Peter Anderson, Esq., Cal. Bar No. 88891€¦ · 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20...

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Peter Anderson, Esq., Cal. Bar No. 88891 [email protected]

Nicolette Vairo, Esq., Cal. Bar No. 311592 [email protected]

DAVIS WRIGHT TREMAINE LLP865 South Figueroa Street, Suite 2400 Los Angeles, CA 90017-2566 Tel: (213) 633-6800 Fax: (213) 633-6899

Attorney for Defendants ABEL M. TESFAYE, KARL MARTIN SANDBERG, SAVAN HARISH KOTECHA, AHMED BALSHE, JASON QUENNEVILLE, WASSIM SALIBI, THE WEEKND XO, LLC, THE WEEKND XO, INC., THE WEEKND XO MUSIC, ULC, DAHEALA & CO., LLC, SAL & CO MANAGEMENT LP, SAL & CO LP, XO&CO., INC., UNIVERSAL MUSIC GROUP, INC., UMG RECORDINGS, INC., UNIVERSAL MUSIC PUBLISHING, INC., UNIVERSAL MUSIC CORPORATION, KOBALT MUSIC PUBLISHING AMERICA, INC., WARNER CHAPPELL MUSIC, INC., W CHAPPELL MUSIC CORP., SONGS MUSIC PUBLISHING, LLC, ARTIST NATION MANAGEMENT GROUP, INC., MXM, LLC, MXM MUSIC, AB, and WOLF COUSINS

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

William Smith, et al.,

Plaintiffs,

v.

Abel M. Tesfaye, etc., et al.,

Defendants.

)))))))))))

Case No. 2:19-cv-02507-PA-MRWx

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT

Date: July 6, 2020 Time: 1:30 p.m.

Courtroom of the Honorable Percy Anderson

United States District Judge

Case 2:19-cv-02507-PA-MRW Document 113-1 Filed 06/01/20 of 28 Page ID #:1154

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TABLE OF CONTENTS

INTRODUCTION .............................................................................................. 1

(a) Summary of Argument............................................................................. 1

(b) Summary of Uncontroverted Facts .......................................................... 2

(1) In 2004-05, the UK Plaintiffs Composed the Song I Need to Love in the UK ............................................................................... 2

(2) In 2005, Plaintiffs Assigned I Need to Love to a UK Music Publisher, Which Never Exploited I Need to Love and, in 2016, Relinquished All Rights to it ............................................... 2

(3) The February 2016 Creation of A Lonely Night in Los Angeles, California ....................................................................................... 3

(4) A Lonely Night’s Creators Did Not Have Access to I Need to Love ................................................................................................ 3

(5) Plaintiffs’ Filing of this Action ...................................................... 4

THERE IS NO GENUINE DISPUTE THAT PLAINTIFFS CANNOT ESTABLISH REQUIRED ELEMENTS OF THEIR CLAIMS ........................ 5

(a) The Standards Applicable to the Motion ................................................. 5

(b) Plaintiff’s First Claim for Direct Copyright Infringement ...................... 5

(1) Plaintiffs Do Not Raise a Genuine Issue as to Whether Copying Occurred .......................................................................... 6

(i) Access Plus Substantial Similarity Probative of Copying .. 6

a. Access – a Reasonable Opportunity to Copy ............ 6

b. Substantial Similarity Probative of Copying ............ 9

(ii) Striking Similarity Rendering Independent Creation Impossible..........................................................................10

(2) Plaintiffs Fail to Raise a Genuine Dispute as Whether A Lonely Night Copies Protected Aspects of I Need to Love ..........12

(i) The Extrinsic Test to Determine Whether the Works Are Substantially Similar in Protected Expression ..................12


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(ii) Plaintiffs Fail to Raise a Genuine Dispute Under the Extrinsic Test .....................................................................14

(c) Plaintiffs’ Second and Third Claims for, Respectively, Contributory and Vicarious Infringement ..........................................................................17

(d) Plaintiffs’ Fourth through Sixth Claims for an Accounting, Constructive Trust, and Unjust Enrichment, Respectively .........................................18

(e) Defendants’ Alternative Motion for Partial Summary Judgment ..........20

CONCLUSION ................................................................................................21


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TABLE OF AUTHORITIES

Cases

A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) .......................................................................... 17, 18

Art Attacks Ink, LLC v. MGA Entm’t Inc., 581 F.3d 1138 (9th Cir. 2009) .................................................................................. 6

Batts v. Adams, No. CV 10-8123-JFW (RZX), 2011 WL 13217923 (C.D. Cal. Feb. 8, 2011) ...... 14

Benay v. Warner Bros. Entm’t, 607 F.3d 620 (9th Cir. 2010), overruled on other grounds by Sidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) .................................................................. 9

Berg v. Kincheloe, 794 F.2d 457 (9th Cir. 1986) .................................................................................... 5

Bernal v. Paradigm Talent & Literary Agency, 788 F. Supp. 2d 1043 (C.D. Cal. 2010) .................................................................. 10

Bikram’s Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032 (9th Cir. 2015) ................................................................................ 14

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) ............................................................................................... 14

Cavalier v. Random House, Inc., 297 F.3d 815 (9th Cir. 2002) .................................................................................. 12

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ................................................................................................. 5

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) ............................................................................................... 12

Funky Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d 1072 (9th Cir. 2006) .......................................................................... 14, 16

Gaste v. Kaiserman, 863 F.2d 1061 (2d Cir.1988) .................................................................................. 13


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Gray v. Perry, No. 215CV05642CASJCX, 2020 WL 1275221 (C.D. Cal. Mar. 16, 2020) .... 14, 16

Grosso v. Miramax Film Corp., 383 F.3d 965 (9th Cir. 2004), opinion amended on denial of reh’g, 400 F.3d 658 (9th Cir. 2005) ........................................................................................................ 20

Johannsongs-Publ’g Ltd. v. Lovland, No. CV 18-10009-AB (SSX), 2020 WL 2315805 (C.D. Cal. Apr. 3, 2020) ... 15, 16

Johnson v. Gordon, 409 F.3d 12 (1st Cir. 2005) .................................................................................... 13

King v. Najm, No. CV084164DSFVBKX, 2011 WL 13186238 (C.D. Cal. Mar. 8, 2011) ............ 8

Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (9th Cir. 1998) ................................................................................ 19

Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042 (9th Cir. 1994) ............................................................................ 12, 17

Loomis v. Cornish, 836 F.3d 991 (9th Cir. 2016) .................................................................................... 7

