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Home , A Lonely Night, DaHeala, Often, XO (record label)

Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 1 of 28 Page ID #:1154

1 Peter Anderson, Esq., Cal. Bar No. 88891 [email protected] 2 Nicolette Vairo, Esq., Cal. Bar No. 311592 [email protected] 3 DAVIS WRIGHT TREMAINE LLP 865 South Figueroa Street, Suite 2400 4 Los Angeles, CA 90017-2566 Tel: (213) 633-6800 5 Fax: (213) 633-6899 6 Attorney for Defendants ABEL M. TESFAYE, KARL MARTIN 7 SANDBERG, SAVAN HARISH KOTECHA, AHMED BALSHE, JASON QUENNEVILLE, 8 WASSIM SALIBI, XO, LLC, THE WEEKND XO, INC., THE WEEKND XO 9 MUSIC, ULC, DAHEALA & CO., LLC, SAL & CO MANAGEMENT LP, SAL & CO LP, XO&CO., 10 INC., , INC., UMG RECORDINGS, INC., UNIVERSAL MUSIC 11 PUBLISHING, INC., UNIVERSAL MUSIC CORPORATION, KOBALT MUSIC PUBLISHING 12 AMERICA, INC., WARNER CHAPPELL MUSIC, INC., W CHAPPELL MUSIC CORP., SONGS MUSIC 13 PUBLISHING, LLC, ARTIST NATION MANAGEMENT GROUP, INC., MXM, LLC, MXM MUSIC, AB, 14 and WOLF COUSINS 15 UNITED STATES DISTRICT COURT 16 CENTRAL DISTRICT OF CALIFORNIA 17 WESTERN DIVISION 18 William Smith, et al., ) Case No. 2:19-cv-02507-PA-MRWx ) 19 Plaintiffs, ) ) MEMORANDUM OF POINTS AND 20 v. ) AUTHORITIES IN SUPPORT OF ) MOTION FOR SUMMARY 21 Abel M. Tesfaye, etc., et al., ) JUDGMENT OR, IN THE ) ALTERNATIVE, PARTIAL 22 Defendants. ) SUMMARY JUDGMENT ) 23 ) Date: July 6, 2020 Time: 1:30 p.m. 24 25 Courtroom of the Honorable Percy Anderson 26 United States District Judge 27 28 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 2 of 28 Page ID #:1155

1 TABLE OF CONTENTS 2 1. INTRODUCTION ...... 1 3 (a) Summary of Argument...... 1 4 (b) Summary of Uncontroverted Facts ...... 2 5 (1) In 2004-05, the UK Plaintiffs Composed the Song I Need to 6 Love in the UK ...... 2 7 (2) In 2005, Plaintiffs Assigned I Need to Love to a UK Music 8 Publisher, Which Never Exploited I Need to Love and, in 2016, Relinquished All Rights to it ...... 2 9 (3) The February 2016 Creation of in Los Angeles, 10 California ...... 3 11 (4) A Lonely Night’s Creators Did Not Have Access to I Need to 12 Love ...... 3 13 (5) Plaintiffs’ Filing of this Action ...... 4 14 2. THERE IS NO GENUINE DISPUTE THAT PLAINTIFFS CANNOT 15 ESTABLISH REQUIRED ELEMENTS OF THEIR CLAIMS ...... 5 16 (a) The Standards Applicable to the Motion ...... 5 17 (b) Plaintiff’s First Claim for Direct Copyright Infringement ...... 5 18 (1) Plaintiffs Do Not Raise a Genuine Issue as to Whether 19 Copying Occurred ...... 6 20 (i) Access Plus Substantial Similarity Probative of Copying .. 6 21 a. Access – a Reasonable Opportunity to Copy ...... 6 22 b. Substantial Similarity Probative of Copying ...... 9 23 (ii) Striking Similarity Rendering Independent Creation 24 Impossible...... 10 25 (2) Plaintiffs Fail to Raise a Genuine Dispute as Whether A 26 Lonely Night Copies Protected Aspects of I Need to Love ...... 1 2 27 (i) The Extrinsic Test to Determine Whether the Works Are Substantially Similar in Protected Expression ...... 12 28 i Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 3 of 28 Page ID #:1156

(ii) Plaintiffs Fail to Raise a Genuine Dispute Under the 1 Extrinsic Test ...... 14 2 (c) Plaintiffs’ Second and Third Claims for, Respectively, Contributory and 3 Vicarious Infringement ...... 17

4 (d) Plaintiffs’ Fourth through Sixth Claims for an Accounting, Constructive 5 Trust, and Unjust Enrichment, Respectively ...... 18 6 (e) Defendants’ Alternative Motion for Partial Summary Judgment ...... 20 7 3. CONCLUSION ...... 21 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 4 of 28 Page ID #:1157

1 TABLE OF AUTHORITIES 2 Cases 3 A&M Records, Inc. v. Napster, Inc., 4 239 F.3d 1004 (9th Cir. 2001) ...... 17, 18 5 Art Attacks Ink, LLC v. MGA Entm’t Inc., 6 581 F.3d 1138 (9th Cir. 2009) ...... 6 7 Batts v. Adams, No. CV 10-8123-JFW (RZX), 2011 WL 13217923 (C.D. Cal. Feb. 8, 2011) ...... 14 8 9 Benay v. Warner Bros. Entm’t, 607 F.3d 620 (9th Cir. 2010), overruled on other grounds by Sidmore v. Led 10 Zeppelin, 952 F.3d 1051 (9th Cir. 2020) ...... 9 11 Berg v. Kincheloe, 12 794 F.2d 457 (9th Cir. 1986) ...... 5 13 Bernal v. Paradigm Talent & Literary Agency, 14 788 F. Supp. 2d 1043 (C.D. Cal. 2010) ...... 10 15 Bikram’s Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032 (9th Cir. 2015) ...... 14 16 17 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) ...... 14 18 Cavalier v. Random House, Inc., 19 297 F.3d 815 (9th Cir. 2002) ...... 12 20 Celotex Corp. v. Catrett, 21 477 U.S. 317 (1986) ...... 5 22 Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 23 499 U.S. 340 (1991) ...... 12

24 Funky Films, Inc. v. Time Warner Entm’t Co., L.P., 25 462 F.3d 1072 (9th Cir. 2006) ...... 14, 16 26 Gaste v. Kaiserman, 27 863 F.2d 1061 (2d Cir.1988) ...... 13 28 iii Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 5 of 28 Page ID #:1158

1 Gray v. Perry, No. 215CV05642CASJCX, 2020 WL 1275221 (C.D. Cal. Mar. 16, 2020) .... 14, 16 2 Grosso v. Miramax Film Corp., 3 383 F.3d 965 (9th Cir. 2004), opinion amended on denial of reh’g, 400 F.3d 658 4 (9th Cir. 2005) ...... 20 5 Johannsongs-Publ’g Ltd. v. Lovland, 6 No. CV 18-10009-AB (SSX), 2020 WL 2315805 (C.D. Cal. Apr. 3, 2020) ... 15, 16 7 Johnson v. Gordon, 409 F.3d 12 (1st Cir. 2005) ...... 13 8 9 King v. Najm, No. CV084164DSFVBKX, 2011 WL 13186238 (C.D. Cal. Mar. 8, 2011) ...... 8 10 Kodadek v. MTV Networks, Inc., 11 152 F.3d 1209 (9th Cir. 1998) ...... 19 12 Kouf v. Walt Disney Pictures & Television, 13 16 F.3d 1042 (9th Cir. 1994) ...... 12, 17

