Opinion
3:21-cv-00211-AR
01-25-2024
VINCENT A. AMBROSETTI, Plaintiff, v. OREGON CATHOLIC PRESS, and BERNADETTE FARRELL, Defendants.
FINDINGS AND RECOMMENDATION
JEFF ARMISTEAD UNITED STATES MAGISTRATE JUDGE
“Emmanuel” and “Christ Be Our Light” are Catholic liturgical songs. “Emmanuel” was composed in 1980 by Vincent Ambrosetti and “Christ Be Our Light” was composed in 1993 by Bernadette Farrell. Ambrosetti alleges that “Christ Be Our Light” infringes his copyright for “Emmanuel,” arguing that bars 1 to 12 of both songs are substantially similar. He also contends that Farrell had access to “Emmanuel” through Owen Alstott, her husband, who worked as a publisher for Oregon Catholic Press (OCP), and because “Emmanuel” was performed at national and regional Catholic music conventions and was widely distributed. Ambrosetti seeks damages from OCP for licensing “Christ Be Our Light” and publishing it in various hymnals and songbooks. Defendants Farrell and OCP move for summary judgment against plaintiff Ambrosetti's copyright infringement claim, arguing that there is no genuine issue of material fact that defendants had access to “Emmanuel” and that the songs are substantially similar. Defendants alternatively move for partial summary judgment on damages.
In September 2019, OCP filed an action against Ambrosetti seeking a declaration of noninfringement. The cases were consolidated on August 27, 2021. OCP v. Ambrosetti, Case No. 3:19-cv-01397-AR. (Order, ECF No. 52.)
As the court explains below, defendants have met their burden of showing that there is no genuine issue of material fact as to whether they had access to “Emmanuel.” Because Ambrosetti must prove access and substantial similarity to prevail on his copyright infringement claim, a lack of access to “Emmanuel” is alone a basis for granting defendants' motion for summary judgment. Even so, defendants have also demonstrated that there is no material issue of genuine fact as to the songs' substantial similarity. That is an additional basis to grant defendants' motion. And, even if Ambrosetti could overcome those conclusions as to the merits of his infringement claim, he did not register “Emmanuel” soon enough to entitle him to statutory damages and attorney fees. He is therefore limited to actual damages and profits accrued from May 8, 2017 (the prior three years from the filing date of this infringement action) in the event he could establish copyright infringement.
BACKGROUND
A. Ambrosetti and “Emmanuel”
Ambrosetti, a musical composer of Catholic liturgical music, publishes his music through International Liturgy Publications (ILP). (Decl. Leonard DuBoff Ex. 1, Ambrosetti Dep. At 4:19 24, ILP Dep. at 3:14-23, ECF No. 101-1.) ILP published Ambrosetti's composition “Emmanuel” in the Singing Holy! songbook in 1980 and in in another songbook, titled I Will Sing, in 1985. (Ambrosetti Dep. at 19:9-18, 39:23-40:1, ECF No. 101-1 at 20.) “Emmanuel” was published again in 1987 as part of a licensing agreement between ILP and the Daughters of St. Paul. (Ambrosetti Dep. 39:7-17.) It was not until December 30, 2019, that Ambrosetti registered “Emmanuel” with the U.S. Copyright Office. (Compl. Ex. 1, ECF No. 1-1.)
Exhibit 1 to Leonard DuBoff's Declaration attaches excerpts of Vincent Ambrosetti's deposition taken on January 5, 2022, and Ambrosetti's Rule 30(b)(6) deposition taken on January 6, 2022, in his representative capacity for ILP. (DuBoff Decl. Ex. 1, ECF No. 101-1.) For clarity, the court refers to Ambrosetti's Rule 30(b)(6) deposition as the “ILP Dep.”
Ambrosetti also commercially recorded “Emmanuel.” In 1985, he did so as part of the I Will Sing collection, and that same year with the National Philharmonic Orchestra of London. (DuBoff Decl. Ex. 1, Pl.'s Answer to Interrog. No. 5, ECF No. 101-1; DuBoff Decl. Ex. 1, Answer to Interrog. No. 7; Ambrosetti Decl. ¶ 6, ECF No. 104-1.) In 1987 and 1989, Ambrosetti commercially recorded “Emmanuel” with the Baltimore Symphony Orchestra. (DuBoff Decl., Ex. 1, Pl.'s Answer to Interrog. No. 5, ECF No. 101-1.)
In addition to publishing and recording “Emmanuel,” Ambrosetti also performed the song. In 1985, Ambrosetti performed “Emmanuel” in a showcase event at the National Association of Pastoral Music (NPM) national convention in Cincinnati, Ohio. (DuBoff Decl. Ex. 1, Answer to Interrog. No. 7; Ambrosetti Decl. ¶ 6.) The NPM is a nonprofit association whose primary purpose is to support musicians serving the Catholic Church. (Limb Decl. ¶ 2, ECF No. 101-4.) At that time, NPM national conventions were popular, and had approximately 4,000 to 5,000 attendees. The conventions included workshops, meetings, speakers, and about 25 showcase events in which a music publisher would perform and promote their work. The NPM national convention would hold six to eight showcase events concurrently in separate rooms or buildings. (Id.)
The NPM also held regional conventions with about 1,000 attendees; the regional conventions had a similar format for showcase events. (Id. ¶¶ 3-4.) Ambrosetti performed “Emmanuel” with the Daughters of St. Paul at various regional NPM conventions, including a Buffalo convention in 1988. (Ambrosetti Decl. ¶ 8q.) From about 1991 to 1999, Ambrosetti traveled throughout the United States performing his music, including “Emmanuel,” at various parishes, dioceses, and other organizations. (Id., Pl.'s Answer to Interrog. No. 6.)
B. Farrell and “Christ Be Our Light”
Farrell, who lives in London, England, also composes Catholic liturgical music. (DuBoff Decl. Ex. 2, Farrell Decl. ¶¶ 1, 11, ECF No. 101-2). In the 1980s, Farrell was a member of a group of composers who gave workshops at the St. Thomas More Centre in East London. (Farrell Decl. ¶ 2.) In 1986, Alstott traveled to London and negotiated with the composers to publish their works on behalf of OCP. Since that time, OCP has been the sole publisher of Farrell's musical works. (Id.)
At various points in the late 1980s and early 1990s, Farrell traveled to the United States. In 1987, she traveled to the United States for the first time to work as a University of Notre Dame faculty member to conduct a workshop on pastoral liturgy. (Id. ¶ 3.) The next year Farrell attended NPM regional conventions in Buffalo, New York, and Peoria, Illinois. (Id. ¶ 4.) At those regional conventions, she sang in the OCP choir for OCP showcase events without attending other showcase events or visiting the booths of other publishers. (Id.) In 1989, Farrell attended an NPM national convention in Long Beach, California, where she conducted workshops. (Id. ¶ 5.) Farrell traveled to Milwaukee, Wisconsin and Washington, D.C., in 1990 to work on a paper and assist with workshops. (Id. ¶ 6.) In 1991, she served as an instructor at the NPM music theory and composition school, later traveling to Los Angeles to coproduce a sound recording of some of her own works. (Id. ¶ 7.)
In 1991, Farrell and Alstott began a personal relationship. (DuBoff Decl. Ex. 3, Alstott Decl. ¶ 1, ECF No. 101-3.) Farrell traveled twice in 1992 to Portland, Oregon to visit Alstott, to whom she was engaged. (Farrell Decl. ¶ 8.) After Farrell and Alstott married in October 1992, Alstott moved to London. (Farrell Decl. ¶ 8; Alstott Decl. ¶ 1.)
Farrell composed “Christ Be Our Light” in February or March 1993 for a liturgy led by Cardinal Basil Hume in St. Gabriel's Roman Catholic Church in London. (Farrell Decl. ¶ 9.) Farrell was then employed by Westminster Roman Catholic Diocese. (Id.) In 1994, OCP entered into a licensing agreement with Farrell to publish “Christ Be Our Light,” and OCP has since published “Christ Be Our Light” in sheet music, hymnals, and sound recordings. (DuBoff Decl. Ex. 4, Limb Decl. ¶ 6, ECF No. 101-4.)
Farrell states that she did not know of “Emmanuel” or Ambrosetti until she was named as a defendant in a lawsuit filed by Ambrosetti in the U.S. District Court for the Northern District of Indiana in 2019. (Farrell Decl. ¶ 11.) Alstott contends that he does not recall meeting Ambrosetti or communicating with him prior to Ambrosetti's lawsuit. (Alstott Decl. ¶¶ 4, 7.)
C. Expert Reports and Declarations
1. Lawrence Ferrara - Preliminary Report
Lawrence Ferrara is a musicologist retained by Ambrosetti. In November 2016, Ferrara prepared an eight-page Preliminary Report comparing the musical scores of “Emmanuel” and “Christ Be Our Light.” (Decl. Lawrence Ferrara, ECF No. 103-2 at 43-50 (attaching the Preliminary Report).) He states that both “Emmanuel” and “Christ Be Our Light”
• are structured in a verse/refrain form;
• have verse portions of 16 bars, or measures, in length;
• are in the key of natural E minor;
• have four melodic phrases of four bars each, and that the main similarities are in bars 112, which contain the verses of both songs; and
• are in 3/4 meter.(Ferrara Prelim. Report ¶¶ 5, 6, 7.) Ferrara acknowledges that the refrain of “Christ Be Our Light” changes to the key of G major. (Id. ¶ 6 n.2.)
