Bryan Pringle v. William Adams Jr et al

Filing 222

RESPONSE IN SUPPORT of MOTION for Summary Judgment 159 Response to Plaintiff's Statement of Genuine Disputes in Opposition to Motion for Summary Judgment filed by Defendants David Guetta, Frederick Riesterer, Shapiro Bernstein and Co. (Miller, Donald)

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

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

13 BRYAN PRINGLE, an individual,
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Plaintiff,
v.

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

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Case No. SACV 10-1656 JST(RZx)
Hon. Josephine Staton Tucker
Courtroom 10A
RESPONSE TO PLAINTIFF’S
STATEMENT OF GENUINE
DISPUTES IN OPPOSITION TO
MOTION FOR SUMMARY
JUDGMENT [DOC. 196] BY
DEFENDANTS SHAPIRO,
BERNSTEIN & CO, INC.,
FREDERIC RIESTERER AND
DAVID GUETTA
Complaint Filed: October 28, 2010
Trial Date: March 27, 2012
Hearing Date: January 30, 2012
10:00 AM

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RESPONSE TO STATEMENT
OF GENUINE DISPUTES

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Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Central District

2 of California Local Rule 56-1, and the Court’s Initial Standing Order at 11(c)(i),
3 Defendants Shapiro, Bernstein & Co, Inc. (“Shapiro Bernstein”), Frederic Riesterer
4 and David Guetta (collectively, “Defendants”) respectfully submit this Response to
5 Plaintiff’s Statement of Genuine Disputes in Opposition to Motion for Summary
6 Judgment (Doc. 196). Plaintiff Bryan Pringle contends that the following alleged
7 material facts create genuine issues preventing summary judgment in favor of
8 Defendants. For the reasons set forth below, such facts are either undisputed, or
9 disputed but immaterial to Defendants’ Motion for Summary Judgment (Doc. 159).1
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ADDITIONAL FACT AND
DEFENDANTS’
PURPORTED SUPPORTING
RESPONSE
EVIDENCE
Pringle’s Musical Background
112. Plaintiff Bryan Pringle is a songwriter Disputed, but immaterial. The
with many years of traditional and
only “music training” Pringle
non-traditional music training. Pringle identifies is studying drums in
Decl. at ¶ 7
middle school, taking “piano
lessons as a young boy” and
music classes at a community
college (Pringle Decl. ¶ 7) and
Pringle has only ever earned
“beer money” (i.e. $2,000)
from his music. (Pringle Tr.
338:21-339:4)2

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Pursuant to Local Rules and the procedures of this Court, this document responds
23 only to the additional “facts” presented by Pringle, and does not respond to Pringle’s
24 responses to Defendants’ own asserted uncontroverted facts. Defendants reserve all
rights to address Pringle’s responses, and to demonstrate that none of Pringle’s
25 responses establish any dispute of material fact requiring trial in this matter.
26 2
All Declarations cited herein have been filed on the public docket in this matter.
27 All other cited documents, including deposition testimony, have been filed as
28 exhibits to the Declaration of Tal. E. Dickstein (Doc. 161), the Declaration of Tal E.
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113. He has been writing contemporary
popular music since 1986 and since
that time written hundreds of songs
that span a wide variety of musical
genres. Pringle Decl. at ¶ 7

Disputed, but immaterial.
Undisputed that Pringle has
pursued music as a hobby at
various times, but disputed that
such music “span[s] a wide
variety of musical genres.”
114. His training and experience have also Disputed, but immaterial. The
helped him to develop a substantial
only “music training” Pringle
amount of knowledge of and
identifies is studying drums in
experience with computer based
middle school, “piano lessons
musical composition. Pringle Decl. at as a young boy” and music
¶8
classes at a community college
(Pringle Decl. ¶ 7), and Pringle
has only ever earned “beer
money” from his music.
(Pringle Tr. 338:21-339:4).
Further disputed to the extent
Pringle proffers himself as an
expert witness on the subject
of “computer based musical
composition,” for which he is
not qualified. (Pringle Decl.
¶ 8).
Pringle Composes “Take a Dive” And Its Derivative Dance Version
115. In 1998 Pringle wrote and recorded
Undisputed to the extent
“Take a Dive”, a cathartic ode to a
Pringle refers to the original
failed relationship. Pringle Dep at:
version of “Take a Dive.”
101-102.
Disputed, but immaterial, to
the extent Pringle refers to any
other versions of the song.
(Pringle Tr. 100:24-101:8,
201:15-23, 202:13-18)

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Dickstein in Further Support of Defendants’ Motion for Summary Judgment (filed
28 concurrently), and/or the Declaration of Dean A. Dickie (Doc. 197).
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116. He created the song using a stand
alone Ensoniq ASR-10 keyboard.
Pringle Decl. at ¶ 161

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117. He registered a claim for “Take a
Dive” and several other original songs
he wrote and recorded by submitting a
CD entitled Dead Beat Club: 1998 to
the United States Copyright Office.
Copyright Registration attached as
Exhibit M to Dickie Decl.
118. The Register of Copyrights issued a
Certificate of Registration for Dead
Beat Club: 1998 on April 29, 1998,
identified as SRu 387-433 (“Take a
Dive” is referred to on the Certificate
as “Dive”). Copyright Registration
attached as Exhibit M to Dickie Decl.
119. Mr. Pringle made several derivative
variations of “Take a Dive” including
the “Dance Version” that is central to
this case. Pringle Decl. at ¶ 55

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Undisputed to the extent
Pringle refers to the original
version of “Take a Dive.”
Disputed, but immaterial, to
the extent Pringle refers to any
other versions of the song.
Disputed insofar as Pringle
testified he also used computer
equipment to create the song.
(Pringle Tr. 100:24-101:8,
201:15-23, 202:13-18)
Undisputed as to the original
version of “Take a Dive.”
Disputed, but immaterial, as to
any other unidentified
“original songs,” which are not
at issue in this litigation.
Undisputed.

Disputed, but immaterial.
Pringle provides no evidence
that he created any version of
“Take a Dive” other than the
“Dance Version,” and no
version that any of the
Defendants had access to or
copied. (Pringle Dep. Tr.
17:1-19:7, 69:5- 71:6, 72:2073:13, 76:3-6, 100:24-101:8,
124:2-20, 201:15-23, 375:22377:22)

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120. 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.” Pringle Decl. at ¶ 70

Disputed, but immaterial.
Uncontroverted evidence
shows that Defendants, not
Mr. Pringle, composed the
“guitar twang sequence”
(Riesterer Decl. ¶¶ 4-7;
Riesterer Tr. 165:19-166:21,
179:10-181:8). Mr. Pringle
has also testified that he
recorded the “guitar twang”
sequence in 1999 rather than
1997, and that it was “modeled
... after ‘Take a Dive’s’
progression of notes in the
chorus vocals of the original
version, which [he] sang,”
rather than recorded for the
song “Faith.” (Pringle TRO
Decl. ¶ 4; Pringle PI Decl. ¶ 4)
121. He used this instrument to play a total Disputed, but immaterial.
of four notes (D4, C4, B3 AND G3),
Uncontroverted evidence
in the following progression: D4-C4shows that Defendants, not
B3-C4-B3-C4, and in the key of G3
Mr. Pringle, composed the
(the “guitar twang sequence”). Pringle “guitar twang sequence”
Jan 3 2011 Decl. (“Pringle TRO
(Riesterer Decl. ¶¶ 4-7;
Decl.”) at ¶ 4. (Dck. 71a)
Riesterer Tr. 165:19-166:21,
179:10-181:8). Further
disputed on the ground that the
cited evidence demonstrates
that the “guitar twang
sequence” consists of only
three chords.

