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Gray v. Perry

United States District Court, C.D. California

July 5, 2019

MARCUS GRAY ET AL.
v.
KATY PERRY ET AL.

          Present: The Honorable CHRISTINA A. SNYDER

          CIVIL MINUTES - GENERAL

         Proceedings: (IN CHAMBERS) - MOTIONS IN LIMINE

         I. INTRODUCTION

         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 amended their pleadings to add or dismiss various parties. The operative Third Amended Complaint (“TAC”), filed on November 1, 2016, 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. Dkt. 172. A trial in this matter is currently scheduled to begin on July 16, 2019.

         The Court held a hearing on July 1, 2019. Having carefully considered the parties' arguments, the Court finds and concludes as follows.

         II. PLAINTIFFS' MOTIONS IN LIMINE

         A. Plaintiffs' Corrected Motion in limine No. 1 (Dkt. 333, filed on June 12, 2019)

         Defendants plan to argue at trial that plaintiffs' evidence of widespread dissemination through Myspace and YouTube is insufficient to show that it was reasonably possible for defendants to have heard “Joyful Noise” because defendants would have had to actively sought out “Joyful Noise” to access it through those mediums. See Dkt. 369. Plaintiffs request an order precluding “defendants from arguing that an absence of direct evidence of access defeats plaintiff's ability to prove access” or that defendants needed to take “affirmative action to hear the song.” Dkt. 333 at 3, 4. Defendants represent that they do not intend to argue that plaintiffs must show direct evidence of access and contend that there is nothing improper about their arguments about how users listen to music on Myspace and YouTube because it goes to whether there was a “reasonable possibility, not merely a bare possibility, ” that defendants heard “Joyful Noise.” Dkt. 369 at 4 (quoting Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016) (emphasis added)).

         “Proof of access requires an opportunity to view or to copy plaintiff's work.” L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012) (internal quotation marks omitted) (citing Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000)). “To prove access, a plaintiff must show a reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to view the protected work.” Id. (quoting Art Attacks Ink, LLC v. MGA Entm't Inc., 581 F.3d 1138, 1143 (9th Cir. 2009)). “Absent direct evidence of access, a plaintiff can prove access using circumstantial evidence of either (1) a ‘chain of events' linking the plaintiff's work and the defendant's access, or (2) ‘widespread dissemination' of the plaintiff's work.” L.A. Printex, 676 F.3d at 847 (quoting Three Boys Music, 212 F.3d at 482). A presumption of copying is created when a copyright plaintiff establishes both reasonable access and substantial similarity. See Three Boys Music, 212 F.3d at 486. The burden then “shifts to the defendant to rebut that presumption through proof of independent creation.” Id. (citation omitted).

         Plaintiffs contend that “whether any viewer, including defendants, had direct access to and/or took specific affirmative action to hear the song on, for example, YouTube, is not a required element of the proof of widespread dissemination[.]” Dkt. 333 at 6. The Court observes, however, that courts routinely assess the characteristics and practices of a defendant in determining whether a plaintiff has established access through widespread dissemination. See e.g., Three Boys Music Corp. v. Bolton, 212 F.3d at 483 (finding that plaintiffs presented sufficient evidence of widespread dissemination of an Isley Brothers song by showing, in part, that Bolton grew up listening to groups like the Isley Brothers, that the infringed song was played on the radio in the area where Bolton grew up, and that Bolton confessed to being a huge fan of the Isley Brothers); Loomis, 836 F.3d at 998 (holding that plaintiff did not create a triable issue of access as to whether its song was widely disseminated because “there was no evidence that [the defendants] undertook any [ ] activity in that market that created a reasonable possibility of access to [the plaintiff's song]”). These cases demonstrate that whether evidence of widespread dissemination establishes access depends, in part, on the circumstances by which a particular defendant would have heard or viewed the plaintiff's work.

         Plaintiffs here bear not only the burden of showing widespread dissemination of “Joyful Noise, ” but also the burden of showing that such evidence demonstrates a reasonable, not just bare, possibility that defendants heard “Joyful Noise” before creating “Dark Horse.” Although it would be inappropriate for defendants to argue that plaintiffs must show direct evidence of access to prevail on their claim for copyright infringement, the Court finds that defendants' arguments about whether it was likely that defendants would have accessed “Joyful Noise” on Myspace or YouTube are appropriate and relevant to the issue of whether defendants had a reasonable opportunity to hear “Joyful Noise.” And in the event plaintiffs demonstrate a reasonable possibility of access and the burden shifts to defendants to prove independent creation, defendants' argument would also be proper to show that they never availed themselves of the opportunity to hear “Joyful Noise.” See 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, § 13.02[A] (“The trier of fact may conclude that [the defendant] had, but did not avail himself of, the opportunity to view, but this conclusion properly goes to the ultimate issue of copying, and not to the subordinate issue of access.”).