Luvdarts, LLC v. AT & T Mobility, LLC, 710 F.3d 1068 (9th Cir. 2013) ................................................................................ 17

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ................................................................................................. 5

Meta-Film Assocs., Inc. v. MCA, Inc., 586 F. Supp. 1346 (C.D. Cal. 1984) ......................................................................... 7

Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) ............................................................................................... 17

Montz v. Pilgrim Films & Television, Inc., 649 F.3d 975 (9th Cir. 2011) .................................................................................. 20

Morrill v. Stefani, 338 F. Supp. 3d 1051 (C.D. Cal. 2018) .................................................................. 16

Newton v. Diamond, 204 F. Supp. 2d 1244 (C.D. Cal. 2002), aff’d 388 F.3d 1189 (9th Cir. 2004) ....... 13


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Oddo v. Ries, 743 F.2d 630 (9th Cir. 1984) .................................................................................. 18

Perfect 10, Inc., v. Giganews, Inc., 847 F.3d (9th Cir. 2017) ......................................................................................... 17

Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788 (9th Cir. 2007) .................................................................................. 17

Rentmeester v. Nike, Inc., 883 F.3d 1111 (9th Cir. 2018) ......................................................................... passim

Rice v. Fox Broad. Co., 148 F. Supp. 2d 1029 (C.D. Cal. 2001), rev’d on other grounds, 330 F.3d 1170 . 13

Rice v. Fox Broad. Co., 330 F.3d 1170 (9th Cir. 2003) ............................................................................ 8, 12

Salim v. Lee, 202 F. Supp. 2d 1122 (C.D. Cal. 2002) .................................................................. 20

Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003) .................................................................................. 13

Scholz Homes, Inc. v. Maddox, 379 F.2d 84 (6th Cir. 1967) .................................................................................... 11

Seals-McClellan v. Dreamworks, Inc., 120 F. App’x 3 (9th Cir. 2004) ......................................................................... 10, 11

Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc) ......................................................... passim

Smith v. Jackson, 84 F.3d 1213 (9th Cir. 1996) .................................................................................. 13

Stabile v. Paul Smith Ltd., 137 F. Supp. 3d 1173 (C.D. Cal. 2015) ............................................................ 10, 11

Stewart v. Abend, 495 U.S. 207 (1990) ............................................................................................... 19

Stewart v. Wachowski, 574 F. Supp. 2d 1074 (C.D. Cal. 2005) .............................................................. 8, 10


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Swirsky v. Carey, 376 F.3d 841 (9th Cir. 2004) ............................................................................ 12, 13

Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008) ................................................................................ 19

Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000), overruled on other grounds by Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) ...................................................... 6, 12, 13

Tisi v. Patrick, 97 F. Supp. 2d 539 (S.D.N.Y. 2000) ........................................................................ 8

VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016) .................................................................................. 15

Worth v. Universal Pictures, Inc., 5 F. Supp. 2d 816 (C.D. Cal. 1997) ........................................................................ 20

Statutes

17 U.S.C. § 102 ....................................................................................................................... 19 § 102(a)(2) .............................................................................................................. 19 § 103 ....................................................................................................................... 19 § 103(b) ................................................................................................................... 19 § 106 ....................................................................................................................... 19 § 301(a) ................................................................................................................... 19

Rules

Fed. R. Civ. P. 1 ............................................................................................................. 5

Fed. R. Civ. P. 56 ........................................................................................................... 5

Other Authorities

M. NIMMER & D. NIMMER, NIMMER ON COPYRIGHT (2020) .................. 6, 10, 11, 13, 20


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MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

(a) Summary of Argument

Plaintiffs are United Kingdom (“UK”) residents who allege that a musical

composition they wrote in the UK in 2005, but which was never recorded by a record

company or otherwise released to the public – indeed, their UK music publisher

gratuitously relinquished to Plaintiffs all rights in the “unexploited composition[ ]” –

was copied eleven years later by a song created a continent and ocean away, in Los

Angeles, California. Discovery, to the extent Plaintiffs have bothered to comply with

it, confirms what Defendants have said from the beginning: Plaintiffs’ claims are

frivolous.

Plaintiffs’ first claim for relief is for direct copyright infringement, but they

cannot raise a genuine dispute as to its required elements. Plaintiffs cannot establish

that copying occurred: (1) the compositions are not strikingly similar, so copying

cannot be assumed, and (2) Plaintiffs cannot establish either access or substantial

similarity probative of copying, let alone the access plus substantial similarity

necessary to trigger an inference of copying. In addition, Plaintiffs cannot establish

copying of protected expression under the extrinsic test. The allegedly similar short

portion of music appears in prior art, which, when that prior art is disregarded – as the

extrinsic test requires – leaves Plaintiffs with a total of three isolated notes spread over

three measures, one note per measure. That does not even rise to the three consecutive

notes that the Ninth Circuit recently confirmed en banc cannot be protected. There is

no genuine dispute that Plaintiffs’ direct infringement claim fails.

Plaintiffs’ remaining claims fall like a house of cards. Without an underlying

direct infringement claim, Plaintiffs’ secondary liability claims for contributory and

vicarious infringement fail as a matter of law. And Plaintiffs’ state law claims for an

accounting, constructive trust, and unjust enrichment are each based on the allegations

that their composition was copied pursuant to a secret license issued by their former


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UK music publisher, yet they cannot prove copying or the license. Moreover, their

state law claims are preempted by federal copyright law.

Accordingly, Defendants respectfully submit that their Motion should be

granted and summary judgment entered.

(b) Summary of Uncontroverted Facts

The following facts are uncontroverted by Plaintiffs and assumed true for the

purpose of Defendants’ Motion.

(1) In 2004-05, the UK Plaintiffs Composed the Song I Need to

Love in the UK

Plaintiffs William Smith, a UK subject with dual US citizenship, and Plaintiffs

Brian Clover and Scott McCulloch, both UK subjects, all reside in the UK. In 2004-

5, they jointly wrote and recorded in the UK a musical composition they call I Need

to Love, in the UK. Facts 1-3.1

(2) In 2005, Plaintiffs Assigned I Need to Love to a UK Music

Publisher, Which Never Exploited I Need to Love and, in

2016, Relinquished All Rights to it

In 2005, Plaintiffs transferred their copyright in three musical compositions,

including I Need to Love, to a UK company, Big Life Music Limited. In 2008, Big

Life Music Limited was acquired by another UK company, Universal Music

Publishing Limited, and Big Life Music Limited’s name was changed to Universal

Music Publishing BL Limited. Neither before nor after that acquisition were any of

Plaintiffs’ three compositions exploited. Accordingly, Plaintiffs’ UK music publisher

wrote Plaintiffs in 2016 and “relinquished any and all claim in and to the unexploited

compositions,” including I Need to Love. Facts 4-6.

