Chicago IP Attorney & Lawyer : R. David Donoghue : Chicago IP Litigation Blog

Johnson v. Cypress Hill, No. 03 C 9452, Slip Op. (N.D. Ill. Jul. 7, 2008) (Norgle, J.).

Judge Norgle struck defendants’ motion to dismiss plaintiff Johnson’s copyright infringement claim. The Court previously denied summary judgment as to the other plaintiffs, Watts and Jones - click here to read the Blog's prior post about that opinion. Plaintiffs authored the song “Is It Because I’m Black” in 1968 and recorded a version of it in 1969 (the “Song”).  Plaintiffs alleged that defendants, including the musical group Cypress Hill (click here for some of the group’s music on their MySpace page), infringed their copyright in the Song by using parts of it in their Black Sunday album.
 

Johnson’s copyright claim is based upon a 1997 registration for a compilation of songs allegedly containing the Song. But a review of a certified copy of Johnson’s compilation from the Copyright Office proved the Song was not on the deposited compilation. Because the Song was not a part of the registered work, Johnson could not show ownership of a valid copyright. The Court, therefore, dismissed the claim.
 

The Court also held that Johnson’s failure to file a Notice of Use pursuant to the 1909 Copyright Act was irrelevant because Congress deleted the Notice of Use requirement effective January 1, 1978, before any alleged infringement occurred.

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Allen v. Destiny’s Child, No. 06 C 6606, Min. Order (N.D. Ill. Jul. 30, 2007) (Holderman, C.J.).*

Judge Holderman granted in part defendant Andrea Murray’s motion to dismiss plaintiff’s copyright infringement and related state law tort claims.  Plaintiff alleges that defendants, including the musical group Destiny’s Child and its members, infringed plaintiffs’ copyrights in his song “Cater 2 U” by producing and selling Destiny’s Child’s song of the same name (watch the video of  Destiny’s Child’s version on their website).  The Court denied the motion as to plaintiff’s copyright infringement claims for the reasons set forth in a separate order of the same date (you can read more about it in the Blog’s archives). The Court dismissed with prejudice plaintiff’s misappropriation claim because plaintiff failed to prove that Illinois recognizes a misappropriation claim separate from the Illinois Trade Secret Act. Additionally, plaintiff failed to identify a difference between his misappropriation claim and his claims for breach of implied contract and copyright infringement. The Court also dismissed plaintiff’s fraudulent misrepresentation claim with prejudice because plaintiff failed to produce evidence beyond a broken promise that defendants intended fraud. 

Defendant also argued that plaintiff’s breach of fiduciary duty and breach of contract claims should be dismissed because the alleged breaches occurred in or before 2000, but plaintiff did not file his complaint until November 2006. But plaintiff pled that he did not become aware of the breaches until the November 2004 release of the Destiny’s Child album that included Cater 2 U. Because plaintiff’s complaint did not establish a statute of limitations defense, the Court allowed the claims. Additionally, the Court noted that defendant’s arguments regarding pleading requirements were based in Illinois, despite the fact that federal pleadings are controlled by federal law.

*  You can read a copy of the Minute Order here.

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Allen v. Destiny’s Child, No. 06 C 6606, Min. Order (N.D. Ill. Jul. 30, 2007) (Holderman, C.J.).*

Judge Holderman granted in part defendants’ motion to dismiss plaintiff’s copyright infringement claims. Plaintiff alleges that defendants, including the musical group Destiny’s Child and its members, infringed plaintiffs’ copyrights in his song “Cater 2 U” by producing and selling Destiny’s Child’s song of the same name (watch the video of  Destiny’s Child’s version on their website). The Court dismissed the infringement claims regarding the two copyrights that plaintiff did not own, but allowed the claims as to plaintiff’s other two copyrights. Plaintiff’s allegations that he owned the two copyrights, provided copies of his performances of the song to various defendants who relayed them to Destiny’s Child and that the Destiny’s Child song is musically and lyrically similar were sufficient to meet the new Fed. R. Civ. P. 12(b)(6) motion to dismiss standard set forth in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1969 (2007) (read more about the decision at the University of Chicago Faculty Blog). The Court did, however, dismiss claims against defendant McDonald’s. McDonald’s was only charged with having received financial gain from the infringement because it sponsored a Destiny’s Child tour during which the song was performed. The Court quoted upon Twombly in explaining its decision:

The court is not convinced that [plaintiff] has “nudged [his] claims across the line from conceivable to plausible.”

*  You can read a copy of the Minute Order here.

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