Case 1:16-cv-04278-JSR Document 32 Filed 07/22/16 Page 1 of 31

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
MATTHEW FULKS,
Plaintiff,

Case No. 16-CV-4278 (JSR)

v.
ECF Case
BEYONC GISELLE
KNOWLES-CARTER,
SONY MUSIC ENTERTAINMENT,
PARKWOOD ENTERTAINMENT
LLC, HOME BOX OFFICE, INC., S.
CARTER ENTERPRISES, LLC, AND
BLACK PANTHER BIDCO, LTD.,
Defendants,

MOTION TO DISMISS THE SECOND AMENDED COMPLAINT

PURSUANT TO FED. R. CIV. P. 12(b)(6)

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................................................................................... ii
PRELIMINARY STATEMENT ................................................................................................. 1
FACTS ....................................................................................................................................... 2
Palinoia ................................................................................................................................ 2
The Lemonade Film ............................................................................................................... 5
The Trailer .......................................................................................................................... 11
ARGUMENT ............................................................................................................................ 11
PLAINTIFFS COMPLAINT SHOULD BE DISMISSED ........................................................ 11
I.

The Court Can Evaluate Plaintiffs Copyright Claim on a 12(b)(6) Motion ................. 11

II.

There Is No Actionable Similarity Between

Palinoia And Either The Lemonade Film Or Trailer ................................................... 12
A.

Palinoia and Lemonade Are Dissimilar in Copyrightable Expression ................. 12

B.

The Trailer Scenes Listed in the SAC Are Not Actionably Similar ..................... 14
No. 1: Graffiti And Persons With Head Down (SAC at 73(1)) ...................... 18
No. 2: Red Persons With Eyes Obscured (SAC at 73(2)) .............................. 19
No. 3: Parking Garage (SAC at 73(3)) ......................................................... 19
No. 4: Stairwell (SAC at 73(4)) .................................................................... 20
No. 5: Black And White Eyes (SAC at 73(5)) ................................................ 20
No. 6: Title Card Screens (SAC at 73(6)) ..................................................... 21
No. 7: The Grass Scene (SAC at 73(7)) ........................................................ 22
No. 8: Feet on the Street (SAC at 73(8))....................................................... 22
No. 9: Side-Lit Ominous Figures (SAC at 73(9)) .......................................... 23

CONCLUSION ......................................................................................................................... 26
i

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TABLE OF AUTHORITIES
CASES

PAGE(s)

Allen v. Scholastic,
739 F. Supp. 2d 642 (S.D.N.Y. 2011) ...................................................................................25
Andersson v. Sony Corp. of Am.,
1997 U.S. Dist. LEXIS 5948 (S.D.N.Y. May 1, 1997) ................................................... 17, 18
Bell Atl. Corp. v. Twombly,
550 U.S. 644 (2007) .............................................................................................................14
Bill Diodato Photography v. Kate Spade,
388 F. Supp. 2d 382 (S.D.N.Y. 2005) ............................................................................ passim
Blakeman v. Walt Disney Co.,
613 F. Supp. 2d 288 (E.D.N.Y. 2009) ...................................................................................25
Boisson v. Banian, Ltd.,
273 F.3d 262 (2d Cir. 2001) .................................................................................................12
Brown v. Perdue,
2005 U.S. Dist. LEXIS 15995 (S.D.N.Y. Aug. 4, 2005), affd, 177 F. Appx 121 (2d
Cir. 2006) ..............................................................................................................................14
Cabell v. Sony Pictures Entertainment, Inc.,
714 F. Supp. 2d 452 (S.D.N.Y. 2010), affd, 425 F. Appx 42 (2d Cir. 2011) ................ passim
Croak v. Saatchi & Saatchi, N. Am., Inc.,
2016 U.S. Dist. LEXIS 44350 (S.D.N.Y. Mar. 31, 2016) (Rakoff, J.) ........................ 12, 15, 24
Dean v. Cameron,
53 F. Supp. 3d 641 (S.D.N.Y. 2016) .............................................................................. passim
Franklin Mint Corp. v. National Wildlife Art Exch.,
575 F.2d 62 (2d Cir. 1978) ...................................................................................................18
Green v. Lindsey,
885 F. Supp. 469 (S.D.N.Y. 1992), affd, 9 F.3d 1537 (2d Cir. 1993) ................................... 14
Hogan v. DC Comics,
48 F. Supp. 2d 298 (S.D.N.Y. 1999) .....................................................................................14
Hayuk v. Starbucks Corp.,
2016 U.S. Dist. LEXIS 3493 (S.D.N.Y. Jan. 12, 2016) .........................................................25

ii

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CASES

PAGE(s)

Identity Arts v. Best Buy Enter. Servs., Inc.,

2007 U.S. Dist. LEXIS 32060 (N.D. Cal. Aug. 18, 2007), affd, 320 F. Appx 772
(9th Cir. 2009).......................................................................................................................25
Jones v. CBS, Inc.,
733 F. Supp. 748 (S.D.N.Y. 1990) ........................................................................................25
Jorgensen v. Epic/Sony Records,
351 F.3d 46 (2d Cir. 2003) ...................................................................................................11
Kaplan v. Stock Market Photo Agency, Inc.,
133 F. Supp. 2d 317 (S.D.N.Y. 2001) ............................................................................ passim
Kerr v. New Yorker Magazine,
63 F. Supp. 2d 320 (S.D.N.Y. 1999) ............................................................................... 17, 24
Kisch v. Ammirati & Puris Inc.,
657 F. Supp. 380 (S.D.N.Y. 1987) ........................................................................................18
Kramer v. Time Warner, Inc.,
937 F.2d 767, 774 (2d Cir. 1991) ............................................................................................6
Lewinson v. Henry Holt and Co.,
659 F. Supp. 2d 547 (S.D.N.Y. 2009) ...................................................................................25
Mattel Inc. v. Azrak-Hamway Intl Inc.,
724 F.2d 357 (2d Cir. 1983) .................................................................................................18
Mena v. Fox Entmt Grp., Inc.,
2012 U.S. Dist. LEXIS 143964 (S.D.N.Y. Sept. 29, 2012) ...................................................25
Puerto Rico v. Shell Oil Co. (In re MTBE Prods. Liab. Litig.),
2013 U.S. Dist. LEXIS 181837 (S.D.N.Y. Dec. 30, 2013).......................................................6
Odegard Inc. v. Safavieh Carpets, Inc.,
398 F. Supp. 2d 275 (S.D.N.Y. 2005) ...................................................................................24
Peter F. Gaito Architecture v. Simone Dev. Corp.,
602 F.3d 57 (2d Cir. 2010) ............................................................................................. 12, 15
Psihoyos v. National Geographic Socy,
409 F. Supp. 2d 268, 274 (S.D.N.Y. 2005) ..................................................................... 17, 23
Streetwise Maps, Inc. v. Van Dam, Inc.,
159 F.3d 739 (2d Cir. 1998) .................................................................................................12
iii

