Bryan Pringle v. William Adams Jr et al

Filing 161

DECLARATION of Tal Dickstein In Support of MOTION for Summary Judgment 159 filed by Defendants David Guetta, Frederick Riesterer, Shapiro Bernstein and Co. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q)(Miller, Donald)

1 Dean A. Dickie _(Pro Hac Vice application pending)
DicIderillerCanfield.com
2 MILL R, CANFIELD,PADDOCK AND STONE, P.L.C.
225 West Washington Street, Suite 2600
3 Chicago, IL 60606
Telephone: [phone]
4 Facsimile: 312.460.4288
5 Ira Gould (Pro Hac Vice to be filed)
gon/d@igouldlaw.c,om
6 Ryan L. Greely (Pro Hac Vice to be filed)
[e-mail]
GOULD/i LAW GROUP
120 North LaSalle Street, Suite 2750
8 Chicago, IL 60602
Telephone: [phone]
9 Facsimile: 312.726.1328 •
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10 George L. Hampton IV (State Bar No. 144433)
[e-mail]
11 Colin C. Miley (State Bar No. 191999)
cholleyahamptonholley.com
12 HAMPTONHOLLEY LLP
2101 East Coast Highway, Suite 260
13. Corona del Mar, California 92625 .
Telephone: [phone]
14 Facsimile: 949.718.4580
15 Attorneys for Plaintiff
BRYAN PRINGLE
•
16
17

UNITED STATES DISTRICT COURT

18

CENTRAL DISTRICT OF CALIFORNIA

SOUTHERN DIVISION
19
20 BRYAN PRINGLE, an. individual, •
Case No. SACV 10-1656 JST(RZx)
Plaintiff,

21

v.
22
23 WILLIAM ADAMS,_JR.; STACY
FERGUSON,. ALLAN PINEDA; and
24 JAIME GOMEZ, all individually and
collectively as the music group the Black
25 Eyed Peas; DAVID GUETTA,.
FREDERICK RIESTERER . UMG
26 RECORDINGS, INC.; INTERSCOPE
RECORDS; EMI APRIL MUSIC, INC.;
27 HEADPHONE JUNKIE PUBLISHrNG,
LLC; WILLIAM. MUSIC, LLC;
28 JEEPNEY MUSIC, INC.; TAB

4826-4649-6264 - v.

FIRST AMENDED COMPLAINT
FOR COPYRIGHT

INFRINGEMENT

[DEMAND FOR JURY TRIAL]

1 MAGNETIC PUBLISHING, CHERRY
RIVER MUSIC CO.; SQUA 'RE RIVOLI
RISER EDITIONS; and
2 PUBLISHING,_
SHAPIRO, BERNSTEIN & CO.,
3
Defendants,
4
5
6

Plaintiff, Bryan Pringle, by his undersigned attorneys, as his Complaint against

7 Defendants William Adams, Jr., Stacy Ferguson, Allan Pineda, and Jaime Gomez,
8 individually and collectively as the music group the Black Eyed Peas, David Guetta,
9 Frederick Riesterer, UMG Recordings, Inc., Interscope Records, EMI April Music,
10 Inc., Headphone Junkie Publishing, LLC, Will.I.Am Music, LLC, Jeepney Music,
11 Inc., Tab Magnetic Publishing, Cherry River Music Co., Square Rivoli Publishing,
12 Rister Editions, and Shapiro, Bernstein & Co., hereby alleges as follows:
13
14

INTRODUCTION
1.

This is a case of willful copyright infringement against a number of

15 Defendants, among who are the members of the internationally famous music group
16 known as the Black Eyed Peas, their record label and publishers. The Defendant
17 members of the Black Eyed Peas, David Guetta, Frederick Riesterer, and, upon
18 information and belief, UMG Recordings, Inc. and Interscope Records, are direct
19 copyright infringers, as certain or all of them willfully copied, or encouraged and/or
20 instructed the copying of, Plaintiff's song "Take a Dive," when they wrote their
21 world-wide hit, Grammy-winning song, "I Gotta Feeling." The other Defendants are
22 either contributory or vicarious infringers.
23

1

The suit seeks actual damages incurred by the Plaintiff, plus

24 disgorgement of each of the Defendants' profits that were and will be received from
25 their hit song "I Gotta Feeling," as a result of the infringement. Plaintiff also requests
26 that both a preliminary and permanent injunction be entered to enjoin the public
27 performance and distribution of "I Gotta Feeling," along with the imposition of a
28 constructive trust over the wrongfully made profits earned worldwide from the
2
4826-4649-6264 - v.

