Lorenzo Pryor et al v. Warner/Chappell Music Inc et al

Filing 32

ORDER re: Defendants Warner/Chappell Music, Inc. and T-Boy Music, LLC's Motion to Dismiss the Complaint 19 by Judge Ronald S.W. Lew: The Court hereby GRANTS Defendants' Motion to Dismiss the Complaint. Plaintiffs' second claim for contributory copyright infringement is DISMISSED with 20 days leave to amend. Plaintiffs' third claim for breach of express contract is DISMISSED without leave to amend. SEE ORDER FOR COMPLETE DETAILS. (jre)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 Lorenzo Pryor et al., 12 13 14 15 16 17 18 19 20 ) ) Plaintiffs, ) ) ) v. ) ) Warner/Chappell Music, Inc. ) et al., ) ) ) ) Defendants. ) ) ) ) ) CV 13-4344 RSWL (AJWx) ORDER re: Defendants Warner/Chappell Music, Inc. and T-Boy Music, LLC’s Motion to Dismiss the Complaint [19] Currently before the Court is Defendants 21 Warner/Chappell Music, Inc. and T-Boy Music, LLC’s 22 Motion to Dismiss the Complaint [19]. Plaintiffs 23 Lorenzo Pryor, Trena Steward, and Karla Ray 24 (collectively, “Plaintiffs”) filed their Opposition on 25 December 17, 2013 [24]. Defendants Warner/Chappell 26 Music, Inc. and T-Boy Music, LLC filed a Reply on 27 December 24, 2013 [27]. This matter was taken under 28 submission on January 2, 2014 [31]. 1 Having reviewed 1 all papers submitted pertaining to the Motion, and 2 having considered all arguments presented to the Court, 3 the Court NOW FINDS AND RULES AS FOLLOWS: 4 Defendants Warner/Chappell Music, Inc. and T-Boy 5 Music, LLC’s Motion to Dismiss is hereby GRANTED. 6 7 I. Background Plaintiffs are children of the deceased David 8 Pryor, of the music group Thunder & Lightning. 9 Amended Compl. (“TAC”) ¶¶ 4-6. Third Each of the Plaintiffs 10 has an ownership interest in the song entitled “Bumpin’ 11 Bus Stop,” which was written by David Pryor. 12 Id. Defendant Erik Francis Schrody a/k/a Everlast 13 (“Everlast”) is an American singer and songwriter; he 14 is the front-man for the rap group House of Pain. 15 at ¶ 7. Id. Defendant Warner Bros. Records, Inc. (“WB 16 Records”) is an American record company engaged in the 17 business of manufacturing, selling, and distributing 18 musical recordings. Id. Defendant WB Records is owned 19 by its parent company, Warner Music Group (“WMG”). 20 Defendant Warner Bros. Entertainment, Inc. (“WB 21 Entertainment”) is a multi-media entertainment company 22 that owns a television production division known as 23 Warner Bros. Television, which creates and produces 24 television content for various networks. Id. 25 Defendant Warner/Chappell Music, Inc. 26 (“Warner/Chappell”) is an American music publisher 27 owned and operated by its parent company WMG. Id. 28 Defendant Rhino Entertainment Company (“Rhino”) is an 2 1 American record company owned by WMG. Defendant WEA 2 International, Inc. (“WEA”) ships and distributes WMG 3 and Rhino affiliated musical recordings 4 internationally. Id. Defendant T-Boy Music, LLC (“TB 5 Music”) is an American music publishing company that 6 publishes, produces, and distributes music. 7 Id. Plaintiffs are the heirs of David Pryor, who wrote 8 the musical composition entitled “Bumpin’ Bus Stop.” 9 Id. at ¶ 9. David Pryor also produced and recorded the 10 fixed sound recording for “Bumpin’ Bus Stop.” Id. 11 After he wrote the composition for “Bumpin’ Bus Stop,” 12 David Pryor rented studio time, space, and equipment 13 from Gold Future Recording Studio in Kirkwood, 14 Missouri. Id. at ¶¶ 10-11. That recording session 15 with David Pryor and his band, the Play Boys, resulted 16 in a recording bearing the Gold Future label and 17 artwork. Id. at ¶ 11. On the A-Side of the Gold 18 Future record, David Pryor says “Hey Gang, let me show 19 you something! 