Bryan Pringle v. William Adams Jr et al

Filing 160

STATEMENT of Uncontroverted Facts and Conclusions of Law In Support of MOTION for Summary Judgment 159 filed by Defendants David Guetta, Frederick Riesterer, Shapiro Bernstein and Co. (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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10

UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

13 BRYAN PRINGLE, an individual,
14
15

Plaintiff,
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.,
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Defendants.

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Case No. SACV 10-1656 JST(RZx)
Hon. Josephine Staton Tucker
Courtroom 10A
STATEMENT OF
UNCONTROVERTED FACTS AND
CONCLUSIONS 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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NY987153.4
217131-10001

DEFENDANTS’ STATEMENT OF
UNCONTROVERTED FACTS AND
CONCLUSIONS OF LAW

1

Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Central

2 District of California Local Rule 56-1, and the Court’s Initial Standing Order at
3 11(c)(i), Defendants Shapiro, Bernstein & Co, Inc. (“Shapiro Bernstein”), Frederic
4 Riesterer and David Guetta (collectively, “Defendants”) respectfully submit this
5 Statement of Uncontroverted Facts and Conclusions of Law in Support of their
6 Motion for Summary Judgment.
7
Pringle Cannot Establish Infringement of “Take a Dive” (Dance Version)
8 I.
A.

9
10

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

11

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

12

(a)

There is No Evidence that the Guitar Twang Sequence
Was Pringle’s Original Work of Authorship
Authority: Benay v. Warner Bros Entertainment, Inc., 607 F.3d 620 (9th
Cir. 2010) (citation omitted); Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003);
17 U.S.C. § 410(c).

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UNCONTROVERTED MATERIAL FACT

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2.

SUPPORTING
EVIDENCE
Background Facts and Pringle’s Allegations
Bryan Pringle is a real-estate developer from
Compl. (Doc. 1) at ¶ 9.
San Antonio, Texas.
In October 2010, seventeen months after “I
Compl. (Doc. 1)
Gotta Feeling” was released, Pringle filed suit
against each of The Black Eyed Peas, Guetta,
Riesterer and eleven (11) record labels and
music publishing companies, claiming that “I
Gotta Feeling” infringed the musical
composition copyright in “Take a Dive” and the
composition and sound recording copyright in
“Take a Dive (Dance Version).

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NY987153.4
217131-10001

1

DEFENDANTS’ STATEMENT OF
UNCONTROVERTED FACTS AND
CONCLUSIONS OF LAW

1 3.
2

Pringle alleges that he created “Take a Dive” in Dickstein Decl., Ex. A (First
1998, and created “Take a Dive” (Dance
Amended Complaint
Version) in 1999 by removing the vocals from
(“FAC”) ¶¶ 29, 40-41)
3
“Take a Dive” and adding a repeating “guitar
twang sequence.”
4
4. Pringle alleges that “Take a Dive” is
Dickstein Decl., Ex. A (FAC
5
substantially similar to “I Gotta Feeling” and
¶¶ 29, 40-41)
that the recorded guitar twang sequence in “I
6
Gotta Feeling” was “directly sampled” from
7
“Take a Dive” (Dance Version).
Dickstein Decl., Ex. A (FAC
8 5. Pringle states that the guitar twang sequence
consists of four notes (D4, C4, B3 and G3), and ¶ 29)
9
also presents a transcription of the sequence that
contains only three notes (D4, C4 and B3) and
10
is in the key of G3.
11 6. Pringle asserts that, aside from removing the
Pringle’s Memo of Law for
vocals and adding the guitar twang sequence,
PI Motion (Doc. 73-1) at 4
12
n.3
“Take a Dive” and “Take a Dive” (Dance
13
Version) are exactly the same.
Pringle’s Alleged Creation of “Take a Dive” (Dance Version)
14
7. Pringle does not recall how, specifically, he
Dickstein Decl., Ex. E
15
created “Take a Dive” (Dance Version).
(Pringle Dep. Tr. at 219:1424)
16
8. Pringle is unable to explain how he allegedly
Dickstein Decl., Ex. E
17
created “Take a Dive” (Dance Version) and the (Pringle Dep. Tr. at 100:2418
guitar twang sequence, including: (i) the month, 101:8, 204:17-206:20;
season or even the year in which he allegedly
239:10-240:8, 242:3-17;
19
created the song (ii) how he recorded the guitar 216:20-217:21, 244:6-245:6,
20
twang sound or the chords that comprise the
249:15-250:12)
guitar twang sequence, or (iii) how he allegedly
21
added the guitar twang sequence into the
22
original version of “Take a Dive.”
Dickstein Decl., Ex. E
23 9. Pringle identifies no one who can corroborate
his story about how he allegedly created “Take (Pringle Dep. Tr. 201:424
a Dive” (Dance Version).
202:18)
25 10. Pringle testified that the guitar twang sequence Dickstein Decl., Ex. E
was “just a sample” of a Fender Stratocaster
(Pringle Dep. Tr. 230:726
guitar sound that Pringle obtained from a music 231:2)
sample disc named “Best Service.”
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217131-10001