         Accordingly, the Court DENIES plaintiffs' Motion in limine No. 1.

         B. Plaintiffs' Motion in limine No. 2 (Dkt. 328, filed on June 12, 2019)

         Plaintiffs seek an order precluding defendants from presenting any evidence or argument regarding the amount of money Chike Ojukwu received for licensing the musical beat for “Joyful Noise” to Marcus Gray, the amount of money he has received for other beats, and whether plaintiffs have licensed any of their music. Dkt. 328 at 3. Plaintiffs argue that this evidence is not relevant and, in the alternative, that its “probative value is substantially outweighed by a danger of unfair prejudice, confusion of the issues, and misleading the jury.” Id. Defendants argue that the evidence is relevant in determining a hypothetical license fee. Dkt. 372 at 5. Specifically, King opines in his rebuttal report that a hypothetical license fee for the beat at issue would be “quite low” given that it had been licensed to Marcus Gray for $300. Id.

         In an action for copyright infringement, “[a]ctual damages are usually determined by the loss in the fair market value of the copyright, measured by the profits lost due to the infringement or by the value of the use of the copyrighted work to the infringer.” Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 708 (9th Cir. 2004) (internal citations omitted). Actual damages may be based on a hypothetical lost license fee, provided that the amount is not based on “undue speculation.” Id. at 709. To establish the amount of a hypothetical lost license fee, evidence may be presented of a reasonable market value for the license fee using a history of comparable licenses or “benchmark” licenses in the industry. See id.; see also Oracle Corp. v. SAP AG, 765 F.3d 1081, 1093 (9th Cir. 2014).

         The Court finds that evidence of plaintiffs' prior licensing agreements and the amount Ojukwu received for licensing beats in the past, including the beat in “Joyful Noise, ” may be relevant in determining a hypothetical lost license fee. The Court does not find that the risks of prejudice, jury confusion, or misleading the jury outweigh the probative value of this evidence. Accordingly, the Court DENIES plaintiffs' Motion in limine No. 2.

         C. Plaintiffs' Motion in limine No. 3 (Dkt. 329, filed on June 12, 2019)

         Plaintiffs seek to exclude evidence and argument related to Ojukwu's use of a free program to create the beat for “Joyful Noise” and the fact that the song writers of “Joyful Noise” agreed to their respective ownership shares of the “Joyful Noise” composition after the filing of the instant lawsuit. Dkt. 329 at 3. Plaintiffs argue that this evidence is not relevant to the issues in the case and claim that the danger of prejudice, confusion, and misleading the jury outweighs its probative value. Id. at 3-4. Defendants respond that Ojukwu's use of a free program to create the beat at issue is relevant to damages and whether the beat is original and protected by copyright law. Dkt. 373 at 3. Defendants also assert that timing of their ownership agreement is relevant to the validity and timing of plaintiffs' copyright registration for “Joyful Noise.” Id. at 3-4.

         The Court is persuaded by defendants that this evidence is relevant and does not find that the risks of prejudice, jury confusion, or misleading the jury outweigh its probative value. Accordingly, the Court DENIES plaintiffs' Motion in limine No. 3.

         III. DEFENDANTS' MOTIONS IN LIMINE

         A. Defendants' Motion in limine No. 1 (Dkt. 337, filed on June 12, 2019)

         Defendants seek to preclude plaintiffs from introducing evidence or argument regarding their moral rights or any reputational harm caused by defendants' alleged infringement. Dkt. 337 at 2. Specifically, defendants seek to preclude evidence regarding the “tarnish” to the “devoutly religious message of ‘Joyful Noise'” caused by “witchcraft, paganism, black magic, and Illuminati imagery” evoked by “Dark Horse.” Id. Defendants contend that this evidence is irrelevant, prejudicial, and an improper attempt by plaintiffs to enforce “moral rights” under the Copyright Act. Id. Plaintiffs respond in their opposition brief that they do not intend to assert a “moral rights” theory at trial but that they should be permitted to offer evidence of the reputational damage they suffered as part of their claim for lost profits. Dkt. 375 at 1.