1 infringement and an accounting as to those profits. The Black Eyed Peas are
2 currently on their world tour, unlawfully and unfairly reaping profits from the
3 singing of the song "I Gotta Feeling," and each day there are substantial sales of this
4 song worldwide.
5

3.

"Take a Dive" and numerous derivative versions of "Take a Dive," as

6 more fully described herein, were submitted by Plaintiff multiple times to
7 Defendants Interscope, EMI and UMG Recordings over a ten-year period. The
8 submissions were made in trust and confidence whereby Plaintiff had a good faith
9 expectation that the song would only be listened to for legitimate business purposes
10 and that his ownership and financial rights in the song would be protected. Since no
11 advice was given by Interscope, EMI or UMG Recordings, or by any of the other
0
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40

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12 Defendants to the contrary, there was the implicit assurance given to Plaintiff that his

• :

13 song would not be given to third parties to use in connection with the creation of

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14 music, would not be wrongfully copied after it was received, and that it would not be
15 plagiarized and then released to the public as a song by another artist like the Black

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16 Eyed Peas, or another artist signed to Interscope or UMG Recordings.
4.

17

The song "I Gotta Feeling" is substantially similar to Plaintiffs song

18 "Take a Dive." Actually it is strikingly similar, and the main instrumental "hook
19 line" sequences in both songs -- the distinct, memorable parts of both songs to the ear
20 - are identical. In fact, on information and belief, the main instrumental "hook" line
21 was directly sampled from Plaintiff's sound recording by the Defendants and inserted
22 into "I Gotta Feeling." Simply put, the principal melody 'portions of "Take a Dive"
23 were reused or incorporated into "I Gotta Feeling," secretly and with knowledge and
24 willfulness by certain of the Defendants, without Plaintiffs authorization, with the
25 result being the iconic, hit song that "I Gotta Feeling" became. There can be no
26 reasonable, alternative explanation for these similarities other than the fact that the
27 Black Eyed Peas, David Guetta and/or Frederick Riesterer directly copied Plaintiff's
28 song.
3
4826-4649-6264 - v. I

1

GENERAL ALLEGATIONS

2 A.

Parties

3

9.

Plaintiff Bryan Pringle, a/k/a DJ Spanky, a/k/a Altared State, a/k/a Dead

4 Beat Club ("Pringle"), is an individual residing in San Antonio, Texas. Pringle is a
5 songwriter that has been submitting music to Interscope Records, EMI, UMG
6 Recordings and other major record labels on a regular basis, under various aliases
7 since around the mid-1990s.
8

10.

Defendant William Adams Jr., a/Ida Will.I.Am ("Will.I.Am"), is an

9 individual and well-known songwriter, music producer and recording artist who,
10 upon information and belief, resides in Los Angeles, California. Will.I.Am is one of
11 the four members of the Black Eyed Peas.
12

11.

Defendant Stacy Ferguson, a/Ida Fergie ("Fergie"), is an individual and

13 internationally famous recording artist and songwriter who, upon information and
14 belief, resides in Los Angeles, California. Fergie is one of the four members of the
15 Black Eyed Peas.
16

12.

Defendant Allan Pineda, a/k/a apl.de .ap ("apl.de .ap"), is an individual

17 recording artist and songwriter who, upon information and belief, resides in Los
18 Angeles, California. apl.de .ap is one of the four members of the Black Eyed Peas.
13.

19

Defendant Jaime Gomez, a/k/a Taboo ("Taboo"), is an individual

20 recording artist and songwriter who, upon information and belief, resides in Los
21 Angeles, California. Taboo is one of the four members of the Black Eyed Peas.
22

14.

