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Gray v. Perry

United States District Court, C.D. California

April 3, 2017


          Attorneys Present for Plaintiffs: Brianna Dahlberg, Carole Handler Drey Cooley

          Attorneys Present for Defendants: Aaron Wais (By Telephone) Vincent Chieffo

          Present: The Honorable CHRISTINA A. SNYDER JUDGE.


         Proceedings: DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT (Filed January 23, 2017, Dkt. 228)


         On July 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.

         On 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 followed.

         On 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.[1] Dkt. 228. On February 27, 2017, plaintiffs filed an opposition. Dkt. 233. On March 20, 2017, defendants filed a reply. Dkt. 236.

         Having carefully considered the parties' arguments, the Court finds and concludes as follows.


         Unless otherwise noted, the following background is undisputed.

         Plaintiffs 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.

         Defendants 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.

         At 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 ("ASCAP").

         A. Licensing the Prismatic World Tour

         ASCAP 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."[2] 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.[3] Id. No.

         AEG Live LLC ("AEG"), which is not a party to this dispute, worked as the promoter for all Perry's concerts during the Tour.[4] 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 infringement. Id.

         In 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 states:

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.

         B. Content of the ASCAP License Issued to AEG

         Defendants 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").[5] Schilder Decl. ¶ 4.

         The License provides that it is an "agreement between" ASCAP and a "LICENSEE." License at 1. The License states:

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 ...

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