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Complaining Work

Defending Work

James Damiano

Miscellaneous lyrics and instrumental arrangement

Bob Dylan

"Dignity"

Hear Sound Recording

Comment

One can only hope that Bob Dylan and Sony compensate their lawyers generously for dealing with plaintiffs of this ilk.

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Opinion by Judge Simandle

Plaintiff brings this copyright infringement action accompanied by several federal and state claims all arising out of the alleged theft of plaintiff's lyrics and music by Sony recording artist Bob Dylan. Presently before the court is defendants' motion for summary judgment. For the reasons stated below, the motion will be granted in favor of defendants.

I. Background

Plaintiff's complaint lists six "works" allegedly infringed by Dylan. (Compl. at 3-6). Plaintiff claims that Dylan used several lyrics from five of the works originally composed and copyrighted by plaintiff. The sixth piece, an instrumental arrangement by Damiano, was allegedly infringed by Dylan's song "Dignity."

Defendants not only deny plaintiff's allegations, they assert that plaintiff's complaint is frivolous and fraudulent. (Def. Br. at 5). Specifically, defendants show, through the deposition testimony of plaintiff, that the purported "works" set forth in the complaint were actually created for the first time in the complaint and not registered with the copyright office as alleged. (Damiano Dep. at 174, 178, 191, 201-2). 1 Defendants seek judgment on the merits, as well as dismissal as a sanction under Rule 11, Fed. R. Civ. P., for the filing of a complaint not well-grounded in fact or law.

Apparently, for the sake of creating a side-by-side comparison of plaintiff's lines with Dylan's lines, plaintiff and/or his attorney pieced together lines from many different untitled verses composed by Damiano to create a total of five single "works." (Id. at 192-3, 196). The allegedly infringed lyrics are titled and organized in such a way that misleads the reader into thinking that a single piece by Damiano contains several words and phrases in common with those in a single piece by Dylan. The complaint also contains altered versions of some of Dylan's lyrics. (Id. at 175, 199). Some of the words in Dylan's songs are rearranged or left out, again giving an impression of similarity that otherwise does not exist.

Although this court does not take lightly the misleading nature of plaintiff's complaint, especially in the face of the obligations imposed on parties and their attorneys by Rule 11, Fed. R. Civ. P., defendants' request for dismissal as a Rule 11 sanction need not be reached since an analysis of plaintiff's claims requires dismissal on the merits.

Defendants will be given the opportunity, however, to submit within fourteen (14) days of this Opinion and Order a request for lesser Rule 11 sanctions and/or for attorney's fees under Rule 11 or under the Copyright Act, 17 U.S.C. § 505. See Lieb v. Topstone Indus., 788 F.2d 151 (3d Cir. 1986).

II. Discussion

A. Summary Judgment Standard

A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L & F Prods., 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. denied, 465 U.S. 1091, 79 L. Ed. 2d 910, 104 S. Ct. 2144 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

Supreme Court decisions mandate that: "[w]hen the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1987)). However, "the nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial." Brewer, 72 F.3d at 330 (citing Anderson, 477 U.S. 242 at 248). Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.

B. Plaintiff's Lyric Infringement Claims

Although plaintiff has not amended his complaint, he appears to have changed the nature of his claims in his opposition to the pending summary judgment motion. His argument now asserts that approximately fourteen of his lyrics -- from multiple works, not just the five "works" set forth in the complaint -- were "cherry-picked" by Bob Dylan for use in Dylan's songs. (Pl. Br. at 24) Eight of these lyrics were not in the complaint, but introduced for the first time in the plaintiff's opposition brief during summary judgment motion practice when this case was a year old. For the sake of completeness and since the defendants were able to respond to these lyrics in their reply brief, the court will consider these lyrics as part of plaintiff's infringement claim.

Six of the lyrics presented in plaintiff's complaint are not addressed at all in his opposition brief. 2 Since plaintiff failed to come forth with any evidence or argument as to these claims, defendants' motion for summary judgment is considered unopposed with regard to these six lyrics and will be granted.