14 Loomis v. Cornish, 15 836 F.3d 991 (9th Cir. 2016) ...... 7 16 Luvdarts, LLC v. AT & T Mobility, LLC, 17 710 F.3d 1068 (9th Cir. 2013) ...... 17 18 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ...... 5 19 20 Meta-Film Assocs., Inc. v. MCA, Inc., 586 F. Supp. 1346 (C.D. Cal. 1984) ...... 7 21 Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 22 545 U.S. 913 (2005) ...... 17 23 Montz v. Pilgrim Films & Television, Inc., 24 649 F.3d 975 (9th Cir. 2011) ...... 20 25 Morrill v. Stefani, 26 338 F. Supp. 3d 1051 (C.D. Cal. 2018) ...... 16

27 Newton v. Diamond, 28 204 F. Supp. 2d 1244 (C.D. Cal. 2002), aff’d 388 F.3d 1189 (9th Cir. 2004) ...... 13 iv Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 6 of 28 Page ID #:1159

1 Oddo v. Ries, 743 F.2d 630 (9th Cir. 1984) ...... 18 2 Perfect 10, Inc., v. Giganews, Inc., 3 847 F.3d (9th Cir. 2017) ...... 17 4 Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 5 494 F.3d 788 (9th Cir. 2007) ...... 17

6 Rentmeester v. Nike, Inc., 7 883 F.3d 1111 (9th Cir. 2018) ...... passim 8 Rice v. Fox Broad. Co., 9 148 F. Supp. 2d 1029 (C.D. Cal. 2001), rev’d on other grounds, 330 F.3d 1170 . 13 10 Rice v. Fox Broad. Co., 330 F.3d 1170 (9th Cir. 2003) ...... 8, 12 11 12 Salim v. Lee, 202 F. Supp. 2d 1122 (C.D. Cal. 2002) ...... 20 13 Satava v. Lowry, 14 323 F.3d 805 (9th Cir. 2003) ...... 13 15 Scholz Homes, Inc. v. Maddox, 16 379 F.2d 84 (6th Cir. 1967) ...... 11 17 Seals-McClellan v. Dreamworks, Inc., 18 120 F. App’x 3 (9th Cir. 2004) ...... 10, 11 19 Skidmore v. Led Zeppelin, 20 952 F.3d 1051 (9th Cir. 2020) (en banc) ...... passim 21 Smith v. Jackson, 84 F.3d 1213 (9th Cir. 1996) ...... 13 22 23 Stabile v. Paul Smith Ltd., 137 F. Supp. 3d 1173 (C.D. Cal. 2015) ...... 10, 11 24 Stewart v. Abend, 25 495 U.S. 207 (1990) ...... 19 26 Stewart v. Wachowski, 27 574 F. Supp. 2d 1074 (C.D. Cal. 2005) ...... 8, 10 28 v Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 7 of 28 Page ID #:1160

1 Swirsky v. Carey, 376 F.3d 841 (9th Cir. 2004) ...... 12, 13 2 Sybersound Records, Inc. v. UAV Corp., 3 517 F.3d 1137 (9th Cir. 2008) ...... 19 4 Three Boys Music Corp. v. Bolton, 5 212 F.3d 477 (9th Cir. 2000), overruled on other grounds by Skidmore v. Led 6 Zeppelin, 952 F.3d 1051 (9th Cir. 2020) ...... 6, 12, 13 7 Tisi v. Patrick, 97 F. Supp. 2d 539 (S.D.N.Y. 2000) ...... 8 8 9 VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016) ...... 15 10 Worth v. Universal Pictures, Inc., 11 5 F. Supp. 2d 816 (C.D. Cal. 1997) ...... 20 12 Statutes 13 17 U.S.C. 14 § 102 ...... 19 15 § 102(a)(2) ...... 19 § 103 ...... 19 16 § 103(b) ...... 19 17 § 106 ...... 19 § 301(a) ...... 19 18 19 Rules 20 Fed. R. Civ. P. 1 ...... 5 21 Fed. R. Civ. P. 56 ...... 5 22 Other Authorities 23 M. NIMMER & D. NIMMER, NIMMER ON COPYRIGHT (2020) ...... 6, 10, 11, 13, 20 24 25 26 27 28 vi Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 8 of 28 Page ID #:1161

1 MEMORANDUM OF POINTS AND AUTHORITIES 2 1. INTRODUCTION 3 (a) Summary of Argument 4 Plaintiffs are United Kingdom (“UK”) residents who allege that a musical 5 composition they wrote in the UK in 2005, but which was never recorded by a record 6 company or otherwise released to the public – indeed, their UK music publisher 7 gratuitously relinquished to Plaintiffs all rights in the “unexploited composition[ ]” – 8 was copied eleven years later by a song created a continent and ocean away, in Los 9 Angeles, California. Discovery, to the extent Plaintiffs have bothered to comply with 10 it, confirms what Defendants have said from the beginning: Plaintiffs’ claims are 11 frivolous. 12 Plaintiffs’ first claim for relief is for direct copyright infringement, but they 13 cannot raise a genuine dispute as to its required elements. Plaintiffs cannot establish 14 that copying occurred: (1) the compositions are not strikingly similar, so copying 15 cannot be assumed, and (2) Plaintiffs cannot establish either access or substantial 16 similarity probative of copying, let alone the access plus substantial similarity 17 necessary to trigger an inference of copying. In addition, Plaintiffs cannot establish 18 copying of protected expression under the extrinsic test. The allegedly similar short 19 portion of music appears in prior art, which, when that prior art is disregarded – as the 20 extrinsic test requires – leaves Plaintiffs with a total of three isolated notes spread over 21 three measures, one note per measure. That does not even rise to the three consecutive 22 notes that the Ninth Circuit recently confirmed en banc cannot be protected. There is 23 no genuine dispute that Plaintiffs’ direct infringement claim fails. 24 Plaintiffs’ remaining claims fall like a house of cards. Without an underlying 25 direct infringement claim, Plaintiffs’ secondary liability claims for contributory and 26 vicarious infringement fail as a matter of law. And Plaintiffs’ state law claims for an 27 accounting, constructive trust, and unjust enrichment are each based on the allegations 28 that their composition was copied pursuant to a secret license issued by their former 1 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 9 of 28 Page ID #:1162

