Marcus Gray et al v. Katy Perry et al
Filing
314
MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: RE:DEFENDANTS MOTION FOR RECONSIDERATION OF DENIAL OF MOTION FOR SUMMARY JUDGMENT 302 . The Court finds this motion appropriate for decision without oral argument. Accordingly, the hearing date of October 15, 2018 is vacated, and the matter is hereby taken under submission. Consistent with the Courts findings and conclusions above, defendants motion for reconsideration is DENIED. (lc). Modified on 10/17/2018 .(lc).
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
2:15-cv-05642-CAS (JCx)
Title
MARCUS GRAY ET AL. V. KATY PERRY ET AL.
Present: The Honorable
Date
‘O’
October 17, 2018
CHRISTINA A. SNYDER
Catherine Jeang
Not Present
N/A
Deputy Clerk
Court Reporter / Recorder
Tape No.
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants:
Not Present
Not Present
Proceedings:
(IN CHAMBERS) - DEFENDANTS’ MOTION FOR
RECONSIDERATION OF DENIAL OF MOTION FOR
SUMMARY JUDGMENT (Dkt. 302, filed September 11, 2018)
The Court finds this motion appropriate for decision without oral argument. See
Fed. R. Civ. P. 78; C.D. Cal. L.R. 7–15. Accordingly, the hearing date of October 15,
2018 is vacated, and the matter is hereby taken under submission.
I.
INTRODUCTION
On July 1, 2014, Marcus Gray (P.K.A. Flame), Lecrae Moore (P.K.A. Lecrae),
Emanuel Lambert, and Chike Ojukwu filed this action alleging that the song “Dark
Horse” infringes upon plaintiffs’ copyright in the song “Joyful Noise.” Dkt. 1. Since
then, plaintiffs have amended their pleadings to add or dismiss various parties. The
operative Third Amended Complaint (“TAC”), filed on November 1, 2016, no longer
lists Moore as a plaintiff and alleges copyright infringement by Katheryn Elizabeth
Hudson (P.K.A. Katy Perry, hereinafter “Perry”); Jordan Houston (P.K.A. Juicy J);
Lukasz Gottwald (P.K.A. Dr. Luke); Sarah Theresa Hudson; Karl Martin Sandberg
(P.K.A. Max Martin); Henry Russell Walter (P.K.A. Cirkut); Kasz Money, Inc.; Capitol
Records, LLC; Kitty Purry, Inc.; UMG Recordings, Inc.; Universal Music Group, Inc.;
WB Music Corp.; BMG Rights Management (US) LLC; and Kobalt Music Publishing
America, Inc. Dkt. 172.
On June 25, 2018, defendants filed a motion for summary judgment. Dkt. 274
(“MSJ”). On August 13, 2018, the Court denied defendants’ motion for summary
judgment. Dkt. 299 (“Order”).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Date
‘O’
Case No.
2:15-cv-05642-CAS (JCx)
October 17, 2018
Title
MARCUS GRAY ET AL. V. KATY PERRY ET AL.
On September 11, 2018, Gottwald, Houston, Hudson, Sandberg, Walter, Capitol
Records, Kasz Money, Kobalt Music Publishing America, UMG Recordings, Universal
Musical Group, and WB Music filed the instant motion for reconsideration pursuant to
Rule 60(b) of the Federal Rules of Civil Procedure and Local Rule 7–18. Dkt. 302
(“Mot.”). On September 12, 2018, Perry and Kitty Purry filed a joinder to the motion for
reconsideration. Dkt. 303. On September 24, 2018, plaintiffs filed an opposition. Dkt.
304. Defendants filed a reply on October 1, 2018. Dkt. 307 (“Reply”).
Having carefully considered the parties’ arguments, the Court finds and concludes
as follows.
II.
LEGAL STANDARD
Under Rule 60(b), the Court may relieve a party from a final judgment or order for
the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence; (3) fraud or other misconduct; (4) a void judgment; (5) a satisfied or
discharged judgment; or (6) any other reason that justifies relief. Fed. R. Civ. P. 60(b).
Rule 60(b)(1) permits a court to correct its own inadvertence, mistakes of fact . . . or
mistakes of law. However, a Rule 60(b)(1) reconsideration motion should not merely
present arguments previously raised, or which could have been raised in the original
briefs. A party seeking reconsideration under Rule 60(b)(6), the “catch-all” provision,
must show “extraordinary circumstances justifying the reopening of a final judgment.”