         At the hearing, plaintiffs indicated that they do not have any evidence of lost profits and that they are not going to pursue that theory of damages at trial. It thus appears that evidence regarding any “tarnish” to “Joyful Noise” caused by “Dark Horse” is irrelevant to the issues in this action. Accordingly, the Court GRANTS defendants' Motion in limine No. 1.

         B. Defendants' Motion in limine No. 2 (Dkt. 338, filed on June 12, 2019)

         A presumption of copying is created when a copyright plaintiff establishes both reasonable access and substantial similarity. See Three Boys Music, 212 F.3d at 486. However, “[a]bsent evidence of access, a ‘striking similarity' between the works may give rise to a permissible inference of copying.” Baxter v. MCA., Inc., 812 F.2d 421, 423 (9th Cir. 1987) (citation omitted). “At base, ‘striking similarity' simply means that, in human experience, it is virtually impossible that the two works could have been independently created.” Nimmer on Copyright § 13.02[B]. In a technical area, such as music, expert testimony is generally necessary to establish striking similarity. Id.

         Defendants contend that plaintiffs have thus far only argued that “Joyful Noise” and “Dark Horse” are substantially similar and seek to exclude plaintiffs from changing course and arguing at trial that “Joyful Noise” and “Dark Horse” are strikingly similar. Dkt. 338. According to defendants, this argument is untimely and plaintiffs have no musicologist expert opinion of striking similarity (as opposed to substantial similarity). Plaintiffs respond that their musicology expert, Dr. Todd Decker, did not ascribe any legal meaning to the term “substantially similar” as used in his expert report, and that Decker did, in fact, opine that the similarities between the works “suggest[] significant borrowing of musical material from ‘Joyful Noise' by the creators of ‘Dark Horse.'” Dkt. 375 at 4. Thus, according to plaintiffs, Decker's expert testimony will support their argument at trial that the works are strikingly similar. Id.

         The Court is not persuaded that Decker's expert testimony qualifies as a “striking similarity” opinion. Decker was not asked by plaintiffs to provide an opinion on whether the musical material in the two songs are strikingly similar, dkt. 338-1 at 85, nor does he opine in his report that the ostinatos in the two works are virtually identical or strikingly similar, see dkt. 338-1 at 6-20. Although Decker opines that the ostinatos in the two works share some identical features such as phrase length and rhythm, he also opines that the two ostinatos are only “nearly identical” or “substantially similar” in pitch content and timbre and that they differ in key and tempo as well as their final note. Id. at 9-14. Although Decker ultimately concludes that the similarities in the two works “suggest” musical borrowing, that opinion is not equivalent to an opinion that the two works are so strikingly similar that it is “virtually impossible that the two works could have been independently created[.]” Nimmer on Copyright § 13.02[B].

         Due to the absence of expert testimony that the two works are strikingly similar or that copying is the only explanation for the similarities between the works, the Court precludes plaintiffs from arguing at trial that the two works are so strikingly similar that they need not prove access. Accordingly, the Court GRANTS defendants' Motion in limine No. 2.

         C. Defendants' Motions in limine Nos. 4, 5, 6 (Dkts. 340, 341, 342 filed on June 12, 2019)

         Defendants seek an order excluding plaintiffs from introducing evidence of: (1) plaintiffs' live performances of “Joyful Noise”; (2) radio and TV interviews with plaintiffs featuring “Joyful Noise”; and (3) critical acclaim of “Joyful Noise” or Our World Redeemed within the Christian music community. Dkts. 340-342. Defendants contend that this evidence is not relevant to the issue of access because, according to defendants, widespread dissemination requires a showing of “an appreciable level of national saturation, ” which can only be proven by demonstrating “commercial success” and “distribution through radio, television, and other relevant mediums.” Dkt. 340 (quoting Loomis, 836 F.3d at 994, 997). In the absence of national saturation, defendants contend that the only other way plaintiffs can demonstrate widespread dissemination is through “saturation in a relevant market in which both the plaintiff and the defendant participate.” Id. (quoting Loomis, 836 F.3d at 997). According to defendants, plaintiffs' evidence of performances, interviews, and critical acclaim are not relevant because they demonstrate neither national saturation nor saturation in a market that defendants participated in because defendants did not participate in the Christian music market.