2

DEFENDANTS’ STATEMENT OF
UNCONTROVERTED FACTS AND
CONCLUSIONS OF LAW

1 11. Pringle has never played a Stratocaster guitar.
2

Dickstein Decl., Ex. E
(Pringle Dep. Tr. 235:20236:20)
Dickstein Decl., Ex. E
(Pringle Dep. Tr. 235:20236:20)

3 12. Pringle testified that the guitar twang sequence
was “possibly from [a music sample disk
4
named] Best Service or it’s from the other
5
sample artists.”
Dickstein Decl., Ex. E
6 13. The details Pringle has provided indicate that
the guitar twang sequence was not his original
(Pringle Dep. Tr. 230:77
work, but something he copied from another
231:2, 235:20-236:20)
source.
8
Guetta and Riesterer’s Independent Creation of “I Gotta Feeling”
9 14. In 2008, William Adams, a member of The
Dickstein Decl., Ex. B
Black Eyed Peas, asked David Guetta to create (Adams Dep. Tr. 236:1710
the music for a song for The Black Eyed Peas’ 239:20, 258:6-18)
11
new album.
Riesterer Decl. at ¶¶ 4-7;
12 15. To create the music, Guetta collaborated with
Frederic Riesterer.
Dickstein Decl., Ex. C
13
(Riesterer Dep. Tr. 165:19166:21, 179:10-181:8)
14
16. Riesterer created a sequence of guitar sounds
Riesterer Decl. at ¶¶ 4-7;
15
using an electronic guitar sound (or “pre-set”)
Dickstein Decl., Ex. C
16
he selected from “PlugSound: Fretted
(Riesterer Dep. Tr. 165:19Instruments,” a French sound library.
166:21, 179:10-181:8)
17
17. Riesterer then used sound processing software
Riesterer Decl. at ¶¶ 4-7;
18
to modify the PlugSound guitar pre-set. The
Dickstein Decl., Ex. C
result was a “twangy” sound that was different (Riesterer Dep. Tr. 165:1919
from both the PlugSound guitar pre-set and the 166:21, 179:10-181:8)
20
sound that he used in the song “Love is Gone.”
21 18. Using this “twangy” sound, Riesterer composed Riesterer Decl. at ¶¶ 4-7;
a progression of guitar chords for use in the new Dickstein Decl., Ex. C
22
song for the Black Eyed Peas.
(Riesterer Dep. Tr. 165:19166:21, 179:10-181:8)
23
19. The result of Riesterer’s modification of the
Riesterer Decl. at ¶¶ 4-7;
24
PlugSound pre-set and his chord progression
Dickstein Decl., Ex. C
composition was an original guitar “twang”
(Riesterer Dep. Tr. 165:1925
sequence.
166:21, 179:10-181:8)
26 20. On December 20, 2008, Guetta sent Adams the Dickstein Decl., Ex. B
music that he and Riesterer created, which they (Adams Dep. Tr. 75:2227
tentatively named “David Pop Guitar.”
78:23, 304:9-305:6)
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NY987153.4
217131-10001

3

DEFENDANTS’ STATEMENT OF
UNCONTROVERTED FACTS AND
CONCLUSIONS OF LAW

1 21. Adams wrote lyrics to accompany “David Pop
Guitar” but did not change any of the music.
2
3
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5

22.

6
7
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9

23.

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11 24.
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13

25.

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26.

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19 27.
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21 28.
22

Dickstein Decl., Ex. B
(Adams Dep. Tr. at 35:338:23, 38:25-39:3, 74:2175:2, 217:7-10, 258:22259:13)
The combination of Guetta and Riesterer’s
Dickstein Decl., Ex. B
music with Adams’ lyrics became the song “I
(Adams Dep. Tr. at 35:3Gotta Feeling,” which The Black Eyed Peas
38:23, 38:25-39:3, 74:16released in 2009.
75:2, 217:7-10, 258:22259:13)
“Remix” Contest for “I Gotta Feeling”
In August and September 2009, The Black
Warner Decl. ¶ 3 and Audio
Eyed Peas and Guetta held a contest to see
Exhibits thereto
which DJ could create the best re-mix of “I
Gotta Feeling.”
Each of the separate instrumental tracks (known Warner Decl. ¶ 3 and Audio
as music “stems”) of “I Gotta Feeling,” were
Exhibits thereto
made available for download on Beatport.com.
The music stems made available on
Dickstein Decl., Ex. D;
Beatport.com included the guitar twang
Warner Decl. ¶ 3 and Audio
sequence that Riesterer and Guetta had created, Exhibits thereto
as well as The Black Eyed Peas’ lead and
background vocal tracks for “I Gotta Feeling.”
During the DJ contest, over 1,200 re-mixes of
Warner Decl. ¶¶ 3-4
“I Gotta Feeling” were submitted and circulated
on the Internet.
Many of these re-mixes contained the guitar
Dickstein Decl., Ex. E
twang sequence “soloed out” – i.e., without any (Pringle Dep. Tr. 185:3-16)
other sounds layered on top.
These re-mix versions of “I Gotta Feeling” with Dickstein Decl., Ex. E
the guitar twang sequence soloed out continue
(Pringle Dep. Tr. 185:3-16)
to be available on various Internet websites.