20 way to the top! It’s the hottest thing and it’s on its Step up front . . . you dig! 21 with the Bus Stop!” Id. at ¶ 12. Get down In 1974, after the 22 Gold Future record was fully mixed and complete, David 23 Pryor had a copyright notice stamped on his record 24 while he and his band members promoted and distributed 25 the record. 26 Id. at ¶ 13. In 1975, after David Pryor presented his Gold 27 Future record to Private Stock Records, Private Stock 28 Records used its equipment to enhance the mix and sound 3 1 quality of the original recording for “Bumpin’ Bus 2 Stop.” Id. at ¶ 14. Private Stock Records changed the 3 name of David Pryor’s band to “Thunder & Lightning,” 4 changed the record title’s spelling, and changed the 5 record’s artwork. 6 Id. Private Stock Record’s music publisher, Caesar’s 7 Music Library (“Caesar’s Music”), federally registered 8 the composition to “Bumpin’ Bus Stop” in January 1975 9 (Reg. No. Eu563138 and Eu563139). Id. at ¶ 15. The 10 registrations misattribute authorship and omit that the 11 work was based on David Pryor’s preexisting 1974 work. 12 Id. 13 David Pryor did not give Caesar’s Music an 14 assignment of rights or an exclusive license to the 15 composition or record for “Bumpin’ Bus Stop.” 16 16. Id. at ¶ David Pryor likewise did not grant Caesar’s Music 17 an assignment or transfer of his renewal rights in the 18 composition or record for “Bumpin’ Bus Stop.” Id. 19 Private Stock Records obtained a compulsory license to 20 distribute the record of “Bumpin’ Bus Stop.” 21 David Pryor died on May 14, 2006. Id. Id. at ¶ 18. 22 David Pryor did not discover any of the alleged acts of 23 infringement by the Defendants during his lifetime. 24 Id. at ¶ 19. On June 16, 2011, the Probate Division of 25 the Circuit Court of St. Louis County, Missouri, 26 entered a Judgment Determining Heirs, granting 27 ownership rights in the recording and composition of 28 “Bumpin’ Bus Stop” to Trena Steward, Lorenzo Pryor, 4 1 Karla Ray, Sheila Hines, and Margaret Pryor. Id. at ¶ 2 20, Ex. 3. 3 After the entry of the Judgment Determining Heirs, 4 Plaintiffs demanded that Private Stock Records and 5 Caesar’s Music either furnish proof of any claim of 6 ownership or correct the inaccurate copyright 7 registrations. Id. at ¶ 22. On August 16, 2011, 8 Caesar’s Music assigned to Plaintiffs any and all of 9 its purported rights in and to “Bumpin’ Bus Stop” in 10 exchange for a release of claims made by Plaintiffs. 11 Id. On October 16, 2012, Private Stock Records did the 12 same. 13 Id. Plaintiffs’ composition and recording rights are 14 the subject of Copyright Registration Nos. V3612D942 15 and V3613D044. 16 Id. at ¶ 23. Plaintiffs discovered that Caesar’s Music entered 17 into a sample agreement, dated June 16, 1998, with 18 Defendant TB Music to sample and create derivative 19 works based on the composition for “Bumpin’ Bus Stop.” 20 Id. at ¶ 25. Plaintiffs allege that Caesar’s Music was 21 not authorized to consent to the making of derivative 22 works based on the composition for “Bumpin’ Bus Stop.” 23 Id. Plaintiffs further allege that Defendant TB Music 24 gave unauthorized permission to Defendants WB 25 Entertainment, Rhino, WEA, Warner/Chappell, and WB 26 Records to use, exploit, and distribute a sample of the 27 composition and record to “Bumpin’ Bus Stop” by 28 releasing a record entitled “Get Down.” 5 Id. “Get 1 Down” allegedly features Defendant Everlast and bears 2 the copyright registration No. PA 917-380. Id. “Get 3 Down” allegedly infringes on Plaintiffs’ copyright by 4 repeatedly sampling David Pryor’s voice from the sound 5 recording of “Bumpin’ Bus Stop.” 6 Id. at ¶ 31. On May 1, 2012, Plaintiffs submitted a completed 7 application for a separate copyright registration for 8 the recording David Pryor made at Gold Future and 9 published in 1974. 10 Id. at ¶ 27. Plaintiffs filed their initial Complaint on June 11 17, 2013 [1]. On June 20, 2013, they filed their First 12 Amended Complaint [6]. On October 4, 2013, the 13 Plaintiffs filed a Second Amended Complaint [12]. 