Case 2:14-cv-06246-PA-JEM Document 56 Filed 01/07/15 Page 1 of 5 Page ID #:480

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-6246 PA (JEMx)

Title

Arika Hayes v. Alicia Keys, et al.

Present: The
Honorable

Date

January 7, 2015

PERCY ANDERSON, UNITED STATES DISTRICT JUDGE

Julieta Lozano

Not Reported

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None

None

Proceedings:

IN CHAMBERS COURT ORDER

Before the Court is a Motion to Dismiss Plaintiffs First Amended Complaint (FAC) filed by
defendants Viacom Inc., BETWEEN, MTV, and VH1 (collectively, Viacom) (Docket No. 52).
Viacom challenges the sufficiency of the FAC filed by plaintiffs Arika Hayes, Vaxsh Pu, Swiss Barbie
Bone Records, and Vash Newton (collectively Plaintiffs).1/ Plaintiffs filed an Opposition to the
Motion to Dismiss.2/ Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15,
the Court finds this matter appropriate for decision without oral argument. The hearing calendared for
January 5, 2015, is vacated, and the matter taken off calendar. For the reasons set forth below,
Viacoms motion is granted.
I.

Background

Plaintiffs, appearing pro se, filed suit their original Complaint on August 8, 2012. Viacom filed
a Motion to Dismiss on October 9, 2014. This Court dismissed Plaintiffs original Complaint without
prejudice on November 10, 2014. Plaintiffs then filed the FAC against defendants Rick Ross, Iland

1/

The Court notes Ms. Hayes may not represent the other plaintiffs in this action. Individual
litigants may represent themselves pro se, but corporations and associations must be represented by
counsel. See Church of the New Testament v. United States, 783 F.2d 771, 773 (9th Cir. 1986)
(unincorporated associations); In re Highley, 459 F.2d 554, 555 (9th Cir. 1972) (corporations). In
addition, non-attorney litigants may not represent other individual litigants. See McShane v. United
States, 366 F.2d 286, 288 (9th Cir. 1996) (other litigants). A partner may not represent his or her own
interest in a partnership pro se, and a sole shareholder may not represent a corporation. See In re Am.
West Airlines, 40 F.3d 1058, 1059 (9th Cir. 1994) (per curiam) (partner); United States v. High Country
Broad. Co., Inc., 3 F.3d 1244, 1245 (9th Cir. 1993) (per curiam) (shareholder).
2/

Plaintiffs Opposition, filed on December 23, 2014, is untimely. See Local Rule 7-9 (requiring
papers filed in opposition to a motion to be filed at least 21 days before the hearing date). Nevertheless,
the Court considers the Opposition and finds that it fails to address any of the arguments made by
Viacom in its Motion to Dismiss.
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Case 2:14-cv-06246-PA-JEM Document 56 Filed 01/07/15 Page 2 of 5 Page ID #:481

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-6246 PA (JEMx)

Date

Title

Arika Hayes v. Alicia Keys, et al.

January 7, 2015

Defendant Jam, Viacom, MTV, VH1, and BETWEEN on November 18, 2014. The FAC, like the
original Complaint, is largely indecipherable. To the extent the Court can understand Plaintiffs claim,
it appears to be premised on Ms. Hayes belief that the defendants infringed the song she wrote, Go
Hard in the Paint (the Song). Plaintiffs also allege Viacom is liable for contributory infringement
for 50,000000.
Viacom now moves to dismiss Plaintiffs FAC pursuant to Fed. R. Civ. P. 12(b)(6).3/
II.