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(b)

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

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NY987153.4
217131-10001

4

DEFENDANTS’ STATEMENT OF
UNCONTROVERTED FACTS AND
CONCLUSIONS OF LAW

1
2

Authority: Art Attacks Ink, LLC v. MGA Entm’t, Inc., 581 F.3d 1138 (9th
Cir. 2009); Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988); Idema v.
Dreamworks, Inc., 162 F. Supp. 2d 1129 (C.D. Cal. 2001).

3
4

UNCONTROVERTED MATERIAL FACT

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29. Riesterer’s and Guetta’s creation files of the music
for “I Gotta Feeling” confirm their independent
creation of both the sounds and underlying musical
composition embodied in this work.
30. It would have been physically impossible for the
Defendants to have copied from Pringle.
31. The notes within each chord of Pringle’s guitar
twang sequence in his NRG disk are “fused”
together, indicating that he sampled them from some
other source.
32. The notes within each chord of the guitar twang
sequence in Riesterer’s creation files are separate,
indicating that he composed those chords on a
keyboard, rather than copying them from some other
source.
33. Riesterer’s creation files contain the unprocessed
version of the guitar twang sequence, whereas
Pringle’s NRG disc contains only a final, preprocessed version of the guitar twang sequence.
34. It would have been technologically impossible for
Defendants to have sampled from the mixed version
of Pringle’s song that he claims to have distributed.

SUPPORTING
EVIDENCE
Geluso Decl. ¶¶ 15-21,
25-28

Geluso Decl. ¶¶ 22-24
Geluso Decl. ¶¶ 24-28;
Geluso Decl. on PI
(Doc. 81-1)
Geluso Decl. ¶¶ 15-21

Geluso Decl. ¶¶ 15-21,
25-28

Geluso Decl. ¶¶ 22-24;
Geluso Decl. on PI
(Doc. 81-1)

2.

The Guitar Twang Sequence is Not Copyrightable as a
Musical Composition
Authority: Newton v. Diamond, 204 F. Supp. 2d 1244 (C.D. Cal. 2002)
(quoting Gaste v. Kaiserman. 863 F.2d 1061 (2d Cir. 1988)); McDonald v.
Multimedia Entertainment, Inc., 1991 WL 311921 (S.D.N.Y. July 19, 1991);
Batjac Productions Inc. v. GoodTimes Home Video Corp., 160 F.3d 1223 (9th
Cir. 1998); Southco, Inc. v. Kanebridge Corp., 390 F.3d 276 (3d Cir. 2004)

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NY987153.4
217131-10001

5

DEFENDANTS’ STATEMENT OF
UNCONTROVERTED FACTS AND
CONCLUSIONS OF LAW

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12
13

UNCONTROVERTED MATERIAL FACT
35. Pringle’s November 15, 2010 copyright registration
application for “Take a Dive” (Dance Version)
sought registration for both the sound recording and
the musical composition embodied in the guitar
twang sequence (the only new material allegedly
added to “Take a Dive” (Dance Version)).
36. The United States Copyright Office denied Pringle’s
application to register a copyright in the musical
composition of the guitar twang sequence “[b]ecause
this work does not contain enough original musical
authorship to be copyrightable.”
37. Pringle’s copyright registration for “Take a Dive”
(Dance Version) is limited to the sound recording of
the guitar twang sequence, and does not include the
underlying musical composition.
B.

SUPPORTING
EVIDENCE
Dickstein Decl., Ex. H
at 7

Dickstein Decl., Ex. H
at 33-36

Dickstein Decl., Ex. H
at 37-38

14

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

15

1.