14 Finally, on November 18, 2013, the Plaintiffs filed the 15 operative Third Amended Complaint [16]. In their TAC, 16 Plaintiffs bring: (1) a claim for copyright 17 infringement of the sound recording to “Bumpin’ Bus 18 Stop” against Defendants WB Entertainment, WB Records, 19 WEA, and Rhino arising from their manufacture and 20 distribution of Defendant Everlast’s “Get Down” (TAC ¶¶ 21 29-47); (2) contributory copyright infringement against 22 Defendant TB Music (Id. at ¶¶ 48-52); (3) breach of an 23 express contract against Defendant TB Music (Id. at ¶¶ 24 53-62); and (4) copyright infringement against 25 Defendant WB Entertainment for allegedly creating an 26 infringing musical recording in the opening theme song 27 for the sitcom “Joey” (Id. at ¶¶ 63-71). 28 Defendants TB Music and Warner/Chappell filed the 6 1 Instant Motion to Dismiss on December 9, 2013 [19]. 2 Plaintiffs voluntarily dismissed Defendant 3 Warner/Chappell on December 18, 2013 [26]. 4 II. Legal Standard 5 A. Motion to Dismiss Pursuant to Rule 12(b)(6) 6 Federal Rule of Civil Procedure 12(b)(6) allows a 7 party to move for dismissal of one or more claims if 8 the pleading fails to state a claim upon which relief 9 can be granted. Dismissal can be based on a lack of 10 cognizable legal theory or lack of sufficient facts 11 alleged under a cognizable legal theory. Balistreri v. 12 Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 13 1990). However, a party is not required to state the 14 legal basis for its claim, only the facts underlying 15 it. McCalden v. Cal. Library Ass'n, 955 F.2d 1214, 16 1223 (9th Cir. 1990). In a Rule 12(b)(6) motion to 17 dismiss, a court must presume all factual allegations 18 of the complaint to be true and draw all reasonable 19 inferences in favor of the non-moving party. Klarfeld 20 v. United States, 944 F.2d 583, 585 (9th Cir. 1991). 21 The question presented by a motion to dismiss is 22 not whether the plaintiff will prevail in the action, 23 but whether the plaintiff is entitled to offer evidence 24 in support of its claim. 25 534 U.S. 506, 511 (2002). Swierkiewica v. Sorema N.A., “While a complaint attacked 26 by a Rule 12(b)(6) motion to dismiss does not need 27 detailed factual allegations, a plaintiff’s obligation 28 to provide the ‘grounds’ of his ‘entitle[ment] to 7 1 relief’ requires more than labels and conclusions, and 2 a formulaic recitation of a cause of action’s elements 3 will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 4 544, 555 (2007) (internal citation omitted). Although 5 specific facts are not necessary if the complaint gives 6 the defendant fair notice of the claim and the grounds 7 upon which the claim rests, a complaint must 8 nevertheless “contain sufficient factual matter, 9 accepted as true, to state a claim to relief that is 10 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 11 662, 678 (2009) (internal quotation marks omitted). 12 If dismissed, a court must then decide whether to 13 grant leave to amend. The Ninth Circuit has repeatedly 14 held that a district court should grant leave to amend 15 even if no request to amend the pleadings was made, 16 unless it determines that the pleading could not 17 possibly be cured by the allegation of other facts. 18 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 19 III. Discussion 20 A. Request for Judicial Notice 21 Plaintiffs include a Request for Judicial Notice 22 with their Opposition. Dkt. #25. Plaintiffs request 23 that this Court take judicial notice of: (1) Defendant 24 TB Music’s copyright registration for the composition 25 “Get Down;” and (2) a copy of the 1998 sample agreement 26 between Defendant TB Music and Caesar’s Music. 