Case 1:17-cv DLI-JO Document 32 Filed 08/07/17 Page 1 of 11 PageID #: 125. Deadline

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1 Case 1:17-cv DLI-JO Document 32 Filed 08/07/17 Page 1 of 11 PageID #: 125 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK KEVIN POWELL, v. Plaintiff, DAVID ROBINSON, LENTON TERRELL HUTTON, JAMES G. ROBINSON, STEVEN BAGATOURIAN, JEREMY HAFT, EDDIE GONZALEZ, MORGAN CREEK PRODUCTIONS, INC., PROGRAM PICTURES, LIONS GATE FILMS, INC., JOHN DOE ENTITIES 1-10 and JOHN DOES 1-10, Defendants. Civil Action No.: 17-cv DLI-JO Hon. Dora L. Irizarry ORAL ARGUMENT REQUESTED Documents Filed Herewith: Notice of Motion, Affidavit of Erica J. Van Loon; Request For Judicial Notice Complaint Filed: June 23, 2017 Date of Service: August 7, 2017 (E-filing) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS LIONSGATE FILMS, INC., MORGAN CREEK PRODUCTIONS, INC., PROGRAM PICTURES, AND LENTON TERRELL HUTTON S MOTION TO DISMISS PLAINTIFF KEVIN POWELL S COMPLAINT

2 Case 1:17-cv DLI-JO Document 32 Filed 08/07/17 Page 2 of 11 PageID #: 126 TABLE OF CONTENTS Page INTRODUCTION...1 STATEMENT OF RELEVANT FACTS...2 LEGAL STANDARD...3 ARGUMENT...4 CONCLUSION i -

3 Case 1:17-cv DLI-JO Document 32 Filed 08/07/17 Page 3 of 11 PageID #: 127 TABLE OF AUTHORITIES Page Federal Cases Accurate Grading Quality Assur., Inc. v. Thorpe, No. 12 CIV ALC, 2013 WL (S.D.N.Y. Mar. 26, 2013)... 4, 6 Ashcroft v. Iqbal, 556 U.S. 662 (2009)... 3 Brown v. New York City Hous. Auth., No. 05 Civ. 7332, 2006 WL (S.D.N.Y. May 16, 2006)... 3, 5 Caldwell v. Rudnick, 2006 WL (S.D.N.Y. July 26, 2006)... 5 Capitol Records, Inc. v. Wings Digital Corp., 210 F. Supp. 2d 147 (E.D.N.Y. 2002)... 6 Castro v. Azaria, Case No. 06-CV-3853 (ENV) (E.D.N.Y. Oct. 2, 2006)... 5 Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002)... 3 Cruise v. Doyle, No. 07 Civ. 3940, 2008 WL , *2 (S.D.N.Y. Jan. 9, 2008)... 3 Elektra Entm't Grp., Inc. v. Schwartz, No. CV (DGT), 2008 WL (E.D.N.Y. Apr. 1, 2008)... 4 Fischer v. Talco Trucking, Inc., No. 07-CV-4564(JS)(ARL), 2009 WL (E.D.N.Y. Dec. 21, 2009)... 5, 6 K-Beech, Inc. v. Does 1-29, No. CV JTB ETB, 2011 WL (E.D.N.Y. Sept. 19, 2011)... 4, 6 Muench Photography, Inc. v. Houghton Mifflin Harcourt Pub. Co., No. 09 CV 2669 (LAP), 2012 WL (S.D.N.Y. Mar. 26, 2012)... 6 Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120 (2d Cir. 2014)... 4 Pyatt v. Raymond, 462 F. App'x 22 (2d Cir. 2012) ii -

4 Case 1:17-cv DLI-JO Document 32 Filed 08/07/17 Page 4 of 11 PageID #: 128 Reed Elsevier v. Muchnick, 559 U.S. 154 (2010)... 2, 4 Scientific Computing Assoc., Inc. v. Warnes, No. 07-CV-6351, 2011 WL (W.D.N.Y. April 5, 2011)... 4 Toms v. Pizzo, 4 F. Supp. 2d 178 (W.D.N.Y. 1998)... 4 Well-Made Toy Mfg. Corp. v. Goffa Int'l Corp., 354 F.3d 112 (2d Cir. 2003)... 2 Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 127 F. Supp. 3d 156 (S.D.N.Y. Aug. 31, 2015)... 5 Federal Statutes 17 U.S.C , 6 17 U.S.C. 411(a)... 1, 2, 3, 4, 6 Fed. R. Civ. P. 12(a)(1)(A)... 1, 2 Fed. R. Civ. P. 12(b)(6)... 3, 4 - iii -