[1] To establish a case of copyright infringement for his remaining lyrics, plaintiff has the burden of proving 1) ownership of a valid copyright; 2) copying of protectible expression; and 3) that the copying went so far as to constitute an improper appropriation of the plaintiff's work. Whelan Assoc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d Cir. 1986), cert. denied, 479 U.S. 1031, 93 L. Ed. 2d 831, 107 S. Ct. 877 (1987); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.), cert. denied, 423 U.S. 863, 46 L. Ed. 2d 92, 96 S. Ct. 122 (1975); Jarvis v. A & M Records, 827 F. Supp. 282, 288 (D.N.J. 1993).

Defendants claim that plaintiff cannot prove infringement because the words and phrases that he seeks to protect are non-copyrightable, have not been copyrighted prior to this lawsuit, or are not substantially similar to the allegedly infringing lyrics.

1. Ownership

[2] Plaintiff's complaint, consisting of snippets of various origin that are rearranged and stitched together under made-for-litigation titles, is a cut and paste job. As such, the element of ownership is more complex to analyze than in the typical infringement case. Damiano claims that the "works" in his complaint were all registered with the Copyright Office, a prerequisite to his maintaining an infringement action. This is clearly not accurate since none of the works was registered or even exists as constructed in the complaint. Most of the individual lines or lyrics making up the "works," however, do appear to have been registered with the Copyright Office as components of other verses composed by plaintiff. Still, defendants contend that several of the allegedly infringed lyrics were not registered and are not among the lyrics submitted by plaintiff as part of the record in this case. 3

Plaintiff has not presented evidence to the contrary, but merely asserts that "plaintiff has registered almost all of his works" and the rest will be registered prior to this court's decision. (P1. Br. at 25) (emphasis added). Specifically, plaintiff alleges that his work "Only God Knows," which contains several lines that are allegedly infringed by Dylan's "God Knows," and the lyric "Conceit is a disease" were in the process of being copyrighted at the time he submitted his opposition brief. Defendants, however, dispute the accuracy of this assertion and argue that a search of U.S. Copyright Office records revealed no new registrations by Damiano in 1996. (Def. Reply Br. at 5). Further, plaintiff has failed to produce any proof of filing to support his claim of pending registration for the two sets of lyrics in question. See Wilson v. Mr. Tee's, 855 F. Supp. 679, 682 (D.N.J. 1994). Thus, summary judgment will be granted for these lyric infringement claims since plaintiff has failed to establish a prima facie case of infringement.

2. Copying of Protectible Expression

Having assumed that plaintiff's remaining lyric fragments have been registered with the Copyright Office, the court now determines whether the surviving claims can meet the additional elements of infringement. The allegedly infringed lyrics that remain are as follows: 4

Damiano Lyric

Dylan Lyric

1. "your dignity" "for dignity"
2. "Truer words have not been spoken and once again the truce is broken" "Truer words have never been spoken or broken"
3. "She stumbles upon things
I've never seen /
One Word from her lips
can color a dream"
"I can handle whatever I stumble upon"...
"Don't even remember what her lips felt like on mine" 5
4. "Maybe I should just leave it
all behind"...
"If she'd only learn to make up her mind"
"She ain't even on my mind/ "She's that far behind"
5. "A different form of treason" "God don't call it treason"
6. "No one deserves anything more than what they need" You won't get anything you don't deserve"
7. "Pilate was a king" "Jesus Christ was betrayed by a [king]"6
8. "On the door to heaven
There ain't no bell
Probably the same way
On the door to hell"
"Listen to the engine,
listen to the bell
As the last fire truck
from hell goes rolling by"
9. "No one to run from
And no reason to hide"
"I don't cheat on myself
I don't run and hide"
10. "I can pretend" "I don't pretend"
11. "Maybe there's a reason for a purpose" "God knows there's a purpose"
12. "What good is a man" "what good am I"

 

a. Originality

A key point in this case is the disagreement between the parties as to the amount of originality needed for a work to be copyrightable. Plaintiff contends that "just a dash" will suffice. See Universal Athletic Sales Co., 511 F.2d at 908 ("Even a modicum of creativity may suffice for a work to be protected."). Defendants, however, argue that the common words and phrases and cliches used in plaintiff's lyrics are not subject to copyright protection. See Jarvis, 827 F. Supp. 282 at 291 (citing Perma Greetings, Inc. v. Russ Berrie & Co., Inc., 598 F. Supp. 445, 448 (E.D. Mo. 1984)); O'Brien v. Chappel & Co., 159 F. Supp. 58 (S.D.N.Y. 1958) (holding that phrase "night and noon" is not protectible).

