George Clinton v. Will Adams et al

Filing 97

PROPOSED JURY INSTRUCTIONS (Annotated set) filed by Plaintiff and Defendants Will Adams, George Clinton, Stacy Ferguson, Jaime Gomez, Allan Pineda, Tab Magnetic, Inc., UMG Recordings, Inc., Will I Am Music, Inc... (Grodsky, Allen)

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GRODSKY & OLECKI LLP
Allen B. Grodsky (SBN 111064)
John Metzidis (SBN 259464)
2001 Wilshire Blvd., Ste. 210
Santa Monica, California 90403
310.315.3009 (phone)
310.315.1557 (fax)
[e-mail]
[e-mail]

Attorneys for Defendants Adams, Pineda,
Gomez, Ferguson, will.i.am music, inc.
7 and Tab Magnetic, Inc.
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(Additional counsel listed on
second page)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GEORGE CLINTON, an individual,
Plaintiff,

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

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Case No. CV 10-9476 ODW (PLAx)
Honorable Otis D. Wright II, Ctrm 11
JOINT PROPOSED JURY
INSTRUCTIONS
Trial:
Time:
Place:

June 5, 2012
9:00 a.m.
Courtroom 11

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

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CALDWELL LESLIE & PROCTOR, PC
LINDA M. BURROW, State Bar No. 194668
[e-mail]
ALISON MACKENZIE, State Bar No. 242280
[e-mail]
1000 Wilshire Boulevard, Suite 600
Los Angeles, California 90017-2463
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
UMG Recordings, Inc.

INDEX OF JOINT PROPOSED JURY INSTRUCTIONS

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2
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NO.

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1

Duty of Jury (Court Reads Instruction Only)

9th Cir. 1.1B

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5

2

Duty of Jury (Court Reads and Provides

9th Cir. 1.1C

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6

TITLE

SOURCE

PAGE NO.

Written Instructions at End of Case)

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3

Claims and Defenses

9th Cir. 1.2

6

8

4

Burden of Proof–Preponderance of Evidence

9th Cir. 1.3

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5

Two or More Parties–Different Legal Rights

9th Cir. 1.5

10

6

Corporations and Partnerships

9th Cir. 4.1

12

7

What is Evidence

9th Cir. 1.6

14

11

8

What is Not Evidence

9th Cir. 1.7

16

12

9

Evidence for Limited Purpose

9th Cir. 1.8

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9
10

th

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10

Direct and Circumstantial Evidence

9 Cir. 1.9

20

14

11

Ruling on Objections

9th Cir. 1.10

22

15

12

Credibility of Witnesses

9th Cir. 1.11

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13

Conduct of the Jury

9th Cir. 1.2

26-27

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No Transcript Available to Jury

9th Cir. 1.13

29

17

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Taking Notes

9th Cir. 1.14

31

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Bench Conferences and Recesses

9th Cir. 1.18

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Outline of Trial

9th Cir. 1.19

35

20

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Stipulations of Facts

9th Cir. 2.2

37

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19

Impeachment of Evidence–Witness

9th Cir. 2.8

39

16

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23

th

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Use of Interrogatories of Party

9 Cir. 2.10

41

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Expert Opinion

9th Cir. 2.11

43

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Charts and Summaries not Received in

9th Cir. 2.12

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Evidence

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Charts and Summaries in Evidence

9th Cir. 2.13

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Evidence in Electronic Format

9th Cir. 2.14

49-50

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Duty to Deliberate

9th Cir. 3.1

52

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Communication with Court

9th Cir. 3.2

54

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INDEX OF JOINT PROPOSED JURY INSTRUCTIONS (Cont’d)

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Return of Verdict

9th Cir. 3.3

56

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Preliminary Instruction–Copyright

9th Cir. 17.0

58-60

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Copyright–Defined

9th Cir. 17.1

62

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Copyright Infringement–Elements–

9th Cir. 17.4

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Specially Prepared

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Ownership and Copying

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Copyright–Affirmative Defense–Express
License

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Agent and Principle–Definition

9th Cir. 4.4

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Agent–Scope of Authority Defined

9th Cir. 4.5

70

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Act of Agent is Act of Principal

9th Cir. 4.6

72

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Copyright Infringement–Ownership of Valid

9th Cir. 17.5

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Copyright–Definition

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Copyright–Damages

9th Cir. 17.22

76

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Copyright–Damages–Actual Damages

9th Cir. 17.23

78

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Copyright–Damages–Defendant’s Profits

9th Cir. 17.24

80-81

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Copyright–Damages–Defendant’s

Specially Prepared

83

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Profits–Apportionment Factors
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Copyright–Damages–Three Year Limitation

Specially Prepared

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Copyright–Damages–Statutory Damages

9th Cir. 17.25

87

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Copyright–Damages–Innocent Infringement

9th Cir. 17.26

89

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Copyright–Damages–Willful Infringement

9th Cir. 17.27

91

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ii

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Pursuant to Local Rule 51-1 and the Court’s Scheduling and Case Management

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Order dated April 29, 2011 (Dkt. 38), Plaintiff and Defendants submit the following

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set of Joint Proposed Jury Instructions as to which Plaintiff and Defendants agree.

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Plaintiff and Defendants reserve the right to modify these joint proposed jury

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instructions in response to the Court’s ruling on the motion for partial summary

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judgment filed by Defendants Adams, Pineda, Gomez, Ferguson, will.i.am music, inc.

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and Tab Magnetic, Inc.

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Respectfully submitted,

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Dated: April 30, 2012

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GRODSKY & OLECKI LLP
Allen B. Grodsky
John Metzidis
By:

/s/ Allen B. Grodsky
Allen B. Grodsky

)))))))))))))))))))))))))

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

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Dated: April 30, 2012

DOBRUSIN THENNISCH, PC
Jeffrey P. Thennisch

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By: /s/ Jeffrey P. Thennisch (w/ permission)
)))))))))))))))))))))))))
Jeffrey P. Thennisch

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Attorneys for Plaintiff George Clinton

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Dated: April 30, 2012

CALDWELL, LESLIE & PROCTOR PC
Linda M. Burrow
Alison Mackenzie

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By: /s/ Linda M. Burrow (w/ permission)
)))))))))))))))))))))))))
Linda M. Burrow

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Attorneys for Defendant UMG Recordings, Inc.

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COURT’S INSTRUCTION NUMBER ___

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DUTY OF JURY (COURT READS INSTRUCTIONS ONLY)

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Ladies and gentlemen: You are now the jury in this case. It is my duty to

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instruct you on the law.

