spillane shaeffer aronoff bandlow llp

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SPILLANE SHAEFFER ARONOFF BANDLOW LLP Lincoln D. Bandlow (SBN 170449) Michele Friend (SBN 203865) 1880 Century Park East, Suite 1004 Los Angeles, CA 90067-2627 Telephone: (310) 229-9300 Fax: (310) 229-9380 [email protected] [email protected] Attorneys for Defendants TWENTIETH CENTURY FOX HOME ENTERTAINMENT LLC, KIOS PRODUCTIONS, LLC, JIZZY ENTERTAINMENT, YARI FILM GROUP, LLC, YARI FILM GROUP RELEASING, LLC and BOB YARI PRODUCTIONS

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WIXEN MUSIC PUBLISHING, INC., a California corporation Plaintiff, v. TWENTIETH CENTURY FOX HOME ENTERTAINMENT LLC, a Delaware limited liability company; KIOS PRODUCTIONS, LLC, a California limited liability company; JIZZY ENTERTAINMENT, a California limited liability company; YARI FILM GROUP, LLC, a California limited liability company; YARI FILM GROUP RELEASING, LLC, a California limited liability company; BOB YARI PRODUCTIONS, a business entity of unknown form; and DOES 1 through 10 inclusive,

Defendants.

CASE NO. CV 08-00112-R (VBKx) DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [FRCP 12(b)(6)] [Declaration of Lincoln D. Bandlow and Request for Judicial Notice filed concurrently herewith] Date: April 7, 2008 Time: 10:00 am Judge: Hon. Manuel L. Real Place: Courtroom 8

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on April 7, 2008, at 10:00 a.m., or as soon

thereafter as counsel may be heard, in Courtroom 8 of the above-entitled Court, the

Honorable Manuel L. Real presiding, located at 312 N. Spring Street, Los Angeles,

California 90012, Defendants Twentieth Century Fox Home Entertainment LLC,

KIOS Productions, LLC, Jizzy Entertainment, Yari Film Group LLC, Yari Film Group

Releasing LLC and Bob Yari Productions (collectively “Defendants”) will and hereby

do move the Court pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure

for an order dismissing with prejudice the Complaint for copyright infringement filed

by Plaintiff Wixen Music Publishing, Inc.

This Motion is made following the conference of counsel pursuant to Central

District Local Rule 7-3, which took place on February 13, 2008 and is made on the

following grounds:

1. Plaintiff’s claim for copyright infringement fails to state a claim upon

which relief can be granted because Defendant’s use was de minimis

and therefore Plaintiff cannot make a prima facie showing of copyright

infringement.

2. Plaintiff’s claim for copyright infringement fails to state a claim upon

which relief can be granted because it is barred, as a matter of law, by

the fair use doctrine, 17 U.S.C. §107.

The foregoing grounds are addressed in detail in the attached Memorandum of

Points and Authorities. This Motion is based on this Notice, the attached

Memorandum of Points and Authorities, the concurrently filed Request For Judicial

Notice, Declaration of Lincoln D. Bandlow and attached exhibits, on all papers,

pleadings, records and files in this case, on all other matters of which judicial notice

/ / /

/ / /

2 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS

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may be taken, and on such other evidence and/or argument as may be presented to the

Court on the hearing of this Motion.

Dated: February 29, 2008

SPILLANE SHAEFFER ARONOFF BANDLOW LLP

By: Lincoln D. Bandlow

Attorneys for Defendants Twentieth Century Fox Home Entertainment LLC, KIOS Productions, LLC, Jizzy Entertainment, Yari Film Group, LLC, Yari Film Group Releasing, LLC and Bob Yari Productions

i DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS

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TABLE OF CONTENTS

I. INTRODUCTION.....................................................................................1

II. RELEVANT FACTS.................................................................................2

A. The Film ..........................................................................................2

B. The Fleeting Use At Issue In This Case..........................................4

C. The Song .........................................................................................5

D. The Claim........................................................................................6

III. SUMMARY OF ARGUMENT.................................................................7

A. The Use Was De Minimis ...............................................................7

B. The Use Was A Protected Fair Use ................................................7

IV. STANDARD FOR A MOTION TO DISMISS ........................................10

V. PLAINTIFF’S CLAIM FAILS AS A MATTER OF LAW......................11

A. Plaintiff Cannot Make A Prima Facie Case For Copyright Infringement Since Defendants' Use Was De Minimis...................11

B. Plaintiff’s Claim Is Barred By The Doctrine Of Fair Use. .............12

1. The First Factor, The Purpose And Character Of Defendants’ Use, Favors Defendants Because The Use Was For A Transformative And Expressive Parody ............14

2. The Second Factor, The Nature of the Copyrighted Work, Either Carries No Weight Or Favors Defendants......16

3. The Third Factor, The Amount and Substantiality Of The Use, Favors Defendants ........................................................17

4. The Fourth Factor, The Effect Of The Use On The Potential Market For Or Value Of Plaintiff’s Work, Favors Defendants ................................................................18

ii DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS

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5. The Allegation That Defendants Sought A License For The Song Has No Bearing On The Fair Use Analysis .........20

VI. CONCLUSION .........................................................................................21

iii DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS

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TABLE OF AUTHORITIES

CASES

Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2nd Cir. 2006) .................................................... 14, 16, 19, 20, 21

Blanch v. Koons, 467 F.3d 244 (2nd Cir. 2006) ................................................................ 14, 16, 17

Burnett v. Twentieth Century Fox Film Corp., 491 F. Supp. 2d 962 (C.D. Cal. 2007) ....................................... 10, 13, 14, 15, 18

Butler v. Target Corp., 323 F. Supp. 2d 1052 (2004) ............................................................................. 12

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)................................................... 8, 13, 14, 15, 16, 17, 19, 21

Consumer Union of United States, Inc. v. General Signal Corp., 724 F.2d 1044 (2nd Cir. 1983) .................................................................... 18, 19

Daly v. Viacom, Inc., 238 F. Supp. 2d 1118 (N.D.Cal.2002)............................................................... 10

Dept. of Corrections v. Daughtry, 954 So.2d 659 (Fla. Dist. Ct. App. 2007)............................................................ 9

Eldred v. Ashcroft, 537 U.S. 186 (2003)............................................................................................. 8

Elsmere Music, Inc. v. National Broadcasting Co., 623 F.2d 252 (2nd Cir. 1980) ...................................................................... 15, 17

Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986) ............................................... 13, 14, 16, 19, 20, 21

Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000) ............................................................................. 9

