Bryan Pringle v. William Adams Jr et al

Filing 255

JOINDER filed by Defendants Cherry River Music Co, EMI April Music Inc, Stacy Ferguson, Jaime Gomez, Headphone Junkie Publishing LLC, Jeepney Music Inc, William Adams Jr, Allan Pineda, Tab Magnetic Publishing, Will.I.Am Music LLC joining in Reply (Motion related) 253 . (Attachments: # 1 Declaration of Justin Righettini, # 2 Exhibit 1-5 to Righettini Decl)(Righettini, Justin)

1 BRYAN CAVE LLP

Jonathan Pink, California Bar No. 179685

2 Justin M. Righettini, California Bar No. 245305

3161 Michelson Drive, Suite 1500

3 Irvine, California 92612-4414

Telephone: [phone]
[phone]
E-mail:
[e-mail]
[e-mail]
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4 Facsimile:

6 BRYAN CAVE LLP

Kara E. F. Cenar, (Pro Hac Vice)

7 Mariangela M. Seale, (Pro Hac Vice)

161 North Clark Street, Suite 4300

8 Chicago, IL 60601-3315

Telephone: [phone]

9 Facsimile: [phone]
Bryan Cave LLP
3161 Michelson Drive, Suite 1500
Irvine, California 92612-4414

E-mail:

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[e-mail]
[e-mail]

11 Attorneys for Defendants WILLIAM ADAMS; STACY FERGUSON; ALLAN

PINEDA; and JAIME GOMEZ, all individually and collectively as the music

12 group THE BLACK EYED PEAS; will.i.am music, llc; TAB MAGNETIC

PUBLISHING; CHERRY RIVER MUSIC CO.; HEADPHONE JUNKIE

13 PUBLISHING, LLC; JEEPNEY MUSIC, INC.; EMI APRIL MUSIC, INC.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

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16 BRYAN PRINGLE, an individual,

Plaintiff,

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v.

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19 WILLIAM ADAMS, JR.; STACY

FERGUSON; ALLAN PINEDA; and

20 JAIME GOMEZ, all individually and

collectively as the music group the

21 Black Eyed Peas; DAVID GUETTA;

FREDERICK RIESTERER; UMG

22 RECORDINGS, INC.; INTERSCOPE

RECORDS; EMI APRIL MUSIC,

23 INC.; HEADPHONE JUNKIE

PUBLISHING, LLC; WILL.I.AM.

24 MUSIC, LLC; JEEPNEY MUSIC,

INC.; TAB MAGNETIC
25 PUBLISHING; CHERRY RIVER
MUSIC CO.; SQUARE RIVOLI
26 PUBLISHING; RISTER EDITIONS;
and SHAPIRO, BERNSTEIN & CO.,
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Case No. SACV10-1656 JST (RZx)
Hon. Josephine Staton Tucker
Courtroom 10A
NOTICE OF JOINDER OF ADAMS
DEFENDANTS TO REPLY IN
SUPPORT OF MOTION FOR
SANCTIONS AGAINST PLAINTIFF
AND HIS COUNSEL PURSUANT
TO FED. R. CIV. P. 11 BY
DEFENDANTS SHAPIRO,
BERNSTEIN & CO, INC.,
FREDERIC RIESTERER AND
DAVID GUETTA
Date:
Time:
Dept.:

April 16, 2012
10:00 A.M.
10A

Complaint Filed:
Trial date:

October 28, 2010
August 7, 2012

Defendants.

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CH01DOCS187073.1

NOTICE OF JOINDER TO REPLY IN SUPPORT OF MOTION FOR SANCTIONS

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Bryan Cave LLP
3161 Michelson Drive, Suite 1500
Irvine, California 92612-4414

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TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF
RECORD:
PLEASE TAKE NOTICE THAT Defendants WILLIAM ADAMS;
STACY FERGUSON; ALLAN PINEDA; and JAIME GOMEZ, all individually and
collectively as the music group THE BLACK EYED PEAS; will.i.am music, llc;
TAB MAGNETIC PUBLISHING; CHERRY RIVER MUSIC CO.; HEADPHONE
JUNKIE PUBLISHING, LLC; JEEPNEY MUSIC, INC.; and EMI APRIL MUSIC,
INC. (“Adams Defendants”) have previously joined in the Motion for Sanctions
against Plaintiff and his Counsel Pursuant to Fed. R. Civ. P. 11 by Defendants
Shapiro, Bernstein & Co, Inc., Frederic Riesterer and David Guetta. The Adams
Defendants hereby also join in the reply brief submitted in support of that motion
because the same relevant circumstances underlying the motion apply to the Adams
Defendants, and the arguments made therein apply with equal force to the Adams
Defendants.

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16 Dated: April 2, 2012

BRYAN CAVE LLP

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By: /s/ Justin Righettini
Justin Righettini
Attorneys for Defendants
WILLIAM ADAMS; STACY FERGUSON;
ALLAN PINEDA; and JAIME GOMEZ, all
individually and collectively as the music
group THE BLACK EYED PEAS; will.i.am
music, llc; TAB MAGNETIC
PUBLISHING; CHERRY RIVER MUSIC
CO.; HEADPHONE JUNKIE
PUBLISHING, LLC; JEEPNEY MUSIC,
INC.; EMI APRIL MUSIC, INC.

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TABLE OF CONTENTS

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Page

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3 I.
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PLAINTIFF AND HIS ATTORNEYS DO NOT RESPOND TO MOST OF
WHAT IS CONTAINED IN THE ADAMS DEFENDANTS’ NOTICE OF
JOINDER .............................................................................................................................. 1

5 II.

SIMILARITY OF A PORTION OF THE WORKS IS NOT DISPUTED ........................... 4

6 III.

PRINGLE’S LAWYERS’ REFERENCE TO OTHER ALLEGATIONS OF
INFRINGEMENT BROUGHT AGAINST THE BLACK EYED PEAS IS
HOLLOW.............................................................................................................................. 8

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8 IV.

