is a disease"
4. multiple lines from multiple lines from purported work, Dylan's song, Only God Knows God Knows [4] The first five lyrics listed are those designated by plaintiff's attorney at oral argument as plaintiff's "Top Five" claims.
[5] As an example of how plaintiff misrepresents and alters Dylan's lyrics, these two lines from Dylan's song "Most of the Time" are presented in the complaint as if they follow one another in the song. In reality, the lines are separated by over one hundred words.
[6] Plaintiff incorrectly asserts that Dylan changed the lyric in the 1994 re-release of his song, "With God On Our Side," originally composed and copyrighted in 1963, from "kiss" to "king," thereby repeating the historical error made by Damiano in his untitled song. A review of Dylan's song reveals that the lyric is actually still "kiss." (Defendants' exhibits 64 and 66; Dylan's "Unplugged" CD and video).
[1] Effective April 1, 1997, General Rule 121, which previously governed motions for reargument, was renumbered Rule 7.1(g). The language of General Rule 121 was not altered in Rule 7.1(g).
[2] Defendants' initial application for summary judgment on the merits was accompanied by an application for dismissal as a sanction under Rule 11, Fed.R.Civ.P., for the filing of a complaint not well-grounded in fact or law. (See Op. filed Dec. 16, 1996, at 625-26). The court deferred consideration of Rule 11 sanctions and/or for attorney's fees under Rule 11 or under the less demanding standard of the Copyright Act, 17 U.S.C. § 505, until such an application could be filed, within fourteen days thereafter. (Id. at 626). When defendants sought to enlarge the period to seek attorney's fees because of the prospect that plaintiff would be seeking reconsideration, the court extended the application deadline until fourteen (14) days after decision of any reconsideration motion, which is now further enlarged to give sufficient time to include costs and fees expended in defense of this reconsideration motion as well. |
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Date: July 7th, 2012 6:03 PM |
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Date: July 7th, 2012 6:23 PM
It is Judicially uncontested by Bob Dylan and or Bob Dylan's law firms Manatt, Phelps & Phillips ,Parcher Hayes & Snyder, Gibson Dunn & Crutcher and Heck Brown and Sherry that Bob Dylan and people in Bob Dylan's entourage have solicited James Damiano's songs and music for over ten years.
http://www.jamesdamiano.yolasite.com
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Date: July 7th, 2012 9:25 PM |
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Date: July 7th, 2012 9:49 PM
Now That You've Exposed Judge Simandle's Corruption as of rule 56 (C) of the Federal Rules of Civil Procedure let us compare the facts of the case with the Judges opinion
And lets take a poll to see who believes that the facts of the case are consistent with the Judge Simandles Opinion The law states that the verdict has to be consistent with the facts of the case right. Let Us compare.
It's a ten thousand page lawsuit. Dylan and or his attorneys never contested any of the issues of fact on the website or in The Motion to the court which mirrors the website and the pdf file "Default Motion Against Bob Dylan" of which Dylan's Attorney Orin Snyder download and produced to the court without contesting the issues of fact. There was no affidavit of denial and Dylan was a no show to the subpoena.
Docket Link see 142
12/02/2002 142 Notice of MOTION for reconsideration of [139-1] order; to vacate protective order; for admissions of defendants; recusal of Judge Simandle; and for default against Sony Entertainment and Bob Dylan by JAMES DAMIANO, Motion set for 1/3/03 on [142-1] motion. (Exhibits in Binder Subm) (sb) (Entered: 12/03/2002)
Docket http://www.jamesdamiano.yolasite.com/james-damiano-bob-dylan-federal-court-docket.php
Motion Link
http://www.jamesdamiano.yolasite.com/plaintiffs-motion-for-default-against-bob-dylan1.php
Plaintiff has been afforded Additional information since the development of the internet and only recently it has come to our attention that Bob Dylan lied to the court when asked if he had ever been sued for plagiarism His answer to the court was no. The fact is that he had been sued twice.
