Cooper, et al. v. Chris Brown Entertainment, LLC, et al. [INPLAY]

No.9:21-cv-81870-XXXX (S.D. Fla. 2021)

Comment by Charles Cronin

The complaint (linked below) frequently references the plaintiff’s “common law copyright” in his song “I Love Your Dress.” The attorneys who drafted this complaint appear not to realize that any common law copyright interest plaintiff might once have been provided ceased to exist with the enactment of the current Copyright Act of 1976 that preempted state law copyright protection. The complaint refers to the plaintiff’s common law copyright in connection with his rights prior to registering the work, and his “statutory” copyright protection originating from the subsequent registration of his work with the U.S. Copyright Office. Every law student who has taken a copyright course knows that one acquires copyright protection under federal law from the moment one fixes an original work of expression.

If the complaint’s allegations are true, the plaintiff has made a solid showing of defendant’s access to the plaintiff’s work, and a strong likelihood of having been influenced by it in creating his song “No Guidance.” Even assuming such significant influence, however, whether the defendant’s song infringed upon the plaintiff’s depends on establishing that the defendant took from the plaintiff’s work substantial protectable musical and/or verbal expression. The complaint falters badly in its attempt to establish such taking. Can the phrase “you got it girl” be monopolized so other song writers may not use it? Likewise, the theme of a suitor’s gallant admiration of an attractive woman? Or the use of a percussive “metronome-like click”? It appears the plaintiff is in an awkward position in which, while there are a fair number of demonstrable sonic and topical similarities between the songs, the specific sounds, styles, topics, are not protected expression. It was, presumably, this realization that prompted the complaint’s drafters to reference the increasingly discredited assertion of  “a high degree of combined similar features.” When, as here, the similar features, allegedly combined, are not independently copyrightable, the threshold for infringement is typically “virtual identity” to which we are nowhere near for the works in this dispute.

We can’t help but mention an extravagantly far-fetched and ultimately irrelevant claim in the complaint that defendant’s use of the expression “flew the coop” in “Guidance” was used “mockingly after stealing substantial portions [of Cooper’s work].”

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Complaint (October 05, 2021): PDF