Gordon v. Nextel Communications, 345 F.3d 922 (6th Cir. 2003). ............................................................................ 12

Hofheinz v. AMC Prods., Inc, 147 F. Supp. 2d 127 (E.D.N.Y. 2001) ............................................................... 20

In re Allstate County Mutual Ins. Co., 85 S.W.3d 193 (Tex. 2002) ................................................................................. 9

In re Silicon Graphics, 183 F.3d at 991 .................................................................................................. 21

In re Smith, 352 B.R. 702 (9th Cir. 2006) ............................................................................... 9

iv DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS

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In re VeriFone Sec. Litig., 11 F.3d 865 (9th Cir. 1993) ............................................................................... 10

Kahn v. I.N.S., 36 F.3d 1412 (9th Cir. 1994) ............................................................................... 9

Kelly v. Arriba Soft Corporation, 336 F.3d 811 (9th Cir. 2003) ....................................................................... 13, 16

Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792 (9th Cir. 2003) ................................................................. 13, 16, 17

Newton v. Diamond, 388 F.3d 1189 (9th Cir.2004) ............................................................................ 11

Pegasus Holdings v. Veterinary Centers of America, Inc., 38 F. Supp.2d 1158 (C.D. Cal. 1998) ................................................................ 10

Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007) ................................................................. 12, 14, 16

Portnoy v. Texas Int. Airlines, Inc., 678 F.2d 695 (7th Cir. 1982) ............................................................................... 9

Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2nd Cir. 1998) ...................................................................... 11, 12

Smith v. Bd. of Horse Racing, 288 Mont. 249 (Mont.1998) ................................................................................ 9

U.S, v. McPhee, 336 F.3d 1269 (11th Cir.2003) ............................................................................ 9

VeriFone Sec. Litig., 11 F.3d 865 (9th Cir. 1993) ............................................................................... 10

STATUTES

17 U.S.C. § 107....................................................................................................... 13

37 C.F.R. §202.1(a). ............................................................................................... 12

RULES

Rule 12(b)(6)........................................................................................................... 10

v DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS

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TREATISES

3 Patry, Patry on Copyright, § 9:60 (2007). ........................................................... 11

4 Nimmer on Copyright, § 13.05 (2005)........................................................... 12, 17

OTHER Mark Sableman, Artistic Expression Today: Can Artists Use the Language of our Culture, 52 St. Louis U.L.J. 187, 193 (2007) .......................................................... 8


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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Defendants KIOS Productions, LLC, Jizzy Entertainment, Yari Film Group

LLC, Yari Film Group Releasing LLC, Bob Yari Productions and Twentieth Century

Fox Home Entertainment LLC (“Defendants”) produced and distributed the 2007 film

KICKIN’ IT OLD SKOOL (the “Film”), a comedy that parodies the styles, trends, icons,

catchphrases, popular music and other cultural symbols associated with the 1980s.

Plaintiff Wixen Music Publishing, Inc. (“Plaintiff”) allegedly owns the copyright in the

song Mr. Roboto (the “Song”) which was released in 1983 by Styx, a popular musical

groups from the 1980s. Plaintiff brings a single claim for copyright infringement

based on the use in the Film, in spoken dialogue between two characters in the Film, of

three words from the lyrics to the Song. Complaint (“Cmpt.”) ¶¶ 12, 19.

Plaintiff’s claim fails as a matter of law. First, this fleeting de minimis use is

insufficient to establish liability because it falls below the quantitative threshold of

substantial similarity necessary to support a claim. Second, even assuming the use of

three words from the Song is sufficient to establish an infringement claim, this case is

the paradigm for the proper and unquestionable application of the fair use doctrine to

defeat a claim for copyright infringement. The Film’s use of three words from the

Song in dialogue was for the purpose of parodying the Song and its ubiquitous lyric

“Domo Arigato, Mr. Roboto” as part of the Film’s comedic assault on various iconic

aspects of the 1980s. Moreover, there is nothing particularly creative about the words

used from the Song (“Domo Arigato” literally translates to “thank you” in Japanese),

only three words from the Song were used (and not in the order they appear in the

Song) and the use does not supplant or adversely effect the market for the Song

(indeed, the use likely enhances the market for the Song).

Accordingly, the Motion to Dismiss should be granted. Moreover, no

amendment to the Complaint will save Plaintiff’s claim and thus this action should be

dismissed with prejudice.


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II. RELEVANT FACTS

A. The Film1

The Film, starring comedian and actor Jamie Kennedy, is a comedy that spoofs

the cultural icons associated with the 1980s.2 As the Film opens, it is 1986 and the

lead character, Justin, is a twelve year-old boy who heads up his own breakdancing

group, The Funky Fresh Boys, made up of Justin’s friends Aki, Hector and Darnell.

During an elementary school talent show, Justin’s bitter rival Kip makes his intentions

clear that he wants to steal away Justin’s girlfriend, Jen. During a breakdancing

competition in the talent show that pits Justin and his Funky Fresh Boys against Kip

and his breakdancing “crew” The Groundbreakers, Justin tries to show up Kip and

impress Jen by attempting a particularly dazzling, yet dangerous, breakdancing move.

Unfortunately, Justin misses the gymnastic final back flip of the move, smashing into

the floor and ending up in a coma.

The Film flashes forward to 2006, where Justin lies in a hospital bed still in a

coma. Just as Justin’s parents are about to “pull the plug” on him because they can no

longer afford the mounting medical bills, Justin miraculously awakens from his coma

(snapped out of it after a janitor walks by his room with a radio that is playing the

iconic 1980s song ROCK IT by Herbie Hancock, the song to which Justin was

breakdancing when he did his coma-inducing move in 1986). Justin goes home with

his parents, but his frame of reference for the world is still trapped in the 1980s.3 The

1 The Complaint incorporates the contents of the Film. See Cmpt. ¶¶ 19-20. A true and correct copy of the dvd of the Film as it was released to the public is attached as Exhibit A to the Declaration of Lincoln D. Bandlow (“LDB Decl.”). See also Request for Judicial Notice (“RFJN”) A. 2 The Film was produced by defendants KIOS Productions, LLC (“KIOS”), Yari Film Group LLC and Bob Yari Productions. It was released theatrically by defendant Yari Film Group Releasing LLC and on home video by defendant Twentieth Century Fox Home Entertainment LLC. Defendant Jizzy Entertainment is the “loan out” company that furnishes the services of actor Jamie Kennedy. 3 Thus, when he is taken home and sits down to watch MTV, Justin thinks that the television is broken because the channel is playing no music videos “but just a bunch of girls talking and crying.” The joke, of course, is that MTV’s programming in the 1980s was almost all music videos, whereas now MTV features reality shows and other regular programming – and virtually no music videos.


