George Clinton v. Will Adams et al

Filing 89

STATEMENT of Genuine Disputes of Material Facts 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]

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Attorneys for Plaintiff GEORGE CLINTON

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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GEORGE CLINTON, an individual,
Case No. CV 10-09476-ODW-PLA

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Plaintiff,
The Honorable Otis D. Wright II

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

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Defendants.

PLAINTIFF’S STATEMENT OF
GENUINE DISPUTES OF
MATERIAL FACT
Date: April 16, 2012
Time: 1:30 P.M. (PST)
Place: Courtroom 11

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Action Filed:

December 10, 2010

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PLAINTIFF’S STATEMENT OF GENUINE DISPUTES OF FACT

In accordance with Pursuant to L.R. 56-2, Plaintiff submits the following

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Statement of Genuine Disputes of Material Fact responding to the facts claimed by

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Defendants to be undisputed:

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Undisputed Material Facts

Response & Evidence

1. Plaintiff George Clinton was a member

Undisputed. In addition,

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of the funk musical group known as

George Clinton is a current

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Funkadelic.

member of Funkadelic.

2. Clinton is both known by the names

Undisputed.

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“George Clinton” and “George Clinton,

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Jr.”

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3. Clinton produced the master sound

Undisputed, except that the proper

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recording (Not Just) Knee Deep (“Knee

name of the 1979 Funkadelic album

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Deep”), which was contained on

is UNCLE JAM WANTS YOU.

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Funkadelic’s 1979 album UNCLE SAM (sic)
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WANTS YOU.

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4. Warner Bros. Records, as Clinton’s

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Undisputed.

employer for hire, registered the

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copyright for the sound recording for the

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album UNCLE SAM (sic) WANTS YOU on
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PLAINTIFF’S STATEMENT OF GENUINE DISPUTES OF FACT

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or about October 5, 1979.

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5. The Black Eyed Peas (“BEP”) is

Undisputed.

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a music group composed, at all
relevant times, of defendants

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William Adams, Allan Pineda,
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Jamie Gomez, and StacyFerguson.

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6. In 2003, BEP released an album

Undisputed.

entitled ELEPHUNK. Shut Up was

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one of the singles on ELEPHUNK.

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7. At or about the same time as

Disputed only as to the statement

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ELEPHUNK was released, BEP

that “one of those versions included

released a vinyl album containing

a sample of “Knee Deep”. Clinton

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several different versions of Shut Up;

does not dispute that at least “one of

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one of those versions included a

those versions included a sample

sample of Knee Deep.

Of Knee Deep.”

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PLAINTIFF’S STATEMENT OF GENUINE DISPUTES OF FACT

8. In order to obtain a license for

Disputed, lack of foundation and

use of Knee Deep, BEP contacted

failure to satisfy at least Fed.R.Civ.P.

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Capitol Records, which, through its

56(c); The Marshall Decl., ¶3-4

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wholly owned subsidiary Priority

does not support this statement.

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Records, had been releasing albums
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featuring Clinton’s masters.

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Priority had entered into a

Disputed, any such license has been

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license agreement with Tercer

rendered invalid as a matter of law

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Mundo, Inc., a company that

and adjudged to “not be honored”

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represented that it had the rights to

by the June 17, 2005 Order of

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Clinton’s masters. That license

Judge Real in Case 03-CV-08955.

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agreement gave Priority the right to

Clinton further objects to the

issue “sampling” licenses for

McMullan Declaration under

Clinton masters, such as Knee Deep.

FRE 201.

10. Capitol and BEP negotiated a

Disputed, any such license has been

license for use of the Knee Deep

rendered invalid as a matter of law

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sample in the 2003Shut Up Remix.

and adjudged to “not

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A check in the amount of $12,000

be honored” by the June 17, 2005

was then sent to Capital as payment

Order of Judge Real in Case

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PLAINTIFF’S STATEMENT OF GENUINE DISPUTES OF FACT

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of the advance on the license.

03-CV-08955.

11. In 2009, BEP, through

Undisputed.

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

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12.

At the time “THE E.N.D.” was

Undisputed.

