(N.D. Tex., 2018, cv-880)
“Best I Had”
Chick-Fil-A Advertising Agency
Ads aired on ESPN
Comment by Charles Cronin
It’s unclear from the Complaint what property rights the plaintiff claims: “Plaintiff Platinum Jack is the owner of all rights and publishing in … ‘Infringed Composition’. These rights include a performance of the work by the band Drayter…” Presumably the plaintiff is claiming ownership of the copyrights for the underlying musical work, and also the sound recording of a particular performance of it.
It appears that plaintiff’s (contingency-fee?) lawyers have not invested much in this dispute. The exiguous Complaint contains nothing more than boilerplate found in every copyright infringement complaint, and a sweeping infringement allegation with nary a word of factual evidence to support it:
“In the Fall of 2017 it came to Platinum Jack’s attention that the Defendants and/or their agents reproduced, synchronized, distributed, and/or publicly performed (and/or caused to be reproduced, distributed and or publically performed) a substantial portion of the Infringed Composition without Plaintiff’s authorization in a televised commercial…”
In the sonic background of the defendants’ commercial one hears the generic sound of a pounding hard rock drum track that contains no protectable original expression. The only potentially feasible claim might be based on the plaintiff establishing that the defendants sampled their recording of this rhythmic tattoo. But sampling can be difficult and costly to prove, and the plaintiff here appears to have opted for a cut-rate fishing expedition attempting a quick shake down of two deep-pocketed defendants.
The Court has permitted the Plaintiff to submit three Amended Complaints to correct the deficiencies of the initial filing. Despite this accommodation (or perhaps as a result of it) the Court is no closer to reviewing the substantive claims in this case. On 6 January 2020 the Court vacated the scheduled trial conference because it was reviewing the exasperated Defendants’ most recent Motion to Dismiss for Plaintiff’s Failure to State a Claim. Perhaps the Plaintiff is aware he is unlikely to prevail on the merits, and hopes his deficient filings will impose onerous attorney’s fees on the Defendants, which will prompt them to settle.