Opinion
20-CV-417 (JLS)
2022-07-13
Jermaine Jevon HOWARD, "Chooie", Plaintiff, v. Shawn Jay-Z CARTER (Rocafella Records), Kareem Biggs Burke (Rocafella Records), Damon Dame Dash (Rocafella Records), Defendants.
Jermaine Jevon Howard, Buffalo, NY, Pro Se. Alex Spiro, Pro Hac Vice, Morgan L. Anastasio, Quinn Emanuel Urquhart & Sullivan LLP, New York, NY, Paul B. Maslo, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan, LLP, Houston, TX, for Defendant Shawn Jay-Z Carter.
Jermaine Jevon Howard, Buffalo, NY, Pro Se.
Alex Spiro, Pro Hac Vice, Morgan L. Anastasio, Quinn Emanuel Urquhart & Sullivan LLP, New York, NY, Paul B. Maslo, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan, LLP, Houston, TX, for Defendant Shawn Jay-Z Carter.
DECISION AND ORDER
JOHN L. SINATRA, JR., UNITED STATES DISTRICT JUDGE
Before the Court is Defendant Shawn Jay-Z Carter's request for judicial notice and motion to dismiss. Dkt. 7. For the following reasons, his request and motion are granted.
BACKGROUND
Pro se Plaintiff Jermaine Jevon Howard commenced this action against Defendants Shawn Jay-Z Carter, Kareem Biggs Burke, and Damon Dame Dash, based on diversity jurisdiction, asserting breach of contract and copyright ownership claims. Dkt. 1. Pursuant to its pre-service screening under 28 U.S.C. § 1915(e)(2), the Court dismissed all claims against Burke and Dash because Howard failed to allege any wrongdoing by them, and dismissed the breach of contract claim because the Court lacked subject matter jurisdiction over it. Dkt. 3. Howard was given an opportunity to amend, but he failed to do so. Thus, the only claim remaining is the copyright ownership claim against Carter.
Howard alleges that Carter failed to pay him royalties for songs they both "had copyrights to and [Carter] has performed," and which have been released on several of Carter's albums. Dkt. 1 at 4. Specifically, Howard alleges he assisted with songwriting on the following albums released by Carter: Reasonable Doubt; In My Lifetime, Vol. 1; Vol. 2 ... Hard Knock Life; Vol. 3 ... Life and Times of S. Carter ; and The Black Album. Id. at 5. He further alleges that he assisted with the "whole concept of Vol. 2 ... Hard Knock Life , tour and everything [he] had patented which [he] allowed [Carter] to use in 1997." Id.
As noted in his memorandum in support of his motion to dismiss, Carter is "one of the most famous rappers in the world." Dkt. 7-1, at 6.
In his motion to dismiss, Carter argues, among other things, that Howard's claim should be dismissed with prejudice because it is barred by the statute of limitations. Dkt. 7-1 at 11. According to Carter, the albums at issue were publicly released without giving any credit to Howard. And because the albums were commercial successes, Carter argues Howard's claim accrued on the day the albums were released. Thus, Carter asserts that, based on the three-year statute of limitations period for civil copyright actions, and the fact that the earliest and latest albums at issue were released on June 25, 1996, and November 14, 2003, respectively, Howard's claims expired between June 25, 1999, and November 14, 2006. Because Howard did not commence this action until April 7, 2020, and no tolling doctrine applies, Carter argues Howard's copyright ownership claim must be dismissed with prejudice.
In response, Howard argues that the three-year statute of limitations period "begin[s] at the point of the last act of infringement." Dkt. 11, at 2. He argues that this means his claim accrues every time the music at issue is downloaded—for example, he claims that if the music was downloaded in "January of 2022 then the window of Statute of Limitations begin[s] in January 2022 and expire[s] in January 2025 unless the music is downloaded or shared in between those dates." Id.
In reply, Carter argues that Howard is trying to assert a copyright infringement claim, which " ‘is the violation of an owner's copyright interest by a non-owner.’ " Dkt. 12, at 8 (quoting United States Naval Inst. v. Charter Communs., Inc. , 936 F.2d 692, 695 (2d Cir. 1991) ). Carter argues that since Howard is alleging that they were both co-owners of the music at issue, the statute of limitations rules for copyright ownership claims apply.
