Bryan Pringle v. William Adams Jr et al

Filing 196

STATEMENT of Genuine Disputes in Opposition to MOTION for Summary Judgment 159 filed by Plaintiff Bryan Pringle. (Holley, Colin)

1 Dean A. Dickie (appearing Pro Hac Vice)
[e-mail]
2 Kathleen E. Koppenhoefer (appearing Pro Hac Vice)
[e-mail]
3 MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
225 West Washington Street, Suite 2600
4 Chicago, IL 60606
Telephone: [phone]
5 Facsimile: 312.460.4288
6 George L. Hampton IV (State Bar No. 144433)
[e-mail]
7 Colin C. Holley (State Bar No. 191999)
[e-mail]
8 HAMPTONHOLLEY LLP
2101 East Coast Highway, Suite 260
9 Corona del Mar, California 92625
Telephone: [phone]
10 Facsimile: 949.718.4580
11 Attorneys for Plaintiff
BRYAN PRINGLE
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

16 BRYAN PRINGLE, an individual,
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Plaintiff,
v.

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

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Case No. SACV 10-1656 JST(RZx)
PLAINTIFF’S STATEMENT OF
GENUINE DISPUTES IN
OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT
DATE: January 30, 2012
TIME: 10:00 a.m.
CTRM: 10A

1

Plaintiff Bryan Pringle, by and through his undersigned attorneys, submits the

2 following statement of genuine issues pursuant to Rule 56 of the Federal Rules of
3 Civil Procedure in response to Defendants’ Statement of Uncontroverted Facts and
4 Conclusions of Law:
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I. STATEMENT OF UNCONTROVERTED FACTS
MOVING PARTIES’
PLAINTIFF’S RESPONSE
ALLEGEDLY
UNCONTROVERTED FACT
Background Facts and Pringle’s Allegations
Bryan Pringle is a real-estate
Disputed. Plaintiff is a songwriter.
developer from San Antonio, Texas.
See Declaration of Bryan Pringle
(“Pringle Decl.”) ¶ 7. While Plaintiff
has invested in real estate properties in
Abilene Texas, Dickie Decl. Exhibit
A, Deposition of Bryan Pringle
(“Pringle Dep.”) at 11:16-11:22,
Defendants’ citation to ¶ 9 of the
original complaint (Doc. 1) for
support for this proposition is
disingenuous. First, the First
Amended Complaint (Doc. 9) is the
operative complaint in this action.
Second, Plaintiff alleges in ¶ 9 of the
First Amended Complaint (“FAC”)
that he is a “songwriter that has been
submitting music to Interscope
Records, EMI, UMG Recordings and
other major record labels on a regular
basis, under various aliases since
around the mid-1990’s.” He makes no
reference to being a “real-estate
developer” here or anywhere else in
the FAC.

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5.

In October 2010, seventeen months
after “I 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).
Pringle alleges that he created “Take a
Dive” in 1998, and created “Take a
Dive” (Dance Version) in 1999 by
removing the vocals from “Take a
Dive” and adding a repeating “guitar
twang sequence.”
Pringle alleges that “Take a Dive” is
substantially similar to “I Gotta
Feeling” and that the recorded guitar
twang sequence in “I Gotta Feeling”
was “directly sampled” from “Take a
Dive” (Dance Version).
Pringle states that the guitar twang
sequence consists of four notes (D4,
C4, B3 and G3), and also presents a
transcription of the sequence that
contains only three notes (D4, C4 and
B3) and is in the key of G3.

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Undisputed.

Disputed. Plaintiff refers to the
referenced paragraphs of the FAC for
an accurate recitation of the
allegations. (Dck. No. 9)

Disputed. Plaintiff refers to the
referenced paragraphs of the FAC for
an accurate recitation of the
allegations. (Dck. No. 9)

Disputed. Plaintiff refers to the
referenced paragraphs of the FAC for
an accurate recitation of the
allegations. (Dck. No. 9)

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7.

Disputed. Plaintiff replaced the vocals
with a repeating eight-bar melody
using a “guitar twang” instrument that
he had previously recorded in 1997 for
his song “Faith.” The derivative
Dance Version had the exact same
ambient sounds at the beginning of
both versions, identical keyboard
motifs at :09 seconds, identical bass
parts, identical chord progression,
identical sonic sweeps at similar
points in time of both tracks, identical
changes in the bass parts at similar
points in each track, identical key,
identical tempo, and identical timbre’s
with regard to all of the
aforementioned similarities. Pringle
Decl. ¶ 133; See Declaration of Alex
Norris (“Norris Decl.”) ¶ 6.
Pringle’s Alleged Creation of “Take a Dive” (Dance Version)
Pringle does not recall how,
Disputed. Pringle has described in
specifically, he created “Take a Dive” painstaking detail his inspiration for
(Dance Version).
the guitar twang sequence; how he
created it, the equipment that he used,
and the sequencing and arranging that
he used. He has also provided
evidence of same. Pringle. Dep. at
101:9 103-106:2; 202:19-206:24,
213:2-217:13, 218-238; Pringle Decl.
¶¶ 157, 160-161, 225-226; See
Declaration of David T. Gallant
(“Gallant Decl.”) ¶¶ 4, 9.

Pringle asserts that, aside from
removing the vocals and adding the
guitar twang sequence, “Take a Dive”
and “Take a Dive” (Dance Version)
are exactly the same.

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Disputed. Pringle has described in
painstaking detail the inspiration for
the guitar twang sequence, how he
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created it, the equipment that he used,
and the sequencing and arrangement
4
information. He has also provided
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evidence of same. Pringle. Dep. at
101:9 103-106:2; 202:19-206:24,
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213:2-217:13, 218-238; Pringle Decl.
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¶¶ 157, 160-161, 225-226; Gallant
Decl. ¶¶ 4, 9.
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9.
Objection. Move to strike. Whether
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or not someone can corroborate
precise details about Plaintiff’s
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creation of “Take a Dive” (Dance
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Version) is irrelevant to the issues in
this case. Without waiving this
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objection, Pringle identified several
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individuals, including but not limited
to Robert Dale Tindle, Jeffrey Pringle
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and Michael Scott Brown who can
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corroborate how and when he created
“Take a Dive” Dance Version.
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Pringle. Dep. at 87:9-89:7, 205:2-9;
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See Declaration of Jeffrey Pringle
(“Jeffrey Pringle Decl.”); Gallant
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Decl. ¶¶ 4, 9.
19 10. Pringle testified that the guitar twang
Disputed. Pringle testified that he
created the guitar twang sequence.
sequence was “just a sample” of a
20
While he does play the guitar and may
Fender Stratocaster guitar sound that
21
Pringle obtained from a music sample have recorded his own guitar sound
for the sequence, he may have also
disc named “Best Service.”
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used an already available guitar sound.
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Pringle. Dep. at 235:20-236:20.
24 11. Pringle has never played a Stratocaster Disputed. Pringle testified that he
guitar.
does play the guitar. At no time did
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he testify that he has never played a
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Stratocaster guitar. Pringle. Dep. at
235:20-236:20.
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Pringle is unable to explain how he
allegedly created “Take a Dive”
(Dance Version) and the guitar twang
sequence, including: (i) the month,
season or even the year in which he
allegedly created the song (ii) how he
recorded the guitar twang sound or the
chords that comprise the guitar twang
sequence, or (iii) how he allegedly
added the guitar twang sequence into
the original version of “Take a Dive.”
Pringle identifies no one who can
corroborate his story about how he
allegedly created “Take a Dive”
(Dance Version).

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1 12. Pringle testified that the guitar twang
sequence was “possibly from [a music
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sample disk named] Best Service or
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it’s from the other sample artists.”
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Disputed. Pringle testified that he
used a “real guitar sound” when he
created the guitar twang sequence and
that the sound was “possibly from
Best Service or it’s from other sample
artists. One of them is Steve Stevens.
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I can’t remember what the name of it
was.” Pringle. Dep. at 235:20-236:20.
6
Disputed. Pringle has described in
13. The details Pringle has provided
7
indicate that the guitar twang sequence painstaking detail how he created the
guitar twang sequence, the equipment
was not his original work, but
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that he used, and the sequencing and
something he copied from another
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arrangement information. He has also
source.
provided evidence of same. Dickie
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Decl. Exhibit A, Pringle. Dep. at
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101:9 103-106:2; 202:19-206:24,
213:2-217:13, 218-238; Pringle Decl.
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¶¶ 157, 160-161, 225-226; Gallant
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Decl. ¶¶ 4, 9.
Guetta and Riesterer’s Independent Creation of “I Gotta Feeling”
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14. In 2008, William Adams, a member of Undisputed.
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The Black Eyed Peas, asked David
Guetta to create the music for a song
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for The Black Eyed Peas’ new album.
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1 15. To create the music, Guetta
collaborated with Frederic Riesterer.
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21 16. Riesterer created a sequence of guitar
sounds using an electronic guitar
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sound (or “pre-set”) he selected from
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“PlugSound: Fretted Instruments,” a
French sound library.
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Disputed. Guetta testified that he
worked with Riesterer on an
instrumental song call “David Pop
GTR.” When Adams called and asked
for a song that was “similar” to “Love
is Gone”, Guetta forwarded “David
Pop GTR” to Adams without
Riesterer’s permission. When Adams
heard the song he thought that it was
“amazing” because of the guitar
“chord progression.” Guetta claimed
that the guitar instrumentation “came
from [Riesterer]” and that Riesterer
never told him where he got it from.
Riesterer has submitted wholly
contradictory claims as to the origins
of the guitar twang sequence. Dickie
Decl. Exhibit C, Deposition of
Frederic Riesterer(“Riesterer Dep.”) at
130:9-16, 194:14-22; Dickie Decl.
Exhibit D, Deposition of David Guetta
(“Guetta Dep.”) at 114:3-9, 115:2024, 143:24- 144:6, 149:10-16; Dickie
Decl. Exhibit E, Deposition of
William Adams (“Adams Dep.”) at
79:18-80:11, 237:1-20.; Riesterer
Declaration in Opposition to TRO
Requests, dated November 23, 2010
(“Riesterer TRO Decl.”) at ¶¶ 5-6.
(Dck. No. 22-3)
Disputed. Riesterer first claimed that
the entire guitar twang sequence came
pre-packaged in a Univers-Sons music
library. Riesterer TRO Decl. at ¶¶ 56. He later testified, after being
challenged on the veracity of this
claim, that he didn’t “remember
exactly” how he created the guitar
twang sequence. Riesterer Dep. at
130:9-16.

