Bryan Pringle v. William Adams Jr et al

Filing 159

NOTICE OF MOTION AND MOTION for Summary Judgment filed by Defendants David Guetta, Frederick Riesterer, Shapiro Bernstein and Co. Motion set for hearing on 12/19/2011 at 10:00 AM before Judge Josephine Staton Tucker. (Attachments: # 1 Proposed Order, # 2 Memorandum)(Miller, Donald)

1 DONALD A. MILLER (SBN 228753)
[e-mail]
2 BARRY I. SLOTNICK (Pro Hac Vice)
[e-mail]
3 TAL E. DICKSTEIN (Pro Hac Vice)
[e-mail]
4 LOEB & LOEB LLP
10100 Santa Monica Boulevard, Suite 2200
5 Los Angeles, California 90067-4120
Telephone: [phone]
6 Facsimile: 310-282-2200
7 Attorneys for SHAPIRO, BERNSTEIN
& CO., INC., FREDERIC
8 RIESTERER, AND DAVID GUETTA
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

13 BRYAN PRINGLE, an individual,
Plaintiff,

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v.

16 WILLIAM ADAMS, JR.; STACY
FERGUSON; ALLAN PINEDA; and
17 JAIME GOMEZ, all individually and
collectively as the music group The
18 Black Eyed Peas, et al.,
Defendants.

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Case No. SACV 10-1656 JST(RZx)
Hon. Josephine Staton Tucker
Courtroom 10A
MEMORANDUM OF LAW IN
SUPPORT OF MOTION FOR
SUMMARY JUDGMENT BY
DEFENDANTS SHAPIRO,
BERNSTEIN & CO, INC.,
FREDERIC RIESTERER AND
DAVID GUETTA
Complaint Filed: October 28, 2010
Trial Date: February 28, 2012
Hearing Date: December 19, 2011
10:00 AM

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TABLE OF CONTENTS

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Page

3
4

5 TABLE OF AUTHORITIES ................................................................................ iv
6 PRELIMINARY STATEMENT.............................................................................1
7 BACKGROUND ....................................................................................................3
8

I.

9

Defendants Independently Create the Hit Song “I Gotta Feeling”.................3
A.

Guetta and Riesterer Compose the Music for “I Gotta
Feeling” ..............................................................................................3

B.

Defendants Make the Instrumental and Vocal Portions of
“I Gotta Feeling” Publicly Available on the Internet...........................4

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11
12

II.

14

Pringle Claims that Defendants Sampled the Guitar Twang
Sequence from His Unpublished Song “Take a Dive” (Dance
Version)........................................................................................................4

15

A.

Pringle Is Unable to Explain How He Allegedly Created
the Guitar Twang Sequence in “Take a Dive” (Dance
Version)..............................................................................................5

B.

Pringle’s Mysterious NRG File is No Evidence That He
Created “Take a Dive” (Dance Version) Before the
Release of “I Gotta Feeling” ...............................................................6

13

16
17
18
19 III.
20

There is No Evidence Defendants Ever Had Access to Pringle’s
Song..............................................................................................................7
A.

22

There is No Evidence that Pringle Ever Sent a Copy of
“Take a Dive” (Dance Version) to Any of the Defendants ..................7

B.

21

There is No Evidence that “Take a Dive” (Dance Version)
Was Ever Played on the Radio or Sold on CDs or on the
Internet ...............................................................................................9

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24
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IV.

Pringle Belatedly Applies to Register a Copyright in “Take a
Dive” (Dance Version) After “I Gotta Feeling” Has Become a
Worldwide Hit ............................................................................................10
A.

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The Copyright Office Denies Pringle’s Application for a
Copyright in the Musical Composition of the Guitar
Twang Sequence...............................................................................10
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B.

1
2
3 V.

Pringle Provides the Copyright Office With a Manual ReCreation of “Take a Dive” (Dance Version) that Did Not
Exist in 1999.....................................................................................11

4

Expert Analysis Shows that Defendants Did Not Copy “Take a
Dive” or “Take a Dive” (Dance Version)....................................................12

5

A.

Expert Sound Recording Analysis Confirms that Guetta
and Riesterer Independently Created the Guitar Twang
Sequence...........................................................................................12

B.

Expert Musicology Analysis Confirms that there are No
Substantial Similarities Between “Take a Dive” and “I
Gotta Feeling”...................................................................................12

6
7
8
9 VI.
10

Pringle Destroys Critical Electronic Evidence That Would
Confirm His Copying from “I Gotta Feeling” .............................................13

11 SUMMARY JUDGMENT STANDARD .............................................................14
12 ARGUMENT .......................................................................................................15
13 I.
14

Pringle Cannot Establish Infringement of “Take a Dive” (Dance
Version)......................................................................................................15

15

A.

16

Pringle Cannot Show That He Owns a Valid Copyright In
“Take a Dive” (Dance Version) ........................................................15
1.

17

Pringle Cannot Prove That The Guitar Twang
Sequence Was His Original Work of Authorship....................15

18

(a)

There is No Evidence That the Guitar Twang
Sequence Was Pringle’s Original Work of
Authorship ....................................................................15

(b)

Expert Analysis Confirms that Defendants
Independently Created the Guitar Twang
Sequence and That Pringle Sampled That
Sequence From Another Source....................................16

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2.

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B.

25

The Guitar Twang Sequence is Not Copyrightable
as a Musical Composition .......................................................16

Pringle Cannot Show That Any Defendant Copied “Take a
Dive” (Dance Version) .....................................................................17
1.

There Is No Evidence the Creators of “I Gotta
Feeling” Had Access to “Take a Dive” (Dance
Version)..................................................................................18

2.

There is No Evidence That “Take a Dive” (Dance
Version) Received Widespread Distribution ...........................19

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3.

1
2
3 II.
4

Pringle Cannot Prove that Any Defendant Sampled
from the “Take a Dive” (Dance Version) Sound
Recording ...............................................................................20

Pringle’s Claim that Defendants Infringed “Take a Dive” (Dance
Version) is Barred by His Failure to Submit a Bona Fide Deposit
Copy ...........................................................................................................20

5
6

III.

Pringle Cannot Establish Infringement of “Take a Dive”............................22
A.

8

There is No Evidence That Any Defendant Had Access to
“Take a Dive” ...................................................................................22

B.

7

“Take a Dive” and “I Gotta Feeling” Are Not Substantially
Similar ..............................................................................................22

9
10 IV.

Defendants are Entitled to Judgment Based on Plaintiff’s
Spoliation of Evidence................................................................................24