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CASES

PAGE(s)

Webb v. Stallone,
910 F. Supp. 2d 681 (S.D.N.Y. 2012) (Rakoff, J.), affd,
555 F. Appx 31 (2d Cir. 2014) .............................................................................................18
Williams v. Crichton,
84 F.3d 581 (2d Cir. 1996) ...................................................................................................14

RULE
Fed. R. Civ. P. 12(b)(6) ...............................................................................................................1

DICTIONARY
http://www.thefreedictionary.com/palinoia ................................................................................13

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Defendants Beyonc Knowles-Carter (Beyonc), Parkwood Entertainment LLC

(Parkwood), Sony Music Entertainment (Sony) and Home Box Office, Inc. (HBO)
(collectively, Defendants) respectfully submit this memorandum of law in support of their
motion to dismiss the Second Amended Complaint (SAC) of plaintiff Matthew Fulks (Fulks
or Plaintiff) pursuant to Rule 12(b)(6).
PRELIMINARY STATEMENT
Plaintiff contends that a film and promotional trailer released in connection with the
Beyonc album Lemonade infringe his copyright interests in a short film entitled Palinoia.
However, a straightforward comparison of the parties works provides a textbook example of what
does not constitute a legally cognizable claim of infringement. Indeed, the SAC describes
elements and features of the works in abstractions so broad as to be meaninglessbecause, as
even a cursory review of the parties works makes clear, at the level of copyrightable expression
the works are markedly dissimilar. Plainly aware of this problem, Plaintiff trumpets the allegation
of substantial similarity in total concept and feel. This fares no better, as the consideration of
total concept and feel is not an invitation to disregard, as the SAC does, the idea/expression
dichotomy at the very heart of copyright law. The protagonist in Plaintiffs film is a white man
who is distressed in the wake of a failed relationship, while the Defendants protagonist is an
African-American woman who progresses through stages of suspicion, denial, anger and,
ultimately, reconciliation in her relationship. Defendants film depicts its protagonists dilemma
in the context of African-American culture, it has a Southern Gothic feel, and its ending is upbeat
and joyousnone of which describes Plaintiffs film. There is no actionable similarity between
the parties works.

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FACTS
Fulks, the creative director at a Louisville, Kentucky television station, works as an
independent filmmaker. (SAC 1-2.) In 2014, he created a short film entitled Palinoia. (Id. 3.)
Beyoncs 2016 album, Lemonade (the Album), was released after a companion 58minute visual album (the Lemonade Film or Film) aired on HBO. A trailer featuring
excerpts from the Film (the Trailer) had aired prior to the Films telecast. (Id. at 21 - 25).
Plaintiff alleges that Defendants appropriated protectable authorship from [Palinoia] to
create the Lemonade Trailer and the Lemonade Film. (Id. at 27, 60.)
A copy of the Palinoia film, together with copies of the Lemonade Film and Trailer, have
been submitted for the Courts review with this brief, and descriptions of each work follow below. 1
Palinoia
Fulks describes his seven minute film as depicting the pain of a tumultuous relationship.
(FAC at 3.) Palinoia features an intersplicing of scenes and shots, most of which are repeated.
One repeating shot is that of a womans mouth with bright red lipstick (the Lips), speaking into
the yellow receiver of a telephone. We hear the woman speaking in French, and the following
English subtitles appear during the course of the film:
I can see you looking at me
Well
Do you think Im pretty?
Am I suitable for
The Bridal March?
Or too much?
That strange junction between all ears and solitude
As much as youre hoping
And pregnant with that idea
This is not that place.
Its more like
1

See Exhibits A-1, A-2 and A-3 on the DVD submitted as Exhibit A with the accompanying
Declaration of Tom J. Ferber (Ferber Dec.)
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Amelioration.
By means of
A claptrap of spiral curriculum
Do you remember when we first met?
I wandered in, in my blue dress and said hello.
You were dapper as ever and even through all the clatter
I could hear your whispering intrigue to your circle.
But those nomadic numbers changed you.
And my scribbles werent enough in light of the fake diamonds you been
courted to.
Am I not beautiful?
Are you even paying attention to me?
Really listening
Because I can hear your lungs collapsing on themselves
So I know that youre there
I knew the moment I slipped out of my blue dress and exposed myself to
you, that you would don that silly, white, winter coat and start scratching
at the walls.
So, while our entire relationship may have been counterfeit
How was I to know???
In the end, what remains important is that you question everything
So ask yourselfhonestly
Have I really been speaking another language?
The short film begins with a shot of a man sitting in a dark room, wearing headphones,
with eggshell-like eye coverings. Shots of this man (the credits indicate that four actors play Lefty
E.) are interspliced with visions of a house, sneakered feet, a dripping faucet, a shirtless man in a
gas mask and yellow overalls, and a man walking over a wire-enclosed pedestrian bridge. The
woman speaks French in the background as the English subtitles appear. We see swirls of brightlycolored dyes in water (repeated frequently with different colors). As the man and a blonde woman
face each other, we hear her ask Do you think Im pretty?
Following interspliced shots of a man entering a building and the man in the initial scene
pulling the gooey, eggshell-like coverings from his eyes, we see a man on an urban rooftop,
somewhat inebriated, bottle in hand. After further shots of the Lips, we see: a man at a bathroom

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sink, then walking and sitting in an empty hallway; the dyes suspended in water; the faucet; and
the dial of an old-fashioned AM/FM radio, followed by shots of other round objects.
We see brown, dry dirt, with a few short blades of grass, then a close-up of a mans eyes,
and then back to a man planting seeds in the dry dirt. This is followed by a close-up of a mans
face, his eyes rotating upward as streams of blood run down his forehead. A man carries a
telescope on the rooftop. A man kneels in dirt by a fragment of stone with Lefty Was Here
scratched into it. The man on the rooftop pensively smokes another cigarette, mouthing some
words. There is an upward-looking shot of a building. We then see shots of the mans hands,
holding a cigarette and typing on a typewriter interspliced with shots of the man on the rooftop.
Shots of the man in the gas mask are interspliced with a man running in a garage. Then
we see a man reclining, wearing sunglasses, followed by cacophonous sounds and a fast series of
split-second images and the Lips. Footsteps are heard. The man on the rooftop leans his head
against a wall with the words Fear not prominently displayed by the entrance. Back in the garage,
the man is running towards an exit. We see shots of a man carrying a shovel and then digging at
night interspliced with a man running in the garage and the blood streaming down the forehead.
Shots of the man in the gas mask holding a yellow fuel container are intermingled with the Lips
and the reclining, sunglass-wearing man. Rapid, skyward-looking shots of trees follow.
More cacophony accompanies shots of a man in a room with equipment and wires (the
Equipment Room) interspliced with the nocturnal digging, the dyes in water and close-ups of a
mans eyes. More shots of the man in the hallway, smoking and then laughing, are mixed with
shots of the pedestrian bridge-crosser and then a man on a staircase, followed by the Equipment
Room and cacophony. More Lips, but now we dont hear the woman speaking just cacophony.