1 17. Riesterer then used sound processing
software to modify the PlugSound
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guitar pre-set. The result was a
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“twangy” sound that was different
from both the PlugSound guitar pre4
set and the sound that he used in the
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song “Love is Gone.”
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Disputed. Riesterer first claimed that
the entire guitar twang sequence came
pre-packaged in a Univers-Sons music
library. Riesterer TRO Decl. at ¶¶ 56. He later testified, after being
challenged on the veracity of this
claim, that he didn’t “remember
exactly” how he created the guitar
twang sequence. Dickie Decl. Exhibit
C, Riesterer Dep. at 130:9-16.
Using this “twangy” sound, Riesterer Disputed. Riesterer first claimed that
composed a progression of guitar
the entire guitar twang sequence came
chords for use in the new song for the pre-packaged in a Univers-Sons music
Black Eyed Peas.
library. Riesterer TRO Decl. at ¶¶ 56. He later testified, after being
challenged on the veracity of this
claim, that he didn’t “remember
exactly” how he created the guitar
twang sequence. Dickie Decl. Exhibit
C, Riesterer Dep. at 130:9-16.
The result of Riesterer’s modification Disputed. Riesterer could not say how
of the PlugSound pre-set and his chord he created the original “twang”
progression composition was an
sequence. Dickie Decl. Exhibit C,
original guitar “twang” sequence.
Riesterer Dep. at 130:9-16; Pringle
Decl. ¶¶ 17, 21, 23, 26, 28, 31, 32, 33,
56, 57, 77, 78, 79, 80, 81, 83, 84, 86,
87, 88, 89, 90, 91, 92
On December 20, 2008, Guetta sent
Disputed because Guetta and Riesterer
Adams the music that he and Riesterer did not create the portions of the
created, which they tentatively named music that are attributable to Bryan
“David Pop Guitar.”
Pringle. Dickie Decl. Exhibit A,
Pringle. Dep. at 101:9 103-106:2;
202:19-206:24, 213:2-217:13, 218238; Pringle Decl. ¶¶ 157, 160-161,
225-226; Gallant Decl. ¶¶ 4, 9.
Adams wrote lyrics to accompany
Undisputed.
“David Pop Guitar” but did not
change any of the music.

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1 22. The combination of Guetta and
Riesterer’s music with Adams’ lyrics
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became the song “I Gotta Feeling,”
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which The Black Eyed Peas released
in 2009.
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Disputed because Guetta and Riesterer
did not create the music that became
"I Gotta Feeling.” Bryan Pringle did.
Dickie Decl. Exhibit A, Pringle. Dep.
at 101:9 103-106:2; 202:19-206:24,
213:2-217:13, 218-238; Pringle Decl.
5
¶¶ 157, 160-161, 225-226; Gallant
Decl. ¶¶ 4, 9.
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“Remix” Contest for “I Gotta Feeling”
7 23. In August and September 2009, The
Objection. Move to strike. Even
Black Eyed Peas and Guetta held a
though his declaration was signed on
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contest to see which DJ could create
October 6, 2011, Clark Warner was
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the best re-mix of “I Gotta Feeling.”
never disclosed as a witness pursuant
to Fed.R.Civ.P.26(a) or (e) and
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Plaintiff has not had an opportunity to
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depose him. Defendants’ failure to
disclose him is neither substantially
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justified nor harmless. Without
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waiving these objections, Disputed as
to time frame. Undisputed that from
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August 21 to September 8, 2009
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tracks were available from
www.beatport.com in connection with
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a re-mix contest for "I Gotta Feeling.”
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See the Declaration of Barbara
Frederiksen-Cross (“Frederiksen18
Cross Decl.”) at ¶ 36.
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1 24. Each of the separate instrumental
tracks (known as music “stems”) of “I
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Gotta Feeling,” were made available
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for download on Beatport.com.
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12 25. The music stems made available on
Beatport.com included the guitar
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twang sequence that Riesterer and
Guetta had created, as well as The
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Black Eyed Peas’ lead and
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background vocal tracks for “I Gotta
Feeling.”
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Objection. Move to strike. Even
though his declaration was signed on
October 6, 2011, Clark Warner was
never disclosed as a witness pursuant
to Fed.R.Civ.P.26(a) or (e) and
Plaintiff has not had an opportunity to
depose him. Defendants’ failure to
disclose him is neither substantially
justified nor harmless. Without
waiving these objections, Disputed as
to time frame. Undisputed that from
August 21 to September 8, 2009
tracks were available from
www.beatport.com in connection with
a re-mix contest for "I Gotta Feeling.”
Frederiksen-Cross Decl. at ¶ 36.
Objection. Move to strike. Even
though his declaration was signed on
October 6, 2011, Clark Warner was
never disclosed as a witness pursuant
to Fed.R.Civ.P.26(a) or (e) and
Plaintiff has not had an opportunity to
depose him. Defendants’ failure to
disclose him is neither substantially
justified nor harmless. Without
waiving these objections, Disputed
because Riesterer and Guetta did not
create the guitar twang sequence.
Bryan Pringle did. Dickie Decl.
Pringle. Dep. at 101:9 103-106:2;
202:19-206:24, 213:2-217:13, 218238; Pringle Decl. ¶¶ 157, 160-161,
225-226; Gallant Decl. ¶¶ 4, 9.

1 26. During the DJ contest, over 1,200 remixes of “I Gotta Feeling” were
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submitted and circulated on the
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Internet.
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8 27. Many of these re-mixes contained the
guitar twang sequence “soloed out” –
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i.e., without any other sounds layered
on top.
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13 28. These re-mix versions of “I Gotta
Feeling” with the guitar twang
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sequence soloed out continue to be
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available on various Internet websites.
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Objection. Move to strike. Even
though his declaration was signed on
October 6, 2011, Clark Warner was
never disclosed as a witness pursuant
to Fed.R.Civ.P.26(a) or (e) and
Plaintiff has not had an opportunity to
depose him. Defendants’ failure to
disclose him is neither substantially
justified nor harmless. Without
waiving these objections, Undisputed.
Disputed. Pringle never testified that
any of the remixes available on
Beatport contained the guitar twang
sequence “soloed out.” He testified
that a remix that he found on
Amazon.com had the guitar twang
sequence “soloed out.” Dickie Decl.
Exhibit A, Pringle. Dep. at 185:10-16.
Disputed. Pringle never testified that
any of the remixes available on
Beatport contained the guitar twang
sequence “soloed out.” He testified
that a remix that he found on
Amazon.com had the guitar twang
sequence “soloed out.” Dickie Decl.
Exhibit A, Pringle. Dep. at 185:10-16

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(b)

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

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).

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UNCONTROVERTED MATERIAL
FACT

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OPPOSING RESPONSE

1 29. Riesterer’s and Guetta’s creation files of
the music for “I Gotta Feeling” confirm
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their independent creation of both the
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sounds and underlying musical
composition embodied in this work.
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Disputed. In fact, the creation
files produced by counsel for
Riesterer and Guetta suggest that
it is they who have engaged in
nefarious conduct. First, Riesterer
failed to produce the hard drive
that he allegedly used to create
“David Pop GTR” which became
“I Gotta Feeling.” Second,
several of the creation files
allegedly used to create the
original version of “I Gotta
Feeling” have creation dates
which show that they were
created after the original version
of “I Gotta Feeling” was already
recorded and released. Third, the
“David Pop GTR” song file that
Riesterer claims he used to create
“I Gotta Feeling” contains an
entry in the document Data Logic
File for an audio device allegedly
used in the creation of “I Gotta
Feeling” that wasn’t available in
2008 or 2009, when “I Gotta
Feeling” was created. Fourth, one
of the alleged creation files is
titled “Disk 1 tb Litige (def) OK.
David Pop Guitar: Audio Files.
There is no reason why a file that
was allegedly created in 2008 or
2009 would refer to “litigation”
and be “ok.” Fifth, one of the
alleged creation files, “0.6s_Snare
Hall.SDIR”, has been produced
twice by the defense and has had
two different creation dates each
time. Pringle Decl. at ¶¶ 234-244.
Frederiksen-Cross Decl. ¶¶ 46-53.

1 30. It would have been physically impossible
for the Defendants to have copied from
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Pringle.
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34.

Disputed. Pringle sent “Take a
Dive” Dance Version and other
derivative versions of “Take a
Dive” which contained the guitar
twang sequence soloed out to
Guetta and Garraud. Pringle Dep.
at 87:9-89:7; Pringle Decl. at ¶
34; 121-145; 234-239.
The notes within each chord of Pringle’s
Disputed. Pringle did not sample
guitar twang sequence in his NRG disk are notes or chords from an external
“fused” together, indicating that he
source. Pringle Decl. ¶¶ 121-145.
sampled them from some other source.
Disputed. Riesterer’s “creation”
The notes within each chord of the guitar
files were tampered with. Pringle
twang sequence in Riesterer’s creation
Decl. ¶¶ 17-145; Frederiksen
files are separate, indicating that he
Cross Decl. ¶¶ 45-61
composed those chords on a keyboard,
rather than copying them from some other
source.
Riesterer’s creation files contain the
Disputed. Riesterer’s “creation”
unprocessed version of the guitar twang
files were tampered with. Pringle
sequence, whereas Pringle’s NRG disc
Decl. ¶¶ 17-145; 234-239;
contains only a final, pre-processed
Frederiksen Cross Decl. ¶¶ 45-61
version of the guitar twang sequence.
It would have been technologically
Dispute. Defendants reasonably
impossible for Defendants to have sampled could have sampled "Take a
from the mixed version of Pringle’s song
Dive" (Dance Version) from
that he claims to have distributed.
Pringle. Pringle Decl. ¶¶ 17-145
1.

