Bryan Pringle v. William Adams Jr et al

Filing 95

MINUTES (IN CHAMBERS): ORDER by Judge Josephine Staton Tucker Denying Defendants' Motions to Dismiss Under Rules 12(b)(6), 8(a)(2), and 12(b)(5), Motion for a More Definite Statement Under Rule 12(3), and Motion to Strike Under Rule 12(f) 52 53 . (See Order for details) (db)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 10-1656-JST (RZx)
Title: Bryan Pringle v. William Adams Jr. et al.

Date: January 27, 2011

Present: Honorable JOSEPHINE STATON TUCKER, UNITED STATES DISTRICT JUDGE
Ellen Matheson
Deputy Clerk
ATTORNEYS PRESENT FOR PLAINTIFF:

Not Present

N/A
Court Reporter
ATTORNEYS PRESENT FOR DEFENDANT:

Not Present

PROCEEDINGS: (IN CHAMBERS) ORDER DENYING DEFENDANTS’
MOTIONS TO DISMISS UNDER RULES 12(b)(6),
8(a)(2), AND 12(b)(5), MOTION FOR A MORE
DEFINITIE STATEMENT UNDER RULE 12(e), AND
MOTION TO STRIKE UNDER RULE 12(f) (Docs. 52 &
53)
I. Introduction
On October 28, 2010, Plaintiff Bryan Pringle filed suit for copyright infringement
against William Adams, Stacy Ferguson, Allan Pineda, and Jaime Gomez (individually
and collectively as the music group The Black Eyed Peas), David Guetta, Frederick
Riesterer, UMG Recordings, Inc., Interscope Records, EMI April Music, Inc., Headphone
Junkie Publishing, LLC, Will.I.Am Music, LLC, Jeepney Music, Inc., Tab Magnetic
Publishing, Cherry River Music Co., Square Rivoli Publishing, Rister Editions, and
Shapiro Bernstein & Co (collectively “Defendants”).
On December 13, 2010, Defendants Adams, Ferguson, Pineda, Gomez, Tab
Magnetic, Headphone Junkie, Will.I.Am Music, Jeepney, Cherry River, and EMI moved
pursuant to Federal Rules of Civil Procedure 12(b)(6) and 8(a)(2) to dismiss the First
Amended Complaint, pursuant to Rule 12(e) to provide a more definite statement as to
certain paragraphs of the First Amended Complaint, and pursuant to 12(f) to strike certain
portions of the First Amended Complaint. (Adams et al. Mot., Doc. 52.) UMG and
Interscope joined the Motion. (Doc. 56.) That same day, Defendants Shapiro Bernstein,
Guetta, and Rister moved pursuant to Rules 12(b)(5) and 12(b)(6) to dismiss the First
Amended Complaint. (Shapiro et al. Mot., Doc. 53.) Defendants Adams, Ferguson,
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 10-1656-JST (RZx)
Title: Bryan Pringle v. William Adams Jr. et al.

Date: January 27, 2011

Pineda, Gomez, Tab Magnetic, Headphone Junkie, Will.I.Am Music, Jeepney, Cherry
River, and EMI joined Section II of that Motion. (Doc. 55.) Plaintiff opposed each
Motion, (Docs. 72 & 74,) and Defendants replied. (Docs. 80 & 86.)
Having read the papers and taken the matters under submission, the Court
DENIES Defendants’ Motions to Dismiss under Rules 12(b)(6), 8(a)(2), and 12(b)(5),
Motion for a More Definite Statement under Rule 12(e), and Motion to Strike under Rule
12(f).
II. Background
In 1998, Plaintiff Brian Pringle allegedly wrote and recorded a song entitled “Take
a Dive.” (First Amended Complaint “FAC,” Doc. 9, ¶ 27.) Pringle registered a
copyright claim with the U.S. Copyright Office for a compact disc (“CD”) entitled “Dead
Beat Club: 1998,” which allegedly included the original version of “Take a Dive” along
with seventeen other original songs, registration number SRu 387-433. (Id. ¶ 28.)
In 1999, Plaintiff allegedly created a derivative work of “Take a Dive,” which
consisted of removing the vocals in the original version and adding a repeating eight-bar
melody, using a “guitar twang” instrument, utilizing four notes – D4, C4, B3, and G3 –
in the following progression: D4-C4-B3-C4-B3-C4 in the key of G3 (“guitar twang
sequence”). (Id. ¶ 29.) Plaintiff registered the derivative version of “Take a Dive” with
the Copyright Office in November 2010. (Id. ¶ 29.)
From 1999 to 2008, Plaintiff allegedly submitted demo CDs, all of which
contained the derivative version of “Take a Dive,” to Defendants UMG, Interscope, and
EMI, as well as other major record labels, internet music websites, and various other
parties. (Id. ¶ 31.) During this period, Plaintiff allegedly received letters in response
from representatives of Interscope, UMG, and EMI declining to sign him as an artist or
purchase his music. (Id. ¶ 33.)
Plaintiff alleges that Defendants Adams, Ferguson, Pinead, Gomez (collectively
The Black Eyed Peas); Guetta, a songwriter and producer; and Riesterer, a songwriter
and producer, accessed one of the demo CDs that included the derivative version of
“Take a Dive” and then directly copied significant portions of the song when they wrote
and recorded the song “I Gotta Feeling.” (Id. ¶ 37.) Plaintiff further alleges that the
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 10-1656-JST (RZx)
Title: Bryan Pringle v. William Adams Jr. et al.

