18-1311
Oyewole v. Ora

                                 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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
4th day of September, two thousand nineteen.

PRESENT:           PETER W. HALL,
                   DEBRA ANN LIVINGSTON,
                        Circuit Judges,
                   CLAIRE R. KELLY,
                        Judge.*

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ABIODUN OYEWOLE, AKA TUNES BY DUNE,
                                      Plaintiff - Appellant,

                            v.                                                   No. 18-1311-cv

RITA ORA, ROC NATION LLC, KELLY SHEEHAN,
INDIVIDUALLY, AKA THE RUNNERS, ANDREW
HARR, INDIVIDUALLY, AKA THE RUNNERS,
JERMAINE JACKSON, INDIVIDUALLY, AKA THE
RUNNERS, TRAC-N-FIELD ENTERTAINMENT, LLC,
ANDREW DAVIDSON, INDIVIDUALLY, AKA THE
MONARCHS, SEAN DAVIDSON, INDIVIDUALLY,
AKA THE MONARCHS, BERRY GORDY, JR.,
SONY/ATV MUSIC PUBLISHING, LLC, KOBALT
MUSIC GROUP, LTD., DOWNTOWN MUSIC
PUBLISHING LLC, NOTORIOUS B.I.G., LLC, AKA

*
    Judge Claire R. Kelly of the United States Court of International Trade, sitting by designation.

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THE ESTATE OF GEORGE L. WALLACE, OSTEN
HARVEY, JR., AKA EASY MO BEE, BEE MOE EASY
MUSIC, UNIVERSAL MUSIC GROUP, EMI MUSIC
PUBLISHING, INC., JOBETE MUSIC CO., INC., JUSTIN
COMBS COMPANY, STONE DIAMOND MUSIC
CORPORATION, WARNER CHAPPELL MUSIC, INC.,
TREVOR TAHIEM SMITH, AKA BUSTA RHYMES,
MARSHALL BRUCE MATHERS, III, AKA EMINEM,
SONGS OF UNIVERSAL, INC.,
                                      Defendants - Appellees.
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FOR PLAINTIFF-APPELLANT:                                     NZENGHA WASEME, ESQ., New York, NY.

FOR DEFENDANTS-APPELLEES:                                    MARCIA B. PAUL (John M. Browning, on the
                                                             brief), Davis Wright Tremaine LLP, New York,
                                                             NY, for Defendant-Appellee Roc Nation LLC.

                                                             STACI J. RIORDAN, Nixon Peabody LLP, Los
                                                             Angeles, CA, for Defendants-Appellees
                                                             Sony/ATV Music Publishing, LLC, Notorious
                                                             B.I.G., LLC, Jobete Music Co., Inc., Universal
                                                             Music Group, and Songs of Universal, Inc.

                                                             EDWARD P. GROSZ, ESQ. (Brian D. Caplan,
                                                             Esq., on the brief), Reitler Kailas & Rosenblatt
                                                             LLC, New York, NY, for Defendants-
                                                             Appellees Kobalt Music Group, Ltd. and
                                                             Downtown Music Publishing LLC.

        Appeal from a judgment of the United States District Court for the Southern District

of New York (Nathan, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the District Court is AFFIRMED.

        Abiodun Oyewole appeals from the March 8, 2018 judgment of the United States

District Court for the Southern District of New York (Nathan, J.) dismissing Oyewole’s

copyright infringement lawsuit pursuant to Fed. R. Civ. P. 12(b)(5) as to some defendants

and pursuant to Fed. R. Civ. P. 12(b)(6) as to other defendants. We assume the parties’
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familiarity with the facts, record of prior proceedings, and arguments on appeal, which we

reference only as necessary to explain our decision to affirm.