Ferrara notes that pitches can be identified by their scale degrees, and the first eight pitches in bars 1 to 4 in “Christ Be Our Light” are identical to the first eight pitches in “Emmanuel.” (Id. ¶¶ 8-9.) The scale degrees for bars 1 to 4 for “Emmanuel” are 5-1-2-3-2-1-7-12-5 and the scale degrees for “Christ Be Our Light” are 5-1-2-3-2-1-7-1-5. (Id. ¶ 8.) Further, the scale degree 5 is the lowest pitch in both songs, scale degree 3 is the highest pitch in both songs, both melodies begin and end on scale degree 5, and both melodies reach their highest pitch of scale degree 3 in the same sequence. (Id. ¶ 9.) According to Ferrara, the metrical placement in bars 1-4 is not the same because “Emmanuel” begins one beat earlier. Ferrara further states that the rhythmic durations of seven of nine pitches are identical to the rhythmic durations of the corresponding pitches. That similarity is illustrated by Ferrara in the following notation, with dotted lines connecting the identical pitches in Phrase 1:
(Image Omitted)
(Id.)
Ferrara identifies six of eight pitches in bars 5 to 8 of “Emmanuel” and “Christ Be Our Light” as identical in pitch sequence, and observes that in both songs, scale degree 5 is the lowest pitch, the same pitch sequence occurs until reaching the highest pitch degree of 4, and the pitch sequence ends on scale degree 1. (Id. at ¶ 13.) The scale degrees for bars 5 to 8 in “Emmanuel” are 5-1-2-3-4-3-2-1; the scale degrees for bars 5 to 8 in “Christ Be Our Light” are 5-1-2-3-4-2-7-1. (Id. ¶ 12.) Because “Emmanuel” begins one beat earlier, Ferrara acknowledges that the metrical placement is not the same. But, in his opinion, the rhythmic durations in five of eight pitches are identical to the rhythmic durations in corresponding identical pitches in both songs, with the same long rhythmic duration of the final pitch. Ferrara illustrates those rhythmic durations with dotted lines in Phrase 2:
(Image Omitted)
(Id.)
Ferrara explains that the scale degrees for bars 9 to 12 in “Emmanuel” are 6-5-4-3-4-5-35; the scale degrees for bars 9 to 12 in “Christ Be Our Light” are 3-4-5-6-4-3-4-5-3. (Id. ¶ 17.) Although not identical, Ferrara notes that the last 5 pitches in “Christ Be Our Light” are identical in pitch sequence to corresponding pitches in “Emmanuel.” Those points are illustrated by Ferrara as follows:
(Image Omitted)
(Id. ¶ 15.)
Ferrara also states that in terms of highest pitches, the melodic development in bars 1 to 12 is the same; in Phrase 1 the highest pitch is on scale degree 3, in Phrase 2, it is on scale degree 4, and in Phrase 3, the highest pitch is on scale degree 6. He also notes that the lowest pitches in Phrases 1 and 2 are the same, as are first and last pitches in phrases 1 and 2. (Id. ¶ 18.) In analyzing prior art and compositions that embodied the same pitch sequence in bars 1 to 4 (5-12-3-2-1-7-1) of “Emmanuel” and “Christ Be Our Light,” he did not find any compositions that embody the aggregate of melodic similarities in bars 1-12, “including the melodic development of high notes respectively on scale degrees ‘3,' ‘4,' and ‘6' in each of the three 4-bar melodic phrases at issue.” (Id. ¶ 20.) Ferrara concludes that “the aggregate of melodic similarities between ‘Emmanuel' and ‘Christ Be Our Light' constitutes a significant amount of expression and provides strong objective musicological evidence of copying.” (Id. at ¶ 21.)
2. Ferrara's Rebuttal Expert Report
Ferrara prepared an expert rebuttal report responding to defendants' Expert Report by Judith Finell, dated July 2021. (Decl. Lawrence Ferrara, ECF No. 103-2 at 58 (attaching the Ferrara Rebuttal Report).) In Ferrara's view, Finell's Expert Report fails to properly address melodic development and melodic structure. (Ferrara Rebuttal Report ¶10.) That is, when the melodies in “Emmanuel” and “Christ Be Our Light” are properly aligned, 21 of 23 notes share the same pitch sequence, and that none of the prior artwork identified by Finell embodies the same amount of melodic expression. (Id. ¶¶ 12-13.) Further, Ferrara contends that Finell's Expert Report misses the importance of the similarity in scale degrees and over-emphasizes metrical placement. (Id. ¶ 17.) Although the metrical placement is different, Ferrara believes that simply beginning the melody of “Christ Be Our Light” one beat later than “Emmanuel” does not undermine the similarities of the entire 26-note melodies. (Id. ¶ 17.)
Finell prepared an expert report dated July 27, 2021, that includes her own affirmative report comparing “Emmanuel” and “Christ Be Our Light” and a rebuttal to Ferrara's Preliminary Report. (Ferrara Rebuttal Report ¶ 4, ECF No. 103-2 at 58.) Defendants did not include Finell's Expert Report with their summary judgment materials. Instead, they rely on Finnell's Declaration.
Ferrara's Rebuttal Report identifies 23 aggregate similarities between “Emmanuel” and “Christ Be Our Light”:
a. the key of E minor
b. 3/4 meter
c. verse/refrain form
d. verses that are exactly 16 bars in length
e. melodic phrases in each verse that are exactly 4 bars each
f. a total of exactly 26 notes in Phrases 1, 2, and 3 in the melody in bars 1-12 of each verse
g. the entire 12-bar melody is wholly based on the E natural minor
scale with no “leading tone” D-sharp h. the entire 12-bar harmony does not include a single B major (dominant) chord i. consecutive and contiguous melodic development of the verse melody in Phrase 1, 2, and Phrase 3 from bars 1-12
j. in melodic Phrase 1, nine notes in “Christ Be Our Light” share the same scale degrees with nine of 10 corresponding notes in “Emmanuel”
k. in melodic Phrase 1, seven of nine notes (77 percent) in “Christ Be Our Light” share the same rhythmic durations with corresponding notes in “Emmanuel”
l. the first and last notes of melodic Phrase 1 in “Emmanuel” and “Christ Be Our Light” are on scale degree 5
m. scale degree 5 is the lowest pitch in melodic Phrase 1 of “Emmanuel” and “Christ Be Our Light”
n. scale degree 3 is the highest pitch in melodic Phrase 1 of “Emmanuel” and “Christ Be Our Light”
o. in melodic Phrase 2, six of eight notes (75 percent) in “Christ Be Our Light” share the same scale degrees (5-1-2-3-4 and ending on 1) with corresponding notes in “Emmanuel”
p. in melodic Phrase 2, four of eight notes (50 percent) share the same rhythmic durations with corresponding notes in “Emmanuel”
q. the first note is on scale degree 5 and the last note is on scale degree 1 in melodic Phrase 2 of both songs r. scale degree 5 is the lowest pitch in melodic Phrase 2 of both songs s. scale degree 4 is the highest pitch in Phrase 2 of both songs t. in melodic Phrase 3, six of nine notes (66.6 percent) in “Christ Be Our Light” share the same scale degrees (6-4-3-4-5-3) with eight corresponding notes in “Emmanuel”
u. in melodic Phrase 3, three notes (33.3 percent) share the same
rhythmic durations with corresponding notes in “Emmanuel”
v. scale degree 6 is the highest pitch in melodic Phrase 3 of both songs
w. scale degree 3 is the lowest pitch in melodic Phrase 3 of both songs.(Id. ¶ 47.) Although Ferrara acknowledges that some similarities such as key, meter, and verse/refrain form are musical building blocks, he argues that when they are combined with the remaining similarities, such as melodic development, rhythmic duration, and shared lowest and highest pitches, they contribute to the aggregate similarities between the songs. (Id. ¶ 47 n.8.) Ferrara also takes issue with the prior art Finell identifies because it failed to include direct links to or copies of the prior art she relied on and does not embody the melodic similarities shared by “Emmanuel” and “Christ Be Our Light” in melodic Phrases 1, 2, and 3. (Id. ¶ ¶55, 58.) None of the prior art Finell relies on, in Ferrara's view, provides the same consecutive melodic development across 12 bars as that contained in “Emmanuel” and “Christ Be Our Light.” (Id. ¶¶ 60-124.)
3. Judith Finell Declaration
Judith Finell is a musicologist retained by defendants as an expert. Finell submitted a Declaration dated February 18, 2022, in support of defendants' motion for summary judgment (Finell Decl., ECF No. 101-5.) Finell believes that the refrains and lyrics to both songs are significantly different. (Id. ¶ 3.) In her view, Phrase 1 of “Emmanuel” and “Christ Be Our Light” (bars 1 to 4) are different rhythmically and do not align metrically. (Id. ¶ 5.) That is, Phrase 1 of “Emmanuel” begins on an upbeat, which is unstressed, and that the upbeat placement choice affects the pattern of melodic and lyrical stresses throughout Phrases 1, 2, and 4. (Id.) Conversely, Finell states that “Christ Be Our Light” begins on the downbeat, which is stressed. (Id.)