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released, BEP sought to release a

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special double-disc edition of the

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“THE E.N.D.” exclusively to be sold

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at Target stores. The second disc of

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this Target release contained a few
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new songs as well as remixes of

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classic BEP hits, including Shut Up.

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The planned Shut Up remix was

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again to use a sample of Knee Deep.

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13. On June 17, 2005, a federal court

Undisputed.

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entered an order declaring Clinton to

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be the sole owner of his master sound

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recordings, including Knee Deep.
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PLAINTIFF’S STATEMENT OF GENUINE DISPUTES OF FACT

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Though entered in 2005, the Order was
not recorded with the Copyright Office

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until May 15, 2006.

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14. Deborah Mannis-Gardner of

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Undisputed.

DMG Clearances, Inc., a sample

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clearance company, was retained to
obtain a license from Clinton for the
use of a sample of Knee Deep in the

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2009 Shut Up Remix.

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15. Mannis-Gardner has been used

Disputed. Clinton objects to any

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before by BEP and has an excellent

credibility determination of any

reputation in the music industry.

witness as an inherently factual

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matter which is not amenable to Rule

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56. There is also a lack of foundation
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as to which member or members of

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the BEP had used Mannis-Gardner

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before.

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PLAINTIFF’S STATEMENT OF GENUINE DISPUTES OF FACT

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16. Initially, Mannis-Gardner had difficulty

Undisputed.

getting in touch with Clinton.

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17. Eventually, Mannis-Gardner was

Undisputed.

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referred to Eban Kelly who she
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understood had been working with

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Clinton for over 20 years.

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Mannis-Gardner faxed to Kelly

Disputed., Ex.3; Mannis-Gardner

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faxed back an executed license

Decl. ¶5; Exs. 4-5; Ex. 12, Resp. to

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agreement and an executed W9,

RFA Nos. 12, 13; Kelly Decl., ¶2-

providing for payment to Clinton to

11 and Clinton Decl., ¶3-7.

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be made to C. Kunspyruhzy,LLC, a
company of which Clinton is a

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member.

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Both the license and the W9

Disputed, Mannis-Gardner Decl..

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form appeared to have Clinton’s

¶6, Exs. 4-5; Kelly Decl., ¶2-7 and

signature. At the time she received

Clinton Decl., ¶3-7. Clinton also

the documents, Mannis-Gardner had

objects on the basis that what Mannis

no reason to believe that they did

Gardner had reason to be believe

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PLAINTIFF’S STATEMENT OF GENUINE DISPUTES OF FACT

is an inherently factual issue.

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20. Mannis-Gardner sent a $15,000

Disputed, there is no evidence that

advance check to C. Kunspyruhzy,

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any such check was ever received, cashed

LLC.

or otherwise bears an endorsement

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Of Clinton. Kelly Decl., ¶2-7 and

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Clinton, Decl. ¶3-7.

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21.

Defendant will.i.am music, inc.

Disputed, will.i.am music, inc. is

(“WMI”) is a company owned by

a suspended California corporation

Defendant Adams.

which lacks legal capacity under

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Rule 17(a); Thennisch Decl., Ex A

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22.

Defendant Tab Magnetic, Inc.

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Undisputed.

a company owned by Defendant Gomez.

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Neither WMI nor TMI owns, or

Undisputed.

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ever owned, the masters for the 2003

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Shut Up Remix or the 2009 Shut Up

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Remix.

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Neither WMI nor TMI licensed

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Undisputed.

the right to exploit those masters.
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PLAINTIFF’S STATEMENT OF GENUINE DISPUTES OF FACT

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Neither WMI nor TMI received

Disputed, the Rosoff Decl.,

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any income from the exploitation of

¶7, 8 is is not competent evidence

those masters.

From TMI, it is mere attorney

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argument which is not Rule 56

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evidence.

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26.

Clinton has never computed his

Disputed, Clinton’s December

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damages as required by Rule

10, 2010 Complaint relies upon the

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26(A)(1)(a)(iii). Rather, Plaintiff’s

Section 504 of the U.S. Copyright Act

section on damages in his Rule 26

that Clinton has the right to elect

disclosures states: “Plaintiff asks for

his choice of damages at any time

damages, declaratory relief,

prior to final judgment. Clinton

permanent injunctive relief, and

does not waive these rights.

