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1 Dean A. Dickie (appearing Pro Hac Vice) [email protected] 2 Kathleen E. Koppenhoefer (appearing Pro Hac Vice) [email protected] 3 MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. 225 West Washington Street, Suite 2600 4 Chicago, IL 60606 Telephone: 312.460.4200 5 Facsimile: 312.460.4288
6 Ira Gould (appearing Pro Hac Vice) [email protected] 7 Ryan L. Greely (appearing Pro Hac Vice) [email protected] 8 GOULD LAW GROUP 120 North LaSalle Street, Suite 2750 9 Chicago, IL 60602 Telephone: 312.781.0680 10 Facsimile: 312.726.1328
11 George L. Hampton IV (State Bar No. 144433) [email protected]
12 Colin C. Holley (State Bar No. 191999)
LLP [email protected] 13 HAMPTONHOLLEY LLP 2101 East Coast Highway, Suite 260
OL L EY 14 Corona del Mar, California 92625
H Telephone: 949.718.4550 15 Facsimile: 949.718.4580
16 Attorneys for Plaintiffs AMPTON
H EBONY LATRICE BATTS a/k/a Phoenix Phenom;
Corona del Mar,17 California 92625 and MANFRED MOHR 2101 East Coast Highway, Suite 260 18 UNITED STATES DISTRICT COURT 19 CENTRAL DISTRICT OF CALIFORNIA 20 WESTERN DIVISION 21 EBONY LATRICE BATTS, an individual ) Case No. CV10-8123 JFW (RZx) a/k/a Phoenix Phenom, et al., ) 22 ) PLAINTIFFS’ MEMORANDUM Plaintiffs, ) OF POINTS AND AUTHORITIES 23 ) IN SUPPORT OF THEIR v. ) OPPOSITION TO DEFENDANTS’ 24 ) MOTION FOR SUMMARY WILLIAM ADAMS, JR.; STACY ) JUDGMENT 25 FERGUSON; ALLAN PINEDA; and ) DATE: June 27, 2011 JAIME GOMEZ, all individually and ) TIME: 1:30 p.m. 26 collectively as the music group The Black ) Eyed Peas, et al., ) CTRM: 16 27 ) Defendants. ) 28 )
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1 TABLE OF CONTENTS 2 Page 3 INTRODUCTION ...... 1 4 STATEMENT OF FACTS ...... 2 5 I. BACKGROUND FACTS ...... 2 6 II. PROCEDURAL HISTORY...... 4 7 ARGUMENT...... 5 8 III. DEFENDANTS’ MOTION SHOULD BE DENIED BECAUSE 9 PLAINTIFFS HAVE NOT HAD AN OPPORTUNITY TO DISCOVER ESSENTIAL INFORMATION...... 5 10 A. Rule 56(D) Provides That A Court Must Deny A Motion For 11 Summary Judgment That Is Filed Before The Non-Moving Party Has Had The Opportunity To Discover Information That 12 Is Essential To The Motion’s Opposition ...... 5 13 B. Plaintiffs’ Response Will Require “Analytic Dissection” And “Expert Testimony” ...... 6 14 C. Plaintiffs Have Not Been Afforded The Opportunity To 15 Obtain Essential Evidence And Their Experts Have Not Been Afforded The Opportunity To Develop And Refine Their 16 Opinions ...... 7 17 IV. PLAINTIFFS CAN AND WILL EASILY MEET THE STANDARD TO AVOID SUMMARY JUDGMENT ...... 9 18 A. Defendants Confuse The Preliminary Injunction Standard With 19 The Summary Judgment Standard ...... 10 20 B. After Obtaining Additional Discovery, Plaintiffs Will Be Able To Show That There Are, At The Very Least, Genuine Issues of 21 Material Fact On The Issue Of Substantial Similarity...... 10 22 1. The Similar Elements and their Protected Nature ...... 10 23 2. The Differences Between The Songs That Are Both Explainable and Insignificant ...... 11 24 C. The Court Cannot Yet Determine the Standard For Substantial 25 Similarity as it is Directly Related to the Issue of Access Pursuant to the Inverse Ratio Rule...... 12 26 CONCLUSION...... 12 27 28
-i-
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1
2 INDEX OF AUTHORITIES 3 Page(s) 4 CASES
5 Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986)...... 5 6 Centillium Communications, Inc. v. Atlantic Mut. Ins. Co., 528 F.Supp.2d 940 7 (N.D. Cal. 2007) ...... 6
8 Continental Maritime of San Francisco, Inc. v. Pacific Coast Metal Trades 9 Dist. Council, 817 F.2d 1391 (9th Cir. 1987)...... 5 10 Kroft Television v. McDonalds Corp., 562 F.2d 1157 (9th Cir. 1977) ...... 6
11 Metabolife International, Inc. v. Wornick, 264 F.3d 832 (9th Cir. 2001)...... 6
12
LLP Morris v. Parke, Davis & Co., 667 F.Supp. 1332 (C.D. Cal. 1987) ...... 9 13 Rice v. Fox Broad. Co., 330 F.3d 1170 (9th Cir. 2003) ...... 12
