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SDNY reminder: Resist the temptation of "and/or" in your copyright-infringement pleadings


In a December 30, 2022, memorandum opinion and order ruling on a motion to dismiss, Judge Woods for the Southern District of New York, provided some useful reminders for folks pleading copyright claims in McKenzie-Morris v. V.P. Records Retail Outlet, Inc. (S.D. N.Y. 2022).


Defendant record labels filed a motion to dismiss Shuana McKenzie-Morris's (performance name "Etana") complaint alleging, among other things, copyright infringement. Unfortunately, for Ms. McKenzie-Morris, the court granted the motion to dismiss with respect to the copyright claims.


For domestic works, a plaintiff must comply with the Copyright Act's registration requirement before pursuing an infringement claim in court. So to satisfy the pleading requirement to survive a motion to dismiss, a plaintiff must allege "'which specific original works are the subject of the copyright right claim' and 'that the [purportedly infringed] copyrights have been registered in accordance with the [copyright] statute.'"


In this case, the plaintiff pleaded that she owned copyrights either through a certificate of copyright registration "and/or" a "valid recording/publishing agreement related to [this] action."


By refusing to provide clear language indicating which copyrighted works were registered, the plaintiff made it impossible for the court to determine which works she could pursue in court. So the entire copyright cause of action was dismissed.


This case is a helpful reminder that the common temptation in legal drafting to maximize ambiguity and options, especially with the dreaded "and/or" is frequently inadvisable: whether you are drafting agreements or trying to satisfy the well-pleaded complaint requirements of federal court.


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