Bryan Pringle v. William Adams Jr et al

Filing 223

REPLY in support of MOTION for Summary Judgment 159 filed by Defendants David Guetta, Frederick Riesterer, Shapiro Bernstein and Co. (Miller, Donald)

1 DONALD A. MILLER (SBN 228753)
[e-mail]
2 BARRY I. SLOTNICK (Pro Hac Vice)
[e-mail]
3 TAL E. DICKSTEIN (Pro Hac Vice)
[e-mail]
4 LOEB & LOEB LLP
10100 Santa Monica Boulevard, Suite 2200
5 Los Angeles, California 90067-4120
Telephone: [phone]
6 Facsimile: 310-282-2200
7 Attorneys for SHAPIRO, BERNSTEIN
& CO., INC., FREDERIC
8 RIESTERER, and DAVID GUETTA
9
10

UNITED STATES DISTRICT COURT

11

CENTRAL DISTRICT OF CALIFORNIA

12

SOUTHERN DIVISION

13 BRYAN PRINGLE, an individual,
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Pringle,
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.,
19

Defendants.

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Case No. SACV 10-1656 JST(RZx)
Hon. Josephine Staton Tucker
Courtroom 10A
REPLY MEMORANDUM IN
FURTHER SUPPORT OF MOTION
FOR SUMMARY JUDGMENT BY
DEFENDANTS SHAPIRO,
BERNSTEIN & CO, INC.,
FREDERIC RIESTERER AND
DAVID GUETTA
Complaint Filed: October 28, 2010
Trial Date: March 27, 2012
Motion Hearing Date: January 30, 2012

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DEFENDANTS’ REPLY IN SUPPORT OF
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1

TABLE OF CONTENTS

2

Page

3 TABLE OF AUTHORITIES ....................................................................................iii
4 PRELIMINARY STATEMENT ............................................................................... 1
5 ARGUMENT ............................................................................................................. 2
6 I.
7
8 II.
9

14
15
16 III.
17

Defendants’ Evidence of Independent Creation Undercuts
Any Inference of Access Based on “Striking Similarity” .................. 11

Pringle Cannot Prove that He Owns a Valid Copyright in “Take
a Dive” (Dance Version) ............................................................................... 12
A.

20
21
22 IV.
23
24 V.

Pringle Can Not Show That The Guitar Twang Sequence
is a Copyrightable Musical Composition............................................ 14

C.

19

Pringle Cannot Prove That He Independently Created
“Take a Dive” (Dance Version) .......................................................... 13

B.

18

27

The Vague and Unsupported Declaration of Pringle’s
Brother Does Not Create a Genuine Issue of Fact on
Access ................................................................................................... 8

D.

13

Pringle’s Unsupported Self-Serving Testimony Does Not
Create a Genuine Issue of Fact ............................................................. 7

C.

12

Pringle Misrepresents the Record to Fabricate Proof of
Access ................................................................................................... 4

B.

11

26

There is No Evidence That Defendants Ever Had Access to Any
of Pringle’s Music ........................................................................................... 4
A.

10

25

Pringle’s Claim Now Hinges on Defendants Having Copied a
Different Version of His Song That Has Never Been Registered
for Copyright ................................................................................................... 2

Pringle Has Not Satisfied the Bona Fide Deposit Copy
Requirement ........................................................................................ 15

Pringle’s Musicologists Concede that the Original Version of
“Take a Dive” and “I Gotta Feeling” Are Not Substantially
Similar ........................................................................................................... 16
Pringle’s Spoliation of His Hard Drives Mandates Dismissal of
His Claim ....................................................................................................... 18
A.

Pringle Clearly Had a Duty to Preserve His Computer
Hard Drives ......................................................................................... 18

B.

Pringle’s Hard Drives Were, At The Very, Least
Potentially Relevant ............................................................................ 20

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DEFENDANTS’ REPLY IN SUPPORT OF
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C.

1
2
3

VI.

Pringle’s Bad Faith Destruction of Critical Evidence
Mandates Dismissal of His Claim....................................................... 23

Pringle’s Attempt to Exclude Certain of Defendants’ Declarants
is a Red-Herring and Lacks Merit ................................................................. 25

4 CONCLUSION ........................................................................................................ 25
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SUMMARY JUDGMENT

1

TABLE OF AUTHORITIES

2
3
4

Page

CASES

Acuff–Rose Music, Inc. v. Jostens, Inc., 988 F. Supp. 289 (S.D.N.Y. 1997) ............ 10

5 Baker v. Walker, 2011 WL 1239826 (E.D. Cal. Mar. 29, 2011) .................................... 7
6 Batts v. Adams, CV 10-8123-JFW (C.D. Cal. Oct. 21, 2011 Order)........................... 17
7 Bethea v. Burnett, 2005 WL 1720631 (C.D. Cal. June 28, 2005) .................................. 8
8
Coles v. Wonder, 283 F.3d 798 (6th Cir. 2002) ................................................................ 15
9
Cox v. Abrams, 1997 WL 251532 (S.D.N.Y. May 14, 1997) ....................................... 11
10
11 E. Mishan & Sons, Inc. v. Marycana, Inc., 662 F. Supp. 1339 (S.D.N.Y.
1987) ........................................................................................................................................ 4
12
Estate of Parker ex rel. Parker v. AIG Life Ins., 317 F. Supp. 2d 1167 (C.D.
13
Cal. 2004) ............................................................................................................................... 9
14
Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000)..................................... 13
15
Gable v. Nat’l Broad Co., 727 F. Supp. 2d 815 (C.D. Cal. 2010) ............................... 10
16
17 Gaste v. Kaiserman, 863 F.2d 1061 (2d Cir. 1988) ................................................... 11, 12
18 Harris v. Emus Records Corp., 734 F.2d 1329 (9th Cir. 1984).................................... 16
19 Horn v. United Parcel Servs., Inc., 433 F. App’x 788 (11th Cir. 2011) ...................... 7
20 Irwin v. Dep't of Veterans Affairs, 498 U.S. 89 (1990)................................................... 24
21
Johnson v. Gordon, 409 F.3d 12 (1st Cir. 2005) ......................................................... 14-15
22
Jorgensen v. Careers BMG Music Pub., 2002 WL 1492123 (S.D.N.Y. July
23
11, 2002) ............................................................................................................................... 11
24
KnowledgePlex, Inc. v. Placebase, Inc., 2008 WL 5245484 (N.D. Cal., Dec.
25
17, 2008) ................................................................................................................................. 4
26 Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (9th Cir. 1998)................................. 15
27
Kvitka v. Puffin Co., 2009 U.S. Dist. Lexis 11214 (M.D. Pa. Feb. 13, 2009) ..... 19-20
28
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1 L.A. Printex Indus. v. Lia Lee, Inc., 2009 WL 789877 (C.D. Cal. Mar. 23,
2009) ........................................................................................................................................ 8
2
3 L.A. Printex Indus. v. William Carter Co., 2010 WL 5174378 (C.D. Cal. July
2, 2010) ................................................................................................................................. 10
4
5 Leon v. IDX Sys., Corp., 2004 WL 5571412 (W.D. Wash. Sept. 30, 2004)........ 20, 23
6 Leon v. IDX Sys. Corp., 464 F.3d 951 (9th Cir. 2006).................................................... 22
7 Maharam v. Patterson, 2007 WL 2702195 (S.D.N.Y. Sept. 17, 2007) ..................... 10
8
McKesson Info. Solutions, Inc. v. Bridge Med., Inc., 434 F. Supp. 2d 810
(E.D. Cal. 2006) .................................................................................................................. 25
9
10 Meade v. Cedarapids, Inc., 164 F.3d 1218 (9th Cir. 1999) ............................................. 6
11
Meta-Film Assocs. v. MCA, Inc.. 586 F. Supp. 1346 (C.D. Cal. 1984) ........................ 7
12
Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co., 900 F. Supp. 1287
13
(C.D. Cal. 1995).................................................................................................................. 10
14
Onofrio v. Reznor, 208 F.3d 222 (9th Cir. 2000) ............................................................. 17
15
Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. Lexis 911 (S.D. Cal. Jan.
16
7, 2008) ................................................................................................................................. 23
17
Repp v. Webber, 947 F. Supp. 105 (S.D.N.Y. 1996) ....................................................... 10
18
Rice v. Fox Broad. Co., 330 F.3d 1170 (9th Cir. 2003).................................................. 18
19
Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003)................................................................. 17
20
21 Seals-McClellan v. Dreamworks, Inc., 120 F. App’x 3 (9th Cir. 2004) ............... 11, 12
22 Shady Records, Inc. v. Source Enters., 2005 WL 14920 (S.D.N.Y. Jan. 3,
2005) ................................................................................................................................ 15, 16
23
24 Straughter v. Raymond, 2011 WL 3651350 (C.D. Cal. Aug 19, 2001)........................ 8
25 Straughter v. Raymond, CV 08-2170 CAS (CWx) (C.D. Cal. Nov. 21, 2011) .......... 8
26 Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000) .......................... 15-16
27
Well-Made Toy Mfg. Corp. v. Goffa Int’l Corp., 210 F. Supp. 2d 147
28
(E.D.N.Y. 2002).................................................................................................................... 4
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1 Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004)............................. 24
2 STATUTES
3
17 U.S.C. § 103(b) ................................................................................................................... 15
4
17 U.S.C. § 114(b) ..................................................................................................................... 3
5
17 U.S.C. § 410(c).................................................................................................................... 13
6
7 17 U.S.C. §§ 411(a), 408(b)(1),(2)......................................................................................... 4
8 Fed. R. Civ. P. 26(a)(1)(A)(i) ................................................................................................ 25
9 Fed. R. Civ. P. 26(e) ................................................................................................................ 26
10
Fed. R. Civ. P. 37(c)(1) ........................................................................................................... 25
11
Fed. R. Evid. 1002...................................................................................................................... 4
12
13