Date: January 27, 2011

remaining Defendants are either direct or vicarious infringers of the derivative version of
“Take a Dive” as they supported the making and/or selling and distributing of “I Gotta
Feeling.” (Id. ¶ 39.)
In October 28, 2010, Plaintiff filed suit against Defendants alleging a single claim
of copyright infringement. On November 19, 2010, Plaintiff filed a First Amended
Complaint. On December 13, Defendants filed two separate Motions to Dismiss the First
Amended Complaint pursuant to Rule 12(b)(6) (Adams et al. Mot. & Shapiro et al. Mot.),
a Motion to Dismiss the First Amended Complaint pursuant to Rule 8(a)(2) (Adams et al.
Mot.), a Motion for a More Definite Statement under Rule 12(e) (id.), a Motion to Strike
Certain Portions of the First Amended Complaint pursuant to Rule 12(f) (id.), and a
Motion to Dismiss as to Defendant Rister for Insufficient Service under Rule 12(b)(5)
(Shapiro et al. Mot.).
III.

Motions to Dismiss Under Rule 12(b)(6)

A. Legal Standard
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the claims asserted in the complaint. See Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949-50 (2009). Rule 12(b)(6) is read in conjunction with Federal Rule of Civil
Procedure Rule 8(a), which requires only a short and plain statement of the claim
showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). When evaluating a
Rule 12(b)(6) motion, the district court must accept all material allegations in the
complaint as true and construe them in the light most favorable to the non-moving party.
Moyo v. Gomez, 32 F.3d 1382, 1384 (9th Cir. 1994).
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must allege
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 556). To
be clear, the issue on a motion to dismiss for failure to state a claim “is not whether the
[claimant] will ultimately prevail, but whether the claimant is entitled to offer evidence to
support the claims” asserted. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir.
1997) (quoting Scheuer v. Rhodes, 416, U.S. 232, 236 (1974). However, “[a]lthough for
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 10-1656-JST (RZx)
Title: Bryan Pringle v. William Adams Jr. et al.

Date: January 27, 2011

the purposes of a motion to dismiss we must take all of the factual allegations in the
complaint as true, we ‘are not bound to accept as true a legal conclusion couched as a
factual allegation.’” Iqbal, 129 S. Ct. at 1949-50 (quoting Twombly, 550 U.S. at 555).
B. Discussion
To allege a claim for copyright infringement, a plaintiff must allege “(1)
ownership of a valid copyright, and (2) copying of constituent elements of the work that
are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991).
Defendants argue that Plaintiff has failed to satisfy either prong.
1. Ownership of a Valid Copyright
Defendants argue that Plaintiff lacks valid copyright ownership to base his
copyright infringement claim because he has failed to comply with 17 U.S.C. § 411
(Adams et al. Mot. at 6-10.) Under 17 U.S.C. § 411(a):
no civil action for infringement of the copyright in any United
States work shall be instituted until preregistration or registration
of the copyright claim has been made in accordance with this title.
In any case, however, where the deposit, application, and fee
required for registration have been delivered to the Copyright
Office in proper form and registration has been refused, the
applicant is entitled to institute a civil action for infringement if
notice thereof, with a copy of the complaint, is served on the
Register of Copyrights.
17 U.S.C. § 411(a). Defendants argue that Plaintiff has failed to comply with 17 U.S.C. §
411 because, first, he failed to register the derivative version of “Take a Dive” with the
United States Copyright Office before filing suit for copyright infringement; second,
Plaintiff’s November 15, 2010 copyright application for the derivative version was
insufficient because Plaintiff did not allege that he submitted a “bona fide” copy of the
song as required by 17 U.S.C. § 408(b); and, third, the copyright registration for “The
Dead Beat Club: 1998” CD attached to the First Amended Complaint as Exhibit “B” does
not fulfill the registration requirement of § 411(a) for the original version of “Take a
Dive” because the song’s title does not appear on certificate. (See id.)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 10-1656-JST (RZx)
Title: Bryan Pringle v. William Adams Jr. et al.

