FILED
United States Court of Appeals
Tenth Circuit
November 3, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
CHARLES A. SYRUS,
Plaintiff-Appellant,
No. 11-6117
v. (D.C. No. 5:10-CV-01116-D)
(W.D. Okla.)
CLAY BENNETT; OKLAHOMA
CITY THUNDER,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MATHESON, Circuit Judge.
Charles A. Syrus appeals from the district court’s dismissal with prejudice
of his pro se copyright infringement action for failure to state a claim under
Federal Rules of Civil Procedure 8(a)(2) and 12(b)(6). We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. BACKGROUND 1
In 2007, Mr. Syrus wrote a song for defendant Oklahoma City Thunder, a
professional basketball team in the National Basketball Association. The Thunder
was formerly the Seattle Supersonics and relocated to Oklahoma City for the
2008-09 season. Mr. Syrus gave a copy of his song, for which he has a copyright
registration, to the Oklahoma City Mayor’s office in 2008. He also gave the song
to an unnamed coach and to the team’s head cheerleader, apparently in response
to the Thunder’s request that fans share ideas with the team. Mr. Syrus claimed
that various uses of the phrases “Thunder Up,” “Go Thunder,” and “Let’s Go
Thunder” violated his copyright because the phrases were taken from his song’s
lyrics. More specifically, he claimed that the phrases were chanted during games
by the team’s cheerleaders, its mascot, and, apparently, the crowd. He also
claimed that defendants used the phrases in advertising and on banners displayed
at the team’s home arena. He asked for “20-30% of net gross” as compensatory
damages. R. at 5. 2
1
Because we are reviewing a dismissal for failure to state a claim, we accept
as true the well-pleaded factual allegations of Mr. Syrus’s complaint. Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009). And as a pro se litigant, Mr. Syrus is
entitled to liberal treatment of his pleadings; however, we do not act as his
advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
2
Although he alleged in his complaint that defendants used his music as well
as his lyrics, Mr. Syrus advanced no argument in the district court in his response
to defendants’ motion to dismiss regarding the use of his music. Likewise on
appeal, he has advanced no discernible argument that defendants used the music
(continued...)
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Defendants moved to dismiss the complaint with prejudice under Rules
8(a)(2) and 12(b)(6) of the Federal Rules of Civil Procedure. Based on those
rules, a complaint must contain “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“Factual allegations must be enough to raise a right to relief above the speculative
level.” Id. at 555. For a claim to have facial plausibility, “the plaintiff [must]
plead[] factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009). “[W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘shown’—‘that the pleader is entitled to relief.’” Id.
at 1950 (brackets omitted) (quoting Fed. R. Civ. P. 8(a)(2)).
The district court granted the motion with respect to defendant Clay
Bennet, chairman of the Professional Basketball Club, LLC, the entity that owns
the Thunder, on the ground that none of Mr. Syrus’s allegations pertained to
Mr. Bennett and therefore Mr. Syrus had not established a plausible claim against
him. The court granted the motion with respect to the Thunder on the ground that
the short phrases Mr. Syrus contended were the basis of his claim are not subject
2
(...continued)
from his song. Accordingly, we do not construe Mr. Syrus’s claim as
encompassing the use of the music from his song.
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to copyright protection, and therefore he had not alleged facts establishing a
plausible claim for relief. Mr. Syrus then filed this appeal and sought the district
court’s permission to proceed on appeal in forma pauperis (IFP). The district
court denied the request on the ground that the appeal was not taken in good faith.
Mr. Syrus has filed a motion with this court to proceed IFP.
II. DISCUSSION
“We review de novo the grant of a Rule 12(b)(6) motion to dismiss for
failure to state a claim.” Gee v. Pacheco, 627 F.3d 1178, 1183 (10th Cir. 2010).
To prevail on a claim of copyright infringement, a plaintiff must establish two
elements: “(1) ownership of a valid copyright; and (2) copying of constituent
elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv.
Co., 499 U.S. 340, 361 (1991). Mr. Syrus did not allege facts showing it likely
that he could establish a plausible claim as to the first element.
