United States District Court, C.D. California
MARCUS GRAY ET AL.
KATY PERRY ET AL.
Attorneys Present for Plaintiffs: Brianna Dahlberg, Carole
Handler Drey Cooley
Attorneys Present for Defendants: Aaron Wais (By Telephone)
Present: The Honorable CHRISTINA A. SNYDER JUDGE.
CIVIL MINUTES - GENERAL
DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT (Filed
January 23, 2017, Dkt. 228)
1, 2014, Marcus Gray (P.K.A. Flame), Lecrae Moore (P.K.A.
Lecrae), Emanuel Lambert, and Chike Ojukwu filed this action
alleging that the song "Dark Horse" infringes upon
plaintiffs' copyright in the song "Joyful
Noise." Dkt. 1. Since then, plaintiffs have repeatedly
amended their pleadings to add or dismiss various parties.
The operative Third Amended Complaint ("TAC") no
longer lists Moore as a plaintiff and alleges copyright
infringement by Katheryn Elizabeth Hudson (P.K.A. Katy Perry,
hereinafter "Perry"); Jordan Houston (P.K.A. Juicy
J): Lukasz Gottwald (P.K.A. Dr. Luke); Sarah Theresa Hudson;
Karl Martin Sandberg (P.K.A. Max Martin); Henry Russell
Walter (P.K.A. Cirkut); Kasz Money, Inc.; Capitol Records,
LLC; Kitty Purry, Inc; UMG Recordings, Inc.; Universal Music
Group, Inc.; WB Music Corp; BMG Rights Management (US) LLC;
and Kobalt Music Publishing America, Inc.
September 16, 2016, plaintiffs filed a motion before the
Honorable Jacqueline Chooljian, United States Magistrate
Judge ("the Magistrate Judge"), to compel
production of concert revenue information by Perry and her
personal services corporation, Kitty Purry, Inc.
(collectively "Perry defendants") related to
Perry's "Prismatic World Tour." Dkt. 157. On
October 11, 2016, the Magistrate Judge granted
plaintiffs' motion with respect to domestic concerts and
ordered the Perry defendants to produce "[d]ocuments and
information sufficient to reflect the gross ticket
sales/revenues and the top line gross expenses (by categories
utilized in such defendants' existing accounting methods)
of the 'Prismatic World Tour' concerts in the United
States as a whole." Dkt. 162 ("the Discovery
Order"). On October 25, 2016, the Perry defendants filed
a motion seeking review and reconsideration of the Discovery
Order. Dkt. 168. On December 5, 2016, the Court denied the
Perry defendants' motion, but stayed discovery of concert
revenue information pending resolution of a motion for
partial summary judgment. Dkt. 214. The instant motion
January 23, 2017, the Perry defendants filed the instant
motion for partial summary judgment seeking a determination
that Perry's concerts could not have infringed
plaintiffs' copyrights because they were
licensed. Dkt. 228. On February 27, 2017, plaintiffs
filed an opposition. Dkt. 233. On March 20, 2017, defendants
filed a reply. Dkt. 236.
carefully considered the parties' arguments, the Court
finds and concludes as follows.
otherwise noted, the following background is undisputed.
are an "American Christian hip hop" performance
group. TAC ¶¶ 5-7. Plaintiffs allege that they are
the authors and creators of a song entitled, "Joyful
Noise." Plaintiffs claim to have created the song in
2007 and released the song in March 2008. Id¶ 27. On
June 3, 2014, the United States Copyright Office issued a
certificate of registration for the copyright in "Joyful
Noise." Id. ¶ 28.
own rights in a song called "Dark Horse, " which
appeared on the "Prism" album released by Perry in
October 2013. Dkt. 233-2, Plaintiffs' Statement of
Genuine Disputes ("SGD") No. 6. Plaintiffs allege
that "Dark Horse" infringes upon their copyrights
in the song "Joyful Noise, " and that
defendants' "unauthorized reproduction,
distribution, and public performance of [p]laintiffs'
musical composition constitute infringement of
plaintiffs' exclusive rights in their copyright."
TAC ¶ 3.
issue in the instant motion are certain concerts at which
Perry performed the song "Dark Horse."
