Bryan Pringle v. William Adams Jr et al

Filing 80

REPLY IN SUPPORT OF MOTION to Dismiss Case 53 filed by Defendants David Guetta, Rister Editions, Shapiro Bernstein and Co. (Miller, Donald)

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DONALD A. MILLER (SBN 228753)
[e-mail]
BARRY I. SLOTNICK (Pro Hac Vice)
[e-mail]
TAL E. DICKSTEIN (Pro Hac Vice)
[e-mail]
LOEB & LOEB LLP
10100 Santa Monica Boulevard, Suite 2200
Los Angeles, California 90067-4120
Telephone: [phone]
Facsimile: 310-282-2200
Attorneys for Defendants SHAPIRO,
BERNSTEIN & CO., INC. (incorrectly
sued as Shapiro, Bernstein & Co.);
RISTER EDITIONS and DAVID
GUETTA

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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BRYAN PRINGLE, an individual,

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Plaintiff,

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v.

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

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Defendants.

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Case No. SACV 10-1656 JST(RZx)
Hon. Josephine Staton Tucker
Courtroom 10A
REPLY MEMORANDUM OF
POINTS AND AUTHORITIES IN
FURTHER SUPPORT OF
DEFENDANTS SHAPIRO,
BERNSTEIN & CO., INC.’S,
RISTER EDITIONS’ AND DAVID
GUETTA’S MOTION TO DISMISS
THE FIRST AMENDED
COMPLAINT
Date: January 24, 2011
Time: 10:00 A.M.
Dept.: 10A
Complaint Filed: October 28, 2010
Trial Date: Not Assigned

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REPLY MEMORANDUM OF POINTS AND
AUTHORITIES IN FURTHER SUPPORT OF
MOTION TO DISMISS

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MEMORANDUM OF POINTS AND AUTHORITIES

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Defendants Shapiro Bernstein & Co., Inc. (“Shapiro Bernstein”), David

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Guetta,1 and Rister Editions (collectively “Defendants”) respectfully submit this

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Reply Memorandum of Points and Authorities in Further Support of their Motion to

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Dismiss the First Amended Complaint (“FAC”) under Rule 12(b)(6) of the Federal

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Rules of Civil Procedure, and to Dismiss the FAC as against Rister Editions under

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Rule 12(b)(5) of the Federal Rules of Civil Procedure.2

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I.

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PLAINTIFF’S VAGUE AND UNSUPPORTED ALLEGATIONS OF
BARE CORPORATE RECEIPT ARE INSUFFICIENT AS A MATTER
OF LAW

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As Defendants established in their opening brief, access to the plaintiff’s

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work is an essential element of a copyright infringement claim, which must be pled

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in order to survive a motion to dismiss. See Zella v. E.W. Scrips Co., 529 F. Supp.

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2d 1124, 1132-33 (C.D. Cal. 2007) (“The second prong [of an infringement claim]

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requires Plaintiffs to allege that ‘the infringer had access to plaintiff’s copyrighted

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work[.]’”) (quoting Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir.

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2002)) (emphasis added). To adequately plead access, an infringement plaintiff

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must allege facts that give rise to a “reasonable possibility,” not merely “bare

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possibility,” that the defendant viewed, and therefore could have copied, the

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Square Rivoli Publishing is not a proper party to this action because it is no longer
affiliated with David Guetta and no longer administers compositions he authored,
including “I Gotta Feeling.”
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This Motion is made without waiver, and with express reservation, of all defenses
and objections as to service of process, and/or the sufficiency thereof, on Rister
Editions. Moreover, Plaintiff has not served defendant Frederic Riesterer, either
personally or through any other defendant, none of whom are authorized to accept
service on his behalf.

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REPLY MEMORANDUM OF POINTS AND
AUTHORITIES IN FURTHER SUPPORT OF
MOTION TO DISMISS

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plaintiff’s work. Meta-Films Assocs., Inc. v. MCA, Inc., 586 F. Supp. 1346, 1355

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(C.D. Cal. 1984).
Courts in this Circuit and elsewhere have therefore held that unsolicited

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submissions to a large corporate defendant—without identifying the individual to

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whom the work was sent, when it was sent, or how the work was shared with the

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alleged infringer—are insufficient as a matter of law to establish access, and have

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thus rejected the ‘bare corporate receipt’ doctrine. See, e.g., Merrill v. Paramount

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Pictures Corp., No. CV 05-1150 SVW (MANx), 2005 WL 3955653, at *7 (C.D.