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122. Otherwise, the derivative Dance
Version was very much the same song.
Declaration of Dr. Alex Norris
(“Norris Decl.”) at ¶ 6

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123. 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.
Norris Decl. at ¶ 6

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Disputed, but immaterial. The
recording of “Take a Dive”
(Dance Version) that Pringle
has presented is similar in
many respects to the original
version of “Take a Dive,” but
removes the vocals, adds the
“guitar twang sequence,” and
also changes the placement of
certain drum patterns. (Ferrara
Decl. ¶¶ 4-5, 89). However,
Pringle now alleges that
Defendants copied a different
version of the song, which he
did not register and does not
have. (Pringle Decl. ¶¶ 125,
142)
Disputed, but immaterial. The
recording of “Take a Dive”
(Dance Version) that Pringle
has presented is similar in
many respects to the original
version of “Take a Dive,” but
removes the vocals, adds the
“guitar twang sequence,” and
also changes the placement of
certain drum patterns. (Ferrara
Decl. ¶¶ 4-5, 89). However,
Pringle now alleges that
Defendants copied a different
version of the song, which he
did not register and does not
have. (Pringle Decl. ¶¶ 125,
142)

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124. Mr. Pringle created “Take a Dive”
Disputed, but immaterial.
Dance Version using an Ensoniq ASR- Uncontroverted evidence
10 keyboard. Pringle Decl. ¶ 161
shows that Defendants, not
Mr. Pringle, composed the
“guitar twang sequence”
(Riesterer Decl. ¶¶ 4-7;
Riesterer Tr. 165:19-166:21,
179:10-181:8). Moreover,
Pringle now alleges that
Defendants copied a different
version of the song from the
one he has presented, which
different version he did not
register and does not have.
(Pringle Decl. ¶¶ 125, 142). In
addition, Pringle admits that he
used pre-existing sample
library disks in creating “Take
a Dive” (Dance Version).
(Pl.’s Opp. 14; Pringle Tr.
230:7-231:2, 235:20-236:20)
125. The ASR-10 is a complete digital
Undisputed, but immaterial.
music production studio that allows a
user to upload instruments, sounds,
and other audio samples from external
third-party sources into the keyboard.
Pringle Decl. ¶ 161
126. These samples are then sequenced and Undisputed, but immaterial.
arranged by the user to create and
record songs. Pringle Decl. ¶ 161
127. A song, its component parts, and the
Undisputed, but immaterial.
sequencing and arrangement
Mr. Pringle testified that
information can then be saved on an
various instrument files and
external disc drive as a “creation file.” other sound processing effects
[BPX] Pringle Decl. ¶ 161
must be loaded “properly” in
order to play back a mixed
sound recording from his
alleged “creation file.”
(Pringle Tr. 254:21-256:18)

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128. In 1999, after Mr. Pringle created and
recorded “Take a Dive” Dance
Version, he backed up his creation file
onto an NRG image file he titled
“DISK05.NRG”2. Pringle Decl. at ¶
161; See also, Declaration of David
Gallant (“Gallant Decl.”) at ¶ 9.

Disputed, but immaterial.
Uncontroverted evidence
shows that Defendants, not
Mr. Pringle, composed the
“guitar twang sequence”
(Riesterer Decl. ¶¶ 4-7;
Riesterer Tr. 165:19-166:21,
179:10-181:8). Moreover,
Pringle now alleges that
Defendants copied a different
version of the song from the
one he has presented, which
different version he did not
register and does not have.
(Pringle Decl. ¶¶ 125, 142).
Pringle’s NRG file does not
contain a mix of “Take a
Dive” (Dance Version).
(Pringle Tr. 254:21-256:18;
Geluso Decl. ¶ 27)
“Take a Dive” Dance Version Is Sent To Defendants
129. Mr. Pringle endeavored to promote his Disputed but immaterial, on
music so that he could either sign on
the grounds that Pringle has
with a major record label or sell his
failed to provide any evidence
music to publishing companies and
that “Take a Dive” (Dance
other artists. In 1999 he began to
Version) was submitted to
regularly submit demo cd’s, including anyone in the music industry,
the “Take a Dive” Dance Version, to
via demo CD or otherwise, at
record labels, artists, publishing
any time. (Pringle Dep. Tr.
companies and many others. Pringle 17:1-19:7, 69:5-71:6, 72:20TRO Decl. at ¶ 7. (Dck. 71a)
73:13, 76:3-6, 124:2-20,
375:22-377:22)

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130. 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. Pringle TRO Decl. at ¶ 7.
(Dck. 71a).

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131. He also sent a copy to Gum
Productions, a music production
company co-owned by Defendant
David Guetta, Joachim Garraud, and
Jean Charles Carre. Pringle Decl. at
¶ 5; Guetta Dep. at pp 20-22.

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Disputed but immaterial, on
the grounds that Pringle has
failed to provide any evidence
that “Take a Dive” (Dance
Version) was submitted to
anyone in the music industry,
via demo CD or otherwise, at
any time. (Pringle Dep. Tr.
17:1-19:7, 69:5-71:6, 72:2073:13, 76:3-6, 124:2-20,
375:22-377:22). Moreover,
Pringle has admitted that
Defendant Adams did not
change any of the music he
received from Mr. Guetta; thus
any alleged access through
UMG, Interscope, and/or EMI
is immaterial. (Pl.’s Resp. to
SMF ¶ 21)
Disputed, but immaterial. Mr.
Guetta, Mr. Garraud, and Mr.
Carre never received any such
alleged correspondence
(Garraud Decl. at ¶¶ 2-3;
Riesterer Decl. at ¶ 3-4, 8-9;
Guetta Decl. at ¶¶ 2-7; Carre
Decl. ¶¶ 5-8), and Mr. Pringle
has no evidence that any such
correspondence existed.
(Pringle Tr. 90:5-23, 93:994:9, 113:1-11). Moreover,
Mr. Guetta testified that he has
never corresponded with
Pringle in any form at any
time. (Guetta Tr. 20:4-22:7,
68:16-69:9, 165:24-168:14;
Guetta Decl. ¶¶ 5-6)

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132. 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 Decl. ¶ 7, 9.