OTHER AUTHORITIES

14 http://www.chry.fm/index.php?option=com_content ..................................................... 10
15 2 Nimmer on Copyright § 7.16[B][5][6] ............................................................................ 14
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REPLY IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT

1

Defendants Shapiro, Bernstein & Co, Inc., Frederic Riesterer and David

2 Guetta respectfully submit this Reply Memorandum in Support of their Motion for
3 Summary Judgment Pursuant to Rule 56 of the Federal Rules of Civil Procedure.
4

PRELIMINARY STATEMENT

5

Plaintiff finally admits what Defendants have been saying all along: “it

6 would have been technologically impossible for the Defendants to sample my guitar
7 twang sequence out of the full sound recording of ‘Take a Dive’ (Dance Version)
8 with all the instrumentation playing” (Pringle Decl. [198] ¶ 125) (emphasis added).
9 Pringle therefore concedes that “I do not contend . . . that the Defendants sampled
10 the ‘guitar twang sequence’ for ‘I Gotta Feeling’ directly out of the fully played
11 version of ‘Take a Dive’ (Dance Version) presented to the Court.” (Id. at ¶ 142.)
12 This admission dooms Pringle’s claim. Infringement of a sound recording requires
13 physical appropriation (i.e., “sampling”) of the plaintiff’s work. Because Pringle
14 admits that sampling was not possible, his infringement claim fails.
15
Pringle instead changes his story once again, and now bases his claim on a

16 different version of his song that supposedly had the guitar twang sequence soloed
17 out. But Plaintiff does not have a copy of this new version, cannot definitively state

18 he gave it to Defendants, and never registered it with the Copyright Office. As such,
19 Pringle’s claim must fail.
20

Pringle also fails to provide any probative evidence that Guetta or Riesterer,

21 the French creators of “I Gotta Feeling”, had access to any of his music, much less
22 received a copy of “Take a Dive” (Dance Version) or the mysterious new
23 (unregistered) version. Instead, Pringle twists the facts and the law to try to show
24 access. Both efforts fail.
25

Pringle’s composition claim on the original version of “Take a Dive”—which

26 does not contain the guitar twang sequence—also fails because Pringle’s own
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DEFENDANTS’ REPLY IN SUPPORT OF
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1 experts admit that any similarities with “I Gotta Feeling” are commonplace musical
2 building blocks that are not original to “Take a Dive” and therefore not protectable.
3
Summary judgment must also be granted because Pringle disposed of the
4 computer hard drives he used between the release of “I Gotta Feeling” and the
5 magical appearance of the guitar twang sequence in a “Dance Version” of his song.
6 Pringle did so despite Defendants’ numerous demands that he preserve his
7 computer equipment, which would contain evidence that Pringle downloaded the
8 widely available “I Gotta Feeling” guitar twang stem, and back-dated his NRG file
9 to make it seem that he had created “Take a Dive” (Dance Version) years earlier.
10 Pringle’s own experts acknowledge that computer files can be back-dated by simply
11 changing the computer’s clock, and that proof of such manipulation would be found
12 on Pringle’s computer hard drives. Yet Pringle disposed of the very hard drives that
13 would prove his fraud. Dismissal is thus the only appropriate sanction.
14

15 I.
16
17

ARGUMENT
Pringle’s Claim Now Hinges on Defendants Having Copied a Different
Version of His Song That Has Never Been Registered for Copyright
Pringle’s pleadings, TRO application, and preliminary injunction motion were

18 all based on the theory that Defendants had “directly sampled” “Take a Dive”
19 (Dance Version) which Pringle registered with the Copyright Office in November
20 2010. (Compl. [Doc. 1] ¶ 4; Am. Compl. ¶ 4; Pl.’s TRO Br. [Doc. 15-1] 5
21 (Defendants accessed “the derivative version of ‘Take a Dive,’ listened to the song,
22 and directly sampled the guitar twang sequence out of Pringle’s sound recording”);
23 Pl.’s PI Br. [Doc. 73-1] 16 (“Defendants directly sampled the sound recording of the
24 derivative version of ‘Take a Dive.’”)). Indeed, Pringle registered a sound recording
25 copyright in “Take a Dive” (Dance Version) precisely so that he could pursue this
26 infringement claim. (Pl.’s PI Br. [Doc. 73-1] 14-15).
Defendants have repeatedly shown that Pringle’s sampling claim—which
27
28 requires actual physical appropriation of his sound recording, see 17 U.S.C. §
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1 114(b)—is technologically impossible because the guitar twang sequence in “Take a
2 Dive” (Dance Version) is layered with other instrumentation and sound elements
3 that are not present in “I Gotta Feeling”. (Geluso PI Decl. [Doc. 81-1] ¶ 7; Geluso
4 MSJ Decl. [Doc. 162] ¶¶ 22-24). The Court reached the same conclusion in denying
5 Pringle’s preliminary injunction motion. (Doc. 99 at 9-10.)
6

Now, after more than a year of costly litigation, Pringle finally concedes that

7 Defendants could not have sampled the guitar twang sequence from “Take a Dive”
8 (Dance Version). (Pringle Decl. [198] ¶¶ 125, 142).1 But rather than simply
9 withdraw his sampling claim as Pringle’s then counsel said he would,2 he now
10 claims he sent Defendants a different version of this song that supposedly had the
11 guitar twang sequence soloed out. (Pringle Decl. [Doc. 198] ¶ 143) (“I had many
12 derivative versions of ‘Take a Dive’ which contained the ‘guitar twang sequence’
13 soloed out in the song, and provided samples of the same directly to Guetta and
14 Garraud, at least as far back as 1999 to 2003.”) None of these “many derivative

15 versions” were ever registered with the Copyright Office or produced in discovery.
16 Indeed, Pringle testified that he has no versions of “Take a Dive” other than what

17 was produced in discovery—i.e., the original 1998 version and the “Dance Version”
18 registered in 2010. (Dickstein Decl., Ex. R, Pringle Tr. 162:14-22) (“the versions
19 that I have that are surviving, yes, I produced them to you”).3
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1

In the section of Pringle’s brief titled “Pringle Has Produced Evidence That
Defendants Sampled His Sound Recordings”, he argues only that it would be
impossible for “Pringle to have sampled Defendants’ work.” (Pl.’s Opp. 21.)
Professor Geluso thoroughly refutes Pringle’s arguments, including showing that the
isolated “I Gotta Feeling” guitar twang stem was widely available on the Internet
long after the Beatport re-mix competition ended. (Geluso Decl. ¶¶ 33-45.)
Moreover, while Pringle’s arguments might be a defense to a claim that he infringed
Defendants’ song, they do nothing to show that Defendants infringed his song.
2
See Declarations of Barry I. Slotnick and Kara E. F. Cenar, submitted herewith.
3
Pringle “does not contend in this litigation that any Defendant had access to the
NRG image file.” (Pl.’s Resp. to Def. Pineda’s RFA [Doc. 161-9] 36.)
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1

Pringle thus apparently plans to ask a jury to find that “I Gotta Feeling”

