Fahmy v. Jay-Z et al

Filing 72

ANSWER to Complaint - (Discovery), Complaint - (Discovery), Complaint - (Discovery) 1 filed by Defendant UMG Recordings Inc.(Lewis, Alexa)

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RUSSELL J. FRACKMAN (SBN 49087)
[e-mail]
ALEXA L. LEWIS (SBN 235867)
[e-mail]
MITCHELL SILBERBERG & KNUPP LLP
11377 West Olympic Boulevard
Los Angeles, California 90064-1683
Telephone: [phone]
Facsimile: [phone]

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Attorneys for UMG Recordings, Inc.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

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Osama Ahmed Fahmy, an individual,
Plaintiff,

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CASE NO. CV 07-05715 CAS (PJWx)
The Honorable Christina A. Snyder

v.
Jay-Z (aka Shawn Carter), Timothy
Mosely, Kyambo Joshua, Rob Bourdon,
Brad Delson, Mike Shinoda, Dave
Farrell, Joseph Hahn, Chester
Bennington, Big Bad Mr. Hahn Music,
Chesterchaz Publishing, EMI Blackwood
Music, Inc., EMI Music Publishing Ltd.,
Kenji Kobayashi Music, Lil Lulu
Publishing, Machine Shop Recordings,
LLC, Marcy Projects Productions II,
Inc., MTV Networks Enterprises Inc.,
Nondisclosure Agreement Music,
Paramount Home Entertainment, Inc.,
Paramount Pictures Corporation, Radical
Media, Rob Bourdon Music, Roc-AFella Records, LLC, Timbaland
Productions, Inc., UMG Recordings,
Inc., Universal Music and Video
Distribution, Inc., and Warner Music
Inc.,

ANSWER TO COMPLAINT OF
DEFENDANT UMG RECORDINGS,
INC.

Defendants.

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ANSWER TO COMPLAINT

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Defendant UMG Recordings, Inc. (“Defendant”), answers the Complaint of
Osama Ahmed Fahmy (“Plaintiff”) as follows:

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JURISDICTION AND VENUE
1.

The allegations contained in paragraph 1 are legal conclusions to

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which a response is not required. To the extent the allegations in paragraph 1 are

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factual in nature, Defendant denies each and every allegation set forth therein.

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PARTIES
2.

Answering the first and second sentences of paragraph 2, Defendant

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lacks information sufficient to form a belief as to the truth of said allegations and

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on that basis denies each and every allegation set forth therein; and answering the

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third sentence of paragraph 2, denies each and every allegation set forth therein.

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3.

Answering paragraph 3, Defendant admits the allegations in the first

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sentence of paragraph 3; lacks information sufficient to form a belief as to the truth

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of the allegations in the second sentence of paragraph 3, and on that basis denies

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each and every allegation set forth therein; and denies each and every remaining

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allegation set forth in paragraph 3.

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4.

Answering paragraph 4, Defendant admits that Rob Bourdon, Brad

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Delson, Mike Shinoda, Dave Farrell, Joseph Hahn, and Chester Bennington are

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entertainers who record, produce, and perform music as members of the band

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“Linkin Park,” but lacks information sufficient to form a belief as to the truth of

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the remaining allegations of paragraph 4 and on that basis denies each and every

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allegation set forth therein.

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5.

Defendant denies each and every allegation set forth in the first

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sentence of paragraph 5. Answering the second sentence of paragraph 5,

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Defendant lacks information sufficient to form a belief as to the truth of said

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allegations and on that basis denies each and every allegation set forth therein.

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6.

Answering paragraph 6, Defendant denies each and every allegation

set forth therein.
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ANSWER TO COMPLAINT

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7.

Answering paragraph 7, Defendant lacks information sufficient to

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form a belief as to the truth of said allegations and on that basis denies each and

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every allegation set forth therein.

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ALLEGATIONS COMMON TO ALL CLAIMS
8.

Answering the final sentence of paragraph 8, Defendant denies each

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and every allegation set forth therein. Answering the remainder of paragraph 8,

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Defendant lacks information sufficient to form a belief as to the truth of said

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allegations and on that basis denies each and every allegation set forth therein.

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9.

Answering paragraph 9, Defendant lacks information sufficient to

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form a belief as to the truth of said allegations and on that basis denies each and

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every allegation set forth therein.

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10.

Answering paragraph 10, Defendant lacks information sufficient to

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form a belief as to the truth of said allegations and on that basis denies each and

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every allegation set forth therein.

