Kanye, Jay-Z and Others Avoid Copyright Infringement Claim Because Two "Made In America" Songs Not Substantially Similar

McDonald v. West et al., No. 14-cv-8794 (S.D.N.Y. Sep. 30, 2015) [Doc. 42].

In case about two songs both called "Made In America," the Court dismissed the Complaint against Kanye West, Jay-Z and others alleging copyright infringement of the plaintiff's song, pursuant to Rule 12(b)(6).  First, the Court found that even though the two songs shared the same title, the song title "Made In America" was not copyrightable.  "It is too brief, common, and unoriginal to create any exclusive right."  Second, the Court analyzed similarity between the lyrics in the chorus of each song, along with alleged musical similarity.  However, the Court found that plaintiff did not plausibly plead substantial similarity.  The Court then turned to a "holistic" comparison of the two songs, because even if the indvidual elements that make up Plaintiff's songs are uncopyrightable, they still may represent a protected selection and arrangement of unprotectable elements.  The Court found that no reasonable jury could find the two songs similar, lyrically or musically.  The differences were major.  "Where any reasonable juror would conclude - as here - that the differences are many, and what similarities exist are based on unprotectable elements, the two works are not substantially similar as a matter of law."  Accordingly, the Court dismissed the complaint.

Suit Against Kanye West Dismissed On "De Minimis" Grounds

Steward v. West, No. CV 13-02449 (C.D. Cal. Aug. 14, 2014).

In this copyright infringement action against Kanye West et al concerning a sample, the Court granted defendants' Rule 12(c) motion for judgment on the pleadings.  On the motion, the Court considered the sound recordings and held that, while plaintiff's sound recordings were sufficiently original to be protectable, defendants' copying was de minimis.  "The result of these distortions and the short length of the samples is that the average audience would not recognize plaintiffs’ Song in any of Defendants’ songs without actively searching for it. In the Ninth Circuit, digital sampling is de minimis when 'the average audience would not recognize the appropriation.'"  Accordingly, the copyright infringement (and dependent contributory liability claims) were dismissed.

Kanye Didn't Infringe, 7th Circuit

Peters v. West, No. 11-1708 (7th Cir. decided Aug. 20, 2012).

Plaintiff sued Kanye West, alleging that West's song "Stronger" infringed Plaintiff's song, also entitled "Stronger".  The hook to both songs draws from the aphorism coined by Friedrich Nietzsche: "what does not kill me, makes me stronger."  The District Court granted West's motion to dismiss, and the 7th Circuit affirms, agreeing that the two songs are not similar enough to support a finding of copyright infringement.

The court structured its analysis as (1) whether West had an actual opportunity to copy the original work (independent creations is a defense); and (2) whether the two works share enough unique features to give rise to a breach of the duty not to copy another's work.  The Court found that West had an opportunity to copy the work based on plaintiff's relationship with West's manager and collaborator.


"Once a plaintiff establishes that a defendant could have copied her work, she must separately prove—regardless of how good or restricted the opportunity was—that the allegedly infringing work is indeed a copy of her original."  The Court was not not persuaded that the similarities alleged by Plaintiff rose to the level of copyright infringement.  The Nietzsche aphorism is commonly used (indeed, was the subject of another Top 100 song by Kelly Clarkson at the time of oral argument of the appeal).  Next, the Copyright Act does not protect rhyme pattern, a method of expression, but instead protects only the actual expression.  Lastly, references in both songs to the model Kate Moss were entirely different.

"Vince P’s theory is that the combination of the songs’ similar hooks, their shared title, and their references to Kate Moss would permit a finding of infringement. But, as we have discussed, in the end we see only two songs that rhyme similar words, draw from a commonplace maxim, and analogize feminine beauty to a specific successful model. These songs are separated by much more than “small cosmetic differences,” JCW, 482 F.3d at 916; rather, they share only small cosmetic similarities. This means that Vince P’s claim for copyright infringement fails as a matter of law. The judgment of the district court is AFFIRMED."

Sampling Suit - West, Common, & Redman

Rolling Stone reports:
Kanye West, Common, Method Man and Redman were all sued for sampling late jazz artist Joe Farrell’s 1974 song “Upon This Rock” without permission.

The case was filed in SDNY. Complaint below:

Firrantello v West et al COMPLAINT - Upload a doc

Read this doc on Scribd: Firrantello v West et al COMPLAINT

[Firrantello v. West et al., No. 08-cv-4785 (S.D.N.Y. filed 5/22/08)]

Kanye & Jay-Z "What? What?"

Kanye West and Jay-Z are among the co-defendants in a case filed in the District of Maryland (which Plaintiff erroneously describes in the caption as being in the Sixth Circuit).

Plaintiff Dayna D. Staggs -- who is likely appearing pro se -- has asserted...request your own copy of the complaint here. The complaint is an interesting, if not sometime confusing, read. But don't get the wrong idea; OTCS believes plaintiff's complaint would withstand a 12(b)(6) motion to dismiss for failure to state a claim!

From what we gather from the single spaced, unnumbered, 6 page complaint (which includes a single signature line for the multiple defendants), Plaintiff seeks injunctive relief, damages, and legal fees arising for copyright infringement, unfair competition, and "unauthorized use of Plaintiff [sic] likeness and Mtv sound recording, composition and internationally musical content entitled 'Volume of Good Life' herein described on phonorecord white label by the United States Library of Congress." Though Plaintiff's grammar and syntax could be improved, the allegations have a good chance of satisfying FRCP's liberal pleading standards (Rule 8). What could be a more "short and plain statement" than one completely lacking legalese?

Plaintiff alleges that he is the songwriter for the composition "Hollar at Me" (1985), released on EMI by R&B artists ICEE HOTT. But, this is all of minor relevance because the alleged infringement relates to Kanye West's release of "Good Life" on Roc-a-fella records. Plaintiff alleges to be the author of a composition and sound recording entitled "Volume of Good Life", which Kanye West sampled without authorization (and which his label released).

Additionally, "the vulgar, sexual and racially-charged nature of the Infringing master work is directly counter to [Plaintiff's] long established public persona, utterly inconsistent with the musician, artist clean image. And harms the reputation of the Dayna D Staggs Copyrighted Rock/Pop master work clean titled 'Volume of Good Life." [sic].

Despite the numerous grammatical errors in his complaint, Plaintiff appears to have some idea of what he is doing. For example, he sent cease and desist letters which "did not receive a favorable response". He alleges the labels have commercially profited from the infringement. He alleges willful infringement -- "Defendants are undoubtedly familiar with [Plaintiff], his songwriter likeness, and also are friends of the Plaintiffs myspace page located at www.myspace.com/dmystro." He makes claims for legal fees, and claims that he has no adequate remedy at law (though he later requests punitive damages and states "the Actual harm Plaintiff suffered is reflected in the amount of licensing fee that Plaintiffs lost because of the infringement").

So in sum, Plaintiff has asserted an unauthorized sampling claim against Kanye West and his label and publishers.

[Staggs v. West et al., No. 08-cv-0728-PJM (D.Md. filed Mar. 20, 2008).]