1 UK music publisher, yet they cannot prove copying or the license. Moreover, their 2 state law claims are preempted by federal copyright law. 3 Accordingly, Defendants respectfully submit that their Motion should be 4 granted and summary judgment entered. 5 (b) Summary of Uncontroverted Facts 6 The following facts are uncontroverted by Plaintiffs and assumed true for the 7 purpose of Defendants’ Motion. 8 (1) In 2004-05, the UK Plaintiffs Composed the Song I Need to 9 Love in the UK 10 Plaintiffs William Smith, a UK subject with dual US citizenship, and Plaintiffs 11 Brian Clover and Scott McCulloch, both UK subjects, all reside in the UK. In 2004- 12 5, they jointly wrote and recorded in the UK a musical composition they call I Need 13 to Love, in the UK. Facts 1-3.1 14 (2) In 2005, Plaintiffs Assigned I Need to Love to a UK Music 15 Publisher, Which Never Exploited I Need to Love and, in 16 2016, Relinquished All Rights to it 17 In 2005, Plaintiffs transferred their copyright in three musical compositions, 18 including I Need to Love, to a UK company, Big Life Music Limited. In 2008, Big 19 Life Music Limited was acquired by another UK company, Universal Music 20 Publishing Limited, and Big Life Music Limited’s name was changed to Universal 21 Music Publishing BL Limited. Neither before nor after that acquisition were any of 22 Plaintiffs’ three compositions exploited. Accordingly, Plaintiffs’ UK music publisher 23 wrote Plaintiffs in 2016 and “relinquished any and all claim in and to the unexploited 24 compositions,” including I Need to Love. Facts 4-6. 25 /// 26

27 1 “Facts” and “Fact” refer to the numbered facts set forth in Defendants’ 28 accompanying proposed Statement of Uncontroverted Facts and Conclusions of Law. 2 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 10 of 28 Page ID #:1163

1 (3) The February 2016 Creation of A Lonely Night in Los 2 Angeles, California 3 Defendant Abel Tesfaye, professionally known as The Weeknd, resides in 4 California. His album, Starboy, was released to the public on November 25, 2016, 5 and includes the song, A Lonely Night. Facts 7-8. 6 A Lonely Night was composed and recorded in February 2016, at defendant 7 MXM Music, AB’s recording studio in West Hollywood, California. At the West 8 Hollywood recording studio, , , and defendants Karl Martin 9 Sandberg, , Ahmed Balshe, and Abel Tesfaye, collaborated to create 10 and record A Lonely Night. Defendants have produced audio recordings or “work 11 tapes” documenting the process of A Lonely Night’s creation at the West Hollywood 12 studio. Facts 9-11. 13 Once A Lonely Night was composed and recorded at the West Hollywood 14 recording studio, the studio recordings of the various tracks were mixed by Serban 15 Ghenea at a recording studio in Virginia. Fact 12. 16 (4) A Lonely Night’s Creators Did Not Have Access to I Need to 17 Love 18 Plaintiffs have admitted that I Need to Love was never publicly performed, was 19 never released by any record company, and was not widely distributed to the public 20 before A Lonely Night was released on the Starboy album in November 2016. Facts 21 13-16. None of the people involved in composing and recording A Lonely Night had 22 ever heard of Plaintiffs and none had ever heard Plaintiffs’ “unexploited” 23 composition, I Need to Love. Fact 17. Mr. Ghenea, the engineer and mixer who mixed 24 A Lonely Night, also had never heard of Plaintiffs or I Need to Love. Fact 18. 25 Plaintiffs have confirmed that they never met any of the defendants, never 26 communicated with any of them before A Lonely Night was released, never provided 27 I Need to Love to anyone involved in the creation of A Lonely Night, and were never 28 told that I Need to Love had been given to any of them. Facts 19-26. 3 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 11 of 28 Page ID #:1164

1 Instead, Plaintiffs’ access theory is that someone at their former UK music 2 publisher, Universal Music Publishing BL Limited, in London, England, provided I 3 Need to Love to someone at Universal Music Publishing, Inc., in Santa Monica, 4 California, who in turn provided it to defendant Jason Quenneville, who received a 5 credit on A Lonely Night. Fact 29. However, Universal Music Publishing 6 BL Limited and Universal Music Corp. are separate companies with different offices 7 in different countries and continents, and different immediate owners. Facts 30-33. 8 In addition, Mr. Quenneville was not present when A Lonely Night was created, 9 recorded, or mixed, and had no input into its creation, recording, or mixing. Facts 35- 10 37. He did not even hear A Lonely Night until he listened to the Starboy album that 11 includes it. Fact 38. The evidence is undisputed that he is credited as a co-writer of 12 A Lonely Night only because it includes in a verse – which Plaintiffs do not claim is 13 infringing – a portion of an unfinished song that he and Mr. Tesfaye had worked on 14 in 2013. Facts 39-41. 15 Neither has Mr. Quenneville ever worked for Universal Music Publishing, Inc., 16 let alone when he worked on that different, unfinished song with Mr. Tesfaye in 2013. 17 It was not until 2014 that Mr. Quenneville signed to a Canadian company that in turn 18 loans his songwriting services to Universal Music Corp. in Santa Monica. Fact 42. 19 Nor had Mr. Quenneville ever heard of Plaintiffs or I Need to Love. Fact 43. 20 (5) Plaintiffs’ Filing of this Action 21 Plaintiffs filed this action on April 3, 2019, and filed their First Amended 22 Complaint (“FAC”; Doc. 66) on September 26, 2019. In their First Amended 23 Complaint, Plaintiffs allege claims for (1) direct copyright infringement, (2) 24 contributory copyright infringement, (3) vicarious copyright infringement, (4) 25 accounting-declaratory relief, (5) constructive trust-declaratory relief, and (6) unjust 26 enrichment. All of these claims are predicated on Plaintiffs’ claim that A Lonely Night 27 copies I Need to Love. 28 /// 4 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 12 of 28 Page ID #:1165

1 2. THERE IS NO GENUINE DISPUTE THAT PLAINTIFFS CANNOT 2 ESTABLISH REQUIRED ELEMENTS OF THEIR CLAIMS 3 (a) The Standards Applicable to the Motion 4 “Summary judgment procedure is properly regarded not as a disfavored 5 procedural shortcut, but rather as an integral part of the Federal Rules as a whole, 6 which are designed ‘to secure the just, speedy and inexpensive determination of every 7 action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. 8 P. 1). Summary judgment is appropriate if “there is no genuine dispute as to any 9 material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. 10 Civ. P. 56(a). Once the movant shows that summary judgment is appropriate, the 11 burden shifts to the nonmoving party to establish genuine issues exist as to material 12 facts. Celotex, 477 U.S. at 324. The nonmoving party “must set forth specific facts 13 showing that there is a genuine issue for trial” (Berg v. Kincheloe, 794 F.2d 457, 459 14 (9th Cir. 1986)) and “[w]here the record taken as a whole could not lead a rational 15 trier of fact to find for the nonmoving party, there is no genuine issue for trial.” 16 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 17 (b) Plaintiff’s First Claim for Direct Copyright Infringement 18 Plaintiffs’ first claim for relief alleges that A Lonely Night directly infringes 19 their claimed musical composition copyright in I Need to Love. FAC at 30-32. 20 “Proof of copyright infringement requires [the plaintiff] to show: (1) that he 21 owns a valid copyright in [his work]; and (2) that [the defendant] copied protected 22 aspects of the work.” Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020) 23 (en banc) (“Led Zeppelin”). For the purposes of their Motion, Defendants assume that 24 Plaintiffs own a valid copyright in I Need to Love, but raise that Plaintiffs cannot 25 establish a triable issue as to copying of protected elements. 26 “The second prong of the infringement analysis contains two separate 27 components: ‘copying’ and ‘unlawful appropriation.’” Id. (quoting Rentmeester v. 28 Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018)). “Although these requirements are 5 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 13 of 28 Page ID #:1166

1 too referred to in shorthand lingo as the need to prove ‘substantial similarity,’ 2 they are distinct concepts.” Led Zeppelin, 952 F.3d at 1064. Here, Plaintiffs fail to 3 raise a genuine issue both as to copying and as to unlawful appropriation. 4 (1) Plaintiffs Do Not Raise a Genuine Issue as to Whether 5 Copying Occurred 6 As for the requirement that copying did in fact occur, “[b]ecause independent 7 creation is a complete defense to copyright infringement, a plaintiff must prove that a

8 defendant copied the work.” Led Zeppelin, 952 F.3d at 1064; 2 M. NIMMER & D.