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You must not infer from these instructions or from anything I may say or do as

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indicating that I have an opinion regarding the evidence or what your verdict should

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be.

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It is your duty to find the facts from all the evidence in the case. To those facts

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you will apply the law as I give it to you. You must follow the law as I give it to you

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whether you agree with it or not. And you must not be influenced by any personal

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likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide

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the case solely on the evidence before you. You will recall that you took an oath to do

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so.

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In following my instructions, you must follow all of them and not single out
some and ignore others; they are all important.

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JOINT PROPOSED INSTRUCTION NUMBER 1

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DUTY OF JURY (COURT READS INSTRUCTIONS ONLY)

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AUTHORITY:

Instruction No. 1.1B, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

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COURT’S INSTRUCTION NUMBER ___

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DUTY OF JURY (COURT READS AND PROVIDES

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WRITTEN INSTRUCTIONS AT END OF CASE)

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Members of the Jury: Now that you have heard all of the evidence [and the

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arguments of the attorneys], it is my duty to instruct you as to the law of the case.

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[Each of you has received a copy of these instructions that you may take with

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you to the jury room to consult during your deliberations.]

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or

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[A copy of these instructions will be sent with you to the jury room when you

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deliberate.]

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You must not infer from these instructions or from anything I may say or do as

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indicating that I have an opinion regarding the evidence or what your verdict should

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be.

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It is your duty to find the facts from all the evidence in the case. To those facts

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you will apply the law as I give it to you. You must follow the law as I give it to you

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whether you agree with it or not. And you must not be influenced by any personal

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likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide

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the case solely on the evidence before you. You will recall that you took an oath to do

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so.

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In following my instructions, you must follow all of them and not single out
some and ignore others; they are all important.

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JOINT PROPOSED INSTRUCTION NUMBER 2

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DUTY OF JURY (COURT READS AND PROVIDES

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WRITTEN INSTRUCTIONS AT END OF CASE)

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AUTHORITY:

Instruction No. 1.1C, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

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COURT’S INSTRUCTION NUMBER ___

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CLAIMS AND DEFENSES

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To help you follow the evidence, I will give you a brief summary of the
positions of the parties:

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The plaintiff, George Clinton, claims that the defendants – William Adams,

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Allan Pineda, Jaime Gomez, Stacy Ferguson, will.i.am music, inc., Tab Magnetic, Inc.,

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and UMG Recordings, Inc. – are liable to Clinton for copyright infringement. The

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plaintiff has the burden of proving this claim.

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The defendants deny this claim and also contend that Clinton’s claim is barred

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by express license. The defendants have the burden of proof on this affirmative

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defense.

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JOINT PROPOSED INSTRUCTION NUMBER 3

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CLAIMS AND DEFENSES

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AUTHORITY:

Instruction No. 1.2, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Modified.

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COURT’S INSTRUCTION NUMBER ___

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BURDEN OF PROOF—PREPONDERANCE OF THE EVIDENCE

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When a party has the burden of proof on any claim or affirmative defense by a

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preponderance of the evidence, it means you must be persuaded by the evidence that

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the claim or affirmative defense is more probably true than not true.

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You should base your decision on all of the evidence, regardless of which party
presented it.

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JOINT PROPOSED INSTRUCTION NUMBER 4

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BURDEN OF PROOF—PREPONDERANCE OF THE EVIDENCE

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AUTHORITY:

Instruction No. 1.3, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

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COURT’S INSTRUCTION NUMBER ___

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TWO OR MORE PARTIES—DIFFERENT LEGAL RIGHTS

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You should decide the case as to each party separately. There are eight parties

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in this lawsuit:

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•

Plaintiff George Clinton;

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•

Defendant William Adams;

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•

Defendant Allan Pineda;

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•

Defendant Jaime Gomez;

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•

Defendant Stacy Ferguson;

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•

Defendant will.i.am music, inc.;

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•

Defendant Tab Magnetic, Inc.; and

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•

Defendant UMG Recordings, Inc.

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Unless otherwise stated, the instructions apply to all parties.

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JOINT PROPOSED INSTRUCTION NUMBER 5

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TWO OR MORE PARTIES—DIFFERENT LEGAL RIGHTS

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AUTHORITY:

Instruction No. 1.5, Ninth Circuit Manual of Model Jury

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Instructions – Civil (Jan. 2012 ed.). Modified to identify expressly each of the eight

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parties to the lawsuit.

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COURT’S INSTRUCTION NUMBER ___

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CORPORATIONS AND PARTNERSHIPS—FAIR TREATMENT

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All parties are equal before the law and a corporation is entitled to the same fair
and conscientious consideration by you as any party.

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JOINT PROPOSED INSTRUCTION NUMBER 6

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CORPORATIONS AND PARTNERSHIPS—FAIR TREATMENT

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AUTHORITY:

Instruction No. 4.1, Ninth Circuit Manual of Model Jury

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Instructions – Civil (Jan. 2012 ed.). Modified only to delete reference to

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“partnerships.”

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COURT’S INSTRUCTION NUMBER ___

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WHAT IS EVIDENCE

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The evidence you are to consider in deciding what the facts are consists of:

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1.

the sworn testimony of any witness;

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the exhibits which are received into evidence; and

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any facts to which the lawyers have agreed.

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JOINT PROPOSED INSTRUCTION NUMBER 7

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WHAT IS EVIDENCE

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AUTHORITY:

Instruction No. 1.6, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

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COURT’S INSTRUCTION NUMBER ___

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WHAT IS NOT EVIDENCE

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In reaching your verdict, you may consider only the testimony and exhibits

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received into evidence. Certain things are not evidence, and you may not consider

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them in deciding what the facts are. I will list them for you:

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(1) Arguments and statements by lawyers are not evidence. The lawyers are not

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witnesses. What they have said in their opening statements, [will say in their] closing

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arguments, and at other times is intended to help you interpret the evidence, but it is

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not evidence. If the facts as you remember them differ from the way the lawyers have

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stated them, your memory of them controls.

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(2) Questions and objections by lawyers are not evidence. Attorneys have a

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duty to their clients to object when they believe a question is improper under the rules

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of evidence. You should not be influenced by the objection or by the court's ruling on

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it.

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(3) Testimony that has been excluded or stricken, or that you have been

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instructed to disregard, is not evidence and must not be considered. In addition

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sometimes testimony and exhibits are received only for a limited purpose; when I

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[give] [have given] a limiting instruction, you must follow it.

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(4) Anything you may have seen or heard when the court was not in session is
not evidence. You are to decide the case solely on the evidence received at the trial.