2 infringes a version of his song that the jury cannot listen to, cannot be subjected to
3 expert analysis, and has never been registered with the Copyright Office.
4 Fortunately, the law does not permit such a frivolous exercise. An infringement
5 claim must be based on a work that actually exists and has been deposited with the
6 Copyright Office. See 17 U.S.C. §§ 411(a), 408(b)(1),(2); KnowledgePlex, Inc. v.
7 Placebase, Inc., 2008 WL 5245484, at *9 (N.D. Cal., Dec. 17, 2008) (“A key
8 purpose. . . of the deposit requirement is to prevent confusion about which work the
9 author is attempting to register.”); E. Mishan & Sons, Inc. v. Marycana, Inc., 662 F.
10 Supp. 1339, 1346 (S.D.N.Y. 1987) (plaintiff has standing “only to vindicate
11 infringement of its work deposited with the registration”).4,5 Because Pringle has
12 not registered the work that he now claims Defendants copied, his claim fails.
13 II.
There is No Evidence That Defendants Ever Had Access to Any of
Pringle’s Music
14

Even if it were technologically possible for Defendants to have sampled from

15

16 “Take a Dive” (Dance Version)—which Plaintiff admits it was not—there is no
17 basis for a jury to conclude that Defendants actually did so, because Pringle has
18 provided no evidence that Defendants had access to any version of his song.
A. Pringle Misrepresents the Record to Fabricate Proof of Access
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4

Pringle’s registration of the original “Take a Dive” is irrelevant, as that version did
not contain the guitar twang sequence that Defendants allegedly sampled. See WellMade Toy Mfg. Corp. v. Goffa Int’l Corp., 210 F. Supp. 2d 147, 158 (E.D.N.Y.
2002) (“[W]here the preexisting work is registered, but the derivative work is not, a
suit for infringement may be maintained as to any protected element contained in
the registered preexisting work, but not as to any element original to the
unregistered derivative work.”) (emphasis added).
5
Any testimony about alleged versions of Pringle’s song which he does not have are
also inadmissible under Fed. R. Evid. 1002, which provides that “[a]n original
writing, recording, or photograph is required in order to prove its content[.]” The
Advisory Committee specifically notes that Rule 1002 applies to copyright actions.
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1

Pringle resorts to distorting the facts to try to conjure up some inference of

2 access. First, he argues that his alleged submissions of demo CDs to everyone in the
3 music business are “partially” evidenced by postal service receipts. (Pl.’s Opp. 3.)
4 Yet Pringle cannot even bring himself to show the Court copies of these postal
5 receipts, because they are, in fact, evidence of nothing. All they show are that
6 someone mailed something to somebody somewhere in 2006. (Dickstein Decl., Ex.
7 S.) There is no evidence that any of the mailings reflected by these receipts
8 included any version of “Take a Dive”, or that they were sent to any Defendants.
9 (Id.)6 Thus, although Pringle claims to have sent “thousands of demo CDs for over
10 a decade,” he has no evidence of any such mailings, or that any of those alleged
11 demo CDs contained “Take a Dive” (Dance Version). (Pl.’s Resp. to SMF ¶ 54.)
12

Second, Pringle contends that he sent a copy of his demo CD to Gum

13 Productions, the French music production company founded by Guetta and Joachim
14 Garraud, and that sometime between 2001 and 2003 Gum actually received a copy

15 of “Take a Dive” (Dance Version). (Pl.’s Opp. 3-4.) As support for that contention,
16 Pringle cites Guetta’s deposition testimony (Pl.’s SAF ¶¶ 131, 148) (citing Guetta
17 Tr. 20-22, 66-69). But Guetta testified only that it was “possible” that unspecified
18 artists had been solicited to perform on Guetta’s albums or had submitted

19 unspecified samples of their work. That Pringle would have the Court construe that
20 testimony as establishing Guetta’s receipt of Pringle’s “Take a Dive” (Dance
21 Version) shows the depths to which Pringle will sink to avoid summary judgment.
22 In fact, Guetta has expressly denied ever having received or listened to any of

23 Pringle’s music (Guetta Decl. [Doc. 167] ¶¶ 5-6), and Gum’s director states that an
24
6
Pringle’s 2006 mailing receipts reference zip codes in the United States, even
25 though he now claims that his music was stolen in a French nightclub in 2001-2003.
26 Because Pringle admits that The Black Eyed Peas’ William Adams wrote the lyrics
for “I Gotta Feeling” but did not change any of the music he received from Guetta
27 (Pl.’s Resp. to SMF ¶ 21), any alleged access through The Black Eyed Peas, their
28 music publishers or record label is immaterial.
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1 extensive search of its business records showed no indication of any correspondence
2 with Pringle (Carre Decl. [Doc. 168] ¶¶ 6-8). Pringle’s unsupported speculation to
3 the contrary is insufficient to create a genuine issue of fact. See Meade v.
4 Cedarapids, Inc., 164 F.3d 1218, 1225 (9th Cir. 1999) (creating a genuine issue of
5 material fact “requires evidence, not speculation”).
6

Third, Pringle makes a series of unsupported and demonstrably false

7 assertions to try to show that Joachim Garraud received Pringle’s music and used it
8 in creating “I Gotta Feeling.” Pringle cites only his own self-serving testimony that
9 Garraud supposedly wrote to Pringle asking for specific music tracks, including
10 “Take a Dive” (Dance Version). (Pl.’s Opp. 4, 19; Pl.’s SAF ¶¶ 149-150) (citing
11 Pringle Decl. ¶ 5.) Yet Pringle admits he has no copy of any communication with
12 Garraud (Pl.’s Resp. to SMF ¶¶ 49-50), and he completely ignores the
13 uncontroverted testimony of Garraud himself (an unbiased third party) that he never
14 listened to or received any of Pringle’s music. (Garraud Decl. [Doc. 165] ¶¶ 2-3.)
15

Pringle nevertheless tries to connect Garraud to the creation of “I Gotta

16 Feeling” by asserting that a guitar sequence in the 2007 song “Love is Gone,” which
17 was co-produced by Garraud, Riesterer and Guetta, is actually the same guitar twang
18 sequence that later appeared in “I Gotta Feeling” released in 2009. (Pl.’s Opp. 5.)
19 But Pringle’s own sound recording expert, Mark Rubel, testified that the guitar

20 sequence in “Love is Gone” is “completely different” than the guitar sequence in “I
21 Gotta Feeling.” (Rubel Report [Doc. 73-1] at 10.) Riesterer similarly explains that
22 the notes, chords, guitar pre-set and sound effects processing were all different in
23 “Love is Gone” and “I Gotta Feeling.” (Riesterer Decl. [Doc. 166] ¶¶ 6-8.)7
24
25

7

Although Riesterer initially stated in an October 2010 Declaration opposing
26 Pringle’s ex parte TRO application that the guitar parts in “I Gotta Feeling” and
27 “Love is Gone” were the same, he later explained that he misunderstood his TRO
declaration because it had not been translated into his native French. (Riesterer
28 Decl. [Doc. 166] 7 n.2; Riesterer Decl. ¶¶ 10-12.) This does not create an issue of
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REPLY IN SUPPORT OF MOTION FOR
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1

Pringle also contends that Garraud was involved with the creation of “I Gotta

2 Feeling” (Pl.’s Opp. 4; Pl.’s SAF ¶ 141) (citing Riesterer Tr. [Doc. 197-3] 125:113 129:21.) But once again, the deposition testimony Pringle cites does not support his
4 contention. Riesterer testified that Garraud was involved in the production of “Love
5 is Gone,” not “I Gotta Feeling”—which, as explained above, had an entirely
6 different guitar sequence. The uncontroverted evidence thus shows that Garraud
7 was not involved in Guetta and Riesterer’s creation of “I Gotta Feeling.” (Guetta
8 Decl. [Doc. 167] ¶ 7; Riesterer Decl. [Doc. 166] ¶ 9.).8
9
10
11

B. Pringle’s Unsupported Self-Serving Testimony Does Not Create a
Genuine Issue of Fact
Because he has no evidence of access, Pringle falls back on his own

12 unsupported self-serving testimony, claiming that “[d]ocumentary evidence is not
13 necessary to establish access where the Plaintiff testifies that he submitted his work

14 to the Defendants.” (Pl.’s Opp. 19-20.) Not only does that proposition run contrary
15 to the rule that “‘[u]ncorroborated and self-serving testimony,’ without more, will

16 not create a ‘genuine issue’ of material fact precluding summary judgment” Baker v.
17 Walker, 2011 WL 1239826, at *1 (E.D. Cal. Mar. 29, 2011) (quoting Villiarimo v.
18 Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002))—it is also unsupported
19 by the cases Pringle relies upon.
20
21
22
23
24
25
26
27

fact, especially since Pringle’s own expert acknowledges that the two guitar parts
are “completely different.” Horn v. United Parcel Servs., Inc., 433 F. App’x 788,
796 (11th Cir. 2011) (“inconsistent testimony of a witness, corrected in the same
deposition, affirmed by an affidavit, coupled with the consistent testimony of
another witness, is not sufficient to create a genuine issue of material fact.”).
8
See Meta-Film Assocs. v. MCA, Inc.. 586 F. Supp. 1346, 1355-56 (C.D. Cal. 1984)
(“the dealings between the plaintiff and the intermediary and between the
intermediary and the alleged copier must involve some overlap in subject matter to
permit an inference of access.”)