Further, “Emmanuel” and “Christ Be Our Light” are written in a natural minor key, and melodic phrases in a natural minor key often end on scale degrees 1, 3, or 5, because they correspond with the scale's tonic chord, which is important because tonic chords are the most essential chord of a traditional scale in western musical culture. (Id. ¶ 6.) Finell attests that ending a melodic phrase on the same scale degree as where it began is a commonplace technique, dating back to Ninth century Gregorian Chants, and that the technique has been used in over 20,000 musical works. Consequently, the use of the tonic scale and beginning and ending a melodic phrase on the same scale degree does not imply copying. (Id.)
Finell also opines that Phrase 4 uses a pitch sequence that is commonplace and has been used for centuries. For example, the pitch sequence of Phrase 4 of “Emmanuel” - 3-4-3-2-3-2-1 - is a commonplace cadential formula and shares the pitch sequences in “Chim Chim Cher-ee,” “Russian Easter Festival Overture,” and “Sunrise, Sunset.” (Id. ¶ 4.)
4. Ferrara Declaration
In a 25-page Declaration supporting Ambrosetti's response to defendants' motion for summary judgment, Finell's Declaration, and a declaration by Leonard DuBoff, who is defendants' counsel, Ferrara challenges a number of defendants' characterizations and arguments, including that defendants fail to properly consider rhythmic durations, melodic development, and melodic phrase structure. (Ferrara Decl., ECF No. 103-2 at 1-25.) Also challenged by Ferrara is defendants' emphasis on pitch sequence and, in his view, defendants erroneously reduce Phrase 1 to pitch alone, “obfuscating” the combined similarities in pitches, scale degrees, and rhythmic durations. (Id. ¶ 14.) According to Ferrara, defendants' discussion of stressed and unstressed notes blurs the ability to see the scale degrees and similarity of the notes accurately. (Id. ¶¶ 25-26.)
Ferrara also disputes defendants' analysis of “Awake, Awake to Love and Work,” “Huron Carol,” and “Russian Easter Overture,” contending that they are not useful comparators. As for Finell's evaluation of “Chim Chim Cher-ee,” “Russian Easter Overture,” and “Sunrise, Sunset,” she failed to discuss rhythmic durations, thus making the comparisons between “Emmanuel,” “Christ Be Our Light,” and those songs incomplete. (Id. ¶¶ 28-58.) Ferrara criticizes Finell's analysis and methodology used in her Declaration. Although Ferrara agrees with Finell that a natural minor key, ending melodic phrases on scale degrees 1, 3, and 5, and ending a melodic phrase on the same scale degree on which it is has begun are commonplace musical building blocks, he contends that Finell overlooks the other significant similarities in musical expression in bars 1 to 12, including the same pitch and scale degree, melodic phrase structure, and melodic development. (Id. ¶ 62.)
5. Finell Reply Declaration
Finell prepared a two-page Reply Declaration dated March 25, 2022. Finell attests that beginning two musical phrases with the same sequence of notes is commonplace practice in liturgical works and other genres of music. (Finell Reply Decl. ¶ 2, ECF No. 107-3.) Finell also attests that ending a musical phrase with a long note is commonplace, and that the final note in a musical phrase is often in a stressed metrical position and on scale 1, 3, or 5 because those are the primary notes in a tonic chord. (Id. ¶ 3.)
PRELIMINARY PROCEDURAL MATTERS/EVIDENTIARY OBJECTIONS
Before turning to the merits of the parties' arguments, the court resolves evidentiary objections raised by Ambrosetti and defendants in their briefing. Ambrosetti raises various evidentiary objections, and defendants object to Ambrosetti's introduction of late evidence consisting of notes authored by Alstott and a new “channel of communication theory” to establish access under Federal Rules of Civil Procedure 26 and 37.
Because the court does not have full consent in this case, the court's rulings on the admissibility of defendant's proffered exhibits and Ambrosetti's channel of communication relate solely to resolving the issues at summary judgment.
A. Ambrosetti's Objections
1. Tables on pages 17, 18, and 20 in defendants' motion
Ambrosetti argues that these tables should be excluded because they were not in Finnell's expert reports and lack a proper foundation. Defendants respond that the tables are not expert opinion, and instead are factual material that can be discerned from the musical scores of “Emmanuel” (Exhibit 3) and “Christ Be Our Light” (Exhibit 4) in support of defendants' motion.
The tables at pages 17, 18, and 20 set out the lyrics and duration of the notes in Phrases 1, 2, and 3 that Ambrosetti contends “Christ Be Our Light” copied in a box format, as opposed to depicting the musical notes on the staff. Ambrosetti does not object to the accuracy of the information in the tables. The information is highly relevant and is supported by the musical scores of “Emmanuel” and “Christ Be Our Light” in Exhibits 3 and 4 and numerous other exhibits comparing the two songs. Accordingly, there is ample admissible evidence supporting defendants' demonstrative tables. FED. R. EVID. 1006; see generally United States v. Aubrey, 800 F.3d 1115, 1130-31 (9th Cir. 2015) (finding district court did not err in admitting summary evidence and charts where premised on admissible data and its accuracy was not questioned). Ambrosetti's objection to the tables is overruled.
2. “Awake, Awake to Love and Work”
Ambrosetti objects to defendants' use of the song “Awake, Awake to Love and Work” at pages 18-19 in their motion, and moves to exclude Exhibit 7 (attaching a copy of the “Awake, Awake to Love and Work” score), and paragraph 9 of DuBoff's Declaration, referencing Exhibit 7. (Pl. Opp'n at 49, ECF No. 103.) Because Finnell did not discuss this song in her initial Expert Report, her Rebuttal Expert Report, or in her declaration, Ambrosetti argues that it lacks foundation from an expert and must therefore be excluded.
The court is unpersuaded. Evidence presented in support of or in opposition to a motion for summary judgment must be based on personal knowledge, properly authenticated, and admissible under the Federal Rules of Evidence. FED. R. CIV. P. 56(c)(4). To authenticate an item of evidence, “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” FED. R. EVID. 901(a). Here, Krages' declaration sufficiently attests that “Consolation” was produced to Ambrosetti during discovery, and that “Awake, Awake to Love and Work” is premised on “Consolation,” and the court observes that Ambrosetti was asked about “Awake, Awake to Love and Work” during his deposition. (Ambrosetti Dep. 15:14-15.) For all those reasons, the court overrules Ambrosetti's objections to defendants' use of “Awake, Awake to Love and Work,” Exhibit 7, and paragraph 9 of DuBoff's Declaration.
3. DuBoff Declaration Paragraph 1
Ambrosetti's objection to paragraph 1 of Leonard DuBoff's declaration, in which DuBoff simply attests that he is counsel for defendants, is without merit and is overruled.
4. DuBoff Declaration Exhibit 8 Audio Files
Ambrosetti objects to the audio files submitted concurrently with Exhibit 8 because they are not relevant under the Ninth Circuit's extrinsic test and their limited probative value is substantially outweighed by their danger of prejudice under Federal Rule of Evidence 403. Defendants respond that the audio files are relevant, that the court can be trusted to apply the extrinsic test, and that the audio files are not overly prejudicial. Defendants are correct. When determining if a genuine issue of material fact exists on a summary judgment motion, the court necessarily applies the underlying legal standards, and “objections to evidence on the ground that it is irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself.” Burch v. Regents Univ.of Cal., 433 F.Supp.2d 1110, 1119 (E.D. Cal. 2006).
Nevertheless, the court recognizes that examining whether the works are substantially similar based on their sound is a subjective assessment, and is not performed by the court at the summary judgment phase. Accordingly, the court has not considered the audio tracks for purposes of this motion. Williams v. Bridgeport Music, Inc., Case No. LA CV 13-06004 JAK (AGRx), 2014 WL 7877773, at *4, n.4 (C.D. Cal. Oct. 30, 2014).
5. Finell Declaration Paragraphs 4, 7, and Exhibit 1
Ambrosetti objects to Paragraphs 4, 7, and Exhibit 1 of Finell's Declaration. Ambrosetti contends that paragraphs 4 and 7 should be excluded “because these audio are not relevant” under the Ninth Circuit's extrinsic test, and that their probative value is substantially outweighed by the danger of confusion. Defendants respond that paragraphs 4 and 7 of her declaration authenticate Exhibit 1, and that her declaration does not encompass expert opinion, but merely factual material.
Exhibit 1 contains limited portions of musical works including “Chim Chim Cher-ee” from Mary Poppins, “Sunrise, Sunset” from Fiddler on the Roof, and the first musical phrase of “Russian Easter Festival Overture” composed by Nikolai Rimsky-Korsakov. (Finnell Decl. ¶¶ 4, 7.) Ambrosetti does not dispute the accuracy of the contents of Exhibit 1, or the information contained in paragraphs 4 and 7 of Finnell's Declaration. The court notes that Exhibit 1 does not contain or reference audio files. Thus, the court finds paragraphs 4, 7, and Exhibit 1 are properly authenticated. FED. R. EVID. 901(a). And as discussed above, relevancy objections at the summary judgment stage are redundant of the court's obligations. Burch, 433 F.Supp.2d at 1119. Consequently, to the extent that the evidence submitted by any party represents a legal conclusion, the court will not factor that material into the decision. For all those reasons, Ambrosetti's objections are overruled.
