MICHAEL SKIDMORE v. LED ZEPPELIN et al

MEMORANDUM of CONTENTIONS of FACT and LAW

C.D. Cal.April 4, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Peter J. Anderson, Esq., Cal. Bar No. 88891 E-Mail: pja@pjanderson.com LAW OFFICES OF PETER J. ANDERSON A Professional Corporation 100 Wilshire Boulevard, Suite 2010 Santa Monica, CA 90401 Tel: (310) 260-6030 Fax: (310) 260-6040 Attorneys for Defendants JAMES PATRICK PAGE, ROBERT ANTHONY PLANT, JOHN PAUL JONES, WARNER/CHAPPELL MUSIC, INC., SUPER HYPE PUBLISHING, INC., ATLANTIC RECORDING CORP., RHINO ENTERTAINMENT COMPANY and WARNER MUSIC GROUP CORP. Helene Freeman, Esq., admitted pro hac vice E-Mail: hfreeman@phillipsnizer.com PHILIPS NIZER LLP 666 Fifth Avenue New York, NY 10103-0084 Tel: (212) 977-9700 Fax: (212) 262-5152 Attorneys for Defendants JAMES PATRICK PAGE, ROBERT ANTHONY PLANT and JOHN PAUL JONES UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION Case No. 2:15-cv-03462 RGK (AGRx) DEFENDANTS’ MEMORANDUM OF CONTENTIONS OF FACT AND LAW Pretrial: Date: April 25, 2016 Time: 11:00 a.m. Trial: Date: May 10, 2016 Time: 9:00 a.m. Courtroom of the Honorable R. Gary Klausner United States District Judge MICHAEL SKIDMORE, etc., Plaintiff, vs. LED ZEPPELIN, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 1 of 26 Page ID #:3931 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS MEMORANDUM OF CONTENTIONS OF FACT AND LAW................................ 1 1. INTRODUCTION .............................................................................................. 1 2. CLAIMS AND DEFENSES .............................................................................. 1 (a) Plaintiffs’ Claims ..................................................................................... 1 (1) Summary Statement of Plaintiff’s Claims ..................................... 1 (2) The Elements Required to Establish plaintiff’s Claims ................ 2 (3) Brief Description of Key Evidence in Opposition to Plaintiff’s Claims ........................................................................... 2 (b) Defendants’ Affirmative Defenses .......................................................... 6 (1) Summary Statement of Defendants’ Affirmative Defenses .......... 6 (3) Brief Description of the Key Evidence Relied on to Support Defendants’ Affirmative Defenses ................................ 10 (c) Anticipated Evidentiary Issues .............................................................. 15 (1) Evidentiary Issues Raised by Defendants’ Motions in Limine .......................................................................................... 15 (2) Evidentiary Issues Raised by Plaintiff’s Motions in Limine .......................................................................................... 17 (d) Identification of Issues of Law .............................................................. 18 (1) Legal Issues Raised by Pending Motions in Limine .................... 18 (2) Plaintiff’s Requested Remedy of Defendant’s Profits Is Triable to the Court ...................................................................... 19 3. BIFURCATION ............................................................................................... 20 4. PLAINTIFF HAS REQUESTED JURY TRIAL ............................................. 21 5. ATTORNEY’S FEES ARE POTENTIALLY RECOVERABLE ................... 21 6. ABANDONED CLAIMS OR ISSUES............................................................ 21 Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 2 of 26 Page ID #:3932 ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) ........................... 9 Asset Marketing Sys., Inc. v. Gagnon, 542 F.3d 748 (9th Cir. 2008), cert. denied 556 U.S. 1258 (2009) ............................................................................. 9 Danjaq LLC v. Sony Corp., 263 F.3d 942 (9th Cir. 2001) .................................... 8, 20 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1985) ..................................... 16 Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) ................................. 2 Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998) ......................... 19 Fifty-Six Hope Rd. Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059 (9th Cir. 2015), cert. denied, 136 S. Ct. 410 (2015) ......................................... 19, 20 Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (9th Cir. 1998) ............................... 10 Luvdarts, LLC v. AT & T Mobility, LLC, 710 F.3d 1068 (9th Cir. 2013) .................... 2 Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) ............... 2 Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197 (C.D. Cal. 2007) ....................................................................................................... 10 Micro Star v. Formgen, Inc., 154 F.3d 1107 (9th Cir. 1998) ....................................... 9 Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2004), cert. denied 545 U.S. 1114 (2005) ................................................................................................. 8 Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788 (9th Cir. 2007), cert. denied 553 U.S. 1079 (2008) ............................................................................. 2 Rice v. Fox Broad. Co., 330 F.3d 1170 (9th Cir. 2003) ............................................... 2 S.E.C. v. Rind, 991 F.2d 1486 (9th Cir. 1993), cert. denied, 510 U.S. 963 (1993) ....................................................................................................................... 19 Seltzer v. Green Day, Inc., 725 F.3d 1170 (9th Cir. 2013) .......................................... 8 Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000), cert. denied 531 U.S. 1126 (2001) ............................................................................. 7 United States v. King Features Entm’t, Inc., 843 F.2d 394 (9th Cir. 1988) ................. 9 Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 3 of 26 Page ID #:3933 iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Federal Statutes 15 U.S.C. Section 1117 ............................................................................................... 