George Clinton v. Will Adams et al

Filing 90

OPPOSITION to MOTION for Partial Summary Judgment 75 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]
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,

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Case No.CV 10-09476-ODW-PLA
Plaintiff,

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The Honorable Otis D. Wright II
v.
PLAINTIFF’S RESPONSE TO
WILL
ADAMS,
p/k/a
will,I,am DEFENDANTS’ MOTION FOR
individually and d/b/a will.i.am music, PARTIAL SUMMARY
inc., et al.,
JUDGMENT

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Defendants.

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Date: April 16, 2012
Time: 1:30 p.m.
Place: Courtroom 11

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Action Filed:

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December 10, 2010

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i

Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES ................................................................................... iii

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I.

FACTUAL BACKGROUND ........................................................................... 1

II.

PROCEDURAL BACKGROUND AND EXPERT REPORTS .................. 6

III. LEGAL BACKGROUND & ARGUMENT ................................................... 7
A.

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Asserted Grounds for Partial Summary Judgment .................................... 8

C. Moving Defendants’ Theory 1 – “Actual Damages” Under 17 U.S.C.
§504(c) Should Be Denied As It Lacks Ripeness And Denies Plaintiff His
Statutory Right Of Damages Election under 504(c)(2) .................................... 9

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D. Moving Defendants’ Theory 2 – “Profits” Under 17 U.S.C. §504(c)
Should Be Denied Because It Lacks Ripeness and Denies Plaintiff His
Statutory Right Under 504(c)(2) ..................................................................... 10

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E.
Moving Defendants’ Theory 3 – The Non-Pled Innocent Infringer
Defense Should Be Deemed Waived Because Defendants Never Plead It
Before Their Current Motion Which Is Well After The Close of Discovery . 14

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F.
Moving Defendants’ Theory 4 – The Two Corporate Defendants –
Should Be Denied As Defendant Will I Am Music, Inc. Is A Suspended
California Corporation And Statements About Tab Magnetic Are Not
Supported By Evidence ................................................................................... 18

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G. Defendant’s Motion Should Be Denied Because Moving Defendants
Do Not Have Any License Agreement With Plaintiff .................................... 21

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General Standard for Summary Judgment Motions................................... 7

B.

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IV.

CONCLUSION ............................................................................................... 25

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ii

Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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TABLE OF AUTHORITIES
Cases
ABM Industries, Inc. v. Zurich Amer. Insurance Comp. 237 F.R.D. 225
(N.D.Cal. 2006) .............................................................................................. 13
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, L.Ed. 202
(1986)................................................................................................................. 8

Bankcard America, Inc. v. Universal Bancard Systems, Inc., 203 F.3d 477
(2000). ............................................................................................................. 13
Cohen v. Paramount Pictures Corp., 845 F.2d 851 (9th Cir.1988) ...................... 21
D.C. Comics Inc. v. Mini Gift Shop, 912 F.2d 29, 35-36 (2d Cir. 1990............... 17

Deere & Comp. v. Int. Harvester Comp., 710 F.2d 1551 (1983) ...................... 13
Eastern America Trio Prods., Inc. v. Tang Elec. Corp., 97 F. Supp. 2d 395, 419
(S.D.N.Y. 2000)............................................................................................... 17
Fitzgerald Pub. Co., Inc. v. Baylor Pub. Co., Inc., 807 F.2d 1110, 1 I 15 (2d Cir.
1986) ................................................................................................................ 17
Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 (9th Cir. 1976) .... 20, 22
Harris v. Emus Records Corporation, et al., 734 F.2d 1329, 1335 (9th Cir. 1984)
................................................................................................................... 10, 24
Marobie-Fl. Inc. v. National Ass’n of Fire Equipment Distributors and Northwest
Nexus, Inc., 983 F.Supp. 1167 (N.D. Ill. 1997) .............................................. 16
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 89 L.Ed. 538 (1986) ................................................................................ 7
Meachum v. Knolls Atomic Power Lab., 554 U.S. 84, 128 S. Ct. 2395, 171
L.Ed.2d 283, 290-94 (2008) ............................................................................ 15
Michaels v. Internet Ent. Group, Inc., 5 F.Supp.2d 823, 834 (C.D. Cal. 1998) ... 24
Natl. Football League v. PrimeTime 24 Jt. Ventur, 131 F. Supp. 2d 458, 476
(S.D.N.Y. 2001)............................................................................................... 17
T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
1987) .............................................................................................................. 7, 8
U.S. v. 2.61 Acres of Land, More or Less, Situated in Mariposa County, State of
Cal., 791 F.2d 666, 668 (9th Cir. 1985) .......................................................... 19
Warner Bros., Inc. v. Dae Rim Trading, Inc., 677 F. Supp. 740 (S.D.N.Y. 1 988)
................................................................................................................... 17, 18
Statutes
17 U.S.C. §501......................................................................................................... 9

iii

Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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17 U.S.C. §504................................................................................................. 11, 12

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17 U.S.C. §504(b) ...................................................................................... 10, 12, 13

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17 U.S.C. §504(c) ...................................................................................... 6, 7, 9, 10

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17 U.S.C. § 504(c)(1) .............................................................................................. 9

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17 U.S.C. § 504(c)(2) ............................................................................ 8-11, 15- 17

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28 U.S.C. §1331..................................................................................................... 15

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Rules
Fed. R. Civ. P. 8(c) ......................................................................................... 14- 16

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Fed. R. Civ. P. 8(d)(3) ........................................................................................... 14

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Fed. R. Civ. P. 12(f)(1) .......................................................................................... 15

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Fed. R. Civ. P. 15 ................................................................................................... 16

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Fed. R. Civ. P. 15(b) .............................................................................................. 15

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Fed. R. Civ. P. 17(a) .............................................................................................. 19

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Fed. R. Civ. P. 26 ..................................................................................................... 6

