Vincent Peters v. Kanye West

                               In the

United States Court of Appeals
                For the Seventh Circuit

No. 11-1708

V INCENT P ETERS,
professionally known as V INCE P,
                                                   Plaintiff-Appellant,
                                   v.

K ANYE W EST, et al.,
                                                Defendants-Appellees.


              Appeal from the United States District Court
         for the Northern District of Illinois, Eastern Division.
              No. 10 C 3951—Virginia M. Kendall, Judge.



     A RGUED M ARCH 26, 2012—D ECIDED A UGUST 20, 2012




  Before E ASTERBROOK, Chief Judge, and B AUER and W OOD ,
Circuit Judges.
  W OOD , Circuit Judge. In 2006, Vincent Peters, whose
stage name is Vince P, wrote, recorded, and distributed
a song entitled Stronger. The song’s title comes from a
key line in its “hook” (refrain or chorus). The line in turn
draws from an aphorism coined by Friedrich Nietzsche:
“what does not kill me, makes me stronger.”
2                                             No. 11-1708

  Vince P believes that he had an opportunity to “make
it” in the hip-hop recording industry—he needed only to
find an executive producer. His search led him to John
Monopoly, a business manager and close friend of
Kanye West, one of hip-hop’s superstars. Vince P sent
Monopoly a disc containing a recording of Stronger, and
even secured a meeting with Monopoly, during which
Vince P played his recording of Stronger for Monopoly.
Monopoly was apparently impressed and agreed to be
Vince P’s producer, so long as Vince P was funded by a
record label. That funding never materialized, unfortu-
nately, and so the proposed collaboration foundered.
  Shortly thereafter, Kanye West released a song entitled
Stronger. West’s song also features a hook that repeats
the Nietzschean maxim. Worse, according to Vince P,
West’s song contains several other suspicious similarities
to his song. Vince P tried to contact West, but he was
turned away by West’s representatives. In response,
Vince P registered his copyright in his version of
Stronger with the U.S. Copyright Office and filed suit
against West. The district court dismissed the com-
plaint for failure to state a claim upon which relief can
be granted. We agree with the district court that the
two songs are not similar enough to support a
finding that copyright infringement has occurred, and
we thus affirm.


                            I
 Vince P describes himself in the complaint as an
up-and-coming hip-hop artist and songwriter. In 2006,
No. 11-1708                                                3

as he was beginning his career in music, he wrote and
recorded a song entitled Stronger, which is about the
competitive—indeed cutthroat—nature of the hip-hop
and rap world. For clarity, we refer to this as Stronger
(VP). Vince P’s music apparently captured the attention
of someone at Interscope Records; that person told
him that the company would devote “substantial re-
sources” to producing Vince P’s inaugural album, but
only if he could procure the services of a good executive
producer.
  His search led him to John Monopoly, a well-known
producer and—importantly for our purposes—a close
friend and business manager to Kanye West. Vince P
sent several of his songs to Monopoly, who liked what
he heard enough to schedule a meeting. On November 12,
2006, Vince P and Monopoly met at the latter’s home
in Chicago, where Vince P played several of his re-
cordings, including Stronger (VP). At the conclusion of
their meeting, Vince P left a CD of some of his songs—
including Stronger (VP)—with Monopoly. Eventually,
Monopoly agreed to be Vince P’s executive producer,
so long as Interscope Records was willing to fund the
recording project. That funding, however, fell through,
and so the project stalled.
  In July 2007, less than a year after the November 2006
meeting between Vince P and Monopoly, West released
his own single titled Stronger. (We call this Stronger (KW).)
It was a huge hit. The song earned the #1 spot in
several Billboard charts, the single sold over three
million copies, and it eventually earned West a Grammy
4                                               No. 11-1708

for Best Rap Solo Performance. Vince P, however, was
not among its fans. He noticed what he thought were
several infringing similarities between his 2006 song
and West’s more recent release. Vince P also saw that
Monopoly was listed as a manager on the notes to
West’s album G RADUATION, on which Stronger (KW)
appears. Vince P attempted to contact West, but he
was rebuffed by West’s representatives, and so
he turned to the federal courts. After formally
registering his copyright in Stronger (VP) with the U.S.
Copyright Office, see 17 U.S.C. § 411(a), Reed-Elsevier
v. Muchnick, 130 S. Ct. 1237, 1241 (2010) (copyright reg-
istration, while not jurisdictional, is a substantive re-
quirement of infringement litigation), Vince P sued West
in the U.S. District Court for the Northern District of
Illinois. That court dismissed Vince P’s complaint under
Federal Rule of Civil Procedure 12(b)(6), and he
now appeals.