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)
UNCONTROVERTED MATERIAL FACT

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SUPPORTING
EVIDENCE

1 35. Pringle’s November 15, 2010 copyright registration
application for “Take a Dive” (Dance Version)
2
sought registration for both the sound recording and
3
the musical composition embodied in the guitar
twang sequence (the only new material allegedly
4
added to “Take a Dive” (Dance Version)).
5 36. The United States Copyright Office denied Pringle’s
application to register a copyright in the musical
6
composition of the guitar twang sequence “[b]ecause
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this work does not contain enough original musical
authorship to be copyrightable.”
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37. Pringle’s copyright registration for “Take a Dive”
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(Dance Version) is limited to the sound recording of
the guitar twang sequence, and does not include the
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underlying musical composition.
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Undisputed.

Disputed. Plaintiff has
a valid copyright in
“Take a Dive” Dance
Version and it is
copyrightable. See eg.
Reed Elsevier, Inc. v.
Muchnick, 130 S. Ct.
1237, 176 L. Ed. 2d 18
(2010); Shady Records,
Inc. v. Source
Enterprises, Inc., 2005
WL 14920, *8
(S.D.N.Y. January 3,
2005. 17 U.S.C. §
411(a);

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

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1.

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B.

Undisputed

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

26
27
28
13

SUPPORTING
EVIDENCE

1 38. Pringle claims that he “regularly” distributed his
songs to virtually every entity in the music business,
2
including Defendants UMG Recordings, Inc.,
3
Interscope Records (together the “UMG
Defendants”) and EMI April Music, Inc. (“EMI”),
4
and that he would send people in the music business
5
multiple copies of his demos.
6 39. Pringle alleged that he received “numerous letters in
response to his music submissions,” including
7
responses from “multiple A&R representatives at
Interscope, UMG and EMI.”
8
40. There is no evidence that Pringle sent “Take a Dive”
9
(Dance Version) to any of the Defendants prior to the
release of “I Gotta Feeling.”
10
11
12
13
14
15
16
17
18
41. There is no evidence that Pringle sent “Take a Dive”
(Dance Version) to anyone prior to the release of “I
Gotta Feeling.”
20
19

21
22
23
24
25
26
27
28
14

Undisputed.

Undisputed.

Disputed. Pringle
widely distributed
provided copies of
"Take a Dive" (Dance
Version) and sent
several copies of it and
its derivative sound
files to defendants.
Pringle. Dep. at 87:989:7, 205:2-9;
Pringle Decl. at ¶¶ 5,
216; Guetta Dep. at pp
20-22
Jeffrey Pringle Decl. ¶¶
7, 9.
Disputed. Pringle
widely distributed
provided copies of
"Take a Dive" (Dance
Version) and sent
several copies of it and
its derivative sound
files to defendants.
Pringle. Dep. at 87:989:7, 205:2-9;
Pringle Decl. at ¶¶ 5,
216; Guetta Dep. at pp
20-22
Jeffrey Pringle Decl. ¶¶
7, 9.

1 42. Pringle admits that he has never had any direct
contact with Guetta or Riesterer.
2
3
4
5
6 43. Both Pringle’s October 28, 2010 Complaint and his
November 18, 2010 First Amended Complaint
7
alleged that Guetta and Riesterer were residents of
Los Angeles, California.
8
44. After Riesterer submitted a declaration on November
9
23, 2010 (Doc. 22-3) setting forth the circumstances
of his and Guetta’s creation of the music for “I Gotta
10
Feeling” in France, Pringle asserted that he had
11
distributed his music in France.
12
13
14
45. Although Pringle claims that he sent a demo CD to
Adams c/o of Interscope, Pringle does not have a
copy of the demo CD or any letter to Adams.
16
15

17
18
19
20
21

46. William Adams does not accept submissions of
22
unsolicited music.
23
24
25

47. Pringle did not mention Joachim Garraud in his
26
Complaint, First Amended Complaint, application
for Temporary Restraining Order, or Motion for
27
Preliminary Injunction.
28
15

Disputed. Pringle
provided copies of
"Take a Dive" (Dance
Version) to defendants
and corresponded with
them thereafter
regarding same. .
Objection. Plaintiff
objects and moves to
strike as irrelevant.
Objection. Plaintiff
objects and moves to
strike as irrelevant.
Without waiving this
objection, Plaintiff
states that he has never
denied that he
distributed his music in
France.
Disputed because
Pringle sent a demo cd
to Adams c/o
Interscope. Pringle
Dep. at 64:4-65:8.
Plaintiff further
contends that he cannot
possess something that
he sent to Adams in
2006.
Disputed. Adams has
admitted under oath
that he is an A&R for
Interscope and his
counsel is well aware
of this fact.
Objection and move to
strike as irrelevant.

1 48. Pringle testified that sometime between 2001 and
2004 Guetta’s former co-producer, Joachim Garraud,
2
wrote to Pringle asking Pringle for specific songs,
3
and that Pringle later sent “Take a Dive” (Dance
Version) to Garraud in France.
4
49. Pringle does not have a copy of either the alleged
5
letter from Garraud or of the alleged letter and demo
that Pringle allegedly sent to Garraud.
6

Undisputed.

It is undisputed that
Plaintiff did not retain a
letter that he received 8
years before he knew
7
that Garraud would
infringe his copyright.
8
Defendant Riesterer
9
testified that he did not
retain any records of
10
the many demo tapes
11
that he sent to
companies when he
12
was trying to get
13
discovered either.
Riesterer Dep. 106:914
107:3.
15 50. Pringle does not recall (i) what the alleged letter from It is undisputed that
Plaintiff did not retain a
Garraud said, (ii) whether it included a specific
16
letter that he received 8
request for music, (iii) who signed the letter, (iv)
17
years before he knew
whether the letter was typed or handwritten, or (v)
that Garraud would
what language the letter was written in.
18
infringe his copyright.
19
Defendant Riesterer
testified that he did not
20
retain any records of
21
the many demo tapes
that he sent to
22
companies when he
23
was trying to get
discovered either.
24
Riesterer Dep. 106:925
107:3.
26
27
28
16

1 51. Pringle has no evidence of the alleged written
correspondence with Garraud.
2
3
4
5
6
7
8 52. Pringle has never met Joachim Garraud.
9
10
11
12
13
14
15
16 53. Garraud never had access to Pringle’s songs; never
received music from Pringle; never heard of either
17
“Take a Dive” or “Take a Dive” (Dance Version);
and never gave any of Pringle’s music to Guetta or
18
Riesterer.
19
20
21
22
23
24 54. Pringle claims to have sent “thousands of demo CDs
for over a decade” to various persons and entities in
25
the music industry, but has no copies of any of these
26
demo CDs or of any cover letters that he claims to
have sent with those demo CDs.
27
28
17

Disputed. Pringle
received the
correspondence from
Garraud and responded
by sending the
additionally requested
tracks. Pringle. Dep. at
87:9-89:7, 205:2-9;
Pringle Decl. at ¶¶ 5,
216.
Disputed. Pringle
testified that he had
contact with Garraud
when he was in France
and that he received
correspondence from
Garraud requesting
additional tracks.
Pringle. Dep. at 87:989:7, 205:2-9;
Pringle Decl. at ¶¶ 5,
216.
Disputed. Pringle
testified that he had
contact with Garraud
when he was in France
and that he received
correspondence from
Garraud requesting
additional tracks.
Pringle. Dep. at 87:989:7, 205:2-9;
Pringle Decl. at ¶¶ 5,
216.
Undisputed.

1 55. Pringle has no evidence that “Take a Dive” or “Take
a Dive” (Dance Version) was ever received by
2
anyone after the release of “I Gotta Feeling.”
3
4
5 56. Pringle testified that he would routinely send out
CDs that did not contain all of the songs listed on the
6
liner notes, and that he would send out CDs that
7
contained no songs at all.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22 57. Pringle subpoenaed documents from TAXI Music,
the music promotion company Pringle worked with,
23
and TAXI produced documents that make no
mention whatsoever of “Take a Dive” or “Take a
24
Dive” (Dance Version).
25
26
27

2.

Disputed. The
existence of "I Gotta
Feeling" is proof that
Defendants received
"Take a Dive" (Dance
Version).
Disputed. Defendants’
characterization of the
testimony can’t even be
reconciled with the
actual testimony. At no
point does he testify
that he routinely sent
out cd’s that did not
contain all of the songs
listed on the liner notes
or that he would send
out cd’s that contained
no songs at all.
Defendants counsel
attempted to trick
Plaintiff during his
deposition. Plaintiff
caught on and
Defendants did not get
the answer they hoped
for. The relevant
exchange can be found
at Dickie Decl. Ex. A,
Pringle Dep. at 350:11351:22.
Objection and move to
strike as irrelevant.

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

28
18

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).

1
2
3

UNCONTROVERTED MATERIAL FACT

4
5 58.
6

There is no evidence supporting Pringle’s claims
that his music was played on radio stations in the
U.S. or in France.

7
8
9
10 59.
11 60.
12
13
14

61.

