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Here's what all the guys I've dated now look like to me. You may or may not have heard about them already, but either way, it's time to put a face to the "name":
My High School Boyfriend:
When we dated, he had long blond hair and was really into death metal. I broke up with him a few months into my first year at college, but we got back together when I was home for summer vacay, and then he dumped me on Halloween. He really did sort of have vampire canines which is maybe why he had braces at our ten year high school reunion. Anyway, we had a good run, but I choose to remember him as Keifer Sutherland in Lost Boys.
My college fling:
The guy I dumped my high school boyfriend for. He was really into his long board and carried a knfe with him everywhere. He loved animals. But he was also the whitest guy I've ever hooked up with. Pale skin, white blond hair. In reality, he looks a lot like Ben Foster, but in my new reality he looks exactly like Powder.
I just wrote about this guy last week. The barista I had a crush on that I hooked up with and thought was going to become my boyfriend, but then he left me for a girl he met on tour. Well, he was totally into punk and anarchy and he had tattoos everywhere which my parents weren't so crazy about. So...I choose to remember him as Ed Norton in American History X. I like to pretend that instead of an anarchist, he was a white supremacist. And instead of the words "destiny" and "love" tattooed on his arms, his body was actually covered in Swasticas. I'll admit, Ed Norton is kind of hot in American History X, but only when he gets out of jail all reformed. But I'm not talking Ed Norton post prison, I'm talking the guy in the horrific curb stomp scene that still haunts me to this day.
The redhead I met while interning at Francis Ford Coppola's short story magazine. We dated before I moved to New York, but I carried a torch long after that. (This is the guy that got in the way of me and Powder hooking up years later as told in this post). He moved to New York eventually, but gave me the tried and true "let's just be friends" speech. Dick. Just kidding, he wasn't a bad guy, he just didn't like me like that-- which is why I opt to think of him as Eric Stoltz in MASK (I mean, that character was really sweet) instead of the alternative ginger: a Chucky Doll.
He was always a little mentally unstable, which I probably should have figured out when he popped prescription pills during our first brunch together. He also had terrible hygiene, which was bizarre because he was an OCD germa-phobe. Overall, he was a good boyfriend and most of my friends really liked him, but there was just something slightly off about him. And yet, I still got super sad after we broke up. That's why I like to remember him as Donnie Wahlberg in The Sixth Sense.
It's kind of ridiculous to add this guy to the list, because we dated for maybe a month, but we had enough good banter to last us for six. This was before I knew that Jewish guys loving Asian girls was a thing. Unfortunately, he secretly wanted me to be Chinese and I just didn't know how I could make that happen without seriously pissing off my Iranian parents, so I choose to remember him as Woody Allen-- but not cool Woody Allen-- Hasidic Jew Woody Allen.
So, there you have it. All of the guys I've dated are ugly. Butt ugly. Smelly ugly. So ugly you almost want to date them, because you feel sorry for them. Which is the real reason I ever dated any of them in the first place. What about you guys? Have you dated a shit-ton of uglies? If so, comment below!


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Over the last four and a half years of blogging, I have felt that one of the things that I am know best for is my lipstick swatches. I adore doing them, and I absolutely love being able to try so many new shades, including colours that I wouldn't normally go for. The only downside to my love of lipstick swatches is that they take me an age and a day to photograph, edit and compile into my signature collage. At the moment, time is of the essence and I don't really have that much time, and also good light after getting home from work, in order to take 5 billion photos of my lips. I have been desperate to get the new Too Faced Melted Latex lipsticks swatched so I cancelled all plans, got out the lip scrub, charged up my camera and got snapping away. Probably the most fun afternoon I have had in a while and not only have I been able to try out and get a full opinion on nine of the 16 shades, I have found a shade that I would never normally contemplate but I have now been strangely seduced by. So, without further hesitation, I bring you the glossiest, most opaque and long lasting lipsticks from Too Faced.
I don't know about you, but since I've been wearing matte liquid lipsticks in nude shades, I've been finding that the super brights colours that I was known for wearing have taken a back step. It's not intentional, but as I'm not wearing that much makeup for work, I don't feel that I need to have a power lip, like I used to wear frequently when I was flying. It's been really nice to throw myself back into having some colour in my life, and I feel like the bright gloss finish is taking over the matte lip revolution.
The formulation is that of a thick gloss, that does apply to the lips quite easily but it does need some work, especially with the darker colours. As they are so thick, they're a tiny bit jam like which makes precision somewhat difficult, more so on the darker colours. I find that outlining my lips first helps a great deal, then filling in the rest of the lip with the colour. I have seen people describe these as being like honey, but I can only liken the honey to how sticky they are. That being said, I don't have an issue with the stickiness or find that my hair gravitates to my lips. That's always a bonus.
The colours of each shade are exceptionally opaque and the swatches that I have done on my arm are done with just one swipe of the lip hugging doe foot applicator. You can see that each one has an intensity that you wouldn't find in a lip gloss, I find them to be highly pigmented and super glossy, and long lasting to an extent. Again, after reading so many reviews on latex lips, I've seen claims that they are glossy liquid lipsticks that last all day and numerous other claims. I've had these in my possesion for several weeks and I've given them all a good going over to see just how well they perform and I cannot, no matter how hard I try, compare them to a liquid lipstick like the Too Faced Melted Mattes. They share a name of Melted, and that is all. Now, don't get me wrong – I absolutely love them. They stain the lips and have a higher performing longevity that a standard lipgloss, but I'm only averaging around 2-3 hours wear time.
The Latex name is absolutely perfect for how these look on the lip. They look so glossy and almost plastic, and I am absolutely blown away with the finished look and shade range of these. Out of the 9 shades that I own, there's just one shade which doesn't suit me (Twilight Zone) as my skin is too warm toned for a cool toned shade, and I'm been very surprised at just how much I love Strange Love as it's a chocolate brown that I would never have chosen in my entire life but I am slightly obsessed right now.
Peekaboo – soft pink nude
Safe Word – light, cool pink
Love You Long Time – dark, cool pink
But First Lipstick – fuchsia pink
Twilight Zone – bright lavender
Rated R – bright warm pink
I'm Bossy – classic blue red
Bite Me – deep vampy red
Strange Love – chocolate brown
The Too Faced Melted Latex liquified lipsticks are now available in Debenhams at £19 each. There are 14 colours, a clear lip topper in Girl on Top, and if you can get your hands on it, Unicorn Tears has been made into Latex. It's actually rarer than Unicorn poo right now so good luck with that!
*Contains Affiliate Links and PR SamplesThis post may contain PR samples that have been sent to me for consideration for review however all my opinions will be my own. The links in the post my be affiliate links which will earn a small amount of commission should you shop my recommendations.

subset: commoncrawl


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Skateboarders have a brighter future after plans for a street sports facility got the go-ahead.
The £60,000 development on land next to Blyth Sports Centre will have ramps, jumps, rails and benches for skateboarding, in-line skating and BMX riding.
Youngsters played a part in designing the park, sitting in on meetings with council officers.
Coun Eve Black of Blyth Valley Council said: "This is something that is essential for young people in this day and age and if these facilities are not provided the street sports people could destroy many of the pavements and low walls in our villages."


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Mountain Edition brings you the biggest news stories from the week here in the Roaring Fork Valley.
Before Cambridge Analytica took a role in the 2016 Presidential elections they were working on midterm elections in Colorado, and, after revoking a nonprofit's lease to rent out the Aspen power plant, Aspen city council is ready to sign a lease with a new organization.
Also, a bill addressing Colorado's pension fund is moving through the statehouse, and art shows focused on the work of female artists are cropping up in the Roaring Fork Valley.


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Tiesto, Steve Angello added to TomorrowWorld festival lineup
NEW YORK (AP) — DJs Tiesto and Steve Angello have been added to the TomorrowWorld festival lineup in the fall.
The festival announced Thursday that the EDM acts will join previously announced performers David Guetta, Afrojack and Martin Garrix, among others.
TomorrowWorld will take place Sept. 25-27 outside of Atlanta in Chattahoochee Hills, Georgia. Other performers include Armin van Buuren, Hardwell, Paul van Dyk and Showtek.
The festival is in its third year. The full lineup will be announced next month.
Sorry we are not currently accepting comments on this article.


