Thomas v. Doja Cat

Background

Caze D. Thomas brought the action without a lawyer against Doja Cat, SZA, RCA, and Kemosabe Records. He alleged that Doja Cat’s song “Kiss me more” included sounds similar to sounds in his song “Love me more.” Thomas said he created “Love me more” in 2020 using a voice-memo app, posted a screen recording of it on Twitter and later YouTube, and used an astronaut theme in his branding. He also alleged that Doja Cat’s video used an astronaut and that she said her staff had identified Olivia Newton-John’s song as the song “Kiss me more” sounded like.

Thomas sought damages and asked the court to remove his intellectual property from unauthorized contracts. He identified his claims as “Infringement,” “All Intellectual property rights,” “Branding dilution/Business Interferes,” and “Trade dress and trademark violations.” The court treated the infringement allegation as a possible copyright claim and the trademark reference as a possible claim under the federal Trademark Act, also called the Lanham Act.

Court’s analysis

For copyright infringement, the court explained that a plaintiff generally must allege ownership of a valid copyright and copying of original parts of the work. Although copyright registration is not required to obtain copyright protection, registration is required before filing a copyright-infringement action in federal court. Thomas did not allege that he registered “Love me more” with the U.S. Copyright Office. The court therefore dismissed the copyright claim without prejudice. The court also noted, without deciding the issue, that allegations about similar background noise caused by recording both songs on the subway would not show copying of original elements.

For trademark infringement, the court explained that a plaintiff must allege that the mark is legally protectable and that the defendant’s use is likely to confuse consumers about the source or sponsorship of goods or services. The court found it unclear what mark Thomas had registered and sought to protect. His allegation that astronauts were a theme of his brand was not enough to allege a registered, protectable mark. The court dismissed the trademark claim for failure to state a claim on which relief could be granted.

Disposition

The order dismissed Thomas’s claims under the Copyright Act and Lanham Act for failure to state a claim on which relief could be granted. It declined to exercise supplemental jurisdiction over any state-law claims. Because it was not clear that amendment would be futile, the court granted Thomas 30 days’ leave to amend. If he reasserts copyright infringement, he must allege facts showing that he has a registered copyright. If he does not file an amended complaint within 30 days, the court stated that the Clerk of Court will be directed to enter judgment. The court also certified that an appeal would not be taken in good faith and denied fee-free status for purposes of an appeal.