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Fed. R. Civ. P. 26(a) ................................................................................................ 7

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Fed. R. Civ. P. 37 ..................................................................................................... 6

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Fed. R. Civ. P. 56 ......................................................................................... 2, 10, 22

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Fed. R. Civ. P. 56(c) ................................................................................................ 7

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Fed. R. Civ. P. 56(f)......................................................................................... 19, 23

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Fed. R. Civ. P. 56(h) .................................................................................... 4, 20, 22

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Fed. R. Evid. 408 ............................................................................................. 12, 13

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iv

Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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I. FACTUAL BACKGROUND
The March 7, 2012, partial summary judgment motion was filed by

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Moving Defendants recited at D/E 75 as follows: Will Adams, Jamie Gomez,
Allen Pineda, Stacey Ferguson, Will I Am Music, Inc., and Tab Magnetic, Inc.1
despite the fact that at least Will I Am Music, Inc. remains a suspended California

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corporation. See Thennisch Decl., Exhibit A.
The present action is neither procedurally or legally complex, and all
parties agree that: (1) Plaintiff, George Clinton (“Clinton”), produced a master

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sound recording more commonly known as (Not Just) Knee Deep (“Knee Deep”),

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which was contained on Clinton’s 1979 album UNCLE JAM WANTS YOU.

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(Undisputed Fact (“UF” 3)); (2) Moving Defendants released their own album

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ELEPHUNK in 2003. The musical work, Shut Up, was one of the singles on

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Moving Defendants’ ELEPHUNK album (UF 6); (3) At about that same time in

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2003, Moving Defendants released a vinyl album containing several different

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versions of Shut Up wherein at least one of those versions included a sample of

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Clinton’s Knee Deep work. (UF 7). For purposes of consistent nomenclature in

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the present briefing, all parties refer to this work as the “2003 Shut Up Remix”.

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All parties agree that, in 2009, Moving Defendants, through Defendant Universal,

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released an album entitled “THE E.N.D” which included a remix of Shut Up

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which again used the sample of Knee Deep. (UF 12). For purposes of consistent

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Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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nomenclature in the present briefing, all parties refer to this work as the “2009
Shut Up Remix;” and (4) On June 17, 2005, the Honorable Manuel Real of this

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same judicial district issued an Order in Case No. 03-08955 declaring Clinton to
be the sole owner of his master sound recordings, including Knee Deep (UF 13).

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But Moving Defendants do not: (i) attach Judge Real’s June 17, 2005,

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Order to any of their pleadings, (ii) discuss the scope or application of the Order
in any detail, or (iii) provide any declarations from the actual named Defendants
supporting any aspect of the requested relief under Fed. R. Civ. P. 56. Judge

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Real’s June 17, 2005, Order at D/E 121 in Case 03-08955 is attached to the

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Thennisch Decl., Exhibit B and as part of a separate request for judicial notice of

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its contents, all of which demonstrate as a matter of law that Judge Real:

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ORDERED, adjudged and decreed that GEORGE CLINTON is
the sole owner of the master recordings of the albums “Hard Core
Jollies,” “One Nation Under A Groove”, “Uncle Jam Wants You2”, and
“Electric Spanking Of War Babies” (the “Masters”) and has been the
sole owner of Masters since 1993; and it is further
ORDERED, adjudged and decreed that the liens of the law firms
and any other grant of rights in the Masters since 1993 by anyone other
than GEORGE CLINTON are invalid and shall not be honored.
[emphasis added].

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Contrary to this existing Order by an Article III Court, which has not been

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vacated or sought to be limited by the named Defendants in any manner before
Judge Real, Moving Defendants essentially now ask this Court to grant summary

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No other named Defendant has joined in this motion by “Moving Defendants” or otherwise
sought summary judgment in another motion.

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Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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judgment in their favor and “honor” the very type of grant or “license” to produce
the 2003 Shut Up Remix which Judge Real’s Order clearly forbade and

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adjudicated to be invalid. With all professional deference to opposing counsel,
and despite the fact that Moving Defendants do refer to Judge Real’s June 17,
2005, Order as UF 13, the actual Order (containing the above language) was not

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submitted to this Court, and the present summary judgment motion appears to be
nothing more than a blatant and contrived collateral attack on Judge Real’s Order.
Namely, even though the June 17, 2005 Order states that “any other grant of

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rights in the Masters since 1993 by anyone other than GEORGE CLINTON are

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invalid and shall not be honored,” Moving Defendants are now attempting to ask

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this Court to both validate and “honor” the supposed August 16, 1993, license

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attached to the Craig Marshall Declaration – even though nothing in the Marshall

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Declaration suggests that any of the Moving Defendants received any type of

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grant/ license from Clinton. Rather, Defendants just ignore Judge Real’s Order.

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Even more troubling is D/E 80 filed in this case which seeks judicial notice

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of the December 3, 2007, McMullen Declaration filed in yet another action
assigned to Judge Real, Case 06-CV-08106. However, this document is

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incomplete on its face in that it clearly refers to both an Exhibit A and Exhibit B,

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which are absent. In any event, the McMullen Declaration is dated December 3,

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Uncontested Material Fact 3 at D/E 77, Page 2 establishes that Clinton’s Knee Deep work
“was contained on Funkadelic’s 1979 album UNCLE SAM (sic) WANTS YOU.”

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Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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2007–over two (2) years after Judge Real’s June 17, 2005, Order3 and contains
the caveat at D/E 80, Page 3, ¶9 that there was “no participation in, or control

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over, any party” in Case 03-09855 before Judge Real. In short, nothing in the
December 3, 2007, McMullen Declaration functions to ignore, limit, or restrict
the clear – and existing - Order issued by Judge Real on June 17, 2005.