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Have you always been interested in volunteering with Ryerson Urban Farm? Join us for our first volunteer orientation of 2018! Find out how to volunteer for our Ground Level Gardens and First Thursday shifts.
Attending an Orientation gives you the opportunity to register for our volunteer programming, which includes:
Ground Level Gardens - On select Thursdays, from 1-3pm, supporting various tasks in our ground level gardens, which include a micro flower farm on Gould Street, and an edible container garden in the Pitman courtyard.
First Thursdays - Every first Thursday of the month, 1-3pm, supporting various tasks on the rooftop farm.
Registration and waiver:
In addition to reserving a ticket through this Eventbrite page, all participants are required to fill out the following Google form/waiver BEFORE participating in the orientation: waiver
1:00pm Gather at RUF Tool Shed, Introductions
1:10pm Field walk: Ground gardens
1:25pm Field walk: Rooftop market garden
1:45pm Questions
Please note that because of the tight timeline and nature of the content we'll be covering, which includes important safety information, participants must attend the entirety of the session in order to join the RUF volunteer roster.
Accessibility information:
Ground gardens: These gardens are located across the campus, some at ground level, some at ground level in raised containers, some above ground level on raised plinths.
Rooftop market garden: Walkways on rooftop are 2-ft wide paving stones surrounded by gravel.
Option 1 - Main elevators to 4th floor, 23 steps up to tool area, 2 steps up to rooftop doorway, 1 step down to main walkway.
Option 2 - Freight elevator to Mechanical room (note that this room can be very loud due to the mechanical equipment), 3 steps up to rooftop entrance, 1 step down to garden bed level, 1 step down to main walkway.
Questions? Please contact firstname.lastname@example.com.


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A commercial production company creating world class experiences with love from Mexico since 2005.
We will work hard to become Mexico's production ambassadors to the world, reliable and recognised as a service innovation example.
The high end production experience company in Mexico.
9 years in Mexico.
Empowering creativity through superb service. We push ourselves to the limit to make sure our clients have top of the line production plus phenomenal experiences throughout the entire process.
List your company among the leaders of the industry, promote your competencies, showcase your work & join an exclusive global marketing and creative industry network.Submit Your Company


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Chesterfield Pull Up Top Grain Leather Sofa
This classic all top grain pull up tufted leather sofa is (96 wide) the definition of class and sophistication.
This style also has a matching chair and this sofa is available in multiple leathers and fabrics.
Please contact us via email, phone or stop in to see this gorgeous sofa.


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Home < Fasteners & Fixings < Thread Repair < Thread Repair Kits <
Thread Repair Kits
Butler Fasteners Limited in Nottingham supply a range of thread repair kits including single size thread repair kits and workshop range kits.
Thread repair kits containing everything you need to complete thread repair projects. There are various types of kits available from standard single size kits to Range Kits which comprise of the most popular sizes of standard thread repair kits.
Butler Fasteners supply Helicoil Kits, Recoil Kits and V-Coil thread repair kits in order to provide our customers with the best price and availability possible.
Helicoil®, Recoil® and V-Coil Free Running Wire Thread Inserts are available in the following thread forms:
Click here to download the Helicoil Thread Repair Kit brochure.
Click here to download the Recoil Thread Repair Kit brochure.
Click here to download the V-Coil Thread Repair Kit brochure.
For more information on Helicoil, Recoil or V-Coil thread repair kits please contact us.
Copyright 2010 Butler Fasteners Limited - Thread Repair Kits Nottingham


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Archive for June, 2008
Luau Chicken Sandwiches
Luau Chicken Sandwiches
1 can (20 ounces) sliced pineapple
1 tablespoon brown sugar
1 teaspoon ground mustard
1 teaspoon garlic salt
1/2 teaspoon pepper
6 boneless skinless chicken breast halves (4 ounces each)
1/4 cup mayonnaise
1 tablespoon Dijon mustard
1/4 teaspoon dill weed
6 lettuce leaves, optional
6 kaiser rolls, split and toasted
Drain pineapple, reserving 1 cup juice and six pineapple slices (save remaining juice and pineapple for another use). In a large resealable plastic bag, combine the brown sugar, ground mustard, garlic salt, pepper and reserved pineapple juice; add chicken. seal bag and turn to coat; refrigerate for at least 2 hours, turning occasionally. In a small bowl, combine the mayonnaise, Dijon mustard and dill. Refrigerate until serving. Drain and discard marinade. Grill the chicken, covered, over medium heat for 5-6 minutes on each side or until juices run clear. Grill pineapple slices for 1 minute on each side. Spread mayonnaise mixture on rolls. Top with lettuce if desired, chicken and pineapple.
Yield: 6 servings.
Source: Taste of Home via Organizing Junkie
Note: My plan is just to make this chicken, not necessarily for sandwiches.
Risotto with Edamame, Lemon Zest & Tarragon
Risotto With Edamame, Lemon Zest, and Tarragon
2 tablespoons olive oil
1 large yellow onion, chopped
2 cups Arborio rice
1 cup dry white wine (such as Sauvignon Blanc)
4 1/2 cups low-sodium vegetable broth
1 1/2 cups shelled edamame, thawed
2 teaspoons grated lemon zest
1 tablespoon fresh tarragon, chopped
1 cup grated Parmesan
Kosher salt and pepper
Heat the oil in a large saucepan over medium heat.
Add the onion and cook for 4 minutes. Add the rice and cook, stirring constantly, for 2 minutes. Add the wine and cook, stirring frequently, until the liquid is absorbed.
Stir in the broth, 3/4 cup at a time (waiting until each addition of broth is absorbed before adding the next), and cook, stirring occasionally. It should take about 25 minutes for all the broth to be absorbed.
Remove from heat and stir in the edamame, lemon zest, tarragon, 3/4 cup of the Parmesan, 1/2 teaspoon salt, and 1/4 teaspoon pepper.
Spoon into individual bowls and top with the remaining Parmesan.
Shortcut: To thaw edamame and other frozen bagged vegetables quickly, place them in a colander or a mesh strainer and run them under cool water.
Yield: Makes 4 servings
writeNutrient();NUTRITION PER SERVING
CALORIES 656(26% from fat); FAT 19g (sat 6g); CHOLESTEROL 26mg; CARBOHYDRATE 87g; SODIUM 903mg; PROTEIN 33g; FIBER 8g; SUGAR 5g
Kate Merker
writePublicationAppearance();Real Simple, MAY 2008
Read Full Post | Make a Comment ( None so far )
Zesty Corn Quesadillas and Spinach Salad
Zesty Corn Quesadillas
Prep Time: 10 Minutes
Cooking Time: 15 Minutes
Servings: 4
Nutritional Information
Per Serving
- 4 (7 to 8 –inch) tortillas
- 1 cup low-fat Monterey Jack cheese, shredded
- 1 cup DEL MONTE® Whole Kernel White Sweet Corn
- 1/4 cup salsa
- 1 Tbsp cilantro, chopped
- 3 cups baby spinach leaves, washed
- 2 cups DEL MONTE® Mandarin Orange Segments
- 1/2 cup red onion, chopped
- 2 Tbsp olive oil
- 2 Tbsp white wine vinegar
- Heat a 10-inch ungreased skillet over medium heat. Place one tortilla into skillet and cook until starting to brown; turn
- Fill one side of tortilla with ¼ cup cheese, ¼ cup corn, 1 tablespoon salsa and some cilantro. Fold other half over cheese mixture. Continue cooking until golden brown and cheese is melted.
- Combine spinach, oranges and red onion in bowl. Combine oil, vinegar and reserved syrup. Toss dressing with salad.


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Hoda Nouri Khajavi is a PhD candidate at The Graduate Center, CUNY.
Seminar topic: "How Do Hospitals Respond to Bundled Payment Incentives? Evidence from the Medicare's Bundled Payments for Joint Replacements"
Abstract: Given the dramatic rise in the US health care costs, the Centers for Medicare and Medicaid Services has launched various alternative payment models (APM) to hold health care providers financially accountable. The growing need for APM is more recognized for certain services including total joint replacement (TJR). There are numerous entities involved in TJR, which are not coordinated under the current fee-for-service (FFS) payment method. The fragmented system and the high post-acute care utilization after TJR drive the Medicare average spending ranges from $16,500 to $33,000. This paper studies how the Bundled Payments for Care Improvement (BPCI) initiative, one of the most recent and encompassed APM, reduces Medicare costs by bundling multiple payments over the treatment cycle of a TJR. I find no significant evidence that the BPCI hospitals change their admission patterns. The length of stay decreased significantly by 0.3 day while there was no change in the index hospital total charges. The BPCI significantly decreased the likelihood of discharge to skilled nursing facilities and other rehabilitation centers. There is significant evidence that the behavior of hospitals is consistent between Medicare and non-Medicare patients. These results suggest that the BPCI curtails Medicare expenditures by reducing the post-acute care utilization.


