Bryan Pringle v. William Adams Jr et al

Filing 249

OPPOSITION to MOTION for Sanctions Rule 11 237 filed by Plaintiff Bryan Pringle. (Attachments: # 1 Declaration of Dean A. Dickie, # 2 Declaration of Kathleen E. Koppenhoefer, # 3 Declaration of George L. Hampton IV, # 4 Declaration of Colin C. Holley, # 5 Declaration of Ira Gould, # 6 Declaration of Ryan Greely, # 7 Declaration of Barbara Frederiksen-Cross, # 8 Declaration of Michael Scott Brown)(Holley, Colin)

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1 Dean A. Dickie (appearing Pro Hac Vice) Dickie@MillerCanfield.com 2 Kathleen E. Koppenhoefer (appearing Pro Hac Vice) Koppenhoefer@MillerCanfield.com 3 MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. 225 West Washington Street, Suite 2600 4 Chicago, IL 60606 Telephone: 312.460.4227 5 Facsimile: 312.460.4288 LLP HAMPTONHOLLEY 2101 East Coast Highway, Suite 260 Corona del Mar, California 92625 6 George L. Hampton IV (State Bar No. 144433) ghampton@hamptonholley.com 7 Colin C. Holley (State Bar No. 191999) cholley@hamptonholley.com 8 HAMPTONHOLLEY LLP 2101 East Coast Highway, Suite 260 9 Corona del Mar, California 92625 Telephone: 949.718.4550 10 Facsimile: 949.718.4580 11 Attorneys for Plaintiff BRYAN PRINGLE 12 13 UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA 15 SOUTHERN DIVISION ) ) ) Plaintiff, ) ) v. ) ) WILLIAM ADAMS, JR.; STACY ) FERGUSON; ALLAN PINEDA; and ) JAIME GOMEZ, all individually and collectively as the music group The Black ) ) Eyed Peas, et al., ) ) Defendants. ) 16 BRYAN PRINGLE, an individual, Case No. SACV 10-1656 JST(RZx) 17 DECLARATION OF GEORGE L. HAMPTON IV IN OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS AGAINST PLAINTIFF AND HIS COUNSEL PURSUANT TO FED. R. CIV. P. 11 18 19 20 21 22 23 24 25 26 27 28 DATE: April 16, 2012 TIME: 10:00 a.m. CTRM: 10A 1 DECLARATION OF GEORGE L. HAMPTON IV 2 I, GEORGE L. HAMPTON IV, declare as follows: 3 1. I am a partner of the law firm HamptonHolley LLP, and am one of the 4 attorneys of record for plaintiff Bryan Pringle (“Pringle”) in this action. If called as a 5 witness, I could and would competently testify to each of the facts set forth in this 6 declaration, as I know each to be true based upon my own personal knowledge or 7 based upon my review of the files and records maintained by HamptonHolley LLP in 8 the regular course of its representation of Pringle. 9 2. This Declaration is made in opposition to the motion of defendants 10 Shapiro Bernstein & Co., Inc., Frederic Riesterer and David Guetta (collectively, LLP HAMPTONHOLLEY 2101 East Coast Highway, Suite 260 Corona del Mar, California 92625 11 “Defendants”) for sanctions against Pringle and his counsel pursuant to Rule 11 of 12 the Federal Rules of Civil Procedure, in which defendants William Adams, Stacy 13 Ferguson, Allan Pineda and Jaime Gomez (individually and collectively as the music 14 group The Black Eyed Peas), and will.i.am music, llc, Tab Magnetic Publishing, 15 Cherry River Music Co., Headphone Junkie Publishing, LLC, Jeepney Music, Inc., 16 and EMI April Music, Inc., have joined. 17 3. HamptonHolley LLP is representing Pringle in this action as local 18 counsel, as part of a team of counsel that includes attorneys from the Chicago and 19 Detroit offices of Miller, Canfield, Paddock and Stone, P.L.C. (including lead 20 attorney Dean A. Dickie), and that previously included attorneys from the Chicago 21 firm The Gould Law Group. 