                             II
  We review the district court’s order granting West’s
motion to dismiss de novo. Justice v. Town of Cicero, 577
F.3d 768, 771 (7th Cir. 2009). We “construe the complaint
in the light most favorable to the plaintiff,” and we there-
fore draw all plausible inferences in Vince P’s favor.
Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
As a practical matter for the present case, this means
that we assume as true all of Vince P’s allegations re-
garding Monopoly’s early access to Vince P’s song and
his claims about the close relationship between Monopoly
No. 11-1708                                               5

and Kanye West. We review de novo the district court’s
determinations regarding the similarity between the
two songs as well as its ultimate conclusion of nonin-
fringement. Intervest Constr. Inc. v. Canterbury Estate
Homes, Inc., 554 F.3d 914, 919-20 (11th Cir. 2008).
  Vince P’s complaint contains only one claim: his allega-
tion that Stronger (KW) infringes his valid copyright in
Stronger (VP). Proving infringement of a copyright
owner’s exclusive right under 17 U.S.C. § 106(1) (the
reproduction right) requires proof of “(1) ownership of a
valid copyright, and (2) copying of constituent elements
of the work that are original.” Feist Publ’ns, Inc. v. Rural
Tel. Serv. Co., 499 U.S. 340, 361 (1991); JCW Invs., Inc. v.
Novelty, Inc., 482 F.3d 910, 914 (7th Cir. 2007).


                             A
  Copyright “registration made before or within five
years after the first publication of the work shall con-
stitute prima facie evidence of the validity of the copy-
right.” 17 U.S.C. § 410(c). Vince P applied for copyright
registration in Stronger (VP) on March 28, 2010, which
is well within the statutory five-year window be-
ginning in 2006. West appropriately does not challenge
Vince P’s copyright registration, nor does he otherwise
question the validity of Vince P’s copyright ownership
in Stronger (VP). Vince P has thus made a prima facie
showing of his ownership in the whole of the lyrics to
his song.
  Nevertheless, whether the parts of that song that West
allegedly copied are, on their own, entitled to copyright
6                                               No. 11-1708

protection is a separate question. If the copied parts are
not, on their own, protectable expression, then there can
be no claim for infringement of the reproduction right.
See Peter F. Gaito Architecture, LLC v. Simone Dev. Corp.,
602 F.3d 57, 61 (2d Cir. 2010).


                             B
   Satisfied that Vince P has shown valid copyright owner-
ship, we turn our attention to the question of copying.
The standard for copying is surprisingly muddled.
Where direct evidence, such as an admission of copying,
is not available (as is typically the case, see JCW, 482 F.3d
at 915), a plaintiff may prove copying by showing that
the defendant had the opportunity to copy the original
(often called “access”) and that the two works are “sub-
stantially similar,” thus permitting an inference that the
defendant actually did copy the original. The various
efforts to define these two key concepts, however, have
unfortunately had the unintended effect of obscuring
rather than clarifying the issues. This court has said
that substantial similarity can be shown by evidence of
“actual copying” and “improper appropriation.” Incredible
Techs., Inc. v. Virtual Techs., Inc., 400 F.3d 1007, 1011
(7th Cir. 2005). Thus, we permit copying to be proven by
evidence of access, actual copying, and improper appro-
priation. Vince P argues that we should adopt a hybrid
of our own approach and the one that he argues prevails
in the Second Circuit. That court, he contends, permits
actual copying to be proven by “access” and “probative
similarity” (which is distinct from substantial similarity).
No. 11-1708                                                 7

