George Clinton v. Will Adams et al

Filing 105

PROPOSED JURY INSTRUCTIONS filed by plaintiff George Clinton.. (Thennisch, Jeffrey)

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JEFFREY P. THENNISCH
(Michigan Bar Number P51499)
(appearing Pro Hac Vice)
[e-mail]
DOBRUSIN THENNISCH PC
29 West Lawrence Street, Suite 210
Pontiac, Michigan 48342
Telephone: [phone]
Facsimile: [phone]
Attorney for Plaintiff GEORGE CLINTON

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA
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GEORGE CLINTON, an individual,
Plaintiff,

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The Honorable Otis D. Wright II
PLAINTIFF’S DISPUTED JURY

v.
WILL ADAMS, p/k/a will,I,am
individually and d/b/a will.i.am
music, inc., et al.,
Defendants.

INSTRUCTIONS
Pretrial Conference: May 22, 2012
Trial Date: June 5, 2012
Place: Courtroom 11

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Case No.CV 10-09476-ODW-PLA

Plaintiff’s Disputed Jury Instructions

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In accordance with Local Rule 51-1 of the U.S. District Court for the
Central District of California and the April 29, 2011 Case Management Order in
this action at D/E 38, Plaintiff, George Clinton (“Clinton”) hereby submits the

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following set of Plaintiff’s Disputed Jury Instructions. Each proposed instruction
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is followed by a statement from the Defendants supporting their objection(s) to
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the instruction, and a reply, if any, from the Plaintiff supporting the instruction.
Dated: April 30, 2012

Respectfully submitted,

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/s/Jeffrey P. Thennisch

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Dobrusin & Thennisch PC

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29 W. Lawrence Street, Suite 210
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Pontiac, Michigan 48342

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[phone] telephone

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[phone] fax

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Plaintiff’s Disputed Jury Instructions

JURY INSTRUCTIONS

COURT’S INSTRUCTION NUMBER _____

PLAINTIFF’S PROPOSED JURY INSTRUCTION NO. 1
17.5 COPYRIGHT INFRINGEMENT—OWNERSHIP OF VALID
COPYRIGHT (17 U.S.C. §§ 201-205)
A person who holds a copyright may obtain a certificate of registration from
the Copyright Office of the Library of Congress. This certificate is sufficient to
establish the facts stated in the certificate, unless outweighed by other evidence in
this case.
The evidence in this case includes a certificate of copyright registration from
the Copyright Office. You are instructed that the certificate is prima facie evidence
that there is a valid copyright in the sound recording Knee Deep.
Plaintiff’s ownership of Knee Deep is also confirmed by the federal court
order issued by Judge Real on June 17, 2005, D/E 121 in Case 03-08955.

Plaintiff’s Authority:
Ninth Circuit Manual of Model Jury Instructions (Civil) No. 17.5 modified to note
only supplemental instructions: Copyright Certificate to reflect that a copyright
registration certificate can shift the burden of coming forward with proof of
plaintiff’s ownership of a valid copyright. Real’s June 17, 2005, Order at D/E 121
in Case 03-08955.

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Jury Instructions

DEFENDANTS’ OBJECTION TO
PLAINTIFF’S DISPUTED INSTRUCTION NUMBER 1

Defendants object to this proposed instruction on two grounds.
First, the instruction is improper because it tells the jury that Plaintiff’s
ownership of Knee Deep is “confirmed” by the June 17, 2005 federal court order.
At best, this 2005 order has the effect of a valid copyright registration issued
directly to Plaintiff: it is prima facie evidence of ownership, but does not establish
ownership conclusively.
Second, the instruction omits the third element listed in the primary version
of the model instruction: the requirement that the plaintiff “complied with
copyright notice requirements by placing a copyright notice on publicly distributed
copies of the allegedly infringed work.” See Instruction No. 17.5, Ninth Circuit
Model Jury Instructions—Civil (Jan. 2012). Because Knee Deep was first
published in 1979, it is still subject to the requirement that a copyright notice be
placed on publicly distributed copies. “[W]orks distributed prior to March 1,
1989 . . . may enter the public domain if their owner failed to comply with the
notice procedures.” See Comment to Model Instruction No. 17.5 (citing Lifshitz v.
Waller Drake & Sons, Inc., 806 F.2d 1426, 1432–34 (9th Cir.1986)); see also
2 Nimmer et al., Nimmer on Copyright, § 7.02[C][2] p. 7-16 (2010) (explaining
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Jury Instructions

notice requirements for “decennial publications,” such as Knee Deep).
Defendants request that the Court issue Joint Proposed Instruction No. 35, in
lieu of Plaintiff’s proposed instruction.