I GOTTA FEELING AND THE ORIGINAL VERSION OF TAKE A DIVE ARE
NOT SUBSTANTIALLY SIMILAR.................................................................................. 10

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V.
Bryan Cave LLP
3161 Michelson Drive, Suite 1500
Irvine, California 92612-4414

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PRINGLE’S ADDITIONAL DISCLOSURES BEYOND DISCOVERY CUTOFF
IS IMPROPER .................................................................................................................... 14

11 VI.

CONCLUSION ................................................................................................................... 14

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TABLE OF AUTHORITIES
Page

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Bryan Cave LLP
3161 Michelson Drive, Suite 1500
Irvine, California 92612-4414

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Cases

4 Anderson v. Stallone,
1989 WL 206431 (C.D. Cal. Apr. 25, 1989) ................................................................................. 5
5 Batts et al. v. Adams et al.,
CV 10-8123-JFW (RZx) (C.D. Cal. 2010) .......................................................................... 4, 9, 12
6
Burkhart v. Washington Metro. Area Transit Auth.,
112 F.3d 1207 (D.C. Cir. 1997)................................................................................................... 11
7
CFM Communications, LLC v. Mitts Telecasting Co.,
8
424 F. Supp. 2d 1229 (E.D. Cal. 2005) ....................................................................................... 11
9 Clinton v. Adams et al.,
CV 10-9476 ODW (PLAx) (C.D. Cal. 2010)................................................................................ 9
10 Coston v. Product Movers,
1990 WL 56516 (E.D. Pa., May 2, 1990).................................................................................... 12
11
Danjaq LLC v. Sony Corp.,
263 F.3d 942 (9th Cir. 2001) ......................................................................................................... 3
12
Eden v. Washington State Patrol,
13
2006 WL 2927703 (W.D. Wash. Oct. 11, 2006)......................................................................... 14
14 Ets-Hokin v. Skyy Spirits, Inc.,
225 F.3d 1068 (9th Cir. 2000) ........................................................................................................ 5
15 Feist Publications, Inc. v. Rural Telephone Service Co.,
499 U.S. 340 (1991)............................................................................................................... 12, 13
16
Frank Music Corp., v. MGM, Inc.,
772 F.2d 505 ((9th Cir. 1985)........................................................................................................ 3
17
Idema v. Dreamworks, Inc.,
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90 Fed. Appx. 496 (9th Cir. 2003)............................................................................................... 11
19 In re Girardi,
611 F.3d 1027 (9th Cir. 2010) ....................................................................................................... 4
20 Kouf v. Walt Disney Pictures & Television,
16 F.3d 1041 (9th Cir. 1994) ....................................................................................................... 11
21
Lamb’s Chapel v. Center Moriches Union Free School Dist.,
508 U.S. 384 (1993)..................................................................................................................... 14
22
Lamps Plus, Inc. v. Seattle Lighting Fixture Co.,
23
345 F.3d 1140 (9th Cir. 2003) ....................................................................................................... 8
24 Merchant Transaction Systems, Inc. v. Nelcela, Inc.,
2007 WL 2422052 (D. Ariz. Aug. 22, 2007)............................................................................... 12
25 Metcalf v. Bocho,
294 F.3d 1069 (9th Cir. 2002) ..................................................................................................... 12
26
Milton H. Greene Archives, Inc. v. Julien’s Auction House, LLC,
345 Fed. Appx. 244 (9th Cir. 2009)............................................................................................... 3
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Bryan Cave LLP
3161 Michelson Drive, Suite 1500
Irvine, California 92612-4414

1 Newton v. Diamond,
204 F. Supp. 1244 (C.D. Cal. 2002) ............................................................................................ 12
2 Onofrio v. Reznor,
208 F.3d 222, 2000 WL 206576 (9th Cir. Feb. 23, 2000) ........................................................... 13
3
Pickett v. Prince,
207 F.3d 402 (7th Cir. 2000) ......................................................................................................... 5
4
Pivot Point Int'l, Inc. v. Charlene Prods., Inc.,
5
932 F. Supp. 220 (N.D. Ill 1996)................................................................................................. 12
6 Quevedo v. Trans-Pacific Shipping, Inc.,
143 F.3d 1225 (9th Cir. 1998) ..................................................................................................... 14
7 Smith v. Ricks,
31 F.3d 1478 (9th Cir. 1994) ......................................................................................................... 4
8
Stillman v. Leo Burnett Co., Inc.,
720 F. Supp. 1353 (N.D. Ill. 1989).............................................................................................. 12
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Three Boys Music Corp. v. Bolton,
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212 F.3d 477 (9th Cir. 2000) ......................................................................................................... 6
11 U.S. v. Sinclair,
74 F.3d 753 (7th Cir. 1996) ......................................................................................................... 11
12 Webloyalty.com, Inc. v. Consumer Innovations, LLC,
2005 WL 468496 (D. Del. Feb. 17, 2005)................................................................................... 12
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Statutes
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17 U.S.C. § 103(b) ...................................................................................................................... 5, 13
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CAL. BUS. & PROF. CODE § 17200 et seq. ......................................................................................... 3
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Other Authorities
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Melville B. Nimmer & David Nimmer, NIMMER ON COPYRIGHT §13.03 [B][1][a] (2011)............ 11
18 PATRY ON COPYRIGHT § 9:39 ............................................................................................................ 8
19 PATRY ON COPYRIGHT § 9:42 (2012). ............................................................................................... 7
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Rules

21 Fed. R. Civ. P. 11 ..................................................................................................................... passim
Fed. R. Civ. P. 37(c)(1) ................................................................................................................... 14
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FED. R. EVID. 404 .............................................................................................................................. 9
23 Fed. R. Evid. 406............................................................................................................................... 9
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Additional Argument
I.