///

1 “Facts” and “Fact” refer to the numbered facts set forth in Defendants’ accompanying proposed Statement of Uncontroverted Facts and Conclusions of Law.


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(3) The February 2016 Creation of A Lonely Night in Los

Angeles, California

Defendant Abel Tesfaye, professionally known as The Weeknd, resides in

California. His album, Starboy, was released to the public on November 25, 2016,

and includes the song, A Lonely Night. Facts 7-8.

A Lonely Night was composed and recorded in February 2016, at defendant

MXM Music, AB’s recording studio in West Hollywood, California. At the West

Hollywood recording studio, Ali Payami, Peter Svensson, and defendants Karl Martin

Sandberg, Savan Kotecha, Ahmed Balshe, and Abel Tesfaye, collaborated to create

and record A Lonely Night. Defendants have produced audio recordings or “work

tapes” documenting the process of A Lonely Night’s creation at the West Hollywood

studio. Facts 9-11.

Once A Lonely Night was composed and recorded at the West Hollywood

recording studio, the studio recordings of the various tracks were mixed by Serban

Ghenea at a recording studio in Virginia. Fact 12.

(4) A Lonely Night’s Creators Did Not Have Access to I Need to

Love

Plaintiffs have admitted that I Need to Love was never publicly performed, was

never released by any record company, and was not widely distributed to the public

before A Lonely Night was released on the Starboy album in November 2016. Facts

13-16. None of the people involved in composing and recording A Lonely Night had

ever heard of Plaintiffs and none had ever heard Plaintiffs’ “unexploited”

composition, I Need to Love. Fact 17. Mr. Ghenea, the engineer and mixer who mixed

A Lonely Night, also had never heard of Plaintiffs or I Need to Love. Fact 18.

Plaintiffs have confirmed that they never met any of the defendants, never

communicated with any of them before A Lonely Night was released, never provided

I Need to Love to anyone involved in the creation of A Lonely Night, and were never

told that I Need to Love had been given to any of them. Facts 19-26.


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Instead, Plaintiffs’ access theory is that someone at their former UK music

publisher, Universal Music Publishing BL Limited, in London, England, provided I

Need to Love to someone at Universal Music Publishing, Inc., in Santa Monica,

California, who in turn provided it to defendant Jason Quenneville, who received a

songwriter credit on A Lonely Night. Fact 29. However, Universal Music Publishing

BL Limited and Universal Music Corp. are separate companies with different offices

in different countries and continents, and different immediate owners. Facts 30-33.

In addition, Mr. Quenneville was not present when A Lonely Night was created,

recorded, or mixed, and had no input into its creation, recording, or mixing. Facts 35-

37. He did not even hear A Lonely Night until he listened to the Starboy album that

includes it. Fact 38. The evidence is undisputed that he is credited as a co-writer of

A Lonely Night only because it includes in a verse – which Plaintiffs do not claim is

infringing – a portion of an unfinished song that he and Mr. Tesfaye had worked on

in 2013. Facts 39-41.

Neither has Mr. Quenneville ever worked for Universal Music Publishing, Inc.,

let alone when he worked on that different, unfinished song with Mr. Tesfaye in 2013.

It was not until 2014 that Mr. Quenneville signed to a Canadian company that in turn

loans his songwriting services to Universal Music Corp. in Santa Monica. Fact 42.

Nor had Mr. Quenneville ever heard of Plaintiffs or I Need to Love. Fact 43.

(5) Plaintiffs’ Filing of this Action

Plaintiffs filed this action on April 3, 2019, and filed their First Amended

Complaint (“FAC”; Doc. 66) on September 26, 2019. In their First Amended

Complaint, Plaintiffs allege claims for (1) direct copyright infringement, (2)

contributory copyright infringement, (3) vicarious copyright infringement, (4)

accounting-declaratory relief, (5) constructive trust-declaratory relief, and (6) unjust

enrichment. All of these claims are predicated on Plaintiffs’ claim that A Lonely Night

copies I Need to Love.

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THERE IS NO GENUINE DISPUTE THAT PLAINTIFFS CANNOT

ESTABLISH REQUIRED ELEMENTS OF THEIR CLAIMS

(a) The Standards Applicable to the Motion

“Summary judgment procedure is properly regarded not as a disfavored

procedural shortcut, but rather as an integral part of the Federal Rules as a whole,

which are designed ‘to secure the just, speedy and inexpensive determination of every

action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ.

P. 1). Summary judgment is appropriate if “there is no genuine dispute as to any

material fact and the movant is entitled to a judgment as a matter of law.” Fed. R.

Civ. P. 56(a). Once the movant shows that summary judgment is appropriate, the

burden shifts to the nonmoving party to establish genuine issues exist as to material

facts. Celotex, 477 U.S. at 324. The nonmoving party “must set forth specific facts

showing that there is a genuine issue for trial” (Berg v. Kincheloe, 794 F.2d 457, 459

(9th Cir. 1986)) and “[w]here the record taken as a whole could not lead a rational

trier of fact to find for the nonmoving party, there is no genuine issue for trial.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

(b) Plaintiff’s First Claim for Direct Copyright Infringement

Plaintiffs’ first claim for relief alleges that A Lonely Night directly infringes

their claimed musical composition copyright in I Need to Love. FAC at 30-32.

“Proof of copyright infringement requires [the plaintiff] to show: (1) that he

owns a valid copyright in [his work]; and (2) that [the defendant] copied protected

aspects of the work.” Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020)

(en banc) (“Led Zeppelin”). For the purposes of their Motion, Defendants assume that

Plaintiffs own a valid copyright in I Need to Love, but raise that Plaintiffs cannot

establish a triable issue as to copying of protected elements.

“The second prong of the infringement analysis contains two separate

components: ‘copying’ and ‘unlawful appropriation.’” Id. (quoting Rentmeester v.

Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018)). “Although these requirements are


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too often referred to in shorthand lingo as the need to prove ‘substantial similarity,’

they are distinct concepts.” Led Zeppelin, 952 F.3d at 1064. Here, Plaintiffs fail to

raise a genuine issue both as to copying and as to unlawful appropriation.