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JOINT PROPOSED INSTRUCTION NUMBER 8

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WHAT IS NOT EVIDENCE

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AUTHORITY:

Instruction No. 1.7, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

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COURT’S INSTRUCTION NUMBER ___

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EVIDENCE FOR LIMITED PURPOSE

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Some evidence may be admitted for a limited purpose only.

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When I instruct you that an item of evidence has been admitted for a limited
purpose, you must consider it only for that limited purpose and for no other.

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[The testimony [you are about to hear] [you have just heard] may be considered
only for the limited purpose of [describe purpose] and for no other purpose.]

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JOINT PROPOSED INSTRUCTION NUMBER 9

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EVIDENCE FOR LIMITED PURPOSE

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AUTHORITY:

Instruction No. 1.8, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

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COURT’S INSTRUCTION NUMBER ___

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DIRECT AND CIRCUMSTANTIAL EVIDENCE

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Evidence may be direct or circumstantial. Direct evidence is direct proof of a

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fact, such as testimony by a witness about what that witness personally saw or heard or

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did. Circumstantial evidence is proof of one or more facts from which you could find

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another fact. You should consider both kinds of evidence. The law makes no

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distinction between the weight to be given to either direct or circumstantial evidence.

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It is for you to decide how much weight to give to any evidence.

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JOINT PROPOSED INSTRUCTION NUMBER 10

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DIRECT AND CIRCUMSTANTIAL EVIDENCE

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AUTHORITY:

Instruction No. 1.9, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

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COURT’S INSTRUCTION NUMBER ___

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RULING ON OBJECTIONS

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There are rules of evidence that control what can be received into evidence.

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When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the

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other side thinks that it is not permitted by the rules of evidence, that lawyer may

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object. If I overrule the objection, the question may be answered or the exhibit

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received. If I sustain the objection, the question cannot be answered, and the exhibit

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cannot be received. Whenever I sustain an objection to a question, you must ignore the

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question and must not guess what the answer might have been.

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Sometimes I may order that evidence be stricken from the record and that you

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disregard or ignore the evidence. That means that when you are deciding the case, you

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must not consider the evidence that I told you to disregard.

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JOINT PROPOSED INSTRUCTION NUMBER 11

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RULING ON OBJECTIONS

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AUTHORITY:

Instruction No. 1.10, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

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COURT’S INSTRUCTION NUMBER ___

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CREDIBILITY OF WITNESSES

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In deciding the facts in this case, you may have to decide which testimony to

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believe and which testimony not to believe. You may believe everything a witness

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says, or part of it, or none of it. Proof of a fact does not necessarily depend on the

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number of witnesses who testify about it.

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In considering the testimony of any witness, you may take into account:

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(1) the opportunity and ability of the witness to see or hear or know the things
testified to;

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(2) the witness's memory;

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(3) the witness's manner while testifying;

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(4) the witness's interest in the outcome of the case and any bias or prejudice;

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(5) whether other evidence contradicted the witness's testimony;

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(6) the reasonableness of the witness's testimony in light of all the evidence; and

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(7) any other factors that bear on believability.

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The weight of the evidence as to a fact does not necessarily depend on the
number of witnesses who testify about it.

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JOINT PROPOSED INSTRUCTION NUMBER 12

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CREDIBILITY OF WITNESSES

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AUTHORITY:

Instruction No. 1.11, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

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-25-

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COURT’S INSTRUCTION NUMBER ___

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CONDUCT OF THE JURY

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I will now say a few words about your conduct as jurors.

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First, keep an open mind throughout the trial, and do not decide what the verdict

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should be until you and your fellow jurors have completed your deliberations at the

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end of the case.

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Second, because you must decide this case based only on the evidence received

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in the case and on my instructions as to the law that applies, you must not be exposed

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to any other information about the case or to the issues it involves during the course of

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your jury duty. Thus, until the end of the case or unless I tell you otherwise:

14
15

Do not communicate with anyone in any way and do not let anyone else

16

communicate with you in any way about the merits of the case or anything to do with

17

it. This includes discussing the case in person, in writing, by phone or electronic

18

means, via e-mail, text messaging, or any Internet chat room, blog, Web site or other

19

feature. This also includes posting comments on Facebook, Twitter, Myspace, or any

20

other social networking web site. This applies to communicating with your fellow

21

jurors until I give you the case for deliberation, and it applies to communicating with

22

everyone else including your family members, your employer, the media or press, and

23

the people involved in the trial, although you may notify your family and your

24

employer that you have been seated as a juror in the case. But, if you are asked or

25

approached in any way about your jury service or anything about this case, you must

26

respond that you have been ordered not to discuss the matter and to report the contact

27

to the court.

28
-26-

1

Because you will receive all the evidence and legal instruction you properly may

2

consider to return a verdict: do not read, watch, or listen to any news or media

3

accounts or commentary about the case or anything to do with it; do not do any

4

research, such as consulting dictionaries, searching the Internet or using other

5

reference materials; and do not make any investigation or in any other way try to learn

6

about the case on your own.

7
8
9

The law requires these restrictions to ensure the parties have a fair trial based on
the same evidence that each party has had an opportunity to address. A juror who

10

violates these restrictions jeopardizes the fairness of these proceedings[, and a mistrial

11

could result that would require the entire trial process to start over]. If any juror is

12

exposed to any outside information, please notify the court immediately.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-27-

1

JOINT PROPOSED INSTRUCTION NUMBER 13

2

CONDUCT OF THE JURY

3
4

AUTHORITY:

Instruction No. 1.12, Ninth Circuit Manual of Model Jury

5

Instructions – Civil (Jan. 2012 ed.). Modified to add reference to “Facebook, Twitter,

6

Myspace, or any other social networking web site.”

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-28-

1

COURT’S INSTRUCTION NUMBER ___

2

NO TRANSCRIPT AVAILABLE TO JURY

3
4

During deliberations, you will have to make your decision based on what you

5

recall of the evidence. You will not have a transcript of the trial. I urge you to pay

6

close attention to the testimony as it is given.

7
8
9

If at any time you cannot hear or see the testimony, evidence, questions or
arguments, let me know so that I can correct the problem.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-29-

1

JOINT PROPOSED INSTRUCTION NUMBER 14

2

NO TRANSCRIPT AVAILABLE TO JURY

3
4
5

AUTHORITY:

Instruction No. 1.13, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-30-

1

COURT’S INSTRUCTION NUMBER ___

2

TAKING NOTES

3
4

If you wish, you may take notes to help you remember the evidence. If you do

5

take notes, please keep them to yourself until you and your fellow jurors go to the jury

6

room to decide the case. Do not let note-taking distract you. When you leave, your

7

notes should be left in the [courtroom] [jury room] [envelope in the jury room]. No

8

one will read your notes. They will be destroyed at the conclusion of the case.