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12

CONCLUSION ....................................................................................................26

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1

TABLE OF AUTHORITIES

2
Page(s)
3 CASES
4
Art Attacks Ink, LLC v. MGA Entm’t, Inc.,
5
581 F.3d 1138 (9th Cir. 2009)...............................................................17-18, 19
6 Baker v. Walker,
2011 WL 1239826 (E.D. Cal. March 29, 2011) ...............................................14
7
8 Batjac Prods. Inc. v. GoodTimes Home Video Corp.,
160 F.3d 1223 (9th Cir. 1998)..........................................................................17
9
10 Batts v. Adams,
Case No. 10-cv-8123-JFW (C.D. Cal. Oct. 21, 2011) ......................................22
11
12 Benay v. Warner Bros Entm’t, Inc.,
607 F.3d 620 (9th Cir. 2010)............................................................................15
13
Berkic v. Crichton, 761 F.2d 1289 (9th Cir. 1985) ................................................23
14
15 Cartier v. Jackson,
59 F.3d 1046 (10th Cir. 1995)..........................................................................21
16
Celotex Corp. v. Catrett,
17
477 U.S. 317 (1986).........................................................................................14
18
Coles v. Wonder,
19
283 F.3d 798 (6th Cir. 2002)............................................................................21
20 Cosmetic Ideas, Inc. v. IAC/Interactivecorp.,
606 F.3d 612 (9th Cir. 2010)............................................................................17
21
22 Currin v. Arista Records, Inc.,
724 F. Supp. 2d 286 (D. Conn. 2010) ..............................................................23
23
24 Funky Films, Inc. v. Time Warner Entm’t Co., L.P.,
462 F.3d 1072 (9th Cir. 2006).................................................................... 23-24
25
26 Gable v. Nat’l Broad. Co.,
727 F. Supp. 2d 815 (C.D. Cal. 2010), aff’d, 2011 WL 2412410 (9th Cir.
27
June 16, 2011)...................................................................................... 18, 20, 23
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1 Goldberg v. Cameron,
2011 WL 1299007 (N.D. Cal. Apr. 4, 2011) ....................................................23
2
3 Idema v. Dreamworks, Inc.,
162 F. Supp. 2d 1129 (C.D. Cal. 2001) ............................................................17
4
5 Jason v. Fonda,
526 F. Supp. 774 (C.D. Cal. 1981), aff’d, 698 F.2d 966 (9th Cir. 1982)..... 19-20
6
Kodadek v. MTV Networks, Inc.,
7
152 F.3d 1209 (9th Cir. 1998)....................................................................20, 21
8
Kouf v. Walt Disney Pictures & Television,
9
16 F.3d 1042 (9th Cir.1994).............................................................................22
10
Leon v. IDX Sys. Corp.,
464 F.3d 951 (9th Cir. 2006)......................................................................24, 25
11
12 McDonald v. Multimedia Entm’t, Inc.,
1991 WL 311921 (S.D.N.Y. July 19, 1991) ............................................... 16-17
13
14 Mestre v. Vivendi Universal U.S. Holding Co.,
2005 WL 1959295 (D. Or. Aug. 15, 2005), aff’d, 273 F. App’x 631 (9th
15
Cir. 2008).........................................................................................................19
16
Meta-Film Assocs. v. MCA Inc.,
17
586 F. Supp. 1346 (C.D. Cal. 1984).................................................................19
18
Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co.,
19
900 F. Supp. 1287 (C.D. Cal. 1995).................................................................18
20 Midler v. Ford Motor Co.,
849 F.2d 460 (9th Cir. 1988)............................................................................20
21
22 Newton v. Diamond,
204 F. Supp. 2d 1244 (C.D. Cal. 2002), aff’d, 349 F.3d 591 (9th Cir. 2008)....16
23
24 Nova Design Build, Inc. v. Grace Hotels, LLC,
2010 WL 747896 (N.D. Ill. Feb. 26, 2010) ......................................................21
25
26 O'Keefe v. Ogilvy & Mather Worldwide, Inc.,
590 F. Supp. 2d 500 (S.D.N.Y. 2008) ........................................................ 22-23
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1 Rice v. Fox Broad. Co.,
330 F.3d 1170 (9th Cir. 2003)..........................................................................19
2
3 Satava v. Lowry,
323 F.3d 805 (9th Cir. 2003)......................................................................15, 16
4
5 Southco, Inc. v. Kanebridge Corp.,
390 F.3d 276 (3d Cir. 2004).............................................................................17
6
Tavory v. NTP, Inc.,
7
495 F. Supp. 2d 531 (E.D. Va. 2007) ...............................................................21
8
Tisi v. Patrick,
9
97 F. Supp. 2d 539 (S.D.N.Y. 2000) ................................................................23
10
Torres-Negron v. J&N Records, LLC,
504 F.3d 151 (1st Cir. 2007) ............................................................................21
11
12 Vieste, LLC v. Hill Redwood Dev.,
2011 WL 2198257 (N.D. Cal. June 6, 2011)....................................................24
13
14 STATUTES & RULES
15 17 U.S.C. §§ 408(b)(1),(2) ....................................................................................20
16
17 U.S.C. § 410(c) ................................................................................................15
17
17 U.S.C. § 411(a) ..........................................................................................17, 20
18
Fed. R. Civ. P. 56(a) .............................................................................................14
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1

Defendants Shapiro, Bernstein & Co, Inc. (“Shapiro Bernstein”), Frederic

2 Riesterer and David Guetta (collectively, “Defendants”) respectfully submit this
3 Memorandum of Law in Support of their Motion for Summary Judgment.
4

PRELIMINARY STATEMENT

5
6
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In his action for copyright infringement, Plaintiff Bryan Pringle alleges that
all the defendants infringed his copyright in the musical composition entitled “Take
a Dive” and the sound recording and musical composition “Take a Dive” (Dance
Version). Specifically, Pringle has alleged that Defendants Riesterer, Guetta and
others had access to and copied Pringle’s works to create The Black Eyed Peas’ hit
song “I Gotta Feeling”.1

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Pringle alleges that Defendants Riesterer and Guetta and others were “direct
copyright infringers” who “willfully copied… Plaintiffs’ song “Take a Dive” (SMF
¶ 2; Dickstein Decl., Ex. A (First Amended Complaint (“FAC”) ¶ 1)); that Plaintiff
“regularly submitted demo CDs, all of which contained ‘Take a Dive’… to
Defendants UMG, Interscope and EMI (FAC ¶ 31); that Plaintiff advertised on the
Internet (FAC ¶ 32)); and that “over the period from 1999 to 2008, Pringle received
numerous letters in response to his musical submissions…” including responses
from representatives from UMG, Interscope and EMI, which “implicitly
acknowledges that his demo CDs, all of which contained “Take a Dive”, were
listened to by these individuals” (FAC ¶ 33).

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22

In support of his motion for a preliminary injunction, Pringle declared that he
went to Paris in 1999 and gave demo CDs to French record companies, music

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24

1

In a conference of counsel on November 1, 2011, Pringle’s counsel clearly,
25 expressly, and unequivocally stated that Pringle would withdraw his claim of
infringement of his sound recording copyright. When Defendants’ counsel
26 proposed a stipulation dismissing that claim, however, Pringle’s counsel refused to
sign the stipulation. Statement of Material Facts (“SMF”), filed concurrently, at ¶¶
27 83-84; Declaration of Tal E. Dickstein (“Dickstein Decl.”), filed concurrently, at ¶¶
28 16-17, Exs. O, P.
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1 publishing companies and DJs, and had his music, including “Take a Dive (Dance
2 Version)” played on French radio. (Doc. 73-4 at ¶¶ 7-8.)
3

When this Court challenged the propriety of basing a preliminary injunction

4 solely on Plaintiff’s declaration, counsel admitted at the January 31, 2011
5 preliminary injunction hearing: “then there is no further support for that based on
6 what has been submitted.” On the sound recording infringement claim, this Court
7 reminded counsel that the “derivative version” registration was limited to the sound
8 recording and not the underlying work, and that actual copying must be proven. Yet
9 Defendants’ expert explained that it was physically impossible for Defendants to
10 have copied Plaintiff’s recording, and the Court denied Plaintiff’s motion.
11

Ten months later, Pringle’s “case” is still nothing more than his

12 unsubstantiated contentions that he carpet-bombed the music industry with demos,
13 sent demos to people who know Defendants, and, through those “people,”
14 Defendants had access to Plaintiff’s work, which they then copied. Plaintiff offers
15 no evidence to support his claims.
16

Pringle has concocted an elaborate shell game. Only in this game there is no

17 pea under any shell. Pringle has produced no evidence that Defendants had access
18 to any of Pringle’s music. The work covered by his 1998 registration (which does
19 not include the guitar twang sound) is not substantially similar to “I Gotta Feeling”.
20 The 1999 “derivative work (with a guitar twang) was not registered until 2010, and
21 carries no presumption of validity, yet Pringle offers no proof that it was actually
22 created in 1999. Plaintiff’s “Take a Dive (Dance Version),” as registered in the
23 Copyright Office was, as Pringle admits, based upon re-creations that he put
24 together in 2010. Moreover, the Copyright Office rejected the 2010 application as a
25 registration for the underlying musical work, and Defendants’ expert reiterates that
26 the sound recording could not have been copied from Plaintiff’s work, but that
27 Plaintiff likely copied Defendants’ work.
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Plaintiff had no evidence supporting his claims in January 2011. Since then,

1

2 he has not produced one original recording irrefutably created prior to “I Gotta
3 Feeling,” or one document supporting his naked allegations of widespread
4 distribution of “his work” to the music industry at large, much less to Defendants.
Moreover, Pringle has admitted that he destroyed evidence by disposing of