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Film uses this premise to poke fun at various pop culture icons, songs, catchphrases,

fads and works of that era. For example, Justin continues to wear clothing from the

1980s, utter popular catchphrases and slang from the 1980s, and breakdance just as he

did in the 1980s.4 His maturity level remains as if he is still a pre-teen living in that

time, even his pre-teen interest from the 1980s in toy robots has not waned.

After learning that his parents are struggling to pay Justin’s medical bills, he sets

out to rally his three buddies, Aki, Hector and Darnell, to shake the dust off their old

moves and enter a dance competition to win money to pay off the debts. In addition,

Justin finds out that his childhood girlfriend, Jen, is now engaged to Justin’s rival, Kip,

and Justin believes winning the dance competition will win back her heart. 5 Justin

quickly finds out, however, that the years have taken their toll on his friends. Justin

finds Darnell, a struggling inventor, working at a toy store. Justin and Darnell then

locate Hector, who is now an obese parking meter officer and when they find him,

Justin and Darnell ponder if it is Hector “or some dude that ate Hector.”

The three friends next find Aki working in an office cubicle. Aki is the brunt of

many jokes about his Asian heritage throughout the Film. He is known for his dance

move specialty being the “robot” (a not too subtle reference to the popularity of robots

in Japanese culture). Aki’s friends kid him about his now very “Americanized” way of

4 The Film includes a cornucopia of references to 1980s icons such as: Michael Jackson’s multi-zippered red jacket from THRILLER (Epic 1982); a young Jen performs the dance routine from FLASHDANCE (Paramount Pictures 1983); Garbage Pail Kids trading cards; the catchphrase “What you talkin’ about, Willis” from DIFF’RENT STROKES (NBC 1978-85, ABC 1985-86); Smurfs; a young Justin having the movie BLUE LAGOON (Columbia Pictures 1980) on “Betamax” videotape; yogurt shops; parachute pants; KARATE KID (Columbia Pictures 1984); muscle t-shirts; Slip ‘n Slide; Chia Pets; Atari; “chew” bubble gum; STAR SEARCH (Ten 10 1985); handkerchief headbands; tight rolled jeans; “Kit car” from KNIGHT RIDER (NBC 1982-86); SIXTEEN CANDLES (Universal Pictures 1984); turquoise shirts and piano key ties; Converse high top shoes; finger-less gloves; Andrew McCarthy; Rubik’s Cube; Members Only jackets; tuxedo t-shirts; Garfield; micro-machines by Galoob; and BMX bicycles. The Film also features a number of cameo appearances by icons from the 1980s, such as Emanuel Lewis, David Hasselhoff, Erik Estrada and “Rowdy” Roddy Piper. 5 In yet another 1980s reference, a despondent Justin, having learned of Jen’s engagement, ponders committing suicide by eating a packet of “pop rocks” candy and drinking a soda at the same time, a reference to the well-known urban myth that this would supposedly cause your stomach to explode.


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speaking and Aki rails at them for expecting him to sound different, adopting an Asian

accent and imitating various Asian characters from popular films from the 1980s such

Mr. Miyagi from KARATE KID and Long Duk Dong from SIXTEEN CANDLES. Aki does

speak Japanese in various parts of the Film.

The Funky Fresh Boys begin to work out the kinks and get ready for the big

competition, practicing all the “old school” breakdancing moves like doing the “robot”

and popping and locking.6 Justin also tries to woo Jen back and she is drawn to his

being a thirty-two year-old man with an innocent twelve year-old boy’s charm. The

Funky Fresh Boys get to the final round of the dance competition and Justin realizes

that to win, he must finish off with his “big move” – the same move he tried twenty

years ago that sent him into a coma. This time, however, he pulls it off and propels

The Funky Fresh Boys to victory. Their triumph sends Kip into a tizzy, resulting in his

losing the girl and his job. Justin and Jen kiss as the Film fades out to the music of the

1980s iconic band, Flock of Seagulls.

B. The Fleeting Use At Issue In This Case

The Film includes a seven (7) second exchange of dialogue between Justin and

Aki that forms the basis for Plaintiff’s claim in this action. In a scene about forty-five

minutes into the Film, The Funky Fresh Boys are practicing their dance moves for the

competition. Justin asks Aki to do the dance move the “robot” like he used to do when

they were kids. Aki attempts to do so, but his efforts are, in a word, pathetic. Justin

implores Aki to stop what he is doing and, in a very serious tone, Justin says “Aki, it’s

time to say Domo Arigato and find your inner Roboto.” He then says to Aki “domo”

who responds “domo” and they both repeat “domo” again (hereinafter the “Film

Dialogue”). LDB Decl., Ex. A at 45:57-46:04. The characters do not “sing” any of

6 Justin, of course, is unfamiliar with any modern dance moves, so when he goes to a dance club and sees a dancer “krumping” (a form of dance featuring wild gesticulations), Justin tackles the man and tries to stuff a wallet in his mouth, thinking he is having an epileptic seizure.


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these words and there is no music playing in the background during the scene. The

entire Film Dialogue amounts to less than 1% of the 109 minute long film.

The scene continues with Justin saying that he cannot show Aki how to regain

his robot-dancing prowess, but that “he can” – as Justin gestures to a electronic toy

robot doll. See LDB Decl. ¶ 3, Ex. B; RFJN B. When Aki resists the notion of being

taught how to do the “robot” by a toy robot, Darnell chimes in that The Funky Fresh

Boys are not going to lose the competition prize money because of Aki and tells Aki to

just “do the damn thing before I punch you in the head like Rock-em Sock-em Robot”

which is yet another reference to a popular icon from the 1980s. The entire scene that

includes the seven seconds of Film Dialogue at issue here lasts one minute and twenty-

three seconds, or 1.3% of the Film.

C. The Song

The song Mr. Roboto was released in 1983 by the group Styx on the band’s

album titled KILROY WAS HERE. Cmpt. ¶ 12. As Plaintiff concedes, the Song was one

of the band’s signature works. Id. The Song is an obvious social commentary on the

threat of machines replacing man. For example, the lyrics of Mr. Roboto include:

You’re wondering who I am – machine or mannequin.

With parts made in Japan, I am the modren [sic] man…

The problem’s plain to see: too much technology.

Machines to save our lives. Machines dehumanize.