Cases to be cited soon
Also Dylan recently in a Los Angeles times interview admitted to plagiarism by definition :
In a 2004 interview with Robert Hilburn of the Los Angeles Times, Bob Dylan stated,
“Well you have to understand that I’m not a melodist. My songs are either based on old Protestant hymns or Carter Family songs or variations of the blues form. What happens is, I’ll take a song and simply start playing it in my head. That’s the way I meditate.” “I wrote ‘Blowin’ in the Wind’ in 10 minutes, just put words to an old spiritual, probably something I learned from Carter Family records. That’s the folk music tradition – you use what has been handed down. ‘The Times They Are A-Changing’ is probably from an old Scottish folk Song.” "I'll be playing Bob Nolan's 'Tumbling Tumbleweeds,' for instance, in my head constantly -- while I'm driving a car or talking to a person or sitting around or whatever. People will think they are talking to me and I'm talking back, but I'm not. I'm listening to the song in my head. At a certain point, some of the words will change and I'll start writing a song.".......Bob Dylan
This case was never dismissed with prejudice
lets compare the facts with the verdict below for it is uncontested by Bob Dylan and or Bob Dylan's law firms Manatt, Phelps & Phillips ,Parcher Hayes & Snyder, Gibson Dunn & Crutcher and Hecker Brown and Sherry that Bob Dylan and people in Bob Dylan's entourage have solicited James Damiano's songs and music for over ten years.
http://www.youtube.com/watch?v=jal8m1jjpFU
Back with more later |
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Date: July 7th, 2012 9:54 PM James DAMIANO, Plaintiff, v. SONY MUSIC ENTERTAINMENT, INC., and Bob Dylan, Defendants.
Civ. A. No. 95-4795(JBS). United States District Court, D. New Jersey.
December 16, 1996. Opinion Denying Reconsideration August 20, 1997. 624*624 625*625 Steven M. Kramer,[*] Steven M. Kramer & Associates, New York City, for Plaintiff.
Steven D. Johnson, Hecker, Brown, Sherry & Johnson, Haddonfield, NJ, Stephen M. Hayes, Orin Snyder, Parcher, Hayes & Liebman, New York City, for Defendants.
OPINION
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).[1] Defendants seek judgment on the merits, as well as dismissal as a sanction under Rule 11, Fed.R.Civ.P., 626*626 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. § 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, 104 S.Ct. 2144, 79 L.Ed.2d 910 (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, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Supreme Court decisions mandate that: "[w]hen 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, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (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. at 248, 106 S.Ct. at 2510). 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 meta-physical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (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, 106 S.Ct. at 2511.
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 627*627 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.[2] 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 Associates v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.), cert, denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (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.[3]
Plaintiff has not presented evidence to the contrary, but merely asserts that "[p]laintiff has registered almost all of his works" and the rest will be registered prior to this court's decision. (Pl. Br. at 25) (emphasis added). Specifically, plaintiff alleges that his work "Only God Knows," which contains several lines that are allegedly infringed by Dylan's "God Knows," and the lyric "Conceit 628*628 is a disease" were in the process of being copyrighted at the time he submitted his opposition brief. Defendants, however, dispute the accuracy of this assertion and argue that a search of U.S. Copyright Office records revealed no new registrations by Damiano in 1996. (Def. Reply Br. at 5). Further, plaintiff has failed to produce any proof of filing to support his claim of pending registration for the two sets of lyrics in question. See Wilson v. Mr. Tee's, 855 F.Supp. 679, 682 (D.N.J.1994). Thus, summary judgment will be granted for these lyric infringement claims since plaintiff has failed to establish a prima facie case of infringement.
