reply to motion

8/12/2019 Reply to Motion

http://slidepdf.com/reader/full/reply-to-motion 1/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Michael J. Niborski (State Bar No. 192111)[email protected] K.C. Zolnor (State Bar No. 248686)[email protected] PRYOR CASHMAN LLP1801 Century Park East, 24th Floor

Los Angeles, California 90067-2302Tel: (310) 556-9608 / Fax: (310) 556-9670

Ilene S. Farkas (admitted pro hac vice)[email protected] E. Dellinger ( pro hac vice application forthcoming) [email protected] CASHMAN LLP7 Times SquareNew York, New York 10036-6569Tel: (212) 326-0108 / Fax: (212) 798-6306

Attorneys for DefendantsKANYE WEST, UMG RECORDINGS, INC., ROC-A-FELLA RECORDS, LLC,THE ISLAND DEF JAM MUSIC GROUP; CAROLINE DISTRIBUTION,ELECTRONIC ARTS, INC., WARNER BROS. ENTERTAINMENT INC., STONESTHROW RECORDS, and NBCUNIVERSAL MEDIA, LLC

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

Case No. CV 13-02449 BRO (JCx)

REPLY IN SUPPORT OF MOTIONFOR JUDGMENT ON THEPLEADINGS AS TO PLAINTIFFS’FOURTH AMENDED COMPLAINT

Hearing:Date: August 5, 2014Time: 8:30 a.m.Courtroom: 14

Objections to Extraneous Material;Supplemental Declaration of Ilene S.Farkas; and Supplemental Notice ofLodging filed concurrently

TRENA STEWARD, et al.,

Plaintiffs,v.

KANYE WEST, et al.,

Defendants.

)))))))))))))

))))))))))

Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 of 18 Page ID #:1801



i

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................... ii

I. PRELIMINARY STATEMENT ....................................................................... 1

II. ARGUMENT ..................................................................................................... 2

A. This Court Can Determine Non-Infringement on This Motion ................. 2

1. Plaintiffs Fail to Identify the Particular Work Infringed ..................... 3

2. Plaintiffs Fail to Allege Infringement as a Matter of Law ....................... 4

a. The Snippets Are Not Protectable ................................................ 5

b. Plaintiffs Have Also Failed to Allege Actionable Copying. ........ 6

c. Plaintiffs’ Remaining Argument Should Be Rejected ................. 8

B. Plaintiffs Concede They are Not Joint Authors.......................................... 9

C. Plaintiffs’ Declaratory Relief Claims are Time Barred ............................ 10

D. Statutory Damages And Attorneys’ Fees Are Unavailable ...................... 11

III. CONCLUSION ................................................................................................ 13




ii

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TABLE OF AUTHORITIES

CASES PAGE(s)

Aalmuhammed v. Lee,

202 F.3d 1227 (9th Cir. 2000) ....................................................................... 10

Amini Innovation Corp. v. McFerran Home Furnishings, Inc.,

2014 U.S. Dist. LEXIS 13342 (C.D. Cal. Jan. 31, 2014) ............................... 7

Arthur Rutenberg Homes v. Drew Homes, Inc.,

29 F.3d 1529 (11th Cir. 1994) ....................................................................... 12

Boisvert v. Wai Fun Li,

2014 U.S. Dist. LEXIS 9152 (N.D. Cal. Jan. 24, 2014) ................................. 3

DuckHole Inc. v. NBC Universal Media LLLC,

2013 U.S. Dist. LEXIS 157305 (C.D. Cal. Sept. 6, 2013) .............................. 3

Feist Publications, Inc. v. Rural Telegraph Serv. Co.,

499 U.S. 340 (1991) ........................................................................................ 5

Fisher v. Dees,

794 F.2d 432 (9th Cir. 1986) ........................................................................... 8

Forlenza v. AT&T,

2004 U.S. Dist. LEXIS 29549 (C.D. Cal. Apr. 12, 2004) ............................... 8

Garcia v. Google, Inc.,

743 F.3d 1258 (9th Cir. 2014) ................................................................... 9, 10

Lorenzo Pryor, et al. v. Wyclef Jean,

Case No. 13-02867 (C.D. Cal. Oct. 28, 2013) .............................................. 12