(1) Plaintiffs Do Not Raise a Genuine Issue as to Whether

Copying Occurred

As for the requirement that copying did in fact occur, “[b]ecause independent

creation is a complete defense to copyright infringement, a plaintiff must prove that a

defendant copied the work.” Led Zeppelin, 952 F.3d at 1064; 2 M. NIMMER & D.

NIMMER, NIMMER ON COPYRIGHT § 8.01[A] (2020) (“[A]bsent copying, there can be

no infringement of copyright, regardless of the extent of similarity.”). The copyright

plaintiff has the burden of proving the historical fact that copying occurred.

Rentmeester, 883 F.3d at 1117.

Unless copying is admitted, it is proven circumstantially by evidence of either

(a) access plus substantial similarities between the defendant’s and the plaintiff’s

works that are probative of copying, or (b) “striking similarities.” Three Boys Music

Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000), overruled on other grounds by Led

Zeppelin, 952 F.3d 1051.

(i) Access Plus Substantial Similarity Probative of Copying

a. Access – a Reasonable Opportunity to Copy

To prove access, the plaintiff must present evidence that the creator of the

defendant’s work had a “reasonable opportunity, not merely a bare opportunity,” to

copy the plaintiff’s work. Art Attacks Ink, LLC v. MGA Entm’t Inc., 581 F.3d 1138,

1143 (9th Cir. 2009). “Access may not be inferred through mere speculation or

conjecture.” Three Boys Music, 212 F.3d at 482 (quoting 4 NIMMER ON COPYRIGHT §

13.02[A]). Instead, access is shown “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.

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Plaintiffs have admitted that I Need to Love was never released by a record

company or publicly performed, was not widely disseminated prior to the release of

A Lonely Night, and never resulted in any royalties from their UK music publisher.

Facts 13-16. As a result, Plaintiffs can establish access only by proving a chain of

events that links I Need to Love to the creation of A Lonely Night.

However, Plaintiffs have each testified that they never provided I Need to Love

to any of the individual defendants or to anyone involved in the creation of A Lonely

Night. Facts 19-21, 26. Plaintiffs also testified that they never provided I Need to

Love to any of the entity defendants (Facts 23-24), and, even if they had, it is well-

established that “bare corporate receipt” is insufficient to raise a genuine dispute as to

access. Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016); Meta-Film Assocs.,

Inc. v. MCA, Inc., 586 F. Supp. 1346, 1357–58 (C.D. Cal. 1984) (“[I]t is clearly

unreasonable to attribute” to one person information received by others at a company).

Unable to establish even “bare corporate receipt” by an entity that was involved

in the creation of A Lonely Night, Plaintiffs’ theory of access is that I Need to Love

made its way from the London, England, offices of the UK company, Universal Music

Publishing BL Limited, to the Santa Monica, California, offices of an affiliated

American company, Universal Music Publishing, Inc., where unidentified personnel

could have provided it to Mr. Quenneville, who is a credited writer of A Lonely Night.

Given that “bare corporate receipt” by the American company, Universal Music

Publishing, Inc., would not have been enough to establish access, it necessarily

follows that “bare corporate receipt” by a UK affiliate that had nothing to do with A

Lonely Night is not enough.

Further, courts have repeatedly rejected as speculation access theories even less

attenuated then Plaintiffs’ theory that the UK company provided A Lonely Night to the

American company, the American company somehow provided it to Mr. Quenneville,

and he then provided it to the people who actually composed and recorded A Lonely

Night. See, e.g., Loomis, 836 F.3d at 996 (access not established by evidence that


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plaintiff’s song was given to record company’s Artist and Repertoire (“A&R”)

representative charged with finding and sharing music, where A&R representative had

no role or input into the creation of defendants’ song); Rice v. Fox Broad. Co., 330

F.3d 1170, 1178 (9th Cir. 2003) (evidence that plaintiff’s work was provided to talent

agent who “loved” it and whose client was involved in development of allegedly

infringing work, failed to establish access; argument that talent agent might have

provided plaintiff’s work to his client was “speculation, conjecture, and inference”);

Stewart v. Wachowski, 574 F. Supp. 2d 1074, 1087-88, 1089-90 (C.D. Cal. 2005)

(studio’s receipt of plaintiff’s script did not establish access where studio’s personnel

were not involved in the development or creation of the allegedly infringing movies,

even though studio distributed those movies); Tisi v. Patrick, 97 F. Supp. 2d 539, 547-

48 (S.D.N.Y. 2000) (evidence that demo tape given to record companies insufficient

to establish access where no evidence that the demo tape was given to composer);

King v. Najm, No. CV084164DSFVBKX, 2011 WL 13186238, at *1 (C.D. Cal.

Mar. 8, 2011) (access not established by evidence that plaintiff’s recording was

provided to record executive who later met with defendant recording artist in hopes

of signing him).

Moreover, Plaintiffs’ conjecture collapses in the face of the uncontroverted

evidence that Mr. Quenneville was not even present or otherwise involved in the

creation of A Lonely Night. He is credited on the song only because a bit of an

unfinished song he worked on in 2013 with defendant Abel Tesfaye was used in A

Lonely Night verse, which Plaintiffs do not claim copies I Need to Love. Facts 9-10,

35-41. Also, it was not until 2014 that a Canadian company with which he contracted

began providing his songwriting services to a Universal company, and even then it

was Universal Music Corp., not Universal Music Publishing, Inc. Fact 42.

Because Plaintiffs fail to present evidence raising a genuine dispute as to access,

they also cannot raise a genuine dispute as to copying based on a theory of access plus

substantial similarities.


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b. Substantial Similarity Probative of Copying

Even if Plaintiffs were able to raise a triable issue as to access, which they are

not, they cannot establish substantial similarity probative of copying and, as a result,

cannot rely on access plus substantial similarity to trigger an inference of copying.

Substantial similarity probative of copying requires proof that the plaintiff’s and

the defendant’s works share “similarities one would not expect to arise if the two

works had been created independently.” Rentmeester, 883 F.3d at 1117. “A finding

of such similarity may be based on the overlap of unprotectable as well as protectable

elements.” Led Zeppelin, 952 F.3d at 1064; Benay v. Warner Bros. Entm’t, 607 F.3d

620, 628 (9th Cir. 2010) (although titles not protected by copyright, fact that parties’

works have same title may support claim of copying), overruled on other grounds by

Led Zeppelin, 952 F.3d 1051.