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National Science Week Mangroves Visit
On Wednesday, 15th August the Cooinda Kids had a great time visiting the Leschenault Inlet in Bunbury to investigate the bird life and macro invertebrate numbers at our local mangroves. The excursion was all part of National Science Week and was organised by the amazing Mr Scott.
Students were given the opportunity to collect samples from the water to see what kinds of macro invertebrates could be found. They were able to work in groups to investigate using magnifying glasses and microscopes. The children managed to find a good variety of these species, and even a hermit crab.
Following this the students went bird watching in the inlet. Several of a local bird enthusiasts were their to teach the children how to use binoculars and a telescope to view the bird life. Unfortunately on the day, we were only about to spot a few different kinds of birds.
All in all it was a great day out with some wonderful science experiences to be had.
Mrs B


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Adams Auto Service
Bo Kuhn -- Tires
Brad Willits - Tire Manager
Fill out the form below to receive a customized quote and find out about current REBATES!
Adams Tire Outlet is now open Monday - Friday 7:30 - 5:30 and Saturday 8-1!
Call us at 765-598-5655 for a quote before you buy your next set of tires! We will save you money!
Adams Tire Outlet is Kokomo's best choice for tires! We stock tires for all types of vehicles including trailers and boat trailers! Our tires including lifetime rotations and balancing at no additional charge! Best of all, we can take care of all of your suspension repair and alignment needs with Adams Auto Service! We offer all major brand names including Mastercraft, Cooper, Goodyear, Michelin, BFGoodrich, Kuhmo, Falken, and more! Call Brad Willits today at 765-598-5655 before you buy and let us show you how much money you can save!
Adams Auto Service and Collision Repair © Privacy Policy


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Online brokers had their best day in a long time Friday as early indications showed April trading strengthened handily. Ameritrade shares jumped more than 10 percent, and Charles Schwab and E-Trade both added more than 6 percent on good volume. In the broader financial sector, the Amex Securities Broker/Dealer Index $xbd jumped 3.9 percent on the e-brokers' surges, while the Philadelphia Bank Sector Index $bkx rose 1.9 percent. Ameritrade AMTD, -0.79% shares jumped 11.2 percent, reaching $5.68, while Schwab SC.H, +30.00% added 6.1 percent to $9.15 and E-Trade Group ET, -2.81% moved up 6.7 percent to $5.86.
Have breaking news sent to your inbox. Subscribe to MarketWatch's free Bulletin emails. Sign up here.


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Join us Sunday mornings for Sunday School at 9:00 AM and Worship from 10:30 to 12:00 PM.
We love to eat and fellowship together around the table, or many tables, as a church family. If you are visiting, please consider yourselves very welcome to this...there is always room!
Service Times: Sunday School - 9:00 AM; Worship - 10:30 to 12:00 PM
3665 Bell Road | Newburgh, IN 47630
© 2018 Cornerstone Fellowship Church: Newburgh, IN
| Powered by Church Plant Media
a Christ-centered, gospel-driven, confessional Baptist church


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Posted by Rick Wells
This report should be enough to end any talk of amnesty for a very long time. It will probably have no effect.
The vicious Sinaloa Drug Cartel of Mexico is using contractors to carry out their enforcement activities in areas where they don't have a sufficient representation of their own. Their contractor of choice is the brutal MS 13 Salvadoran gang.
Recently, three illegal alien members of MS 13 were able to board an airplane and fly to Minnesota where they engaged in the kidnapping and torture of two teenagers believed to have stolen $200 thousand and 30 pounds of methamphetamine. The teens were bound and tortured for two days, including an attempt to cut off a finger, before being let go.
Two of the three were quickly apprehended by authorities. The report by the DOJ of the incident failed to mention the MS 13/Sinaloa connection. Megyn Kelly asks her guest, filmmaker Dennis Michael Lynch for his thoughts on that omission.
Lynch is of the opinion that there was no mention of the cartel connection because that would draw attention to the lack of border security and have a chilling impact on the Democrats and their amnesty push.
Lynch says there are 1.4 million gang members in the U.S. in 33,000 different gangs. He cites statistics indicating that fifty percent of all violent crime in America is perpetrated by gangs.
He says that the $20 billion dollar per year drug business is a well-run business covering 1,200 cities across America.
He maintains that if the American people knew the reality of our situation, they would demand that the borders be closed tomorrow and there would never be any discussion of some sort of amnesty or a path to citizenship.
Lynch might be giving a large sector of the American people and the political elite too much credit with that observation.
He also highlights one way the cartels are using the misguided "dreamer" status to their advantage.
Rick Wells is a conservative author who believes an adherence the U.S. Constitution would solve many of today's problems.


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I bought a new HDD or my HP Notebook. I've installed the OS on the new HDD and has put the Old HDD on USB. My problem is that I'm not able to access my files on the Old HDD. It says "Access is Denied"
I've even tried to boot my Notebook using old HDD (presently on USB) it says MBR error.
Kindly suggest me with solutions as the old HDD has imp. data.
Regards All.
Are you logged in as the administrator? The access denied might be as a result of access previledges.
After checking that, you have set no passwords on the hard drive access.
let me know what happens


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2 comments:
- Connie said...
I love this picture! So bright and fun! Miss you girl!
- July 11, 2010 at 1:05 PM
- Vanessa said...
The fact that you just mentioned the shark song in your post has made you infinitely more legit than I thought possible. I forgot how much I loved that song & how much fun the dance it!
- July 13, 2010 at 1:52 PM
Subscribe to: Post Comments (Atom)


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Yanukovych to meet with representatives of Crimean Tartars
17:02, 02 August 2010Politics
694 0
in Simferopol tomorrow...
President of Ukraine Victor Yanukovych will meet with representatives of Crimean Tartars in Simferopol tomorrow.
The press service of the head of the state with reference to head of the Administration of President of Ukraine Serhiy Lyovochkin disclosed to UNIAN that the meeting will take place, in the premises of Vernadskiy Tavricheskiy National University at 11.30 am in Simferopol, on August 3.
It is planned to discuss a wide range of issues concerning development of Crimea, solving problems of Crimean Tartars who came back to Ukraine after deportation.
If you see a spelling error on our site, select it and press Ctrl+Enter


