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Michael J. Niborski (State Bar No. 192111)
mniborski@pryorcashman.com
Darius K.C. Zolnor (State Bar No. 248686)
dzolnor@pryorcashman.com
PRYOR CASHMAN LLP
1801 Century Park East, 24th Floor
Los Angeles, California 90067-2302
Tel: (310) 556-9608 / Fax: (310) 556-9670

Ilene S. Farkas (admitted pro hac vice)
ifarkas@pryorcashman.com
PRYOR CASHMAN LLP
7 Times Square
New York, New York 10036-6569
Tel: (212) 326-0108 / Fax: (212) 798-6306

Attorneys for Defendants
KANYE WEST, UMG RECORDINGS, INC., ROC-A-FELLA RECORDS, LLC,
THE ISLAND DEF JAM MUSIC GROUP; CAROLINE DISTRIBUTION,
ELECTRONIC ARTS, INC.,WARNER BROS. ENTERTAINMENT INC., STONES
THROW RECORDS, and NBCUNIVERSAL MEDIA, LLC


UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

Case No. CV 13-02449 BRO (JCx)

NOTICE OF MOTION AND
MOTION FOR JUDGMENT ON
THE PLEADINGS AS TO
PLAINTIFFS’ FOURTH AMENDED
COMPLAINT; MEMORANDUM OF
POINTS AND AUTHORITIES

Hearing:
Date: July 14, 2014
Time: 1:30 p.m.
Courtroom: 14

(Notice of Lodging, Request for Judicial
Notice and Declaration of Ilene S.
Farkas filed concurrently)

Fourth Amended Complaint filed
February 21, 2014

TRENA STEWARD, et al.,

Plaintiffs,
v.

KANYE WEST, et al.,

Defendants.
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Case 2:13-cv-02449-BRO-JC Document 125 Filed 06/16/14 Page 1 of 36 Page ID #:1476


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TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF
RECORD:
PLEASE TAKE NOTICE that, on July 14, 2014, at 1:30 p.m., or as soon
thereafter as this matter may be heard before the Honorable Beverly Reid O’Connell of
the above-entitled Court, located at 312 N. Spring Street, Los Angeles, California
90012, Courtroom 14, Defendants Kanye West, UMG Recordings, Inc., Roc-A-Fella
Records, LLC, The Island Def Jam Music Group, Caroline Distribution, Electronic
Arts, Inc., Warner Bros. Entertainment Inc., Stones Throw Records and NBCUniversal
Media, LLC (collectively, “Defendants”), will and hereby do move this Court for
Judgment in their favor on the pleadings in this action on the following grounds:
(a) Plaintiffs fail to state a claim for copyright infringement as a matter of law
because (i) the recording snippets at issue lack sufficient originality to be protectable,
and (ii) even assuming, arguendo, that the snippets are protectable, Defendants’
alleged uses were de minimis;
(b) Plaintiffs’ claim for secondary copyright infringement fails because they
cannot allege secondary liability without direct infringement;
(c) Plaintiffs’ claims for declaratory relief of co-authorship fail because
Plaintiffs fail to allege any of the requisite elements for the claims, and in any event the
claims are barred by the statute of limitations; and
(d) Plaintiffs’ demands for statutory damages and attorneys’ fees are barred as
a matter of law.
This Motion will be based on this Notice of Motion and Motion, the
Memorandum of Points and Authorities, the concurrently-filed Request for Judicial
Notice, Declaration of Ilene S. Farkas and Notice of Lodging, the pleadings and papers
on file herein, all other matters of which the Court may take judicial notice and upon
such other or further material as may be presented at or before the hearing on this
matter.
Case 2:13-cv-02449-BRO-JC Document 125 Filed 06/16/14 Page 2 of 36 Page ID #:1477

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This Motion is made following the conference of counsel pursuant to L.R. 7-3,
which took place on May 20, 2014.

PRYOR CASHMAN LLP


Dated: June 16, 2014 By: /s/ Michael J. Niborski
Michael J. Niborski
mniborski@pryorcashman.com

Attorneys for Defendants
KANYE WEST, UMG RECORDINGS,
INC., ROC-A-FELLA RECORDS, LLC,
THE ISLAND DEF JAM MUSIC GROUP,
CAROLINE DISTRIBUTION,
ELECTRONIC ARTS, INC., WARNER
BROS. ENTERTAINMENT INC., STONES
THROW RECORDS, and
NBCUNIVERSAL MEDIA, LLC

Case 2:13-cv-02449-BRO-JC Document 125 Filed 06/16/14 Page 3 of 36 Page ID #:1478


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TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... iii
I. PRELIMINARY STATEMENT ............................................................................ 1
II. FACTUAL BACKGROUND ............................................................................... 4
A. Plaintiffs’ Song And The Gold Future And Private Stock Recordings ....... 4
B. Plaintiffs’ Claims Against The Defendants’ Recordings ............................. 5
III. ARGUMENT ....................................................................................................... 8
A. Legal Standard ............................................................................................. 8
1. A Motion For Judgment on the Pleadings Is Subject to
the Same Standard as a Rule 12(b)(6) Motion to Dismiss ................. 8
2. This Court Can Determine Non-Infringement
on This Motion for Judgment on the Pleadings ................................. 8
B. Plaintiffs Fail To State A Claim For
Infringement As A Matter of Law ............................................................. 10
1. The Snippets at Issue Lack
Sufficient Originality to be Protectable ............................................ 10
a. This Court Has Already Held that the
Short Phrases at Issue Are Unprotectable ................................... 10
b. The Recording of Pryor’s Recitation of
Unprotectable Lyrics Is Similarly Unprotectable ........................ 11
2. Even Assuming, Arguendo, that the Snippets of Plaintiffs’
Recordings Were Sufficiently Original to be Protectable,
Defendants’ Alleged Uses are De Minimis ....................................... 12
a. A De Minimis Sample Is One that Is Insubstantial
as Compared to Plaintiff’s Work as a Whole .............................. 13
b. The Alleged Samples of a Few
Spoken Words, Lasting Less Than
One Second Each Are De Minimis .............................................. 14
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C. Plaintiffs’ Claims For Secondary Copyright Infringement And
For Declarations Of Co-Authorship Should Also Be Dismissed .............. 16
1. Plaintiffs Cannot Allege Secondary Liability For
Copyright Infringement Without Direct Infringement........................ 16
2. No Claim For Joint Authorship Can Be
Alleged ................................................................................................ 17
D. Plaintiffs’ Claims For Declaratory Relief Based On Co-Authorship
Are Barred By The Statute Of Limitations And Must Be Dismissed ....... 18
1. Non-Payment of Royalties Is Plain and Express Repudiation ............ 18
2. Liner Notes and Credits Excluding an Alleged
Co-Author Are Plain and Express Repudiation .................................. 19
E. Statutory Damages And Attorneys’ Fees
Are Unavailable Here ................................................................................ 20
1. Statutory Damages and Attorneys’ Fees Are Not Recoverable for
Infringement of the Gold Future Recording ....................................... 21
2. Plaintiffs Cannot Recover Statutory Damages or Attorneys’ Fees for
Infringement of the Private Stock Recording ..................................... 22
IV. CONCLUSION ............................................................................................... 25