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11.

Answering paragraph 11, Defendant lacks information sufficient to

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form a belief as to the truth of said allegations and on that basis denies each and

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every allegation set forth therein.

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12.

Answering paragraph 12, Defendant admits that the album Vol.

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3…Life and Times of S. Carter, which contains a sound recording entitled “Big

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Pimpin,’” was released in or about December 1999. Answering the remaining

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allegations in paragraph 12, Defendant lacks information sufficient to form a belief

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as to the truth of said allegations and on that basis denies each and every allegation

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set forth therein.

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13.

Answering the first sentence of paragraph 13, Defendant admits that

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its original release through the present. Defendant denies each and every

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distribution of the album Vol. 3…Life and Times of S. Carter has continued from
remaining allegation set forth in paragraph 13.

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ANSWER TO COMPLAINT

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14.

Answering paragraph 14, Defendant admits that, in or about July

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2004, Linkin Park and Jay-Z performed a concert at the Roxy Theater in West

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Hollywood; that, during said concert Jay-Z and Linkin Park performed a song

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entitled “Big Pimpin’/Papercut;” and that, in approximately late November 2004, a

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work entitled Collision Course, which jointly packaged a DVD recording of said

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concert and a CD containing an in-studio recording of “Big Pimpin’/Papercut,”

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was released, which continues to be distributed today. Defendant denies each and

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every remaining allegation set forth in paragraph 16.

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15.

Answering paragraph 15, Defendant lacks information sufficient to

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form a belief as to the truth of said allegations and on that basis denies each and

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every allegation set forth therein.

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16.

Answering the first sentence of paragraph 16, Defendant denies each

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and every allegation set forth therein. Answering the second sentence of paragraph

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16, Defendant lacks information sufficient to form a belief as to the truth of said

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allegations and on that basis denies each and every allegation set forth therein.

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17.

The allegations contained in paragraph 17 are legal conclusions to

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which a response is not required. To the extent the allegations in paragraph 17 are

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factual in nature, Defendant lacks information sufficient to form a belief as to the

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truth of said allegations and on that basis denies each and every allegation set forth

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therein.

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18.

The allegations contained in paragraph 18 are legal conclusions to

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which a response is not required. To the extent the allegations in paragraph 18 are

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factual in nature, Defendant lacks information sufficient to form a belief as to the

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truth of said allegations and on that basis denies each and every allegation set forth

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therein.

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ANSWER TO FIRST CLAIM FOR RELIEF
19.

Answering paragraph 19, Defendant incorporates by reference its

answers to paragraphs 1 through 18 above, as if set forth in full herein.
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ANSWER TO COMPLAINT

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20.

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set forth therein.

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21.

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set forth therein.

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22.

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set forth therein.

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23.

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set forth therein.

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24.

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set forth therein.

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25.

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set forth therein.

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26.

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set forth therein.

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27.

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set forth therein.

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Answering paragraph 20, Defendant denies each and every allegation
Answering paragraph 21, Defendant denies each and every allegation
Answering paragraph 22, Defendant denies each and every allegation
Answering paragraph 23, Defendant denies each and every allegation
Answering paragraph 24, Defendant denies each and every allegation
Answering paragraph 25, Defendant denies each and every allegation
Answering paragraph 26, Defendant denies each and every allegation
Answering paragraph 27, Defendant denies each and every allegation
ANSWER TO SECOND CLAIM FOR RELIEF

28.

Answering paragraph 28, Defendant incorporates by reference its

answers to paragraphs 1 through 18 above, as if set forth in full herein.

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29.

Answering paragraph 29, Defendant denies each and every allegation

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set forth therein.

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30.

Answering the first sentence of paragraph 30, Defendant denies each

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and every allegation set forth therein. Defendant lacks information sufficient to

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form a belief as to the truth of the allegations in the second sentence of paragraph

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30 and on that basis denies each and every allegation set forth therein.

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31.

Answering paragraph 31, Defendant lacks information sufficient to

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form a belief as to the truth of the allegations that Linkin Park and Jay-Z have

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performed “Big Pimpin’/Papercut” at venues and on occasions other than the July

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ANSWER TO COMPLAINT

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2004 performance at the Roxy, and on that basis denies those allegations.

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Defendant denies each and every remaining allegation set forth in Paragraph 31.

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32.

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set forth therein.

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33.