See LDB Decl. ¶¶ 4-5, Exs. C-D; RFJN C-D. Indeed, the cover of the album displays

two daunting robots (see LDB Decl. ¶ 5, Ex. D; RFJN D) and the album’s liner notes

predicted a frightening world where “Japanese manufactured robots, designed to work

cheaply and endlessly, are the caretakers of society. ‘Mr. Robotos’ are everywhere,

serving as manual labor in jobs that were once held by humans.” Id. The Song

includes a robotic-sounding chorus of the words “Domo Arigato, Mr. Roboto.” See

LDB Decl. ¶ 4, Ex. C; RFJN C.


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The Song and its associated catchphrase “Domo Arigato, Mr. Roboto” became

one of the better known icons of the 1980s. Indeed, the Song has been called “one of

the great cheesy hits of the ‘80s”; an “oddball novelty song from 1983” and a “silly

classic rock song” that has the “insufferable punchline” and “famously cheesy” lyric

“Domo Arigato, Mr. Roboto”, a catchphrase so well-known that without it, “[l]ife as

we know it would not be the same.” See LDB Decl. ¶ 6, Ex. E; RFJN E. The lyrics

from the Song have been included in a list of “the most cringe-inducing lyrics ever

composed” and the phrase “Domo Arigato, Mr. Roboto” is ubiquitous, appearing in

countless stories, newscasts, movies, television shows and other works. Id.

D. The Claim

Plaintiff asserts a single copyright infringement claim, alleging that Defendants

wrongfully copied the lyrics “Domo Arigato, Mr. Roboto.” Cmpt. ¶ 20. In fact, the

Film never uses the line “Domo Arigato, Mr. Roboto.” Rather, the line from the Film

is actually “Aki, it’s time to say Domo Arigato and find your inner Roboto.” That line,

of course, appears nowhere in the Song. Indeed, the Song never refers to “inner

Roboto” or even to “Roboto” standing alone. See LDB Decl., Exs. A-C.

Moreover, the use is clearly a parody of the Song. As the lyrics demonstrate,

the Song was a 1983 social commentary on the ominous threat of machines replacing

man. The Film Dialogue, on the other hand, is a silly mock-serious exchange between

Justin and Aki in which Justin offers up, as some kind of sage advice, a suggestion to

help Aki remember how to dance the robot and then enlists the help of an electronic

robot toy. Moreover, the Film Dialogue appears in a Film that itself parodies and

comments upon numerous icons from the 1980s. The three words (“Domo”, “Arigato”

and “Roboto”) are spoken (not sung) during this one scene in the Film and there is no

music playing in the background.7 The words were used in the Film in an entirely

different sequence and context than how they were used in the Song.

7 Plaintiff alleges that defendant KIOS requested a synchronization license to use the Song in the Film. Cmpt. ¶¶ 16-18. Because this is a Motion to Dismiss, KIOS cannot now dispute that allegation


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III. SUMMARY OF ARGUMENT

Ironically, like the robots in the Song who seek dominion over mankind,

Plaintiff now seeks to exert control over other creators who take aim at and mock this

self-important anthem of the dangers of thought-control. The law, however, does not

allow Plaintiff to exercise such dominion. Plaintiff’s claim fails as a matter of law and

should be dismissed without leave to amend.

A. The Use Was De Minimis

This fleeting, fragmented use of three words from the Song was de minimis and

does not reach the threshold necessary to establish infringement liability. Indeed, it is

the equivalent of the owners of the copyright in GONE WITH THE WIND suing if

another film used the words “frankly”, “dear” and “damn.” The use of three words

(not similarly ordered) from the Song is simply not enough to show the required

“substantial similarity” to support an infringement claim.

B. The Use Was A Protected Fair Use

Even if the Court determines that the use of three words from the Song in the

Film Dialogue was not de minimis, it is protected by the doctrine of fair use and

therefore immune from liability. All of the fair use factors support such a conclusion.

First, the nature and purpose of the use is a transformative, expressive parody that

pokes fun at the absurdity of the Song’s menacing warning by suggesting that a

cartoonish toy robot is better equipped to teach someone to dance and that one should

call upon his “inner robot” for help. Moreover, the reference furthers the Film’s

running joke by Aki’s friends (to Aki’s consternation) that he must channel his

“Asian” side to achieve acceptance and success.

(although KIOS would eventually be able to demonstrate that this request related to an inquiry about using the words and music from the entire Song in the Film, and not a request relating to the use of three words in dialogue in the Film). More importantly, however, even assuming that the allegation is true, the fact that a license was requested but not obtained is entirely irrelevant for purposes of the fair use analysis. See Section IV(B)(5) below.


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Second, although the Song itself is a creative work, the three words that were

actually used are not particularly creative – they consist of “thank you” in Japanese

and adding an “o” to the word “robot” so that it rhymes with “arigato.” Moreover, the

fact that the Song was long ago published along with the transformative nature of the

use trumps any weight that might be given to Plaintiff under the second fair use factor.

Third, the amount used of the Song is miniscule and the Film uses only those

words necessary to conjure up the Song so the audience can understand the parody.

Finally, the use simply cannot be deemed to have usurped or adversely affected the

market for the Song. Indeed, it is more likely that reference to this iconic song from

the 1980s would reinvigorate interest in the Song, thereby enhancing the market for it.

The fair use doctrine is an integral part of the policy of the Copyright Act to

foster and support the creation of new works. Indeed, protecting and allowing proper

fair uses is not just a statutory protection – it is a Constitutional requirement for the

Copyright Act’s validity under the First Amendment. See Eldred v. Ashcroft, 537 U.S.

186, 220 (2003) (“copyright law contains built-in First Amendment accommodations”

such as the idea/expression dichotomy and the fair use defense which “allows the

public to use not only the facts and ideas contained in a copyrighted work, but also

expression itself in certain circumstances” such as “for parody”); Campbell v. Acuff-

Rose Music, Inc., 510 U.S. 569, 574-75 (1994).

When authors and other creators such as film makers set about to create new

works, they are shaped by their perception of our culture and its well-known iconic

works, phrases and references. See Mark Sableman, Artistic Expression Today: Can

Artists Use the Language of our Culture, 52 St. Louis U.L.J. 187, 193 (2007).

Because it is generally accepted that art builds upon and comments upon previous

works, the fair use doctrine must be carefully and appropriately applied to stave off the

“danger that overprotection of commercial interests will stifle and limit expression that

employs the language and symbols of our popular culture.” Id. at 192-193.


