Estate of Barré v. Carter
Estate of Barré v. Carter
Opinion of the Court
SECTION: “G” (5)
ORDER
In this litigation, the Estate of Anthony Barré and Angel Barré (collectively, “Plaintiffs”), allege that the writers, performers, producers, record labels, distributors, and publishers who produced the song “Formation,” the album “Lefnonade,” and the “Formation World Tour” used’the actual, voice and copyrighted works of Anthony Barré without authorization or compensation.
I. Background
A. Factual Background
In this litigation, Plaintiffs allege that they own a protectable copyright interest in two YouTube videos created by Anthony Barré, ’also known as “Messy Mya:” (1) “Booking the Hoes from- New Wildings;” and (2) “A 27 Piece Huh?”
Plaintiffs aver that Anthony Barré created “Booking the Hoes from New Wild-ings” in New Orleans on August 19, 2010, and published the work on YouTube the
Plaintiffs aver that Anthony Barré was murdered on November 10, 2010.
Plaintiffs assert that Defendants released the single song “Formation” -on February 6, 2016, in which the voice of Anthony Barré is featured saying three phrases from Anthony Barré’s works, ie. “What happened at the New -Orleans,” “Bitch I’m back, by popular demand,” and “Oh yeah baby. I like that.”
Plaintiffs point out that “Formation” was initially released exclusively via the “Tidal” music distribution service, which allegedly resulted in Defendants receiving more than a million new subscribers paying $12.99 per month.
Plaintiffs argue that Anthony Barré’s voice set the tone, mood, setting, and location for “Formation.”
B. Procedural History
Plaintiffs filed a complaint in this Court on February 6, 2017.
On May 30, 2017, the Court granted Plaintiffs’ request for oral argument on Defendants’ instant motion to dismiss and Defendants’ motion to strike, and set the motions for oral argument on June 7, 2017, at 10:00 a.m.
II. Parties’ Arguments
A. Defendants' Arguments in Support of the Motion to Dismiss
In their motion to dismiss, Defendants concede that the “Formation” music video and the live performances during the “Formation World Tour” include approximately ten seconds of audio from two of Anthony Barré’s YouTube videos.
1. Dismissal of certain Defendants involved in the production of the “Formation” single and the Super Bowl Half-Time show
However, Defendants argue that, Antho.-riy Barré’s YouTube videos were not used in the sound recording and composition of the single “Formation” or during the Super Bowl Half-Time show.
Defendants argue that even in the ab-. sence of a license, Defendants’ use of small clips of Anthony Barré’s YouTube -videos in Defendants’ music video and live per: formances is protected by the fair use doctrine.
i. First fair use factor: the purpose and character of the use
Defendants argue that- the Supreme Court has held that .the first fair use factor is used to determine “whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”
■ Here, Defendants argue that certain Defendants used audio from Anthony Barré’s YouTube videos as “raw material” in the creation of a music video about “black Southern resilience that featured depictions of the history and culture of New
ii.Second fair use factor: the nature of the copyrighted work
Next, Defendants aver that the second factor requires courts to evaluate “whether or not a work is published,” as the scope of fair use “is narrower with respect to unpublished works.”
iii.Third fair use factor: substantiality of the use
According to Defendants, the third factor “asks whether the amount and sub-stantiality of the portion used in relation to the copyrighted work as a whole are reasonable in relation to the purpose of the copying.”
iv.Fourth fair use factor: the effect on the market
Finally, Defendants state that the fourth factor asks courts to weigh “the effect of
3. Dismissal of Plaintiffs’ false endorsement claim
Furthermore, Defendants argue that Plaintiffs are attempting to improperly assert claims that extend beyond the applicable realm of copyright, law.
Second, Defendants assert that even if the use of a copyrighted work could be recognized as an endorsement under the Lanham Act, the First Amendment to the United States Constitution protects Defen
a. First Rogers factor: the artistic relevance of Anthony Barré’s voice to Defendants’ works
According to Defendants, the first prong of the Rogers test is satisfied “if the alleged mark has any artistic relevance to the underlying work.”
b. Second Rogers factor: expressly misleading
Next, Defendants argue that they did not expressly mislead as to the-source of the content of the work at issue.
4. Dismissal of Plaintiffs’ state law claims
Next, Defendants contend that Plaintiffs’ state law claim under LUTPA and Plaintiffs’ claim for unjust enrichment also fail. Defendants assert that the. Fifth Circuit has recognized that the requirements of a LUTPA claim mirror those of the Lanham Act, and thus “the claims stand or fall together.”
Additionally, Defendants argue that Plaintiffs’ unjust enrichment claim is preempted by the Copyright Act.
5. Angel Barré’s standing to assert these claims
Finally, Defendants argue' that a plaintiff must own the intellectual property rights at issue to bring a copyright infringement claim.
B. Plaintiffs’ Arguments in Opposition to the Motion to Dismiss
In opposition, Plaintiffs point out that Defendants’ motion to dismiss is the first
1. Dismissal of Plaintiffs copyright infringement claim under the fair use doctrine
Plaintiffs contend that to establish a claim for copyright infringement, they must prove: (1) ownership of a valid copyright; and (2) that Defendants copied elements of Plaintiffs’ original works.
Plaintiffs argue that Defendants misstate the law regarding infringement of sound recordings, as “[t]his is not a fair use case; it’s a sampling case of an artist’s voice unaltered.”
Plaintiffs argue that even if the fair use affirmative defense applied, it is a mixed question of fact and law that cannot be decided on a motion to dismiss, and regardless Defendants use of Anthony Barré’s voice and words are not protected by fair use.
i. First fair use factor: the purpose and character of the use
Plaintiffs point out that the first fair use factor also asks if the use is commercial or non-commercial, as commercial use is less likely to be found to be fair use.
Additionally, Plaintiffs assert that Defendants have not shown that their use of Plaintiffs’ works was a “transformative”
ii. Second fair use factor: the nature of the copyrighted work
With regard to the second factor, Plaintiffs argue that because Plaintiffs’ works were “of a creative nature,” they should be granted more protection from copying, which weighs against fair use.
Hi. Third fair use factor: substantiality of the use
As to the third factor, Plaintiffs argue that Defendants used a qualitatively important piece of Plaintiffs’ works.
iv. Fourth fair use factor: the effect on the market
Finally, Plaintiffs assert that the fourth factor seeks to balance “the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied.”
2. Plaintiffs’ Lanham Act claim
According to Plaintiffs, in Facenda v. NFL Films, Inc., the Third Circuit recognized that a Lanham Act cause of action can be asserted for misappropriation of a person’s distinctive voice and words and is not precluded by the Copyright Act.
Here, Plaintiffs assert that they alleged that: (1) Anthony Barré’s voice and words were used by Defendants without permission; (2) his voice and word are distinctive; (3) his voice and words were recognized by consumers, which caused confusion regarding his involvement or approval of Defendants’ works; (4) Defendants used Anthony Barre’s voice and words for commercial purposes; and (5) Defendants profited from the use.
3. Plaintiffs’ LUTPA claim
Similarly, Plaintiffs argue that their complaint sufficiently alleges a violation of LUTPA.
4. Plaintiffs’ unjust enrichment claim
Next, Plaintiffs argue that they have sufficiently alleged an action for unjust enrichment in the alternative.
C. Defendants’ Arguments in Further Support of the Motion to Dismiss
In reply, Defendants contend that, contrary to Plaintiffs’ assertion that small clips of the YouTube videos were included in a CD/DVD box set, a “review of the audio CD confirms” that the single of “Formation” does not use Anthony Barré’s works.
1. Fair use affirmative defense
Defendants assert that courts “repeatedly have made clear that fair use may be
Defendants assert that the four fair use factors strongly favor Defendants.
As to the second fair use factor of the nature of the copyrighted - work, Defendants point out that Plaintiffs do not dispute that Anthony Barré’s YouTube videos were published, or that this weighs in favor of fair use.
With regard to the third factor, Defendants aver that Plaintiffs do not dispute that ten seconds' of audio constitute a quantitatively small amount of the underlying works.
Fourth, Defendants assert that Plaintiffs failed to identify any market for Anthony Barré’s works, as they remain publicly available for free on YouTube.