         The Court has previously found defendants' narrow reading of Loomis to be misplaced. See Dkt. 314. In its decision on defendants' motion for reconsideration of denial for summary judgment, the Court found that, despite defendants' arguments to the contrary, Loomis did not impose new requirements for establishing widespread dissemination:

Because plaintiffs did not show commercial success or saturation in the relevant market, defendants argue that Loomis required the Court to grant defendants' motion for summary judgment. However, Loomis did not make any such holding. Rather, the Ninth Circuit stated “[t]he evidence required to show widespread dissemination will vary from case to case.” 836 F.3d at 997 (emphasis added).

Id. at 5.

         Despite the Court's previous ruling, defendants continue to insist that Loomis imposes new requirements for demonstrating access in a copyright infringement case. The Court reiterates that “[t]he evidence required to show widespread dissemination will vary from case to case.” Loomis, 836 F.3d at 997 (emphasis added). The Court finds that the three categories of evidence that defendants seek to exclude are relevant to widespread dissemination and whether defendants had a reasonable opportunity to hear “Joyful Noise.” Whether this evidence proves that defendants had a reasonable opportunity to hear “Joyful Noise” is a matter for cross-examination and argument. Accordingly, the Court DENIES defendants' motions in limine to the extent they seek to exclude plaintiff's evidence on the grounds that it does not show nationwide saturation or saturation in a relevant market.

         Defendants also argue that this evidence is irrelevant because plaintiffs cannot prove that defendants attended any of plaintiffs' concerts, heard plaintiffs' song on the radio or TV, or participated in the Christian music market. The Court is not persuaded. A plaintiff need not establish that a defendant actually viewed and knew of the plaintiff's work to prevail on his claim for copyright infringement. See Nimmer on Copyright, § 13.02[A]. Such a requirement would ignore “the underlying policy considerations that permit proof of access (and substantial similarity) as substitutes for direct proof of copying.” Id. “Just as it is virtually impossible to offer direct proof of copying, so it is often impossible for a plaintiff to offer direct evidence that defendant . . . actually viewed or had knowledge of the plaintiff's work” because “[s]uch viewing will ordinarily have occurred, if at all, in a private office or home outside of the presence of any witnesses available to the plaintiff.” Id. Thus, “[f]or this reason, it is clear that, even if evidence is unavailable to demonstrate actual viewing, proof that the defendant had the opportunity to view (when combined with probative similarity) is sufficient to permit the trier to conclude that copying as a factual matter has occurred-in other words, the factfinder has the discretion to reject even the uncontradicted testimony of [the defendant] that he had never in fact viewed the plaintiff's work.” Id. Thus, the issue of whether defendants heard or knew about “Joyful Noise”-either by attending plaintiffs' concerts, listening to the song on the radio or TV, or learning of “Joyful Noise” through its various award nominations-is a question of fact to be decided by the jury.

         Defendants also seek to exclude evidence of plaintiffs' concert performances on the grounds that plaintiffs lack any admissible evidence of those performances. Plaintiffs respond that they will establish a foundation for all evidence of concert performances through: (1) Marcus Gray's testimony about his personal knowledge of the concerts at which “Joyful Noise” was played; and (2) Crystal Gray's testimony based on her knowledge as Marcus Gray's manager. Dkt. 375 at 8-9. The Court finds no reason to exclude testimony about plaintiffs' concert performances at this juncture and reserves ruling on the admissibility of this testimony until after the witnesses have had an opportunity to lay a foundation for their testimony.

         Defendants also contend that plaintiffs' evidence of radio and TV interviews is inadmissible because plaintiffs will not lay a proper foundation for this evidence and because it contains hearsay. Plaintiffs respond that Marcus Gray and Crystal Gray will offer testimony on this subject and that they have personal knowledge regarding the details of these interviews. Dkt. 375 at 11. As for defendants' hearsay objection, plaintiffs argue that the fact that “Joyful Noise” played in the background of these interviews is not an assertion but rather an observable occurrence. Id. The Court agrees with plaintiffs that testimony about “Joyful Noise” playing in the background during radio and television interviews is not hearsay as it is based on the witnesses's personal observations and does not concern a statement offered in evidence to prove the truth of the matter asserted. See Federal Rule of Evidence 801.

