United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY United States Magistrate Judge.
Introduction and Background
matter is before the Court upon a Motion to Dismiss and
Incorporated Memorandum of Law filed pursuant to Fed.R.Civ.P.
12(b)(6) by Defendants Sony/ATV Music Publishing LLC, EMI
April Music Inc., Gone Gator Music, Universal-Polygram
International Tunes, Inc., Sony/ATV Songs LLC, and UMG
Recordings, Inc. Docket No. 25. In support of their Motion,
Defendants have contemporaneously filed the Declaration of
Elizabeth Gonser with attached Exhibit. Docket No. 26.
has filed a Response in Opposition to Defendants' Motion.
Docket No. 28.
leave of Court (Docket No. 31), Defendants have filed a Reply
(Docket No. 29-1).
with leave of Court (Docket Nos. 40, 43), Plaintiff has filed
a Sur-Reply (Docket No. 44).
pro se, filed this copyright infringement action alleging
that “Sam Smith, Capitol Recording artist, used and
replicated phraseology and significant phrase ‘stay
with me' eight (8) times in the body of his mega hit song
‘Stay with Me' thereby copying and infringing upon
the original musical production of Plaintiff Mark Halper
whose original song ‘Don't Throw Our Love Away'
written in April 1984 and musically recorded as a demo in a
Nashville studio in February 1986 and a second demo musically
recorded in 2013 that began in line 1 with the phraseology
and significant phrase ‘stay with me' and continued
in line 2 with the phraseology ‘lay with
me.'” Docket No. 1, p. 2. Plaintiff argues that
Defendants gained access to his work through the production
and “wide” dissemination of two (2) demos of
“Don't Throw Our Love Away” to “some of
the most successful music producers and recording artists of
that time.” Id. at 6. Specifically, Plaintiff
The first demo was produced in 1986 and the second demo was
produced in 2013 with two different arrangements and sung by
two different female singers. In between, there was also a
demo sung by a male singer. The cassette demo of
“Don't Throw Our Love Away” was first
produced and widely disseminated to some of the most
successful music producers of that period (1986) to include
Garth Fundis (3/7/86), Don Lanier (3/7/86), Brent Maher
(3/7/86), Paul Worley (3/10/86), Rich Alves and Tom Collins
(4/8/86), and Brian Rawlings (4/8/86) and also widely
disseminated to some of the most successful recording artists
and entertainers of that period (1986) to include Lee
Greenwood (3/7/86), Don Williams (3/7/86), Reba McEntire
(3/7/86), Crystal Gayle (4/9/86), Sylvia (4/9/86), Gary
Morris (4/9/86), Barbara Mandrell (4/9/86), Ronnie Milsap
(4/10/86), and Dolly Parton (1/8/90). The demo of
“Don't Throw Our Love Away” was also sent to
Marvin Hamlisch before he died. The third demo was produced
and widely disseminated in 2013 to include one of the most
successful music producers of that period (2013), Emilio
Estefan via referral from a mutual friend Gladys Passes whose
name was Julio, and to include one of the most successful
recording artists, Gloria Estefan via referral from that same
mutual friend of Gladys Passes whose name was Julio.
contends that the “phraseology ‘stay with me'
has now become readily and instantly recognizable and forever
engrained [sic] in the hearts, souls, and minds of
music lovers around the world.” Id. Plaintiff
asserts that the phraseology ‘stay with me' and
‘lay with me' first written by him and appearing in
his original 1984 song “Don't Throw Our Love
Away” and subsequently copyrighted with Certificate of
Registration, Registration Number Pau003785645 contains a
protectable expression. Id. at 8. Plaintiff
In this case, we are not talking about substantial
similarity. We are talking about the exact and identical
phraseology and significant phrase ‘stay with me'
being used and replicated eight (8) times throughout the song
“Stay With Me” and then the exact and identical
phraseology ‘lay with me' being used as a
counterpart in “Stay With Me”.
All told, 26% of the song “Stay With Me”
represents use of and replication of the phraseology
significant phrase of Plaintiff's original song
“Don't Throw Our Love Away”. Without the
court and your Honor granting Plaintiff copyright
infringement protection on the phraseology and significant
phrase ‘stay with me' (at the very least) and
realistically to include the counterpart phraseology
‘lay with me, ' the songwriters Samuel Smith, James
Napier, William Phillips and now to include Tom Petty and
Jeff Lynne will be in a strong legal position to exert
control over and ownership of this phraseology significant
phrase. Since “Don't Throw Our Love Away” was
never published, without this copyright infringement
protection, it is unlikely that any singer or publisher would
proceed to record “Don't Throw Our Love
Away”, thus denying Plaintiff rightfully deserved
marketing, retail sales, and promotional value. All
recognition and revenue would continue to go directly to
Samuel Smith, James Napier, William Phillips, Tom Petty, and
Jeff Lynne through Sony/ATV Music Publishing LLC to include
all the Defendants named in this lawsuit.
Id. at 7.
There are two (2) key elements most relevant to this case.
The first is to understand what has occurred prior to the
filing of the copyright infringement claim involving the
phraseology contained in the first two lines of
“Don't Throw Our Love Away” as previously
originally written by Plaintiff, i.e. ‘stay with
me' and ‘lay with me'. The second is to
understand in fact that a willful infringement has been
perpetuated by Defendant since the initial letter was sent by
Plaintiff Mark Halper to Jeff Smaar, VP Global Copyright
Administration, SONY ATV SONGS LLC the designated office for
Sony/ATV Music Publishing LLC, advising them of a copyright
infringement claim, and acknowledged by Jeff Smaar as being
received on February 25, 2015. There was then the formal
filing of the copyright infringement claim in Federal court.
From the very beginning, there has been a refusal and failure
by Sony/ATV Music Publishing LLC to communicate with
Plaintiff in any meaningful manner. It represents and clearly
shows the intent of the Defendants to deny and deprive the
Plaintiff of any financial gain and recognition for that
which he created while every entity and member associated
with Defendants has received significant career and financial
benefits and gain.
Id. at 8-9.
sues Defendants seeking:
a. Acknowledge contribution with co-songwriting credit for
“Stay With Me” to include Plaintiff Mark Halper
to be added to Samuel Smith, James Napier, and William
Phillips for lyrics while acknowledging that following the
out of court settlement as referenced above, Jeff Lynne and
Tom Petty have been added to the songwriting credit of
“Stay With Me”.
b. 28% royalty from the single “Stay With Me” and
the CD album “In the Lonely Hour” and the
subsequent CD album “In the Lonely Hour”
(Drowning Shadows Edition), produced and distributed by
Capitol Records and publishing revenue containing the song
“Stay With Me” which propelled the CD album to
sales in excess of 2 million copies in both the US, the UK as
well as many countries internationally with sales and revenue
having been received through new technology to include, but
not limited to [sic] downloading and streaming
through Apple, YouTube, Amazon, iTunes, and Spotify as well
as the previously considered four principle sources of
revenue for compositions which include mechanical royalties,
performance royalties, sale of sheet music & folios, and
profits of record label(2) [sic].
c. 28% financial compensation from the financial arrangement
and compensation paid for use of the excerpt of the song
“Stay With Me” with Sam Smith singing the
phraseology and significant phrase “stay with me”
for a commercial promo for the Universal mini-series
production of AD - The Bible Continues which began airing
3/30/15 during ...