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Complaining Work
Defending Work
Rickey Allen
"Cater 2 U"
Destiny's Child
"Cater 2 U"
Poor Judge Holderman! He was so very close to having the opportunity to see the extraordinarily named Beyonce (forgive me, I mean Beyoncé) testify in his Chicago courtroom. Immediately prior to trial, on the proverbial "courthouse steps", the parties settled their dispute in December of 2009, about four months after Holderman's opinion denying the defendant Destiny's Child's motion for summary judgment.
Holderman's opinion methodically dissects the somewhat tangled factual and legal matters in this dispute. The facts raise subtle questions about scènes a faire versus protectable original expression, particularly with respect to the songs' lyrics. My opinion on the question of infringement comports with what I suspect is Holderman's: the music of the two works is entirely dissimilar, but the gist of the words of the songs is suspiciously alike. It is curious that Holderman's opinion does not discuss the fact that the words of Allen's song are to be sung to a woman ("...cause that's what a man's supposed to do...") whereas that of Destiny's Child are to be sung to a man, and the potential relevance of this fact to the question of infringement.
[ Back to Top ]
Opinion by Judge James F. Holderman
Plaintiff Rickey Allen ("Allen") alleges in his first amended complaint that in 1992 and 1993 he wrote the original music and lyrics to a song called "Cater 2 U." Allen further alleges that he subsequently performed this song on numerous occasions and obtained multiple copyrights in relation to his song.
In November 2004, defendants Beyonce Giselle Knowles ("Knowles"), Kelendria (a/k/a/ Kelly) Rowland ("Rowland"), and Michelle Williams ("Williams"), known collectively as the musical group "Destiny's Child," released an album ("Destiny Fulfilled") that included a song with the title "Cater 2 U."
On November 30, 2006, Allen filed this lawsuit against various defendants, including Destiny's Child, Destiny's Child, Inc, Knowles, Beyonce Publishing, Rowland, Kelendria Music Publishing, Williams, MW Publishing, Sony BMG Music Entertainment, Sony Urban Music/Columbia CK, Sony/ATV Tunes LLC, EMI Blackwood Music, Inc., and McDonald's Corporation (referred to collectively as the "Destiny's Child Defendants"); Rodney Jerkins Productions, Inc. and Rodney Roy Jerkins (referred to collectively as the "Jerkins Defendants"); Andrea Murray ("Murray"); Maurice Joshua; 1 Robert Waller, Robert Morrison (a/k/a Rob Diggy), and Ricky Lewis (a/k/a Ric Rude and Ricc Rude); 2 No Harm Publishing, 3 and Columbia Records--alleging one count of copyright infringement. Allen also brings claims against Murray for breach of contract and breach of agent's duty to principal.
Now pending before the court are the Destiny's Child Defendants' "Second Motion for Summary Judgment" (Dkt. No. 207), the Jerkins Defendants' "Motion for Summary Judgment" (Dkt. No. 197), Murray's "Motion for Summary Judgment" (Dkt. No. 200), and Allen's "Motion to Strike the Supplemental Affidavit of Rodney Jerkins and Citations to Same in Defendants' Reply Memoranda and Rule 56.1 Responses" (Dkt. No. 254).
Allen undisputedly is the author of his musical work alternately titled "Cater 2 U" or "I Want to Cater to You." Allen registered versions of this song with the U.S. Copyright Office under four different registration numbers: SRu 301-444 (the "1994 version"), PAu 2-255-971 (the "January 1998 version"), SRu 349-159 (the "September 1998 version"), and PAu 2-561-418 (the "2000 version") (referred to in this opinion jointly and severally as the "Allen Song").
Knowles, Rowland, Williams, Rodney Roy Jerkins ("Jerkins"), Robert Waller ("Waller"), and Ricky Lewis a/k/a Ric Rude ("Rude") working collaboratively produced, recorded, published, and performed a song that is also titled "Cater 2 U" (the "DC Song"). The parties' key dispute in this case is whether the DC Song is copied from the Allen Song.
According to the Destiny's Child Defendants and the Jerkins Defendants, Rude composed the musical "bed" for the DC Song (the music over which the lyrics are sung) and gave a copy of the musical bed to Jerkins, Jerkins gave a copy of the musical bed to Knowles in the summer of 2004, and Knowles recommended to Rowland and Williams that Destiny's Child compose lyrics to go along with the musical bed provided by Jerkins. At the writing and recording session in 2004, Waller wrote the chorus to the DC Song, and Knowles, Rowland, and Williams composed the verses, the lead vocal melody, and the melody of the bridge. Jerkins was the producer of the DC Song. Maurice Joshua ("Joshua") later created a re-mix of the DC Song, after the original had been written, recorded, and commercially released.
Allen contends that Rude copied the musical bed from the Allen Song, Waller copied the chorus from the Allen Song, and the individual members of Destiny's Child did not "make any substantive change to the musical bed that Rude composed by copying Allen's work" and copied without change "[m]any of the lines within the lyrics." (Allen's 56.1(b)(3)(B) Resp. P 66.) The lyrics of both the Allen Song and the DC Song refer to an individual desiring to relieve the stress of a significant other while "catering to" his or her needs and desires.
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When ruling on a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in the nonmovant's favor. Omega Healthcare Investors, Inc. v. Res-Care, Inc., 475 F.3d 853, 857 (7th Cir. 2007). However, "[o]nce a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials that 'set forth specific facts showing that there is a genuine issue for trial.'" Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008) (quoting Fed. R. Civ. P. 56(e)). The court does not make credibility determinations or weigh conflicting evidence. Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005). Summary judgment will be granted in favor of the moving party if there are no genuine issues as to any material fact, such that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
At the summary judgment stage of federal civil litigation, the party bearing the burden of proof must come forward with admissible evidence demonstrating a disputed question of material fact. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704 (7th Cir. 2009) ("To defeat a summary judgment motion . . . a party may rely only on admissible evidence."). The parties in this case dispute whether judicial admissions by certain defendants--specifically, Joshua, Waller, Rude, and Robert Morrison ("Morrison")--constitute admissible evidence when offered by Allen against the remaining defendants in the case.
A. Joshua's Admissions
Joshua responded to Allen's first amended complaint by filing a pro se answer on January 31, 2008. (Dkt. No. 140.) Since that time, however, Joshua has not filed any further documents in this case. Joshua also failed to respond to Allen's requests for admissions dated June 20, 2008. Pursuant to Federal Rule of Civil Procedure 36, all matters set forth in the requests for admissions served on Joshua are deemed "admitted" by Joshua, meaning that they are "conclusively established unless the court, on motion, permits the admission[s] to be withdrawn or amended." Fed. R. Civ. P. 36(a)(3), (b). Rule 36 itself does not address whether one defendant's deemed admissions can be used against other defendants in the same case. However, courts that have addressed this issue have concluded they may not. See Becerra v. Asher, 105 F.3d 1042, 1048 (5th Cir. 1997) ("Deemed admissions by a party opponent cannot be used against a co-party."); Riberglass, Inc. v. Techni-Glass Indus., Inc., 811 F.2d 565, 566 (11th Cir. 1987) ("Clearly, the deemed admissions of his codefendants cannot bind Morris where he actually responded to plaintiff's requests in a timely and legally sufficient manner."). This court joins in holding that a plaintiff cannot use one defendant's deemed admissions as evidence against a codefendant. See Fed. R. Civ. P. 36(b), Advisory Committee Notes, 1970 Amendment ("In form and substance a Rule 36 admission is comparable to an admission in pleadings or a stipulation drafted by counsel for use at trial, rather than to an evidentiary admission of a party."). If Allen wanted to properly obtain Joshua's admissions concerning his own conduct or that of others to be used as evidence at trial against other defendants, he should have deposed Joshua and thereby obtained Joshua's testimony. But as the record stands now, Allen cannot use Joshua's Rule 36 deemed admissions against the other defendants in this lawsuit, nor can the court consider them on summary judgment. The court finds nothing improper with the remaining defendants using Joshua's testimony, through a sworn declaration, to refute Allen's contentions. The court cannot, however, while viewing the facts in the light most favorable to Allen, give weight to Joshua's declaration in ruling on defendants' motions for summary judgment.
B. Waller's, Rude's, and Morrison's Default
The court turns to the further evidentiary issues relating to defendants Waller, Rude, and Morrison, who each failed to respond to Allen's first amended complaint after being served by publication, and were each found in default on June 10, 2008. Generally, "upon default, the well-pleaded allegations of a complaint relating to liability are taken as true." United States v. Di Mucci, 879 F.2d 1488, 1497 (7th Cir. 1989) (citing Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir. 1983)). However, this is so only insofar as such "admissions" pertain to the defaulting defendant. It has long been held that "[a] judgment against one Defendant for the want of a plea, or a decree against one Defendant for want of an answer, does not prevent any other Defendant from contesting, so far as respects himself, the very fact which is admitted by the absent party." The Mary, 13 U.S. 126, 143, 3 L. Ed. 678 (1815); see also United States v. Borchardt, 470 F.2d 257, 260 (7th Cir. 1972) (default judgment against taxpayer-grantor did not prevent grantees from raising their own defenses to a foreclosure action brought by the government); Hawkeye-Security Ins. Co. v. Schulte, 302 F.2d 174, 177 (7th Cir. 1962) (rejecting plaintiff's argument that "the allegations of the complaint are to be taken as true" against a non-defaulting defendant).
Allen argues that the admissions of Rude and Waller should be permitted as evidence against the remaining defendants, because Rude and Waller were acting as agents or employees of Jerkins and Destiny's Child at the time their respective admissions were made. In Walsh v. McCain Foods Ltd., the Seventh Circuit addressed a similar argument in the context of Rule 36 admissions. 81 F.3d 722, 726-27 (7th Cir. 1996). The Seventh Circuit noted that Rule 36 admissions can be used as evidence at trial only if offered against the party who made the admission. Id. at 726. This is because a party's admissions typically are hearsay when offered against another person but, when offered against the party making the admissions, the party's admissions are not excluded from the evidence at trial against the party making the admissions through the application of Federal Rule of Evidence 801(d)(2) as an "Admission by party-opponent." Fed. R. Evid. 801(d)(2). Taking this argument one step further, the defendant in the Walsh case argued that deemed admissions by a deceased plaintiff were also admissible against the remaining plaintiffs on the grounds that the deceased plaintiff was operating as an agent of the remaining plaintiffs at the time he made the admissions. Walsh, 81 F.3d at 726-27. The Seventh Circuit rejected this argument, finding that the deceased plaintiff was not operating as an agent at the time he made the admissions. Id. at 727. Relying on Walsh, Allen argues that he should be permitted to use the admissions of Rude and Waller as evidence against the remaining defendants in this case.