Appellant’s Br. at 26 (citing Laureyssens v. Idea Group, Inc.,
964 F.2d 131, 140 (2d Cir. 1992)). Putting these tests to-
gether, he seems to want us to require proof of access,
improper appropriation, and actual copying by means
of showing probative similarity and access (again).
  Other circuits have also had trouble expressing the
test with any clarity. The First Circuit, for example,
finds copying where the plaintiff has shown substantial
similarity, access, and probative similarity. T-Peg, Inc. v.
Vermont Timber Works, Inc., 459 F.3d 97, 111-12 (1st Cir.
2006). The formulation found in the Second Circuit re-
quires proof of improper appropriation and actual
copying; the latter is shown by proving access and proba-
tive similarity. Jorgensen v. Epic/Sony Records, 351 F.3d 46,
51 (2d Cir. 2003); Laureyssens, 964 F.2d at 140. The
Eleventh Circuit takes still a different approach,
requiring either “striking similarity” or access and merely
probative similarity. Peter Letterese & Assocs. v. World
Institute of Scientology Enterprises, 533 F.3d 1287, 1300-01
(11th Cir. 2008); see also La Resolana Architects, PA v.
Reno, Inc., 555 F.3d 1171, 1178-79 (10th Cir. 2009) (applying
same test). See also Universal Furniture Int’l, Inc. v.
Collezione Europa USA, Inc., 618 F.3d 417, 435 (4th Cir. 2010)
(access, intrinsic similarity, and extrinsic similarity); Frye
v. YMCA Camp Kitaki, 617 F.3d 1005, 1008 (8th Cir. 2010)
(same); Armour v. Knowles, 512 F.3d 147, 152 (5th Cir.
2007) (factual copying and substantial similarity, where
factual copying is shown either by striking similarity, or
access and probative similarity); Bridgeport Music, Inc. v.
UMG Recordings, Inc., 585 F.3d 267, 274 (6th Cir. 2009)
(access and substantial similarity, or “a high degree of
8                                                   No. 11-1708

similarity”); Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199,
207-08 (3d Cir. 2005) (access, copying, and improper
appropriation).
  Despite all of this confusing nomenclature, this strikes
us as a “pseudo-conflict”: despite the conflicting and
confusing verbiage, the outcomes do not appear to
differ. Jendusa-Nicolai v. Larsen, 677 F.3d 320, 322-23
(7th Cir. 2012); see also Nightingale Home Healthcare, Inc. v.
Anodyne Therapy, LLC, 626 F.3d 958, 960-62 (7th Cir. 2010)
(describing a pseudo-conflict in trademark law). Funda-
mentally, 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 infringe-
ment), and that the two works share enough unique
features to give rise to a breach of the duty not
to copy another’s work. Our analysis will follow this
structure.


                                i
  We begin with the question of opportunity. We
already know (for purposes of this Rule 12(b)(6) inquiry)
that Monopoly had access to Vince P’s song and that
Monopoly has a close relationship with West. These
allegations are more than enough to support an
inference that West had an opportunity to copy Stronger
(VP). Not only did Monopoly actually hear Vince P’s
song: he also twice received copies of it, once before
their November 2006 meeting and again on a CD during
that meeting. Furthermore, Monopoly is credited with
No. 11-1708                                                 9

acting as West’s manager on the G RADUATION album.
This evidence of close collaboration between West and
Monopoly suggests that Monopoly may have passed
Vince P’s song on to West during the production of the
album, and that West could have used that song in
crafting his own hit single. Viewed together, these al-
legations, taken as true, suggest that Monopoly and
West had ample access to Stronger (VP), and that this
access gave West an opportunity to copy the song.


