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UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIACIVIL MINUTES -- GENERAL

Case No.

CV 18-9543-JFW(SSx)

Date: March 13, 2019Title:Stephen Perry

-v-

Phil Brown, et al.

PRESENT:HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGEShannon Reilly Courtroom DeputyNone PresentCourt Reporter ATTORNEYS PRESENT FOR PLAINTIFFS:

None

ATTORNEYS PRESENT FOR DEFENDANTS:

None

PROCEEDINGS (IN CHAMBERS):ORDER DENYING DEFENDANT PHIL BROWN’SSPECIAL MOTION: (1) TO STRIKE PERRY’SCALIFORNIA RIGHT OF PUBLICITY CLAIMS (CAL.CODE CIV. PROC. § 425.16); AND (2) DISMISSPERRY’S TRADEMARK CLAIMS PURSUANT TO FRCP12(b)(6) [filed 2/8/19; Docket No. 45]; andORDER DENYING DEFENDANT PHIL BROWN’S RULE12(b)(2) MOTION TO DISMISS ALL CLAIMS AGAINSTHIM DUE TO LACK OF PERSONAL JURISDICTION[filed 2/8/19; Docket No. 47]

On February 8, 2019, Defendant Phil Brown (“Defendant”) filed a Special Motion: (1) toStrike Perry’s California Right of Publicity Claims (Cal. Code Civ. Proc. § 425.16); and (2) DismissPerry’s Trademark Claims Pursuant to FRCP 12(b)(6) (“Motion to Strike”) and a Rule 12(b)(2)Motion to Dismiss All Claims Against Him Due to Lack of Personal Jurisdiction (“Motion toDismiss”). On February 15, 2019, Plaintiff Stephen Perry (“Plaintiff”) filed his Oppositions. OnFebruary 25, Plaintiff filed a Reply. Pursuant to Rule 78 of the Federal Rules of Civil Procedureand Local Rule 7-15, the Court finds that these matters are appropriate for decision without oralargument. The hearing calendared for March 25, 2019 is hereby vacated and the matters taken off calendar. After considering the moving, opposing, and reply papers, and the arguments therein,the Court rules as follows:

I.Factual and Procedural Background

11

To the extent that the Court has relied on evidence to which the parties have objected, theCourt has considered and overruled those objections. As to the remaining objections, the CourtPage 1 of 14

Initials of Deputy Clerk sr

Case 2:18-cv-09543-JFW-SS Document 64 Filed 03/13/19 Page 1 of 14 Page ID #:727

A.Plaintiff’s Background

Plaintiff, who is professionally known as “Steve Perry,” is a California resident and awell-known musician, songwriter, and former lead singer of the band “Journey.” Plaintiff co-wrote anumber of Journey’s biggest hits, including “Don’t Stop Believin’,” “Who’s Crying Now,” “Open Arms,” “Separate Ways,” and “Any Way You Want It.” Plaintiff recorded seven albums withJourney, which has sold approximately 54 million albums and singles in the United States and anestimated 75 million worldwide. On April 7, 2017, Plaintiff was inducted into the Rock and Roll Hallof Fame as a member of Journey.Plaintiff also has had a successful solo career. In 1984, Plaintiff released his first soloalbum, “Street Talk,” which was certified “Platinum” by the Recording Industry Association of America (“RIAA”) and features the hit singles “Oh Sherrie” and “Foolish Heart.” In 1994, Perryreleased a second solo album, “For the Love of Strange Medicine,” which featured the hit “YouBetter Wait” and which was certified “Gold” by the RIAA. On October 5, 2018, after an extendedhiatus, Plaintiff released a third solo album, “Traces,” which reached Number 4 on the “Billboard200” chart. There was substantial publicity surrounding Plaintiff and his “Traces” album before andsubsequent to its release. As a result of his professional efforts and success, Plaintiff, and his name, likeness, andidentity have become well known to the public. The U.S. Patent and Trademark Office has grantedPlaintiff a trademark registration for “Steve Perry” in connection with pre-recorded music and other related services. To illustrate the extent of his fame, a Google search of Plaintiff’s name reveals284 million entries and his unique singing voice and vocal style have become instantlyrecognizable to the public, garnering him acclaim from prominent musical peers and publications. For example, Plaintiff was ranked No. 76 on “Rolling Stone” magazine's "100 Greatest Singers of All Time” chart.Due to the instant recognizability of his vocal performances, a public release of a subpar recording or subpar vocal performance would adversely impact the public’s perception of Plaintiff as a vocalist, musician and performer. Thus, Plaintiff has always been extremely selectiveregarding the release of his vocal performances. As a result, Plaintiff does not release recordings unless he is satisfied that the music, his vocal performances, and the quality of the recording of hisvocal performances, meet his very high standards.