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We see a different man on the staircase, then a shot of the typewriter, with no typist, next
to a cigarette burning in an ashtray and a candle. Back to the Equipment Room, amid more
cacophony, the man slams down a phone on which he was talking. We see a man scratching at
the words Lefty Was Here on the stone, and then the Lips, but we still cant hear the woman.
Back in the Equipment Room, the man, looking frustrated, hits his head with the phone receiver
and then bangs it on a desk. We see the Lips and hear cacophony so harsh it is hard to listen to.
The man smashes the phone, which appears to be the yellow phone into which the Lips once spoke.
Back to the man on the roof; we hear the woman speaking French in the background. We
see the smashed phone and the Lefty Was Here stone. The left and right sides of two mens
faces are juxtaposed. As the film ends, we hear the woman ask, in English: Have I really been
speaking another language? The film closes with a vibrating, shrinking white dot on a blank
screen, followed by a song and the credits.
The Lemonade Film
The Film, which is 58 minutes long, tells the story of a womans personal journey from
heartbreak to healing.

It features 11 songs from the Album, 2 connected by interludes of

dialogue/poems.3 The story has chapter headings Intuition, Denial, Anger, Apathy,
Emptiness, Accountability, Reformation, Forgiveness, Resurrection, Hope and
Redemption which evoke the Kubler-Ross stages of grief.
The first chapter, Intuition, starts with a profile of the Beyonc character (the Woman),
in a fur-type jacket, leaning her braided head on an SUV (the Braided Profile). Shots of the

The lyrics of the 11 songs in the Film are printed at Exhibit B to the Ferber Dec.
The dialogue/poems spoken in the background of the Film is included as Exhibit C to the
Ferber Dec.

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deserted, overgrown Fort Macomb in New Orleans (the Fort)4 are interspliced with the Woman
kneeling at the edge of a stage, and standing alone in tall weeds, as we hear the Albums first song,
Pray You Catch Me. Shots of old wooden plantation buildings are interspliced with shots of a
number of African-American women, who initially sit quietly together.
In Denial, the Woman stands in bare feet at the edge of a building rooftop, and falls off.
But rather than hit the ground, she plunges into an underwater scene. We see her in a submerged
bedroom, watching herself sleeping, as her off-screen voice describes her desperate feelings and
the need to know are you cheating on me? We see the doors of a grand building open as the
Woman exits, water rushing out at her feet, and she descends the stairs in a flowing golden yellow
dress. As we hear the song Hold Up (what a wicked way to treat the girl that loves you),
the Woman walks down an urban street, smiling. Someone gives her a baseball bat, with which
she smashes car windows and the top of a fire hydrant, as joyous children dance in the resulting
shower and brass bands play. The Womans destructive catharsis reaches a new level as she drives
a monster truck over parked cars.
Anger begins with a marching band and cheerleaders on a suburban street. Women
dressed in long white clothes dance on an empty garage. The picture cuts to a dingy staircase with
a broken window. The scene reverts to the shot of the Woman in the garage, staring at the SUV
(she is not leaning on it, as in the Braided Profile). Another woman sits playing a set of drums,
and we see other women walking in silhouette. The Womans voice asks Why cant you see me?

The Court can take judicial notice that Fort Macomb is a popular location included in the
National Register of Historic Places. (See
http://www.nationalregisterofhistoricplaces.com/la/orleans/state.html.) See Puerto Rico v. Shell
Oil Co. (In re MTBE Prods. Liab. Litig.), 2013 U.S. Dist. LEXIS 181837, at *16 (S.D.N.Y. Dec.
30, 2013) (Courts routinely take judicial notice of data on government websites because it is
presumed authentic and reliable.) (citing Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d
Cir. 1991).
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Everyone else can. Liquid drips onto the garage floor, and then combusts. We see another woman
bathed in white light, then the Woman singing Dont Hurt Yourself in the garage in front of the
SUV, surrounded by a number of African-American women who function as her tribe, or chorus
(the Tribe). The scene is interrupted by old footage of African-American women and the voice
of Malcolm X decrying that the most disrespected, unprotected and neglected person in
America is the Black woman. The Woman is bathed in white light in the garage.
Apathy begins with the Tribe sitting on a bus, in Yoruba-like tribal face paint, moving
in unison to the poem which the Womans voice is reciting (So what are you going to say at my
funeral now that youve killed me?...). We see the exterior of an Antebellum house where, inside,
a woman dances as the Woman sings the song Sorry. This is interspersed with shots of the Tribe
on the bus and in front of the house. There is an upbeat rhythm and dancing. We then see the
Woman singing in a Nefertiti-like hairdo and costume. The song refers to Becky with the good
hair. We see the backs of the Tribe, also with the Nefertiti-like hairdo, walking naked in a field.
Emptiness starts with a poem, a shot of damp ground and a red blanket. The Woman
sits, surrounded by flames on three sides, wearing an elaborate horned and jeweled headdress.
The Womans voiceover recites another poem (she sleeps all day.), which reflects grief at her
perceived loss and references sexual intimacy and the mystical powers of the moon. The song 6
Inch is accompanied by shots of (i) the Woman swinging a light on a cord in a dingy room and
(ii) on a bed in a white dress in (iii) a white house at night and (iv) people in the streets, as (v) the
Woman rides in the back of a limo wearing a wide-brimmed hat; and (vi) the white house is
gradually engulfed in flames, with the Woman and the elaborately-dressed Tribe in front of it.
Accountability begins with a view of the Louisiana bayou from a house. Scenes of
African-American girls trying to look grown-up are accompanied by the Womans voice reciting

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a poem that refers to the desire to imitate ones mother. We see home movie-like shots, as an
African-American man talks about being inspired by meeting the President, and referring to life in
Chiraq versus New Orleans. An ominous storm gathers in the distance. The Womans voice
recites another poem, asking her Mother dearest how he had treated her, and whether the
Woman is talking about your husband or your father? We see a childs wedding bride doll, more
home movie excerpts, shots of African-American men dancing to a New Orleans brass band and
the Woman riding a horse interspersed with the Woman singing the song Daddy Lessons
accompanied by a guitarist. We see shots of a New Orleans funeral as a jazz band plays, and then
cut to a shot of the garage, empty but for a solitary car.
Reformation begins in an empty sports stadium where a lone woman in the stands looks
at the field, with a spirit-like figure in the distance. We see the Woman, dressed in white, lying on
the playing field. The Womans voice recites a poem (He bathes me until I forget their names
and faces.Why are you afraid of love? You think its not possible for you but you are the love
of my life.) We see the Woman washed out by white light, walking, then on the porch of the
southern house, and then sleeping. The shot returns to the Woman lying on the football field. The
Tribe, led by the Woman, walks through shallow water in flowing white dresses. We hear the
song Love Drought. The Woman is lying on her back, in a chair, by the water; then she sits,
reflecting. Then we see her in the Yoruba face paint, with suggestions of some kind of ritual.
Forgiveness begins with the Woman lying at the waters edge, again with suggestions of
a ritual. In the background, the Womans voice recites another poem:
Baptize me now that reconciliation is possible
If we are gonna heal, let it be glorious.
One thousand girls raise their arms.
Do you remember being born?
Are you thankful for the hips that cracked?
the deep velvet of your mother and her mother and her mother?