B. Defendants' Objections
On February 18, 2022, just five days before the dispositive motion deadline, Ambrosetti disclosed to defendants for the first time that he submitted copies of “Emmanuel” to OCP in 1986. (Krages Decl. ¶ 2, ECF No. 107-1.) During counsels' LR 7-1 summary judgment conferral telephone call, Ambrosetti's attorney Donald Schmid informed defendants' attorney Bert Krages that he had copies of notes from Owen Alstott, the former OCP publisher and Farrell's husband, written to Ambrosetti and dated December 31, 1986, and February 23, 1987. (Id. ¶ 2.) Alstott's notes acknowledge receipt by OCP of Ambrosetti's music, which included an audio recording and musical score of “Emmanuel.” Defendants argue that before the February 2022 phone call between counsel, Ambrosetti never asserted that OCP and Alstott acted as conduits to Farrell by having received a copy of “Emmanuel.” (Id. ¶ 3.)
In his opposition to defendants' motion for summary judgment, Ambrosetti asserts that Farrell learned of “Emmanuel” through her husband, relying on the late-discovered Alstott notes. Ambrosetti argues that he met Alstott at the Cincinnati NPM convention in 1985, where he gave Alstott a copy of a recording of “Emmanuel” and the music book I Will Sing. (Ambrosetti Decl. ¶ 11; Alstott Decl. ¶ 1.) Ambrosetti later sent Alstott in December 1986 a second recording of “Emmanuel,” which was included on a cassette tape with the Singing Holy! collection. (Ambrosetti Decl. ¶ 11.) Alstott sent Ambrosetti a note, dated December 31, 1986, acknowledging receipt of his music materials. (Ambrosetti Decl. Ex. 3, ECF No. 104-1, at 17.) Also sent by Alstott to Ambrosetti was a second note, dated February 23, 1987, stating that he was “impressed with some of the songs on the collection,” that Ambrosetti sent only a portion of the materials, and asked Ambrosetti to send the remainder. (Ambrosetti Decl. Ex. 4, ECF No. 104-1, at 19.) In a declaration submitted with defendants' motion, Alstott responds that he has no memory of meeting Ambrosetti. (Alstott Decl. ¶ 4.) According to Alstott, he wrote hundreds of notes like those sent to Ambrosetti, and that only two or three percent of music submitted to OCP would have been referred to an OCP review committee. (Id. ¶ 5.) Alstott further provides that he always tried to respond positively when responding to persons who submitted music. (Id.) OCP either returned or destroyed rejected musical submissions. (Id. ¶ 6.)
Defendants object to the late-discovered evidence and assert that under Rules 26 and 37, Ambrosetti should be precluded from relying on Alstott's notes because they were produced well after fact discovery closed and just days before the dispositive motion deadline. Defendants also argue that Ambrosetti should be precluded from arguing that Alstott acted as a conduit between “Emmanuel” and Farrell to create a genuine issue of material fact on access in his summary judgment response.
Rule 26 provides that “a party must, without awaiting a discovery request, provide to the other parties . . . the name and, if known, the address and telephone number of each individual likely to have discoverable information - along with the subjects of that information - that the disclosing party may use to support its claims or defenses.” FED. R. CIV. P. 26(a)(1)(A). “Compliance with Rule 26's disclosure requirements is ‘mandatory.'” Ollier v. SweetwaterUnion High Sch. Dist., 768 F.3d 843, 862-63 (9th Cir. 2014) (quoting Republic of Ecuador v.Mackay, 742 F.3d 860, 865 (9th Cir. 2014)). Rule 37 gives teeth to Rule 26, stating that if “a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information . . . to supply evidence on a motion [or] at a hearing . . . unless the failure was substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1); Yeti byMolly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). “The party facing sanctions bears the burden of proving that its failure to disclose the required information was substantially justified or is harmless.” R & R Sails, Inc. v. Ins. Co. of Pa., 673 F.3d 1240, 1246 (9th Cir. 2012).
The court concludes that the Alstott notes must be excluded and that Ambrosetti is prohibited from advancing a conduit theory of access premised on Alstott and OCP having received copies of “Emmanuel” as a sanction for failing to previously uncover and provide this evidence, for several reasons. First, it is undisputed that Alstott's notes were produced after the discovery cutoff and after depositions were conducted. As Krages' Declaration makes clear, Ambrosetti produced the Alstott notes on February 18, 2022, just days before the dispositive motion deadline.
Second, despite the undisputed tardiness of the disclosure, Ambrosetti's response to defendants' summary judgment motion relies on Alstott's notes to advance an argument that Farrell learned of “Emmanuel” through Alstott. It is unknown what specific date Ambrosetti uncovered the letters; Schmid informed Krages in an email that the documents were “recently found.” (Krages Decl. Ex. 10.) Neither Ambrosetti nor Schmid explain how the documents came to be found or why the documents were not discovered sooner in their declarations filed with his summary judgment response. (Schmid Decl., ECF No. 103-3; Ambrosetti Decl. ¶¶ 11-13, ECF No. 104-1.) At oral argument, Schmid stated that Ambrosetti uncovered the documents “fortuitously” when organizing old financial files. Ambrosetti did not file a surreply memorandum addressing defendants' evidentiary objection. See LR 56-1 (providing that if the moving party files an evidentiary objection, the non-moving party may file a surreply within seven days). Thus, Ambrosetti makes no meaningful effort to satisfy his burden to demonstrate substantial justification. Given that Ambrosetti and OCP have been ensnarled in litigation since 2016 (see, e.g., Op. & Order, ECF No. 38), the court wonders how at this late stage relevant documents could continue to be unearthed.
Third, Ambrosetti has not demonstrated that his failure to uncover the Alstott notes sooner is harmless. R&R Sails, 673 F.3d at 1246-47 (noting that party attempting to rely on late-produced evidence bears burden of demonstrating harmlessness). Ambrosetti's complaint alleges that “Emmanuel” was widely distributed in sacred songbooks, Catholic radio, and played at music showcases at NPM conventions. (Compl. ¶¶ 11-12, 14.) Ambrosetti's initial Rule 26 disclosures fail to identify Alstott as a person with knowledge supporting his contention that Farrell was familiar with “Emmanuel” prior to composing “Christ Be Our Light.” (Krages Decl. ¶ 3.) Ambrosetti's answers to defendants' interrogatories do not identify Alstott as a means of Farrell becoming familiar with “Emmanuel.” Defendants assert that they relied on Ambrosetti's answers and wide-dissemination theory when they took his deposition; during Ambrosetti's 30(b)(6) deposition for ILP on January 6, 2022, he denied possessing any documents dated before 1993 other than musical scores and organizational documents; and Ambrosetti did not state or suggest during those depositions that he provided copies of “Emmanuel” to OCP or Alstott. (Id.)
Ambrosetti's actions are not harmless; he not only wants to introduce evidence not produced during discovery, but also rely on that evidence to advance a new legal theory not previously alleged or pursued during discovery. Prior to production of the Alstott notes, defendants had no reason to conduct discovery with respect to Alstott or OCP acting as a conduit to Farrell. SeeOllier, 768 F.3d at 862 (stating that Rule 26 disclosure requirements are designed to “encourage parties to try cases on the merits, not by surprise, and not by ambush”). Ambrosetti's complaint, Rule 26 disclosures, and interrogatory responses did not disclose or suggest that OCP generally or Alstott specifically received a copy of “Emmanuel.” Ambrosetti cites no legal authority finding similar conduct harmless and the court declines to undertake such a search. As with his failure to show substantial justification, Ambrosetti makes no effort to satisfy his burden of showing harmlessness. Because Ambrosetti has not satisfied his burden of demonstrating substantial justification or harmlessness, the court excludes Alstott's notes from consideration of the evidence on summary judgment. The court also strikes paragraphs 11 to 13 of Ambrosetti's Declaration, which are premised on Alstott's notes. (Ambrosetti Decl. ¶¶ 11-13.) Additionally, as a sanction for the late disclosure, Ambrosetti's attempt to establish a material issue of fact on access through Alstott and OCP as a conduit is excluded from the court's consideration.
LEGAL STANDARDS
Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A party seeking summary judgment bears the burden of establishing the absence of a genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986). If the moving party demonstrates no issue of material fact exists, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. A party cannot defeat a summary judgment motion by relying on the allegations set forth in the complaint, on unsupported conjecture, or on conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Summary judgment thus should be entered against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
In determining whether to grant summary judgment, the court must view the evidence in the light most favorable to the nonmoving party. Curley v. City of N. Las Vegas, 772 F.3d 629, 631 (9th Cir. 2014); Hernandez, 343 F.3d at 1112. All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). But deference to the nonmoving party has limits. The nonmoving party must set forth “specific facts showing a genuine issue for trial.” FED. R. CIV. P. 56(e). The “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Chong v. STL Int'l, Inc., 152 F.Supp.3d 1305, 1309 (D. Or. 2016). Therefore, where “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., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted).