Disputed, but immaterial.
Jeffrey Pringle’s Declaration
(Doc. 190) fails to show that
Defendants ever had access to
“Take a Dive,” “Take a Dive”
(Dance Version), or any of
Pringle’s music. (Pringle Tr.
90:5-23, 93:9-94:9, 113:1-11,
Garraud Decl. at ¶¶ 2-3;
Riesterer Decl. at ¶ 3-4, 8-9;
Guetta Decl. at ¶¶ 2-7; Carre
Decl. ¶¶ 5-8)
133. Jeffrey Pringle brought Mr. Pringle to Disputed, but immaterial.
several night clubs in France,
Jeffrey Pringle’s Declaration
including “Rex Club”, “Le Queen”
(Doc. 190) fails to show that
and “Le Palace”, where he distributed Defendants ever had access to
his demo cd to the local disc jockeys.
“Take a Dive,” “Take a Dive”
Jeffrey Pringle Decl. at ¶¶ 9.
(Dance Version), or any of
Pringle’s music. (Pringle Tr.
90:5-23, 93:9-94:9, 113:1-11,
Garraud Decl. at ¶¶ 2-3;
Riesterer Decl. at ¶ 3-4, 8-9;
Guetta Decl. at ¶¶ 2-7; Carre
Decl. ¶¶ 5-8). Pringle
provides no evidence that any
of the Defendants worked at
any of these night clubs.
134. Jeffrey Pringle also hosted radio and
Disputed, but immaterial.
internet programs that were broadcast Jeffrey Pringle’s Declaration
in the Netherlands, France and
(Doc. 190) fails to show that
Canada. He played Mr. Pringle’s
Defendants ever had access to
music, including “Take a Dive” Dance “Take a Dive,” “Take a Dive”
Version on these programs. Jeffrey
(Dance Version), or any of
Pringle Decl. at ¶ 6, 7
Pringle’s music. (Pringle Tr.
90:5-23, 93:9-94:9, 113:1-11,
Garraud Decl. at ¶¶ 2-3;
Riesterer Decl. at ¶ 3-4, 8-9;
Guetta Decl. at ¶¶ 2-7; Carre
Decl. ¶¶ 5-8). The cited
evidence does not support the
statement.
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135. Michael Scott Brown was also a
professional and part time disc jockey
in Western Europe. Jeffrey Pringle
Decl. at ¶ 6

Disputed, but immaterial.
Jeffrey Pringle’s Declaration
(Doc. 190) fails show that
Defendants ever had access to
“Take a Dive,” “Take a Dive”
(Dance Version), or any of
Pringle’s music. (Pringle Tr.
90:5-23, 93:9-94:9, 113:1-11,
Garraud Decl. at ¶¶ 2-3;
Riesterer Decl. at ¶ 3-4, 8-9;
Guetta Decl. at ¶¶ 2-7; Carre
Decl. ¶¶ 5-8)
136. He and Jeffrey Pringle served in the
Disputed, but immaterial.
U.S. military together. Mr. Brown
Jeffrey Pringle’s Declaration
also played Mr. Pringle’s music,
(Doc. 190) fails to show that
including cuts from the copyrighted
Defendants ever had access to
Dead Beat Club album, regularly on
“Take a Dive,” “Take a Dive”
the Armed Forces Network radio and
(Dance Version), or any of
Dutch and German radio stations.
Pringle’s music. (Pringle Tr.
These stations broadcasted on the
90:5-23, 93:9-94:9, 113:1-11,
internet and all over Western Europe, Garraud Decl. at ¶¶ 2-3;
including in France. Jeffrey Pringle
Riesterer Decl. at ¶ 3-4, 8-9;
Decl. at ¶ 6
Guetta Decl. at ¶¶ 2-7; Carre
Decl. ¶¶ 5-8)
137. In addition to these efforts in Europe, Disputed, but immaterial.
Mr. Pringle also made “Take a Dive”
Pringle has failed to show that
Dance Version available for sale on
Defendants ever had access to
several websites, including
“Take a Dive,” “Take a Dive”
www.mp3.com, www.gemm.com.
(Dance Version), or any of
Pringle Dep. at 132, 133
Pringle’s music. (Pringle Tr.
90:5-23, 93:9-94:9, 113:1-11,
Garraud Decl. at ¶¶ 2-3;
Riesterer Decl. at ¶ 3-4, 8-9;
Guetta Decl. at ¶¶ 2-7; Carre
Decl. ¶¶ 5-8)
Black Eyed Peas Release “I Gotta Feeling”

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138. In 2009, the Black Eyed Peas released
“I Gotta Feeling” as the second single
off their album The E.N.D. “I Gotta
Feeling” achieved tremendous success
and worldwide acclaim. Pringle TRO
Decl. ¶ 10.

Undisputed that in 2009, the
Black Eyed Peas released “I
Gotta Feeling” as the second
single from their album The
E.N.D. Disputed to the extent
that Pringle relies on the
ambiguous and argumentative
terms “tremendous success”
and “worldwide acclaim”
without defining them.
139. When Mr. Pringle first heard it
Disputed, but immaterial.
however, he knew that “there was a
Uncontroverted evidence
problem,” he knew that “there was
shows that Defendants, not
intentional, willful infringement” of
Mr. Pringle, composed the
“Take a Dive” Dance Version. Pringle “guitar twang sequence,” and
Dep. at 63:4-63:19.
that nothing in “I Gotta
Feeling” infringes any of
Pringle’s works. (Riesterer
Decl. ¶¶ 4-7; Riesterer Tr.
165:19-166:21, 179:10-181:8)
140. There were numerous and undeniable Disputed, but immaterial.
similarities between the songs. Norris There are no meaningful
Decl. at ¶ , [sic] Declaration of Alex
similarities of original
Stewart (“Stewart Decl.”) at ¶ 3, 5
expression common to “Take a
Dive” and “I Gotta Feeling,”
and, setting aside the “guitar
twang sequence,” there are no
such similarities between
“Take a Dive” (Dance
Version) and “I Gotta
Feeling.” (Ferrara Decl. ¶ 4-5,
65, 91-97; Ferrara Rebuttal
Report; Norris Tr. 80:22-81:3,
249:24-250:16; Stewart Tr.
281:10-284:19)
Alleged Creation of “I Gotta Feeling”

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141. David Guetta and Joachim Garraud,
the two recipients of Mr. Pringle’s
submission to Gum Production,
collaborated with Defendant Riesterer
in the selection of the instrumental
portion of “I Gotta Feeling.” Riesterer
Dep. 125:11-129:21.

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142. Joachim Garraud first met Defendant
Riesterer in 1989. Deposition of
Frederick Riesterer at p. 78 (“Riesterer
Dep.”) attached as Exhibit C to Dickie
Decl.
143. They worked together at a French
radio station called “Maximum” where
Garraud was a producer and Riesterer
was a disc jockey. Riesterer Dep. at
pp. 75-76.
144. Garraud and Riesterer shared an
interest in music, became close
friends, and then “naturally” began to
make music together in the early
1990’s. Riesterer Dep. at p. 79.

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Disputed, but immaterial.
Pringle has no evidence that he
ever submitted anything to
Gum Productions (Garraud
Decl. at ¶¶ 2-3; Riesterer Decl.
at ¶ 3-4, 8-9; Guetta Decl. at
¶¶ 2-7; Carre Decl. ¶¶ 5-8;
Pringle Tr. 90:5-23, 93:9-94:9,
113:1-11). Moreover, Mr.
Riesterer and Mr. Guetta
composed the instrumental
portion of “I Gotta Feeling,”
and Mr. Garraud was not
involved. (Riesterer Decl.
¶¶ 4-7; Riesterer Tr. 165:19166:21, 179:10-181:8). Mr.
Riesterer composed and
created the “guitar twang
sequence.” (Riesterer Decl.
¶¶ 4-7)
Undisputed.