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There is a curse that will be broken

We see two empty chairs in front of a fire. We see the Womans feet, bare, walking slowly on a
polished stone floor, then quick shots of a Kintsukoroi bowl, old photos, and a Nina Simone LP
by a record player. Beyonc, wearing headphones, plays a keyboard and sings Sandcastles as
we see shots of childrens drawings, a watch, and drying flowers. Then we see shots of the Woman
with her man; they are affectionate. There is reconciliation.
Resurrection begins with African-American women and girls, dressed in lavish
Antebellum gowns, preparing for a photograph. An older womans off-camera voice talks about
something being missing and the power of love and the need to call Jesus. We see shots of
various African-American women and the ruins of the Fort in which we see the Woman in a room
with an old chest and mirror. A series of African-American women and girls hold up photos of
dead sons and fathers. The song Forward plays. We see another woman, dressed in an ornate
white feathery headdress and garb, dancing with a tambourine in an empty dining room in which
the table is set, summoning spirits (the Shaman). We see the Tribe in the Yoruba face paint and
the Woman. We see a baby lying on a bed, symbolizing rebirth.
At the beginning of Hope, the Woman enters an old building. Girls and young women
enter, dressed in period clothes, and prepare a banquet. The Tribe sits on an outdoor stage, dressed
in white. The Womans voice recites a poem that refers to multiple generations of daughters.
We see shots of an older African-American woman wearing mystical-looking ornamentation (the
Mystic) and of the Woman in the ruins of the Fort. Then a large number of black women and
girls sit outdoors, waiting by a stage. The Woman appears on the stage in a flowing white dress
and sings Freedom. Shots of a young ballerina, the Tribe at an outdoor banquet table dressed in
white, a woman wearing headgear resembling a crown of thorns dons jewelry, and all the women
sitting on the limbs of a giant tree in the bayou are interspersed.
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The final chapter, Redemption, begins with women and girls gathering together for a
banquet as we hear the Woman recite a recipe for lemonade and saying Grandmother, the
alchemist, you spun gold out of his lifediscovered the antidote in your kitchen [and] passed these
instructions down to your daughter who then passed it down to her daughter. We see the Woman
playing with a little girl, and at a gathering that includes an older African-American woman. There
is an excerpt of a womans speech at her ninetieth birthday celebration. She says I had my ups
and downs but I always found the inner strength to pull myself up. I was served lemons, but made
lemonade. The Womans voice says My grandma said nothing real can be threatened. True
love brought salvation back into me. With every tear came redemptions and my torturer became
my remedy. So were gonna heal. Were gonna start again. Pull me back together again the
way you cut me in half; make the woman in doubt disappear. There are scenes of AfricanAmerican women and girls, some posing with the Woman, and of African-American couples. The
Woman walks around the abandoned Fort singing All Night, the lyrics for which include:
I found the truth beneath your lies
And true love never has to hide
Trade your broken ways for mine
Ive seen your scars and kissed your crimes
. . . .
They say true loves the greatest weapon
To win the war caused by pain
. . . .
All I wanna
Be no other
Be together
I remember
Sweet love
All night long
You know I missed your love
The song is occupied by home movie clips of the Woman and her family and of other couples and
families, as the Woman sings joyously.

10

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The Film closes with a title card reading Lemonade.

The Trailer
The 66-second trailer features a rapid succession of snippets excerpted from the Film, as
follows: The Braided Profile; a white light bulb in dark garage; the Woman in a white (wedding?)
dress washed out in harsh lighting; the Woman singing in the garage (but we cant hear her); the
Braided Profile (we hear: The past and the present merge to meet us here.); the Mystic; the
gathering storm; the Braided Profile (we hear: What are you hiding?); the line of fire on the
garage floor from combusted fluid; the Braided Profile; the woman who wears a sort of crown of
thorns; stairs in the garage; the Braided Profile (we hear Why cant you see me); the Womans
bare feet walking on stone; the Woman in the back of the limo; stairs; the Braided Profile; the
Womans face, eyes closed, then opening, in letterbox format (we hear Youre the love of my
life); the Braided Profile; the Tribe in Yoruba-like face paint on the bus; the Woman in a white
dress swinging a light by its cord; the Braided Profile (we hear wrap your legs around me);
the Woman with the baseball bat, in a yellow dress, on the street; the mansion in flames; the
Woman in weeds over her head (we hear What am I doing my love?); the Braided Profile; the
Lemonade title card (we hear Pull me in, pull me in, pull me in), then a card stating A World
Premiere Event Next Saturday 9ET/6 PT HBO.
ARGUMENT
PLAINTIFFS COMPLAINT SHOULD BE DISMISSED
I.

The Court Can Evaluate Plaintiffs Copyright Claim on a 12(b)(6) Motion

To establish copyright infringement, a plaintiff must prove that he owns a valid copyright
and that the defendant copied original elements. See Jorgensen v. Epic/Sony Records, 351 F.3d
46, 51 (2d Cir. 2003). Because not all copying constitutes infringement, [p]laintiffs must also
demonstrate substantial similarity between [the accused work] and the protectible elements of
11

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[the infringed work]. Boisson v. Banian, Ltd., 273 F.3d 262, 268 (2d Cir. 2001), quoting
Streetwise Maps, Inc. v. Van Dam, Inc., 159 F.3d 739, 747 (2d Cir. 1998) (emphasis omitted).5
As this Court recently noted, the Second Circuit has repeatedly recognized that, in certain
circumstances, it is entirely appropriate for a district court to resolve [substantial similarity] as a
matter of law, either because the similarity between two works concerns only non-copyrightable
elements of the plaintiffs work, or because no reasonable jury, properly instructed, could find that
the two works are substantially similar. Croak v. Saatchi & Saatchi, N. Am., Inc., 2016 U.S. Dist.
LEXIS 44350, at *6 (S.D.N.Y. Mar. 31, 2016) (Rakoff, J.) (Croak), quoting Peter F. Gaito
Architecture v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir. 2010) (Gaito) (affirming dismissal
on 12(b)(6) motion) (citation & quotations omitted). When a court is called upon to consider
whether the works are substantially similar, no discovery or fact-finding is typically necessary,
because what is required is only a visual comparison of the works and the works themselves
supersede and control contrary descriptions of them. Gaito, 602 F.3d at 64 (quotations omitted).
II.