OL L EY 14 H 15 Shaw v. Lindheim, 919 F.2d 1353 (9th Cir. 1990) ...... 10, 12 16 Swirsky v. Carey, 376 F.3d 841 (9th Cir. 2004) ...... 10 AMPTON H
Corona del Mar,17 California 92625 2101 East Coast Highway, Suite 260 COURT RULES 18 Fed.R.Civ. P. 56(c) ...... 5 19 Fed.R.Civ. P. 56(d) ...... 1, 5, 6 20 21 22 23 24 25 26 27 28 ii
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1 INTRODUCTION 2 Defendants filed this motion asserting that Plaintiffs have “come forth with no 3 new evidence” and therefore “cannot satisfy the extrinsic test for substantial 4 similarity,” a test that Defendants acknowledge requires “analytic dissection” and 5 “expert testimony.” [Dckt. #117 at pp. 12, 15]. This is an especially curious 6 assertion since Defendants have made every effort to thwart Plaintiffs’ oral discovery 7 efforts, there are 4 months remaining in the discovery process, and Defendants 8 themselves have not taken, nor even noticed, a single deposition. It must be 9 emphasized that Defendants have not deposed Plaintiffs’ expert and that Plaintiffs’ 10 expert reports are not due until July 15, 2011. 11 This motion is just the latest indication that Defendants have no intention of
12 participating in the discovery process or otherwise abiding by this Court’s orders or LLP 13 the Federal Rules of Civil Procedure. They now attempt to capitalize impermissibly
OL L EY 14 on their dilatory and obstructive tactics and to seek relief to which they are not H 15 entitled. 16 In the single “My Humps,” Defendant Stacy Ferguson derisively mocks a AMPTON H
Corona del Mar,17 California 92625 suitor and dismisses his futile requests for her attention: 2101 East Coast Highway, Suite 260 18 “[Oh] Spending all your money on me and spending time on me.” 19 It is clear that Defendants’ litigation tactics follow the same guiding principle. This 20 latest motion is just another attempt to bully Plaintiffs to the point of surrender by 21 dramatically and needlessly increasing their costs and expenses. 22 Defendants’ motion must be denied because Plaintiffs have not yet been 23 afforded the opportunity to obtain discovery on the issues that are essential to the 24 motion’s opposition. Fed.R.Civ. P. 56(d) mandates the denial of their motion under 25 these circumstances. At the very least, Plaintiffs are entitled to a continuance until 26 they have had the opportunity to obtain the relevant discovery and their experts have 27 had the opportunity to opine on the issues of substantial similarity. 28 1
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1 STATEMENT OF FACTS 2 I. BACKGROUND FACTS 3 In 2007, Plaintiffs wrote and recorded the song “Boom Dynamite.” (See, 4 Declaration of Manfred Mohr (“Mohr Decl.”) attached to Plaintiffs’ Memorandum in 5 Support of their Motion for Preliminary Injunction as Exhibit A at ¶ 3; see also 6 Declaration of Ebony Batts (“Phoenix Decl.”) attached to Plaintiffs’ Memorandum in 7 support of their Motion for Preliminary Injunction as Exhibit B at ¶ 3). After 8 Plaintiff Mohr registered a claim with the United States Copyright Office, a 9 Certificate of Registration was issued on April 10, 2009, Certification No. 10 SR0000625557 (see Exhibit C to Mohr Decl.). 11 A few months later, Mohr, acting as Phoenix’s producer and manager, was
12 approached by Pharris Thomas, a/k/a DJ Pharris (“DJ Pharris”) about using one of LLP 13 Phoenix’s songs, “Stuck Up,” on a compilation CD. Mohr Decl. at DJ Pharris
OL L EY 14 suggested to Mohr that he should get another major female artist to collaborate with H 15 Phoenix on “Stuck Up” to give it more “star power.” He said that he had a good 16 relationship with Troy Marshall, VP of Interscope Records (“Interscope”), and he AMPTON H