Defendant David Guetta ("Guetta") is an individual songwriter and

23 music producer who, upon information and belief, resides in Los Angeles, California.
24 Guetta has co-written and co-produced several of the Black Eyed Peas' songs.
15.

25

Defendant Frederick Riesterer ("Riesterer") is an individual songwriter

26 and music producer who, upon information and belief, resides in Los Angeles,
27 California. Riesterer has co-written and co-produced several of the Black Eyed Peas'
28 songs.
5
4826-4649-6264 - V.

1 for the CD, Dead Beat Club: 1998, which included the original version of "Take a
2 Dive," is attached hereto as Exhibit B.
3

29. In or around 1999, Pringle made a slightly different derivative work of

4 the original copyrighted version of "Take a Dive." The derivative version consisted
5 of Pringle having removed the vocals that were contained in the original version, and
6 adding what can best be described as a repeating eight-bar melody, using a "guitar
7 twang" instrument, utilizing a total of four notes (D4, C4, B3 and G3), in the
8 following progression: D4-C4-B3-C4-B3-C4 (in the key of G3) (hereinafter referred
9 to as the "guitar twang sequence"). This guitar twang sequence of notes was
10 modeled after "Take a Dive's" progression of notes in the chorus vocals, sung by
11 Pringle in the original version of the song. A copy of the derivative version of "Take
12 a Dive," as set forth above, is 'contained as Track 2 on the CD attached hereto as
13 Exhibit A. Pringle has registered the derivative version of ".Take a Dive" above with
14 the U.S. Copyright Office, on an expedited basis, and is awaiting the certificate of
15 registration. The U.S. Copyright Office has received Pringle's complete application
16 for registration of the derivative version of "Take a Dive." Pringle has thus satisfied
17 the registration requirement of 17 U.S.C. § 411(a). See Cosmetic Ideas, Inc. v.
18 IAC/InteractiveCorp, 606 F.3d 612, 621 (9th Cir. 2010).
•19

30. Since 1999, Pringle has been, and still is, the proprietor of the statutory

20 copyright in the original musical composition and sound recording for "Take a
21 Dive," and all derivative works based upon "Take a Dive," and duly possessed all
22 rights, title and interests therein. At all relevant times, Pringle has complied with all
23 of the laws pertinent to his music composition and sound recording as a copyrighted
24 work. (Any and all further references to the song "Take a Dive" shall hereafter refer
25 to the derivative version, as set forth in paragraph 29 above.)
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4826-4649-6264 - 1
V.

1 C. Defendants' Access to and Copying of Plaintiff's Copyrighted Song "Take
2

a Dive"

3

31. Over the time period from around 1999 to 2008, Pringle had regularly

4 submitted demo CDs, all of which contained "Take a Dive" and various other songs,
5 to Defendants UMG, Interscope and EMI. He also submitted them to other major
6 record labels, intemet music websites, TAXI (and independent A&R company),
7 talent scouts, artist managers, production studios (including film, television and
8 music), famous songwriters, radio stations, booking agents, national and international
9 music contests, nightclubs and publishing companies. These submissions were done
10 in the hopes of promoting his music, becoming signed as an artist to a major label, or
11 selling his songs to publishing companies and/or other already established artists.
12

32. In addition to the submission of his demo CDs, Pringle continually

13 advertised his music, including "Take a Dive," on the internet via multiple music
14 web sites, and had his music played internationally via radio and internet.
15

33. Over the period from around 1999 to 2008, Pringle received numerous

16 letters in response to his music submissions, as alleged above. These included
17 responses from multiple A&R representatives at Interscope, UMG and EMI, saying
18 that while his music was of good quality, the labels were not currently interested in
19 signing him as an artist or purchasing any of his music. These letters demonstrate
20 that Interscope, UMG and EMI received Pringle's music, and implicitly
21 acknowledges that his demo CDs, all of which contained "Take a Dive," were
22 listened to by these individuals.
23