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Cal. Dec. 19, 2005); Meta-Film Assocs., Inc., 586 F. Supp. at 1357-58; Jorgensen v.

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Epic/Sony Records, 351 F.3d 46, 51-52 (2d Cir. 2003); Ferguson v. Nat’l Broad.

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Co., 584 F.2d 111, 113 (5th Cir. 1978).
Tellingly, Plaintiff does not dispute that the allegations in his First Amended

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Complaint amount to nothing more than bare corporate receipt, or that that theory is

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insufficient as a matter of law to establish access.3 Instead, Plaintiff attempts to

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distinguish the cases cited above on procedural grounds. But even though these

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cases were decided on summary judgment, they nevertheless mandate dismissal of

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Plaintiff’s claim.4 This is because, in order to survive a motion to dismiss, a

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Moreover, Plaintiff does not dispute that he offers absolutely no allegations as to
how Defendants Shapiro Bernstein, Rister Editions, Frederic Reisterer or David
Guetta supposedly had access to Plaintiff’s work. Plaintiff’s infringement claim
against these Defendants should be dismissed for this reason alone.
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Plaintiff also fails to distinguish Defendants’ cases where infringement claims
were dismissed for failure to adequately allege access. For example, in Feldman v.
Twentieth Century Fox Film Corp., 723 F. Supp. 2d 357, 365 (D. Mass. 2010), the
plaintiff alleged, as Plaintiff does here, that the defendants may have obtained access
to her work through her appearance on the radio or from her website. The court
nevertheless concluded that these allegations were “not enough to create more than a
‘bare possibility’ of access” and dismissed plaintiff’s infringement claim. Similarly,
in Martinez v. McGraw, No. 3:08-0738, 2010 WL 1493846, at *5 (M.D. Tenn. Apr.
14, 2010) the court dismissed plaintiff’s claims where he “d[id] not allege any facts
regarding how his song . . . got into the hands of Ms. Clark’s personnel and
songwriters or even that his song was played in hearing range of Ms. Clark’s

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plaintiff must allege facts, which, if true, would entitle him to relief under the

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substantive law. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007)

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(“[W]hen the allegations in a complaint, however true, could not raise a claim of

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entitlement to relief, ‘this basic deficiency should . . . be exposed at the point of

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minimum expenditure of time and money by the parties and the court.’”) (quoting 5

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Wright & Miller § 1216, at 233-234); Johnson v. Riverside Healthcare Sys., LP, 534

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F.3d 1116, 1122 (9th Cir. 2008) (“At the motion to dismiss stage, [the plaintiff] need

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not support his allegations with evidence, but his complaint must allege sufficient

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facts to state the elements of [his] claim.”) (citing Twombly, 127 S.Ct. at 1974); see

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also Dura Pharmaceuticals, Inc. v. Bruodo, 544 U.S. 336, 346 (2005) (“Our holding

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about plaintiffs’ need to prove proximate causation and economic loss leads us also

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to conclude that the plaintiffs’ complaint here failed adequately to allege these

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requirements.”) (emphasis in original). Indeed, the Supreme Court in Twombly held

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that a complaint cannot survive a motion to dismiss where it merely “left open the

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possibility that a plaintiff might later establish some ‘set of [undisclosed] facts’ to

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support recovery.” 550 U.S. at 561.