         Accordingly, the Court DENIES defendants' Motions in limine Nos. 4, 5, and 6, without prejudice to their raising objections as to the foundation of Marcus Gray's or Crystal Gray's testimony on plaintiffs' concert performances.

         D. Defendants' Motion in limine Nos. 3, 9 (Dkts. 339, 345 filed on June 12, 2019)

         i. Testimony about Sales

         Defendants represent that plaintiffs have failed to adduce any evidence of sales of “Joyful Noise” or the album it appeared on, Our World Redeemed, and seek an order precluding plaintiffs from offering testimony about such sales in lieu of records evidencing those sales. Dkt. 339 at 5. Specifically, defendants seek to exclude testimony from Marcus Gray about any purported sales because such testimony would not be based on personal knowledge and would lack foundation. Id. Defendants also seek to exclude any testimony about the fact that plaintiffs' former record label refused to provide plaintiffs with records of any sales. Id. According to defendants, plaintiffs could have subpoenaed these records from Gray's record label yet declined to do so, thus this testimony would be confusing to the jury and would result in the jury speculating about what those “hypothetical records might say.” Id. at 6.

         Plaintiffs respond that, although they do not have evidence of the exact number of sales, they intend to introduce circumstantial evidence of sales through the testimony of Marcus Gray's wife, Crystal Gray. Dkt. 375 at 5. In light of plaintiffs' representation that Marcus Gray will not offer testimony about sales, the Court DENIES as moot defendants' motion to exclude this testimony.

         Plaintiffs also argue that they only intend to use the record label's refusal to provide sales records as rebuttal evidence in the event plaintiffs argue that defendants have no evidence regarding sales. Id. According to plaintiffs, “[d]efendants cannot highlight [p]laintiffs' inability to come forward with specific sales numbers, while at the same time seek to preclude [p]laintiffs from explaining to the jury why they were unable to do so.” Id. at 6. The Court finds that testimony about the record label's refusal to provide sales records would be appropriate to rebut an assertion that plaintiffs lack any evidence of sales. To the extent defendants wish to establish that plaintiffs could have obtained this information through a subpoena, they may elicit that testimony through cross-examination. In light of plaintiffs' representation that they only intend to offer testimony about the record label's refusal to provide sales records as rebuttal evidence, the Court DENIES defendants' motion to exclude this testimony.

         ii. Billboard Charts as Evidence of Sales

         Defendants also seek to preclude plaintiffs from using Billboard charts as evidence of sales because the charts do not “reveal the amount of units” of sales of a song or album. Dkt. 345 at 6. Defendants represent that Billboard rankings are based on various different metrics, not sales alone, and therefore, the charts are not evidence of sales. Id. Plaintiffs respond that, although the Billboard charts “do not establish definitively how many albums or singles were sold, ” the charts on which “Joyful Noise” and Our World Redeemed appeared ranked songs and albums based on physical and digital album sales as well as digital downloads. Dkt. 375 at 23. In lieu of providing evidence about the actual number of sales, plaintiffs contend that they should be allowed to introduce the Billboard charts as circumstantial evidence that “Joyful Noise” and Our World Redeemed experienced commercial success. Id. at 24.

         The Court has reviewed the cases in which commercial success was analyzed in determining whether the plaintiff had established widespread dissemination of a work. In each of those cases, the approximate number of sales of the work was analyzed to determine its reach. See Art Attacks Inc. v. LLC v. MGA Entertainment Inc., 581 F.3d 1138, 1144 (9th Cir. 2009) (2000 sales per year insufficient to establish widespread dissemination); Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1178 (9th Cir. 2003) (19, 000 sales over 13 years insufficient to establish widespread dissemination); Jason v. Fonda, 526 F.Supp. 774, 776 (C.D. Cal. 1981) (sales of 2, 000 copies nationwide did not create more than a bare possibility of access). Here, the Billboard charts do not reveal the number of sales of either “Joyful Noise” or Our World Redeemed, and it appears that Billboard has refused to reveal either its methodology or the data underlying its rankings. It is thus unknown whether plaintiffs sold one hundred copies or one million copies of “Joyful Noise.” The Billboard charts are therefore not probative of whether “Joyful Noise” was commercially successful, or, more precisely, whether it was widely disseminated through sales.