Date: January 27, 2011

As to Defendant’s first two points, Plaintiff alleges that he submitted a complete
application for the copyright registration for the derivative version of “Take a Dive” with
the Copyright Office prior to filing the First Amended Complaint. (FAC ¶ 29.)
“[R]eceipt by the Copyright Office of a complete application satisfies the registration
requirement of § 411(a).” Cosmetic Idea, Inc. v. IAC/Interactivecorp, 606 F.3d 612, 621
(9th Cir. 2010). Plaintiff further points out that the Copyright Office has, since the filing
of Defendants’ Motions to Dismiss, issued a Certificate of Registration for the derivative
version of “Take a Dive,” entitled “Take a Dive (Dance version),” a copy of which
Plaintiff provided in the context of his Motion for Preliminary Injunction. (Pl.’s Opp. to
Adams et al., Doc. 74, at 4; see Declaration of Bryan Pringle, Doc. 76, Exh. D.) The
Court takes judicial notice of the SR 659-360 Certificate of Registration. “As a general
rule, ‘a district court may not consider any material beyond the pleadings in ruling on a
Rule 12(b)(6) motion.’” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)
(quoting Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994)). The two exceptions to
that rule, however, are materials submitted as part of the complaint and matters of public
record. Id. Certificates of Registration from the U.S. Copyright Office are public
records. See White v. Marshall, 693 F. Supp. 2d 873, 884 (E.D. Wis. 2009) (“Certificates
of Registration from the U.S. Copyright Office are public records that the court may take
judicial notice of without converting a Rule 12(b)(6) motion to a motion for summary
judgment.”). The Certificate of Registration, registration number SR 659-360 with an
effective date of registration of November 15, 2010, lists the title of the work as “Take A
Dive (Dance Version),” the year of completion as 1999, the date of first publication as
December 1, 1999, and the author as Bryan Daniel Pringle. (Declaration of Bryan
Pringle, Exh. D.) Plaintiff has therefore satisfied § 411(a) as to the derivative version of
“Take a Dive.”
Furthermore, to the extent that Plaintiff rests his copyright infringement claim on
the original version of “Take a Dive,” Plaintiff satisfies the § 411(a) requirement for that
work as well. Plaintiff alleges that on April 29, 1998, he registered a copyright for the
CD entitled “Dead Beat Club: 1998,” registration number SRu-387-433, which included
the original version of “Take a Dive.” (FAC ¶ 28.) Plaintiff attached a copy of the
Certificate of Registration for the CD as Exhibit B to his First Amended Complaint.
Pursuant to 17 U.S.C. § 410(c), this serves as prima facie evidence to Plaintiff’s valid
copyright ownership over the original version. Cosmetic Idea, 606 F.3d at 619 (“[I]f a
copyright holder secures a registration certificate within five years after first publication,
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 10-1656-JST (RZx)
Title: Bryan Pringle v. William Adams Jr. et al.