28
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1

In Straughter v. Raymond, 2011 WL 3651350 (C.D. Cal. Aug. 19, 2001), the

2 defendants actually admitted that the alleged third party intermediary, hip-hop artist
3 Warren G, had received a copy of plaintiff’s song—indeed, he helped produce it.
4 Id. at *2. Moreover, on reconsideration, the Straughter court acknowledged that
5 “Warren G’s relationship to defendants may not have been such that he would be
6 found to be a third-party intermediary,” and relied instead on access through
7 widespread distribution as a result of plaintiff’s song having reached number 32 on
8 Billboard’s charts. Straughter v. Raymond, CV 08-2170 CAS (CWx) (C.D. Cal.
9 Nov. 21, 2011) (Doc. 313 at *5, 7).
10

In Bethea v. Burnett, 2005 WL 1720631 (C.D. Cal. June 28, 2005), the

11 defendant—whose television show allegedly infringed plaintiff’s treatment for a
12 show—admitted that his business manager had met with the plaintiff on several
13 occasions to discuss possible television programs. Id. at *1-2.9
14
In L.A. Printex Indus. v. Lia Lee, Inc., 2009 WL 789877 (C.D. Cal. Mar. 23,

15 2009), defendants did not dispute that they had access to all but one of plaintiff’s
16 copyrighted fabric design patters. Id. at *1. Indeed, L.A. Printex denied plaintiff’s
17 motion for summary judgment, rejecting its contention that a declaration from the
18 head of its sales department established access. Id. at *4-5.
19

Here, unlike the cases Pringle relies upon, not only do Defendants dispute

20 access, but Pringle has come forward with absolutely no probative evidence that
21 they had access to his music—through a third-party intermediary or otherwise.
22
23

C. The Vague and Unsupported Declaration of Pringle’s Brother Does
Not Create a Genuine Issue of Fact on Access

24

Recognizing that his own self-serving testimony is insufficient to raise an

25 issue of fact, Pringle has enlisted the help of his brother, Jeffrey Pringle, to conjure
26

9

Moreover, Bethea actually granted defendants’ summary judgment motion on
27 grounds of independent creation and no substantial similarity, rendering any
28 discussion of access mere dicta. Id. at *15-16.
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1 up some way that the Defendants could have had access to his song. However,
2 “[c]onclusory and speculative testimony” from the plaintiff’s brother is “insufficient
3 to raise genuine issues of fact to defeat summary judgment.” Estate of Parker ex
4 rel. Parker v. AIG Life Ins., 317 F. Supp. 2d 1167, 1175 (C.D. Cal. 2004).10
5 Moreover, aside from vague assertions about unidentified songs that other people
6 may have played on the radio in other countries (J. Pringle Decl. [Doc. 190] ¶¶ 3-6),
7 the only concrete statement Jeffrey Pringle makes about distribution of “Take a
8 Dive” (Dance Version)—the only registered work at issue11—is that:
9
During the period August 1999 to June 2002 while performing as
a professional and part-time DJ and spoken-word radio host, I
10
personally played Bryan Pringle’s music, including his song ‘Take a
11
Dive’ (Dance Version) during numerous programs on CHRY radio
during my shows. These shows were broadcast live in Toronto, Canada
12
and via the Internet. (J. Pringle Decl. [Doc. 190] ¶ 7.)12
13
Even accepting that statement as true, it falls far short of establishing access
14
through widespread dissemination. Radio station CHRY is a “community-based
15
16
17
18
19
20
21
22
23
24
25
26
27
28

10

For the reasons set forth in Defendants’ Evidentiary Objections to the Declaration
of Jeffrey Pringle, submitted herewith, the entire declaration should be stricken
because Jeffrey Pringle was never disclosed in Pringle’s disclosures as required by
Rule 26(a) (Dickstein Decl., Ex. W), and paragraphs 3-9 should be stricken as
inadmissible and therefore not a proper basis to oppose summary judgment.
11
Jeffrey Pringle’s claim that Pringle “delivered his Demo CDs which included
songs that contained the ‘guitar twang sequence’ used in his song ‘Take a Dive’
(Dance Version), to several DJs at various night clubs in Paris” (J. Pringle Decl.
[190] ¶ 9), is immaterial, as Pringle has neither registered those unidentified songs
with the Copyright Office nor produced them in discovery. See supra, 3. Moreover,
that statement is inadmissible because Jeffrey Pringle does not explain how he can
possibly “attest to the fact” that the Pringle’s Demo CDs actually contained those
songs, when Pringle admitted distributing demo CDs with any number of songs, or
no songs at all. (Pringle Tr. [Doc. 161-5] 349:23-353:9.)
12
Jeffrey Pringle’s sudden recollection of events that allegedly took place decades
ago is remarkable given that he “lost a substantial amount of his memory” and that
when asked about distributing Pringle’s music in Paris, he responded “‘you know,
my memory is bad. I can’t recall.’” (Dickstein Decl., Ex. R, Pringle Tr. 96-97.)
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1 campus station” located in Toronto, Canada.13 Guetta and Riesterer live in France,
2 and there is no evidence that either of them have ever been to Toronto. See Repp v.
3 Webber, 947 F. Supp. 105, 115 (S.D.N.Y. 1996) (no inference of access from radio
4 airplay in Connecticut and Virginia, when defendant “lived in Vienna, Austria at the
5 time of these broadcasts, and no evidence was introduced at trial that [defendant]
6 was near either of these cities on the dates these stations played [plaintiff’s song]”).
7
Airplay on one obscure campus radio station is insufficient to prove access by
8 widespread dissemination. See Maharam v. Patterson, 2007 WL 2702195, at *1
9 (S.D.N.Y. Sept. 17, 2007) (no “widespread dissemination” even where “radio
10 stations played her songs during the Christmas holiday season, which received
11 attention in the print media”); cf. L.A. Printex Indus. v. William Carter Co., 2010
12 WL 5174378, at *3 (C.D. Cal. July 2, 2010) (“In Three Boys, the Ninth Circuit
13 found that substantial evidence supported a jury's finding of access where the

14 copyrighted song enjoyed significant radio airplay over 20 years.”); Acuff–Rose
15 Music, Inc. v. Jostens, Inc., 988 F. Supp. 289, 293 (S.D.N.Y. 1997) (widespread

16 dissemination where plaintiff's song achieved a “top five ranking as a country hit”).
17
Jeffrey Pringle also fails to explain how many of these “numerous” programs
18 where broadcast on the Internet, where they were available on the Internet, how
19 prominent the website was, and when they were broadcast during this three-year
20 span seven years before the release of “I Gotta Feeling”. Such vague and
21 conclusory testimony is insufficient to create an issue of fact, especially where

22 access must be supported by “significant, affirmative and probative evidence,”
23 Gable v. Nat’l Broad Co., 727 F. Supp. 2d 815, 824 (C.D. Cal. 2010), and “may not
24 be inferred through mere ‘speculation or conjecture.’” Metro-Goldwyn-Mayer, Inc.
25 v. Am. Honda Motor Co., 900 F. Supp. 1287, 1297 (C.D. Cal. 1995).
26
27

13

http://www.chry.fm/index.php?option=com_content&task=blogsection&id=8&Ite
28 mid=46.
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1
2
3

D. Defendants’ Evidence of Independent Creation Undercuts Any
Inference of Access Based on “Striking Similarity”
As a last ditch attempt to avoid summary judgment, Pringle argues that a jury

4 could find that Defendants copied “Take a Dive” (Dance Version) without any
5 evidence that they had access to it, merely because Pringle claims that the three-

6 chord guitar twang sequence in “Take a Dive” (Dance Version) is “strikingly
7 similar” to the guitar twang in “I Gotta Feeling.” (Pl.’s Opp. 20.) Neither the facts
8 nor the law support Pringle’s argument.
Striking similarity gives rise to an inference of access only where there is no
9