2.Plaintiffs’ false endorsement claim
Next, Defendants aver that Plaintiffs failed to address their argument that the First Amendment defeats their Lanham Act claim pursuant to the Rogers test.
Moreover, Defendants assert that Plaintiffs’ false endorsement claim fails for the additional reason that performers generally. may not assert trademark rights in a performance.
3. Plaintiffs’ state law claims
Defendants assert that Plaintiffs’ LUT-PA claim fails for the same reasons as their false endorsement claim, and that Plaintiffs “incorrectly suggest that courts may decide what constitutes unfair competition without any limitation.”
4. Angel Barré’s standing
Finally, Defendants represent that Plaintiffs failed to dispute that their complaint only alleges that the Estate owns all copyright and trademark rights at issue in this case, and thus Angel Barré lacks standing to assert these claims in this lawsuit.
D. Plaintiffs’ Arguments in Further Opposition to the Motion to Dismiss
In their sur-reply, Plaintiffs again point out that a video DVD of the “Lemonade” album and the audio CD of “Formation”
Next, Plaintiffs argue that Defendants’ citation in a footnote in their reply brief to Estate of Smith v. Cash Money Records is distinguishable, as that case was decided on a motion for summary judgment after discovery and involved the artist Drake altering the words and context of the sound recording he used to make it “trans-formative.”
Plaintiffs further argue that “courts generally do not recognize a fair use defense when a sound recording is copied for commercial gain.”
Finally, Plaintiffs point out that in Mabile v. BP, P.L.C. this Court rejected “as premature” the defendant’s arguments that the plaintiffs state law claims were preempted by federal patent law, and instead found that the plaintiff had alleged sufficient facts to state claims for a violation of LUTPA and conversion.
E. Defendants’ “Notice of Supplemental Authority”
In their “Notice of Supplemental Authority,” Defendants assert that on June 14, 2017, a court in the United States District Court for the District of Nevada concluded that the “fair use” copyright defense can be decided as a matter of law.
F. Plaintiffs’ Response to Defendants’ “Notice of Supplemental Authority”
In response, Plaintiffs argue that Corbello v. DeVito is clearly distinguishable, as it was a decision rendered on a Rule 50(b) motion for judgment as a matter of law after a 15-day jury trial.
III. Law and Analysis
A. Legal Standard on a Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for failure to state a claim upon which' relief can be granted.”
On a motion to dismiss, asserted claims are liberally' construed in favor of the claimant, and all facts pleaded are taken as true.
In their motion'to dismiss, Defendants contend the Defendants who were solely involved in producing the sound recording and composition of “Formation” or the Super Bowl Half-Time show should be dismissed with prejudice, as they did not use Plaintiffs’ copyrighted works.
1. Whether Defendants only involved in the production of the single “Formation” or the Super Bowl Half-Time show should be dismissed
First, Defendants argue that Plaintiffs’ works were oníy used in the music video and live performances of “Formation,” but that Defendants did not use Anthony Barré’s YouTube videos in the sound recording or composition of “Formation” or in the Super Bowl live performance of “Formation.”
i. Defendants involved in producing the single “Formation”
To establish a claim for copyright infringement in the Fifth Circuit, Plaintiffs must prove that: (1) ■ they own a valid copyright; and (2) Defendants “copied constituent elements of [Plaintiffs’]' work that are original.”
Moreover, in response to Defendants’ assertion that the single “Formation” did not use ‘ Plaintiffs’ copyrighted works, Plaintiffs point out in - their opposition memorandum that the audio from the music video CD was originally released as the single for “Formation.”
ii, Defendants involved in the Super Bowl Half-Time show
In Plaintiffs’ amended complaint, Plaintiffs also allege that Carter performed “Formation” during the Super Bowl Half-Time show on February 7, 2016.
Moreover, in their amended complaint, Plaintiffs allege that each of those Defendants identified in Defendants’ motion to dismiss contributed to the writing, composing, producing, publishing, and/or licensing of “Formation,” and Plaintiffs do not allege that any Defendant was solely involved in the Super Bowl Half-Time show.
2. Copyright Infringement Claim
Next, Defendants argue that Plaintiffs’ claim for copyright infringement should be dismissed, as Defendants assert that their use of Plaintiffs’ copyrighted works is protected under the fair use doctrine.
Section 106 of the Copyright Act confers a bundle of exclusive rights to the owner of the copyright.
However, the Copyright Act subjects the owner’s exclusive rights to certain statutory exceptions. In particular, Section 107 codifies the privilege of other authors to make “fair use” of an earlier author’s work.
The fair use analysis is a mixed question of law and fact and requires a case-by-case determination on whether a particular use of a copyrighted work is fair.
i. Whether Defendants may assert a fair use defense
As noted supra, Plaintiffs argue that the Sixth Circuit’s decision in Bridgeport demonstrates that the fair use doctrine does not apply to instances of digital sampling of a sound recording.
The Court additionally notes that, as a general matter, the Fifth Circuit has determined that Rule 12(b)(6) motions to dismiss typically cannot be granted on affirmative defense grounds unless “a successful affirmative defense appears clearly on the face of the pleadings.”'
ii. First fair use factor: the purpose and character of the use
Under 17 U.S.C. § 107, the first factor in the fair use inquiry is the “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” When analyzing the first factor of the fair use test, courts typically consider whether.the infringing use is “transfor-mative.”
Here, the parties both dispute the extent to which Defendants’ use of the clips from Anthony Barré’s YouTube videos can be considered “transformative.” On the one hand, Defendants point out that the original videos merely feature Anthony Barré speaking “stream-of-consciousness to the camera as he walks the streets of New Orleans.”
Here, the Court finds that Plaintiffs have alleged sufficient facts in their amended complaint to support a finding at this stage of litigation that the first factor could ultimately weigh against a finding of fair use. Plaintiffs plausibly allege that Defendants did not “add[] something new, with a further purpose or different character,” but rather used unmodified audio clips from Anthony Barré’s YouTube videos as an illustrative example of New Orleans culture through the voice and catchphrases of a well-known local icon.
Defendants cite to a number of distinguishable fair use eases where courts have found that the first factor weighed in favor of a finding of fair use.
Likewise, in Cariou, the Second Circuit held that the defendant’s alterations of twenty-five of the plaintiffs “serene and deliberately composed portraits” of Rasta-farians to create “crude,” “jarring,” “hectic,” and “provocative” works featuring distorted human forms was “transformative” as a matter of law.
Moreover, Plaintiffs point out that the first fair use prong under Section 107 also considers “whether such use is of a commercial nature or is for nonprofit educational purposes,” and Plaintiffs plausibly allege in their amended complaint that Defendants’ copying of Plaintiffs’ copyrighted works constitutes a “continuing commercial use and exploitation of Anthony Barré’s words, voice and performances.”
The Court notes that Defendants cite to the Ninth Circuit’s holding in SOFA Entertainment, Inc. v. Dodger Productions, Inc. to argue that whether a particular use of copyrighted material is “commercial” is “of little significance” when a defendant’s use is transformative.
Hi. Second fair use factor: the nature of the copyrighted work
Next, Section 107 instructs courts to consider “the nature of the copyrighted work.”
With regard to the first consideration, the Court finds that Plaintiffs havé sufficiently alleged that Anthony Barré’s YouTube videos were creative works, as Plaintiffs represent in their amended complaint that Anthony Barré was' a “well-known performance comedian” and that the two YouTube-videos at issiie in this litigation are “performance art.”
As to the second consideration, the Supreme Court has noted that the scope of the fair use doctrine is narrower for unpublished works, as it implicates an author’s “right of first publication.”
iv. Third fair use factor: the amount and substantiality of the portion used
Pursuant to 17 U.S.C. § 107, the third factor under the fair use analysis is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” Courts look to the “quantitative” amount of the copyrighted work used as well as the “qualitative” importance of the portion copied.
Here, it appears to be undisputed that Defendants used four seconds of audio from the five minute and fourteen second YouTube, video titled “Booking the Hoes from New Wildings,” and six seconds of audio from the one minute and fifty-three second YouTube video titled “A 27 Piece Huh?”