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Jury Instructions

PLAINTIFF’S REPLY TO DEFENDANTS’ OBJECTION TO PROPOSED
JURY INSTRUCTION NO. 1

Plaintiff responds by stating that the June 17, 2005 Order from Judge Real is
a clear Order from an Article III Court which not only speaks for itself, but also
involves the adjudication and ownership of Plaintiff’s rights in the same master
recordings at issue in this action. Defendants’ objection that the June 17, 2005
Order “tells the jury” something is, at best, speculative. Rather, the prior June 17,
2005 Order from this very Article III Court is concise and carries the force of law
as to the Plaintiff’s ownership in the same master recordings at issue in this action
AND provides guidance that any license obtained by any other party (which these
Defendants) claim to have is not valid unless it was issued by the Plaintiff himself.
Plaintiff deserves any benefit from his own prior action especially where these
Defendants have taken no action to limit, vacate, or modify Judge Real’s June 17,
2012 Order in any fashion. Defendants’ objection is akin to a collateral attack on
this prior Order in that the absence of this instruction would actually deprive the
jury and the Plaintiff of well-accepted legal doctrines, such as stare decisis.

Turning to the second component of Defendant’s objection, the existence of Judge
Real’s June 17, 2005 Order in no way limits any element which Plaintiff may have
to separately prove in this action, including any putative “notice” requirement.
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Jury Instructions

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Jury Instructions

COURT’S INSTRUCTION NUMBER _____
PLAINTIFF’S PROPOSED JURY INSTRUCTION NO. 2: DEFINITION OF
A LICENSE
A contract is an agreement to do a certain thing. A license is a type of
contract. A copyright license gives the recipient of the license permission to copy,
distribute, and otherwise use a copyrighted work in accordance with the license’s
terms.
A license between the copyright holder and the defendants is a defense to a
claim of copyright infringement.

Plaintiff’s Authority:
Cal. Civ. Code § 1549; see generally, Sun Microsystems, Inc. v. Microsoft Corp.,
188 F.3d 1115, 1121-22 (9th Cir. 1999).

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Jury Instructions

DEFENDANTS’ OBJECTION TO
PLAINTIFF’S DISPUTED INSTRUCTION NUMBER 2

Defendants object to this proposed instruction and Plaintiff’s Disputed
Instruction No. 3 on two grounds.
First, Plaintiff’s proposed instructions are cumbersome and confusing in that
they require two (or three) instructions regarding a license, whereas the joint
proposed instructions already accomplish this in one instruction. See Joint
Proposed Instruction No. 31.
Second, Plaintiff’s proposed instructions improperly characterize the issues
as whether “plaintiff gave [defendants] a license” and whether “plaintiff granted a
license.” This suggests that the Defendants must have had some direct contact
with the Plaintiff in order to obtain a valid license. In reality, Defendants could
have obtained (and did obtain) a valid license through an entity that held the
licensing rights to Knee Deep (as with the 2003 Shut Up Remix), or through
Plaintiff’s agent (as with the 2009 Shut Up Remix).
Defendants request that the Court issue Joint Proposed Instruction No. 31, in
lieu of Plaintiff’s proposed instructions.

