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Elmo Shropshire, D/B/A Elmo Publishing v. Aubrey Canning

January 4, 2012

ELMO SHROPSHIRE, D/B/A ELMO PUBLISHING,
PLAINTIFF,
v.
AUBREY CANNING, JR.,
DEFENDANT.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER DENYING DEFENDANT'S SECOND MOTION TO DISMISS SECOND AMENDED COMPLAINT

"Grandma Got Run Over By A Reindeer" is a holiday song, written by Randy Brooks in 1979, and performed by Elmo Shropshire ("Shropshire" or "Plaintiff") and Patsy Trigg ("Trigg").

In this copyright infringement suit, Plaintiff claims that he co-owns the copyright to the musical 21 composition of the song and that Defendant Aubrey Canning, Jr. ("Canning" or "Defendant") 22 uploaded, and failed to remove, an infringing video on YouTube. Presently before the Court is Defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(7) for failure to join 24 necessary parties. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for 25 determination without oral argument and hereby VACATES the hearing scheduled for January 5, 2012. Having considered the submissions of the parties and the relevant law, the Court hereby DENIES Defendant's motion to dismiss.

I.BACKGROUND

Complaint, see ECF No. 85, and therefore will only be briefly summarized here. The following 5 facts are taken from Plaintiff's Second Amended Complaint (SAC) and are taken as true for 6 purposes of ruling on this motion to dismiss. 7 Publishing and Patsy Trigg d/b/a Kris Publishing are co-owners of the copyright to the underlying 10 musical composition, which was registered with the Copyright Office on December 27, 1979. Id. ¶ 11

Pursuant to the terms of a 1996 "Exclusive Copyright Administration Agreement" 13

A.Relevant Facts

The relevant facts of this case are set forth in the Court's November 10, 2011 Order Granting in Part and Denying in Part Defendant's Motion to Dismiss Plaintiff's Second Amended 4

Plaintiff is best known for his performance of "Grandma Got Run Over By A Reindeer" (the "Grandma Song"), a song written by Randy Brooks in 1979. SAC ¶ 11. Plaintiff d/b/a Elmo & Exs. -3. Plaintiff and Kris Publishing each own 50% of the copyright. Id. ¶ 12 & Ex. 3.

("Administration Agreement"), BMG Rights Management ("BMG") is the exclusive copyright 14 administrator of the Grandma Song for Elmo Publishing and Kris Publishing. Id. ¶ 13 & Ex. 4. 15

Grandma Song upon the consent or non-objection of both Plaintiff and Kris Publishing. Id. ¶ 15. 17

BMG serves as the tie-breaker vote if the co-owners disagree about whether to grant a particular 18 license. Id. The "royalties, monies, and all other compensation" from the Grandma Song, after 19 costs, are divided among BMG, which receives 10%, the composer Randy Brooks, who receives 20

In or about December 2007, Defendant posted a video on YouTube, which combined Christmas-related pictures with audio of a Canadian musical group, "The Irish Rovers," singing the 23

Grandma Song. Id. ¶ 18. Plaintiff contacted Defendant informing him that his unlicensed video 24 infringed on Plaintiff's copyright and requesting that he remove the video from YouTube. Id. ¶ 42. 25

Notification with YouTube pursuant to 17 U.S.C. § 512(c), requesting removal of Defendant's 27 video. Id. ¶ 50. YouTube removed the video, but then reinstated it shortly thereafter upon 28

According to the Administration Agreement, BMG is authorized to grant licenses to use the 16 45%, and Plaintiff and Kris Publishing, who each receive 22.5%. Id. ¶ 17. 21

When Defendant did not remove the video, Plaintiff then filed a Copyright Infringement 26

Defendant's filing of a counter-notice with YouTube, in which he stated that "no part of my Grandma video is a copy of any original work made by [the Plaintiff]," and that he had a "good 2 faith belief the material was removed due to a mistake or misidentification of the material to be 3 removed or disabled." Id. ¶¶ 52-53, 58, Ex. 1. copyright infringement under the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 512, 7 on May 3, 2010. See ECF No. 1. Plaintiff voluntarily dismissed YouTube, Inc. from this litigation 8 on June 4, 2010. See ECF No. 6. On June 23, 2010, Defendant contacted Patsy Trigg d/b/a Kris 9

Authorization granting Defendant permission to use the song and/or waiver of the infringement claims asserted against Defendant by Plaintiff. See Joint Case Management Statement, filed August 18, 2011, ECF No. 86 at 2. On September 21, 2010, Trigg sent a notarized statement to the 13 B.Procedural History Plaintiff filed his original complaint against Defendant and YouTube, Inc. alleging Publishing, co-owner of the asserted copyright, and obtained from Trigg a Verified Notice of Court informing the Court of her refusal to join in this action or otherwise enforce the asserted 14 copyright against Defendant. Id.; see also SAC ¶ 68; ECF No. 30 (Trigg's letter). 15

16 direct copyright infringement pursuant to the Copyright Act, 17 U.S.C. § 106. See ECF No. 33. 17

12(b)(6), and 12(b)(7). This Court granted Defendant's motion to dismiss the FAC on January 11, 19

2011, with leave to amend. See ECF No. 60. The Court dismissed Plaintiff's copyright 20 infringement claim for failure to identify any act of infringement that occurred entirely within the 21 United States, and dismissed Plaintiff's DMCA misrepresentation claim for failure to state a claim 22 and for failure to join Patsy Trigg d/b/a Kris Publishing. See Order ...


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