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27.

Undisputed.

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Rule 26 disclosures.

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Clinton never supplemented his

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Clinton has not made “available

Disputed, Clinton states that any such

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for inspection and copying . . . the

documents or other evidentiary

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documents or other evidentiary

material is wholly within the

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PLAINTIFF’S STATEMENT OF GENUINE DISPUTES OF FACT

material .. . on which each

the possession of the Defendants

computation is based, including

and have never been produced to

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materials bearing on the nature and

Clinton.

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extent of injuries suffered.”

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29.

Indeed, Clinton has never

Disputed. Clinton states that any data

produced any documents in this case

relating to sales and revenues of

as part of Rule 26 disclosures.

the Defendants’ products are within

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the custody and control of the

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Defendants, not Clinton and have

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never been produced to Clinton.

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30. Clinton’s Rule 26 disclosures do

Disputed. Clinton states that any

describe certain categories of

data relating to sales and revenues

documents, but none relate to

of the Defendants’ products are

damages.

within the custody and control of

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the Defendants, not Clinton and
have never been produced to

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Clinton.

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PLAINTIFF’S STATEMENT OF GENUINE DISPUTES OF FACT

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31.

Clinton submitted no expert

Undisputed, but Clinton is not

report on the day expert reports

aware that Rule 26 imposes a

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were to be served, nor did he submit

requirement to submit such an

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a rebuttal expert report on the day

“expert” report.

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rebuttal reports were due.
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32.

Written responses from both

Undisputed, as counsel for Will

Universal and members of BEP

Adams provided such sales data to

stated that documents relating to

Clinton’s counsel on October 12,

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sales of digital singles of, or albums

2011, a date well prior to the

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containing, the two remixes would be

articulated demand for the

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produced only if Clinton’s counsel

Protective Order.

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stipulated to a protective order which

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was then entered by the Court.
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33.

On November 14, 2011, counsel

Undisputed, as counsel for Will

for BEP submitted a draft protective

Adams provided such sales data to

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order to counsel for Clinton.

Clinton’s counsel on

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Counsel for Clinton never responded

October 12, 2011, a date well prior

with any comments to the draft

to the articulated demand for the

protective order, never proposed his

Protective Order dated November

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PLAINTIFF’S STATEMENT OF GENUINE DISPUTES OF FACT

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own order, and never filed a motion

14, 2011.

to compel further responses either as

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to Universal or the BEP parties.

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34.

In October 2011, Defendants

Undisputed.

served requests for production

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seeking, among other things,
documents evidencing Plaintiff’s

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damages. Defendants’ counsel
extended Clinton’s time to respond

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to those requests to January 4, 2012.

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35.

Clinton did not serve responses

Undisputed.

until February 29, 2012 – the last

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day of discovery – and those

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responses contained only

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boilerplate objections. No
responsive documents were ever
served.

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36.

The 2003 Shut Up Remix and

Undisputed.

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PLAINTIFF’S STATEMENT OF GENUINE DISPUTES OF FACT

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the 2009 Shut Up Remix are
identical except one of the remixes is

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a few seconds longer.

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DATED: March 19, 2012

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Attorneys for Plaintiff, George Clinton

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/s/Jeffrey P. Thennisch
Dobrusin & Thennisch PC
29 W. Lawrence Street
Suite 210
Pontiac, Michigan 48342
[phone]
[phone]

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PLAINTIFF’S STATEMENT OF GENUINE DISPUTES OF FACT

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CERTIFICATE OF SERVICE
I, hereby certify that on March 19, 2012, I electronically filed the foregoing:
PLAINTIFF’S STATEMENT OF GENUINE DISPUTES OF MATERIAL FACT

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with the Clerk of the Court using the ECF System which will send notification of such

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filing to all counsel of record.

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/s/ Jeffrey P. Thennisch_
Jeffrey P. Thennisch (Pro Hac Vice)
Attorneys for Plaintiff
Dobrusin & Thennisch, PC
29 W. Lawrence Street, Suite 210
Pontiac, Michigan 48342
Ph: [phone]
Fx: [phone]
[e-mail]

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PLAINTIFF’S STATEMENT OF GENUINE DISPUTES OF FACT