<b><i>Online Extra:</i></b> Common Elements of Gangster Life Not Copyrightable</b>

Shadrach Winstead, of Newark, NJ and author of Preacher's Son ' But the Streets Turned Me Into a Gangster, claimed that 50 Cent, a.k.a. Curtis Jackson, used plot lines and dialogue from the book in Before I Self-Destruct, a 2009 DVD and CD. Winstead's book and 50 Cent's movie are set in urban New Jersey and depict characters spending time in jail, searching for an ex-girlfriend, obtaining money through criminal activity and experiencing a parent's death.

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Winstead, raised by his father in Newark, gravitated to crime as a teenager, became a drug dealer and spent time in prison before his father's death led him to rediscover religion and find redemption. In 50 Cent's movie, the protagonist is a basketball standout whose athletic career is cut short by a knee injury. After his mother is killed in a drive-by shooting, the character begins stealing to support his younger brother. Ultimately 50 Cent's character is killed by his girlfriend's jealous former boyfriend.

Winstead cited 25 phrases from his autobiography that he claims were repeated in 50 Cent's movie, including 'Get the dope, cut this dope,' 'let's keep it popping' and 'I said the strong takes from the weak, but the smart takes from everybody.'

In addition to 50 Cent, the suit named entities allegedly involved in his CD and DVD: Interscope Records, G-Unit Records, Shady Records, Aftermath Entertainment, and Polydor Ltd. The defendants contended that Winstead misquoted many of his alleged copying examples, rearranged 50 Cent's lyrics to create similarity where none existed and cited language that did not exist in 50 Cent's works.

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Winstead also claimed that a typist who assisted him with production of his autobiography passed the manuscript to representatives of 50 Cent. Winstead alleged claims of copyright infringement and state law claims of unfair competition, conversion, misappropriation and unjust enrichment.

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In September 2011, U.S. District Judge Stanley Chesler in Newark granted the defendants' motion to dismiss for failure to state a claim on which relief could be granted. 'Any common themes of a young male whose tumultuous upbringing leads him to resort to a life of crime and violence in order to gain power and money are scenes ' faire, or standard to any coming of age story of a young man from an inner-city,' Chesler wrote.

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Winstead filed an appeal, pro se, but Third Circuit Judges Marjorie Rendell, D. Michael Fisher and Leonard Garth affirmed, saying in an unpublished opinion that not all copying is infringement and that a lay observer would not believe that 50 Cent's CD and film copied protectable aspects of Winstead's work. Winstead failed to state an actionable claim for copyright infringement because, although his book and 50 Cent's works share similar themes and setting, the stories are common, the panel said.

The court was unpersuaded by Winstead's argument that common, short hip-hop phrases from his book were copyright protected. 'The average person reading or listening to these phrases in the context of an overall story or song would not regard them as unique,' the court said.

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In addition, Winstead's book and 50 Cent's works vary with regard to character, plot, mood and sequence of events, the appeals court said. And Winstead's book is hopeful, while 50 Cent's film is characterized by 'moral apathy, the appellate panel said.

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Defense lawyer Peter Raymond, of Reed Smith in New York, says his clients did not have access to Winstead's manuscript and that the plaintiff's autobiography was not available to the public at the time the movie was in production. Raymond acknowledges that certain phrases were used in Winstead's book and the defendants' movie, but adds these were 'simply phrases used in the drug trade and a similar context' and not subject to copyright.

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For Winstead to succeed, he would have to show 'a fairly identical plotline, characters and dialogue,' says Raymond. 'It's very hard to copyright a story about an individual growing up in the ghetto and getting involved in crime.'

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Charles Toutant is a Reporter for New Jersey Law Journal, an ALM affiliate publication of Entertainment Law & Finance.'