9
10

Whether or not you take notes, you should rely on your own memory of the

11

evidence. Notes are only to assist your memory. You should not be overly influenced

12

by your notes or those of your fellow jurors.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-31-

1

JOINT PROPOSED INSTRUCTION NUMBER 15

2

TAKING NOTES

3
4
5

AUTHORITY:

Instruction No. 1.14, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-32-

1

COURT’S INSTRUCTION NUMBER ___

2

BENCH CONFERENCES AND RECESSES

3
4

From time to time during the trial, it [may become] [became] necessary for me

5

to talk with the attorneys out of the hearing of the jury, either by having a conference

6

at the bench when the jury [is] [was] present in the courtroom, or by calling a recess.

7

Please understand that while you [are] [were] waiting, we [are] [were] working. The

8

purpose of these conferences is not to keep relevant information from you, but to

9

decide how certain evidence is to be treated under the rules of evidence and to avoid

10

confusion and error.

11
12

Of course, we [will do] [have done] what we [can] [could] to keep the number

13

and length of these conferences to a minimum. I [may] [did] not always grant an

14

attorney's request for a conference. Do not consider my granting or denying a request

15

for a conference as any indication of my opinion of the case or of what your verdict

16

should be.

17
18
19
20
21
22
23
24
25
26
27
28
-33-

1

JOINT PROPOSED INSTRUCTION NUMBER 16

2

BENCH CONFERENCES AND RECESSES

3
4
5

AUTHORITY:

Instruction No. 1.18, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-34-

1

COURT’S INSTRUCTION NUMBER ___

2

OUTLINE OF TRIAL

3
4

Trials proceed in the following way: First, each side may make an opening

5

statement. An opening statement is not evidence. It is simply an outline to help you

6

understand what that party expects the evidence will show. A party is not required to

7

make an opening statement.

8
9

The plaintiff will then present evidence, and counsel for the defendant may

10

cross-examine. Then the defendant may present evidence, and counsel for the plaintiff

11

may cross-examine.

12
13
14

After the evidence has been presented, I will instruct you on the law that applies
to the case and the attorneys will make closing arguments.

15
16

After that, you will go to the jury room to deliberate on your verdict.

17
18
19
20
21
22
23
24
25
26
27
28
-35-

1

JOINT PROPOSED INSTRUCTION NUMBER 17

2

OUTLINE OF TRIAL

3
4
5

AUTHORITY:

Instruction No. 1.19, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-36-

1

COURT’S INSTRUCTION NUMBER ___

2

STIPULATIONS OF FACT

3
4

The parties have agreed to certain facts [to be placed in evidence as Exhibit __]

5

[that will be read to you]. You should therefore treat these facts as having been

6

proved.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-37-

1

JOINT PROPOSED INSTRUCTION NUMBER 18

2

STIPULATIONS OF FACT

3
4
5

AUTHORITY:

Instruction No. 2.2, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-38-

1

COURT’S INSTRUCTION NUMBER ___

2

IMPEACHMENT EVIDENCE—WITNESS

3
4

The evidence that a witness has been convicted of a crime, or lied under oath on

5

a prior occasion, may be considered, along with all other evidence, in deciding

6

whether or not to believe the witness and how much weight to give to the testimony of

7

the witness and for no other purpose.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-39-

1

JOINT PROPOSED INSTRUCTION NUMBER 19

2

IMPEACHMENT EVIDENCE—WITNESS

3
4
5

AUTHORITY:

Instruction No. 2.8, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-40-

1

COURT’S INSTRUCTION NUMBER ___

2

USE OF INTERROGATORIES OF A PARTY

3
4

Evidence [will now be] [was] presented to you in the form of answers of one of

5

the parties to written interrogatories submitted by the other side. These answers [have

6

been] [were] given in writing and under oath, before the actual trial, in response to

7

questions that were submitted in writing under established court procedures. You

8

should consider the answers, insofar as possible, in the same way as if they were made

9

from the witness stand.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-41-

1

JOINT PROPOSED INSTRUCTION NUMBER 20

2

USE OF INTERROGATORIES OF A PARTY

3
4
5

AUTHORITY:

Instruction No. 2.10, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-42-

1

COURT’S INSTRUCTION NUMBER ___

2

EXPERT OPINION

3
4
5

Some witnesses, because of education or experience, are permitted to state
opinions and the reasons for those opinions.

6
7

Opinion testimony should be judged just like any other testimony. You may

8

accept it or reject it, and give it as much weight as you think it deserves, considering

9

the witness’s education and experience, the reasons given for the opinion, and all the

10

other evidence in the case.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-43-

1

JOINT PROPOSED INSTRUCTION NUMBER 21

2

EXPERT OPINION

3
4
5

AUTHORITY:

Instruction No. 2.11, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-44-

1

COURT’S INSTRUCTION NUMBER ___

2

CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE

3
4

Certain charts and summaries not received in evidence [may be] [have been]

5

shown to you in order to help explain the contents of books, records, documents, or

6

other evidence in the case. They are not themselves evidence or proof of any facts. If

7

they do not correctly reflect the facts or figures shown by the evidence in the case, you

8

should disregard these charts and summaries and determine the facts from the

9

underlying evidence.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-45-

1

JOINT PROPOSED INSTRUCTION NUMBER 22

2

CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE

3
4
5

AUTHORITY:

Instruction No. 2.12, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-46-

1

COURT’S INSTRUCTION NUMBER ___

2

CHARTS AND SUMMARIES IN EVIDENCE

3
4

Certain charts and summaries [may be] [have been] received into evidence to

5

illustrate information brought out in the trial. Charts and summaries are only as good

6

as the underlying evidence that supports them. You should, therefore, give them only

7

such weight as you think the underlying evidence deserves.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-47-

1

JOINT PROPOSED INSTRUCTION NUMBER 23

2

CHARTS AND SUMMARIES IN EVIDENCE

3
4
5

AUTHORITY:

Instruction No. 2.13, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-48-

1

COURT’S INSTRUCTION NUMBER ___

2

EVIDENCE IN ELECTRONIC FORMAT

3
4

Those exhibits capable of being displayed electronically will be provided to you

5

in that form, and you will be able to view them in the jury room. A computer,

6

projector, printer and accessory equipment will be available to you in the jury room.

7
8

A court technician will show you how to operate the computer and other

9

equipment; how to locate and view the exhibits on the computer; and how to print the

10

exhibits. You will also be provided with a paper list of all exhibits received in

11

evidence. (Alternatively, you may request a paper copy of an exhibit received in

12

evidence by sending a note through the [clerk] [bailiff].) If you need additional

13

equipment or supplies, you may make a request by sending a note.