5 Case 1:17-cv DLI-JO Document 32 Filed 08/07/17 Page 5 of 11 PageID #: 129 MEMORANDUM OF LAW Defendants Lionsgate Films, Inc. ( Lionsgate ), Morgan Creek Productions, Inc. ( Morgan Creek ), Program Pictures ( Program Pictures ) and Lenton Terrell Hutton 1 ( Mr. Hutton ) (collectively, Defendants ) respectfully submit this Memorandum of Law in Support of Defendants Motion to Dismiss Plaintiff Kevin Powell s Complaint pursuant to Fed. R. Civ. P. 12(b)(6). INTRODUCTION Plaintiff Kevin Powell s Complaint is procedurally deficient and must be dismissed as a matter of law. The basis for Defendants motion to dismiss is simple. Plaintiff asserts six causes of action in the Complaint, all of which are predicated on Defendants alleged infringement of Plaintiff s purported copyrights. But Plaintiff fails to plead a fundamental prerequisite to sustain a copyright infringement claim, i.e., receipt or refusal of a registration certificate for the works at issue. Thus, the Complaint fails to allege a single claim upon which this Court can grant relief. Specifically, Section 411(a) of the Copyright Act requires that a copyright must be registered before an infringement action may be brought under it. Courts in the Second Circuit, including this district, have held that Section 411(a) precludes a plaintiff copyright owner from initiating an infringement action until the plaintiff either receives or is denied a copyright registration. Here, Plaintiff fails to satisfy this statutory precondition, as the Complaint does not allege that he has either obtained or been denied registration for any of the three works at issue in his Complaint. Indeed, Plaintiff cannot make such an allegation in good faith, as an online search 1 Defendants note that to date, Plaintiff has not filed a proof of service indicating that Program Pictures or Lenton Terrell Hutton have been served a copy the Complaint and Summons. However, Mr. Hutton, Principal of Program Pictures, received a copy of the Complaint and the Summons to Program Pictures in the mail on July 17, While Defendants dispute the propriety of this attempted service, out of an abundance of caution, Program Pictures and Mr. Hutton are responding to the Complaint within 21 days of receipt, pursuant to Fed. R. Civ. P. 12(a)(1)(A)

6 Case 1:17-cv DLI-JO Document 32 Filed 08/07/17 Page 6 of 11 PageID #: 130 of the United States Copyright Office s catalogue confirms no registration has issued under Plaintiff s name for his asserted copyrights. Accordingly, the Complaint must be dismissed in its entirety under Rule 12(b)(6) 2. STATEMENT OF RELEVANT FACTS On June 23, 2017 Plaintiff filed his Complaint against Lionsgate, Morgan Creek, Program Pictures, Mr. Hutton, and five other named defendants. ECF No. 1 ( Compl. ). In the Complaint, Plaintiff alleges that he completed and published several articles and cover stories for Vibe Magazine based on the life and struggles of Tupac Shakur. Compl., 17. The three articles specifically referenced in the Complaint are titled Exclusive: Is Tupac Crazy Or Just Misunderstood (published February 1994), Tupac Shakur Jailhouse Exclusive (published April 1995), and Live from Deathrow (published February 1996) (collectively referred to herein as the Asserted Works ). Id. Plaintiff further alleges that Defendants infringed Plaintiff s copyrights in the Asserted Works via the production, distribution, and broadcast of the 2017 motion picture ALL EYEZ ON ME. See id., 12, 14, 31 32, 38 39, 44 45, 50 51, 54, 59. However, the Complaint offers only that the Asserted Works are copyrighted or copyrightable under the Copyright Act. See id., Plaintiff does not plead pre-suit receipt of valid copyright registrations for the Asserted Works. Nor does he allege that the Copyright Office denied registration as to any of the Asserted Works. 2 Prior to the Supreme Court s 2010 decision in Reed Elsevier v. Muchnick, various circuit courts - including the Second Circuit - had treated Section 411(a) as jurisdictional in nature, and dismissed copyright infringement claims for lack of subject matter jurisdiction under Rule 12(b)(1) when a plaintiff failed to obtain a registration. See, e.g., Well-Made Toy Mfg. Corp. v. Goffa Int'l Corp., 354 F.3d 112, 114 (2d Cir. 2003). In Reed Elsevier, however, the Supreme Court held that Section 411(a) imposes a precondition to filing a claim under the Copyright Act, and thus, leads to dismissal of such actions under 12(b)(6). Reed Elsevier v. Muchnick, 559 U.S. 154, (2010)