DISCUSSION
A. Copyright Infringement Generally
“Copyright protection extends only to works that contain original expression.” Gray v. Hudson, 28 F.4th 87, 96 (9th Cir. 2022). To establish copyright infringement, Ambrosetti must prove: (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., 499 U.S. 340, 361 (1991). “Original, as the term is used in copyright, means only that the work was independently created by the author . . . and that it possesses at least some minimal degree of creativity.” Feist, 499 U.S. at 345. The parties do not dispute that Ambrosetti owns a valid copyright. Defendants argue that Ambrosetti cannot satisfy the second element - whether Farrell copied constituent elements of “Emmanuel” that are original. Folkens v. Wyland Worldwide, LLC, 882 F.3d 768, 774 (9th Cir. 2018).
Ambrosetti may establish copying through direct or circumstantial evidence. Moement, Inc. v. Groomore, Inc., Case No. 2:22-cv-02871-MWF (JEMx), 2022 WL 18284405, at *7 (C.D. Case Cal. Nov. 29, 2022). Because there is no direct evidence of copying here, Ambrosetti must show: (1) defendants had access to “Emmanuel,” and (2) the music in “Emmanuel” and “Christ Be Our Light” is “substantially similar.” Gray, 28 F.4th at 96. “Summary judgment is not highly favored on questions of substantial similarity, but it is appropriate if [the court] can conclude that ‘no reasonable juror could find substantial similarity of ideas and expression.” Folkens, 882 F.3d at 774 (internal quotation and citation omitted, alteration added).
B. Access
“Proof of access requires an opportunity to view or to copy plaintiff's work.” Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016). To establish access, Ambrosetti 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 Ent. Inc., 581 F.3d 1138, 1143 (9th Cir. 2009). When the evidence access is circumstantial, a plaintiff may prove access by: (1) establishing a chain of events linking “Emmanuel” and defendants' access to that work, or (2) showing that “Emmanuel” was widely disseminated. Loomis, 836 F.3d at 995.
Ambrosetti relies on two theories of access. One theory is that through channels of communications or access, OCP and Alstott could have provided a copy of “Emmanuel” to Farrell. That theory depends on evidence the court has excluded and, therefore, the court will not consider it. His other theory is there was a reasonable possibility of access to “Emmanuel” because it was performed at NPM conventions she attended, was recorded in London in 1985, and, as one of ILP's top song titles, was marketed and distributed worldwide before 1993. The court is unpersuaded that there was more than a bare possibility that Farrell or OCP had the chance to listen to “Emmanuel.”
As to “Emmanuel” being performed publicly with a choir and orchestra as a showcase event at a national NPM convention in Cincinnati in 1985, Farrell did not attend that convention. (Farrell Decl. ¶ 3 (stating that her first trip to the United States was in 1987).) And, although OCP's publisher Alstott attended the Cincinnati NPM convention in 1985, he did not attend any showcase events, and has no recollection of meeting Ambrosetti. (Alstott Decl. ¶¶ 3-4.) John Limb, an OCP publisher, also attended the Cincinnati NPM convention in 1985, but he did not attend the ILP showcase event. (Limb Decl. ¶ 5.) The likelihood that Farrell, or anyone tied to defendants, accessed “Emmanuel” at the Cincinnati OPM convention is thus remote.
Ambrosetti attests in his Declaration that he met Alstott in person at the 1985 Ohio convention, and at that time, gave him a recording of “Emmanuel” and the musical score in the I Will Sing music book. (Ambrosetti Decl. ¶ 11.) As noted above, this portion of Ambrosetti's Declaration has been excluded and may not be used to establish that he provided OCP with a copy of “Emmanuel.” Absent this evidence, he fails to show more than a bare possibility that defendants accessed “Emmanuel” at any NPM convention.
As to the recording of “Emmanuel” in London with the National Philharmonic Orchestra of London in 1985, Ambrosetti testified that the recording was made in a recording studio and that the public was not invited. (DuBoff Decl., Ambrosetti Dep. 78:5-11.) Ambrosetti presents no evidence rebutting defendants' assertion that Farrell did not hear “Emmanuel” when it was recorded in London in 1985.
With respect to the performance of “Emmanuel” at a regional NPM convention in Buffalo in 1988, which Farrell attended, Farrell attests that her attendance was limited to performing at an evening prayer OCP showcase event. (Farrell Decl. ¶ 4; Farrell Dep. 130:1-7, ECF No. 103-3.) And, the regional NPM events had about 1,000 attendees. (Limb Decl. ¶ 3.) Ambrosetti identifies no evidence linking Farrell or OCP to his performance of “Emmanuel” during the Buffalo convention. Thus, the likelihood that Farrell heard “Emmanuel” at the Buffalo NPM convention is too remote. Absent additional evidence, Ambrosetti has not shown a “reasonable possibility of access.” Art Attacks, 581 F.3d at 1144 (holding that alleged infringer's presence at county fair at same time as copyright holder was insufficient to establish reasonable possibility that she viewed dolls at holder's booth); Briggs, 70 F.Supp.3d at 1165 (stating that posting screenplay on website, and that media-savvy short film-maker could have accessed it, failed to establish more than a bare possibility of access). Accordingly, there is no material dispute of fact to support an inference that Farrell or an OCP representative heard “Emmanuel” at the Buffalo convention. SeeRomex Textiles, Inc. v. HK Worldwide, LLC, Case No. CV 18-6543-RSWL-AGR, 2020 WL 1078800, at *4 (C.D. Cal. Feb. 10, 2020) (holding slight chance that defendants may have seen fabric samples was too attenuated to create reasonable possibility that defendants viewed design).
The court turns to whether Ambrosetti's asserted popularity of “Emmanuel” before 1993 establishes a reasonable possibility of access. Generally, “widespread dissemination centers on the degree of a work's commercial success and on its distribution through radio, television, and other relevant mediums.” Loomis, 836 F.3d at 997. Ambrosetti also may show facts suggesting that “Emmanuel” saturated the relevant market in which he and Farrell participate. Id. “Although the Ninth Circuit has not identified a specific threshold for the level of public engagement with a work that constitutes ‘wide dissemination,' its precedent indicates that a work's degree of commercial success and/or notoriety must be substantial.” Segal v. Segel, Case No. 20-cv-1382-BAS-JLB, 2022 WL 198699, at *9 (S.D. Cal. Jan. 21, 2022); see also Rice v. Fox Broad. Co., 330 F.3d 1170, 1178 (9th Cir. 2003) (holding evidence plaintiff sold 17,000 copies of protected video in span of thirteen years inadequate to establish wide dissemination), overruled on other grounds by Skidmore v. Led Zepplin, 952 F.3d 1051, 1064 (9th Cir. 2020) (en banc); Art Attacks, 581 F.3d at 1144-45 (holding evidence plaintiff sold 2,000 t-shirts bearing protected design inadequate to establish wide dissemination).
Notably, Ambrosetti provides no evidence of sales of “Emmanuel” or his songbooks in the United Kingdom and admitted in his deposition that he was unsure whether his songbooks were stocked in bookstores there. (Ambrosetti Dep. 54:24-55:4.) Ambrosetti also admitted that he never toured or publicly performed “Emmanuel” in Great Britain. (Id. at 70:20-23 (admitting that he performed Ireland, but otherwise did not perform or tour in the U.K.).) Ambrosetti alleges that his music was played on Catholic radio stations yet admits that he did not receive any domestic or international royalties. (Id. at 72:10-18.) He also believes that his music had an international reach and was played on Catholic radio stations outside of the United States, but he bases that belief on receiving telephone calls or letters. (Id. at 72:23-73:13.) Yet a 1994 ILP newsletter stated that Ambrosetti's music was “not readily available in Catholic or interdenominational Christian bookstores” in the United States and solicited readers to “Help us spread the music.” (Id. at 53:1-11.) The only concrete piece of evidence produced by Ambrosetti relating to commercial success is a royalty statement for “Emmanuel” from November 1994 to October 1995 for $66.97, which is after the alleged copying took place. (DuBoff Decl. Ex. 2, ECF No. 101-1 at 66-74.)
Viewing this evidence in the light most favorable to Ambrosetti, the court concludes that Ambrosetti has failed to show that “Emmanuel” was widely disseminated before “Christ Be Our Light” was written. Ambrosetti did not provide any evidence establishing the amount of sales of “Emmanuel” generated and his very limited evidence of royalties fails to show that “Emmanuel” enjoyed “substantial” commercial success or notoriety before 1993. Art Attacks, 581 F.3d at 1144-45 (holding evidence showing plaintiff sold 2,000 t-shirts bearing protected design inadequate to establish wide dissemination); see also Rice, 330 F.3d at 1178 (holding evidence plaintiff sold 17,000 copies of protected video in span of thirteen years inadequate to establish wide dissemination). Therefore, the court finds that Ambrosetti has failed to create a material issue of fact on access.
Ambrosetti also argues that he does not need to establish a genuine issue of material fact on access because there is a “striking similarity” between the works allowing for an inference of copying. Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 985 (9th Cir. 2017) (“If there is no evidence of access, a ‘striking similarity' between the works may allow an inference of copying.”); Briggs, 70 F.Supp.3d at 1167 (“Striking similarity is a high bar.”); Seals-McClellan v. Dreamworks, Inc., 120 Fed.Appx. 3, 4 (9th Cir. 2004) (“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.”) Because “Emmanuel” and “Christ Be Our Light” are not substantially similar, as demonstrated by Ambrosetti's inability to satisfy the extrinsic test, that argument is rejected.