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19

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

Authority: Art Attacks Ink, LLC v. MGA Entertainment Inc., 581 F.3d 1138
(9th Cir. 2009); Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129 (C.D. Cal.
2001).
UNCONTROVERTED MATERIAL FACT

20
21 38. Pringle claims that he “regularly” distributed his
songs to virtually every entity in the music business,
22
including Defendants UMG Recordings, Inc.,
Interscope Records (together the “UMG
23
Defendants”) and EMI April Music, Inc. (“EMI”),
24
and that he would send people in the music business
multiple copies of his demos.
25
39. Pringle alleged that he received “numerous letters in
26
response to his music submissions,” including
responses from “multiple A&R representatives at
27
Interscope, UMG and EMI.”
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NY987153.4
217131-10001

6

SUPPORTING
EVIDENCE
Dickstein Decl., Ex. E
(Pringle Tr. 66:11-16),
Ex. A (FAC ¶¶ 31, 32)

Dickstein Decl., Ex. A
(FAC ¶ 33)

DEFENDANTS’ STATEMENT OF
UNCONTROVERTED FACTS AND
CONCLUSIONS OF LAW

1 40. There is no evidence that Pringle sent “Take a Dive”
(Dance Version) to any of the Defendants prior to the
2
release of “I Gotta Feeling.”
3 41. There is no evidence that Pringle sent “Take a Dive”
(Dance Version) to anyone prior to the release of “I
4
Gotta Feeling.”
5 42. Pringle admits that he has never had any direct
contact with Guetta or Riesterer.
6
7 43. Both Pringle’s October 28, 2010 Complaint and his
November 18, 2010 First Amended Complaint
8
alleged that Guetta and Riesterer were residents of
9
Los Angeles, California.
10 44. After Riesterer submitted a declaration on November
23, 2010 (Doc. 22-3) setting forth the circumstances
11
of his and Guetta’s creation of the music for “I Gotta
Feeling” in France, Pringle asserted that he had
12
distributed his music in France.
13
45. Although Pringle claims that he sent a demo CD to
Adams c/o of Interscope, Pringle does not have a
14
copy of the demo CD or any letter to Adams.
15
46. William Adams does not accept submissions of
16
unsolicited music.

Dickstein Decl., Ex. E
(Pringle Dep. Tr. 17:119:7, 124:2-20)
Dickstein Decl., Ex. E
(Pringle Dep. Tr. 17:119:7, 124:2-20)
Dickstein Decl., Ex. E
(Pringle Dep. Tr. 17:119:7, 124:2-20)
Complaint ¶ 14-15;
Dickstein Decl., Ex. A
(FAC ¶ 14-15)
Pringle Decl. for PI
(Doc. 73-4) at ¶¶ 7-8

Dickstein Decl., Ex. E
(Pringle Dep. Tr. 69:571:6, 72:20-73:13)
Dickstein Decl., Ex. B
(Adams Dep. Tr.
213:15-17)
17
47. Pringle did not mention Joachim Garraud in his
Complaint (Doc 1);
18
Complaint, First Amended Complaint, application
Dickstein Decl., Ex. A
(FAC); Pl.’s Mot. For
for Temporary Restraining Order, or Motion for
19
Preliminary Injunction.
TRO (Doc. 15); Pl.’s
20
Mot. for PI (Doc. 73),
Dickstein Decl., Ex. C
21
(Riesterer Dep. Tr.
22
74:13-75:3)
Dickstein Decl., Ex. E
23 48. Pringle testified that sometime between 2001 and
2004 Guetta’s former co-producer, Joachim Garraud, (Pringle Dep. Tr. 90:524
wrote to Pringle asking Pringle for specific songs,
23)
and that Pringle later sent “Take a Dive” (Dance
25
Version) to Garraud in France.
26 49. Pringle does not have a copy of either the alleged
Dickstein Decl., Ex. E
letter from Garraud or of the alleged letter and demo (Pringle Dep. Tr. 90:527
that Pringle allegedly sent to Garraud.
23)
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NY987153.4
217131-10001

7

DEFENDANTS’ STATEMENT OF
UNCONTROVERTED FACTS AND
CONCLUSIONS OF LAW

1 50. Pringle does not recall (i) what the alleged letter from
Garraud said, (ii) whether it included a specific
2
request for music, (iii) who signed the letter, (iv)
3
whether the letter was typed or handwritten, or (v)
what language the letter was written in.
4
51. Pringle has no evidence of the alleged written
5
correspondence with Garraud.
6
7 52. Pringle has never met Joachim Garraud.
8
9 53. Garraud never had access to Pringle’s songs; never
received music from Pringle; never heard of either
10
“Take a Dive” or “Take a Dive” (Dance Version);
11
and never gave any of Pringle’s music to Guetta or
Riesterer.
12
54. Pringle claims to have sent “thousands of demo CDs
13
for over a decade” to various persons and entities in
the music industry, but has no copies of any of these
14
demo CDs or of any cover letters that he claims to
15
have sent with those demo CDs.
16 55. Pringle has no evidence that “Take a Dive” or “Take
a Dive” (Dance Version) was ever received by
17
anyone after the release of “I Gotta Feeling.”
18 56. Pringle testified that he would routinely send out
CDs that did not contain all of the songs listed on the
19
liner notes, and that he would send out CDs that
20
contained no songs at all.
21 57. Pringle subpoenaed documents from TAXI Music,
the music promotion company Pringle worked with,
22
and TAXI produced documents that make no
mention whatsoever of “Take a Dive” or “Take a
23
Dive” (Dance Version).
24
2.