Corona del Mar,17 California 92625 suggested that they should submit “Stuck Up” to Interscope in an attempt to get 2101 East Coast Highway, Suite 260 18 defendant Stacy Ferguson (“Fergie”) to collaborate with Phoenix on the song. See 19 Mohr Decl. at ¶ 11. 20 As a result, in or around the fall of 2007, DJ Pharris, at Mohr’s request, 21 provided a copy of the song “Stuck Up” to Marshall. Marshall showed interest in 22 having Fergie collaborate with Phoenix on the song. Based on Marshall’s interest in 23 “Stuck Up,” Mohr submitted several more of Phoenix’s songs to Marshall, including 24 “Boom Dynamite.” 25 On or around January of 2008, in an effort to promote “Boom Dynamite,” Eric 26 Miller (“Miller”), the then President of Phoenix’s record label, sent out an e-blast 27 flyer, via email, to major record labels, which notified its recipients of Phoenix’s new 28 single “Boom Dynamite,” and provided a link to the YouTube music video of the 2
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1 song. See Mohr Decl. at ¶ 11. One of the recipients of the e-blast flyer was Jimmy 2 Iovine, Co-Founder and Chairman of Interscope. Id. 3 In or around early January 2008, “Boom Dynamite” debuted on Power 92 4 (92.3 FM WPWX) in Chicago, Illinois, and was released on iTunes, Amazon.com 5 and other international internet music distribution websites. The music video for 6 “Boom Dynamite” was first posted on YouTube at that time as well. In or around 7 February through March of 2008, “Boom Dynamite” received regular radio play in 8 Chicago, Illinois on Power 92, B-96 (96.3 FM WBBM) and KISSFM (103.5 FM 9 KISS), and was licensed to Airplay Records, a subsidiary record label of UMG 10 France, for a release in the French marketplace. See Phoenix Decl. at ¶¶ 5 and 6; and 11 Mohr Decl. at ¶¶ 6 and 7.
12 Upon information and belief, at some point between January of 2008 and LLP 13 March of 2009, Iovine and/or his agents or employees submitted the YouTube link to
OL L EY 14 “Boom Dynamite” to one or more members of the Black Eyed Peas and/or Poet H 15 Name Life, who listened to the song and copied substantial constituent elements of it 16 when they wrote “Boom Boom Pow.” This is evidenced by the fact that the songs AMPTON H
Corona del Mar,17 California 92625 are substantially similar. In fact, the hooks are more than substantially similar -- they 2101 East Coast Highway, Suite 260 18 are strikingly similar -- so much so that the Black Eyed Peas could not have written 19 “Boom Boom Pow” without copying substantial constituent elements of “Boom 20 Dynamite,” as set forth in detail below. Plaintiffs never authorized any of the 21 Defendants to record, release, perform or license “Boom Boom Pow.” 22 In addition to the individual members of the Black Eyed Peas and/or Poet 23 Name Life, Defendants UMG and Interscope are, upon information and belief, also 24 direct infringers. This is due to their alleged conspiracy with the members of the 25 Black Eyed Peas to conduct an ongoing pattern and practice of intentional copyright 26 infringement. 27 The Black Eyed Peas released “Boom Boom Pow” on or around March 30, 28 2009, as the first single off of their album The E.N.D. 3
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1 Since its release, “Boom Boom Pow” has achieved tremendous success and 2 worldwide acclaim. It is the Black Eyed Peas’ second best selling song to date, with 3 over 5.5 million digital downloads sold in the U.S. alone, helping make it iTunes’ 4 highest selling song of 2009, and playing a substantial role in helping The E.N.D. 5 album sell over 3 million copies in the U.S. (over 7 million copies worldwide). It
6 was selected by BILLBOARD MAGAZINE as Song of the Year for 2009, see 7 Billboard.com printout attached to Phoenix Decl. as Exhibit F, and was nominated 8 for a Grammy for Best Dance Recording, and the album The E.N.D. was also 9 nominated for Album of the Year and Best Pop Vocal Album. See Grammy.com 10 printout attached to Phoenix Decl. as Exhibit G. It has also been licensed in several 11 nationwide commercials, television shows, the 2009 movie G Force, and a remix of
12 “Boom Boom Pow” was licensed in the 2009 movie G.I. Joe: The Rise of Cobra. LLP 13 Stewart Decl. at ¶ 4.