Pringle claims that “Take a Dive” (Dance Version)
was played on Armed Forces Radio in France.
The last time an Armed Forces Radio station
operated in France was 1967.
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.

15
16
17
18
19
20
21
22
23
24
25
26
27
28
19

OPPOSING
RESPONSE
Disputed. Jeffrey
Pringle and Michael
Scott Brown performed
"Take a Dive" (Dance
Version) in Europe and
on the internet. J
Pringle Decl. ¶¶ 3-7. .
Undisputed.
Disputed. J Pringle
Decl. ¶ 6.
Disputed. Jeffrey
Pringle and Michael
Scott Brown performed
"Take a Dive" (Dance
Version) in Europe and
on the internet. J
Pringle Decl. ¶¶ 3-7. .

1 62.
2
3
4
5
6
7
8
9
10
11
12
13 63.
14
15
16
17
18
19
20

Disputed that Pringle
has no evidence that
“Take a Dive” was
released to the public.
He testified that one
could purchase “Take a
Dive” Dance Version
on www.mp3.com,
www.gemm.com, and,
he believed, on
www.broadjam.com.
He further testified that
he bought a copy of his
cd from
www.gemm.com.
Dickie Decl. Exhibit A,
Pringle. Dep. at 135:5 to
136:19.
Pringle claims that “Take a Dive” (Dance Version) Disputed. Pringle
testified that one could
was sold on various Internet websites, but does not
recall which websites or how many copies they sold, purchase “Take a Dive”
nor does he have any records reflecting any of those Dance Version on
www.mp3.com,
alleged sales.
www.gemm.com, and,
he believed, on
www.broadjam.com.
Dickie Decl. Exhibit A,
Pringle. Dep. at 135:5 to
136:19.

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.

21
22
23
24
25
26
27
28
20

1 64.
2
3
4
5
6
7
8
9
10
11
12
13
14
15

65.

16

There is no evidence that any of the Defendants ever Disputed. The
purchased or listened to Pringle’s song on CD or the existence of "I Gotta
Feeling" is proof that
Internet.
Defendants listened to
"Take a Dive" (Dance
Version). Furthermore,
Pringle distributed
“Take a Dive” Dance
Version to several
defendants, received
correspondence from
Garraud expressing
approval for the music
and requesting
additional tracks, and
sent the additional
tracks. Pringle. Dep. at
87:9-89:7, 205:2-9;
Pringle Decl. at ¶¶ 5,
216.
Pringle testified to having earned only “[b]eer
Undisputed.
money” from the sale of his music.
2.

17
18

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

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).

19
20
21

UNCONTROVERTED MATERIAL FACT

22 66.

Pringle has no evidence supporting his alleged
creation of “Take a Dive” (Dance Version) or the
guitar twang sequence.

23
24
25
26
27

67.

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.

28
21

OPPOSING
RESPONSE
Disputed. Pringle Decl.
¶ 54, 127-136, 146;
Exhibit M to Dickie
Decl.; Norris Decl. ¶ 6;
Gallant Decl. ¶ 9;
Undisputed.

1 68.
2
3
4 69.
5
6
7
8 70.
9
10
11
12 71.
13
14
15
16
17
18
19

72.

20
21
22
23

73.

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).

Undisputed.

Disputed. The NRG
contains "Take a Dive"
(Dance Version) broken
into its constituent
parts. Pringle Decl. ¶¶
156-166.
Pringle’s NRG file cannot be played on a CD player Disputed as to the
or a computer.
implication that it
should be able to be
played on a CD player.
Pringle Decl. ¶¶ 156166.
Pringle’s NRG file does not qualify as a “best copy” Objection and move to
to be deposited in the Copyright Office.
strike as argument and
not a fact. Subject to
and without waiving
any objections,
disputed. "Take a
Dive" (Dance Version)
is contained on the
NRG file and is a best
copy. Pringle Decl. ¶¶
156-166.
Pringle’s NRG file is not a sound recording of
Disputed. Pringle Decl.
“Take a Dive (Dance Version)” or of the eight-bar
¶¶ 156-166.
guitar twang sequence.
Pringle’s NRG file contains separate files of each of Undisputed.
the three individual chords that make up the guitar
twang sequence.

24
25
26
27
28
22

1 74.
2
3
4
5
6
7

75.

8
9 76.
10
11
12
13

77.

14
15
16
17
18
19
20
21

78.

22
23
24 79.
25
26

Disputed. Contrary to
this assertion, there is
no requirement that the
individual tracks be
played together in a
“particular rhythmic
way.” Pringle Decl. ¶¶
156-166.
In order to re-create the complete “Take a Dive”
Disputed. The files
(Dance Version) sound recording from the NRG
simply must be loaded
file, it is necessary to manipulate the various
and played. Pringle
instrument files to create a completed musical work. Decl. ¶¶ 156-166.
There is no evidence that Pringle created “Take a
Disputed. Pringle Decl.
Dive” (Dance Version) and the guitar twang
¶ 54, 127-136, 146;
sequence prior to release of “I Gotta Feeling.”
Exhibit M to Dickie
Decl.; Norris Decl. ¶ 6;
Gallant Decl. ¶ 9;
Disputed. Although
The creation and last modified dates on an NRG
such dates theoretically
file (including the NRG file referenced above) can
could be modified, there
be backdated by simply changing the clock on the
is no evidence that
computer and then re-saving the file and burning it
occurred here and
to a CD.
defendants’ own expert
admits as such. Gallant
Decl. ¶ 9; FrederiksenCross Decl. at ¶¶ 9, 10,
14-44
Laykin Dep at 82:483:5.
Disputed. Pringle Decl.
Evidence either supporting or refuting Pringle’s
Norris Decl. Gallant
contentions regarding “Take a Dive” and “Take a
Decl. ¶ 9; Norris Decl. ¶
Dive” (Dance Version) would likely have been
6; Frederiksen-Cross
found on the computer that Pringle used to create
Decl. at ¶¶ 14-44
the NRG file.
During this litigation, Pringle disposed of the
Disputed. Pringle Decl.
computer hard drives that he used from 2009 to
246-261, Gallant Decl.
2011.
Frederiksen-Cross Decl.
at ¶¶ 14-44
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.

27
28
23

1 80.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

81.

Objection and move to
strike as irrelevant.
The fact that a different
NRG file was
inadvertently attached
to the application for a
TRO has no bearing on
this case particularly in
light of the forensic
analysis performed on
the NRG file containing
"Take a Dive" (Dance
Version). Gallant Decl.
¶ 4-9
In his TRO declaration, Pringle quoted that CD’s
Objection and move to
serial number and submitted a purported expert
strike as irrelevant.
report attesting to creation and modification dates of The fact that a different
that file.
NRG file was
inadvertently attached
to the application for a
TRO has no bearing on
this case particularly in
light of the forensic
analysis performed on
the NRG file containing
"Take a Dive" (Dance
Version). Gallant Decl.
¶ 4-9
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.

20
21
22
23
24
25
26
27
28
24

1 82.
2
3
4

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.

5
6
7
8
9
10
11

83.

12
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.

14
15
16 84.
17
18 85.
19
20
21
22
23 II.
24
25

Objection and move to
strike as irrelevant.
The fact that a different
NRG file was
inadvertently attached
to the application for a
TRO has no bearing on
this case particularly in
light of the forensic
analysis performed on
the NRG file containing
"Take a Dive" (Dance
Version). Gallant Decl.
¶ 4-9
Disputed. Plaintiff’s
counsel never stated
that Plaintiff would
withdraw his claim of
infringement of a sound
recording. See
Declaration of Kathleen
Koppenhoefer
Undisputed.

When Defendants’ counsel proposed a stipulation
dismissing Pringle’s sound recording claim,
Pringle’s counsel refused to sign the stipulation.
Undisputed.
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.”

Pringle’s Claim that Defendants Infringed “Take a Dive” (Dance
Version) is Barred by His Failure to Submit a Bona Fide Deposit Copy
Authority: Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (9th Cir. 1998);
17 U.S.C. §§ 408(b)(1),(2), 411(a).

26
27

UNCONTROVERTED MATERIAL FACT

28
25

OPPOSING
RESPONSE

1 86.
2
3 87.
4
5
6 88.

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

Undisputed.

Disputed. Pringle Decl.
¶¶ 159-173

Disputed. Defendants
again mischaracterize
7
the referenced
testimony. Pringle
8
Dep. 262:10-14,
9
267:14, 268:9.
10 89. Pringle later acknowledged that he did not have the Objection and move to
original hard drive in his possession when he created strike as misleading.
11
the MP3 file, so it could only have come from his
Pringle had made an
NRG file.
identical image of the
12
files and to suggest that
13
he “acknowledged” not
having it is misleading
14
and false. Pringle Decl.
15
¶¶ 159-173.
Undisputed; see further
16 90. Pringle created the MP3 file by “manually”
“load[ing] each individual instrument in the proper
explanation at Pringle
17
place, load[ing] up the sequence . . . [and l]oad[ing] Decl. ¶¶ 159-173.
the effect that’s corresponding to that[.]”
18
Disputed. Pringle did
91. Re-creating “Take a Dive” (Dance Version) from
19
Pringle’s NRG disk involved a process of “trial and not “Re-create” "Take a
20
error” and “switch[ing] things around until it finally Dive" (Dance Version).
Pringle Decl. ¶¶ 159played properly” based on Pringle’s recollection of
21
173
“what the song sounded like” when he allegedly
22
created it in 1999.
23 III. Pringle Cannot Establish Infringement of “Take a Dive”
A.
There is No Evidence That Any Defendant Had Access to “Take a
24
Dive”
25

Section I.B is incorporated by reference herein.

26

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).

27
28

26

1
2

UNCONTROVERTED MATERIAL FACT
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.