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Dickstein Decl., Ex. E
(Pringle Dep. Tr. 90:523, 93:9-94:9, 113:111)
Dickstein Decl., Ex. E
(Pringle Dep. Tr. at
90:5-23, 93:9-94:9,
113:1-11)
Dickstein Decl., Ex. E
(Pringle Dep. Tr. at
128:3-22.)
Garraud Decl. at ¶¶ 23; Riesterer Decl. at
¶ 3-4, 8-9; Guetta Decl.
at ¶¶ 2-7; Carre Decl.
¶¶ 5-8
Dickstein Decl., Ex. E
(Pringle Dep. Tr. at
76:3-6, 375:22-377:22)

Dickstein Decl., Ex. E
(Pringle Dep. Tr. at
76:3-6)
Dickstein Decl., Ex. E
(Pringle Dep. Tr. at
349:23-353:7)
Dickstein Decl., Ex. G

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

Authority: Mestre v. Vivendi Universal U.S. Holding Co., No. CV 04-442,
2005 WL 1959295, at *4 (D. Or. Aug. 15, 2005); Art Attacks Ink, LLC v.
MGA Entertainment Inc., 581 F.3d 1138, 1144 (9th Cir. 2009).
NY987153.4
217131-10001

8

DEFENDANTS’ STATEMENT OF
UNCONTROVERTED FACTS AND
CONCLUSIONS OF LAW

1
2

UNCONTROVERTED MATERIAL FACT

3 58.
4

There is no evidence supporting Pringle’s claims
that his music was played on radio stations in the
U.S. or in France.
Pringle claims that “Take a Dive” (Dance Version)
was played on Armed Forces Radio in France.

5 59.
6
7

60.

8

The last time an Armed Forces Radio station
operated in France was 1967.

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10 61.
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13 62.
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63.

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21 64.
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23 65.
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There is no evidence that “Take a Dive” was ever
publicly performed in the United States, France or
in any European territory in which SACEM
operates.
Pringle claims that “Take a Dive” and/or “Take a
Dive” (Dance Version) was released on an album by
a now-defunct record company, but Pringle does not
know how many copies of that album were
allegedly sold, and has no evidence that might
corroborate his assertion that either version of “Take
a Dive” was actually released to the public.
Pringle claims that “Take a Dive” (Dance Version)
was sold on various Internet websites, but does not
recall which websites or how many copies they sold,
nor does he have any records reflecting any of those
alleged sales.
There is no evidence that any of the Defendants ever
purchased or listened to Pringle’s song on CD or the
Internet.
Pringle testified to having earned only “[b]eer
money” from the sale of his music.

SUPPORTING
EVIDENCE
Dickstein Decl., Ex. E
(Pringle Dep. Tr. 291:1292:1).
Dickstein Decl., Ex. E
(Pringle Dep. Tr. 291:118)
http://www.afneurope.n
et/AboutUs/tabid/85/De
fault.aspx (last visited
November 9, 2011)
Fouet Decl.; Roth Decl.

Dickstein Decl., Ex. E
(Pringle Dep. Tr. 130:3131:10, 140:7-18)

Dickstein Decl., Ex. E
(Pringle Dep. Tr.
132:21-133:24)

Dickstein Decl., Ex. E
(Pringle Dep. Tr.
142:23-143:16)
Dickstein Decl., Ex. E
(Pringle Dep. Tr.
338:21-339:4)

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3.

27

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

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NY987153.4
217131-10001

9

DEFENDANTS’ STATEMENT OF
UNCONTROVERTED FACTS AND
CONCLUSIONS OF LAW

Authority: Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988); Art
Attacks Ink, LLC v. MGA Entm’t, Inc., 581 F.3d 1138 (9th Cir. 2009); 17
U.S.C. § 114(b).

1
2
3

UNCONTROVERTED MATERIAL FACT

4
5 66.
6
7 67.
8
9
10 68.
11
12

69.

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14 70.
15 71.
16

Pringle has no evidence supporting his alleged
creation of “Take a Dive” (Dance Version) or the
guitar twang sequence.
Pringle claims that the music equipment he used to
create “Take a Dive” (Dance Version), including an
ASR10 sampling keyboard, and his computer hard
drives, were stolen in late 2000.
Pringle offers an “NRG” disc image file, which
contains a series of separate sound files for each of
the individual instruments that appear in “Take a
Dive” (Dance Version).
Pringle’s NRG file is not a mixed sound recording
of “Take a Dive” (Dance Version).
Pringle’s NRG file cannot be played on a CD player
or a computer.
Pringle’s NRG file does not qualify as a “best copy”
to be deposited in the Copyright Office.