                              ii
  But even assuming that West had the opportunity to
copy the lyrics to Stronger (VP), the question remains
whether the complaint plausibly alleges that he actually
did so. Before we can answer this question, we must
confront the differences among the circuits about the
relation between proof of access and evidence of similar-
ity. Some circuits follow an “inverse ratio” rule, under
which the strength of proof of similarity varies inversely
with the proof of access (i.e., strong proof of access allows
for only weak proof of similarity, and vice versa). Three
Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000);
see also Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620
(9th Cir. 2010); Stromback v. New Line Cinema, 384 F.3d
283, 293 (6th Cir. 2004); Amini Innovation Corp. v. Anthony
California, Inc., 439 F.3d 1365, 1368-69 (Fed. Cir. 2006)
(applying Ninth Circuit law). Other courts have
rejected the inverse-ratio rule. After following that rule
for several decades, the Second Circuit expressly
rejected it in 1961, concluding that the rule “confuses
10                                              No. 11-1708

more than it clarifies.” Arc Music Corp. v. Lee, 296 F.2d
186 (2d Cir. 1961).
   This court’s rule has not been so explicit, although
we have occasionally endorsed something that comes
close to this inverse approach. In Selle v. Gibb, 741 F.2d
896, 903 n.4 (7th Cir. 1984), we held that “degree of sim-
ilarity required to establish an inference of access
[should be] in an inverse ratio to the quantum of direct
evidence adduced to establish access.” More recently, we
noted that “similarity that is so close as to be highly
unlikely to have been an accident of independent
creation is evidence of access.” Ty, Inc. v. GMA Accessories,
Inc., 132 F.3d 1167, 1170 (7th Cir. 1997) (emphasis in
original); but see id. (noting that such similarity cannot
be evidence of access when both are copies of something
in the public domain). See also Alex Kozinski, How I
Narrowly Escaped Insanity, 48 UCLA L. R EV. 1293, 1302
(2001) (describing personal experience of very close
similarity between a popular movie and a novel he
was writing, but then noting that the movie producers
could not have seen his uncompleted manuscript). Thus,
in both Selle and GMA Accessories, we noted that evidence
that two works are very similar can suggest that the
alleged infringer had access to the original.
   Notably, however, we have never endorsed the other
side of the inverse relation: the idea that a “high degree
of access” justifies a “lower standard of proof” for sim-
ilarity. Three Boys Music, 212 F.3d at 485. As we ex-
plained above, evidence of access is required because
independent creation is a defense to copyright infringe-
No. 11-1708                                            11

ment, and so a plaintiff must show that the defendant
had an opportunity to copy her original work. This issue
is independent of the question whether an alleged
infringer breached his duty not to copy another’s work.
See GMA Accessories, 132 F.3d at 1170. Once a plaintiff
establishes that a defendant could have copied her
work, she must separately prove—regardless of how
good or restricted the opportunity was—that the
allegedly infringing work is indeed a copy of her origi-
nal. 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 sim-
ilarities between the two works. We are not persuaded
that the similarities alleged by Vince P rise to the level
of copyright infringement.
  For the benefit of readers interested in coming to
their own conclusions about these two songs, we have
included the full lyrics to each one in the Appendix to
this opinion. For present purposes, however, we give
the two “hooks,” which provide the backdrop to the
discussion that follows:


                  Stronger (VP) [Hook]
   What don’t kill me make me stronger
   The more I blow up the more you wronger
   You copied my CD you can feel my hunger
   The wait is over couldn’t wait no longer
12                                             No. 11-1708

                  Stronger (KW) [Hook]
     N-N-N-now th-th-that don’t kill me
     Can only make me stronger
     I need you to hurry up now
     Cause I can’t wait much longer
     I know I got to be right now
     Cause I can’t get much wronger
     Man I’ve been waitin’ all night now
     That’s how long I’ve been on ya.
  Three features in particular of Stronger (KW) form
the basis of Vince P’s argument that West’s song
infringes his. First, he notes that the hooks of both songs
derive from the same common maxim and that they
implement similar rhyme schemes (stronger, wronger,
etc.). Second, he points to the songs’ shared title, which
again derives from Nietzsche. Finally, he notes that both
songs contain “incongruous” references to the British
model Kate Moss, who is not usually featured in rap
or hip-hop lyrics.
  Nietzsche’s phrase “what does not kill me, makes me
stronger” comes from T WILIGHT OF THE IDOLS (1888).
Although the fact that both songs quote from a 19th
century German philosopher might, at first blush, seem
to be an unusual coincidence, West correctly notes that
the aphorism has been repeatedly invoked in song lyrics
over the past century. Notably, an even more recent
popular song—one that held the top spot in the
Billboard Hot 100 chart at about the same time as oral
argument in this case—also shares this key feature
with both West’s and Vince P’s songs. See Gary Trust,
No. 11-1708                                                 13

