Opinion
Civil Action No. 3:00-CV-2763.
May 3, 2001.
MEMORANDUM OPINION AND ORDER
Now before the Court in this action for copyright infringement is the Defendants' Motion to Dismiss for Failure to State a Claim, filed on April 17, 2000. For the reasons stated below, the Defendants' Motion is GRANTED and the case is DISMISSED with prejudice.
I. BACKGROUND FACTS
In 1993 the Plaintiff, Paul Domsalla, doing business as Wolftrax Records ("Domsalla"), began using the phrase "Texas Thunder" in connection with a sound recording made for Domsalla by a group of musicians led by Benny Valerio. During that same year, Domsalla obtained a copyright registration "with the intent of asserting and registering all copyright protections applicable by law to use in commerce of the words `Texas Thunder' as embodied in a sound recording." Comp. at 2. Then, in 1995, the musical group, "Benny Valerio and Texas Thunder" began consistently conducting live musical performances under that name. Further, in 1998 Domsalla and Valerio filed an application for issuance of a trademark for the exclusive rights to use the name "Benny Valerio and Texas Thunder," which is still pending.
The Court notes that Domsalla has apparently lost some of his "thunder" in that he has failed to file a response to the Defendants' Motion to Dismiss.
At some point after 1993, the Defendants began conducting live musical performances under the group name "Rick Stephens and Texas Thunder." Further, Domsalla alleges that the Defendants have created and maintain a website known as "www.texasthunder.com," on which the Defendants promote their band and sell "Texas Thunder" merchandise.
This website address actually belongs to "Texas Thunder Speedway, Kileen, Texas." To find the Defendants' website, the Court did a quick internet search and found that the Defendants' website address is actually "www.txthunder.com." While conducting this search the Court learned that there are several organizations that use the name Texas Thunder, including at least two other bands: "Les Hartman and the Texas Thunder Band" and "Joel Machado and Texas Thunder."
As a result of the Defendants' use of the term "Texas Thunder," on December 21, 2000, Domsalla brought this suit alleging copyright infringement pursuant to 17 U.S.C. § 501.
II. ANALYSIS
A. Standard of Review
When ruling on a motion to dismiss, the court must accept all well-pleaded facts as true and view them in the light most favorable to the pleading party. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995). The complaint will only be dismissed if it appears beyond doubt that the pleading party can prove no set of facts in support of its claim that would entitle it to relief. See Campbell, 43 F.3d at 975; Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994). The relevant question is not whether the pleading party will prevail, but whether it is entitled to offer evidence to support its claims.See Cross Timbers Concerned Citizens v. Saginaw, 991 F. Supp. 563, 571 (N.D. Tex. 1997).
B. Copyright Infringement Claim
To succeed on a copyright infringement claim, a party must prove two elements: "(1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original."Feist Publications, Inc. v. Rural Telephone Serv., Inc., 499 U.S. 340, 361 (1991). The requirement of originality means that the work must exhibit some "minimal creativity." 1 Melville B. Nimmer David Nimmer, Nimmer on Copyright § 2.01 [B] at 2-15. In general, "short phrases . . . do not exhibit the minimal creativity required for copyright protection." Arica Institute. Inc. v. Palmer, 970 F.2d 1067, 1072 (2d Circ. 1992). Further, the U.S. Copyright Office will not grant copyright protection to "names, titles or short phrases." United States Copyright Office Information Circular 34 at 1.
While Domsalla owns a copyright for the use in commerce of the words "Texas Thunder" as embodied in his copyrighted sound recording, Domsalla does not own, and could not even apply for or receive, a copyright for this phrase alone. The phrase "Texas Thunder" lacks the originality required of copyrighted material. This is evidenced by the fact that a simple search on the internet returns over twenty examples of the use of the phrase by people other than Domsalla, including a motor speedway, at least three bands, and a girls' fastpitch softball team. Further, the Defendants have presented examples of forty-six organizations that use the phrase "Texas Thunder" in their name. As such, the phrase "Texas Thunder" is not sufficiently original to be the subject of a copyright. Thus, as a matter of law, Domsalla cannot claim copyright infringement for the use of this phrase and his suit must be dismissed for failure to state a claim upon which relief may be granted.
III. CONCLUSION
For the foregoing reasons, the Defendants' Motion to Dismiss is GRANTED and the case is DISMISSED with prejudice.