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Warrick v. Roberts

United States District Court, N.D. Illinois, Eastern Division

August 5, 2014


For Clara Shepherd Warrick, Jimmy Lee Weary, Plaintiffs: James Douglas Montgomery , Jr., LEAD ATTORNEY, James D. Montgomery & Associates, Ltd., Chicago, IL.

For Andre Young, Defendant: Andrew H. Bart, LEAD ATTORNEY, Tobias C. Berkman, PRO HAC VICE, Jenner & Block, LLP, New York, NY; David P. Sanders, Jenner & Block LLP, Chicago, IL.

For Shawn Carter, UMG Recordings, Inc., Songs of Universal, Inc., Defendants: Andrew H. Bart, Tobias C. Berkman, PRO HAC VICE, Jenner & Block, LLP, New York, NY; David P. Sanders, Jenner & Block LLP, Chicago, IL.

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Milton I. Shadur, Senior United States District Judge.

Clara Shepherd Warrick (" Shepherd" ) and Jimmy Lee Weary (" Weary" ) have brought this action against William Roberts II (" Rick Ross" ), Andre Young (" Dr. Dre" ), Shawn Carter (" Jay Z" ),[1] Jacob Dutton and UMG Recordings, Inc. and Song of Universal, Inc. (together " Universal," treated for convenience as a singular noun), as well as several other individuals and business entities, charging both copyright infringement and related state law violations. Those claims concern the use of Shepherd's and Weary's song I'm So Grateful (Keep in Touch) (" Grateful" ) as part of a sound record titled 3 Kings that features rap music performed by Jay Z, Dr. Dre, and Rick Ross.

Dr. Dre, Jay Z and Universal have moved to dismiss the Complaint here pursuant to Fed.R.Civ.P. (" Rule" ) 12(b)(6). Under the facts alleged in the Complaint (considered together with documents referred to in the Complaint), Universal was clearly a co-owner of the copyright in Grateful and therefore cannot be sued for infringement. That inescapable fact disposes of the Complaint's infringement claim -- the sole federal claim presented by Shepherd and Weary -- and this Court declines to exercise supplemental jurisdiction over their state law claims. Accordingly

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Universal's motion is granted, and both the Complaint and this action are dismissed without prejudice to the reassertion of the state law claims in an appropriate state tribunal.

Standard of Review

Under Rule 12(b)(6) a party may move for dismissal of a complaint for its " failure to state a claim upon which relief can be granted." Although familiar Rule 12(b)(6) principles require a district court to accept all of a plaintiff's well-pleaded factual allegations as true, and to draw all reasonable inferences from those allegations in plaintiff's favor (Christensen v. County of Boone, 483 F.3d 454, 457 (7th Cir. 2007) (per curiam)), it is equally true that " legal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to this presumption of truth" (McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011)).

In recent years the Supreme Court has made an important change in the evaluation of Rule 12(b)(6) motions in what this Court regularly refers to as " the Twombly-Iqbal canon" (a usage drawn from Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 562-63, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), 129 S.Ct. 1937, 173 L.Ed.2d 868) -- and Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) has also provided further Supreme Court enlightenment on the issue. That canon has introduced a notion of " plausibility" into the analysis, and in that respect our Court of Appeals has " interpreted Twombly and Iqbal to require the plaintiff to provid[e] some specific facts to support the legal claims asserted in the complaint" (McCauley, 671 F.3d at 616 (internal quotation marks omitted but brackets in original)). As McCauley, id. (internal quotation marks again omitted) went on to reconfirm, " the plaintiff must give enough details about the subject-matter of the case to present a story that holds together."


Shepherd and Weary are successful gospel music artists who have been involved in gospel music for decades (S.-W. Mem. 1). In 1976 they created Grateful, with Shepherd authoring the lyrics and Weary composing the music (¶ 19), and the song was first distributed by their gospel singing group Crowns of Glory (¶ 22). Shepherd and Weary insist that Grateful was meant to be performed " only as spiritually uplifting gospel music" (¶ 2), and it apparently was so employed until July 2012.

Grateful received radically different treatment with the release of an album titled God Forgives -- I Don't on July 31, 2012.[3] That album included the song 3 Kings, produced by Jacob Dutton and featuring performances by Rick Ross, Dr. Dre and Jay Z (¶ 25). 3 Kings " sampled" Grateful by including substantial elements of that work as background music over which defendants performed their rap lyrics (¶ 26) -- lyrics that included language that Shepherd and Weary deem " unsavory" and object to strongly, such as " [i]f the b**ch bad I got her in red bottoms," " [c]ome and suck a d**ck for a millionaire" and " spray these nig* as baby just like daddy taught ya" (¶ 2). 3 Kings was

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released with an accompanying video that depicts drug use, nudity, gun violence, criminal conduct and other items that " are certainly inconsistent with Plaintiffs' wishes for how Plaintiffs' Song would be portrayed" (¶ 34).

Upon learning of the use of Grateful in 3 Kings, Shepherd and Weary notified Rick Ross, Dr. Dre, Jacob Dutton and Jay Z that they believed 3 Kings infringed Grateful (¶ ¶ 45-47). Those defendants, along with Universal, sought to justify their use of Grateful by arguing that Universal holds the sole copyright in that work and had licensed their activities (¶ 48). To that end Universal pointed to two relevant agreements, one executed by Shepherd and the other assertedly executed by Weary. First of those documents is an Exclusive Songwriter's and Composer's Agreement (" 1974 Agreement" ) executed by Shepherd in 1974. 1974 Agreement ¶ 3 transfers broad rights in any musical composition created during the life of the 1974 Agreement to Universal's predecessor-in-interest, ABC/Dunhill Music, Inc. (" ABC/Dunhill" ):

Writer hereby irrevocably and absolutely assigns, transfers, sets over and grants to Publisher, its successors and assigns, each and every and all rights and interests of every kind, nature and description in and to the results of and proceeds of Writer's services hereunder, including, but not limited to, the titles, words and music of any and all original musical compositions . . . together with all worldwide copyrights and renewals and extensions thereof, which musical works have been written [4] composed, created or conceived, in whole or in part, by Writer alone or in collaboration with another or others . . . . Writer acknowledges that included within the rights and interests hereinabove referred to, but without limiting the generality of the foregoing, is Writer's irrevocable grant to Publisher, its successors, licensees, sub-licensees and assigns, of the sole and exclusive right . . . :
(a) To perform said musical compositions publicly for profit by means of public and private performance, radio broadcasting, television, or any and all other means, whether now known or which may hereafter come into existence.
(b) To substitute a new title or titles for said compositions and to make any arrangement, adaptation, translation, dramatization and transposition of said compositions, in whole or in part . . . .
(c) To secure copyright registration and protection of compositions in Publisher's name . . . and to have and to hold said copyrights, renewals, extensions and all rights of whatsoever nature thereunder existing, for and during the full term of all said copyrights . . . .
(d) To make or cause to be made, master records . . . or other reproductions of said compositions, in whole or in part, in such form or manner and as frequently as Publisher's sole and uncontrolled discretion shall determine, including the right to synchronize the same with sound motion pictures and the right to manufacture, advertise, license or sell such reproductions for any and all purposes, including . . . broadcasting, television, sound motion pictures, wired radio and any and all other means or devices

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whether now known or which may hereafter come into existence.
* * *
(f) Any and all other rights of every and any nature, now or hereafter existing under and by virtue of any common law rights, and any copyrights and renewals and extensions thereof, in any and all such compositions." [5]

In return for that broad grant of rights, Shepherd was to receive compensation and royalties as set ...

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