Legal Standard on Motion to Dismiss

Generally, plaintiffs in federal court are required to give only a short and plain statement of the
claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a). While the Federal Rules allow
a court to dismiss a cause of action for failure to state a claim upon which relief can be granted, they
also require all pleadings to be construed so as to do justice. Fed. R. Civ. P. 12(b)(6), 8(e). The
purpose of Rule 8(a)(2) is to give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964, 167
L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80
(1957)). The Ninth Circuit is particularly hostile to motions to dismiss under Rule 12(b)(6). See, e.g.,
Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 24849 (9th Cir. 1997) (The Rule 8 standard contains a
powerful presumption against rejecting pleadings for failure to state a claim.) (internal quotation
omitted).
However, in Twombly, the Supreme Court rejected the notion that a wholly conclusory
statement of a claim would survive a motion to dismiss whenever the pleadings left open the possibility
that a plaintiff might later establish some set of undisclosed facts to support recovery. Twombly, 550
U.S. at 561, 127 S. Ct. at 1968 (internal quotation omitted). Instead, the Court adopted a plausibility
standard, in which the complaint must raise a reasonable expectation that discovery will reveal
evidence of [the alleged infraction]. Id. at 556, 127 S. Ct. at 1965. For a complaint to meet this
standard, the [f]actual allegations must be enough to raise a right to relief above the speculative level.
Id. at 555, 127 S. Ct. at 1965 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp.
23536 (3d ed. 2004) ([T]he pleading must contain something more . . . than . . . a statement of facts
that merely creates a suspicion [of] a legally cognizable right of action) (alteration in original)); Daniel
v. County of Santa Barbara, 288 F.3d 375, 380 (9th Cir. 2002) (All allegations of material fact are
taken as true and construed in the light most favorable to the nonmoving party.) (quoting Burgert v.
Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000)). [A] plaintiffs obligation to
provide the grounds of his entitlement to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do. Twombly, 550 U.S. at 555, 127 S.
Ct. at 196465 (internal quotations omitted). In construing the Twombly standard, the Supreme Court

3/

In examining the sufficiency of the pleadings, the Court accepts as true all material allegations of
the complaint and construes the complaint in favor of the complaining party.
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Case 2:14-cv-06246-PA-JEM Document 56 Filed 01/07/15 Page 3 of 5 Page ID #:482

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-6246 PA (JEMx)

Date

Title

Arika Hayes v. Alicia Keys, et al.

January 7, 2015

has advised that a court considering a motion to dismiss can choose to begin by identifying pleadings
that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal
conclusions can provide the framework of a complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129
S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009).
III.

Analysis
1.

Allegations Specific to Viacom

Viacom first argues that Plaintiffs fail to point to any conduct by Viacom that could be construed
as infringing the Song.
In order to state a claim for copyright infringement, a plaintiff must allege (1) ownership of a
valid copyright, and (2) actionable copying by the defendant of constituent elements of the work that are
original. Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). The second prong
requires Plaintiffs to allege that the infringer had access to plaintiffs copyrighted work and that the
works at issue are substantially similar in their protected elements. Cavalier v. Random House, Inc.,
297 F.3d 815, 822 (9th Cir. 2002). Here, Plaintiffs fail to allege any action on the part of Viacom
vis-a-vis the Song. The absence of any facts whatsoever means Plaintiffs fail entirely to demonstrate the
plausibility of their claim. See Twombly, 550 U.S. at 570.
2.

Lack of Similarity

Viacom contends Plaintiffs have failed to show that the Song is substantially similar to the Rick
Ross song Hard in the Paint.
This Court previously noted that Plaintiffs must identify which musical elements or lyrics are
substantially similar between the songs in order to state a claim for infringement. Plaintiffs, however,
fail to clarify which aspects, lyrics, elements, or portions of the two works they claim are substantially
similar. Given that the Court has already determined that Plaintiffs fail to adequately allege their claim,
the Court will not compare the two works in detail or make any finding whether Plaintiffs have alleged,
as they must to survive dismissal, that the two works are substantially similar.
3.

Access

Viacom also argues Plaintiffs fail to plead that Viacom had access to the Song.
Access is an essential element of a claim for copyright infringement, where, as here, direct
copying is not at issue. See, e.g., Funky Films v. Time Warner Entmt Co., L.P., 462 F.3d 1072, 1076
(9th Cir. 2006); Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000). Access is
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Case 2:14-cv-06246-PA-JEM Document 56 Filed 01/07/15 Page 4 of 5 Page ID #:483

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-6246 PA (JEMx)

Date

Title

Arika Hayes v. Alicia Keys, et al.

January 7, 2015

defined as a reasonable opportunity or reasonable possibility of viewing the plaintiffs work.