Date: January 27, 2011

such certificate will constitute prima facie evidence of both the validity of the copyright
and the facts stated in the certificate.”). As to Defendants’ argument that “Take a Dive”
is not listed on the Certificate, “individual songs included in [a] collection . . . are
protected by the copyright of the collection as a whole.” Szabo v. Errisson, 68 F.3d 940,
944 (5th Cir. 1995); see Educ. Testing Servs. v. Katzman, 793 F.2d 533, 539 (3d Cir.
1986). Furthermore, “a copyright of a collection of unpublished works protects the
individual works that are copyrightable, regardless of whether they are individually listed
on the copyright certificate.” Szabo, 68 F.3d at 943; King Records, Inc. v. Bennett, 438 F.
Supp. 2d 812, 842 (M.D. Tenn. 2006) (“As sound recordings are copyrightable, the rule
from Szabo is applicable and individual sound recordings that are part of a collection are
protected by copyright, even if the certificate of registration only identifies the collection,
and not each sound recording comprising the collection.”); see Wihtol v. Wells, 231 F.2d
550, 553 (7th Cir. 1956) (“[T]he title [of a song], in itself, is not subject to copyright
protection.”)
Defendants argue, however, that Plaintiff’s newly-acquired Certificate of
Registration for the derivative version only covers the 2010 sound recording of the song –
not its musical composition or the 1999 sound recording – and because Plaintiff rests his
claim on the musical composition and the 1999 sound recording, Plaintiff has not
sufficiently alleged copyright ownership of the works at issue. (Adams et al. Reply, Doc.
86, at 4-6.) Defendants further argue that because Plaintiff obtained the Certificate of
Registration for the derivative version over ten years after the work was first published,
the Certificate lacks the presumption of prima facie evidence of valid copyright
ownership pursuant to 17 U.S.C. § 410(c). (Id. at 7.)
As to whether Plaintiff’s Certificate of Registration covers the original 1999 sound
recording of the derivative version, Plaintiff has sufficiently alleged that it does. Plaintiff
alleges that he “has registered the derivative version of ‘Take a Dive’ above with the U.S.
Copyright Office,” referencing the version he created in 1999. (FAC ¶ 29.) The SR 659360 Certificate of Registration also lists the year of completion and date of first
publication for the sound recording as 1999. (Declaration of Bryan Pringle, Exh. D.)
Moreover, the only authority Defendants provide for their argument is Kodadek v. MTV
Networks, Inc., 152 F.3d 1209, 1211 (9th Cir. 1998), which merely held, at summary
judgment, that “reconstructions” of original drawings made from memory were not “bona
fide copies” of original works. Id. at 1212. Considering the procedural and factual
distinctions in this case, Kodadek is inapposite.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 10-1656-JST (RZx)
Title: Bryan Pringle v. William Adams Jr. et al.

Date: January 27, 2011

As to whether Plaintiff’s Certificate of Registration evinces valid copyright
ownership over the derivative version of “Take a Dive,” because it was registered over
ten years after the song was first published, Defendants are correct that the Certificate
does not serve as prima facie evidence of a valid copyright. Under 17 U.S.C. § 410(c):
In any judicial proceedings the certificate of a registration made
before or within five years after first publication of the work shall
constitute prima facie evidence of the validity of the copyright
and of the facts stated in the certificate. The evidentiary weight
to be accorded the certificate of a registration made thereafter
shall be within the discretion of the court.
17 U.S.C. § 410(c) (emphasis added). The Court notes, however, that “[r]egistration is
not a prerequisite to a valid copyright . . . .” S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081,
1085 (9th Cir. 1989). “As a general rule, copyright vests initially in the author or authors
of a work” and “[c]opyright protection subsists from the moment the work is ‘fixed in
any tangible medium of expression.” Id. (citing 17 U.S.C. §§ 201(a), 102(a)). Thus,
regardless of whether Plaintiff’s Certificate of Registration serves as prima facie
evidence, Plaintiff can still sufficiently allege ownership over a valid copyright.
Here, Plaintiff alleges that in 1998, he wrote and recorded the song entitled “Take
a Dive.” (FAC ¶ 27.) He further alleges that “‘Take a Dive’ was and is comprised of
material that is wholly original, and thus entitled to protection as copyrightable material .
. . .” (Id.) Plaintiff alleges he registered a copyright, registration number SRu 387-433,
for a CD entitled “Dead Beat Club: 1998,” which allegedly included the original version
of “Take a Dive” along with seventeen other original songs. (Id. ¶ 28.; see id. Exh. B.)
Plaintiff alleges in 1999, he made a derivative work of “Take a Dive,” in which he added
the guitar twang sequence, and then registered it with the Copyright Office through the
SR 659-360 Certificate of Registration. (Id. ¶ 29.) In the face of these allegations,
Defendants have not provided any evidence attacking the elements of Plaintiff’s allegedly
valid copyright, such as ownership, copyrightable subject matter, and originality. Syntek
Semiconductor Co., Ltd. v. Microchip Technology, Inc., 307 F.3d 775, 781 (9th Cir.
2002). Taking Plaintiff’s allegations as true, the Court finds that Plaintiff has sufficiently
alleged that he is the owner of a valid copyright of the original and derivative version of
“Take a Dive.”
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 10-1656-JST (RZx)
Title: Bryan Pringle v. William Adams Jr. et al.