17
18
19

72.

20
21

73.

22
23
24
25
26

74.

Pringle’s NRG file is not a sound recording of
“Take a Dive (Dance Version)” or of the eight-bar
guitar twang sequence.
Pringle’s NRG file contains separate files of each of
the three individual chords that make up the guitar
twang sequence.
The only way to re-create the complete “Take a
Dive” (Dance Version) sound recording from
Pringle’s NRG file is to manually load each
instrument file into an ASR10 sampling keyboard,
and instruct the ASR10 to play the individual tracks
together in a particular rhythmic way.

SUPPORTING
EVIDENCE
Dickstein Decl., Ex. E
(Pringle Dep. Tr. 151:5152:4, 155:9-156:2)
Dickstein Decl., Ex. E
(Pringle Dep. Tr. 151:5152:4, 155:9-156:2)
Geluso Decl. ¶¶ 25-28

Geluso Decl. ¶ 27
Geluso Decl. ¶¶ 27
Dickstein Decl., Ex. E
(Pringle Dep. Tr.
254:21-256:18, 262:1014, 267:14-268:9);
Geluso Decl. ¶¶ 25-28
Geluso Decl. ¶¶ 25-28

Geluso Decl. ¶ 25

Geluso Decl. ¶¶ 25-28;
Dickstein Decl., Ex. I
(Pl.’s Resp. to Pineda’s
RFA No. 40.)

27
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10

DEFENDANTS’ STATEMENT OF
UNCONTROVERTED FACTS AND
CONCLUSIONS OF LAW

1 75.
2
3
4 76.
5
6 77.
7
8
9 78.
10
11
12
13

79.

14

In order to re-create the complete “Take a Dive”
(Dance Version) sound recording from the NRG
file, it is necessary to manipulate the various
instrument files to create a completed musical work.
There is no evidence that Pringle created “Take a
Dive” (Dance Version) and the guitar twang
sequence prior to release of “I Gotta Feeling.”
The creation and last modified dates on an NRG
file (including the NRG file referenced above) can
be backdated by simply changing the clock on the
computer and then re-saving the file and burning it
to a CD.
Evidence either supporting or refuting Pringle’s
contentions regarding “Take a Dive” and “Take a
Dive” (Dance Version) would likely have been
found on the computer that Pringle used to create
the NRG file.
During this litigation, Pringle disposed of the
computer hard drives that he used from 2009 to
2011.

15
16
17

80.

18
19
20
21

81.

22
23
24 82.
25
26
27

Pringle has identified two separate NRG files as
containing “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.
In his TRO declaration, Pringle quoted that CD’s
serial number and submitted a purported expert
report attesting to creation and modification dates of
that file.
In his January 2011 preliminary injunction
application, Pringle stated that the NRG file which
he had cited in connection with his TRO application
and given to his expert was the wrong file and did
not contain the song at issue.

Geluso Decl. ¶¶ 25-28

Laykin Decl. ¶¶ 21-36

Laykin Decl. ¶¶ 21-29

Laykin Decl. ¶¶ 30-33

Dickstein Decl., Ex. E
(Pringle Dep. Tr. 31:633:24, 34:2-37:23,
151:5-152:4, 155:9156:2, 190:6-191:23,
340:20-342:20)
Pringle Decl. for TRO
(Doc. 15-8) at ¶ 5);
Gallant Decl. for TRO
(Doc. 15-5) at ¶¶ 5-6

Pringle Decl. for TRO
(Doc. 15-8) at ¶ 5);
Gallant Decl. for TRO
(Doc. 15-5) at ¶¶ 5-6
Pl.’s Mem. of Law for
PI (Doc. 73-1) at 18 n.4

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11

DEFENDANTS’ STATEMENT OF
UNCONTROVERTED FACTS AND
CONCLUSIONS OF LAW

1 83.
2
3
4
5

84.

6
7

85.

8
9
10
11
12

II.

13

In a conference of counsel on November 1, 2011,
Pringle’s counsel clearly, expressly, and
unequivocally stated that Pringle would withdraw
his claim of infringement of his sound recording
copyright.
When Defendants’ counsel proposed a stipulation
dismissing Pringle’s sound recording claim,
Pringle’s counsel refused to sign the stipulation.
In an interrogatory response dated November 7,
2011, Pringle stated that he “is not seeking to
recover for a physical appropriation of Take a Dive
(Dance Version) at this time [but] Plaintiff reserves
the right to seek recovery for physical appropriation
of Take a Dive should Defendants produce evidence
of said appropriation; investigation continues.”

15

UNCONTROVERTED MATERIAL FACT
86.

Pringle submitted to the Copyright Office an MP3
sound file as a deposit copy with his November
2010 copyright registration application.

87.

The MP3 sound file that Plaintiff submitted to the
Copyright Office did not exist in 1999, but was recreated using the various instrument sounds
contained in Pringle’s NRG file.