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Plaintiff utterly fails to meet this standard. Even taking Plaintiff’s non-

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speculative allegations as true – i.e., that he sent unsolicited copies of the derivative

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version of “Take a Dive” to unspecified individuals at Interscope, EMI and UMG

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during unspecified times over a 10-year time period – Plaintiff would still not be

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entitled to any relief because such unsolicited submissions to large corporate

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defendants are insufficient as a matter of law to establish that the alleged infringer

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had access to the plaintiff’s work. See Merrill, 2005 WL 3955653, at *7; Meta-Film

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personnel and songwriters or that Ms. Clark’s personnel and songwriters had any
contact with Plaintiff or Plaintiff’s Collection.” Id. Here too, Plaintiff fails to offer
any facts showing how his song got into the hands of, or was heard by, the coauthors of “I Gotta Feeling”, Frederic Riesterer and David Guetta. Plaintiff’s
infringement claim should therefore be dismissed.

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Assocs., Inc., 586 F. Supp. at 1357-58; Jorgensen, 351 F.3d at 51-52; Ferguson, 585

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F.2d at 113.5
Indeed, the bare corporate receipt doctrine has been rejected precisely to

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“dismiss what the courts view as a specious ‘strike suit,’ notwithstanding that

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plaintiff may have managed to tender his work to a branch of the defendant

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corporation[.]” 4 Nimmer on Copyright § 13.02[A], at 13-18. This policy is directly

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applicable here, because Plaintiff seeks a substantial damage award and an

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injunction based on nothing more than his undocumented and self-proclaimed

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unsolicited submissions to unnamed individuals at UMG, Interscope and EMI.

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Indeed, Plaintiff’s pleading is completely bereft of any allegations as to how the co-

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authors Frederic Reisterer and David Guetta, or the music publishers Shapiro

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Bernstein and Rister Editions, ever obtained access to Plaintiff’s work. If the Court

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were to allow Plaintiff’s lawsuit to proceed, it would thereby encourage

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After Defendants pointed out in their moving papers that David Guetta and
Frederic Riesterer independently created the musical bed of “I Gotta Feeling” in
France, Plaintiff now suddenly asserts on his preliminary injunction motion that he
traveled to France in March 1999 and distributed CDs containing the derivative
version of “Take a Dive” to “all major music labels in France, as well as French
independent music labels, publishing companies, DJ’s, nightclubs, songwriters and
radio stations” including “EMI and several music labels which are now owned by
UMG” and that Plaintiff’s brother had the song “played on the radio in several
European countries[.]” (Pringle Decl., dated Jan. 3, 2011, ¶ 8.) These newfound
assertions are no help to Plaintiff. First, they are outside the four corners of his
complaint and therefore cannot be considered on a motion to dismiss. See Alunan v.
Yolo County, No. Civ. S-10-356 FCD, 2010 WL 4157146, at *1 (E.D. Cal. Oct. 19,
2010) (refusing to consider additional facts proffered by plaintiff via declaration,
and stating “for purposes of a Rule 12(b)(6) motion to dismiss, the court may only
consider the factual information in plaintiff's first amended complaint and
information that has been judicially noticed”). Second, even if these assertions
could be considered, like his earlier allegations, they do not identify any individual
to whom Plaintiff delivered his song, when it was delivered, or how the song was
supposedly given to Guetta or Reisterer, and therefore amount to nothing more than
bare corporate receipt, which is insufficient as a matter of law to establish access.

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infringement claims by countless unknown artists who have submitted unsolicited

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songs to large record companies—even where they cannot show that the alleged

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infringer ever actually heard their work—in the hopes that the defendant will settle

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in order to avoid litigation and discovery costs. Because Plaintiff’s allegations, even

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if presumed true, do not entitle him to relief, his claim should be dismissed.

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II.

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PLAINTIFF’S CONTENTION THAT CERTAIN DEFENDANTS
SAMPLED FOUR NOTES FROM HIS SONG DOES NOT EXCUSE
HIS FAILURE TO ALLEGE ACCESS
Recognizing that he does not and cannot allege any facts which would

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establish that Defendants had access to the derivative version of “Take a Dive”,

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Plaintiff argues that this failure should be excused because he asserts that certain

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defendants sampled a portion of his sound recording. In support of that proposition,

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Plaintiff relies solely on a case from the Sixth Circuit, Bridgeport Music v.

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Dimensions Films, 410 F.3d 792 (6th Cir. 2005), which departed from the widely-

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accepted substantial similarity test for copyright infringement, and instead adopted a

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per se rule for digital sampling of sound recordings. Id. at 798.