14
15

In the event of any technical problem, or if you have questions about how to

16

operate the computer or other equipment, you may send a note to the [clerk] [bailiff],

17

signed by your foreperson or by one or more members of the jury. Be as brief as

18

possible in describing the problem and do not refer to or discuss any exhibit you were

19

attempting to view.

20
21

If a technical problem or question requires hands-on maintenance or instruction,

22

a court technician may enter the jury room [with [the clerk] [the bailiff] [me] present

23

for the sole purpose of assuring that the only matter that is discussed is the technical

24

problem.] When the court technician or any non-juror is in the jury room, the jury

25

shall not deliberate. No juror may say anything to the court technician or any

26

non-juror other than to describe the technical problem or to seek information about

27

operation of equipment. Do not discuss any exhibit or any aspect of the case.

28
-49-

1

The sole purpose of providing the computer in the jury room is to enable jurors

2

to view the exhibits received in evidence in this case. You may not use the computer

3

for any other purpose. At my direction, technicians have taken steps to make sure that

4

the computer does not permit access to the Internet or to any "outside" website,

5

database, directory, game, or other material. Do not attempt to alter the computer to

6

obtain access to such materials. If you discover that the computer provides or allows

7

access to such materials, you must inform me immediately and refrain from viewing

8

such materials. Do not remove the computer or any electronic data [disk] from the jury

9

room, and do not copy any such data.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-50-

1

JOINT PROPOSED INSTRUCTION NUMBER 24

2

EVIDENCE IN ELECTRONIC FORMAT

3
4
5

AUTHORITY:

Instruction No. 2.14, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-51-

1

COURT’S INSTRUCTION NUMBER ___

2

DUTY TO DELIBERATE

3
4

When you begin your deliberations, you should elect one member of the jury as

5

your presiding juror. That person will preside over the deliberations and speak for you

6

here in court.

7
8
9

You will then discuss the case with your fellow jurors to reach agreement if you
can do so. Your verdict must be unanimous.

10
11

Each of you must decide the case for yourself, but you should do so only after

12

you have considered all of the evidence, discussed it fully with the other jurors, and

13

listened to the views of your fellow jurors.

14
15
16

Do not hesitate to change your opinion if the discussion persuades you that you
should. Do not come to a decision simply because other jurors think it is right.

17
18

It is important that you attempt to reach a unanimous verdict but, of course, only

19

if each of you can do so after having made your own conscientious decision. Do not

20

change an honest belief about the weight and effect of the evidence simply to reach a

21

verdict.

22
23
24
25
26
27
28
-52-

1

JOINT PROPOSED INSTRUCTION NUMBER 25

2

DUTY TO DELIBERATE

3
4
5

AUTHORITY:

Instruction No. 3.1, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-53-

1

COURT’S INSTRUCTION NUMBER ___

2

COMMUNICATION WITH COURT

3
4

If it becomes necessary during your deliberations to communicate with me, you

5

may send a note through the [marshal] [bailiff], signed by your presiding juror or by

6

one or more members of the jury. No member of the jury should ever attempt to

7

communicate with me except by a signed writing; I will communicate with any

8

member of the jury on anything concerning the case only in writing, or here in open

9

court. If you send out a question, I will consult with the parties before answering it,

10

which may take some time. You may continue your deliberations while waiting for the

11

answer to any question. Remember that you are not to tell anyone—including

12

me—how the jury stands, numerically or otherwise, until after you have reached a

13

unanimous verdict or have been discharged. Do not disclose any vote count in any

14

note to the court.

15
16
17
18
19
20
21
22
23
24
25
26
27
28
-54-

1

JOINT PROPOSED INSTRUCTION NUMBER 26

2

COMMUNICATION WITH COURT

3
4
5

AUTHORITY:

Instruction No. 3.2, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-55-

1

COURT’S INSTRUCTION NUMBER ___

2

RETURN OF VERDICT

3
4

A verdict form has been prepared for you. [Any explanation of the verdict form

5

may be given at this time.] After you have reached unanimous agreement on a verdict,

6

your presiding juror will fill in the form that has been given to you, sign and date it,

7

and advise the court that you are ready to return to the courtroom.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-56-

1

JOINT PROPOSED INSTRUCTION NUMBER 27

2

RETURN OF VERDICT

3
4
5

AUTHORITY:

Instruction No. 3.3, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-57-

1

COURT’S INSTRUCTION NUMBER ___

2

PRELIMINARY INSTRUCTION—COPYRIGHT

3
4

The plaintiff, George Clinton, claims ownership of a copyright and seeks

5

damages against the defendants, William Adams, Allan Pineda, Jaime Gomez, Stacy

6

Ferguson, will.i.am music, inc., Tab Magnetic, Inc., and UMG Recordings, Inc., for

7

copyright infringement. The defendants deny infringing the copyright and contend

8

that they had a valid license that authorized them to use the copyrighted work. To help

9

you understand the evidence in this case, I will explain some of the legal terms you

10

will hear during this trial.

11

DEFINITION OF COPYRIGHT

12
13
14

The owner of a copyright has the right to exclude any other person from

15

reproducing, preparing derivative works, distributing, performing, displaying, or using

16

the work covered by copyright for a specific period of time.

17
18

Copyrighted work can be a literary work, musical work, dramatic work,

19

pantomime, choreographic work, pictorial work, graphic work, sculptural work,

20

motion picture, audiovisual work, sound recording, architectural work, mask works

21

fixed in semiconductor chip products, or a computer program.

22
23
24

Facts, ideas, procedures, processes, systems, methods of operation, concepts,
principles or discoveries cannot themselves be copyrighted.

25
26

The copyrighted work must be original. An original work that closely resembles

27

other works can be copyrighted so long as the similarity between the two works is not

28

the result of copying.
-58-

HOW COPYRIGHT IS OBTAINED

1
2

Copyright automatically exists in a work the moment it is fixed in any tangible

3
4

medium of expression. The owner of the copyright may register the copyright by

5

delivering to the Copyright Office of the Library of Congress a copy of the

6

copyrighted work. After examination and a determination that the material deposited

7

constitutes copyrightable subject matter and that legal and formal requirements are

8

satisfied, the Register of Copyrights registers the work and issues a certificate of

9

registration to the copyright owner.