Our analysis begins with the Copyright Clause of the United States
Constitution, which gives Congress the power “[t]o promote the Progress of
Science and useful Arts, by securing for limited Times to Authors and Inventors
the exclusive Right to their respective Writings and Discoveries.” U.S. Const.
art. I, § 8, cl. 8. Exercising this power, Congress has provided for copyright
protection to “original works of authorship fixed in any tangible medium of
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expression.” 17 U.S.C. § 102(a) (emphasis added). 3 “Original, as the term is
used in copyright, means only that the work was independently created by the
author (as opposed to copied from other works), and that it possesses at least
some minimal degree of creativity.” Feist Publ’ns, Inc., 499 U.S. at 345
(emphasis added). Indeed, as the Supreme Court has explained, the Copyright
Clause “is intended to motivate the creative activity of authors and inventors by
the provision of a special reward, and to allow the public access to the products of
their genius after the limited period of exclusive control has expired.” Sony Corp.
of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). Thus, copyright
protection extends only to works that “are the fruits of intellectual labor.” The
Trademark Cases, 100 U.S. 82, 94 (1879). Accordingly, words and short phrases
generally do not qualify for copyright protection, see 37 C.F.R. § 202.1(a) (listing
among materials not subject to copyright protection “[w]ords and short phrases
such as names, titles, and slogans”), particularly where they “convey[] an idea
typically expressed in a limited number of stereotyped fashions,” Narell v.
Freeman, 872 F.2d 907, 911 (9th Cir. 1989).
3
Copyright protection does not “extend to any idea . . . regardless of the
form in which it is described, explained, illustrated, or embodied in such work.”
17 U.S.C. § 102(b); see also 37 C.F.R. § 202.1(b) (stating that ideas are not
subject to copyright protection “as distinguished from the particular manner in
which they are expressed or described”).
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The authors of one respected copyright treatise, however, have suggested
that although “[t]he refusal to protect short phrases applies a fortiori to one or
two words, . . . a short phrase may command copyright protection if it exhibits
sufficient creativity. . . . The smaller the effort (e.g., two words) the greater must
be the degree of creativity in order to claim copyright protection.” 1 Melville B.
Nimmer & David Nimmer, Nimmer on Copyright, § 2.01[B], at 2-17 (Matthew
Bender, Rev. Ed. 2011) (footnote omitted).
We need not decide whether the general rule against copyrighting short
phrases admits of exceptions based on the level of creativity because we easily
conclude that the phrases “Go Thunder” and “Let’s Go Thunder” do not reflect
the minimal creativity required for copyright protection. 4 The phrases are merely
predictable variations on a cheer widely used in sports, that is, “Go” or “Let’s
Go” combined with the name of the team for which the cheer is uttered.
Mr. Syrus’s addition of the team name “Thunder” to the base form of the cheer
required no “intellectual labor,” The Trademark Cases, 100 U.S. at 94 (emphasis
omitted), did not possess any “degree of creativity,” Feist Publ’ns, Inc.,
499 at 345, and did not create a “product[] of [his] genius,” Sony Corp. of Am.,
464 U.S. at 429. Rather, the phrases simply “convey[] an idea typically expressed
4
On appeal, Mr. Syrus has disclaimed any rights to the phrase “Thunder
Up.” See Aplt. Opening Br. at unnumbered p. 17. Therefore, our discussion is
limited to the phrases “Go Thunder” and “Let’s Go Thunder.”
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in a limited number of stereotyped fashions,” Narell, 872 F.2d at 911, and
therefore are not subject to copyright protection.
None of Mr. Syrus’s discernible arguments regarding the validity of his
copyright persuades us differently. First, Mr. Syrus suggests that because he
obtained a copyright registration for his song, the phrases are protected by
copyright law under the presumption of validity accorded to certain registration
certificates by 17 U.S.C. § 410(c). But as merely prima facie evidence of a
copyright’s validity, “a certificate of registration creates no irrebuttable
presumption of copyright validity.” Carol Barnhart Inc. v. Econ. Cover Corp.,
773 F.2d 411, 414 (2d Cir. 1985) (quotation omitted). “Upon presentation of such
a certificate, the defendant bears the burden to overcome the presumption of
validity.” Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1196
(10th Cir. 2005). And once a defendant challenges the validity of a copyright, “it
is permissible for the district court itself to consider how the copyright law
applies to the articles under consideration.” Carol Barnhart Inc., 773 F.2d
at 414.