The initial problem with Allen's argument is that Rude's and Waller's respective deemed admissions do not conform easily to the legal principle that certain out-of-court statements by a party's agents are "trustworthy and reliable." Hernandez Escalante v. Municipality of Cayey, 967 F. Supp. 47, 51-52 (D.P.R. 1997) (reviewing admissibility of statements in a sworn affidavit).
Additionally, the general prohibition against using a defaulting party's admissions as evidence against other defendants who remain in the case is not grounded in concerns of an evidentiary nature. Rather, the United States Supreme Court noted back in 1815 that "in reason and in justice, [an entry of default] ought not to have prevented the District Court from looking into the testimony . . . so far as the rights of other Claimants depended on that interest." The Mary, 13 U.S. at 143 (emphasis added). As the Supreme Court explained, "[i]n the same cause, a fact, not controverted by one party, who does not appear, and therefore as to him taken for confessed, ought not, on that implied admission, to be brought to hear upon another who does appear, does controvert, and does disprove it." Id. (emphasis in original). The Supreme Court's reasoning in The Mary was based on issues of fairness, not reliability. There the Supreme Court stressed that the remaining defendant "was not culpable for, and therefore ought not to suffer for, the contumacy of [the defaulting party]." Id. For these same reasons, this court holds that Allen may not use the deemed admissions of Waller, Rude, or Morrison (i.e. the allegations of the first amended complaint) as evidence against the remaining defendants in this case. 4 Again, had Allen wished to use evidence of Waller's, Rude's, or Morrison's "admissions" against other defendants in the case, he was free to depose them during the discovery phase of this litigation and either call them as witnesses or, if any of them were unavailable at the trial, offer that party's deposition testimony.
C. Jerkins' Supplemental Affidavit
As for the Jerkins' supplemental affidavit, the court finds that the supplemental affidavit of Jerkins dated April 22, 2009, and submitted by the Jerkins Defendants (Dkt. No. 241, Jerkins Reply Ex. A) and the Destiny's Child Defendants (Dkt. No. 252, DC Reply Ex. 39) in their respective replies, appropriately addressed new allegations raised for the first time by Allen in his amended response. To the extent the court has considered Jerkins' supplemental affidavit in its analysis, the court finds that Jerkins' testimony is not inconsistent with his earlier declaration (Dkt. No. 208, DC Ex. 22 ("Jerkins Decl.")) and that it is within the scope of Jerkins' personal knowledge. Allen's "Motion to Strike the Supplemental Affidavit of Rodney Jerkins and Citations to Same in Defendants' Reply Memoranda and Rule 56.1 Responses" (Dkt. No. 254) is therefore denied.
"To establish copyright infringement, one must prove two elements: '(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.'" JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 914 (7th Cir. 2007) (quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991)). The Destiny's Child Defendants and the Jerkins Defendants each contend that, for a variety of reasons, Allen's copyright infringement claim can be decided as a matter of law and should not proceed to trial. For the reasons stated below, the court disagrees.
A. Copyright Claim Against Knowles, Rowland, Williams, and Jerkins
As individuals who took part in the creation of the DC Song, Knowles, Rowland, Williams, and Jerkins (the "Songwriter Defendants") do not dispute that Allen is the owner of a valid copyright for purposes of their summary judgment motions. Instead, the Songwriter Defendants focus their argument on whether Allen has produced evidence of actionable copying of the original elements of his song. "Since it is virtually impossible to prove copying directly, this element is usually established circumstantially." Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1249 (11th Cir. 1999). "[C]opying may be inferred 'where the defendant had access to the copyrighted work and the accused work is substantially similar to the copyrighted work.'" JCW Invs., Inc., 482 F.3d at 915 (quoting Susan Wakeen Doll Co., Inc. v. Ashton Drake Galleries, 272 F.3d 441, 450 (7th Cir. 2001)). Once an inference of copying is established, a defendant can rebut the inference by "showing that [the defendant] independently created the allegedly infringing work." Susan Wakeen Doll Co., 272 F.3d at 450.
1. Access
Proof of access is an important component of the circumstantial evidence supporting an inference of copying. Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 1984). "The plaintiff may be able to introduce direct evidence of access when, for example, the work was sent directly to the defendant (whether a musician or publishing company) or a close associate of the defendant." Id. If direct evidence of access does not exist, "there must be at least some other evidence which would establish a reasonable possibility that the complaining work was available to the alleged infringer." Id. (emphasis in original). "[T]he jury cannot draw an inference of access based upon speculation and conjecture alone." Id.
It is undisputed that Allen has never offered for sale or publicly distributed any recorded version of the Allen Song (DC Local R. 56.1(a)(3) Stmt. P 3.) Allen testified, however, that he provided copies of the Allen Song to both Joshua and Morrison.5 (Allen Local R. 56.1(b)(3)(B) Resp. P 4; Allen Local R. 56.1(b)(3)(C) Stmt. P 7.) Although Joshua denies ever receiving a copy of the Allen Song (Dkt. No. 208, DC Ex. 11 ("Joshua Decl.") P 4), the court views this disputed fact in the light most favorable to Allen and accepts, as it must in ruling on the pending motions for summary judgment, that both Joshua and Morrison had access to copies of the Allen Song. To support an inference of copying against the Songwriter Defendants, Allen must establish from this fact a reasonable possibility that Joshua or Morrison made the Allen Song available to the creators of the DC Song--Knowles, Rowland, Williams, Waller, Rude, and/or Jerkins.
Allen has produced no evidence demonstrating that Morrison was involved in the development, writing, or recording of the DC Song, and Morrison has stated under oath that he never met or communicated with Knowles, Rowland, Williams, Jerkins, Waller, or Lewis. (DC Local R. 56.1(a)(3) Stmt. P 13.) Any suggestion that Morrison provided the creators of the DC Song with a copy of the Allen Song is without support in the evidentiary record and is pure conjecture.
Joshua, too, has stated under oath that he was not involved in the development, writing, or recording of the DC Song. (DC Local R. 56.1(a)(3) Stmt. P 19.) However, it is undisputed that, sometime in 2000, 2001, or 2002, Knowles, Rowland, and Williams came into contact with Joshua. (Allen Local R. 56.1(b)(3)(C) Stmt. P 14.) At that time, the individual members of Destiny's Child met with Joshua to re-record the vocals of a different Destiny's Child song so Joshua could make a remix version of that song. (Id. P 15.) According to Allen's testimony, Allen had given Joshua a DAT 6 master copy of the September 1998 version of the Allen Song sometime between September 1998 and 2000. (Dkt. No. 233, Allen Ex. A ("Allen Dep.") 74:17-76:13.) It was therefore possible for Joshua to have provided a copy of the Allen Song, or a key part thereof, to Knowles, Rowland, and/or Williams when they met to record the remix, well before the Songwriter Defendants wrote and recorded the DC Song in the summer of 2004.
Knowles, Rowland, Williams, and Jerkins each deny that they ever received a copy of the Allen Song from any source (DC Local R. 56.1(a)(3) Stmt. P 23; Jerkins Local R. 56.1(a)(3) Stmt. P 28), and Joshua denies giving any of these individuals a copy of the Allen Song (DC Local R. 56.1(a)(3) Stmt. P 21). Complicating matters, Allen has admitted that the musical bed for the DC Song was provided by Rude, not Knowles, Rowland, or Williams. (Allen Local R. 56.1(b)(3)(B) Resp. P 62.) On the other hand, Allen has emphasized that none of the individual members of Destiny's Child "has personal knowledge regarding how Rude 'composed' the musical bed for DC's Cater 2 U, or that he in fact obtained his material from somewhere other than Allen's Cater 2 U." (Allen's Am. Resp. at 7 (citing Allen Local R. 56.1(b)(3)(C) Stmt. PP 10-12, 32-33, 36).) The only evidence before the court regarding this creative process is Jerkins' supplemental affidavit, which explains that Jerkins "watched" Rude create the musical bed to the DC Song "us[ing] [Rude's] own musical talents and skills." (Dkt. No. 241, Jerkins Reply Ex. A ("Jerkins Aff.") PP 12-13; see also Jerkins Local R. 56.1(b)(3)(C) Resp. P 9.) Knowles, Rowland, and Williams each testified that they did not know Rude was the individual who created the musical bed for the DC Song. (Allen Local R. 56.1(b)(3)(C) Stmt. P 36.) Finally, Allen admits that Knowles came up with the idea to write the DC Song after listening to a radio program discussing the topic of African-American women catering to their men, and he does not dispute that Knowles, Rowland, and Williams have testified that they authored the lyrics to the verses and bridge of the DC Song. (Allen Local R. 56.1(b)(3)(B) Resp. PP 63, 66.)
On these facts, the court must decide whether Allen has come forward with "some [ ] evidence which would establish a reasonable possibility that the complaining work was available to the alleged infringer." Selle, 741 F.2d at 901 (emphasis omitted). To reach the conclusion that the Allen Song was available to the Songwriter Defendants, a jury would have to (1) credit Allen's testimony that he gave a copy of the Allen Song to Joshua, (2) discredit the testimony of Joshua, Knowles, Rowland, and Williams that the individual members of Destiny's Child did not receive a copy of the Allen Song from Joshua, (3) infer that one or more of the individual members of Destiny's Child gave Rude a copy of the Allen Song, (4) discredit Jerkins' testimony that he watched Rude independently create the musical bed for the DC Song, (5) discredit Knowles' testimony that she independently came up with the theme for the DC Song, and (6) discredit the testimony of Knowles, Rowland, and Williams that they wrote the lyrics to the verses and bridge of the DC Song. 7 When the evidence is viewed in the light most favorable to Allen, as the court must do in evaluating a motion for summary judgment, this chain of events is certainly not implausible. Whether Allen has established a reasonable possibility of access is a close call, the resolution of which hinges entirely on the credibility of the witnesses. Because courts are constrained in making credibility determinations at the summary judgment stage, the court holds that the factual question of access is material and disputed. In other words, a reasonable jury could find on these facts that Allen has established a reasonable possibility of access.
2. Substantial Similarity
To complete an inference of copying, Allen must also show that the DC Song is "substantially similar" to the Allen Song. JCW Invs., Inc., 482 F.3d at 915. This is an objective question, requiring the court to consider "whether the accused work is so similar to the plaintiff's work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff's protectable expression by taking material of substance and value." Incredible Techs., Inc. v. Virtual Techs., Inc., 400 F.3d 1007, 1011 (7th Cir. 2005) (quoting Atari, Inc. v. N.A. Philips Consumer Elecs. Corp., 672 F.2d 607, 614 (7th Cir. 1982)). In other words, "[t]wo works are substantially similar if 'the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.'" Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 509 (7th Cir. 1994) (quoting Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960)). The ordinary observer test "does not involve 'analytic dissection and expert testimony,' but depends on whether the accused work has captured the 'total concept and feel' of the copyrighted work." Atari, Inc., 672 F.2d at 614 (citations omitted).