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OF WHAT IS CONTAINED IN THE ADAMS DEFENDANTS’

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NOTICE OF JOINDER

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Bryan Cave LLP
3161 Michelson Drive, Suite 1500
Irvine, California 92612-4414

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Plaintiff Bryan Pringle (“Pringle”) and his attorneys do not dispute most, if
not all of, the points that were specifically raised by the Adams Defendants in their
Notice of Joinder to the Guetta Defendants’ Rule 11 Motion. Normally, one would
expect the party opposing a motion to join issue and respond to the moving parties’
arguments, especially when they relate to whether the party and his attorneys had a
good faith basis to assert and maintain (for more than a year) certain allegations in
the operative complaint. This, Pringle and his attorneys have failed to do, thus
tacitly admitting that for several of the positions they advanced in this litigation,
they had no basis and continue to have no basis.

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PLAINTIFF AND HIS ATTORNEYS DO NOT RESPOND TO MOST

Factual Copying. In the Notice of Joinder, the Adams Defendants argued that
sanctions were appropriate, in part, because Pringle alleged that the members of The
Black Eyed Peas factually copied a portion (the vamping 8-bar chord progression
that Pringle has termed “the guitar twang sequence)1 of Take a Dive (Dance
Version). Pringle and his attorneys are fully aware that it was David Guetta and
Frederic Riesterer who wrote the instrumental portion of I Gotta Feeling and not
The Black Eyed Peas (or any of the remaining Adams Defendants), and as explained
repeatedly, The Black Eyed Peas contributed to the work by providing lyrics and
vocal melodies. In addition, Pringle and his attorneys are well aware that only the
instrumental portions of Take a Dive (Dance Version) and I Gotta Feeling are
relevant to this case and not the vocals in the latter work. Despite being given an

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This chord progression is represented harmonically in Roman numerals as |: I I I I |

26 IV IV vi vi| IV IV IV IV | IV IV IV IV |vi vi vi vi | vi vi vi vi | IV IV IV IV | IV IV

IV IV :|. This 8-bar chord progression is not contained in Pringle’s song, Faith,

27 though Pringle’s attorneys imply—but will not expressly say—is contained in that

work. See Opp. at 2-3. The Court can hear for itself that this 8-bar repeated chord

28 progression does not occur in Faith.

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opportunity, Pringle and his attorneys have adduced no evidence that any one of the
Adams Defendants composed the instrumental portion of I Gotta Feeling (as
opposed to David Guetta or Frederic Riesterer) much less that they factually copied
any work created by Pringle.

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3161 Michelson Drive, Suite 1500
Irvine, California 92612-4414

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As a Whole. Pringle and his attorneys also alleged that I Gotta Feeling, as a
whole, infringes Take a Dive (Dance Version).2 I Gotta Feeling includes lyrics and
concomitant vocal melodies) that Take a Dive (Dance Version) necessarily doesn’t
because it does not have any vocal parts whatsoever. Thus, it is abundantly clear
that even assuming infringement, a substantial—and quite possibly the most
memorable—portion of I Gotta Feeling cannot be infringing, and again, this is the
portion represents the creative contribution of The Black Eyed Peas. Despite this,
Pringle and his attorneys persist in claiming that the totality of I Gotta Feeling is
infringing. It is telling that none of the three musicologists that Pringle and his
attorneys hired ever discussed the lyrics and vocal melodies of I Gotta Feeling as an
aspect of infringement in their respective analyses. Again, the position asserted by
Pringle and his attorneys is baseless.

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Willfulness. Pringle and his attorneys also included allegations in the
pleadings accusing the Adams Defendants: (1) of committing multiple acts of
willful or intentional copyright infringement; (2) of being conspirators; (3) of
adopting a “pattern and practice” of copyright infringement and (4) creating music
in a way that constitutes “essentially the engaging in unfair business practices under
California law.” 3 In the Notice of Joinder, the Adams Defendants explained, and as
Pringle and his attorneys are well aware, that the Adams Defendants acquired the
instrumental portion of I Gotta Feeling from David Guetta and Frederic Riesterer

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First Amended Complaint for Copyright Infringement (“FAC”) [Dkt. No. 9-2],
dated Nov. 18, 2010, at ¶ 40.
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See FAC, at ¶¶ 47-48, 51, 53-55, 58, 60.
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3161 Michelson Drive, Suite 1500
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via written agreement, and that they did same under color of title. This defeats a
claim of willfulness. See Danjaq LLC v. Sony Corp., 263 F.3d 942, 959 (9th Cir.
2001); Frank Music Corp., v. MGM, Inc., 772 F.2d 505, 515 ((9th Cir. 1985);
Milton H. Greene Archives, Inc. v. Julien’s Auction House, LLC, 345 Fed. Appx.
244, 247 (9th Cir. 2009). Neither Pringle nor his attorneys provide a justification in
the Opposition for such heavy-handed accusations in light of this rudimentary
authority, much less adduce any evidence of a conspiracy or any violations of CAL.
BUS. & PROF. CODE § 17200 et seq. (if that is indeed the import of Paragraphs 53-54
of the FAC).

