Don Henley et al v. Charles S Devore et al

Filing 28

ANSWER to Counterclaim 24 filed by Plaintiffs and Counter-defendants Don Henley, Mike Campbell.(Barquist, Charles)

Don Henley et al v. Charles S Devore et al

Doc. 28

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MORRISON & FOERSTER LLP CHARLES S. BARQUIST (CA SBN 133785) [e-mail] 555 West Fifth Street Los Angeles, California 90013-1024 Telephone: [phone] Facsimile: 213.892.5454 JACQUELINE C. CHARLESWORTH (pro hac vice) [e-mail] CRAIG B. WHITNEY (CA SBN 217673) [e-mail] KELVIN D. CHEN (pro hac vice) [e-mail] 1290 Avenue of the Americas New York, New York 10104 Telephone: [phone] Facsimile: 212.468.7900 PAUL GOLDSTEIN (CA SBN 79613) [e-mail] 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: [phone] Facsimile: 650.327.0811 Attorneys for Plaintiffs DON HENLEY and MIKE CAMPBELL UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DON HENLEY and MIKE CAMPBELL, Plaintiffs, v. CHARLES S. DEVORE and JUSTIN HART, Defendants. AND RELATED COUNTERCLAIMS Case No. SACV09-0481 JVS (RNBx) Hon. James V. Selna PLAINTIFFS' ANSWER TO COUNTERCLAIMS DEMAND FOR JURY TRIAL

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Plaintiffs Don Henley and Mike Campbell, by and through their undersigned attorneys, submit the following Answer to the Counterclaims of Defendants Charles S. DeVore and Justin Hart (the "Counterclaims"). GENERAL STATEMENT Numerous allegations in the Counterclaims are not specific to any particular defendants, but instead refer generally to the "counter-defendants." The responses herein are made only on behalf of Plaintiffs Henley and Campbell. Henley and Campbell deny all allegations of the Counterclaims not specifically admitted below. COMMON ALLEGATIONS 1. Henley and Campbell admit the allegations set forth in paragraph 1 of the Counterclaims, except lack knowledge or information sufficient to form a belief as to whether Justin Hart is a paid media consultant, and therefore deny the same. 2. 3. Henley and Campbell admit the allegations set forth in paragraph 2 of Henley and Campbell lack knowledge or information sufficient to the Counterclaims. form a belief about the allegations set forth in paragraph 3 of the Counterclaims and therefore deny the same. 4. Henley and Campbell deny the allegations set forth in paragraph 4 of the Counterclaims, except admit that Henley has supported and made donations to various causes and campaigns, and performs in various venues. 5. Henley and Campbell deny the allegations set forth in paragraph 5 of the Counterclaims. To the extent that the Counterclaims purport to quote unidentified sources, Henley and Campbell respectfully refer the Court to such sources for the quoted contents thereof. 6. 7. Henley and Campbell deny the allegations set forth in paragraph 6 of Henley and Campbell deny the allegations set forth in paragraph 7 of
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the Counterclaims. the Counterclaims to the extent they pertain to Henley and Campbell, and otherwise

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lack knowledge or information sufficient to form a belief about the allegations set forth in paragraph 7 of the Counterclaims and therefore deny the same, except admit on information and belief that YouTube and others were contacted about the infringing nature of the videos that are the subject of this action and YouTube and others disabled public access to videos. 8. Henley and Campbell deny the allegations set forth in paragraph 8 of the Counterclaims, except admit that DeVore and Hart made a video using the copyrighted song "The Boys of Summer" and respectfully refer the Court to the video for the contents thereof. 9. Henley and Campbell deny the allegations set forth in paragraph 9 of the Counterclaims, except admit that DeVore and Hart made a video using the copyrighted song "All She Wants to Do Is Dance" and respectfully refer the Court to the video for the contents thereof. 10. Henley and Campbell deny the allegations set forth in paragraph 10 of CAUSES OF ACTION First Cause of Action 11. 12. Henley and Campbell repeat and reallege each and every response to Henley and Campbell deny the allegations set forth in paragraph 12 of paragraphs 1 through 10 of the Counterclaims above as if fully set forth herein. the Counterclaims, except admit that there is a dispute concerning, inter alia, DeVore's and Hart's unauthorized use of "The Boys of Summer" and "All She Wants to Do Is Dance," and respectfully refer the Court to the Complaint for their allegations in this action and the relief they are seeking. 13. Henley and Campbell lack knowledge or information sufficient to form a belief about the allegations set forth in paragraph 13 of the Counterclaims and therefore deny the same, except acknowledge that Henley and Campbell believe their claims in this action may be resolved by the Court, and assert that to
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the Counterclaims.