9 NIMMER, NIMMER ON COPYRIGHT § 8.01[A] (2020) (“[A]bsent copying, there can be 10 no infringement of copyright, regardless of the extent of similarity.”). The copyright 11 plaintiff has the burden of proving the historical fact that copying occurred. 12 Rentmeester, 883 F.3d at 1117. 13 Unless copying is admitted, it is proven circumstantially by evidence of either 14 (a) access plus substantial similarities between the defendant’s and the plaintiff’s 15 works that are probative of copying, or (b) “striking similarities.” Three Boys Music 16 Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000), overruled on other grounds by Led 17 Zeppelin, 952 F.3d 1051. 18 (i) Access Plus Substantial Similarity Probative of Copying 19 a. Access – a Reasonable Opportunity to Copy 20 To prove access, the plaintiff must present evidence that the creator of the 21 defendant’s work had a “reasonable opportunity, not merely a bare opportunity,” to 22 copy the plaintiff’s work. Art Attacks Ink, LLC v. MGA Entm’t Inc., 581 F.3d 1138, 23 1143 (9th Cir. 2009). “Access may not be inferred through mere speculation or

24 conjecture.” Three Boys Music, 212 F.3d at 482 (quoting 4 NIMMER ON COPYRIGHT § 25 13.02[A]). Instead, access is shown “either by (1) establishing a chain of events 26 linking the plaintiff’s work and the defendant’s access, or (2) showing that the 27 plaintiff’s work has been widely disseminated.” Id. 28 /// 6 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 14 of 28 Page ID #:1167

1 Plaintiffs have admitted that I Need to Love was never released by a record 2 company or publicly performed, was not widely disseminated prior to the release of 3 A Lonely Night, and never resulted in any royalties from their UK music publisher. 4 Facts 13-16. As a result, Plaintiffs can establish access only by proving a chain of 5 events that links I Need to Love to the creation of A Lonely Night. 6 However, Plaintiffs have each testified that they never provided I Need to Love 7 to any of the individual defendants or to anyone involved in the creation of A Lonely 8 Night. Facts 19-21, 26. Plaintiffs also testified that they never provided I Need to 9 Love to any of the entity defendants (Facts 23-24), and, even if they had, it is well- 10 established that “bare corporate receipt” is insufficient to raise a genuine dispute as to 11 access. Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016); Meta-Film Assocs., 12 Inc. v. MCA, Inc., 586 F. Supp. 1346, 1357–58 (C.D. Cal. 1984) (“[I]t is clearly 13 unreasonable to attribute” to one person information received by others at a company). 14 Unable to establish even “bare corporate receipt” by an entity that was involved 15 in the creation of A Lonely Night, Plaintiffs’ theory of access is that I Need to Love 16 made its way from the London, England, offices of the UK company, Universal Music 17 Publishing BL Limited, to the Santa Monica, California, offices of an affiliated 18 American company, Universal Music Publishing, Inc., where unidentified personnel 19 could have provided it to Mr. Quenneville, who is a credited writer of A Lonely Night. 20 Given that “bare corporate receipt” by the American company, Universal Music 21 Publishing, Inc., would not have been enough to establish access, it necessarily 22 follows that “bare corporate receipt” by a UK affiliate that had nothing to do with A 23 Lonely Night is not enough. 24 Further, courts have repeatedly rejected as speculation access theories even less 25 attenuated then Plaintiffs’ theory that the UK company provided A Lonely Night to the 26 American company, the American company somehow provided it to Mr. Quenneville, 27 and he then provided it to the people who actually composed and recorded A Lonely 28 Night. See, e.g., Loomis, 836 F.3d at 996 (access not established by evidence that 7 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 15 of 28 Page ID #:1168

1 plaintiff’s song was given to record company’s Artist and Repertoire (“A&R”) 2 representative charged with finding and sharing music, where A&R representative had 3 no role or input into the creation of defendants’ song); Rice v. Fox Broad. Co., 330 4 F.3d 1170, 1178 (9th Cir. 2003) (evidence that plaintiff’s work was provided to talent 5 agent who “loved” it and whose client was involved in development of allegedly 6 infringing work, failed to establish access; argument that talent agent might have 7 provided plaintiff’s work to his client was “speculation, conjecture, and inference”); 8 Stewart v. Wachowski, 574 F. Supp. 2d 1074, 1087-88, 1089-90 (C.D. Cal. 2005) 9 (studio’s receipt of plaintiff’s script did not establish access where studio’s personnel 10 were not involved in the development or creation of the allegedly infringing movies, 11 even though studio distributed those movies); Tisi v. Patrick, 97 F. Supp. 2d 539, 547- 12 48 (S.D.N.Y. 2000) (evidence that demo tape given to record companies insufficient 13 to establish access where no evidence that the demo tape was given to composer); 14 King v. Najm, No. CV084164DSFVBKX, 2011 WL 13186238, at *1 (C.D. Cal. 15 Mar. 8, 2011) (access not established by evidence that plaintiff’s recording was 16 provided to record executive who later met with defendant recording artist in hopes 17 of signing him). 18 Moreover, Plaintiffs’ conjecture collapses in the face of the uncontroverted 19 evidence that Mr. Quenneville was not even present or otherwise involved in the 20 creation of A Lonely Night. He is credited on the song only because a bit of an 21 unfinished song he worked on in 2013 with defendant Abel Tesfaye was used in A 22 Lonely Night verse, which Plaintiffs do not claim copies I Need to Love. Facts 9-10, 23 35-41. Also, it was not until 2014 that a Canadian company with which he contracted 24 began providing his songwriting services to a Universal company, and even then it 25 was Universal Music Corp., not Universal Music Publishing, Inc. Fact 42. 26 Because Plaintiffs fail to present evidence raising a genuine dispute as to access, 27 they also cannot raise a genuine dispute as to copying based on a theory of access plus 28 substantial similarities. 8 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 16 of 28 Page ID #:1169