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Jury Instructions

PLAINTIFF’S REPLY TO DEFENDANTS’ OBJECTION TO PROPOSED
JURY INSTRUCTION NO. 2

Plaintiff responds by stating that the proposed Jury Instruction No. 2 is
neither cumbersome nor confusing in any manner. Rather, the instruction properly
and legally characterizes any putative license that may exist between the parties as
a “contract” under applicable and cited Ninth Circuit precedent. Clearly, Plaintiff
possess a property interest in his copyrighted subject matter (U.S. Constitution,
Article I, Section 8, Clause 8) and this property was, in fact, confirmed to be
property of the individually named Plaintiff by Judge Real as part of the June 17,
2005 Order. That is the reason why the June 17, 2005 Order exists and why this
same Plaintiff litigated that case before Judge Real. The same Order clearly states
and outlines the parameters of any valid license and that such a license – to be
valid – needs to come from the Plaintiff himself, not a third party. Once again, the
June 17, 2005 Order from an Article III Court which not only speaks for itself, but
also involves the adjudication and ownership of Plaintiff’s rights in the same
master recordings at issue in this action. This prior Order exists to provide the
very type of guidance that these Defendants now attempt to sidestep as follows:
Any license obtained by any other party is not valid unless it was issued by the
Plaintiff himself.

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Jury Instructions

Turning to the second component of Defendant’s objection, there is no such
distinction between whether Plaintiff either “gave” or “granted” a license for his
work since the existence of Judge Real’s June 17, 2005 Order in no way limits any
Defendants ability to assert their own affirmative defense of the existence of a
license which Plaintiff may have “gave” or “granted” to them if, in fact, such a
license exists.

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Jury Instructions

COURT’S INSTRUCTION NUMBER _____
PLAINTIFF’S PROPOSED JURY INSTRUCTION NO. 3: PURPORTED
LICENSE FROM PLAINTIFF
Defendants assert that the plaintiff gave them a license to use the plaintiff’s
copyrighted work. The burden is on the defendants to prove the existence of a
license by a preponderance of the evidence.
The plaintiff and defendants disagree about whether plaintiff granted a
license for Knee Deep to any of the defendants.

Plaintiff’s Authority:
7A Fed. Proc., L. Ed. § 18:195. Bourne v. Walt Disney Co., 68 F.3d 621, 631 (2d
Cir. 1995), cert. denied, 116 S. Ct. 1890 (1996).

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Jury Instructions

DEFENDANTS’ OBJECTION TO
PLAINTIFF’S DISPUTED INSTRUCTION NUMBER 3

Defendants object to this proposed instruction and Plaintiff’s Disputed
Instruction No. 2 on two grounds.
First, Plaintiff’s proposed instructions are cumbersome and confusing in that
they require two (or three) instructions regarding a license, whereas the joint
proposed instructions already accomplish this in one instruction. See Joint
Proposed Instruction No. 31.
Second, Plaintiff’s proposed instructions improperly characterize the issues
as whether “plaintiff gave [defendants] a license” and whether “plaintiff granted a
license.” This suggests that the Defendants must have had some direct contact
with the Plaintiff in order to obtain a valid license. In reality, Defendants could
have obtained (and did obtain) a valid license through an entity that held the
licensing rights to Knee Deep (as with the 2003 Shut Up Remix), or through
Plaintiff’s agent (as with the 2009 Shut Up Remix).
Defendants request that the Court issue Joint Proposed Instruction No. 31, in
lieu of Plaintiff’s proposed instructions.

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Jury Instructions

PLAINTIFF’S REPLY TO DEFENDANTS’ OBJECTION TO PROPOSED
JURY INSTRUCTION NO. 3

Plaintiff responds by stating that the proposed Jury Instruction No. 3 is neither
cumbersome nor confusing in any manner. Rather, the instruction properly and
legally characterizes any putative license that may exist between the parties as a
“contract” under applicable and cited Ninth Circuit precedent. Clearly, Plaintiff
possess a property interest in his copyrighted subject matter (U.S. Constitution,
Article I, Section 8, Clause 8) and this property was, in fact, confirmed to be
property of the individually named Plaintiff by Judge Real as part of the June 17,
2005 Order. That is the reason why the June 17, 2005 Order exists and why this
same Plaintiff litigated that case before Judge Real. The same Order clearly states
and outlines the parameters of any valid license and that such a license – to be
valid – needs to come from the Plaintiff himself, not a third party. Once again, the
June 17, 2005 Order from an Article III Court which not only speaks for itself, but
also involves the adjudication and ownership of Plaintiff’s rights in the same
master recordings at issue in this action. This prior Order exists to provide the
very type of guidance that these Defendants now attempt to sidestep as follows:
Any license obtained by any other party is not valid unless it was issued by the
Plaintiff himself.

