Peabody & Company LLC v. Roderick Wayne

Background

Peabody & Company LLC claimed that “The Box,” performed by Roderick Wayne, Jr., popularly known as Roddy Ricch, unlawfully copied Peabody’s copyrighted musical composition, “Come On Down (Get Your Head Out of the Clouds),” a 1975 song recorded by Greg Perry. Peabody also sued other defendants involved in writing, marketing, and distributing “The Box.” The amended complaint asserted copyright infringement under the Copyright Act.

Peabody alleged that the songs shared nearly identical instrumental melodies, practically identical chord progressions, repeated chord progressions, similar instrumentation, similar introductory passages, and similar tone settings. The defendants moved to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that the alleged similarities did not amount to unlawful copying of protectable expression. The defendants contested only the copyright-infringement requirement that the works be substantially similar in their protectable elements.

Legal standard

To state a copyright-infringement claim, a plaintiff must allege ownership of a valid copyright, actual copying, and unlawful copying shown by substantial similarity between the defendant’s work and protectable elements of the plaintiff’s work. Copyright does not protect basic musical building blocks, such as individual notes, common chord progressions, or commonly used techniques. A sufficiently original selection and arrangement of otherwise unprotectable elements may be protected.

The court explained that substantial similarity is ordinarily evaluated from the perspective of an average listener considering the works’ overall concept and feel. When a defendant allegedly copies a portion of a work exactly or nearly exactly without copying the work’s overall structure, courts may instead apply the fragmented-literal-similarity test. That test asks whether important features of protected expression were copied and how much protected expression was copied.

Court’s analysis

Applying the ordinary-observer test, the court held that no reasonable jury could find the songs substantially similar. “Come On Down” was a soul song with a melodic tune, while “The Box” was a hip-hop song delivered in a monotone rap. “Come On Down” had a tempo of 96 beats per minute, compared with 58 beats per minute for “The Box.” The first used acoustic instruments, while the second primarily used synthesizers. The court also found their overall feel different: “Come On Down” concerned love and heartbreak, while “The Box” concerned wealth, sexual relationships, and the performer’s superiority to other rappers.

The court also rejected Peabody’s claim under the fragmented-literal-similarity test. It held that the individual alleged similarities were not protectable as a matter of law. Glissandos, two-chord progressions, repeated chord progressions, and the choice of common instruments were basic or commonplace musical elements. Peabody could not claim ownership of the general idea of an instrumental introduction, and it had not shown that the broadly described order of musical elements was distinctive enough to be protected. The alleged tone settings concerned the sound recording, not the musical composition at issue.

The court further held that Peabody’s proposed combination of elements was not sufficiently numerous or original to qualify as protected expression. Even if the combination were protectable, the court found that “The Box” did not copy the claimed protected features: the rising scales differed, “The Box” lacked the original song’s tremolando, the chord progressions and repetition rates differed, the instruments differed, and the elements appeared in a different order.

Disposition

Judge Analisa Torres granted the defendants’ motion to dismiss Peabody’s amended complaint with prejudice. The Clerk of Court was directed to terminate all pending motions, enter judgment for the defendants, and close the case.