Kerry Marshall, Jr. v. Durrell Babbs et al

Filing 50

ORDER by Judge Dean D. Pregerson: GRANTING 37 MOTION for Partial Summary Judgment as to ON THE REQUEST OF PLAINTIFF KERRY MARSHALL, JR. p/k/a KERRY 2SMOOTH AND K2S FOR STATUTORY DAMAGES AND ATTORNEYS FEES. The court GRANTS Defendants motion for partial summary judgment. Plaintiff is granted leave to amend the complaint within 20 days of the date of this order. (shb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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KERRY MARSHALL, JR., p/k/a
KERRY 2SMOOTH and K2S,

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Plaintiff,

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v.

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DURRELL BABBS, p/k/a TANK;
JEREMY HAIRSTON; JOHNNIE
NEWT; RICKEY OFFORD p/k/a SLIKK
p/k/a SLIKK MUZIK; ATLANTIC
RECORDING CORPORATION; and
DOES 1-100, inclusive,

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Defendants.

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Case No. 2:18-cv-03822-DDP (AFMx)
ORDER GRANTING
DEFENDANTS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
ON PLAINTIFF’S REQUEST FOR
STATUTORY DAMAGES AND
ATTORNEY’S FEES
[Dkt. 37]

Presently before the court is Defendants Durrell Babbs, p/k/a Tank, Jeremy

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Hairston; Johnnie Newt; Rickey Offord, p/k/a Slikk, p/k/a Slikk Muzik; and Atlantic

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Recording Corp. (collectively “Defendants”)’s motion for partial summary judgment

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(Dkt. 37.) Having considered the parties submissions, the court adopts the following

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order.

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I. BACKGROUND

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Plaintiff Kerry Marshall, Jr., also professionally known as “Kerry 2Smooth” is the

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author of the music, musical composition and arrangement, and sound recording of the

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work entitled “RnB Chord and Riff ideas to Help Your Playing” (“Marshall work”).

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(Compl. ¶¶ 18-22.) Plaintiff brings this action alleging copyright infringement against

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Durell Babbs, a recording artist and performer professionally known as “Tank”; Rickey

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Offord, an individual engaged in the business of producing, promoting, licensing, and

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selling sound compositions; Atlantic Recording Corporation, an entity that actively

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solicits, advertises, and promotes in California; and Johnnie Newt, an individual in the

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business of producing, promoting, licensing, and selling sound compositions. (Compl. ¶¶

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4-8.)

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The Marshall work was first published on October 17, 2014 through Plaintiff’s

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YouTube channel under the username “Kerry Marshall Jr.”. (Compl. ¶¶ 18-22.) Plaintiff

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registered the Marshall work with the United States Copyright Office on December 14,

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2017. (Compl. ¶¶ 20-21.) On September 29, 2017, Defendant Atlantic Recording

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Corporation released and distributed a musical work performed by Tank entitled “Only

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One” (“infringing song”). (Benjamin Landry Decl. ¶ 4.) The alleged infringing song was

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included as part of Tank’s eighth album entitled “Savage.” (Id.) The track was neither

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released nor promoted to radio as a commercial single but was still “made available as

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individual track downloads and streams.” (Landry Decl. ¶ 5.) Since its release, the

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infringing song has not been modified or changed and the same version is being

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distributed today. (Id.)

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Plaintiff seeks statutory damages, costs, and attorney’s fees for copyright

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infringement. (Compl. ¶ 57 (E) and (G).) Defendant now moves for partial summary

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judgment under Fed. R. Civ. P. 56 on the request of statutory and attorney fees.

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II. LEGAL STANDARD
Summary judgment is appropriate where the pleadings, depositions, answers to

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interrogatories, and admissions on file, together with the affidavits, if any, show “that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A party seeking summary judgment bears the

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initial burden of informing the court of the basis for its motion and of identifying those

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portions of the pleadings and discovery responses that demonstrate the absence of a

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genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All

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reasonable inferences from the evidence must be drawn in favor of the nonmoving party.