1 b. Substantial Similarity Probative of Copying 2 Even if Plaintiffs were able to raise a triable issue as to access, which they are 3 not, they cannot establish substantial similarity probative of copying and, as a result, 4 cannot rely on access plus substantial similarity to trigger an inference of copying. 5 Substantial similarity probative of copying requires proof that the plaintiff’s and 6 the defendant’s works share “similarities one would not expect to arise if the two 7 works had been created independently.” Rentmeester, 883 F.3d at 1117. “A finding 8 of such similarity may be based on the overlap of unprotectable as well as protectable 9 elements.” Led Zeppelin, 952 F.3d at 1064; Benay v. Warner Bros. Entm’t, 607 F.3d 10 620, 628 (9th Cir. 2010) (although titles not protected by copyright, fact that parties’ 11 works have same title may support claim of copying), overruled on other grounds by 12 Led Zeppelin, 952 F.3d 1051. 13 Here, I Need to Love and A Lonely Night have different lyrics, different 14 structures, different chord progressions, different harmonic rhythms, different overall 15 rhythmic flow, and different titles. Facts 44-49. Differences are not probative of 16 copying. The two songs are in a minor mode, a minor key – I Need to Love is in F- 17 sharp minor while A Lonely Night is in G minor – and have roughly similar rhythms 18 of 120 beats per minute and 114 beats per minute, respectively. But Plaintiffs’ own 19 musicologist admits that many songs before them have those same attributes. Facts 20 50-52. So that is not probative of copying either. Plaintiffs’ musicologist also raised 21 that both songs include an echo or repetition of vocal melody, but he admits that is 22 common in popular music and also done differently in I Need to Love and A Lonely 23 Night. Facts 53-54. 24 That leaves Plaintiffs with what they pleaded: a short portion of similar melody 25 in three measures of each song. FAC at 4, ¶ 13. But Plaintiffs and their expert simply 26 ignored the prior art that has the same or similar melody, including, for example, the 27 1978 No. 1 hit, Heart of Glass, by the musical group Blondie, as well as the theme 28 song of the 1999 box office hit James Bond movie, The World Is Not Enough. Facts 9 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 17 of 28 Page ID #:1170

1 55-57. Plaintiff Smith testified that he came up with the portion of I Need to Love’s 2 melody at issue in this case and knew both Heart of Glass and The World Is Not 3 Enough when he did so. Facts 58-59. Because the claimed similar melody appears in 4 hugely popular songs before Plaintiffs recorded I Need to Love, it very well also could 5 “arise [in I Need to Love and A Lonely Night] if the two works had been created 6 independently.” Rentmeester, 883 F.3d at 1117. 7 Plaintiffs’ failure to present evidence raising a genuine dispute as to substantial 8 similarity probative of access is an independent reason that they cannot raise a genuine 9 dispute as to copying based on a theory of access plus substantial similarity. 10 (ii) Striking Similarity Rendering Independent Creation 11 Impossible 12 The only other way that Plaintiffs could raise a genuine dispute as to whether 13 copying occurred would be to establish that I Need to Love and A Lonely Night are 14 strikingly similar. The evidence is uncontroverted that they are not. 15 “To show a striking similarity between works, a plaintiff must produce evidence 16 that the accused work could not possibly have been the result of independent creation.” 17 Seals-McClellan v. Dreamworks, Inc., 120 F. App’x 3, 4 (9th Cir. 2004) (emphasis in 18 original). Expert testimony is required to establish striking similarity in music cases

19 (4 NIMMER ON COPYRIGHT § 13.02[B]), but an expert’s conclusory assertion of 20 striking similarity does not raise a genuine dispute. Stabile v. Paul Smith Ltd., 137 F. 21 Supp. 3d 1173, 1189 (C.D. Cal. 2015) (gathering cases). 22 “Courts adopting the majority rule generally require that an inference of 23 copying drawn from striking similarity between works be reasonable in light of all the 24 evidence.” Stabile, 137 F. Supp. 3d at 1190 (quoting Stewart, 574 F. Supp. 2d at 25 1098). As a result, “substantial and uncontroverted evidence of” the defendant’s 26 independent creation of his work negates striking similarity. Stabile, 137 F. Supp. 3d 27 at 1190-91. Likewise, prior art with similar usages negates striking similarity. Bernal 28 v. Paradigm Talent & Literary Agency, 788 F. Supp. 2d 1043, 1052 (C.D. Cal. 2010) 10 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 18 of 28 Page ID #:1171

1 (striking similarities requires proof that “the only explanation [for the similarities] 2 between the two works must be ‘copying rather than . . . coincidence, independent

3 creation, or prior common source.’”) (quoting 4 NIMMER ON COPYRIGHT § 13.02[B])). 4 Here, Plaintiffs fail to raise a genuine dispute as to whether I Need to Love and 5 A Lonely Night are strikingly similar. Music that is very similar to the allegedly copied 6 portions of I Need to Love appears in widely distributed compositions, including the 7 No. 1 hit song, Heart of Glass, the theme music of the James Bond movie, The World 8 Is Not Enough, and the theme music of the 1990s X-Men television series. Facts 63- 9 64. As a result, it is very possible that similar music would coincidentally appear later 10 in I Need to Love and A Lonely Night. 11 In addition, Plaintiffs’ expert, Dr. Stewart, defeats their claim of striking 12 similarity. He did state in his Report, which Plaintiffs attach to their pleading, that the 13 claimed similarity in the songs’ respective choruses “could only result from copying.” 14 FAC at Exh. 1 (Doc. 66-1) at 1, ¶ 3. But that does not raise a genuine dispute as to 15 striking similarity because it is a bare conclusion and he does not mention, let alone 16 consider and analyze, the prior art with similar music. Stabile, 137 F. Supp. 3d at 17 1189. In any event, at his deposition Dr. Stewart backtracked and testified that he 18 now believes only that copying is “likely.” Fact 61-62. That is fatally short of 19 “evidence that the accused work could not possibly have been the result of

20 independent creation.” Seals-McClellan, 120 F. App’x at 4; see, also 4 NIMMER ON

21 COPYRIGHT § 13.02[B] (testimony that independent creation “extremely unlikely” 22 fails to establish striking similarity (quoting Scholz Homes, Inc. v. Maddox, 379 F.2d 23 84, 86 (6th Cir. 1967))). 24 Plaintiffs’ failure to establish striking similarity, along with their inability to 25 prove access plus substantial similarity, confirms that they cannot raise a genuine 26 dispute as to their infringement claim’s required element that copying in fact occurred. 27 For these reasons alone, there is no merit to their first claim for direct copyright 28 infringement. 11 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 19 of 28 Page ID #:1172