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Alleged correspondence with William Adams and “Access” to the Wrong
Party. Pringle claims that he mailed his music to William Adams c/o Interscope
Records. Of course, he has no documentary evidence of this, and when asked to
state the address where he sent the supposed materials, Pringle stated “on Bur- -Burbank Drive?” Pringle Depo. Tr. at 64:17-18. As pointed out in the Notice of
Joinder, Interscope Records is located on Colorado Boulevard in Santa Monica,
California. While Pringle’s lawyers responded that he (Pringle) should not be
sanctioned because he “identified the wrong address—Burbank Drive—for
materials sent a decade earlier” (Opp. at 10), they miss the point. First, Pringle
testified that this purported mailing occurred sometime in 2006 or 2007—i.e., two to
three years before the release of I Gotta Feeling—not a decade earlier from then or
even when Pringle was deposed in August of 2011. Pringle Depo. Tr. at 66 (“But
the specific one that I recollect was around 2006, 2007 time period.”).4

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Second, given the complete dearth of documentary evidence that Pringle has
to connect him or his works to any of the Defendants in this action, one would

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See Portions of Deposition Transcript of Bryan Pringle, attached as Exhibit 1 to the
Declaration of Justin Righettini Re Adams Defendants’ Joinder to Motion for
27 Sanctions Against Plaintiff and His Counsel Pursuant to Fed. R. Civ. P. 11 [Dkt. No.
2401-1], dated Mar. 1, 2012.
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3161 Michelson Drive, Suite 1500
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expect Pringle’s lawyers to have independently verified the accuracy of Pringle’s
story, which is indeed their obligation under Rule 11. See Smith v. Ricks, 31 F.3d
1478, 1488 (9th Cir. 1994); In re Girardi, 611 F.3d 1027, 1036 (9th Cir. 2010). A
30-second Internet search is all that is required to discover Interscope’s address and
verify whether Pringle’s “recollection” was reasonable or accurate.5 All of this is
for naught anyway as it was David Guetta and Frederic Riesterer who wrote the
instrumental portion of I Gotta Feeling, and thus, Pringle needs to establish that it
was they—and not William Adams or any of the Adams Defendants—had access to
Take a Dive (Dance Version).
II.

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SIMILARITY OF A PORTION OF THE WORKS IS NOT DISPUTED
Despite apparently disagreeing with their own client’s conclusion that

sampling by the Defendants was factual impossible, Pringle’s counsel spend pages
in the Opposition and supporting declarations stating that they had a good faith basis
for filing this lawsuit because a portion of the works at issue (the vamping 8-bar
chord progression) is identical in both works. They state that they relied on the
opinions of musicologists, played it for several lay persons (who apparently
confirmed the similarity of the chord progressions), and even used the popular
iPhone application, Shazam!6 Why Pringle’s attorneys spend so much time talking

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Notably, these same lawyers failed to vet their clients’ access theory in the other

20 music copyright case they brought against The Black Eyed Peas, i.e., Batts et al. v.

Adams et al., CV 10-8123-JFW (RZx) (C.D. Cal. 2010). When questioned during

21 deposition on the topic of access, Plaintiff Manfred Mohr also testified that he

mailed his song (which Judge Walter held was not infringed) to Interscope Records.

22 When asked where Interscope was, Mohr responded that it was in New York. See

Declaration of Justin Righettini Re Joinder of Adams Defendants to Reply in

23 Support of Motion for Sanctions Against Plaintiff and His Counsel Pursuant to Fed.

R. Civ. P. 11 (“Righettini Decl.”), ¶ 2, Exh. 1, Mohr Depo. Tr. at 118:24-119:01

24 (“Q. Where is Interscope located? A. It's in New York City in Manhattan.”)
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At Paragraph 6 of his Declaration, Pringle’s attorney, Mr. Hampton, states that he

25 used the iPhone application, Shazam, to test whether Take a Dive (Dance Version)

and I Gotta Feeling were substantially similar, and when he played a recording of

26 Take a Dive (Dance Version) before the microphone in his iPhone, the application

returned with I Gotta Feeling as a result. Declaration of George L. Hampton in

27 Opposition to Defendants’ Motion for Sanctions Against Plaintiff and His Counsel

Pursuant to Fed. R. Civ. P. 11 [Dkt. No. 249-3] (“Hampton Decl.”), dated Mar. 26,

28 2012, at ¶ 7. Not that such an exercise has ever been approved by a Court as
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about this is unclear given that nobody disputes that a portion of the works is
identical. The Defendants agree that copying occurred; the only departure is that
they believe that Pringle copied them. The Adams Defendants do not find fault in
Pringle’s attorneys’ analysis and investigation as to the similarity of the 8-bar
vamping chord progression shared by I Gotta Feeling and Take a Dive (Dance
Version), but find fault with the investigation they conducted with respect to: (1)
Pringle’s authorship of the 8-bar vamping chord progression in Take a Dive (Dance
Version) and his ownership of the copyright in that work7 and (2) whether any of the
Defendants in this action had access to Take a Dive (Dance Version), the only work
that matters for purposes of Pringle’s copying claim.

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As to the first element, all that Pringle has produced as evidence is a disc
containing a .nrg image file (supposedly representing a recording of Take a Dive

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14 scientifically valid in a music copyright infringement action, but Mr. Hampton’s

findings merely confirm what is not in dispute: that copying occurred. Mr.

15 Hampton’s exercise does nothing to prove that it was Frederic Riesterer or David

Guetta who copied the vamping chord progression at issue here, as opposed to Mr.