34. Further, upon information and belief, at all relevant times, Will.I.Am

24 was an Artist and Repertoire ("A&R") at Interscope, and in this capacity acted as a
25 form of talent scout for the Interscope label. If Will.I.Arn was not a formal A&R,
26 then he acted in this capacity, with the full knowledge of Interscope and the other
27 members of the Black Eyed Peas.
28
9
4826-4649-6264 - v. 1

1 and the Black Eyed Peas' album, The E.N.D., which contains the song "I Gotta
2 Feeling," and all obtained direct financial benefit from doing so.
3 D. Substantial Similarity Between "Take a Dive" and "I Gotta Feeling"

4

40. As a result of the Black Eyed Peas, Guetta and/or Riesterer having

5 copied "Take a Dive," "I Gotta Feeling," as a whole, is substantially similar to "Take
6 a Dive" and the guitar twang sequence is identical. A copy of "I Gotta Feeling" is
7 contained as Track 3 on the CD attached hereto as Exhibit A.
8

41. On information and belief, the sound recording of the guitar twang

9 sequence contained in the derivative version of "Take a Dive" was directly sampled
10 (sampling is the taking of an audio segment from an original sound recording and
11 inserting it directly into a new sound recording) by one or more of Black Eyed Peas,
„ 12 Guetta and/or Riesterer and placed into "I Gotta Feeling." The guitar twang sequence
•
•-.1

N

13 in both songs is identical in instrumentation, melody, harmony and rhythm.
4
42. The fact that the guitar twang sequence of "I Gotta Feeling" is identical
o
14
x
z :2 15 to the one in "Take a Dive" establishes that the Black Eyed Peas, Guetta and/or
O
F,
P. U •
; 16 Riesterer had access to "Take a Dive," that they copied "Take a Dive," and that their
• *7
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2

17 copying of "Take a Dive" was intentional, willful and wanton.
18

• 43. In addition to the guitar twang sequence, and among other similarities,

19 the following is'a list of similarities between the two songs:
Both songs are substantially similar in total.concept and feel;

20

(a)

21

(b) Both songs incorporate a contemporary dance style of music;

22

(c) Both songs have an almost identical tempo -- "Take a Dive" is

23

130 beats per minute ("bpm"), while "I Gotta Feeling" is 128

24

bpm;

25

(d) Both songs use a half step (or goose step) bass line. This type of

26

bass line is achieved by alternating the same bass note from a

27

high and low corresponding octave with the low octave bass note

28

on the 4 down beats, while the high octave corresponding eighth
11
4826-4649-6264 - v.

(g) All such other relief as the Court shall determine is fair and
equitable.

2
3

4 Dated: November 6, 2010 Dean A. Dickieffro Hac Vice c_mplication pending)
MILLER, CAT\MIELD, PADDOFCK AND STON E,
P.L.C.
5
Ira Gould (Pro Hac Vice to be filed)
Ryan L. Greely (Pro Hac Vice to be filed)
GOULD LAW GROUP

6
7

8

George L. Ha iFn IV (S ate Bar No. 144433)
State
No. 191999)
Cohn C. Ho
HAMPTOtLY IP

9
10

By:

11
12

Attorneys for Plai tiff
BRYAN PRINGLE

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4826-4649-6264 - v.

1
2

DEMAND FOR JURY TRIAL
Plaintiff Bryan Pringle hereby demands a jury trial of all claims alleged in his

3 complaint, as provided by Rule 38 of the Federal Rules of Civil Procedure.
4
5 Dated: November IS, 2010
6

Dean A. Dicld“Pro Hac Vice application pending-)
MILLER, CANFIELD, PADDOCK AND STONE,
P.L.C.
Ira Gould (Pro Hac Vice to be filed)
Ryan L. Greely (Pro Hac Vice to be filed)
GOULD LAW GROUP

7

8

George L. H
Colin C. H.
HAMPT

9
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ton IV (State Bar No. 144433)
(Sta
ar No. 191999)
LLBL/ LLP

By:

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Attorneys for P aintiff
BRYAN PRINGLE

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4826-4649-6264 - v. I