         Accordingly, the Billboard charts may not be introduced for the purpose of establishing that “Joyful Noise or Our World Redeemed experienced commercial success or a high number of sales.

         iii. Relevance

         Defendants also contend that the Billboard charts should be excluded because they are not relevant to access. The Court finds that the Billboard charts are relevant to access for the same reasons set forth in the Court's order on Motions in Limine Nos. 4, 5, and 6. Specifically, the Court finds that the appearance of “Joyful Noise” and Our World Redeemed on Billboard charts is relevant to the issue of access because Billboard is a popular music publication-as such, defendants may have learned about “Joyful Noise” by seeing it on a Billboard chart. The Billboard charts also indicate that those works were relatively popular within the Christian music market-which may be relevant depending on the extent to which defendants participated in that market.

         iv. Hearsay

         Defendants also seek to exclude any tables prepared by Billboard which summarize the instances when “Joyful Noise” and Our World Redeemed appeared on a Billboard chart prior to the creation of “Dark Horse.” Dkt. 345 at 7. Defendants contend that these summary tables contain hearsay in that they are being offered to prove the truth that “Joyful Noise” and Our World Redeemed appeared on the Billboard chart in the position and on the date stated. Id. Plaintiffs respond that the summary tables were created and produced by Billboard in response to a subpoena and were authenticated during a deposition with a representative from Billboard. Dkt. 375 at 24. The Billboard representative testified that he researched the title “Joyful Noise” and Our World Redeemed in the Billboard internal database and pulled the charts on which the song and album appeared on a week-by-week basis. Dkt. 375-4 at 16. When asked why Billboard did not just produce the charts themselves, the representative testified that “it's easier to digest a week by week summary than to just find it on a chart if we just provided images, and not every week of those charts had a printed chart that accompanied it.” Id. at 18. Plaintiffs do not dispute that the summary charts constitute hearsay but assert that the business records exception should apply because the data and information underlying the summary tables were kept by Billboard in the ordinary course of business. Defendants respond that the summary tables are not business records because they were prepared for purposes of litigation. Dkt. 345 at 8.

         Federal Rule of Evidence 803(6) provides that “records of a regularly conducted activity” are exceptions to the rule against hearsay if, among other requirements, “the record was kept in the course of a regularly conducted activity of a business . . .” The summary charts do not fall within this exception because, although the summary charts appear to be based on business records, the summary charts themselves were prepared for the purposes of litigation and were not kept in the course of a regularly conducted activity. And although Federal Rule of Evidence 1006 provides that a “proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court, ” the proponent must nonetheless “make the originals or duplicates available for examination or copying . . . by other parties at a reasonable time and place.” See also Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1259 (9th Cir. 1984). At the hearing, it became apparent that at least some of the data and records underlying Billboard's summary charts were never made available to the parties for inspection and that plaintiffs will not be able to obtain those records before trial. Accordingly, the Court will exclude the summary charts unless plaintiffs obtain all the underlying business records from Billboard prior to trial.

         At the hearing, however, plaintiffs indicated that they may be able to provide evidence of some of the weekly Billboard charts through screenshots of the Billboard website. The Court reserves ruling on the admissibility of those weekly Billboard charts until plaintiffs have had an opportunity to lay a foundation for that evidence.

         Accordingly, the Court GRANTS in part and DENIES in part defendants' Motions in limine Nos. 3 and 9. Plaintiffs may offer testimony about the record label's refusal to provide sales records as rebuttal evidence. Plaintiffs may not introduce the Billboard charts for the purpose of establishing that “Joyful Noise or Our World Redeemed experienced commercial success or a high number of sales, but they may offer the Billboard charts for the purpose of showing that “Joyful Noise” and Our World Redeemed appeared on those charts and to show that those works were relatively popular in the Christian music market. The Court will exclude the summary charts created by Billboard for purposes of this litigation unless plaintiffs obtain all the underlying business records from Billboard. The Court reserves ruling on the admissibility of any weekly Billboard charts until plaintiffs have had an opportunity to lay a foundation for that evidence.

         E. Defendants' Motion in limine No. 7 (Dkt. 343, filed on June 12, 2019)

         Defendants seek to preclude plaintiffs from introducing screenshots of archived versions of Lecrae Moore's and Marcus Gray's Myspace pages captured by the Internet Archive. Dkt. 343 at 4. It appears that plaintiffs plan to introduce these screenshots to show the play counts of “Joyful Noise” on Moore's and Gray's Myspace pages. Defendants argue that the screenshots are unreliable, lack foundation, contain hearsay, and that ...


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