[3] Plaintiff relies on the decision in Jarvis v. A & M Records, for the proposition that even common words can be protected if placed in a certain arrangement. For example, he argues that coupling the word "stumble" with the word "lips" creates a sufficiently original arrangement of otherwise trite words. Likewise, plaintiff argues that an arrangement combining the cliche "truer words have not been spoken" with the word "broken" is creative enough to be worthy of protection. Thus, plaintiff concludes, Bob Dylan cannot subsequently use the same pairs of words or phrases together in a lyric, even if separated by many intervening lines and ideas in some instances, without infringing plaintiff's original work.

The law of copyright does not support the logical extension of plaintiff's theory. In effect, he asks us to grant him a monopoly over the use of common combinations of words such as "bell" and "hell," "run" and "hide," or "mind" and "behind" merely because they are found together in a single song -- regardless of context or placement within the song. Such a result would not only stifle creativity, it would contravene the very policy behind copyright law and the rule requiring sufficient originality for a work to be protected. As the Jarvis court noted, "the policy behind the rule is to prevent a deterring effect on the creations of new works because of author's fears of copying innocuous segments." Jarvis, 827 F. Supp. 282 at 291. Indeed, the law of copyright has absolutely no interest in tying up random, fortuitous combinations of words.

Additionally, the court notes that plaintiff's reliance on Jarvis is misplaced. In that case, the defendants admitted to copying elements of the plaintiff's song via digital sampling. Since sections of the plaintiff's work were actually reproduced and used in the infringing work, there was no question as to whether the arrangement was similar -- it was identical. Unlike in the present case, "the precise relationship of the phrases vis a vis each other was copied." Id. at 292 (emphasis in original). Thus, the issue was not simply whether the common words "move" and "free your body" were protectible in a given arrangement, but rather, whether the copying was qualitatively or quantitatively sufficient to constitute an appropriation of plaintiff's work. The defendants in Jarvis raised a fact question on that issue and so summary judgment was denied.

[4] In this case, copying has not been conceded, and the question of whether plaintiff's arrangement of common words and phrases is distinctive enough to deserve protection is at the heart of the parties' dispute. Even if copying were conceded as in Jarvis plaintiff would not survive summary judgment because no reasonable jury could conclude that the words and phrases allegedly copied by Dylan were quantitatively or qualitatively important to the whole of plaintiff's allegedly infringed works. The words and phrases in question comprise nothing more than a single line or two of an entire song, and the songs themselves provide completely different contexts for the allegedly infringed words and phrases. Further, when taken as a whole, no jury could find substantial similarity between the lyrics of Damiano and Dylan. Summary judgment is appropriate in copyright actions based on lyrics where no reasonable jury could find substantial similarity between the works at issue. Nelson v. PRN Prod., Inc., 873 F.2d 1141 (8th Cir.) (trial court carefully studied lyrics involved and determined that reasonable minds could not differ as to absence of substantial similarity), cert. denied, 493 U.S. 994, 107 L. Ed. 2d 541, 110 S. Ct. 544 (1989). The issue of substantial similarity need not be reached here, however, because plaintiff fails to demonstrate a threshold of originality of his lyrics.

Insofar as the infringement of plaintiff's lyrics depends on there being some protectible element in his work, plaintiff cannot establish a copyright action. The lyrics he claims were infringed are nothing more than unprotectible phrases and cliches, and even when taken as a whole, they are not substantially similar to Dylan's work. Thus, summary judgment is granted on plaintiff's lyric claims, without the need to reach any additional elements comprising an infringement action.

C. Plaintiff's Music Infringement Claim

In addition to his lyric infringement claims, plaintiff asserts infringement of his instrumental composition, "Steel Guitars," by Dylan's "Dignity."

1. Ownership

There has been a fair amount of confusion concerning the registration of plaintiff's song. Plaintiff produced during discovery a tape, marked as Exhibit 71 of defendants' moving papers, which contained the song he called "Steel Guitars." (Exhibit 71 version). That song has been analyzed by both parties' experts and compared to "Dignity."