Undisputed.

Undisputed that Mr. Garraud
and Mr. Riesterer are
musicians and that Mr.
Riesterer has, at times in the
past, composed music with
Mr. Garraud. The remainder
of the statement is disputed,
though immaterial. (Riesterer
Tr. 78:23-82:6)

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145. They would often exchange ideas and
concepts, exchange demo tapes, and
“put them together” in a sound
sequencer. Riesterer Dep. at p. 88.

4
5
6
7
8
9
10

146. When Riesterer left Maximum in
1993, he remained close with Garraud
and they continued to “talk all the
time” about music. Riesterer Dep. at
pp. 80, 81, 126

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17

147. In 2001, Garraud, David Guetta and
Jean Charles Carre founded Gum
Productions so that they could “make
music.” Guetta Dep. at p. 21.

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19

Undisputed that Mr. Garraud
and Mr. Riesterer are
musicians and that Mr.
Riesterer has, at times in the
past, composed music with
Mr. Garraud. The remainder
of the statement is disputed,
though immaterial. (Riesterer
Tr. 78:23-82:6, 85:2-89-15)
Undisputed that Mr. Garraud
and Mr. Riesterer are
musicians and that Mr.
Riesterer has, at times in the
past, composed music with
Mr. Garraud. Disputed, but
immaterial, that Mr. Riesterer
“remained close” with Garraud
and that the two are in contact
regarding music. (Riesterer
Tr. 122:21-123:30)
Undisputed that the purpose of
Gum Productions is to
facilitate the production of
music by David Guetta and
others, and that it was founded
by Garraud, Guetta, and Carre.
Carre Decl. ¶ 5.

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148. 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. Guetta
Dep. at p. 66-69

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22
23

Disputed, but immaterial.
Gum Productions has never
had a policy or practice of
soliciting music from unknown
artists, and during the entire
2001 to 2009 time period,
Gum Productions received, at
most, five promotional tracks
of unsolicited music, none of
which included “Take a Dive”
(Dance Version) or was from
Bryan Pringle. (Carre Decl.
¶ 8). In the cited portions of
his testimony, Pringle is not
even discussed, and Mr.
Guetta merely states that, to
his knowledge, it is “possible”
that Gum Productions and/or
Mr. Garraud sought out
unidentified artists, and that
artists may have submitted
samples of their work to Gum
Productions. (Guetta Tr.
66:20-70:18). Mr. Guetta
testified that he did not believe
that Mr. Garraud received such
samples (Guetta Tr. 70:12-24),
and that he has never
corresponded with Pringle in
any form at any time. (Guetta
Tr. 20:4-22:7, 68:16-69:9,
165:24-168:14; Guetta Decl.
¶ 3-5)

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149. After receiving this cd, Gum
Productions sent a letter to Pringle in
which Garraud and Guetta expressed
their approval for Pringle’s music.
Pringle Decl. at ¶ 5

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150. 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) Pringle Decl. at ¶ 5

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27

Disputed, but immaterial.
There is no evidence that Gum
Productions ever received any
CD from Bryan Pringle
containing “Take a Dive”
(Dance Version) or any other
material. (Carre Decl. ¶ 8).
Gum Productions, Mr. Guetta,
and Mr. Garraud have never
engaged in any
correspondence with Bryan
Pringle. (Carre Decl. ¶ 7;
Guetta Decl. ¶ 5; Garraud
Decl. ¶ 3; Guetta Tr. 20:422:7, 68:16-69:9, 165:24168:14). Furthermore, Pringle
has no evidence that such a
letter ever existed. (Pringle Tr.
90:5-23, 93:9-94:9, 113:1-11)
Disputed, but immaterial.
There is no evidence that Gum
Productions ever received any
CD from Bryan Pringle
containing “Take a Dive”
(Dance Version) or any other
material. (Carre Decl. ¶ 8).
Gum Productions, Mr. Guetta,
and Mr. Garraud have never
engaged in any
correspondence with Bryan
Pringle. (Carre Decl. ¶ 7;
Guetta Decl. ¶ 5; Garraud
Decl. ¶ 3; Guetta Tr. 20:422:7, 68:16-69:9, 165:24168:14). Furthermore, Pringle
has no evidence that such
correspondence ever existed.
(Pringle Tr. 90:5-23, 93:994:9, 113:1-11)

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151. 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. Riesterer
Dep. at 125
152. The three of them worked together
collaboratively on a song called “Love
is Gone” for David Guetta’s upcoming
album. Riesterer Dep. at 127-128

Undisputed.

Disputed, but immaterial,
insofar as Mr. Riesterer
created the guitar part of
“Love is Gone” without any
input from Guetta or Garraud.
(Riesterer TRO Decl. ¶ 4;
Riesterer Decl. ¶ 6)
153. They constantly exchanged “sounds”
Undisputed that, in the course
and “advice” in order to have the “best of creating “Love is Gone,”
possible” song. Riesterer Dep. at 129 Mr. Guetta, Mr. Riesterer, and
Mr. Garraud exchanged
musical sounds and attempted
to create the best possible
work they could. Disputed
that they did so “constantly.”
(Riesterer Tr. 122:11-129:21).
Disputed, but immaterial,
insofar as Mr. Riesterer
created the guitar part of
“Love is Gone” without any
input from Guetta or Garraud.
(Riesterer TRO Decl. ¶ 4;
Riesterer Decl. ¶ 6)

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154. 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.”
Declaration of Frederic Riesterer
(“Riesterer Nov. 23 Decl.”) attached to
Opposition to Motion for Preliminary
Injunction (Dckt. No. 22-3) at ¶¶ 4-6.

Disputed, but immaterial. Mr.
Riesterer has clarified that,
while the “guitar twang
sequence” is based on “Love is
Gone,” the composition’s
guitar preset and sound effects
are different (Riesterer Tr.
191:23-192:23, 202:6-14;
Riesterer Decl. ¶ 6), and
further testified that Mr.
Garraud had no role in the
creation of the “guitar twang
sequence.” (Riesterer Tr.
194:23-25).
155. In “his” November 23, 2010
Disputed, but immaterial.
declaration, Riesterer claimed that the Undisputed that, in his TRO
entire “guitar twang sequence” was
Declaration—which was
recorded by Univers Sons and
obtained on an emergency
available in its library under the name basis—Mr. Riesterer stated
“Strat with SM57 Crunchy”. In his
that he used a preset titled
deposition however, Riesterer
“Strat with SM57 Crunchy” to
admitted that he never reviewed this
create the “guitar twang
declaration, did not understand it as
sequence.” In his MSJ
written in English and that that
Declaration, Mr. Riesterer
statement was patently false. Riesterer clarified that he in fact used a
Nov. 23 Decl. at ¶ 6; Riesterer Dep. at very similar preset titled “Strat
164-167; 175:11-176:7
with SM57 Stereo Spread.”
Riesterer Decl. ¶ 7 & n.2.
Moreover, Mr. Riesterer
testified that his “managers
would translate for [him]
(Riesterer Tr. at 172:1), and
that he made the statements
that ultimately went into his
emergency TRO Declaration
in French, and for translation
by his trusted associates (id. at
172:3-5, 177:5-13).