There Is No Actionable Similarity Between

Palinoia And Either The Lemonade Film Or Trailer
Plaintiff alleges that both the Lemonade Film and Trailer infringe Palinoia because they

are are substantially similar to Palinoia in certain specific elements and in total concept and feel.
(SAC at 27, 34, 60, 64, 68, 71, 81, 82, 87.) However, a comparison of the parties works reveals
that there is no actionable similarity in either.
A. Palinoia and Lemonade Are Dissimilar in Copyrightable Expression
Palinoia is about a tumultuous relationship (SAC at 3) that is now over. The protagonist
is a white male and his former lover is a white blonde woman. The demise of their relationship is

For purposes of this motion only, validity of copyright and access to Palinoia are assumed.
12

Case 1:16-cv-04278-JSR Document 32 Filed 07/22/16 Page 18 of 31

oblique, and is not tied to infidelity. There is no reconciliation between the couple. Except for the
very end, the only verbal expression is the dialogue spoken in French, with the English subtitles
reproduced above. The film features a succession of abstract scenes, the meanings of which are
unclear e.g., the gas mask; the eggshell-like eye coverings; the dyes swirling in water; the
dripping faucet; planting seeds in the mound of dirt; the blood dripping down the forehead; the
typewriter; and the Lefty Was Here stone. None of these details is in Lemonade. Moreover,
Palinoia is not a dramatization of a song, let alone a whole album of songs, like Lemonade.
Unlike Palinoia, infidelity and ultimate reconciliation are the thematic core of the soulful
Lemonade. The progression of stages of grief and renewal e.g., suspicion, denial, anger,
emptiness, hope and redemption represent the heart of its drama. The protagonist is an AfricanAmerican woman who is surrounded by other African-American females (older women and girls,
as well as the Tribe) because it depicts the Womans plight in the context of African-American
culture. Thus, Malcolm X is heard decrying that the Black woman is the most neglected person
in America. And there are repeated references to and dramatizations of past and future generations,
to grandmothers, mothers and daughters, and the Woman asking her mother how the Womans
father had treated her. The setting is in and around New Orleans, the Fort and an Antebellum
plantation, which give a Southern Gothic feel. Numerous images evoke African culture and/or
mysticism, e.g., the Tribe, the Shaman, and Nefertiti. None of this is similar to Palinoia.6
The films differ markedly in total concept and feel, which focuses on mood, detail and
characterization. See Brown v. Perdue, 2005 U.S. Dist. LEXIS 15995, at *31-32 (S.D.N.Y. Aug.
4, 2005), affd, 177 F. Appx 121 (2d Cir. 2006). Lemonade is not similar to Palinoia in either its

Palinoia is defined as the compulsive repetition of an act until it is perfect. (See, e.g.,
http://www.thefreedictionary.com/palinoia.) This term does not describe Lemonades story arc.
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characterization or details. Nor is it substantially similar to Palinoia in its story or mood, because
while Palinoia depicts the white male protagonists distress over a failed past relationship,
Lemonade portrays the stages through which its African-American female protagonist goes in
connection with an existing relationship, ending in reconcilation. See, e.g., Green v. Lindsey, 885
F. Supp. 469, 482 (S.D.N.Y. 1992), affd, 9 F.3d 1537 (2d Cir. 1993) (the tonal difference is
reinforced by the two works entirely different endings).
B. The Trailer Scenes Listed in the SAC Are Not Actionably Similar
Implicitly recognizing that there is no cognizable similarity between Palinoia and the
Film, the SAC focuses on excerpts from the Film as they appear in the Trailer, identifying nine
visual similarities. (SAC at 73(1)-(9).)7 As a preliminary matter, excerpts in the 66-second
Trailer cannot be divorced from the 58-minute Film from which they are taken, and the notion
that Defendants, in making the Trailer, selected and arranged excerpts from the very dissimilar
Film to make it substantially similar to Palinoia does not pass the plausibility threshold. 8 See
Dean v. Cameron, 53 F. Supp. 3d 641, 645 (S.D.N.Y. 2016) (to survive 12(b)(6) motion,
plaintiffs claim must be plausible on its face), quoting Bell Atl. Corp. v. Twombly, 550 U.S.
644, 570 (2007). Moreover, the SAC mischaracterizes the elements in question, which are
neither substantially similar nor arranged in the same sequence as their alleged counterparts.
An examination of the allegedly substantially similar visual elements using good eyes and

The SAC renumbers paragraphs from 68 forward. References are to the first of any
duplicatively numbered paragraphs unless otherwise indicated.
8
Plaintiff has only offered a list of alleged similarities with respect to the Trailer rather than the
Film; were such a list proferred with respect to the latter, it would even more obviously be an
inherently subjective and unreliable list of random similarities, which are regularly rejected.
See Williams v. Crichton, 84 F.3d 581, 590 (2d Cir. 1996); Hogan v. DC Comics, 48 F. Supp. 2d
298, 313 (S.D.N.Y. 1999).

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common sense reveals that Plaintiff uses misleading abstractions to compare shots that are
notably dissimilar in copyrightable expression. Dean, 53 F. Supp. 3d at 650 (quoting Gaito, 602
F.3d at 66-67). When similar works resemble each other only in unprotected aspectsfor example,
when similarities inhere in ideas, which are by definition unprotected, or in expression that is not
proprietary to plaintiffdefendant prevails. Bill Diodato Photography v. Kate Spade, 388 F. Supp.
2d 382, 389-90 (S.D.N.Y. 2005) (Diodato) (applying more discerning test, extracting
unprotectible elements from consideration) (citation omitted). Courts routinely dismiss claims
where similarities exist only in this category of unprotectible subject matter; and numerous cases
that presented far greater similarity than exists in this case have been dismissed.
For example, this Courts recent decision in Croak concerned a claim that a Toyota ad
campaign featuring an oversized, stuffed unicorn-like Pegasus perched atop a RAV4 infringed the
plaintiffs sculpture of a winged, taxidermied horse bursting through the shredded roof of a car.
2016 U.S. Dist. LEXIS 44350, at *1-4. The Court explained that it is critical to bear in mind
what does not amount to infringement because ideas are unprotectible. Id. at *6 (emphasis in
original). Focusing on the parties expression, the Court found that there is almost nothing similar
between [P]laintiffs Sculpture and defendants allegedly infringing work[] because the
disparities in terms of the[] authors creative choices and their total concept and overall feel
overwhelm any superficial similarities. Id. at *10. The Court rejected the plaintiffs effort to
manufacture[] commonalities by drawing abstract parallels just as the SAC does noting that
plaintiff is seeking to turn [the ordinary observer] test on its head, asking the Court to focus on a
laundry list of technical similarities (as opposed to disparities) that an ordinary observer would be
disposed to overlook. Id. at *15-16 (emphasis in original). Finding the total concept and feel to
be dramatically different, the Court dismissed the plaintiffs claim. Id. at *17.