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In today’s society, people frequently speak the language of iconic trademarks,

songs, films and other works as a basic form of communication and such reference

must be protected by the fair use doctrine.8 Indeed, even courts are not immune from

this mode of protected expression. See Gorbach v. Reno, 219 F.3d 1087, 1095 (9th

Cir. 2000) (quoting Beatles and Gershwin in stating there is “no general principle that

what one can do, one can undo. It sounds good, just as the Beatles’ lyrics ‘Nothing

you can know that isn’t known / nothing you can see that isn’t shown / Nowhere you

can be that isn’t where you’re meant to be,” sound good. But as Sportin’ Life said, ‘It

ain’t necessarily so’”); Kahn v. I.N.S., 36 F.3d 1412, 1423 (9th Cir. 1994) (“[s]ome

may agree with the Beatles that ‘All You Need is Love,’ but in our society people still

regularly get married as a means of formalizing their commitment to each other”); In

re Smith, 352 B.R. 702, 703 (9th Cir. 2006) (“[t]his matter is reminiscent of that old

Beatles’ standard, ‘The Long and Winding Road,’ a brooding song about a road that

never ends. One can hope that, with this opinion, the end of the road is indeed in

sight” and then quotes lyrics to the song in a footnote).9

The fair use doctrine allows the use of such vernacular without the threat of

liability. Accordingly, Plaintiff’s claim is barred as a matter of law. Morever, no

amendment will save the claim and thus the action should be dismissed with prejudice.

8 Indeed, the Song itself makes reference to corporate symbols: “My heart is human, my blood is boiling, my brain I.B.M.” LDB Decl. . ¶¶ 4-5, Exs. C-D (emphasis added). 9 See also Dept. of Corrections v. Daughtry, 954 So.2d 659, 664 (Fla. Dist. Ct. App. 2007) (quoting Hotel California by the Eagles in expressing concern that county jail will be converted “into the mythical Hotel California, where the defendant is ‘free to check out any time [he wants], but [he] can never leave’”); U.S, v. McPhee, 336 F.3d 1269, 1276, n.9 (11th Cir.2003) (quoting Simon & Garfunkel’s I Am A Rock in stating that “in the metaphysical sense, we can discern no reason why something could not be both a rock and an island at the same time” and then reciting the entire lyrics to the song); In re Allstate County Mutual Ins. Co., 85 S.W.3d 193, 200 (Tex. 2002) (quoting lyrics from Beatles’ Yesterday and stating that the “Court obviously believes in yesterday, because its opinion revives a concept we expressly disapproved”); Smith v. Bd. of Horse Racing, 288 Mont. 249, 253 (Mont.1998) (stating that party might not get what he wanted and thus “like Mick Jagger, [he] will be lamenting ‘I can’t get no satisfaction’”); Portnoy v. Texas Int. Airlines, Inc., 678 F.2d 695, 698 (7th Cir. 1982) (“as Duke Ellington said, ‘It don’t mean a thing if it ain’t got that swing’”).


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IV. STANDARD FOR A MOTION TO DISMISS

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims

asserted in the complaint. Pegasus Holdings v. Veterinary Centers of America, Inc.,

38 F. Supp.2d 1158, 1159-60 (C.D. Cal. 1998). The scope of review on a motion

under Rule 12(b)(6) is generally limited to the content of the complaint. Id. The Court

may, however, consider exhibits submitted or referenced in the complaint and matters

that may be judicially noticed pursuant to Federal Rule of Evidence 201. Id. at 1160.

Further, “documents specifically referred to in a complaint, though not physically

attached to the pleading, may be considered where authenticity is unquestioned.” Daly

v. Viacom, Inc., 238 F. Supp. 2d 1118, 1121-22 (N.D. Cal. 2002) (court considered

television program referenced in, but not attached to, complaint); Burnett v. Twentieth

Century Fox Film Corp., 491 F. Supp. 2d 962, 966 (C.D. Cal. 2007) (reviewing two

works referenced in the complaint and holding, on Motion to Dismiss, that claim was

barred by the fair use doctrine). Here, the Song Mr. Roboto from the Styx album

KILROY WAS HERE and the Film KICKIN’ IT OLD SKOOL are referenced in paragraphs

12 and 19 of the Complaint, respectively. Pursuant to Defendants’ concurrently filed

Request for Judicial Notice, those works can be considered on this Motion.

“Dismissal under Rule 12(b)(6) is appropriate when it is clear that no relief

could be granted under any set of facts that could be proven consistent with the

allegations set forth in the complaint.” Burnett, supra (citation omitted). Although

allegations of material fact must be accepted as true, “[c]onclusory allegations of law

and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to

state a claim.” In re VeriFone Sec. Litig., 11 F.3d 865, 868 (9th Cir. 1993).

Further, leave to amend should not be granted where additional facts will not

cure the defects in the complaint, thereby rendering it futile. Burnett, 491 F. Supp. 2d

at 966, 971-2. As shown below, Plaintiff’s complaint is futile and should be dismissed

without leave to amend.


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V. PLAINTIFF’S CLAIM FAILS AS A MATTER OF LAW

A. Plaintiff Cannot Make A Prima Facie Case For Copyright

Infringement Since Defendants’ Use Was De Minimis.

A de minimis use will not give rise to copyright infringement liability. “For an

unauthorized use of a copyrighted work to be actionable, the use must be significant

enough to constitute infringement. This means that even where the fact of copying is

conceded, no legal consequences will follow from that fact unless the copying is

substantial.” Newton v. Diamond, 388 F.3d 1189, 1192 (9th Cir. 2004) (internal cites

omitted) (holding that use of six second, three note segment of composition was de

minimis). This principle is based on the legal maxim de minimis non curat lex, “often

rendered as, ‘the law does not concern itself with trifles.’” Id. The de minimis

doctrine is an important limitation on liability under the copyright laws: “If copyright

owners’ rights extend to all uses of their works, no matter how minor or fleeting, the

inherent coercive power of monopolies would be realized not only in anticompetitive

ways but also in ways injurious to the public interest.” 3 Patry, Patry on Copyright,

§ 9:60 at 9-145 (2007).

Thus, a use that is de minimis and falls below the quantitative threshold of

substantial similarity required to maintain a copyright action will not be subject to

liability. Sandoval v. New Line Cinema Corp., 147 F.3d 215, 217 (2nd Cir. 1998) (use

of photographs shown out of focus for 35.6 seconds in a full length film was de

minimis). To determine this threshold, courts look to the amount of material that was

copied, the length of time the work appears in the allegedly infringing work and its

prominence in that work. Id.