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156. Riesterer and Guetta continued to
work together after the release of
“Love is Gone.” Riesterer Dep.
190:18-191:4.
157. In October 2008, they began working
in Riesterer’s studio on an
“instrumental” song called “David Pop
GTR.” Riesterer Dep. at 194; Guetta
Dep. at p. 143-144
158. 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.
Riesterer Dep. at 194:

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159. 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.” Deposition of William
Adams (“Adams Dep”) at 237,
attached to Dickie Decl. as Exhibit _.
[sic]

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160. 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. Guetta Dep. at p. 197

Undisputed.

Undisputed.

Undisputed that Mr. Riesterer
worked hard to create the
“guitar twang sequence.”
Disputed, but immaterial, to
the extent Pringle claims that
the “guitar twang sequence” in
“I Gotta Feeling” actually
appears in “Love is Gone.”
Riesterer has clarified that,
while the “guitar twang
sequence” is based on “Love is
Gone,” the composition’s
guitar preset and sound effects
are different. (Riesterer Tr.
191:23-192:23, 202:6-14;
Riesterer Decl. ¶ 6)
Undisputed that Mr. Adams
contacted Mr. Guetta in 2009
to discuss Mr. Guetta
producing a song for a Black
Eyed Peas album. Disputed
that this was “[a]round the
same time” as Mr. Guetta and
Mr. Riesterer were working on
“David Pop GTR” and/or the
“guitar twang sequence.”
Undisputed.

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161. Adams specifically asked Guetta to
“produce a song for the Black Eyed
Peas that [was] similar to [Love is
Gone].” Adams Dep. at 237

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8
9

162. Adams was particularly attracted to
the “guitar twang” used in Love is
Gone. Adams Dep. at 239.

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163. Guetta then sent Adams a sound file
containing “David Pop GTR.” Adams
Dep. at 77-78.
164. Guetta did not check with Riesterer
before sending the file to Adams.
Guetta Dep. at p. 150.

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Undisputed that Mr. Adams
stated, based on his
recollection of a telephone
conversion with Mr. Guetta,
that he told Mr. Guetta that “I
love your song ‘Now That The
Love Is Gone.’ Can you
produce a song for The Black
Eyed Peas that’s similar to
that?” (Adams Tr. 237:14-16).
Undisputed that Mr. Adams
requested a song “similar” to
“Love is Gone,” and that he
mentioned a “guitar twang” in
“Now That The Love Is Gone”
at his deposition. (Adams Tr.
237:14-16, 239:1-2).
Disputed, but immaterial, that
Mr. Adams testified that he
“was particularly attracted to
the ‘guitar twang’ used in
Love is Gone.” Id.
Undisputed that Mr. Guetta
sent Mr. Adams a sound file
containing “David Pop GTR.”
Undisputed that Mr. Guetta did
not ask for, or need, express
authorization from Mr.
Riesterer before sending
“David Pop GTR” as a demo
file to Mr. Adams in 2009.
(Guetta Tr. 150:10-16)

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165. In fact, Guetta and Adams exchanged
numerous files under a shroud of
secrecy, with 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.” Guetta Dep. at p. 205;
Exhibit L to Dickie Decl.

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18

Undisputed that Mr. Guetta
and Mr. Adams exchanged
music files, and that, for
artistic, commercial and
competitive reasons, Mr.
Guetta and Mr. Adams did not
publicize the tracks they were
exchanging and took
appropriate steps to maintain
the confidentiality of their
proprietary work. (Guetta Tr.
205:25-206:5 (“So it has often
happened that music has been
leaked on the Internet before
the official release of the
album. So [Mr. Adams is]
obviously asking me to be
protective so that a third party
does not put this on the
Internet.”); Riesterer Tr.
198:6-18) (generally same)).
Disputed, but immaterial, that
this practice involved a
“shroud of secrecy” or was for
any improper purpose. (Guetta
Tr. 205:13-208:1)

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166. Neither Guetta nor Adams concerned
themselves with determining whether
the tracks being exchanged had been
copied or sampled from copyrighted
work. Guetta Dep. at p. 110, Adams
Dep. at 111-112

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7
8
9
10
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12
13
14
15

Disputed, but immaterial. In
the cited testimony, Mr. Guetta
was asked only about “[t]he
lyrics and the vocal melody”
of unidentified tracks on
unnamed albums, and simply
stated that he did not recall
whether he had specifically
asked any of the artists he had
worked with if their lyrics
were “copied.” (Guetta Tr.
110:5-111:7). Moreover, the
statement is immaterial
because Mr. Riesterer and Mr.
Guetta independently created
“David Pop GTR” and the
“guitar twang sequence” as
original musical works and did
not copy or sample from any
other work. (Riesterer Decl.
¶¶ 4-7; Riesterer Tr. 165:19166:21, 179:10-181:8)

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167. When Adams heard “David Pop
GTR”, he said “I love that song I want
it on my album.” He thought that the
song was “amazing” because of the
guitar “chord progression.” Riesterer
Dep. at 195; Adams Dep. at 79

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168. And so, after he contributed his vocals
and lyrics, “David Pop GTR” became
“I Gotta Feeling.” Adams Dep. at 79

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18

Undisputed that Mr. Adams
stated that he found the “chord
progression”—not necessarily
the “guitar ‘chord
progression’”—in “David Pop
GTR” to be “amazing” and
that Mr. Adams wanted to, and
did, use the music in “David
Pop GTR” on a Black Eyed
Peas album. (Adams Tr.
79:18-80:7). Disputed, but
immaterial, that “David Pop
GTR” is a completed “song.”
Also disputed, but immaterial,
that Mr. Adams spoke the
specific words “I love that
song I want it on my album”—
Pringle cites to Mr. Riesterer’s
testimony rather than Mr.
Adams’ testimony.
Undisputed that portions of the
music in “David Pop GTR”
became the musical bed for “I
Gotta Feeling,” and that Mr.
Adams contributed his vocals
and lyrics.

