ESPN and Chick-Fil-A Move to Dismiss Copyright Infringement Lawsuit

On May 22, 2018, ESPN and Chick-Fil-A filed a brief in support of their motion to dismiss Platinum Jack Entertainment, LLC’s copyright infringement lawsuit. As we have previously covered, Platinum Jack filed a lawsuit against ESPN and Chick-Fil-A because of their allegedly impermissible use of the song entitled “Best I Had” by Drayter, from whom Platinum Jack purchased “all rights and publishing.” Now ESPN and Chick-Fil-A have moved to dismiss the lawsuit, claiming that “the complaint is a four-page pleading riddled with errors, conclusory allegations, and insufficient factual allegations about how the music in two different commercials somehow infringes Platinum Jack’s alleged copyright.”

According to the brief, “the totality of Platinum Jack’s allegations of copyright infringement” include Platinum Jack merely directing the reader to a single URL as being a “sample” of one of the two commercials at issue. According to ESPN and Chick-Fil-A, this is not enough to meet the elements of a copyright infringement claim, which include (1) “ownership of a valid copyright,” and (2) “actionable (or factual) copying . . . which is the copying of constituent elements of the work that are copyrightable.” ESPN and Chick-Fil-A argued that Platinum Jack failed to allege factual copying, including whether ESPN and Chick-Fil-A had access to Platinum Jack’s work prior to the creation of the music in the commercials. Specifically, ESPN and Chick-Fil-A argued that the complaint is “devoid of any factual allegations” and Platinum Jack made “no allegations whatsoever that would establish the essential element of access, including (a) how, when and where [Platinum Jack’s] work was made available to the public, and (b) how, when and where [ESPN and Chick-Fil-A] might have heard [Platinum Jack’s] work.”

ESPN and Chick-Fil-A also argued that that Platinum Jack failed to allege how they copied constituent elements of Platinum Jack’s work that are original and protected by copyright law. Specifically, ESPN and Chick-Fil-A argued that in Platinum Jack’s complaint explains that  Platinum Jack “is the owner of all rights and publishing” . . . and that “[those] rights include a performance of the work by the band Drayter . . . .” Further, Platinum Jack’s complaint explains that ESPN and Chick-Fil-A somehow “reproduced, synchronized, distributed, and/or publicly performed . . . a substantial portion” of Platinum Jack’s work “without authorization.” According to ESPN and Chick-Fil-A, the only factual allegation the complaint offers “in support of this conclusory assertion is a fleeting reference to a YouTube link that contains ‘a sample of’ one of the two commercials.” Thus, Platinum Jack failed to “nudge[] [its] claims across the line from conceivable to plausible,” and as such, ESPN and Chick-Fil-A argued that the copyright lawsuit should be dismissed.

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