Here, there is a seven (7) second exchange between the characters Justin and

Aki when they are practicing a robot style dance: “Aki it’s time to say Domo Arigato

and find your inner Roboto” and then the characters each say “Domo.” See LDB

Decl., Ex. A. at 45:57-46:04. Only three words from the Song are used and they are

not used in the order in which they appear in the Song. See LDB Decl. Exs. C-D. This


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fragmented use of three words from the Song is fleeting at best and well below the

quantitative threshold of substantial similarity required to maintain a copyright action.

Sandoval, supra, 147 F.3d at 217.10

If the Court determines Defendants’ use was de minimis, then it is unnecessary

for the Court to undertake a fair use analysis since no claim for copyright infringement

will lie. Sandoval, supra, 147 F.3d at 217. The Court should examine the fair use

doctrine “only if the de minimis threshold for actionable copying has been exceeded.”

Gordon v. Nextel Communications, 345 F.3d 922, 924 (6th Cir. 2003). Here, there is

no need to examine the fair use doctrine because the use was de minimis. Accordingly,

Plaintiff’s claim fails as a matter of law.

B. Plaintiff’s Claim Is Barred By The Doctrine Of Fair Use.

If the Court determines that Defendants’ use of three words from the Song was

not de minimis, Plaintiff’s claim still fails as matter of law under the fair use doctrine.

Not all uses of copyrighted material require the permission of the copyright owner. In

particular, the fair use doctrine “permits the use of copyrighted works without the

copyright owner’s consent under certain situations.” Perfect 10, Inc. v. Amazon.com,

Inc., 487 F.3d 701, 719 (9th Cir. 2007); 4 Nimmer on Copyright, § 13.05 at 13-155

(2005) (“Nimmer”) (“the courts have long recognized that certain acts of copying are

defensible as ‘fair use’”). The fair use doctrine “encourages and allows the

development of new ideas that build on earlier ones” and is designed to “avoid rigid

application of the copyright statute when, on occasion, it would stifle the very

creativity which that law is designed to foster.” Perfect 10, supra (citation omitted).

Thus, the fair use doctrine necessarily limits copyright protection because “[i]n truth,

in literature, in science and in art, there are, and can be, few, if any, things which in an

abstract sense, are strictly new and original throughout. Every book in literature,

10 Indeed, the phrase “Domo Arigato, Mr. Roboto” by itself is not subject to copyright protection. Butler v. Target Corp., 323 F. Supp. 2d 1052, 1059 n. 4 (2004) (“’[W]ords and short phrases such as names, titles and slogans’ are not subject to copyright protection”) (quoting 37 C.F.R. §202.1(a)).


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science and art, borrows, and must necessarily borrow, and use much which was well

known and used before.” Campbell, 510 U.S. at 575 (citations omitted).

The Copyright Act of 1976 provides the framework for determining when the

fair use of a copyrighted work shields a defendant from liability. It sets forth that “the

fair use of a copyrighted work … for purposes such as criticism [or] comment… is not

an infringement of copyright.” 17 U.S.C. § 107. In particular, in the legislative notes

that accompanied the fair use provision, Congress listed examples of the “sort of

activities the courts might regard as fair use” and “named parody as one of these

activities.” Fisher v. Dees, 794 F.2d 432, 435 (9th Cir. 1986); see also Kelly v. Arriba

Soft Corporation, 336 F.3d 811, 820 (9th Cir. 2003) ( “To preserve the potential future

use of artistic works for purposes of teaching, research, criticism, and news reporting,

Congress created the fair use exception”).

In determining whether a use made of a work in any particular case is a fair use,

Courts are to consider four 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 statute

provides general guidance for a “case-by-case analysis” of the four factors, which are

not to be treated in isolation, but to be explored and weighed together in light of the

copyright law’s purpose “to promote the progress of science and art by protecting

artistic and scientific works while encouraging the development and evolution of new

works.” Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792, 799-800 (9th

Cir. 2003) (citing Campbell, supra, 510 U.S. at 577).

The Court can conduct this analysis where the facts are presumed and may do so

on a motion to dismiss. Burnett, supra, 491 F.Supp.2d at 967, 972 (motion to dismiss

granted without leave to amend because plaintiff’s claims were barred by the fair use

doctrine). Ultimate conclusions to be drawn from facts pertaining to fair use are legal


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in nature and may be made by the court. Fisher, 794 F.2d at 436; Burnett, 491 F.

Supp. 2d at 967. Although Defendants do not concede the facts alleged by Plaintiff,

but assume them to be true for purposes of this motion only, even accepting Plaintiff’s

allegations, its copyright infringement claim is barred by the fair use doctrine.

1. The First Factor, The Purpose And Character Of The Use,

Favors Defendants Because The Use Was For A

Transformative And Expressive Parody The most important inquiry in reviewing the first factor is determining whether

the use of the copyrighted work is “transformative.” Perfect 10, 487 F.3d at 720 (“The

central purpose of [the first fair use factor] inquiry is to determine whether and to what

extent the new work is ‘transformative’”). A work is transformative when the new

work does not “merely supersede the objects of the original creation” but rather “adds

something new, with a further purpose or different character, altering the first with

new expression, meaning, or message.” Campbell, 510 U.S. at 579. A use will be

considered transformative where the defendant “changes a plaintiff’s copyrighted work

or uses the plaintiff’s copyrighted work in a different context such that the plaintiff’s

work is transformed into a new creation.” Perfect 10, 487 F.3d at 721 (citation

omitted); Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609 (2nd

Cir. 2006) (use of concert posters as historical artifacts in a biography about the

musical group Grateful Dead was transformative). Even the making of an exact copy

of a work “may be transformative so long as the copy serves a different function than

the original work.” Perfect 10, 487 F.3d at 721-722.

When, as here, the copyrighted work is used as raw material to further distinct

creative or communicative objectives, the use is transformative. Blanch v. Koons, 467

F.3d 244 (2nd Cir. 2006) (use of photograph in a collage painting was transformative

fair use). The creation of transformative works furthers the goal of copyright to

promote science and the arts and fosters the breathing space for authors guaranteed by

the fair use doctrine. Campbell, 510 U.S. at 579.