Marshall v. Huffman,

2010 U.S. Dist. LEXIS 134334 (N.D. Cal. Dec. 9, 2010) .............................. 4

Metropolitan-Goldwyn-Mayer, Inc. v. American Honda Motor Co.,

900 F. Supp. 1287 (C.D. Cal. 1995) ........................................................ 3, 4, 5




iii

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CASES PAGE(s)

Newton v. Diamond,

204 F. Supp. 2d 1244 (C.D. Cal. 2002), aff’d, 349 F.3d 591 (9th Cir.

2003) ............................................................................................................ 6, 7

Newton v. Diamond,

388 F.3d 1189 (9th Cir. 2003) ..................................................................... 7, 8

Ringgold v. Black Entertainment TV,

126 F.3d 70 (2d Cir. 1997) .............................................................................. 4

Salestraq America, LLC v. Zyskowski,

635 F. Supp. 2d 1178 (D. Nev. 2009) ........................................................... 12

Santa-Rosa v. Combo Records,

471 F.3d 224 (1st Cir. 2006) ......................................................................... 10

Seven Arts Filmed Entertainment, Ltd. v. Content Media Corp. PLC,

733 F.3d 1251 (9th Cir. Cal. 2013) ............................................................... 10

Silva v. Sunich,

2006 U.S. Dist. LEXIS 98021 (C.D. Cal. Sept. 6, 2006) .............................. 10

Stewart v. Abend,

495 U.S. 207 (1990) ...................................................................................... 11

Three Boys Music Corp. v. Bolton,

212 F.3d 477 (9th Cir. 2000) ........................................................................... 5

TufAmerica, Inc. v. Diamond,

968 F. Supp. 2d 588 (S.D.N.Y. 2013) ............................................................. 7

VMG v. Salsoul, LLC v. Ciccone,

2013 U.S. Dist. LEXIS 184127 (C.D. Cal. Nov. 18, 2013) .............. 6, 7, 8, 11

Worth v. Selchow & Righter Co.,

827 F.2d 569 (9th Cir. 2003) ........................................................................... 7




iv

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CASES PAGE(s)

Zuill v. Shanahan,

80 F.3d 1366 (9th Cir. Cal. 1996) ................................................................. 10

STATUTES PAGE(s)

17 U.S.C. § 101 ........................................................................................................ 11

17 U.S.C. § 114(a) ..................................................................................................... 4

17 U.S.C. § 114(g)(2)(e) ............................................................................................ 8

17 U.S.C § 408(a) .................................................................................................... 12

TREATISES PAGE(s)

2 Nimmer & Nimmer, Nimmer on Copyright, § 7.16[B][2][c] .............................. 12




1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Defendants respectfully submit this Reply Memorandum of Points and Authorities

support of their Motion for Judgment on the Pleadings pursuant to Rule 12(c) (the

“Motion”), filed June 16, 2014.

I. PRELIMINARY STATEMENT

Defendants’ Motion1 is based on the isolated, detached snippets from Plaintiffs’

Recordings, all of which this Court has already held are unprotectable on a compositional

level. The snippets last for a fraction of a second and each is less than .001% of Plaintiffs

Recording(s) as a whole. Plaintiffs ignore these critical and undisputed facts because the

are devastating to their arguments on the issue of protectability. Plaintiffs also fail to

distinguish Defendants’ dispositive authority, nor do they cite any authority supportive of

their positions.

Rather, Plaintiffs’ opposition depends on their bald and self-serving allegations tha

David Pryor’s “vocal performance” in the entire introduction to Plaintiffs’ Recordings is

“distinctive.” However, the mere distinctiveness of a voice does not transform a brief

recording of unprotectable words into protectable expression.2 Plaintiffs desperately hop

that this Court will decline to listen to the fleeting portions of Plaintiffs’ Recordings at iss

– snippets so miniscule and insignificant that neither Pryor nor any of the Plaintiffs herein

ever detected a single one of them for decades, in some cases, until they were directed to

YouTube video, purportedly dedicated solely to “finding” claimed samples in music.3 Bu

the Court need not accept Plaintiffs’ conclusory allegations of “distinctiveness.” Defenda

have attached the snippets at issue to their papers, so that this Court can determine that the

1 Capitalized terms herein are used as defined in the Motion.2 Indeed, Plaintiffs’ “expert” admits “every human voice is different.” (Stewart Rpt., ¶7).