8 93.

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.

3
4
5
6
7

9
10
11
12
13 94.
14

There are numerous major structural differences
between “I Gotta Feeling” and “Take a Dive.”

15
16
17
18
19

95.

The basic chord progressions in “I Gotta Feeling”
and “Take a Dive” are not substantially similar.

20
21
22
23
24
25
26
27
28
27

OPPOSING
RESPONSE
Disputed. Plaintiff’s
expert has analyzed
"Take a Dive" "I Gotta
Feeling" and concluded
that they are
substantially similar.
Norris Decl. ¶¶ 11, 21,
42-48.
Disputed. Plaintiff’s
expert has analyzed
"Take a Dive" "I Gotta
Feeling" and concluded
that they are
substantially similar.
Norris Decl. ¶¶ 11, 21,
42-48.
Disputed. Plaintiff’s
expert has analyzed
"Take a Dive" "I Gotta
Feeling" and concluded
that they are
substantially similar.
Norris Decl. ¶¶ 11, 21,
42-48.
Disputed. Plaintiff’s
expert has analyzed
"Take a Dive" "I Gotta
Feeling" and concluded
that they are
substantially similar.
Norris Decl. ¶¶ 11, 21,
42-48.

1 96.
2

There are no similarities at all in melody or lyrics of
“I Gotta Feeling” and “Take a Dive.”

3
4
5
6
7

97.

“I Gotta Feeling” and “Take a Dive” have different
“overall rhythmic feel and flow.”

8
9
10
11
12 98.
13
14
15

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.”

16
17
18 IV.
19
20
21

Disputed. Plaintiff’s
expert has analyzed
"Take a Dive" "I Gotta
Feeling" and concluded
that they are
substantially similar.
Norris Decl. ¶¶ 11, 21,
42-48.
Disputed. Plaintiff’s
expert has analyzed
"Take a Dive" "I Gotta
Feeling" and concluded
that they are
substantially similar.
Norris Decl. ¶¶ 11, 21,
42-48.
Disputed. Plaintiff’s
expert has analyzed
"Take a Dive" "I Gotta
Feeling" and concluded
that they are
substantially similar.
Norris Decl. ¶¶ 11, 21,
42-48.

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)).

22
23
24 99.
25
26
27

UNCONTROVERTED MATERIAL FACT
As early as July 24, 2010, The Black Eyed Peas’
counsel wrote to Pringle’s counsel “question[ing] ...
the authenticity of Mr. Pringle’s representations
regarding the dates of his computer files” and
demanding that all of Pringle’s electronically stored
information be preserved.

28
28

OPPOSING
RESPONSE
Undisputed.

1 100. By email dated July 29, 2010, counsel for Pringle
agreed to preserve Pringle’s computer equipment
2
and electronically stored information.
3 101. Pringle’s computer hard drives used in 2009 and
2010 likely contained evidence of Pringle’s
4
copying of the guitar twang sequence from “I Gotta
5
Feeling” and manipulation of the dates of his NRG
file.
6

Undisputed

Disputed. It is
impossible for Pringle
to have copied the
guitar twang sequence
from "I Gotta Feeling.”
He did not copy the
7
sequence and he did not
manipulate the dates of
8
his NRG file. Pringle
9
Decl. ¶¶ 4, 97, 98, 101,
114, 117-144, Norris
10
Decl. ¶ 6; Exhibit M to
11
Dickie Decl.;
Frederiksen-Cross ¶¶
12
14, 45-61
13 102. The Black Eyed Peas’ counsel further advised that Objection and move to
Pringle’s computer equipment would be
strike as misleading and
14
“something we will necessarily request in discovery irrelevant. Pringle gave
15
should this case ever reach a filed action.”
all of the files
pertaining to the
16
creation of "Take a
17
Dive" (Dance Version)
to David Gallant and, at
18
the time in question,
19
did not have any hard
drive from 2009.
20
Frederickson Cross
21
Decl. at ¶¶ 14-44;
Pringle Decl. at ¶¶ 4,
22
246-261; Gallant Decl.
23
¶¶ 4-9
24
25
26
27
28
29

1 103. In the February 18, 2011 Joint Rule 26 Report,
Defendants advised that “Mr. Pringle’s ESI will
2
likely play a crucial role in discovery in this action,
3
as it goes directly to the threshold issues of
Plaintiff’s ownership of a valid copyright, including
4
the dates and manner of Plaintiff’s alleged creation
5
of ‘Take a Dive’ and ‘Take a Dive’ Derivative, and
the validity of Plaintiff’s asserted copyright
6
registrations of those works.”
7
8
9
10
11
12 104. After Pringle filed suit, Defendants requested, and
Pringle agreed to, a forensic inspection of all of
13
Pringle’s computer hardware and music equipment
from 2009 to the present.
14
105. Shortly before a scheduled inspection of Pringle’s
15
computer equipment, Pringle’s counsel informed
Defendants that just a few weeks earlier Pringle had
16
returned the computer hard drive that he had been
17
using since January 2011 to its manufacturer, and
that he had previously disposed of the hard drive
18
that he used in 2009 and 2010.
19
20
21

106. Pringle claimed to be following a practice of
“replac[ing] his hard drive every 6 to 12 months”
22
and “discard[ing] the prior drive” – even after he
23
retained litigation counsel in February 2010 and
24
filed suit in October 2010.
25
26
27
28
30

Objection and move to
strike as misleading and
irrelevant. Pringle gave
all of the files
pertaining to the
creation of "Take a
Dive" (Dance Version)
to David Gallant and, at
the time in question,
did not have any hard
drive from 2009.
Frederickson Cross
Decl. at ¶¶ 14-44;
Pringle Decl. at ¶¶ 4,
246-261; Gallant Decl.
¶¶ 4-9
Undisputed.

Disputed as to the
characterization and
incomplete nature of
this Fact. See;
Frederickson Cross
Decl. at ¶¶ 14-44;
Pringle Decl. at ¶¶ 4,
246-261 for a more
accurate recitation of
these facts.
Disputed as to the
characterization and
incomplete nature of
this Fact. See;
Frederickson Cross
Decl. at ¶¶ 14-44;
Pringle Decl. at ¶¶ 4,
246-261 for a more
accurate recitation of
these facts.

1 107. The computer hard drive that Pringle had used in
2009 and 2010 is “probably in a landfill” because
2
Pringle discarded it in December 2010 or January
3
2011.
4
5
6
7
8 108. Pringle acknowledged that he “did not make a full
and complete copy of the entire drive from 2010”
9
including any “program-related files or Internetrelated files[.]”
10
11
12
13
14
109. These and other system files from Pringle’s hard
drives would contain evidence of the true date of
the NRG file.
16
15

17
18
19
20
21
22
23
24
25
26
27
28
31

Disputed as to the
characterization and
incomplete nature of
this Fact. See;
Frederickson Cross
Decl. at ¶¶ 14-44
Pringle Decl. at ¶¶ 4,
246-261 for a more
accurate recitation of
these facts.
Disputed as to the
characterization and
incomplete nature of
this Fact. See;
Frederickson Cross
Decl. at ¶¶ 14-44
Pringle Decl. at ¶¶ 4,
246-261 for a more
accurate recitation of
these facts.
Disputed. The true date
of the NRG file has
been determined by
Pringle’s expert and
Defendants experts
concede they have no
evidence to the
contrary. Gallant Decl.
¶¶ 4-9; FrederiksenCross Decl. at ¶¶ 14-44

1 110. Pringle testified that in July or August 2011, he
returned to the manufacturer the computer hard
2
drive that he had been using since January 2011.
3
4
5
6
7
8
9
10
11
12 111. Pringle testified that the “I Gotta Feeling” re-mixes
that he obtained which had the guitar twang
13
sequence in the clear were saved to either the
2009/2010 hard drive that he discarded in late 2010
14
or early 2011, or the 2011 drive that he returned to
15
the manufacturer in July 2011.
16
17
18
19
20
21
22
23
24
25
26
27

II.

Undisputed, but
Plaintiff further states
that this hard drive
could not have
contained evidence
relating to the alleged
downloading of
Beatportal.com remix
contest tracks since
those materials were no
longer available for
download when the
second drive was
placed in service.
Frederiksen-Cross
Decl. at ¶ 41.
Disputed. Defendants
blatantly
mischaracterize the
referenced testimony.
Pringle specifically said
that he did not recall
when he received the
referenced samples and
therefore did not know
on which computers
they were saved.
Additionally, Pringle
has produced evidence
that the discarded hard
drives could not have
had the relevant
remixes on them.
Frederiksen-Cross
Decl. at ¶¶ 34-42.

STATEMENT OF ADDITIONAL FACTS

Plaintiff Bryan Pringle contends that the following additional material facts
show genuine issues preventing summary judgment in favor of Defendants.

28
32

1

ADDITIONAL FACT

2
3 112.
4
5 113.
6
7
8 114.
9
10
11

115.

12
13

116.

14 117.
15
16
17

118.