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In particular, parody, like other forms of comment or criticism, is a form of fair

use because it is transformative in the sense that it creates a new work by shedding

light on an earlier work, but in a humorous way. Campbell, 510 U.S. at 579; Burnett,

491 F. Supp. 2d at 967 (“Among the various forms of ‘transformative use’ is that of

parody”). A parody is a “literary or artistic work that imitates the characteristic style

of an author or a work for comic effect or ridicule,” or a “composition in prose or

verse in which the characteristic turns of thought and phrase in an author or class of

authors are imitated in such a way as to make them appear ridiculous.” Campbell, 510

U.S. at 580 (footnotes omitted). Parody uses elements of a prior author’s work to

“conjure up” the original as a known facet of modern culture and adds something new

for humorous effect or commentary. Elsmere Music, Inc. v. National Broadcasting

Co., 623 F.2d 252, n.1 (2nd Cir. 1980) (use of tune I Love New York for a Saturday

Night Live comedy sketch I Love Sodom was fair use).

Here, the use by the character Justin in the Film of the phrase “Aki, it’s time to

say Domo Arigato and find your inner Roboto” followed by Justin and Aki both

repeating the words “domo” “conjures up” the 1983 song Mr. Roboto for the purpose

of parodying not only the Song, but the known iconic catchphrases of the 1980s. The

Song was an obvious social commentary on the serious perceived threat of machines

replacing man, while the scene pokes fun at this ominous warning by suggesting that

Justin cannot teach Aki how to dance, but a cartoonish toy robot can do so. The

juxtaposition of Justin’s serious admonition to Aki that he “find his inner roboto” with

the introduction of the toy robot dance instructor clearly mocks the serious Orwellian

undertones of the Song. Moreover, since much of the humor surrounding the Aki

character is aimed at his Asian heritage, this enhances the parodic nature of the

reference in light of the fact that the Song is known for its use of the common Japanese

phrase, “Domo Arigato”, which means “Thank you” or “Thank you very much.”

Accordingly, because the use at issue was a transformative parody of the Song and the

icons of the 1980s, the first factor strongly favors Defendants. Fisher, 794 F.2d at 437


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(29 second song “When Sonny Sniffs Glue” in a 40 minute comedy album that

parodied the ballad “When Sunny Gets Blue” deemed a fair use).11

2. The Second Factor, The Nature of the Copyrighted Work,

Either Carries No Weight Or Favors Defendants The second factor looks at the nature of the work that was copied, particularly at

whether the work was creative or factual/historical and whether the copied work was

previously published. Perfect 10, 487 F.3d at 723. Here, although the Song might be

deemed creative, the elements used from it – the three words “domo” “arigato” and

“roboto” – are not particularly creative. Moreover, the Song was long ago published.

More importantly, the second factor is “of limited usefulness where the creative

work of art is being used for a transformative purpose.” Bill Graham Archives, 448

F.3d at 612 (reproductions of posters reduced in size and displayed with others

throughout a book was fair use). The Supreme Court has held that the second factor

“is not much help” in resolving a parody case “since parodies almost invariably copy

publicly known, expressive works.” Campbell, 510 U.S. at 586. Thus, the court

concluded that the copying of the lyrics and music from a creative famous song for a

parodic purpose mattered little in the fair use analysis. Id. Limited weight is given to

the second fair use factor when the defendant uses the original work in a

transformative manner to comment on its social and aesthetic meaning rather than to

11 The fact that the Film was released commercially does not prohibit a finding of fair use. “If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching scholarship, and research, since these activities are generally conducted for profit in this country.” Campbell, 510 U.S. at 584 (citations omitted). Indeed, “many parodies distributed commercially may be more in the nature of an editorial or social commentary than an attempt to capitalize financially on the plaintiff’s original work.” Fisher, 794 F.2d at 437; Mattel, 353 F.3d at 803 (fair use found even though defendant “had a commercial expectation and presumably hoped to find a market” for his work). Moreover, the transformative nature of a use typically outweighs any commerciality. Kelly, 336 F.3d at 818 (“The more transformative the new work, the less important the other factors, including commercialism, become”); Perfect 10, 487 F.3d at 723 (“holding that “the significantly transformative nature” of the use outweighed the commercial aspect of the use); Blanch, 467 F.3d at 254 (because defendant’s work was “substantially transformative” court “properly discounted the secondary commercial nature of the use”).


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exploit its creative virtues. Blanch, 467 F.3d at 257. Thus, overall, the “second factor

more typically recedes into insignificance in the greater fair use calculus.” Nimmer

§ 13.05[A][2][a]; Mattel, 353 F.3d at 803 (noting that the second factor “typically has

not been terribly significant in the overall fair use balancing”).

Here, because the use of three words from the Song was for the purpose of a

transformative parody, the second factor either favors Defendants or should be given

no weight at all in the overall fair use analysis.

3. The Third Factor, The Amount and Substantiality Of The Use,

Favors Defendants The third factor asks whether the amount and substantiality of the portion used

in relation to the copyrighted work as a whole was “reasonable in relation to the

purpose of the copying.” Campbell, 510 U.S. at 586. “[T]he enquiry will harken back

to the first of the statutory factors, for … the extent of permissible copying varies with

the purpose and character of the use.” Id. “Parody’s humor, or in any event its

comment, necessarily springs from recognizable allusion to its object through distorted

imitation. Its art lies in the tension between a known original and its parodic twin.

When parody takes aim at a particular original work, the parody must be able to

‘conjure up’ at least enough of that original to make the object of its critical wit

recognizable.” Campbell, 510 U.S. at 588, citing Elsmere, 623 F.2d at 253, n.1.12

“What makes for this recognition is quotation of the original’s most distinctive and

memorable features, which the parodist can be sure the audience will know.” Id.

Defendants may take the “heart” of the work to conjure up the Song for parody. Id.

Here, Defendant’s use of three words from the Song can hardly be considered

quantitatively substantial. The barest reference to “Domo Arigato” and “roboto” was

12 In Elsmere, the cast members of Saturday Night Live sang an eighteen-second parody of the song “I Love New York” using the words “I Love Sodom” repeated several times. The court found this was a fair use, holding that the portions used of plaintiff’s song “served both to ensure viewer recognition and to satirize the frequent broadcasting” of plaintiff’s song. Elsmere, 623 F.2d at 253.


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used to conjure up recognition of the Song. Indeed, the words were not even used in

the same sequence as they appear in the Song and the Film added additional language

in between the words that is not present anywhere in the Song. This miniscule use was

at least necessary in order for the audience to recognize the backdrop of the joke

poking fun at the Song’s ominous prediction of robots taking over for humans.

In addition, the use was not qualitatively significant. Even assuming Plaintiff

contends that “Domo Arigato, Mr. Roboto” is the “heart” of the Song, the Film never

used that line. The Song is about a particular “Mr. Roboto” who is actually the person

“Kilroy” who saves the world from robot domination. The Film, however, only says

the word “roboto” to make the silly reference to people being able to channel the

“robot” that lives inside of them to help them dance. Moreover, even assuming the use

was some portion of the “heart” of the work, the use was necessary to accomplish the

parody. See Burnett, 491 F. Supp. 2d at 970 (“there is no requirement that ‘parodists

take the bare minimum amount of copyright material necessary to conjure up the

original work’”) (citation omitted) (original emphasis). Accordingly, the third factor

strongly favors Defendants.