5

6 computer equipment that would have either confirmed his story or, more likely,
7 proven that he copied from Defendants and back-dated his computer files. Even
8 though Defendants repeatedly demanded that Pringle preserve all his electronically
9 stored information, and his counsel represented that they would do so, on the eve of
10 the scheduled computer inspection, counsel advised that Pringle had discarded not
11 one, but two separate computer hard drives while this litigation was pending.
BACKGROUND
12
13 I.
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Defendants Independently Create the Hit Song “I Gotta Feeling”
A.
Guetta and Riesterer Compose the Music for “I Gotta Feeling”
In 2008, William Adams of The Black Eyed Peas asked David Guetta to

create the music for a song for The Black Eyed Peas’ new album. (SMF ¶ 14;
Dickstein Decl., Ex. B (Adams Tr. 236:17-239:20, 258:6-18.))
To create the music, Guetta collaborated with Frederic Riesterer, with whom
Guetta had composed the song “Love is Gone” in 2007. Riesterer composed a
sequence of guitar sounds using a similar electronic guitar sound (or “preset”) to the
one he used in “Love is Gone.” Riesterer selected this preset from a French sound
library named “PlugSound: Fretted Instruments.” (SMF ¶ 16; Riesterer Decl. ¶¶ 47.) Because the PlugSound sound library included only individual notes, and not
entire chords or musical phrases, Riesterer composed the guitar notes and chords for
use in the new song. (SMF ¶¶ 16-19; Dickstein Decl., Ex. C (Riesterer Tr. 165:19166:21, 179:10-181:8); Riesterer Decl. ¶¶ 5-6.) Riesterer then used sound
processing software to modify the guitar chords he had created using the PlugSound
preset. (SMF ¶ 17; Riesterer Decl. ¶ 7.) The result of Riesterer’s modification of

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1 the PlugSound preset and his musical composition was an original guitar “twang”
2 sequence that was different from both the PlugSound guitar preset and the guitar
3 sequence he used in “Love is Gone.” (SMF ¶ 19; Riesterer Decl. ¶¶ 6-7.)
4

On December 20, 2008, Guetta sent Adams the music that he and Riesterer

5 created, which they tentatively named “David Pop Guitar.” (SMF ¶¶ 20-22;
6 Dickstein Decl., Ex. B (Adams Tr. 75:22-78:23, 304:9-305:6.)) Adams wrote
7 accompanying lyrics (id. at 35:3-38:23), but did not change the music (id. at 38:258 39:3; 74:21-75:2; 217:7-10; 258:22-259:13; SMF ¶ 21) The combination of Guetta
9 and Riesterer’s music with Adams’ lyrics became “I Gotta Feeling,” which The
10 Black Eyed Peas released in May 2009. (SMF ¶ 22).
11

B.

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In September 2009, The Black Eyed Peas and Guetta held a contest for DJs to
create re-mixes of “I Gotta Feeling.” As part of this contest, each of the separate
instrumental tracks (known as music “stems”) of “I Gotta Feeling,” including the
guitar twang sequence that Riesterer and Guetta had created, as well as The Black
Eyed Peas’ lead and background vocal tracks, were made available for download on
Beatport.com. (SMF ¶¶ 23-25; Warner Decl. ¶ 3; Dickstein Decl., Ex. D.)

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26

Defendants Make the Instrumental and Vocal Portions of “I
Gotta Feeling” Publicly Available on the Internet

During the contest, approximately 1,200 re-mixes of “I Gotta Feeling” were
submitted and circulated on the Internet. (SMF ¶ 26; Warner Decl. ¶¶ 3-4.) Many
of these re-mixes contained the guitar twang sequence “soloed out” – i.e., without
any other sounds layered on top. (SMF ¶¶ 27-28; Dickstein Decl., Ex. E (Pringle
Tr. 185:3-16.)) These re-mix versions of “I Gotta Feeling” with the guitar twang
sequence soloed out continue to be available on various Internet websites. (Id.)
II.

Pringle Claims that Defendants Sampled the Guitar Twang Sequence
from His Unpublished Song “Take a Dive” (Dance Version)
In October 2010, seventeen months after “I Gotta Feeling” was released, a

27 Texas resident named Bryan Pringle filed suit against each of The Black Eyed Peas,
28 Guetta, Riesterer and eleven record labels and music publishers, claiming that “I
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1 Gotta Feeling” infringed the musical composition copyright in “Take a Dive” and
2 the composition and sound recording copyright in “Take a Dive (Dance Version).
3 (Compl., Doc. 1.)
4

Pringle allegedly created “Take a Dive” in 1998, and claims to have created

5 “Take a Dive” (Dance Version) in 1999 by removing his vocals and adding a “guitar
6 twang sequence” consisting of three2 notes in a repeating progression. (FAC ¶ 29.)3
7 Pringle alleges that “Take a Dive” is substantially similar to “I Gotta Feeling” and
8 that the recorded guitar twang sequence in “I Gotta Feeling” was “directly sampled”
9 from “Take a Dive” (Dance Version). (FAC ¶¶ 40-41.)
10
A.
Pringle Is Unable to Explain How He Allegedly Created the
Guitar Twang Sequence in “Take a Dive” (Dance Version)
11
Pringle testified “I don’t specifically recall what I did in this song [“Take a

12

13 Dive” (Dance Version)] as far as specifically how I constructed the song, I just don’t
14 recall.” (SMF ¶ 7; Dickstein Decl., Ex. E (Pringle Tr. 219:14-24.)) Pringle is thus
15 unable to provide even the most basic facts about creation, such as (i) the month,
16 season or year in which he allegedly created the song (id. at 100:24-101:8, 204:1717 206:20), (ii) how he recorded the guitar twang sound or the chords that comprise the
18 guitar twang sequence (id. at 239:10-240:8, 242:3-17), or (iii) how he allegedly
19 added the guitar twang sequence into the original version of “Take a Dive” (id. at
20 216:20-217:21, 244:6-245:6, 249:15-250:12; SMF ¶ 8.) Nor can Pringle identify
21 anyone who can corroborate his story. (Id. at 201:4-202:18; SMF ¶ 9.)
The few details Pringle has provided indicate that the guitar twang sequence
22
23 was not his original work, but something he copied from another source. Pringle
24 testified that the guitar twang sequence was “just a sample” of a Fender Stratocaster
25

2

Although Pringle asserts that the guitar twang sequence consists of four notes (D4,
C4, B3 and G3), his transcription of the sequence itself makes clear that it contains
26
only three notes (D4, C4 and B3) and is merely in the key of G3. (FAC ¶ 29.)
3
27 Aside from removing the vocals and adding the guitar twang sequence, Pringle
asserts that “Take a Dive” and “Take a Dive” (Dance Version) are exactly the same.
28 (Pl.’s Mem. of Law for PI Motion (Doc. 73-1) at 4 n.3.)
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1 guitar sound that he obtained from a music sample disc. (Id. at 230:7-231:2.)
2 Pringle later testified that he never actually played a Stratocaster guitar, and
3 reiterated that the guitar twang sequence was “possibly from [a music sample disc
4 named] Best Service or it’s from the other sample artists.” (Id. at 235:20-236:20.)
5
B.
Pringle’s Mysterious NRG File is No Evidence That He Created
“Take a Dive” (Dance Version) Before the Release of “I Gotta
6
Feeling”
7
Pringle has no evidence of his alleged creation of “Take a Dive” (Dance
8
Version) or the guitar twang sequence. Instead, he claims the music equipment he
9
used, including an ASR10 sampling keyboard and computer hard drives, were
10
stolen. (Pringle Tr. 151:5-152:12, 155:9-156:2; SMF ¶¶ 66-67.))
11
Pringle offers only an “NRG” disc image file. Unlike a music CD or MP3
12
file, an NRG file is not a mixed sound recording. It cannot be played on a CD
13
player or a computer. It would not qualify as a “best copy” to be deposited in the
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Copyright Office. Instead, as sound recording expert Professor Geluso explains,
15
Pringle’s NRG file contains a series of separate sound files for each of the individual
16
instruments that appear in “Take a Dive” (Dance Version). (SMF ¶¶ 68-74; Geluso
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Decl. ¶¶ 25-28.) Pringle’s NRG file is not a sound recording of “Take a Dive
18
(Dance Version)” or even of the guitar twang sequence. It contains separate files of
19
each of the three individual chords that make up the guitar twang sequence. (Id.)
20
The only way to re-create the complete “Take a Dive” (Dance Version) sound
21
recording from the NRG file is to manually load each instrument file into an ASR10
22
sampling keyboard, and instruct the ASR10 to play the individual tracks together in
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a particular rhythmic way. (Id.) In other words, the various instrument files must be
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manipulated to create a completed sound recording.
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Although the NRG file that Pringle proffers4 shows creation and last modified

1

2 dates in 1999, there is no evidence that Pringle actually created “Take a Dive”
3 (Dance Version) and the guitar twang sequence before the release of “I Gotta
4 Feeling.” Erik Laykin, a computer forensic expert, explains that file creation and
5 modification dates can easily be backdated by even the most inexperienced
6 computer user, by simply changing the clock on the computer and then saving the
7 file and burning it to a CD. (SMF ¶¶ 76-78; Laykin Decl. ¶¶ 21-29.) Laykin further
8 explains that the creation dates of Pringle’s NRG file cannot be authenticated
9 without analyzing the computer used to create it and to burn it to a CD. (Laykin
10 Decl. ¶¶ 30-33.) But Pringle claims that his 1999 computer was stolen, and he
11 admitted discarding the hard drives he used after he claims to have learned of “I
12 Gotta Feeling” in 2010. (Dickstein Decl., Ex. E (Pringle Tr. 34:2-37:23, 151:513 152:4, 155:9-156:2, 340:20-342:20.))
14 III.
15
16
17
18
19
20
21