10 “possibility of independent creation,” Jorgensen v. Careers BMG Music Pub., 2002
11 WL 1492123, at *5 (S.D.N.Y. July 11, 2002) (emphasis added), and where “the only
12 reasonable explanation for such a great degree of similarity is that the later . . . was
13 copied from the first.” Cox v. Abrams, 1997 WL 251532, at *5 (S.D.N.Y. May 14,
14 1997) (emphasis added); see also Seals-McClellan v. Dreamworks, Inc., 120 F.
15 App’x 3, 4 (9th Cir. 2004) (“[t]o show a striking similarity between works, a

16 plaintiff must produce evidence that the accused work could not possibly have been
17 the result of independent creation.”) (citations omitted) (emphasis in original);

18 Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2d Cir. 1988) (“A plaintiff has not
19 proved striking similarity sufficient to sustain a finding of copying if the evidence as
20 a whole does not preclude any reasonable possibility of independent creation.”)
21 (emphasis added).
22

Pringle’s expert musicologist admits that copying is not the only explanation

23 for any similarity between “I Gotta Feeling” and “Take a Dive” (Dance Version),
24 and thus there is no inference of access. (Dickstein Decl., Ex. U, Norris Tr. 216.)
25

Moreover, Defendants have proffered evidence that raises far more than a

26 mere possibility of independent creation. As Professor Geluso explains, Frederic
27 Riesterer’s creation files contain the separate, unprocessed notes that comprise the
28 guitar twang sequence, while Pringle’s NRG “creation” file contains only the preNY988978.5
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1 processed fused chords, which are indicative of sampling from another source.
2 (Geluso Decl. [Doc. 162] ¶¶ 15-21, 25-28.) Rather than offer a response from his
3 sound recording expert, Pringle relies on his own speculative arguments (Pringle
4 Decl. [Doc. 198]) as well as the misguided arguments of a computer programmer
5 who has no experience examining sound recordings (Frederiksen-Cross Decl. [Doc.
6 189]). Professor Geluso has thoroughly addressed all of Pringle and Frederiksen7 Cross’s arguments and shown that they hold no water. (See Geluso Decl.)
8

None of the alleged “inconsistencies” in Riesterer’s music creation files (Pl.’s

9 Opp. 14-15) are more than quibbles, and none undercut Defendants’ evidence that
10 he independently created the guitar twang sequence. First, Professor Geluso
11 explains that none of the files in Riesterer’s creation files with dates before or after
12 the release of “I Gotta Feeling” are the guitar twang sequence itself, but rather
13 miscellaneous drum samples which Riesterer likely imported from previous projects
14 or later opened and used for other projects. (Geluso Decl. ¶¶ 49-51; Riesterer Decl.
15 ¶ 9.) Second, the reference in Riesterer’s creation files to an audio device that
16 Riesterer acquired after creating “I Gotta Feeling” is merely the result of the Logic

17 data file logging a device that was connected to Riesterer’s computer when he
18 opened the Logic session in 2011 before producing it in discovery. (Geluso Decl. ¶
19 52; Riesterer Decl. ¶ 6.) Third, the reference in Riesterer’s Logic data file to
20 “Litige” and “OK” was not some devious indication of tampering, but merely

21 Riesterer’s way of noting disagreements he had with Guetta while creating the
22 music for “I Gotta Feeling.” (Riesterer Decl. ¶ 7.)
23

At the very least, Defendants have raised the “possibility” of independent

24 creation, which negates any inference of access based on claimed “striking
25 similarity.” See Seals-McClellan, 120 F. App’x at 4; Gaste, 863 F.2d at 1068. And
26 because Pringle has no probative evidence of access, his claim fails.
27 III.
28

Pringle Cannot Prove that He Owns a Valid Copyright in “Take a Dive”
(Dance Version)

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1

Pringle does not dispute that he has the burden of proving that he owns a valid

2 copyright to the guitar twang sequence (the only material added in “Take a Dive”
3 (Dance Version)), including that (i) he independently created the guitar twang
4 sequence, and (ii) that it constitutes sufficiently original expression.14 Pringle
5 cannot carry either burden.
6

A. Pringle Cannot Prove That He Independently Created “Take a Dive”
(Dance Version)

7

In denying Pringle’s preliminary injunction motion, the Court discounted

8

9 Pringle’s “vague” statement that he “‘add[ed]’ the guitar twang sequence using a
10 ‘guitar twang instrument,’ and that he ‘modeled’ the sequence after the chorus in the
11 original version.” (Doc. 99 at 7.)
Remarkably, Pringle again states only that he “recorded a ‘guitar twang’
12

13 sound instrument” and cites his TRO declaration which is essentially identical to his
14 deficient PI declaration. (Pl.’s Opp. 13-14; Pl.’s SAF ¶ 121) (citing Pringle TRO
15 Decl. ¶ 4.) Even Pringle’s latest declaration merely speculates that he “most likely
16 used [a] stereo spread effect”, “may have recorded the ‘guitar twang sequence’ in

17 one recording”, or “may have simply used a fully processed original guitar sound”
18 (Pringle Decl. [Doc. 198] ¶¶ 58, 154, 225(iv)) (emphasis added). Indeed, Pringle’s
19 admission that the guitar twang sounds “were obtained from a music sample library”
20 (Pl.’s Opp. 14) means that he did not create those sounds, and that any sound
21 recording copyright belongs to the creator of the music sample library, not Pringle.
In addition, Pringle no longer claims that the guitar twang sequence of notes
22
23 was derived from the original version of “Take a Dive”, but that it was “based upon”
24 another song titled “Faith”. (Pringle Decl. ¶ 133.) But the guitar twang sequence is
25
14

17 U.S.C. § 410(c) (“the certificate of a registration made before or within five
years after first publication of the work shall constitute prima facie evidence of the
27 validity of the copyright and of the facts stated in the certificate.” (emphasis
28 added)); see Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1075-76 (9th Cir. 2000).
26

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1 not present in “Faith” (Geluso Decl. ¶ 31), and when Pringle inserted the guitar
2 twang sequence into a new version of “Faith” for his opposition, he had to change
3 the pitch and tempo from how it appears in “Take a Dive” (Dance Version). (Id. at
4 ¶ 31.) Thus, rather than offer actual evidence of independent creation, Pringle
5 apparently instead wants the Court to simply accept his claim on “Faith”.
6

B. Pringle Can Not Show That The Guitar Twang Sequence is a
Copyrightable Musical Composition

7

The Copyright Office rejected Pringle’s application to register a composition

8

9 copyright in “Take a Dive” (Dance Version) because the guitar twang sequence
10 “does not contain enough original musical authorship to be copyrightable”

11 (Dickstein Decl., Ex. H [Doc.161-8] 33), and Defendants provided authority that
12 short musical phrases consisting of only a few notes or chords are not copyrightable

13 (Def.’s Br. [Doc. 159-2] 16-17.) In response, Pringle merely cites general principles
14 of law, but provides no authority or analysis that the guitar twang sequence, which
15 Pringle admits is “not musically complex” and contains only a few repeating notes,
16 is protectable. (Pl.’s Opp. 10-11, 16; Pringle Decl. [Doc. 198] ¶ 55.)
Pringle also argues that “[b]ecause Pringle holds a copyright for his song

17

18 ‘Take a Dive,’ the derivative is eligible for protection as a derivative because it adds
19 original pieces.” (Id. at 11.) But the only “original pieces” added to create the
20 Dance Version, and the only material Pringle claims Defendants copied, is the guitar
21 twang sequence—yet he does not explain why that sequence is protectable, and his
15
22 claim therefore fails.

