The opinion of the court was delivered by: Paul L. Friedman United States District Judge
Plaintiff Robert R. Prunté alleges that approximately 45 named defendants have infringed his copyright in numerous songs that he wrote and produced. He seeks to recover damages pursuant to the Copyright Act, 17 U.S.C. §§ 101 et seq., for direct and contributory copyright violations. Of the many defendants currently named in this case, only two - UMG Recordings, Inc. ("UMG" or "Universal"), and Warner Music Group Corp. ("Warner") (collectively "the defendants"), have responded to the complaint. These defendants have filed a motion for summary judgment, and Mr. Prunté has filed a cross-motion. Mr. Prunté has also submitted two plainly frivolous motions in which he (1) alleges that the defendants are in contempt of court, and (2) requests that the Court "take judicial notice of certain adjudicative facts and facts of law." Docket No. 94 at 1. The defendants have moved to strike various papers filed by Mr. Prunté, including his motion alleging contempt of court and his motion for summary judgment.*fn1
Upon consideration of the entire record in this case, the parties' arguments, and the relevant law, the Court concludes that the defendants' works are not substantially similar to those of the plaintiff and that the defendants therefore are entitled to summary judgment on all claims. Having already ruled that expert reports would not be accepted at this stage of the litigation, see Prunté v. Universal Music Group, Civil Action No. 06-0480, Memorandum Opinion and Order at 5-6 (D.D.C. Mar. 25, 2009), the Court will also grant the defendants' motion to strike the plaintiff's expert report. Each of the remaining outstanding motions will be denied as either meritless or moot.
According to his various complaints, plaintiff Robert Prunté is a composer of hiphop songs and the president of YoWorld Music ("YoWorld"), a company whose street teams sell and give away Mr. Prunté's music in various urban areas. See Compl. ¶ 65; id., Exs. F, H, M; First Am. Compl. ¶¶ 73, 75.*fn2 As President of YoWorld, Mr. Prunté took part in a service provided by Inside Sessions, a division of defendant Universal, which involved his purchasing an educational CD-ROM on how to succeed in the music industry and submitting samples of his musical work for professional industry feedback. Compl. ¶ 65; id., Ex. D; First Am. Compl. at 8; id. ¶ 89. Mr. Prunté submitted 38 songs to Inside Sessions in 2001 and received written critiques from Inside Sessions in 2002. See Compl. ¶ 65; id., Exs. B-C.
On March 25, 2006, Mr. Prunte commenced this action by filing a complaint on his own behalf and that of YoWorld against approximately 45 corporate and individual recording industry defendants, including large production companies such as Universal, Warner, and Viacom and well-known artists such as Eminem, Kanye West, and Lil Wayne.*fn3 Mr. Prunté asserted a total of twelve claims against all defendants collectively. Two of those claims asserted copyright infringement, while the remaining ten alleged breach of fiduciary duty, violations of the Lanham Act, civil RICO claims, criminal extortion, and bank fraud. See First Am. Compl. ¶¶ 131-312. Although his complaint named numerous defendants, Mr. Prunté obtained summonses for just three of them - Universal, Warner, and Viacom - and served process only upon Universal and Warner. See Prunté v. Universal Music Group, 484 F. Supp 2d 32, 36 (D.D.C. 2007).
On March 30, 2007, ruling on a motion to dismiss filed by Universal and Warner, the Court dismissed all of the pending claims except those alleging copyright infringement.
Prunté v. Universal Music Group, 484 F. Supp 2d at 44. The Court also dismissed all claims brought by YoWorld on the ground that Mr. Prunté, proceeding pro se, could not represent an artificial entity. Id. at 37-38. On March 11, 2008, the Court dismissed all pending claims against Viacom, finding that Mr. Prunté had never effected proper service upon that defendant. Prunté v. Universal Music Group, 248 F.R.D. 335, 339 (D.D.C. 2008). As a result of those rulings, Mr. Prunté's complaint now consists only of claims alleging direct and contributory copyright infringement against Universal, Warner, and a host of individuals and companies for whom summonses have not been issued and who have never appeared in this litigation. Mr. Prunté alleges that the various defendants conspired to imitate protectible elements of fourteen songs in which he holds the copyrights and to feed the resulting sixteen infringing songs to "already hot artist[s] on the [defendant production companies'] roster[s]." First Am. Compl. ¶ 5; see also Pl.'s MSJ at 6.
On June 2, 2008, the Court ruled that the defendants would be permitted to file a motion for summary judgment prior to the commencement of discovery on the issue of whether the defendants' allegedly infringing songs are substantially similar to Mr. Prunté's music. Prunté v. Universal Music Group, 563 F. Supp. 2d 41, 43-45 (D.D.C. 2008). The Court reasoned that, in all likelihood, the only evidence necessary to a decision on substantial similarity would be (1) recordings of all the songs at issue, and (2) transcriptions of the songs' lyrics. Id. at 44. The parties could easily exchange that evidence among themselves and provide it to the Court, thus avoiding the expense of formal discovery at least temporarily. Id. In the event that Mr. Prunté determined that he would need further evidence in order to answer the defendants' motion, he would be permitted to move for limited discovery pursuant to Rule 56(f) of the Federal Rules of Civil Procedure. Id. at 45.