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:[4]
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"[5]
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]"[6]
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 On the door to hell" from hell goes rolling by"
9. "No one to run from "I don't cheat on myself And no reason to hide" I don't run and hide"
10. "I can pretend" "I don't pretend" 629*629 11. "Maybe there's a reason for "God knows there's a purpose" a purpose"
12. "What good is a man" "What good am I" a. Originality
A key point in this case is the disagreement between the parties as to the amount of originality needed for a work to be copyrightable. Plaintiff contends that "just a dash" will suffice. See Universal Athletic Sales Co., 511 F.2d at 908 ("[E]ven a modicum of creativity may suffice for a work to be protected."). Defendants, however, argue that the common words and phrases and cliches used in plaintiff's lyrics are not subject to copyright protection. See Jarvis, 827 F.Supp. at 291 (citing Perma Greetings, Inc. v. Russ Berrie & Co., Inc., 598 F.Supp. 445, 448 (E.D.Mo.1984)); O'Brien v. Chappel & Co., 159 F.Supp. 58 (S.D.N.Y.1958) (holding that phrase "night and noon" is not protectible).
Plaintiff relies on the decision in Jarvis v. A & M Records, for the proposition that even common words can be protected if placed in a certain arrangement. For example, he argues that coupling the word "stumble" with the word "lips" creates a sufficiently original arrangement of otherwise trite words. Likewise, plaintiff argues that an arrangement combining the cliche "truer words have not been spoken" with the word "broken" is creative enough to be worthy of protection. Thus, plaintiff concludes, Bob Dylan cannot subsequently use the same pairs of words or phrases together in a lyric, even if separated by many intervening lines and ideas in some instances, without infringing plaintiff's original work.
The law of copyright does not support the logical extension of plaintiff's theory. In effect, he asks us to grant him a monopoly over the use of common combinations of words such as "bell" and "hell," "run" and "hide," or "mind" and "behind" merely because they are found together in a single song — regardless of context or placement within the song. Such a result would not only stifle creativity, it would contravene the very policy behind copyright law and the rule requiring sufficient originality for a work to be protected. As the Jarvis court noted, "the policy behind the rule is to prevent a deterring effect on the creations of new works because of author's fears of copying innocuous segments." Jarvis, 827 F.Supp. at 291. Indeed, the law of copyright has absolutely no interest in tying up random, fortuitous combinations of words.
Additionally, the court notes that plaintiff's reliance on Jarvis is misplaced. In that case, the defendants admitted to copying elements of the plaintiff's song via digital sampling. Since sections of the plaintiff's work were actually reproduced and used in the infringing work, there was no question as to whether the arrangement was similar — it was identical. Unlike in the present case, "the precise relationship of the phrases vis a vis each other was copied." Id. at 292 (emphasis in original). Thus, the issue was not simply whether the common words "move" and "free your body" were protectible in a given arrangement, but rather, whether the copying was qualitatively or quantitatively sufficient to constitute an appropriation of plaintiff's work. The defendants in Jarvis raised a fact question on that issue and so summary judgment was denied.
In this case, copying has not been conceded, and the question of whether plaintiff's arrangement of common words and phrases is distinctive enough to deserve protection is at the heart of the parties' dispute. Even if copying were conceded as in Jarvis plaintiff would not survive summary judgment because no reasonable jury could conclude that the words and phrases allegedly copied by Dylan were quantitatively or qualitatively important to the whole of plaintiff's allegedly infringed works. The words and phrases in question comprise nothing more 630*630 than a single line or two of an entire song, and the songs themselves provide completely different contexts for the allegedly infringed words and phrases. Further, when taken as a whole, no jury could find substantial similarity between the lyrics of Damiano and Dylan. Summary judgment is appropriate in copyright actions based on lyrics where no reasonable jury could find substantial similarity between the works at issue. Nelson v. PRN Productions, Inc., 873 F.2d 1141 (8th Cir.) (trial court carefully studied lyrics involved and determined that reasonable minds could not differ as to absence of substantial similarity), cert. denied, 493 U.S. 994, 110 S.Ct. 544, 107 L.Ed.2d 541 (1989). The issue of substantial similarity need not be reached here, however, because plaintiff fails to demonstrate a threshold of originality of his lyrics.
Insofar as the infringement of plaintiff's lyrics depends on there being some protectible element in his work, plaintiff cannot establish a copyright action. The lyrics he claims were infringed are nothing more than unprotectible phrases and cliches, and even when taken as a whole, they are not substantially similar to Dylan's work. Thus, summary judgment is granted on plaintiff's lyric claims, without the need to reach any additional elements comprising an infringement action.