18
19
20
21 119.
22
23 120.
24
25
26

SUPPORTING
EVIDENCE

Pringle’s Musical Background
Plaintiff Bryan Pringle is a songwriter with
Pringle Decl. at ¶ 7
many years of traditional and non-traditional
music training.
He has been writing contemporary popular
Pringle Decl. at ¶ 7
music since 1986 and since that time written
hundreds of songs that span a wide variety of
musical genres.
His training and experience have also helped
Pringle Decl. at ¶ 8
him to develop a substantial amount of
knowledge of and experience with computer
based musical composition.
Pringle Composes “Take a Dive” And Its Derivative Dance Version
In 1998 Pringle wrote and recorded “Take a
Pringle Dep at : 101-102.
Dive”, a cathartic ode to a failed relationship.
He created the song using a stand alone
Pringle Decl. at ¶ 161
Ensoniq ASR-10 keyboard.
He registered a claim for “Take a Dive” and
Copyright Registration
several other original songs he wrote and
attached as Exhibit M to
recorded by submitting a CD entitled Dead
Dickie Decl.
Beat Club: 1998 to the United States Copyright
Office.
The Register of Copyrights issued a Certificate Copyright Registration
of Registration for Dead Beat Club: 1998 on
attached as Exhibit M to
April 29, 1998, identified as SRu 387-433
Dickie Decl.
(“Take a Dive” is referred to on the Certificate
as “Dive”)
Mr. Pringle made several derivative variations Pringle Decl. at ¶ 55
of “Take a Dive” including the “Dance
Version” that is central to this case.
Pringle Decl. at ¶ 70
He was not particularly enamored with the
vocals in the original “Take a Dive” so, for the
Dance Version, he replaced the vocals with a
repeating eight-bar melody using a “guitar
twang” instrument that he had previously
recorded in 1997 for his song “Faith.”

27
28
33

1 121.
2
3
4 122.
5
6 123.
7
8
9
10
11
12 124.
13

125.

14
15
16
17

126.

18
19

127.

20
21
22
23
24

128.

He used this instrument to play a total of four
notes (D4, C4, B3 AND G3), in the following
progression: D4-C4-B3-C4-B3-C4, and in the
key of G3 (the “guitar twang sequence”).
Otherwise, the derivative Dance Version was
very much the same song.

Pringle Jan 3 2011 Decl.
(“Pringle TRO Decl.”) at
¶ 4. (Dck. 71a)
Declaration of Dr. Alex
Norris (“Norris Decl.”) at
¶6
Norris Decl. at ¶ 6

It had the exact same ambient sounds at the
beginning of both versions, identical keyboard
motifs at :09 seconds, identical bass parts,
identical chord progression, identical sonic
sweeps at similar points in time of both tracks,
identical changes in the bass parts at similar
points in each track, identical key, identical
tempo, and identical timbre’s with regard to all
of the aforementioned similarities.
Mr. Pringle created “Take a Dive” Dance
Pringle Decl. ¶ 161
Version using an Ensoniq ASR-10 keyboard.
Pringle Decl. ¶ 161
The ASR-10 is a complete digital music
production studio that allows a user to upload
instruments, sounds, and other audio samples
from external third-party sources into the
keyboard.
These samples are then sequenced and
Pringle Decl. ¶ 161
arranged by the user to create and record
songs.
A song, its component parts, and the
Pringle Decl. ¶ 161
sequencing and arrangement information can
then be saved on an external disc drive as a
“creation file.” [BPX]
In 1999, after Mr. Pringle created and recorded Pringle Decl. at ¶ 161;
“Take a Dive” Dance Version, he backed up
See also, Declaration of
his creation file onto an NRG image file he
David Gallant (“Gallant
titled “DISK05.NRG”2.
Decl.”) at ¶ 9.
“Take a Dive” Dance Version Is Sent To Defendants

25
26
27
28
34

1 129.
2
3
4
5
6 130.
7
8
9

131.

10
11 132.
12
13
14
15

133.

16
17
18 134.
19
20
21

135.

22
23 136.
24
25
26
27

Mr. Pringle endeavored to promote his music
so that he could either sign on with a major
record label or sell his music to publishing
companies and other artists. In 1999 he began
to regularly submit demo cd’s, including the
“Take a Dive” Dance Version, to record labels,
artists, publishing companies and many others.
He sent copies of this work by mail to
Defendants UMG, Interscope and EMI, as
partially evidenced by the USPS postal receipts
produced during discovery.
He also sent a copy to Gum Productions, a
music production company co-owned by
Defendant David Guetta, Joachim Garraud,
and Jean Charles Carre.
Mr. Pringle distributed his demo cd’s in France
at various times in 1999 and between 2001 and
2003 and enlisted the help of his brother
Jeffrey, a professional and part time disc
jockey, to assist with promotions.
Jeffrey Pringle brought Mr. Pringle to several
night clubs in France, including “Rex Club”,
“Le Queen” and “Le Palace”, where he
distributed his demo cd to the local disc
jockeys.
Jeffrey Pringle also hosted radio and internet
programs that were broadcast in the
Netherlands, France and Canada. He played
Mr. Pringle’s music, including “Take a Dive”
Dance Version on these programs.
Michael Scott Brown was also a professional
and part time disc jockey in Western Europe.
He and Jeffrey Pringle served in the U.S.
military together. Mr. Brown also played Mr.
Pringle’s music, including cuts from the
copyrighted Dead Beat Club album, regularly
on the Armed Forces Network radio and Dutch
and German radio stations. These stations
broadcasted on the internet and all over
Western Europe, including in France.

28
35

Pringle TRO Decl. at ¶ 7.
(Dck. 71a)

Pringle TRO Decl. at ¶ 7.
(Dck. 71a).

Pringle Decl. at ¶; 5;
Guetta Dep. at pp 20-22.

Jeffrey Pringle Decl. ¶ 7,
9.

Jeffrey Pringle Decl. at ¶¶
9.

Jeffrey Pringle Decl. at ¶
6, 7

Jeffrey Pringle Decl. at ¶6
Jeffrey Pringle Decl. at ¶6

1 137.
2
3
4
5

138.

6
7 139.
8
9
10 140.
11
12
13

141.

14
15
16
17 142.
18
19
20 143.
21
22 144.
23
24
25 145.
26

In addition to these efforts in Europe, Mr.
Pringle Dep. at 132, 133
Pringle also made “Take a Dive” Dance
Version available for sale on several websites,
including www.mp3.com, www.gemm.com.
Black Eyed Peas Release “I Gotta Feeling”
In 2009, the Black Eyed Peas released “I Gotta Pringle TRO Decl. ¶ 10.
Feeling” as the second single off their album
The E.N.D. “I Gotta Feeling” achieved
tremendous success and worldwide acclaim.
When Mr. Pringle first heard it however, he
Pringle Dep. at 63:4knew that “there was a problem,” he knew that 63:19.
“there was intentional, willful infringement” of
“Take a Dive” Dance Version.
There were numerous and undeniable
Norris Decl. at ¶ ,
similarities between the songs.
Declaration of Alex
Stewart (“Stewart Decl.”)
at ¶ 3, 5
Alleged Creation of “I Gotta Feeling”
David Guetta and Joachim Garraud, the two
Riesterer Dep. 125:11recipients of Mr. Pringle’s submission to Gum 129:21.
Production, collaborated with Defendant
Riesterer in the selection of the instrumental
portion of “I Gotta Feeling.”
Joachim Garraud first met Defendant Riesterer Deposition of Frederick
in 1989.
Riesterer at p. 78
(“Riesterer Dep.”)
attached as Exhibit _ to
Dickie Decl.
They worked together at a French radio station Riesterer Dep. at pp. 75called “Maximum” where Garraud was a
76.
producer and Riesterer was a disc jockey.
Garraud and Riesterer shared an interest in
Riesterer Dep. at p. 79.
music, became close friends, and then
“naturally” began to make music together in
the early 1990’s.
They would often exchange ideas and
Riesterer Dep. at p. 88.
concepts, exchange demo tapes, and “put them
together” in a sound sequencer.

27
28
36

1 146.
2
3 147.
4
5 148.
6
7
8
9
10 149.
11
12 150.
13
14
15

151.

16
17

152.

18
19

153.

20
21
22
23

154.

When Riesterer left Maximum in 1993, he
remained close with Garraud and they
continued to “talk all the time” about music.
In 2001, Garraud, David Guetta and Jean
Charles Carre founded Gum Productions so
that they could “make music.”
Gum Productions often recruited and signed
artists to perform on albums that it produced
and it received submissions from prospective
artists as well. Some time between 2001 and
2003, Gum Productions received Pringle’s
demo cd that included the “Take a Dive”
Dance Version.
After receiving this cd, Gum Productions sent a
letter to Pringle in which Garraud and Guetta
expressed their approval for Pringle’s music.
They then asked for and received additional
tracks from Pringle, including the settings
instrumentation and sound effects for his
songs, including “Take a Dive” (Dance
Version)
In 2006, Joachim Garraud called Fred Riesterer
and asked him if he would be willing to work
on a music project with he and David Guetta.
The three of them worked together
collaboratively on a song called “Love is
Gone” for David Guetta’s upcoming album.
They constantly exchanged “sounds” and
“advice” in order to have the “best possible”
song.
It was during this process that they came upon
the “guitar twang sequence” that Riesterer
admitted in his November 2010 declaration
was eventually used in “I Gotta Feeling.”

24
25
26
27
28
37

Riesterer Dep. at pp. 80,
81, 126
Guetta Dep. at p. 21.

Guetta Dep. at p. 66-69

Pringle Decl. at ¶ 5

Pringle Decl. at ¶ 5

Riesterer Dep. at 125

Riesterer Dep. at 127-128

Riesterer Dep. at 129

Declaration of Frederic
Riesterer (“Riesterer Nov.
23 Decl.”) attached to
Opposition to Motion for
Preliminary Injunction
(Dckt. No. 22-3) at ¶¶ 46.

1 155.
2
3
4
5
6
7 156.
8
157.
9
10
11

158.

12
13

159.

14
15
16 160.
17
18
19

161.

20
21 162.
22 163.
23
24

164.