In Plaintiffs’ amended complaint, Plaintiffs allege that Anthony Barré is “well known for his quotes and catch phrases ... and raspy voice.” Plaintiffs further allege that the three phrases copied by Defendants are “quantitatively and qualitatively distinct, important, and recogniz
In Harper & Row Publishers, Inc. v. Nation Enterprises, the Supreme Court advised that even if the actual amount of copyrighted material used by a defendant was “an insubstantial portion,” the qualitative importance of the material can weigh against a finding of fair use.
Here, even assuming that Defendants are correct that the amount of Plaintiffs’ copyrighted works used is quantitatively small, the Court finds that Plaintiffs have plausibly alleged at this stage of litigation that the portions used by Defendants were qualitatively significant and the “heart” of Anthony Barré’s works such that the'third factor could ultimately weigh in favor of Plaintiffs.
v. Fourth fair use factor: the effect on the potential market
Finally, the fourth fair use factor requires courts to consider “the effect of the use upon the potential market for or value of the copyrighted work.”
Defendants argue that Plaintiffs have not plausibly alleged that using ten seconds of audio from free, publicly available YouTube videos “will usurp the market for those works, if any such market exists.”
Section 106 of the Copyright Act provides that a copyright, holder has the exclusive right to “authorize” certain uses of the copyrighted material.
Moreover, as stated supra, the Supreme Court has also noted that the fourth factor may weigh against fair use .if the challenged use “would adversely affect the potential market for the copyrighted work” if it becomes widespread.
In their amended complaint, Plaintiffs allege that Defendants “unlawfully copied” the YouTube videos without Plaintiffs’ permission and “failed to secure a license to copy and exploit” Plaintiffs’ works,
The Court notes that, in their opposition memorandum, Plaintiffs argue that there is a “vibrant sampling licensing market” and that Defendants “recognized the necessity of obtaining .a license” when they obtained a license through an unknown person one week before “Formation” was released.
Based on the foregoing, the Court finds that Plaintiffs have plausibly alleged a claim for copyright infringement against Defendants. Construing Plaintiffs’ complaint liberally and accepting all well-pleaded facts as true, Plaintiffs have also alleged sufficient facts at this stage of litigation to show that the four factor fair use test could ultimately weigh against a finding of fair use. Weighing all the factors discussed supra together, the Court concludes at this stage of litigation that “the copyright law’s goal of promoting the Progress of Science and useful Arts” would not be better served by allowing Defendants’ use of Plaintiffs’ copyrighted material without authorization or compensation than by preventing it.
3. Plaintiffs’ Lanham Act Claim
Next, Defendants argue that Plaintiffs have failed to state a claim under the Lanham Act.
i. Whether Plaintiffs can assert a Lan-ham Act claim for the use of copyrighted works or performances
Pursuant to 15 U.S.C. § 1125(a), “[a]ny person who, on or in connection with any goods or services ... uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which:” (A) “is likely to cause confusion, or to ca,use mistake, or to deceive as to the affiliation, connection, or association of such person with another person ...,” or (B) “in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities ...” is liable under the Lanham Act.
In opposition, Plaintiffs argue that they have sufficiently alleged each of the elements' required to establish a prima facie false endorsement claim under the Lan-ham Act: (1) Defendants used Anthony Barré’s voice and words without permission; (2) Anthony Barré’s voice and words are distinctive; (3) Anthony Barré’s voice and words were recognized by consumers and the media, which “caused consumer confusion regarding involvement or approval of his estate” in “Formation,” the “Lemonade” album, and the “Formation World Tour;” (4) Defendants used Anthony Barré’s voice and words for commercial purposes; and (5) Defendants profited from using Anthony Barré’s voice and words.
As other courts have noted, tó prove a violation of Section 43(a)(1)(A) of the Lanham Act in a false endorsement case, a plaintiff must show that: (1) “its mark is legally protectable;” (2) “it owns the mark;” and (3) “the defendant’s use of the mark to identify its goods or services is likely to create confusion concerning the plaintiffs sponsorship or approval of those goods or services.”
Additionally, although the Fifth Circuit has not addressed the proper test for a false endorsement claim under the Lan-ham Act, the Fifth Circuit has provided guidance on the proper test for courts to consider when determining whether there is a “likelihood of confusion” in other trademark infringement cases under the Lanham Act.
In their amended complaint, Plaintiffs assert a'claim for false endorsement pursuant to Section 43 of the Lanham Act, 15 U.S.C. § 1125(a), as Plaintiffs allege that Defendants used Anthony Barré’s “actual, distinctive voice, words and performance” in “Formation” in an “unethical, misleading, false, unfair and deceptive” manner.
Based on the foregoing, the Court finds at this time that Plaintiffs have alleged sufficient facts to bring a false endorsement claim under the Lanham Act. Defendants have not pointed to any authority in the Fifth Circuit, nor has the Court found any, that would foreclose Plaintiffs from alleging a claim under the Lanham Act for false endorsement. -
Defendants cite to Oliveira v. Frito-Lay, Inc., where the Second Circuit held
Thus, the Court concludes that Plaintiffs have sufficiently stated a claim for false endorsement, as Plaintiffs allege that: (1) Anthony Barré was a “very famous” artist whose “distinctive,” “raspy voice” was a “unique instrument” and whose quotes and catchphrases were “well-known” and recognized by consumers; (2) Anthony Barré was a ‘YouTube sensation with many videos” receiving over two million views and who produced or was featured on two albums and “numerous songs”; (3) Plaintiffs own Anthony Barré’s marks and works; (4) Defendants intentionally copied Plaintiffs’ well-known and recognizable marks in connection with a good or service, as Plaintiffs allege that Defendants earned substantial revenues through Tidal subscriptions, copies of “Formation” and “Lemonade” sold, and concert ticket sales; and (5) it is likely to cause consumer confusion regarding Plaintiffs’ sponsorship or approval of Defendants’ works, and even influenced the purchasing decisions of Anthony Barré’s and consumers of “Bounce Music.”
ii. Whether Plaintiffs’ Lanham Act claim is barred by the First Amendment
Second, Defendants assert that the First Amendment bars Plaintiffs’ false endorsement claim.
In Rogers v. Grimaldi, the Second Circuit considered whether a famous actress could bring a false endorsement claim under the Lanham Act for the use of her name in the title of a movie.
The Fifth Circuit has applied the Rogers test with respect to trademark infringement claims involving titles of works.
Here, Plaintiffs have sufficiently alleged that Defendants’ use of Anthony Barré’s voice and words, “explicitly misleads as to the source or content of the work,” and thus the Rogers test does not bar their Lanham Act claim.
4. Plaintiffs’ Louisiana Unfair Trade Practices Claim
Defendants argue that Plaintiffs’ claim under LUTPA fails “for the same reasons as their Lanham Act claim.”
LUTPA declares unlawful “[u]n-fair methods of competition and unfair or deceptive acts or practice in the conduct of any trade or commerce.”
. Here, Plaintiffs allege that Defendants have committed unfair trade practices in violation of LUTPA “by digitally sampling, using and exploiting Anthony Barré’s actual voice, reputation and personality, and converting Plaintiffs’ intellectual property to their benefit,”
5. Unjust Enrichment Claim
Defendants assert that Plaintiffs’ unjust enrichment1 claim fails because (1) it is preempted by the Copyright Act, and (2) it is only available when there is no other remedy available.
Here, it appears that Plaintiffs’ unjust enrichment claim is based on'the same factual premises .and alleged wrong as their LUTPA, Copyright Act, and Lan-ham Act claims.
6. Angel Barré’s Standing
Finally, Defendants argüe that Angel Barré lacks standing to' assert a copyright infringement claim, as she allegedly does not own the intellectual property
IV. Conclusion
Based on the foregoing, the Court finds that Plaintiffs have alleged sufficient facts to state a claim for copyright infringement under the Copyright Act and, under the Rule 12(b)(6) motion to dismiss standard, to overcome Defendants’ fair use defense at this stage of litigation. The Court also finds that Plaintiffs have alleged sufficient facts to state a claim for false endorsement under the Lanham Act and a violation of LUTPA. Therefore, the Court denies Defendants’ motion to dismiss with respect to those claims. The Court further finds that Plaintiffs have failed to state a claim for unjust enrichment, as there are other remedies available at law to Plaintiffs such that Louisiana law precludes an unjust enrichment claim here. Therefore, the Court grants Defendants’ motion to dismiss with respect to Plaintiffs’ unjust enrichment claim. Accordingly,
IT IS HEREBY ORDERED that Defendants’ “Motion to Dismiss for Failure to, State a Claim”
. Rec. Doc. 2 at 1-2.