Date: January 27, 2011

2. Copying of Constituent Elements of the Work that are Original
Defendants argue that Plaintiff has failed to allege sufficiently that Defendants had
access to the derivative version of “Take a Dive” to commit copyright infringement.
(Adams et al. Mot. at 10-11; Shapiro et al. Mot. at 3-7.) Defendants assert that Plaintiff’s
allegations of Defendants’ “bare corporate receipt” of the work, i.e. Plaintiff’s
“generalized allegations of unsolicited submissions of unidentified numerous variations,
or of works not at issue, to a large corporate defendant,” are insufficient to state a claim
for infringement. (Id. at 11; Shapiro et al. Mot. at 5.)
Plaintiff asserts that whether he can ultimately establish access is a question for
the trier of fact and not an appropriate issue for the Court to address at the pleading stage.
(Pl.’s Opp. to Adams et al. at 5.; Pl.’s Opp. to Shapiro, Doc. 72, at 3.) Regardless,
Plaintiff argues that he has sufficiently alleged that Defendants directly sampled the
derivative version of “Take a Dive,” which would require Defendants to have physical
possession of it, and that Plaintiff repeatedly submitted the derivative version of “Take a
Dive” to Defendants Interscope, UMG, and EMI over the course of approximately ten
years. (Pl.’s Opp. to Adams et al. at 6-7; Pl.’s Opp. to Shapiro at 4-5.)
As a general matter, “[p]roof of copyright infringement is often highly
circumstantial, particularly in cases involving music.” Three Boys Music Corp. v. Bolton,
212 F.3d 477, 481 (9th Cir. 2000). “Absent direct evidence of copying, proof of
infringement involves fact-based showings that the defendant had ‘access’ to the
plaintiff’s work and that the two works are ‘substantially similar.’” Id. “To prove access,
a plaintiff must show a reasonable possibility, not merely a bare possibility, that an
alleged infringer had the chance to view the protected work.” Art Attacks Ink, LLC v.
MGA Entm’t, Inc., 581 F.3d 1138, 1143 (9th Cir. 2009). “Where there is no direct
evidence of access, circumstantial evidence can be used to prove access either by (1)
establishing a chain of events linking the plaintiff’s work and the defendant’s access, or
(2) showing that the plaintiff’s work has been widely disseminated.” Id. Furthermore,
“[a]bsent evidence of access, a ‘striking similarity’ between the works may give rise to a
permissible inference of copying.” Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir.
1987). Here, Plaintiff’s bases his infringement claim on allegations of “access” and
“substantial similarity.” (See FAC ¶¶ 31-43.)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 10-1656-JST (RZx)
Title: Bryan Pringle v. William Adams Jr. et al.

Date: January 27, 2011

As to access, Plaintiff alleges that “over the time period from around 1999 to
2008, Pringle had regularly submitted demo CDs, all of which contained ‘Take a Dive’
and various other songs, to Defendants UMG, Interscope and EMI.” 1 (Id. ¶ 31.)
Plaintiff alleges that over this period he “received numerous letters in response to his
music submissions,” which included “responses from multiple A&R representatives at
Interscope, UMG, and EMI, saying that while his music was of good quality, the labels
were not currently interested in signing him as an artist or purchasing any of his music.”
(Id. ¶ 33.) As Plaintiff alleges, “[t]hese letters demonstrate that Interscope, UMG, and
EMI received Pringle’s music, and implicitly acknowledges that his demo CDs, all of
which contained ‘Take a Dive,’ were listened to by these individuals.” (Id.) Plaintiff
further alleges that “Will.I.Am was an Artist and Repertoire (“A&R”) at Interscope” and,
as a result of this position, “had direct access to . . . Plaintiff’s song ‘Take a Dive,’ . . . .”
(Id. ¶¶ 34-35.) Plaintiff alleges that “the Black Eyed Peas, Guetta, and/or Riester then
decided to willfully and directly copy significant portions of the song when they wrote
and recorded ‘I Gotta Feeling.’” (Id. ¶ 37.) Plaintiff further alleges that “Defendants
Will.I.Am, Fergie, apl.de.ap, Taboo, Guetta, and Riesterer gained access to Plaintiff’s
copyrighted song ‘Take a Dive,’ and then subsequently sampled and copied additional,
substantial original elements of ‘Take a Dive,’ without Plaintiff’s permission, when they
wrote, recorded, performed and made derivative works of their song ‘I Gotta Feeling.’”
(Id. ¶ 62.)
As to substantial similarity, plaintiff alleges that “[a]s a result of the Black Eyed
Peas, Guetta and/or Riesterer having copied ‘Take a Dive,’ ‘I Gotta Feeling,’ as a whole,
is substantially similar to ‘Take a Dive’ and the guitar twang sequence is identical.” (Id.
¶ 40.) Plaintiff further alleges that “the sound recording of the guitar twang sequence
contained in the derivative version of ‘Take a Dive’ was directly sampled . . . by one or
more of the Black Eyed Peas, Guetta and/or Riesterer and placed into ‘I Gotta Feeling.’”
(Id. ¶ 41.) Plaintiff then lists twelve separate similarities, including concept, style, tempo,
and use of effects, between “I Gotta Feeling” and the derivative version of “Take a
Dive.” (Id. ¶ 43.)
Recognizing that cases such as these are “highly circumstantial” and that proof of
infringement requires “fact-based showings,” at the pleading stage the Court need only
determine whether Plaintiff has sufficiently alleged infringement, not whether it occurred
1

