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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

BRUCE LYLES, 

 Plaintiff, 

 Case No. 2:12-CV-00751 

 v. JUDGE GREGORY L. FROST 

 Magistrate Judge Elizabeth P. Deavers 

CAPITAL - EMI MUSIC INC., et al., 

 Defendants. 

OPINION AND ORDER 

This matter is before the Court for consideration of the following filings: (1) the amended 

motion to dismiss Plaintiff’s Complaint filed by Defendant Usher Raymond (ECF No. 35), (2) 

the motion to dismiss filed by Defendant Katy Perry (ECF No. 39), (3) a memorandum in 

opposition to both motions filed by Plaintiff Bruce Lyles (ECF No. 42), (4) a reply memorandum 

filed by Perry (ECF No. 48), and (5) a reply memorandum filed by Raymond (ECF No. 49). The 

Court finds the motions to dismiss well taken, as Plaintiff fails to state a valid claim for copyright 

infringement. The Court therefore GRANTS the motions to dismiss and DISMISSES 

DEFENDANTS PERRY AND RAYMOND from this action. 

I.

Plaintiff Bruce Lyles, an Ohio resident proceeding in this action pro se and in forma 

pauperis, filed his Complaint on August 22, 2012. (ECF No. 3.) Plaintiff’s Complaint alleges 

claims for copyright infringement against Capital - EMI Music, Inc., Perry, Raymond, Taio 

Cruz, Lukasz Gottwald, and David Guetta. Plaintiff alleges that Perry copied his songs Surfs 

Edge, Netherworld and Someone; specifically, Plaintiff contends that Perry’s popular songs 

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California Gurls, Teenage Dream, and Last Friday Night infringe upon his copyrighted works. 

Plaintiff also alleges that Defendants Raymond, Taio Cruz and David Guetta copied his song 

Where; specifically, Plaintiff alleges that Without You, a song that features vocals by Raymond 

and appears on Guetta’s album Nothing But The Beat, infringes upon his copyright for Where. 

Pursuant to an initial screen of Plaintiff’s Complaint under 28 U.S.C. § 1915(e)(2), this 

Court dismissed (1) Plaintiff’s claims against Defendant Perry for copyright infringement of 

Plaintiff’s song Someone, (2) Plaintiff’s claims against Defendants Raymond, Cruz, and Guetta 

for copyright infringement of Plaintif’s song Without You, and (3) all claims against Defendants 

Capital -EMI Music, Inc. and Gottwald. (ECF Nos. 6, 12.) The Court allowed Plaintiff’s claims 

to proceed on his claims against Perry for alleged copyright infringement of Surfs Edge and 

Netherworld and against Raymond, Cruz, and Guetta for alleged copyright infringement of 

Where. 

Defendants Perry and Raymond filed motions to dismiss pursuant to Federal Rule of 

Civil Procedure 12(b)(6). (ECF Nos. 35, 39.) Briefing has closed on the motions, which are ripe 

for disposition. 

II.

“A pleading that states a claim for relief must contain . . . a short and plain statement of 

the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). The 

requirement is meant to provide the opposing party with “‘fair notice of what the . . . claim is and 

the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 

1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 

L.Ed.2d. 80 (1957)). If a complaint does not meet that standard, the opposing party may move to 

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dismiss it for failure to state a claim at any time before filing an answer. Fed. R. Civ. P. 

12(b)(6). 

In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court 

will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as 

true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 

F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The 

court’s role is limited to determining whether the plaintiff is entitled to move forward and offer 

evidence to support the claims alleged, not whether the plaintiff can ultimately prove the facts 

alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S. Ct. 992, 152 L. Ed. 2d 1 

(2002). “Indeed it may appear on the face of the pleadings that a recovery is very remote and 

unlikely but that is not the test.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 

Even though a complaint need not plead “detailed factual allegations,” the allegations in 

the pleading “must be enough to raise a right to relief above the speculative level.” Twombly, 

550 U.S. at 555. “The factual allegations, assumed to be true, must do more than create 

speculation or suspicion of a legally cognizable cause of action; they must show entitlement to 

relief.” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) 

(citing Twombly, 550 U.S. at 555). The plaintiff’s obligation to provide the grounds for this 

“entitlement” to legal relief “requires more than labels and conclusions, and a formulaic 

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. 

Accordingly, to survive a motion to dismiss, “[f]actual allegations must be enough to raise a 

right to relief above a speculative level, on the assumption that all the allegations in the 

complaint are true.” Id. at 555–56, 127 S.Ct. 1955 (citations omitted). The complaint must 

contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its 

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face.” Id. at 570. “Facial plausibility” requires the plaintiff to include sufficient “factual 

content that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. 