Here, I Need to Love and A Lonely Night have different lyrics, different

structures, different chord progressions, different harmonic rhythms, different overall

rhythmic flow, and different titles. Facts 44-49. Differences are not probative of

copying. The two songs are in a minor mode, a minor key – I Need to Love is in F-

sharp minor while A Lonely Night is in G minor – and have roughly similar rhythms

of 120 beats per minute and 114 beats per minute, respectively. But Plaintiffs’ own

musicologist admits that many songs before them have those same attributes. Facts

50-52. So that is not probative of copying either. Plaintiffs’ musicologist also raised

that both songs include an echo or repetition of vocal melody, but he admits that is

common in popular music and also done differently in I Need to Love and A Lonely

Night. Facts 53-54.

That leaves Plaintiffs with what they pleaded: a short portion of similar melody

in three measures of each song. FAC at 4, ¶ 13. But Plaintiffs and their expert simply

ignored the prior art that has the same or similar melody, including, for example, the

1978 No. 1 hit, Heart of Glass, by the musical group Blondie, as well as the theme

song of the 1999 box office hit James Bond movie, The World Is Not Enough. Facts


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55-57. Plaintiff Smith testified that he came up with the portion of I Need to Love’s

melody at issue in this case and knew both Heart of Glass and The World Is Not

Enough when he did so. Facts 58-59. Because the claimed similar melody appears in

hugely popular songs before Plaintiffs recorded I Need to Love, it very well also could

“arise [in I Need to Love and A Lonely Night] if the two works had been created

independently.” Rentmeester, 883 F.3d at 1117.

Plaintiffs’ failure to present evidence raising a genuine dispute as to substantial

similarity probative of access is an independent reason that they cannot raise a genuine

dispute as to copying based on a theory of access plus substantial similarity.

(ii) Striking Similarity Rendering Independent Creation

Impossible

The only other way that Plaintiffs could raise a genuine dispute as to whether

copying occurred would be to establish that I Need to Love and A Lonely Night are

strikingly similar. The evidence is uncontroverted that they are not.

“To show a striking similarity between works, a plaintiff must produce evidence

that the accused work could not possibly have been the result of independent creation.”

Seals-McClellan v. Dreamworks, Inc., 120 F. App’x 3, 4 (9th Cir. 2004) (emphasis in

original). Expert testimony is required to establish striking similarity in music cases

(4 NIMMER ON COPYRIGHT § 13.02[B]), but an expert’s conclusory assertion of

striking similarity does not raise a genuine dispute. Stabile v. Paul Smith Ltd., 137 F.

Supp. 3d 1173, 1189 (C.D. Cal. 2015) (gathering cases).

“Courts adopting the majority rule generally require that an inference of

copying drawn from striking similarity between works be reasonable in light of all the

evidence.” Stabile, 137 F. Supp. 3d at 1190 (quoting Stewart, 574 F. Supp. 2d at

1098). As a result, “substantial and uncontroverted evidence of” the defendant’s

independent creation of his work negates striking similarity. Stabile, 137 F. Supp. 3d

at 1190-91. Likewise, prior art with similar usages negates striking similarity. Bernal

v. Paradigm Talent & Literary Agency, 788 F. Supp. 2d 1043, 1052 (C.D. Cal. 2010)


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(striking similarities requires proof that “the only explanation [for the similarities]

between the two works must be ‘copying rather than . . . coincidence, independent

creation, or prior common source.’”) (quoting 4 NIMMER ON COPYRIGHT § 13.02[B])).

Here, Plaintiffs fail to raise a genuine dispute as to whether I Need to Love and

A Lonely Night are strikingly similar. Music that is very similar to the allegedly copied

portions of I Need to Love appears in widely distributed compositions, including the

No. 1 hit song, Heart of Glass, the theme music of the James Bond movie, The World

Is Not Enough, and the theme music of the 1990s X-Men television series. Facts 63-

64. As a result, it is very possible that similar music would coincidentally appear later

in I Need to Love and A Lonely Night.

In addition, Plaintiffs’ expert, Dr. Stewart, defeats their claim of striking

similarity. He did state in his Report, which Plaintiffs attach to their pleading, that the

claimed similarity in the songs’ respective choruses “could only result from copying.”

FAC at Exh. 1 (Doc. 66-1) at 1, ¶ 3. But that does not raise a genuine dispute as to

striking similarity because it is a bare conclusion and he does not mention, let alone

consider and analyze, the prior art with similar music. Stabile, 137 F. Supp. 3d at

1189. In any event, at his deposition Dr. Stewart backtracked and testified that he

now believes only that copying is “likely.” Fact 61-62. That is fatally short of

“evidence that the accused work could not possibly have been the result of

independent creation.” Seals-McClellan, 120 F. App’x at 4; see, also 4 NIMMER ON

COPYRIGHT § 13.02[B] (testimony that independent creation “extremely unlikely”

fails to establish striking similarity (quoting Scholz Homes, Inc. v. Maddox, 379 F.2d

84, 86 (6th Cir. 1967))).

Plaintiffs’ failure to establish striking similarity, along with their inability to

prove access plus substantial similarity, confirms that they cannot raise a genuine

dispute as to their infringement claim’s required element that copying in fact occurred.

For these reasons alone, there is no merit to their first claim for direct copyright

infringement.


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(2) Plaintiffs Fail to Raise a Genuine Dispute as Whether A

Lonely Night Copies Protected Aspects of I Need to Love

(i) The Extrinsic Test to Determine Whether the Works

Are Substantially Similar in Protected Expression

Even if Plaintiffs could raise a genuine dispute as to whether copying occurred,

their first claim for direct copyright infringement would still fail because they cannot

raise a genuine dispute as to whether the alleged copying is of protected expression.

“The mere fact that a work is copyrighted does not mean that every element of

the work may be protected.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,

348 (1991). To establish a copyright infringement claim, the plaintiff must also

establish “that defendant copied protected elements of the work.” Cavalier v. Random

House, Inc., 297 F.3d 815, 822 (9th Cir. 2002); Rentmeester, 883 F.3d at 1117 (the

copyright plaintiff must prove not only copying but “unlawful appropriation”). “To

prove unlawful appropriation, . . . the similarities between the two works must be

‘substantial’ and they must involve protected elements of the Plaintiffs’ work.” Id.

The plaintiff bears the burden of proving “copying of constituent elements of the work

that are original.” Rice, 330 F.3d at 1174, quoting Feist, 499 U.S. at 361.