There is No Evidence Defendants Ever Had Access to Pringle’s Song
A.
There is No Evidence that Pringle Ever Sent a Copy of “Take a
Dive” (Dance Version) to Any of the Defendants
Pringle claims that he “regularly” distributed his songs to essentially everyone

in the music business, including Defendants UMG Recordings, Inc., Interscope
Records (together the “UMG Defendants”) and EMI April Music, Inc. (“EMI”), and
he prided himself on being a pest who would “harass people” in the music business
with repeated mailings of his demos. (SMF ¶ 38; Dickstein Decl., Ex. E (Pringle Tr.
66:11-16.)) Pringle further claims that he received “numerous letters in response to

22
23
24
25
26
27
28

4

Pringle has had difficulty even identifying which NRG file he claims contains
“Take a Dive” (Dance Version). In his November 2010 TRO application, Pringle
swore that he saved the NRG file from his ASR10 sampling keyboard to his
computer on June 14, 1999 and that he then burned it to a CD in May 2001. (SMF
¶¶ 80-81; Doc. 15 at ¶ 5.) Pringle even quoted that CD’s serial number in his TRO
declaration (id.) and submitted a purported expert report attesting to creation and
modification dates of that file (Doc. 15 at ¶¶ 5-6). Two months later, however, in
his January 2011 preliminary injunction application, Pringle changed his story and
admitted that the NRG file which he had cited and given to his expert was the wrong
file and did not contain the song at issue. (Doc. 73-1 at 18 n.4; SMF ¶ 82.)
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1 his music submissions,” including responses from “multiple A&R representatives at
2 Interscope, UMG and EMI.” (SMF ¶ 39; FAC ¶ 33.)
3

Despite these sweeping allegations, there is no evidence whatsoever that

4 Pringle sent “Take a Dive” (Dance Version) to anyone, let alone to the
5 Defendants. Pringle admits that he never had direct contact with either Guetta or
6 Riesterer, the authors of the music for “I Gotta Feeling.”5 (SMF ¶ 42; Dickstein
7 Decl., Ex. E (Pringle Tr. 17:1-19:7, 124:2-20.))
8

Pringle claims that sometime between 2001 and 2004, Guetta’s former co-

9 producer, Joachim Garraud, wrote to Pringle asking for copies of specific songs, and
10 that Pringle then sent “Take a Dive” (Dance Version) to Garraud in France. Of
11 course, Pringle does not have either the letter from Garraud or a copy of the letter
12 and demo he allegedly sent to Garraud. (SMF ¶¶ 48-51; Dickstein Decl., Ex. E
13 (Pringle Tr. 90:5-23.)) Indeed, Pringle does not recall (i) what the letter said, (ii)
14 whether it included a specific request for music, (iii) who signed the letter, (iv)
15 whether it was typed or handwritten, or even (v) what language it was written in.
16 (Id. at 93:9-94:9, 113:1-11.)6
17

In response, the accompanying declarations of Garraud, Guetta and Riesterer

18 confirm that none of them ever had access to Pringle’s songs; never received music
19 from Pringle; and never heard of either “Take a Dive” or “Take a Dive” (Dance
20 Version). (SMF ¶ 53; Garraud Decl. ¶¶ 2-3; Riesterer Decl. ¶¶ 3-4, 8-9; Guetta Decl.
21
22
23
24
25
26
27
28

5

Both the Complaint and First Amended Complaint alleged that Guetta and
Riesterer were residents of Los Angeles. (Compl. ¶¶ 14-15; FAC ¶¶ 14-15.) It was
only after Riesterer submitted a declaration on November 23, 2010 (Doc. 22-3)
stating that he and Guetta created the music for “I Gotta Feeling” in France that
Pringle first asserted he had distributed his music in France. (Doc. 73-4 at ¶¶ 7-8.)
6
The name Joachim Garraud is not mentioned in Pringle’s pleadings, applications
for injunctive relief or his Rule 26(a) Initial Disclosures. Initially, Pringle’s focus
was on Adams and Interscope. It was only after Pringle’s counsel found a reference
to Garraud on Riesterer’s website that Garraud became a focal point in the Pringle
fantasy. (SMF ¶ 47; id., Ex. C (Riesterer Tr. 74:13-75:3.))
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1 ¶¶ 2-7.) There is also no evidence in the files of Guetta’s and Garraud’s production
2 company of any correspondence with Plaintiff. (Carre Decl. ¶¶ 5-8; SMF ¶ 53.)
3

Finally, although Pringle claims to have sent “thousands of demo CDs for

4 over a decade” to everyone in the music industry (Dickstein Decl., Ex. E (Pringle
5 Tr. 76:3-6)), Pringle has no copies of any of these demo CDs or of any cover letters
6 that he claims to have sent. (SMF ¶ 54-56; Pringle Tr. 375:22-377:22.)) Indeed,
7 Pringle does not have any evidence that “Take a Dive” or “Take a Dive” (Dance
8 Version) was ever received by anyone. (Id. at 76:3-6.) Pringle also has no way of
9 confirming whether any demo CDs he claims to have sent actually contained “Take
10 a Dive” or “Take a Dive” (Dance Version), because he would routinely send out
11 CDs that did not contain all songs listed on the liner notes, and would even send out
12 CDs with no songs at all. (Id. at 349:23-353:9.) And when Pringle subpoenaed
13 documents from TAXI Music, the music promotion company Pringle worked with,
14 TAXI produced documents that make no mention whatsoever of “Take a Dive” or
15 “Take a Dive” (Dance Version). (SMF ¶ 57; Dickstein Decl., Ex G.)
16

B.

There is No Evidence that “Take a Dive” (Dance Version) Was
Ever Played on the Radio or Sold on CDs or on the Internet
First, there is no evidence that Pringle’s music was ever played on radio

17
18
19
20
21

stations in either the U.S. or in France. (SMF ¶¶ 58-59; Dickstein Decl., Ex. E
(Pringle Tr. 291:1-292:1.)) While Pringle claims that “Take a Dive” (Dance
Version) was played on the U.S. Military’s Armed Forces Radio in France (id.), the
last time an Armed Forces Radio station operated in France was in 1967.7

22
23
24
25

Indeed, the declarations of Thibaud Fouet, Director of the French performing
rights organization, SACEM, and Gary Roth, Assistant Vice President of Broadcast
Music, Inc. (with which Pringle registered as an artist) both confirm that there is no

26
7

See http://www.afneurope.net/AboutUs/tabid/85/Default.aspx (stating that in 1967
“AFN Orleans shuts down as France withdraws from NATO and asks U.S. troops to
28 leave.”) (last visited November 11, 2011); (SMF ¶ 60.)
27

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1 evidence that Pringle’s song was ever publicly performed in the U.S., France or in
2 any of SACEM’s European territories. (SMF ¶ 61; Fouet Decl.; Roth Decl.)
3

Second, although Pringle claims that “Take a Dive” (Dance Version) was

4 released on an album by a now-defunct record company, Pringle does not know how
5 many copies of that album were allegedly sold, and has no evidence that might
6 corroborate his assertion that his song was actually released to the public, such as a
7 copy of a recording agreement or royalty statement. (SMF ¶ 62; Dickstein Decl., Ex.
8 E (Pringle Tr. 130:3-131:10, 140:7-18.))
9
Third, although Pringle claims that “Take a Dive” (Dance Version) was sold
10 on the Internet, he does not recall how many copies were sold or by which websites,
11 nor does he have any records identifying any alleged sales. (Id. at 132:21-133:24.)
12 Of course, there is no evidence that any of the Defendants ever purchased or listened
13 to any of Pringle’s music on CD or the Internet. (SMF ¶ 64; id. at 142:23-143:16.)
14

Given the absence of widespread distribution, it is not surprising that Pringle

15 acknowledged that he earned only “[b]eer money” from the sale of all his music.
16 (SMF ¶ 65; id. at 338:21-339:4.)
17 IV.
18

Pringle Belatedly Applies to Register a Copyright in “Take a Dive”
(Dance Version) After “I Gotta Feeling” Has Become a Worldwide Hit
A.