However, because "copyright laws preclude appropriation of only those elements of the work that are protected by the copyright," the court must separate the protectable elements of the work from those that are not protectable when applying the ordinary observer test. Id. at 614-15; see also Incredible Techs., Inc., 400 F.3d at 1011. Only a substantial similarity between protectable elements of the respective songs will support an inference of unlawful copying. "Summary judgment historically has been withheld in copyright cases because courts have been reluctant to make subjective determinations regarding the similarity between two works." Herzog, 193 F.3d at 1247. "However, non-infringement may be determined as a matter of law on a motion for summary judgment, either because the similarity between two works concerns only non-copyrightable elements of the plaintiff's work, or because no reasonable jury, properly instructed, could find that the two works are substantially similar." Id.
a. Protectable Elements
In this case, Allen argues that the Allen Song is protectable in its entirety as "an R&B song in a minor key using a specific intervallic8 structure and chord progression that describes how the singer is going to cater to his significant other." (Allen's Am. Resp. at 21.) Specifically, Allen invites the court to the use of "the idiosyncratic phrase 'cater to you'" in the title and lyrics of both songs, "the premise of a heterosexual monogamous relationship with interaction between the lovers in a private residential setting," lyrics in the DC Song which "mirror Allen's expression and extrapolation of the concept," and the use of a falling third 9 sequence in both songs. (Id. at 19-21, 23-24.) The Songwriter Defendants argue that these elements are not protectable.
i. Use of the Phrase "Cater 2 U" / "Cater to You" in Title and Lyrics
The most obvious similarity between the Allen Song and the DC Song is the fact that they share the same title ("Cater 2 U") and repeat the same phrase ("cater to you") prominently in the chorus of the song. As a general matter, "[w]ords and short phrases such as names, titles, and slogans" cannot be registered for copyright protection. 37 C.F.R. § 202.1. In fact, the Seventh Circuit has explicitly recognized that "the title [of a musical composition], in itself, is not subject to copyright protection." Wihtol v. Wells, 231 F.2d 550, 553 (7th Cir. 1956). On the other hand, the Seventh Circuit has also acknowledged that "the title of a copyrighted work should be taken into account when the same title is applied to a work copied from it." Id.
Short phrases tend to be excluded from copyright protection because they do not demonstrate a sufficient amount of creative expression. See Alberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705, 711 (7th Cir. 1972) (short commercial phrase not protectable because it was not an "appreciable amount of original text") (quoting Kitchens of Sara Lee, Inc. v. Nifty Foods Corp., 266 F.2d 541, 544 (2d Cir. 1959)); Tree Pub. Co. v. Warner Bros. Records, 785 F. Supp. 1272, 1275 (M.D. Tenn. 1991) ("[w]hether a jury will afford [the lyric expression 'better class of losers'] copyright protection is an uncertain question" due to its "proximity to [the] raw idea" of both songs); see also JCW Invs., Inc., 482 F.3d at 917 ("It is, of course, a fundamental tenet of copyright law that the idea is not protected, but the original expression of the idea is.") Likewise, "[p]hrases and expressions conveying an idea typically expressed in a limited number of stereotyped fashions are not subject to copyright protection." Narell v. Freeman, 872 F.2d 907, 911 (9th Cir. 1989). Whether the phrase "cater to you" is protectable thus depends on whether a reasonable jury could find the phrase to be an original, expressive element of the theme embodied in the Allen Song.
One measure of the originality of a phrase is the use of the same phrase in examples of prior art. See Johnson v. Gordon, 409 F.3d 12, 24 (1st Cir. 2005) (finding no copyright protection for the title/lyrics "You're the One for Me" where "hundreds of composers have registered songs capturing the same sentiment in the same verbiage"); Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 144 (2d Cir. 1998) (upholding district court's finding that the phrase "you've got to stand for something, or you'll fall for anything" was not protectable because it "enjoyed a robust existence in the public domain long before [plaintiff's lyricist] Tippin employed it for his song's title and in the key lyrics."). Authors who rely on public sources for their inspiration are not liable for copyright infringement. Selle, 741 F.2d at 901 (if "both works were copied from a common source in the public domain, then there is no infringement").
In this case, the Destiny's Child Defendants assert that "there are [at] least seven other copyrighted songs containing the phrase ["cater to you"], three of which predate the earliest version of the Allen Song." (DC Mem. at 19.) Allen objects to this assertion on the grounds that the evidence presented by the Destiny's Child Defendants is unreliable. (Allen 56.1(b)(3)(B) Resp. P 53.) In support of their position, the Destiny's Child Defendants offer the testimony of their expert, Anthony Ricigliano, who examined lyrics that he found on the Internet (through sites such as lyrics.com, Google, or www.azlyrics.com) and compared them to the corresponding audio version of the same song, which he found on iTunes. (Dkt. No. 208, DC Ex. 30 ("Ricigliano Tr.") 185:6-189:4; 194:24-199:16.) Copies of some of these lyrics are found at Exhibit 32 to the Destiny's Child Defendants' Local Rule 56.1(a)(3) Statement. None of the lyrics include a date of copyright or publication, and Ricigliano admits that he would "need to do some further research" to find out when the songs were written. (Ricigliano Tr. 187:18-21; 189:3-4; 196:9-10; 198:6-8.) Without dates, or any authentication of the lyrics themselves, the songs' function as "prior art" is significantly limited.
The theme of both songs is one of "relieving the stress from the significant other and getting them to relax." (Allen Local R. 56.1(b)(3)(C) Stmt. P 53.) On the evidentiary record now before it, the court declines to find as a matter of law that no reasonable jury could find the phrase "cater to you" to be an original expression of the theme set forth in the Allen Song.
ii. Setting
"[C]opyright protection does not extend to ideas, plots, dramatic situations, and events." Scott v. WKJG, Inc., 376 F.2d 467, 469 (7th Cir. 1967). To the extent Allen asserts that the "premise of a heterosexual monogamous relationship with interaction between the lovers in a private residential setting" is itself a protectable element of the Allen Song (Allen Am. Resp. at 19), he is incorrect.
iii. Lyrics
Allen also asserts that "the lyrics of DC's Cater 2 U go beyond mimicking just the 'concept' of Allen's Cater 2 U and mirror Allen's expression and extrapolation of the concept." (Allen Resp. at 19.) Unfortunately, the record on this point is quite murky, as the court does not have before it any reliable source of printed lyrics of the Allen Song. The only printed lyrics of the Allen Song in the record are from the 1994 version, the January 1998 version, the 2000 version, and an unregistered 1996 version of the Allen Song. (See Dkt. No. 233, Allen Ex. B.) As explained above, however, evidence of access in this case stems from Joshua's access to the September 1998 version of the Allen Song. Thus, it appears the court is missing a printed version of the specific "expression and extrapolation of the concept" employed in the relevant version of the Allen Song.
On the other hand, the Songwriter Defendants do not dispute that both songs refer to the significant other feeling stressed because of work, preparing a hot bath for the significant other, massaging the significant other, and the interaction between the lovers in bed. (Allen Local R. 56.1(b)(3)(C) Stmt. PP 54-57.) Listening to the audio recordings of the Allen Song and the DC Song (DC Exs. 4, 6, 7), 10 the court has been able to ascertain the following lyrical similarities as asserted by Allen (Allen Am. Resp. at 19-21) and as corrected to reflect the lyrics actually present in the September 1998 version of the Allen Song:
Allen Song (Sept. 1998 version)
DC Song
"I want to cater to you"
"I want to cater to you"
"Let me cater to you"
"I want to cater to my man"
"I know the job has you stressed, no doubt . .
"Baby I'm happy you're home,
. So hurry home to my open arms
Let me hold you in my arms
And let me relieve you with my love and
I just want to take the stress
away from you"
"The tub has hot steam rising
"Let me run your bath water
And I'm waiting to soak your body through"
Whatever you desire, I'll
"I want to rub you down"
"Want a foot rub?"
"I'm going to do whatever needs to be done
"Whatever you desire, I'll
for you, baby"
"Do anything for my
"Anything you want"
"Boy is there something you
need me to do . . . I
know whatever I'm not
fulfilling Another woman is
"It only gets bad baby to make the better
"Through the good
come out"
The bad
The ups and downs
I'll still be here for you"
"I want to love you over and over again
"I got your slippers, your
dinner, your dessert, and so
"I want to kiss your body baby
much more"
I want to make sweet love"
"When you come home late tap
my on my shoulder, I'll
roll over
Baby I heard you, I'm here to
serve you"
"Fulfill your every desire
Your wish is my command"
As previously stated, the theme of both songs is one of "relieving the stress from the significant other and getting them to relax." (Allen Local R. 56.1(b)(3)(C) Stmt. P 53.) "[I]ncidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic" are not protectable. Incredible Techs., Inc., 400 F.3d at 1011-12 (describing the scenes a faire doctrine). However, the Allen Song creates a particular expression of how he wants to relieve his significant other's stress (e.g. a hot bath, massage, embrace, love making, and catering to his significant other's every need in a home setting). The DC Song includes each of these elements in its treatment of the same theme. While some of Allen's descriptions may be standard expressions of his theme when standing alone, the combination of all of these elements may be sufficiently original so as to be protectable under copyright law. Because reasonable minds could come to different conclusions on the question of whether the lyrics to the Allen Song constitute scenes a faire, the court declines to find as a matter of law that the lyrics to the Allen Song are inherently unprotectable.
iv. Falling Third Intervallic Structure
Lastly, Allen argues that a particular three-note phrase from the "hook" of the Allen Song was copied into the opening melodic material and bass line of the DC Song, "control[ling] the four-chord harmonic progression of the entire song." (Allen Am. Resp. at 23.) The musical phrase at issue is represented in the following transcriptions of both songs:11
In analyzing musical compositions, the court is "mindful of the limited number of notes and chords available to composers and the resulting fact that common themes frequently reappear in various compositions, especially in popular music." Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2d Cir. 1988). Again, the court emphasizes that authors who rely on the public domain as a source for their inspiration are not liable for copyright infringement. Selle, 741 F.2d at 901.