During the several months following the issuance of the Court's June 2, 2008 Order, the parties were unable to complete the exchange of evidence contemplated by the Court and failed to agree on a briefing schedule for the defendants' motion for summary judgment. See Prunté v. Universal Music Group, Civil Action No. 06-0480, Memorandum Opinion and Order at 1-2 (D.D.C. Mar. 25, 2009). In that period, Mr. Prunté filed six "baseless" motions, prompting the Court to warn him that he could be barred from filing further papers without leave if he continued to "clog [the Court's] docket... with meritless motions." Id. at 3 (internal quotation marks omitted). To facilitate the briefing and resolution of the anticipated motion for summary judgment, the Court stated that it required five pieces of evidence: (1) a list of the allegedly infringed songs; (2) a list of the allegedly infringing songs; (3) a document "explaining which portions of Mr. Prunté's works were, in his view, infringed by [the defendants'] works" and "clearly identify[ing] the allegedly infringed portions of Mr. Prunté's works and the allegedly infringing portions of [the defendants'] works"; (4) a compact disc containing recordings of the allegedly infringed songs; and (5) a separate compact disc containing recordings of the allegedly infringing songs. Id. at 5. The Court warned that "[n]o other evidence will be permitted except by leave of Court" and ordered Mr. Prunté to submit the five requested pieces of evidence. Id. at 5-6. Finally, the Court instructed Mr. Prunté to file the requested evidence on or before May 1, 2009, and ordered the defendants to file their motion for summary judgment on or before June 15, 2009. Id. at 6.
Instead of following the Court's explicit instructions by submitting only the five pieces of evidence requested and permitted, Mr. Prunté responded to the Court's March 25, 2009 Order by filing three motions and the report of a purported music expert. See Pl.'s MSJ; Mikeal Report; Pl.'s MJN; Pl.'s Cont. Mot. The first motion alleges that the defendants should be held in contempt of Court because they failed to file their motion for summary judgment by April 20, 2009. See Pl.'s Cont. Mot at 2. The second requests the entry of summary judgment in Mr. Prunté's favor. See Pl.'s MSJ. That motion is accompanied by some but not all of the evidence requested by the Court. See Music CD; Lyrics. The third motion, in which Mr. Prunté requests "judicial notice of certain adjudicative facts and facts of law," merely reiterates the facts alleged in plaintiff's complaints and his motion for summary judgment.
The defendants moved to strike several of Mr. Prunté's filings as frivolous and/or not permitted by the terms of the Court's March 25, 2009 Order. See Defs.'Opp. at 1-2. They then timely filed their motion for summary judgment on the issue of substantial similarly on June 15, 2009. That motion is now ripe and appropriate for resolution.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P 56(c). Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255; see also Wash. Post Co. v. U.S. Dep't. of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989).
Pro se complaints filed without the assistance of counsel are held "to less stringent standards than formal pleadings drafted by lawyers," Chandler v. W.E. Welch & Assocs., 553 F. Supp. 2d 94, 102 (D.D.C. 2008) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (internal quotation marks omitted), and, when necessary, the Court may examine other pleadings "to understand the nature and basis of [a plaintiff's] pro se claims." Gray v. Poole, 275 F.3d 1113, 1115 (D.C. Cir. 2002). A pro se plaintiff's inferences "need not be accepted 'if such inferences are unsupported by the facts set out in the complaint.'" Caldwell v. District of Columbia, 901 F. Supp. 7, 10 (D.D.C. 1995) (quoting Henthorn v. Dep't. of Navy, 29 F.3d 682, 684 (D.C. Cir. 1994)). Furthermore, a pro se plaintiff's opposition to a motion for summary judgment, like any other, must consist of more than mere unsupported allegations and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in his favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50.
B. Copyright Infringement
To establish copyright infringement, a plaintiff must prove "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361 (1991); see also Stenograph L.L.C. v. Bossard Assocs., Inc., 144 F.3d 96, 99 (D.C. Cir. 1998). The second requirement - that is, the copying of original "constituent elements" - is composed of two sub-parts. Specifically, "[t]he plaintiff must show not only that the defendant actually copied the plaintiff's work, but also that the defendant's work is 'substantially similar' to protectible elements of the plaintiff's work." Sturdza v. United Arab Emirates, 281 F.3d 1287, 1295 (D.C. Cir. 2002). The first sub-element is generally referred to as "actual" or "factual" copying and the second is generally referred to as "improper" or "actionable" copying. See Johnson v. Gordon, 409 F.3d 12, 18 (1st Cir. 2005); see also 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 13.01[B] at 13-8 (2008) (hereinafter "NIMMER").
Even if actual copying is established, a plaintiff must establish actionable copying to prevail. In other words, "[c]opying as a factual matter is insufficient, if [actionable copying] is lacking." NIMMER § 13.01[B] at 13-9; see also id. at 13-14 (actionable copying "remains an indispensable [component] of plaintiff's proof, even in cases... in which defendant does not contest factual copying"). Courts employ a two-step analysis to determine whether defendants have engaged in actionable copying:
The first [step] requires identifying which aspects of the artist's work, if any, are protectible by copyright. No author may copyright facts or ideas. The copyright is limited to those aspects of the work - termed "expression" - that display the stamp of the author's originality....
Once unprotectible elements such as ideas and scènes à faire are excluded, the [second] step of the inquiry involves determining whether the allegedly infringing work is "substantially similar" to protectible elements of the [complaining] artist's work. "Substantial similarity" exists where the accused work is so similar to the plaintiff's work that an ordinary reasonable person would conclude that the ...