In “his” November 23, 2010 declaration,
Riesterer claimed that the entire “guitar twang
sequence” was recorded by Univers Sons and
available in its library under the name “Strat
with SM57 Crunchy”. In his deposition
however, Riesterer admitted that he never
reviewed this declaration, did not understand it
as written in English and that that statement
was patently false.
Riesterer and Guetta continued to work
together after the release of “Love is Gone.”
In October 2008, they began working in
Riesterer’s studio on an “instrumental” song
called “David Pop GTR.”
They “wanted to create a song with the same
guitar as in “Love is Gone” and they worked
tirelessly “one next to another” in order to get
it done.
Around the same time however, Defendant
Adams reached out to David Guetta because he
“want[ed] him to produce a song for the Black
Eyed Peas.”
Guetta and Adams began discussing a possible
“swap deal” that would see Guetta and the
Black Eyed Peas appear on each others’
albums in some capacity.
Adams specifically asked Guetta to “produce a
song for the Black Eyed Peas that [was] similar
to [Love is Gone].”
Adams was particularly attracted to the “guitar
twang” used in Love is Gone.
Guetta then sent Adams a sound file containing
“David Pop GTR.”
Guetta did not check with Riesterer before
sending the file to Adams.

25
26
27
28
38

Riesterer Nov. 23 Decl. at
¶ 6; Riesterer Dep. at
164-167; 175:11-176:7

Riesterer Dep. 190:18191:4.
Riesterer Dep. at 194;
Guetta Dep. at p. 143-144
Riesterer Dep. at 194:

Deposition of William
Adams (“Adams Dep”) at
237, attached to Dickie
Decl. as Exhibit _.
Guetta Dep. at p. 197

Adams Dep. at 237.

Adams Dep. at 239.
Adams Dep. at 77-78.
Guetta Dep. at p. 150.

1 165.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

Guetta Dep. at p. 205;
In fact, Guetta and Adams exchanged
numerous files under a shroud of secrecy, with Exhibit L to Dickie Decl.
Adams warning Guetta to “be very protective
of this… You’re the only one who has this—
not management, record company, just me and
you.”
166.
Neither Guetta nor Adams concerned
Guetta Dep. at p. 110,
themselves with determining whether the
Adams Dep. at 111-112
tracks being exchanged had been copied or
sampled from copyrighted work.
167.
When Adams heard “David Pop GTR”, he said Riesterer Dep. at 195;
“I love that song I want it on my album.” He
Adams Dep. at 79
thought that the song was “amazing” because
of the guitar “chord progression.”
168.
And so, after he contributed his vocals and
Adams Dep. at 79
lyrics, “David Pop GTR” became “I Gotta
Feeling.”
None of The Defendants Can Explain The Origin Of The “Guitar Twang
Sequence”
Adams Dep. at 124-125.
169.
Adams admitted that he contributed only the
lyrics for “I Gotta Feeling” and that he relied
on Guetta for “the music.” He could not
account for the origin of the “guitar twang”
sequence and he was careful to specify that
Guetta merely “represented” that he composed
it himself.
170.
Guetta claimed that the guitar instrumentation Dickie Decl. Ex. Guetta
“came from [Riesterer]” and that Riesterer
Dep. at p. 115:2-116:8.
never told him where he got it from.
171.

22
23
24
25
26
27

172.

Riesterer submitted wholly contradictory
claims as to the origins of the “guitar twang
sequence.” He first claimed that the entire
sequence used in “I Gotta Feeling” came prepackaged from a licensed Univers-Sons music
library.
He later claimed however that he took the
guitar sequence from “Love is Gone” and
changed the “preset” and “processing effects”
to make the sequence for “I Gotta Feeling.”

28
39

Riesterer TRO Decl. at ¶¶
5-6. (Dck. 22-3)

Riesterer Nov. 9, 2011
Decl. at ¶ 6. (Dck. 166)

1 173.
2
3
4 174.
5
6 175.
7
8
9 176.
10
11

He could provide no explanation for the origin
of the sequence from “Love is Gone” however
because he doesn’t “remember exactly” how he
created it.
He also had no recollection or evidence of the
“preset” and “processing effects” he allegedly
used.
Riesterer cannot even produce the computer
that he allegedly used to create the sequence,
claiming that he gave it to a “friend” whose
name he can’t remember because he “has a lot
of friends.”
Geluso claims that Riesterer files 1-9 and 30
constitute the original David Pop Guitar
creation files.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
40

Riesterer Dep. at 130:916.

Riesterer Dep. at 130:9;
Declaration of Paul
Geluso at ¶ 18.
Riesterer Dep. at 192:24193:6.

Geluso at ¶ 6.

1 177.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

178.

Pringle Decl. at ¶¶ 234Furthermore, the creation dates and other
metadata of Riesterer’s alleged “creation files” 244. Frederiksen-Cross
Decl. ¶¶ 46-53.
for “I Gotta Feeling” suggest that Defendants
have manipulated these files. First, Riesterer
failed to produce the hard drive that he
allegedly used to create “David Pop GTR”
which became “I Gotta Feeling.” Second,
several of the creation files allegedly used to
create the original version of “I Gotta Feeling”
have creation dates which show that they were
created after the original version of “I Gotta
Feeling” was already recorded and released.
Third, the “David Pop GTR” song file that
Riesterer claims he used to create “I Gotta
Feeling” contains an entry in the document
Data Logic File for an audio device allegedly
used in the creation of “I Gotta Feeling” that
wasn’t available in 2008 or 2009, when “I
Gotta Feeling” was created. Fourth, one of the
alleged creation files is titled “Disk 1 tb Litige
(def) OK. David Pop Guitar: Audio Files.
There is no reason why a file that was
allegedly created in 2008 or 2009 would refer
to “litigation” and be “ok.” Fifth, one of the
alleged creation files, “0.6s_Snare Hall.SDIR”,
has been produced twice by the defense and
has had two different creation dates each time.
Defendants Concoct Another Explanation
More than a year into the litigation, and unable Exhibit J to Dickie Decl.
to justify the striking similarity between “Take
a Dive” Dance Version, which was created in
1999, and “I Gotta Feeling”, which was created
in 2009, Defendants decided to make the
reckless and wholly unsupported allegation
that Plaintiff first heard the “guitar twang
sequence” some time after “I Gotta Feeling”
was released in 2009.

27
28
41

1 179.
2
3
4 180.
5

They then claimed that Plaintiff somehow
reverse engineered “I Gotta Feeling” in 2009 to
make it look like “Take a Dive” Dance Version
was created in 1999.
Defendants have not presented a single piece
of evidence that proves or even suggests that
Pringle engaged in such conduct.

6
7
8
9

181.

10
11

182.

12
13
14
15

183.

16
17
18 184.
19
20
21
22
23
24

185.

Plaintiff has produced evidence that "Take a
Dive" (Dance Version) is a derivative of "Take
a Dive.”
Plaintiff has produced evidence that establishes
conclusively that August 22, 1999 was the last
time that the creation file for “Take a Dive”
Dance Version, containing the song, its
component parts and its sequencing and
arrangement information, was modified.
[Gallant, Frederickson]
Defendants theory is based on the assumption
that Mr. Pringle wanted to create a backdated
NRG file;
Defendants theory is based on the assumption
that Mr. Pringle retained blank CD recording
media for approximately 10 years and was also
able to somehow determine the age of this
media to identify how old it was
Defendants theory is based on the assumption
that the CD recording media was stored in an
environment with sufficient protection from
heat and damage that it would still be useable
after that time period

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Exhibit J to Dickie Decl.

Deposition of Erik
Laykin at 92:17-92:20,
93:12-93:19, 94:22-24, ,
(“Laykin Dep.”), attached
to Dickie Decl. as Exhibit
E.; Frederiksen-Cross
Decl. at ¶¶ 14-44
Norris Decl. ¶ 6.

Gallant Decl. at ¶ 9;
Frederiksen-Cross Decl.
at ¶ 14-44

Frederiksen-Cross Decl.
at ¶ 21

Frederiksen-Cross Decl.
at ¶ 21

Frederiksen-Cross Decl.
at ¶ 21

1 186.
2
3
4
5
6
7
8 187.
9
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11

188.

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189.

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17
18 190.
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20
21

191.

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23 192.
24
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Defendants theory is based on the assumption
that Mr. Pringle somehow discovered a copy of
the guitar twang from an Internet source, that
the guitar twang coincidentally matched a song
that Mr. Pringle wrote and copyrighted a
decade before, and that Mr. Pringle was able to
integrate the guitar sequence somehow with the
music for “Take A Dive” that Mr. Pringle had
already composed, in order to create a new
recording that he would then backdate
Defendants theory is based on the assumption
that Mr. Pringle deliberately set the computer
date back to 1999, so that the files he wrote
would have operating system dates from 1999
Defendants theory is based on the assumption
that Mr. Pringle coincidentally kept at least 134
contemporaneous photos, including photos of
himself, whose external file dates and internal
metadata dates are from September 6th and 8th
1999
It is uncontroverted that "Take a Dive" (Dance
Version) is a derivative of "Take a Dive”,
along with Plaintiff’s other songs “Faith” and
“Regret,” which are also on the copyrighted
album “Deadbeat Club.”
In addition to providing uncontroverted
evidence that he created “Take a Dive” Dance
Version in 1999, Plaintiff took considerable
and significant steps to preserve this evidence.
Plaintiff backed up the creation file for “Take a
Dive” Dance Version on to a small computer
serial interface (SCSI) hard drive.
He then connected the SCSI drive to a
Windows 98 based computer and, using
Ensoniq Disk Manager (EDM) software, he
created .NRG image files creation files he
burned on to a cd and titled “DISK05.NRG”2.

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Frederiksen-Cross Decl.
at ¶ 21

Frederiksen-Cross Decl.
at ¶ 21

Frederiksen-Cross Decl.
at ¶ 21

Pringle Decl. ¶ 133

Gallant Decl. at ¶ 4

Gallant Decl. at ¶ 4

Gallant Decl. at ¶ 4

1 193.
2
3
4
5

194.

6
7
8 195.
9
10
11

196.

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13

197.

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15

198.

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17

199.