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TABLE OF AUTHORITIES
CASES PAGE(s)
A&M Records v. Napster, Inc.,
239 F.3d 1004 (9th Cir. 2001) ....................................................................... 16
Aalmuhammed v. Lee,
202 F.3d 1227 (9th Cir. 2000) ........................................................... 17, 18, 19
Advanz Behavioral Management Resource v. Miraflor,
21 F. Supp. 2d 1179 (C.D. Cal. 1998) ........................................................... 11
Aguirre v. Genesis Logistics,
2012 U.S. Dist. LEXIS 186132 (C.D. Cal. Nov. 5, 2012) .............................. 8
Alberto-Culver Co. v. Andrea Dumon, Inc.,
466 F.2d 705 (7th Cir. 1972) ......................................................................... 11
American Title Insurance Co. v. Lacelaw Corp.,
861 F.2d 224 (9th Cir. 1988) ......................................................................... 14
Arthur Rutenberg Homes v. Drew Homes, Inc.,
29 F.3d 1529 (11th Cir. Fla. 1994) .......................................................... 22, 23
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .................................................................................. 8, 14
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) ...................................................................................... 14
Bridgeport Music, Inc. v. Dimension Films,
410 F.3d 792 (6th Cir. 2005) ......................................................................... 13
Cano v. World of Difference Institute,
1996 U.S. Dist. LEXIS 8161 (N.D. Cal. 1996) ............................................... 9
Capcom Co. v. MKR Group, Inc.,
2008 U.S. Dist. LEXIS 83836 (N.D. Cal. Oct. 10, 2008) ............................... 9
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CASES PAGE(s)
Carell v. Shubert Organization,
104 F. Supp. 2d 236 (S.D.N.Y. 2000) ........................................................... 19
Christianson v. West Publishing Co.,
149 F.2d 202 (9th Cir. 1945) ........................................................................... 9
Cory Van Rijn, Inc. v. California Raisin Advisory Board,
697 F. Supp. 1136 (E.D. Cal. 1987) ................................................................ 9
Derek Andrew, Inc. v. Poof Apparel Corp.,
528 F.3d 696 (9th Cir. 2008) ................................................................... 20, 21
DuckHole Inc. v. NBC Universal Media LLLC,
2013 U.S. Dist. LEXIS 157305 (C.D. Cal. Sept. 6, 2013) .......................... 8, 9
EMI Records Ltd. v. Premise Media Corp. L.P.,
2008 N.Y. Misc. LEXIS 8213 (Aug. 8, 2008) .............................................. 13
Edwards v. Raymond,
2014 U.S. Dist. LEXIS 71482 (S.D.N.Y. May 23, 2014) ............................. 10
Erickson v. Blake,
839 F. Supp. 2d 1132 (D. Or. 2012) ................................................................ 9
Feist Publ’ns, Inc. v. Rural Telegraph Service Co.,
499 U.S. 340 (1991) ................................................................................ 10, 12
Fisher v. Dees,
794 F.2d 432 (9th Cir. 1986) ......................................................................... 13
Gadh v. Spiegel,
2014 U.S. Dist. LEXIS 64081 (C.D. Cal. Apr. 2, 2014) ................................. 9
Gottlieb Development LLC v. Paramount Pictures Corp.,
590 F. Supp. 2d 625 (S.D.N.Y. 2008) ........................................................... 10
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CASES PAGE(s)
Identity Arts v. Best Buy Enterprise Service, Inc.,
2007 U.S. Dist. LEXIS 32060 (N.D. Cal. Apr. 18, 2007), aff’d, 320 F.
App’x 772 (9th Cir. 2009) ............................................................................... 9
Jean v. Bug Music, Inc., No.
No. 00 Civ. 4022 (DC), 2002 U.S. Dist. LEXIS 3176 (S.D.N.Y. Feb. 27,
2002) ................................................................................................... 11
Lake v. Columbia Broadcast Services, Inc.,
140 F. Supp. 707 (S.D. Cal. 1956) ................................................................ 10
Legras v. Aetna Life Insurance Co.,
2012 U.S. Dist. LEXIS 116827 (C.D. Cal. July 31, 2012) ............................. 8
Lorenzo Pryor, et al. v. Wyclef Jean, et al.,
Case No. 13-02867 DDP (C.D. Cal. Oct. 28, 2013) ............................... 22, 24
Los Angeles News Serv. v. Reuters TV Intern.,
340 F.3d 926, 931 (9th Cir. 2003))…………………………………….......16
Mandeville-Anthony v. Walt Disney Co.,
2011 U.S. Dist. LEXIS 156171 (C.D. Cal. July 28, 2011),
aff’d, 474 F. App’x 651 (9th Cir. 2012) .......................................................... 9
Mason v. Allstate Insurance Co.,
2014 U.S. Dist. LEXIS 7802 (C.D. Cal. Jan. 6, 2014) ................................... 8
McGlinchy v. Shell Chemical Co.,
845 F.2d 802 (9th Cir. 1988) ........................................................................... 8
Narell v. Freeman,
872 F.2d 907 (9th Cir. 1989) ..................................................................... 7, 11
Nelson v. PRN Products, Inc.,
873 F.2d 1141 (8th Cir. 1989) ....................................................................... 10
New Name, Inc. v. Walt Disney Co.,
2008 U.S. Dist. LEXIS 107203 (C.D. Cal. July 23, 2008) ........................... 20
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CASES PAGE(s)
Newton v. Diamond,
204 F. Supp. 2d 1244 (C.D. Cal. 2002), aff’d, 349 F.3d 591
(9th Cir. Cal. 2003) .............................................................................. 9, 10, 14
Newton v. Diamond,
388 F.3d 1189 (9th Cir. 2004) ................................................................. 12, 13
Peter F. Gaito Architecture, LLC v. Simone Development Corp.,
602 F.3d 57 (2d Cir. 2010) ............................................................................ 10
Peters v. West,
2012 U.S. App. LEXIS 17423 (7th Cir. Aug. 20, 2012) ............................... 11
Planesi v. Peters,
2005 U.S. App. LEXIS 17425 (9th Cir. Aug. 15, 2005) ............................... 11
Premier Tracks, LLC v. Fox Broadcast Co.,
2012 U.S. Dist. LEXIS 189754 (C.D. Cal. Dec. 18, 2012) .......................... 21
Reinsdorf v. Skechers U.S.A.,
922 F. Supp. 2d 866 (C.D. Cal. 2013) ........................................................... 17
Rosen v. Netfronts, Inc.,
2013 U.S. Dist. LEXIS 96532 (C.D. Cal. July 9, 2013) ............................... 21
Salestraq America, LLC v. Zyskowski,
635 F. Supp. 2d 1178 (D. Nev. 2009) ........................................................... 24
Santa-Rosa v. Combo Records,
471 F.3d 224 (1st Cir. 2006) ......................................................................... 18
Saregama India Ltd. v. Mosley,
687 F. Supp. 2d 1325 (S.D. Fla. 2009), aff’d, 635 F.3d 1284 (11th Cir.
2011) .............................................................................................................. 13
Siegel v. Warner Bros. Entm't, Inc.,
542 F. Supp. 2d 1098, 1141 (C.D. Cal. 2008)……………………………..16

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CASES PAGE(s)
Silva v. Sunich,
2006 U.S. Dist. LEXIS 98021 (C.D. Cal. Sept. 6, 2006) .............................. 19
Staggs v. West,
2009 U.S. Dist. LEXIS 72275 (D. Md. Aug. 14, 2009) ............................ 7, 11
Stewart v. Abend,
495 U.S. 207, 110 S. Ct. 1750, 109 L. Ed. 2d 184 (1990) ............................ 25
Tabachnik v. Dorsey,
257 F. App’x 409 (2d Cir. 2007) ................................................................... 10
TufAmerica, Inc. v. Diamond,
968 F. Supp. 2d 588 (S.D.N.Y. 2013) ......................................... 11, 13, 14, 15
VMG Salsoul, LLC v. Ciccone,
2013 U.S. Dist. LEXIS 184127 (C.D. Cal. Nov. 18, 2013) ................... passim
Williams v. Crichton,
84 F.3d 581 (2d Cir. 1996) ............................................................................ 10
Worth v. Selchow & Righter Co.,
827 F.2d 569 (9th Cir. 1987) ......................................................................... 13
Zuill v. Shanahan,
80 F.3d 1366 (9th Cir. 1996) ......................................................................... 18
STATUTES
17 U.S.C. § 101 ........................................................................................................ 24
17 U.S.C. § 114(b) ..................................................................................................... 2
17 U.S.C. § 408 ........................................................................................................ 23
17 U.S.C. § 411 ...................................................................................... 21, 22, 23, 25
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STATUTES PAGE(s)
17 U.S.C. § 412 ................................................................................................. passim
17 U.S.C. §504 (a)(2) .............................................................................................. 20
17 U.S.C. §505 ........................................................................................................ 20
17 U.S.C. § 507 .................................................................................................. 18, 19
Fed. R. Civ. P. 12(c) ......................................................................................... passim

TREATISES
4 Melville B. Nimmer, David Nimmer, Nimmer on Copyright § 13.03[A][2][b]
(Rev. ed.) ....................................................................................................... 13
§ 7.16[B][2][c] ............................................................................................... 23