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set forth therein.

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34.

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set forth therein.

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35.

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set forth therein..

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Answering paragraph 32, Defendant denies each and every allegation
Answering paragraph 33, Defendant denies each and every allegation
Answering paragraph 34, Defendant denies each and every allegation
Answering paragraph 35, Defendant denies each and every allegation
ANSWER TO THIRD CLAIM FOR RELIEF

36.

Answering paragraph 36, Defendant incorporates by reference its

answers to paragraphs 1 through 18 above, as if set forth in full herein.
37.

The allegations contained in paragraph 37 are not directed against

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Defendant and as such no answer to paragraph 37 is required. To the extent any

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answer is required, Defendant denies each and every allegation set forth therein.

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38.

The allegations contained in paragraph 38 are not directed against

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Defendant and as such no answer to paragraph 38 is required. To the extent any

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answer is required, Defendant denies each and every allegation set forth therein.

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39.

The allegations contained in paragraph 39 are not directed against

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Defendant and as such no answer to paragraph 39 is required. To the extent any

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answer is required, Defendant denies each and every allegation set forth therein.

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40.

The allegations contained in paragraph 40 are not directed against

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Defendant and as such no answer to paragraph 40 is required. To the extent any

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answer is required, Defendant denies each and every allegation set forth therein.

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41.

The allegations contained in paragraph 41 are not directed against

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Defendant and as such no answer to paragraph 41 is required. To the extent any

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answer is required, Defendant denies each and every allegation set forth therein.

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ANSWER TO COMPLAINT

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42.

The allegations contained in paragraph 42 are not directed against

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Defendant and as such no answer to paragraph 42 is required. To the extent any

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answer is required, Defendant denies each and every allegation set forth therein.

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ANSWER TO FOURTH CLAIM FOR RELIEF
43.

This claim for relief has been dismissed pursuant to the Court’s Order

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of March 20, 2008, and as such no answer to paragraph 43 is required. To the

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extent any answer is required, Defendant incorporates by reference its answers to

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paragraphs 1 through 37 above, as if set forth in full herein.

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44.

This claim for relief has been dismissed pursuant to the Court’s Order

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of March 20, 2008, and as such no answer to paragraph 44 is required. To the

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extent any answer is required, Defendant denies each and every allegation set forth

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therein.

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45.

This claim for relief has been dismissed pursuant to the Court’s Order

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of March 20, 2008, and as such no answer to paragraph 45 is required. To the

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extent any answer is required, Defendant denies each and every allegation set forth

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therein.

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46.

This claim for relief has been dismissed pursuant to the Court’s Order

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of March 20, 2008, and as such no answer to paragraph 46 is required. To the

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extent any answer is required, Defendant denies each and every allegation set forth

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therein.

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47.

This claim for relief has been dismissed pursuant to the Court’s Order

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of March 20, 2008, and as such no answer to paragraph 47 is required. To the

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extent any answer is required, Defendant denies each and every allegation set forth

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therein.

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ANSWER TO COMPLAINT

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PRAYER FOR RELIEF
48.

Defendant denies that Plaintiff is entitled to recover any of the

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damages, injunctive or other relief sought in his Prayer for Relief, and denies each

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and every allegation contained therein.

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FIRST AFFIRMATIVE DEFENSE

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(Failure to State a Claim for Relief)

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49.

The Complaint fails to state facts sufficient to state a claim upon

which relief may be granted.

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SECOND AFFIRMATIVE DEFENSE

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(Statute of Limitations)

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50.

Plaintiff’s claims are barred in whole or in part by the applicable

statute(s) of limitations.

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THIRD AFFIRMATIVE DEFENSE

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(Standing)

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51.

Plaintiff lacks standing to bring this action or any claim against

Defendant for the relief sought herein.

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FOURTH AFFIRMATIVE DEFENSE

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(Failure to Join Necessary and Indispensable Parties)

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52.

The Complaint fails to name necessary or indispensable parties,

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including persons and entities that own the allegedly infringed works, as alleged in

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the Complaint.

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ANSWER TO COMPLAINT

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FIFTH AFFIRMATIVE DEFENSE

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(Independent Creation)

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53.

Defendant’s works were the result of Defendant’s independent

creation.

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SIXTH AFFIRMATIVE DEFENSE

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(Adequate Remedy at Law)

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54.

Plaintiff's causes of action, and each of them, and his injunctive and

restitution remedies, are barred in light of the fact that Plaintiff has an adequate
remedy at law.