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In Diodato, then-District Judge Chin addressed a claim that defendant Kate Spade had used
a photograph which infringed the plaintiffs, both of which depicted the bottom of a ladies room
stall, showing a womans feet pointed inward in stylish pink shoes with criss-crossing straps and
a handbag on the floor by her left foot. 388 F. Supp. 2d at 384-385. The court noted that the idea
of showing a woman sitting on a toilet to showcase shoes may be a clever one, but that it was
hardly unique in popular culture. Id. at 384, 388. After a careful comparison of the detailed
expression of the two photographs as opposed to the unprotectible ideas portrayed the court
dismissed the complaint, finding that the idea in the plaintiffs photograph was the depiction of
a womans feet as she sits on the toilet, used as a striking device to highlight fashion accessories.
Id. at 392. The court held that numerous aspects of the plaintiffs photograph that flowed from its
idea were unprotectible scenes a faire. Thus, the legs and handbagsframed by the floor and
the bathroom walls, shoot[ing] a photograph of the bottom part of a womans legs in a
bathroom stall or on a toilet, and related elements were merely attributable to the shared idea;
the photos were not substantially similar in copyrightable expression. Id.
Similarly, Kaplan v. Stock Market Photo Agency, Inc., 133 F. Supp. 2d 317
(S.D.N.Y. 2001) (Kaplan), concerned two photographs featuring businessmen, in similar attire,
standing on a ledge or rooftop and poised to jump to a car-lined street below. The court held that
the idea of the businessperson contemplating such a leap was unprotectible and that the subject
matter of the photographs is also rendered unprotectible by the doctrine of scenes a faire. Id. at
323. The court held that the plaintiff, like other artists before and after him, has chosen to express
a businesspersons frustration with the world by portraying him at the top of a building; his
contemplation of a leap from the edge of that building is the necessary sequence of events that
follows from the chosen setting. Id. The court concluded that the elements of (i) having a subject

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stand at the top of a tall building, (ii) with his shoes partly over the edge of the building or ledge,
(iii) in a similar pinstriped suit and wing-tip shoes (i.e., a businesspersons garb), were all
unprotectible. Id. at 324-25. The court noted differences in copyrightable details, such as how
much of the subjects pant leg was showing, the difference in buildings, roads and vehicles pictured,
and that the background, perspective, lighting, shading, and color were different, giving different
feels or moods. Id. at 326-27. The court therefore dismissed the claim as a matter of law.
Courts have also consistently recognized that works are not substantially similar when the
alleged similarities between them have significant differences in expression. For example, in
Cabell v. Sony Pictures Entertainment, Inc., 714 F. Supp. 2d 452 (S.D.N.Y. 2010) (Cabell), affd,
425 F. Appx 42 (2d Cir. 2011), the plaintiff claimed that the cover of his novel, which depicted a
model with arms outstretched, holding a gold-colored blow dryer in both hands in the manner of
a handgun, was infringed by promotional images for the movie You Dont Mess With the Zohan
that featured Adam Sandler, as Zohan, in similar poses. Id. at 454-57. The court found no
substantial similarity as a matter of law because: the subjects were posed differently; they had
different hair and clothing; and the backgrounds were different. Id. at 460.9

See also Psihoyos v. National Geographic Socy, 409 F. Supp. 2d 268, 270, 274 (S.D.N.Y.
2005) (photographs of same dinosaur fossils not substantially similar); Kerr v. New Yorker
Magazine, 63 F. Supp. 2d 320, 325 (S.D.N.Y. 1999) (Kerr) (dismissing claim where
illustrations both depicted man with Mohawk haircut, in profile, with Mohawk in shape of
Manhattan skyline; noting that details such as dark olive skin, earrings and chain on plaintiffs
figure not replicated in defendants illustration, buildings in skyline were in different order, and
comparing sketchy, edgy feel of one to more serene and thoughtful impression of other);
Andersson v. Sony Corp. of Am., 1997 U.S. Dist. LEXIS 5948, at *8 (S.D.N.Y. May 1, 1997)
(Andersson) (defendants scanned plaintiffs photographs and added or subtracted elements to
create comps, or models, for their advertisements; court denied plaintiffs motion for
preliminary injunction, finding that plaintiff could not monopolize a pose); Franklin Mint
Corp. v. National Wildlife Art Exch., 575 F.2d 62, 66 (2d Cir. 1978) (despite obvious
similarities in two sketches, there were also readily apparent dissimilarities to degree that
there was no substantial similarity in expression); see, e.g. Webb v. Stallone, 910 F. Supp. 2d
681, 689 n.5 (S.D.N.Y. 2012) (Rakoff, J.) (dicta) (even numerous alleged striking similarities,
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In this case, a side-by-side comparison of Plaintiffs so-called similarities only underscores

the differences between them, and makes clear that the elements identified by Plaintiff relate to
unprotectable elements such as ideas and scenes a faire. Plaintiffs so-called visual similarities
are addressed in order below:
No. 1: Graffiti And Persons With Head Down (SAC at 73(1))
Plaintiff claims that the Trailer copies a shot from his film in which the character in each
is leaning against a stable structure, with head down, face hidden from the viewer, with handpainted graffiti words on both structures. 10 Id. Copyright law does not entitle Plaintiff to
monopolize a pose. Andersson, 1997 U.S. Dist. LEXIS 5948, at *8; see also Cabell, 714 F.
Supp. 2d at 459-60 (rejecting claim that similar poses constituted substantial similarity), citing
Mattel Inc. v. Azrak-Hamway Intl Inc., 724 F.2d 357, 360 (2d Cir. 1983); Diodato, 388 F. Supp.
2d at 392-93 (plaintiffs cannot monopolize poses and can protect only particular photographic
expressions of those poses and not the underlying ideas therefor), quoting Kisch v. Ammirati &
Puris Inc., 657 F. Supp. 380, 382 (S.D.N.Y. 1987); Kaplan, 133 F. Supp. 2d at 324-25. Moreover,
the shots are distinctly dissimilar at the level of copyrightable expression. In Palinoia, it is a shot
of a Caucasian man in a dark jacket on a rooftop, apparently leaning against the wall next to the
rooftop entrance, where there is prominently framed graffiti reading fear not. Plaintiff compares
this to the Braided Profile, in which the Woman who is African-American, has long braids and
is wearing a fur-type jacket leans forward on the SUV in the garage, where a fragment of different

