George Clinton v. Will Adams et al

Filing 77

STATEMENT of Uncontroverted Facts MOTION for Partial Summary Judgment 75 filed by Defendant Will Adams. (Grodsky, Allen)

ALLEN B. GRODSKY (SBN 111064)
GRODSKY & OLECKI LLP
2 2001 Wilshire Blvd., Ste. 210
Santa Monica, California 90403
3 310.315.3009 (phone)
310.315.1557 (fax)
4 [e-mail] (e-mail)
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Attorneys for Defendants
WILLIAM ADAMS, et al.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GEORGE CLINTON, an individual,

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Plaintiff,
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v.
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WILL ADAMS, p/k/a will.i.am,
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individually and d/b/a WILL.I.AM MUSIC )
PUBLISHING, an individual; ALLAN
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PINEDA, p/k/a apl.de.ap, individually and )
d/b/a JEEPNEY MUSIC PUBLISHING, )
an individual; JAIME GÓMEZ, p/k/a
)
Taboo, individually and d/b/a NAWASHA )
NETWORKS PUBLISHING, an
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individual; STACY FERGUSON, p/k/a
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Fergie, an individual; GEORGE PAJON, )
JR., an individual; JOHN CURTIS, an
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individual; UNIVERSAL MUSIC
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GROUP, INC., a Delaware corporation;
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UMG RECORDINGS, INC., a Delaware )
corporation; WILL I AM MUSIC, INC., a )
California corporation; CHERRY LANE )
MUSIC PUBLISHING COMPANY, INC., )
a New York corporation; EL CUBANO
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MUSIC, INC., a California corporation;
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EMI BLACKWOOD MUSIC INC., a
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Connecticut corporation; TAB
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MAGNETIC, INC., a California
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corporation; and DOES 1 through 10,
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Defendants.
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__________________________________ )

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Case No. CV 10-9476 ODW (PLAx)
Honorable Otis D. Wright II, Ctrm 11

DEFENDANTS’ SEPARATE
STATEMENT OF
UNCONTROVERTED FACTS IN
SUPPORT OF MOTION FOR
PARTIAL SUMMARY
JUDGMENT

Date: April 9, 2012
Time: 1:30 p.m.
Place: Courtroom 11
Pre-Trial Conf.: May 7, 2012
Trial Date: June 5, 2012

Pursuant to Local Rule 56-1 Paragraph 6(d) of the Scheduling and Case

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Management Order, Defendants submit the following Separate Statement of

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Uncontroverted Facts.

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UNDISPUTED MATERIAL FACTS

EVIDENCE

1.

Complaint, ¶ 9.

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Plaintiff George Clinton was a member

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of the funk musical group known as

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Funkadelic.

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2.

Clinton is both known by the names

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“George Clinton” and “George Clinton,

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Ex. 13.

Jr.”

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3.

Clinton produced the master sound

Complaint, ¶ 31.

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recording (Not Just) Knee Deep (“Knee

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Deep”), which was contained on

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Funkadelic’s 1979 album UNCLE SAM

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WANTS YOU.

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4.

Warner Bros. Records, as Clinton’s

Complaint, ¶ 32.

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employer for hire, registered the

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copyright for the sound recording for the

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album UNCLE SAM WANTS YOU on

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or about October 5, 1979.

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5.

The Black Eyed Peas (“BEP”) is a music

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group composed, at all relevant times, of

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defendants William Adams, Allan

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Pineda, Jamie Gomez, and Stacy

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Complaint, ¶¶ 1, 10, 11, 12, 13.

Ferguson.

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6.

In 2003, BEP released an album entitled

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ELEPHUNK. Shut Up was one of the

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Complaint, ¶¶ 39, 42.

singles on ELEPHUNK.

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At or about the same time as

Rosoff Decl., ¶ 4; Complaint,

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ELEPHUNK was released, BEP released

¶ 1.

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a vinyl album containing several different

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versions of Shut Up; one of those

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versions included a sample of Knee

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Deep.

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7.

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8.

In order to obtain a license for use of

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Knee Deep, BEP contacted Capitol

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Records, which, through its wholly

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owned subsidiary Priority Records, had

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been releasing albums featuring Clinton’s

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Marshall Decl., ¶¶ 3-4.

masters.

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Priority had entered into a license

Marshall Decl., ¶ 3; Ex. A to

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agreement with Tercer Mundo, Inc., a

RFJN (McMullan Decl.), ¶ 4;

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company that represented that it had the

Ex. 1, ¶ 5((a)(ii)(E).

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rights to Clinton’s masters. That license

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9.

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agreement gave Priority the right to issue

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“sampling” licenses for Clinton masters,

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such as Knee Deep.

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Capitol and BEP negotiated a license for

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use of the Knee Deep sample in the 2003

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Shut Up Remix. A check in the amount

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of $12,000 was then sent to Capital as

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Marshall Decl., ¶ 5, Ex. 2.

payment of the advance on the license.

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11.

In 2009, BEP, through Universal,

Complaint, ¶¶ 51, 52.

released an album entitled “THE E.N.D.”

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12.

At the time “THE E.N.D.” was released,

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BEP sought to release a special double-

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disc edition of the “THE E.N.D.”

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exclusively to be sold at Target stores.

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The second disc of this Target release

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contained a few new songs as well as

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remixes of classic BEP hits, including

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Shut Up. The planned Shut Up remix

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Rosoff Decl., ¶ 5.

was again to use a sample of Knee Deep.

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13.

On June 17, 2005, a federal court entered

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an order declaring Clinton to be the sole

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owner of his master sound recordings,

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including Knee Deep.