7 Case 1:17-cv DLI-JO Document 32 Filed 08/07/17 Page 7 of 11 PageID #: 131 Indeed, a search of the Copyright Office s online catalogue of registered copyrights reveals that at the time Plaintiff filed the Complaint, he did not possess valid copyright registrations for any of the Asserted Works. Declaration of Erica J. Van Loon ( Van Loon Decl. ), Exs Because Plaintiff has not, and cannot, plead either possession of a copyright registration or a refused attempt at registration for any of the Asserted Works, his Complaint must be dismissed under Rule 12. LEGAL STANDARD To survive a motion to dismiss under Rule 12(b)(6), a plaintiff's complaint 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 (2009). If a plaintiff fails to plead any essential element of a claim for which it seeks relief, such a claim should be dismissed. See Cruise v. Doyle, No. 07 Civ. 3940, 2008 WL , *2 (S.D.N.Y. Jan. 9, 2008) ( Dismissal is proper where a plaintiff fails to plead the basic elements of a claim. ). While the factual allegations of a complaint must be accepted as true, courts are not bound to accept as true a legal conclusion couched as a factual allegation. Iqbal, 556 U.S. at 678). When deciding a motion brought pursuant to Fed. R. Civ. P. 12(b)(6), the Court may consider documents incorporated by reference into the complaint, matters of which judicial notice may be taken, and documents that are integral to the complaint. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (internal citation omitted). Critically, where allegations set forth in a complaint are contradicted by other matters asserted or by materials attached to or incorporated by reference in the complaint, the court is not obliged to credit the allegations in the complaint. Brown v. New York City Hous. Auth., No. 05 Civ. 7332, 2006 WL , at *2 (S.D.N.Y. May 16, 2006)

8 Case 1:17-cv DLI-JO Document 32 Filed 08/07/17 Page 8 of 11 PageID #: 132 ARGUMENT Section 411(a) of the Copyright Act imposes a precondition to filing a claim. Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010); see also 17 U.S.C. 411(a) ( [N]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. ). To properly plead an infringement claim, a plaintiff must state that the copyrights have been registered in accordance with Section 411. Elektra Entm't Grp., Inc. v. Schwartz, No. CV (DGT), 2008 WL at *2 (E.D.N.Y. Apr. 1, 2008) (internal citation omitted); see also K-Beech, Inc. v. Does 1-29, No. CV JTB ETB, 2011 WL , at *1 (E.D.N.Y. Sept. 19, 2011) (holding that post Reed-Elsevier, valid registration is an element of an infringement claim. ). Indeed, the Second Circuit consistently enforces this statutory requirement, routinely affirming dismissal of copyright infringement claims instituted prior to any attempt to register the works at issue. See e.g., Pyatt v. Raymond, 462 F. App'x 22 (2d Cir. 2012), as amended (Feb. 9, 2012) (affirming dismissal under Rule 12(b)(6) and denying the plaintiff an opportunity to amend, holding that post-complaint registrations were not within the scope of the complaint ); Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 125 (2d Cir. 2014) (affirming dismissal where copyright plaintiff did not attempt registration prior to instituting an infringement action). District courts in this circuit have universally followed suit. See e.g., Scientific Computing Assoc., Inc. v. Warnes, No. 07-CV-6351, 2011 WL , at *9 (W.D.N.Y. April 5, 2011) (dismissing under Rule 12(b)(6) [d]efendant's copyright claims [because they] are unsupported by the facts, as he has not alleged that he actually registered a copyright ); Toms v. Pizzo, 4 F. Supp. 2d 178, 185 (W.D.N.Y. 1998) ( [A] plaintiff must register his copyright prior - 4 -