20 17 U.S.C. Section 102 ................................................................................................. 10 17 U.S.C. Section 103 ................................................................................................. 10 17 U.S.C. Section 106 ................................................................................................. 10 17 U.S.C. Section 301 ................................................................................................... 7 17 U.S.C. Section 504 .......................................................................................... 19, 20 17 U.S.C. Section 505 ................................................................................................. 21 17 U.S.C. Section 507 ...............................................................................................6, 8 U.S. Const. amend. VII ............................................................................................... 19 State Statutes California Probate Code Section 6402 ....................................................................... 14 Other Authorities Copyright Office Compendium .................................................................................. 18 Manual of Model Jury Instructions for the Ninth Circuit (2007) ...................... 8, 9, 10 Rules Federal Rule of Civil Procedure 26 ..................................................................... 12, 17 Federal Rule of Civil Procedure 37 ............................................................................ 17 Federal Rule of Evidence 403........................................................................ 15, 16, 17 Federal Rule of Evidence 407..................................................................................... 16 Federal Rule of Evidence 408..................................................................................... 16 Federal Rule of Evidence 411..................................................................................... 17 Local Rule 16-4 ............................................................................................................ 6 Treatises M. Nimmer & D. Nimmer, Nimmer on Copyright ............................................ 3, 9, 19 Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 4 of 26 Page ID #:3934 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF CONTENTIONS OF FACT AND LAW 1. INTRODUCTION Defendants James Patrick Page, Robert Anthony Plant, John Paul Jones, Warner/Chappell Music, Inc., Super Hype Publishing, Inc., Atlantic Recording Corporation, Rhino Entertainment Company and Warner Music Group Inc.1 respectfully submit this Memorandum of Contentions of Fact and Law. 2. CLAIMS AND DEFENSES (a) Plaintiffs’ Claims (1) Summary Statement of Plaintiff’s Claims Plaintiff, on behalf of a purported trust claiming a beneficial interest in the copyright owned by a non-party, Hollenbeck Music (“Hollenbeck”), in a musical composition titled Taurus, asserts forty-five-year-old claims that Stairway to Heaven infringes Hollenbeck’s copyright. In his First Amended Complaint (Doc. 31), plaintiff alleges the following claims: Claim 1: Direct infringement of the copyright in the musical composition Taurus. Claim 2: Contributory infringement of the copyright in the musical composition Taurus. Claim 3: Vicarious infringement of the copyright in the musical composition Taurus. Claim 4: “Right of Attribution – Equitable Relief – Falsification of Rock n’ Roll History.” /// /// 1 Plaintiff’s complaint purports to name “Led Zeppelin” as a defendant, but that is the name of a musical group and not a juridical entity capable of suing or being sued. Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 5 of 26 Page ID #:3935 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (2) The Elements Required to Establish plaintiff’s Claims The elements required to establish plaintiff’s claims are as follows: Claim 1 (direct infringement): 1. Plaintiff’s 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); Rice v. Fox Broad. Co., 330 F.3d 1170, 1174 (9th Cir. 2003). Claim 2 (contributory infringement): 1. That the defendant has knowledge of a third party’s infringing activity; and 2. induces, causes, or materially contributes to the third party’s infringing activity. Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 795 (9th Cir. 2007), cert. denied 553 U.S. 1079 (2008). Claim 3 (vicarious infringement): 1. That the defendant profits directly from the infringement; and 2. Declines to exercise a right to stop or limit it. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 931 n. 9 (2005); Luvdarts, LLC v. AT & T Mobility, LLC, 710 F.3d 1068, 1071 (9th Cir. 2013). Claim 4 (“Right of Attribution”): Plaintiff has not identified any legal basis for this claim and did not oppose defendants’ motion for summary judgment in their favor on this claim. (3) Brief Description of Key Evidence in Opposition to Plaintiff’s Claims The key evidence in opposition to plaintiff’s claims is as follows: Claim 1 (direct infringement): Plaintiff does not own a copyright in the musical composition Taurus. Plaintiff has not produced in this action the 1967 transcription of Taurus that would Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 6 of 26 Page ID #:3936 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 have accompanied Hollenbeck’s 1967 registration of copyright. Petrella v. Metro- Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1977 (2014) (“both the certificate [of copyright] and the original work must be on file with the Copyright Office before a copyright owner can sue for infringement”). The musical composition Taurus is a work for hire owned by Hollenbeck. The musical composition was created and copyrighted during the term of the August 29, 1967 Exclusive Songwriter Agreement between Hollenbeck and Randy Wolfe. The evidence establishing the foregoing includes the August 29, 1967 Exclusive Songwriter Agreement, the testimony of the surviving members of Spirit, Jay Ferguson and Mark Andes, the testimony of William Ruhlmann and his recorded statements of Mr. Wolfe, the testimony of Lou Adler, and the Taurus copyright registrations and renewals, and corrections thereto, by