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Regrettably, this does not stop Moving Defendants from attempting to do

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just that through the new February 29, 2012, Declaration of Craig Marshall, an
attorney, which advocates this same position before Judge Wright (i.e. the

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existence of a license) that is completely contrary to the express wording of Judge

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Real’s June 17, 2005, Order. To the extent that Craig Marshall is a licensed

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attorney that actually signed the Marshall Declaration on February 29, 2012,

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Clinton states that Attorney Marshall has completely abrogated his duty to be of

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any service to this Court by “declaring” the existence of a putative license for the

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same subject matter that is subject to Judge Real’s prior June 17, 2005 Order

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without informing this Court of the existence of the same Order. Clinton states

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that the Marshall Declaration is the very type of “bad faith” declaration which

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mandates judicial intervention under Fed. R. Civ. P. 56(h). To the extent that

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Attorney Marshall is/was simply not aware of the existence of Judge Real’s June

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If Moving Defendants truly believed that they possessed valid rights despite Judge Real’s
June 17, 2005, Order, they have had nearly seven (7) years to seek relief or clarification of that
Order before Judge Real, but have done nothing. Instead, Moving Defendants now ask this
Court to collaterally attack the 2005 Order – all without providing this Court with a copy. The
Court is asked to decline this request.

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Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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17, 2005, Order when he signed his declaration on February 29, 2012, then his
declaration is of utterly no value or use in aiding this Court to determine if there

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are any questions of material fact. Either way, it is also highly relevant that
nothing in the Marshall Declaration mentions, even tangentially, how or why any
“license” would flow to these individual defendants by name.

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Moving Defendants’ attempt to demonstrate the existence of a license for
the 2009 Shut Up Remix suffers from similar fundamental defects. First, based
upon the same June 17, 2005, Order issued by Judge Real, it is beyond dispute

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that only George Clinton (i.e. the sole owner of musical works in question as

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adjudicated by an Article III Court) has the authority to grant any licenses for

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these musical works to any third party. Certainly, the June 17, 2005, Order

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existed during the 2007-2009 events set forth in the Declaration of Deborah

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Mannis-Gardner. Although Moving Defendants may believe that Mannis-

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Gardner “has an excellent reputation in the music industry,” Clinton contests this

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supposed fact. In response, both Clinton and Eban Kelly (the same individual

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referred to in the Mannis-Gardner Declaration) provide sworn declarations that no

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such negotiations or license was ever entered into by Clinton and that Eban Kelly

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never had authority to bind or otherwise “license” the musical works that Clinton

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clearly was the sole owner of since 1993–based upon Judge Real’s Order. See

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Kelly Decl, ¶2-7 and Clinton Decl. , ¶3-7. To the extent that the Mannis-Gardner
and Rosoff Declarations discuss and set forth a supposed $15,000 check issued to

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Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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another entity, the Court can clearly recognize that no check was issued to George
Clinton, nor cashed or signed by him despite the fact that he is the same person

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that Judge Real ruled is the sole owner of the applicable Master Recordings. The
filing of attorney arguments, as declarations, is not proper evidence to support
summary judgment–especially where the named Defendants say nothing.

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II. PROCEDURAL BACKGROUND AND EXPERT REPORTS

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Moving Defendants also support their Fed. R. Civ. P. 56 motion, and
appear to seek a Fed. R. Civ. P. 37 discovery sanctions against Clinton by virtue

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of the fact that Clinton did not submit or designate any “expert” witnesses on the

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issue of damages within the meaning of Fed. R. Civ. P. 26. Although the

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Grodsky Declaration discusses these issues in great detail and appears to castigate

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Clinton for not “over-lawyering” this case, the fact remains that no party has a

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“duty” to present expert testimony. Plus, in the absence of any noticed discovery

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motion, it is unclear how or why Defendants would be entitled to any type of a

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discovery sanction under Fed. R. Civ. P. 37. The time for such motions is over.

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In fact, under the controlling Daubert triology of cases, expert testimony

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must serve as a demonstrable aid to the Court. Here, Clinton’s monetary

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remedies – and his statutory right under 17 U.S.C. §504(c) to “elect” such

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remedies from either “actual damages” or “statutory damages” at any time prior

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to final judgment: (i) are set forth in the U.S. Copyright Act itself, (ii) were
properly recited as such in the December 10, 2010, complaint, and (iii) all

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Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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Defendants were clearly on notice of Clinton’s reliance upon such an election of
monetary remedies from the explicit wording of the complaint itself, thereby

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negating any alleged prejudice involving the Rule 26(a) disclosures. Thus, as this
action has yet to reach the stage of “final judgment,” Clinton questions whether
this issue is even “ripe” and fully retains his statutory right to elect his method of

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damages between “actual damages” or “statutory damages.” Granted, Moving
Defendants certainly retain the ability to contest any such election of damages–if
and when it is made–but Clinton does not need an “expert” to tell this Court what

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17 U.S.C. §504(c) states on its face. Indeed, a recitation of the pertinent law is

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the province of this Court and nothing in Rule 56 changes this clear fact.

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III. LEGAL BACKGROUND & ARGUMENT

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A. General Standard for Summary Judgment Motions
Summary judgment is appropriate only if there are no genuine issues of
material fact and if defendants demonstrate their entitlement to judgment as a

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matter of law. Fed. R. Civ. P. 56(c); T.W. Elec. Serv., Inc. v. P. Elec. Contractors

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Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The Court must view the evidence and

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draw inferences in the light most favorable to plaintiff, the non-moving party. T

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W Elec., 809 F.2d at 630-31; see also Matsushita Elec. Indus. Co. v. Zenith Radio

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Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed. 538 (1986). The Court may

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not make credibility determinations or weigh conflicting evidence on summary
judgment for such determinations “are within the province of the fact finder at

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Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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trial.” T. W. Elec., 809 F.2d at 630. On summary judgment, “the judge’s function
is not himself to weigh the evidence and determine the truth of the matter but to

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determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, L.Ed. 202 (1986). Such a “genuine issue
of material fact” need not be resolved conclusively in favor of the party asserting

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its existence; rather, all that is required is that sufficient evidence supporting the
claimed factual dispute be shown to require a jury or judge to resolve the parties’
differing versions of the truth at trial. Anderson, 477 U.S. at 248-49. This Court

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must construe the produced in the light most favorable to Clinton, as the non-

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moving party, drawing all justifiable inferences in his favor. Id. at 255. Thus, “if

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reasonable minds could differ as to the import of the evidence,” summary

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judgment is not proper. Id. at 250.