18
19
20

22
23

Dickstein Decl., Ex. Q
(Pl.’s Am. Resps. to
Ferguson’s
Interrogatory No. 18).

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

16

21

Dickstein Decl., Exs. O,
P

Authority: Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (9th Cir. 1998);
17 U.S.C. §§ 408(b)(1),(2), 411(a).

14

17

Dickstein Decl. ¶¶ 1617.

24

SUPPORTING
EVIDENCE
Dickstein Decl., Ex. E
(Pringle Dep. Tr.
262:10-14, 267:14268:9); Ex. I (Pl.’s
Resps to Pineda’s
RFAs No. 40, 41, 44)
Dickstein Decl., Ex. E
(Pringle Dep. Tr.
262:10-14, 267:14268:9); Ex. I (Pl.’s
Resps to Pineda’s
RFAs No. 40, 41, 44)

25
26
27
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12

DEFENDANTS’ STATEMENT OF
UNCONTROVERTED FACTS AND
CONCLUSIONS OF LAW

1 88.
2
3
4
5 89.
6
7
8
9 90.
10
11
12
13

91.

14
15
16

Pringle testified that the MP3 file that he submitted
to the Copyright Office was either created from his
NRG file or copied from his original hard drive.

Dickstein Decl., Ex. E
(Pringle Dep. Tr.
262:10-14, 267:14268:9); Ex. I (Pl.’s
Resps to Pineda’s
RFAs No. 40, 41, 44)
Pringle later acknowledged that he did not have the Dickstein Decl., Ex. E
original hard drive in his possession when he created (Pringle Dep. Tr.
the MP3 file, so it could only have come from his
262:10-14, 267:14NRG file.
268:9); Ex. I (Pl.’s
Resps to Pineda’s
RFAs No. 40, 41, 44)
Pringle created the MP3 file by “manually”
Dickstein Decl., Ex. E
“load[ing] each individual instrument in the proper
(Pringle Dep. Tr.
place, load[ing] up the sequence . . . [and l]oad[ing] 254:21-255:13); Ex. I
the effect that’s corresponding to that[.]”
(Pl.’s Resps to Pineda’s
RFAs No. 40)
Re-creating “Take a Dive” (Dance Version) from
Dickstein Decl., Ex. E
Pringle’s NRG disk involved a process of “trial and (Pringle Dep. Tr.
error” and “switch[ing] things around until it finally 254:21-256:18)
played properly” based on Pringle’s recollection of
“what the song sounded like” when he allegedly
created it in 1999.

17

19

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

20

Section I.B is incorporated by reference herein.

21
22

B.
“Take a Dive” and “I Gotta Feeling” are Not Substantially Similar
Authority: Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1044
(9th Cir.1994).

23

UNCONTROVERTED MATERIAL FACT

18

III.

24
25
26
27

92.

Dr. Lawrence Ferrara has analyzed the musical
composition embodied in the original version of
“Take a Dive” and “I Gotta Feeling,” and has
determined that there are absolutely no similarities
that would suggest copying.

SUPPORTING
EVIDENCE
Ferrara Decl. ¶¶ 4, 9197

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13

DEFENDANTS’ STATEMENT OF
UNCONTROVERTED FACTS AND
CONCLUSIONS OF LAW

1 93.
2
3
4 94.
5 95.
6
96.
7
8 97.
9 98.
10
11
12
13
14 IV.
15
16
17

There are significant differences between “I Gotta
Feeling” and “Take a Dive” in every element of the
respective compositions – structure, harmony,
rhythm, melody, and lyrics.
There are numerous major structural differences
between “I Gotta Feeling” and “Take a Dive.”
The basic chord progressions in “I Gotta Feeling”
and “Take a Dive” are not substantially similar.
There are no similarities at all in melody or lyrics of
“I Gotta Feeling” and “Take a Dive.”
“I Gotta Feeling” and “Take a Dive” have different
“overall rhythmic feel and flow.”
The similarities that do exist between “I Gotta
Feeling” and “Take a Dive”—such as the fact that
both songs happen to utilize 4/4 time, a “dance”
tempo, a chorus with 8 bars, and a “I-IV” chord
progression—are “musical building blocks and
commonplace expression and practices.”

Ferrara Decl. ¶¶ 4, 9197

Ferrara Decl. ¶ ¶ 9-11
Ferrara Decl. ¶¶ 14, 15
Ferrara Decl. ¶¶ 62-64
Ferrara Decl. ¶ 60
Ferrara Decl. ¶ 65

Defendants are Entitled to Judgment Based on Plaintiff’s Spoliation of
Evidence
Authority: Vieste, LLC v. Hill Redwood Development, 2011 WL 2198257
(N.D. Cal. June 6, 2011); Leon v. IDX Systems Corp., 464 F.3d 951 (9th Cir.
2006) (citing Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d
337 (9th Cir. 1995)).