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Pringle’s attorneys continually refer to Pringle’s copyright registration certificate
with respect to the original version of Take a Dive as evidence of his purported
ownership of a valid claim to copyright in Take a Dive (Dance Version). See, e.g.,
Declaration of Colin C. Holly in Opposition to Defendants’ Motion for Sanctions
Against Plaintiff and His Counsel Pursuant to Fed. R. Civ. P. 11 [Dkt. No. 249-4]
(“Holly Decl.,”), dated Mar. 26, 2012, at ¶ 6; Hampton Decl., at ¶ 7. What they fail
to appreciate is that: (1) Defendants do not dispute Pringle’s ownership of the
original version of Take a Dive and that Take a Dive (Dance Version) is a derivative
work based thereon, and more importantly and (2) a derivative work and the original
work it is based on are two discrete works, each subject to discrete copyrights. EtsHokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1078-79 (9th Cir. 2000) (derivitave work
musb e based on a preexisting work that is itself copyrightable); 17 U.S.C. § 103(b).
Proving ownership of the original work does nothing, by itself, to prove ownership
over a derivative work based thereon, especially when, as here, the derivative work
was created by copying I Gotta Feeling, and would not be subject to copyright
protection anyway. See Pickett v. Prince, 207 F.3d 402, 406 (7th Cir. 2000) (creator
of unauthorized guitar shaped like copyright protectable symbol associated with the
musical artist Prince had no claim to copyright); Anderson v. Stallone, 1989 WL
206431, at *5-11 (C.D. Cal. Apr. 25, 1989) (holding that infringing derivative work
is not entitled to copyright protection, thus denying creator of unauthorized
treatment based on popular Rocky movie franchise any copyright protection or
ability to enjoy any rights associated with copyright ownership).
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(Dance Version) that replaced a prior disc that was filed with the Court previously
(in connection with Pringle’s TRO Application) and withdrawn as “incorrect.”8 The
creation date for the file cannot be confirmed due to Pringle’s disposal of his hard
drives, and Pringle’s own computer experts acknowledged the Pringle could have
backdated that file.9

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3161 Michelson Drive, Suite 1500
Irvine, California 92612-4414

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As to the second element, Pringle has no adduced no meaningful physical
evidence whatsoever that any of the Defendants ever came into contact with either
him or his works. Given that Take a Dive (Dance Version) has not been widely
disseminated, Pringle’s attorneys should have satisfied themselves that Pringle could
produce evidence that established a chain of events between his work and
Defendants’ supposed access thereto. See Three Boys Music Corp. v. Bolton, 212
F.3d 477, 482 (9th Cir. 2000). All Pringle has adduced is his own uncorroborated
testimony of what purportedly happened years ago, and as Mr. Greely identifies in
his declaration,10 the following two items:

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two barely legible receipts indicating that, in 2006, several pieces of

mail were sent to various zip codes (including those in New York County and Los
Angeles County) from what appears to be a post office in San Antonio, Texas.
Notably absent from the receipts is information concerning: (a) what precisely was
sent and whether it included a sound recording embodying Take a Dive (Dance
Version), (b) to whom the mailings were sent among the millions of residents and
entities found in the various zip codes appearing on the receipts, (c) whether the
mailings were received and opened by any of the intended recipients, and (d) the

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See Notice of Motion and Motion of Plaintiff Bryan Pringle for Preliminary

24 Injunction [Dkt. No. 73-1], dated Jan. 3, 2011, at p. 18-19 n. 4.
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See Defendants Response to Plaintiff’s Unauthorized Sur-Reply on Defendants’
Motion for Summary Judgment [Dkt. No. 245-1], dated Mar. 7, 2011, at pp. 1-2.
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Declaration of Ryan L. Greely in Opposition to Defendants’ Motion for Sanctions

27 Against Plaintiff and His Counsel Pursuant to Fed. R. Civ. P. 11 [Dkt. No. 249-6]
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(“Greely Decl.”), dated Mar. 26, 2012, at ¶¶ 27-28.
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identity of the sender (nothing on the receipt indicates that Pringle himself was the
sender or that the receipts reflect mailings that were sent on his behalf);11 and

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behalf of the Artists & Repertoire Department of Columbia Records (not a
defendant) that expresses a lack of interest in a “demo recording.” Notably absent
from the e-mail message is any indication that Take a Dive (Dance Version) was in
fact the “demo recording” contemplated by message. Also absent is the identity of
the recipient, including whether it was the Pringle or any other person.12

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an August 14, 2006 e-mail message that purports to have been sent on

The foregoing “evidence” is clearly insufficient to support a good faith belief
that any Defendant in this case had access to any of Pringle’s works. Discovery has

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closed and damningly, Pringle has adduced no other evidence of access,13 and as

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confirmed in the Declarations of Messrs. Gould and Greely,14 Pringle will simply

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invoke the Ninth Circuit’s Inverse Ratio Rule (“IRR”) and blurt out the words
“striking similarity” to meet his burden on access. What Pringle and his lawyers fail
to appreciate is that Pringle currently has nothing more than a disc containing an
electronic file that cannot be authenticated as evidence of his supposed creation and
ownership of Take a Dive (Dance Version). The IRR and any diminished proof of
access that it permits is irrelevant until Pringle first establishes his creation (anterior

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Righettini Decl., at ¶ 3, Exh. 2.

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Id., at ¶ 4, Exh. 3.

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As Professor Patry sharply notes: “A plaintiff's lack of evidence is not a neutral

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22 proposition, a sort of ‘well anything can happen, so maybe there was access’

situation. To the contrary; a plaintiff's inability to develop facts supporting its

23 burden is compelling evidence that it can't. Striking similarity is, has always been,

and always will be, the last refuge of scoundrels: failing at the liberal standard for

24 access, plaintiffs automatically claim striking similarity—not because the

similarities are striking (they rarely are), but as a legal ruse to get around meeting

25 the burden of proof via paid experts who are used to create a genuine issue of fact,

thereby avoiding summary judgment.” William F. Patry, PATRY ON COPYRIGHT §

26 9:42 (2012).
14

Declaration of Ira Gould in Opposition to Defendants’ Motion for Sanctions

27 Against Plaintiff and His Counsel Pursuant to Fed. R. Civ. P. 11 [Dkt. No. 249-5]
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(“Gould Decl.”), dated Mar. 26, 2012, at ¶ 3(c); Greely Decl., at ¶¶ 21, 29.
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to I Gotta Feeling) and ownership of the work he claims was infringed. See Lamps
Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1144 (9th Cir. 2003)
(“Ownership of the copyright is always a threshold question.”) (citation omitted).
III.