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In expanding the scope of sound recording copyrights, the Sixth Circuit,

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ironically, relied on sections of the Copyright Act which limit the scope of those

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rights. See id. at 799 (“‘The exclusive right of the owner of copyright in a sound

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recording under clause (1) of section 106 is limited to the right to duplicate the

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sound recording in the form of phonorecords or copies that directly or indirectly

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recapture the actual sounds fixed in the recording.’”) (quoting 17 U.S.C. § 114(b))

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(emphasis added); Id. at 800 (“the rights of sound recording copyright holders under

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clauses (1) and (2) of section 106 ‘do not extend to the making or duplication of

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another sound recording that consists entirely of an independent fixation of other

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sounds, even though such sounds imitate or simulate those in the copyrighted sound

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recording.’”) (quoting 17 U.S.C. § 114(b)) (first emphasis added). In reaching this

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conclusion, the court acknowledged that “there were no existing sound recording

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judicial precedents to follow[.]” Id. at 802.

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Not surprisingly, Bridgeport Music has been roundly criticized by courts and

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the leading commentator on copyright law, and has not been followed by any court

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in this Circuit. In his leading treatise, Professor Nimmer derides the Sixth Circuit’s

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decision in Bridgeport Music as “rest[ing] on a logical fallacy” and a

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“misapprehension of the statutory structure.” 4 Nimmer on Copyright §

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13.03[A][2][b], at 13-62. Nimmer explains that Bridgeport Music ignores both

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Congressional intent and Supreme Court jurisprudence requiring a showing of both

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copying and substantial similarity, and eschewing any per se rule with respect to

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sound recordings. See id. at 13-61 to 13-62. Similarly, the court in Saregama India,

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Ltd. v. Mosley, 687 F. Supp. 2d 1325, 1338-1341 (S.D. Fla. 2009) refused to follow

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Bridgeport Music as contrary to established precedent and unsupported by the

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statutory text. Bridgeport Music was incorrectly decided and should not be

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followed. As a result, Plaintiff cannot rely on any rule that, merely because he

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alleges digital sampling of his sound recording, he does not have to allege (and

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prove) both substantial similarity and copying, including that Defendants had access

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to his work.6 Because Plaintiff cannot adequately allege that any Defendants had

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access to his work, his claim should be dismissed.

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III.

PLAINTIFF CONCEDES THAT HE FAILED TO PROPERLY SERVE
DEFENDANT RISTER EDITIONS

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The Court should also note that the expert report of Paul Geluso, dated January 10,
2011, submitted in connection with Defendants’ opposition to Plaintiff’s Motion for
a Preliminary Injunction, demonstrates that it would have been technologically
impossible for Defendants to have sampled the four-note “guitar twang” sequence
that appears in the derivative version of “Take a Dive” which Plaintiff claims to
have distributed. (Declaration of Paul Geluso, dated January 10, 2011, at ¶¶ 7-12.)
Indeed, it is far more likely that Plaintiff copied from Defendant’s work, than visa
versa.

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Plaintiff does not dispute, and therefore concedes, that his purported service

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on Rister Editions through Shapiro Bernstein was improper.7 Plaintiff’s claim

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against Rister Editions must therefore be dismissed.

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CONCLUSION

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For all the foregoing reasons, Defendants respectfully ask that the Court

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dismiss Plaintiff’s FAC under Rule 12(b)(6), and dismiss the FAC as against Rister

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Editions under Rule 12(b)(5).

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Dated: January 10, 2011

LOEB & LOEB LLP

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By: /s/ Donald A. Miller
Donald A. Miller
Barry I. Slotnick
Tal E. Dickstein
Attorneys for Defendants
SHAPIRO, BERNSTEIN & CO., INC.
(incorrectly sued as Shapiro, Bernstein &
Co.); RISTER EDITIONS and DAVID
GUETTA

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Nor does Plaintiff dispute that he did not properly serve Square Rivoli Publishing,
or that he has not served Frederic Riesterer in any manner whatsoever.

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