including, inter alia, that both antagonists were Latin American dictators named General
Garza, were insufficient to show infringement of protectable elements), affd, 555 F. Appx 31
(2d Cir. 2014).
10
This motion has not reproduced the SACs screenshots, which are by their nature misleading.
Dean, 53 F. Supp. 3d at 646-47 (court should not consider parts of a work in isolation by, for
example, viewing isolated screen shots from a film.).
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graffiti is visible on the right side of the frame. The expression is therefore different. Dean, 53 F.
Supp. 3d at 650 (noting that allegedly similar images of trees in both works have markedly
different aesthetic from one another). Finally, where the idea being expressed concerns a
distressed lover, such a pose is an unprotectable scene a faire, because it flows naturally from and
is standard in the treatment of such a topic. See, e.g., Diodato, 388 F. Supp. 2d at 392; Kaplan,
133 F. Supp. 2d at 323-25.
No. 2: Red Persons With Eyes Obscured (SAC at 73(2))
Plaintiff next identifies two shots of individuals who are lit using a single light with a red
gel, creating a heavy contrast between red and black, with the subjects eyes intentionally
obscured. Id. The two shots in question are distinctly dissimilar. The Palinoia shot is of a man
wearing headphones with his eyes obscured with the eggshell-like eye coverings as he sits in a
dark room. The Lemonade shot is of the Woman riding in the back of a limo, as seen from the
cars rear view mirror, with her eyes obscured because the edge of her wide-brimmed hat dangles
over the top of her face. It is precisely when there are such clear differences in detailed expression
that there is no actionable similarity. See, e.g., Cabell, 714 F. Supp. 2d at 459-60 (noting
differences in pose, hair, clothing and backgrounds).
No. 3: Parking Garage (SAC at 73(3))
Plaintiff next complains of allegedly similar images of parking garages, filmed with wide
shots, looking from one end of the garage to another in which [b]oth shots feature garages with
repeating ceiling light fixtures and columns with the lower halves painted yellow and share
similar color contrast between yellow and blue hues. Id. Shots of parking garages are hardly
original to Plaintiff, and he does not attempt to claim credit for designing the blue and yellow color
scheme of the columns, which is common to many garages. Moreover, the composition and

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aesthetic of the shots are different: the Palinoia image features a straight-ahead shot of a garage
with numerous, equally-spaced small round lights and square columns in which the garage floor
takes up almost half the frame, with bright lights along the ceiling leading the viewers eye along
the length of the garage to its rear wall and an exit sign; the Lemonade shot, from the end of the
Accountability chapter, is coming around a turn in a garage which has round columns and a
handful of long fluorescent lights and which is empty but for a solitary car. The angle of the shot
is different. The images are not similar. See Kaplan, 133 F. Supp. 2d at 327 (noting differences
in how two photographs depicted street and traffic).
No. 4: Stairwell (SAC at 73(4))
Plaintiff complains that both parties works feature shots of dimly lit stairwells featuring
worn, gritty, concrete stairs with handrails. Id. Again, not only are shots of stairs not original or
proprietary to Plaintiff, but the referenced images are different. The Palinoia image is looking
down a brownish, sepia-toned stairwell with the handrail and vertical bars prominently featured,
while the Lemonade image shows a side view of a bluish-toned set of stairs which contrast with
the light of a window above and an old brick wall below. Plaintiff cannot monopolize shots of
stairs any more than a pose.
No. 5: Black And White Eyes (SAC at 73(5))
Plaintiffs fifth alleged visual similarity concerns shots of the main characters face, with
a blank expression, staring directly into the camera. The screenshots presented in the SAC
allegedly both show the tops and bottoms of the subjects heads [] cut-off in the frames.11

11

Plaintiff also claims that both feature black and white photography. Id. He says that this is
the only black and white scene in Palinoia, and one of three in the Trailer which, while
already acknowledging that the latter is not the sole such shot in the Trailer, avoids referring to
the number of black and white scenes in the Lemonade Film, which are numerous. Thus, while
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Plaintiffs characterization is misleading; the scenes in question are not substantially similar. The
Palinoia shot is of the white male protagonists eyes and most of his nose, and in the scene being
depicted from which the SAC has studiously isolated the frame the mans eyes rotate as lines
of blood roll down his forehead. The shot of his eyes and top of his nose fill the frame. In contrast,
the shot from Lemonade is a more complete shot of a black womans face and hair, with only the
very bottom of her chin and top of her forehead cut off because the shot is presented in letterbox
format (which is not how Plaintiffs shot is presented). The Womans head does not fill the frame;
there is an almost white background. See Diodato, 388 F. Supp. at 393 (noting different elements
constituting expression of idea, including lighting and background); Cabell, 714 F. Supp. 2d at 460
(noting different backgrounds). Importantly, it is only by isolating the shot from the Lemonade
Film and Trailer that Plaintiff can describe the respective characters as staring directly into the
camera. In actuality, the frame reproduced in the SAC fails to show that the Woman had her eyes
closed before she opened them. See Dean, 53 F. Supp. 3d at 646-47 (court should not consider
parts of a work in isolation by, for example, viewing isolated screen shots from a film).
No. 6: Title Card Screens (SAC at 73(6))
Plaintiffs sixth alleged visual similarity asserts that both parties works feature title card
screens using only white text on a solid dark color background, with the titles centered, in capital
letters, and in strikingly similar fonts. Id. This, again, overreaches. First, Plaintiff describes
the backgrounds as dark, conspicuously ignoring the difference in colors: Plaintiffs background
is blue, while Defendants is black. Second, Plaintiff cannot seriously claim that the ideas of using
a dark background with white lettering (a white background would make no sense), or centering a

Plaintiffs only such scene is presumably meant to stand out as black and white, the Lemonade
scene has no such distinction within the context of the Film and Trailer.
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title are either protectable or original to him. Third, the fonts are not the same: Lemonade (no
period) is in Helvetica; Palinoia. (with a period) is not. Finally, as noted on the time clocks in
the SAC, the title card appears at the beginning of Palinoia but at the end of Lemonade.
No. 7: The Grass Scene (SAC at 73(7))
Plaintiff next produces screenshots allegedly featuring a center subject (in [Palinoia] a
mound of earth and in [the Trailer] a human subject) surrounded by overgrown grass. Id. The
scenes to which the SAC refers are totally different. Significantly, the SAC admits that the socalled center subject is different in the two scenes: a mound of earth versus the Woman. In
Palinoia, the white male protagonists hands plant seeds in brown, dry dirt, with a few short green
weeds or blades of grass. The shot from Lemonade depicts the Woman her head and upper body,
not her hands walking, pensively, in tall weeds that are over her head! That Plaintiff claims such
markedly different scenes to be similar only underscores the overreaching nature of his claim.
No. 8: Feet on the Street (SAC at 73(8))
Plaintiff next claims that both parties works feature close-up shots of human feet shot
from the middle of the leg down, with identical framing where the feet are framed in the center
both horizontally and vertically, and that [b]oth images include strong contrast between light
and dark, with shadows cast on the feet. Again, these scenes are distinctly dissimilar. The
Palinoia scene shows most of a persons legs (probably male, from mid-thigh down), apparently
clad in jeans with sneakers on his feet, jumping or dancing on striated pavement with some kind
of wall or barrier obscured in dark shadows behind him, and a shadow cast directly to his right
because of light coming from his left. The Lemonade shot shows the Womans bare feet (and
ankles) walking slowly toward the camera on polished stone. Contrary to the SACs description,
these are not feet on the street, nor are there sneakers, jeans, or jumping/dancing. See Kaplan,