22 4. The operative pleading in this action is Pringle’s First Amended 23 Complaint filed on November 19, 2010. Pringle’s team of attorneys filed the First 24 Amended Complaint after what I believe to have been a reasonable and competent 25 inquiry to determine that the claims are not legally or factually baseless, and I believe 26 Pringle continues to have objectively-reasonable legal and factual bases to pursue 27 this action. In addition to discussing with the other attorneys on Pringle’s team the 28 steps of inquiry they took and the evidence they reviewed, I personally took the 1 1 following steps of inquiry and reviewed the following evidence prior to the filing of 2 Pringle’s First Amended Complaint: 3 5. In October 2010, I listened to the Black Eyed Peas’ song “I Gotta 4 Feeling” and Pringle’s song “Take a Dive” (both the original version and the 5 “derivative” version with the guitar twang sequence). Apart from the lyrics, “I Gotta 6 Feeling” sounded to me to be virtually identical to the derivative version of “Take a 7 Dive” and similar to the original version of “Take a Dive.” 8 6. I have a software application on my iPhone called “Shazam” that uses 9 the phone’s built-in microphone to gather a brief sample of music being played. The 10 application compares the sample against a database of songs to try to find a match. If LLP HAMPTONHOLLEY 2101 East Coast Highway, Suite 260 Corona del Mar, California 92625 11 a match is found, information such as the artist, song title, and album are displayed. 12 In October 2010, I launched the Shazam application and played the derivative 13 version of “Take a Dive” near the phone’s microphone. In a matter of seconds, the 14 Shazam application displayed that the song matched the Black Eyed Peas’ song “I 15 Gotta Feeling.” That experiment further confirmed in my mind that the songs are 16 substantially similar, if not virtually identical. 17 7. In October 2010, I reviewed a copy of Pringle’s 1998 copyright 18 registration certificate for “Take a Dive,” which was attached as an exhibit to 19 Pringle’s complaint. That copyright registration certificate strongly suggested to me 20 that Pringle had valid ownership rights in and to the work. 21 8. In November 2010, prior to the filing of the First Amended Complaint, I 22 reviewed an email and report from expert musicologist Kevin Byrnes comparing “I 23 Gotta Feeling” to the derivative version of “Take a Dive.” Mr. Byrnes opined in the 24 report that the songs have substantial similarities in tempo, meter, key, song 25 structure, orchestration, and harmonic pattern, in addition to an identical guitar chord 26 sequence. 27 9. In November 2010, prior to the filing of the First Amended Complaint, I 28 also reviewed a report from another expert musicologist, Alexander Stewart, 2 1 comparing “I Gotta Feeling” to the derivative version of “Take a Dive.” Mr. Stewart 2 opined that the songs were substantially similar in every fundamental respect, 3 including melody or pitch sequence, rhythm and harmony, instrumentation, timbre 4 (tone color), tempo, key, accompaniment, style and genre, in addition to having an 5 identical guitar chord sequence. 6 10. In November 2010, prior to the filing of the First Amended Complaint, I 7 also reviewed a report from music engineering expert Mark Rubel, who opined that 8 the guitar twang sequence in “I Gotta Feeling” was sampled from the derivative 9 version of “Take a Dive.” 10 11. In November 2010, prior to the filing of the First Amended Complaint, I LLP HAMPTONHOLLEY 2101 East Coast Highway, Suite 260 Corona del Mar, California 92625 11 also reviewed a declaration from computer forensics expert David Gallant who 12 opined that Pringle created the guitar twang sequence in the derivative version of 13 “Take a Dive” no later than 1999. 