Hollenbeck or on its behalf. In addition, the Trust on whose behalf plaintiff purports to sue was allegedly created under a Court-ordered Trust Agreement that was amended to provide that the Trust continued to exist after the death of the trustee, Bernice Pearl, only if the Trust became qualified as a charitable organization under federal tax laws and used its funds to provide musical instruments and associated materials to children in financial need. The Trust was never so qualified and plaintiff refused to produce documents and provide full testimony as to his use of Trust funds. The evidence establishing the foregoing includes the Fifth Amendment to the Trust Agreement, plaintiff’s responses to written discovery and the testimony of plaintiff. Defendants did not copy Taurus, let alone copy constituent elements of the musical composition Taurus that are original and protected by Hollenbeck’s copyright. The creators of Stairway to Heaven never heard Taurus before creating Stairway to Heaven. The evidence of the foregoing includes the testimony of James Patrick Page, Robert Plant, John Paul Jones, Ferguson and Andes, the handbill for the December 26, 1968 concert in Denver, Colorado, documents and recordings regarding the 1970 rehearsals at Headley Grange, pre-December 1968 recordings on Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 7 of 26 Page ID #:3937 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 which Mr. Page performed and which include elements similar to those plaintiff claims to have been copied from Taurus, , the testimony and reports of Dr. Lawrence Ferrara and Robert Mathes, and the audio recordings submitted, including as to prior art. Plaintiff has not produced the copyrighted 1967 transcription of the Taurus musical composition and did not timely (or otherwise) disclose any experts who analyzed or compared that copyrighted transcription. The experts plaintiff did disclose relied upon recordings not protected by the copyright plaintiff sues on, relied upon performance elements not protected by that copyright and relied upon and failed to disregard non-protectable elements. Taurus and Stairway to Heaven are not strikingly or substantially similar as to any protectable portion or portions. The evidence establishing the foregoing includes the testimony of Dr. Ferrara and Mr. Mathes and the audio and other exhibits they provided, including their respective performances of the 1967 Taurus transcription that defendants obtained and without any music or sounds not included in that transcription, and plaintiff’s expert disclosures (which are a subject defendants’ Motion in Limine No. 4). The total concept and feel of Taurus and of Stairway to Heaven are not strikingly or substantially similar. The evidence establishing this includes, in addition to the above, Stairway to Heaven and Dr. Ferrara’s and Mr. Mathes’ performances of the 1967 Taurus transcription obtained by defendants. Claim 2 (contributory infringement): Since there was no infringing activity, there can be no contributory infringement. Evidence that there was no infringing activity is briefly described above at 2-4. As to Mr. Jones, Warner Music Group Corp. and Super Hype Music, Inc., there also is no evidence that they, or any of them, knew of the alleged infringement or induced, caused, or materially contributed to the alleged infringement, particularly any such alleged infringement within three years of plaintiff’s filing of this action. Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 8 of 26 Page ID #:3938 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petrella, 134 S. Ct. at 1969 (2014) (under the Copyright Act’s three-year statute of limitations, a defendant “is insulated from liability for earlier [alleged] infringements of the same work”). In addition to plaintiff’s lack of evidence, evidence establishing the foregoing includes the testimony of Mr. Jones and representatives of the entity defendants. Claim 3 (vicarious infringement): Since there was no infringing activity, there can be no vicarious infringement. Evidence that there was no infringing activity is briefly described above at 2-4. As to Mr. Jones, Warner Music Group Corp. and Super Hype Music, Inc., there also is no evidence that they, or any of them, profited directly from the alleged infringement and had the right to stop or limit the alleged infringement but declined to exercise that right, particularly as to any such alleged infringement within three years of plaintiff’s filing of this action. In addition to plaintiff’s lack of evidence, evidence establishing the foregoing includes the testimony of Mr. Jones and representatives of the entity defendants. Claim 4 (“Right of Attribution”): Plaintiff has not identified any legal basis for this claim and did not oppose defendants’ motion for summary judgment in their favor on this claim. To the extent this claim is premised on the alleged copying of Taurus, the claim also fails because Taurus was not copied. Evidence that there was no infringing activity is briefly described above at 2-4. /// /// /// /// /// /// /// Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 9 of 26 Page ID #:3939 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (b) Defendants’ Affirmative Defenses (1) Summary Statement of Defendants’ Affirmative Defenses Defendants have pleaded and intend to pursue the following affirmative defenses:2 Second Affirmative Defense: Stairway to Heaven was created independently of Taurus. Fifth Affirmative Defense: the alleged infringement, which is disputed, is de minimis. Sixth Affirmative Defense: the alleged infringement, which is disputed, constitutes fair use. Warner defendants’ Ninth Affirmative Defense/Individual Defendants’ Eighth Affirmative Defense3: plaintiff’s claims and/or remedies plaintiff seeks are barred by laches. Warner defendants’ Tenth Affirmative Defense/Individual Defendants’ Ninth Affirmative Defense: plaintiff’s claims are barred by statutes of limitation, including 17 U.S.C. Section 507(b). Warner defendants’ Eleventh Affirmative Defense/Individual Defendants’ Tenth Affirmative Defense: plaintiff, plaintiff’s predecessors, Mr. Wolfe and/or the owners of the copyright in the musical composition Taurus abandoned the allegedly- infringed copyright. 