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None of The Defendants Can Explain The Origin Of The “Guitar Twang
Sequence”
169. Adams admitted that he contributed
Undisputed that Mr. Adams
only the lyrics for “I Gotta Feeling”
composed the lyrics to “I Gotta
and that he relied on Guetta for “the
Feeling,” and that Mr. Guetta
music.” He could not account for the is one of the creators of the
origin of the “guitar twang” sequence music for “I Gotta Feeling.”
and he was careful to specify that
Disputed, but immaterial, that
Guetta merely “represented” that he
Mr. Adams “admitted” that
composed it himself. Adams Dep. at
this is the case, and that Mr.
124-125.
Adams “could not account for
the origin of the ‘guitar twang’
sequence,” as Mr. Guetta sent
him the “guitar twang”
sequence, and Mr. Guetta and
Mr. Riesterer created it.
(Riesterer Decl. ¶¶ 4-7;
Riesterer Tr. 165:19-166:21,
179:10-181:8). There is no
evidence that Mr. Adams was
“careful to specify” that Guetta
“merely” represented that he
composed it himself.
170. Guetta claimed that the guitar
Disputed, but immaterial.
instrumentation “came from
Riesterer has explained the
[Riesterer]” and that Riesterer never
software, presets, and effects
told him where he got it from. Dickie he used to create the “guitar
Decl. Ex. [sic] Guetta Dep. at p.
twang sequence.” (Riesterer
115:2-116:8.
Decl. ¶ 5-7). Moreover, in the
cited testimony, Mr. Guetta
stated that he did not need to
ask Mr. Riesterer about the
origins of the ideas for “Love
is Gone”—not “I Gotta
Feeling”—“because it was
obvious” that Mr. Riesterer
created it. (Guetta Tr. 115:2116:8)

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171. 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 UniversSons music library. Riesterer TRO
Decl. at ¶¶ 5-6. (Doc. 22-3)

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172. 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.”
Riesterer Nov. 9, 2011 Decl. at ¶ 6.
(Dck. 166)
173. 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.
Riesterer Dep. at 130:9-16.

Disputed, but immaterial.
Riesterer has explained the
software, presets, and effects
he used to create the “guitar
twang sequence,” and has fully
explained any alleged
inconsistency with his
emergency 2010 TRO
declaration. (Riesterer Decl.
¶ 5-7)
Disputed, but immaterial.
Riesterer has explained the
software, presets, and effects
he used to create the “guitar
twang sequence.” (Riesterer
Decl. ¶ 5-7)

Disputed, but immaterial.
Riesterer has explained his
creation of “Love is Gone” in
detail, including the equipment
and software he used, and his
process of composition.
(Riesterer Tr. 127:13-134:17)
174. He also had no recollection or
Disputed, but immaterial.
evidence of the “preset” and
Riesterer has explained his
“processing effects” he allegedly used. creation of “Love is Gone” in
Riesterer Dep. at 130:9; Declaration of detail, including the equipment
Paul Geluso at ¶ 18.
and software he used, and his
process of composition.
(Riesterer Tr. 127:13-134:17;
Riesterer TRO Decl. ¶¶ 4-5)

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175. 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.” Riesterer Dep. at 192:24193:6.

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10
11

176. Geluso claims that Riesterer files 1-9
and 30 constitute the original David
Pop Guitar creation files. Geluso at
¶ 6.

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13

Disputed, but immaterial. Mr.
Riesterer created backup files
and all information necessary
to confirm his creation of the
“guitar twang sequence”
(which information has been
produced to Pringle in this
case). (Riesterer Tr. 193:12194:10; Geluso Decl. [Doc.
162] ¶¶ 15-21, 25-28;
Riesterer Reply Decl. ¶ 5)
Disputed, but immaterial. Mr.
Geluso was provided with, and
analyzed, true and correct
copies of Mr. Riesterer’s
creation files. (Geluso Decl.
[Doc. 162] ¶¶ 15-21, 25-28;
Riesterer Reply Decl. ¶ 5)

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177. Furthermore, the creation dates and
other metadata of Riesterer’s alleged
“creation files” 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.
Pringle Decl. at ¶¶ 234-244.
Frederiksen-Cross Decl. ¶¶ 46-53.
[emphasis added]

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Disputed, but immaterial.
First, Mr. Riesterer created
backup files and all
information necessary to
confirm his creation of the
“guitar twang sequence”
(which information has been
produced to Pringle in this
case). (Riesterer Tr. 193:12194:10; Geluso Decl. [Doc.
162] ¶¶ 15-21, 25-28;
Riesterer Reply Decl. ¶ 5).
Second, Mr. Riesterer’s
creation files do pre-date “I
Gotta Feeling”; the files to
which Pringle refers are not
related to the “guitar twang
sequence, and their “creation”
dates simply reflect Mr.
Riesterer opening and using
them in connection with newer
music projects. (Geluso
Rebuttal Decl. ¶ 51; Riesterer
Reply Decl. ¶¶ 6, 8). Third,
Mr. Riesterer did not use this
device to create “David Pop
GTR”; the data to which
Pringle refers merely reflects
that, when Mr. Riesterer
opened the file to confirm it
was the correct file to produce
in litigation, the device was
connected to his computer at
the time. (Geluso Rebuttal
Decl. ¶ 52; Riesterer Reply
Decl. ¶ 6). Fourth, the
reference to “Litige” in this
file has nothing to do with
“litigation”; rather, it reflects
the French term for
“disagreement,” and refers to a
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musical “disagreement”
between Mr. Riesterer and Mr.
Guetta. The “OK” in the file
name simply reflects that the
disagreement was resolved.
(Riesterer Reply Decl. ¶ 7).
Fifth, the referenced creation
file is not the “guitar twang
sequence,” and is, accordingly,
irrelevant. (Riesterer Reply
Decl. ¶ 9; see also “First,”
above)

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Defendants Concoct Another Explanation
178. More than a year into the litigation,
Disputed, but immaterial. This
and unable to justify the striking
statement is irrelevant because
similarity between “Take a Dive”
Defendants need not “prove”
Dance Version, which was created in
that Pringle copied “I Gotta
1999, and “I Gotta Feeling”, which
Feeling” to prevail on the
was created in 2009, Defendants
instant motion—such copying
decided to make the reckless and
would constitute copyright
wholly unsupported allegation that
infringement by Pringle, which
Plaintiff first heard the “guitar twang
Defendants have not elected to
sequence” some time after “I Gotta
assert at this time. Regardless,
Feeling” was released in 2009.
Pringle has not established that
Exhibit J to Dickie Decl.
he actually created “Take a
Dive” (Dance Version) in
1999, and the recording he has
submitted to the Copyright
Office and the Court was in
fact created in 2010. (Pringle
Dep. Tr. 17:1-19:7, 69:5-71:6,
72:20-73:13, 76:3-6, 100:24101:8, 124:2-20, 201:15-23,
375:22-377:22). Moreover,
the physical evidence
precludes sampling by
Defendants, but suggests
sampling of “I Gotta Feeling”
by Mr. Pringle, and Mr.
Pringle has destroyed evidence
that would confirm this.
(Geluso TRO Decl. ¶ 7;
Geluso MSJ Decl. ¶¶ 10-13;
Laykin MSJ Decl. ¶¶ 30-36)

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179. 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. Exhibit J to Dickie
Decl.