III. 

To establish a copyright infringement claim, a plaintiff must show: “(1) ownership of a 

valid copyright; and (2) copying of constituent elements of the work that are original.” See Feist 

Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991); see also Hi-Tech Video 

Prods., Inc. v. Capital Cities/ABC, Inc., 58 F.3d. 1093, 1095 (6thCir. 1995). For purposes of the 

motions to dismiss now before the Court, Defendants do not dispute Plaintiff’s ownership of his 

copyrights. Thus, whether Plaintiff’s claim survives dismissal depends on whether he has 

adequately pleaded a plausible claim of “copying.” 

Plaintiff’s Complaint does not profess that direct evidence of copying exists. This is not 

surprising, as “direct evidence of copying is rarely available.” Stromback v. New Line Cinema, 

384 F.3d 283, 293 (6th Cir. 2004). Where there is no direct evidence of copying, a plaintiff may 

“establish an inference of copying by showing (1) access to the allegedly-infringing work by 

defendant(s) and (2) a substantial similarity between the two works at issue.” Ellis v. Diffie, 177 

F.3d. 503, 506 (6th Cir. 1999); see also Fogerty v. MGM Group Holdings Corp., Inc., 379 F.3d. 

348, 352 (6th Cir. 2004). 

A. Access 

In the copyright infringement context, “access” means hearing or having a reasonable 

opportunity to hear the plaintiff’s work, such that there is an “opportunity to copy.” Ellis, 177 

F.3d. at 506. “Although ‘evidence that a third party with whom both the plaintiff and defendant 

were concurrently dealing had possession of plaintiff’s work is sufficient to establish access by 

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the defendant’, ‘[a]ccess may not be inferred through mere speculation or conjecture.’” Ellis, 177 

F.3d at 506 (quoting 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 

13.02[A]); see also Jones v. Blige, 558 F.3d 485, 491 (6th Cir. 2009); Murray Hill Publ’ns, Inc. 

v. Twentieth Century Fox Film Corp., 361 F.3d 312, 316 (6th Cir. 2004). A plaintiff’s 

allegations must show that the defendant(s) had a “reasonable possibility” of viewing the 

plaintiff’s work. Id. 

 Here, Plaintiff fails to assert factual allegations that raise a right to relief above the level 

of bald speculation. As to the songs Surf’s Edge and Netherworld allegedly infringed by 

Defendant Perry, Plaintiff states in his Complaint that he “distributed [the allegedly copyrighted 

songs] to a number of Public / College Radio Stations in 2009 + prior to 2010, (nationally) 

including in California.” ’ As to the song Where allegedly infringed by Defendant Raymond, 

Plaintiff alleges that he sent the song to “a number of Public / College Radio Stations in 2008 

and since as well as [to] music companies.” (Compl., ECF No. 3 at PageID# 39.)1

 Absent 

taking a speculative leap, however, these allegations do not provide a valid basis for infer that 

any of the radio stations or record companies were connected with Defendants in such a manner 

that would have provided Defendants with an opportunity to copy Plaintiff’s work. Although 

Plaintiff is not required to plead “detailed factual allegations,” the “[f]actual allegations must be 

enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Absent 

some nonspeculative basis from which to conclude that Plaintiff’s songs got into the hands of 

Defendants Perry and Raymond, Plaintiff has failed to plead access in manner that would allow 

his copyright infringement claims to survive. 

 

1 Plaintiff attached to his Complaint several delivery confirmation receipts to corroborate his claim that he 

sent the allegedly copyrighted works to college and public radio stations and to “music companies.” 

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In reaching this conclusion in the context of a Rule 12(b)(6) motion, the Court finds 

instructive the decision of our sister court in Martinez v. McGraw, No. 3:08-0738, 2009 WL 

2447611, 2009 U.S. Dist. LEXIS 69862 (M.D. Tenn. Aug. 10, 2009). In Martinez, the plaintiff 

claimed that the defendants (one of whom was popular country music star Tim McGraw) gained 

access to plaintiff’s songs because McGraw used the same recording studio and worked with the 

same musical personnel as a recording artist who recorded a song that used lyrics from the 

plaintiff’s copyrighted collection. 2009 U.S. Dist. LEXIS 69862 at *3-4, *14. The court granted 

the defendants’ motion to dismiss under Rule 12(b)(6), finding that the plaintiff “failed to state 

facts that could raise even an inference of access.” Id. at *14. 

The alleged facts in this case are even more speculative than the allegations in Martinez. 