27 Id. Under the incorporation by reference doctrine, the 28 Court may “take into account documents ‘whose contents 8 1 are alleged in a complaint and whose authenticity no 2 party questions, but which are not physically attached 3 to the [plaintiff’s] pleading.’” Knievel v. ESPN, 393 4 F.3d 1068, 1076 (9th Cir. 2005) (quoting In re Silicon 5 Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 6 1999)); see also Lee v. City of Los Angeles, 250 F.3d 7 668, 688 (9th Cir. 2001). 8 The TAC explicitly references both the sample 9 agreement and Defendant TB Music’s copyright 10 registration. See Compl. ¶ 25. “Copyright 11 certificates are the type of documents that the court 12 may judicially notice under Rule 201(b)(2).” Warren v. 13 Fox Family Worldwide, Inc., 171 F. Supp. 2d 1057, 1062 14 (C.D. Cal. 2001) (citing Oroamerica Inc. v. D & W 15 Jewelry Co., Inc., 10 F. App’x 516, 517 n.4 (9th Cir. 16 2001); Metro Publ’g, Ltd. v. San Jose Mercury News, 987 17 F.2d 637 (9th Cir. 1993)). As such, the Court takes 18 judicial notice of the copyright registration. 19 Additionally, Defendant TB Music does not appear to 20 dispute the authenticity of the 1998 sample agreement, 21 especially as it relies on the document in making one 22 of its arguments. See Reply 12:1-8. Such licenses may 23 be subject to judicial notice if they are necessarily 24 relied upon in a complaint and their authenticity is 25 not disputed. See Beijing Zhongyi Zhongbiao Elec. 26 Info. Tech. Co. Ltd. v. Microsoft Corp., C13-1300-MJP, 27 203 WL 6979555, at *3 (W.D. Wash. Oct. 31, 2013) 28 (citing Knievel, 393 F.3d at 1076). 9 Consequently, the 1 Court also takes judicial notice of the 1998 sample 2 agreement. 3 B. Contributory Copyright Infringement 4 “Contributory copyright infringement is a form of 5 secondary liability with roots in the tort-law concepts 6 of enterprise liability and imputed intent.” Perfect 7 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 7948 95 (9th Cir. 2007) (citing Fonovisa, Inc. v. Cherry 9 Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996); 10 Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th 11 Cir. 2007)). In the Ninth Circuit, “a defendant is a 12 contributory infringer if it (1) has knowledge of a 13 third party’s infringing activity, and (2) ‘induces, 14 causes, or materially contributes to the infringing 15 conduct.’” Id. at 795 (quoting Ellison v. Robertson, 16 357 F.3d 1072, 1076 (9th Cir. 2004)). Put another way, 17 “one contributorily infringes when he (1) has knowledge 18 of another’s infringement and (2) either (a) materially 19 contributes to or (b) induces that infringement.” 20 1. 21 Id. Defendant TB Music argues that Plaintiffs’ Knowledge 22 allegation that Defendant TB Music knew that Caesar’s 23 Music did not have authority to issue the 1998 license 24 of rights in the “Bumpin’ Bus Stop” musical composition 25 is contradicted by their allegation that Caesar’s Music 26 had been the registered owner of the “Bumpin’ Bus Stop” 27 composition copyright since 1974. 28 8:10-16. 10 Mot. 9:1-8; Reply 1 “A copyright registration ‘is prima facie evidence 2 of the validity of the copyright and the facts stated 3 in the certificate.’” United Fabrics Int’l, Inc. v. 4 C&J Wear, Inc., 630 F.3d 1255, 1257 (9th Cir. 2011) 5 (quoting 17 U.S.C. § 410(c); citing S.O.S., Inc. v. 6 Payday, Inc., 886 F.2d 1081, 1085 (9th Cir. 1989)). In 7 this sense, Defendant TB Music was entitled to rely 8 upon Caesar Music’s registration of “Bumpin’ Bus Stop” 9 in initially licensing it. 10 Yet simply because Defendant TB Music’s initial 11 licensing of “Bumpin’ Bus Stop” may have been without 12 knowledge of Caesar’s Music’s unauthorized registration 13 does not mean that Defendant TB Music’s subsequent 14 licensing of “Get Down” was made without knowledge of 15 Defendants WB Records, WB Entertainment, WEA, and 16 Rhino’s infringement. 