Kelly Clarkson Returns to Hot 100 Peak, The Wanted Hit
Top 10, B ILLBOARD , available at http://www.billboard.com/
#/news/kelly-clarkson-returns-to-hot-100-peak-the-10063
16152.story (last visited July 13, 2012) (discussing Stronger
(What Doesn’t Kill You), performed by Kelly Clarkson).
The ubiquity of this common saying, together with its
repeated use in other songs, suggests that West’s title
and lyric do not infringe on Vince P’s song. Acuff-Rose
Music, Inc. v. Jostens, Inc., 155 F.3d 140, 144 (2d Cir. 1998);
Selle, 741 F.2d at 901.
  Next, Vince P claims that West’s song infringes on the
rhyme pattern he uses in the hook. But this argument
misapprehends the nature of Vince P’s rights. Copyright
protects actual expression, not methods of expression. 17
U.S.C. § 102(b); Baker v. Selden, 101 U.S. 99, 104 (1879). Just
as a photographer cannot claim copyright in the use of
a particular aperture and exposure setting on a given
lens, no poet can claim copyright protection in the
form of a sonnet or a limerick. Similarly, Vince P cannot
claim copyright over a tercet. See Steele v. Turner Broad.
Sys. Inc., 646 F. Supp. 2d 185, 192 (D. Mass. 2009) (“A
common rhyme scheme or structure does not qualify as
original expression protectable under federal copyright
law.”). (We note for the sake of precision that, although
Vince P seems to be claiming protection over a “triple
rhyme,” a closer examination of his lyrics reveals that he
actually uses a soft quadruple monorhyme (stronger,
wronger, hunger, longer). West, by contrast, uses two soft
four-line schemes (stronger and longer, and wronger and
“on ya.”).) Nor are we persuaded that the particular
rhymes of stronger, longer, and wronger qualify for
14                                                No. 11-1708

copyright protection. See Prunte v. Universal Music Grp.,
699 F. Supp. 2d. 15, 29 (D.D.C. 2010) (no protection for
rhyming “-ill” sound).
   We turn then to the songs’ references to Kate Moss,
a well-known supermodel. In Vince P’s song, the line is
“Trying to get a model chick like Kate Moss”; in West’s
it is “You could be my black Kate Moss tonight.” Vince P
argues that his lyrical reference to Kate Moss “as a
paragon of female beauty” is so unique as to “undermine[]
the possibility of coincidental similarity.” We cannot go
that far. In the first place, the lines are entirely different.
In the second, analogizing to models as a shorthand
for beauty is, for better or for worse, commonplace in
our society. The particular selection of Kate Moss, who
is very famous in her own right, adds little to the
creative choice. And finally, the name alone cannot con-
stitute protectable expression. Feist, 499 U.S. at 347;
Schroeder v. William Morrow & Co., 566 F.2d 3, 5 (7th
Cir. 1977).
  Even viewing all of these elements in combination, we
conclude that Vince P has not plausibly alleged that
Stronger (KW) infringes on Stronger (VP). Vince P’s theory
is that the combination of the songs’ similar hooks, their
shared title, and their references to Kate Moss would
permit a finding of infringement. But, as we have dis-
cussed, in the end we see only two songs that rhyme
similar words, draw from a commonplace maxim, and
analogize feminine beauty to a specific successful model.
These songs are separated by much more than “small
cosmetic differences,” JCW, 482 F.3d at 916; rather, they
No. 11-1708                                         15

share only small cosmetic similarities. This means that
Vince P’s claim for copyright infringement fails as
a matter of law. The judgment of the district court
is A FFIRMED.
16                                           No. 11-1708

                       APPENDIX


                         Stronger
                         Vince P


     Chorus (2x)
     What don’t kill me make me stronger
     The more I blow up the more you wronger
     You copped my CD you can feel my hunger
     The wait is over couldn’t wait no longer