OL L EY 14 Given the magnitude of the success of “Boom Boom Pow,” all of the H 15 Defendants have unjustly reaped tremendous profits from the song, and in terms of 16 the equities, all off the musical prowess, work and copyrights of Plaintiffs. AMPTON H
Corona del Mar,17 California 92625 II. PROCEDURAL HISTORY 2101 East Coast Highway, Suite 260 18 Plaintiffs filed their complaint on October 28, 2010. [Dckt. # 1]. Defendants 19 sought and received from Plaintiffs an extension of time to December 13, 2010 to 20 respond to the complaint. [Dckt. # 19]. Rather than answer the complaint, however, 21 Defendants filed a motion for more definite statement. [Dckt. # 42]. 22 On January 10, 2011, Plaintiffs filed their motion for preliminary injunction. 23 [Dckt. # 54]. The Court denied this motion ruling, inter alia, that Plaintiffs had not 24 produced “sufficient evidence that would support a finding that they are likely to 25 succeed in proving that “Boom Dynamite” and “Boom Boom Pow” are substantially 26 similar. [Dckt. # 109 at p. 8]. The Court noted, however, that it could be persuaded 27 otherwise after “the parties have the opportunity to develop additional evidence and 28 Plaintiffs’ experts have an opportunity to develop and perhaps refine their opinions.” 4
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1 [Id. at p. 9] It also added that “[p]erhaps cross-examination will expose some 2 weakness in [Defendants’ expert’s] opinions. [Id. at p. 8]. 3 The Court thereafter issued its scheduling order, which provided for a 4 September 15, 2011 discovery cut-off and a January 24, 2012 trial date. [Dckt. # 5 108]. Expert reports are due on July 15, 2011 pursuant to this same order. 6 ARGUMENT 7 III. DEFENDANTS’ MOTION SHOULD BE DENIED BECAUSE PLAINTIFFS HAVE NOT HAD AN OPPORTUNITY TO DISCOVER 8 ESSENTIAL INFORMATION 9 Defendants’ motion is grossly premature. Fed.R.Civ. P 56(d) protects a non- 10 moving party in these circumstances by mandating the denial of a motion that is filed 11 before the non-moving party has had the opportunity to discover information that is
12 essential to the motion’s opposition. Defendants have repeatedly thwarted Plaintiffs’ LLP 13 oral discovery efforts and Plaintiffs’ expert has not had the opportunity to conduct a
OL L EY 14 comprehensive analysis or complete his expert report, which is not even due until H 15 July 15, 2011. Plaintiffs are entitled to complete discovery on these essential issues 16 before responding to Defendants’ motion. AMPTON H
Corona del Mar,17 California 92625 A. Rule 56(D) Provides That A Court Must Deny A Motion For 2101 East Coast Highway, Suite 260 Summary Judgment That Is Filed Before The Non-Moving Party 18 Has Had The Opportunity To Discover Information That Is Essential To The Motion’s Opposition 19 The Supreme Court has made clear that a motion for summary judgment 20 brought pursuant to Fed.R.Civ. P. 56(c) may only be considered “after adequate time 21 for discovery” has passed. Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 22 2548 (1986). Such a motion “should not be granted when there are relevant facts 23 remaining to be discovered.” Continental Maritime of San Francisco, Inc. v. Pacific 24 Coast Metal Trades Dist. Council, 817 F.2d 1391, 1395 (9th Cir. 1987). 25 Fed.R.Civ. P. 56(d) protects parties from prematurely filed summary judgment 26 motions by “provid[ing] a mechanism whereby a party opposing a motion for 27 summary judgment may, by affidavit, state valid reasons why he is temporarily 28 5
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1 unable to present ‘facts essential to justify [its opposition].” Centillium 2 Communications, Inc. v. Atlantic Mut. Ins. Co., 528 F.Supp.2d 940, 951 (N.D. Cal. 3 2007). The rule gives courts the power to: 4 (1) defer considering the motion or deny it; 5 (2) allow time to obtain affidavits or declarations or to take 6 discovery; or 7 (3) issue any other appropriate order. 8 Fed.R.Civ. P. 56(d). The Supreme Court “has restated the rule as requiring, rather 9 than merely permitting, discovery ‘where the nonmoving party has not had the 10 opportunity to discover information that is essential to its opposition.’” 11 Metabolife International, Inc. v. Wornick, 264 F.3d 832 (9th Cir. 2001) citing
