Febreze successful in dismissing copyright suit regarding commercial jingle… for now

New York


United States

In Cates v. Shlemovitz, No. 3:21-CV-0805 (LEK/ML) (N.D.N.Y. 2022), the plaintiff brought an action against Procter & Gamble and a number of other defendants alleging that the defendants infringed on his copyright by: (1) using a five-note phrase in a Febreze commercial that was similar to a five-note phrase that he created; and, (2) by including phrases resembling his composition in an album that they uploaded to SoundCloud.

Requirements to establish copyright infringement

The United States District Court for the Northern District of New York reviewed the requirements to establish copyright infringement and explained that, in order to establish copyright infringement, two elements must be proven:

  1.  ownership of a valid copyright; and
  2. copying of constituent elements of the work that are original (at 3).

In order to establish that a defendant copied constituent elements of an original work, a plaintiff must establish that:

  1. the defendant has actually copied the plaintiff's work; and
  2. the copying is illegal because a substantial similarity exists between the defendant's work and the protectable elements of the plaintiff's work (at 3).

Actual copying may be shown through either direct evidence of copying or circumstantial evidence that the defendant had access to the plaintiff's work (at 3).

Circumstantial evidence may be demonstrated through either:

  1. a particular chain of events by which the defendant might have gained access to the work; or
  2. facts showing that plaintiff's work was widely disseminated, such that access can be inferred (at 3).

Under the “chain of events” method, the plaintiff must demonstrate that the defendant had access to the copyrighted material and that there are similarities between the two works that are probative of copying (at 4).

No direct or circumstantial evidence of copying

The Court held that there was no direct evidence that the defendants actually copied the plaintiff’s composition nor did the plaintiff provide any account of a chain of events whereby the defendants would have had an opportunity to view his composition. Therefore, the plaintiff failed to demonstrate access through a chain of events. The plaintiff also did not sufficiently allege that the infringed composition was widely disseminated such that it could be shown that it was accessed by the defendants (at 4-5).

The Court held that because the plaintiff did not plead sufficient facts to plausibly establish that the defendants actually copied his work, the Court did not need to assess whether the plaintiff’s composition was substantially similar to the defendants' work or whether it is sufficiently original. (at 6).

Court gives the plaintiff another chance

The Court noted that the plaintiff appeared pro se, and therefore, the Court provided him with an opportunity to file an amended complaint to plead facts showing either a chain of events that would have given the defendants access to his work, or that his work was widely disseminated (at 6).

May 30, 2022
Cates v. Shlemovitz, No. 3:21-CV-0805 (LEK/ML) (N.D.N.Y. 2022)
Federal Courts