         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

                                        AMENDED 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 9th day of February, two thousand twelve,
 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 APPELLANTS:   ROBERT PRITCHARD (Anthony J. Gallo, on
 2                     the brief), Gallo & Associates, PLLC,
 3                     Plainview, NY
 4
 5   FOR APPELLEES:     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 APPELLEES:    JONATHAN D. DAVIS, P.C., New York, NY
12   Usher Raymond,
13   Sony BMG Management,
14   Co., et al.
15
16   FOR APPELLEES:    CHRISTINE LEPERA, Mitchell Silberberg &
17   Jason Boyd, Hitco Knupp LLP, New York, NY.
18   Music Publishing
19   LLC & Poo BZ Publishing, Inc.
20
21   FOR APPELLEES:     DOROTHY M. WEBER, Shukat Arrow Hafer
22   Jeffrey Robinson, Weber & Herbsman, LLP, New York, NY.
23   MBK Entertainment,
24   Inc., EMI Music
25   Publishing, Inc.,
26   Maurice Ryan Toby
27   aka Ryan Toby,
28   EMI April Music, Inc.,
29   and Pladis Music, Inc.
30
31        Appeal from the United States District Court for the
32   Southern District of New York (McMahon, J.)
33
34       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

35   AND DECREED that the judgment of the United States District

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

37       Plaintiffs-Appellants Wadena Pyatt and Bang Hitz

38   Publishing appeal from a judgment of the United States

39   District Court for the Southern District of New York



                                  2
1    (McMahon, J.), dismissing their complaint pursuant to Rule

2    12(b)(6).   We assume the parties’ familiarity with the

3    underlying facts and procedural history.

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

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

6    well-stated reasons of the court below.     The originally

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

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

9    songs are lyrically and musically distinct and the district

10   court correctly concluded that the claim failed the ordinary

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

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

13       We also affirm because we agree with the district

14   court’s interpretation of the complaint as alleging

15   copyright infringement only with respect to the originally

16   copyrighted works.     Appellants contend the district court

17   misconstrued the complaint when it held that the

18   subsequently registered works (those registered after filing

19   of the complaint and after Defendants’ motions to dismiss

20   were filed) were incorporated in Appellants’ copyright

21   infringement claims.     The complaint’s broad references to

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

23   to bring post-complaint registrations within the scope of


                                     3
1    the complaint’s allegations.     This is so especially because

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

3    register their works before suing for copyright

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

5    1237, 1241 (2010) (citing 17 U.S.C. § 411(a)).

6        Appellants claim that the court, in interpreting the

7    complaint, should have considered certain documents that

8    Appellants attached to their opposition to Defendants’

9    motions to dismiss.     These documents (lyric sheets and

10   expert reports regarding subsequently registered works) were

11   not attached to or integrated into the complaint, or

12   incorporated therein.     The district court did not err by

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

14   622 F.3d 104, 111 (2d Cir. 2010).

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

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

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

18    determination that amendment would be futile.     Hutchison

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

20    2011).   Amendment under rule 15(a) was futile in this case

21    because only an allegation that Defendants infringed on

22    Appellants’ newly-registered copyrights could have

23    potentially allowed Appellants to state a claim for


                                      4
1    relief.   Appellants’ proposed amended complaint failed to

2    allege these new copyrights and Appellants did not move

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

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

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

6    supplementation.

7        For the foregoing reasons, the judgment of the

8    district court is hereby AFFIRMED.

 9
10                                 FOR THE COURT:
11                                 Catherine O’Hagan Wolfe, Clerk
12
13




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