Specifically, between June 2014 and October 2014, as part of
her "Prismatic World Tour, " Perry performed 50
concerts at 39 venues in the United States ("the
Tour"). SGD No. 1. During each concert of the Tour,
Perry performed "Dark Horse." Ici No. 2. The
parties dispute whether those performances could
violate plaintiffs' copyrights in the song "Joyful
Noise, " even if the song "Dark Horse"
infringes upon "Joyful Noise." Defendants do not
concede that "Dark Horse" infringes upon
"Joyful Noise." That dispute remains fundamental to
this case. In the instant motion, defendants argue that,
assuming arguendo "Dark Horse" infringes upon
"Joyful Noise, " the Tour performances could not
infringe upon plaintiffs' copyrights because these
performances were authorized by licenses issued by the
American Society of Composers, Authors and Publishers
Licensing the Prismatic World Tour
is a performing rights organization ("PRO") that
"licenses the public performance of nondramatic musical
works on behalf of copyright owners of such works." 17
U.S.C. § 101 (defining "performing rights
society" and expressly referring to ASCAP). Perry, S.
Hudson, Gottwald, Walter, and their affiliated music
publishers are all members of ASCAP. SGD No. 8. Plaintiff
Gray and his affiliated music publishers are also ASCAP
members. Id. No. 9. Members of ASCAP grant ASCAP the
nonexclusive right to license public performances of the
members' musical compositions." Id. No.
5. It is undisputed that ASCAP does not issue licenses to its
members or other performers, but instead, in practice, issues
them to promoters or concert venues. Id. No.
Live LLC ("AEG"), which is not a party to this
dispute, worked as the promoter for all Perry's concerts
during the Tour. Id. No. 3. Defendants aver that
AEG "was licensed" by ASCAP in relation to the
songs within the ASCAP repertory. Id. No. 15.
Plaintiffs dispute whether any license of AEG's would
protect the Perry defendants from a suit for copyright
support of their contention that AEG Live "was
licensed" by ASCAP in relation to the Tour, defendants
have offered Schilder's declaration, in which Schilder
Each Tour Concert was presented pursuant to a blanket concert
public performance license issued by ASCAP to all members of
the North American Concert Promoters Association
("NACPA") [, of which AEG is a member] . . .
Schilder Decl. ¶ 4. Like AEG, the NACPA is not a party
to this action.
Content of the ASCAP License Issued to AEG
have not submitted a licensing agreement between AEG and
ASCAP. On October 25, 2016, defendants filed a declaration
from Richard Reimer, ASCAP's Senior Vice President of
Legal Services, in which Reimer explains that an exhibit
attached to his declaration, exhibit 2, "is a true copy
of the form of ASCAP's 'Concerts and Recitals -
Blanket License Agreement, ' which sets forth the scope
of the license granted by ASCAP for each of the Perry
Concerts." Dkt. 168-1, Declaration of Richard Reimer
("Reimer Decl.") ¶ 5. In Schilder's
declaration here, Schilder confirms that "[t]he scope of
the licensing terms of the ASCAP" license obtained by
AEG is set forth in the same exhibit, specifically docket
number 168-2 (the "License"). Schilder Decl.
License provides that it is an "agreement between"
ASCAP and a "LICENSEE." License at 1. The License
ASCAP grants and LICENSEE accepts a license to perform
publicly or cause to be performed publicly at concerts or
recitals ('concerts') in the United States presented
by or under the auspices of LICENSEE, and not elsewhere or
otherwise, non-dramatic renditions of the separate musical
compositions in the 'ASCAP repertory.' For purposes
of this Agreement 'ASCAP repertory' means all
copyrighted musical compositions written or published by
ASCAP members ....
Id. ¶ 1(a). The License contains several
"Limitations, " which provide:
(a) This license is not assignable or transferable by
operation of law or otherwise, except upon the express
written consent of the parties ....
(b) This license is strictly limited to the LICENSEE and to
the premises where each concert is presented, and does not
authorize any other performances other than those given at
the premises as part of licensed concerts. This license shall
not cover concerts for which the information ...