Defendants now contend, however, that the Exhibit 71 version of "Steel Guitars" was never registered with the Copyright Office. Plaintiff claims to have submitted a tape for registration in 1988, marked PAU 1-103-561, which, according to plaintiff's attorney, contains "Steel Guitars" as the last song on side B. (Copyright tape version). The version of "Steel Guitars" on the copyright tape, however, is not the same as the one on Exhibit 71. While there are common elements in the two versions, they are certainly not identical. Because of the confusion, the court has considered both versions of the allegedly infringed song.

First, the court notes that the Exhibit 71 version cannot be the basis of an infringement claim because plaintiff is unable to show that the work was registered with the Copyright Office. Thus, he has failed to establish a prima facie case of musical infringement for that version of "Steel Guitars." The Copyright tape version, on the other hand, although not originally identified as infringed work, apparently was registered. The court will therefore analyze the remaining elements of an infringement claim for the registered version only.

2. Copying

[5] Since there is no direct proof of copying in this case, plaintiff may establish copying if he can show (a) defendants' access to the copyrighted work; and (b) substantial similarity between the works to support an inference of unlawful copying. 827 F. Supp. at 289 (citing Whelan Assoc., Inc., 797 F.2d 1222 at 1232).

a. Access

[6] Plaintiff asserts that "the bulk of his life's work" was submitted to Sony beginning in 1982. (Compl. at 2). He also alleges that he was told to bring his songs to several concerts which he attended courtesy of Sony. Plaintiff has produced evidence that after these concerts, he was allowed backstage and gave his work to Dylan or his agents. (Damiano Decl. at PP 2, 5; Dep. of Pam Damiano at 77-84, 97-104; Dep. of Brad Wright at 105-112). Taking these allegations as true, plaintiff has demonstrated a genuine issue of material fact as to whether defendants had access to his work.

b. Similarity to Infer Copying

[7,8] In addition to showing defendants' access to his work, plaintiff must also show that his song and Dylan's song were substantially similar in order to infer that copying occurred. This is the so-called "extrinsic test" of substantial similarity, which calls for a dissection of the musical structure of the two pieces in search of objective similarities. Expert testimony is permitted, and often useful, in establishing substantial similarity at this phase of the inquiry. Although both sides retained experts for the comparison of plaintiff's "Steel Guitars" to Dylan's "Dignity," the experts analyzed the irrelevant Exhibit 71 version and not the one on the Copyright tape. Plaintiff's expert concluded that the melody of "Dignity" and plaintiff's Exhibit 71 version were thirty-two percent similar. Since the two versions of "Steel Guitars" are themselves different, however, the court will not consider the expert testimony as it might apply to the Copyright tape version. Without the benefit of expert testimony or other evidence specific to the Copyright tape version of plaintiff's song, the court must engage its own analysis of the components of the songs. To the ear of this court, there is no substantial similarity in the structure, instrumentation or melody of the two songs. These songs "speak" for themselves and no reasonable factfinder could find substantial similarity.

Although this alone would dispose of plaintiff's musical infringement claim, the court will continue so as to complete this analysis.

3. Substantial Similarity to Show Appropriation

[9] The final step of an infringement analysis is the so-called intrinsic test of substantial similarity which seeks the response of a lay person to the "total concept and feel" of the two songs at issue. See Whelan, 797 F.2d at 1234. "The general test for determining substantial similarity is whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." Warner Bros. v. American Broadcasting Co., 654 F.2d 204, 208 (2d Cir. 1981).

After listening several times to both Dylan's "Dignity" and plaintiff's "Steel Guitars" as it appears on the Copyright tape, this court is convinced that no reasonable juror could find the two songs substantially similar in total concept and feel. Plaintiff's song, an instrumental, consists of two guitars -- one that plays a fairly repetitious baseline, and one that plays a seemingly improvised free melody. Dylan's song has full instrumentation and accompanying lyrics. The overall effect of the two pieces is quite dissimilar -- put simply, they just don't sound alike. The lack of substantial similarity necessarily leads to a conclusion that Bob Dylan did not improperly appropriate plaintiff's work and thus ends the analysis of plaintiff's music infringement claim. Summary judgment will be granted in favor of defendants as to all of plaintiff's copyright infringement claims.