12 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5, 106 S.Ct. 2505 (1986) LLP 13 (emphasis added).
OL L EY 14 B. Plaintiffs’ Response Will Require “Analytic Dissection” And
H “Expert Testimony.” This Court Has Acknowledged That 15 Plaintiffs Are Entitled To Further Develop And Refine Their Analyses In This Regard. 16 AMPTON
H Defendants’ brief is based entirely on their argument that Plaintiffs “cannot
Corona del Mar,17 California 92625 2101 East Coast Highway, Suite 260 satisfy the extrinsic test for substantial similarity.” [Dckt. #117 at p. 16] An analysis 18 under this test requires “analytic dissection and expert testimony.” Kroft Television 19 v. McDonalds Corp., 562 F.2d 1157 (9th Cir. 1977). This Court, in its Order 20 Denying Plaintiffs’ Motion for Preliminary Injunction, has already acknowledged 21 that Plaintiffs should “have the opportunity to develop additional evidence” and that 22 Plaintiffs’ experts should “have the opportunity to develop and perhaps refine their 23 opinions.” [Dckt. # 54]. Plaintiffs cannot conduct an analytic dissection and their 24 expert cannot comprehensively opine until they are afforded those opportunities. 25 26 27 28 6
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1 C. Plaintiffs Have Not Been Afforded The Opportunity To Obtain Essential Evidence And Their Experts Have Not Been 2 Afforded The Opportunity To Develop And Refine Their Opinions 3 Plaintiffs have been thus far unable to discover the information that is essential 4 to their opposition to Defendants’ motion for good reason. 5 First, Defendants have repeatedly thwarted Plaintiffs’ discovery efforts and 6 eschewed their own obligations under the Federal Rules of Civil Procedure. Despite 7 the fact that Plaintiffs issued appropriate notices of deposition in March to all of the 8 Defendants, no depositions have proceeded to date due to difficulty in procuring 9 dates from the Defendants. Indeed, Plaintiffs have been faced with constant 10 roadblocks in their efforts to proceed with the various depositions. For example, 11 instead of cooperating and providing reasonable availability for each witness, the
12 Black Eyed Peas member Defendants first provided only one week within which LLP 13 they were allegedly available in July pursuant to their tour “schedule” – the week of
OL L EY 14 July 18. See Declaration of Dean A. Dickie, ¶ 14 (hereafter “Dickie Decl.”). H 15 Plaintiffs confirmed the deposition dates for the week of July 18, only to learn weeks 16 later that that week would no longer work for the Defendants and that Defendants AMPTON
H th Corona del Mar,17 California 92625 were suddenly only available the week of July 25 . Id. Next, the Black Eyed Peas 2101 East Coast Highway, Suite 260 18 members’ availability was changed by their counsel to July 22-27, regardless of the 19 previous assertions that their schedules were fixed until fall of 2011. Id. The Black 20 Eyed Peas Defendants have also taken the position that despite the 7-hour deposition 21 limit provided by the Federal Rules of Civil Procedure, each member has to appear 22 only for one 7-hour deposition for both cases, this matter and for Bryan Pringle v. 23 William Adams, et al., SACV 10-1656-JST (RZx). Their position asserts although 24 the cases are not consolidated or related in any way and no order so limiting the 25 Federal Rules has been entered. In other words, Defendants refuse to agree to a 26 deposition lasting longer than 3.5 hours. Id. Plaintiffs have repeatedly raised the 27 issue with Defendants in meet and confer conferences and in writing and reminded 28 them of their obligations under the Federal Rules of Civil Procedure. Apparently 7
