Cates v. Schlemovitz

MEMORANDUM DECISION AND ORDER I. INTRODUCTION Presently before the Court is Defendants Jared Schlemovitz (“Schlemovitz”), Procter & Gamble Corporation (“P&G”), Grey Global Group LLC (“Grey”), and WPP Group USA, Inc.’s (“WPP” and collectively, “Defendants”) motion to dismiss Plaintiff Cameron Cates’s (“Plaintiff”) Amended Complaint, Dkt. No. 43¹ (the “Amended Complaint”), with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. Nos. 46-49 (the “Motion”). For the reasons set forth below, the Motion is granted in its entirety, and the Amended Complaint is dismissed with prejudice. II. BACKGROUND A. FACTUAL BACKGROUND The following facts are drawn from the Amended Complaint and are assumed to be true for purposes of ruling on the Motion. See Div. 1181 Amalg. Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep’t of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam). 1. Plaintiff’s Development and Distribution of the Composition Plaintiff Cameron Cates is a multi-disciplinary artist who has created musical compositions, orchestrations, and other works in his career as a musician, composer, and maestro. Dkt. No. 43 at 10. In 1982, Plaintiff composed a song, “She Loves Her Job (and I Love Her Too).” Id. at 11; see Dkt. Nos. 43-1 (handwritten sheet music), 43-2 (audio recording submitted to Court). Plaintiff registered the finished sound recording of the song (the “Composition”), along with eight other finished sound recordings, with the United States Library of Congress’s Copyright Office on February 24, 1983, receiving registration code PAu 484-226. See Dkt. No. 43 at

11-13. The Composition contains a “five note melodic hook notated in the plaintiff’s original manuscript measures five and six in sequence,” which five-note sequence, divorced from the accompanying words, comprises the allegedly infringed work (the “Subject Work”). Dkt. No. 43 at 14. In the audio recording, the Subject Work is audible at 0:08-0:09. Dkt. No. 43-2. Plaintiff alleges that the Composition was broadcasted, performed publicly, and available online over several decades prior to the alleged infringement in or about 2017. Dkt. No. 43 at