D. Plaintiff's Remaining Claims

Mr. Damiano also asserts federal claims under the Lanham Act and RICO, and state law claims on the theories of fraud, breach of confidence and misappropriation. To the extent that they all are based on the alleged plagiarism or theft of plaintiff's work by Bob Dylan, the dismissal of his copyright infringement claim mandates dismissal of the others since Damiano cannot establish that Dylan copied or even used any of his work.

Defendants also raise additional grounds for dismissal of plaintiff's accompanying federal and state law claims.

1. Lanham Act

Plaintiff's claim here revolves around the contention that he is the "co-author" of works that Dylan has falsely designated as his own, thus misleading the public and depriving Damiano of proper credit for his work. Although, as plaintiff points out, the elements of copyright infringement and Lanham Act claims are somewhat different, the fact that Damiano cannot establish that his work was copied by Dylan surely precludes a reasonable juror from finding that the two co-authored any works. Plaintiff has failed to present any evidence that would support his Lanham Act claim, and thus, summary judgment will be granted in favor of the defendants.

2. RICO

Plaintiff alleges that defendants engaged in "massive mail fraud" by putting into interstate commerce recordings containing fraudulent statements, namely, that Bob Dylan created songs on the recordings which were actually created by plaintiff.

[10,11] Plaintiff's RICO claims must fail because they are actually nothing more than copyright infringement claims presented as mail fraud and copyright infringement is not a predicate act under RICO. Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). Further, since plaintiff has failed to show that Dylan copied any of his work, he cannot show that the dissemination of Dylan's recordings or the statements contained therein were in any way fraudulent. Summary judgment is therefore granted on plaintiff's RICO claims.

3. State Claims

Defendants argue that plaintiff's state claims are pre-empted by the federal copyright law. Plaintiff does not respond to the pre-emption argument.

Section 301 of the copyright act explicitly preempts state laws that (1) fall within the subject matter of the federal copyright law and protect works that are fixed in tangible medium of expression; and (2) create legal or equitable rights that are equivalent to any of the exclusive rights granted to the copyright holder and specified in Section 106.

Jarvis, 827 F. Supp. at 296.

Insofar as any of plaintiff's state claims turn on the alleged unauthorized copying or use of his lyrics and music, they are pre-empted by federal copyright law. As an initial matter, the court notes that plaintiff has not attempted to argue that his state claims arise from anything other than the alleged theft of his songs by Bob Dylan.

a. Misappropriation of Property

[12] Plaintiff's misappropriation claim is based on the alleged unauthorized use of plaintiff's materials by Bob Dylan. This claim is equivalent to plaintiff's copyright infringement claim and thus is pre-empted.

b. Breach of Confidence and Fraud

[13] Without reaching the question of pre-emption on plaintiff's final state law claims, the court finds that plaintiff has failed to establish either claim. First, plaintiff has offered no proof to show that defendants owed him any duty or that such a duty could have been breached by their actions. Second, plaintiff has failed to establish a claim for fraud, especially to the degree of specificity required by Rule 9(b), Fed. R. Civ. P. Plaintiff has not produced any proof of direct misrepresentations by defendants. At best, this court will accept as true plaintiff's allegation that Sony represented to him that he would be credited and compensated if Dylan used his work. Plaintiff, however, has failed to show that his work was ever used, incorporated or copied by Dylan.

Plaintiff's state claims therefore fail as a matter of law and summary judgment will be entered in favor of defendants.

E. Plaintiff's Appeal of Judge Rosen's Orders

As a final matter, this court reserved decision on plaintiff's appeal of Judge Rosen's August 6, 1996, Orders pending the outcome of defendant's summary judgment motion. These appeals assert that Judge Rosen erred in denying plaintiff access to information related to data about the sales of Dylan's songs and about Dylan's alleged motive to copy the works of others. See Damiano v. Sony Music Entertainment, Inc., 168 F.R.D. 485 (D.N.J. 1996). Neither issue pertains to the questions decided herein, which are dispositive of the case. The granting of summary judgment in favor of defendants renders plaintiff's appeal moot.