18
UNCONTROVERTED MATERIAL FACT

19
20 99.

SUPPORTING
EVIDENCE
Dickstein Decl., Ex. J

As early as July 24, 2010, The Black Eyed Peas’
counsel wrote to Pringle’s counsel “question[ing] ...
21
the authenticity of Mr. Pringle’s representations
regarding the dates of his computer files” and
22
demanding that all of Pringle’s electronically stored
23
information be preserved.
24 100. By email dated July 29, 2010, counsel for Pringle
Dickstein Decl., Ex. K
agreed to preserve Pringle’s computer equipment
25
and electronically stored information.
26
27
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14

DEFENDANTS’ STATEMENT OF
UNCONTROVERTED FACTS AND
CONCLUSIONS OF LAW

1 101. Pringle’s computer hard drives used in 2009 and
2010 likely contained evidence of Pringle’s
2
copying of the guitar twang sequence from “I Gotta
3
Feeling” and manipulation of the dates of his NRG
file.
4
102. The Black Eyed Peas’ counsel further advised that
5
Pringle’s computer equipment would be
“something we will necessarily request in discovery
6
should this case ever reach a filed action.”
7 103. In the February 18, 2011 Joint Rule 26 Report,
Defendants advised that “Mr. Pringle’s ESI will
8
likely play a crucial role in discovery in this action,
9
as it goes directly to the threshold issues of
Plaintiff’s ownership of a valid copyright, including
10
the dates and manner of Plaintiff’s alleged creation
11
of ‘Take a Dive’ and ‘Take a Dive’ Derivative, and
the validity of Plaintiff’s asserted copyright
12
registrations of those works.”
13 104. After Pringle filed suit, Defendants requested, and
Pringle agreed to, a forensic inspection of all of
14
Pringle’s computer hardware and music equipment
15
from 2009 to the present.
16 105. Shortly before a scheduled inspection of Pringle’s
computer equipment, Pringle’s counsel informed
17
Defendants that just a few weeks earlier Pringle had
returned the computer hard drive that he had been
18
using since January 2011 to its manufacturer, and
19
that he had previously disposed of the hard drive
that he used in 2009 and 2010.
20
106. Pringle claimed to be following a practice of
21
“replac[ing] his hard drive every 6 to 12 months”
22
and “discard[ing] the prior drive” – even after he
retained litigation counsel in February 2010 and
23
filed suit in October 2010.
24 107. The computer hard drive that Pringle had used in
2009 and 2010 is “probably in a landfill” because
25
Pringle discarded it in December 2010 or January
26
2011.

Dickstein Decl., Ex. J;
Laykin Decl. ¶¶ 30-36;
Geluso Decl. at¶ 15 n.8

Dickstein Decl., Ex. J

Joint Rule 26 Report
(Doc. 110) at 7:21-25

Dickstein Decl., Exs. L,
M, N

Dickstein Decl., Ex. F

Dickstein Decl., Exs. F,
E (Pringle Dep. Tr.
30:16-38:13)

Dickstein Decl., Ex. E
(Pringle Dep. Tr. 34:237:23, 340:20-342:20)

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15

DEFENDANTS’ STATEMENT OF
UNCONTROVERTED FACTS AND
CONCLUSIONS OF LAW

1 108. Pringle acknowledged that he “did not make a full
and complete copy of the entire drive from 2010”
2
including any “program-related files or Internet3
related files[.]”
4 109. These and other system files from Pringle’s hard
drives would contain evidence of the true date of
5
the NRG file.
6 110. Pringle testified that in July or August 2011, he
returned to the manufacturer the computer hard
7
drive that he had been using since January 2011.
8 111. Pringle testified that the “I Gotta Feeling” re-mixes
that he obtained which had the guitar twang
9
sequence in the clear were saved to either the
2009/2010 hard drive that he discarded in late 2010
10
or early 2011, or the 2011 drive that he returned to
11
the manufacturer in July 2011.
12
13 Dated: November 17, 2011
14

Dickstein Decl., Ex. E
(Pringle Dep. Tr. 49:151:4, 286:3-15)
Laykin Decl. ¶¶ 30-36;
Geluso Decl. at ¶ 15 n.8
Dickstein Decl., Ex. E
(Pringle Dep. Tr. 31:433:24)
Dickstein Decl., Ex. E
(Pringle Dep. Tr.
190:6-191:23)

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

15
16

Attorneys for Defendants
SHAPIRO, BERNSTEIN & CO., INC.,
FREDERIC RIESTERER and DAVID
GUETTA

17
18
19
20
21
22
23
24
25
26
27
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16

DEFENDANTS’ STATEMENT OF
UNCONTROVERTED FACTS AND
CONCLUSIONS OF LAW