“To determine whether two works are substantially similar, a two-part analysis

– an extrinsic test and an intrinsic test – is applied.” Rice, 330 F.3d at 1174. “For

summary judgment, only the extrinsic test is important.” Id., quoting Kouf v. Walt

Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir. 1994). “[A] plaintiff who

cannot satisfy the extrinsic test necessarily loses on summary judgment.” Id.

“[T]he extrinsic test . . . compares the objective similarities of specific

expressive elements in the two works.” Led Zeppelin, 952 F.3d at 1064. “The

extrinsic test requires ‘analytical dissection of a work and expert testimony.’” Swirsky

v. Carey, 376 F.3d 841, 845 (9th Cir. 2004), quoting Three Boys Music, 212 F.3d at

485. “‘Analytical dissection’ requires breaking the works ‘down into their constituent

elements, and comparing those elements for proof of copying as measured by


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‘substantial similarity.’” Swirsky, 376 F.3d at 845, quoting Rice v. Fox Broad. Co.,

148 F. Supp. 2d 1029, 1051 (C.D. Cal. 2001), rev’d on other grounds, 330 F.3d 1170.

“It is the copyright plaintiff’s burden to identify the elements for this comparison.”

Rice, 148 F. Supp. 2d at 1051, citing Three Boys Music, 212 F.3d at 485 (“Initially,

the extrinsic test requires that the plaintiff identify concrete elements based on

objective criteria”).

“Crucially, because only substantial similarity in protectable expression may

constitute actionable copying that results in infringement liability, ‘it is essential to

distinguish between the protected and unprotected material in a plaintiff’s work.’” Led

Zeppelin, 952 F.3d at 1064 (quoting Swirsky, 376 F.3d at 845). “[E]xpressions that

are standard, stock, or common to a particular subject matter or medium are not

protectable under copyright law.” Led Zeppelin, 952 F.3d at 1069 (quoting Satava v.

Lowry, 323 F.3d 805, 811 (9th Cir. 2003)); Johnson v. Gordon, 409 F.3d 12, 23 (1st

Cir. 2005) (“Virtually by definition, expressions that are common are also

unoriginal”). The fact that a claimed similarity appears in works predating a plaintiff’s

work defeats a copyright claim because such “prior art” establishes that “similarities

that Plaintiffs attribute to ‘copying’ could actually be explained by the commonplace

presence of the same or similar [elements] within the relevant field.” Smith v. Jackson,

84 F.3d 1213, 1219 (9th Cir. 1996).

“In the field of popular songs, many, if not most, compositions bear some

similarity to prior songs.” Led Zeppelin, 952 F.3d at 1069 (quoting 1 NIMMER ON

COPYRIGHT § 2.05[B]). “In assessing originality, courts must be ‘mindful of the

limited number of notes and chords available to composers and the resulting fact that

common themes frequently appear in various compositions, especially in popular

music.’” Newton v. Diamond, 204 F. Supp. 2d 1244, 1253 (C.D. Cal. 2002) (quoting

Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2d Cir.1988) (similarities “between pieces

of popular music must extend beyond themes that could have been derived from a

common source”)), aff’d 388 F.3d 1189 (9th Cir. 2004). “Music, perhaps more than


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any other work of art, ‘borrows, and must necessarily borrow, and use much which

was well known and used before.’” Gray v. Perry, No. 215CV05642CASJCX, 2020

WL 1275221, at *4 (C.D. Cal. Mar. 16, 2020) (quoting Campbell v. Acuff-Rose Music,

Inc., 510 U.S. 569, 575 (1994)). “For this reason, courts in musical copyright cases

have a significant obligation to strike a ‘balance between the First Amendment and

the Copyright Act’ . . . by carefully limiting the scope of copyright protection to truly

original expression only.” Gray, 2020 WL 1275221, at *4 (quoting Bikram’s Yoga

Coll. of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032, 1037 (9th Cir. 2015)).

In addition, the extrinsic test is not satisfied if “the two works reveal[ ] greater,

more significant differences and few real similarities.” Funky Films, Inc. v. Time

Warner Entm’t Co., L.P., 462 F.3d 1072, 1078 (9th Cir. 2006).

(ii) Plaintiffs Fail to Raise a Genuine Dispute Under the

Extrinsic Test

Defendants have submitted the Declaration and Reports of Dr. Lawrence

Ferrara establishing that, applying this Circuit’s extrinsic test and required dissection

and disregard of common elements, it is plain that A Lonely Night is not substantially

similar to I Need to Love in protected expression. Facts 65-112.

Plaintiffs rely on the Report of Dr. Alexander Stewart, whose “methodology”

is to pick random similarities in unprotected musical elements while turning a blind

eye to prior art. His approach has been rejected by courts, most recently by an en banc

panel of the Ninth Circuit. Led Zeppelin, 952 F.3d at 1059, 1075 (Dr. Stewart

improperly relied on random and unprotected elements); see, also Batts v. Adams, No.

CV 10-8123-JFW (RZX), 2011 WL 13217923, at *5 (C.D. Cal. Feb. 8, 2011) (Dr.

Stewart “failed to note any relevant prior art, any differences between the two works,

and neglect[ed] to filter out any of the unprotectable elements”).

True to form, Dr. Stewart’s Report raises that both I Need to Love and A Lonely

Night are in the minor mode, are in minor keys, and have roughly similar tempos. But

at his deposition he admitted that these same attributes appear in many songs predating


"Heart of Glass" 0:59

"I Need To Love" 0:35

"A Lonely Night" 0:50

I

9

A

J B

In be - tween

A

a a J J what I find is pleas - ing and I'm feel - ing fine

B

a •

Tell - in' me

A

J • •

Tell me what you're think - in' when you're hold - in' me._

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I Need to Love and A Lonely Night. Fact 52. His Report also disregards the entirety

of the songs to focus on three measures out of longer musical sections that are very

different in the two songs. Facts 55, 68-69, 89-91, 93-94, 109. While he notes that

one chord is the same in the musical sections and claims it is followed by a different

but closely related chord, that is insufficient as a matter of law. VMG Salsoul, LLC v.

Ciccone, 824 F.3d 871, 879 (9th Cir. 2016) (alleged copying of a single chord and of

two chords fails to establish musical composition infringement claim).