3 Plaintiffs admit that they only discovered their claims by stumbling upon a video posted

on YouTube by someone who calls himself “DJ Funktual” entitled, “Top 10 Samples in

Hip Hop History Part XL.” (Slack Decl., ¶ 10). Without Mr. Funktual’s apparent raison

d’etre, Plaintiffs would have never discovered a single one of these alleged samples becau

they are, even to Pryor and his own children, undetectable.




2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

are neither qualitatively or quantitatively significant as a matter of law.

Defendants are not suggesting that a vocal performance can never be protectable. B

the law of copyright is quite clear: to state an actionable infringement claim, any alleged

taking must be (i) substantial, and (ii) of protectable expression. A recording of a word or

two that has been plucked from an arguably copyrightable work loses any distinctive

qualities that may exist in the work as a whole. Moreover, if the alleged taking of a fractio

of a second of a recording which, in turn, is less than 1/1000 of a percent of Plaintiffs’

Recording(s) as a whole passes the “substantial” test, then it is difficult to imagine what

would fail that test.

This Court should also dismiss Plaintiffs’ declaratory judgment claims because (a)

there is nothing protectable at issue; (b) Plaintiffs concede they are not “joint authors;” an

(c) these claims are time barred.

Finally, this Court may now rule, without leave to amend, that no statutory damage

or attorney’s fees may be recovered for any surviving claims. Plaintiffs concede that

statutory damages and attorney’s fees are not available for any alleged infringement of th

Gold Future Recording. And, since the Private Stock Recording is a “derivative work” of

the Gold Future Recording, and it is undisputed that Plaintiffs are not suing on the elemenadded in this derivative work, Plaintiffs cannot avoid the simple fact that Plaintiffs must

have a valid and timely registration to sue on and seek statutory damages and attorney’s

fees for infringement of the snippets, which are indisputably part of the original, Gold

Future Recording and owned by the owner of that recording. By Plaintiffs’ admissions, n

such remedies can be sought here.

II. ARGUMENT

A. This Court Can Determine Non-Infringement on This Motion

This Court need not consider any matters outside the pleading on this motion,

because the snippets of Plaintiffs’ Recording(s) at issue are incorporated by reference in t

4AC. Plaintiffs concede that this Court can listen to Plaintiffs’ Recordings and determine




3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

the issues presented on this motion. Indeed, no amount of discovery will change the facts

that (1) the snippets are merely recordings of unprotectable words or short phrases

appearing in the introduction of Plaintiffs’ Recordings; (2) each is a fraction of a second i

duration; (3) none of them is repeated in Plaintiffs’ Recordings nor appears as the title of

Plaintiffs’ Recordings; and (4) each is less than .001% of the total duration of Plaintiffs’

Recordings. Plaintiffs’ attempt to manufacture factual issues by submitting extraneous

“evidence” is improper and unnecessary for the determination of the issues before the

Court.4 Boisvert v. Wai Fun Li, 2014 U.S. Dist. LEXIS 9152, at *10 (N.D. Cal. Jan. 24,

2014); DuckHole Inc. v. NBC Universal Media LLLC, 2013 U.S. Dist. LEXIS 157305, a

*13 (C.D. Cal. Sept. 6, 2013). See cases cited in Defendants’ Motion, pp. 8-10.

Plaintiffs’ opposition ignores the controlling law of this Circuit, namely, “[a] claim

for copyright infringement requires that the plaintiff prove (1) its ownership of the copyri

in a particular work, and (2) the defendant’s copying of a substantial, legally protecta

portion of such work.” Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co., 900

F. Supp. 1287, 1292 (C.D. Cal. 1995) (emphasis supplied) (citation omitted). Plaintiffs’

4AC fails on several levels.

1. Plaintiffs Fail to Identify the Particular Work InfringedIn the 4AC and their opposition to the instant motion, Plaintiffs studiously avoid

identifying which of the Plaintiffs’ Recordings allegedly was infringed by any of

Defendants’ Recordings, and instead refer generically to “Pryor’s recorded vocal

performance.”5 Plaintiffs’ failure to identify the “particular work” infringed is a critical

4 Plaintiffs have submitted various self-serving declarations and a supposed “expert” repo

of the often-criticized Dr. Anthony Stewart. As this Motion does not present matters outs

the pleadings, the Court should decline to convert this Motion into a summary judgmentmotion. Defendants respectfully refer the Court to their Objections to this evidence. If the