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B. Asserted Grounds for Partial Summary Judgment

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Moving Defendants set forth four (4) separate grounds for partial summary

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judgment against Clinton in D/E 75 as follows:
(1) Plaintiff cannot, as a matter of law, prove the existence of actual
damages and may not recover actual damages on his copyright
infringement claim;
(2) Plaintiff cannot, as a matter of law, prove profits attributable to the
alleged infringement and may not recover profits on his copyright
infringement claim;
(3) The Moving Defendants are “innocent infringers” within the meaning
of [17] U.S.C. § 504(c)(2);
(4) Defendants will.i.am music, inc. and Tab Magnetic, Inc. are entitled to
judgment as a matter of law on all claims for relief in the Complaint.

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Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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C. Moving Defendants’ Theory 1 – “Actual Damages” Under 17 U.S.C.
§504(c) Should Be Denied As It Lacks Ripeness And Denies Plaintiff His
Statutory Right Of Damages Election under 504(c)(2).

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Theory 1 asks that Clinton should be precluded from seeking the specific

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monetary remedy of “actual damages” despite the fact that17 U.S.C. §504(c)(1)

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explicitly states that “the copyright owner may elect, at any time prior to final

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judgment is rendered, to recover, instead of actual damages and profits, an award
of statutory damages for all infringements in the action . . . .”

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Rather than seeking the substantive dismissal of Clinton’s claim for

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copyright infringement under 17 U.S.C. §501, the March 7, 2011, Notice of
Motion of Partial Summary Judgment first appears to seek partial summary
judgment to preclude Clinton from even seeking the specific monetary remedy of

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“actual damages” despite the fact that Clinton’s Payer For Relief in the December
10, 2010, Complaint at D/E 1, Page 26-28, Section c, unmistakably outlines, and
provides ample notice of, the clear December 10, 2010, statement that Clinton

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was alternatively seeking both actual damages or statutory damages, at his

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election, in full accordance with 17 U.S.C. §504(c)(1). The Ninth Circuit itself

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has previously held that “[u]nder the 1976 Act4, the plaintiff, may, prior to final

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judgment, elect to recover either actual or statutory damages. 17 U.S.C. §
504(c)(1). Statutory damages may be elected whether or not there is adequate

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By virtue of Undisputed Material Fact 3 in Defendants’own D/E 77, Clinton submits that this
Court can take judicial notice that the 1979 album, Uncle Jam Wants You, which contained the
Knee Deep work, is governed by the 1976 Copyright Act.

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Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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evidence of the actual damages suffered by plaintiff or of the profits reaped by
defendant. 3 M. Nimmer, [] §14.04[A].” Harris v. Emus Records Corporation,

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et al., 734 F.2d 1329, 1335 (9th Cir. 1984). As final judgment has yet to be
rendered and Clinton has yet to make any such statutory election, Theory 1 is
premature and lacks fundamental ripeness unless and until Clinton makes an

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election for actual damages, which can be done any time before final judgment.
While Clinton recognizes that Moving Defendants reserve the right to challenge
the existence of “adequate evidence of the actual damages suffered by plaintiff,”

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Moving Defendants cannot use Rule 56 to defeat, and render meaningless, the

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statutory granted right to elect damages under Section 504(c)(2). Id.

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D. Moving Defendants’ Theory 2 – “Profits” Under 17 U.S.C. §504(c)
Should Be Denied Because It Lacks Ripeness and Denies Plaintiff His
Statutory Right Under 504(c)(2).
Theory 2 asserts that Clinton should be precluded from seeking the specific
monetary remedy of “profits” in this action despite the fact that17 U.S.C. §504(b)

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explicitly states, “[i]n establishing the infringer’s profits, the copyright owner is

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required to present proof only of the infringer’s gross revenue, and the infringer is

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required to prove his or her deductible expenses and the elements of profit

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attributable to factors other than the copyrighted work.” Thus, Clinton need only

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present proof at trial of Defendants’ gross revenue. It is then Defendants (not

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Clinton) who have the burden to place their “spin” on the actual profits. Very
logically, this is why Clinton (or any other copyright owner) has the statutory

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Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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right to elect the form of damages under Section 504(c)(2) “at any time before
final judgment is rendered, instead of actual damages and profits, an award of

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statutory damages for all infringements in the action . . . .” As final judgment has
yet to be rendered, and Clinton has yet to make any such statutory election,
Theory 2 should likewise be denied outright as an impermissible attempt to defeat

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the statutory mandated right of election of damages between “actual damages”
and “statutory damages” in Section 504(c)(2).