As a result, Plaintiffs are left with Dr. Stewart’s contention that melodies in the

three measures are substantially similar. However, his Report and conclusion are

fatally flawed because he did not consider prior art. “By fail[ing] to consider prior

art, [his] comparison between [I Need to Love and A Lonely Night] fails to filter out

unprotectable prior art elements, which is the foundation of the extrinsic test.”

Johannsongs-Publ’g Ltd. v. Lovland, No. CV 18-10009-AB (SSX), 2020 WL

2315805, at *5 (C.D. Cal. Apr. 3, 2020). As a result, his report and opinion “about

the similarities between [the works] are legally deficient and irrelevant.” Id.

Further, consideration of prior art proves there is no similarity in protected

expression, let alone the required substantial similarity. For example, Blondie’s 1978

hit song, Heart of Glass, has almost all of the same pitches as I Need to Love.

Applying the extrinsic test’s required dissection and disregarding those pitches in A

Lonely Night results in only three pitches over three measures being shared by I Need

to Love and A Lonely Night:


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Facts 97-98. Given that three consecutive notes are not protectable (Led Zeppelin,

952 F.3d at 1071), a fortiori there is no protection in three notes spread out over three

measures.

As yet another defect in Plaintiffs’ claim of copying of protected expression,

Dr. Stewart repeatedly failed to consider the many differences between I Need to Love

and A Lonely Night. Funky Films, 462 F.3d at 1078. For example, in raising that both

compositions have one chord in common, he paid no heed to the fact that the chord

progressions, the chord progressions’ length (eight measures in I Need to Love and

four measures in A Lonely Night), and the chord progressions’ harmonic rhythm – i.e.,

the rate of change of chords – are different:

“I Need to Love” bars 1-2 bars 3-4 bars 5-6 bar 7 bar 8

Chorus: Gm7 Cm7 F F7 Gm7 Cm D7

“A Lonely Night” bars 1-2 bar 3 bar 4

Chorus: Gm7 Ebmaj7 Dm7

Facts 75-76.

The many significant differences between I Need to Love and A Lonely Night

confirm they are not substantially similar in protected expression. Morrill v. Stefani,

338 F. Supp. 3d 1051, 1060–61 (C.D. Cal. 2018) (“The use of basic musical devices

in different manners is not copyrightable”); Gray, 2020 WL 1275221, at *12

(plaintiff’s expert “acknowledged that the compositions for the [allegedly similar]

ostinatos use different keys, tempos, harmonies, and rhythms”); Johannsongs-Publ’g,

2020 WL 2315805, at *5 (C.D. Cal. Apr. 3, 2020) (musicologist’s report was “silent

on too many matters to be considered either adequately supported or probative of the

main issue—the application of the extrinsic test”).

Disregarding the unprotected elements in the allegedly similar portions of I

Need to Love and A Lonely Night, the extrinsic test confirms that there is no substantial

similarity in protected expression between I Need to Love and A Lonely Night and,

instead, there are substantial differences. Accordingly, even if Plaintiffs could raise a


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genuine dispute as to whether copying occurred, their claim for direct copyright

infringement fails because “a plaintiff who cannot satisfy the extrinsic test necessarily

loses on summary judgment.” Kouf, 16 F.3d at 1045.

(c) Plaintiffs’ Second and Third Claims for, Respectively,

Contributory and Vicarious Infringement

Plaintiffs’ second and third claims for relief in their First Amended Complaint

are for, respectively, contributory and vicarious copyright infringement. FAC at 33-

36. These claims fail for at least two reasons.

First, contributory and vicarious copyright infringement are secondary liability

theories to extend liability for another’s direct infringement. Metro-Goldwyn-Mayer

Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005). As a result, “[s]econdary

liability for copyright infringement does not exist in the absence of direct infringement

by a third party.” A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 n. 2 (9th

Cir. 2001). Because Plaintiffs fail to establish that there was a direct infringement,

their claims for contributory and vicarious liability necessarily fail as a matter of law.

Second, Plaintiffs have neither alleged nor proven secondary liability by any

Defendant.

Contributory copyright infringement applies if a defendant “(1) has knowledge

of another’s infringement and (2) either (a) materially contributes to or (b) induces

that infringement.” Perfect 10, Inc., v. Giganews, Inc., 847 F.3d at 670 (9th Cir. 2017)

(quoting Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 795 (9th Cir. 2007)).

Plaintiffs assert their contributory infringement claim against all Defendants, without

differentiation. Plaintiffs fail to raise a genuine dispute that any Defendant who was

not a direct infringer supposedly had knowledge of an infringement and either

materially contributed to or induced it.

“Vicarious copyright liability is an ‘outgrowth’ of respondeat superior [and]

requires that the defendant had both the (1) ‘right and ability to supervise the

infringing activity’ and (2) ‘a direct financial interest’ in the activity.” Luvdarts, LLC


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v. AT & T Mobility, LLC, 710 F.3d 1068, 1071 (9th Cir. 2013) (quoting A & M

Records, Inc. v. Napster Inc., 239 F.3d 1004, 1022 (9th Cir. 2001)). Plaintiffs also

assert their vicarious infringement claim against all Defendants, without

differentiation. Plaintiffs fail to raise a genuine issue that any Defendant who was not

a direct infringer had the right and ability to supervise the allegedly infringing activity

and had a direct financial interest in it.

Accordingly, Plaintiffs also fail to raise a genuine issue as to their second and

third claims for, respectively, contributory and vicarious infringement.

(d) Plaintiffs’ Fourth through Sixth Claims for an Accounting,

Constructive Trust, and Unjust Enrichment, Respectively

Plaintiffs’ fourth, fifth, and sixth claims for relief are for an accounting,

imposition of a constructive trust, and unjust enrichment. FAC at 37-42. Each of

these state law claims is based upon Plaintiffs’ contention that A Lonely Night copies

I Need to Love and that if the use is non-infringing because Plaintiffs’ former UK

music publisher secretly licensed the alleged copying of I Need to Love, then Plaintiffs

are entitled to an accounting under that license and to joint ownership of A Lonely

Night. FAC at 37, ¶ 245, at 39, ¶ 255, & at 41, ¶ 262. These claims fail for at least

each of the following reasons.

First, Plaintiffs’ contention that A Lonely Night copies I Need to Love underpins

each of these state law claims. But, as shown above, Plaintiffs cannot raise a genuine

dispute that this alleged copying occurred. See above at 6-11. Further, a license would

have been needed only if the alleged copying copied protected expression, and

Plaintiffs cannot raise a genuine dispute on that point either. See above at 12-17.

