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Smith v. Thomas

United States District Court, S.D. Ohio, Western Division, Dayton

March 27, 2018

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,
v.
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 CASE

          THOMAS M. ROSE UNITED STATES DISTRICT JUDGE.

         This 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.

         About 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 therefore DENIED.

         Pursuant 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.

         I. FINDINGS OF FACT

         1. Smith is a recording artist, recording label owner, and music publisher who resides in Dayton, Ohio.

         2. Smith is also known professionally as Bigg Robb.

         3. In 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 year.

         4. Smith registered his copyright in “Looking for a Country Girl” with the United States Copyright Office.

         5. Thomas is a musician and performing artist, also known as Bishop Bullwinkle.

         6. 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.

         7. 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.

         8. 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 Tampa, Florida.

         9. The 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.

         10. 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 stations.

         12. Smith informed Thomas that he expected to be compensated for Thomas's use of “Looking for a Country Girl.” Smith and Thomas ...


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