In the theoretical event that Clinton does elect to seek actual damages

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and/or Defendant’s profits in this action at some time before entry of a final

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judgment, there is ample evidence to support a claim for both actual damages

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and Defendants’ profits under 17 U.S.C. §504. Moving Defendants neither
provide the operative language of Section 504 nor discuss respective
evidentiary burdens of the parties. Contrary to Moving Defendants’s position

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that Clinton has not provided “evidence” as to gross revenue, such “evidence”

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is squarely within the knowledge of the Defendants. In this case, Moving

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Defendants have already provided the necessary proof and evidence needed to

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present the infringer’s gross revenue to Clinton’s counsel. On October 12,

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2011, Moving Defendants presented Plaintiff with a print-out form from

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Neilson Soundscan, a subscription-based service offering many packages to
prospective subscribers. See Thennisch Decl, Ex. C-E. This Neilson
Soundscan data is a publically available third party factual data compilation of

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Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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the unit sales of Moving Defendants’ musical works, more commonly-known
in the music industry as a Soundscan Report. Id.. Therefore, based on the

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language of 17 USC 504(b) the factual information contained in the

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SoundScan report regarding the infringer’s sales data and units constitutes

6
7
8
9

evidence of their gross revenue which is the sole evidentiary requirement
under 17 U.S.C. §504, and any “proof only of the infringer’s gross revenue” is
thus clearly subject matter known to the Defendants which they can testify to

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11

at trial. See Thennisch Decl. Exhibits C-E.

12
13
14

To the extent that Moving Defendants object to the Soundscan material
under the pretext that it was “only” provided to Clinton under Federal Rule of

15

Evidence 408, it should be seen that FRE 408 does not require exclusion of

16

any evidence otherwise discoverable simply because it may have been

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18
19
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presented in the course of comprise negotiations.5 Rather, FRE 408 does not
apply to exclude purely factual and publicly available factual information
(compiled and sold by a third party) such as SoundScan data compiled by

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22
23
24
25
26
27
28

5

Rule 408 provides: “Evidence of (1) furnishing or offering or promising to furnish, or (2)
accepting or offering or promising to accept, a valuable consideration in compromising or
attempting to compromise a claim which was disputed as to either validity or amount., is not
admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or
statements made in compromise negotiations is likewise not admissible. This rule does not
require the exclusion of any evidence otherwise discoverable merely because it is
presented in the course of compromise negotiations. This rule also does not require
exclusion when the evidence is offered for another purpose, such as providing bias or prejudice
of a witness, negotiating a contention of undue delay, or proving an effort to obstruct
investigation or prosecution.” Fed. R. Evid. 408. (Emphasis added).

12

Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

1
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Neilson, which simply shows the factual sales data that is certainly otherwise
discoverable. Most notably, the Soundscan data set forth in the Thennisch

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4

Decl. does not reflect any type of “offer” from Moving Defendants and is not

5

“offered” as such. Rather, factual data is not subject to any exclusions under

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7
8
9

FRE 408 since such data involves empirical and ascertainable facts.
Further, FRE 408 permits evidence that is otherwise discoverable or that
is offered for a purpose other than establishing liability. Bankcard America,

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Inc. v. Universal Bancard Systems, Inc., 203 F.3d 477 (2000). The purpose of

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Rule 408 is to encourage settlements, not act as an absolute ban on all evidence

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regarding settlement negotiations. Deere & Comp. v. Int. Harvester Comp.,

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710 F.2d 1551 (1983).

See also ABM Industries, Inc. v. Zurich Amer.

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Insurance Comp. 237 F.R.D. 225 (N.D.Cal. 2006) (Rule 408 does not require

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19
20

exclusion of any evidence otherwise discoverable because it is presented in the
course of compromise negotiations). Similarly, the sales data information
conveyed by Will Adams counsel on October 12, 2011 is/was an otherwise

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discoverable factual report, and is not being offered into evidence to prove

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liability of Defendants in this action. Therefore, Rule 408 does not prevent

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Clinton from introducing the Soundscan data into evidence, which is
admissible under 17 USC 504(b).

This evidence is still admissible even

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28

13

Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

1
2

though it was attained during a supposed “negotiation” because the report is an
independent factual third party report otherwise discoverable.

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4
5
6

E. Moving Defendants’ Theory 3 – The Non-Pled Innocent Infringer
Defense Should Be Deemed Waived Because Defendants Never Plead It
Before Their Current Motion Which Is Well After The Close of Discovery
Clinton states that as part of the March 7, 2012, Notice of Motion for

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9
10

Partial Summary Judgment, Moving Defendants have asserted the affirmative
defense of being an “innocent infringer” for the first time in this litigation and
well after the February 29, 2012, close of discovery. In addition to not being pled

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12

as an affirmative defense within the meaning of Fed. R. Civ. P. 8(c) in any of the

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answers submitted by Moving Defendants at D/E 21, 24, 25, and 27, this new

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assertion of the “innocent infringer” affirmative defense truly does take Clinton

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by surprise and creates real prejudice in that–in all of the pre-filing

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correspondence and post-filing activity to date–Moving Defendants have

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continuously claimed that they are not “infringers” at all and that they possessed

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tangible license rights to use Clinton’s work. Now, for the first time, Moving

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Defendants seem to be “admitting” to being infringers–albeit innocent ones–

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which goes directly to the putative and subjective “state of mind” of each of the

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named Defendants (inherently within their control) as opposed to the objective

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determination of whether Clinton granted the named Defendants a license (which

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27
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Clinton can testify to). Although it is acknowledged that such alternative or
inconsistent claims can be made under Fed. R. Civ. P. 8(d)(3), they must first be

14

Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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properly pled and noticed under Fed. R. Civ. P. 8(c) as an affirmative defense to
avoid this very type of surprise and prejudice which is now created. Although

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5
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Moving Defendants have the burden of proof to establish both the existence of a
license and the innocent infringer defense, any valid license must have been
granted by Clinton whereas the “innocent infringer” defense is predicated upon

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what the individual defendants “knew and when they knew it6.” This Court is
now asked to strike this belated affirmative defense under Fed. R. Civ. P. 12(f)(1)
for failure to comply with Fed. R. Civ. P. 8(c).

