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For all the digital ink spilled over Kevin Powell’s claims over All Eyez on Me, the lawsuit is in danger of failing from the get-go thanks to basic lapse.
Powell, a prominent journalist and activist, alleges the Tupac Shakur biopic infringes upon several of his articles for Vibe magazine published in the 1990s. In a bid to show that producers lifted his creative expression, Powell says his articles contained embellishments including a made-up character copied and pasted into the film. But before the lawsuit ever gets to the point where a court might explore what’s protectable and what’s scene a faire, Powell must now respond to a motion to dismiss that was filed on Monday by Lionsgate, Morgan Creek, Program Pictures and L.T. Hutton.
The defendants say the lawsuit must be rejected because Powell has failed a fundamental prerequisite to sustaining a copyright infringement claim. Namely, that Powell hasn’t alleged he obtained — or even sought — a registration certificate for his works.
Over the years, courts throughout the nation have grappled with standards. Some judges have ruled that copyright applications are sufficient, though the rules have become stricter since the 2010 Supreme Court decision in Reed Elsevier v. Muchnick.
“Here, Plaintiff’s Complaint merely offers the conclusory allegations that the Asserted Works were ‘copyrighted’ or ‘copyrightable,'” states the motion to dismiss. “But Plaintiff did not plead that he owns valid copyright registrations in the Asserted Works, or that the Copyright Office denied registration for the Asserted Works. Nor did Plaintiff attach any registration certificates to the Complaint, or any correspondence from the Copyright Office indicating a refusal to register any of the Asserted Works. This alone warrants dismissal. Moreover, a search of the Copyright Office’s registration database for ‘Kevin Powell’ and for each of the titles of the Asserted Works returned no corresponding registrations.”
Powell’s attorney didn’t immediately respond to a request for response.
Full disclosure: Vibe is now owned by The Hollywood Reporter‘s parent company. It’s possible that Powell retained rights for his works through contract. It’s also possible that should Powell somehow fend off this dismissal motion, there could be further exploration of the ownership of the articles in question.
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