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MEMORANDUM OF POINTS AND AUTHORITIES
Defendants Kanye West (“West”), UMG Recordings, Inc. (“UMG”), Roc-A-
Fella Records, LLC (“RAF”), The Island Def Jam Music Group (“IDJ”), Caroline
Distribution (“Caroline”), Electronic Arts, Inc. (“EA”), Warner Bros. Entertainment
Inc. (“Warner”), Stones Throw Records (“ST”), and NBCUniversal Media, LLC
(“NBC,” collectively the “Defendants”) respectfully submit this Memorandum of
Points and Authorities in support of their Motion for Judgment on the Pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for failure to state a
claim in the Fourth Amended Complaint (“4AC”) filed by Plaintiffs Trena Steward,
Lorenzo Pryor, and Karla Ray (collectively, “Plaintiffs”) in this action.
I. PRELIMINARY STATEMENT
Plaintiffs claim to be the owners of a musical composition entitled “Bumpin’
Bus Stop” (“Plaintiffs’ Song”). Plaintiffs are heirs of David Pryor, who is alleged to
have composed Plaintiffs’ Song. The 4AC asserts infringement claims against various
defendants, claiming that 18 different musical sound recordings (collectively,
“Defendants’ Recordings”) infringe their purported rights in a 1974 sound recording of
Plaintiffs’ Song, referred to herein as the “Gold Future Recording,” and possibly also
infringe a 1975 sound recording of Plaintiffs’ Song, referred to as the “Private Stock
Recording” (the Gold Future Recording and Private Stock Recording are collectively
referred to herein as “Plaintiffs’ Recordings”). Plaintiffs’ Fourth Amended Complaint
(the “4AC”) – their fifth complaint in this action – does not specify exactly which of
Plaintiffs’ Recordings was infringed by any of the Defendants’ Recordings at issue.
Plaintiffs’ claims should be dismissed regardless of which of the Plaintiffs’
Recordings was allegedly infringed.
1
First, the allegedly infringed material is simply

1
When this action began, Plaintiffs asserted claims against 56 different works,
claiming, inter alia, that these works infringed the musical composition (Plaintiffs’
Song) and/or the Private Stock Recording, as well as asserting a RICO claim based on
a supposed vast “criminal conspiracy.” Now, after five different Complaints, and after
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not protectable. Plaintiffs’ claims are based on the alleged copying of particular, brief
snippets from the spoken introduction of Plaintiffs’ Recordings. Each of the
Defendants’ Recordings is alleged to have copied only one of these snippets, consisting
of a mere 1 to 5 words, e.g., “step,” “get down,” “step up” and “it’s the hottest thing.”
Each of the allegedly infringed snippets lasts for less than a second in Plaintiffs’
Recording(s), and none of them is repeated in either of Plaintiffs’ Recordings.
The allegedly infringed material at issue is simply not protectable. This Court is
well aware of the separate copyrights that exist in musical compositions and in sound
recordings, because it already parsed out and dismissed the compositional infringement
claims based on Plaintiffs’ Song, holding that the precise words and short phrases at
issue on this motion are not protectable as a matter of law. Now, Defendants ask that
this Court take the next logical step: if the words David Pryor speaks on Plaintiffs’
Recordings are not sufficiently original to be protected by copyright, then the sound
recording(s) embodying his recitation – each lasting less than a second – also cannot
possess the minimal degree of creativity necessary to warrant copyright protection.
2

As discussed in detail below, this Court has recently decided a case virtually
indistinguishable from this one: VMG Salsoul, LLC v. Ciccone, 2013 U.S. Dist.

this Court’s decision on Defendants’ prior motion to dismiss, Plaintiffs’ claims are
whittled down to the alleged infringement of one of Plaintiffs’ Recordings. However,
Plaintiffs have taken great pains not to specify whether the Gold Future Recording or
the Private Stock Recording was allegedly infringed, and instead use the generic term
“the Record.” Given that the allegedly infringed portions are unprotectable (or,
alternatively, any use was de minimis), this “glossing over” might be overlooked. If,
however, any claims survive dismissal, Plaintiffs will have to take a position on which
of Plaintiffs’ Recordings was allegedly infringed, particularly given 17 U.S.C.
§ 114(b)’s requirement that, for sound recording claims, the “actual sounds fixed in the
recording” must be copied.
2
Solely for purposes of this motion, the moving Defendants are not disputing whether
either of Plaintiffs’ Recordings was copied in Defendants’ Recordings at issue, as
dismissal is appropriate even if copying is assumed. Should any of Plaintiffs’ claims
survive dismissal, however, Defendants intend to vigorously dispute copying.
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LEXIS 184127 (C.D. Cal. Nov. 18, 2013). In VMG, the plaintiffs alleged copyright
infringement of both the musical composition and sound recording of a single horn
“stab” or “hit.” This Court found that the alleged appropriation consisted of a single
chord (and the recording thereof) lasting only a quarter second. This Court held that
the musical composition was not infringed by the alleged use of this brief
compositional element, and that the plaintiff’s sound recording was also not
infringed, finding specifically – as Defendants ask the Court to do here – that the
allegedly sampled snippet of the recording also was not sufficiently original to warrant
copyright protection and, even if it were, that the alleged sampling was de minimis.
Here, this Court already properly determined that the lyrics at issue are not
original enough to warrant copyright protection. As in VMG, the sound recording of
David Pryor’s saying these unprotectable lyrics is similarly unprotectable and, even if
it were protectable, the alleged sampling is de minimis. Defendants respectfully submit
that the issues presented on this motion are ripe for adjudication and appropriate for
resolution now, as a matter of law, before the parties are forced to spend inordinate
amounts of money on massive (and irrelevant) fact discovery. Indeed, no amount of
discovery is going to change the quantum of the allegedly infringed snippets of
Plaintiffs’ Recordings at issue, or the protectability of those snippets. Accordingly,
Plaintiffs’ claims for infringement based on either of Plaintiffs’ Recordings can, and
should, be dismissed as a matter of law.
Similarly, Plaintiffs’ claims for contributory infringement all depend on
Plaintiffs’ direct infringement claims and should also be dismissed. Plaintiffs’ claims
for a declaration of co-authorship also can and should be dismissed as time barred
under the Copyright Act’s applicable three-year statute of limitations.
Finally, this Court should dismiss Plaintiffs’ statutory damages and attorneys’
fees demands because Plaintiffs cannot satisfy the requirements of 17 U.S.C. § 412,
which precludes such relief where a plaintiff fails to register its work with the
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Copyright Office prior to the commencement of the claimed infringement, unless such
registration occurs within three months of the first publication of the allegedly
infringed work. David Pryor never filed for copyright registration for either of
Plaintiffs’ Recordings, nor did Plaintiffs file for copyright registration in either until
December 2013, when they registered only the Gold Future Recording. Further, to the
extent that any of Plaintiffs’ claims depends on the alleged infringement of the Private
Stock Recording, all of their claims must be dismissed, because, as has already been
held in a related case, Plaintiffs do not own a valid registration for that work.
II. FACTUAL BACKGROUND
A. Plaintiffs’ Song And The Gold Future And Private Stock Recordings
According to the 4AC, Plaintiffs’ father, David Pryor, wrote Plaintiffs’ Song in
or about 1974. Plaintiffs allege that two recordings of Plaintiffs’ Song were created.
Plaintiffs allege that the first recording (the “Gold Future Recording”) was created at
Gold Future Recording Studio in 1974. (4AC at ¶ 10.) Plaintiffs further allege that
“[a]ll creative elements to the Composition [Plaintiffs’ Song] were made at the
instance, direction, control, and expense of David Pryor.” (Id. at ¶ 11.)
In or about 1975, Plaintiffs allege that Pryor “desired to release, manufacture,
distribute and promote the Record on a larger scale.” (Id. at ¶ 14.) He allegedly took
the Gold Future Recording to a different studio, Private Stock Records. Plaintiffs
specifically allege that “[n]o creative elements were added to the Record by Private
Stock; the sound recording is a literal copy of the Record made by Pryor at Gold
Future.” (Id., emphasis added) However, Plaintiffs also allege that Private Stock “used
equipment to enhance the mix and sound quality” and “shortened the playing length”
of the Gold Future Recording to create the new Private Stock Recording. (Id.)
Despite Plaintiffs’ conclusory allegations of Pryor’s authorship and ownership
of Plaintiffs’ Song, the Gold Future Recording and the Private Stock Recording, no
copyright registrations were filed by Pryor as the copyright owner or claimant for any
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of these works. Instead, Plaintiffs’ Song was “registered by Private Stock Record’s
Music Publisher, Caesar’s Music Library, in January 1975” and the Private Stock
Recording was registered by Private Stock with Private Stock as copyright “claimant.”
(Id. at ¶ 15; Ex. B to Declaration of Ilene S. Farkas In Support of Defendants’ Motion
For Judgment on the Pleadings As To Plaintiffs’ Fourth Amended Complaint (“Farkas
Dec.”)) There is no mention in this registration of Pryor’s ownership or authorship of
the Private Stock Recording, and there is no mention of the Gold Future Recording,
which was not registered at that time (indeed, it was not registered until December
2013). While Plaintiffs allege that “Private Stock’s application inadvertently omits
that it was based on Pryor’s pre-existing material,” Plaintiffs have never sought to
correct or supplement the Private Stock registration in any way. (Id. at ¶ 15; Private
Stock registration, Ex. B to Farkas Dec.) Plaintiffs’ pleadings appear to concede that
Private Stock is the owner of the Private Stock Recording. (Id. at ¶¶ 15-17.)
Neither Pryor nor anyone else registered the Gold Future Recording with the
Copyright Office for almost 4 decades after its alleged creation.
3
In fact, neither
Plaintiffs’ Original or First Amended Complaint mentioned this original recording at
all, and all claims of infringement were based on the Private Stock Recording. The
Gold Future Recording was not even mentioned in this case until September 2013 and
was not registered with the Copyright Office until December 23, 2013, shortly before
Plaintiffs filed the 4AC. (Id. at ¶ 22; Gold Future Registration Ex. A to Farkas Dec.)
B. Plaintiffs’ Claims Against The Defendants’ Recordings
Plaintiffs’ current claims derive solely from short words and phrases found only
in the introduction to Plaintiffs’ Recordings. According to Plaintiffs, David Pryor
“says” the following introduction: “Hey Gang, let me show you something! It’s the
hottest thing and it’s on its way to the top! Step up front…you dig! Get down with the
Bus Stop!” (Id. at ¶ 12.) Plaintiffs allege that the Gold Future Recording “was