Court decides to convert this Motion into a summary judgment motion, that motion shoul

be denied pursuant to Rule 12(d) as Defendants have not had the opportunity to depose D

Stewart or otherwise present pertinent material to oppose Plaintiffs’ arguments.5 This is not inadvertent – Plaintiffs know that, should any of their claims survive dismiss

serious issues exist regarding ownership, registration and access, depending on which of




4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

omission. Metro-Goldwyn-Mayer, 900 F. Supp. at 1292. Indeed, “in order to state a claim

for copyright infringement of a sound recording, the complaint must allege that the actual

sounds fixed in the copyrighted sound recording were duplicated in the infringing song.”

Marshall v. Huffman, 2010 U.S. Dist. LEXIS 134334, at *11 (N.D. Cal. Dec. 9, 2010); se

also 17 U.S.C. §114(a). Plaintiffs’ failure to identify the “particular work” infringed alone

mandates dismissal of Plaintiffs’ claims.6

2. Plaintiffs Fail To Allege Infringement As A Matter of Law

Plaintiffs devote a substantial amount of their opposition arguing that Defendants

have supposedly “conceded” copying,7 and that substantial similarity is “not an element o

claim for copyright infringement” but is, rather, limited to a fair use defense. (Pl. Opp. at

These nonsensical distractions are addressed at length in Defendants’ Opposition to

Plaintiffs’ Cross-Motion dated June 23, 2014, which is incorporated herein.8

Plaintiffs’ Recordings was allegedly “copied.” Plaintiffs intend to create a moving target

keep some claim alive, but Rule 8 requires otherwise.6 If the Court dismisses Plaintiffs’ claims on this basis, leave to amend should not be

granted for the reasons stated infra.7 Defendants are merely conceding that Plaintiffs have sufficiently alleged copying (whic

is a fact-intensive issue) for purposes of this Rule 12 Motion since Plaintiffs’ claims can a

should be dismissed based on the failure to allege actionable copying, which can be

determined at this stage as a matter of law. Should any claims survive dismissal, Defenda

will of course dispute copying.8 Plaintiffs’ confusion between “substantial similarity” used by Courts to address copying

versus actionable infringement is addressed in Defendants’ Opposition to Plaintiffs’ Cros

Motion. Indeed, this (perhaps feigned) confusion was not cured by the very cases cited by

Plaintiffs, such as Ringgold, which discussed at length that “care must be taken to recogn

that the concept of ‘substantial similarity’ itself has unfortunately been used to mean twodifferent things. On the one hand, it has been used as the threshold to determine the degre

of similarity that suffices, once access has been shown, as indirect proof of copying; on th

other hand, ‘substantial similarity’ is more properly used, after the fact of copying has bee

established, as the threshold for determining that the degree of similarity suffices to

demonstrate actionable infringement.” Ringgold v. Black Entm’t TV, 126 F.3d 70, 74 (2d

Cir. 1997) (citations omitted).




5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

a. The Snippets Are Not Protectable

Turning to the proper analysis of infringement claims, Plaintiffs have not and cann

allege that any of Defendants’ Recordings copied “a substantial, legally protectable

portion of [Plaintiffs’] work.” Metro-Goldwyn-Mayer, 900 F. Supp. at 1292 (emphasis

supplied) (citation omitted); see also Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S.

340, 361 (1991); Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000).

Plaintiffs ignore this Court’s prior holding – and the host of other dispositive

holdings – that “there is no originality” in the words and short phrases at issue, and that

“Plaintiff[s] may not assert copyright infringement based solely on the use of these lyrica

phrases.” (Docket 48). They argue, instead, that Pryor’s “distinctive voice and his artistic

interpretation of those lyrics” warrants protection. First, Plaintiffs’ analysis predominantly

relies upon Pryor’s “performance” of the whole introduction, when they refer to the

supposed “level of musicality.” There is no meaningful analysis of the individual snippet

themselves or any credible argument that Pryor’s supposed performance of, e.g., the sing

word “step” or the phrase “get down” on their own are “distinctive” – nor could there be.