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12

It has always been well understood that the defense of innocent

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infringement under Section 504(c)(2) of the Copyright Act is an affirmative

14

defense requiring the alleged infringer to prove that “such infringer was not

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aware and had no reason to believe that [its] acts constituted an infringement of

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copyright.” 17 U.S.C. § 504(c)(2). Since this action clearly arises under both a

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federal statute and federal question jurisdiction via 28 U.S.C. §1331, the

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characterization of defensive matters is a matter of federal law. See Meachum v.

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Knolls Atomic Power Lab., 554 U.S. 84, 128 S. Ct. 2395, 171 L.Ed.2d 283, 290-

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94 (2008). Here, the answers submitted by Moving Defendants each contain

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24
25
26
27

6

Despite their burden of proof, none of the named Defendants have submitted a declaration
attesting or professing any type of “innocent infringer” knowledge, so summary judgment is
improper on this defense. However, Clinton also seeks to strike the defense since it was not
plead at D/E 21, 24, 25, and 27, and he does not agree to amend the pleadings to include such a
“new” defense under Fed.R.Civ.P. 15(b).

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15

Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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affirmative defenses at D/E 21, 24, 25, and 27, but no Defendant, until now, has
asserted reliance upon the “innocent infringer” provisions of Section 504(c)(2).

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Clinton now requests that Moving Defendants be precluded from asserting

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5
6

the affirmative defense of innocent infringement since it was waived in their
respective initial answers under Fed. R. Civ. P. 8(c), and there has been no

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attempt to amend any such pleading under Fed. R. Civ. P. 15. Further, even when
this affirmative defense is properly pled under Fed. R. Civ. P. 8(c), it may still fail
as a matter of law. Marobie-Fl. Inc. v. National Ass’n of Fire Equipment

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Distributors and Northwest Nexus, Inc., 983 F.Supp. 1167 (N.D. Ill. 1997)

13

(defendant’s innocent infringement defense was pled as an affirmative defense,

14

but was not enough to defeat summary judgment on infringement liability).

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Since the party seeking to maintain the innocent infringer defense has the

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burden of proving that the elements of Section 504(c)(2) have been met, such a

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defense must be properly pled and preserved in the pleadings. The purpose of

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that requirement is to give notice to both the plaintiff and the Court that such a

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defense could be an issue for trial. This was not done here. To the extent that

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Moving Defendants provide a series of declarations from lawyers (that may or

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may not represent all of Moving Defendants7), those attorney declarations do not

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7

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For example, Rosoff Decl., ¶2 states that she represents “certain individual members” of
Black Eyed Peas musical group, but does not identify any such individuals and says nothing
about the individual named defendants in this action. At the risk of being coy, one can claim to
represent The Three Stooges, but do they mean “Moe, Larry & Curly” or “Moe, Larry &
Shemp?” Summary judgment demands precision to be successful.

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Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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even suggest what any of Moving Defendants knew or “when they knew it” about

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absolutely any subject8.

3
Even if Moving Defendants had properly noticed this affirmative defense,

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5
6

it is unavailable to them as a matter of law. On this point, it is axiomatic that to
satisfy Section 504(c)(2), the defendant must “prove that it was not aware and had

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no reason to believe that his or her acts constituted infringement.” Fitzgerald
Pub. Co., Inc. v. Baylor Pub. Co., Inc., 807 F.2d 1110, 1 I 15 (2d Cir. 1986);
Eastern America Trio Prods., Inc. v. Tang Elec. Corp., 97 F. Supp. 2d 395, 419

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(S.D.N.Y. 2000). “Indeed, a defendant’s burden of proving innocent

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infringement has been described by one commentator as a ‘heavy one.’” Natl.

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Football League v. PrimeTime 24 Jt. Ventur, 131 F. Supp. 2d 458, 476 (S.D.N.Y.

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2001) (quoting 2 Patry, Copyright Law & Practice at 1175 (1994)). That heavy

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burden is likely the reason why the innocent infringer defense “appears to have

18

been limited to cases where the defendant (often unsophisticated) proves that it

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did not know about the plaintiffs copyright and immediately ceased its infringing

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conduct upon being made aware of plaintiff’s copyright claim.” Id. at 477 (citing

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D.C. Comics Inc. v. Mini Gift Shop, 912 F.2d 29, 35-36 (2d Cir. 1990) (“The

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level of sophistication of the defendant in business is an entirely proper means of

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determining whether or not his infringement was innocent.”); Warner Bros., Inc.

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28

8

Indeed, it appears that Defendant Will Adams is not even aware that his own Will I Am
Music, Inc. is a suspended California corporation that is legally unable to defend this action
even though the December 10, 2010, Complaint, ¶20 provided notice of this fact.

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Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

1
2

v. Dae Rim Trading, Inc., 677 F. Supp. 740 (S.D.N.Y. 1 988) (finding innocent
infringement where defendant bought dolls from wholesaler that, unknown to

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defendant, were of characters from plaintiffs movie; when defendant learned this,
it immediately and unilaterally returned all unsold dolls), aff’d in relevant part,
877 F.2d 1120 (2d Cir. 1989)).

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Under this heavy burden, and in view of the fact that each of the Marshall,
Mannis-Gardner, and Rosoff Declarations solely exist for the proposition that
Moving Defendants had express knowledge of Clinton’s copyright interests and

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actively sought to license such rights from 2003-2009, there is no rational basis

13

for Moving Defendants, similarly-situated musical performers and copyright

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owners in their own right, to be characterized as “innocent infringer(s)” under the

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undisputed record in this case. Given the “Undisputed Facts” submitted by

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Moving Defendants themselves, coupled with the obvious June 17, 2005, Order

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issued by Judge Real, they cannot now claim to be unaware or taken by the

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surprise that Clinton was the “sole owner” of the Masters at issue–at least as of

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June 17, 2005, for purposes of damages.