3
David Pryor died in May 2006 in a skilled nursing facility. (4AC at ¶ 18.)
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approximately 3:4842 minutes in length on the A-Side (Part 1) and approximately
3:1582 on the B-Side (Part 2),” for a total of 7:0424 minutes.
4

The entire introduction lasts approximately 12 seconds in Plaintiffs’ Recordings
and is not repeated in either of them. But Plaintiffs’ claims are not based on the entire
introduction. Rather, each of the claims at issue on this motion is based on some
alleged use of some small portion of this introduction. No musical elements are
alleged to be copied.
5

This motion addresses 12 of the 18 Defendants’ Recordings at issue. (See Ex. C
to Farkas Dec.)
6
Each of the Defendants’ Recordings subject to this motion and the
word or words allegedly copied from the Plaintiffs’ Recordings are set forth below.
Defendants’ Recording Alleged Words Copied
Gold Digger “Get down” (4AC at ¶¶ 29, 70)
Step In the Arena “Step up” (Id. at ¶¶ 123, 130)
Official “It’s the” (Id. at ¶ 161)
Dance on the Glass “It’s the hottest thing” (Id. at ¶ 168)
The Payback Gotta “Step up” (Id. at ¶ 175)
Cold Cutz “Step up” (Id. at ¶ 182)
Sunny Hours “Step up” (Id. at ¶ 205)
All Caps Drumbeat and “step” (Id. at ¶¶ 233-34, 239)
Ventilation “Step up front” (Id. at ¶ 257)

4
Plaintiffs only allege that this introduction appears on the A-Side of the Gold Future
Recording (4AC at ¶ 12), although it appears that the introduction appears in the
Private Stock Recording as well. (Ex. C to Farkas Dec. at Track 2.)
5
Plaintiffs do allege that one song, “All Caps,” uses a “drum beat musical phrase”
from one of Plaintiffs’ Recordings. (4AC at ¶ 232-33, Twenty-Sixth Claim for relief.)
As discussed below, this claim should also be dismissed.
6
Of the claims pertaining to the remaining 6 songs at issue, 4 are addressed to
defendants other than the moving Defendants.
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Defendants’ Recording Alleged Words Copied
Step Up Breaks – Super Duck Breaks “Step up” (Id. at ¶ 273)
I Get Around (Contributory
infringement only)
“Step up” (Id. at ¶ 88)
Get Down (Contributory
infringement only)
“Get,” “Get down” and “Get down with the”
(Id. at ¶ 146)
Each one of these alleged infringements lasts less than a second in both of
Plaintiffs’ Recordings.
This Court has already decided that the very words and short phrases from
Plaintiffs’ Song are unprotectable. Plaintiffs’ original and First Amended Complaint
contained infringement claims against 56 different allegedly infringing works,
claiming infringement of both the underlying composition (Plaintiffs’ Song), and of the
Private Stock Recording (the Gold Future Recording was not mentioned until
Plaintiffs’ Second Amended Complaint). In June 2013, Defendants moved to dismiss,
inter alia, any claim based on infringement of Plaintiffs’ Song. Defendants argued that
the words and short phrases at issue were simply unprotectable as a matter of law.
In granting Defendants’ motion to dismiss in its entirety, this Court agreed,
recognizing the “short phrases doctrine”:
Here, the Court finds that there is no originality in such
words and short phrases as “Get Down,” “Step Up,” “It’s the
Hottest Thing,” or “Step Up Front.” See Narell v. Freeman,
872 F.2d 907, 911 (9th Cir. 1989) (holding phrases
“conveying an idea typically expressed in a limited number
of stereotyped fashions not subject to copyright protection”);
Staggs v. West, 2009 U.S. Dist. LEXIS 72275, *7–8 (D. Md.
Aug. 14, 2009) (finding no copyright protection for “hold
your head up high”). Accordingly, Plaintiff may not assert
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copyright infringement based solely on the use of these
lyrical phrases. [Dkt. 48]
By this Motion, the moving Defendants are simply asking this Court to take the
next logical step and hold that Plaintiffs’ Recordings of these words and short phrases
are also unprotectable.
III. ARGUMENT
A. Legal Standard
1. A Motion for Judgment on the Pleadings Is Subject to the Same
Standard as a Rule 12(b)(6) Motion to Dismiss
“After the pleadings are closed – but early enough not to delay trial – a party
may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). A Rule 12(c) motion
asserting a failure to state a claim is governed by the same standard as a Rule 12(b)(6)
motion to dismiss. Aguirre v. Genesis Logistics, 2012 U.S. Dist. LEXIS 186132, at
*3-4 (C.D. Cal. Nov. 5, 2012) (granting Rule 12(c) motion) (citing McGlinchy v. Shell
Chemical Co., 845 F.2d 802, 810 (9th Cir. 1988)). “A Rule 12(c) motion may thus be
predicated on either: (1) the lack of a cognizable legal theory; or (2) insufficient facts
to support a cognizable legal claim.” Legras v. Aetna Life Ins. Co., 2012 U.S. Dist.
LEXIS 116827, at *2 (C.D. Cal. July 31, 2012) (granting Rule 12(c) motion). “[T]he
Court must accept all well-pleaded factual allegations as true, but ‘thread-bare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.’” Mason v. Allstate Ins. Co., 2014 U.S. Dist. LEXIS 7802, at *5 (C.D. Cal.
Jan. 6, 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
2. This Court Can Determine Non-Infringement on This Motion
for Judgment on the Pleadings
“The Ninth Circuit has long held that non-infringement can be determined on a
motion to dismiss.” DuckHole Inc. v. NBC Universal Media LLLC, 2013 U.S. Dist.
LEXIS 157305, at *13 (C.D. Cal. Sept. 6, 2013) (granting motion to dismiss claim for
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copyright infringement) (emphasis added). Similarly, in this Circuit “[o]riginality is a
question of law.” VMG Salsoul, LLC v. Ciccone, 2013 U.S. Dist. LEXIS 184127, at
*19 (C.D. Cal. Nov. 18, 2013) (citing Newton v. Diamond, 204 F. Supp. 2d 1244,
1253-54 (C.D. Cal. 2002), aff’d 349 F.3d 591 (9th Cir. Cal. 2003)).
“If ‘the copyrighted work and the alleged infringement are both before the court,
capable of examination and comparison, non-infringement can be determined on a
motion to dismiss.’” DuckHole Inc., 2013 U.S. Dist. LEXIS 157305, at *13 (quoting
Christianson v. West Publ’g Co., 149 F.2d 202, 203 (9th Cir. 1945)); See also Gadh v.
Spiegel, 2014 U.S. Dist. LEXIS 64081 (C.D. Cal. Apr. 2, 2014) (granting motion to
dismiss copyright claims based on a finding of no substantial similarity); Erickson v.
Blake, 839 F. Supp. 2d 1132, 1140 (D. Or. 2012) (same); Mandeville-Anthony v. Walt
Disney Co., 2011 U.S. Dist. LEXIS 156171, at *1 (C.D. Cal. July 28, 2011), aff’d, 474
F. App’x 651 (9th Cir. 2012) (same); Capcom Co. v. MKR Group, Inc., 2008 U.S.
Dist. LEXIS 83836, at *14 (N.D. Cal. Oct. 10, 2008) (“While the Ninth Circuit since
Christianson does not appear to have addressed whether the issue of substantial
similarity is susceptible to determination at the motion to dismiss stage, at least one
other circuit has held that such inquiry is proper, and district courts have increasingly
found the issue of substantial similarity subject to adjudication on a motion to dismiss
in the appropriate case.”); Identity Arts v. Best Buy Enter. Serv., Inc., 2007 U.S. Dist.
LEXIS 32060, at *15 (N.D. Cal. Apr. 18, 2007), aff’d, 320 F. App’x 772 (9th Cir.
2009) (“[T]he court finds that it may properly consider the substantial similarity issue
in conjunction with defendants’ motion for judgment on the pleadings.”); Cano v.
World of Difference Inst., 1996 U.S. Dist. LEXIS 8161 (N.D. Cal. 1996) (granting
judgment on the pleadings based on a finding that plaintiff’s literary work was not
sufficiently original and, in the alternative, finding no substantial similarity); Cory Van
Rijn, Inc. v. California Raisin Advisory Bd., 697 F. Supp. 1136, 1145 (E.D. Cal. 1987)
(granting motion to dismiss copyright infringement claims based on finding of lack of
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substantial similarity); Lake v. Columbia Broad. Servs., Inc., 140 F. Supp. 707, 708
(S.D. Cal. 1956) (same); Nelson v. PRN Prods., Inc., 873 F.2d 1141, 1143-44 (8th Cir.
1989); Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d
Cir. 2010); Tabachnik v. Dorsey, 257 F. App’x 409, 410 (2d Cir. 2007); Gottlieb Dev.
LLC v. Paramount Pictures Corp., 590 F. Supp. 2d 625, 634 (S.D.N.Y. 2008); ;
Williams v. Crichton, 84 F.3d 581, 589 (2d Cir. 1996); Edwards v. Raymond, 2014
U.S. Dist. LEXIS 71482 (S.D.N.Y. May 23, 2014).
Accordingly, this Court can, on this motion for judgment on the pleadings,
determine non-infringement as a matter of law.
B. Plaintiffs Fail To State A Claim For Infringement Of Plaintiffs’
Recordings As A Matter Of Law
1. The Snippets at Issue Lack Sufficient Originality to be
Protectable
“Originality is a question of law.” VMG, 2013 U.S. Dist. LEXIS 184127, at *19
(citing Newton, 204 F. Supp. 2d at 1253-54). A copyright claim requires the “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) (emphasis added). Accordingly, a sound
recording copyright protects only “constituent elements” that possess “some minimal
degree of creativity.” Id. at 361-62. If the allegedly infringed material is not original to
the claimant, then no claim for infringement can lie. Id.
a. This Court Has Already Held that the Short Phrases at
Issue Are Unprotectable
Here, Plaintiffs allege that one of Plaintiffs’ Recordings has been infringed
through the alleged use of the sound recording of David Pryor speaking – not singing –
the words “get down,” “step,” “step up,” “step up front,” “it’s the,” and “it’s the hottest
thing.” This Court has already determined that “there is no originality” in these very
words and short phrases. Accordingly, “Plaintiff[s] may not assert copyright
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infringement based solely on the use of these lyrical phrases.” Order on Motion to
Dismiss Filed Sept. 6, 2013 at 6 (Docket 48); see also, Planesi v. Peters, 2005 U.S.
App. LEXIS 17425, at *2 (9th Cir. Aug. 15, 2005); Narell v. Freeman, 872 F.2d 907,
911 (9th Cir. 1989); Advanz Behavioral Mgmt. Res. v. Miraflor, 21 F. Supp. 2d 1179,
1190 (C.D. Cal. 1998); Peters v. West, 2012 U.S. App. LEXIS 17423 (7th Cir. Aug.
20, 2012); Alberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705, 710 (7th Cir.
1972); Staggs v. West, 2009 U.S. Dist. LEXIS 72275, at *7-8 (D. Md. Aug. 14, 2009).
b. The Recording of Pryor’s Recitation of Unprotectable
Lyrics Is Similarly Unprotectable
The only issue remaining is whether disjointed sounds from a recording made by
David Pryor when he spoke the unprotectable phrases are somehow protectable. Pryor
did not sing the words or even speak them with a particular rhythm. (And any arguable
rhythm that may possibly have existed in the introduction was destroyed when a word
or two was plucked therefrom.) There are no instrumental or other musical elements
that are alleged to have been copied.
7
Pryor’s negligible contribution in saying
unprotectable phrases cannot possess the “minimal degree of creativity” required to
establish copyright. See, e.g., VMG, 2013 U.S. Dist. LEXIS 184127, at *26-27
(holding that the allegedly sampled sound recording was “not sufficiently unique to be
a copyrighted element of the sound recording”).