4. The Fourth Factor, The Effect Of The Use On The Potential

Market For Or Value Of Plaintiff’s Work, Favors Defendants The fourth factor looks at the effect of the use on the market for the plaintiff’s

work. This factor reflects the copyright law’s condemnation of the “copier who

attempts to usurp the demand for the original work.” Consumer Union of United

States, Inc. v. General Signal Corp., 724 F.2d 1044, 1050 (2nd Cir. 1983) (emphasis

added). As stated by the Second Circuit, “[t]he theory behind the copyright laws is

that creation will be discouraged if demand can be undercut by copiers. Where the

copy does not compete with the original, this concern is absent.” Id. at 1051.

Moreover, when analyzing the fourth factor, courts look at “the impact on potential

licensing revenues for traditional, reasonable, or likely to be developed markets.” Bill

Graham Archives, 448 F.3d at 614. “The economic effect of a parody … is not its


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potential to destroy or diminish the market of the original – any bad review can have

that effect – but rather whether it fulfills the demand for the original.” Fisher, 794

F.2d at 438. Infringement only occurs when a parody “supplants the original in

markets the original is aimed at, or in which the original is, or has reasonable potential

to become, commercially valuable.” Id.

When, as here, the use is a parody, “it is more likely that the new work will not

affect the market for the original in a way cognizable under this factor, that is, by

acting as a substitute for it. This is so because the parody and the original usually

serve different market functions.” Campbell, 510 U.S. at 591 (citations omitted).

“The unlikelihood that creators of imaginative works will license critical reviews or

lampoons of their own productions removes such uses from the very notion of a

potential licensing market.” Id. at 592.

The Ninth Circuit addressed this issue in Fisher when it determined that the

fourth fair use factor weighed in defendant’s favor because an original song and the

parody served different potential markets: This is not a case in which commercial substitution is likely. “When Sunny Gets Blue” is “a lyrical song concerning or relating to a woman’s feelings about lost love and her chance for … happiness again.” By contrast, the parody is a 29-second song about a woman who sniffs glue, which ends with noise and laughter mixed into the song. We do not believe that consumers desirous of hearing a romantic and nostalgic ballad such as the composers’ song would be satisfied to purchase the parody instead. Nor are those fond of parody likely to consider “When Sunny Gets Blue” a source of satisfaction. The two works do not fulfill the same demand. Consequently, the parody has no cognizable economic effect on the original.

Fisher, 794 F.2d at 438. The same analysis applies here: nobody who has any interest

in purchasing the Song is going to have that interest satiated by watching the Film and

seeing a seven-second exchange of dialogue about a breakdancer finding his “inner


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roboto” to regain his dancing skills. In fact, the opposite is likely to happen: those

watching the Film will be reminded of the iconic Song and will go out and purchase it.

See Hofheinz v. AMC Prods., Inc, 147 F. Supp. 2d 127, 140 (E.D.N.Y. 2001) (holding

that use of clips and stills in show about monster films was a fair use and that “the

Documentary may increase market demand for plaintiff’s copyrighted works . . .

defendants’ brief display of the photographs, poster, and model monsters at issue

should only increase consumer demand as well as value of those items”).

Plaintiff will likely argue that others have paid to license words from the Song

for use in movies and television, but that does not change the analysis. The simple

assertion that plaintiff may have been deprived of a licensing fee does not stave off a

finding of fair use: “a copyright holder cannot prevent others from entering fair use

markets merely by developing or licensing a market for parody, news reporting,

educational or other transformative uses of its own creative work … Copyright owners

may not preempt exploitation of transformative markets.” Bill Graham Archives, 448

F.3d at 614-615. Thus, the fourth factor strongly favors Defendants.

5. The Allegation That Defendants Sought A License For The

Song Has No Bearing On The Fair Use Analysis As set forth above (see n. 7 supra), Plaintiff alleges that KIOS sought a license

from Plaintiff to use the Song in the Film but did not obtain such a license. Cmpt.

¶¶ 16-19. KIOS could ultimately dispute that allegation – but it need not do so

because it is irrelevant for purposes of this Motion. Even assuming (as Defendants

must on this Motion) that KIOS sought permission to use the Song in the Film but did

not obtain a license, this would not stop a finding of fair use. “If the use is otherwise

fair, then no permission need be sought or granted. Thus being denied permission to

use a work does not weigh against a finding of fair use.” Campbell, 510 U.S. at 585,

n.18. “Parodists will seldom get permission from those whose works are parodied.”

Fisher, 794 F.2d at 437. “The parody defense to copyright infringement exists


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precisely to make possible a use that generally cannot be bought.” Id. (court refused to

penalize defendant for fair use of song after plaintiff expressly refused permission).

Indeed, in Bill Graham Archives, which involved the use of images of various

Grateful Dead posters in a coffee table book about the band, the publisher had

conducted substantial negotiations with the plaintiff to license the images for the book,

including exchanging fee information, but the publisher ultimately decided to use the

images without a license. The Court found that it was a protected fair use and

disregarded any argument to the contrary based on the prior licensing negotiations: “a

publisher’s willingness to pay license fees for reproduction of images does not

establish that the publisher may not, in the alternative, make fair use of those images.”

Bill Graham Archives, 448 F. 3d at 615. Therefore, whether KIOS sought but did not

obtain permission to use the Song is irrelevant in the fair use analysis.

VI. CONCLUSION

In the Song, the protagonist sings “I need control – We all need control.” LDB

Decl. Ex. C. Fortunately for the creators of the Film, as a matter of law, the copyright

law does not allow the exertion of such control over the use of three words from the

Song to parody that Song in a Film that takes aim at the icons of the 1980s. Moreover,

no amendment will save this Complaint. In re Silicon Graphics, 183 F.3d at 991

(leave to amend should be denied where such amendment to the complaint would be

futile). Accordingly, for the reasons set forth above, Defendants respectfully request

that the Court grant the Motion and dismiss Plaintiff’s Complaint with prejudice.

Dated: February 29, 2008

SPILLANE SHAEFFER ARONOFF BANDLOW LLP

By: Lincoln D. Bandlow

Attorneys for Defendants

spillane shaeffer aronoff bandlow llp

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