III. Conclusion

For the reasons set forth above, summary judgment is granted for defendants on all counts of plaintiff's complaint. Defendants have fourteen days to apply for Rule 11 sanctions or statutory attorney's fees as detailed in part I of this Opinion. The appeal of Magistrate Judge Rosen's Orders of August 6, 1996, is dismissed as moot.

The accompanying Order has been entered.

JEROME B. SIMANDLE

United States District Judge

ORDER

This matter having come before the court upon the defendants' motion for summary judgment; and the court having considered the submissions of the parties and heard oral argument on the matter; and for the reasons set forth in the Opinion of today's date;

It is this 16th day of December, 1996, hereby ORDERED that the defendants' motion for summary judgment be, and hereby is GRANTED as to all counts of plaintiff's complaint; and it is

 FURTHER ORDERED that plaintiff's appeal of Judge Rosen's Orders of August 6, 1996, be and hereby, is DISMISSED as moot; and it is

 FURTHER ORDERED that any motion for statutory attorney's fees or Rule 11 sanctions shall be filed within 14 days of the entry of this Order.

 JEROME B. SIMANDLE

 

Footnotes

 1 For example, in what appears to be plaintiff's strongest claim, he sets forth the lyrics of his purported work "Only God Knows" as compared to Dylan's "God Knows."

Damiano Lyrics

Dylan Lyrics

Only God Knows the Hurt God knows you ain't pretty
Only God knows the pain God knows it's true,
Only God knows the struggle God knows there ain't anybody
Of the misery that you claim Ever gonna take the place of you
Only God knows the anguish God knows it's a struggle,
Only God knows the faith God knows it's a crime,
Only God knows the truth God knows there gonna be no more
Of the secrets of your fate Water for fire the next time,
A different form a treason God dont' call it treason,
A different type of hypocrisy God dont' call it wrong,
Not your usual form It was supposd to last a season
of adulturism or betrayal But it's been so strong,
Of intimacy For so long,
Only God knows the reason God knows it's fragile,
Only God knows what's wrong God knows everything,
Only God knows how fragile it is ...God knows there's a river,
Only God knows how strong God knows how to make it flow,
He made the winding rivers ...God knows there's a purpose
You can watch them flow  
Faith is your reason  
Belief your purpose  
Don't tell me you  
Don't know.  

 

Although these two works do appear to be similar as presented in the complaint, discovery has revealed that plaintiff never sought a copyright for the purported work "Only God Knows" before initiating this litigation. Only the lyrics that have here been placed into boldface had previously even existed and been copyrighted -- as verses in other songs. Indeed, the court suspects that any similarity between these two songs is the result of an appropriation of Dylan's work by Damiano, not the other way around.

 

2 The following verses composed by plaintiff were presented in his complaint as infringed lyrics but not addressed after defendants' motion for summary judgment:

1. "I'm not sure of anything half the time anymore" 4. "Sunbird up in the sky/ Sunbird your flyin to high"
2. "A cloud of confusion filled the room to thick to withstand" 5. "Born are new ideas" "Against the pale blue sky"
3. "Against the pale blue sky" 6. "Lost days and forgotten years"

 

3Defendants submit that the following lyrics were not found in any of the Damiano works in the record:

Damiano Lyric

Dylan Lyric

1. "buried inside" "buried deep down inside"
2. "Wanna try and help mankind"
I can smile in the face of reality"
"I can smile in the face of mankind"
3. "Conceit is a disease" "Conceit is a disease"
4. multiple lines from purported work, Only God Knows multiple lines from Dylan's song, God Knows

 

4 The first five lyrics listed are those designated by plaintiff's attorney at oral argument as plaintiff's "Top Five" claims.

5As an example of how plaintiff misrepresents and alters Dylan's lyrics, these two lines from Dylan's song "Most of the Time" are presented in the complaint as if they follow one another in the song. In reality, the lines are separated by over one hundred words.

6 Plaintiff incorrectly asserts that Dylan changed the lyric in the 1994 re-release of his song, "With God On Our Side," originally composed and copyrighted in 1963, from "kiss" to "king," thereby repeating the historical error made by Damiano in his untitled song. A review of Dylan's song reveals that the lyric is actually still "kiss." (Defendants' exhibits 64 and 66; Dylan's "Unplugged" CD and video).

 

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