7
Plaintiffs do allege that “All Caps” uses a “drum beat musical phrase” from one of
Plaintiffs’ Recordings. (4AC at ¶ 232-33, Twenty-Sixth Claim for relief.) The “drum
beat musical phrase” allegedly used in “All Caps” is not sufficiently original to merit
copyright protection. See, Jean v. Bug Music, Inc., No. 00 Civ 4022(DC), 2002 U.S.
Dist. LEXIS 3176 (S.D.N.Y. Feb. 27, 2002) (holding that an excerpt of a song could
not be protected by plaintiff’s copyright “because the sequence of the three notes and
the lyrics lack the requisite originality”); TufAmerica, Inc. v. Diamond, 968 F. Supp.
2d 588, 606 (S.D.N.Y. 2013) (finding that a “brief snare drum sequence” was non-
copyrightable); VMG, 2013 U.S. Dist. LEXIS 184127 at *29 (holding that a horn hit
was not sufficiently original to merit copyright protection).
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This case is virtually indistinguishable from a case this Court recently decided,
VMG Salsoul v. Ciccone, 2013 U.S. Dist. LEXIS 184127 (C.D. Cal. Nov. 18, 2013).
In that case, the plaintiffs claimed that Madonna’s 1990 hit song, Vogue infringed the
copyrights in both plaintiff’s musical composition and its sound recording by allegedly
sampling a single horn “stab” or “hit” from plaintiffs’ works. The allegedly infringed
sound recording consisted of a single chord, and lasted for only a quarter second of the
plaintiffs’ recording. This Court dismissed the plaintiffs’ claim for infringement of the
composition, finding that the single chord at issue was unprotectable. This Court then
went on to conduct a substantial similarity analysis on the alleged use of plaintiff’s
sound recording of the horn “hit,” and held that any alleged use of plaintiff’s sound
recording also was not actionable as the portion of plaintiff’s recording at issue lacked
sufficient originality to be protectable.
This is precisely what Defendants now ask this Court to find – just as the lyrics
lack sufficient originality to form the basis for an infringement claim, a recording of
these words likewise lacks sufficient originality. Feist Publ’ns, 499 U.S. at 361.
2. Even Assuming, Arguendo, that the Snippets of Plaintiffs’
Recordings Were Sufficiently Original to be Protectable,
Defendants’ Alleged Uses are De Minimis
Courts of this Circuit apply the substantial similarity test, including the de
minimis analysis, to sound recording infringement claims, and this issue can be
determined as a matter of law. VMG, 2013 U.S. Dist. LEXIS 184127, at *30. In the
Ninth Circuit, “no legal consequences will follow from [alleged copying] unless the
copying is substantial.” Newton v. Diamond, 388 F.3d 1189, 1193 (9th Cir. 2004)
(emphasis added). In this Circuit, “the substantiality requirement applies throughout
the law of copyright, including cases of music sampling, even where there is a high
degree of similarity.” Id. at 1195 (emphasis added); see also, VMG, 2013 U.S. Dist.
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LEXIS 184127, at *30.
8
Requiring proof of substantial copying remains an absolute
requirement in this Circuit and others, and flows from the established maxim de
minimis non curat lex – “the law does not concern itself with trifles.” Newton, 388
F.3d at 1193 (“The principle that trivial copying does not constitute actionable
infringement has long been a part of copyright law.”).
a. A De Minimis Sample Is One that Is Insubstantial
as Compared to Plaintiff’s Work as a Whole
“Substantiality is measured by considering the qualitative and quantitative
significance of the copied portion in relation to the plaintiff’s work as a whole.” Id. at
1195 (emphasis added) (citing Worth v. Selchow & Righter Co., 827 F.2d 569, 570 n.
1 (9th Cir. 1987)). A use is insubstantial or de minimis “if it is so meager and
fragmentary that the average audience would not recognize the appropriation.”
Newton, 388 F.3d at 1193 (quoting Fisher v. Dees, 794 F.2d 432, 434 n. 2 (9th Cir.
1986)).
b. The Alleged Samples of a Few Spoken Words, Lasting
Less Than One Second Each Are De Minimis
As for the quantitative significance, the unprotectable short phrases are “meager
and fragmentary” compared to Plaintiffs’ Recordings as a whole. Plaintiffs do not