19
20
21

The Copyright Office Denies Pringle’s Application for a
Copyright in the Musical Composition of the Guitar Twang
Sequence

Although Pringle claims to have created “Take a Dive” (Dance Version) in

22 1999, he did not apply to register his copyright in that work until November 15,
23 2010, well after the release of “I Gotta Feeling.” Pringle’s application sought
24 registration for both the sound recording and musical composition embodied in the
25 guitar twang sequence (the only new material allegedly added to “Take a Dive”
26 (Dance Version)). (SMF ¶ 35-37; Dickstein Decl., Ex. H at 7.) The Copyright
27 Office denied Pringle’s application for musical composition copyright, stating:
28
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1
2
3
4
5
6

As you know from our previous correspondence, we have been
reviewing your material because of a question concerning the
copyrightability of the new musical authorship, which consists of a
repeating guitar progression and rhythmic pattern. We have made the
determination [that] we will not be able to complete a claim in the new
musical authorship. . . . . Because this work does not contain enough
original musical authorship to be copyrightable, we cannot register the
claim in the new music. (Dickstein Decl., Ex. H at 33.)

7 Pringle’s copyright registration for “Take a Dive” (Dance Version) is therefore
8 limited to the sound recording of the guitar twang sequence, and expressly excludes
9 the underlying musical composition. (Id. at 37-38.)
B.
Pringle Provides the Copyright Office With a Manual Re10
Creation of “Take a Dive” (Dance Version) that Did Not Exist in
11
1999
12

Pringle submitted to the Copyright Office an MP3 song file as a deposit copy

13 with his November 2010 copyright registration application. This MP3 file did not
14 date back to 1999, but was re-created using the various instrument sounds contained
15 in his NRG file. (SMF ¶¶ 86-87; Dickstein Decl., Ex. E (Pringle Tr. 262:10-14,
16 267:14-268:9), Ex. I (Pl.’s Resp. to Pineda’s RFA No. 41.)) Pringle did so by
17 “manually” “load[ing] each individual instrument in the proper place, load[ing] up
18 the sequence . . . [and l]oad[ing] the effect that’s corresponding to that[.]” (SMF
19 ¶ 90; id., Ex. E (Pringle Tr. 254:21-255:13.)) This involved a process of “trial and
20 error” and “switch[ing] things around until it finally played properly” based on
21 Pringle’s recollection of “what the song sounded like” when he allegedly created it
22 in 1999. (SMF ¶¶ 90-91; id. at 254:21-256:18.) Thus, Pringle’s registration
23 application, ostensibly for a 1999 sound recording, was “evidenced” by an MP3 file
24 that was not a copy of the original sound recording, but a manual approximation
25 purportedly based on Pringle’s recollection.
26
27
28
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1 V.
2
3
4

Expert Analysis Shows that Defendants Did Not Copy “Take a Dive” or
“Take a Dive” (Dance Version)
A.
Expert Sound Recording Analysis Confirms that Guetta and
Riesterer Independently Created the Guitar Twang Sequence
Defendants’ expert findings confirm that Riesterer and Guetta independently

5 created both the sounds and underlying musical composition embodied in “I Gotta
6 Feeling.” Professor Geluso explains that Riesterer’s creation files contain the
7 foundational “building blocks” that were used to create the guitar twang sequence,
8 whereas Pringle’s NRG file contains only pre-processed guitar twang samples which
9 Pringle obtained from other sources. (SMF ¶¶ 31-32; Geluso Decl. ¶¶ 15-21, 2510 28.) He further explains that Pringle’s guitar twang samples are an electronic copy
11 of the isolated guitar twang stems that Defendants made publicly available on the
12 Beatport.com website. (SMF ¶¶ 29-34; id. at ¶ 29-31.)8
B.
Expert Musicology Analysis Confirms that there are No
13
Substantial Similarities Between “Take a Dive” and “I Gotta
Feeling”
14
Dr. Lawrence Ferrara has analyzed the musical compositions embodied in the
15
16 original version of “Take a Dive” (which does not contain the guitar twang
17 sequence) and in “I Gotta Feeling,” and has determined that there are absolutely no
18 similarities that would suggest copying. Indeed, there are significant differences in
19 every element of the respective compositions – structure, harmony, rhythm, melody,
20 and lyrics. (SMF ¶ 92-98; Ferrara Decl. ¶¶ 4-5, 65, 91-97.) Whatever minimal
21 similarities may exist consist merely of basic, everyday musical building blocks that
22 are common to countless works of popular music, and are not original to “Take a
23 Dive.” (Id.)
24
25

8

Indeed, Professor Geluso’s analysis shows that Pringle copied one of The Black
Eyed Peas’ “I Gotta Feeling” vocal tracks from the files that were available on the
26
Beatport.com website, and inserted it into a version of his song which he posted to
27 the Internet. (SMF ¶¶ 29-34; Geluso Decl. ¶¶ 32-36.) Thus, Pringle had both the
ability and opportunity to copy portions of the separate “I Gotta Feeling” stems from
28 Beatport.com (or a re-mix of those stems) and insert them into his own recordings.
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1 VI.
2
3
4

Pringle Destroys Critical Electronic Evidence That Would Confirm His
Copying from “I Gotta Feeling”
As early as July 2010, The Black Eyed Peas’ lawyer wrote to Pringle’s

counsel “question[ing] . . . the authenticity of Mr. Pringle’s representations

5 regarding the dates of his computer files” and demanding that all of Pringle’s
6 electronically stored information be preserved, because they would likely contain
7 evidence of Pringle’s copying of the guitar twang sequence and backdated the dates
8 of his NRG file. (SMF ¶ 99; Dickstein Decl., Ex. J.) They further advised that
9 Pringle’s computer equipment would be “something we will necessarily request in
10 discovery should this case ever reach a filed action,” and Pringle’s lawyer
11 represented that he would preserve the equipment. (SMF ¶¶ 100, 102; Dickstein
9
12 Decl., id., Ex. K.)
13

After Pringle filed suit, Defendants requested, and Pringle’s counsel agreed

14 to, a forensic inspection of Pringle’s computer hardware and music equipment he
15 used from 2009 to the present. (SMF ¶ 104; Dickstein Decl., Exs. L, M, N.) Just
16 before the scheduled inspection was to take place on August 8, 2011, however,
17 Pringle informed Defendants that he had returned the computer hard drive he had
18 been using since January 2011 to its manufacturer, and that he disposed of the hard
19 drive he used in 2009 and 2010, which was now “probably in a landfill.” (SMF ¶¶
20 105-107; Dickstein Decl., Ex. F at 9-10, Ex. E (Pringle Tr. 34:2-35:2, 341:2121 342:20.)) Both hard drives were disposed of after Pringle retained litigation counsel
22 in February 2010 and after he filed suit in October 2010. (SMF ¶ 106; Dickstein
23 Decl., Exs. F, E at 30:16-38:13.))
24

9
Similarly, in the parties’ February 18, 2011 Joint Rule 26 Report to the Court,
25 Defendants advised that “Mr. Pringle’s ESI will likely play a crucial role in
26 discovery in this action, as it goes directly to the threshold issues of Plaintiff’s
ownership of a valid copyright, including the dates and manner of Plaintiff’s alleged
27 creation of ‘Take a Dive’ and ‘Take a Dive’ Derivative, and the validity of
Plaintiff’s asserted copyright registrations of those works.” (Doc. 110 at 7:21-25;
28 SMF ¶ 103.)

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1

Pringle also acknowledged that he “did not make a full and complete copy of

2 the entire drive from 2010” including “program-related files or Internet-related
3 files[.]” (SMF ¶ 108; Pringle Tr. at 49:1-51:4, 286:3-15.)) Defendant’s forensic
4 computer expert explains that these and other system files would contain evidence
5 of the true date of the NRG file. (Laykin Decl. ¶¶ 30-36; SMF ¶ 109.)
6

Pringle also testified that in July or August 2011, he returned the computer

7 hard drive that he had been using since the January 2011 to the manufacturer. (SMF
8 ¶ 110; Pringle Tr. 31:4-33:24.)) Pringle testified that the “I Gotta Feeling” re-mixes
9 that he obtained which had the guitar twang sequence soloed-out were saved to
10 either the 2009/2010 hard drive that he discarded in late 2010 or early 2011, or the
11 2011 drive that he returned to the manufacturer in July 2011. (SMF ¶ 111; Pringle
12 Tr. 190:6-191:23) In either case, Pringle disposed of critical evidence while this
13 action was pending. Professor Geluso states that examination of those files could
14 have further confirmed that Pringle copied from Defendants, rather than been copied
15 by them. (Geluso Decl. at ¶ 15 n.8; Laykin Decl. ¶¶ 30-36; SMF ¶¶ 101, 109.)
16
SUMMARY JUDGMENT STANDARD
17

Summary judgment is required if there is “no genuine dispute as to any

18 material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
19 Civ. P. 56(a). To defeat a properly supported summary judgment motion, the non20 movant cannot rest on his allegations alone, but must come forward with credible,
21 admissible evidence showing a genuine issue of fact as to each element of his claim.
22 Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). Accordingly,
23 “‘[u]ncorroborated and self-serving testimony,’ without more, will not create a
24 ‘genuine issue’ of material fact precluding summary judgment.” Baker v. Walker,
25 2011 WL 1239826, at *1 (E.D. Cal. March 29, 2011) (quoting Villiarimo v. Aloha
26 Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002)).
27
28
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1
2 I.