Mr. Syrus also advances the related proposition that the phrases are
protected because even a small portion of a copyrighted work may be entitled to
copyright protection. But significantly, “[t]he mere fact that a work is
copyrighted does not mean that every element of the work may be protected.
Originality remains the sine qua non of copyright; accordingly, copyright
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protection may extend only to those components of a work that are original to the
author.” Feist Publ’ns, Inc., 499 U.S. at 348. Thus, any copying of the short
phrases from Mr. Syrus’s song turns on whether the phrases themselves contain
the requisite degree of creativity; an “‘ordinary’ phrase” taken from a copyrighted
work “may be quoted without fear of infringement.” Salinger v. Random House,
Inc., 811 F.2d 90, 98 (2d Cir. 1987). As discussed, the phrases at issue here do
not contain sufficient creativity; they are, in other words, “ordinary.” Id. And
contrary to another of Mr. Syrus’s arguments, the fact that the Thunder did not
claim a copyright in “Go Thunder” or “Let’s Go Thunder” does not preclude
defendants from arguing that those phrases lack the requisite degree of creativity
to merit copyright protection; rather, the two positions are entirely consistent.
Mr. Syrus also appears to confuse copyright and trademark protection. For
example, he argues that even individual words such as “Budweiser” and “Coors”
are entitled to protection. But the type of protection “Budweiser” and “Coors”
are entitled to (at least as appears relevant to Mr. Syrus’s argument) is generated
by trademark law, not copyright law. Unlike copyright law, trademark rights
“grow[] out of . . . use” and do not “depend upon novelty, invention, discovery, or
any work of the brain.” The Trademark Cases, 100 U.S. at 94. Moreover, to
qualify for trademark protection under federal law, a mark must be “use[d] in
commerce,” 15 U.S.C. § 1114(1)(a), which means “the bona fide use of a mark in
the ordinary course of trade” on “goods” or “services,” id. § 1127 (definition of
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“use in commerce”). And the touchstone of a traditional trademark infringement
analysis is whether one person’s use of another’s mark “is likely to cause
confusion, or to cause mistake, or to deceive.” Id. § 1125(a)(1); see also id.
§ 1114(1)(a) (same concerning federally registered marks); 15 Okla. Stat. tit. 78,
§ 31 (same regarding marks registered in Oklahoma); id. § 33 (preserving
common law trademark rights). Mr. Syrus did not allege that he used the phrases
“Go Thunder” or “Let’s Go Thunder” in commerce in connection with his
provision of any goods or services, nor did he advance a claim that defendants’
use of the phrases constituted federal or state trademark infringement or violated
any other trade-related laws. 5
Because we conclude that Mr. Syrus does not have a valid copyright in the
phrases “Go Thunder” or “Let’s Go Thunder,” his claims fail as a matter of law
against both defendants. Thus, we do not separately address the district court’s
conclusion that Mr. Syrus’s complaint failed to state a plausible claim against
Mr. Bennett for lack of any allegations specific to him.
5
We acknowledge that Mr. Syrus filed a “Complaint for Negligence” in the
district court attached to which were copies of trademark registrations he received
from the Oklahoma Secretary of State for “Go Thunder!” and “Let’s Go
Thunder!” The district court struck the complaint as an unauthorized attempt to
amend his original complaint. Although Mr. Syrus refers to trademark rights in
his appellate briefs, he has not taken issue with the court’s order striking his
“Complaint for Negligence.” Accordingly, there is no claim of trademark
infringement for us to review.
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The judgment of the district court is AFFIRMED. Mr. Syrus’s motion to
proceed IFP on appeal is granted. Mr. Syrus’s request that this court admit an
exhibit attached to his reply brief is denied.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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