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24
25
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F. Moving Defendants’ Theory 4 Should Be Denied As Defendant Will I Am
Music, Inc. Is A Suspended California Corporation And Statements About
Tab Magnetic Are Not Supported By Evidence
Although the Rosoff Decl. ¶2 and ¶7-9 does identify that Attorney Rosoff
represents Defendants Will I Am Music, Inc. and Tab Magnetic, Inc., it does not
appear that the scope of Attorney Rosoff’s representation extends to basic

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Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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corporate compliance. Namely, as first set forth in ¶20 of the December 20,
2010, Complaint, and re-confirmed at Exhibit A to the Thennisch Decl., Will I

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5
6

Am Music, Inc. remains a suspended California corporation. “It is well-settled
that a delinquent corporation may not bring suit and may not defend a legal
action.” U.S. v. 2.61 Acres of Land, More or Less, Situated in Mariposa County,

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State of Cal., 791 F.2d 666, 668 (9th Cir. 1985). Since Defendant Will I Am
Music, Inc.: (i) lacks capacity under Fed. R. Civ. P. 17(a); (ii) cannot defend this
action under at least Cal. Rev. and Tax Code §23301; and (iii) has not moved this

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Court for any additional time to “revive” itself (despite the fact that its admitted

13

counsel, Attorney Rosoff, and its present counsel clearly “know” about this case).

14

As such, the Court is respectfully requested to take action under Fed. R. Civ. P.

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16

56(f) and enter summary judgment against Defendant Will I Am Music, Inc. since

17

that entity is legally incapable of defending this action or seeking any relief –

18

including the present request for partial summary judgment.

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20

With respect to Defendant Tab Magnetic, Inc., ¶8 of the Rosoff Declaration

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states that this entity “is a company owned by Jamie Gomez.” Gomez is the same

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individual named as a defendant, but has not submitted any type of declaration on

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behalf of either the individual or Tab Magnetic, Inc. (TMI). Instead, the sole

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asserted basis for summary judgment relating to Tab Magnetic, Inc. appears to be

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the statement of Attorney Rosoff at ¶8, where Attorney Rosoff (not Jamie Gomez
or anyone else claiming to be an officer, director, or shareholder of TMI) states

19

Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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2

the following: “To the best of my knowledge, TMI has received no income from
any exploitation of the master recordings of the 2003 Shut Up Remix or the 2009

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4
5
6

Shut Up remix and has not entered into any license for the exploitation of those
master recordings.” See D/E 78-3, ¶8. See Hamilton v. Keystone Tankship
Corp., 539 F.2d 684, 686 (9th Cir. 1976) (“where the movant’s papers on their

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face are clearly insufficient to support a motion for summary judgment and
where, as here, those papers themselves suggest the existence of a genuine issue
of material fact,” summary judgment is wholly inappropriate). Again, and with

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professional respect to Moving Defendants, the Rosoff Declaration is neither the

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“best evidence” under the Federal Rules of Evidence or a good faith declaration

14

for purposes of Fed. R. Civ. P. 56(h). At best, Rosoff Decl, ¶2 states that the

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Attorney Declarant has represented TMI since “approximately 2007 to the

17

present” but then Rosoff Decl. ¶8 attempts to present summary judgment

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“evidence” relating to the 2003 Shut Up Remix – events which clearly predate

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any conceivable personal or firsthand knowledge by the named declarant. Thus,

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the Rosoff Declaration lacks any statement that she undertook any type of review

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or investigation of the TMI documents to allow any statement “to the best of her

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knowledge9.” Clearly, there is no declaration from Jamie Gomez or any other

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individual involving TMI which even implicates the Celotex triology of cases.

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27
28

9

For purposes of Fed. R. Civ. P. 56(h), neither the Mannis-Gardner or Rosoff Declarations
present any evidence that any payment was initiated, issued, or received by George Clinton
relating to any putative license, yet the declarants claim that a license exists.

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Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

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2
3

G. Defendant’s Motion Should Be Denied Because Moving Defendants Do
Not Have Any License Agreement With Plaintiff
Moving Defendants have asserted the affirmative defense of having a

4

license from Clinton to utilize Clinton’s Knee Deep musical work in their various

5

works, including both the 2003 Shut Up Remix and the 2009 Shut Up Remix but

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7

they have not produced a fully signed and executed license directly from Clinton

8

for the 2003 Shut Up Remix, the 2009 Shut Up Remix, or any other Clinton work.

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Instead, the putative license(s) now alleged to have been granted by Clinton to

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12
13

these Defendants are, at best, through a series of convoluted intermediaries or
separate business entities such as Capitol Records which Moving Defendants now
claim to receive their pedigree from–all despite the clear wording of Judge Real’s

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June 17, 2005, Order which states: any other grant of rights in the Masters since
1993 by anyone other than GEORGE CLINTON are invalid and shall not be
honored. [emphasis added].

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At a minimum, these tenuous connections (which do not even purport to
show a direct relationship between Clinton and any of Moving Defendants by

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individual name) fail to establish any type of license recognized by the Copyright
Act. At best, and even if Moving Defendants are excused for the “oversight” of
not providing a copy of Judge Real’s June 17, 2005, Order to this Court, the

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materials presented by Defendants themselves are “extrinsic evidence” involving
mixed questions of law and fact which are inherently intertwined with contract
interpretation. Cohen v. Paramount Pictures Corp., 845 F.2d 851 (9th Cir.1988).

21

Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

1

More simply stated, Moving Defendants’ own materials do not include any

2

declarations from the named Defendants10 and raise genuine issues of material

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4
5
6

fact under Ninth Circuit law. See Hamilton, 539 F.2d at 686 (“where the
movant’s papers on their face are clearly insufficient to support a motion for
summary judgment and where, as here, those papers themselves suggest the

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existence of a genuine issue of material fact”, summary judgment is wholly
inappropriate).