2 Pursuant to Local Rule 16-4 and its Appendix A, defendants are not including matters that, although listed as affirmative defenses in their Answers, are matters on which defendants bear the burden of proof. For example, plaintiff bears the burden of proving his standing, compliance with the statutory formalities for obtaining a copyright and filing and pursuing a copyright infringement claim, copying of copyrightable subject matter and a causal relationship between the alleged infringement and revenues, notwithstanding defendants’ having identified them in their Answers. 3 The entity defendants and the individual defendants filed separate Answers and, as result, the numbering of some of the same affirmative defenses is different. Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 10 of 26 Page ID #:3940 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Warner defendants’ Twelfth Affirmative Defense/Individual Defendants’ Eleventh Affirmative Defense: plaintiff’s claims and/or remedies plaintiff seeks are barred by the doctrine of waiver. Warner defendants’ Thirteenth Affirmative Defense/Individual Defendants’ Twelfth Affirmative Defense: the conduct of which plaintiff complains, which is disputed, was impliedly or expressly licensed. Warner defendants’ Fifteenth Affirmative Defense/Individual Defendants’ Fourteenth Affirmative Defense: plaintiff, plaintiff’s predecessors, Mr. Wolfe and/or the owners of the copyright in the musical composition Taurus ratified the conduct, which is disputed, of which plaintiff complains. Warner defendants’ Seventeenth Affirmative Defense/Individual Defendants’ Sixteenth Affirmative Defense: plaintiff’s claims and/or relief he seeks is barred by the doctrine of unclean hands. Warner defendants’ Eighteenth Affirmative Defense: any alleged infringement, which is disputed, was innocent. Warner defendants’ Nineteenth Affirmative Defense/Individual Defendants’ Seventeenth Affirmative Defense: plaintiff’s fourth claim for “Right of Attribution” is preempted by the Copyright Act of 1976, including by 17 U.S.C. Section 301(a). (2) The Elements Required to Establish Defendants’ Affirmative Defenses The elements required to establish defendants’ affirmative defenses are as follows: Second Affirmative Defense (independent creation): That Stairway to Heaven was created by James Patrick Page and Robert Plant independently of the musical composition Taurus. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 486 (9th Cir. 2000), cert. denied 531 U.S. 1126 (2001). /// Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 11 of 26 Page ID #:3941 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fifth Affirmative Defense (de minimis): That the allegedly copied original material in the musical composition Taurus is not a quantitatively significant or qualitatively significant portion of that musical composition as a whole. Newton v. Diamond, 388 F.3d 1189, 1195 (9th Cir. 2004), cert. denied 545 U.S. 1114 (2005). Sixth Affirmative Defense (fair use): That the defendant used the copyrighted work in a reasonable way under the circumstances that advances the public interest, considering: 1. the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work. Manual of Model Jury Instructions for the Ninth Circuit (2007) (“Manual”) 17.21; Seltzer v. Green Day, Inc., 725 F.3d 1170 (9th Cir. 2013). Warner defendants’ Ninth Affirmative Defense/Individual Defendants’ Eighth Affirmative Defense (laches): 1. Unreasonable delay in the assertion of the claim; and 2. Prejudice as a result of the delay. Danjaq LLC v. Sony Corp., 263 F.3d 942, 951 (9th Cir. 2001). Warner defendants’ Tenth Affirmative Defense/Individual Defendants’ Ninth Affirmative Defense (statute of limitations): Defendants are insulated from liability for alleged infringements more than three years before plaintiff’s filing of this action on May 31, 2014. 17 U.S.C. § 507(b); Petrella, 134 S. Ct. at 1969. Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 12 of 26 Page ID #:3942 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Warner defendants’ Eleventh Affirmative Defense/Individual Defendants’ Tenth Affirmative Defense (abandonment): 1. An intent to surrender all or some rights in the work; and 2. An act evidencing that intent. Manual 17.22 (“A copyright owner may abandon some rights and retain others”), citing Micro Star v. Formgen, Inc., 154 F.3d 1107, 1114 (9th Cir. 1998). Warner defendants’ Twelfth Affirmative Defense/Individual Defendants’ Eleventh Affirmative Defense (waiver): 1. The intentional relinquishment of a known right; 2. with knowledge of its existence and the intent to relinquish it. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1026 (9th Cir. 2001). Warner defendants’ Thirteenth Affirmative Defense/Individual Defendants’ Twelfth Affirmative Defense (license): That the totality of the parties’ conduct indicates an intent to grant permission to use a work. Foad Consulting Group, Inc. v. Musil Govan Azzalino, 270 F.3d 821, 837 (9th Cir. 2001).4 Warner defendants’ Seventeenth Affirmative Defense/Individual Defendants’ Sixteenth Affirmative Defense (plaintiff’s unclean hands): 1. inequitable conduct by the plaintiff; 2. that the plaintiff’s conduct directly relates to the claim which it has asserted against the defendant; and 4 Many cases deal with licenses implied from a plaintiff’s preparation of a work at a defendant’s request and describe the requirements in those situations. See, e.g., Asset Marketing Sys., Inc. v. Gagnon, 542 F.3d 748, 754-55 (9th Cir. 2008), cert. denied 556 U.S. 1258 (2009); Manual 17.24. But, the license doctrine is broader and applies whenever “the totality of the parties’ conduct indicates an intent to grant . . . permission, . . .” to use a work. Foad, 270 F.3d at 837, quoting 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 10.03[A][7]. Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 13 of 26 Page ID #:3943 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. plaintiff’s conduct injured the defendant. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197, 1221- 23 (C.D. Cal. 2007). Warner defendants’ Eighteenth Affirmative Defense (innocent infringement): 1. the defendant was not aware that its acts constituted infringement of the copyright; and 2. the defendant had no reason to believe that its acts constituted an infringement of the copyright. Manual 17.35. Warner defendants’ Nineteenth Affirmative Defense/Individual Defendants’ Seventeenth Affirmative Defense (preemption of fourth claim): 1. the work involved falls within the general subject matter of the Copyright Act as specified in 17 U.S.C. Sections 102 and 103; 2. the rights that the plaintiff asserts under state law are equivalent to those protected by the Act in 17 U.S.C. Section 106. Kodadek v. MTV Networks, Inc., 152 F.3d 1209, 1213 (9th Cir. 1998). (3) Brief Description of the Key Evidence Relied on to Support Defendants’ Affirmative Defenses Second Affirmative Defense (independent creation): The creators of Stairway to Heaven never heard Taurus before creating Stairway to Heaven. The evidence of the foregoing includes the testimony of Mr. Page, Mr. Plant, Mr. Jones, Mr. Ferguson and Mr. Andes, the handbill for the December 26, 1968 concert in Denver, Colorado, documents and recordings regarding the 1970 rehearsals at Headley Grange, pre-December 1968 recordings on which Mr. Page performed and which include elements similar to those plaintiff claims to have been copied from Taurus, the testimony and reports of Dr. Ferrara and Mr. Mathes, and the audio recordings submitted, including as to prior art. /// Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 14 of 26 Page ID #:3944 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fifth Affirmative Defense (de minimis): Taurus and Stairway to Heaven are not substantially similar and no protectable expression in Taurus appears in Stairway to Heaven. However, if there were a finding of copying, which is strenuously disputed, any elements of Taurus that are protectable and found to appear in Stairway to Heaven are quantitatively and qualitatively unimportant. The evidence establishing the foregoing includes Taurus and Stairway to Heaven and the testimony and exhibits, including audio exhibits, of Dr. Ferrara and Mr. Mathes. Sixth Affirmative Defense (fair use): Stairway to Heaven does not include any expression protected by the Taurus copyright. However, if there were a finding of copying, which is strenuously disputed, any alleged use is a fair use. Taurus is a short instrumental employing public domain material such as a descending chromatic line and arpeggios. Stairway to Heaven is a monumental work that builds and transforms over some eight minutes, with lyrics and substantial material beyond anything heard in the instrumental Taurus. The purpose and character of the alleged use was transformative, adding substantial new material with a further or different purpose or different character, with new expression, meaning or message. Any elements found to be used were used only incidentally as part of commercial enterprise. Taurus also is not an unpublished work, and any portion found to have been used is quantitatively and qualitatively small. In addition, Stairway to Heaven has had no adverse effect on the potential market for or value of Taurus. The evidence establishing the foregoing includes Taurus and Stairway to Heaven, the testimony of plaintiff, Mr. Andes, Mr. Ferguson and Mr. Adler, and the testimony and exhibits, including audio exhibits, of Dr. Ferrara and Mr. Mathes. Warner defendants’ Ninth Affirmative Defense/Individual Defendants’ Eighth Affirmative Defense (laches): Plaintiff asserts a forty-five-year-old copyright claim that the Trust’s Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 15 of 26 Page ID #:3945 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 predecessor, Mr. Wolfe, both was aware of and failed to assert from 1971 to his death in 1997 and which the Trust failed to assert until 2014. During those more than four decades of delay, numerous witnesses have died, including John Bonham (the fourth member of Led Zeppelin) in 1980, Peter Grant (Led Zeppelin’s personal manager and who attended many of their concerts) in 1995, Mr. Wolfe in 1997, John Locke (another member of Spirit) in 2006, Bernice Pearl (Mr. Wolfe’s mother and trustee of the Trust) in 2009, Ed Cassidy (another member of Spirit) in 2012, Andy Johns (the engineer for the recording of recorded Stairway) in 2013 and Danny Tucker (Spirit’s road manager in 1968-79). In addition, documents and recordings have been lost or stolen and memories have faded. Also, substantial monies were spent in connection with the exploitation of Stairway to Heaven and albums and other products that include Stairway to Heaven. Further, defendants did not know of the purported claim until shortly before it was filed in 2014 and, as a result, could not have filed an action for declaratory relief. The evidence establishing the foregoing includes the testimony of Mr. Page, Mr. Plant, Mr. Jones, Mr. Ferguson, Mr. Andes and representatives of the entity defendants, as well as documents such as those relating to the 1980s theft of tapes from Mr. Page’s home. Warner defendants’ Tenth Affirmative Defense/Individual Defendants’ Ninth Affirmative Defense (statute of limitations): Plaintiff filed this action on May 31, 2014. Complaint (Doc. 1). Plaintiff has agreed that the Copyright Act’s three year statute of limitations “precludes relief as to any alleged infringements prior to May 31, 2011.” Jt. Rule 26(f) Report (Doc. 4) at 4:12-1. Warner defendants’ Eleventh Affirmative Defense/Individual Defendants’ Tenth Affirmative Defense (abandonment): In 1991, Mr. Wolfe told Mr. Ruhlmann, for publication, that Mr. Wolfe was pursuing a claim as to another group’s song, but that he was not bothered by Led Zeppelin’s alleged use of Taurus for the introduction of Stairway, that “if they Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 16 of 26 Page ID #:3946 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 wanted to use” Taurus “that’s fine,” “I’ll let them have the beginning of Taurus for their song without a lawsuit” and “I’m letting them off the hook.” In addition, Mr. Wolfe, the Trust and Hollenbeck allowed the alleged use of Taurus for over forty- three years without objection. The evidence establishing the foregoing includes the testimony of