23
24
25
26
27
28

15

To the extent Pringle contends the guitar twang sequence is protectable merely
because the other parts of “Take a Dive” (Dance Version) were also in the original
version, he is incorrect. See 17 U.S.C. § 103(b); 2 Nimmer on Copyright §
7.16[B][5][b] (“[If] the materials copied from the derivative work consist only of the
newly added components … registration of the underlying work alone cannot
suffice to support a complaint against copying of only those separate elements that
went into creation of the derivative work.”); Johnson v. Gordon, 409 F.3d 12, 20
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1

C. Pringle Has Not Satisfied the Bona Fide Deposit Copy Requirement

2

Pringle does not dispute that his NRG file contains only separate instrumental

3 files, and that he had to load those files into specific slots in his ASR-10 to create
4 the mixed MP3 he submitted to the Copyright Office. (Pringle Decl. [Doc. 198] ¶
5 159.) As Professor Geluso explains, “it is possible to load the instrument files into
6 the ASR-10 track slots in any number of different combinations, each of which
7 would result in a different mixed sound recording.” (Geluso Decl. ¶ 46.)16 Re8 constructing “Take a Dive” (Dance Version) from the NRG file is thus not a matter
9 of difficulty, but of choice. Other than Pringle’s alleged recollection, there is no
10 evidence that the MP3 Pringle created and deposited in 2010 actually matches the
11 supposed original “Take a Dive” (Dance Version) allegedly created in 1999.
12 Pringle’s November 2010 submission to the Copyright Office was thus not a bona
13 fide copy of “Take a Dive” (Dance Version). (Def.’s Br. [Doc. 159-2] 20-21.)
14

None of the cases Pringle cites stand for his proposition that the bona fide

15 copy requirement can be met “without actually having a copy of the original work
16 and even by recreating the original work from scratch.” (Pl.’s Opp. 17) Indeed,
17 they hold the opposite. See Coles v. Wonder, 283 F.3d 798, 802 (6th Cir. 2002)
18 (“Since Coles failed to retain a copy of his 1982 recording, he could not satisfy the
19 deposit requirement of § 408.”); Kodadek v. MTV Networks, Inc., 152 F.3d 1209
20 (9th Cir. 1998) (no claim when artist did not retain original copies of drawing).
21
Pringle’s reliance on Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th
22 Cir. 2000) and Shady Records, Inc. v. Source Enters., 2005 WL 14920 (S.D.N.Y.
23 Jan. 3, 2005) is misplaced. Shady Records stated that “copies made from bona fide
24

(1st Cir. 2005) (“copyright protection [extends] to those elements of the plaintiff's
25 long version [of his song] that are derived directly from the registered short version,
26 but not to those elements contained exclusively in the unregistered long version.”)
16
Pringle appears to acknowledge this when he says the instrument files in his NRG
27 file must be loaded “properly” into the ASR-10 in order to hear “Take a Dive”
28 (Dance Version). (See, e.g., Pringle Decl. [Doc. 198] ¶¶ 159, 165, 170.)
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1 copies of the original will satisfy the deposit copy requirement.” Id. at *14
2 (emphasis added). Here, there is no evidence showing what the “original” version
3 of “Take a Dive” (Dance Version) sounded like17—indeed, there is no evidence it
4 ever existed before this lawsuit—and thus no way for Pringle to prove that the mix
5 he deposited in 2010 was a copy “made from bona fide copies of the original.” And
6 the statement from Harris v. Emus Records Corp., 734 F.2d 1329, 1335 (9th Cir.
7 1984) quoted in Three Boys Music at 486 dealt with a mistaken author identification
8 in the registration application, not the sufficiency of a deposit copy.
9 IV. Pringle’s Musicologists Concede that the Original Version of “Take a
Dive” and “I Gotta Feeling” Are Not Substantially Similar
10

Pringle continues to claim that “I Gotta Feeling” infringes the original version

11

12 of the musical composition “Take a Dive”—even though it does not contain the
13 guitar twang sequence. Defendants’ expert musicologist, Dr. Lawrence Ferrara

14 (whose deposition Pringle chose not to take) has shown that there are fundamental
15 differences between the two works, and that any similarities that do exist are nothing
16 more than generic musical building blocks common to many works of popular
17 music—such as 4/4 meter (i.e. “common time”), a repeating 8-bar chorus, a “dance”
18 tempo, and the Mixolydian mode. (Ferrara Decl. [Doc. 172] ¶¶ 4-5, 65, 91-97;
19 Dickstein Decl., Ex. T (Ferrara Rebuttal Report ¶¶ 3-5, 45-49)).

Indeed, Pringle’s own musicologists agree with Dr. Ferrara’s conclusions.

20

21 Dr. Norris’ Declaration expressly limits its finding of substantial similarity to “Take
22 a Dive” (Dance Version). (Norris Decl. [Doc. 192] ¶ 5). Norris testified that (i) any
18
23 similarities are not original to “Take a Dive” and therefore not protectable, and (ii)

24

17

Pringle recognizes this when he argues (incorrectly) that the bona fide copy
25 requirement can be met “without actually having a copy of [his] original work and
26 even by recreating the original work from scratch.” (Pl.’s Opp. 17.)
18
(Dickstein Decl., Ex. U Norris Tr. 249:24-250:16) (“Q. So you acknowledge that
27
none of these [common, unprotectable] elements . . . is original to ‘Take A Dive’
28 original version? A. They are not original. Q. And the same is true of ‘Take A
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1 the similarities that do exist are outweighed by the differences.19 Dr. Stewart
2 similarly acknowledged that any alleged similarities are not original to “Take a
3 Dive,” and are thus not protectable. (Dickstein Decl., Ex. V, Stewart Tr. 281-285).
4

Nor can Pringle argue that these otherwise unprotectable similarities are

5 protectable in combination. Simple aggregation of otherwise unprotectable
6 elements does not result in original protectable expression, unless they are combined
7 in a unique and expressive way. See, e.g., Batts v. Adams, CV 10-8123-JFW (RZx)
8 (C.D. Cal. Oct. 21, 2011 Order at 4) (“the party claiming infringement may place no
9 reliance upon any similarity in expression resulting from unprotectable elements”)
10 (collecting cases); Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003); Onofrio v.
11 Reznor, 208 F.3d 222 (9th Cir. 2000). Neither of Pringle’s experts was willing to
12 claim that Pringle’s combination of unprotectable elements was itself original.
13 (Norris Tr. 250:17-251:9; Stewart Tr. 284:20-285:16.)20
14
Pringle cannot argue that “dueling” expert reports somehow preclude

15 summary judgment—primarily because his experts agree with Dr. Ferrara’s
16 conclusions. Moreover, Batts involved “competing” expert reports from two of the
17 same experts involved here, yet held that “the mere existence of dueling expert
18 reports does not necessarily create a triable issue of fact.” (Id. at 6 n.6) (citing

19 Gable v. Nat’l Broad. Co., 727 F. Supp. 2d 815, 836-37 (C.D. Cal. 2010)); see also
20
21
22
23
24
25
26
27
28

Dive’ derivative version? A. Yes. Q. So in your opinion all of those elements are
nonprotectable for both songs? A. Yes.”)
19
Id. (Norris Tr. 80:22-81:3 (“Q. Would you not agree that the differences between
the original version of ‘Take A Dive’ and ‘I Gotta Feeling’ outweigh any
similarities that those two works might share? A. Yes.”))
20
Pringle’s claims for “Take a Dive” original version also fail because he fails to
establish any possibility of access to that work. Indeed, Pringle brother’s
declaration, which was designed to bolster Pringle’s “evidence” of access, makes no
mention whatsoever of the original version of “Take a Dive.” (J. Pringle Decl.
[Doc. 190]).
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1 Rice v. Fox Broad. Co., 330 F.3d 1170, 1180 (9th Cir. 2003) (summary judgment
2 for defendant despite competing expert reports).
3 V.
Pringle’s Spoliation of His Hard Drives Mandates Dismissal of His Claim
4

Even assuming Pringle’s infringement claims were not doomed on their

5 merits, summary judgment should nevertheless be granted based on Pringle’s
6 admitted destruction of two computer hard drives while this lawsuit was pending.
7 Because those hard drives likely contained evidence critical to Defendants’ case,
8 dismissal is the only appropriate remedy for Pringle’s brazen discovery misconduct.
9

A. Pringle Clearly Had a Duty to Preserve His Computer Hard Drives

10

Pringle acknowledges that a party has a duty to preserve evidence when he

11 “has some notice that the evidence is potentially relevant to litigation” and that the
12 preservation obligation applies to computer equipment when the plaintiff is “put on
13 notice by the defendants to maintain his computer” (Pl.’s Opp. 24). Pringle
14 contends he had no notice that his computer hard drives were even potentially
15 relevant when he disposed of them in January 2011 and August 2011. That
16 argument completely ignores Defendants repeated demands that Pringle preserve
17 all of his computer systems and produce them for inspection:
18 • July 23, 2010: Defendants question “the authenticity of Mr. Pringle’s
representations regarding the dates of his computer files” because there are “easy
19
ways for Mr. Pringle to modify the Creation, Accessed and Modified dates of his
20
computer files” and demand that Pringle “preserve all computer records”
including “have an independent forensic computer person image his entire hard
21
drive etc. to capture and preserve everything on his system[.]” (Dickstein Decl.,
22
Ex. K [Doc. 161-11].)
23 • July 24, 2010: Defendants re-send their preservation demands in a “formal
correspondence.” (Dickstein Decl., Ex. J [Doc. 161-10].)
24

25 • July 28, 2010: Defendants reiterate their “request for preservation of evidence of
Mr. Pringle’s computer files” because “there are serious issues of whether that
26
date [of Pringle’s NRG file] is actual or fabricated.” (Dickstein Decl., Ex. K.)
27 • November 23, 2010: Defendants file an expert report explaining that “a common
method for fraudulently ‘backdating’ the date and time stamps for files . . . can
28
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1

be as simple as changing the clock on your computer” and that it would therefore
“be vital to review the original computer which managed the burning of the CD
in the first instance.” (Laykin Decl. [Doc. 22-2] ¶ 4(i),(o).)