Of course, a unique combination of common themes could be a protectable song element. For example, the court in Bright Tunes Music Corp. v. Harrisongs Music, Ltd. examined the protectability of two "very short basic musical phrase[s]" combined together in the chorus of the 1962 song "He's So Fine" (recorded by the singing group "the Chiffons"). Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177, 178 (S.D.N.Y. 1976). The court first noted that neither "motif A" (composed of the three notes "sol-mi-re") nor "motif B" (composed of the five notes "sol-la-do-la-do") was novel in and of itself. Id. However, the court concluded that "the four repetitions of A, followed by four repetitions of B, is a highly unique pattern." Id. (stating in a footnote that "[a]ll the experts agreed on this"). Because the song "My Sweet Lord" (composed in 1970 by George Harrison) included "motif A used four times, followed by motif B, four times in one case, and three times in the other, with the same grace note in the second repetition of motif B," the court concluded that the songs were "virtually identical except for one phrase" and that Harrison had committed copyright infringement. Id. at 180-81. The trial court's ruling on the question of infringement was not appealed.
In this case, Allen alleges that the Songwriter Defendants copied a specific three-note phrase (comparable in length to "motif A" in Bright Tunes Music Corp. discussed above) that appears in the "hook" of the Allen Song. This musical phrase is recognizable, in part, by the "falling third" between the first and second notes. However, Allen admits that "[t]he intervallic structure identified by Fink which contains a falling third is a musical gesture so common that it is a basic ingredient of music composition." (DC Local R. 56.1(a)(3) Stmt. P 45.) There is no evidence before the court to suggest that Allen's three-note phrase is itself protectable as a novel creation, and Allen does not argue that such evidence exists. Nor does Allen contend that the three-note phrase has been combined with a second common musical phrase in a unique manner. Rather than explaining why his three-note phrase should be considered protectable, Allen instead focuses his argument on where and how the same three-note phrase appears in the DC Song. (See Allen Am. Resp. at 23-24.) Allen does not offer any legal authority for this court to consider that the location of a single, common three-note sequence in a musical composition is sufficient to support a finding of protectability in the context of alleged copyright infringement.
Consequently, this court holds that no reasonable jury could find that the three-note phrase in the Allen Song is sufficiently unique in and of itself so as to be considered an original expression, the court finds this phrase to be unprotectable as a matter of law.
b. Ordinary Observer Test
Having filtered out the unprotectable elements of the Allen Song, the court must now answer the question of whether the ordinary observer would find the lyrics of the Allen Song and the lyrics of the DC Song to be "substantially similar." It is undisputed that Dr. Fink acknowledged that the two songs "do not sound, at first listen, very much alike." (DC Local R. 56.1(a)(3) Stmt. P 24.) However, it is clear from the context of Dr. Fink's statement that he is speaking of the musical elements of the songs, not the lyrics. (Fink Report P 5 (discussing the songs' keys, tempos, beats, structures, and melodies).) It is also undisputed that a music teacher consulted by Allen, Aubrey Rivers, stated that the rhythmic and lyrical similarities between the songs "may not be noticeable or detected by the average listener." (Jerkins Local R. 56.1(a)(3) Stmt. P 12.) While this may be some evidence of the average listener's reaction, the court is not persuaded that this particular witness is competent to speak on behalf of the average listener. The question of "whether the accused work has captured the 'total concept and feel' of the copyrighted work," Atari, Inc., 672 F.2d at 614 (citation omitted), is best left for a jury to decide.
3. Independent Creation
Once an inference of copying is established, a defendant can rebut the inference by "showing that [the defendant] independently created the allegedly infringing work." Susan Wakeen Doll Co., 272 F.3d at 450; see also Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1169 (7th Cir. 1997) ("The Copyright Act forbids only copying; if independent creation results in an identical work, the creator of that work is free to sell it."). In this case, the individual members of Destiny's Child have each testified as to the circumstances under which they claim to have written the lyrics to the DC Song. See Part I.A. supra. However, the Songwriter Defendants have not come forward with any objective evidence of this process, despite the fact that all three individual members of Destiny's Child testified that they wrote draft lyrics on paper during the creative process. (Allen Local R. 56.1(b)(3)(C) Stmt. PP 25-27, 29.) Because the defense of independent creation depends on a determination of the credibility of Knowles, Rowland, and Williams, the court cannot find that the Songwriter Defendants prevail in this defense as a matter of law.
B. Vicarious Liability of Remaining Defendants
The Destiny's Child Defendants argue that summary judgment on Allen's vicarious liability copyright infringement claim against Sony Music Entertainment (successor-in-interest to Sony BMG Music Entertainment and incorrectly sued as Sony Urban Music/Columbia CK), Sony/ATV Tunes LLC, EMI Blackwood Music, Inc., and McDonald's Corporation is appropriate "[b]ecause Allen cannot raise a genuine issue of material fact as to his claim for direct infringement against the Songwriter Defendants." (DC Mem. at 22.) Based on the court's above analysis, this argument is without merit.
C. Claims Against Andrea Murray
In his response, Allen does not attempt to defend these claims against Murray's argument that they are preempted by § 301 of the Copyright Act. (See Murray Mem. at 11.) Instead, he sets forth a new theory of breach of contract. Allen now argues that Murray breached their agreement as evidenced by the fact that she lost her taped copies of the Allen Song, thus making her unable to effectively promote him. (Allen Resp. at 27.)
Even if the court were to accept this late change in Allen's position, Allen still cannot prevail on his claims based on the evidence in the record before the court. As noted by Murray, "Allen has offered no evidence to suggest that if Murray had agressively promoted him and even if the alleged infringement had never occurred, the Allen Song would have been a hit." (Murray Mem. at 13.) It is also undisputed that Allen never paid any compensation to Murray. (Murray Local R. 56.1(a)(3) Stmt. P 89.) Without damages, Allen has no viable breach of contract or breach of fiduciary duty claim against Murray. See Fabrica de Tejidos Imprial, S.A. v. Brandon Apparel Group, Inc., 218 F. Supp. 2d 974, 976 (N.D. Ill. 2002) (setting forth elements of breach of contract claim); LaFlamboy v. Landek, 587 F. Supp. 2d 914, 950 (N.D. Ill. 2008) (setting forth elements of breach of fiduciary duty claim). Accordingly, Murray's motion for summary judgment is granted and judgment is entered in favor of Murray on Counts II and III of the first amended complaint.
For the reasons set forth above, Count I is dismissed with prejudice insofar as it pertains to defendant Andrea Murray. Murray's "Motion for Summary Judgment" [200] is granted as to Counts II and III, and judgment is entered in Murray's favor on these counts. Allen's "Motion to Strike the Supplemental Affidavit of Rodney Jerkins and Citations to Same in Defendants' Reply Memoranda and Rule 56.1 Responses" [254], the Destiny's Child Defendants' "Second Motion for Summary Judgment" [207], and the Jerkins Defendants' "Motion for Summary Judgment" [197] are each denied.
1 Maurice Joshua, who is proceeding pro se, was found to be in default on January 24, 2008. However, this default was vacated after Joshua filed his answer to Allen's first amended complaint on January 31, 2008.
2 Robert Waller, Robert Morrison and Ricky Lewis were found to be in default on June 10, 2008.
3 No Harm Publishing was found to be in default on April 5, 2007.
4 For the sake of completeness the court notes that Allen has not produced any evidence that the Jerkins Defendants or the Destiny's Child Defendants directed Rude, Waller, or Morrison not to respond to the first amended complaint, or otherwise controlled those defendants in their litigation decisions. In such a situation, it is possible that the balance of equities could lead to a different result.
5 Allen also gave a version of the Allen Song to Murray; however, Allen concedes that Murray did not provide a copy of the Allen Song to any of the Songwriter Defendants.
6 "DAT" stands for "digital audio tape." (Allen Dep. 76:12-13.)
7 The court rejects Allen's alternative theories of access--through Mathew Knowles or through Jerkins' working association with Joshua--as speculative and unsupported by the record.
8 An interval is the "difference in pitch between tones sounded simultaneously or successively." Random House Webster's College Dictionary 706 (1995). The "intervallic structure" of a song accordingly refers to the relationship of the notes in the song. (DC Local R. 56.1(a)(3) Stmt. P 43.)
9 A "falling third" refers to the movement from one note downward two steps on a musical scale to the next note. (DC Local R. 56.1(a)(3) Stmt. P 44.)
10 The court has listened to the certified copy of the September 1998 version (on file with the Clerk's Office as Exhibit 4 to Docket Number 175 (the Destiny's Child Defendants' memorandum in support of their first motion for summary judgment)), as well as the uncertified copies filed as Exhibits 4 and 6 to the Destiny's Child Defendants' pending motion for summary judgment. All three versions appear to start in mid-phrase, with the opening line "...nice firm embrace."
11No sheet music or official transcription of either song has been provided to this court in the record in this case. Both experts, Anthony Ricigliano (Destiny's Child) and Dr. Robert Fink (Allen) have created their own transcriptions of certain portions of the Allen Song and the DC Song, which are included in their respective reports. At times, these transcriptions differ from one another. Viewing the evidence in the light most favorable to Allen, the court relies on Dr. Fink's transcriptions for purposes of its current analysis. (Dkt. No. 208, DC Ex. 27 ("Fink Report").) To facilitate comparison of the two songs, Dr. Fink transposed the DC Song "up one semitone so as to match its pitch level" to the Allen Song and reduced the note values of the DC Song "50% from those used in the published version of the song." (Fink Report P 9.)
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Summer is here, and everyone is looking for a body of water to beat the heat! But first, make sureRead more
Tag: watersports
Pool Basketball Hoop Comparison
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Refueling electric vehicles may soon be easier: Coulomb Technologies and Aker Wade Power Technologies are developing public charging stations able to recharge an electric vehicle in under 30 minutes.
Range anxiety is no small factor in the EV market. Providing for fast electric car battery recharge may lessen angst over the possibility of being stranded during longer recharge times: 240-volt charging stations reduce the recharge time by half compared to standard 120-volt outlets.
Charging stations should be available for installation in late 2010 and will cost $20K-$40 per unit.
EV Refueling Infrastructure
More Stats +/-
Future Festival: 2 for 1 Flash Sale!
Self-Charging Cars
Wind-Powered Supercars
Convenient Solar Fuel Stations
Charging Cars With Plants
Chargepoint to Alleviate EV Users' Range Anxiety
- By: Katie CordreyJan 19, 2010
References: hybridcars & green.autoblog
References: hybridcars & green.autoblog