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133 F. Supp. 2d at 326 (noting substantial differences in details where plaintiff alleged similarity
based on, inter alia, similar shot of businessmans lower pant legs and shoes); Psihoyos, 409 F.
Supp. 2d at 277 (noting difference in shadows in two photographs). As to Plaintiffs assertion that
both are shots where the feet are framed in the center both horizontally and vertically, one would
expect a shot of a subject who is walking, jumping or dancing to fit that description, and there is
nothing protectable about that convention. As in Kaplan, 133 F. Supp. 2d at 326-27, and Diodato,
388 F. Supp. 2d at 392-93 (concerning similar posing of womens feet as she sits on toilet), there
is no cognizable similarity between the identified images.
No. 9: Side-Lit Ominous Figures (SAC at 73(9))
The final example of Plaintiffs propensity for claiming similarity where none exists is his
assertion that both works have wide shots where the central subject is in the center of the frame,
with their feet cut-off and lit from the right in a manner that obscures the faces for an ominous
effect. Id. The Palinoia shot is from a daytime scene in which the male protagonist (presumably)
is in yellow overalls, rubber gloves (and apparently high rubber boots, with feet not cut off),
holding a large container, with a fence and building in the background. The Lemonade shot is a
dark, nighttime shot of the Woman in a white wedding dress (so no part of her legs are visible) and
wide necklace, washed out in garish bright light. They are utterly dissimilar. See Kaplan, 133 F.
Supp. 2d at 327 (noting differences in lighting, shading and color). As in Cabell, 714 F. Supp.
2d 452, there is no similarity as a matter of law.
*

As is demonstrated above, Plaintiffs alleged visual similarities are based on general

ideas, settings and a perception of similarity at a level of abstraction that is not protected under the
law. Each referenced scene is dissimilar at the level of copyrightable expression, and courts have

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rejected infringement claims in contexts with significantly more similar visual elements than
there are here (e.g., Croak, Diodato, Kaplan and Kerr ).12
To the extent Plaintiff alleges that the allegedly similar excerpts in the Trailer copy the way
in which he arranged his visual elements (SAC at 18, 80), that too fails because the sequence
in which they appear is also completely different. The sequence in which the nine allegedly similar
visual elements appear in Palinoia and in the Trailer is as follows:
Lemonade Trailer
Visual Element 1 (00:00)
Visual Element 9 (00:06)
Visual Element 3 (00:07)
Visual Element 4 (00:24)
Visual Element 8 (00:29)
Visual Element 2 (00:30)
Visual Element 5 (00:39)
Visual Element 7 (00:51)
Visual Element 6 (00:57)

Palinoia
Visual Element 6 (00:09)
Visual Element 2 (00:12)
Visual Element 8 (00:18)
Visual Element 9 (00:25)
Visual Element 7 (02:00)
Visual Element 5 (02:03)
Visual Element 3 (03:34)
Visual Element 1 (03:54)
Visual Element 4 (04:43)

Plaintiffs effort to cobble together footage and images in a manner divorced from the way in
which they were originally structured cannot form the basis for a copyright claim. See, e.g.
Odegard Inc. v. Safavieh Carpets, Inc., 398 F. Supp. 2d 275, 281 (S.D.N.Y. 2005) (different
selection and arrangement of non-copyrightable elements in rugs).
There is also no actionable similarity in pace between the works. To the extent Plaintiff
argues similarity due to he Trailers rapid change of excerpts from the Lemonade Film (see SAC
at 16, 78), that is standard fare for trailers. See Identity Arts v. Best Buy Enter. Servs., Inc.,
2007 U.S. Dist. LEXIS 32060, at *46 (N.D. Cal. Aug. 18, 2007), affd, 320 F. Appx 772 (9th Cir.

12

Plaintiffs allegations concerning similarities in audio voice over and auditory timing
(SAC at 75-76) are equally meritless. While Plaintiff complains that Lemonade uses a voice
over reciting poetry in the background, voiceovers are common in film and television and
are therefore neither original to Plaintiff nor protectable. What might be protectable the
specific dialogue is completely different, notwithstanding Plaintiffs claim that they both
involve themes of alienation. Id. at 76. Nor is the alleged auditory timing in which harsh
noises are separated by calmer sounds with the use of crescendos and decrescendos at
similar times actionable.
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2009) (Nearly every movie trailer involves the use of rapidly edited images). Plaintiff also
alleges that there is substantial similarity of theme because both parties works concern
destruction, alienation, heartbreak and chaos versus order. (SAC at 79.) This is not protectable
expression, but merely broad concepts which are expressed with decidedly different details in
two works that concern a distressed lovers (or, in Palinoia, former lovers) pain. See Blakeman
v. Walt Disney Co., 613 F. Supp. 2d 288, 307 (E.D.N.Y. 2009) (To say that these movies are
substantially similar because of the common theme of a Presidential election would be as irrational
as saying the movie Animal House is substantially similar to Rudy or Good Will Hunting
because the movies all focus on college life); Jones v. CBS, Inc., 733 F. Supp. 748, 753 (S.D.N.Y.
1990) (all fictional plots, when abstracted to a sufficient level of generalization, can be described
as similar to other plots).
Ultimately, just as the total concept and feel of the Lemonade Film is different from
Palinoias, so is the Trailers. See, e.g., Allen v. Scholastic, 739 F. Supp. 2d 642, 658 (S.D.N.Y.
2011) (dismissing copyright claim; no substantial similarity in total concept and feel given vast
aesthetic and substantive differences); see generally Hayuk v. Starbucks Corp., 2016 U.S. Dist.
LEXIS 3493, at *1, 11-12 (S.D.N.Y. Jan. 12, 2016) (dismissing copyright claim; the total
concept and feel inquiry is not carte blanche to rest findings of infringement on vague or
amorphous determinations), quoting Mena v. Fox Entmt Grp., Inc., 2012 U.S. Dist. LEXIS
143964, at *16 (S.D.N.Y. Sept. 29, 2012); Lewinson v. Henry Holt and Co., 659 F. Supp. 2d 547,
576 (S.D.N.Y. 2009) (dismissing complaint; noting that accepting overly broad scope for
protectable total concept and feel threatens idea/expression dichotomy, which is the basic
principal of copyright law).

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CONCLUSION
For the foregoing reasons, Defendants respectfully request that their motion to dismiss
the SAC be in all respects granted.

Dated: New York, New York

July 22, 2016
PRYOR CASHMAN LLP
By:

s/ Tom J. Ferber
Tom J. Ferber
Ross M. Bagley
7 Times Square
New York, New York 10036
(212) 421-4100
Counsel for Defendants Beyonc
Knowles-Carter, Parkwood
Entertainment LLC, Sony Music
Entertainment and Home Box Office,
Inc.

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