Indeed, even when Plaintiffs argue that the “get down” snippet is “distinct,” they are

compelled to quote the longer phrase – “get down with the bus stop”, acknowledging thathe short fragment “get down,” on its own, is not meaningful or significant. (Pl. Opp. 12)

Plaintiffs’ reliance on the recent decision by Judge Lew in Pryor v. Warner/Chapp

which denied a motion to dismiss based on the alleged use of the “get down” snippet from

Plaintiffs’ Recordings, is sorely misplaced. First, none of the Defendants here is a party to

the Warner case, and none of Defendants’ Recordings is at issue there. Second, in finding

that the “get down” snippet was sufficiently original, Judge Lew focused on the introduct

as a whole – indeed, the decision quotes the entire introduction in its analysis and then rel

upon Plaintiffs’ bald allegations of Pryor’s “signature” voice – and failed to conduct the

9 Plaintiffs also cite as an example the song “Super Duck Breaks” and allege that the

“entire introduction” was sampled. But that song is not one of Defendants’ Recordings

issue on this motion.




6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

required independent analysis of the snippets alone.

Moreover, Judge Lew ignored Newton’s holding and instead relied upon two

Southern District of New York cases, Santrayall and Tin Pan Apple, both of which relied

upon “unusual words or sounds,” repeated “syncopated rhythms” and “musical and lyrica

phrases” in finding sufficient originality – not simply a recording of the generic

unprotectable words or short phrases at issue here. Newton v. Diamond, 204 F. Supp.2d

1244, 1244 (C.D. Cal. 2002), aff’d, 349 F.3d 591 (9th Cir. 2003). It also appears that Judg

Lew was unaware of this Court’s prior holding that the short phrase at issue (i.e., “get

down”) is unprotectable as a matter of law.

This Court can hear for itself that any artistic expression that arguably may exist in

the introduction as a whole is lost once 1 or 2 words are plucked from it and heard in

isolation. Indeed, they become unrecognizable, which likely explains why neither Pryor n

any of the Plaintiffs identified any of the allegedly infringing uses when Defendants’

Recordings were released.10

Plaintiffs fail to cite any authority holding that a recording of one spoken word or a

short generic phrase can be protectable. Rather, Plaintiffs cite to cases involving the

combination of “unusual words or sounds,” and musical components, which this Courtalready has held is not at issue here, and similarly inapposite cases where over 10 to 20

times the amount of material was allegedly copied. As in VMG, where the recorded

“horn hit” at issue lasted for a fraction of a second, the ½ second snippets here lack

sufficient originality as a matter of law.

b. Plaintiffs Have Also Failed to Allege Actionable Copying

Actionable, or substantial, copying is “measured by considering the qualitative and

10 Plaintiffs’ attempt to foist the ½ second spoken snippets into protecable expression by

calling Pryor’s performance “rapping” and “ahead of his time,” and further suggesting tha

Pryor “laid the foundation for future rap music as we know it,” is absurd and overly

desperate. The spoken word introduction is hardly a technique original to Pryor, nor did i

“lay the foundation” for anything. See, e.g., the introductions to Chubby Checker’s 1961

hit, “Let’s Twist Again” or the 1963 Angel’s hit, “My Boyfriend’s Back,” to name a few.




7

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

quantitative significance of the copied portion in relation to the plaintiff’s work as a whol

Newton v. Diamond, 388 F.3d 1189, 1195 (9th Cir. 2003) (emphasis added) (citing Wort

v. Selchow & Righter Co., 827 F.2d 569, 570 n. 1 (9th Cir. 1987)). Plaintiffs’ avoidance o

this test for infringement was purposeful.

Plaintiffs concede (as they must) that the snippets are ½ a second (at most) in

duration – not even one thousandth of a percent of Plaintiffs’ Recording(s) as a whole.

Plaintiffs do not cite to a single case that supports the notion that such a miniscule portion

a copyrighted work is quantitatively significant, nor do they distinguish any of the cases

cited by Defendants on this point – cases in which the samples at issue were quantitativel

longer, yet still held to be insignificant. See, e.g., VMG v. Salsoul, LLC v. Ciccone, 2013

U.S. Dist. LEXIS 184127, at *27 (C.D. Cal. Nov. 18, 2013); Newton, 204 F. Supp. 2d at

1258; TufAmerica, Inc. v. Diamond, 968 F. Supp. 2d 588, 605-606 (S.D.N.Y. 2013).

Plaintiffs concede that the snippets are “meager and fragmentary” compared to Plaintiffs’

Recordings as a whole.