2
3

• February 14, 2011: Defendants demand inspection of Pringle’s computer
4
equipment used from 2009 to the present. (Dickstein Decl., Ex. N. [Doc. 16114] at 3.)
5
6 • February 18, 2011: Defendants inform the Court that “Mr. Pringle’s ESI will
likely play a crucial role in discovery in this action, as it goes directly to the
7
threshold issues of Plaintiff’s ownership of a valid copyright, including the dates
and manner of Plaintiff’s alleged creation of ‘Take a Dive’ and ‘Take a Dive’
8
Derivative, and the validity of Plaintiff’s asserted copyright registrations of those
9
works.” [Doc. 110 at 7:21-25.]
10 • July 8, 2011: Pringle acknowledges that “[t]o the extent that you seek metadata
associated with the creation of any sound recording by Mr. Pringle, that would
11
require an inspection of Mr. Pringle’s computer hard drive, which we have
12
offered to provide for inspection at the offices of our computer expert.”
(Dickstein Decl., Ex. M [Doc. 161-13] at 21.)
13
• July 27, 2011: Defendants write to Pringle to arrange inspection of “Mr.
Pringle’s computer hard drive(s) that he has used from 2009 to the present, and
15
all backups thereof.” (Dickstein Decl., Ex. F [Doc. 161-6] at 13.)
14

16 All of this took place before Pringle disposed of his 2011 hard drive in August 2011,
17 and most took place before he disposed of his 2010 hard drive in January 2011—as

18 Defendants learned later in August 2011. (Dickstein Decl., Ex. F at 9-10, Ex. E,
19 Pringle Tr. 31:4-35:2, 341:21-342:20.)21 There is thus no question that Pringle had a
20 duty to preserve his computer equipment at the time he disposed of his hard drives.22
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Pringle’s accusations that Defendant Riesterer destroyed evidence is a
smokescreen designed to distract the Court from Pringle’s own blatant discovery
abuses. (Pl.’s Opp. 23.) Although Pringle asserts that Defendant Riesterer “recently
dispos[ed] of the computer containing his creation files for ‘I Gotta Feeling’”,
Riesterer—unlike Pringle—gave away his outdated computer in April 2010, long
before there was any anticipation of litigation. (Riesterer Decl. ¶ 5.) Riesterer has
produced the music creation files for “I Gotta Feeling” that he had saved to his
external hard drives. (Id. at ¶ 5.)
22
The fact that Pringle claims to have been experiencing technical difficulties with
his hard drives when he disposed of them is obviously no defense. See Kvitka v.
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1

Although Pringle cites Leon v. IDX Sys., Corp., 2004 WL 5571412, at *3

2 (W.D. Wash. Sept. 30, 2004), that case supports Defendants’ position. The court in
3 Leon found that the preservation obligation was triggered based on just two letters
4 written to plaintiff’s counsel over the span of ten days, id. at *2, while Defendants
5 here sent numerous demands for preservation and inspection of Pringle’s current
6 computer systems over more than a year. Pringle’s preservation obligation was
7 thus even clearer here than it was in Leon.
8
9

B. Pringle’s Hard Drives Were, At The Very, Least Potentially Relevant
Pringle tries to convince the Court that none of the electronic data on his hard

10 drives could possibly have contained any relevant evidence. (Pl.’s Opp. 24.)
11 Although Pringle is fond of repeating his mantra that he created “Take a Dive”
12 (Dance Version) in 1999, Defendants were entitled to test Pringle’s story through
13 discovery—especially considering that Pringle did not register that song until
14 November 2010, and that there is no evidence it ever existed until this lawsuit was
15 filed. Defendants therefore sought discovery as to whether Pringle had, in fact,
16 obtained the guitar twang sequence in 2009 or 2010 after “I Gotta Feeling” was
17 released and the guitar twang stem made available on the Internet, and then back18 dated the NRG file to make it seem that he had created “Take a Dive” (Dance
19 Version) years earlier.23
20
21
22 Puffin Co., 2009 U.S. Dist. Lexis 11214 (M.D. Pa. Feb. 13, 2009) (dismissing
plaintiff's lawsuit because he threw away an “old” laptop that might have contained
23 recoverable relevant e-mails, even though the plaintiff was having technical
24 problems). Indeed, Pringle’s own computer expert acknowledged that a hard drive
that had been requested in litigation should be preserved, even if it was not
25 functioning properly in the user’s computer, as data could nevertheless be
26 recovered. (Gallant Tr. 117:6-13.)
23
Pringle’s counsel and experts were fully aware of this possibility from the
27
beginning of the case. Mr. Gallant testified that when he was initially retained in the
28 summer of 2010, Pringle’s counsel asked him “if by simply setting the [computer]
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1

Pringle’s own computer experts acknowledge that computer files and CDs

2 can easily be back-dated by simply changing the computer’s clock before creating or
3 saving the file, which would explain the 1999 dates in Pringle’s NRG disc. (See
4 Dickstein Decl., Ex. Z, Frederiksen-Cross Tr. 55:7-22 (“By backdating the computer
5 date it’s possible to cause a file to be created or modified with a date that reflects
6 whatever – [t]he date is always dependent on the operating system date . . . There is
7 also specialized software that can be used to adjust almost any form of metadata.”);
8 id. at Tr. 95:15-96:1, 140:19-141:8; Dickstein Decl., Ex. Y, Gallant Tr. 204:239 205:2 (“Q. [T]he file creation dates that you could see, are those dates that could be
10 modified by somebody adjusting the clock on their computer? A. Theoretically,
11 yes.”); id. at 198-200, 215, 274-276.)
12

Evidence of such back-dating could be found on the hard drive of Pringle’s

13 computer. Pringle’s own computer expert testified that, had he been asked to
14 determine whether Pringle created the NRG file after “I Gotta Feeling” was

15 released, one thing he would want to examine would be Pringle’s computers from
16 2009 and 2010. (Gallant Tr. 27:23-29:7, 55:18-57:4, 221:17-222:11; Frederiksen17 Cross Tr. 39:9-20, 109:3-110:21.)24 There is no dispute that Pringle’s 2009 and
18 2010 computer hard drives were at least potentially relevant.25
19

While Pringle asserts that the hard drive he used in 2009 was replaced before

20 he claims to have learned of “I Gotta Feeling”, and that his 2011 hard drive
21
clock back could the files that had already been created be – reflect the change.”
22
(Dickstein Decl., Ex. Y, Gallant Tr. 54:1-11, 254:4-256:10.)
24
23
And during Mr. Gallant’s investigation as to whether Pringle’s NRG file could
24 have been back-dated, he was told on January 3, 2011 that “[l]inked files and
metadata entries on the system originally creating the CD are . . . obvious choices to
25 the [sic] consider” (Gallant Tr. 219:19-21) (emphasis added), which indicates that
26 Pringle’s computer systems would contain evidence of the NRG file’s true date.
25
Although Pringle claims that Defendants have produced no evidence that he
27 actually back-dated his NRG file (Pl.’s Opp. 22), that is because such evidence
28 would be on the computer hard drives that Pringle destroyed.
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1 allegedly contained no evidence of “I Gotta Feeling,”26,27 Pringle glaringly fails to
2 mention the hard drive he used in 2010. (Pl.’s Opp. 24.) Yet it was that 2010 hard
3 drive that was in use between February 2010 when Pringle claims to have first
4 learned of “I Gotta Feeling” and October 2010 when Pringle’s NRG file containing
5 “Take a Dive” (Dance Version) mysteriously first surfaced.
6