In paragraph 30 of his First Amended Complaint, Plaintiff states that “[a]ny and all references to the song ‘Take a
Dive’ shall hereafter refer to the derivative version, as set forth in paragraph 29 above.” (FAC ¶ 30.)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 10-1656-JST (RZx)
Title: Bryan Pringle v. William Adams Jr. et al.

Date: January 27, 2011

in fact. Based on the foregoing allegations, Plaintiff has sufficiently alleged both access
and substantial similarity. On the access prong, Plaintiff has sufficiently alleged a “chain
of events linking the plaintiff’s work and the defendant[s’] access.” Art Attacks, 581 F.3d
at 1143. Based on his allegations that portions of the two songs are “identical,” Plaintiff
has also alleged, at minimum, “a permissible inference of copying.” Baxter, 812 F.2d at
423. Furthermore, Defendants’ argument based on the “bare corporate receipt” theory is
misplaced. The bare corporate receipt theory typically concerns whether a plaintiff can
create a triable issue of fact as to access at the summary judgment stage, not whether a
plaintiff has sufficiently pled a claim for copyright infringement. See Jorgensen v.
Epic/Sony Records, 351 F.3d 46, 53 (2d Cir. 2003); Gable v. Nat’l Broad. Co., 727 F.
Supp. 2d 815, 826 (C.D. Cal. 2010), Meta-Film Assocs., Inc. v. MCA, Inc., 586 F. Supp.
1346, 1357-58 (C.D. Cal. 1984).
Because Plaintiff has sufficiently alleged ownership of a valid copyright and that
Defendants have copied constituent elements of his original work, the Court DENIES
Defendants’ Motions to Dismiss.

IV. Motion to Dismiss Under Rule 8(a)(2)
“The failure of a complaint to state a claim upon which relief can be granted is
usually dealt with by a motion made under Rule 12(b)(6) . . . .” Gilibeau v. City of
Richmond, 417 F.2d 426, 431 (9th Cir. 1969). “However, in an aggravated case a district
court has discretion to dismiss an action for failure to comply with the requirement of
Rule 8(a)(2).” Id. “[A] dismissal for a violation under Rule 8(a)(2), is usually confined
to instances in which the complaint is so ‘verbose, confused and redundant that its true
substance, if any, is well disguised.’” Id. (quoting Corcoran v. Yorty, 347 F.2d 222, 223
(9th Cir. 1965)).
Defendants argue that “Plaintiff’s verbose, redundant, and speculative pleadings
violates [sic] Rule 8(a)(2) and should be dismissed.” (Adams et al. Mot. at 12.) The
Court disagrees. Rule 8(a)(2) requires only that Plaintiff’s claim must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed.
R. Civ. P. 8(a)(2). As outlined above, Plaintiff’s First Amended Complaint meets this
requirement for his copyright infringement claim. Accordingly, the Court DENIES
Defendants’ Motion to Dismiss pursuant to Rule 8(a)(2).
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CIVIL MINUTES – GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 10-1656-JST (RZx)
Title: Bryan Pringle v. William Adams Jr. et al.