14 12. In November 2010, prior to the filing of the First Amended Complaint, I 15 also reviewed a declaration of Pringle in which he stated under penalty of perjury 16 that he had created and distributed derivative versions of “Take a Dive” from which 17 isolation and sampling of the guitar twang sequence was possible. Pringle also stated 18 under penalty of perjury in the declaration that from 1999 to 2008, he regularly 19 submitted demo CDs of his original music, including the derivative version of “Take 20 a Dive,” to defendants UMG, Interscope and EMI and other major record labels, 21 internet music websites, TAXI (an independent Artist and Repertoire (“A&R”) 22 company), talent scouts, artist managers, production studios (including film, 23 television and music), famous songwriters, radio stations, booking agents, national 24 and international music contests, nightclubs and publishing companies, and that he 25 had also advertised his music on the internet via multiple music websites and played 26 his music internationally via radio and internet. 27 13. I have also reviewed a declaration of Pringle’s brother, Jeff Pringle, in 28 which he stated under penalty of perjury that while working as a DJ and radio show 3 1 host in Europe and Canada from 1993 to 2002, he frequently broadcasted Pringle’s 2 original music, including the derivative version of “Take a Dive,” on the radio and 3 internet, and distributed it widely, including to people in the music industry. 4 14. I have also reviewed the evidence submitted in opposition to 5 defendants’ motion for summary judgment in this action, which I believe supports a 6 reasonable finding that Pringle’s claim is meritorious, not legally or factually 7 baseless. 8 I declare under penalty of perjury under the laws of the United States of 9 America that the foregoing is true and correct. Executed on this 26th day of March, 10 2012, at Corona del Mar, California. LLP HAMPTONHOLLEY 2101 East Coast Highway, Suite 260 Corona del Mar, California 92625 11 12 GEORGE L. HAMPTON IV 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 2 3 4 5 6 CERTIFICATE OF SERVICE On March 26, 2012, I electronically filed the foregoing DECLARATION OF GEORGE L. HAMPTON IV IN OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS AGAINST PLAINTIFF AND HIS COUNSEL PURSUANT TO FED. R. CIV. P. 11 using the CM/ECF system which will send notification of such filing to the following registered CM/ECF Users: 7 Barry I. Slotnick 8 Donald A. Miller Tal Efriam Dickstein 9 Linda M. Burrow 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 bslotnick@loeb.com dmiller@loeb.com, vmanssourian@loeb.com tdickstein@loeb.com wilson@caldwell-leslie.com, burrow@caldwell-leslie.com, popescu@caldwell-leslie.com, robinson@caldwell-leslie.com Ryan Christopher Williams williamsr@millercanfield.com Kara E. F. Cenar kara.cenar@bryancave.com Robert C. Levels levels@millercanfield.com Kathleen E. Koppenhoefer koppenhoefer@millercanfield.com Rachel Aleeza Rappaport rrappaport@loeb.com Jonathan S. Pink jonathan.pink@bryancave.com, elaine.hellwig@bryancave.com Dean A. Dickie dickie@millercanfield.com, smithkaa@millercanfield.com, deuel@millercanfield.com, christensen@millercanfield.com, seaton@millercanfield.com Edwin F. McPherson emcpherson@mcphersonrane.com, astephan@mcphersonrane.com Joseph G. Vernon vernon@millercanfield.com James W. McConkey mcconkey@millercanfield.com Justin Michael Righettini justin.righettini@bryancave.com, elaine.hellwig@bryancave.com Tracy B. Rane trane@mcphersonrane.com Thomas D. Nolan tnolan@loeb.com 1 I am unaware of any attorneys of record in this action who are not registered 2 for the CM/ECF system or who did not consent to electronic service. 3 I certify under penalty of perjury under the laws of the United States of 4 America that the foregoing statements are true and correct. 5 Dated: March 26, 2012 6 /s/Colin C. Holley George L. Hampton IV (State Bar No. 144433) Colin C. Holley (State Bar No. 191999) HAMPTONHOLLEY LLP 2101 East Coast Highway, Suite 260 Corona del Mar, California 92625 Telephone: 949.718.4550 Facsimile: 949.718.4580 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ND: 4833-3883-8536, v. 1

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