Plaintiff has only alleged that he sent his songs to radio stations and (in the case of the song 

allegedly infringed by Raymond) to “music companies.” Plaintiff does not allege any other facts 

that would allow a plausible inference of access that rises above the speculative level. Simply 

because Plaintiff sent his songs to numerous public and/or college radio stations around the 

United States does not mean that Defendants necessarily had the opportunity to listen to, much 

less copy, Plaintiff’s works. The mere fact of Plaintiff sending the songs to the various radio 

stations, even assuming that those stations received them, does not show either that the stations 

played the songs or that Defendants Perry and/or Raymond heard them. Nor do the allegations 

indicate that either Perry or Raymond worked with a third party who had access to Plaintiff’s 

songs. In order to infer access here, the Court would need to consider a speculative inferential 

chain where the radio stations received Plaintiff’s package, opened it, listened to it, contacted the 

Defendants, and then the Defendants copied it. 

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As to Raymond, the same is true with respect to the allegation that Plaintiff sent his 

allegedly copyrighted work to “music companies.” Absent bald speculation, there are no facts 

alleged that would allow any reasonable inference that the record companies to which Plaintiff 

sent his songs had any relationship with Raymond. Plaintiff has alleged even less of a 

connection between the alleged infringer and the allegedly protected work than did the Plaintiff 

in Martinez. 

B. Substantial Similarity 

Even assuming that Plaintiff’s Complaint alleged a plausible theory that Defendants had 

access to his copyrighted work, Plaintiff’s claim for copyright infringement still suffers for want 

of a showing of substantial similarity between his songs and the allegedly infringing songs of 

Defendants Perry and Raymond. 

To determine whether two works are substantially similar requires (1) identifying which 

aspects of a plaintiff’s work, if any, are protectable by copyright and (2) determining whether the 

allegedly infringing work “is ‘substantially similar’ to the protectable elements of the artist’s 

work.” Stromback, 384 F.3d at 294 (quoting Kohus v. Mariol, 328 F.3d 848, 855 (6th Cir. 

2003)). As to the first element, its purpose is to “filter out the unoriginal, unprotectible 

elements,” which include scenes à faire (i.e., incidents, characters, or settings). Id. at 294, 296. 

Concepts and themes that are “too commonplace” are also unprotected. Id. at 295 n.5. 

 After unprotected elements are removed, the Court must then proceed to compare the 

allegedly protected work and the allegedly infringing work side-by-side. Id. at 294-95. Where, 

as here, the works in question are made part of the pleadings in the case, it is entirely appropriate 

for the district court to address the issue of substantial similarity in connection with a motion to 

dismiss. Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010). 

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“If, in making that evaluation, the district court determines that the two works are not 

substantially similar as a matter of law, the district court can properly conclude that the plaintiff's 

complaint, together with the works incorporated therein, do not plausibly give rise to an 

entitlement to relief.” Id. (citations and internal quotations omitted). 

1. Defendant Perry’s Songs 

Plaintiff first alleges that Perry’s song California Gurls infringes on Plaintiff’s work, 

Surfs Edge, because it has the same “subject” and “theme,” which Plaintiff identifies as an 

“oceanside environment setting.” (Compl., ECF No. 3 at PageID# 39.) But this “environment 

setting” is precisely the sort of scene à faire that is not afforded copyright protection. See 

Stromback, 384 F.3d at 294-96. And even if the “oceanside environment setting” were a 

copyrightable element (a dubious proposition, in this Court’s view), a comparison of the songs 

reveals that they are about different aspects of that “oceanside environment”: whereas Surfs Edge 

appears to be about some relationship that is related to surfing, Perry’s California Gurls is about 

(as the title suggests) girls from California. Thus, even if the “theme” of Surfs Edge were a 

protectable element of Plaintiff’s copyright, the “theme” of Plaintiff’s song and Perry’s song are 

demonstrably different. 

In any event, a side-by-side comparison of Surfs Edge and California Gurls shows that 

the works are not substantially similar when examining their “core, expressive aspects.” The 

Court has listened to the two songs and finds that the lyrics and melody are decidedly dissimilar. 

Though Plaintiff alleges that the two songs have the “same vocal melody,” the Court disagrees. 

No “ordinary, reasonable observer” could find that California Gurls is similar to Surfs Edge, 

much less substantially similar. See Stromback, 384 F.3d at 294 (describing the second part of 

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the “substantial similarity” test as asking whether the “ordinary, reasonable observer” would find 

the works substantially similar). 