Three Boys Music Corp., 212 F.3d at 482 (internal citation omitted). A plaintiff may prove reasonable
access in one of two ways: (1) a particular chain of events . . . between the plaintiffs work and the
defendants access to that work (such as through dealings with a publisher or record company), or (2)
the plaintiffs work has been widely disseminated. Id. Plaintiffs must allege facts establishing more
than a bare possibility that Viacom had access to the work. Jason v. Fonda, 698 F.2d 966, 967 (9th
Cir. 1982). Plaintiffs sole allegation with regard to access is that the work was uploaded to YouTube in
2009. However, this does not imply it was disseminated widely, and the FAC provides no facts to
support such an inference. See OKeefe v. Ogilvy & Mather Worldwide, Inc., 590 F. Supp. 2d 500, 515
(S.D.N.Y. 2008) ([T]he mere fact that [plaintiffs] work was posted on the internet prior to the creation
of defendants work is insufficient by itself to demonstrate wide dissemination.). The FAC also does
not allege any chain of events connecting the video to Viacom.
4.

Registration

Viacom asserts the FAC should be dismissed because Plaintiffs do not allege that the Song is
validly registered.
An action for copyright infringement may not commence until after registration of the copyright
with the Copyright Office. 17 U.S.C. 411(a); see also Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154,
130 S. Ct. 1237, 1247 (2010) (registration is a prerequisite to suit).
Plaintiffs attach documents to the FAC to prove registration, but the documents do not support
Plaintiffs claim that the Song was registered. Plaintiffs include registrations for works titled True
Story about Life from Swiss Barbie and Positive Moves by Arika Hayes and Taj Tilghman.
However, the song at issue in the current action is titled Go Hard in the Paint. Plaintiffs also attach
email correspondence with the U.S. Copyright Office, but the email exchange does not concern the Song
or support Plaintiffs claim that the Song was registered. Finally, Plaintiffs include a 2013 Application
which purports to register 81 songs, published on three different albums, over a ten year period. Even if
the Application were complete, it would still be invalid as it violates copyright regulations that forbid
the registration of multiple works together where they are not otherwise recognizable as self-contained
works that are included in a single unit of publication. See 37 C.F.R. 202.3(b)(4)(i)(A); Olander
Enters., Inc. v. Spencer Gifts, LLC, 812 F.Supp.2d 1070, 107677 (C.D. Cal. 2011) (citation omitted)
(awarding summary judgment where plaintiff improperly attempted to register works that were not first
published as a single unit of publication).
5.

Contributory Infringement

Finally, Viacom argues Plaintiffs fail to allege that Viacom knew of the alleged direct
infringement or either induced, caused, or materially contributed to the infringing conduct. Luvdarts,
LLC v. AT&T Mobility, LLC, 710 F.3d 1068, 1072 (9th Cir. 2013).
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Case 2:14-cv-06246-PA-JEM Document 56 Filed 01/07/15 Page 5 of 5 Page ID #:484

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-6246 PA (JEMx)

Date

Title

Arika Hayes v. Alicia Keys, et al.

January 7, 2015

To establish contributory liability, Plaintiffs must first establish direct infringement by third
parties, because secondary liability cannot exist in the absence of direct infringement by a third party.
Perfect 10, Inc. v. Amazon.com, 508 F.3d 1146, 1169 (9th Cir. 2007). Plaintiffs fail to state a claim for
direct infringement by any party and accordingly fail to state a claim for contributory infringement
against Viacom.
Conclusion
This Court previously dismissed the original Complaints identical claim for the same reasons as
those discussed above. Rather than responding to the Courts Order dismissing the original Complaint,
which provided Plaintiffs with guidance on how to potentially state a viable claim, the FAC is as
unintelligible as the original Complaint. Ordinarily, because Plaintiffs are appearing pro se, the Court
would dismiss the FAC with leave to amend. Here, however, the Court concludes that leave to amend
would be futile. See Flowers v. First Hawaiian Bank, 295 F.3d 966 (9th Cir. 2002) (A pro se litigant
must be given leave to amend his or her complaint unless it is obviously clear that the deficiencies in the
complaint could not be cured by amendment . . . . A district court . . . does not abuse its discretion in
denying leave to amend where amendment would be futile.). Accordingly, this Court grants Viacoms
Motion to Dismiss. The pleading defects in the FAC apply to all defendants. Therefore, the Court
dismisses the FAC as against all defendants. The action is dismissed without leave to amend.
IT IS SO ORDERED.

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