10

PLAINTIFF'S BURDEN OF PROOF

11
12

In this case, the plaintiff, George Clinton, contends that the defendants, William

13
14

Adams, Allan Pineda, Jaime Gomez, Stacy Ferguson, will.i.am music, inc., Tab

15

Magnetic, Inc., and UMG Recordings, Inc., have infringed the plaintiff’s copyright.

16

The plaintiff has the burden of proving by a preponderance of the evidence that the

17

plaintiff is the owner of the copyright and that the defendants copied original elements

18

of the copyrighted work. Preponderance of the evidence means that you must be

19

persuaded by the evidence that it is more probably true than not true that the

20

copyrighted work was infringed.

21

PROOF OF COPYING

22
23

To prove that the defendants copied the plaintiff’s work, the plaintiff may show

24
25

that the defendant had access to the plaintiff’s copyrighted work and that there are

26

substantial similarities between the defendants’ work and the plaintiff’s copyrighted

27

work.

28
-59-

LIABILITY FOR INFRINGEMENT

1
2
3

One who reproduces or prepares derivative works from a copyrighted work

4

without authority from the copyright owner during the term of the copyright, infringes

5

the copyright.

6
7

DEFENSES TO INFRINGEMENT

8
9

The defendants contends that there is no copyright infringement. There is no

10

copyright infringement where the defendants had a valid license that authorized them

11

to use the copyrighted work.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-60-

1

JOINT PROPOSED INSTRUCTION NUMBER 28

2

PRELIMINARY INSTRUCTION—COPYRIGHT

3
4

AUTHORITY:

Instruction No. 17.0, Ninth Circuit Manual of Model Jury

5

Instructions – Civil (Jan. 2012 ed.). Modified to supply names, supply defense, fill in

6

blanks, and remove paragraphs regarding copyright interests and non-direct

7

infringement.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-61-

1

COURT’S INSTRUCTION NUMBER ___

2

COPYRIGHT—DEFINED

3
4
5

Copyright is the exclusive right to copy. This right to copy includes the
exclusive rights to:

6
7
8

(1) authorize, or make additional copies, or otherwise] reproduce the
copyrighted work in phonorecords;

9
10
11

(2) recast, transform, or adapt the work, that is, prepare derivative works based
upon the copyrighted work;

12
13
14

(3) distribute sound recordings of the copyrighted work to the public by sale or
other transfer of ownership, or by rental, lease, or lending;

15
16

(4) perform publicly a copyrighted musical work;

17
18

(5) display publicly a copyrighted musical work; and

19
20

(6) perform a sound recording by means of digital audio transmission.

21
22

It is the owner of a copyright who may exercise these exclusive rights to copy.

23

The term “owner” includes the author of the work, an assignee, or an exclusive

24

licensee. In general, copyright law protects against production, adaptation,

25

distribution, performance, or display of substantially similar copies of the owner’s

26

copyrighted work without the owner’s permission. An owner may enforce these rights

27

to exclude others in an action for copyright infringement.

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-62-

1

JOINT PROPOSED INSTRUCTION NUMBER 29

2

COPYRIGHT—DEFINED

3
4

AUTHORITY:

Instruction No. 17.1, Ninth Circuit Manual of Model Jury

5

Instructions – Civil (Jan. 2012 ed.). Modified to delete references to non-musical

6

audiovisual works, and to remove the final sentence in brackets.

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8
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10
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-63-

1

COURT’S INSTRUCTION NUMBER ___

2

COPYRIGHT INFRINGEMENT—ELEMENTS—

3

OWNERSHIP AND COPYING

4
5
6

Anyone who copies original elements of a copyrighted work during the term of
the copyright without the owner’s permission infringes the copyright.

7
8
9

On the plaintiff’s copyright infringement claim, the plaintiff has the burden of
proving both of the following by a preponderance of the evidence:

10
11

1.

the plaintiff is the owner of a valid copyright; and

2.

the defendants copied original elements from the copyrighted work.

12
13
14
15

If you find that the plaintiff has proved both of these elements, your verdict

16

should be for the plaintiff, unless you also find that the defendants have proved an

17

affirmative defense. If, on the other hand, the plaintiff has failed to prove either of

18

these elements, your verdict should be for the defendant.

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-64-

1

JOINT PROPOSED INSTRUCTION NUMBER 30

2

COPYRIGHT INFRINGEMENT—ELEMENTS—

3

OWNERSHIP AND COPYING

4
5

AUTHORITY:

Instruction No. 17.4, Ninth Circuit Manual of Model Jury

6

Instructions – Civil (Jan. 2012 ed.). Modified to add to the penultimate sentence the

7

language, “unless you also find that the defendants have proved an affirmative

8

defense.”

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10
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-65-

1

COURT’S INSTRUCTION NUMBER ___

2

COPYRIGHT—AFFIRMATIVE DEFENSE—EXPRESS LICENSE

3
4

Someone who is not the owner of the copyright may use the copyrighted work if

5

he or she obtains permission from the copyright owner. This permission is called a

6

license. The existence of a valid license is an affirmative defense to a claim of

7

copyright infringement.

8
9

The defendants contend that they obtained a valid license from the plaintiff for

10

use of the sound recording (Not Just) Knee Deep. The plaintiff disputes the validity of

11

the license. The defendants have the burden of proving this affirmative defense by a

12

preponderance of the evidence.

13
14

If you find that the defendants proved by a preponderance of the evidence that

15

they obtained a valid license for use of the plaintiff’s work, then your verdict should be

16

for the defendants.

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18
19
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-66-

1

JOINT PROPOSED INSTRUCTION NUMBER 31

2

COPYRIGHT—AFFIRMATIVE DEFENSE—EXPRESS LICENSE

3
4

AUTHORITY:

Worldwide Church of God v. Phila. Church of God, Inc., 227

5

F.3d 1110, 1114 (9th Cir. 2000) (“The existence of a license creates an affirmative

6

defense to a claim of copyright infringement.”). Modeled after Instruction Nos. 17.18

7

and 17.19, Ninth Circuit Manual of Model Jury Instructions – Civil (Jan. 2012 ed.).

8
9
10
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12
13
14
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16
17
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-67-

1

COURT’S INSTRUCTION NUMBER ___

2

AGENT AND PRINCIPAL—DEFINITION

3
4

An agent is a person who performs services for another person under an express

5

or implied agreement and who is subject to the other’s control or right to control the

6

manner and means of performing the services. The other person is called a principal

7

One may be an agent without receiving compensation for services. The agency

8

agreement may be oral or written.

