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Kelley v. Universal Music Group (S.D.N.Y. July 5, 2017) – Music Infringement

Posted by Steve Vondran | Feb 22, 2018 | 0 Comments

California Music Infringement Law Firm – Copyright Case Briefs!


This case has to do with copyrighted music and “standing” to file a lawsuit.  Pro se plaintiff's case was dismissed and was unable to re-open the case after agreeing to a settlement with a majority of the defendants.


Plaintiff's Herman Kelley and Bessie Banks, representing themselves pro se, sued Defendants UMG Recordings, Inc., Island Def Jam Music Group, Island Def Jam Records, Desert Storm Records, Killa Records, and John David Jackson a/k/a Fabolous for copyright infringement. Specifically, Plaintiffs allege that Fabolous sampled a portion of their song, “Try To Leave Me If You Can,” in his song “For the Love”.

In their Complaint, Plaintiff's alleged:

(1) copyright infringement of the “Try to Leave Me If You Can” musical composition;

(2) violation of plaintiff's “poetic license”;

(3) fraudulent deceit and conspiring to swindle;


(4) mental anguish.

For the entire litigation, Fabolous, Killa Records and Desert Storm Records have not appeared in the action. The other defendants, namely UMG, Island Def Jam Records and Def Jam Records, filed a motion to dismiss the Complaint and a motion for summary judgment.

The Court granted the Defendant's first Motion to Dismiss because Plaintiffs had not sufficiently established they were the owners of the copyright in the composition to have standing to sue under the Copyright Act. The Court further dismissed with prejudice the “poetic license” and “fraudulent deceit and conspiring to swindle” claims as preempted by the Copyright Act.

Finally, the Court dismissed with prejudice the “mental anguish” claim as being outside the scope of the Copyright Act. The Court instructed the pro se plaintiffs to amend their complaint only to their copyright infringement claim.  Plaintiffs subsequently filed their Second Amended Complaint, repleading all four claims and new claims for:

(1) copyright infringement of the sound recording of “Try to Leave Me If You Can” that was allegedly sampled by Fabolous


(2) violation of intellectual property.

Defendants UMG, IDJMG and DJR moved to dismiss the Second Amended Complaint.

The Court found that the plaintiffs had sufficiently established their beneficial ownership of the Composition and therefore cured the standing issue as to the copyright infringement claim for the Composition. However, he dismissed the copyright infringement claim as to the sound recording for lack of standing because the plaintiffs had not adequately pled legal or beneficial ownership of the Recording. Construing the “violation of intellectual property” claim as a state-law unfair competition claim, the Court found it was preempted by the Copyright Act.

Finally, the Court again dismissed the claims for violation of “poetic license,” “fraudulent deceit and conspiring to swindle,” and “mental anguish” because they had previously been dismissed with prejudice and, in any case, were “either preempted by or [sought] damages outside the scope of the Copyright Act.”


Whether the case should be dismissed as to the active defendants and/or the absent defendants?

Rule of Law

This case shows that it is important for all defendants to engage in litigation, otherwise claims against the absent defendants will remain actionable.


The only issue that remained after the second Motion to Dismiss was violation of the musical composition. Before trial, the Defendants filed a stipulation voluntarily dismissing the action with prejudice as to UMG, IDJMG and DJR. Plaintiff followed and submitted a letter informing the Court of the “fully executed settlement agreement” between the parties and stated they “had no reason to show cause as to why this action should not be dismissed.”  However, two months thereafter, plaintiffs sent a letter to chambers that they were seeking legal counsel to assist them in this action.

As to UMG, IDJMG and DJR, plaintiff's first letter regarding the settlement agreement explicitly stated plaintiffs had no reason to show cause as to why this action should not be dismissed. Thus, its subsequent letter stating they were seeking legal counsel is of no consequence and the claims against UMG, IDJMG and DJR was dismissed with prejudice.

However, as to Fabolous, Desert Storm Records and Killa, the case was dismissed without prejudice for failure to effect service.

Music Licensing Resources

  1. Key Music Law Cases
  2. RIIA
  3. ASCAP
  4. BMI
  5. Harry Fox Agency
  6. SoundExchange
  7. SESAC

Contact a California Music Infringement Law Firm

We can help artists, bands, musicians, producers and record labels in reviewing and advising on music contracts, infringement actions, royalty disputes, licensing and other music law legal issues.  Call us at (877) 276-5084. 

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337


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