. Rec. Doc. 51.
. Rec. Doc. 2 at 3, 12.
. Id. at 12.
. Id.
. Id. at 13.
. Id.
. Id.
. Id.
. Id. at 13-14, 18.
. Id. at 13.
. Id. at 14.
. Id.
. Id. at 15, 19.
. Id. at 16-17.
. Id. at 18.
. Id.
. Id. at 16-17.
. Id.
. Id.
. Id. at 18.
. Id. at 19.
. Id. at 21-22.
. Id. at 18.
. Id. at 29, 32-33.
. Rec. Doc. 1.
. Rec. Doc. 2.
. Rec. Docs. 42, 43, 46.
. Rec. Docs, 50. The motions were originally filed by Defendants Beyoncé Knowles Carter, Parkwood Entertainment, Sony Music Entertainment, Michael L. Williams III, Khalif Brown, Asheton Hogan, Eardrummers Entertainment, Eardrummers Music Publishing, Oakland 13 Music, Warner-Tamerlane Publishing Corp., WB Music Corporation, Pretty Bird Pictures, and Melina Matsoukas. See Rec. Doc. 50-1. On April 20, 2017, the Court granted Defendant Aspiro AB’s motion to join in the two instant motions. Rec. Doc. 68.
. Rec. Doc. 71.
. Rec. Doc. 73.
. Rec. Doc. 85.
. Rec. Doc. 90.
. Rec. Docs. 91, 95.
. Rec. Doc. 93.
. Rec. Doc. 76.
. Rec. Doc. 81.
. Rec. Doc. 82.
. Rec. Doc. 50-1 at 2.
. Id. at 4-5.
. Id. at 5.
. Id. at 2, 4.
. Id. at 2, 6-7, 24. In particular, Defendants request that the following Defendants, who Plaintiffs did not allege had any involvement in the music video or live performances, be dismissed with prejudice; (1) Parkwood Entertainment; (2) Michael L, Williams; (3) Khalif Brown; (4) Asheton Hogan; (5) WB Music Corporation; (6) Warner-Tamerlane Publishing Corp.; (7) Eardrummers Music Publishing; and (8) Oakland 13 Music. Id. at 24-25.
. Id. at 2, 6-7 (citing Causey v. Sewell Cadillac-Chevrolet, 394 F.3d 285, 288 (5th Cir. 2004)).
. Id. at 7 (citing Carter v. Smathers, 2014 WL 12580461, at *4 (N.D. Tex. 2014); Faulkner Literary Rights v. Sony Pictures, 953 F.Supp.2d 701, 705 n.2, 712 (N.D. Miss. 2013); Louis Vuitton Malletier S.A. v. Warner Bros. Entm't, 868 F.Supp.2d 172, 183 (S.D.N.Y. 2012); Randolph v. Dimension Films, 630 F.Supp.2d 741, 744 (S.D. Tex. 2009), aff'd, 381 Fed.Appx. 449 (5th Cir. 2010); Burnett v. Twentieth Century Fox Film Corp., 491 F.Supp.2d 962, 974 (C.D. Cal. 2007)).
. Id. at 2.
. Id. at 2, 8.
. Id. at 8 (citing Lewis Galoob Toys v. Nintendo, 964 F.2d 965, 969 (9th Cir. 1992)).
. Id. (quoting 107 U.S.C. § 107).
. Id. at 9 (quoting Campbell v. Acuff-Rose Music, 510 U.S. 569, 579, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994); Brownmark Films v. Comedy Partners, 682 F.3d 687, 693 (7th Cir. 2012)).
. Id. (citing Campbell, 510 U.S. at 579, 114 S.Ct. 1164).
. Id. at 10.
. Id. at 9 (citing Cariou v. Prince, 714 F.3d 694, 706 (2d Cir. 2013)).
. Id. (quoting Seltzer v. Green Day, 725 F.3d 1170, 1173-74 (9th Cir. 2013)).
. Id. at 2-3, 10.
. Id. at 11.
. Id.
. Id. at 11.
. Id.
. Id. (citing Rec. Doc. 2 at 1).
. Id. (citing Arica Inst. v. Palmer, 970 F.2d 1067, 1078 (2d Cir. 1992); Swatch, 756 F.3d at 87, 89; Seltzer, 725 F.3d at 1178).
. Id. at 12.
. Id. (quoting Campbell, 510 U.S. at 586, 114 S.Ct. 1164).
. Id. (citing Seltzer, 725 F.3d at 1178).
. Id. (quoting SOFA Entm’t v. Dodger Prods., 709 F.3d 1273, 1278 (9th Cir. 2013)).
. Id. at 13.
. Id.
. Id. (citing Cariou, 714 F.3d at 708).
. Id. (quoting Blanch v. Koons, 467 F.3d 244, 258 (2d Cir. 2006)).
. Id. (quoting Cariou, 714 F.3d at 709).
. Id.
. Id.
. Id. at 14.
. Id.
. Id. at 3.
. id.
. Id. at 15 (citing Oliveira v. Frito-Lay, 251 F.3d 56, 62 (2d Cir. 2001); Henley v. DeVore, 733 F.Supp.2d 1144, 1167-68 (C.D. Cal. 2010)).
. Id.
. Id. (citing Oliveira, 251 F.3d at 59, 63).
. Id. at 16 (citing Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 123 S.Ct. 2041, 156 L.Ed.2d 18 (2003)).
. Id.
. Id. at 17 (citing Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989)).
. Id.
. Id. (citing Westchester Media v. PRL USA Holdings, 214 F.3d 658, 664 (5th Cir. 2000)).
. Id.
. Id. at 18 (citing Rogers, 875 F.2d at 999; E.S.S. Entm’t 2000 v. Rock Star Videos, 547 F.3d 1095, 1099 (9th Cir. 2008) (considering whether the "level of relevance” of an "alleged mark to the work” is merely "above zero”)).
. Id. at 18-19.
. Id. at 19.
. Id.
. Id.
. Id. (citing Rogers, 875 F.2d at 1001).
. Id. (citing Mattel v. MCA Records, 296 F.3d 894, 902 (9th Cir. 2002); E.S.S., 547 F.3d at 1100).
. Id. at 20.
. Id. at 21.
. Id. at 21 (citing Bd. of Supervisor v. Smack Apparel, 550 F.3d 465, 490 n.130 (5th Cir. 2008); Louisiana World Expo. v. Logue, 746 F.2d 1033, 1039 (5th Cir. 1984); Rin Tin Tin v. First Look Studios, 671 F.Supp.2d 893, 902 (S.D. Tex. 2009)).
. Id. at 22.
. Id.
. Id. (citing McConley v. Boise, 2006 WL 709599, at *5 (W.D. La. 2006); Dorsey v. Money Mack Music, 304 F.Supp.2d 858, 865 (E.D. La. 2003)).
. Id. at 23.
. Id. (quoting Coastal Envtl. Specialists v. Chem-Lig Int’l, 818 So.2d 12, 19 (La. App. 1st Cir. 2001)).
. Id. (citing Gen. Universal Sys. v. Lee, 379 F.3d 131, 141 (5th Cir. 2004); Paulsson Geophysical Servs. v. Sigmar, 529 F.3d 303, 309 (5th Cir. 2008)).
. Id. at 24.
. Id.
. Rec. Doc. 72 at 2, 5.
. Id. at 2.
. Id. at 3, 7.
. Id. at 9.
. Id. at 8-9 (quoting Positive Black Talk, Inc. v. Cash Money Records, Inc., 394 F.3d 357 (5th Cir. 2004)).
. Id. at 9.
. Id. at 4.
. Id. at 10 (quoting Bridgeport v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005)).
. Id. at 12-13.
. Id. at 13.
. Id. at 16.
. Id. (quoting Harper & Row Publishers, Inc., 471 U.S. at 562, 105 S.Ct. 2218).
. Id. at 13.
. Id.
. Id.
. Id. at 14-15.
. Id. at 16.
. Id. at 14-15.
. Id.
. Id. at 17.
. Id.
. Id. (quoting Roy Export Co. Establishment etc. v. Columbia Broadcasting System, Inc., 503 F.Supp. 1137, 1145 (S.D.N.Y. 1980)).