C. Substantial Similarity
To satisfy the “substantial similarity” prong, a plaintiff must satisfy a two-part test: an extrinsic test and an intrinsic test. Gray, 28 F.4th at 96; Skidmore, 952 F.3d at 1064. On summary judgment, the court considers only the extrinsic test; the intrinsic test is reserved exclusively for the trier of fact. Williams v. Gaye, 895 F.3d 1106, 1119 (9th Cir. 2018); Swirsky v. Carey, 376 F.3d 841, 844 (9th Cir. 2004) (explaining that the intrinsic test is subjective and is decided by a jury).
The extrinsic test is “an objective comparison of specific expressive elements focusing on articulable similarities between the two works.” Folkens, 882 F.3d at 776. “The extrinsic test requires . . . breaking the works down into their constituent elements, and comparing those elements for proof of copying as measured by substantial similarity. Because the requirement is one of substantial similarity to protected elements of the copyrighted work, it is essential to distinguish between the protected and unprotected material in a plaintiff's work.” Gray, 28 F.4th at 96 (quoting Swirsky, 376 F.3d at 845). The court conducts an “analytic dissection.” Corbello v.Valli, 974 F.3d 965, 974 (9th Cir. 2020); Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002) (describing that the court must “filter out and disregard the non-protectible elements in making its substantial similarity determination”). If all similarities in expression between the two works “arise from use of common ideas, then no substantial similarity can be found.” Corbello, 974 F.3d at 974 (quoting Data E. USA, Inc. v. Epyx, Inc., 862 F.2d 204, 208 (9th Cir. 1988)).
Applying the extrinsic test to music is challenging because “music is comprised of a large array of elements, some combination of which is protectable by copyright.” Swirsky, 376 F.3d at 849. When analyzing musical compositions, the court may consider a variety of elements, including melody, harmony, rhythm, pitch, tempo, phrasing, structure, chord progressions, timbre, instrumentation, meter, lyrics, overall song structure. Id. “For one work to be substantially similar to another, more than incidental and occasional similarities are required.” Erickson v. Blake, 839 F.Supp.2d 1132, 1139-40 (D. Or. 2012) (citing Apple Computer, Inc. v.Microsoft Corp., 35 F.3d 1435, 1439 n.6 (9th Cir. 1994) (noting that after filtering out the unprotected elements, the remaining similarities “do not comprise a core of protectable . . . similarities substantial enough to warrant a finding of illicit copying under a standard of substantial similarity”)).
The extrinsic test is determined with the aid of expert testimony. Williams, 895 F.3d at 1119. However, the court plays an important gatekeeping function in evaluating substantial similarity. Gray 28 F.4th at 96-97. For example, in Gray, the Ninth Circuit affirmed the district court's decision to grant defendants' motion for judgment as a matter of law, which overturned the jury's verdict awarding $2.8 million in damages to plaintiffs. Id. at 95. The Gray court emphasized that “the extrinsic test is objective and is often resolved as a matter of law” and that the court must “ensure that whatever objective similarities the evidence establishes between two works are legally sufficient to serve as the basis of a copyright infringement claim regardless of the jury's views.” Id. at 97.
If the court finds that there are no “individual musical component[s]” that are copyrightable, it still must consider whether the unprotectable elements that make up Phrases 1, 2, and 3, taken in combination, could be protectable. Id. at 101 (quoting Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003)); see alsoSwirsky, 376 F.3d at 848 (“[A] substantial similarity can be found in a combination of elements, even if those elements are individually unprotected.”). The court may find otherwise unprotectable elements are entitled to copyright protection “only if ‘selection and arrangement' of those elements is original in some way.” Gray, 28 F.4th at 101 (quoting Satava, 323 F.3d at 811).
With those principles in mind, the court begins its analysis by identifying the claimed similarities and then filters out the unprotected elements to see what, if anything, qualifies as protected expression. The court observes that Ambrosetti's briefing and Ferrara's Rebuttal Report do little to aid the court's well-defined task of filtering out the unprotectable elements from the protectable elements. And Ambrosetti has not presented a selection and arrangement theory.
1. Alleged Similarities
Defendants argue that to survive summary judgment, Ambrosetti must show that “Emmanuel” and “Christ Be Our Light” have similarities of protectable elements, or he must show that the unprotectable elements have been selected and arranged in a novel or original way that merits copyright protection. (Defs.' Mot. Summ. J. at 19, ECF No. 101; Defs' Reply at 10, ECF No. 107.) Ambrosetti cannot show that, defendants contend, for three primary reasons. First, the alleged similarities identified by Ambrosetti are commonplace and fundamental building blocks of musical composition. (Defs.' Mot. Summ. J. at 15.) Second, the two songs share a sequence of seven pitches in Phrase 1, five pitches in Phrase 2, and five pitches in Phrase 3, and that under Gray, pitch sequences are unprotectable in copyright. Third, the songs are not substantially similar because they have markedly different rhythms and metrical placements.
Ambrosetti responds by identifying three primary areas of similarity. First, the Ferrara Rebuttal Report shows that “21 out of a total of 26 notes (80.7%) in the corresponding melodies in bars 1-12 of the Verses” of “Emmanuel” and “Christ Be Our Light” share the same pitches and scale degree, and that 13 of those 21 shared pitches also have the same rhythmic durations. (Pl.'s Opp'n at 24.) Second, Ferrara's expert opinion shows that “the melodic phrase structure and melodic development within the 26-note melody in bars 1-12” in “Emmanuel” “is exceedingly similar” to the same corresponding bars in “Christ Be Our Light.” And third, “the melody in phrases 1, 2, and 3” in bars 1 to 12 of both songs are “consecutively and contiguously developed as a single, very long continuous melody in an exceedingly similar way.” (Id.) Ambrosetti argues that the above similarities are not contained in prior art, are not common musical elements, and are not building blocks in the public domain. (Id. at 21.)
In Ferrara's Rebuttal Report, he identifies 23 similarities between “Emmanuel” and “Christ Be Our Light.” (Ferrara Rebuttal Report ¶ 47.) The court listed these alleged similarities at pp. 9-11 supra, and does not repeat them here.
2. protected v. unprotected elements
“[T]he unprotectable elements have to be identified, or filtered, before the works can be considered as a whole.” Apple Computer, 35 F.3d at 1446. As stated in Gray, the threshold issue for the court is determining what is protected and what is unprotected in Phrases 1, 2, and 3 of “Emmanuel” that “qualif[y] as original expression that can serve as the basis for a copyright infringement claim.” Gray, 28 F.4th at 97; Skidmore, 952 F.3d at 1070 (stating that factfinders in a copyright infringement analysis ask “whether the protectible elements, standing alone, are substantially similar and disregard the non-protectible elements” (quotations and citations omitted).)
“Where music is concerned, fundamental building blocks, such as individual notes and chords, do not warrant copyright.” Swirsky, 376 F.3d at 848, 851 (recognizing that key, tempo, rhythm, and genre are unprotected elements). While the level of creativity required is low, “copyright does require at least a modicum of creativity and does not protect every aspect of a work; ideas, concepts, and common elements are excluded.” Skidmore, 952 F.3d at 1069. Common musical elements or musical building blocks belong in the public domain and are unprotectable. Id.; Gray, 28 F.4th at 98 (“Plainly, no person may copyright the minor scale, as such scales are common musical building blocks belonging to the public.”); Lois v. Levin, Case No. 2:22-cv-00926-SVW-ADS, 2022 WL 4351968, at *5 n.5 (C.D. Cal. Sept. 16, 2022) (stating that common musical elements are not protectable, including key, tempo, the use of each dyad, the use of four dyads in a chord progression, the use of a guitar slide, and the use of guitar feedback are “common or trite elements” in music).
“Emmanuel” and “Christ Be Our Light” are both written in the key of E minor, are written in 3/4 meter, and are written with a verse portion and refrain portion. The parties do not dispute that key, meter, and verse/refrain format are not protected elements. (Ferrara Rebuttal Report at 22 n.8 (conceding that key, meter, and verse/refrain are musical building blocks).) The parties also agree that ending a melodic phrase that is in a natural minor key on a scale degree of 1, 3, or 5, and ending a melodic phrase on the same scale degree as it began are commonplace musical elements. (Ferrara Decl. ¶ 62; Finell Decl. ¶ 6.) The court agrees - those undisputed elements are unprotected musical building blocks.
Defendants also argue that phrases consisting of four bars in length are commonplace, and that it is common for liturgical musical works to consist of 16 bars. (Defs.' Mot. Summ. J. at 15.) In his deposition, Ferrara agreed that it was common for hymns to consist of 16 bars. (Krages Decl. ¶ 9, Ferrara Dep. 42:1-9, ECF No. 107-1.) See also Morrill v. Stefani, 338 F.Supp.3d 1051, 1059-60 (C.D. Cal. 2018) (finding that rhyming the last words in lines of songs and that using long-short-long rhythms are not protectable elements), overruled on other grounds by Skidmore, 952 F.3d at 1051. The court also agrees here - four-bar phrases and 16-bar liturgical works are commonplace musical elements, especially in the genre of liturgical music, and are not entitled to copyright protection here.