17 Defendant TB Music next argues that Plaintiffs’ 18 claim is implausible because Defendant TB Music, as a 19 music publisher, could not have knowingly licensed the 20 use of the “Bumpin’ Bus Stop” sound recording. 21 There is a distinction in the Copyright Act between 22 musical compositions and sound recordings. See 23 Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 24 792, 796 n.3 (6th Cir. 2005) (“Sound recordings and 25 their underlying musical compositions are separate 26 works with their own distinct copyrights”); Palladium 27 Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1197 28 n.3 (10th Cir. 2005) (“Sound recordings and their 11 1 underlying musical compositions are separate works with 2 their own distinct copyrights”); In re Cellco P’ship, 3 663 F. Supp. 2d 363, 368 (S.D.N.Y. 2009) (“there are 4 separate bundles of rights in a musical composition and 5 in its embodiment in a sound recording”); Fharmacy 6 Records v. Nassar, 248 F.R.D. 507, 527 (E.D. Mich. 7 2008); Newton v. Diamond, 204 F. Supp. 2d 1244, 1249 8 (C.D. Cal. 2002); 17 U.S.C. § 102(a)(2), (7). 9 “A musical composition captures an artist’s music 10 in written form. A musical composition’s copyright 11 protects the generic sound that would necessarily 12 result from any performance of the piece.” 13 F. Supp. 2d at 1249 (citations omitted). Newton, 204 In contrast, 14 “the sound recording is the sound produced by the 15 performer’s rendition of the musical work.” Id. at 16 1249-50 (citation omitted). 17 Finally, the Copyright Act defines a “music 18 publisher” as “a person that is authorized to license 19 the reproduction of a particular musical work in a 20 sound recording.” 17 U.S.C. § 1001(9). Such a 21 definition suggest that a musical publisher only 22 licenses musical works, or musical compositions. But 23 this definition applies only in the context of Chapter 24 10 of the Copyright Act, covering Digital Audio 25 Recording Devices and Media. 17 U.S.C. § 1001 (“As 26 used in this chapter, the following terms have the 27 following meanings”) (emphasis added). This definition 28 therefore has no bearing on Plaintiffs’ allegation that 12 1 Defendant TB Music is a music publisher. In other 2 words, even if Defendant TB Music is a music publisher, 3 it could still plausibly have licensed sound recordings 4 to the directly infringing Defendants. 5 Nevertheless, the Court still finds that Plaintiffs 6 have failed to sufficiently allege Defendant TB Music’s 7 knowledge of direct infringement by third parties. 8 “Contributory liability requires that the secondary 9 infringer ‘know or have reason to know’ of direct 10 infringement.” A&M Records, Inc. v. Napster, Inc., 239 11 F.3d 1004, 1020 (9th Cir. 2001) (quoting Cable/Home 12 Commc’n Corp. v. Network Prods., Inc., 902 F.2d 829, 13 845-46 n.29 (11th Cir. 1990); Religious Tech. Ctr. v. 14 Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 15 1373-74 (N.D. Cal. 1995)). Moreover, to establish 16 liability for contributory copyright infringement, 17 Plaintiffs must allege “more than a generalized 18 knowledge by the [Defendant] of the possibility of 19 infringement.” Luvdarts, LLC v. AT&T Mobility, LLC, 20 710 F.3d 1068, 1072 (9th Cir. 2013). In short, so long 21 as Defendant TB Music knew that “Get Down” contained an 22 unauthorized sample of the “Bumpin’ Bus Stop” sound 23 recording and that the other Defendants’ distribution 24 of “Get Down” would infringe on that sound recording, 25 Defendant TB Music would have the requisite knowledge 26 for contributory copyright infringement. 