ARGUMENT
Pringle Cannot Establish Infringement of “Take a Dive” (Dance Version)

3

A plaintiff “must demonstrate (1) ownership of a valid copyright, and (2)

4 copying of constituent elements of the work that are original.” Benay v. Warner
5 Bros Entm’t, Inc., 607 F.3d 620, 624 (9th Cir. 2010) (citation omitted). Because
6 Pringle can show neither, his infringement claim fails.
A.

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

Pringle Cannot Show That He Owns a Valid Copyright In “Take
a Dive” (Dance Version)

Pringle cannot rely on his November 2010 registration to establish a prima
facie case of copyright ownership of “Take a Dive” (Dance Version), because that
registration was issued more than five years after Pringle claims the song was first
published in 1999. See 17 U.S.C. § 410(c). Pringle therefore must prove that (i) he
created the guitar twang sequence (the only allegedly new material in “Take a Dive”
(Dance Version)), and (ii) the guitar twang sequence contains non-trivial amounts of
artistic expression. See Satava v. Lowry, 323 F.3d 805, 810 (9th Cir. 2003).
1.

Pringle Cannot Prove That The Guitar Twang Sequence Was
His Original Work of Authorship
(a) There is No Evidence That the Guitar Twang Sequence
Was Pringle’s Original Work of Authorship
In denying Pringle’s preliminary injunction motion, the Court found that
Pringle had produced no evidence “i.e., proof” that he created the guitar twang
sequence. (Doc. 99 at 5-7.) As discussed above, supra at 5-6, Pringle has no
records of his alleged creation of the guitar twang sequence, is unable to provide
even the most basic facts as to how he allegedly created the guitar sequence, and
even acknowledged that “as far as specifically how I constructed the song, I just
don’t recall.” Indeed, Pringle acknowledged that he did not play any musical
instrument to create the guitar twang sequence and simply copied it from a music
sample library, see supra at 5-6, which directly contradicts his claim of authorship.
See Satava, 323 F.3d at 810.

28
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1

(b)

2
3
4

Expert Analysis Confirms that Defendants
Independently Created the Guitar Twang Sequence
and That Pringle Sampled That Sequence From
Another Source

Professor Geluso’s analysis reveals that, while Defendants’ electronic

5 creation files for “I Gotta Feeling” contain each of the separate un-processed notes
6 and chords that make up the guitar twang sequence, Pringle’s NRG file contains
7 only pre-processed samples of the guitar twang sequence. Each note and chord in
8 Pringle’s file is already “fused” together, with the sound processing already applied,
9 which indicates that Pringle sampled the guitar twang from another source. (SMF
10 ¶¶ 29-31; Geluso Decl. ¶¶ 15-28.) Indeed, Professor Geluso was able to re-create
11 the guitar twang sequence from scratch using Defendants’ creation files, something
12 that could not be done with anything in Pringle’s “creation” file. (SMF ¶ 32-34;
13 Geluso Decl. ¶¶ 17-21.)
14

2.

15
16
17

The Guitar Twang Sequence is Not Copyrightable as a
Musical Composition

“Although the amount of creative input by the author required to meet the
originality standard is low, it is not negligible. There must be something more than

18

a ‘merely trivial’ variation.” Satava, 323 F.3d at 810 (citing Feist, 499 U.S. at 362).

19

This is especially true with respect to musical composition, where courts “must be

20 ‘mindful of the limited number of notes and chords available to composers and the
21 resulting fact that common themes frequently appear in various compositions,
22 especially in popular music.’” Newton v. Diamond, 204 F. Supp. 2d 1244, 1253
23 (C.D. Cal. 2002) (quoting Gaste v. Kaiserman. 863 F.2d 1061, 1068 (2d Cir. 1988)),
24 aff’d, 349 F.3d 591 (9th Cir. 2008). Brief musical sequences consisting of only a
25 few notes or chords and unaccompanied by any lyrics – such as the guitar twang
26 sequence – are therefore not copyrightable. See, e.g., id. at 1253-54 (three-note
27 sequence with one background note not protectable); McDonald v. Multimedia
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1 Entm’t, Inc., 1991 WL 311921, at *4 (S.D.N.Y. July 19, 1991) (three-note sequence
2 not protectable).
3

Indeed, that is why the Copyright Office denied a composition copyright for

4 “Take a Dive” (Dance Version). (SMF ¶ 36; Dickstein Decl., Ex. H at 33.))
5 Because the Copyright Office has extensive experience reviewing copyright claims
6 and the authority to interpret the Copyright Act, its decisions are entitled to judicial
7 deference. See Batjac Prods. Inc. v. GoodTimes Home Video Corp., 160 F.3d 1223,
8 1230 (9th Cir. 1998) (deferring to Copyright Office’s refusal of registration, stating
9 “[t]he Register has the authority to interpret the copyright laws and [ ] its
10 interpretations are entitled to judicial deference if reasonable”) (citation omitted);
11 Southco, Inc. v. Kanebridge Corp., 390 F.3d 276, 286 (3d Cir. 2004) (“the
12 Copyright Office’s longstanding practice of denying registration to short phrases
13 merits deference”).10
14
15
16
17
18
19
20
21
22
23

B.

Pringle Cannot Show That Any Defendant Copied “Take a Dive”
(Dance Version)

Pringle’s claim also fails because he cannot show that any Defendant had
access to his demo and could have copied from it when creating “I Gotta Feeling.”
Access can be shown either by “(1) a particular chain of events . . . between the
plaintiff’s work and the defendant’s access to that work . . . or (2) the plaintiff’s
work has been widely disseminated.” Idema v. Dreamworks, Inc., 162 F. Supp. 2d
1129, 1175 (C.D. Cal. 2001). “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.” Art Attacks Ink, LLC v. MGA Entm’t, Inc., 581 F.3d

24

10
Pringle’s claim must also be dismissed because he failed to notify the Copyright
25 Office before suing based on his rejected composition claim. See 17 U.S.C. §
26 411(a) (“[W]here the deposit, application, and fee required for registration have
been delivered to the Copyright Office in proper form and registration has been
27 refused, the applicant is entitled to institute a civil action for infringement if notice
thereof, with a copy of the complaint, is served on the Register of Copyrights.”);
28 Cosmetic Ideas, Inc. v. IAC/Interactivecorp., 606 F.3d 612, 617 (9th Cir. 2010).

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1 1138, 1143 (9th Cir. 2009). “In order to support a claim of access, a plaintiff must
2 offer ‘significant, affirmative and probative evidence.’” Gable v. Nat’l Broad. Co.,
3 727 F. Supp. 2d 815, 824 (C.D. Cal. 2010), aff’d, 2011 WL 2412410 (9th Cir. June
4 16, 2011) (quoting Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir. 2003).
5 “Access may not be inferred through mere ‘speculation or conjecture’” Metro6 Goldwyn-Mayer, Inc. v. Am. Honda Motor Co., 900 F. Supp. 1287, 1297 (C.D. Cal.
7 1995) (quoting Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 113 (5th Cir. 1978)).
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

1.