Ambrosetti contends that in Phrases 1, 2, and 3 of both songs, 21 of 26 notes share the same pitches and scale degrees. In Phrase 1, Ferrara attests that the identical pitches in “Emmanuel” and “Christ Be Our Light” are in bold, and the final pitches in the sequence are in italics:
| “Emmanuel”: | 5 1 2 3 2 1 7 1 2 5 |
| “Christ": | 5 1 2 3 2 1 7 1 5 |
| "Emmanuel": | 5 1 2 3 4 3 2 1 |
| "Christ": | 5 1 2 3 4 2 7 1 |
| "Emmanuel": | 6 5 4 3 4 5 3 5 |
| "Christ”: | 3 4 5 6 4 3 4 5 3 |
Defendants respond that a pitch sequence is not a protected element and that Ambrosetti cannot, as a matter of law, prevent others from using the same pitch sequence. Also asserted by defendants is that other musical works that predate “Emmanuel” have used similar pitch sequences, and that the pitch sequences used in both songs are common musical building blocks that are in the public domain, and are thus unprotectable. Gray, 28 F.4th at 99-100. The court agrees with defendants here.
The Ninth Circuit in Gray made clear that pitch sequences, divorced from other musical components, are not entitled to copyright protection. In Gray, the Ninth Circuit held that an “eight note melody may be copyrightable, the abstract eight-note pitch sequence that is a component of the melody is not.” Gray, 28 F.4th at 99-100 (distinguishing between pitch sequences and melody, “[t]hough the concepts are sometimes equated, creating a melody involves more than writing down a sequence of pitches; at a minimum, that sequence must also be ‘rhythmically organized' so as to form an ‘esthetic whole'” (quoting “Melody,” Webster's Third New International Dictionary (2002).); see also Swirsky, 376 F.3d at 846 n.9 (“Melody is a function of both pitch (i.e. the steps, or tones, on the scale) and rhythm (i.e. time values and relationships between the notes.”). The Gray court highlighted that the pitch sequences used in “Joyful Noise” and “Dark Horse” (3-3-3-3-2-2-1-1 and 3-3-3-3-2-2-1-5, respectively) were also used in “Merrily We Roll Along” and “Jolly Old Saint Nicholas.” Gray, 28 F.4th at 100. Thus, “because the use of similar pitch sequences in the Joyful Noise and Dark Horse ostinatos results only from the use of commonplace, unoriginal musical principles, it cannot be the basis for a copyright infringement claim on its own.” Id. at 100-01.
As in Gray, defendants identify several other prior works that have used the pitch sequences alleged by Ambrosetti as evincing similarity. For example, “O Holy Spirit Comforter” has the same opening seven-pitch sequence (5-1-2-3-2-1-7) as Phrase 1 of “Emmanuel” (5-1-2-32-1-7) and “Christ Be Our Light” (5-1-2-3-2-1-7). (Defs.' Mot. Summ. J. at 19.) The hymn “Awake Awake to Love and Work” (5-1-2-3-4-3-2-1) and “Huron Carol” (5-1-2-3-4-3-2-1) share the same eight-pitch-sequence in Phrase 2 of “Emmanuel” (5-1-2-3-4-3-2-1), while “Christ Be Our Light” shares only five pitches in sequence with “Emmanuel” (5-1-2-3-4). (Id.) Consequently, the court concludes that the pitch sequences in Phrases 1, 2, and 3, standing alone, are not entitled to copyright protection. Gray, 28 F.4th at 100-01; accordSwirsky, 376 F.3d at 848 n.13 (“In fact, concentration solely on pitch sequence may break music down beyond recognition.”).
Next, Ambrosetti alleges that the 21 of 26 notes in Phrases 1 to 3 (80.7 percent) share the same pitches and scale degree, and that 13 of 21 of those notes also have the same rhythmic duration, and that these similarities are evidence of copying. Also, Ambrosetti contends that the songs are substantially similar because they share the same highest and lowest pitches in Phrases 1, 2, and 3. There are three primary flaws in Ambrosetti's argument.
First, a percentage of shared notes and pitches are not protectable elements. (Defs.' Reply at 12.) If a pitch sequence is not protectable and the key of E minor is not protectable, expressing the quantum of shared pitches and notes as a percentage is not protectable. See Gray, 28 F.4th at 100 (stating that chords are a combination of pitches played simultaneously, that chord progressions are multiple pitch sequences playing at the same time, and that if chord progressions cannot be protected, “the individual pitch sequences forming the progression cannot be either”). Second, Ambrosetti's use of the term “rhythmic duration” to quantify the number of quarter notes and half notes in each phrase is suspect. Note choice, including the number of quarter or half notes used, is a basic musical building block that is not entitled to individual protection. Id.; Morrill, 338 F.Supp.3d at 1060 (holding a long-short-long rhythm is not protectable). And third, the fact that both songs share the same highest and lowest pitches in each phrase is not a protectable element that one person can own. Skidmore, 952 F.3d at 1071 (discussing that common musical building blocks are not protectable). Again, when writing liturgical music for church congregants to sing, the range of possible highest and lowest pitches presumably will be small.
Ambrosetti contends that “Emmanuel” and “Christ Be Our Light” are substantially similar because “the melodic phrase structure and melodic development” of bars 1 to 12 of both songs “is exceedingly similar.” (Pl.'s Opp'n at 25.) Ferrara criticizes Finell for describing melody as consisting of pitch plus rhythm within the context of metrical placement. (Ferrara Rebuttal Report ¶ 10, ECF No. 103-2 at 61.) Ferrara, however, contends that when analyzing “metrical placement,” the proper context for considering “pitch, rhythmic duration, and metrical placement is the melodic structure and melodic development.” (Id.) Ferrara does not further elaborate or define “melodic structure” or “melodic development.” In his Rebuttal Report, he describes that the “very long melody in bars 1-12 in the Verse of ‘Emmanuel' is exceedingly similar to the corresponding melodic phrase structure and melodic development of the very long melody in bars 1-12 in the Verse of ‘Christ.'” (Id. ¶ 32.) Ferrara states that the melody in bars 1 to 12 of both songs “are consecutively and contiguously developed as a very long continuous melody in an exceedingly similar way.” (Id. ¶ 33.) He also challenges the prior art identified by Finell, because it does not share the same “very significant and substantial melodic expression that is developed in an exceedingly similar way” in bars 1 to 12 of “Emmanuel” and “Christ Be Our Light.” (Id. ¶ 33.)
Ferrara's explanation of “melodic development,” however, is akin to the “melodic shape” described in Gray. At bottom, Ferrara's explanation about why the songs have a similar “melodic development” is because bars 1 to 12 are similar. Ferrara's reasoning is circular. Accordingly, the court finds Ambrosetti's argument that bars 1 to 12 are similar and have the same “melodic development” is “nothing more than an abstraction outside the protection of copyright law.” Gray, 28 F.3d at 100.
Ambrosetti argues that “the three musical phrases at issue constitute a continuous, contiguous 26-note melody in which musical phrase 2 develops out of musical phrase 1 and musical phrase 3 develops out of musical phrase 2 and that these phrases embody not just pitch similarities but also significant similarities in rhythmic durations, melodic development and melodic phrase structure.” (Pl.'s Opp'n at 29, and 25, 26, 32.) Much like “melodic development,” Ambrosetti and Ferrara fail to define or adequately explain how the phrases “develop out of” one another and how this element is protected by copyright. The court therefore concludes that a musical phrase “developing out of” another musical phrase is a common musical building block that is in the public domain and is unprotectable. After filtering out pitch sequence, percentages of shared pitches, use of quarter and half notes, highest and lowest pitches, and melodic development, this eliminates the remaining items from Ferrara's list of 23 aggregate similarities on pp. 9-11.
After filtering out those unprotected elements, defendants argue that what remains are dissimilar rhythms and metrical placements. That is, although both songs begin Phrase 1 with a 5-1-2 pitch sequence of quarter notes, the stresses fall on different notes and they have different rhythmic structures. (Defs.' Mot. Summ. J. at 16-17.) Further, Phrase 1 of “Emmanuel” has seven consecutive quarter notes, a half note, then a quarter note, and ends on a half note. (Defs.' Reply at 14.) And, defendants observe that Phrase 1 of “Christ Be Our Light” has three quarter notes, a half note tied to a quarter note (three beats), four quarter notes, then followed by a half note. (Id.) The differences in stressed notes (bold) and rhythmic structure (beats) in Phrase 1 of the songs are illustrated by defendants as follows:
| 1 | 1 | 1 | 1 | 1 | 1 | 1 | 2 | 1 | 2 |
| A | vir- | gin | shall | bring | forih | a | first- | bum | son-----, |
]
I
1
3
1
I
1
1
2
hong
ing
for
bghi
we
wait
in
dark
ness-----.
“Christ Be Our Light”
(Defs.' Mot. Summ. J. at 17.) Ambrosetti's position is that the metrical placements are less informative because “Emmanuel” begins on an upbeat, which is unstressed, and “Christ Be Our Light” begins on a stressed downbeat and that defendants have distorted the similarities between “Emmanuel” and “Christ Be Our Light” by “shifting the metrical placement by one beat” in Phrase 1. The court disagrees. It is obvious to the court that the rhythms and metrical placement of the notes in the Phrase 1 are different, even if it is shifted as framed by Ambrosetti.