1 (2) Plaintiffs Fail to Raise a Genuine Dispute as Whether A 2 Lonely Night Copies Protected Aspects of I Need to Love 3 (i) The Extrinsic Test to Determine Whether the Works 4 Are Substantially Similar in Protected Expression 5 Even if Plaintiffs could raise a genuine dispute as to whether copying occurred, 6 their first claim for direct copyright infringement would still fail because they cannot 7 raise a genuine dispute as to whether the alleged copying is of protected expression. 8 “The mere fact that a work is copyrighted does not mean that every element of 9 the work may be protected.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 10 348 (1991). To establish a copyright infringement claim, the plaintiff must also 11 establish “that defendant copied protected elements of the work.” Cavalier v. Random 12 House, Inc., 297 F.3d 815, 822 (9th Cir. 2002); Rentmeester, 883 F.3d at 1117 (the 13 copyright plaintiff must prove not only copying but “unlawful appropriation”). “To 14 prove unlawful appropriation, . . . the similarities between the two works must be 15 ‘substantial’ and they must involve protected elements of the Plaintiffs’ work.” Id. 16 The plaintiff bears the burden of proving “copying of constituent elements of the work 17 that are original.” Rice, 330 F.3d at 1174, quoting Feist, 499 U.S. at 361. 18 “To determine whether two works are substantially similar, a two-part analysis 19 – an extrinsic test and an intrinsic test – is applied.” Rice, 330 F.3d at 1174. “For 20 summary judgment, only the extrinsic test is important.” Id., quoting Kouf v. Walt 21 Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir. 1994). “[A] plaintiff who 22 cannot satisfy the extrinsic test necessarily loses on summary judgment.” Id. 23 “[T]he extrinsic test . . . compares the objective similarities of specific 24 expressive elements in the two works.” Led Zeppelin, 952 F.3d at 1064. “The 25 extrinsic test requires ‘analytical dissection of a work and expert testimony.’” Swirsky 26 v. Carey, 376 F.3d 841, 845 (9th Cir. 2004), quoting Three Boys Music, 212 F.3d at 27 485. “‘Analytical dissection’ requires breaking the works ‘down into their constituent 28 elements, and comparing those elements for proof of copying as measured by 12 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 20 of 28 Page ID #:1173

1 ‘substantial similarity.’” Swirsky, 376 F.3d at 845, quoting Rice v. Fox Broad. Co., 2 148 F. Supp. 2d 1029, 1051 (C.D. Cal. 2001), rev’d on other grounds, 330 F.3d 1170. 3 “It is the copyright plaintiff’s burden to identify the elements for this comparison.” 4 Rice, 148 F. Supp. 2d at 1051, citing Three Boys Music, 212 F.3d at 485 (“Initially, 5 the extrinsic test requires that the plaintiff identify concrete elements based on 6 objective criteria”). 7 “Crucially, because only substantial similarity in protectable expression may 8 constitute actionable copying that results in infringement liability, ‘it is essential to 9 distinguish between the protected and unprotected material in a plaintiff’s work.’” Led 10 Zeppelin, 952 F.3d at 1064 (quoting Swirsky, 376 F.3d at 845). “[E]xpressions that 11 are standard, stock, or common to a particular subject matter or medium are not 12 protectable under copyright law.” Led Zeppelin, 952 F.3d at 1069 (quoting Satava v. 13 Lowry, 323 F.3d 805, 811 (9th Cir. 2003)); Johnson v. Gordon, 409 F.3d 12, 23 (1st 14 Cir. 2005) (“Virtually by definition, expressions that are common are also 15 unoriginal”). The fact that a claimed similarity appears in works predating a plaintiff’s 16 work defeats a copyright claim because such “prior art” establishes that “similarities 17 that Plaintiffs attribute to ‘copying’ could actually be explained by the commonplace 18 presence of the same or similar [elements] within the relevant field.” Smith v. Jackson, 19 84 F.3d 1213, 1219 (9th Cir. 1996). 20 “In the field of popular songs, many, if not most, compositions bear some

21 similarity to prior songs.” Led Zeppelin, 952 F.3d at 1069 (quoting 1 NIMMER ON

22 COPYRIGHT § 2.05[B]). “In assessing originality, courts must be ‘mindful of the 23 limited number of notes and chords available to composers and the resulting fact that 24 common themes frequently appear in various compositions, especially in popular 25 music.’” Newton v. Diamond, 204 F. Supp. 2d 1244, 1253 (C.D. Cal. 2002) (quoting 26 Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2d Cir.1988) (similarities “between pieces 27 of popular music must extend beyond themes that could have been derived from a 28 common source”)), aff’d 388 F.3d 1189 (9th Cir. 2004). “Music, perhaps more than 13 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 21 of 28 Page ID #:1174

1 any other work of art, ‘borrows, and must necessarily borrow, and use much which 2 was well known and used before.’” Gray v. Perry, No. 215CV05642CASJCX, 2020 3 WL 1275221, at *4 (C.D. Cal. Mar. 16, 2020) (quoting Campbell v. Acuff-Rose Music, 4 Inc., 510 U.S. 569, 575 (1994)). “For this reason, courts in musical copyright cases 5 have a significant obligation to strike a ‘balance between the First Amendment and 6 the Copyright Act’ . . . by carefully limiting the scope of copyright protection to truly 7 original expression only.” Gray, 2020 WL 1275221, at *4 (quoting Bikram’s Yoga 8 Coll. of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032, 1037 (9th Cir. 2015)). 9 In addition, the extrinsic test is not satisfied if “the two works reveal[ ] greater, 10 more significant differences and few real similarities.” Funky Films, Inc. v. Time 11 Warner Entm’t Co., L.P., 462 F.3d 1072, 1078 (9th Cir. 2006). 12 (ii) Plaintiffs Fail to Raise a Genuine Dispute Under the 13 Extrinsic Test 14 Defendants have submitted the Declaration and Reports of Dr. Lawrence 15 Ferrara establishing that, applying this Circuit’s extrinsic test and required dissection 16 and disregard of common elements, it is plain that A Lonely Night is not substantially 17 similar to I Need to Love in protected expression. Facts 65-112. 18 Plaintiffs rely on the Report of Dr. Alexander Stewart, whose “methodology” 19 is to pick random similarities in unprotected musical elements while turning a blind 20 eye to prior art. His approach has been rejected by courts, most recently by an en banc 21 panel of the Ninth Circuit. Led Zeppelin, 952 F.3d at 1059, 1075 (Dr. Stewart 22 improperly relied on random and unprotected elements); see, also Batts v. Adams, No. 23 CV 10-8123-JFW (RZX), 2011 WL 13217923, at *5 (C.D. Cal. Feb. 8, 2011) (Dr. 24 Stewart “failed to note any relevant prior art, any differences between the two works, 25 and neglect[ed] to filter out any of the unprotectable elements”). 26 True to form, Dr. Stewart’s Report raises that both I Need to Love and A Lonely 27 Night are in the minor mode, are in minor keys, and have roughly similar tempos. But 28 at his deposition he admitted that these same attributes appear in many songs predating 14 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 22 of 28 Page ID #:1175