. Id.
. Id. at 18.
. Id. at 19 (citing Facenda v. NFL Films, Inc., 542 F.3d 1007 (3rd Cir. 2008)).
. Id.
. Id. at 20 (citing Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992)).
. Id.
. Id. at 18.
. Id.
. Id.
. Id. (citing Express Lien, Inc., 2016 U.S. Dist. LEXIS 168242, at *6).
. Id. at 21.
. Id. (citing Ulloa v. Universal Music & Video Distribution Corp., 303 F.Supp.2d 409 (S.D.N.Y. 2004)).
. Id.
. Rec. Doc. 87 at 1.
. Id. at 10.
. Id. at 2 (citing Brownmark Films v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012); City of Inglewood v. Teixeira, 2015 WL 5025839, at *12 (C.D. Cal. 2015); Adjmi v. DLT Entm’t, 97 F.Supp.3d 512, 526-527. (S.D.N.Y. 2015); Caner v. Smathers, 2014 WL 12580461, at *4 (N.D. Tex. 2014); Faulkner Literary Rights v. Sony Pictures, 953 F.Supp.2d 701, 708-712 (N.D. Miss. 2013); Righthaven v. Realty One Grp., 2010 WL 4115413, at *2 (D. Nev. 2010); Savage v. Council on American-Islamic Relations, 2008 WL 2951281, at *4 (N.D. Cal. 2008)).
. Id. (citing Swatch Group v. Bloomberg, 756 F.3d 73, 92 (2d Cir. 2014); Estate of Smith v. Cash Money Records, 253 F.Supp.3d 737 (S.D.N.Y. 2017); Threshold Media v. Relativity Media, 166 F.Supp.3d 1011, 1029 (C.D. Cal. 2013); Lennon v. Premise Media, 556 F.Supp.2d 310, 327-28 (S.D.N.Y. 2008)).
. Id.
. Id. (citing Campbell v. Acuff-Rose Music, 510 U.S. 569, 584, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994)).
. Id. at 4 (quoting SOFA Entm’t v. Dodger Prods., 709 F.3d 1273, 1278-79 (9th Cir. 2013)).
. Id.
. Id. at 4-5.
. Id. at 5.
. Id. at 5-6 (quoting Bill Graham Archives, 448 F.3d 605, 612 (2d Cir. 2006)).
. Id. at 6.
. Id.
. Id.
. Id. (quoting Leibovitz v. Paramount Pictures, 137 F.3d 109, 117 (2d Cir. 1998)).
. Id. at 7.
. Id. (citing Facenda, 542 F.3d at 1018).
. Id.
. Id. at 8.
. Id. (quoting EMI v. Hill, Holliday, 228 F.3d 56, 64 (2d Cir. 2000)).
. Id. (citing Waits v. Frito-Lay, 978 F.2d 1093, 1096, 1111 (9th Cir. 1992)).
. Id. at 9.
. Id.
. Id. at 10.
. Rec. Doc. 90 at 5.
. Id. at 1 (citing Estate of Smith v. Cash Money Records, Inc., 253 F.Supp.3d 737 (S.D.N.Y. 2017)).
. Id.
. Id.
. Id. at 5-6 (quoting Compaq Computer Corp. v. Ergonome Inc., 387 F.3d 403, 409 (5th Cir. 2004)).
. Id. at 6.
. Id. at 3, 7 (citing Mobile v. BP, P.L.C., 2016 WL 5231839, *26-27, 2016 U.S. Dist. LEXIS 129540, *83 (E.D. La. Sept. 22, 2016) (Brown, J.)).
. Id. at 7.
. Rec. Doc. 95 at 1 (citing Corbello v. DeVito, No. 08-0867, 262 F.Supp.3d 1056, 2017 WL 2587924 (D. Nev. June 14, 2017)).
. Rec. Doc. 93 at 1.
. Id. at 2.
. Fed. R. Civ. P. 12(b)(6).
. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
. Twombly, 550 U.S. at 556, 127 S.Ct. 1955.
. Id. at 570, 127 S.Ct. 1955.
. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination, Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007).
. Iqbal, 556 U.S. at 677-78, 129 S.Ct. 1937.
. Id. at 679, 129 S.Ct. 1937.
. Id. at 678, 129 S.Ct. 1937.
. Id.
. Id.
. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).
. Carbe v. Lappin, 492 F,3d 325, 328 n.9 (5th Cir. 2007); Moore v. Metro. Human Serv. Dep't, No. 09-6470, 2010 WL 1462224, at *2 (E.D. La. Apr. 8, 2010) (Vance, J.) (citing
. Rec. Doc. 50-1 at 2, 6-7, 24.
. Id. at 2-3, 8-23.
. Id. at 23-24.
. Rec. Doc. 50-1 at 24.
. Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 367 (5th Cir. 2004) abrogated on other grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) (citations omitted); Gen. Universal Sys. v. Lee, 379 F.3d 131, 141 (5th Cir. 2004); Szabo v. Errisson, 68 F.3d 940, 942 (5th Cir. 1995) (citing Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 387 (5th Cir. 1984)).
. See Rec. Doc. 2 at 3 (Plaintiffs alleging that they own a “protectable copyright interest, both in the musical composition and the sound recording, to Anthony Barré’s original and unique works of performance art,” including "Booking the- Hoes from New Wild-ings” ("Copyright Office Registration Number PA u 3-795-556”) and “A 27 Piece Huh?” ("Copyright Office Registration Number PA 1-984-735”)).
. Rec. Doc. 2 at 2.
. Rec. Doc. 72 at 2.
. Id. at 3.
. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007).
. Rec. Doc. 2 at 15.
. Rec. Doc. 50-1 at 24.
. Id. at 24-25 (Defendants asserting that the following Defendants were involved in the "Song's sound recording or composition or the Super Bowl performance;” Parkwood Entertainment, Michael L. Williams, Khalif Brown, Asheton Hogan, WB Music Corporation, Wamer-Tamerlane Publishing Corp., Eardrummers Music Publishing, and Oakland 13 Music).
. Compare Rec. Doc. 50-1 at 24-25 (Defendants seeking to dismiss the following Defendants: Parkwood Entertainment, Michael L. Williams, Khalif Brown, Asheton Hogan, WB Music Corporation, Warner-Tamerlane Publishing Corp., Eardrummers Music Publishing, and Oakland 13 Music) with Rec. Doc. 2 at 3-6 (Plaintiffs alleging that each of those Defendants were involved in the writing, composing, producing, and/or publishing of "Formation”).
. Rec. Doc. 50-1 at 2, 8.
. Rec. Doc. 72 at 10-11 (quoting Bridgeport v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005)).
. Id. at 13.
. 17 U.S.C. § 106; see Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 546-47, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985).
. Harper & Row Publishers, Inc., 471 U.S. at 546-47, 105 S.Ct. 2218; see also Associated Press v. Meltwater U.S. Holdings, Inc., 931 F.Supp.2d 537, 549 (S.D.N.Y. 2013).
. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 45 L.Ed.2d 84 (1975).
. Harper & Row Publishers, Inc., 471 U.S. at 546, 105 S.Ct. 2218; see 17 U.S.C. § 107.
. Harper & Row Publishers, Inc., 471 U.S. at 549, 105 S.Ct. 2218 (citing H. Ball, Law of Copyright and Literary Property 260 (1944)).
. Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1238 (11th Cir. 2014).
. See Harper & Row Publishers, Inc., 471 U.S. at 546, 105 S.Ct. 2218 ("The drafters resisted pressures from special interest groups to create presumptive categories of fair use, but structured the provision as an affirmative defense requiring a case-by-case analysis.”); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) ("Since fair use is an affirmative defense, its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets.”); see also Patton, 769 F.3d at 1238; Associated Press v. Meltwater U.S. Holdings, Inc., 931 F.Supp.2d 537, 549 (S.D.N.Y. 2013) (citing Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104, 107 (2d Cir. 1998)).
. Campbell, 510 U.S. at 577, 114 S.Ct. 1164; Harper & Row Publishers, Inc., 471 U.S. at 549, 560, 105 S.Ct. 2218; Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., 953 F.Supp.2d 701, 707 (N.D. Miss. 2013).
. Id. at 560-61.