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OF INFRINGEMENT BROUGHT AGAINST THE BLACK EYED

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PEAS IS HOLLOW

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PRINGLE’S LAWYERS’ REFERENCE TO OTHER ALLEGATIONS

Messrs. Gould, Greely, and Dickie state that they had a good faith basis to
bring multiple suits for “intentional copyright infringement” against The Black Eyed
Peas (one of which they already lost) based on their research, including in court
dockets, and having found that individuals other than Pringle have accused The
Black Eyed Peas of copyright infringement.15 First, The Black Eyed Peas are a very
successful commercial musical group, and as such, it is no surprise that multiple
individuals would levy accusations of infringement, as has happened to several other
successful musical artists, and others in the film, television, and other creative
industries. As Professor Patry again cogently observes:

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Litigation in which striking similarity is the sole basis for alleged
liability is almost always brought on behalf of plaintiffs who are
living under serious delusions about both the merits of their work and
about famous people stealing from “the little guy.” It may not be an
exaggeration to say that every successful movie or musical
composition will result in the filing of a complaint by such a plaintiff.

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21 PATRY ON COPYRIGHT § 9:39. Notably, not one of Pringle’s lawyers can point to a
22 single instance in which any member of The Black Eyed Peas (or for that matter,
23 David Guetta and Frederic Riesterer) have been held liable for copyright
24 infringement. Simply put, an accusation of copyright infringement is just that: an
25 accusation. It does not mean that infringement occurred.
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Gould Decl., at ¶ 3(f); Greely Decl., at ¶¶ 19-20; Declaration of Dean A. Dickie in

27 Opposition to Defendants’ Motion for Sanctions Against Plaintiff and His Counsel
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Pursuant to Fed. R. Civ. P. 11 [Dkt. No. 249-1], dated Mar. 26, 2012, at ¶ 12.
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Second, even if Pringle’s lawyers searches for prior acts infringement were
somehow fruitful, they do not explain their leap in logic in how such occurrences
make it more likely than not that any member of The Black Eyed Peas infringed
here (especially given that they did not write the instrumental portion of I Gotta
Feeling), completely ignoring FED. R. EVID. 404 and its prohibition on propensity
character evidence due to its minimal relevance.16

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With respect to the reference by Messrs. Gould, Greely, and Dickie to Clinton
v. Adams et al., CV 10-9476 ODW (PLAx) (C.D. Cal. 2010) and forgery, they again
demonstrate their failure to appreciate the proverbial “rest of the story” and
certainly, the docket in that case. A defense motion for summary judgment is
currently pending,17 and no member of The Black Eyed Peas committed any act of
forgery. As is customary in the music industry, a third party, DMG Clearances (one
of the most widely used and reputable music clearance houses in the music
industry), was hired to handle the licensing of Mr. Clinton’s sound recording and
The Black Eyed Peas were not involved in any aspect of the drafting of the licensing
agreements that are at issue in that case.18 Mr. Clinton has already dismissed several
of the defendants in that case because he admitted that several of the parties he

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Pringle’s same attorneys tried to get around FED. R. EVID. 404 in the Batts case by

20 arguing that The Black Eyed Peas had a “habit” of infringing copyrights under Fed.

R. Evid. 406 when they moved to compel documents related to other accusations of

21 infringement against The Black Eyed Peas. See Batts et al. v. Adams et al., CV 10-

8123-JFW (RZx) (C.D. Cal. 2010), Joint Stipulation Re: Plaintiffs’ Motion to

22 Compel Production of Documents [Dkt. No. 173-14], dated Aug. 12, 2011, at pp. 5-

6). Judge Zarefsky, who was the magistrate in that case as he is here, of course,

23 rejected Pringle’s’s attorneys’ efforts there due to the fact that such documents were

irrelevant to a claim of copyright infringement. Righettini Decl. at ¶ 5, Exh. 4

24 (transcript of hearing before the Honorable Ralph Zarefesky re Plaintiffs’ Motion to
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Compel Production of Documents in the Batts case, at p. 8).

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See Clinton v. Adams et al., CV10-9476 (C.D. Cal. 2010), Memorandum of Points

26 and Authorities in Support of Defendants’ Motion for Partial Summary Judgment
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[Dkt. No. 76], dated Mar. 7, 2012.
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Id. at 3-4.
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named in the complaint never should have been sued.19 Pringle’s attorneys’
reference to this case is yet another example of their irresponsibility and ineptitude
at fact checking.
IV.

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DIVE ARE NOT SUBSTANTIALLY SIMILAR

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As an initial matter, it is preposterous that any of the Defendants in this action
have to respond to anything related to the original version of Take a Dive,
considering Pringle’s own pleadings. In Paragraph 30 of the FAC, Pringle states
that “[a]ny and all further references to the song ‘Take a Dive’ shall hereafter refer
to the derivative version”—i.e., Take a Dive (Dance Version). Pringle’s solitary
count for copyright infringement in the FAC comprises Paragraphs 61-69, and of
necessity based on Pringle’s own words, contemplates only Take a Dive (Dance
Version). Despite that, Pringle and his attorneys have persisted in claiming that the
original version of the work has been infringed and that their pleadings are
sufficient.