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Gang life marked by death and prison is a common theme not subject to copyright, the U.S. Court of Appeals for the Third Circuit held in affirming dismissal of a suit by an author who claimed recording artist 50 Cent stole from his autobiography. Winstead v. Jackson, 11-3771. The 'story of an angry and wronged protagonist who turns to a life of violence and crime has long been part of the public domain,' the federal appeals court noted.

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Shadrach Winstead, of Newark, NJ and author of Preacher's Son ' But the Streets Turned Me Into a Gangster, claimed that 50 Cent, a.k.a. Curtis Jackson, used plot lines and dialogue from the book in Before I Self-Destruct, a 2009 DVD and CD. Winstead's book and 50 Cent's movie are set in urban New Jersey and depict characters spending time in jail, searching for an ex-girlfriend, obtaining money through criminal activity and experiencing a parent's death.

'

Winstead, raised by his father in Newark, gravitated to crime as a teenager, became a drug dealer and spent time in prison before his father's death led him to rediscover religion and find redemption. In 50 Cent's movie, the protagonist is a basketball standout whose athletic career is cut short by a knee injury. After his mother is killed in a drive-by shooting, the character begins stealing to support his younger brother. Ultimately 50 Cent's character is killed by his girlfriend's jealous former boyfriend.

Winstead cited 25 phrases from his autobiography that he claims were repeated in 50 Cent's movie, including 'Get the dope, cut this dope,' 'let's keep it popping' and 'I said the strong takes from the weak, but the smart takes from everybody.'

In addition to 50 Cent, the suit named entities allegedly involved in his CD and DVD: Interscope Records, G-Unit Records, Shady Records, Aftermath Entertainment, and Polydor Ltd. The defendants contended that Winstead misquoted many of his alleged copying examples, rearranged 50 Cent's lyrics to create similarity where none existed and cited language that did not exist in 50 Cent's works.

'

Winstead also claimed that a typist who assisted him with production of his autobiography passed the manuscript to representatives of 50 Cent. Winstead alleged claims of copyright infringement and state law claims of unfair competition, conversion, misappropriation and unjust enrichment.

'

In September 2011, U.S. District Judge Stanley Chesler in Newark granted the defendants' motion to dismiss for failure to state a claim on which relief could be granted. 'Any common themes of a young male whose tumultuous upbringing leads him to resort to a life of crime and violence in order to gain power and money are scenes ' faire, or standard to any coming of age story of a young man from an inner-city,' Chesler wrote.

'

Winstead filed an appeal, pro se, but Third Circuit Judges Marjorie Rendell, D. Michael Fisher and Leonard Garth affirmed, saying in an unpublished opinion that not all copying is infringement and that a lay observer would not believe that 50 Cent's CD and film copied protectable aspects of Winstead's work. Winstead failed to state an actionable claim for copyright infringement because, although his book and 50 Cent's works share similar themes and setting, the stories are common, the panel said.

The court was unpersuaded by Winstead's argument that common, short hip-hop phrases from his book were copyright protected. 'The average person reading or listening to these phrases in the context of an overall story or song would not regard them as unique,' the court said.

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In addition, Winstead's book and 50 Cent's works vary with regard to character, plot, mood and sequence of events, the appeals court said. And Winstead's book is hopeful, while 50 Cent's film is characterized by 'moral apathy, the appellate panel said.

'

Defense lawyer Peter Raymond, of Reed Smith in New York, says his clients did not have access to Winstead's manuscript and that the plaintiff's autobiography was not available to the public at the time the movie was in production. Raymond acknowledges that certain phrases were used in Winstead's book and the defendants' movie, but adds these were 'simply phrases used in the drug trade and a similar context' and not subject to copyright.

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For Winstead to succeed, he would have to show 'a fairly identical plotline, characters and dialogue,' says Raymond. 'It's very hard to copyright a story about an individual growing up in the ghetto and getting involved in crime.'

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Charles Toutant is a Reporter for New Jersey Law Journal, an ALM affiliate publication of Entertainment Law & Finance.'