2020 U.S.P.Q.2d 10369 (S.D.N.Y. 2020)
Ernie Hines d/b/a Colorful Music
“Help Me Put Out The Flame (In My Heart)”
Shawn Carter p/k/a Jay-Z;
Timothy Mosley p/k/a Timbaland
“Toe 2 Toe”
Comment by Charles Cronin
In April 2020 the District Court granted defendants’ motions to dismiss based on insufficient service and failure to state a claim. It also granted the plaintiff’s motion to amend his complaint provided he pay the fees defendants incurred in defending their motions to dismiss. Apparently the plaintiff had no intention of paying these fees and, incredibly, instead filed a motion to withdraw from the instant case while simultaneously filing the same lawsuit against the same defendants under a different caption, and under the auspices of a different judge.
Defendants’ attorneys responded with a searing letter to the plaintiff (below) warning him of the potential consequences of his “bad faith tactics” and also establishing that the expert they had retained, and the plaintiff’s expert — apparently unwittingly — also, had established that the contested expression was non-protectable, having been used by numerous musicians preceding the plaintiff.
On May 11th, 2020 defendants filed a Response to Plaintiff’s Motion of Reconsideration and Notice of Withdrawal (below) setting forth the same arguments to the Court as in the letter to the Plaintiff of a week or so earlier. A statement in the 7th footnote of this Response neatly encapsulates plaintiff’s motivation: The [plaintiff’s] motion also sought to avoid the payment of legal fees to the Record Label Defendants until “the conclusion of the litigation” in order to try to leverage monies from Defendants through the protracted litigation of this dispute…” Poor Ernie Hines, now elderly, not a rap fan, mired in a time and money sinkhole he instigated.
District Court Order Granting Defendants’ Motion to Dismiss: PDF
Letter from Defendant’s Counsel to Plaintiff’s: PDF
Defendant’s Response to Plaintiff’s Motion for Reconsideration and Notice of Withdrawal: PDF