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Rebounding and patience will be the keys when the Hilliard Bradley High School girls basketball team battles Olentangy in a Division I district semifinal at 6 p.m. Thursday, March 1, at Olentangy Orange.
Rebounding and patience will be the keys when the Hilliard Bradley High School girls basketball team battles Olentangy in a Division I district semifinal at 6 p.m. Thursday, March 1, at Olentangy Orange.
The Jaguars must be able to limit the rebounding advantage that the taller Braves have against most opponents. Olentangy starts 6-foot-3 senior Ronnie Kenley and 6-0 junior Megan Beidelman in the post, as well as 5-10 junior Katie Heath, who can play on the wing or in the post.
"For three years now, we've been the underdog on the boards in nearly every game we've played and we've adjusted well," Bradley coach Kathy Lindsey said. "The guards in our program know they have to rebound and they've become good rebounders. We believe in lifting weights and I think that's definitely made a difference with our older, 5-foot-8 guards."
The Braves, who were 13th in the final state poll, are seeded seventh in the district tournament. They advanced by beating Westland 52-42 in the first round Feb. 15 and Delaware 70-38 in the second round Feb. 21.
Olentangy is 20-2, with its losses being 62-61 to Dublin Scioto on Dec. 6 and 60-55 to Louisville (Ky.) Butler on Dec. 28 in a KSA tournament in Orlando, Fla.
The Braves have a strong inside-outside game, so cheating off the perimeter to help on post defense is risky. Against Delaware, senior guard Nicole Payne made four 3-pointers en route to a team-best 14 points. Point guard Gina Miccinilli had 12 points, as did Beidelman. Kenley added six points, eight rebounds and five blocks.
Bradley advanced by beating Lancaster 54-31 in the second round Feb. 21 to improve to 15-7.
The Jaguars also have been getting more scoring balance. Senior Jasmine Junkins, a 5-10 post player, had 14 points and 11 rebounds against the Golden Gales. Senior shooting guard Brooke Espenschied had 20 points and 5-11 freshman post player Ashley Hummel added eight points. Senior point guard Katie Lindsey had seven assists.
"We did a nice job with ball reversal and they were playing Jasmine high, so we could get the ball to her on a lob without backside defensive help," coach Lindsey said. "Then they started cheating off and we were able to make five 3-pointers.
"The kids are doing a great job listening to the game plan, working hard in practice and carrying it over into the games. Even the reserve players are playing their roles well. Since Christmas, the older kids have connected with the younger ones on and off the court. The team bonding, playing together and buying into the team concept has improved greatly, and that cohesion is important. Everyone seems comfortable with their roles now and I think that shows in our record."
The winner plays top-seeded Reynoldsburg or ninth-seeded Watterson in a district final at 7 p.m. Saturday, March 3, at Orange.
Reynoldsburg advanced by beating Groveport 90-32 in the first round and Franklin Heights 109-15 in the second round. The Raiders, who were the top-ranked team in the final state poll, are 22-0 entering their matchup with Watterson on Thursday, March 1.
Reynoldsburg is led by senior guard Aliyah Zantt, junior guards Yamonie Jenkins and Shiloh Murphy, 6-0 junior post player Destini Cooper and 6-3 sophomore post player Alyssa Rice.
Watterson improved to 18-4 by beating Grove City 69-34 in the first round and Hilliard Darby 51-34 in the second round.
The Eagles, who have won 10 of their last 11, are led by senior guards Ashley Andracki and Regina Smith, 5-10 junior post player Kayla Cook and 5-9 junior forward Annie Garvin. Other contributors are 5-10 senior Celeste Cantwell and 5-10 sophomore Alexis Mayle.
Andracki led the Eagles in scoring average through 21 games at 11.3 points, followed by Cook (8.1), Gavin (8.1) and Smith (5.8).
The district champion advances to a regional semifinal at 6:15 p.m. Tuesday, March 6, at Otterbein University against the North Canton District champion. In those district semifinals Thursday, March 1, Wooster plays Uniontown Green and Canton McKinley plays North Canton Hoover.
Canton McKinley was sixth in the final state poll. North Canton Hoover was 14th.
The regional final is 1 p.m. March 10 at Otterbein.
•The boys team stayed with taller Dublin Coffman through three quarters, but the Shamrocks used a 28-15 fourth quarter to pull away to a 69-50 win over the Jaguars in the first round of the Division I district tournament Feb. 25 at Reynoldsburg.
Bradley, playing in the Division I postseason for the first time, is now 0-3 in district tournament contests.
The Jaguars lost to Bexley 64-60 in the first round of the Division II district tournament last season after losing to Granville 51-46 in Division II in the program's first season.
Bradley entered the postseason on a roll, having won nine of 13 games in the 2012 portion of the schedule after losing its first six contests. The Jaguars finished 9-12 overall.
A.J. Dixon led Bradley with 15 points against Coffman, while Jacob Starinsky and Trent Weaver both scored 13.
Kevin Marsh scored 19 to lead the Shamrocks, who improved to 13-8 and advanced to play 11th-seeded Gahanna in the second round Friday, March 2.