8
Plaintiffs may invoke Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th
Cir. 2005), in which the Sixth Circuit departed from well-established precedent and
adopted a “new rule” that sound recordings are somehow exempt from the requirement
that a plaintiff prove substantial similarity between the works at issue. Id. at 798, 802.
Bridgeport has been expressly rejected in this Circuit and elsewhere, and indeed in this
Court. VMG, 2013 U.S. Dist. LEXIS 184127, at *30; see also, TufAmerica, Inc. v.
Diamond, 968 F. Supp. 2d 588, 605-606 (S.D.N.Y. 2013); Saregama India Ltd. v.
Mosley, 687 F. Supp. 2d 1325, 1338-41 (S.D. Fla. 2009), aff’d, 635 F.3d 1284 (11th
Cir. 2011); EMI Records Ltd. v. Premise Media Corp. L.P., 2008 N.Y. Misc. LEXIS
8213 (Aug. 8, 2008). Because of Bridgeport’s unprecedented departure from well-
settled copyright principles, it has been soundly criticized by the leading treatise on
copyright, Nimmer on Copyright. 4 Melville B. Nimmer, David Nimmer, Nimmer on
Copyright § 13.03[A][2][b] (Rev. ed.).
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even allege that Defendants used the entire introductory phrase, only that the
recordings of the phrases said by Pryor, “get down,” “step,” “step up,” “step up front,”
“it’s the” and “it’s the hottest thing” were sampled.
9
Each of those alleged uses lasts ½
of a second – not even one thousandth of a percent of Plaintiffs’ Recording(s) as a
whole. Such a small alleged use of a pre-existing sound recording is not quantitatively
significant as a matter of law. See, e.g., VMG, 2013 U.S. Dist. LEXIS 184127, at *27
(a quarter-second sample comprising a total of 16 seconds out of seven minute-long
recording was not quantitatively significant); See also Newton, 204 F. Supp. 2d at
1258 (a six-second sample comprising 2% of plaintiff’s work was not quantitatively
significant); TufAmerica, Inc. v. Diamond, 968 F. Supp. 2d 588, 605-606 (S.D.N.Y.
2013) (a three-second sample and a six-second sample, compared to plaintiff’s
allegedly infringed 5:59 minute-long song, were not quantitatively significant).
As for the qualitative significance, no musical elements are alleged to be copied
from Plaintiffs’ Recordings, and the allegedly infringed elements appear only in the
spoken introduction to Plaintiffs’ Recordings. Attempting to elevate these elements
above the relevant case law, including this Court’s prior decision, Plaintiffs allege –
completely bare of factual support – that Pryor’s speaking voice is his “signature
voice.” (4AC at ¶¶ 9, 12.) Bare and conclusory allegations are insufficient to
withstand a motion to dismiss. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662 (2009); See
also Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). But even accepting that
David Pryor’s speaking voice is “signature,” disjointed snippets from a sound
recording of him saying unprotectable short phrases is still qualitatively insignificant to
Plaintiffs’ Recordings as a whole.

9
Similarly, Plaintiffs cannot claim that David Pryor sang the alleged infringed
unprotectable short phrases. Plaintiffs’ 4AC is clear that David Pryor “says” – not
sings – the introductory phrase on the A-Side of Plaintiffs’ Recordings. (4AC at ¶ 12.)
This factual assertion made in Plaintiffs’ operative Complaint is a binding admission.
See, e.g., American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988).
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This Court can listen to Plaintiffs’ Recordings and observe that no reasonable
audience would find the allegedly sampled short phrases are qualitatively significant,
nor would they recognize the appropriation. VMG, 2013 U.S. Dist. LEXIS 184127, at
*27 (“Having listened to [the sound recordings], the Court finds that no reasonable
audience would find the sampled portions qualitatively or quantitatively significant in
relation to the infringing work, nor would they recognize the appropriation.”).
Another recent Federal Court decision from the United States District Court for
the Southern District of New York, TufAmerica, Inc. v. Diamond, 968 F. Supp. 2d
588, is similarly instructive, and compels dismissal of Plaintiffs’ remaining claims
here. On the TufAmerica, Inc. defendants’ Rule 12(b)(6) motion to dismiss, the
district court considered plaintiff’s multiple claims of copyright infringement, based on
the alleged sampling of plaintiff’s musical compositions and sound recordings by the
Beastie Boys in various sound recordings released in the late 1980s. The court ruled
that the alleged sample of the shouted words “say what” in one sound recording might
not be de minimis as matter of law because, although a common phrase, the words
were also the plaintiff’s song’s title and occurred nine times in plaintiff’s recording.
Id. at 603. In contrast, the court held that another alleged three-second sample of the
shouted words “Now I want y’all to break this down” was de minimis as a matter of
law because the phrase was not in the plaintiffs’ other song’s title and appeared only
once in the 6:20 minute-long recording. Accordingly, that sampling claim was
dismissed at the pleading stage. Id. at 607.
Here, the unprotectable short phrases allegedly used in Defendants’ Recordings
do not appear in the title of Plaintiffs’ Song, nor are they repeated in Plaintiffs’ Song
after the introduction. Indeed, the unprotectable short phrases are not even sung, they
are spoken. Further, here, the alleged samples are all even less than the alleged
sampling of eight words that the court in TufAmerica found to be de minimis. As a
result, this is an even stronger case for dismissal than that presented in TufAmerica.
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The alleged samples of the short, unprotectable phrases are neither quantitatively
nor qualitatively significant and, therefore, de minimis. Accordingly, Plaintiffs’ first,
fourth through sixth, eighth, twelfth, thirteenth, fifteenth, seventeenth through
twentieth, twenty-third, twenty-fourth, twenty-sixth, twenty-seventh, twenty-ninth, and
thirty-first claims for relief must be dismissed.
10

C. Plaintiffs’ Claims For Secondary Copyright Infringement And For
Declarations Of Co-Authorship Should Also Be Dismissed
Because Plaintiffs have failed to state claims for direct copyright infringement,
their claims for secondary copyright infringement and declaratory relief of co-
authorship must also fail.
1. Plaintiffs Cannot Allege Secondary Liability for Copyright
Infringement Without Direct Infringement
“Secondary liability for copyright infringement does not exist in the absence of
direct infringement by a third party.” A&M Records v. Napster, Inc., 239 F.3d 1004,
1013 n.2 (9th Cir. 2001). As demonstrated herein, Plaintiffs’ claims for direct
copyright infringement fail as a matter of law. Accordingly, Plaintiffs’ fourth, sixth,
eighth, fifteenth, and twenty-fourth claims sounding in contributory infringement also
should be dismissed because Plaintiffs cannot establish a claim for direct infringement.

10
Plaintiffs’ thirty-first claim for relief is also dismissible because Plaintiffs allege that
Step Up Breaks – Super Duck Breaks was released only in Japan. (4AC at ¶ 272.) In
the Ninth Circuit there is a “longstanding rule ‘that the copyright laws [of this country]
have no application beyond the U.S. border.’” Siegel v. Warner Bros. Entm't, Inc., 542
F. Supp. 2d 1098, 1141 (C.D. Cal. 2008) (quoting Los Angeles News Serv. v. Reuters
TV Intern., 340 F.3d 926, 931 (9th Cir. 2003)).
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2. No Claim For Joint Authorship Can Be Alleged
11

Plaintiffs allege facts which defeat the requisite elements for a joint authorship
claim for any of the songs at issue on this motion. “The criteria for joint authorship
include whether 1) an alleged author exercises control over a work, serves as ‘the
inventive or master mind’ or creates or gives effect to an idea; 2) there exists an
‘objective manifestation of a shared intent to be coauthors’; and 3) ‘the audience
appeal turns on both contributions and the share of each in its success cannot be
appraised.’” Reinsdorf v. Skechers U.S.A., 922 F. Supp. 2d 866, 872 (C.D. Cal. 2013)
(quoting Aalmuhammed v. Lee, 202 F.3d 1227, 1233-35 (9th Cir. 2000)).
Not one of these elements has been alleged here. Plaintiffs have not alleged –
and cannot allege – that David Pryor was present, much less exercised any control over
Defendants’ Recordings (that is, if either of Plaintiffs Recordings was even sampled,
which Defendants do not concede) when they were created. In fact, one of
Defendants’ Recordings was released during the period Plaintiffs allege David Pryor
was incapacitated (i.e., from 2004-2006), and another was released after his death.
Plaintiffs have not alleged that any creator of the Defendants’ Recordings expressed
any intent to be co-authors with David Pryor and Plaintiffs concede that there was no
consent by Pryor to use any portion of Plaintiffs’ Recordings. Finally, the audience
appeal inherent in the works for which Plaintiffs’ assert joint authorship does not
“turn” on Pryor’s alleged contribution – which is either unoriginal or de minimis as a
matter of law – and Plaintiffs cannot allege in good faith that it does.