There Is No Evidence the Creators of “I Gotta Feeling” Had
Access to “Take a Dive” (Dance Version)
Despite Pringle’s sweeping allegations that he “regularly” sent copies of
“Take a Dive” (Dance Version) to essentially everyone in the music industry over a
nine-year period, and that he received “numerous letters” in response from UMG,
Interscope and EMI, he has not produced even a single letter or response. Indeed,
Pringle admits that he never had any contact with Guetta, Riesterer or any of The
Black Eyed Peas. Supra at 8-9.
Recognizing that he has no evidence of access through UMG, Interscope or
EMI, Pringle fabricated a new story whereby one of David Guetta’s former coproducers, Joachim Garraud, wrote to Pringle after somehow obtaining a Pringle
demo in a French club and asked him to send a copy of “Take a Dive” (Dance
Version), and that Pringle then sent the song to Garraud. Pringle speculates that
Garraud might have then shared the demo with Guetta or Riesterer, even though
Garraud was not involved in the creation of “I Gotta Feeling.” Supra at 8-9. Like
the allegations in his complaint, Pringle’s self-serving testimony is completely
uncorroborated (not to mention far-fetched) by any objective evidence. Pringle does
not have a copy of either the letter he claims to have received from Garraud, or of
the music he claims to have sent to Garraud. (Id.) Indeed, Pringle’s own testimony
undermines this latest theory of access, as he does not recall anything about the

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1 supposed letter from Garraud, including whether or not it actually included a request
2 for music. (Id.)
3

Any speculation that this exchange with Garraud actually took place is erased

4 by Garraud’s sworn declaration that he never received any music from Pringle and
5 never gave any such music to Guetta or Riesterer. (Garruad Decl. ¶¶ 2-3; see also
6 Guetta Decl. ¶¶ 3-7; Riesterer Decl. ¶¶ 8-9; Carre Decl. ¶¶ 6-8; SMF ¶ 53); see
7 Meta-Film Assocs. v. MCA Inc., 586 F. Supp. 1346, 1355-56 (C.D. Cal. 1984)
8 (plaintiff must show that alleged third party intermediary either “was a supervisor
9 with responsibility for the defendant’s project, was part of the same work unit as the
10 copier, or contributed creative ideas or material to the defendant’s work.”).
11
2.
There is No Evidence That “Take a Dive” (Dance Version)
Received Widespread Distribution
12
Where a work has achieved “considerable commercial success” or is “readily
13
available in the market,” a court may presume that the defendants had access to the
14
work. Mestre v. Vivendi Universal U.S. Holding Co., 2005 WL 1959295, at *4 (D.
15
Or. Aug. 15, 2005), aff’d, 273 F. App’x 631 (9th Cir. 2008). Pringle cannot come
16
close to making such a showing. He cavalierly concedes that he made no more than
17
“beer money” on sales of all of his music, and both U.S. and French performing
18
rights organizations have no evidence whatsoever of any public performance of
19
“Take a Dive” (Dance Version). Supra at 9-10.
20
Indeed, Pringle does not have a shred of evidence that “Take a Dive” (Dance
21
Version) was ever so widely distributed that Defendants could be presumed to have
22
had access. See Art Attacks Ink, LLC v. MGA Entm’t Inc., 581 F.3d 1138, 1144 (9th
23
Cir. 2009) (no presumption of access even though plaintiff sold 2,000 T-shirts per
24
year including at events attended by millions of people); Rice v. Fox Broad. Co.,
25
330 F.3d 1170, 1178 (9th Cir. 2003) (no presumption of access even where video
26
sold 19,000 copies over a thirteen-year period); Jason v. Fonda, 526 F. Supp. 774,
27
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1 776 (C.D. Cal. 1981) (no more than “bare possibility” of access even where
2 plaintiff’s book sold 2,000 copies nationwide), aff’d, 698 F.2d 966 (9th Cir. 1982).
3

In sum, Pringle utterly fails to provide any “significant, affirmative and

4 probative evidence” that Defendants had access to his song. Gable, 727 F. Supp.
5 2d at 824.
6

3.

7
8
9
10
11
12
13

In order for Pringle to prevail on his sound recording infringement claim that
Defendants unlawfully sampled the guitar twang sequence sound recording, he must
show that Defendants had access to the actual sound recording of “Take a Dive”
(Dance Version) and that they physically misappropriated (i.e., “sampled”) portions
of it. (Doc. 99, Feb. 8, 2011 Order at 8-9) (citing 17 U.S.C. § 114(b)); Midler v.
Ford Motor Co., 849 F.2d 460, 462 (9th Cir. 1988) (“Mere imitation of a recorded
performance would not constitute a copyright infringement”).

14
15
16
17
18

Pringle Cannot Prove that Any Defendant Sampled from the
“Take a Dive” (Dance Version) Sound Recording

As Professor Geluso has explained, it would have been technologically
impossible for Defendants to have sampled the guitar twang sequence from
Pringle’s work, because the guitar twang sequence is layered with other sounds in
“Take a Dive” (Dance Version), yet it is clear in “I Gotta Feeling.” (Geluso Decl. ¶¶
22-24; Doc. 99 at 7-10 (Order denying Pl.’s Motion for PI).)11

19
20

II.

21

Pringle’s Claim that Defendants Infringed “Take a Dive” (Dance
Version) is Barred by His Failure to Submit a Bona Fide Deposit Copy
A court has no jurisdiction to hear a copyright infringement claim unless the

22 plaintiff has fulfilled the registration requirement, which includes depositing a copy
23 of his work with the Copyright Office. See 17 U.S.C. §§ 408(b)(1),(2), 411(a);
24 Kodadek v. MTV Networks, Inc., 152 F.3d 1209, 1211 (9th Cir. 1998). The deposit
25
11

Pringle’s lawyers acknowledged that there is no legitimate basis for this claim
when they expressly stated they would withdraw the sound recording infringement
27 claim. (SMF ¶ 83; Dickstein Decl. ¶¶ 16-17.) But they then refused to dismiss this
claim (while stating they would not pursue it “at this time”) despite a total absence
28 of supporting evidence. (SMF ¶ 84-85; Dickstein Decl., Exs. P, Q.)
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1 copy requirement is not a mere formality. It serves an important evidentiary
2 function of screening out fraudulent infringement claims based on a re-constructed
3 work made only after the defendant’s work has achieved commercial success. See
4 Tavory v. NTP, Inc., 495 F. Supp. 2d 531, 536 (E.D. Va. 2007); Coles v. Wonder,
5 283 F.3d 798, 802 (6th Cir. 2002). The deposit requirement therefore permits
6 “‘bona fide copies of the original work only.’” Kodadek, 152 F.3d at 1211 (quoting
7 Seiler, 808 F.2d at 1322). A bona fide copy “must be virtually identical to the
8 original and must have been produced by directly referring to the original.”
9 Kodadek, 152 F.3d at 1212. “[A] process of manual reconstruction from various
10 separate sources in the absence of the original work will not suffice.” Nova Design
11 Build, Inc. v. Grace Hotels, LLC, 2010 WL 747896, at *4 (N.D. Ill. Feb. 26, 2010).
12 Indeed, “the Copyright Act does not countenance the validity of any deposit copy
13 that was made with even the slightest reference to recollection.” Tavory, 495 F.
14 Supp. 2d at 536.
15
Pringle’s submission to the Copyright Office in November 2010 was conjured
16 up long after he allegedly created the song in 1999. Pringle’s manipulation of
17 sounds was “created” through “trial and error” “until it finally played properly”.
18 Supra at 11. Pringle did not refer back to the original 1999 sound recording, but to
19 the NRG file which contains fragmented instrument files, not a complete sound
20 recording. (SMF ¶¶ 69, 70, 87; Geluso Decl. ¶ 27.) Pringle therefore cannot satisfy
21 the deposit copy requirement, and the Court has no jurisdiction to hear his claim.
22 See Coles, 283 F.3d at 800 (judgment as a matter of law for defendant where
23 plaintiff “could not refer to the original version of the song when he made the
24 [deposit copy] recording because he did not possess a copy of a recording that he
25 made at the time of the song’s creation”); See Torres-Negron v. J&N Records, LLC,
26 504 F.3d 151 (1st Cir. 2007) (reconstruction of song from memory not sufficient);
27 Cartier v. Jackson, 59 F.3d 1046 (10th Cir. 1995).
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1 III.
2

Pringle Cannot Establish Infringement of “Take a Dive”
A.
There is No Evidence That Any Defendant Had Access to “Take
a Dive”

3

Pringle’s claim of infringement of the original version of “Take a Dive” fails

4 because he cannot show that Defendants had access to that song for the reasons
5
discussed in Section I.B. above.
6
B.
“Take a Dive” and “I Gotta Feeling” Are Not Substantially
Similar
7
8

Pringle’s infringement claim with respect to the original version of “Take a

9 Dive” (which does not contain the guitar twang sequence) also fails because he
10 cannot satisfy the “extrinsic” test of substantial similarity. See Kouf v. Walt Disney
11 Pictures & Television, 16 F.3d 1042, 1045 (9th Cir.1994) (“[a] plaintiff who cannot
12 satisfy the extrinsic test necessarily loses on summary judgment”)
13