Plaintiffs also fail to address Defendants’ qualitative analysis. Plaintiffs concede th

no musical elements appear in the snippets. Plaintiffs’ bare conclusion that Pryor’s speaki

voice as recorded in Plaintiffs’ Recordings is “distinctive” and his “signature ” is simplyinsufficient on this motion when the Court can consider the snippets before it. Moreover,

such a broad statement – while possibly relevant if the entire introduction was taken –

ignores the fleeting nature of the word or two plucked from the entire introduction and th

loss of any recognizability or distinctiveness in these ½ second sounds. To find otherwise

would violate the established maxim de minimis non curat lex – “the law does not concer

itself with trifles.” Newton, 388 F.3d at 1193 (citation and quotations omitted).11

11 Despite Plaintiffs’ attempt to minimize Newton’s holding, Brocade and Amini do not s

Newton is “unclear.” Rather, what they note as “unclear” is whether de minimis can be a

stand-alone affirmative defense or “whether it simply ‘highlights [Plaintiff’s] obligation t

show that the use must be significant enough to constitute infringement.’” Amini Innovat

Corp. v. McFerran Home Furnishings, Inc., 2014 U.S. Dist. LEXIS 13342, at *9 (C.D. C

Jan. 31, 2014) (citations omitted). Defendants are not moving under their de minimis




8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

Although Plaintiffs rely on the non-binding Warner decision, no quantitative analy

was performed. Judge Lew merely acknowledged that the snippet was a ½ of a second, b

then failed to complete its analysis or make any determination of quantitative significance

See, e.g., VMG, 2013 U.S. Dist. LEXIS 184127, at *34-35 (“The Court must assess the

qualitative and quantitative significance of the copied portion in relation to Plaintiff's wor

as a whole.”) (emphasis added); Forlenza v. AT&T, 2004 U.S. Dist. LEXIS 29549, at *6

(C.D. Cal. Apr. 12, 2004) (same).

Then, the Warner decision simply held that plaintiffs had sufficiently alleged, “alb

just barely,” the qualitative import of the snippet at issue (“get down”) based solely on the

Plaintiffs’ allegation that “one can hear David Pryor’s signature voice saying, “‘Get down

with the Bus Stop!’” Nothing in the decision suggests that the Warner court actually

listened to the snippet at issue or performed the necessary qualitative analysis. Indeed, ev

when referring to the phrase at issue, the Warner court erroneously referred to it as a

complete “sentence” – “Get down with the Bus Stop!” – and not the actual, two-word

snippet at issue, i.e., “get down.” Defendants respectfully submit that this Court must

examine the snippets; and, when it does, it can and should determine that they are neither

quantitatively nor qualitatively significant – rather, they are “so meager and fragmentarythat the average audience would not recognize the appropriation.” Newton, 388 F.3d at

1193 (quoting Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986)).

c. Plaintiffs’ Remaining Argument Should Be Rejected

Plaintiffs’ remaining argument seems to suggest that the Court should not determin

whether the alleged copying here was actionable because, had Defendants hired (the

deceased or incapacitated) Pryor as a “non-featured vocalist” on Defendants’ Recordings

he would have been entitled to royalties under 17 U.S.C. § 114(g)(2)(C). Plaintiffs then

affirmative defense, Defendants are moving based upon Plaintiffs’ failure to allege

actionable infringement as a matter of law, which is exactly what Brocade and Amini (an

Newton) hold is permissible.




9

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

make the leap that, because of this supposed statutory entitlement, as a matter of law, the

snippets are protectable. Plaintiffs’ citation to this statute is a red herring. Moreover, their

suggestion that this Court should abandon the law of the Ninth Circuit (and many others)

that “no legal consequences will follow from [alleged copying] unless the copying is

substantial” and that “the substantiality requirement applies throughout the law of

copyright, including cases of music sampling, even where there is a high degree of

similarity” – should be rejected. Newton, 388 F.3d at 1193-95 (emphasis added) (citation

omitted). In effect, Plaintiffs argue – without any authority – that any portion of any voca

performance on any recording is protectable, which is precisely the doctrine that courts of

this Circuit and others have expressly rejected in declining to follow the Sixth Circuit’s

“bright line” rule in Bridgeport.12 This frivolous argument should be rejected.13

B. Plaintiffs Concede They are Not Joint Authors

Plaintiffs concede that they have no claim for joint authorship for any of Defendan