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10
11
12
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-68-

1

JOINT PROPOSED INSTRUCTION NUMBER 32

2

AGENT AND PRINCIPAL—DEFINITION

3
4
5

AUTHORITY:

Instruction No. 4.4, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

6
7
8
9
10
11
12
13
14
15
16
17
18
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-69-

1

COURT’S INSTRUCTION NUMBER ___

2

AGENT—SCOPE OF AUTHORITY DEFINED

3
4

An agent is acting within the scope of authority if the agent is engaged in the

5

performance of duties which were expressly or impliedly assigned to the agent by the

6

principal.

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8
9
10
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-70-

1

JOINT PROPOSED INSTRUCTION NUMBER 33

2

AGENT—SCOPE OF AUTHORITY DEFINED

3
4
5

AUTHORITY:

Instruction No. 4.5, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
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-71-

1

COURT’S INSTRUCTION NUMBER ___

2

ACT OF AGENT IS ACT OF PRINCIPAL—

3

SCOPE OF AUTHORITY NOT IN ISSUE

4
5
6

Any act or omission of an agent within the scope of authority is the act or
omission of the principal.

7
8
9
10
11
12
13
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-72-

1

JOINT PROPOSED INSTRUCTION NUMBER 34

2

ACT OF AGENT IS ACT OF PRINCIPAL—

3

SCOPE OF AUTHORITY NOT IN ISSUE

4
5
6

AUTHORITY:

Instruction No. 4.6, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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-73-

1

COURT’S INSTRUCTION NUMBER ___

2

COPYRIGHT INFRINGEMENT—OWNERSHIP OF VALID

3

COPYRIGHT—DEFINITION

4

The plaintiff is the owner of a valid copyright in the sound recording (Not Just)

5
6

Knee Deep if the plaintiff proves by a preponderance of the evidence that:

7

1.

the plaintiff’s work is original;

2.

the plaintiff is the author or creator of the work; and

3.

8

the plaintiff complied with copyright notice requirements by

9
10
11
12
13

placing a copyright notice on publicly distributed copies of the allegedly infringed

14

work.

15
16
17
18
19
20
21
22
23
24
25
26
27
28
-74-

1

JOINT PROPOSED INSTRUCTION NUMBER 35

2

COPYRIGHT INFRINGEMENT—OWNERSHIP OF VALID

3

COPYRIGHT—DEFINITION

4
5

AUTHORITY:

Instruction No. 17.5, Ninth Circuit Manual of Model Jury

6

Instructions – Civil (Jan. 2012 ed.). Modified to select the alternative instruction for

7

works distributed prior to March 1, 1989 for which no exception stated in 17 U.S.C. §

8

405(a)(1), (2), or (3) applies.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
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24
25
26
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-75-

1

COURT’S INSTRUCTION NUMBER ___

2

COPYRIGHT—DAMAGES

3
4

If you find for the plaintiff on the plaintiff's copyright infringement claim, you

5

must determine the plaintiff's damages. The plaintiff is entitled to recover the actual

6

damages suffered as a result of the infringement. In addition, the plaintiff is also

7

entitled to recover from each defendant any profits of that defendant that are

8

attributable to the infringement. The plaintiff must prove damages by a preponderance

9

of the evidence.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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-76-

1

JOINT PROPOSED INSTRUCTION NUMBER 36

2

COPYRIGHT—DAMAGES

3
4

AUTHORITY:

Instruction No. 17.22, Ninth Circuit Manual of Model Jury

5

Instructions – Civil (Jan. 2012 ed.). Modified to refer to the profits of “each”

6

defendant rather than “the” defendant, as there are seven defendants.

7
8
9
10
11
12
13
14
15
16
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18
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20
21
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-77-

1

COURT’S INSTRUCTION NUMBER ___

2

COPYRIGHT—DAMAGES—ACTUAL DAMAGES

3
4

The copyright owner is entitled to recover the actual damages suffered as a

5

result of the infringement. Actual damages means the amount of money adequate to

6

compensate the copyright owner for the reduction of the fair market value of the

7

copyrighted work caused by the infringement. The reduction of the fair market value

8

of the copyrighted work is the amount a willing buyer would have been reasonably

9

required to pay a willing seller at the time of the infringement for the actual use made

10

by the defendants of the plaintiff's work. That amount also could be represented by the

11

lost license fees the plaintiff would have received for the defendants’ unauthorized use

12

of the plaintiff's work.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
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-78-

1

JOINT PROPOSED INSTRUCTION NUMBER 37

2

COPYRIGHT—DAMAGES—ACTUAL DAMAGES

3
4

AUTHORITY:

Instruction No. 17.23, Ninth Circuit Manual of Model Jury

5

Instructions – Civil (Jan. 2012 ed.). Modified only to pluralize references to “the

6

defendant.”

7
8
9
10
11
12
13
14
15
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17
18
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22
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-79-

1

COURT’S INSTRUCTION NUMBER ___

2

COPYRIGHT—DAMAGES—DEFENDANT'S PROFITS

3
4
5

In addition to actual damages, the plaintiff is also entitled to recover from each
defendant any profits of that defendant that are attributable to the infringement.

6
7

For each and every defendant that you find is liable for infringing the plaintiff’s

8

work, you must make a separate determination of that defendant’s illegal profits. Each

9

such defendant is liable only for his or her own illegal profits.

10
11
12

You may not include in an award of profits any amount that you took into
account in determining actual damages.

13
14
15

A defendant's profit is determined by subtracting all expenses from that
defendant's gross revenue.

16
17

A defendant's gross revenue is all of the defendant's receipts from the sale of a

18

work containing or using the copyrighted work. The plaintiff has the burden of

19

proving each defendant's gross revenue by a preponderance of the evidence.

20
21

Expenses are all operating costs, overhead costs, and production costs incurred

22

in producing the defendant's gross revenue. A defendant has the burden of proving his

23

or her expenses by a preponderance of the evidence.

24
25
26

After you have determined a defendant’s profit, you must determine what
portion of that profit, if any, is not attributable to the infringement.

27
28
-80-

1

Unless you find that a portion of the profit from the sale of a work containing or

2

using the copyrighted work is attributable to factors other than use of the copyrighted

3

work, all of the profit is to be attributed to the infringement. The defendant has the

4

burden of proving the portion or percentage of the profit, if any, that is attributable to

5

factors other than infringing the copyrighted work.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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-81-

1

JOINT PROPOSED INSTRUCTION NUMBER 38

2

COPYRIGHT—DAMAGES—DEFENDANT'S PROFITS

3
4

AUTHORITY:

Instruction No. 17.24, Ninth Circuit Manual of Model Jury

5

Instructions – Civil (Jan. 2012 ed.). Modified to refer to the profits of “each”

6

defendant rather than “the” defendant, as there are seven defendants (additions at lines

7

7-9); changed subsequent references from “the” defendant to “a” defendant. Modified

8

to add instruction that the jury determine illegal profits for each defendant. See

9

Comment to Instruction No. 17.24; Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc.,

10

772 F.2d 505, 519 (9th Cir. 1985). Modified to delete sentence regarding “causal

11

relationship” or “nexus,” as that relates to a theory of “indirect profits” that is not at

12

issue here. Modified to more clearly and accurately state the jury’s obligation to

13

determine whether portions of a defendant’s profits are not attributable to the

14

infringement (additions at lines 25-26).

