Reaffirming the Limits of Copyright Protection and the Absence of a Private Right of Action under Federal Criminal-Copyright Provisions: Lessons from Jones v. Atlantic Recording Corp. (2d Cir. 2025)

Introduction

Jones v. Atlantic Recording Corp. is a Second Circuit summary order that, while non-precedential, sharply delineates two recurring themes in copyright-related litigation:

1. The stringent substantial-similarity test governing claims of improper copying of musical works; and
2. The categorical bar against private civil enforcement of federal criminal-copyright statutes (17 U.S.C. § 506 and 18 U.S.C. § 2319).

Denise Jones, a pro se songwriter, alleged that high-profile recordings—specifically Megan Thee Stallion’s “Thot Sh*t” and Cardi B’s “WAP”—misappropriated her song “Grab Em By The P****” (“GEBTP”). She also asserted tort claims (intentional and negligent infliction of emotional distress) and sought a default judgment. The district court dismissed the complaint with prejudice, and the Second Circuit affirmed.

Although issued as a summary order, the decision succinctly illustrates how existing doctrine is applied to popular-music disputes and highlights procedural pitfalls commonly encountered by self-represented plaintiffs.

Summary of the Judgment

The Second Circuit, reviewing de novo under Rule 12(b)(6), upheld the district court on four central grounds:

1. No Substantial Similarity of Protectible Elements. The handful of shared words/themes between “GEBTP” and the defendants’ songs were not protectible expressions. Therefore, Jones failed to plead actionable copying.
2. No Private Right of Action under Criminal-Copyright Statutes. Sections 506 and 2319 are solely criminal provisions; civil plaintiffs cannot invoke them.
3. Tort Claims Deficient. Jones did not plausibly allege “extreme and outrageous” conduct (intentional infliction) nor a breached duty owed by defendants (negligent infliction).
4. Default Judgment Properly Denied. Defendants had appeared or had not yet been served; moreover, a default may not enter where the complaint fails to state a claim.

The judgment of the Southern District of New York was therefore affirmed in full.

Analysis

Precedents Cited and Their Influence

• Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).
  Reaffirmed the bedrock principle that copyright protects original expression, not ideas or facts. The panel relied on Feist’s “minimal degree of creativity” standard to evaluate whether the allegedly copied lyrics were protectible.
• Laureyssens v. Idea Group, Inc., 964 F.2d 131 (2d Cir. 1992).
  Supplied the two-step infringement framework: (1) ownership and (2) improper copying proved by substantial similarity. The Second Circuit adopted Laureyssens’ focus on “protectible material.”
• Williams v. Crichton, 84 F.3d 581 (2d Cir. 1996).
  Clarified that copyright does not extend to “ideas, themes, and general plot lines.” The panel analogized Jones’s allegations to those rejected in Williams, deeming the shared “general themes” non-copyrightable.
• Acuff-Rose Music, Inc. v. Jostens, 155 F.3d 140 (2d Cir. 1998).
  Held that common phrases cannot be monopolized. Cited to reject Jones’s reliance on isolated vulgar words common in hip-hop vernacular.
• Kelly v. L.L. Cool J, 145 F.R.D. 32 (S.D.N.Y. 1992), aff’d, 23 F.3d 398 (2d Cir. 1994), and Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2d Cir. 1982).
  Both confirm no private civil action exists under § 506. The panel followed this unbroken line to dismiss Jones’s “criminal copyright” count.
• Howell v. New York Post Co., 81 N.Y.2d 115 (1993) & Chanko v. ABC, 27 N.Y.3d 46 (2016).
  Set the “extreme and outrageous” threshold for intentional infliction of emotional distress. The court measured Jones’s allegations against this high bar.

Legal Reasoning

The court’s reasoning proceeds along four analytical tracks:

1. Parsing Protectible Expression. The panel compared lyric sets and concluded overlap existed only at the level of vulgar phrases (“grab,” “p****,” etc.) and sexual bravado—elements too commonplace for protection. Contextual placement, rhyme scheme, melody, structure, and overall feel diverged significantly.
2. Non-Justiciability of Criminal Provisions. Emphasizing separation of powers, the court reiterated that prosecutorial discretion resides with the Executive Branch; civil courts cannot be used to commandeer criminal copyright enforcement.
3. Tort Standards. The decision underscores New York’s narrow view of emotional-distress liability. Mere allegations of “internet stalking for ideas” lack the atrociousness requisite for intentional infliction, and no independent duty exists to avoid causing emotional harm through alleged infringement.
4. Procedural Integrity on Defaults. Federal courts require both procedural regularity and substantive plausibility before entering default judgment. Because defendants timely sought a pre-motion conference (thereby tolling answer deadlines) and the complaint was substantively infirm, default was correctly denied.

Impact on Future Litigation

While technically non-precedential under Local Rule 32.1.1, the order carries persuasive authority, particularly for district courts within the Second Circuit. Its most noteworthy practical implications include:

• Bolstering the “thin protection” doctrine in hip-hop lyric cases. Plaintiffs relying on shared slang, profanity, or sexual themes will face heightened scrutiny.
• Deterring mis-pleaded “criminal copyright” counts. The court’s clear language may reduce misuse of § 506/§ 2319 in civil filings.
• Guidance for Pro Se Litigants. The opinion demonstrates liberal construction of pro se complaints but also the limits of that solicitude when substantive law is clear.
• Clarifying Default-Judgment Practice. The ruling reminds practitioners that seeking a pre-motion conference under individual-judge rules effectively suspends the responsive-pleading deadline, inoculating defendants from default.

Complex Concepts Simplified

Substantial Similarity

A test asking whether an “ordinary observer, unless he set out to detect the disparities, would regard the aesthetic appeal as the same.” In music, courts look to melody, rhythm, harmony, structure, and specific lyrical expression, not merely isolated words or themes.

Protectible Expression vs. Unprotectible Ideas

Copyright guards the concrete form in which an idea is expressed (lyrics, melody), not the underlying idea itself (e.g., sexual empowerment in a rap song).

Private Right of Action

The legal ability of a private person to sue under a statute. Criminal statutes generally confer enforcement power on government prosecutors, not on private individuals.

Intentional Infliction of Emotional Distress (IIED)

A state-law tort requiring conduct so extreme that it “goes beyond all bounds of decency.” Mere rudeness, insults, or ordinary business disputes rarely qualify.

Default Judgment

A binding judgment entered when a defendant fails to plead or defend. Courts must still ensure the complaint states a viable claim before entering default.

Conclusion

Jones v. Atlantic Recording Corp. exemplifies the Second Circuit’s consistent application of foundational copyright principles: originality, substantial similarity, and the demarcation between idea and expression. Equally, it reinforces the long-settled rule that criminal-copyright provisions cannot be repurposed for private civil litigation. Though delivered as a summary order, the decision offers valuable guidance—especially to litigants in the music industry—on the evidentiary rigor required to transform perceived artistic overlap into cognizable infringement. For practitioners, it underscores the importance of careful pleading, statutory fit, and procedural precision; for artists and songwriters, it reaffirms that common themes, words, and ideas remain the shared currency of creative expression.