Last week I bemoaned how the Seventh Circuit had thoroughly botched the already confusing state of affairs that is the elements of a prima facie copyright infringement claim. But as a bonus, the Peters v. West opinion also had troubling things to say about what is now required to successfully plead a copyright infringement claim under the new “plausibility” regime announced by the Supreme Court in Twombly and Iqbal.
As a refresher, here’s how the Peters court defined the element of infringement (the other element for a claim of copyright infringement being ownership of a valid and registered copyright):
Fundamentally, proving the basic tort of infringement simply requires the plaintiff to show that the defendant had an actual opportunity to copy the original (this is because independent creation is a defense to copyright infringement), and that the two works share enough unique features to give rise to a breach of the duty not to copy another’s work.
Note that the court is discussing what the plaintiff must ultimately prove, which even after Twombly and Iqbal is not necessarily what the plaintiff must allege. Swierkiewicz v. Sorema, which distinguished between those two, is still good law; Iqbal simply requires that the plaintiff allege enough to make a claim plausible, which may or may not require pleading specific facts. Nevertheless, many courts even pre-Twombly have been requiring plaintiffs to march through the elements in their complaints, and now post-Iqbal, each of those elements must be “plausible.”
So what does a plaintiff, according to the Seventh Circuit, now have to plead in order to plausibly allege infringement?
In this case, Vince P has adequately pleaded that West had an opportunity to copy his song, but that does not help him prove similarity. Vince P must show that West actually copied his song by pointing to similarities between the two works. We are not persuaded that the similarities alleged by Vince P rise to the level of copyright infringement.
A plaintiff must, according to the Peters court, prove in the complaint enough similarity between the two works to persuade the court that it will win on this element. I don’t think the word “prove” is just an oversight either. The court wants plaintiffs to not just plausibly allege that the works are substantially similar, but prove it, by attaching copies of both works and identifying each and every way in which they are similar. It seems fairly clear from Peters’s complaint that an illustrative list will not do. Peters identified several similarities, but specifically left open the possibility that there were more:
28. The lyrics of Kanye West’s song, including the refrain, are substantially similar to plaintiff’s lyrics.
29. Among the similarities in the songs, and an indication that Kanye West copied from plaintiff’s song, is the close similarity of the refrains or “hooks” of both songs. The hook is repeated four times during the infringing song. The hook portions of both songs constitute the most memorable portion of the song and make the songs appealing to the ear of the listener.
30. Among the similarities in the songs, and an indication that Kanye West copied from plaintiff’s song, is the reference in the refrains of both songs to the maxim “that which does not kill me makes me stronger.”
31. Among the similarities in the songs, and an indication that Kanye West copied from plaintiff’s song, is the reference in the refrains of both songs to “couldn’t wait no longer” and “can’t wait much longer.”
32. Among the similarities in the songs, and an indication that Kanye West copied from plaintiff’s song, is the reference in the lyrics of both songs to “Kate Moss,” a highly unusual and incongruous reference in a hip-hop song.
33. Among the similarities in the songs, and an indication that Kanye West copied from plaintiff’s song, is the reference in the refrains of both songs to the term “wronger,” a corrupted version of the word “wrong.”
34. Among the similarities in the songs, and an indication that Kanye West copied from plaintiff’s song, is that both songs have the identical title “Stronger.”
Before Peters, the case law was relatively clear that the only way a court could grant summary judgement on the ultimate liability threshold of “improper copying,” as I’ve been referring to it, is if it found that no reasonable jury could conclude that the two works, considered as a whole, were substantially similar. Perhaps that is what the Peters court did, although it did not say so, and seemed to be focusing not on the works as a whole, but component pieces of them. And even if it did, although the two songs are about different subjects, there are some similarities between them, and it is unclear from the text appended to the opinion below whether the songs bear any rhythmic or musical similarities. Announcing as a matter of law that the six identified similarities do not lead to an overall similarity in “total concept and feel” therefore seems precipitous. Summary judgement might eventually be appropriate, but not a motion to dismiss.
But all that assumes that the Peters court was following the standard test for infringement, which it apparently wasn’t. Instead, it seems clear that the court essentially ignored the prefatory language, “Among the similarities in the songs,” took the list of similarities in the complaint as a complete list, and pronounced them insufficiently persuasive to establish to the trier of fact’s satisfaction that “the two works share enough unique features to give rise to a breach of the duty not to copy another’s work.” One problem with this analysis is that there is a form complaint directly on point, Form 19, which Rule 84 declares “suffice[s] under these rules and illustrate[s] the simplicity and brevity that these rules contemplate.” Well, not anymore, apparently. Specifically, Form 19 clearly indicates that a copyright owner does not need to specifically identify all the ways in which the two works are similar in order to sufficiently allege copyright infringement:
3. The book is an original work that may be copyrighted under United States law. A copy of the book is attached as Exhibit A. . . .
6. After the copyright was issued, the defendant infringed the copyright by publishing and selling a book entitled <______________>, which was copied largely from the plaintiff’s book. A copy of the defendant’s book is attached as Exhibit B.
That’s it. Here’s my book, here’s the defendant’s book, the defendant copied large portions of my book. Not only did the plaintiff in Peters do this, he actually went a little further and provided illustrative examples. But he wasn’t required to under the Rules, and the Seventh Circuit should not have taken the list to be exhaustive.
Not only is the Seventh Circuit’s decision wrong under the Rules, but I don’t believe it’s good policy either. There are a couple of reasons why that is true even if Peters ultimately deserved to lose this case. First, a copyright plaintiff may not be able to spell out in words very well what the alleged similarities are. Sure, if the works are appended to the complaint, then the judge can compare the identified similarities him- or herself, but as noted above, this sort of lay audience comparison of the two works is never supposed to drill down into specific identified similarities; the test for improper copying is supposed to be a more high-level factual determination than that. So identification of specific similarities is at best a distraction.
Second, many works will be much longer than the two songs at issue in Peters. Do plaintiffs claiming infringement of an entire novel have to reproduce in the complaint each and every instance of similarity? If they provide simply an illustrative list of 5 egregious examples, will they be risking a determination that those five examples are not enough over the course of an entire novel to amount to improper copying? The Peters decision seems to make anything less than an exhaustive list perilous — which, of course, is completely contrary to the spirit of Rule 8(a)(2), which requires only a “short and plain statement of the claim.”
Cross-posted at Madisonian.net.