Mr. Ruhlmann, his recording of Mr. Wolfe’s statements, and the testimony of plaintiff, the individual defendants and representatives of the entity defendants that no claim was asserted until 2014. Warner defendants’ Twelfth Affirmative Defense/Individual Defendants’ Eleventh Affirmative Defense (waiver): In 1991, Mr. Wolfe told Ruhlmann, for publication, that Mr. Wolfe was pursuing a claim as to another group’s song, but that he was not bothered by Led Zeppelin’s alleged use of Taurus for the introduction of Stairway, that “if they wanted to use” Taurus “that’s fine,” “I’ll let them have the beginning of Taurus for their song without a lawsuit” and “I’m letting them off the hook.” Mr. Wolfe also never sued. The evidence establishing the foregoing includes the testimony of Mr. Ruhlmann, his recording of Mr. Wolfe’s statements, and the testimony of plaintiff, the individual defendants and representatives of the entity defendants that no claim was asserted until 2014. Warner defendants’ Thirteenth Affirmative Defense/Individual Defendants’ Twelfth Affirmative Defense (license): Defendants strenuously dispute plaintiff’s claims (which are based on hearsay) that in 1968 Mr. Wolfe taught Mr. Page how to play Taurus on a guitar and that in 1973 Mr. Wolfe and Mr. Page spoke and shook hands before parting. However, if that claimed evidence were to be allowed by the Court and believed by the jury, it, and the evidence of Mr. Wolfe’s 1991 statements described above, establish Mr. Wolfe’s intent to grant permission to the alleged use of Taurus. /// /// Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 17 of 26 Page ID #:3947 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Warner defendants’ Seventeenth Affirmative Defense/Individual Defendants’ Sixteenth Affirmative Defense (plaintiff’s unclean hands): Mr. Wolfe died in 1997, unmarried and without a will, with only one heir, his son, Quinn Wolfe. Quinn was entitled to all of his father’s assets. Cal. Prob. Code § 6402(a). Quinn was a minor and the majority of his father’s assets were placed in the Trust, with his grandmother as trustee, and with the Trust assets ultimately to be distributed to Quinn. After the creation of the Trust, however, and despite the grandmother’s fiduciary obligations to Quinn as his father’s sole heir and sole beneficiary of the Trust, the grandmother purported to amend the Trust Agreement to disinherit Quinn, who she viewed as a grandson out of wedlock. Mr. Wolfe’s, and therefore Quinn’s assets, that the grandmother purported to retain in the Trust even after her death, include Mr. Wolfe’s claimed beneficial interest in the Taurus copyright upon which plaintiff bases his claim against defendants. The evidence establishing the foregoing and the Trust’s unclean hands includes the Ventura County Superior Court’s Orders and files in P 74293 and P 76088, the purported Trust Agreement and Amendments produced by plaintiff, the testimony of Quinn Wolfe, Mary Quinting, Robert Coit, James Cox, David Peterson, Harold Pittman and plaintiff. Warner defendants’ Eighteenth Affirmative Defense (innocent infringement): While the alleged infringement is disputed, the Warner defendants did not know of the alleged infringement or have any reason to believe there was an infringement. The evidence establishing the foregoing includes the testimony of plaintiff, the individual defendants and representatives of the entity defendants that no claim was asserted until 2014. Warner defendants’ Nineteenth Affirmative Defense/Individual Defendants’ Seventeenth Affirmative Defense (preemption of fourth claim): Plaintiff has not identified any legal basis for this claim and did not oppose defendants’ motion for summary judgment in their favor on this claim. To the Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 18 of 26 Page ID #:3948 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 extent this claim is premised on some State law that plaintiff has failed to identify, the claim is preempted. (c) Anticipated Evidentiary Issues On March 25, 2016, the parties filed their respective Motions in Limine (Doc. 134-51). Defendants are presently unaware of any additional evidentiary issues beyond those raised by the pending Motions in Limine. Those evidentiary issues include the following. (1) Evidentiary Issues Raised by Defendants’ Motions in Limine Defendants’ Motion in Limine No. 1 (Doc. 134): whether plaintiff may offer evidence of statements supposedly made by Mr. Wolfe, offered by plaintiff for the claimed truth of the statements. Defendants contend that evidence is inadmissible hearsay and also properly excluded under Federal Rule of Evidence 403. Defendants’ Motion in Limine No. 2 (Doc. 135): whether plaintiff may offer evidence of statements in newspaper or magazine articles and books, offered by plaintiff for the claimed truth of the statements. Defendants contend that evidence is inadmissible hearsay and also properly excluded under Rule 403. Defendants’ Motion in Limine No. 3 (Doc. 136): whether plaintiff may offer audio recordings of Spirit or plaintiff’s experts performing Taurus. Defendants contend that those recordings are irrelevant and also properly excluded under Rule 403, and that the only relevant and non-misleading Taurus recordings are those that are strictly limited to the performance of the Taurus musical composition as transcribed in the 1967 Taurus transcription that accompanied Hollenbeck Music’s 1967 registration of the copyright on which plaintiff sues. Defendants’ Motion in Limine No. 4 (Doc. 137): whether plaintiff may offer the testimony and exhibits of his experts, Alexander Stewart, Erik Johnson, Brian Bricklin and Kevin Hanson. Defendants contend that evidence is irrelevant because these experts’ disclosed reports do not compare or analyze the copyrighted 1967 Taurus transcription and rely on performance and public domain elements not Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 19 of 26 Page ID #:3949 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 protected by that copyright; because the testimony and exhibits are not reliable and are properly excluded under this Court’s gatekeeper role under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1985) and its progeny; and