District court grants motion to dismiss copyright infringement action, finding that plaintiff composer failed to sufficiently allege either direct or circumstantial evidence that defendants actually copied five-note melody from his composition used in advertisements for Febreze.
In 1982, plaintiff Cameron Cates composed the song “She Loves Her Job.” In 2021, Cates learned that defendants—Jared Shlemovitz d/b/a Junto Sounds, Procter & Gamble Corp. d/b/a Febreze, Grey Advertising Corp. and WPP Group USA Inc. — had created in 2017 a series of Febreze advertisements that used a five-note phrase he claimed was strikingly similar to a “five note melodic hook” in his composition. Defendants’ advertisements were featured in television, radio and streaming commercial broadcasts. Defendants also created an album of eight “multi-genre songs of pop, hip-hop, and rap,” known as The Freshness, that Cates claimed included melodic phrases resembling portions of his song. Cates sued defendants for copyright infringement, proceeding pro se. On defendants’ motion, the district court dismissed the complaint but granted Cates leave to amend.
The district court ’s decision turned on Cates’ failure to sufficiently allege, either through direct or circumstantial evidence, actual copying of original constituent elements of his work by defendants. First, Cates did not allege any direct evidence that defendants actually copied his composition. Second, Cates did not provide sufficient circumstantial evidence of copying, because he neither provided an account of a chain of events whereby defendants would even have had an opportunity to see the composition nor pleaded any facts relating to the dissemination of his composition. The fact that the composition had been filed with the Copyright Office was insufficient to support the allegation that defendants had access to it.
Given that Cates filed suit pro se, the court granted him leave to amend in order to plead facts showing either a chain of events that would have given defendants access to his composition or that the composition was widely disseminated.
Summary prepared by Tal Dickstein and Brandon Zamudio