15
16
17
18
19
20
21
22
23
24
25
26
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28
-82-

1

COURT’S INSTRUCTION NUMBER ___

2

COPYRIGHT—DAMAGES—

3

DEFENDANT’S PROFITS–APPORTIONMENT FACTORS

4
5
6

In determining the portion of a defendant’s profits that is attributable to factors
other than use of the copyrighted work, you may consider the following factors:

7
8

•

the popularity of the infringing song as compared with the popularity of
the other songs on the same album;

9
10
11

•

the popularity, fame, notoriety, talent, or celebrity of the defendants;

•

the creativity of the defendants in creating the infringing work.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
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-83-

1

JOINT PROPOSED INSTRUCTION NUMBER 39

2

COPYRIGHT—DAMAGES—

3

DEFENDANT’S PROFITS–APPORTIONMENT FACTORS

4
5

AUTHORITY:

Caffey v. Cook, 409 F. Supp. 2d 484, 506-07 (S.D.N.Y.

6

2006) (factors for apportionment include “defendants’ own notoriety” and “the

7

outstanding performances, talent and drawing power of defendants”); ABKCO Music,

8

Inc. v. Harrisongs Music, Ltd., 508 F. Supp. 798, 800 (S.D.N.Y. 1981) (“[a] hit song

9

contributes more to the sale of a record than does a less popular song”); 20th Century

10

Fox Film Corp. v. Stonesifer, 140 F.2d 579, 584 (9th Cir. 1944) (“It is now settled that

11

where a portion of the profits of an infringing work is attributable to the appropriated

12

work, to avoid an unjust course by giving the originator all profits where the infringer's

13

labor and artistry have also to an extent contributed to the ultimate result, there may be

14

a reasonable approximation and apportionment by the court of the profits derived

15

therefrom”).

16
17
18
19
20
21
22
23
24
25
26
27
28
-84-

1

COURT’S INSTRUCTION NUMBER ___

2

COPYRIGHT—DAMAGES–THREE YEAR LIMITATION

3
4

If you award the plaintiff any damages, you may not award damages that

5

occurred more than three years before the filing of this lawsuit. This lawsuit was filed

6

on December 10, 2010, so you may not award damages that occurred prior to

7

December 10, 2007.

8
9
10
11
12
13
14
15
16
17
18
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20
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-85-

1

JOINT PROPOSED INSTRUCTION NUMBER 40

2

COPYRIGHT—DAMAGES–THREE YEAR LIMITATION

3

AUTHORITY:

4

17 U.S.C. § 507(b); Polar Bear Prods., Inc. v. Timex Corp.,

5

384 F.3d 700, 705-07 (9th Cir. 2004); Roley v. New World Pictures, Ltd., 19 F.3d 479,

6

481 (9th Cir. 1994); see also Los Angeles News Serv. v. Reuters Television Int’l, Ltd.,

7

149 F.3d 987, 992 (9th Cir. 1998) (“[a] plaintiff’s right to damages is limited to those

8

suffered during the statutory period for bringing claims”); 3 Nimmer on Copyright §

9

12.05[B], 12-132-133 (2004) (“The prevailing view is . . . that the statute of limitations

10

bars recovery on any damage claim that accrued over three years prior to filing of

11

suit”).

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-86-

1

COURT’S INSTRUCTION NUMBER ___

2

COPYRIGHT—DAMAGES—STATUTORY DAMAGES

3
4

If you find for the plaintiff on the plaintiff’s copyright infringement claim, you

5

must determine the plaintiff’s damages. The plaintiff may seek a statutory damage

6

award, established by Congress for the work infringed. Its purpose is to penalize the

7

infringer and deter future violations of the copyright laws.

8
9
10

The amount you may award as statutory damages is not less than $750, nor more
than $30,000 for each work you conclude was infringed.

11
12
13

However, if you find the infringement was innocent, you may award as little as
$200 for each work innocently infringed.

14
15
16

However, if you find the infringement was willful, you may award as much as
$150,000 for each work willfully infringed.

17
18
19

Instructions ___ and ___ will tell you what constitutes innocent infringement
and what constitutes willful infringement.

20
21
22
23
24
25
26
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-87-

1

JOINT PROPOSED INSTRUCTION NUMBER 41

2

COPYRIGHT—DAMAGES—STATUTORY DAMAGES

3
4

AUTHORITY:

Instruction No. 17.25, Ninth Circuit Manual of Model Jury

5

Instructions – Civil (Jan. 2012 ed.). Modified at line 5 to clarify that the plaintiff

6

“may” seek an award of statutory damages, as the plaintiff may elect statutory damages

7

after the case is submitted to the jury.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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-88-

1

COURT’S INSTRUCTION NUMBER ___

2

COPYRIGHT—DAMAGES—INNOCENT INFRINGEMENT

3
4
5

An infringement is considered innocent when the defendant has proved both of
the following elements by a preponderance of the evidence:

6
7
8

1.

the defendant was not aware that his or her acts constituted infringement

of the copyright; and

9
10
11

2.

the defendant had no reason to believe that his or her acts constituted an

infringement of the copyright.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-89-

1

JOINT PROPOSED INSTRUCTION NUMBER 42

2

COPYRIGHT—DAMAGES—INNOCENT INFRINGEMENT

3
4
5

AUTHORITY:

Instruction No. 17.26, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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-90-

1

COURT’S INSTRUCTION NUMBER ___

2

COPYRIGHT—DAMAGES—WILLFUL INFRINGEMENT

3
4
5

An infringement is considered willful when the plaintiff has proved both of the
following elements by a preponderance of the evidence:

6
7

1.

the defendant engaged in acts that infringed the copyright; and

2.

the defendant knew that those acts infringed the copyright.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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-91-

1

JOINT PROPOSED INSTRUCTION NUMBER 43

2

COPYRIGHT—DAMAGES—WILLFUL INFRINGEMENT

3
4
5

AUTHORITY:

Instruction No. 17.27, Ninth Circuit Manual of Model Jury

Instructions – Civil (Jan. 2012 ed.). Unmodified.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-92-