Hall v. Haws, 861 F.3d 977, 987 (9th Cir. 2017) (citation omitted).
In addition, “[i]n this district, motions for reconsideration are governed by Local
Rule 7–18,” Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc., 568 F. Supp. 2d
1152, 1162 (C.D. Cal. 2008), which states: “[a] motion for reconsideration of the decision
on any motion may be made only on the grounds of (a) a material difference in fact or
law from that presented to the Court before such decision that in the exercise of
reasonable diligence could not have been known to the party moving for reconsideration
at the time of such decision, or (b) the emergence of new material facts or a change of
law occurring after the time of such decision, or (c) a manifest showing of a failure to
consider material facts presented to the Court before such decision. No motion for
reconsideration shall in any manner repeat any oral or written argument made in support
of or in opposition to the original motion.” C.D. Cal. L.R. 7–18.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
2:15-cv-05642-CAS (JCx)
Title
MARCUS GRAY ET AL. V. KATY PERRY ET AL.
III.
Date
‘O’
October 17, 2018
DISCUSSION
Defendants’ motion for summary judgment argued that plaintiffs did not establish
a triable issue as to whether defendants had access to plaintiffs’ song “Joyful Noise.”
“To prove access, a plaintiff must show a reasonable possibility, not merely a bare
possibility, that an alleged infringer had the chance to view the protected work.” Loomis
v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016) (citations omitted). The Court denied
defendants’ motion for summary judgment after finding that plaintiffs “demonstrated a
triable issue of fact as to access because ‘Joyful Noise’ achieved critical success,
including a Grammy nomination, and was readily available and viewed millions of times
on YouTube and Myspace.” Order at 8. Defendants move for reconsideration on the
grounds that “this Court overlooked key tenets in the controlling Ninth Circuit decision
of Loomis and that the Court’s ruling on access is contrary to Loomis’s holding as to
what is required for ‘widespread dissemination.’” Mot. at 4. However, defendants do not
show a “manifest showing of a failure to consider material facts,” nor do they explain
how “extraordinary circumstances” justify their request for reconsideration. Rather, the
instant motion largely repeats “written argument made in support of or in opposition to
the original motion.”1 C.D. Cal. L.R. 7–18. Nevertheless, the Court addresses
defendants’ arguments below.
A.
The Facts in Loomis
In Loomis, the plaintiff brought a copyright infringement action against
songwriters and a music publisher. 2013 U.S. Dist. LEXIS 162607, at *2 (C.D. Cal.
November 13, 2013). The district court granted defendants’ summary judgment motion,
finding that plaintiff “failed to present any evidence supporting a plausible theory of
access.” Id. at *13. On appeal, the plaintiff relied on two separate theories to show a
reasonable possibility of access in the absence of direct evidence: (1) chain of events, and
(2) widespread dissemination. Loomis, 836 F.3d at 995. With respect to the first theory,
1
The instant motion for reconsideration and defendants’ motion for summary
judgment both argue: (1) “Joyful Noise” lacked commercial success, mot. at 9–10, MSJ
at 17–18; (2) “Joyful Noise” did not saturate a relevant market in which defendants
participate, mot. at 10–11, MSJ at 9, 20; and (3) the number of YouTube and Myspace
views of “Joyful Noise” does not establish a reasonable possibility of access, mot. at 11–
15, MSJ at 21–22.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Date
‘O’
Case No.
2:15-cv-05642-CAS (JCx)
October 17, 2018
Title
MARCUS GRAY ET AL. V. KATY PERRY ET AL.
the Ninth Circuit held that the plaintiff did not show evidence to support its chain of
events theory. Id. at 996–97. Under the second theory of widespread dissemination, the
plaintiff attempted to show access via a “doctrinal variant” of widespread dissemination
that focuses on saturation in a relevant market in which both parties participate. Id. at
997–98. The plaintiff argued that the defendants spent ten days recording an album in
Santa Barbara during a time when the plaintiff’s song “saturated” the local music scene
through airplay on local radio stations, and Mix Magazine, Billboard, and the Santa
Barbara Independent newspaper ran stories about the band’s achievements. Id. at 998.