because that evidence is also properly excluded under Rule 403. Defendants’ Motion in Limine No. 5 (Doc. 138): whether plaintiff may offer testimony and exhibits as to past claims, theoretical claims and settlements as to other Led Zeppelin recordings and non-party works. Defendants contend that evidence is irrelevant, prohibited by Federal Rules of Evidence 407 and 408 and also properly excluded under Federal Rule of Evidence 403. Defendants’ Motion in Limine No. 6 (Doc. 139): whether plaintiff may offer the testimony of his expert, Denny Somach. Defendants contend that evidence is irrelevant, not reliable and also properly excluded under Federal Rule of Evidence 403. Defendants’ Motion in Limine No. 7 (Doc. 140): whether plaintiff may offer testimony or argument as to the wealth or lack thereof of parties and Mr. Wolfe. Defendants contend that evidence is irrelevant and also properly excluded under Rule 403. Defendants’ Motion in Limine No. 8 (Doc. 141): whether plaintiff may offer evidence or argument as to plaintiff’s and the Trust’s use of Trust funds, including the use of any recovery to buy musical instruments for needy children. Defendants contend that evidence is properly precluded because plaintiff refused full discovery, is irrelevant and also is properly excluded under Rule 403. Defendants’ Motion in Limine No. 9 (Doc. 142): whether plaintiff may offer evidence or argument as to pre-May 2011 revenues, including advance payments under pre-May 2011 contracts, and as to revenues from the exploitation of Stairway to Heaven outside the United States. Defendants contend that evidence is irrelevant and also properly excluded under Rule 403. /// Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 20 of 26 Page ID #:3950 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants’ Motion in Limine No. 10 (Doc. 143): whether plaintiff may rely on testimony from four, and possibly other, witnesses he failed to disclose pursuant to Federal Rule of Civil Procedure 26(a) and (e), and other witnesses he did not name until the day of the fact discovery cut-off and for whom plaintiff failed to provide the subject matter of their information, their addresses and their telephone numbers. Defendants contend plaintiff is automatically precluded by Federal Rule of Civil Procedure 37(c)(1) from relying on those witnesses and plaintiff has not sought, and is not entitled to, relief from that automatic preclusion. Defendants’ Motion in Limine No. 11 (Doc. 144): whether plaintiff may submit testimony that in 1973, after the 1971 creation, recording and release of Stairway to Heaven, Mr. Wolfe and Mr. Page spoke. Defendants contend that evidence is irrelevant, that plaintiff failed to disclose the witness who claims to have seen them speaking and that the evidence is also properly excluded under Rule 403. Defendants’ Motion in Limine No. 12 (Doc. 145): whether plaintiff may submit testimony or argument as to drinking or drug use. Defendants contend that evidence is irrelevant and also properly excluded under Rule 403. Defendants’ Motion in Limine No. 13 (Doc. 146): whether plaintiff may submit testimony or argument as to insurance or other indemnity rights as to plaintiff’s claims. Defendants contend that evidence is irrelevant, is prohibited by Federal Rule of Evidence 411 and also is properly excluded under Rule 403. Defendants’ Motion in Limine No. 14 (Doc. 147): whether plaintiff may submit to the jury his pleadings in this action. Defendants contend that plaintiff’s allegations are irrelevant, are based on hearsay and also are properly excluded under Rule 403. (2) Evidentiary Issues Raised by Plaintiff’s Motions in Limine Plaintiff’s Motion in Limine No. 1 (Doc. 149): whether defendants may challenge the validity of the Trust. Defendants contend that they may challenge the validity of the Trust upon whose behalf plaintiff purports to sue, including that Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 21 of 26 Page ID #:3951 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 defendants may raise that plaintiff did not comply with the Fifth Amendment to the Trust Agreement, which is a condition to the Trust’s continued existence. Plaintiff’s Motion in Limine No. 2 (Doc. 150): whether defendants may raise that Mr. Wolfe’s son, Quinn Wolfe, was deprived of his inheritance, including the beneficial copyright interest that plaintiff sues upon. Defendants contend that they may raise this evidence, including to establish the unclean hands of the Trust and its trustees. Plaintiff’s Motion in Limine No. 3 (Doc. 151): whether defendants may offer expert evidence as to plaintiff’s claimed damages. Defendants contend that they timely disclosed experts whose testimony is relevant and admissible as to plaintiff’s claimed damages and that defendants also intend to rely upon fact witnesses as to plaintiff’s claimed damages. (d) Identification of Issues of Law Defendants are presently aware of the following issues of law. (1) Legal Issues Raised by Pending Motions in Limine Defendants’ pending Motions in Limine include Motions based in whole or part on an issue of law, such that the copyright plaintiff sues upon is limited to the 1967 Taurus transcription and that revenues and contractual payments as to pre-May 31, 2011 alleged infringements and pre-May 31, 2011 contracts, as well as all alleged infringements outside the United States, are irrelevant. See, Def. Motions in Limine Nos. 3, 4 and 9. Additional issues of law include whether chromatic scales, arpeggios and a sequence of three notes, as well as other elements plaintiff and his experts rely upon, are copyrightable subject matter. Defendants contend that they are not. See, e.g., Copyright Office Compendium §§ 313.4(B) (three notes not copyrightable) & 802.5(A) (chromatic scales and arpeggios are “common property musical material” in the public domain). /// /// Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 22 of 26 Page ID #:3952 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (2) Plaintiff’s Requested Remedy of Defendant’s Profits Is Triable to the Court An additional issue of law is whether plaintiff has a right to a jury trial as to his claimed remedy under 17 U.S.C. Section 504 of defendants’ profits from the alleged infringement. It is now established that he does not. “The Seventh Amendment guarantees a litigant’s right to a jury trial on ‘suits at common law.’” Fifty-Six Hope Rd. Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059, 1074-75 (9th Cir. 2015), cert. denied, 136 S. Ct. 410 (2015), quoting U.S. Const. amend. VII. “‘Suits at common law’ include statutory claims that are legal (as opposed to equitable).” Fifty-Six Hope, 778 F.3d at 1075 (parenthetical in original). “To determine whether a particular claim invokes this right, [the Court] (1) must compare the statutory action to the 18th-century actions brought in the courts of England prior to merger of the courts of law and equity, and (2) must examine the remedy sought and determine whether it is legal or equitable in nature.” Id. (internal quotations omitted), quoting S.E.C. v. Rind, 991 F.2d 1486, 1493 (9th Cir. 1993), cert. denied, 510 U.S. 963 (1993). “The second inquiry is more important.” Fifty- Six Hope, 778 F.3d at 1075, quoting Rind, 991 F.2d at 1493. Before Petrella, the Supreme Court referred to recovery of a defendant’s profits for alleged copyright infringement as an equitable remedy. See, e.g., Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 352 (1998) (referring to “monetary relief that we have characterized as equitable, such as actions for disgorgement of improper profits”). In Petrella, the Supreme Court directly addressed the issue, holding that an award of a defendant’s profits under the Copyright Act is equitable. Petrella, 134 S. Ct. at 1967 n.1. Petrella also discussed at length the application of laches to a request for profits, as “relief equitably awardable.” Id. at 1977-79. Thus, Petrella “places recovery of defendant’s profits squarely on the equitable side of the ledger.” 3 Nimmer on Copyright § 12.06[B][3][d][i]. Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 23 of 26 Page ID #:3953 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further, after Petrella the Ninth Circuit also squarely held that, under the analogous provision of the Lanham Act, “[a] claim for disgorgement of profits under [15 U.S.C.] § 1117(a) is equitable, not legal,” and there is no right to jury trial of profits. Fifty-Six Hope, 778 F.3d at 1075. Accordingly, plaintiff’s claim for profits is triable to the Court, not a jury. 3. BIFURCATION This case involves distinct legal and equitable issues that do not share common factual issues and, accordingly, bifurcation is both permitted and appropriate. Danjaq, 263 F.3d at 962. First, defendants’ defense of laches is tried to the Court. Id. (“there is no right to a jury on the equitable defense of laches”). Second, factual issues as to liability are tried to the jury. Third, while the potential remedy of statutory damages is triable to a jury, they are capped at $150,000 because there is only one allegedly infringed work, namely the 1967 Taurus transcription. 17 U.S.C. § 504(c). Accordingly, plaintiff, believing he can do better, seeks defendants’ profits, but they are determined, if at all, by the Court. See above at 19-20. Further, the factual issues on each do not overlap. The equitable defense of laches will turn on evidence of delay (which, at forty-three years, is conceded by plaintiff) and resulting prejudice (with plaintiff already conceding the substantial evidentiary prejudice). Liability, on the other hand, involves evidence as to plaintiff’s standing, the claimed registration of the 1967 Taurus copyright and the alleged 1970-71 copying of the Taurus musical composition in the creation and recording of Stairway to Heaven. And, the determination of defendants’ profits, in stark contrast, involves their profits from the exploitation of Stairway to Heaven after May 31, 2011 – or forty years after the evidence as to alleged copying. Since the remedy of profits and laches, on the one hand, and liability, on the other hand, are distinct, bifurcation is permitted. Danjaq, 263 F.3d at 962-63 (affirming trial court’s decision to try laches first, which disposed of case without Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 24 of 26 Page ID #:3954 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 need for jury trial as to liability). In addition, there are other sound reasons to bifurcate profits and try them, if at all, after trial as to laches and liability. If plaintiff cannot establish infringement, then the substantial trial time and expense of litigating profits is avoided completely. Also, the revenues, costs and profits, if any, from defendants’ exploitation of Stairway to Heaven after May 31, 2011 has absolutely no relevance to liability. Presenting the jury with evidence as to the amounts of post-May 31, 2011 revenues, costs and profits will only confuse the issues presented to the jury, mislead the jury and create the substantial risk of prejudice from the evidence of substantial earnings. Accordingly, irrespective of the Court’s ruling as to trying laches separately, profits are properly tried to the Court, alone. 4. PLAINTIFF HAS REQUESTED JURY TRIAL Plaintiff, but not defendants, requested jury trial. Complaint (Doc. 1) at 29. As shown above, however, his right to jury trial does not include equitable remedies, including defendants’ profits. See above at 19-20. 5. ATTORNEY’S FEES ARE POTENTIALLY RECOVERABLE The Court may award attorneys’ fees to the prevailing party or parties. 17 U.S.C. § 505. 6. ABANDONED CLAIMS OR ISSUES Defendants presently do not intend to pursue the affirmative defenses not identified above at 5-7. Dated: April 4, 2016 /s/ Peter J. Anderson Peter J. Anderson, Esq. LAW OFFICES OF PETER J. ANDERSON A Professional Corporation Attorney for Defendants JAMES PATRICK PAGE, ROBERT ANTHONY PLANT, JOHN PAUL JONES, WARNER/CHAPPELL MUSIC, INC., SUPER HYPE PUBLISHING, INC., ATLANTIC RECORDING CORP., RHINO ENTERTAINMENT COMPANY and WARNER MUSIC GROUP CORP. Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 25 of 26 Page ID #:3955 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Helene M. Freeman, Esq. PHILLIPS NIZER LLP Attorney for Defendants JAMES PATRICK PAGE, ROBERT ANTHONY PLANT and JOHN PAUL JONES Case 2:15-cv-03462-RGK-AGR Document 157 Filed 04/04/16 Page 26 of 26 Page ID #:3956