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the extent the allegations set forth in paragraph 13 of the Counterclaims purport to state legal conclusions, no response is required. 14. Henley and Campbell lack knowledge or information sufficient to form a belief about the allegations set forth in paragraph 14 of the Counterclaims and therefore deny the same. 15. Henley and Campbell lack knowledge or information sufficient to form a belief about the allegations set forth in paragraph 15 of the Counterclaims and therefore deny the same. Second Cause of Action 16. 17. Henley and Campbell repeat and reallege each and every response to Henley and Campbell deny the allegations set forth in paragraph 17 of paragraphs 1 through 15 of the Counterclaims above as if fully set forth herein. the Counterclaims, except admit that there is a dispute concerning, inter alia, DeVore's and Hart's unauthorized use of "The Boys of Summer" and "All She Wants to Do Is Dance," and respectfully refer the Court to the Complaint for their allegations in this action and the relief they are seeking. 18. Henley and Campbell lack knowledge or information sufficient to form a belief about the allegations set forth in paragraph 18 of the Counterclaims and therefore deny the same, except acknowledge that Henley and Campbell believe their claims in this action may be resolved by the Court, and assert that to the extent the allegations set forth in paragraph 18 of the Counterclaims purport to state legal conclusions, no response is required. 19. Henley and Campbell lack knowledge or information sufficient to form a belief about the allegations set forth in paragraph 19 of the Counterclaims and therefore deny the same.

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20.

Henley and Campbell lack knowledge or information sufficient to

form a belief about the allegations set forth in paragraph 20 of the Counterclaims and therefore deny the same. Third Cause of Action 21. 22. Henley and Campbell repeat and reallege each and every response to Henley and Campbell deny the allegations set forth in paragraph 22 of paragraphs 1 through 20 of the Counterclaims above as if fully set forth herein. the Counterclaims, except admit that there is a dispute concerning, inter alia, DeVore's and Hart's unauthorized use of "The Boys of Summer" and "All She Wants to Do Is Dance," and respectfully refer the Court to the Complaint for their allegations in this action and the relief they are seeking. 23. Henley and Campbell lack knowledge or information sufficient to form a belief about the allegations set forth in paragraph 23 of the Counterclaims and therefore deny the same, except acknowledge that Henley and Campbell believe their claims in this action may be resolved by the Court, and assert that to the extent the allegations set forth in paragraph 23 of the Counterclaims purport to state legal conclusions, no response is required. 24. Henley and Campbell lack knowledge or information sufficient to form a belief about the allegations set forth in paragraph 24 of the Counterclaims and therefore deny the same. 25. Henley and Campbell lack knowledge or information sufficient to form a belief about the allegations set forth in paragraph 25 of the Counterclaims and therefore deny the same. Fourth Cause of Action 26. 27. Henley and Campbell repeat and reallege each and every response to Henley and Campbell deny the allegations set forth in paragraph 27 of
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paragraphs 1 through 25 of the Counterclaims above as if fully set forth herein. the Counterclaims, except admit that there is a dispute concerning, inter alia,