Pringle’s 2010 hard drive, which he disposed of in January 2011, contained

7 other relevant evidence as well. In 2010 Pringle downloaded “I Gotta Feeling” re8 mixes that had the guitar twang sequence in the clear (Dickstein Decl., Ex. E
9 (Pringle Tr. [Doc. 161-5] at 190:6-191:23)), which could further confirm that
10 Pringle copied from Defendants, rather than the other way around. (Geluso Decl.
11 [Doc. 162] at ¶ 15 n.8.)28 The information on Mr. Pringle’s 2010 hard drive was
12 thus, at the very least, potentially relevant. And Pringle “can hardly assert any
13 presumption of irrelevance as to the destroyed documents” because “the relevance
14 of destroyed documents cannot be clearly ascertained because the documents no
15 longer exist[.]” Leon v. IDX Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006).29
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Pringle asserts that “the only evidence before this Court is that the 2011 hard drive
did not contain a copy of ‘I Gotta Feeling’ [and thus] the 2011 hard drive was not
potentially relevant” (Pl.’s Opp. 24), but he does not identify what “evidence” he
refers to. In addition, this is essentially a recognition that his 2010 hard drive, which
did contain copies of “I Gotta Feeling” was at potentially relevant.
27
Pringle asserts, without support, that he gave a “copy of a hard drive used by
Pringle in 2011” to Mr. Gallant in August 2011 (Pl.’s Opp. 22), yet Mr. Gallant
testified that Mr. Pringle in fact gave him a DVD which could not have been a
forensic backup of Pringle’s entire hard drive. (Gallant Tr. 36:12-23, 182-184.)
28
Mr. Gallant acknowledged that “[a]ny time a file is downloaded, it lends the
possibility that remnant data exists on the computer that was used to download the
file.” (Gallant Tr. 241:2-14, 259:2-259:6)
29
When asked whether he examined Mr. Pringle’s hard drives for evidence of backdating, Mr. Gallant acknowledged “It’s hard to analyze something that you do not
have.” (Gallant Tr. 128:24-129:13.)
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1

C. Pringle’s Bad Faith Destruction of Critical Evidence Mandates
Dismissal of His Claim

2

Recognizing that he destroyed critical evidence while the lawsuit was

3

4 pending, Pringle argues that dispositive sanctions would nevertheless be
5 inappropriate. Pringle’s “argument” consists of only three lines of conclusory

6 assertions. (Pl.’s Opp. 25.) Not only is Pringle’s intentional spoliation an ample
7 basis for dismissal of his claim, it is the only sanction that will remedy the severe

8 prejudice to Defendants.
Pringle recognizes that dismissal is an appropriate sanction when potentially
9

10 relevant evidence is destroyed with “willfulness, fault or bad faith.” (Pl.’s Opp. 25.)
11 The Ninth Circuit has explained that “[w]illful spoliation occurs when a party has

12 clear notice of an obligation to preserve evidence and proceeds to intentionally
13 destroy evidence in spite of its obligation not to.” Leon v. IDX Sys. Corp., 2004 WL
14 5571412, at *4 (W.D. Wash. Sept. 30, 2004).
Given Defendants’ torrent of preservation demands, supra at 18-19, there is
15

16 no question that Pringle had clear notice that his computer hard drives were relevant
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17 to the litigation. It is hard to imagine how Defendants’ preservation notices could
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Pringle apparently intends to feign ignorance of Defendants’ repeated
preservation demands by claiming that those demands were never communicated to
him by counsel. (See Frederiksen-Cross Decl. [Doc. 189] ¶ 40) (“Based on my
conversation with Mr. Dickie, counsel for Mr. Pringle, Mr. Pringle had not been
advised of Defendants’ request to inspect his hard drive at the time he opened the
warranty claim [on August 1, 2011] and sent his hard disk to Western Digital for
repair or replacement.”) Not only is that argument troubling, given that counsel’s
failure take reasonable steps to preserve potentially relevant evidence is itself
sanctionable—see Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. Lexis 911,
*31 (S.D. Cal. Jan. 7, 2008) (“Attorneys must take responsibility for ensuring that
their clients conduct a comprehensive and appropriate document search.”); Zubulake
v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004) (counsel must “oversee
compliance with the litigation hold, monitoring the party’s efforts to retain and
produce relevant documents”); (Frederiksen-Cross Tr. 296:10-298:20) (“I do firmly
believe that [Pringle’s] counsel should have advised him on first contact to maintain
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1 have been any clearer. Defendants’ preservation demands came even earlier in the
2 litigation and with more frequency than in Leon where the Ninth Circuit affirmed
3 the imposition of terminating sanctions. Moreover, although Defendants had
4 requested inspection of Pringle’s entire drives, he disposed of those drives without
5 backing them up, including the temporary Internet files, program files and system
6 files, which is where evidence of his downloading of “I Gotta Feeling” and back7 dating of his NRG file would be found. (Dickstein Decl., Ex. E [Doc. 161-5]
8 Pringle Tr. 286; Frederiksen-Cross Tr. 41:15-42:2.)
9
Defendants have been severely prejudiced by Pringle’s destruction of his
10 computer hard drives, as it prevented Defendants from discovering evidence that
11 goes to the heart of their defenses. As discussed above, Pringle’s spoliation has

12 prevented Defendants from discovering evidence that would likely show that, rather
13 than Defendants having copied from Pringle as he claims, Pringle copied the guitar
14 twang sequence from the “I Gotta Feeling” guitar twang stem that was available on
15 Beatport.com and elsewhere, inserted portions of that guitar twang stem into “Take
16 a Dive” to create “Take a Dive” (Dance Version),31 and then used his computer to
17 create a back-dated NRG file to make it seem as though he created the Dance

18 Version before “I Gotta Feeling” was released. If Defendants were forced to go to
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and preserve everything that he had.”)—it is also legally unsupportable, as a
communication to counsel necessarily functions as a communication to the client.
See Irwin v. Dep'of Veterans Affairs, 498 U.S. 89, 92 (1990) (communication to
t
counsel is imputed to client, because to “read the term ‘receipt’ to mean only ‘actual
receipt by the claimant’ would render the practice of notification through counsel a
meaningless exercise”). To permit Pringle to argue otherwise would be to permit
any litigant to destroy evidence, fire his attorneys, and then avoid the consequences
of his actions by claiming ignorance.
31
Pringle has demonstrated the ease with which he is able to modify and insert the
guitar twang sequence into his own earlier recordings. (Pringle Decl. [Doc. 198] ¶
135) (stating that Pringle added the guitar twang sequence to another song that he
created in 1998 named “Faith”).
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1 trial on Pringle’s infringement claim without that evidence, they would effectively
2 be forced to fight with both hands tied behind their backs.
3 VI. Pringle’s Attempt to Exclude Certain of Defendants’ Declarants is a RedHerring and Lacks Merit
4
5

Defendants were not required to disclose declarants offered to impeach

6 Pringle’s claims. See Fed. R. Civ. P. 26(a)(1)(A)(i). Pringle’s brother’s declaration,
7 however, is offered (unsuccessfully) to support Pringle’s affirmative claim that

8 Defendants had access to his song. But Jeffrey Pringle was not included in Pringle’s
9 disclosures, and Pringle refused to provide his brother’s contact information during

10 his deposition. (Dickstein Decl., Ex. W, Ex. R, Pringle Tr. 94-96.) Jeffrey Pringle’
11 declaration must therefore be excluded. Fed. R. Civ. P. 37(c)(1).
12

In any event, Defendants’ declarants and their contact information was

13 disclosed during discovery, and thus there is no basis for exclusion. See Fed. R.
14 Civ. P. 26(e) Advisory Committee Notes (“[t]here is [] no obligation to provide

15 supplemental or corrective information that has been otherwise made known to the
16 parties in writing or during the discovery process); McKesson Info. Solutions, Inc. v.
17 Bridge Med., Inc., 434 F. Supp. 2d 810 (E.D. Cal. 2006). Not only was Jean18 Charles Carre the subject of extended testimony during David Guetta’s deposition,
19 but he was actually present at both Guetta and Frederic Riesterer’s depositions.
20 (Dickstein Decl., Ex. AA, Guetta Tr. 10, 20-21, 30-37.) Clark Warner of Beatport
21 was disclosed in documents produced in discovery (Dickstein Decl., Ex. D [Doc.
22 161-4]), as was Alain Etchart of Univers Sons (Dickstein Decl., Ex. X.). And any
23 failure to disclose Gary Roth of BMI and Thibaud Fouet of SACEM is harmless, as
24 Pringle now admits that he never registered “Take a Dive” (Dance Version) with
25 either of those performing rights organizations. (Pringle Decl. [198] ¶ 12.)
CONCLUSION
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27

For the above reasons, Defendants Shapiro Bernstein, Riesterer and Guetta

28 respectfully request that the Court grant their motion for summary judgment.
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1 Dated: January 9, 2012
2

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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