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IP/Entertainment Case Law Updates

Pickett v. Migos

District court grants motion to dismiss copyright infringement claim alleging hit song “Walk It Talk It” by Migos featuring Drake infringed rapper Leander Pickett’s song titled “Walk It Like I Talk It,” finding that lyrical phrase “walk it like I talk it” is unprotectable and that Pickett failed to register copyright in his musical composition before filing suit.

Leander Pickett, a North Carolina-based rapper, sued the members of the award-winning hip-hop group Migos (Quavious Marshall p/k/a Quavo, Kiari Cephus p/k/a Offset and Kirshnik Ball p/k/a Takeoff); their touring entity, Migos Touring, Inc.; and their record labels, Quality Control Music, LLC, and Capitol Records, LLC, asserting that Migos’ hit song “Walk It Talk It” featuring recording artist Drake infringed Pickett’s song titled “Walk It Like I Talk It.”  Pickett recorded his song in 2007 and, along with non-party Roland Bailey p/k/a DJ Folk, released it on a mixtape titled “It’s Like a Movie” in 2008. Pickett alleged that DJ Folk sold the mixtape and played it for several individuals, including Kevin “Coach K” Lee, who later co-founded Quality Control.  

Migos released the song “Walk It Talk It” featuring a performance by the multiplatinum recording artist Drake in January 2018. The district court found that based on its careful listening to the two songs, the only similarity is the use of the phrase “walk it like I talk it” in the chorus of the two songs.  

In their motion to dismiss, defendants cited 32 uses of the phrase, or slight variations, in works of popular literature, music and motion pictures before Pickett composed his song, in 2007. The court took judicial notice of all 32 instances as prior art. The court noted that these prior art examples included rap and hip-hop music, citing rapper Paul Wall’s 2005 song “March ‘n’ Step,” which featured the repeated lyrics “walk it how you talk it / [y]ou gotta walk it like you talk it”; rapper Young Jeezy’s 2006 song “3 A.M.,” which featured the lyric “I walk it how I talk it”; and rapper Wiz Khalifa’s 2007 song “Be Easy,” which featured the lyric “walk it how I talk it so I talk it how I live it.” Based on those examples of prior use, the court held that the “walk it like I talk it” lyric is not original to Pickett and is therefore not protected by copyright.

The court also agreed with defendants’ argument that Pickett had not properly registered a copyright in this allegedly infringed musical composition. The court explained that under the U.S. Supreme Court’s 2019 decision in Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, a plaintiff must “apply for registration and receive the Copyright Office’s decision on [the] application before instituting suit.” Although Pickett alleged infringement of the musical composition for his song, the copyright registration attached to his second amended complaint covered only the sound recording for Pickett’s song, not the musical composition. The court explained that a musical composition and a sound recording are “distinct aspects” of a song, each requiring registration prior to filing suit for copyright infringement of each respective work. Pickett alleged that he registered his musical composition and sound recording “in a single application,” but the court found this allegation contradicted by the registration itself, which was explicitly limited to a sound recording. The court explained that “when a document relied on in the complaint contradicts allegations in the complaint, the document, not the allegations, controls.”

Pickett argued that he sought to correct errors in his original copyright application by applying to amend the registration certificate to cover the musical composition for his work as well as the sound recording. The court rejected this argument as irrelevant, explaining that “a prematurely filed suit must be dismissed notwithstanding a plaintiff’s post-registration amendment.” Even if Pickett had amended his registration to include the musical composition of his work, the fact that he filed the infringement action before registering a copyright of his musical composition would still require dismissal.

Record label Quality Control Music, LLC, also moved to dismiss on the alternative grounds that it was not subject to personal jurisdiction in New York, as it is a Georgia corporation with a principal place of business in Atlanta. Quality Control argued that its only connection to New York was an agreement it had entered with Capitol Records, LLC, which does not specifically provide for any distribution, public performance or other exploitation in New York. The court held that although Quality Control’s agreement with Capitol does not specifically provide for any distribution, public performance or other exploitation in New York, plaintiff adequately alleged that the Migos song, in fact, was distributed and publicly performed in New York and that Quality Control had helped arrange for such distribution and performance.

Summary prepared by Tal Dickstein and Nathalie Russell