B.Defendant’s Involvement With Plaintiff

In 1991, Plaintiff was introduced to Defendant, who is also a musician, by Plaintiff’smanager Bob Cavallo, who encouraged Plaintiff to work with Defendant to write songs that wouldmeet Perry’s standards. Perry met Brown at Brown’s home in Sylmar, California and they wrotetwo songs together, “Somebody Somewhere” and “Don’t Push the River,” and Brown showedPerry two other songs that Brown had previously written. To evaluate these four songs, Plaintiff recorded a vocal performance of each song on an eight track tape recorder Defendant kept in hisfinds that it is unnecessary to rule on those objections because the disputed evidence was notrelied on by the Court.Page 2 of 14



garage. Plaintiff loaned Defendant $1,500 for the use of Defendant’s garage and eight track taperecorder used to record his performances, as described in the administration agreement Plaintiff and Defendant signed in August 1991.Plaintiff’s recordings were made exclusively for “demo” purposes, so that Plaintiff coulddetermine if the songs were creatively acceptable to him. Plaintiff never intended or expected topublically release these recordings and certainly never authorized their public release. Plaintiff also never intended those vocal performances to form a part of a larger sound recording in whichanyone else would have a copyright interest, and he at all times intended to have sole copyrightownership of the vocal performances he recorded at Defendant’s home. Plaintiff’s homerecordings did not have the same quality as a studio recording, and although Plaintiff’s vocalperformances allowed him to evaluate whether he wanted to pursue development of the songs, hisperformances lacked the studio quality necessary for any type of public release. As a result,neither those recordings nor those vocal performances met or meet Plaintiff’s standards for publicrelease. Plaintiff ultimately decided that the vocal performances were not appropriate for publicrelease and none of the songs created in 1991 appeared on his 1994 “For the Love of StrangeMedicine” album. Plaintiff left the tapes of his four recorded songs in the possession of Defendant. Plaintiff never worked with Defendant after 1991 and he never asked Defendant to return the tapesof his four recorded songs. In 2002 Defendant, through his attorney, claimed for the first time that he had an interest inPlaintiff’s 1991 recorded vocal performances and Defendant threatened to release them. Plaintiff,through his counsel, expressly rejected Defendant’s claim to any form of copyright interest inPlaintiff’s recorded vocal performances in a letter dated February 7, 2002, which asserted Plaintiff’ssole ownership of those recorded vocal performances. After receiving Plaintiff’s letter, Defendantapparently decided not to release Plaintiff’s recorded vocal performances. In addition, Defendantfailed to take any legal action challenging Plaintiff’s copyright ownership of his recorded vocalperformances. In September 2018, Defendant learned that Plaintiff was about to release another soloalbum, “Traces,” on October 5, 2018. Four days after the release of “Traces,” Defendant, throughhis representatives, raised his long dormant claim of ownership in Plaintiff’s vocal performancesrecorded in 1991 and again threatened to release those performances to the public againstPlaintiff’s wishes. Melody Bann (“Bann”), Defendant’s girlfriend and alleged co-manager, begansending promotional Twitter messages that not only promised the upcoming release of Plaintiff’sfour recorded vocal performances, but also associated Defendant with Plaintiff and falsely impliedthat Plaintiff was a member of Defendant’s band “Apaches from Paris.” For example, on October 23, 2018, Bann tweeted that “BROWN’S NEW CD’s almost completed! The NEW band APACHESFROM PARIS is coming together with OUTSTANDING musicians who are well known in the musicworld! There is an extra little treat in the works for those of you who like Steve Perry!” On October 31, 2018, Bann tweeted an image of Plaintiff next to an image of Defendant, with the text “PHILBROWN OF LITTLE FEAT! STEVE PERRY OF JOURNEY! FIRST SONG RELEASE COMINGSOON!!” On or about November 1, 2018, Defendant released a 35-second clip of one of the four songs on his Facebook page promoting Defendant and his band. Plaintiff sent a takedown noticeafter the Facebook posting was discovered and Facebook deleted the posting on approximatelyNovember 9, 2018. Page 3 of 14