11
Plaintiffs allege five claims sounding in declaration of joint authorship and equitable
accounting: their second, against RAF (“Gold Digger,” 4AC at ¶¶ 41-48) and their
ninth (“I Get Around,” Id. at ¶¶ 97-103), fourteenth (“Step In the Arena,” Id. at ¶¶ 135-
42), twenty-first (“Dance on the Glass,” Id. at ¶¶ 188-94), and twenty-second claims
against UMG (“Sunny Hours,” Id. at ¶¶ 195-202).
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Accordingly, Plaintiffs’ claims for declaratory judgments of joint authorship and
for an equitable accounting – their second, ninth, fourteenth, twenty-first and twenty-
second – should be dismissed for failure to state a claim under Rule 12(c).
D. Plaintiffs’ Claims For Declaratory Relief Based On Co-Authorship
Are Barred By The Statute Of Limitations And Must Be Dismissed
In the event that Plaintiffs’ claims for a declaration of joint authorship are not
dismissed for failure to state a claim, they are barred by the three year statute of
limitations provided by the Copyright Act. “A claim of authorship of a joint work must
be brought within three years of when it accrues.” Aalmuhammed, 202 F.3d at 1230-
1231 (citing, inter alia, 17 U.S.C. § 507). Claims of co-authorship “accrue when plain
and express repudiation of co-ownership is communicated to the claimant, and are
barred three years from the time of repudiation.” Zuill v. Shanahan, 80 F.3d 1366,
1369 (9th Cir. 1996).
Plaintiffs claim joint authorship in “Gold Digger” (which Plaintiffs allege was
released in 2005, 4AC at ¶ 43), “I Get Around” (which Plaintiffs allege was released in
1993, Id. at ¶ 99), “Step In the Arena” (which was released in 1991, Ex. D to Farkas
Dec.), “Dance on the Glass” (which Plaintiffs allege was released in 2008, 4AC at ¶
190), and “Sunny Hours” (which Plaintiffs allege was released in 2001, Id. at ¶ 197).
As demonstrated below, Plaintiffs’ claims were repudiated more than three years prior
to the filing of the Complaint.
1. Non-Payment of Royalties Is Plain and Express Repudiation
By Plaintiffs’ own admissions, neither Pryor nor Plaintiffs were ever paid
royalties in connection with those five songs. Multiple federal courts have held that
the failure to pay royalties to an alleged co-author constitutes a plain and express
repudiation of joint authorship. See, e.g., Santa-Rosa v. Combo Records, 471 F.3d
224, 228 (1st Cir. 2006) (“[W]e cannot think of a more plain and express repudiation
of co-ownership than the fact that [defendant] openly, and quite notoriously, sold
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[plaintiff’s] records without providing payment to him[.]”); Carell v. Shubert Org., 104
F. Supp. 2d 236, 249 (S.D.N.Y. 2000) (“[N]on-payment of royalties should have put
[plaintiff] on notice of [repudiation].”).
Plaintiffs clearly acknowledge in each and every claim for a declaration of joint
authorship that the accused Defendant “incorporated Pryor’s voice from the Record
without compensating Plaintiffs or Pryor for its use.” (4AC at ¶¶ 44, 99, 138, 190,
198.) As these songs were released between 5 and 22 years prior to this suit, the
statute of limitations on such claims has long since run. Accordingly, Plaintiffs’
claims for declaratory relief and equitable accounting are all time barred.
2. Liner Notes and Credits Excluding an Alleged Co-Author Are
Plain and Express Repudiation
Plaintiffs’ claims are also barred because they were repudiated by the liner notes
and credits released with and as part of the Defendants’ Recordings for which Plaintiffs
claim joint ownership. Credits that do not include a plaintiff as a joint author are a
“plain and express repudiation” of joint authorship for purposes of 17 U.S.C. § 507.
Aalmuhammed, 202 F.3d at 1231 (holding that movie credits “plainly and expressly
repudiated authorship” but the repudiation was fewer than 3 years before plaintiff filed
suit so claim was not barred); See also Silva v. Sunich, 2006 U.S. Dist. LEXIS 98021,
at *20-21 (C.D. Cal. Sept. 6, 2006) (“The failure to denote authorship within the
credits of a film is a form of express repudiation.”) (citing Aalmuhammed, 202 F.3d at
1231). Similarly, credits released with a sound recording – in the form of liner notes
and labels – that do not credit a plaintiff for his alleged contribution are a plain and
express repudiation of plaintiff’s alleged ownership interest in the sound recording.
When each of the Defendants’ Recordings to which Plaintiffs’ claim joint
authorship was released – all more than three years before Plaintiffs filed this lawsuit –
the liner notes did not credit David Pryor as a joint author of the works, or otherwise
mention his name at all. (See labels, credits, and liner notes, Ex. D to Farkas Dec.)
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The omission of David Pryor’s name in the credits also constitutes a plain and express
repudiation of joint authorship, and every such repudiation took place more than three
years before Plaintiffs filed this lawsuit. Accordingly, Plaintiffs’ co-authorship claims
are barred by the three year statute of limitations provided by the Copyright Act.
E. Statutory Damages And Attorneys’ Fees Are Unavailable Here
The Copyright Act provides copyright infringement plaintiffs an alternative,
elective remedy of “statutory” instead of “actual” damages. 17 U.S.C. §§ 504 (a)(2),
(c). In addition, the Copyright Act allows certain successful copyright infringement
plaintiffs to recover attorneys’ fees. 17 U.S.C. §505. However, these two enhanced
remedies are only available to a copyright owner who has complied with certain
formalities – specifically, timely registration requirements – and are not available to
plaintiffs who failed to register their copyrights with the United States Copyright
Office prior to commencement of the alleged infringement. 17 U.S.C. §412 (“no
award of statutory damages or of attorneys’ fees, as provided by sections 504 and 505,
shall be made for -- * * * (2) any infringement of copyright commenced after first
publication of the work and before the effective date of its registration, unless such
registration is made within three months after the first publication of the work”); see
also New Name, Inc. v. Walt Disney Co., 2008 U.S. Dist. LEXIS 107203, at *4-5
(C.D. Cal. July 23, 2008); Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696,
699 (9th Cir. 2008).
In the Ninth Circuit, it is well settled that an alleged infringement is
“commenced” for purposes of § 412 by “the first act of infringement in a series of
ongoing infringements of the same kind...” Derek Andrew, Inc., 528 F.3d at 701
(emphasis added). In other words, to be eligible for statutory damages and attorneys’
fees, Plaintiffs needed a valid registration in whichever of Plaintiffs’ Recordings was
allegedly infringed – either the Gold Future Recording or the Private Stock Recording
– before the first act of alleged infringement for each allegedly infringing work. See,
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e.g., Premier Tracks, LLC v. Fox Broad. Co., 2012 U.S. Dist. LEXIS 189754, at *25
(C.D. Cal. Dec. 18, 2012) (“[B]ecause Defendants here allegedly began infringing all
musical Works at issue before the copyright applications for those Works were
registered, statutory damages and attorneys’ fees are unavailable.”) (emphasis added);
Rosen v. Netfronts, Inc., 2013 U.S. Dist. LEXIS 96532, at *9 (C.D. Cal. July 9, 2013)
(citing Derek Andrew, 528 F.3d at 699). The 4AC fails to identify which of Plaintiffs’
Recordings has allegedly been infringed; indeed, it seems deliberately vague on this
point. Regardless of which of Plaintiffs’ Recordings allegedly has been infringed,
however, Plaintiffs cannot recover statutory damages or attorneys’ fees because they
have not met the formal requirements of § 412 with regard to either of them.
Moreover, Section 411 of the Copyright Act contains a prerequisite for the filing
and maintenance of an infringement action: a valid copyright registration. 17 U.S.C. §
411 (“no civil action for infringement of the copyright in any United States work shall
be instituted until preregistration or registration of the copyright claim has been
made”). As demonstrated herein, the Private Stock registration cannot satisfy Section
411’s statutory prerequisite for Plaintiffs to bring suit for copyright infringement.
Thus, were Plaintiffs suing only for infringement of the Private Stock Recording, this
entire action could be dismissed forthwith. If Plaintiffs are suing on the Gold Future
Recording, they are precluded from seeking statutory damages and attorneys’ fees.
1. Statutory Damages and Attorneys’ Fees Are Not Recoverable
for Infringement of the Gold Future Recording
12