C. Plaintiff's Music Infringement Claim
In addition to his lyric infringement claims, plaintiff asserts infringement of his instrumental composition, "Steel Guitars," by Dylan's "Dignity."
1. Ownership
There has been a fair amount of confusion concerning the registration of plaintiff's song. Plaintiff produced during discovery a tape, marked as Exhibit 71 of defendants' moving papers, which contained the song he called "Steel Guitars." (Exhibit 71 version). That song has been analyzed by both parties' experts and compared to "Dignity."
Defendants now contend, however, that the Exhibit 71 version of "Steel Guitars" was never registered with the Copyright Office. Plaintiff claims to have submitted a tape for registration in 1988, marked PAU X-XXX-XXX, which, according to plaintiff's attorney, contains "Steel Guitars" as the last song on side B. (Copyright tape version). The version of "Steel Guitars" on the copyright tape, however, is not the same as the one on Exhibit 71. While there are common elements in the two versions, they are certainly not identical. Because of the confusion, the court has considered both versions of the allegedly infringed song.
First, the court notes that the Exhibit 71 version cannot be the basis of an infringement claim because plaintiff is unable to show that the work was registered with the Copyright Office. Thus, he has failed to establish a prima facie case of musical infringement for that version of "Steel Guitars." The Copyright tape version, on the other hand, although not originally identified as infringed work, apparently was registered. The court will therefore analyze the remaining elements of an infringement claim for the registered version only.
2. Copying
Since there is no direct proof of copying in this case, plaintiff may establish copying if he can show (a) defendants' access to the copyrighted work; and (b) substantial similarity between the works to support an inference of unlawful copying. 827 F.Supp. at 289 (citing Whelan Associates, Inc., 797 F.2d at 1232).
a. Access
Plaintiff asserts that "the bulk of his life's work" was submitted to Sony beginning in 1982. (Compl. at 2). He also alleges that he was told to bring his songs to several concerts which he attended courtesy of Sony. Plaintiff has produced evidence that after these concerts, he was allowed backstage and gave his work to Dylan or his agents. (Damiano Decl. at ¶¶ 2, 5; Dep. of Pam Damiano at 77-84, 97-104; Dep. of Brad Wright at 105-112). Taking these allegations as true, plaintiff has demonstrated a genuine issue of material fact as to whether defendants had access to his work.
631*631 b. Similarity to Infer Copying
In addition to showing defendants' access to his work, plaintiff must also show that his song and Dylan's song were substantially similar in order to infer that copying occurred. This is the so-called "extrinsic test" of substantial similarity, which calls for a dissection of the musical structure of the two pieces in search of objective similarities. Expert testimony is permitted, and often useful, in establishing substantial similarity at this phase of the inquiry. Although both sides retained experts for the comparison of plaintiff's "Steel Guitars" to Dylan's "Dignity," the experts analyzed the irrelevant Exhibit 71 version and not the one on the Copyright tape. Plaintiff's expert concluded that the melody of "Dignity" and plaintiff's Exhibit 71 version were thirty-two percent similar. Since the two versions of "Steel Guitars" are themselves different, however, the court will not consider the expert testimony as it might apply to the Copyright tape version. Without the benefit of expert testimony or other evidence specific to the Copyright tape version of plaintiff's song, the court must engage its own analysis of the components of the songs. To the ear of this court, there is no substantial similarity in the structure, instrumentation or melody of the two songs. These songs "speak" for themselves and no reasonable factfinder could find substantial similarity.
Although this alone would dispose of plaintiff's musical infringement claim, the court will continue so as to complete this analysis.
3. Substantial Similarity to Show Appropriation
The final step of an infringement analysis is the so-called intrinsic test of substantial similarity which seeks the response of a lay person to the "total concept and feel" of the two songs at issue. See Whelan, 797 F.2d at 1234. "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 Cos., 654 F.2d 204, 208 (2d Cir.1981).