10

In particular, in D/E 80, the Moving Defendants ask this Court to take

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“judicial notice” of the December 3, 2007, Declaration Of Alasdair McMullen in

13

Case No. 06-CV-08106 in support of the request for summary judgment despite

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the fact that ¶3 of the McMullen Declaration refers to an attached Exhibit A

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which is not part of D/E 80 in any manner and ¶7 of the McMullen Declaration

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refers to an Exhibit B which is also absent from D/E 8011. To the extent that the

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McMullen Declaration is relevant at all, Clinton states that Moving Defendants

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impermissibly attempt to rely upon the 2007 McMullen Declaration to avoid the

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import of Judge Real’s June 17, 2005, Order in Case 03-CV-08955 by suggesting

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that the alleged August 16, 1993, license agreement from Tercer Mundo to

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Priority Records attached to the Marshall Declaration somehow first “morphed”

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10

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28

Attorney argument is not summary judgment evidence. Likewise, dressing attorney
argument as a declaration is of no assistance to Rule 56 and only implicates Rule 56(h).
11
Although this Court has great latitude to take judicial notice of any matter, the Moving
Defendants have clearly not provided the “entire” December 3, 2007 McMullem Declaration
with all of its attendant exhibits at D/E 80. For this reason, Clinton asks that the request for
judicial notice at D/E 80 be denied.

22

Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

1
2

to a license to Capitol Records and then “morphed” again into a license to
Moving Defendants through the unilateral proclamation of the Marshall

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4
5
6

Declaration and no other documents. But even ¶9 of the McMullen Declaration
itself disavows both participation and involvement by Capitol Records and
Priority Records in Case No. 03-CV-08955, yet Moving Defendants continue to

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claim that they somehow received what can only be described as a supposed
“license” from another licensee (i.e. Capitol Records/Priority Records)–all of
which continues to conveniently ignore the June 17, 2005, Order . To the extent

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12

that the entire Marshall Declaration (dated February 29, 2012) is predicated upon

13

the supposed August 16, 1993, license from Tercer Mundo to Priority Records,

14

and ¶9 of the McMullen Declaration (dated December 3, 2007) (which effectively

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disclaims any involvement in Case No. 03-CV-08955), Clinton states that Judge

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Real’s June 17, 2005, Order is not only “law of the case” concerning that issue, it

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cannot now be collaterally attacked in this action. If anything, this Court now has

19
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ample authority to take action under Fed. R. Civ. P. 56(f) and issue summary

21

judgment in favor of Clinton based upon Judge Real’s June 17, 2005, Order.

22

Further, neither Moving Defendants nor the Marshall Declaration explain

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how or why any putative license to Priority Records could first “morph” to

25

Capitol Records and then somehow be assigned, transferred, or extended to any

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Moving Defendants–all without a single document or explanation. In fact,
controlling copyright law precedent of the Ninth Circuit explicitly holds and

23

Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

1
2

embraces “the proposition that such licenses are not transferable as a matter of
law.” Harris v. Emus Records Corporation, et al. 734 F.2d 1329, 1333 (9th Cir.

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4
5
6

1984). “It has been held that a copyright licensee is a “bare licensee . . . without
any right to assign its privilege.” Id. This legal position is further supported by
Judge Pregerson’s decision in Michaels v. Internet Ent. Group, Inc., 5 F.Supp.2d

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823, 834 (C.D. Cal. 1998) which cited Harris in a dispute involving copyright
license issues flowing from the use of a celebrity sex-tape by IEG featuring
musician Brett Michaels “holding that a copyright license itself does not include

11
12

the right to transfer the license, unless the copyright owner (here Clinton by virtue

13

of Judge Real’s June 17, 2005 Order) explicitly conveys this right in addition to

14

the license itself.” Id. The court reasoned that “[t]he default rule of non-

15
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transferability [] makes IEG’s burden heavier in proving its license defense. It

17

must prove not only that Michaels granted a license to the unnamed client, but

18

also that Michaels’ agreement with the unnamed client included a term allowing

19
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the license to be transferred to IEG without further consent from Michaels.” Id.

21

Given this default rule of non-transferability, the supposed “1993” license

22

flowing to the Moving Defendants in the Marshall Declaration is even more

23
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suspect given not only Judge Real’s June 17, 2005, Order, but because the

25

Moving Defendants submit absolutely no evidence on behalf of themselves as

26
27

named parties. Indeed, no member of the BEP filed anything – why?

28

24

Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

Concerning the alleged second “license” supposedly obtained through an

1
2

individual named Eban Kelly to use the 2009 Shut Up Remix, Moving

3
4
5
6

Defendants submit and rely upon the Mannis-Gardner and Rosoff Declarations
neither of whom establish for purposes of summary judgment, that an agreement
was ever made with George Clinton to obtain the alleged license from 2007-2009

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9
10

before they “cleared” the use of Knee Deep by Moving Defendants. Moving
Defendants’ evidence consists of a November 29, 2007, check in the amount of
$15,000 made payable to C Kunspyrushzy LLC, but does not provide any type of

11
12

signed or negotiated version of the check showing that it was ever cashed by

13

anyone – including Clinton. Neither the Mannis-Gardner or Rosoff Declarations

14

suggest the existence of a license or a check made payable to the actual legal

15
16

owner of the work at issue, George Clinton, all of which is clearly refuted by the

17

opposing Kelly and Clinton Declarations attached hereto.

18

IV.

CONCLUSION

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22

For the above stated reasons, Defendants’ Motion For Partial Summary
Judgment should be DENIED as set forth above in the accompanying Proposed
Order.

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Dated: March 19, 2012

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

Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment

CERTIFICATE OF SERVICE

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3

I, hereby certify that on March 19, 2012, I electronically filed the

4

foregoing:

5

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION FOR

6

PARTIAL SUMMARY JUDGMENT

7

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

8

such filing to all counsel of record.

9

/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 Response to Defendants’ Motion for Partial Summary Judgment