Date: January 27, 2011

V. Motion to Dismiss as to Defendant Rister Under Rule 12(b)(5)
Defendants argue that Plaintiff has failed to serve Defendant Rister with the
Complaint and First Amended Complaint, and the action as to Rister should be
dismissed pursuant to Rule 12(b)(5). (Shapiro et al. Mot. at 7-8.) Under Rule 12(b)(5),
a party may assert a defense by motion for insufficient service of process. Fed. R. Civ.
P. 12(b)(5). Under Rule 4(c), the plaintiff is responsible for having the summons and
complaint served upon defendants. Fed. R. Civ. P. 4(c).
Defendants argue that Plaintiff’s proofs of service on Rister state that service was
made not on any employee or service agent of Rister, but rather on Defendant Shapiro.
(Shapiro et al. Mot. at 8; see Docs. 40 & 50.) Plaintiff does not dispute this.
However, Rule 4(c) states the “plaintiff is responsible for having the summons and
complaint served within the time allowed by Rule 4(m) . . . .” Fed. R. Civ. P. 4(c).
Under Rule 4(m), “[i]f a defendant is not served within 120 days after the complaint is
filed, the court – on motion or on its own after notice to the plaintiff – must dismiss the
action without prejudice against that defendant or order that service be made within a
specified time.” Fed. R. Civ. P. 4(m).
Plaintiff commenced this action on October 28, 2010. (Doc. 1). Thus, Plaintiff
has 120 days from then to serve Rister with the summons and First Amended Complaint.
Accordingly, the Court DENIES Defendants’ motion to dismiss pursuant to 12(b)(5).
Plaintiff shall promptly serve Rister with the summons and First Amended Complaint so
as to not unduly delay litigation. (See Initial Standing Order, Doc. 4, ¶ 1.)
VI. Motion for a More Definite Statement Under Rule 12(e)
Under Rule 12(e), “[a] party may move for a more definite statement of a pleading
to which a responsive pleading is allowed but which is so vague or ambiguous that the
party cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). “The motion must be
made before filing a responsive pleading and must point out the defects complained of
and the details desired.” Id. “A Rule 12(e) motion is proper only where the complaint is
so indefinite that the defendant cannot ascertain the nature of the claim being asserted.”
Sagan v. Apple Computer, Inc., 874 F. Supp. 1072, 1077 (C.D. Cal. 1994). “Motions for
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CIVIL MINUTES – GENERAL
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____________________________________________________________________________
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 10-1656-JST (RZx)
Title: Bryan Pringle v. William Adams Jr. et al.

Date: January 27, 2011

a more definite statement are viewed with disfavor and are rarely granted because of the
minimal pleading requirements of the Federal Rules.” Id.
Defendants argue that Plaintiff’s First Amended Complaint lacks specificity as to
Defendant’s access to the derivative version of “Take a Dive,” and asks the Court to
“order Plaintiff to specifically allege on what dates and to whom the unsolicited
submissions of the Twang Version at issue were sent,” as well as other details
surrounding such submissions. (Adams et al. Mot. at 14.) As evident from this request,
Defendants ascertain the nature of Plaintiff’s claim, but merely seek greater detail.
“Parties are expected to use discovery, not the pleadings, to learn the specifics of the
claims being asserted.” Sagan, 874 F. Supp. at 1077. Because Plaintiff has sufficiently
stated a claim for copyright infringement that reasonably allows Defendants to prepare a
response, the Court DENIES Defendants’ Motion for a More Definite Statement pursuant
to Rule 12(e).
VII.

Motion to Strike Under Rule 12(f)

Under Rule 12(f), a court “may order stricken from any pleading any insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P.
12(f). “The function of a 12(f) motion to strike is to avoid the expenditure of time and
money that must arise from litigating spurious issues by dispensing with those issues
prior to trial . . . .” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir.
2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on
other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)).
“[M]otions to strike, as a general rule, are disfavored.” Stabilisierungsfonds Fur
Wein v. Kaiser, 647 F.2d 200, 201 (D.C. Cir. 1981). This is because they are “often used
as delaying tactics, and because of the limited importance of pleadings in federal
practice.” Bureerong v. Uvawas, 922 F. Supp. 1450, 1478 (C.D. Cal. 1996) (citing
Schwarzer, et al., Federal Civil Procedure § 9:375). “[M]otions to strike should not be
granted unless it is clear that the matter to be stricken could have no possible bearing on
the subject matter of the litigation.” Liley v. Charren, 936 F. Supp. 708, 713 (N.D. Cal.
1996). “Rule 12(f) is ‘neither an authorized nor a proper way to procure the dismissal of
all or a part of a complaint.’” Yamamoto v. Omiya, 564 F.2d 1319, 1327 (9th Cir. 1977).
“Were [courts] to read Rule 12(f) in a manner that allowed litigants to use it as a means to
dismiss some or all of a pleading . . ., [they] would be creating redundancies within the
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CIVIL MINUTES – GENERAL
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____________________________________________________________________________
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 10-1656-JST (RZx)
Title: Bryan Pringle v. William Adams Jr. et al.