Nor does the Court find a cognizable claim that Perry’s song Teenage Dream is similar to 

Surfs Edge. Plaintiff contends that Teenage Dream has the “same emphasis on words, spacing, 

same melody idea, stress accents on words, etc.” as does Surfs Edge. (Compl., ECF No. 3 at 

PageID# 40; see also id. at PageID# 52.) Even assuming these features of Surfs Edge are 

protected elements for purposes of a copyright infringement claim, the Court nonetheless finds 

no substantial similarity between the two works as a matter of law. The melody and lyrics of the 

two songs are vastly dissimilar when listened to side by side. Teenage Dream is a much higher 

pitched and fast-paced song than Surfs Edge, which is low and dreary in tone. The Court finds 

nothing at all similar in the music or lyrics of the two songs. 

Finally, Plaintiff’s claim that Perry’s song Last Friday Night infringes upon Plaintiff’s 

song Netherworld is similarly doomed. Plaintiff contends that these two songs have “the same 

type of lyrical phrasing/scheme.” (Compl., ECF No. 3 at PageID# 40.) Plaintiff elaborates 

elsewhere in his Complaint, alleging that the “last stanza” of Last Friday Night has the “same 

lyrical phrasing” as Netherworld (viz., “don’t tag me with a computer chip /that’s not cool / that’s 

not hip / watch & control me every move . . .”). (Id. at PageID# 52.) The Court is at a complete 

loss, however, to find any substantial similarity. Neither the melody nor the lyrical phrasing of 

Last Friday Night resembles that of Netherworld at all. As to the lyrical phrasing, a comparison 

between the lyrics in the last stanza of Last Friday Night and the above quoted lyrics of 

Netherworld show no similarity in phrasing or subject matter. The last stanza of Last Friday 

Night contains the following lyrics: 

 

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Last Friday night 

Yeah we danced on tabletops 

And we took too many shots, think we kissed but I forgot 

Last Friday night 

Yeah we maxed our credit cards and got kicked out of the bar 

So we hit the boulevard 

Last Friday night 

We went streaking in the park, 

skinny dipping in the dark then had a ménage à trois 

Last Friday night 

Yeah I think we broke the law, always say we're gonna stop-op 

Ooh-ohh, this Friday night do it all again 

 The Court finds nothing about the “lyrical phrasing” of Last Friday Night to be similar to 

that of Netherworld. No reasonable listener to the two songs could find otherwise. 

2. Defendant Raymond’s Song 

As to Plaintiff’s claim that Raymond’s Without You infringes upon his work Where, the 

Court finds no substantial similarity between the two works. Plaintiff contends that Where 

“seems to have virtually the same or a very similar main vocal melody through the main verse 

sections as Without You” as well as a similar “chord structure theme repeating in these songs.” 

(Compl., ECF No. 3 at PageID# 58.) No ordinary listener, however, would view these songs as 

similar. 

Plaintiff’s song is performed by a solo voice (presumably Plaintiff’s) accompanied by a 

synthesizer “working with / setting approximately 70 parameters.” (Pl.’s Opp., ECF No. 42 at 

PageID# 343.) In contrast, Raymond’s Without You is, as described by Defendant, “a fully 

produced pop dance track, including drums, handclaps, bass, piano, strings, and several layers of 

synthesizers.” (Def. Raymond’s Mot., ECF No. 35 at PageID# 258.) Moreover, no ordinary, 

reasonable listener can listen to the two songs and conclude that they have a similar, much less 

the same, vocal melody. Nor do the songs have the same lyrics or even lyrics that address the 

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same subject matter. Plaintiff’s Where appears to be about someone looking for a “sound”; in 

stark contrast, Without You is about someone who has lost a lover or companion and is 

devastated by it. The vocal style, lyrics, and melody of the two songs are completely different. 

For the foregoing reasons, the Court finds no substantial similarity as a matter of law 

between Plaintiff’s songs and the challenged songs of either Defendant Perry or Defendant 

Raymond. Accordingly, Plaintiff has failed to state a valid claim for copyright infringement. 

IV. 

Plaintiff has simply failed to plead factual allegations that raise a right to relief for 

copyright infringement above the speculative level. The Plaintiff speculates that there was 

access to his copyrighted works, but has not stated any allegations that could raise even an 

inference of access. Moreover, a comparison of Plaintiff’s allegedly copyrighted works with 

those of Defendants Perry and Raymond shows no substantial similarity between the works as a 

matter of law. Accordingly, the Court GRANTS Defendant Perry’s motion to dismiss (ECF No. 

39) and Defendant Raymond’s Amended Motion to Dismiss (ECF No. 35). Defendants Perry 

and Raymond are DISMISSED as parties to this action. 

IT IS SO ORDERED. 

 /s/ Gregory L. Frost 

GREGORY L. FROST 

 UNITED STATES DISTRICT JUDGE 

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