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See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the moving party does not

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bear the burden of proof at trial, it is entitled to summary judgment if it can demonstrate

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that “there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477

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U.S. at 323.
Once the moving party meets its burden, the burden shifts to the nonmoving party

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opposing the motion, who must “set forth specific facts showing that there is a genuine

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issue for trial.” Anderson, 477 U.S. at 256. Summary judgment is warranted if a party

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“fails to make a showing sufficient to establish the existence of an element essential to

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that party’s case, and on which that party will bear the burden of proof at trial.” Celotex,

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477 U.S. at 322. A genuine issue exists if “the evidence is such that a reasonable jury

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could return a verdict for the nonmoving party,” and material facts are those “that might

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affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. There

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is no genuine issue of fact “[w]here the record taken as a whole could not lead a rational

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trier of fact to find for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio

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Corp., 475 U.S. 574, 587 (1986).

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III. DISCUSSION
A. Statutory Damages and Attorney’s Fees
Defendants argue that Plaintiff is not entitled to statutory damages or attorney’s
fees because the alleged infringing song was released on September 29, 2017, before
Plaintiff registered the Marshall work on December 14, 2017, and Plaintiff did not register

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the Marshall work until “nearly three years” after the first publication date. (Motion at 5-

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6.) Plaintiff “concedes for purposes of this Motion that he may be precluded from

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statutory damages from the infringement that commenced prior to registration, namely

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the publication of the Infringing Song . . .” (Opp. at 5.) However, Plaintiff argues that

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after the commencement of this suit, Defendants published an Instagram Video using a

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portion of the infringing song and thus, “created a new audiovisual work that had never

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previously existed . . .” (Opp. at 6.) (emphasis omitted.) Plaintiff contends that this

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“new” infringement creates a basis for statutory damages because it is a different

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infringement from the pre-registration infringement. (Opp. at 7.)

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“In any action [for copyright infringement], . . . no award of statutory damages or

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of attorney's fees . . . shall be made for --(1) any infringement of copyright in an

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unpublished work commenced before the effective date of its registration, unless such

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registration is made within three months after the first publication of the work.” 17

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U.S.C. § 412. In considering whether an infringement commenced before the date of

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registration, “the first act of infringement in a series of ongoing separate infringements

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commence[s] one continuing infringement.” Parfums Givenchy v. C & C Beauty Sales, 832

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F. Supp. 1378, 1393 (C.D. Cal. 1993) (citations & internal quotations omitted). “A new or

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separate basis for the award of statutory damages is created, however, only where there

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is a difference between pre- and post-registration infringing activities.” Mason v.

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Montgomery Data, Inc., 741 F. Supp. 1282, 1285 (S.D. Tex. 1990) (quotations omitted).

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Plaintiff concedes that he is not entitled to statutory damages for the alleged

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infringing song. There is no dispute of any material facts relevant to this motion. The
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parties do not dispute the date of the first publication of the Marshall work, October 17,
2014, the date of registration, December 14, 2017, or the date of the alleged infringing
song’s release, September 29, 2017. (Plaintiff’s Statement of Genuine Issues in Opposition
Motion for Partial Summary Judgment at 2-4.) Defendants’ alleged infringement
occurred prior to registration, and Plaintiff did not register the Marshall work within

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three months of its first publication date. Thus, there is no evidence that supports

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Plaintiff’s request for statutory damages and attorney’s fees based on the release of the

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alleged infringing song. Defendants are entitled to partial summary judgment on the

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issue of statutory damages and attorney’s fees.

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The court declines to consider here whether the Instagram Video is a new post-

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registration infringement which may entitle Plaintiff to statutory and attorney’s fees;

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these facts were not pled and are not the basis of Plaintiff’s claim for relief in the

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complaint. Plaintiff has requested that he be allowed leave to amend the complaint to

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properly plead these facts.

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IV. CONCLUSION

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The court GRANTS Defendants’ motion for partial summary judgment. Plaintiff

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is granted leave to amend the complaint within 20 days of the date of this order.

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IT IS SO ORDERED.

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Dated: December 26, 2018

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___________________________________

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DEAN D. PREGERSON

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UNITED STATES DISTRICT JUDGE

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