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SEVENTH AFFIRMATIVE DEFENSE

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(Attorneys’ Fees Not Recoverable)

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55.

Plaintiff is barred from any recovery of attorneys’ fees, because, in

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bringing this action, Plaintiff has not alleged any basis upon which attorneys’ fees

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are recoverable.

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EIGHTH AFFIRMATIVE DEFENSE

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(Laches)

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56.

Plaintiff is barred by the doctrine of laches from asserting any of his

claims for relief.

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NINTH AFFIRMATIVE DEFENSE

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(Waiver)

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57.

Plaintiff has, through his actions, conduct, delay, and failure to act,

waived any right to relief.

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ANSWER TO COMPLAINT

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TENTH AFFIRMATIVE DEFENSE

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(Estoppel)

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58.

Plaintiff is estopped by his own acts and omissions from asserting any

claims in this action.

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ELEVENTH AFFIRMATIVE DEFENSE

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(De Minimis)

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59.

To the extent any copyrightable elements from any of the allegedly

infringed works were used in allegedly infringing works and were not
independently created, such use is de minimis and not actionable.

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TWELFTH AFFIRMATIVE DEFENSE

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(Authorization, License, Acquiescence, Ratification, Consent)

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60.

To the extent any of the acts or omissions averred in the Complaint

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occurred, those acts were authorized, licensed, acquiesced in, ratified, or consented

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to it, expressly, by implication, or by conduct.

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THIRTEENTH AFFIRMATIVE DEFENSE

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(Lack of Willfulness)

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61.

Defendant has not willfully infringed any alleged copyright in the

Plaintiff’s purported work.

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FOURTEENTH AFFIRMATIVE DEFENSE

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(Failure to Comply with Statutory Requirements)

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62.

Plaintiff has failed to comply with the registration, deposit, and other

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statutory requirements that are conditions precedent to maintaining this action
and/or to the recovery of statutory damages and attorneys’ fees.

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ANSWER TO COMPLAINT

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FIFTEENTH AFFIRMATIVE DEFENSE

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(Work for Hire)

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63.

To the extent Baligh Hamdy wrote or contributed to “Khosara

Khosara,” such contribution was a work made for hire.

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SIXTEENTH AFFIRMATIVE DEFENSE

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(Unclean Hands)

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64.

Plaintiff’s claims are barred by the doctrine of unclean hands.

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SEVENTEENTH AFFIRMATIVE DEFENSE

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(Good Faith)

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65.

To the extent Defendant engaged in any act averred by Plaintiff, it did

so innocently and in good faith.

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EIGHTEENTH AFFIRMATIVE DEFENSE

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(Lack of Originality)

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66.

Plaintiff’s causes of action are barred as the portion of the Plaintiff’s

work alleged to have been infringed is not original.

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NINETEENTH AFFIRMATIVE DEFENSE

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(Lack of Protectability)

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67.

Plaintiff’s causes of action are barred as the portion of the Plaintiff’s

work alleged to have been infringed is not protectable.

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TWENTIETH AFFIRMATIVE DEFENSE

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(Forfeiture by General Publication)

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68.

Plaintiff’s works are in the public domain by reason of the alleged

author’s sale of said works without affixing any copyright notice thereto.
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ANSWER TO COMPLAINT

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TWENTY-FIRST AFFIRMATIVE DEFENSE

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(Fair Use)

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69.

To the extent any copyrightable elements from the allegedly infringed

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work was used in allegedly infringing works and were not independently created,

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such use constituted fair use.

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TWENTY-SECOND AFFIRMATIVE DEFENSE

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(Not Copyrightable Expression)

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70.

Plaintiff’s claims are barred, in whole or in part, because there is no

infringement of copyrightable expression.

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WHEREFORE, Defendant prays:

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1.

That Plaintiff take nothing by the Complaint, and that the Complaint,

and each claim for relief therein, be dismissed with prejudice;

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2.

For Defendant’s attorneys’ fees and full costs incurred herein; and

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For such other relief as the Court deems just and proper.

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DATED: April 3, 2008

RUSSELL J. FRACKMAN
ALEXA L. LEWIS
MITCHELL SILBERBERG & KNUPP LLP

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By: /s/ Alexa L. Lewis
Alexa L. Lewis
Attorneys for Defendant UMG Recordings, Inc.

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ANSWER TO COMPLAINT