1 I Need to Love and A Lonely Night. Fact 52. His Report also disregards the entirety 2 of the songs to focus on three measures out of longer musical sections that are very 3 different in the two songs. Facts 55, 68-69, 89-91, 93-94, 109. While he notes that 4 one chord is the same in the musical sections and claims it is followed by a different 5 but closely related chord, that is insufficient as a matter of law. VMG Salsoul, LLC v. 6 Ciccone, 824 F.3d 871, 879 (9th Cir. 2016) (alleged copying of a single chord and of 7 two chords fails to establish musical composition infringement claim). 8 As a result, Plaintiffs are left with Dr. Stewart’s contention that melodies in the 9 three measures are substantially similar. However, his Report and conclusion are 10 fatally flawed because he did not consider prior art. “By fail[ing] to consider prior 11 art, [his] comparison between [I Need to Love and A Lonely Night] fails to filter out 12 unprotectable prior art elements, which is the foundation of the extrinsic test.” 13 Johannsongs-Publ’g Ltd. v. Lovland, No. CV 18-10009-AB (SSX), 2020 WL 14 2315805, at *5 (C.D. Cal. Apr. 3, 2020). As a result, his report and opinion “about 15 the similarities between [the works] are legally deficient and irrelevant.” Id. 16 Further, consideration of prior art proves there is no similarity in protected 17 expression, let alone the required substantial similarity. For example, Blondie’s 1978 18 hit song, Heart of Glass, has almost all of the same pitches as I Need to Love. 19 Applying the extrinsic test’s required dissection and disregarding those pitches in A 20 Lonely Night results in only three pitches over three measures being shared by I Need 21 to Love and A Lonely Night: A B 22 I "Heart of Glass" J a a J J 23 0:59 In be - tween what I find is pleas - ing and I'm feel - ing fine 24 A B 9 "I Need To Love" 25 a • • • 0:35 J 26 Tell - in' me Tell me what you're think - in' when you're hold - in' me._ 27 A "A Lonely Night" 28 0:50 15 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 23 of 28 Page ID #:1176

1 Facts 97-98. Given that three consecutive notes are not protectable (Led Zeppelin, 2 952 F.3d at 1071), a fortiori there is no protection in three notes spread out over three 3 measures. 4 As yet another defect in Plaintiffs’ claim of copying of protected expression, 5 Dr. Stewart repeatedly failed to consider the many differences between I Need to Love 6 and A Lonely Night. Funky Films, 462 F.3d at 1078. For example, in raising that both 7 compositions have one chord in common, he paid no heed to the fact that the chord 8 progressions, the chord progressions’ length (eight measures in I Need to Love and 9 four measures in A Lonely Night), and the chord progressions’ harmonic rhythm – i.e., 10 the rate of change of chords – are different: 11 “I Need to Love” bars 1-2 bars 3-4 bars 5-6 bar 7 bar 8 12 Chorus: Gm7 Cm7 F F7 Gm7 Cm D7 13 “A Lonely Night” bars 1-2 bar 3 bar 4 14 Chorus: Gm7 Ebmaj7 Dm7 15 Facts 75-76. 16 The many significant differences between I Need to Love and A Lonely Night 17 confirm they are not substantially similar in protected expression. Morrill v. Stefani, 18 338 F. Supp. 3d 1051, 1060–61 (C.D. Cal. 2018) (“The use of basic musical devices 19 in different manners is not copyrightable”); Gray, 2020 WL 1275221, at *12 20 (plaintiff’s expert “acknowledged that the compositions for the [allegedly similar] 21 ostinatos use different keys, tempos, harmonies, and rhythms”); Johannsongs-Publ’g, 22 2020 WL 2315805, at *5 (C.D. Cal. Apr. 3, 2020) (musicologist’s report was “silent 23 on too many matters to be considered either adequately supported or probative of the 24 main issue—the application of the extrinsic test”). 25 Disregarding the unprotected elements in the allegedly similar portions of I 26 Need to Love and A Lonely Night, the extrinsic test confirms that there is no substantial 27 similarity in protected expression between I Need to Love and A Lonely Night and, 28 instead, there are substantial differences. Accordingly, even if Plaintiffs could raise a 16 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 24 of 28 Page ID #:1177

1 genuine dispute as to whether copying occurred, their claim for direct copyright 2 infringement fails because “a plaintiff who cannot satisfy the extrinsic test necessarily 3 loses on summary judgment.” Kouf, 16 F.3d at 1045. 4 (c) Plaintiffs’ Second and Third Claims for, Respectively, 5 Contributory and Vicarious Infringement 6 Plaintiffs’ second and third claims for relief in their First Amended Complaint 7 are for, respectively, contributory and vicarious copyright infringement. FAC at 33- 8 36. These claims fail for at least two reasons. 9 First, contributory and vicarious copyright infringement are secondary liability 10 theories to extend liability for another’s direct infringement. Metro-Goldwyn-Mayer 11 Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005). As a result, “[s]econdary 12 liability for copyright infringement does not exist in the absence of direct infringement 13 by a third party.” A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 n. 2 (9th 14 Cir. 2001). Because Plaintiffs fail to establish that there was a direct infringement, 15 their claims for contributory and vicarious liability necessarily fail as a matter of law. 16 Second, Plaintiffs have neither alleged nor proven secondary liability by any 17 Defendant. 18 Contributory copyright infringement applies if a defendant “(1) has knowledge 19 of another’s infringement and (2) either (a) materially contributes to or (b) induces 20 that infringement.” Perfect 10, Inc., v. Giganews, Inc., 847 F.3d at 670 (9th Cir. 2017) 21 (quoting Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 795 (9th Cir. 2007)). 22 Plaintiffs assert their contributory infringement claim against all Defendants, without 23 differentiation. Plaintiffs fail to raise a genuine dispute that any Defendant who was 24 not a direct infringer supposedly had knowledge of an infringement and either 25 materially contributed to or induced it. 26 “Vicarious copyright liability is an ‘outgrowth’ of respondeat superior [and] 27 requires that the defendant had both the (1) ‘right and ability to supervise the 28 infringing activity’ and (2) ‘a direct financial interest’ in the activity.” Luvdarts, LLC 17 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 25 of 28 Page ID #:1178

1 v. AT & T Mobility, LLC, 710 F.3d 1068, 1071 (9th Cir. 2013) (quoting A & M 2 Records, Inc. v. Napster Inc., 239 F.3d 1004, 1022 (9th Cir. 2001)). Plaintiffs also 3 assert their vicarious infringement claim against all Defendants, without 4 differentiation. Plaintiffs fail to raise a genuine issue that any Defendant who was not 5 a direct infringer had the right and ability to supervise the allegedly infringing activity 6 and had a direct financial interest in it. 7 Accordingly, Plaintiffs also fail to raise a genuine issue as to their second and 8 third claims for, respectively, contributory and vicarious infringement. 9 (d) Plaintiffs’ Fourth through Sixth Claims for an Accounting, 10 Constructive Trust, and Unjust Enrichment, Respectively 11 Plaintiffs’ fourth, fifth, and sixth claims for relief are for an accounting, 12 imposition of a constructive trust, and unjust enrichment. FAC at 37-42. Each of 13 these state law claims is based upon Plaintiffs’ contention that A Lonely Night copies 14 I Need to Love and that if the use is non-infringing because Plaintiffs’ former UK 15 music publisher secretly licensed the alleged copying of I Need to Love, then Plaintiffs 16 are entitled to an accounting under that license and to joint ownership of A Lonely 17 Night. FAC at 37, ¶ 245, at 39, ¶ 255, & at 41, ¶ 262. These claims fail for at least 18 each of the following reasons. 19 First, Plaintiffs’ contention that A Lonely Night copies I Need to Love underpins 20 each of these state law claims. But, as shown above, Plaintiffs cannot raise a genuine 21 dispute that this alleged copying occurred. See above at 6-11. Further, a license would 22 have been needed only if the alleged copying copied protected expression, and 23 Plaintiffs cannot raise a genuine dispute on that point either. See above at 12-17. 24 Second, the evidence is uncontroverted that no such license exists. Fact 34. 25 Third, even if Plaintiffs were able to raise a genuine dispute as to whether A 26 Lonely Night copies I Need to Love pursuant to a secret license issued by Plaintiffs’ 27 former UK music publisher, Plaintiffs’ remedy would be to sue that UK music 28 publisher, which Plaintiffs have not done. Oddo v. Ries, 743 F.2d 630, 633 (9th Cir. 18 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 26 of 28 Page ID #:1179