After listening several times to both Dylan's "Dignity" and plaintiff's "Steel Guitars" as it appears on the Copyright tape, this court is convinced that no reasonable juror could find the two songs substantially similar in total concept and feel. Plaintiff's song, an instrumental, consists of two guitars — one that plays a fairly repetitious baseline, and one that plays a seemingly improvised free melody. Dylan's song has full instrumentation and accompanying lyrics. The overall effect of the two pieces is quite dissimilar — put simply, they just don't sound alike. The lack of substantial similarity necessarily leads to a conclusion that Bob Dylan did not improperly appropriate plaintiff's work and thus ends the analysis of plaintiff's music infringement claim. Summary judgment will be granted in favor of defendants as to all of plaintiff's copyright infringement claims.
D. Plaintiff's Remaining Claims
Mr. Damiano also asserts federal claims under the Lanham Act and RICO, and state law claims on the theories of fraud, breach of confidence and misappropriation. To the extent that they all are based on the alleged plagiarism or theft of plaintiff's work by Bob Dylan, the dismissal of his copyright infringement claim mandates dismissal of the others since Damiano cannot establish that Dylan copied or even used any of his work.
Defendants also raise additional grounds for dismissal of plaintiff's accompanying federal and state law claims.
1. Lanham Act
Plaintiff's claim here revolves around the contention that he is the "co-author" of works that Dylan has falsely designated as his own, thus misleading the public and depriving Damiano of proper credit for his work. Although, as plaintiff points out, the elements of copyright infringement and Lanham Act claims are somewhat different, the fact that Damiano cannot establish that his work was copied by Dylan surely precludes a reasonable juror from finding that the two coauthored 632*632 any works. Plaintiff has failed to present any evidence that would support his Lanham Act claim, and thus, summary judgment will be granted in favor of the defendants.
2. RICO
Plaintiff alleges that defendants engaged in "massive mail fraud" by putting into interstate commerce recordings containing fraudulent statements, namely, that Bob Dylan created songs on the recordings which were actually created by plaintiff.
Plaintiff's RICO claims must fail because they are actually nothing more than copyright infringement claims presented as mail fraud and copyright infringement is not a predicate act under RICO. Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir.1996). Further, since plaintiff has failed to show that Dylan copied any of his work, he cannot show that the dissemination of Dylan's recordings or the statements contained therein were in any way fraudulent. Summary judgment is therefore granted on plaintiff's RICO claims.
3. State Claims
Defendants argue that plaintiff's state claims are pre-empted by the federal copyright law. Plaintiff does not respond to the pre-emption argument.
Section 301 of the copyright act explicitly preempts state laws that (1) fall within the subject matter of the federal copyright law and protect works that are fixed in tangible medium of expression; and (2) create legal or equitable rights that are equivalent to any of the exclusive rights granted to the copyright holder and specified in Section 106. Jarvis, 827 F.Supp. at 296.
Insofar as any of plaintiff's state claims turn on the alleged unauthorized copying or use of his lyrics and music, they are preempted by federal copyright law. As an initial matter, the court notes that plaintiff has not attempted to argue that his state claims arise from anything other than the alleged theft of his songs by Bob Dylan.
a. Misappropriation of Property
Plaintiff's misappropriation claim is based on the alleged unauthorized use of plaintiff's materials by Bob Dylan. This claim is equivalent to plaintiff's copyright infringement claim and thus is pre-empted.
b. Breach of Confidence and Fraud
Without reaching the question of pre-emption on plaintiff's final state law claims, the court finds that plaintiff has failed to establish either claim. First, plaintiff has offered no proof to show that defendants owed him any duty or that such a duty could have been breached by their actions. Second, plaintiff has failed to establish a claim for fraud, especially to the degree of specificity required by Rule 9(b), Fed.R.Civ.P. Plaintiff has not produced any proof of direct misrepresentations by defendants. At best, this court will accept as true plaintiff's allegation that Sony represented to him that he would be credited and compensated if Dylan used his work. Plaintiff, however, has failed to show that his work was eve |