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Disputed, but immaterial. This
statement is irrelevant because
Defendants need not “prove”
that Pringle copied “I Gotta
Feeling” to prevail on the
instant motion—such copying
would constitute copyright
infringement by Pringle, which
Defendants have not elected to
assert at this time. Moreover,
Pringle provides no
meaningful evidence that he
actually created “Take a Dive”
(Dance Version) in 1999, and
the recording he has submitted
to the Copyright Office and the
Court was created in 2010.
(Pringle Dep. Tr. 17:1-19:7,
69:5-71:6, 72:20-73:13, 76:36, 100:24-101:8, 124:2-20,
201:15-23, 375:22-377:22).
However, the physical
evidence precludes sampling
by Defendants, but suggests
sampling of “I Gotta Feeling”
by Mr. Pringle, and Mr.
Pringle has destroyed evidence
that would confirm this.
(Geluso TRO Decl. ¶ 7;
Geluso MSJ Decl. ¶¶ 10-13;
Laykin MSJ Decl. ¶¶ 30-36)

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180. Defendants have not presented a single
piece of evidence that proves or even
suggests that Pringle engaged in such
conduct. 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

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Disputed, but immaterial. This
statement is irrelevant because
Defendants need not “prove”
that Pringle copied “I Gotta
Feeling” to prevail on the
instant motion—such copying
would constitute copyright
infringement by Pringle, which
Defendants have not elected to
assert at this time. Moreover,
Pringle provides no
meaningful evidence that he
actually created “Take a Dive”
(Dance Version) in 1999, and
the recording he has submitted
to the Copyright Office and the
Court was created in 2010.
(Pringle Dep. Tr. 17:1-19:7,
69:5-71:6, 72:20-73:13, 76:36, 100:24-101:8, 124:2-20,
201:15-23, 375:22-377:22).
However, the physical
evidence precludes sampling
by Defendants, but suggests
sampling of “I Gotta Feeling”
by Mr. Pringle, and Mr.
Pringle has destroyed evidence
that would confirm this.
(Geluso TRO Decl. ¶ 7;
Geluso MSJ Decl. ¶¶ 10-13;
Laykin MSJ Decl. ¶¶ 30-36)

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181. Plaintiff has produced evidence that
“Take a Dive” (Dance Version) is a
derivative of "Take a Dive.” Norris
Decl. ¶ 6.

Disputed, but immaterial.
Pringle has not established that
he actually created “Take a
Dive” (Dance Version) in
1999, and the recording he has
submitted to the Copyright
Office and the Court was
created in 2010—after the
release of “I Gotta Feeling.”
(Pringle Dep. Tr. 17:1-19:7,
69:5- 71:6, 72:20-73:13, 76:36, 100:24-101:8, 124:2-20,
201:15-23, 375:22-377:22)
182. Plaintiff has produced evidence that
Disputed, but immaterial. The
establishes conclusively that August
creation date of Pringle’s
22, 1999 was the last time that the
alleged “creation file” for
creation file for “Take a Dive” Dance “Take a Dive” (Dance
Version, containing the song, its
Version) can be easily
component parts and its sequencing
backdated, and without his
and arrangement information, was
computers and hard drives—
modified. [Gallant, Frederickson]
which Pringle has destroyed—
Gallant Decl. at ¶ 9; Frederiksen-Cross it is impossible to verify the
Decl. at ¶ 14-44
true creation date(s). (Laykin
MSJ Decl. ¶ 21-29)
183. Defendants theory is based on the
Disputed, but immaterial. The
assumption that Mr. Pringle wanted to statement is irrelevant because
create a backdated NRG file[.]
Defendants need not “prove”
Frederiksen-Cross Decl. at ¶ 21
that Pringle copied “I Gotta
Feeling” to prevail on the
instant motion—such copying
would constitute copyright
infringement by Pringle, which
Defendants have not elected to
assert at this time.

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184. 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[.]
Frederiksen-Cross Decl. at ¶ 21

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185. 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[.]
Frederiksen-Cross Decl. at ¶ 21

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Disputed, but immaterial. This
statement is irrelevant because
Defendants need not “prove”
that Pringle copied “I Gotta
Feeling” to prevail on the
instant motion—such copying
would constitute copyright
infringement by Pringle, which
Defendants have not elected to
assert at this time. Moreover,
Pringle admitted purchasing
CDs in bulk, and his expert
was easily able to determine
the manufacture date of the
CD. (Pringle Tr. 76:3-7,
276:9-10; Gallant Decl. ¶ 6).
None of these assumptions are
impossible or even
remarkable.
Disputed, but immaterial. This
statement is irrelevant because
Defendants need not “prove”
that Pringle copied “I Gotta
Feeling” to prevail on the
instant motion—such copying
would constitute copyright
infringement by Pringle, which
Defendants have not elected to
assert at this time. None of
these assumptions are
impossible or even
remarkable.

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186. 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[.] Frederiksen-Cross Decl. at
¶ 21
187. 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[.] Frederiksen-Cross Decl.
at ¶ 21

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188. 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[.]
Frederiksen-Cross Decl. at ¶ 21

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Disputed, but immaterial. This
statement is irrelevant because
Defendants need not “prove”
that Pringle copied “I Gotta
Feeling” to prevail on the
instant motion—such copying
would constitute copyright
infringement by Pringle, which
Defendants have not elected to
assert at this time. None of
these assumptions are
impossible or even
remarkable.
Disputed, but immaterial. This
statement is irrelevant because
Defendants need not “prove”
that Pringle copied “I Gotta
Feeling” to prevail on the
instant motion—such copying
would constitute copyright
infringement by Pringle, which
Defendants have not elected to
assert at this time. None of
these assumptions are
impossible or even
remarkable.
Disputed, but immaterial. This
statement is irrelevant because
Defendants need not “prove”
that Pringle copied “I Gotta
Feeling” to prevail on the
instant motion—such copying
would constitute copyright
infringement by Pringle, which
Defendants have not elected to
assert at this time. None of
these assumptions are
impossible or even
remarkable.

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189. 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.” Pringle Decl.
¶ 133

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Disputed, but immaterial.
Pringle provides no
meaningful evidence that he
actually created “Take a Dive”
(Dance Version) in 1999, and
the recording he has submitted
to the Copyright Office and the
Court was created in 2010—
after the release of “I Gotta
Feeling.” (Pringle Dep. Tr.
17:1-19:7, 69:5- 71:6, 72:2073:13, 76:3-6, 100:24-101:8,
124:2-20, 201:15-23, 375:22377:22). Moreover,
uncontroverted evidence
shows that Defendants, not
Mr. Pringle, composed the
“guitar twang sequence”
(Riesterer Decl. ¶¶ 4-7;
Riesterer Tr. 165:19-166:21,
179:10-181:8). Mr. Pringle
has also testified that he
recorded the “guitar twang”
sequence in 1999 rather than
1997, and that it was “modeled
... after ‘Take a Dive’s’
progression of notes in the
chorus vocals of the original
version, which [he] sang,”
rather than recorded for the
songs “Faith” and/or “Regret.”
(Pringle TRO Decl. ¶ 4;
Pringle PI Decl. ¶ 4)

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190. 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. Gallant Decl. at ¶ 4