The Gold Future Recording was first published in 1974, when Pryor and his
band members began to distribute it. (4AC at ¶ 13.) The infringements alleged in the

12
It may well be impossible for Plaintiffs to establish that any of the Defendants ever
had access to the Gold Future Recording, which was produced in a suburb of St. Louis
in 1974 (4AC at ¶ 10) and distributed only “locally” by Pryor and his band members
(Id. at ¶ 13), as a vinyl 45” phonograph record. (Id. at ¶¶ 10, 12, 13.) For purposes of
this section of the Motion, however, the Court may assume Plaintiffs’ claims are based
on the alleged infringement of the Gold Future Recording.
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4AC commenced between 1993 and 2012. (4AC at ¶¶ 27, 50, 59, 69, 87, 99, 105, 112,
121, 129, 145, 153, 160, 167, 174, 181, 190, 197, 204, 215, 225, 232, 238, 247, 256,
264, 272.) The only application for registration ever filed as to the Gold Future
Recording was filed by Plaintiffs in December 2013. (4AC at ¶ 22; Ex. A to Farkas
Dec.) Thus, neither Plaintiffs nor anyone else had a valid copyright registration for the
Gold Future Recording before any of the alleged infringements commenced, or within
three months of the first publication of the Gold Future Recording. Accordingly,
Plaintiffs cannot demand statutory damages or attorneys’ fees for any claim for
infringement based on the Gold Future Recording. 17 U.S.C. § 412.
2. Plaintiffs Cannot Recover Statutory Damages or Attorneys’
Fees for Infringement of the Private Stock Recording
The Private Stock Recording was first published in 1975, and was registered in
1975 by Private Stock as sole claimant of the copyright therein. (4AC at ¶¶ 14-15; Ex.
B to Farkas Dec.) Notably, the Private Stock Registration does not identify Pryor as an
owner or claimant, and does not mention the preexisting Gold Future Recording. (Id.)
There is no allegation that Pryor or anyone else ever filed any application to register
Pryor’s or Plaintiffs’ copyright claim in the Private Stock Recording.
The Private Stock registration identifies Private Stock Records as the
“claimant,” or owner, of the Private Stock Recording. Accordingly, if Plaintiffs’
infringement claims are premised on Pryor’s purported ownership of the Private Stock
Recording, no suit for infringement can lie for failure to satisfy the statutory
prerequisite contained in § 411(a) that a valid registration must exist in Pryor’s name.
Arthur Rutenberg Homes v. Drew Homes, Inc., 29 F.3d 1529, 1532 (11th Cir. 1994).
This very issue was decided in another case brought by Plaintiffs against other
defendants for the alleged infringement of the Private Stock and/or Gold Future
Recording. See Lorenzo Pryor, et al. v. Wyclef Jean, et al., Case No. 13-02867 DDP
(C.D. Cal. October 28, 2013) (the “Sony Action”). In deciding that the Private Stock
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registration could not form the basis of an infringement action if Plaintiffs were
claiming that Pryor owned the Private Stock Recording, Judge Pregerson held:
“[O]nly the copyright owner may apply for registration.”
Arthur Rutenberg Homes v. Drew Homes, Inc., 29 F.3d
1529, 1532 (11th Cir. Fla. 1994) (citing 17 U.S.C. § 408). “If
a registering party is not the owner at the time of
registration, the registration is invalid.”
Sony Action, Order Granting Defendants’ Motion to Dismiss (Docket 30).
Accordingly, to the extent that Plaintiffs are claiming that David Pryor owned
the Private Stock Recording, then the Private Stock registration is – and always has
been – invalid and cannot provide the basis of a claim infringement, much less a claim
for statutory damages and attorneys’ fees under § 412. To the extent that Plaintiffs
claim ownership and infringement of the Private Stock Recording, this Court should
dismiss all infringement claims based thereon pursuant to 17 U.S.C. § 411.
Plaintiffs may attempt to use the Private Stock registration as a bootstrap,
realizing the 2013 Gold Future registration was filed too late to entitle them to seek
statutory damages and attorneys’ fees. Plaintiffs may argue that the Private Stock
Recording is a derivative work of the Gold Future Recording, that Private Stock simply
owned the derivative work (i.e., the work derived from the Gold Future Recording,
which was created by using “equipment to enhance the mix and sound quality of the
original master recordings,” and “shorten[ing]the playing length”) and that, therefore,
the Private Stock registration “covers” the Gold Future Recording for § 411 purposes
under the effective registration doctrine. However, in order to benefit from this
doctrine, the owners of both works must be the same. Nimmer & Nimmer, supra, §
7.16[B][2][c] (“[W]hen the same party owns the derivative or collective work plus the
underlying elements incorporated therein, its registration of the former is ‘sufficient to
permit an infringement action on the underlying parts, whether they be new or
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preexisting.’”); Salestraq Am., LLC v. Zyskowski, 635 F. Supp. 2d 1178, 1181 (D.
Nev. 2009). Here, that is not the case as shown by Plaintiffs’ allegations and the
registrations themselves.
Judge Pregerson rejected this argument in the Sony Action where Plaintiffs
alleged that Private Stock, and not Pryor, owned the Private Stock registration:
“[U]nder the effective registration doctrine, the registration
of a derivative work satisfies the registration requirement for
an infringement action based on preexisting work not
separately registered. However, the registration of a
derivative work suffices for a prior, unregistered work only
when the same party owns both works. Here, it was Private
Stock, not Pryor, who registered an allegedly derivative work
containing elements allegedly owned by Pryor. Even
accepting Plaintiffs’ assertion … that the 1975 Private Stock
record is a derivative work, Private Stock’s 1975 registration
cannot satisfy 17 U.S.C. § 411(a)’s requirement that Pryor or
his successors in interest register the 1974 Gold Future
record prior to suit.” Lorenzo Pryor, et al. v. Wyclef Jean, et
al., Case No. 13-02867 DDP, Order Granting Defendants’
Motion to Dismiss (C.D. Cal. October 28, 2013) (Docket 30)
(citations omitted, emphasis added).
Accordingly, the Private Stock registration is either invalid (if Pryor is claimed
to be the owner of the Private Stock Recordings) or simply registers the Private Stock
Recording as a derivative work. If the Private Stock Recording is a derivative work,
then it is black-letter copyright law that the ownership in a derivative work (and the
registration therefor) only extends to the new, original and copyrightable material
added to the Gold Future Recording, which is the original work. 17 U.S.C. § 101
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(2010) (“The aspects of a derivative work added by the derivative author are that
author’s property, but the element drawn from the pre-existing work remains on grant
from the owner of the pre-existing work.”); see also Stewart v. Abend, 495 U.S. 207,
223, 110 S. Ct. 1750, 109 L. Ed. 2d 184 (1990); VMG, 2013 U.S. Dist. Lexis 184127,
at *FN 5. It does not extend to the original work, which remains the property of the
original owner. Id. The only new “material” arguably added to the Private Stock
Record included the “enhancing” the “mix” and “sound quality” and “shortening the
playing length” – nothing that is alleged to be infringed in this action. Accordingly,
Plaintiffs are still required to have a valid registration for the underlying and allegedly
infringed Gold Future Recording in order to sue for infringement of that work and that
valid registration needed to be filed before any infringement commenced in order to
seek statutory damages and attorneys’ fees under the Copyright Act.
As Plaintiffs did not have a valid registration in the Gold Future Recording at the
time of the alleged infringements – and the Private Stock registration cannot satisfy
Section 411(a)’s requirement – Plaintiffs’ claims for statutory damages and attorneys’
fees are barred as a matter of law for both of Plaintiffs’ Recordings.
IV. CONCLUSION
For the foregoing reasons, it is respectfully submitted that Defendants’ motion
be granted in its entirety.
PRYOR CASHMAN LLP

Dated: June 16, 2014 By: /s/ Michael J. Niborski
Michael J. Niborski
mniborski@pryorcashman.com

Attorneys for Defendants
KANYE WEST, UMG RECORDINGS,
INC., ROC-A-FELLA RECORDS, LLC,
THE ISLAND DEF JAM MUSIC GROUP,
CAROLINE DISTRIBUTION,
ELECTRONIC ARTS, INC., WARNER
BROS. ENTERTAINMENT INC., STONES
THROW RECORDS, and
NBCUNIVERSAL MEDIA, LLC

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