Howard filed an amendment to his response, which the Court will consider as a sur-reply. Dkt. 19. He argues that co-owners of a copyright can independently license, sue to protect, and transfer their respective interests. Dkt. 19, at 2. He cites to Davis v. Blige , 505 F.3d 90, 99 (2d Cir. 2007), to argue that copyright owners have the right "to protect their individual rights and do[ ] not need the permission of other copyright owners to file a copyright infringement claim." Id.
LEGAL STANDARD
On a motion to dismiss, the Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the non-moving party. Hooks v. Forman, Holt, Eliades & Ravin, LLC , 717 F.3d 282, 284 (2d Cir. 2013). To withstand dismissal, a pleading "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Courts may consider "facts stated on the face of the complaint, ... documents appended to the complaint or incorporated in the complaint by reference, and ... matters of which judicial notice may be taken." Goel v. Bunge, Ltd. , 820 F.3d 554, 559 (2d Cir. 2016).
DISCUSSION
I. JUDICIAL NOTICE
As an initial matter, Carter asks the Court to take judicial notice of the release dates of the albums at issue, which are: Reasonable Doubt on June 25, 1996; In My Lifetime, Vol. 1 on November 4, 1997; Vol. 2 ... Hard Knock Life on September 29, 1998; Vol. 3 ... Life and Times of S. Carter on December 28, 1999; and The Black Album on November 14, 2003. Dkt. 7-2, at 3. Carter also requests the Court take judicial notice of the Vol. 2 ... Hard Knock Life tour dates, which were from March 1999 to May 1999, and copyright registrations for the albums at issue. Id. Carter's request is supported by websites and copies of the copyright registrations. Dkts. 7-3, 7-4, 7-5. And Howard has not challenged Carter's request.
The Court grants Carter's request for judicial notice. Lewis v. M&T Bank , No. 21-933, 2022 WL 775758, at *1 (2d Cir. Mar. 15, 2022) ("Courts may take judicial notice of facts that ‘can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.’ ") (quoting Fed. R. Evid. 201(b)(2) ); see also Island Software & Comput. Serv., Inc. v. Microsoft Corp. , 413 F.3d 257, 261 (2d Cir. 2005) (concluding any error that may have occurred from the district court taking judicial notice of copies of copyright registrations was harmless because "[t]he district court [i]s entitled to take judicial notice of ... federal copyright registrations, as published in the Copyright Office's registry."); Hotel Emps. & Rest. Emps. Union, Loc. 100 v. City of New York Dep't of Parks & Recreation , 311 F.3d 534, 549 (2d Cir. 2002) (judicial notice of a website is appropriate when authenticity has not been questioned).
II. CARTER'S MOTION TO DISMISS
Turning to the merits of Carter's motion, the Court agrees that Howard's claim is time-barred. First, in response to Carter's motion, Howard seems to try to reclassify his copyright ownership claim as a copyright infringement claim. But "an action for infringement between joint owners will not lie because an individual cannot infringe his own copyright." Weissmann v. Freeman , 868 F.2d 1313, 1318 (2d Cir. 1989). As the Court concluded in its previous order, Howard is asserting a copyright ownership claim because he "is claiming ownership over a copyright owned by someone else and is seeking royalty payments in virtue of his asserted ownership." Dkt. 3, at 3; see also Minder Music Ltd. v. Mellow Smoke Music Co. , No. 98 CIV. 4496 (AGS), 1999 WL 820575, at *2 (S.D.N.Y. Oct. 14, 1999) (plaintiff's claims were copyright ownership claims because plaintiff "assert[ed] ownership of an interest currently held by defendants."). Therefore, the statute of limitations rules for copyright ownership claims apply. Davis v. Blige does not mandate a different result. 505 F.3d 90 (2d Cir. 2007) (discussing the rights of co-owners of copyrights with respect to non-owners).