Recordings at issue. Instead, Plaintiffs suggest that, pursuant to Garcia v. Google, Inc., 74

F.3d 1258, 1264 (9th Cir. 2014), they have a “beneficial ownership” in each of Defendan

Recordings simply because Pryor’s vocal performance “may” be protectable. First, even t

Garcia Court pointed out that the “contribution” at issue must, of course, be “independentcopyrightable” and that is not the case here. Garcia, 743 F.3d at 1263 (The plaintiff’s

“contribution” in Garcia was an acting performance and lasted over 10 times the duration

the snippets at issue here). Garcia simply provides, at best, that Plaintiffs may have a

12 Not surprisingly, Plaintiffs have not cited, and Defendants were unable to find, any cou

decision that cites to or relies upon this statute, much less one that holds that this statute

overrules the requirement that any alleged copying must be substantial. Plaintiffs have als

abandoned their previous reliance on Bridgeport now that it was rejected, once again, by

Judge Lew in the Warner decision.13

Plaintiffs’ reliance on the inapposite Ringgold case to support this argument is also

misplaced. That case dealt with the use of one visual work in another, and focused on the

issue of whether the plaintiff’s poster was visible, or “observable” in defendant’s televisi

show, which is relevant only with respect to visual works. But since Plaintiffs rely so

heavily on Ringgold , it is worth noting that it did go through a qualitative and quantitative

analysis to determine whether actionable copying occurred.




10

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

copyright interest in “that contribution” – not, as Plaintiffs argue, in Defendants’ Recordin

as a whole. As the Garcia court noted, “Garcia doesn't claim a copyright interest in

‘Innocence of Muslims’ itself; far from it.” Garcia, 743 F.3d at 1262. Accordingly,

Plaintiffs’ reliance on Garcia is misplaced.

The Garcia Court held that (as Defendants showed) the standard for joint authorsh

in an entire work is articulated in Aalmuhammed. Garcia, 743 F.3d at 1264. In fact, the

Garcia Court anticipated that some would rely on its decision to try to assert authorship in

entire works, and made clear that the Aalmuhammed standard of joint authorship applies

“It makes sense to impose heightened requirements on those who would leverage their

individual contribution into ownership of a greater whole[.]” Garcia, 743 F.3d at 1264.

Plaintiffs concede that they are not joint authors, and their reliance on Garcia is

misleading and misplaced. Their declaratory judgment claims should be dismissed.

C. Plaintiffs’ Declaratory Relief Claims are Time Barred

Plaintiffs’ “co-authorship” claims are also time barred. It is undisputed that each of

these recordings was released more than three years prior to the commencement of this

action. It is also undisputed that the liner notes and credits released with these recordings

did not credit Pryor, and that neither Pryor nor Plaintiffs were ever paid royalties inconnection with the five songs at issue. Plaintiffs concede that the failure to pay royalties

and the failure to credit the claimant constitute plain and express repudiation of joint

authorship. See, e.g., Aalmuhammed v. Lee, 202 F.3d 1227, 1231 (9th Cir. 2000); Santa

Rosa v. Combo Records, 471 F.3d 224, 228 (1st Cir. 2006) Silva v. Sunich, 2006 U.S. Di

LEXIS 98021, at *20-21 (C.D. Cal. Sept. 6, 2006). Thus, Plaintiffs’ declaratory relief

claims are time barred.14

14 Plaintiffs argue that the limitations period does not begin to run until plaintiffs asserted

their claim and that claim was repudiated by defendants, relying upon Seven Arts Filmed

Entm’t, Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254-1255 (9th Cir. Cal. 2013

and Zuill v. Shanahan, 80 F.3d 1366, 1368 (9th Cir. Cal. 1996). These holdings have been

strictly limited to circumstances in which a plaintiff and defendant are in a “close

relationship.” Seven Arts , 733 F.3d at 1256.




11

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

D. Statutory Damages And Attorney’s Fees Are Unavailable

Remarkably, Plaintiffs still refuse to identify which of Plaintiffs’ Recordings was

allegedly infringed. However, based on well-settled law and Plaintiffs’ own admissions,

Plaintiffs cannot recover statutory damages or attorney’s fees here.

First, Plaintiffs concede that statutory damages and attorney’s fees are not

recoverable for any alleged infringement of the Gold Future Recording, because the Gold

Future Recording was not registered before the alleged infringements commenced. (Pl.