1 1984) (co-owner’s remedy for co-owner’s license is to sue co-owner for an 2 accounting). 3 Fourth, the licensed creation of A Lonely Night by copying I Need to Love – 4 which, of course, never happened – would not give Plaintiffs any rights in A Lonely 5 Night. That is so because “[t]he aspects of a derivative work added by the derivative 6 author are that author’s property.” Stewart v. Abend, 495 U.S. 207, 223 (1990); 17 7 U.S.C. § 103(b) (“The copyright in a . . . derivative work extends only to the material 8 contributed by the author of such work, as distinguished from the preexisting material 9 employed in the work, . . .”). 10 Fifth, since Plaintiffs have no contractual relationship with Defendants, 11 Plaintiffs’ state claims against them are non-contractual claims based on the alleged 12 copying of I Need to Love. As a result, these state law claims are preempted. 13 “The Copyright Act explicitly preempts state laws that regulate in the area of 14 copyright, stating that ‘all legal or equitable rights that are equivalent to any of the 15 exclusive rights within the general scope of copyright as specified by [17 U.S.C.] 16 section 106 . . . are governed exclusively by this title.’” Sybersound Records, Inc. v. 17 UAV Corp., 517 F.3d 1137, 1150 (9th Cir. 2008), quoting 17 U.S.C. § 301(a). A two- 18 part test is applied to determine whether a state law claim is preempted. 19 For preemption to apply, “the work involved must fall within the ‘subject 20 matter’ of the Copyright Act as set for in 17 U.S.C. §§ 102 and 103. Kodadek v. MTV 21 Networks, Inc., 152 F.3d 1209, 1212 (9th Cir. 1998) (quoting 17 U.S.C. § 301(a)). As 22 a musical work, Plaintiffs’ I Need to Love undeniably falls within the subject matter 23 of the Copyright Act. 17 U.S.C. §102(a)(2). Indeed. Plaintiffs claim copyright in it. 24 In addition, “the rights that a plaintiff asserts under state law must be ‘rights 25 that are equivalent’ to those protected by the Copyright Act.” Kodadek, 152 F.3d at 26 1212; Sybersound, 517 F.3d at 1150. Because Section 106 gives a copyright owner 27 the exclusive “right to prohibit reproduction – whether in copies or phonorecords and 28 whether in original or derivative form – performance, distribution or display of [the] 19 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 27 of 28 Page ID #:1180

1 work, . . . in essence, a right that is ‘equivalent to copyright’ is one that is infringed

2 by the mere act of reproduction, performance, distribution, or display.” 1 NIMMER ON

3 COPYRIGHT § 1.01[B][1]. As a result, “[t]o survive preemption, [a] state cause of 4 action must protect rights that are qualitatively different from the rights protected by 5 copyright: the complaint must allege an ‘extra element’ that changes the nature of the 6 action.” Grosso v. Miramax Film Corp., 383 F.3d 965, 968 (9th Cir. 2004) (“extra 7 element” of bilateral contractual relationship saved breach of contract claim from 8 preemption), opinion amended on denial of reh’g, 400 F.3d 658 (9th Cir. 2005). 9 Here, Plaintiffs’ state law claims are based on the alleged use of I Need to Love 10 in A Lonely Night and the reproduction, public distribution, and public performance 11 of A Lonely Night. Since Plaintiffs have no contractual relationship with Defendants, 12 there is no “extra element” that makes the nature of their state law claims anything 13 other than copyright claims. As a result, Plaintiffs’ state law claims for an accounting, 14 constructive trust, and unjust enrichment are preempted. Worth v. Universal Pictures, 15 Inc., 5 F. Supp. 2d 816, 823 (C.D. Cal. 1997) (accounting claim preempted); Salim v. 16 Lee, 202 F. Supp. 2d 1122, 1127 (C.D. Cal. 2002) (constructive trust claim 17 preempted); Montz v. Pilgrim Films & Television, Inc., 649 F.3d 975, 976 (9th Cir. 18 2011) (unjust enrichment claim preempted). 19 For each of these different reasons, Plaintiffs also fail to raise a genuine issue 20 as to their state law claims. 21 (e) Defendants’ Alternative Motion for Partial Summary Judgment 22 Defendants submit that there is no genuine dispute and Plaintiffs’ claims fail 23 for multiple independent reasons. However, if, for any reason, summary judgment is 24 not granted to all Defendants on all claims, then Defendants respectfully submit that 25 summary judgment or partial summary judgment should be entered in favor of each 26 Defendant as to whom Plaintiffs fail to present evidence raising a genuine dispute as 27 to his or its alleged liability. In addition, partial summary judgment should be entered 28 that I Need to Love and A Lonely Night are not strikingly similar, that A Lonely Night 20 Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 Page 28 of 28 Page ID #:1181

1 does not copy I Need to Love, and that A Lonely Night does not copy elements of I 2 Need to Love that are original to Plaintiff. 3 3. CONCLUSION 4 Plaintiffs are unable to raise a genuine dispute as to the required elements of 5 their claim for direct copyright infringement claim and, with the collapse of that claim 6 and for additional reasons as well, their secondary infringement claims and state law 7 claims evaporate. Defendants respectfully submit that summary judgment should be 8 granted. 9

10 Dated: June 1, 2020 /s/ Peter Anderson Peter Anderson, Esq. 11 Nicolette Vairo, Esq. DAVIS WRIGHT TREMAINE LLP 12 Attorneys for Defendants ABEL M. TESFAYE, 13 KARL MARTIN SANDBERG, SAVAN HARISH KOTECHA, AHMED BALSHE, 14 JASON QUENNEVILLE, WASSIM SALIBI, THE WEEKND XO, LLC, THE WEEKND 15 XO, INC., THE WEEKND XO MUSIC, ULC, DAHEALA & CO., LLC, SAL & CO 16 MANAGEMENT LP, SAL & CO LP, XO&CO., INC., UNIVERSAL MUSIC 17 GROUP, INC., UMG RECORDINGS, INC., UNIVERSAL MUSIC PUBLISHING, INC., 18 UNIVERSAL MUSIC CORPORATION, KOBALT MUSIC PUBLISHING 19 AMERICA, INC., WARNER CHAPPELL MUSIC, INC., W CHAPPELL MUSIC 20 CORP., SONGS MUSIC PUBLISHING, LLC, ARTIST NATION MANAGEMENT 21 GROUP, INC., MXM, LLC, MXM MUSIC, 22 AB, and WOLF COUSINS 23 24 25 26 27 28 21