Second, "[c]ivil actions under the Copyright Act are subject to a three-year statute of limitations." Merchant v. Levy , 92 F.3d 51, 56 (2d Cir. 1996) (citing 17 U.S.C. § 507(b) ). A copyright ownership claim "accrues only once, when a reasonably diligent plaintiff would have been put on inquiry as to the existence of a right." Wilson v. Dynatone Publ'g Co. , 892 F.3d 112, 118 (2d Cir. 2018) (quoting Kwan v. Schlein , 634 F.3d 224, 228 (2d Cir. 2011) ).
While an alleged author is aware of his claim to ownership of the work "from the moment of its creation," Merchant , 92 F.3d at 56, the author does not need to bring suit until there has been an "express repudiation" of that claim. Gary Friedrich Enters., LLC v. Marvel Characters, Inc. , 716 F.3d 302, 317 (2d Cir. 2013) (quoting Zuill v. Shanahan , 80 F.3d 1366, 1370-71 (9th Cir. 1996) ). Several events can trigger the accrual of a copyright ownership claim, including "when alleged co-owners learn they are entitled to royalties that they are not receiving." Id.
Here, Howard commenced this action on April 7, 2020. Thus, pursuant to the three-year statute of limitations applied to copyright ownership claims, for Howard's claim to survive, the earliest he would have had to have learned he was not receiving payments he was entitled to was April 7, 2017.
In addition to claiming that he helped write songs for albums released between 1996 and 2003, Howard also alleged that, upon Carter's request, he invested three million dollars into Carter's record label in November of 1996—roughly five months after the release date of Reasonable Doubt. Considering he had not received payments for his work on Reasonable Doubt , but allegedly made the investment anyway, and that he allegedly continued to help with the songwriting for albums released as late as 2003, to argue Howard was not aware he was not getting the payments he was owed prior to April 7, 2017, "strains credulity." Mohan v. Roc Nation, LLC , No. 14 CIV. 5075 LGS, 2015 WL 1782095, at *4 (S.D.N.Y. Apr. 15, 2015) (finding plaintiff, a sound engineer and music programmer who worked on three of the albums at issue here, had reason to know he was not receiving royalty payments owed because of his experience in the music industry and the fact that the albums he worked on were commercial successes). Howard should have known he was not receiving the royalties that he supposedly was entitled to when Carter "conspicuously exploit[ed] the copyright[s] without paying royalties." Gary Friedrich Enterprises, LLC , 716 F.3d at 317.
Nor has Howard alleged any facts that suggest his claim is subject to equitable tolling because he has not shown that "(1) [Carter] made a definite misrepresentation of fact, and had reason to believe that [Howard] would rely on it; [nor] (2) [that Howard] reasonably relied on that misrepresentation to his detriment." Buttry v. Gen. Signal Corp. , 68 F.3d 1488, 1493 (2d Cir. 1995). Howard's copyright ownership claim is, therefore, time-barred.
III. LEAVE TO AMEND
The Court recognizes that "[d]istrict courts should generally not dismiss a pro se complaint without granting the plaintiff leave to amend," unless doing so would be futile. Shibeshi v. City Univ. of New York , 531 F. App'x 135, 136 (2d Cir. 2013). Considering the Court finds Howard's claim accrued long before April 7, 2017, and that equitable tolling does not apply, amendment here appears to be futile. Nevertheless, Howard will have leave to amend to add any tolling claim, to the extent he is able. Howard shall have until July 29, 2022, to do so.
CONCLUSION
For these reasons, Carter's request for judicial notice and motion to dismiss are GRANTED. Howard's copyright claim is DISMISSED with leave to amend.
Howard is advised that an amended complaint is intended to completely replace the prior complaint in the action. "It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect." Arce v. Walker , 139 F.3d 329, 332 n.4 (2d Cir. 1998) (quoting Int'l Controls Corp. v. Vesco , 556 F.2d 665, 668 (2d Cir. 1977) ); see also Shields v. Citytrust Bancorp, Inc. , 25 F.3d 1124, 1128 (2d Cir. 1994). Therefore, Howard's amended complaint must include both his copyright claim and facts sufficient to allege his copyright claim is subject to tolling, so that the amended complaint may stand alone as the sole complaint to be answered. Such amended complaint is due by July 29, 2022. The Clerk of Court is directed to close this case if no such amended complaint is filed.