9 Case 1:17-cv DLI-JO Document 32 Filed 08/07/17 Page 9 of 11 PageID #: 133 to instituting a copyright infringement action ); Accurate Grading Quality Assur., Inc. v. Thorpe, No. 12 CIV ALC, 2013 WL , at *7 (S.D.N.Y. Mar. 26, 2013) (holding that a copyright claim without registration is necessarily barred and must be dismissed ). Indeed, this Court has itself consistently dismissed infringement claims based on unregistered works. See e.g., Castro v. Azaria, Case No. 06-CV-3853 (ENV) (E.D.N.Y. Oct. 2, 2006) (holding that plaintiff failed to state a claim upon which relief could be granted when he failed to allege in his complaint that he owned a valid registration in the copyright); Caldwell v. Rudnick, 2006 WL (S.D.N.Y. July 26, 2006) ( [A] plaintiff's failure to register a copyright before bringing an infringement action requires dismissal ). Here, Plaintiff s Complaint merely offers the conclusory allegations that the Asserted Works were copyrighted or copyrightable. Compl., But Plaintiff did not plead that he owns valid copyright registrations in the Asserted Works, or that the Copyright Office denied registration for the Asserted Works. Nor did Plaintiff attach any registration certificates to the Complaint, or any correspondence from the Copyright Office indicating a refusal to register any of the Asserted Works. This alone warrants dismissal. See Fischer v. Talco Trucking, Inc., No. 07-CV-4564(JS)(ARL), 2009 WL at *2 (E.D.N.Y. Dec. 21, 2009) (dismissing plaintiff's copyright infringement claim for failure to plead registration). Moreover, a search of the Copyright Office s registration database for Kevin Powell and for each of the titles of the Asserted Works returned no corresponding registrations. Van Loon Decl., Ex Thus, Plaintiff s bare-bones, conclusory assertions that the works were copyrighted cannot satisfy the 3 In accordance with this Court s holding in Messina, this Court may take judicial notice of the search records printed from the United States Copyright Office s website. See Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 127 F. Supp. 3d 156, 166 (S.D.N.Y. Aug. 31, 2015) (stating that it is clearly proper for [the Court] to take judicial notice of documents retrieved from official government websites and that Courts routinely take judicial notice of such governmental records )

10 Case 1:17-cv DLI-JO Document 32 Filed 08/07/17 Page 10 of 11 PageID #: 134 pleading requirements imposed by Section 411, and no amendment can cure this fatal deficiency. See Brown, 2006 WL , at *2 (holding that a Court need not credit any allegation in a complaint contradicted by materials upon which the Court may rely); Fischer, 2009 WL at *2 (denying an opportunity to amend where the plaintiff could not show he obtained registration for the copyrights at issue). Even if Plaintiff has attempted to register the Asserted Works, and the related applications are pending, the Complaint still must be dismissed. This Court has held that submission of an application for copyright registration does not satisfy the registration precondition of Section 411(a). K-Beech, 2011 WL , at *1 (noting courts in both the Eastern District of New York and the Southern District of New York have held that submission of an application for copyright registration does not satisfy the registration precondition of 411(a) and citing supporting cases); see also Capitol Records, Inc. v. Wings Digital Corp., 210 F. Supp. 2d 147 (E.D.N.Y. 2002) (plaintiff's complaint dismissed as to works in which plaintiff's application to register his copyrights was pending); Accurate Grading Quality Assur., Inc., 2013 WL at *7 ( [A]ny pending application cannot support [plaintiffs'] tenuous copyright claim, even if registration is later obtained. ). Indeed, the Copyright Office must have acted on such an application before a plaintiff can bring an infringement suit compliant with the pre-suit requirements of Section 411. Muench Photography, Inc. v. Houghton Mifflin Harcourt Pub. Co., No. 09 CV 2669 (LAP), 2012 WL at *5 (S.D.N.Y. Mar. 26, 2012) ( It remains the law in this Circuit that 411(a) imposes a bar to copyright infringement claims where a plaintiff has not either received or been denied a copyright registration at the time such a claim is interposed. ) (emphasis added). As such, Plaintiff cannot remedy the deficiency in his Complaint, and dismissal, rather than an opportunity to amend, is the appropriate relief

11 Case 1:17-cv DLI-JO Document 32 Filed 08/07/17 Page 11 of 11 PageID #: 135 In sum, Plaintiff fails to adequately plead an essential element necessary to sustain an infringement claim valid registration(s) for the Asserted Works, or denial thereof. Because each of the causes of action identified in the Complaint rest on Defendants alleged infringement of the Asserted Works (see Compl., at 31 32, 38 39, 44 45, 50 51, 54, 59), a complete dismissal of the Complaint is appropriate. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court dismiss Plaintiff s Complaint in its entirety, and grant Defendants other such relief the Court deems just and proper. Dated: August 7, 2017 Los Angeles, California Respectfully submitted, GLASER WEIL FINK HOWARD AVCHEN & SHAPIRO LLP By: /s/ Erica J. Van Loon Erica J. Van Loon Admitted Pro Hac Vice Constellation Blvd. 19 th Floor Los Angeles, CA (310) evanloon@glaserweil.com Attorneys for Defendants Lionsgate Films, Inc., Morgan Creek Productions, Inc., Program Pictures, and Lenton Terrell Hutton - 7 -