United States District Court, S.D. Ohio, Western Division, Dayton
Robert L. Smith, Jr., also known as Bigg Robb, doing business as Jenner Music Group, doing business as Over 25 Sounds, doing business as Bigg Robb Music, Plaintiff,
Bernard Thomas, also known as Bishop Bullwinkle, also known as Bishop Bullwinka, doing business as Beswes, doing business as Best West Publishing et al., Defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL
JUDGMENT ON COMPLAINT FOR COPYRIGHT INFRINGEMENT; ENTRY AND
ORDER DENYING MOTION TO STRIKE (DOC. 25) AND TERMINATING THIS
M. ROSE UNITED STATES DISTRICT JUDGE.
copyright infringement action was scheduled for jury trial on
February 5, 2018 at 9:00 AM. Plaintiff Robert L. Smith
(“Smith”), proceeding pro se, appeared
at the scheduled time, but Defendant Bernard Thomas
(“Thomas”), also proceeding pro se,
failed to appear. The Court held a Final Pretrial Conference
with Smith, during which he signed and submitted a Waiver of
Jury Trial (Doc. 27). The Court then dismissed the jury pool
and held a bench trial on Smith's copyright infringement
claim. Smith completed his presentation of argument and
evidence on the same day. Thomas never appeared.
two months before trial, Smith filed a Motion to Strike under
Fed.R.Civ.P. 12(f)(2), by which he sought to strike
Thomas's assertion-presumably in his response to
Smith's Motion for Summary Judgement because it does not
appear in his Answer to the Complaint-that Smith's song,
“Looking for a Country Girl, ” was not an
original work. A motion to strike under Rule 12(f) applies
only to pleadings and must be brought in response to the
offensive pleading or within 21 days of service of that
pleading. Smith's Motion to Strike fails on both counts.
In addition to those defects, the Motion to Strike is moot
since the Court has completed a bench trial, during which
Thomas failed to appear. The Motion to Strike (Doc. 25) is
to Federal Rule of Civil Procedure 52(a), based upon the
record in this case and the evidence submitted at trial, the
Court makes the following findings of fact and conclusions of
law and enters final judgement as follows.
FINDINGS OF FACT
Smith is a recording artist, recording label owner, and music
publisher who resides in Dayton, Ohio.
Smith is also known professionally as Bigg Robb.
2012, Smith wrote and recorded a song entitled “Looking
For a Country Girl”. It was released on CD, as part of
an album called “Juke Joint Music, ” in the same
Smith registered his copyright in “Looking for a
Country Girl” with the United States Copyright Office.
Thomas is a musician and performing artist, also known as
While Smith was doing a show in Tampa, Florida, in 2015, he
heard “Looking for a Country Girl” playing over
the public address system before his performance. Smith went
to the stage to see why his music was playing. He saw Thomas
singing different lyrics over the first 12 seconds of
“Looking for a Country Girl.” In the music
industry, this practice is called “sampling”
another artist's work.
Smith engaged Thomas in a conversation, during which Thomas
admitted to singing new lyrics over “Looking for a
Country Girl” for one of his own songs. Thomas also
admitted to producing a CD that included the song sampling
“Looking for a Country Girl.” Thomas was selling
copies of the CD in the park that day.
Thomas had not requested permission to use “Looking for
a Country Girl” for any purpose. Smith had never met
Thomas before and never worked with him until the show in
title of Thomas's song is “Hell 2 the Naw
Naw.” The sample from “Looking for a Country
Girl” that Thomas used in making “Hell 2 the Naw
Naw” does not contain any lyrics.
Thomas made a music video for “Hell 2 the Naw
Naw.” 11. “Hell 2 the Naw Naw” became very
popular online and deejays started playing it on the radio
Smith informed Thomas that he expected to be compensated for
Thomas's use of “Looking for a Country Girl.”
Smith and Thomas ...