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DeVore's and Hart's unauthorized use of "The Boys of Summer" and "All She Wants to Do Is Dance," and respectfully refer the Court to the Complaint for their allegations in this action and the relief they are seeking. 28. Henley and Campbell lack knowledge or information sufficient to form a belief about the allegations set forth in paragraph 28 of the Counterclaims and therefore deny the same, except acknowledge that Henley and Campbell believe their claims in this action may be resolved by the Court, and assert that to the extent the allegations set forth in paragraph 28 of the Counterclaims purport to state legal conclusions, no response is required. 29. Henley and Campbell lack knowledge or information sufficient to form a belief about the allegations set forth in paragraph 29 of the Counterclaims and therefore deny the same. 30. Henley and Campbell lack knowledge or information sufficient to form a belief about the allegations set forth in paragraph 30 of the Counterclaims and therefore deny the same. Fifth Cause of Action 31. 32. Henley and Campbell repeat and reallege each and every response to Henley and Campbell deny the allegations set forth in paragraph 32 of paragraphs 1 through 30 of the Counterclaims above as if fully set forth herein. the Counterclaims, except admit that there is a dispute concerning, inter alia, DeVore's and Hart's unauthorized use of "The Boys of Summer" and "All She Wants to Do Is Dance," and respectfully refer the Court to the Complaint for their allegations in this action and the relief they are seeking. 33. Henley and Campbell lack knowledge or information sufficient to form a belief about the allegations set forth in paragraph 33 of the Counterclaims and therefore deny the same, except acknowledge that Henley and Campbell believe their claims in this action may be resolved by the Court, and assert that to
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the extent the allegations set forth in paragraph 28 of the Counterclaims purport to state legal conclusions, no response is required. 34. Henley and Campbell lack knowledge or information sufficient to form a belief about the allegations set forth in paragraph 34 of the Counterclaims and therefore deny the same. 35. Henley and Campbell lack knowledge or information sufficient to form a belief about the allegations set forth in paragraph 35 of the Counterclaims and therefore deny the same. Sixth Cause of Action 36. 37. Henley and Campbell repeat and reallege each and every response to Henley and Campbell deny the allegations set forth in paragraph 37 of paragraphs 1 through 35 of the Counterclaims above as if fully set forth herein. the Counterclaims to the extent they pertain to Henley and Campbell, and otherwise lack knowledge or information sufficient to form a belief about the allegations set forth in paragraph 37 of the Counterclaims and therefore deny the same, except admit on information and belief that YouTube and others were contacted about the infringing nature of the videos that are the subject of this action and YouTube and others disabled public access to the videos. 38. Henley and Campbell deny the allegations set forth in paragraph 38 of the Counterclaims to the extent they pertain to Henley and Campbell and otherwise lack knowledge or information sufficient to form a belief about the allegations set forth in paragraph 38 of the Counterclaims and therefore deny the same. 39. Henley and Campbell deny the allegations set forth in paragraph 39 of AFFIRMATIVE DEFENSES Henley and Campbell allege the following affirmative defenses to the Counterclaims, and in doing so do not concede that they bear the burden of proof or persuasion on any of them:
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the Counterclaims.

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1. 2. 3. 4.

The Counterclaims fail, in whole or in part, to state a claim upon which DeVore's and Hart's unauthorized use of copyrighted material does not DeVore's and Hart's use of copyrighted material is not excused under The Court lacks subject matter jurisdiction over the Counterclaims to

relief can be granted. qualify as fair use under 17 U.S.C. § 107 or other applicable law. the First Amendment to the United States Constitution. the extent they seek declaratory relief related to the copyright for "All She Wants to Do Is Dance." 5. 6. 7. 8. 9. 10. The Counterclaims are barred, in whole or in part, by the doctrine of The Counterclaims are barred, in whole or in part, by the doctrines of The Counterclaims are barred, in whole or in part, by DeVore's and The Counterclaims are barred, in whole or in part, by DeVore's and The Counterclaims are barred, in part, because DeVore and Hart have The Counterclaims are barred, in part, because DeVore and Hart have unclean hands. waiver, laches and/or equitable estoppel. Hart's failure to suffer any damages. Hart's failure to mitigate any alleged damages. failed to join necessary and indispensable parties. failed to plead fraud and/or misrepresentation with particularity as required by Federal Rule of Civil Procedure 9(b). 11. proceeding. Henley and Campbell reserve the right to raise additional affirmative and other defenses as may be established by discovery and the evidence in this

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DEMAND FOR JURY TRIAL Henley and Campbell hereby demand a trial by jury on all issues so triable. Dated: August 10, 2009 MORRISON & FOERSTER LLP Charles S. Barquist Jacqueline C. Charlesworth Craig B. Whitney Kelvin D. Chen Paul Goldstein By: /s/ Charles S. Barquist Charles S. Barquist

Attorneys for Plaintiffs DON HENLEY and MIKE CAMPBELL

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