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1 rock stars and their lawyers believe they are immune to those rules. No efforts have 2 been made by the Defendants to obtain a Court order allowing for the requested 3 limitation on the deposition length, as is the only acceptable means of obtaining that 4 type of limitation. 5 The Black Eyed Peas also take the position that the location of the depositions, 6 as noticed by the Plaintiffs at HamptonHolley LLP, their local counsel’s office in 7 Corona del Mar (located within this Court’s district and only 50 miles from Los 8 Angeles where the Defendants are located) is completely “unreasonable” and 9 “burdensome” and the Defendants refuse to participate in the depositions anywhere 10 other than Los Angeles. Id. 11 Yet another example of Defendants’ overall gamesmanship with oral
12 discovery is with respect to Plaintiffs’ notice of the deposition of Jimmy Iovine, LLP 13 Chairman of Defendant Interscope, which was properly noticed for June 3, 2011. Id.
OL L EY 14 Linda Burrow, counsel for Mr. Iovine, maintains her position that regardless of H 15 pertinent evidence and the Plaintiffs’ knowledge as to Mr. Iovine’s personal and 16 direct role regarding the allegations of the complaint, Mr. Iovine refuses to present AMPTON H
Corona del Mar,17 California 92625 for a deposition. Id. Ms. Burrow has also followed the Black Eyed Peas members’ 2101 East Coast Highway, Suite 260 18 lead and taken the position with respect to Ike Youssef that Mr. Youssef will only 19 appear once for one 7-hour deposition for both this matter and the aforementioned 20 Pringle matter. Id. And, again, Ms. Burrow echoes the complaints of the Black Eyed 21 Peas members that Corona del Mar is an unreasonable location for the witnesses 22 residing in and around Los Angeles. Id. 23 Yet, with all of the firm positions that these Defendants have taken, none have 24 moved for a protective order with this Court. 25 Second, Plaintiffs’ experts have not had the opportunity to complete their 26 analytic dissection of, among other things, the similarities between “Boom Boom 27 Pow” and “Boom Dynamite,” the protected nature of those similarities, the 28 differences between the two songs, and an explanation as to why those differences 8
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1 should be overlooked by the Court in determining substantial similarity. [Dickie 2 Decl., ¶4] An analysis of each of these issues is essential to the development and 3 refinement of their expert opinions. 4 Plaintiffs have also not yet had the opportunity to depose Defendants’ 5 proposed expert, Dr. Lawrence Ferrara. As this Court recognized, “[p]erhaps the 6 cross-examination of Dr. Ferrara will expose some weaknesses in Dr. Ferrara’s 7 opinions.” [Dckt. # 54 at p. 8] Plaintiffs are entitled to depose Dr. Ferrara before 8 they respond to the motion that relies solely on his testimony. 9 Plaintiffs’ inability to obtain this essential discovery is not attributable to any 10 lack of effort on their parts. As noted above, Defendants have repeatedly obstructed 11 their discovery efforts. Furthermore, there are 4 months left in discovery and
12 Plaintiffs’ expert report is not even due until July 15, 2011. Defendants’ motion is LLP 13 both premature and without merit. This Court should deny the motion or, at the very
OL L EY 14 least, grant a continuance until Plaintiffs have had the opportunity to obtain relevant H 15 discovery and their expert has had an opportunity to conduct the analytic dissection 16 required to respond to the motion. AMPTON H