The Ninth Circuit affirmed the district court’s decision, holding that the plaintiffs did not
raise a triable issue of access because the defendants’ “production responsibilities [during
their ten days in Santa Barbara] had nothing to do with listening to local radio, reading
local press, or scouting local bands, and there was no evidence that they undertook any
other activity in that market that created a reasonable possibility of access to Bright Red
Chords.” Id.
B.
Whether the Facts in Loomis and the Instant Case Are “On Par”
Defendants argue that the facts in Loomis and in the instant case are “on par.”
Mot. at 5. However, unlike Loomis, plaintiffs in the instant case do not rely on a theory
of saturation in a relevant market to show widespread dissemination. Plaintiffs rather
make the argument that there is a triable issue of fact as to whether defendants heard
“Joyful Noise” because the song was viewed millions of times on YouTube and
Myspace, nominated for music awards, and received high rankings on Christian/Gospel
music charts. Loomis did not evaluate whether millions of views of a song on easily
accessible websites like YouTube and Myspace could create a triable issue of access.
Loomis instead examined whether the plaintiff in that case established a triable issue of
access through his theory that his song saturated a specific geographic location.
Accordingly, the facts in Loomis and in the instant case are not “on par” and Loomis
does not require the Court to grant summary judgment.
C.
Whether the Holding in Loomis Created Requirements for Widespread
Dissemination
Defendants suggest that Loomis limited the grounds upon which a plaintiff can
show access by widespread dissemination by requiring plaintiffs to show both
commercial success and distribution through relevant mediums, or saturation in the
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Date
‘O’
Case No.
2:15-cv-05642-CAS (JCx)
October 17, 2018
Title
MARCUS GRAY ET AL. V. KATY PERRY ET AL.
relevant market. Mot. at 4, 8–11; Reply at 7. Because plaintiffs did not show
commercial success or saturation in the relevant market, defendants argue that Loomis
required the Court to grant defendants’ motion for summary judgment.
However, Loomis did not make any such holding. Rather, the Ninth Circuit stated
“[t]he evidence required to show widespread dissemination will vary from case to case.”
836 F.3d at 997 (emphasis added). Additionally, the Ninth Circuit recognized that “in
most cases,” not all, “the evidence of widespread dissemination centers on the degree of a
work’s commercial success and on its distribution through radio, television, and other
relevant mediums.” Id. (emphasis added).
The facts in the instant case required the Court to consider whether a song’s
popularity on the internet, a powerful tool that can “reach a wide and diverse audience,”
Art Attacks Inc., LLC v. MGA Entertainment Inc., 581 F.3d 1138, 1145 (9th Cir. 2009),
diminished the relevance of commercial success in its analysis of whether plaintiffs
demonstrated a triable issue of access by widespread dissemination. In denying summary
judgment, the Court also rejected defendants’ argument that plaintiffs are required to
show commercial exploitation in order to prove access because “such reasoning would
make it permissible to infringe on a copyrighted work simply because it was never for
sale.” Order at 8. The Court remains persuaded that due to the millions of views of
“Joyful Noise” on easily accessible and free websites and its success and popularity, a
reasonable jury could conclude that there is more than a “bare possibility” that defendants
had the opportunity to hear “Joyful Noise.” See id.
Defendants’ motion for reconsideration fails for the reasons stated above.
However, the Court will address the remainder of defendants’ arguments in turn.
D.
Whether Loomis Creates a New “Nationwide Saturation” Requirement
Consistent with their theory that Loomis established requirements to show a
reasonable possibility of access, defendants argue that plaintiffs “must either establish ‘an
appreciable level of national saturation’ or, alternatively, ‘saturation in a relevant market
in which both the plaintiff and the defendant participate.’” Mot. at 4 (citing Loomis, 836
F.3d at 994, 997–98) (emphasis omitted). Defendants essentially argue that Loomis
redefined commercial success as requiring a song to have achieved “nationwide
saturation.” See Mot. at 9–10. To support this argument, defendants engage in a close
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Date
‘O’
Case No.
2:15-cv-05642-CAS (JCx)
October 17, 2018
Title
MARCUS GRAY ET AL. V. KATY PERRY ET AL.
reading of the background section in Loomis, where the Ninth Circuit described how the
plaintiff’s song was not commercially successful:
Although the band hired a radio promotions company to promote the song on
a variety of radio stations and a video promotions company to disseminate the
music video through multiple media platforms, Bright Red Chords did not
achieve an appreciable level of national saturation. Loomis was able to
provide to the district court documentation of only 46 sales of the recording.
