from the what-a-dumb-lawsuit dept
Last year we wrote about what we called the “dumbest gotcha story of the week,” involving the music annotation site Genius claiming that Google had “stolen” its lyrics. The only interesting thing about the story is that Genius had tried to effectively watermark its version of the lyrics by using some smart apostrophes and some regular apostrophes. However, as we noted, the evidence that Google “copied” Genius just wasn’t supported by the facts — and even if they had copied Genius, it’s unclear how that would violate any law. You can read that post for more details, but the simple fact is that a bunch of sites all license lyrics and have permission for them — and many use a third party such as LyricFind to supply the lyrics. But how those lyrics are created is… however possible. Even as sites “license” lyrics from publishing companies, those companies themselves don’t have their own lyrics. So basically lyric databases are created however possible — including having people jot down what they think lyrics are… or by copying other sites that are doing the same. And there’s nothing illegal about any of that.
And yet, for reasons that are beyond me, last December, Genius sued both Google and LyricFind over this. As we noted at the time, it was one of the dumbest lawsuits we’d seen in a while, and it would easily fail. And that is exactly what has happened. The lawsuit was removed from NY state court to federal court, and while Genius tried to send it back, the judge not only rejected that request, but she dismissed the entire lawsuit for failure to state a claim (that’s legal talk for “wtf are you even suing over, that doesn’t violate any law, go home.”)
There were a bunch of issues that Genius tried to raise, but all of them were pretend issues. As we noted all along, Genius has no copyright interest in the lyrics (indeed, it has to license them too — and, amusingly, in its early days, songwriters accused Genius of being a “pirate” site for not licensing those lyrics…). And so Genius tried to make a bunch of claims without arguing any copyright interest, but these were all really attempted copyright claims in disguise, and the court rightly pointed out that copyright pre-empts all of them.
Breach of contract? Nah, copyright pre-empt’s that:
Plaintiff?s breach of contract claims are nothing more than claims seeking to enforce the copyright owners? exclusive rights to protection from unauthorized reproduction of the lyrics and are therefore preempted. The parties agree that Plaintiff is not the owner of the copyrights to any of the lyrics it transcribes, and Plaintiff concedes that it licenses lyrics from the copyright owners…. Although Plaintiff describes the rights it seeks to enforce as ?broader and different than the exclusive right existing under the Copyright Act,? based on ?the substantial investment of time and labor by [Plaintiff] in a competitive market,? … and asserts breach of contract claims based on alleged violations of Plaintiff?s Terms of Service, Plaintiff?s own ability to transcribe and display the lyrics on its website arises from the licensing rights Plaintiff has in the lyrics….
Plaintiff?s argument is, in essence, that it has created a derivative work of the original lyrics in applying its own labor and resources to transcribe the lyrics, and thus, retains some ownership over and has rights in the transcriptions distinct from the exclusive rights of the copyright owners…. This argument is consistent with the treatment of derivative works under federal copyright law….
Plaintiff likely makes this argument without explicitly referring to the lyrics transcriptions as derivative works because the case law is clear that only the original copyright owner has exclusive rights to authorize derivative works….
Even accepting the argument that Plaintiff has added a separate and distinct value to the lyrics by transcribing them such that the lyrics are essentially derivative works, because Plaintiff does not allege that it received an assignment of the copyright owners? rights in the lyrics displayed on its website, Plaintiff?s claim is preempted by the Copyright Act because, at its core, it is a claim that Defendants created an unauthorized reproduction of Plaintiff?s derivative work, which is itself conduct that violates an exclusive right of the copyright owner under federal copyright law.
Unjust enrichment? Yup. Pre-empted by copyright law. In that case, Genius had pointed to one case that showed an unjust enrichment claim avoided pre-emption, but the court points out that that case was quite different.
While the court in CVD Equipment Corp. listed deception as an extra element sufficient to avoid preemption, the Court finds, based both on the facts in that case and the Second Circuit decisions cited in support, that the decision in CVD Equipment Corp. was based on the defendant?s alleged abuse of a fiduciary relationship, which is not present in this case. The factual allegations in CVD Equipment Corp., described above, clearly supported a claim that the defendants had unjustly enriched themselves by abusing a fiduciary relationship…. Moreover, the two Second Circuit cases the district court relied on in making its ruling further support the conclusion that the basis for the court?s holding was not that the plaintiffs had alleged ?deception,? but rather, that they had alleged the abuse of fiduciary relationships. In Kregos, cited by the court in CVD Equipment Corp., in finding that the plaintiff?s unfair competition claim was preempted, the Second Circuit stated that ?unfair-competition claims based upon breaches of confidential relationships, breaches of fiduciary duties and trade secrets have been held to satisfy the extra-element test and avoid § 301 preclusion.? … Similarly, in Computer Associates International, Inc., also cited by the court in CVD Equipment Corp., the Second Circuit noted that the ?state law rights that . . . satisfy the extra element test, and thus are not preempted by section 301 . . . include unfair competition claims based upon breaches of confidential relationships, breaches of fiduciary duties and trade secrets.?… In contrast, in this case, Plaintiff has not alleged that Defendants abused a confidential or fiduciary relationship.
Unfair competition? Sorry, nope. Pre-empted by copyright.
Plaintiff?s unfair competition claims are preempted by the Copyright Act. Plaintiff alleges that Defendants ?misappropriated content from [Plaintiff?s] website,?… in ?an unjustifiable attempt to profit from [Plaintiff?s] expenditure of time, labor and talent in maintaining its service,?… Plaintiff has not alleged that Defendants breached any fiduciary duty or confidential relationship, or that Defendants misappropriated Plaintiff?s trade secrets. Instead, Plaintiff?s claims are precisely the type of misappropriation claims that courts have consistently held are preempted by the Copyright Act….
Plaintiff?s claims are essentially ?reverse passing off? claims, as Plaintiff alleges that Defendants copied Plaintiff?s work product ? song lyrics displayed on its website ? and attempted to pass them off as either, in LyricFind?s case, its own work product or, in Google?s case, either its own work product or work product it was licensed to display…. Unfair competition claims involving allegations of reverse passing off are preempted by the Copyright Act.
How about “bad faith” claims under NY state law? Here, we see the zombie of the never ending SCO v. IBM case, which Genius sought to use in support. But, there’s a problem. That case was in the 10th Circuit. This case is in the 2nd.
The Tenth Circuit?s decision in SCO Group, Inc. is directly contradicted by caselaw in this Circuit, discussed above, finding that New York unfair competition claims alleging misappropriation of copyrightable works are preempted by the Copyright Act. Regardless of how the Tenth Circuit interpreted the ?bad faith? element of New York unfair competition claims, in this Circuit, ?bad faith? on its own is not sufficient to avoid preemption ? if it were, unfair competition claims under New York law would never be preempted.
Unfairness under California law? Pre-empted. Easily.
The Second Circuit has held that ?[n]o matter how ?unfair?? a defendant?s alleged conduct is, ?such unfairness alone is immaterial to a determination whether a cause of action has been preempted by the Copyright Act.?
Deceptive, unethical, and immoral conduct? By this point you can feel the judge getting bored of having to repeat herself.
Courts in this Circuit have found that deception is not an extra element that saves an unfair competition claim from preemption.
And thus, the case is tossed completely.
Given that the Court finds that all of Plaintiff?s state law claims are preempted by the Copyright Act, and Plaintiff has not asserted any federal law claims, the Court dismisses the Complaint for failure to state a claim.
Don’t try to pretend that you have a pseudo copyright in content you have no copyright rights over.