Corona del Mar,17 California 92625 IV. PLAINTIFFS CAN AND WILL EASILY MEET THE STANDARD TO 2101 East Coast Highway, Suite 260 AVOID SUMMARY JUDGMENT. 18 Defendants’ motion is but their latest tactic to attempt to avoid their discovery 19 obligations. They curiously assert that Plaintiffs’ experts “cannot satisfy the 20 extrinsic test for substantial similarity” even though Defendants have never deposed 21 Plaintiffs’ experts or anyone else on these issues. This district has previously held 22 that a defendant cannot prevail on a motion for summary judgment in these 23 circumstances. See e.g. Morris v. Parke, Davis & Co., 667 F.Supp. 1332 (C.D. Cal. 24 1987) (Defendant was not entitled to summary judgment on theory that the plaintiff 25 could not offer any evidence relevant to the existence of alleged manufacturing 26 defects when the defendant did not depose the plaintiff’s expert about those issues.) 27 Defendants’ reasoning is premised upon an inaccurate standard for summary 28 9
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1 judgment and an apparent misunderstanding as to the trier of fact in this case. As 2 will be proven when Plaintiffs are afforded the opportunity to obtain the requisite 3 discovery, Plaintiffs easily meet the burden required to survive summary judgment. 4 A. Defendants Confuse The Preliminary Injunction Standard With The Summary Judgment Standard 5 The Ninth Circuit has made clear that “the test for summary judgment in a 6 copyright case must comport with the standard applied to all civil actions.” Shaw v. 7 Lindheim, 919 F.2d 1353, 1355 (9th Cir. 1990). Plaintiffs’ suggestion that this 8 Court’s ruling that Plaintiffs had failed to establish that “they are likely to succeed in 9 proving… substantial similar[ity]” is somehow dispositive here is simply incorrect. 10 It also disregards the fact that the jury will be the ultimate trier of fact in this case. 11 Summary judgment is “not highly favored on questions of substantial
12
LLP similarity in copyright cases.” Shaw v. Lindheim, 919 F.2d 1353, 1355 (9th Cir. 13 1990) (“Where reasonable minds could differ on the issue of substantial similarity,
OL L EY 14
H summary judgment is improper.”). This circuit has consistently held that it can only 15 be granted when “no reasonable juror could find substantial similarity of ideas and 16 AMPTON
H expression… viewing the evidence in the light most favorable to the nonmoving
Corona del Mar,17 California 92625 2101 East Coast Highway, Suite 260 party.” Swirsky v. Carey, 376 F.3d 841, 844 (9th Cir. 2004) If a plaintiff can present 18 merely an “indicia of a sufficient disagreement concerning the substantial similarity 19 of [the] two works, then the case must be submitted to a trier of fact.” Id. Plaintiffs 20 will be more than capable of meeting this standard. 21 B. After Obtaining Additional Discovery, Plaintiffs Will Be Able To 22 Show That There Are, At The Very Least, Genuine Issues of Material Fact On The Issue Of Substantial Similarity 23 1. The Similar Elements and their Protected Nature 24 Defendants argue that Plaintiffs’ infringement analysis has thus far failed to 25 filter out unprotected elements of “Boom Dynamite.” [Dckt. #117] However 26 Defendants make that assertion prematurely before Plaintiffs have even submitted 27 their revised expert report. Upon completion of the necessary discovery and 28 10
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1 analysis, Dr. Stewart’s revised report will demonstrate that contrary to Defendants’ 2 position, there are similarities in both protectable and unprotectable elements in 3 “Boom Boom Pow” and “Boom Dynamite” beyond those that were covered in 4 Dr. Stewart’s original Declaration. [Dickie Decl., ¶4]. 5 Dr. Stewart will further expand his opinion that the combination of 6 unprotectable elements contained in “Boom Dynamite,” which are also contained in 7 “Boom Boom Pow,” are eligible for copyright protection due to their multiplicity and 8 uniqueness, such that their combination constitutes an original work of authorship. 9 [Dickie Decl., ¶4]. Defendants incorrectly ask the Court to apply the same 10 substantial similarity analysis to the “same facts” and argue that that should lead this 11 Court to same conclusion. [Dckt. #117]. Defendants’ assertion presumes that:
12 (1) Plaintiffs do not intend to submit a revised report expanding on the original LLP 13 opinions of Dr. Stewart; and (2) the facts and opinions contained in Dr. Ferrera’s