. See Meltwater U.S. Holdings, Inc., 931 F.Supp.2d at 549 (quoting Campbell, 510 U.S. at 578, 114 S.Ct. 1164).
. Id. (quoting Bill Graham Archives, 448 F.3d at 608).
. Rec. Doc. 72 at 10.
. Bridgeport, 410 F.3d at 805.
. Id.
. Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986); see Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 570 (5th Cir. 2005) (noting that “generally a res judica-ta contention cannot be brought in a motion to dismiss; it must be pleaded as an affirmative defense”); see also BRFHH Shreveport, LLC v. Willis Knighton Med. Ctr., 176 F.Supp.3d 606, 623 (W.D. La. 2016) (finding that the “procompetitive” affirmative defense to alleged violations of federal antitrust laws cannot be raised at the motion to dismiss stage of litigation, as it is “better s.uited for a summary judgment motion”); see also 27 Fed. Proc., L.Ed. § 62:88 (noting that affirmative defenses "generally may not be raised,by a motion to dismiss” unless the facts are admitted or are not controverted); 61A Am. Jur. 2d Pleading § 320 (stating that a number of affirmative defenses can be resolved on the face of a plaintiff's complaint when “the facts with respect to an affirmative defense are admitted or are not controverted, dr are conclusively established so that nothing further can be developed by a trial of the issue,” including such affirmative defenses as statute of limitations, lack of standing, release, and preemption).
. Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).
. See Brownmark Filins, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (noting that courts “should usually refrain from granting Rule 12(b)(6) motions on affirmative defenses,” but recognizing that the fair use affirmative defense may be an exception); Shell v. DeVries, No. 07-1086, — Fed.Appx. -, -, 2007 WL 4269047) at *1 (10th Cir. Dec. 6, 2007) (affirming a district court’s decision to grant a motion to dismiss on fair use grounds); BWP Media USA, Inc. v. Gossip Cop Media, LLC, 87 F.Supp.3d 499, 505 (S.D.N.Y. 2015) (noting that the Second Circuit recognizes that affirmative defenses may be adjudicated on a motion to dismiss when the facts necessary to establish the defense are evidence on the face of the complaint, and deciding the fair use inquiry on a motion to dismiss); Levingston v. Earle, 2013 WL 6119036 (D. Ariz. Nov. 21, 2013) (raising the issue of fair use stia sponte on the defendant’s Rule 12(b)(6) motion and ordering the plaintiff to respond); Payne v. Courier-Journal, 2005 WL 1287434, at *3 (W.D. Ky. 2005) (finding fair use on a motion to dismiss, as the original and infringing works were in the record and the court could make the determination as a matter of law); see also 1 E-Commerce and Internet Law 4,10[1] (concluding that when fair use determinations “may be made based on a side-by-side comparison [of the two works] ... fair use may be résolved on a motion to dismiss”); Patry on Fair Use § 7:5 (pointing out that “[increasingly, courts have considered fair use” on a Rule 12(b)(6) motion to dismiss and listing relevant cases) (citations omitted)..
. Rec. Doc. 50-1 at 2, 7-8.
. Backe, 691 F.3d at 648.
. Campbell, 510 U.S. at 579, 114 S.Ct. 1164; Meltwater U.S. Holdings, Inc., 931 F.Supp.2d at 551; 5 A.L.R. Fed. 3d Art. 6.
. Campbell, 510 U.S. at 579, 114 S.Ct. 1164; Meltwater U.S. Holdings, Inc., 931 F.Supp.2d at 551; 5 A.L.R. Fed. 3d Art. 6.
. Campbell, 510 U.S. at 579, 114 S.Ct. 1164.
. See 17 U.S.C. § 107; Campbell, 510 U.S. at 577, 114 S.Ct. 1164 (instructing that the first factor inquiry "may be guided by the examples given in the preamble to § 107, looking to whether the use is for criticism, or comment, or news reporting, and the like”); Meltwater U.S. Holdings, Inc., 931 F.Supp.2d at 551.
. See Meltwater U.S. Holdings, Inc., 931 F.Supp.2d at 551 (quoting Infinity Broadcast Corp., 150 F.3d at 108 & n. 2).
. Rec. Doc. 50-1 at 3, 11.
. Id. at 10-11.
. Rec. Doc. 72 at 13-14.
. Id. at 14.
. Rec. Doc. 2 at 12 (alleging that Anthony Barré, also known as "Messy Mya,” was a “well-known performance comedian,” a "YouTube sensation,” and "very famous” for his signature catchphrases).
. Seltzer v. Green Day, Inc., 725 F.3d 1170, 1177 (9th Cir. 2013) (emphasis in original).
. Id. at 2, 19-20.
. Rec. Doc. 50-1 at 9-11.
. Seltzer, 725 F.3d at 1177.
. Id.
. Rec. Doc. 2 at 19-20 ("The specific and unique characteristics of the male voice of "Booking the Hoes from New Wildings” and "A 27 Piece Huh?” and the infringing "Formation” are identical ... "Formation copies Anthony Barre’s works.”); see Rec. Doc. 72 (alleging that "Defendant copied the sound recording exactly without modifying the underlying sound recording in any way to differentiate it from the original”).
. Cariou v. Prince, 714 F.3d 694, 706 (2d Cir. 2013).
. Rec. Doc. 2 at 19-20.
. Id. at 21.
. Id. at 16.
. Id. at 17-18.
. Rec. Doc. 50-1 at 11 (citations omitted). See generally SOFA Entm’t, Inc. v. Dodger Prods., Inc., 709 F.3d 1273, 1278-79 (9th Cir. 2013) ("Moreover, because Dodger’s use of the clip is transformative, the fact that Jersey Boys is a commercial production is of little significance.”).
. 17 U.S.C. § 107 (emphasis added); see also Campbell, 510 U.S. at 584, 114 S.Ct. 1164 ("The language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character.”); Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 450 n.32, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) (opining that "the commercial or non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors in fair use decisions,”) (quoting H. Rep. No. 94-1476, at 66); Compaq Computer Corp. v. Ergonome Inc., 387 F.3d 403, 409-10 (5th Cir. 2004) ("While commerciality generally weighs against finding fair use, it does not end the inquiry; rather, the fair use determination depends on the totality of the factors considered.”).
. Harper & Row Publishers, Inc., 471 U.S. at 562, 105 S.Ct. 2218.
. 17 U.S.C. § 107; see also Cariou, 714 F.3d at 706 (Second Circuit noting that "there is no question that Prince’s artworks are commercial,” but finding that the transformative nature of the new work had greater weight).
. 17 U.S.C. § 107.
. Stewart v. Abend, 495 U.S. 207, 237, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990) ("In general, fair use is more likely to be found in factual works than in fictional works.”); Cariou, 714 F.3d at 709-10 ("We consider (1) whether the work is expressive or creative, ... with a greater leeway being allowed to a claim of fair use where the work is factual or informational, and (2) whether the work is published or unpublished, with the scope for fair use involving unpublished works being considerably narrower,” (internal quotation
. Harper & Row Publishers, Inc., 471 U.S. at 563, 105 S.Ct. 2218.
. Rec. Doc. 50-1 at 12.
. Id. at 17.
. Rec. Doc. 2 at 14.
. Meltwater U.S. Holdings, Inc., 931 F.Supp.2d at 557 (citing Infinity Broadcast Corp., 150 F.3d at 109).
. Id. (citing Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc., 166 F.3d 65, 73 (2d Cir. 1999)).
. Harper & Row Publishers, Inc., 471 U.S. at 564, 105 S.Ct. 2218.
. Rec. Doc. 2 at 13.
.. See Campbell, 510 U.S. at 584, 114 S.Ct. 1164 (noting that publicly disseminated and creative works are within the core of copyright law’s "protective purposes”); Stewart, 495 U.S. at 237, 110 S.Ct. 1750 (recognizing that "fair use is more likely to be found in factual works than in fictional works” and that a “motion picture based on a fictional short story obviously falls into the latter category”); Cariou, 714 F.3d at 710 (finding that the second factor weighs against a fair use' determination for "creative- and published” works, but acknowledging that this factor "may be of limited usefulness” when the work is being used for a "transformative purpose”); A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1016 (9th Cir. 2001) (affirming district . court's finding that published, copyrighted music compositions and sound recordings are creative, "which cuts against a finding of fair use under the second factor”).