Those differences in metrical placement and rhythmic structure continue in Phrase 2, with “Emmanuel” beginning with seven consecutive quarter notes, and ending with a dotted half note tied to a half note (five beats). In contrast, Phrase 2 of “Christ Be Our Light” begins with three quarter notes, a half note tied to a quarter note, three quarter notes, and ending with a dotted half note (three beats). (Id. at 17-18.) That is illustrated by defendants this way:
•Emmanuel''
1 1 1 1 1 1 1 5 con- ceived in the spir- it of God- 1 1 1 3 1 1 1 3 Long ing for truth----------------- we wait for you
“Christ Be Our Light”
(Id. at 18.) Ambrosetti responds that the rhythmic durations in Phrase 2 are similar because “Emmanuel” is made up of seven quarter notes, and one long note and that “Christ Be Our Light” is made up of six quarter notes and two longer notes, which also ends Phrase 2. (Pl.'s Opp'n at 32-33.) In Ambrosetti's view, the songs are musically similar because the long notes are stressed and both songs have a large majority of quarter notes in Phrase 2. (Id.) Again, the court disagrees. Use of quarter notes in a musical phrase is not a protected element, but rather is a musical building block in the public domain that no one person can own. Ambrosetti's argument also ignores the order in which the notes appear. SeeGray, 28 F.4th at 99 (stating that creating a melody is more than a series of pitches and that it must be “rhythmically organized so as to form an esthetic whole” (internal quotations and citations omitted).)
Defendants characterize Phrase 3 of “Emmanuel” as very different from its first two phrases and begins with a half note, followed by four quarter notes, then a half note slurred to a quarter note (a melisma), and ending on a half note. (Defs.' Mot. Summ. J. at 20.) Unlike “Emmanuel,” Phrase 3 of “Christ Be Our Light” is identical rhythmically to Phrase 1 of “Christ Be Our Light” with three quarter notes, a quarter note tied to a half note (three beats), four quarter notes, and ending with a half note. (Id.) Defendants illustrate Phrase 3 of the songs like this:
Emmanuel”
| 2 | 1 | 1 | 1 | 1 | 2+1 (melistna) | 2 |
| He- | shall | save | all | his | peo | ple |
| 1 | 1 | I | 3 | I | 1 | I | i | 2 |
| Make | us | your | OWN | your | ho- | ly | peo- | pie-----, |
“Christ Be Our Light”
(Id.) Defendants highlight the first four notes in “Christ Be Our Light” as having a stepwise ascending order, while the first four notes in “Emmanuel” have a stepwise descending order. (Defs.' Reply at 16.) When Phrases 1, 2, and 3 are examined properly as a whole, they are very different rhythmically, have different metrical placements, and different stressed beats. (Defs.' Mot. Summ. J. at 19-20.)
Ambrosetti rehashes his same arguments at Phrase 3. The court remains unpersuaded. Ferrara's contention that Phrase 3 “develops out of” and “evolves” from Phrase 2 is not defined and the court concludes it is an abstraction on par with “melodic shape” and “melodic development.” As discussed above, isolating the percentage of quarter notes or half notes used in Phrase 3 of the songs, when divorced from rhythmic organization, is a musical building block within the public domain. Gray, 28 F.4th at 99. Accordingly, the court rejects Ambrosetti's arguments concerning Phrase 3.
In summary, the court has determined that the pitch sequences, rhythmic durations, and melodic development in Phrases 1, 2, and 3 of “Emmanuel” and “Christ Be Our Light” as identified by Ambrosetti and Ferrara are commonplace musical building blocks and abstractions that are not protectable. The court therefore concludes that the similarities identified by Ambrosetti consist solely of unprotected elements that are not entitled to copyright protection individually. Id. at 100-01.
2. Protection of Unprotectable Musical Elements in Combination
The court recognizes that a “combination of unprotectable elements” may be entitled to copyright protection if “the selection and arrangement” of those elements is original in some way. Id. at 101 (citing Satava, 323 F.3d at 811); Swirsky, 376 F.3d at 848 (“[A] substantial similarity can be found in a combination of elements, even if those elements are individually unprotected.”). The Ninth Circuit has “extended copyright protection to ‘a combination of unprotectable elements . . . only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.'” Skidmore, 952 F.3d at 1074 (quoting Satava, 323 F.3d at 811). A selection and arrangement copyright protects “the particular way in which the artistic elements form a coherent pattern, synthesis, or design.” Id.; see alsoLois, 2022 WL 4351968, at *2-3 (describing selection and arrangement combination of unprotectable elements theory). A selection and arrangement copyright “is infringed only where the works share, in substantial amounts, the ‘particular,' i.e., the ‘same,' combination of unprotectable elements.” Skidmore, 952 F.3d at 1075 (quoting Feist, 499 U.S. at 349); Satava, 323 F.3d at 812 (noting that a combination of unprotectable elements is entitled only to protection against “virtually identical copying”).
To successfully articulate a selection and arrangement theory, Ambrosetti must claim the “musical elements cohere to form a holistic musical design.” Skidmore, 952 F.3d at 1075. “A plaintiff thus cannot establish substantial similarity by reconstituting the copyrighted work as a combination of unprotectable elements and then claiming that those same elements also appear in the defendant's work, in a different aesthetic context.” Id. It is not enough to label categories of unprotectable elements a “combination.” Id. (“Labeling them a ‘combination' of unprotectable elements does not convert the argument into a selection and arrangement case.”). Rather, Ambrosetti must explain how the elements were particularly selected and arranged in a new and novel way. Id. (quoting 17 U.S.C. § 101, which defines a compilation as the precise result that is “formed by the collection and assembling of preexisting materials . . . that are selected, coordinated, or arranged”).
The difficulty for the court, however, is that Ambrosetti has not presented a selection and arrangement theory, either at summary judgment or in his pleadings. Ambrosetti argues that the “aggregate” similarities in bars 1 to 12 of “Emmanuel” and “Christ Be Our Light” “constitute a significant amount of musical expression.” (Pl.'s Opp'n at 47.) Ambrosetti does not advance an argument that his arrangement of unprotectable elements is original, and that their combination “cohere[s] to form a holistic musical design.” Skidmore, 952 F.3d at 1075. Instead, Ambrosetti's response to defendants' summary judgment motion consistently refers to the similarities as “an aggregate of 23 similarities” shown in Ferrara's Rebuttal Report. (Id. at 48.)
In an abundance of caution and to end this long-running litigation, even if the court were to construe Ambrosetti's arguments as a “selection and arrangement” theory, he has not created a genuine issue of fact to survive summary judgment and defendants would be entitled to judgment as a matter of law. To the extent that Ambrosetti argues that his arrangement of Phrases 1, 2, and 3, taken collectively and arranged into the specific 26-note melody is an original work of authorship, the court concludes that he has not established that the unprotected elements in “Emmanuel” and “Christ Be Our Light” are so similar that they create an issue of material fact that they are “virtually identical.” Satava, 323 F.3d at 811; Smith v. The Weeknd, Case No. CV 19-2507 OA (MRWx), 2020 WL 4932074, at *6-7 (C.D. Cal. July 22, 2020). As discussed above, the songs are dissimilar rhythmically and have such different metrical placements that no reasonable jury could conclude that bars 1 to 12 are virtually identical.
For all those reasons, Ambrosetti has not established a genuine issue of material fact under a selection and arrangement theory and defendants are entitled to summary judgment.
D. Defendants' Partial Motion for Summary Judgment on Damages
Defendants move for partial summary judgment on damages under 17 U.S.C. § 412(2). That statute “precludes an award of 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, 700 (9th Cir. 2008). In his response, Ambrosetti concedes that the copyright for “Emmanuel” was not registered until December 30, 2019, and that he is precluded as a matter of law from obtaining statutory damages and attorney fees. (Pl.'s Opp'n at 48.)
Defendants also move for partial summary judgment contending that Ambrosetti's claim for actual damages is limited by the three-year statute of limitations in 17 U.S.C. § 507(b). Section 507(b) provides that “[n]o civil action shall be maintained . . . unless it is commenced within three years after the claim accrued.” 17 U.S.C. § 507(b). A copyright infringement cause of action “accrues when one has knowledge of a violation.” Roley v. New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir. 1994). Defendants argue that Ambrosetti became aware of the alleged infringement no later than November 2016 when he hired Ferrara. (Defs.' Mot. Summ. J. at 23.) Defendants therefore contend that Ambrosetti filed this infringement action on May 8, 2020, and thus is limited to his actual damages dating from May 8, 2017. Ambrosetti also concedes that his claim for actual damages and profits accrues from May 8, 2017.
Defendants' motion for partial summary judgment on damages should be granted. If District Judge Karin J. Immergut disagrees with this court's determination on the merits, under 17 U.S.C. § 412(2), she should find that Ambrosetti is precluded from an award of statutory damages and attorney fees and is limited to pursuing his actual damages and profits from May 8, 2017 and thereafter under 17 U.S.C. § 507(b).
CONCLUSION
For the above reasons, defendants' motion for summary judgment (ECF No. 101) should be GRANTED and this action and the consolidated action (Case No. 3:19-cv-01397-AR) should be closed.
SCHEDULING ORDER
The Findings and Recommendation will be referred to District Judge Karin J. Immergut. Objections, if any, are due within fourteen days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.