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Jury Instructions

Turning to the second component of Defendant’s objection, there is no such
distinction between whether Plaintiff either “gave” or “granted” a license for his
work since the existence of Judge Real’s June 17, 2005 Order in no way limits any
Defendants ability to assert their own affirmative defense of the existence of a
license which Plaintiff may have “gave” or “granted” to them if, in fact, such a
license exists.

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Jury Instructions

COURT’S INSTRUCTION NUMBER _____
PLAINTIFF’S PROPOSED JURY INSTRUCTION NO. 4: VALID
CONTRACT
There is no contract until there has been a meeting of minds on all material
points. When it is clear, both from provision that proposed written contract will
become operative only when signed by parties as well as from any other evidence
presented by parties that they both contemplated that their acceptance of contract's
terms would be signified by their signing it, then parties' failure to sign agreement
means that no binding contract was created, even though the party later sought to
be bound by agreement indicated a willingness to sign it.

Plaintiff’s Authority:
Banner Ent., Inc. v. Super. Ct. (Alchemy Filmworks, Inc.), 72 Cal. Rptr. 2d 598,
603 (Cal. App. 2d Dist. 1998).

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Jury Instructions

DEFENDANTS’ OBJECTION TO
PLAINTIFF’S DISPUTED INSTRUCTION NUMBER 4

Defendants object to this proposed instruction because it is unnecessary,
misleading, and improperly delves into the substance of California contract law – a
matter on which the jury does not need to be instructed.
Plaintiff relies upon a state case discussing California contract law, but there
is no indication that California law governs the licenses at issue. To the contrary,
these licenses were negotiated among people in New York, Florida, Virginia, and
Delaware, and they do not appear to contain choice of law provisions.
Additionally, Plaintiff’s proposed instruction appears to be limited to
circumstances where there is a “provision that proposed written contract [sic] will
become operative only when signed by parties.” There is no indication that any of
the licenses contained such a provision, making this instruction even more
confusing.
Defendants request that the Court decline to issue Plaintiff’s Disputed
Instruction No. 4. Even if the Court were inclined to issue Plaintiff’s Disputed
Instruction Nos. 2 and 3, there is no basis to issue Plaintiff’s Disputed Instruction
No. 4 and doing so would risk confusing the jury.

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Jury Instructions

PLAINTIFF’S REPLY TO DEFENDANTS’ OBJECTION TO PROPOSED
JURY INSTRUCTION NO. 4

Plaintiff responds by stating that the proposed Jury Instruction No. 4 is
necessary and properly implicates contract law principles for the undeniable fact
that these Defendants have asserted the affirmative defense of having an ‘express
license” from the Plaintiff himself to use his property consisting of the copyrighted
musical work. Any such “license” by the Plaintiff, especially of an express one, is
fundamentally grounded in contract law principles. In fact, the instruction
properly and legally characterizes any putative license that may exist between the
parties as a “contract” under applicable California precedent. The pleadings set
forth in this action clearly support this position in that Defendants’ assert the
existence of a license and the Plaintiff has submitted a declaration stating that no
such license was given by him. This is the essence of the “meeting of the minds”
component of the jury instruction and is not liable to confuse the jury, especially
where Judge Real’s June 17, 2005 Order is equally clear that only the named
Plaintiff could grant a valid “license” (i.e. could contract for) the same overlapping
subject matter. Once again, that is the reason why the June 17, 2005 Order exists
and why this same Plaintiff litigated that case before Judge Real. This same Order
clearly states and outlines the parameters of any valid license and that such a
license – to be valid – needs to come from the Plaintiff himself, not a third party.
The June 17, 2005 Order from an Article III Court not only speaks for itself, but
also involves the adjudication and ownership of Plaintiff’s rights in the same
master recordings at issue in this action. This prior Order exists to provide the
very type of guidance that these Defendants now attempt to sidestep as follows:
Any license obtained by any other party is not valid unless it was issued by the
Plaintiff himself.
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Jury Instructions