836 F.3d at 994; Mot. at 9. This statement is dicta. The Ninth Circuit did not establish a
new standard requiring “national saturation” in a background section. See Loomis, 836
F.3d at 994. Furthermore, the Ninth Circuit was not presented with the issue of whether
“evidence of Bright Red Chord’s dissemination in retail chains and evidence of its
multimedia publicity campaign raised a triable issue of access.” Id. at 998 n.3. The Ninth
Circuit explained in a footnote that this argument was waived because plaintiff failed to
make it in his opening brief and that even if the argument were not waived, “it was belied
by the fact that he was only able to document 46 sales of ‘Bright Red Chords.’” Id. And
even if the Ninth Circuit did create a new requirement for showing commercial success,
for reasons explained earlier, the Court does not read Loomis to require all copyright
plaintiffs to show commercial success in order to demonstrate a triable issue as to access.
Defendants also repeat their argument that the approximately four million views of
“Joyful Noise” only equates to about 25,000 digital download sales under Recording
Industry Association of American (RIAA) standards. Mot. at 12. However, the relevant
question here is not whether the YouTube and Myspace views of “Joyful Noise”
approximate commercial success, but whether defendants had access to it. The Court
remains unpersuaded that RIAA standards rule out the possibility that defendants
accessed “Joyful Notice” through free and easily accessible websites.
E.
Whether Plaintiffs Must Show Saturation in a Relevant Market
Defendants argue that under Loomis, if plaintiffs cannot show national saturation
via commercial success of their song, they must show saturation in a relevant market.
Mot. at 4, 10. Accordingly, defendants contend that they “did not participate at any
relevant time in the Christian hip-hop/rap industry in which ‘Joyful Noise’ abides.” Mot.
at 11. However, as mentioned earlier, the Ninth Circuit in Loomis stated that “[t]he
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Date
‘O’
Case No.
2:15-cv-05642-CAS (JCx)
October 17, 2018
Title
MARCUS GRAY ET AL. V. KATY PERRY ET AL.
evidence required to show widespread dissemination will vary from case to case,” 836
F.3d at 997 (emphasis added), thus there are no set requirements to demonstrate a
reasonable possibility of access as defendants suggest. See Mot. at 4. The Ninth Circuit
did not hold that saturation in a relevant market is the only alternative to prove
widespread dissemination besides commercial success and distribution through relevant
mediums. Rather, the Ninth Circuit merely “recognized a doctrinal variant that focuses
on saturation in a relevant market in which [both parties] participate.” Id. (emphasis
added). Additionally, the Court did not analyze whether “Joyful Noise” saturated the
relevant market because plaintiffs did not rely on that theory to establish their case.
While the Ninth Circuit in Loomis centered its analysis on the song’s saturation of a
specific geographic location, the Court’s analysis here centered on the millions of
YouTube and Myspace views of “Joyful Noise,” its music award nominations, and its
music chart rankings. Order at 2–3.
F.
Whether Plaintiffs Created a Triable Issue of Fact
Defendants argue again that because YouTube has “billions of hours of content”
and hosts videos with “hundreds of millions to over a billion views in a single year,”
there is “the barest of possibilities that any Dark Horse writer could have stumbled across
‘Joyful Noise’ on YouTube and Myspace.” Mot. at 13 (emphasis added). In denying
summary judgment, the Court addressed this contention, stating that “[d]ue to the
millions of views and plays of ‘Joyful Noise’ on YouTube and Myspace, both readily
accessible websites, and the success and popularity of ‘Joyful Noise’ in the Christian hiphop/rap industry, a reasonable jury could conclude that there is more than a ‘bare
possibility’ that defendants – who are experienced professional songwriters – had the
opportunity to hear ‘Joyful Noise.’” Order at 8. The Court remains persuaded that
plaintiffs have demonstrated a triable issue of fact as to a reasonable possibility of access.
IV.
CONCLUSION
Consistent with the Court’s findings and conclusions above, defendants’ motion
for reconsideration is DENIED.
IT IS SO ORDERED.
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Initials of Preparer
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