Date: January 27, 2011

Federal Rules of Civil Procedure, because a Rule 12(b)(6) motion (or a motion for
summary judgment at a later stage in the proceedings) already serves such a purpose.”
Whittlestone, 618 F.3d at 974.
According to Defendants, the allegations they seek to strike from the First
Amended Complaint fall into four categories: (1) allegations regarding unrelated third
party accusations of copying; (2) allegations regarding conspiracy to commit
infringement and unfair business practices, where no claim has been asserted; (3)
allegations regarding a pattern and practice of copyright infringement; and (4) requests
for relief that are unavailable as a matter of law, such as statutory damages and attorney
fees. (Adams et al. Mot at 14.) Defendants argue that the paragraphs at issue “are
improper and have no tangible bearing on the subject matter of this litigation.” Id.
As to the first three categories of allegations, Defendants fail to convince the Court
that any of the paragraphs are clearly “redundant, immaterial, impertinent, or
scandalous,” see Fed. R. Civ. P. 12(f), or that striking the said paragraphs would save the
parties and the Court “time and money that [would] arise from litigating spurious issues.”
Whittlestone, Inc., 618 F.3d at 973. Because motions to strike are generally disfavored,
and from Defendants’ Motion, it is not “clear that the matter to be stricken could have no
possible bearing on the subject matter of the litigation,” Liley, 936 F. Supp. at 713, the
Court DENIES Defendants’ Motion to Strike as to the allegations of third party
accusations of copying, conspiracy to commit infringement and unfair business practices,
and a pattern and practice of copyright infringement.
Defendants also seek to strike Plaintiff’s request for attorneys’ fees. “[A] motion
to strike may be used to strike any part of the prayer for relief when the damages sought
are not recoverable as a matter of law.” Bureerong, 922 F. Supp. at 1479 n.34.
Defendants argue that because Plaintiff registered his copyright in the derivative
version of “Take a Dive” after Defendants allegedly commenced infringement, Plaintiff
is not entitled to attorneys’ fees. (Adams et al. Mot. at 21-22.) Under 17 U.S.C. §
412(2), “no award of statutory damages or of attorney’s fees, as provided by sections 504
and 505, shall be made for . . . any infringement of copyright commenced after first
publication of the work and before the effective date of its registration, unless such
registration is made within three months after the first publication of the work.” 17
U.S.C. § 412(2). “17 U.S.C. § 412(2) of the Copyright Act precludes an award of
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CIVIL MINUTES – GENERAL
13

____________________________________________________________________________
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 10-1656-JST (RZx)
Title: Bryan Pringle v. William Adams Jr. et al.

Date: January 27, 2011

attorneys’ fees if the copyrighted work is not registered prior to the commencement of the
infringement, unless the registration is made within three months after the first
publication of the work.” Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 70102 (9th Cir. 2008).
Here, infringement allegedly commenced in 2009, first publication of the
derivative work occurred in 1999, and Plaintiff did not register the copyright in the
derivative work until November 2010. However, Plaintiff has also alleged ownership in
the original version of “Take a Dive,” which was allegedly created and registered before
infringement commenced. At this stage, the Court cannot predict if and how Plaintiff’s
copyright infringement claim will incorporate the allegedly protectable elements of the
original version, and thus cannot determine that Plaintiff is precluded from seeking
attorney’s fees under 17 U.S.C. § 412(2). Accordingly, the Court DENIES Defendants’
Motion to Strike Plaintiff’s prayer for attorneys’ fees.

VIII.

Conclusion

For the reasons stated above, the Court DENIES Defendants’ Motions to Dismiss
under Rules 12(b)(6), 8(a)(2), and 12(b)(5), Motion for a More Definite Statement under
Rule 12(e), and Motion to Strike under Rule 12(f).
Initials of Preparer: nkb

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