OYEWOLE v. ORA LLC LLC ATV LLC LLC LLC EMI III (2019)

SUMMARY ORDER

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’ 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 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; 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.