Expert musicologist Dr. Lawrence Ferrara has concluded that there are no

14 musicological grounds for any claim of substantial similarity. (SMF ¶¶ 92-98;
15 Ferrara Decl. ¶ 4.) Dr. Ferrara identifies numerous major structural differences
16 between the two works (id. at ¶¶ 9-11), finds that the basic chord progressions in the
17 two works are completely different (id. at ¶¶ 14, 15), finds that there are no
18 similarities at all in melody or lyrics (id. at ¶¶ 62-64) and explains that the two
19 works have different “overall rhythmic feel and flow” (id. at ¶ 60).
20

Not only are the two works different in every musicological respect, but the

21 minimal similarities that do exist—such as the mere fact that both songs happen to
22 utilize 4/4 time, a “dance” tempo, a chorus with 8 bars, and a “1-4” chord
23 progression—are nothing more than unprotectable “musical building blocks and
24 commonplace expression and practices.” (SMF ¶ 98; id. at ¶ 65); See Batts v.
25 Adams., Case No. 10-cv-8123-JFW (RZx) (C.D. Cal. Oct. 21, 2011) (Doc. 251 at
26 *4, 8) (summary judgment for defendants, stating “the party claiming infringement
27 may place ‘no reliance upon any similarity in expression resulting from’
28 unprotectable elements”; no copyright protection for “drumbeats in both works
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1 [that] are commonplace and widely used”); O'Keefe v. Ogilvy & Mather Worldwide,
2 Inc., 590 F. Supp. 2d 500, 517 (S.D.N.Y. 2008) (summary judgment for defendant,
3 stating “the fact that two songs are similar in the sense that they both use 4/4 time ...
4 is not ... a probative similarity, because it is so commonplace that it is not unlikely to
5 arise [in] independently created works.”) (citation omitted); Currin v. Arista
6 Records, Inc., 724 F. Supp. 2d 286, 294 (D. Conn. 2010) (“[T]he speed of the song
7 is not, by itself, a protectible element.”); Goldberg v. Cameron, 2011 WL 1299007,
8 at *7 (N.D. Cal. Apr. 4, 2011) (summary judgment for defendant, stating “musical
9 ideas, such as tremolo effects, or to the mood, effect, and feeling of the
10 compositions” are unprotectable and irrelevant to a substantial similarity analysis);
11 Tisi v. Patrick, 97 F. Supp. 2d 539, 548-49 (S.D.N.Y. 2000) (no infringement based
12 on alleged copying of unprotectable elements, such as key of A, rock tempo, chord
13 structure common in rock music, and chords in “root” position).
14

Both Pringle and his “experts” assert that an ordinary listener would believe

15 that “I Gotta Feeling” was similar to “Take a Dive” (Dance Version) only because
16 of the guitar twang sequence.12 Because the guitar twang sequence is not present in
17 the original version of “Take a Dive,” Pringle essentially concedes that an ordinary
18 listener would not consider it similar to “I Gotta Feeling,” and summary judgment is
19 therefore appropriate. See Gable v. Nat’l Broad. Co., 2011 WL 2412410, at *1 (9th
20 Cir. June 16, 2011) (affirming summary judgment where “no reasonable juror could
21 find substantial similarity of ideas and expression”); Berkic v. Crichton, 761 F.2d
22 1289 (9th Cir. 1985); Funky Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d
23
24

12
See (Doc. 73-2, Stewart Decl. ¶ 6) (“As the most recognizable element, [the guitar
25 twang sequence] enables a listener to instantly identify the song.”); (Doc. 73-3,
26 Byrnes Decl. ¶ 6(f)) (“[The guitar chord accompaniment] is the element that, if
played alone, would allow a listener who was otherwise familiar with either song to
27 say, upon hearing it, ‘That is Take a Dive/I Gotta Feeling.’”); (Dickstein Decl., Ex.
(FAC ¶ 4) (the “main instrumental ‘hook line’ sequences in both songs [are] the
28 distinct, memorable parts of both songs to the hear[.]”)

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1 1072, 1077 (9th Cir. 2006) (“[A] plaintiff who cannot satisfy the extrinsic test
2 necessarily loses on summary judgment . . . .”) (citation omitted).
3 IV.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
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28

Defendants are Entitled to Judgment Based on Plaintiff’s Spoliation of
Evidence
The duty to preserve evidence arises “as soon as the parties reasonably

anticipate litigation.” Vieste, LLC v. Hill Redwood Dev., 2011 WL 2198257, at *3
(N.D. Cal. June 6, 2011). Courts have the inherent power to impose sanctions for
spoliation of evidence, including dismissing a party’s claim where the spoliation is
willful or in bad faith. See Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir.
2006) (citing Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 348
(9th Cir. 1995)) “A party’s destruction of evidence qualifies as willful spoliation if
the party has ‘some notice that the documents were potentially relevant to the
litigation before they were destroyed.’” Leon, 464 F.3d at 959 (quoting United
States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002) (emphasis in
Leon). “Moreover, because ‘the relevance of destroyed documents cannot be clearly
ascertained because the documents no longer exist,’ a party ‘can hardly assert any
presumption of irrelevance as to the destroyed documents.’” Id. (quoting Alexander
v. Nat'l Farmers Org., 687 F.2d 1173, 1205 (8th Cir. 1982)) (alteration omitted).
Pringle’s bad faith disposal of two computer hard drives he used from 2009 to
2011 fully warrants dismissal of his claim. First, there is no question that Pringle
disposed of his hard drives after he reasonably anticipated litigation. Indeed, he did
so in late 2010 or early 2011 and in mid-2011—while this litigation was pending.
Second, when Pringle disposed of his computer hard drives, he was already
on notice that the information on those drives was at least “potentially relevant.” In
July, 2010, Defendants demanded that he preserve “all computer records” since that
would “be something we will necessarily request in discovery” and Pringle’s lawyer
agreed to do so. And in February 2011, Defendants advised that “Mr. Pringle’s ESI
will likely play a crucial role in discovery in this action.” Supra at 13. Indeed,

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1 Pringle’s counsel recognized that his hard drives contained relevant information
2 when they agreed to allow the drives to be inspected.
3

Third, Defendants have been severely prejudiced by Pringle’s disposal of his

4 computer hard drives. Pringle has acknowledged that those drives contained “I
5 Gotta Feeling” re-mixes with the guitar twang sequence in the clear. Expert analysis
6 of those files could further confirm that Pringle copied the guitar twang sequence
7 from those re-mixes and inserted it into “Take a Dive” to create the phony “Take a
8 Dive” (Dance Version). Supra at 13-14. Pringle’s discarded hard drives also
9 contained temporary files and system files that could show that Pringle back-dated
10 the creation and modification dates of the NRG file. (Id.)
11
The Ninth Circuit’s decision in Leon v. IDX Systems Corp. is instructive.
12 There, the court dismissed plaintiff’s employment discrimination suit after he
13 intentionally deleted allegedly “personal” files from his computer after he filed suit,
14 and after being advised by opposing counsel of his obligation to preserve data.
15 Leon, 464 F.3d at 958. The Ninth Circuit affirmed the district court’s finding of
16 “willful spoliation” and prejudice to defendant, because the deleted files “could have
17 helped [the defendant] with its case” even though the exact contents of the deleted
18 files could never be known. Id. at 956, 959-60 (emphasis added).
19
Dismissal is even more appropriate here than in Leon. Pringle did not merely
20 delete files from his computer, but he actually discarded two entire hard drives.
21 Not only was Pringle repeatedly cautioned to preserve all electronic evidence, but
22 his own lawyers agreed preserve and allow inspection of his computer hard drives,
23 only to later inform Defendants that Pringle had gotten rid of them. And not only
24 were the files on Pringle’s computer hard drives “potentially” relevant to his claims,
25 but Pringle testified that the hard drives contained “I Gotta Feeling” re-mix files that
26 he admittedly used to copy Defendants’ music. Such nefarious conduct and abuse
27 of the judicial system mandates that Pringle’s claim be dismissed.
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1
2

CONCLUSION
For all of the above reasons, Defendants Shapiro Bernstein, Frederic Riesterer

3 and David Guetta respectfully request that the Court grant their motion for summary
4 judgment.
5
6 Dated: November 17, 2011
7

LOEB & LOEB LLP
By: /s/ Tal E. Dickstein
Donald A. Miller
Barry I. Slotnick
Tal E. Dickstein

8
9
10

Attorneys for Defendants
SHAPIRO, BERNSTEIN & CO., INC.
(incorrectly sued as Shapiro, Bernstein &
Co.), FREDERIC RIESTERER and
DAVID GUETTA

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