Updated Comment by Awani Kelkar

On July 18, 2016, Defendants moved to dismiss copyright infringement claims involving Justin Timberlake’s hit “Damn girl”, which allegedly contained an unauthorized sample from Plaintiff’s “New Day”. The motion to dismiss contends that in Petrella v. MGM, Inc., the Supreme Court established that retrospective relief is limited to infringement occurring within three years before the time of suit. The Plaintiffs should therefore, be unable to  seek relief for alleged infringements occurring prior to February 17, 2013.

In the most recent development in this dispute, however, US District Judge Vernon Broderick ruled that because the Second Circuit follows the discovery rule for determining the applicability of the statute of limitation, Patrella was not applicable to this case. Under the discovery rule, the limitation period starts only when the plaintiff discovers or should have discovered, the alleged infringement. According to the Plaintiff’s, they had ‘never heard Damn Girl before August 2015, never purchased or possessed a copy of the Album or DVD, and never attended a Timberlake concert or saw one on television or DVD.’ Thus, claims for infringements that occurred more than three years before the suit was filed could still be timely, since the infringement was discovered at a latter date. Moreover, Patrella did not overrule the discovery rule, and even took notice of its applicability among nine circuits, prompting Judge Broderick to assert that: “I am bound by the precedent in this circuit to apply the discovery rule and not to apply the three-year lookback.”

This procedural ruling only holds that the suit was filed in a timely manner and cannot be dismissed under Federal Rule of Civil Procedure 12(b) (6). A substantive ruling on the merits of the infringement claim is yet to come.

Comment by Charles Cronin

Perhaps this far-fetched claim was prompted by the regrettable outcome of the recent infringement case against Robin Thicke in which generic sonic commonalities between two songs were the basis for a musically know-nothing jury’s finding of liability.

The prosaic complaint (below) submitted on behalf of the heirs of a deceased funk and disco performer claims that Justin Timberlake’s song copies “a substantial part of the drum, conga drum, organ, bass guitar, electric guitar, and saxophone parts” from the plaintiff’ song. It also claims “the copied portions including the introduction, rhythm, harmony, melody, and ‘hook’ …  are copyrightable elements individually and in combination.” This is a specious assertion: the only independently copyrightable elements of the plaintiff’s work are the melodic scraps of the saxophone part, and the defendants’ work contains nothing similar to them.

The complaint’s vague and sweeping infringement claims are inevitable given that the two songs share nothing more than musical conventions found in innumerable works in the same genre. While never expressly stated, the plaintiff is asserting copyright in the simple structure of “A New Day” (an incessant commonplace drum track preceding a repeating standard chord progression sounded on an electronic organ, over which a saxophone meanders) and its instrumental combination (percussion, electronic organ, etc.). Neither the structure nor instrumentation are original, or contain protectable expression. (The plaintiff’s work sounds like a film noir soundtrack, or a parody of one… something one might hear in a Naked Gun movie.)

In 1969 the plaintiff’s work, “A New Day” obtained a copyright registration as an unpublished work. Presumably, the author Perry Kibble, submitted with his application, sheet music, or perhaps a lead sheet, of the work. The complaint provides a copy of the application, but not of the work submitted to the Copyright Office. The deposit copy might damage the plaintiff’s claim as it likely contains scant information about the sound of the work, which is the flimsy basis for this claim. (If/when the deposit copy becomes part of the case docket we will post it here.)

Therefore, to the extent Justin Timberlake, et al. had access to the plaintiff’s work it was through the sound recording of it, released as a 45 rpm single in 1969. (Sound recordings were not protectable under US copyright law at the time.) Curiously, just before filing this suit, the plaintiff filed a renewal application for “A New Day,” in which it asserted both that the work had never been registered, and also that the renewal was based on the first publication of a work that had been registered as an unpublished work. It would be interesting to compare the deposit copy of the purportedly recently published sheet music of “A New Day” with that submitted by Kibble in 1969 to determine whether the plaintiff is attempting to expand the scope of registered expression in Kibble’s work.

While the plaintiff’s infringement claim appears to be nothing more than a ruse to extract a bounty from a deep pocketed, image-conscious defendant, it is difficult to summon sympathy for as calculating merchandisers as Justin Timberlake and his handlers. Like the similar Hollywood fabrications Robin Thicke (defendant in a prior case that likely inspired this benighted claim) and Justin Bieber, Justin Timberlake deliberately co-opts sounds, language, and imagery associated with black performers for his songs and videos associated with them.

“Damn Girl” is full of “ghetto” allusions like a seedy 7-11 parking lot as the backdrop for the video recording, a reference to a cheap cosmetics line (Maybelline), and an extravagantly unpersuasive demonstration of sexual interest in a young black woman by Justin Timberlake, laughably costumed in rapper-esque gear. These allusions provide the performer a fashionable façade of racial inclusivity but, more importantly, they offer white teenagers a frisson of risk and parental disapprobation that prompts purchases of this recording and similarly schlocky Timberlakiana.

Complaint: PDF

Opinion by Hon. Vernon S. Broderick: PDF