       The following facts are drawn from the allegations in the complaint, which we

assume to be true. See Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011). Oyewole

is a founding member of The Last Poets, a spoken-word/rap group that created and

published “When the Revolution Comes” in 1968. With lyrics that paint a picture of violent

revolution and African-American empowerment, “When the Revolution Comes” ends on a

cynical note:

       When the revolution comes afros gone be trying to straighten their heads and
       straightened heads gone be tryin to wear afros

       When the revolution comes
       When the revolution comes
       When the revolution comes

       But until then you know and I know n*****s will party and bullshit and party
       and bullshit and party and bullshit and party and bullshit and party . . .

       Some might even die before the revolution comes.

B.I.G. Supp. App. 28. In 1993, Christopher Wallace, better known as “the Notorious

B.I.G.” or “Biggie Smalls” (“B.I.G.”), created a song called “Party and Bullshit” by sampling

“When the Revolution Comes” and remixing the “party and bullshit” phrase. J. App. 118.

After B.I.G. died, his estate licensed the use of the phrase “party and bullshit” to Rita Ora

for her hit single “How We Do (Party),” which was released in 2012. Id. Oyewole sued

B.I.G.’s estate, Rita Ora, and various songwriters and producers involved in the creation of

“Party and Bullshit” and “How We Do (Party)” for copyright infringement, alleging that he



                                               3
never authorized the defendants to use the phrase “party and bullshit” and never received

any royalties from their infringing works. Id. at 120.

       The District Court, assuming arguendo that Oyewole had an ownership interest in

“When the Revolution Comes,” that the phrase “party and bullshit” was a protectable

expression, and that the works at issue were substantially similar, dismissed the complaint

pursuant to Fed. R. Civ. P. 12(b)(6) on the ground that the fair use doctrine applied as an

affirmative defense. J. App. 156. The fair use doctrine requires a court to consider four

non-exclusive factors:

       (1) the purpose and character of the use, including whether such use is of a
           commercial nature or is for nonprofit educational purposes;
       (2) the nature of the copyrighted work;
       (3) the amount and substantiality of the portion used in relation to the
           copyrighted work as a whole; and
       (4) the effect of the use upon the potential market for or value of the
           copyrighted work.

17 U.S.C. § 107. The District Court concluded, in a thorough and well-reasoned opinion,

that, on balance, these factors support a finding that the secondary works constitute fair use.

See Oyewole v. Ora, 291 F. Supp. 3d 422, 433–36 (S.D.N.Y. 2018).

       On appeal, Oyewole principally argues that the District Court erred in determining

that the songs at issue constitute fair use of the “party and bullshit” lyric. Specifically,

Oyewole contends that the four factors weigh in his favor because: (1) the allegedly

infringing songs are commercial and, by virtue of the lack of aesthetic change to the original

lyric, insufficiently transformative; (2) the fact that “When the Revolution Comes” is

expressive outweighs the countervailing fact that it is published; (3) the “party and bullshit”

lyric is a substantial portion of “When the Revolution Comes” from a qualitative perspective;

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and (4) Oyewole’s status in the hip-hip community renders the allegedly infringing songs

likely to usurp the market for “When the Revolution Comes.”

       “We review de novo a grant of a motion to dismiss pursuant to Rule 12(b)(6), accepting

the complaint’s factual allegations as true and drawing all reasonable inferences in the

plaintiff’s favor.” Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 898 F.3d 232, 236

(2d Cir. 2018) (internal quotation marks omitted). Upon review, we conclude that the

District Court properly granted the defendants’ Rule 12(b)(6) motion to dismiss because the

allegedly infringing songs constitute fair use of the “party and bullshit” phrase. We therefore

adopt the District Court’s fair use analysis in all respects, and on that basis, we affirm the

District Court’s dismissal of the complaint pursuant to Rule 12(b)(6). Having done so, we

need not reach the service of process issues in this case. See ONY, Inc. v. Cornerstone

Therapeutics, Inc., 720 F.3d 490, 498 n.6 (2d Cir. 2013).

       We have considered Oyewole’s remaining arguments on fair use and conclude, also for

the reasons ably stated by the District Court, that they are without merit. Accordingly, the

judgment of the District Court is AFFIRMED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk of Court




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