27 Plaintiffs have alleged that Defendant TB Music 28 somehow knew that Caesar’s Music was not authorized to 13 1 register the “Bumpin’ Bus Stop” musical composition 2 copyright. TAC ¶ 51. Plaintiffs also allege that 3 “‘Get Down’ samples the recorded voice of David Pryor, 4 exclaiming ‘Get Down.’” TAC ¶ 31. Plaintiffs then 5 allege that Defendant TB Music licensed “Get Down” to 6 third parties. Id. at ¶ 51. Finally, Plaintiffs 7 allege that the other Defendants infringed on 8 Plaintiffs’ copyright by incorporating the infringing 9 vocal sample into “Get Down” and distributing that 10 song. 11 Id. at ¶ 32. Crucially, what Plaintiffs fail to allege is how 12 Defendant TB Music knew or had reason to know that “Get 13 Down” included an unauthorized, infringing sample of 14 the “Bumpin’ Bus Stop” sound recording. Moreover, 15 Plaintiffs fail to plausibly allege how Defendant TB 16 Music knew that the directly infringing Defendants 17 Defendants WB Entertainment, WB Records, WEA, and Rhino 18 - would infringe as a result of Defendant TB Music’s 19 licensing of “Get Down.” For this reason, the Court 20 GRANTS Defendant TB Music’s Motion to Dismiss 21 Plaintiffs’ contributory copyright infringement claim. 22 However, the Court finds that Plaintiffs could still 23 cure their claim by alleging additional facts. 24 Accordingly, the Court DISMISSES Plaintiffs’ second 25 claim with leave to amend. 26 C. Breach of Express Contract 27 Defendant TB Music argues that Plaintiffs’ breach 28 of contract claim fails for three reasons: (1) 14 1 Plaintiffs allege that the “Bumpin’ Bus Stop” musical 2 composition was not used (Reply 9:20-11:15); (2) the 3 “Get Down” copyright registration only creates a 4 rebuttable presumption that “Bumpin’ Bus Stop” musical 5 composition was used (Reply 11:16-24); and (3) the 1998 6 license clearly shows that Plaintiffs are not entitled 7 to any royalties (Reply 11:25-12:10). 8 The Court need not address the first two arguments 9 because the third is dispositive. Plaintiffs allege 10 that they retained the right “to collect performance 11 royalties through ASCAP or BMI for the use of the” 12 “Bumpin’ Bus Stop” composition. TAC ¶ 56. However, 13 the 1998 license states that Defendant TB Music was to 14 pay “a non-returnable buyout fee” of $1,750 “for all 15 rights for the use of the” “Bumpin’ Bus Stop” musical 16 composition. Request for Judicial Notice, Ex. 2. 17 While the terms of the license do state that Defendant 18 TB Music was to register “Get Down” “with a performing 19 rights organization” such as ASCAP or BMI, such 20 registration was to be “in accordance with the terms of 21 the agreement and the information attached herein as 22 Exhibit A.” Id. Neither the language of the agreement 23 nor Exhibit A specifies that Caesar’s Music is entitled 24 to royalties. As the license “sets forth the entire 25 understanding between the parties,” Plaintiffs are not 26 entitled to any payments or royalties from Defendant TB 27 Music for its use of the “Bumpin’ Bus Stop” musical 28 composition. Id. 15 1 As such, the plain language of the license 2 undermines Plaintiffs’ breach of contract claim because 3 it establishes that Defendant TB Music was not 4 obligated to provide any more payments with respect to 5 the license, even after registering “Get Down” with a 6 performance rights organization. Accordingly, the 7 Court GRANTS Defendant TB Music’s Motion to Dismiss 8 Plaintiffs’ breach of contract claim. Furthermore, the 9 Court finds that Plaintiffs cannot cure the claim by 10 pleading additional facts as doing so would contradict 11 the terms of the license. Accordingly, the Court 12 DISMISSES Plaintiffs’ third claim without leave to 13 amend. 14 15 IV. Conclusion For the foregoing reasons, the Court hereby GRANTS 16 Defendants’ Motion to Dismiss the Complaint [19]. 17 Plaintiffs’ second claim for contributory copyright 18 infringement is DISMISSED with 20 days leave to amend. 19 Plaintiffs’ third claim for breach of express contract 20 is DISMISSED without leave to amend. 21 22 IT IS SO ORDERED. 23 DATED: February 20, 2014 24 25 26 HONORABLE RONALD S.W. LEW Senior, U.S. District Court Judge 27 28 16

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