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20 200.
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24 201.
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202.

These steps preserved the evidence of his
creation of the “Take a Dive” Dance Version
even after his hard drives and audio equipment
were stolen from a storage locker on October
19, 2000.
According to www.beatportal.com, the website
from which the Defendants claim Pringle
downloaded Black Eyed Peas samples, the
tracks were only available from August 21 to
September 8, 2009.
Evidence of that downloading would have been
on the hard drive that he upgraded in January
2010, at least a month before he became aware
of “I Gotta Feeling.”
His replacement hard drive, in operation from
January 2010 to January 2011, would not have
had any data relating to activities from 2009.
Furthermore, Beatportal would have records
evidencing Pringle’s alleged registration,
downloading of tracks, and credit card
payment for purchase of tracks.
Defendants have produced no evidence of
same and Clark Warner’s declaration makes no
such reference.
When Plaintiff returned his defective hard
drive to Western Digital for warranty repair or
replacement in the summer of 2011, it did not
contain any remix of "I Gotta Feeling.”
As of July 2011, Plaintiff had no reason to
believe that there was anything on his defective
hard drive that had anything to do with his case
because he, in good faith, believed that all such
materials were turned over to David Gallant in
2010.
Before returning the hard drive for repair,
Plaintiff backed up everything he could onto a
DVD-Rom and provided it to Gallant, who
made it available to Defendant’s expert, Mr.
Aga on August 8, 2011.
Mr. Aga declined to inspect the hard drive.

44

Pringle Decl. at ¶ 147
;Gallant Decl. at ¶ 4

Frederiksen-Cross Decl.
at ¶ 35

Frederiksen-Cross Decl.
at ¶ 36

Frederiksen-Cross Decl.
at ¶ 37
Frederiksen-Cross Decl.
at ¶ 38

Declaration of Clark
Warner, Dckt. No. 163.
Pringle Decl. at ¶ 246

Pringle Decl. at ¶ 247

Pringle Decl. at ¶ 250

Pringle Decl. at ¶ 254

1 203.
2
3
4 204.
5
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8 205.
9
10

On November 15, 2011 Mr. Pringle submitted Exhibit K to Dickie Decl.
an application to the U.S. Copyright Office for
the registration of the derivative Dance Version
of “Take a Dive.”
Exhibit K to Dickie Decl.
The Copyright Office registered the sound
recording in “Take a Dive (Dance Version),”
but refused to register the musical composition
in the new material added, stating that the
“work does not contain enough original
musical authorship to be copyrightable.”
Plaintiff has notified the Copyright Office of
Exhibit K to Dickie Decl.
the litigation pursuant to Section 411(a) of the
Copyright Act.
CONCLUSIONS OF LAW

11

For his Conclusions of Law, Plaintiff states as follows:

12
CONCLUSION OF LAW

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14

1.

15
16

A party may not rely on evidence which
was not disclosed in contravention of Rule
26.

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19 2.
20

"Take a Dive" (Dance Version) is
protectable under the Copyright Statute.

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A Plaintiff may adjudicate infringement
actions…where the holder attempted to
register the work and registration was
refused.”

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SUPPORTING
CITATION
Fed. R. Civ. P. 26, Rule 37;
Harris v. U.S., 132 Fed.
Appx. 183 (9th Cir. 2005)
Yeti by Molly, Ltd. v.
Deckers Outdoor Corp., 259
F.3d 1101, 1106 (9th Cir.
2001). I
Reed Elsevier, Inc. v.
Muchnick, 130 S. Ct. 1237,
176 L. Ed. 2d 18 (2010);
Shady Records, Inc. v.
Source Enterprises, Inc.,
2005 WL 14920, *8
(S.D.N.Y. January 3, 2005.
17 U.S.C. § 411(a);
Reed Elsevier, Inc. v.
Muchnick, 130 S. Ct. 1237,
176 L. Ed. 2d 18 (2010)

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4

CONCLUSION OF LAW
"Take a Dive" (Dance Version) is a
protected derivative version of "Take a
Dive.”

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6
7

“[T]he standard for originality of a ...
derivative work is ‘minimal’ and of ‘a low
threshold,’ and is ‘modest at best.’”

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9
10
11

Whether a work is original is a question of
fact for the jury.

12
13
14
15

Plaintiff deposited a bona fide copy of
"Take a Dive" (Dance Version) with the
Copyright Office.

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17
18
19
20

Pringle has provided evidence that he gave
"Take a Dive" (Dance Version) to
Defendants.

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SUPPORTING
CITATION
Stewart v. Abend, 495 U.S.
207, 220, (1990); Feist
Publ’ns, Inc. v. Rural Tel.
Serv. Co., Inc., 499 U.S.
340, 361 (1991).
Harvester v. Rule Joy
Trammell + Rubio, LLC,
716 F. Supp. 2d 428, 439
(E.D. Va. 2010) quoting
Kramer Mfg. Co., Inc. v.
Andrews, 783 F.2d 421, 438
(4th Cir. 1986).
Vargas v. Pfizer, Inc., 418
F.Supp.2d 369, 372-373
(S.D.N.Y 2005) Kregos v.
Assoc. Press, 937 F.2d 700,
709 (2d Cir. 1991)
Harris v. Emus Records
Corp., 734 F.2d 1329, 1335
(9th Cir. 1984) ; Coles v.
Wonder, 283 F.3d 798 (6th.
Cir. 2002); Kodadek v. MTV
Networks, Inc. 152 F.3d
1209 (9th Cir. 1998)
Bethea v. Burnett, No. CV
04-7690JFWPLAX, 2005
WL 1720631 (C.D.Cal., Jun.
28, 2005); Straughter v.
Raymond, No. CV 08-2170
CAS CWX, 2011 WL
3651350 (C.D.Cal. Aug. 19,
2011.

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2
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CONCLUSION OF LAW

SUPPORTING
CITATION
Where experts provide competing opinions, ” Goldman v. Standard Ins.
summary judgment is improper.
Co., 341 F.3d 1023, 1034
(9th 2003) (citing Suzuki
Motor Corp. v. Consumers
Union of U.S., Inc., 330 F.3d
1110, 1140 (9th Cir. 2003).
Dorn v. Burlington, 397 F.3d
1183, 1196 (9th Cir. 2005)
(citing Humetrix, Inc. v.
Gemplus S.C.A., 268 F.3d
910, 919 (9th Cir. 2001));
see also Goldman v.
Standard Ins. Co., 341 F.3d
at 1036 (“Who is correct in
[the] battle of experts is not
for us to decide.”); S.E.C. v.
Todd, 642 F.3d 1207 (9th
Cir. 2011)
The duty to preserve evidence commences See Silvestri v. General
when litigation is reasonable anticipated or Motors, 271 F.3d 583, 590
contemplated.
(4th Cir. 2001); Kronisch v.
United States, 150 F.3d 112,
126 (2nd Cir. 1998).
Terminating sanctions should only be
Anheuser-Busch, Inc. v.
levied when “a party has engaged
Natural Beverage
deliberately in deceptive practices that
Distributors, 69 F.3d 337,
undermine the integrity of judicial
348 (9th Cir. 1995)).
proceedings” because “courts have inherent
power to dismiss an action when a party
has willfully deceived the court and
engaged in conduct utterly inconsistent
with the orderly administration of justice.”
Terminating sanctions require a finding of Anheuser-Busch, Inc. v.
bad faith.
Natural Beverage
Distributors, 69 F.3d 337,
348 (9th Cir. 1995)).

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1
2 Dated: December 19, 2011
3
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8

Dean A. Dickie (appearing Pro Hac Vice)
Kathleen E. Koppenhoefer (appearing Pro Hac Vice)
MILLER, CANFIELD, PADDOCK AND STONE,
P.L.C.
George L. Hampton IV (State Bar No. 144433)
Colin C. Holley (State Bar No. 191999)
HAMPTONHOLLEY LLP
By: /s/ Dean A. Dickie
Attorneys for Plaintiff Bryan Pringle

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48

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CERTIFICATE OF SERVICE
On December 19, 2011, I electronically filed the foregoing PLAINTIFF’S
STATEMENT OF GENUINE DISPUTES IN OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT using the CM/ECF system which will send notification of
such filing to the following registered CM/ECF Users:

Barry I. Slotnick
[e-mail]
6 Donald A. Miller
[e-mail], [e-mail]
[e-mail]
7 Ira P. Gould
Tal Efriam Dickstein
[e-mail]
8
Linda M. Burrow
[e-mail], [e-mail],
[e-mail], [e-mail]
9
Ryan Christopher Williams [e-mail]
10
Kara E. F. Cenar
[e-mail]
[e-mail]
11 Ryan L. Greely
Robert C. Levels
[e-mail]
12
Kathleen E. Koppenhoefer [e-mail]
13 Rachel Aleeza Rappaport [e-mail]
Jonathan S. Pink [e-mail], [e-mail]
14
Dean A. Dickie
[e-mail], [e-mail],
15
[e-mail], [e-mail],
[e-mail], [e-mail]
16
Edwin F. McPherson
[e-mail],
17
[e-mail]
Joseph G. Vernon
[e-mail]
18
Justin Michael Righettini [e-mail]
19 Tracy B. Rane
[e-mail]
20
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I am unaware of any attorneys of record in this action who are not registered
for the CM/ECF system or who did not consent to electronic service.
I certify under penalty of perjury under the laws of the United States of
America that the foregoing statements are true and correct.
Dated: December 19, 2011

/s/Colin C. Holley

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George L. Hampton IV (State Bar No. 144433)
Colin C. Holley (State Bar No. 191999)
HAMPTONHOLLEY LLP
2101 East Coast Highway, Suite 260
Corona del Mar, California 92625
Telephone: [phone]
Facsimile: 949.718.4580