OL L EY 14 report are indisputably correct – both of these presumptions are wrong. Dr. Stewart’s H 15 report will show that there exists a genuine issue of material fact regarding the 16 similarities of elements between the two songs. AMPTON H
Corona del Mar,17 California 92625 2. The Differences Between The Songs That Are Both 2101 East Coast Highway, Suite 260 Explainable and Insignificant 18 Dr. Stewart’s revised report will further opine that while there are 19 dissimilarities between “Boom Boom Pow” and “Boom Dynamite,” these should be 20 overlooked given the numerous and unique similarities throughout both songs, which 21 act as a “finger print.” [Dickie Decl., ¶4] His revised report will emphasize that 22 “Boom Boom Pow” could not have been written without first copying “Boom 23 Dynamite” given the high number and distinctive qualities of the similarities between 24 the two works, and that the two songs, particularly the important hook/chorus 25 portions of the songs, are substantially similar. Id. 26 27 28 11
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1 C. The Court Cannot Yet Determine the Standard For Substantial Similarity as it is Directly Related to the Issue of Access Pursuant 2 to the Inverse Ratio Rule 3 The Court cannot at this point determine the proper standard for substantial 4 similarity until further discovery is taken on the issue of access. Under the “inverse 5 ratio” rule, if a defendant had access to a copyrighted work, the plaintiff may show 6 infringement based on a lesser degree of similarity between the copyrighted work 7 and the allegedly infringing work. Shaw v. Lindheim, 919 F.2d 1353, 1361 (9th Cir. 8 1990)) (citing 2 M. Nimmer, Nimmer on Copyright § 143.4, at 634 (1976)); see also 9 Rice v. Fox Broad. Co., 330 F.3d 1170, 1178 (9th Cir. 2003). Accordingly, if 10 Plaintiffs can establish that the Black Eyed Peas had access to their work, Plaintiffs’ 11 standard for proving substantial similarity will be diminished. [Dickie Decl., ¶ 16]
12 Neither Plaintiffs nor the Court will be able to definitively determine whether the LLP 13 Defendants had access to Plaintiffs’ work until after the appropriate fact discovery
OL L EY 14 has been taken. [Dickie Decl., ¶15 and 16]. Plaintiffs have a reasonable belief that a H 15 higher degree of access will be proven given the fact that, among other things, 16 Defendant Interscope, pursuant to Plaintiffs’ Request to Produce Documents, AMPTON H
Corona del Mar,17 California 92625 recently produced two e-blast containing Plaintiffs’ music video, which was sent to 2101 East Coast Highway, Suite 260 18 and received by Jimmy Iovine, Chairman and A&R for Interscope, as stated in 19 Mohr’s Decl. at ¶ 11. (Copies of the two e-blasts are attached hereto as Group 20 Exhibit A). 21 CONCLUSION 22 For each of the reasons set forth above, Plaintiffs respectfully request that this 23 Court deny Defendants’ Motion for Summary Judgment or, at the very least grant a 24 continuance until discovery is complete and Plaintiffs have had an opportunity to 25 discover the information that will be essential to their response to this motion. 26 27 28 12
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1 Plaintiffs further request that this Court award such other relief that is just and 2 proper. 3 Dated: June 6, 2011 Dean A. Dickie (appearing Pro Hac Vice) Kathleen E. Koppenhoefer (appearing Pro Hac Vice) 4 MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. 5 Ira Gould (appearing Pro Hac Vice) 6 Ryan L. Greely (appearing Pro Hac Vice) GOULD LAW GROUP 7 George L. Hampton IV (State Bar No. 144433) 8 Colin C. Holley (State Bar No. 191999) HAMPTONHOLLEY LLP 9
10 By: /s/ Dean A. Dickie Attorneys for Plaintiffs 11 EBONY LATRICE BATTS a/k/a Phoenix Phenom and MANFRED MOHR 12 LLP 13
OL L EY 14 H 15 16 AMPTON H
Corona del Mar,17 California 92625 2101 East Coast Highway, Suite 260 18 19 20 21 22 23 24 25 26 27 28 13