     Verse 1:
     I came from the bottom of the bottom
     To make it to the bottom
     Snuck in the back door now I got
     A&R’s back then should have signed
     Said I wasn’t gangsta said I couldn’t rhyme
     Vince P why don’t you stick to making beats
     You know what how bout I rap on my beats
     Make my own tracks stack my own stacks
     I’m hot you a loser and that’s a fact
     I’m bout to take you back when emcees was real
     Didn’t care where you from or if you had a deal
     Fist fights no guns no body packing steel
     Family reunions food on the grill
     This ain’t my barbeque but can I get a plate
     I’m still real hungry and I just ate
     This ain’t my barbeque but can I get a plate
     I’m still real hungry and I just ate
No. 11-1708                                         17


   Chorus (2x) [as before]

   Verse 2:
   I ain’t from Europe but I wear Lacoste
   And every day I hustle like Rick Ross
   Trying to get a model chick like Kate Moss
   Then trade her to another team like Randy Moss
   I’m the chosen one cause I got the force
   And I’m the unsigned hype but I’m not in the source
   All these dudes in Chicago tried to diss me
   Cause on the low they girls they kiss me
   And when I’m on the road you know they miss me
   Check out my MySpace check the Bentley
   I’m moving on up like George and Weezy
   And money on my mind like Little Weezy
   I’m the brand new kick pusher music distributor
   And make crazy rhymes like I’m related to Luda
   You can find me at the Croc Lounge
   Or at the Funky Buddha
   Catch a plane from O’Hare straight to Burmuda
   Check my lex diamonds call me Lex Luther
   Don’t like guns but my beats are ruggas
   Can’t you feel how these horns going right
    through you
   Can’t you feel how these horns going right
    through you
   I’m Vince P and I’m going to the top
   And I won’t stop till I get to the top
18                                           No. 11-1708

     You know my rhymes is hot and you know
       my beats is hot
     You know Vince P is going going to the top

     Chorus (2x) [as before]
No. 11-1708                                             19

                        Stronger

                      Kanye West



   Chorus:
   N-N-N-now th-th-that don’t kill me
   Can only make me stronger
   I need you to hurry up now
   Cause I can’t wait much longer
   I know I got to be right now
   Cause I can’t get much wronger
   Man, I’ve been waitin’ all night now
   That’s how long I’ve been on ya

   Verse 1:
   I need you right now
   I need you right now
   Let’s get lost tonight
   You could be my black Kate Moss tonight
   Play secretary I’m the boss tonight
   And you don’t give a f*** what they all say right?
   Awesome, the Christian in Christian Dior
   Damn they don’t make ‘em like this anymore
   I ask, cause I’m not sure
   Do anybody make real sh*t anymore?
   Bow in the presence of greatness
   Cause right now thou has forsaken us
   You should be honored by my lateness
   That I would even show up to this fake sh*t
   So go ahead go nuts go ape sh*t
   Especially in my Pastelle or my Bape sh*t
20                                            No. 11-1708

     Act like you can’t tell who make this
     New gospel homey take six, and take this, haters

     Chorus [as before]

     Verse 2:
     I need you right now
     I need you right now
     me likey
     I don’t know if you got a man or not,
     If you made plans or not
     If God put me in your plans or not
     I’m trippin’ this drink got me sayin’ a lot
     But I know that God put you in front of me
     So how the h*ll could you front on me
     There’s a thousand you’s there’s only one of me
     I’m trippin’, I’m caught up in the moment right?
     This is Louis Vuitton Don night
     So we gon’ do everything that Kan like
     Heard they’d do anything for a Klondike
     Well I’d do anything for a blonde d*ke
     And she’ll do anything for the limelight
     And we’ll do anything when the time’s right
     ugh, baby you’re makin’ it (harder, better,
        faster, stronger)

Chorus [as before]

Verse 3:
   I need you right now
   I need you right now
No. 11-1708                                 21

   You know how long I’ve been on ya?
   Since Prince was on Apollonia
   Since O.J. had Isotoners
   Don’t act like I never told ya (x6)
   Baby you’re making it (harder, better,
     faster, stronger)

Chorus [as before]




                         8-20-12