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Complaint, ¶¶ 34, 35.

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Though entered in 2005, the Order was

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not recorded with the Copyright Office

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until May 15, 2006.

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Deborah Mannis-Gardner of DMG

Mannis-Gardner Decl., ¶ 2;

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Clearances, Inc., a sample clearance

Rosoff Decl., ¶ 6.

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company, was retained to obtain a license

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from Clinton for the use of a sample of

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Knee Deep in the 2009 Shut Up Remix.

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Mannis-Gardner has been used before by

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BEP and has an excellent reputation in

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Rosoff Decl., ¶ 6.

the music industry.

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Initially, Mannis-Gardner had difficulty

Mannis-Gardner Decl., ¶ 3.

getting in touch with Clinton.

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Eventually, Mannis-Gardner was referred

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to Eban Kelly who she understood had

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been working with Clinton for over 20

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Mannis-Gardner Decl., ¶ 4.

years.

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Mannis-Gardner faxed to Kelly a

Ex. 3; Mannis-Gardner Decl.,

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proposed license for use of Knee Deep in

¶ 5; Exs. 4-5; Ex. 12, Resp. to

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the Shut Up Remix. Kelly faxed back an

RFA Nos. 12, 13.

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executed license agreement and an

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executed W9, providing for payment to

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Clinton to be made to C. Kunspyruhzy,

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LLC, a company of which Clinton is a

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member.

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Both the license and the W9 form

Mannis-Gardner Decl., ¶ 6; Exs.

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appeared to have Clinton’s signature. At

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the time she received the documents,

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Mannis-Gardner had no reason to believe

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that they did not contain the actual

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signature of Mr. Clinton.

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19.

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20.

Ex. 6; Mannis-Gardner Decl.,

check to C. Kunspyruhzy, LLC.

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Mannis-Gardner sent a $15,000 advance

¶ 7.

Defendant will.i.am music, inc. (“WMI”)

Rosoff Decl., ¶ 7.

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is a company owned by Defendant

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Adams.

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Defendant Tab Magnetic, Inc. (“TMI”) is

Rosoff Decl., ¶ 8.

a company owned by Defendant Gomez.

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Neither WMI nor TMI owns, or ever

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owned, the masters for the 2003 Shut Up

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Rosoff Decl., ¶¶ 7, 8.

Remix or the 2009 Shut Up Remix.

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Neither WMI nor TMI licensed the right
to exploit those masters.

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Rosoff Decl., ¶¶ 7, 8.

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Neither WMI nor TMI received any

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income from the exploitation of those

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Rosoff Decl., ¶¶ 7, 8.

masters.

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26.

Clinton has never computed his damages

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as required by Rule 26(A)(1)(a)(iii).

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Rather, Plaintiff’s section on damages in

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his Rule 26 disclosures states: “Plaintiff

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Ex. 7, ¶ III.

asks for damages, declaratory relief,

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permanent injunctive relief, and equitable

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relief pursuant to the Copyright Act, as

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amended. . . . . The amount of damages is

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not known at this time.”

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27.

Clinton never supplemented his Rule 26

Grodsky Decl., ¶ 2.

disclosures.

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Clinton has not made “available for

Grodsky Decl., ¶ 4.

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inspection and copying . . . the

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documents or other evidentiary material .

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. . on which each computation is based,

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including materials bearing on the nature

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and extent of injuries suffered.”

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29.

Indeed, Clinton has never produced any

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documents in this case as part of Rule 26

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disclosures.

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Grodsky Decl., ¶ 3.

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30.

Clinton’s Rule 26 disclosures do describe

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certain categories of documents, but none

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Ex. 7, p. 7, ¶ D.3.

relate to damages.

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31.

Clinton submitted no expert report on the

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day expert reports were to be served, nor

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did he submit a rebuttal expert report on

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Grodsky Decl., ¶ 5.

the day rebuttal reports were due.

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Written responses from both Universal

Ex. 9, Resp. to RFP Nos. 4, 5;

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and members of BEP stated that

Ex. 10, Resp. to RFP Nos. 4-6.

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documents relating to sales of digital

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singles of, or albums containing, the two

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remixes would be produced only if

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Clinton’s counsel stipulated to a

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protective order which was then entered

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by the Court.

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32.

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33.

On November 14, 2011, counsel for BEP

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submitted a draft protective order to

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counsel for Clinton. Counsel for Clinton

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never responded with any comments to

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the draft protective order, never proposed

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his own order, and never filed a motion

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to compel further responses either as to

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Universal or the BEP parties.

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Ex. 11; Grodsky Decl., ¶ 8.

In October 2011, Defendants served

Grodsky Decl., ¶ 10; Ex. 8,

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requests for production seeking, among

Request Nos. 21, 22, 25.

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other things, documents evidencing

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Plaintiff’s damages. Defendants’ counsel

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extended Clinton’s time to respond to

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those requests to January 4, 2012.

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34.

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35.

Clinton did not serve responses until

Ex. 14; Grodsky Decl., ¶ 11.

February 29, 2012 – the last day of

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discovery – and those responses

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contained only boilerplate objections.

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No responsive documents were ever

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served.

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36.

The 2003 Shut Up Remix and the 2009

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Shut Up Remix are identical except one

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Rosoff Decl., ¶ 3.

of the remixes is a few seconds longer.

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Dated:

March 7, 2012

GRODSKY & OLECKI LLP

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By

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Attorneys for Defendants William Adams,
Allan Pineda, Jamie Gomez, Stacy
Ferguson, will.i.am music, inc., and Tab
Magnetic, Inc.

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// Allen B. Grodsky //
Allen B. Grodsky