Opp., n. 4). This Court should so rule. Second, Plaintiffs’ concession also has the effect o

foreclosing these remedies entirely, because any claim for infringement of the snippets

requires a timely registration for the original (Gold Future) recording.

Plaintiffs’ theory that the Private Stock Recording is a “derivative work” of the Go

Future Recording does not salvage these remedies. Plaintiffs seem to concede that Private

Stock owned the 1975 Private Stock Recording, and that the Private Stock registration

“inadvertently” failed to mention David Pryor’s authorship. Even if that is the case, then t

Private Stock registration may be valid because the proper owner registered the work, but

that derivative work registration does not cover the snippets from the prior, original work

The copyright interest in the derivative Private Stock Recording extends only to any new,original and copyrightable material added to the Gold Future Recording, which is the

original underlying work. 17 U.S.C. § 101; Stewart v. Abend, 495 U.S. 207, 223 (1990);

VMG, 2013 U.S. Dist. Lexis 184127, at *16 n.5. Ownership in that derivative work does

not extend to the pre-existing work, i.e., the Gold Future Recording.

Plaintiffs have repeatedly alleged that “no creative elements were added to the

[Private Stock] Record by Private Stock; the sound recording is a literal copy of the Reco

made by Pryor at Gold Future.” (4AC, ¶ 14) The only changes made in the Private Stock

Recording were to “enhance the mix and sound quality of the original master recordings

[the Gold Future Recordings]” and to shorten the playing length. Id. None of these “adde

elements are alleged to be infringed here or have anything to do with the spoken snippets




12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

and thus nothing protected by the Private Stock registration is at issue here. Under these

circumstances, Plaintiffs would still need a timely registration for the Gold Future

Recording to recover statutory damages or attorney’s fees (or even sue) on the snippets

which originate in the Gold Future Recording.

Plaintiffs do not dispute the law cited by Defendants that suit cannot be brought fo

infringement of the Gold Future Recording or the snippets contained therein based on the

Private Stock registration, because the owners of the two works are different.15

As a last possible permutation, if Plaintiffs are somehow arguing that David Pryor

owned the Private Stock Recording, then the Private Stock registration was invalid becau

Pryor (the supposed owner) did not register the work. Section 408 of the Copyright Act

requires that the owner of a copyright (or an exclusive right) register the work, or else the

registration is invalid. Arthur Rutenberg Homes v. Drew Homes, Inc., 29 F.3d 1529, 153

(11th Cir. 1994) (“…only the copyright owner may apply for registration. See 17 U.S.C.

408(a)”; if the original registration was invalid, then the assignee of that invalid registratio

could not bring suit for infringement). Plaintiffs utterly ignore this on-point holding, and

instead cite to other cases which address other arguably less significant omissions in

registrations – such as naming all authors or properly designating works as works for hireThose are not express requirements of § 408 and are irrelevant. Plaintiffs are not entitled t

seek statutory damages or attorney’s fees based on the Private Stock registration and, if

Pryor was the owner of that recording, then no suit for infringement can be maintained as

no valid registration exists for that work.

15 See supra, 2 Nimmer & Nimmer, Nimmer on Copyright, § 7.16[B][2][c]; Salestraq Am.,

LLC v. Zyskowski, 635 F. Supp. 2d 1178, 1181 (D. Nev. 2009); Lorenzo Pryor, et al. v. Wycl

Jean, Case No. 13-02867 DDP, Order Granting Defendants’ Motion to Dismiss (C.D. Cal. O

28, 2013) (Docket 30) .




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

III. CONCLUSION

For the foregoing reasons, and those presented in the Motion, Defendants

respectfully request that the Court grant Defendants’ Motion in its entirety.

PRYOR CASHMAN LLP

Dated: Jul 2, 2014 B : /s/ Michael J . NiborskiIlene S. [email protected] J. Niborski [email protected]

Attorneys for DefendantsKANYE WEST, UMG RECORDINGS, INC., ROC-A-FELLA RECORDS, LLC, THE

ISLAND DEF JAM MUSIC GROUP, CAROLINE DISTRIBUTION, ELECTRONIC ARTS, INC., WARNER

BROS. ENTERTAINMENT INC., STONES

THROW RECORDS, and NBCUNIVERSAL

MEDIA LLC


reply to motion

Documents