Disputed, but immaterial. It is
uncontested that Pringle has
destroyed relevant evidence
during the pendency of this
litigation. (Laykin MSJ Decl.
¶¶ 21-36). There is no
authenticated admissible
evidence that Pringle created
“Take a Dive” (Dance
Version) in 1999.
191. Plaintiff backed up the creation file for Disputed, but immaterial.
“Take a Dive” Dance Version on to a Pringle presents no evidence
small computer serial interface (SCSI) that he actually did this, or
hard drive. Gallant Decl. at ¶ 4
when—Gallant merely
declares that Pringle told him
he did this. (Gallant Decl.
¶ 4). Pringle no longer has this
alleged hard drive or any of
the related equipment. (Id.;
Pringle Decl. ¶¶ 147, 148)
192. He then connected the SCSI drive to a Disputed, but immaterial.
Windows 98 based computer and,
Pringle presents no evidence
using Ensoniq Disk Manager (EDM)
that he actually did this, or
software, he created .NRG image files when—Gallant merely
creation files he burned on to a cd and declares that Pringle told him
titled “DISK05.NRG”2. Gallant Decl. he did this. (Gallant Decl.
at ¶ 4
¶ 4). Pringle no longer has this
alleged hard drive or any of
the related equipment. (Id.;
Pringle Decl. ¶¶ 147, 148)

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

Disputed, but immaterial.
Pringle presents no evidence
that he actually “preserved”
any evidence of alleged
creation of “Take a Dive”
Dance Version in 1999.
(Gallant Decl. ¶ 4; Pringle
Decl. ¶¶ 147, 148; Pringle
Dep. Tr. 17:1-19:7, 69:5-71:6,
72:20-73:13, 76:3-6, 100:24101:8, 124:2-20, 201:15-23,
375:22-377:22)
194. According to www.beatportal.com, the Disputed, but immaterial.
website from which the Defendants
Even if the various stems of “I
claim Pringle downloaded Black Eyed Gotta Feeling” were available
Peas samples, the tracks were only
on www.beatportal.com only
available from August 21 to
between August 21 and
September 8, 2009. Frederiksen-Cross September 8, 2009, that does
Decl. at ¶ 35
not preclude their availability
on other websites or from
other sources at other times.
Indeed, Defendants’ expert
personally downloaded the
remix stems for “I Gotta
Feeling” as recently as January
2, 2012. (Geluso Rebuttal
Decl. ¶ 35).

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195. 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.” Frederiksen-Cross
Decl. at ¶ 36

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196. His replacement hard drive, in
operation from January 2010 to
January 2011, would not have had any
data relating to activities from 2009.
Frederiksen-Cross Decl. at ¶ 37

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Disputed, but immaterial. Ms.
Frederiksen-Cross has no basis
to state what was or was not on
a computer she did not
examine, and even if the
various stems of “I Gotta
Feeling” were available on
www.beatportal.com only
between August 21 and
September 8, 2009, that does
not preclude their availability
on other websites or from
other sources at other times.
Indeed, Defendants’ expert
personally downloaded the
remix stems for “I Gotta
Feeling” as recently as January
2, 2012. (Geluso Rebuttal
Decl. ¶ 35).
Disputed, but immaterial. Ms.
Frederiksen-Cross has no basis
to state what was or was not on
a computer she did not
examine, and even if the
various stems of “I Gotta
Feeling” were available on
www.beatportal.com only
between August 21 and
September 8, 2009, that does
not preclude their availability
on other websites or from
other sources at other times.
Indeed, Defendants’ expert
personally downloaded the
remix stems for “I Gotta
Feeling” on January 2, 2012.
(Geluso Rebuttal Decl. ¶ 35).
Moreover, this statement does
not address Mr. Pringle’s
computer hard drive used in
2010.
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197. Furthermore, Beatportal would have
records evidencing Pringle’s alleged
registration, downloading of tracks,
and credit card payment for purchase
of tracks. Frederiksen-Cross Decl. at
¶ 38

Disputed, but immaterial.
Pringle and Ms. FrederiksenCross have no basis to state
what records Beatportal may
or may not keep, and whether
such records (if any) would be
available to third parties.
Moreover, the referenced
musical stems were also
available from sources other
than Beatportal. (Geluso
Rebuttal Decl. ¶ 35).
198. Defendants have produced no
Undisputed, but irrelevant.
evidence of same and Clark Warner’s Pringle and Ms. Frederiksendeclaration makes no such reference.
Cross have no basis to state
Declaration of Clark Warner, Dckt.
what records Beatportal may
No. 163.
or may not keep, and whether
such records (if any) would be
available to third parties.
Moreover, the referenced
musical stems were also
available from sources other
than Beatportal. (Geluso
Rebuttal Decl. ¶ 35).
199. When Plaintiff returned his defective
Disputed, but immaterial.
hard drive to Western Digital for
Pringle offers no evidence of
warranty repair or replacement in the
the contents of this allegedly
summer of 2011, it did not contain any defective hard drive and no
remix of “I Gotta Feeling.” Pringle
basis to deny that he has
Decl. at ¶ 246
spoliated critical evidence.
(Laykin MSJ Decl. ¶¶ 34-36)

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200. 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. Pringle Decl.
at ¶ 247

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201. 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. Pringle Decl.
at ¶ 250

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202. Mr. Aga declined to inspect the hard
drive. Pringle Decl. at ¶ 254

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27

Disputed, but immaterial.
Pringle offers no evidence of
the contents of this allegedly
defective hard drive and no
basis to deny that he has
spoliated critical evidence.
(Laykin MSJ Decl. ¶¶ 34-36).
Defendants made numerous
demands that Pringle preserve
and produce for inspection all
of his computer equipment
from 2009 to the present.
Disputed, but immaterial.
Pringle failed to conduct a
proper forensic backup of the
discarded hard-drive and,
therefore, the “backup” files
could not contain the key
evidence (such as temporary
Internet files, program data or
system data) that Pringle
destroyed. (Laykin MSJ Decl.
¶¶ 34-36; Pringle Tr. 286)
Disputed, but immaterial. The
“hard drive” Pringle made
available for inspection was
not the hard drive he disposed
of, but alleged “backup” files
saved to a DVD. (Pringle
Decl. ¶ 254). Pringle failed to
conduct a proper forensic
backup of the discarded harddrive and, therefore, the
“backup” files could not
contain the key evidence (such
as temporary Internet files,
program data or system data)
that Pringle destroyed.
(Laykin MSJ Decl. ¶¶ 34-36)

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203. On November 15, 2011 Mr. Pringle
submitted 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.
204. 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.” Exhibit K to Dickie
Decl.
205. Plaintiff has notified the Copyright
Office of the litigation pursuant to
Section 411(a) of the Copyright Act.
Exhibit K to Dickie Decl.

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Undisputed.

Undisputed that the Copyright
Office issued a registration in
the sound recording of “Take a
Dive” (Dance Version) and
denied registration of same as
a new musical composition,
based on an application
submitted on November 15,
2010 (after Pringle filed suit).
Disputed, but immaterial.
Undisputed that Plaintiff
notified the Copyright Office
of litigation pertaining to the
original version of “Take a
Dive” on or around October
28, 2010. (Doc. 3). Disputed
that Plaintiff notified the
Copyright Office, in any form,
of litigation pertaining to
“Take a Dive” (Dance
Version) at that time, or at any
time prior to December 9,
2011. (Dickie Decl., Ex. K
(Doc. 197-11)).

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Dated: January 9, 2012

23

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

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

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