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I GOTTA FEELING AND THE ORIGINAL VERSION OF TAKE A

Notably, in neither Pringle’s Opposition to the subject motion, nor in any of
the accompanying attorney declarations, is there mention of whether there was a
pre-suit investigation as to whether the original version of Take a Dive and I Gotta
Feeling were substantially similar.20 This is unsurprising given that nobody can
seriously maintain that—putting aside the existence of Take a Dive (Dance

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Id. at 1.

Tellingly, even though Mr. Hampton apparently believes that the original Take a
Dive—which does not include the guitar twang sequence—was infringed by I Gotta
Feeling, Mr. Hampton does not bother to state whether he used Shazam to compare
the original Take a Dive with I Gotta Feeling. The undersigned writer did, and not
surprisingly, Shazam does not even recognize the original version of Take a Dive
(“Sorry, a match couldn’t be found for your music” is the exact language), much
less display I Gotta Feeling as a result. Righettini Decl., ¶ 7. If Shazam is
somehow sufficient to prove that Take a Dive (Dance Version) and I Gotta Feeling
are similar, it is also sufficient to prove that the original version of Take a Dive and I
Gotta Feeling are not similar.
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Version)—those two works share any similarities that are probative of copying.
None of the three musicologists that Pringle hired made the claim that the two works
are substantially similar (not that such would be proper),21 and one of them (Dr.
Alexander Norris) even acknowledged that the differences between those two works
outweighed any similarities they shared. See Norris Depo. Tr. at 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.”).22 This clearly detracts from a finding of substantial similarity.
See Kouf v. Walt Disney Pictures & Television, 16 F.3d 1041, 1045 (9th Cir. 1994)
(courts have found the evidence to fail the extrinsic test where there have been
substantial differences between the plaintiff’s and the defendant’s works); Idema v.
Dreamworks, Inc., 90 Fed. Appx. 496, 498 (9th Cir. 2003) (granting defense motion
for summary judgment in copyright action, in part, due to the extensive differences
between works at issue); Melville B. Nimmer & David Nimmer, NIMMER ON
COPYRIGHT §13.03 [B][1][a] (2011) (“If the points of dissimilarity not only exceed
the points of similarity, but indicate that the remaining points of similarity are,
within the context of plaintiff's work, of minimal importance, either quantitatively or
qualitatively, then no infringement results.”).

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In addition, Pringle and his attorneys attempt to mitigate Norris’s troubling
conclusion by pointing to another portion of his deposition testimony. There,

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Whether two works are substantially similar is the ultimate issue in a copyright

22 infringement action for violation of the reproduction right. Expert witnesses are not

permitted to testify as to ultimate issues because it is not helpful to the trier of fact.

23 See Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1213 (D.C.

Cir. 1997) (“Each courtroom comes equipped with a ‘legal expert,’ called a judge,

24 and it is his or her province alone to instruct the jury on the relevant legal

standards.”); U.S. v. Sinclair, 74 F.3d 753, 758 n. 1 (7th Cir. 1996) (FED. R. EVID.

25 702 and 704 “prohibit experts from offering opinions about legal issues that will

determine the outcome of a case.”); CFM Communications, LLC v. Mitts

26 Telecasting Co., 424 F. Supp. 2d 1229, 1238 (E.D. Cal. 2005) (expert’s opinions

concerning law as it applied to the facts of the case were “utterly unhelpful” to the

27 court.”).
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Righettini Decl., ¶ 6, Exh. 5.
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Pringle’s attorneys state that “although he (Dr. Norris) could not be sure,” Dr.
Noriss apparently concluded that it was possible that the combination of generic
elements in the original version of Take a Dive could “constitute a protectable
original work.”23 Plaintiffs further cite to Metcalf v. Bocho, 294 F.3d 1069 (9th Cir.
2002) as support for the proposition that generic elements automatically become
protectable when they are combined. First, and as explained to these same lawyers
before in the other case they filed against The Black Eyed Peas, a musicologist’s
role in a music copyright action speaks to the issue of factual copying and not as to
which, if any, elements of a work—whether considered individually or in the
aggregate—are protected by copyright law. Protectability is a question of law for
the Court to decide, not an expert witness. Newton v. Diamond, 204 F. Supp. 1244,
1253 (C.D. Cal. 2002), citing Feist Publications, Inc. v. Rural Telephone Service
Co., 499 U.S. 340, 348-51 (1991) ("The protectability of elements in a copyrighted
work is a question of law.").24

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Second, this very same “combination” argument was rejected out of hand by
Judge Walter in the Batts case in October of 2011,25 prior to the filing of both

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Opp. at 19.

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See also Pivot Point Int'l, Inc. v. Charlene Prods., Inc., 932 F. Supp. 220, 225

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19 (N.D. Ill 1996) (whether a work is "copyrightable is a question of law”); Coston v.

Product Movers, 1990 WL 56516, at *3 (E.D. Pa., May 2, 1990) ("The question of

20 which aspects of plaintiffs' work are protectible expression as opposed to

unprotectible idea is an issue of law."); Stillman v. Leo Burnett Co., Inc., 720 F.