. Campbell, 510 U.S. at 584, 114 S.Ct. 1164 (noting that the third factor "calls for thought not only about the quantity of the materials used, but about their quality and importance, too”); 5 A.L.R. Fed. 3d art. 6.
. Harper & Row Publishers, Inc., 471 U.S. at 564, 105 S.Ct. 2218 (determining that even though the defendant only used an "insubstantial portion” of the plaintiff’s manuscript, it was "the most interesting and moving parts” and were thus qualitatively important); Roy Exp. Co. Establishment of Vaduz, Liechtenstein, Black Inc., A.G. v. Columbia Broad. Sys., Inc., 503 F.Supp. 1137, 1145 (S.D.N.Y. 1980) (finding that, even assuming that the use of one minute and forty-five seconds of a one hour and twelve minute film was quantitatively small, "the jury could reasonably have concluded that it was qualitatively great”), aff'd sub nom. Roy Exp. Co. Establishment of Vaduz, Liechtenstein v. Columbia Broad. Sys., Inc., 672 F.2d 1095 (2d Cir. 1982); 5 A.L.R. Fed. 3d art. 6.
. See Rec. Doc. 50-1 at 4; Rec. Doc. 72 at 12 (Plaintiffs pointing out that "Defendants admit that 4 seconds of Anthony Barre’s vidoes [sic] in one case and 6 seconds in another were used”); Rec. Doc. 87 at 6 (Defendants asserting in their reply memorandum that Plaintiffs do not do dispute that “the ten seconds of audio that Defendants used” is a quantitatively small amount).
. Rec. Doc. 50-1 at 13; Rec. Doc. 87 at 6.
. Rec. Doc. 87 at 6.
. Rec. Doc. 72 at 17.
. Id.
. Id.
. Id. at 12, 19, 25.
. Id.
. Id.
. Harper & Row Publishers, Inc., 471 U.S. at 564, 105 S.Ct. 2218.
. Id.
. Meltwater U.S. Holdings, Inc., 931 F.Supp.2d at 557 (citing NXIVM Corp. v. Ross Institute, 364 F.3d 471, 480 (2d Cir. 2004)).
. Roy Exp. Co. Establishment of Vaduz, Liechtenstein, Black Inc., A.G., 503 F.Supp. at 1145 (finding that, even assuming taking less than two minute clips from films between one hour and one hour and thirty minutes in length was quantitatively insignificant, taking the “best scenes” could be qualitatively significant).
. Rec. Doc. 2 at 12-13.
. 17 U.S.C. § 107.
. Harper & Row Publishers, Inc., 471 U.S. at 566-67, 105 S.Ct. 2218.
. Campbell, 510 U.S. at 590, 114 S.Ct. 1164.
. Harper & Row Publishers, Inc., 471 U.S. at 568, 105 S.Ct. 2218 (quoting 1 Nimmer § 1.10[D], at 1-87).
. Rec. Doc. 50-1 at 13.
. Id.
. Rec. Doc. 72 at 18.
. 17 U.S.C. § 106.
. Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 929 (2d Cir. 1994).
. Id. (citing Campbell, 510 U.S. at 590, 114 S.Ct. 1164; Harper & Row Publishers, Inc., 471 U.S. at 568, 105 S.Ct. 2218; Twin Peaks Prods., Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1377 (2d Cir. 1993); DC Comics, Inc. v. Reel Fantasy, Inc., 696 F.2d 24, 28 (2d Cir. 1982); United Telephone Co. of Missouri v. Johnson Publishing Co., Inc., 855 F.2d 604, 610 (8th Cir. 1988)). The Second Circuit further noted, however, that "were a court automatically to. conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth fair use factor would always favor the copyright holder." Id. at 929 n.17.
. 855 F.2d 604, 610 (8th Cir. 1988).
. Id.
. Harper & Row Publishers, Inc., 471 U.S. at 568, 105 S.Ct. 2218 (quoting Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. at 451, 104 S.Ct. 774) (emphasis in original); see also Campbell, 510 U.S. at 590, 114 S.Ct. 1164; Meltwater U.S. Holdings, Inc., 931 F.Supp.2d at 557.
. Harper & Row Publishers, Inc., 471 U.S. at 568-69, 105 S.Ct. 2218.
. Id.
. Rec. Doc. 2 at 21-22.
. Id. at 14.
. Rec. Doc. 72 at 18,
. Harper & Row Publishers, Inc., 471 U.S. at 568, 105 S.Ct. 2218 (quoting 1 Nimmer § 1.10[D], at 1-87).
. Carter v. Target Corp., 541 Fed.Appx. 413, 416-17 (5th Cir. 2013); Rodriguez v. Rutter, 310 Fed.Appx. 623, 626 (5th Cir. 2009); Mabile v. BP, P.L.C., No. 11-1783, 2016 WL 5231839, at *16 (E.D. La. Sept. 22, 2016) (Brown, J.).
. See generally Fed. R. Civ. P. 15(b)(2) ("A party may move — at any time, even after judgment — to amend the pleadings to conform them to the evidence and to raise' an unplead-ed issue.”); Jones v. Wells Fargo Bank, N.A., 858 F.3d 927, 933 (5th Cir. 2017) (“Post-trial amendments conforming the pleadings to the evidence are appropriate under Federal Rule of Civil Procedure 15(b) only if the defendant gives express or implied consent.”); See also Juergens v. Watt, No. 08-007, 2009 WL 1375976, at *3 (N.D. Miss. May 15, 2009) ("Rule 15(a) of the Federal Rules of Civil Procedure addresses amendments, ¡of ..the pleadings before trial.”).
. See Meltwater U.S. Holdings, Inc., 931 F.Supp.2d at 549 (quoting Campbell, 510 U.S. at 578, 114 S.Ct. 1164).
. Campbell, 510 U.S. at 578, 114 S.Ct. 1164; Bill Graham Archives, 448 F.3d at 608; Meltwater U.S. Holdings, Inc., 931 F.Supp.2d at 549; see also Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1237-38 (11th Cir. 2014) ("These boundaries must be drawn carefully in order to assure that copyright law serves its intended purpose, which is to promote the creation of new works for the public good by providing authors and other creators with an economic incentive to create.”).
. Rec. Doc. 50-1 at 14.
. Id. at 14-21.
. 15 U.S.C. § 1125(a) (emphasis added).
. See Pacenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1021 (3d Cir. 2008); Parks v. La-Face Records, 329 F.3d 437, 445 (6th Cir. 2003); L.S. Heath & Son, Inc. v. AT & T Info. Sys., Inc., 9 F.3d 561, 575 (7th Cir. 1993); Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1108 (9th Cir. 1992) abrogated on other grounds by Lexmark Int'l, Inc. v. Static Control Components, Inc., — U.S. -, 134 S.Ct. 1377, 188
. Pizza Hut, Inc. v. Papa John's Int'l, Inc., 227 F.3d 489, 494-95 (5th Cir. 2000) (quoting Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1387 (5th Cir. 1996))(discussing false advertising).
. Better Bus. Bureau of Metro. Houston, Inc. v. Med. Directors, Inc., 681 F.2d 397, 400 (5th Cir. 1982).
. See generally 5 McCarthy on Trademarks and Unfair Competition § 28:15 (4th ed.) (noting that a false endorsement claim could be evaluated under a trademark infringement analysis or under the false advertising prong of the Lanham Act but recognizing that "almost all courts have put false endorsement cases within the infringement prong . ,■. not within the false advertising prong..., ”).
. See, e.g., Facenda, 542 F.3d at 1007 (Third Circuit recognizing a false endorsement claim for the use of a celebrity’s voice in the defendant’s video game); Parks, 329 F.3d at 445 (Sixth Circuit permitting a false endorsement claim for the use of Rosa Park’s name in the title of a song by the band Out-Kast); ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 925 (6th Cir. 2003) ("Courts have recognized false endorsement claims under § 43(a) of the Lanham Act where a celebrity’s image or persona is used in association with a product so as to imply that the celebrity endorses the product.”); Waits, 978 F.2d at 1108 (celebrity suit against snack manufacturer for unauthorized use of his distinctive voice in a commercial); Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 205 (2d Cir. 1979) (recognizing claim under Section 43(a) because the uniform worn by star of X-rated movie was confusingly similar to plaintiffs’ trademark uniforms, falsely creating impression that plaintiffs "sponsored or otherwise approved the use” of the uniform); Allen v. National Video, Inc., 610 F.Supp. 612, 625-26 (S.D.N.Y. 1985) (recognizing a celebrity’s false endorsement claim under Section 43(a) because celebrities have a commercial investment in names and faces, and the "underlying purposes of the Lanham Act” are implicated in “cases of misrepresentations regarding the endorsement of goods and services”).
