         11-2507-cv
         Wadena Pyatt and Bang Hitz Publishing v. Usher Raymond, IV, AKA Usher, et al.

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 6th day of February, two thousand and ten.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                PETER W. HALL,
 8                SUSAN L. CARNEY,
 9                         Circuit Judges.
10
11
12
13       WADENA PYATT, BANG HITZ PUBLISHING,
14
15                      Plaintiffs - Appellants,
16
17                      - v. -                                                      11-2507-cv
18
19       USHER RAYMOND, IV, AKA USHER, ALICIA AUGELLO COOK, AKA
20       ALICIA KEYS, KRUCIAL KEYS, INC., JEFFREY ROBINSON, MBK
21       ENTERTAINMENT, INC., SONY BMG MANAGEMENT CO. LLC, SONY MUSIC
22       ENTERTAINMENT DIGITAL, LLC., ZOMBA RECORDING LLC, ARISTA
23       RECORDS INCORPORATED, LA FACE RECORDS, INC., EMI MUSIC
24       PUBLISHING, INC., JERMAINE DUPRE MAULDIN, AKA JERMAINE
25       DUPRE, MAURICE RYAN TOBY, AKA RYAN TOBY, ANDRE HARRIS, VIDAL
26       DAVIS, JASON BOYD, DOMINIQUE MURO, EMI APRIL MUSIC, INC.,
27       PLADIS MUSIC, INC., C. SILLS PUBLISHING, INC., HITCO MUSIC
28       PUBLISHING LLC, DIRTY DRE MUSIC/UNIVERSAL PUBLISHING INC.,
29       DOUBLE OH EIGHT MUSIC/UNIVERSAL PUBLISHING, INC., POO BZ
30       PUBLISHING, INC., SONY BMG, SONY MUSIC ENTERTAINMENT, INC.,
31       SONY/ATV MUSIC PUBLISHING, LLC, UNIVERSAL MUSIC CORP.,
32       SONY/ATV TUNES, LLC,
33                     Defendants- Appellees
34
35
 1   FOR APPELLANT:     ROBERT PRITCHARD (Anthony J. Gallo, on
 2                      the brief), Gallo & Associates, PLLC,
 3                      Plainview, NY
 4
 5   FOR APPELLEE:      JOHN J. ROSENBERG, Rosenberg & Giger,
 6   Alicia Augello     P.C., New York, NY.
 7   Cook aka Alicia
 8   Keys & Krucial
 9   Keys, Inc., et al.
10
11   FOR APPELLEE:     JONATHAN D. DAVIS, P.C., New York, NY
12   Usher Raymond,
13   Sony BMG Management,
14   Co., et al.
15
16   FOR APPELLEE:     CHRISTINE LEPERA, Mitchell Silberberg &
17   Jason Boyd, Hitco Knupp LLP, New York, NY.
18   Music Publishing
19   LLC & Poo BZ Publishing, Inc.
20
21        Appeal from the United States District Court for the
22   Southern District of New York (McMahon, J.)
23
24       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

25   AND DECREED that the judgment of the United States District

26   Court for the Southern District of New York be AFFIRMED.

27       Plaintiffs-Appellants Wadena Pyatt and Bang Hitz

28   Publishing appeal from a judgment of the United States

29   District Court for the Southern District of New York

30   (McMahon, J.), dismissing their complaint pursuant to Rule

31   12(b)(6).   We assume the parties’ familiarity with the

32   underlying facts and procedural history.

33       We review de novo a district court’s dismissal pursuant

34   to a Rule 12(b)(6) motion.   In this case, we affirm for the


                                   2
1    well-stated reasons of the court below.     The originally

2    registered copyrights and Usher’s “Caught Up” have little in

3    common beyond the title and the phrase “Caught Up.”     The

4    songs are lyrically and musically distinct and the district

5    court correctly concluded that the claim failed the ordinary

6    observer test.   See Yurman Design, Inc. v. PAJ, Inc., 262

7    F.3d 101, 111 fn. 3 (2d Cir. 2001).

8        We also affirm because we agree with the district

9    court’s interpretation of the complaint as alleging

10   copyright infringement only with respect to the originally

11   copyrighted works.     Appellants contend the district court

12   misconstrued the complaint when it held that the

13   subsequently registered works (those registered after filing

14   of the complaint and after Defendants’ motions to dismiss

15   were filed) were incorporated in Appellants’ copyright

16   infringement claims.     The complaint’s broad references to

17   “materials,” “works,” and “versions” are simply insufficient

18   to bring post-complaint registrations within the scope of

19   the complaint’s allegations.     This is so especially because

20   the "Copyright Act . . . requires copyright holders to

21   register their works before suing for copyright

22   infringement."   Reed Elsevier, Inc. v. Muchnick, 130 S.Ct.

23   1237, 1241 (2010) (citing 17 U.S.C. § 411(a)).


                                     3
1        Appellants claim that the court, in interpreting the

2    complaint, should have considered certain documents that

3    Appellants attached to their opposition to Defendants’

4    motions to dismiss.     These documents (lyric sheets and

5    expert reports regarding subsequently registered works) were

6    not attached to or integrated into the complaint, or

7    incorporated therein.     The district court did not err by

8    declining to examine them.      See DiFolco v. MSNBC Cable LLC,

9    622 F.3d 104, 111 (2d Cir. 2010).

10        Finally, we affirm the district court’s denial of

11    Appellants’ motion for leave to amend the complaint. We

12    review de novo denials of motions to amend based on a

13    determination that amendment would be futile.     Hutchison

14    v. Deutsche Bank Sec. Inc., 647 F.3d 479, 490 (2d Cir.

15    2011).    Amendment under rule 15(a) was futile in this case

16    because only an allegation that Defendants infringed on

17    Appellants’ newly-registered copyrights could have

18    potentially allowed Appellants to state a claim for

19    relief.    Appellants’ proposed amended complaint failed to

20    allege these new copyrights and Appellants did not move

21    for leave to file a supplemental pleading, see Fed. R.

22    Civ. P. 15(d).     In the face of this inaction, the district

23    court had no duty to order sua sponte further amendment or

24    supplementation.


                                      4
1

2       For the foregoing reasons, the judgment of the

3   district court is hereby AFFIRMED.

4
5                              FOR THE COURT:
6                              Catherine O’Hagan Wolfe, Clerk
7
8




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