21 Supp. 1353, 1360-61 (N.D. Ill. 1989)

("The extrinsic and intrinsic tests both involve findings of fact, but the issue of

22 protectibility/nonprotectibility is an issue of law. Thus, before a court may send a

copyright case to the jury, it must satisfy itself that, even assuming copying of an

23 idea and its expression, at least some of what the defendant copied falls into the area

of protectible expression."); Merchant Transaction Systems, Inc. v. Nelcela, Inc.,

24 2007 WL 2422052, at *9 (D. Ariz. Aug. 22, 2007) ("The issue of whether the

software is subject to copyright protection must be addressed by the Court.");

25 Webloyalty.com, Inc. v. Consumer Innovations, LLC, 2005 WL 468496, at *2 (D.

Del. Feb. 17, 2005) (holding that while a finding of copyright infringement may

26 involve questions of fact, the protectability of copyrighted material is a question of

law).
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See Batts et al. v. Adams et al., CV 10-8123-JFW (RZx) (C.D. Cal. 2010), Order
Granting Defendants’ Motion for Summary Judgment [Dkt. No. 251], dated Oct. 21,
28 2011, at pp. 7-8; see also Batts et al. v. Adams et al., CV 10-8123-JFW (RZx) (C.D.
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Pringle’s opposition to the Guetta Defendants’ Motion for Summary Judgment and
the current opposition. The argument fails here for the same reasons it failed before:
a combination of unprotected elements can only be protected in the form of a
compilation, and Pringle and his attorneys don’t articulate any specific and
protectable selection, coordination, and arrangement of non-protected elements that
exist in the original version of Take a Dive and I Gotta Feeling.26 This failure is
critical as Ninth Circuit (and Judge Walter) recognized in another music copyright
infringement case:

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Onofrio relies on the testimony of his expert, Dr. Erica Muhl, to show
such similarity. Although Dr. Muhl uses the appropriate legal phrases
throughout her report comparing the songs of Onofrio and Reznor, her
conclusions are not supported with fact or analysis. Her report
identifies and lists several unprotectable musical elements that she
found in both Onofrio's songs and the comparable songs by Reznor,
but she fails to explain how the arrangement or combination of those
unprotected elements in Onofrio's songs created an original,
protectable expression which was then copied by Reznor. Thus, the
district court did not err in finding that Onofrio failed to raise a
material issue of disputed fact concerning the similarity of the songs.

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Onofrio v. Reznor, 208 F.3d 222, 2000 WL 206576, at *1 (9th Cir. Feb. 23, 2000).
Pringle and his counsels’ persistence in claiming that the original version of Take a

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Cal. 2010), Plaintiffs’ Supplemental Opposition to Defendants’ Motion for

20 Summary Judgment [Dkt. No. 188], dated Sept. 6, 2011, at p. 22).
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The copyright in a compilation does not protect the constituent elements of the
work themselves but rather, only the selection, coordination, and arrangement of
those elements, assuming sufficient originality. Feist Publications, Inc. v. Rural.
Telephone Service Co., Inc., 499 U.S. 340, 347-51 (1991). Nor does the mere
amalgamation of several unprotectable elements somehow revive them from the
public domain as Pringle and his lawyers suggest. Id. at 345 (“Common sense tells
us that 100 uncopyrightable facts do not magically change their status when
gathered together in one place.”); see also id. at 359 (the copyright in a compilation
“has no effect one way or the other on the copyright or public domain status of the
preexisting material”); 17 U.S.C. § 103(b) (“The copyright in [a compilation] is
independent of, and does not affect or enlarge the scope, duration, ownership, or
subsistence of, any copyright protection in the preexisting material.”).

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Dive was infringed by I Gotta Feeling doesn’t bear even the most minimal level of
scrutiny, as any lay person can confirm by listening to those two works side by side.
V.

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CUTOFF IS IMPROPER

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PRINGLE’S ADDITIONAL DISCLOSURES BEYOND DISCOVERY

Finally, it bears mentioning that Pringle and his attorneys have again flouted
the rules (in addition to their multiple improper filings without leave of court), and
have submitted additional expert testimony by Dr. Alexander Stewart and Barbara
Federkisen-Cross well beyond the expert discovery cut-off. In addition, Pringle has
now apparently produced another fact witness (Michael Scott Brown), who, as was
the case with his brother, Jeffery Pringle, was never disclosed in the Initial
Disclosures, and makes his first appearance after the discovery cut-off. This
additional, late expert opinion and fact testimony is properly excluded. See Fed. R.
Civ. P. 37(c)(1); Quevedo v. Trans-Pacific Shipping, Inc., 143 F.3d 1225, 1258 (9th
Cir. 1998) (affirming district court’s exclusion of untimely expert report); Eden v.
Washington State Patrol, 2006 WL 2927703, at *1 (W.D. Wash. Oct. 11, 2006)
(excluding as untimely a witness produced by plaintiff after the discovery cut-off).
VI.

CONCLUSION
Despite Pringle and his lawyers’ overtures, the subject motion does nothing to

chill legitimate advocacy or the bringing of meritorious claims, neither of which
apply to this case. This motion is about seeking redress for a fraudulent and
objectively unreasonable copyright claim that has forced multiple defendants to
waste more than a year of their time and incur substantial fees and costs defending
what is nothing more than a seemingly non-ending sham—“[l]ike some ghoul in a
late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after
being repeatedly killed and buried.” Lamb’s Chapel v. Center Moriches Union Free
School Dist., 508 U.S. 384, 398 (1993) (Scalia, J. concurring). Quite literally, the
Defendants in this action have set forth a far more compelling case of copyright

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infringement as against Pringle than the converse. As such, not only is it finally
time to lay this matter to rest, Rule 11 sanctions should be levied to the remedy the
harm suffered by the Defendants and to serve as a deterrent to would be filers of
similarly baseless claims. The Adams Defendants join the Guetta Defendants in
their motion and respectfully submit that it be granted in its entirety.

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7 Dated: April 2, 2012

BRYAN CAVE LLP

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By: /s/ Justin Righettini
Justin Righettini
Attorneys for Defendants
WILLIAM ADAMS; STACY FERGUSON;
ALLAN PINEDA; and JAIME GOMEZ, all
individually and collectively as the music
group THE BLACK EYED PEAS; will.i.am
music, llc; TAB MAGNETIC
PUBLISHING; CHERRY RIVER MUSIC
CO.; HEADPHONE JUNKIE
PUBLISHING, LLC; JEEPNEY MUSIC,
INC.; EMI APRIL MUSIC, INC.

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