. Waits, 978 F.2d at 1108.
. See Bruce Lee Enterprises, LLC v. A.V.E.L.A., Inc., No. 10-2333, 2011 WL 1327137, at *4-5 (S.D.N.Y. Mar. 31, 2011) (recognizing that "[c]ourts that have considered the issue have found that use of a deceased celebrity’s persona can support a false
. Id. at 14-15 (citing Oliveira v. Frito-Lay, 251 F.3d 56, 62 (2d Cir. 2001); Henley v. DeVore, 733 F.Supp.2d 1144, 1167-68 (C.D. Cal. 2010)).
. Id. (citing Oliveira, 251 F.3d at 62; Henley, 733 F.Supp.2d at 1168).
. Rec. Doc. 72 at 18.
. Id. at 19 (citing Facenda v. NFL Films, Inc., 542 F.3d 1007 (3rd Cir. 2008); Brown v. Ames, 201 F.3d 654 (5th Cir. 2000)).
. Facenda, 542 F.3d at 1014 (citing Commerce Nat’l Ins. Servs., Inc. v. Commerce Ins. Agency, Inc., 214 F.3d 432, 437 (3d Cir. 2000)). See also Waits, 978 F.2d at 1108 (noting that a false endorsement claim alleges "the misuse of a trademark” that is “likely to confuse consumers as to the plaintiff’s sponsorship or approval of the product”); Stayart v. Yahoo! Inc., 651 F.Supp.2d 873, 880-81 (E.D. Wis. 2009) (finding that false endorsement occurs when there is an "unauthorized use of a celebrity’s identity” and the ‘.‘misuse of a trademark” that is likely to cause consumer confusion), aff'd, 623 F.3d 436 (7th Cir. 2010), The Court further notes that courts in the Southern District of New York have adopted a similar four factor analysis for false endorsement claims, and require plaintiffs to allege that the defendant: (l)-"in commerce;” (2) “made a false or misleading representation of fact;” (3) “in connection with goods or services;” (4) "that is likely-to cause consumer confusion as to origin, sponsorship, or approval of the goods or services.” Bruce Lee Enterprises, LLC, 2011 WL 1327137, at *4; Burck v. Mars. Inc., 571 F.Supp.2d 446, 455 (S.D.N.Y. 2008); Warner Bros. Entm’t Inc. v. Ideal World Direct, 516 F.Supp.2d 261, 268 (S.D.N.Y. 2007).
. ETW Corp. v. Jirek Pub., Inc., 332 F.3d 915, 926 (6th Cir. 2003); Stayart, 651 F.Supp.2d at 880 (noting that the "key issue in a false endorsement case” is consumer confusion).
. See Am. Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321, 329 (5th Cir. 2008) ("To recover on a claim of trademark infringement, a plaintiff must first show that the mark is legally protectable and must then establish infringement by showing a likelihood of confusion.”).
. Id. (internal citations omitted).
. Id. (quoting Conan Props., Inc. v. Conans Pizza, Inc., 752 F.2d 145, 150 (5th Cir. 1985)) (internal quotation marks omitted).
. Rec. Doc. 2 at 29-32.
. Id. at 18.
. Id. at 30.
. Id. at 12, 31.
. Oliveira v. Frito-Lay, Inc., 251 F.3d 56, 62 (2d Cir. 2001).
. Rec. Doc. 2 at 18, 29-32.
. See Facenda, 542 F.3d at 1014; Waits, 978 F.2d at 1108; Bruce Lee Enterprises, LLC, 2011 WL 1327137, at *4.
. Id.
. Id. at 18-21.
. 875 F.2d 994 (2nd Cir. 1989).
. Id. at 997.
. Id. at 999.
. E.S.S. Entm't 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095, 1099 (9th Cir. 2008) ("[Tjhere is no principled reason why [the Rogers test] ought not also apply to the use of a trademark in the body of the work.”); Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ’g Group, 886 F.2d 490, 495 (2d Cir. 1989) (applying Rogers test to a parody book cover); see also Facenda, 542 F.3d at 1015-16 (discussing Rogers test).
. Westchester Media v. PRL USA Holdings, Inc., 214 F.3d 658, 664-65 (5th Cir. 2000) (use of mark “POLO” to title a magazine); Sugar Busters LLC v. Brennan, 177 F.3d 258 (5th Cir. 1999) (use of mark “SUGARBUSTERS” in book title).
. Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1239 (9th Cir. 2013) (alterations omitted).
. Id.; see also Rogers, 875 F.2d at 999.
. Rec. Doc. 2 at 22-23.
. Id. at 19-20.
. Id. at 18.
. Id. at 23.
. Id. at 29-30.
. Rec. Doc. 50-1 at 21.
. La. Rev. Stat. § 51:1405.
. American Machinery Movers, Inc. v. Machinery Movers of New Orleans, LLC, 136 F.Supp.2d 599, 604 (E.D. La. 2001); Core v. Martin, 543 So.2d 619, 621 (La. App. 2 Cir. 1989).
. See Pinero v. Jackson Hewitt Tax Serv. Inc., 594 F.Supp.2d 710, 720-21 (E.D. La. 2009) (Vance, J.) (citing Jefferson v. Chevron U.S.A. Inc., 713 So.2d 785, 792 (La. App. 4 Cir. 1998)).
. See id. at 721 (citing Jefferson, 713 So.2d at 793); see also Computer Mgmt. Assistance Co. v. Robert F. DeCastro, Inc., 220 F.3d 396, 404 (5th Cir. 2000) (“To recover under LUTPA, a plaintiff must prove fraud, misrepresentation, or other unethical conduct.").
. Rec. Doc. 2 at 32.
. Id.
. Rec. Doc. 50-1 at 23.
. Rec. Doc. 72 at 21.
. La. Rev. Stat. 2298.
. Walters v. MedSouth Record Mgmt., 38 So.3d 243, 244 (La. 2010) (internal citations and quotation marks omitted).
. 581 Fed.Appx. 440, 443-44 (5th Cir. 2014). See also Cenac Inland, LLC v. River Valley Shipyards, LLC, No. CIV.A. 12-2260, 2013 WL 1786641, at *4 (E.D. La. Apr. 25, 2013) (Brown, J.) (holding that, .where a court finds that the plaintiff has stated a claim for the conduct alleged, the Court “must dismiss Plaintiffs alternative claim for unjust enrichment, irrespective of whether Plaintiff is ultimately able to successfully pursue its claim.”).
. JP Mack Indus. LLC v. Mosaic Fertilizer, LLC, 970 F.Supp.2d 516, 521 (E.D. La. 2013) (Brown, J.).
. Id.
. See also Mobile v. BP, P.L.C., No. 11-1783, 2016 WL 5231839, at *22 (E.D. La. Sept. 22, 2016) (Brown, J.); Patterson v. Dean Morris, L.L.P., No. 08-5014, 2011 WL 1743617 (E.D. La. May 6, 2011) (Duval, J.)(holding that "[t]he availability of an alternative remedy bars [the plaintiff's] claim for unjust enrichment and entitles [the defendant] to summary judgment on her claim of unjust enrichment” and, noting that the fact that the plaintiff failed to prevail on other remedies does not negate the fact that such remedies were available to the plaintiff).
. See Rec. Doc. 2 at 33.
. Rec. Doc. 2 at 33.
. Rec. Doc. 50-1 at 23.
. Id. at 24.
. Rec. Doc. 2 at 3.
. Id.
. Id. at 2.
. Rec. Docs. 1-1, 1-2.
. Rec. Doc. 50.
Reference
- Full Case Name
- The ESTATE OF Anthony BARRÉ and his Sole Heir, Angel Barré v. Beyoncé Knowles CARTER
- Cited By
- 7 cases
- Status
- Published