Second, the evidence is uncontroverted that no such license exists. Fact 34.

Third, even if Plaintiffs were able to raise a genuine dispute as to whether A

Lonely Night copies I Need to Love pursuant to a secret license issued by Plaintiffs’

former UK music publisher, Plaintiffs’ remedy would be to sue that UK music

publisher, which Plaintiffs have not done. Oddo v. Ries, 743 F.2d 630, 633 (9th Cir.


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1984) (co-owner’s remedy for co-owner’s license is to sue co-owner for an

accounting).

Fourth, the licensed creation of A Lonely Night by copying I Need to Love –

which, of course, never happened – would not give Plaintiffs any rights in A Lonely

Night. That is so because “[t]he aspects of a derivative work added by the derivative

author are that author’s property.” Stewart v. Abend, 495 U.S. 207, 223 (1990); 17

U.S.C. § 103(b) (“The copyright in a . . . derivative work extends only to the material

contributed by the author of such work, as distinguished from the preexisting material

employed in the work, . . .”).

Fifth, since Plaintiffs have no contractual relationship with Defendants,

Plaintiffs’ state claims against them are non-contractual claims based on the alleged

copying of I Need to Love. As a result, these state law claims are preempted.

“The Copyright Act explicitly preempts state laws that regulate in the area of

copyright, stating that ‘all legal or equitable rights that are equivalent to any of the

exclusive rights within the general scope of copyright as specified by [17 U.S.C.]

section 106 . . . are governed exclusively by this title.’” Sybersound Records, Inc. v.

UAV Corp., 517 F.3d 1137, 1150 (9th Cir. 2008), quoting 17 U.S.C. § 301(a). A two-

part test is applied to determine whether a state law claim is preempted.

For preemption to apply, “the work involved must fall within the ‘subject

matter’ of the Copyright Act as set for in 17 U.S.C. §§ 102 and 103. Kodadek v. MTV

Networks, Inc., 152 F.3d 1209, 1212 (9th Cir. 1998) (quoting 17 U.S.C. § 301(a)). As

a musical work, Plaintiffs’ I Need to Love undeniably falls within the subject matter

of the Copyright Act. 17 U.S.C. §102(a)(2). Indeed. Plaintiffs claim copyright in it.

In addition, “the rights that a plaintiff asserts under state law must be ‘rights

that are equivalent’ to those protected by the Copyright Act.” Kodadek, 152 F.3d at

1212; Sybersound, 517 F.3d at 1150. Because Section 106 gives a copyright owner

the exclusive “right to prohibit reproduction – whether in copies or phonorecords and

whether in original or derivative form – performance, distribution or display of [the]


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work, . . . in essence, a right that is ‘equivalent to copyright’ is one that is infringed

by the mere act of reproduction, performance, distribution, or display.” 1 NIMMER ON

COPYRIGHT § 1.01[B][1]. As a result, “[t]o survive preemption, [a] state cause of

action must protect rights that are qualitatively different from the rights protected by

copyright: the complaint must allege an ‘extra element’ that changes the nature of the

action.” Grosso v. Miramax Film Corp., 383 F.3d 965, 968 (9th Cir. 2004) (“extra

element” of bilateral contractual relationship saved breach of contract claim from

preemption), opinion amended on denial of reh’g, 400 F.3d 658 (9th Cir. 2005).

Here, Plaintiffs’ state law claims are based on the alleged use of I Need to Love

in A Lonely Night and the reproduction, public distribution, and public performance

of A Lonely Night. Since Plaintiffs have no contractual relationship with Defendants,

there is no “extra element” that makes the nature of their state law claims anything

other than copyright claims. As a result, Plaintiffs’ state law claims for an accounting,

constructive trust, and unjust enrichment are preempted. Worth v. Universal Pictures,

Inc., 5 F. Supp. 2d 816, 823 (C.D. Cal. 1997) (accounting claim preempted); Salim v.

Lee, 202 F. Supp. 2d 1122, 1127 (C.D. Cal. 2002) (constructive trust claim

preempted); Montz v. Pilgrim Films & Television, Inc., 649 F.3d 975, 976 (9th Cir.

2011) (unjust enrichment claim preempted).

For each of these different reasons, Plaintiffs also fail to raise a genuine issue

as to their state law claims.

(e) Defendants’ Alternative Motion for Partial Summary Judgment

Defendants submit that there is no genuine dispute and Plaintiffs’ claims fail

for multiple independent reasons. However, if, for any reason, summary judgment is

not granted to all Defendants on all claims, then Defendants respectfully submit that

summary judgment or partial summary judgment should be entered in favor of each

Defendant as to whom Plaintiffs fail to present evidence raising a genuine dispute as

to his or its alleged liability. In addition, partial summary judgment should be entered

that I Need to Love and A Lonely Night are not strikingly similar, that A Lonely Night


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does not copy I Need to Love, and that A Lonely Night does not copy elements of I

Need to Love that are original to Plaintiff.

CONCLUSION

Plaintiffs are unable to raise a genuine dispute as to the required elements of

their claim for direct copyright infringement claim and, with the collapse of that claim

and for additional reasons as well, their secondary infringement claims and state law

claims evaporate. Defendants respectfully submit that summary judgment should be

granted.

Dated: June 1, 2020 /s/ Peter Anderson Peter Anderson, Esq. Nicolette Vairo, Esq.

DAVIS WRIGHT TREMAINE LLP Attorneys for Defendants

ABEL M. TESFAYE, KARL MARTIN SANDBERG, SAVAN

HARISH KOTECHA, AHMED BALSHE, JASON QUENNEVILLE, WASSIM SALIBI,THE WEEKND XO, LLC, THE WEEKND

XO, INC., THE WEEKND XO MUSIC, ULC, DAHEALA & CO., LLC, SAL & CO

MANAGEMENT LP, SAL & CO LP, XO&CO., INC., UNIVERSAL MUSIC

GROUP, INC., UMG RECORDINGS, INC., UNIVERSAL MUSIC PUBLISHING, INC.,

UNIVERSAL MUSIC CORPORATION, KOBALT MUSIC PUBLISHING

AMERICA, INC., WARNER CHAPPELL MUSIC, INC., W CHAPPELL MUSIC

CORP., SONGS MUSIC PUBLISHING, LLC, ARTIST NATION MANAGEMENT GROUP, INC., MXM, LLC, MXM MUSIC,

AB, and WOLF COUSINS


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