Case 2:15-cv-05642-CAS-JC Document 404 Filed 07/10/19 Page 1 of 6 Page ID #:7265

1 CHRISTINE LEPERA (admitted pro hac vice)

ctl@msk.com
2 JEFFREY M. MOVIT (admitted pro hac vice)
jmm@msk.com
3 JACOB D. ALBERTSON (admitted pro hac vice)
j1a@msk.com
4 MITCHELL SILBERBERG & KNUPP LLP
437 Madison Avenue, 25th Floor
5 New York, New York 10022
Telephone: (212) 509-3900
6 Facsimile: (212) 509-7239
7 AARON M. WAIS (SBN 250671)
amw@msk.com
8 GABRIELLA A. NOURAFCHAN (SBN 301594)
gan@msk.com
9 MITCHELL SILBERBERG & KNUPP LLP
2049 Century Park East, 18th Floor
10 Los Angeles, California 90067
Telephone: (310) 312-2000
11 Facsimile: (310) 312-3100
12 GREENBERG TRAURIG, LLP
VINCENT H. CHIEFFO (SBN 49069)
13 Email: ChieffoV@gtlaw.com
ALANA C. SROUR (SBN 271905)
14 Email: SrourA@gtlaw.com
1840 Century Park East, Suite 1900
15 Los Angeles, CA 90067-2121
Telephone: 310-586-7700
16 Facsimile: 310-586-7800
17 Attorneys for Defendants
18 UNITED STATES DISTRICT COURT
19 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION
20 MARCUS GRAY (p/k/a FLAME), et CASE NO. 2:15-cv-05642-CAS (JCx)
al.,
21 Honorable Christina A. Snyder
Plaintiffs,
22 DEFENDANTS’ TRIAL BRIEF
v.
23 [CD Cal. L.R. 16-10]
KATHERYN ELIZABETH HUDSON
24 (p/k/a KATY PERRY), et al., Filed: July 1, 2014
Trial: July 17, 2019
25 Defendants.
26
27
28

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1 Pursuant to Local Rule 16-10, all Defendants jointly submit this Trial Brief
2 to reply to Plaintiffs’ Memorandum of Contentions of Fact and Law (“Pl. Memo”).
3 L.R. 16-10(c). 1
4 I. PLAINTIFFS CANNOT PROVE THEIR OWNERSHIP OF A VALID
5 COPYRIGHT REGISTRATION FOR “JOYFUL NOISE.”
6 In their Memorandum of Contentions of Fact and Law, Plaintiffs concede it
7 is their burden at trial to prove by the preponderance of affirmative and admissible
8 evidence that they are the current owner of a valid copyright in the “Joyful Noise”
9 composition and that the defendant authors of “Dark Horse” copied original,
10 protectable expression from the “Joyful Noise” composition. Pl. Memo, p. 2. In
11 addressing their burden, however, Plaintiffs incorrectly state that “[t]here appears
12 to be no dispute over the validity of the copyright registration for ‘Joyful Noise’
13 and Plaintiffs’ ownership of that registration.” Id. Not so.
14 As discussed at the Final Pretrial Conference, the copyright registration for
15 “Joyful Noise” is not prima facie evidence of the validity of the copyright and of
16 the facts stated in the certificate because the registration was not made within five
17 years after first publication of “Joyful Noise.” 17 U.S.C. § 410(c). Instead, the
18 evidentiary weight accorded to the certificate of registration is within the discretion
19 of the Court. Id. Here, the registration for “Joyful Noise”—issued 6 years after
20 the first publication of the composition and solely for purposes of suing
21 Defendants—should be accorded “no weight.” See, e.g., Blue Underground Inc. v.
22 Caputo, 2015 WL 12683972, at *5 (C.D. Cal. Mar. 16, 2015) (citing Sem-Torq,
23 Inc. v. KMart Corp., 936 F.2d 851, 853-54 (6th Cir. 1991)). Instead, the Court
24
1
25 There are no new cases of which to inform the Court pursuant to L.R. 16-10(a).
In the Court’s Order regarding the parties motions in limine, the Court directed the
26 Defendants to brief their contentions regarding why the Plaintiffs’ copyright in
“Joyful Noise” is invalid. Such additional briefing is set forth in the proposed
27 amendment to the Final Pretrial Conference Order, as directed by the Court. Dkt.
403, p. 37; see L.R. 16-10(b). That issue is also addressed briefly herein in
28 response to Plaintiffs’ Memorandum of Contentions of Facts and Law.
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1 should require Plaintiffs to prove the validity of the registration and the facts stated
2 therein. They will not be able to sustain this burden because the registration
3 contains inaccuracies:
4 First, “Joyful Noise” is a derivative work but is not identified as one in the
5 copyright registration. Ojukwu did not jointly author “Joyful Noise” because he
6 did not create the allegedly infringed instrumental track (hereafter, the “Beat”)
7 contained in “Joyful Noise” for the purpose of inclusion in “Joyful Noise.”
8 Instead, he independently created the Beat and published it to his Myspace page.
9 Gray then approached Ojukwu and paid to license the Beat for use in a then-
10 unknown and uncreated work to be authored by Gray that ultimately was “Joyful
11 Noise.” This makes “Joyful Noise” a derivative work of Ojukwu’s pre-existing
12 Beat. Because “Joyful Noise” is a derivative work, the copyright in “Joyful Noise”
13 does not extend to the pre-existing Beat, which was included under license from
14 Ojukwu. Moreover, there is no copyright registration for the Beat itself, which
15 means that no claim for copyright infringement can be brought with respect to the
16 Beat.
17 Second, the copyright registration for the composition “Joyful Noise”
18 contained false information about the owners of that copyright. The registration
19 states that the sole copyright claimants were the three Plaintiffs and Lecrae Moore.
20 But it is undisputed that Cross Movement Records (“CMR”), the record label that
21 released Our World Redeemed, owned a portion of the copyright in the
22 composition at the time the registration was filed on June 3, 2014. It was not until
23 a month later on July 3, 2014 that CMR assigned its rights in the composition
24 “Joyful Noise” to Gray. In addition, although Ojukwu was listed as an owner of
25 the copyright in the registration, he was solely the licensor of the Beat.
26 Third, the copyright registration identifies all three Plaintiffs, plus third-
27 party Lecrae Moore, as the authors of the “lyrics and music” of “Joyful Noise,”
28 when, in truth, Ojukwu was not a joint author of “Joyful Noise” and only licensed
3
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1 his pre-existing beat to Gray. Only Gray, Lambert, and Moore were joint authors
2 of the original parts they created for Joyful Noise, i.e., the lyrics, but not the pre-
3 existing licensed Ojukwu beat.
4 II. PLAINTIFFS CANNOT PROVE COPYING OF ORIGINAL,
5 PROTECTABLE EXPRESSION IN “JOYFUL NOISE.”
6 In their Memorandum of Contentions of Fact and Law, Plaintiffs concede it
7 is their burden at trial to prove, by the preponderance of affirmative and admissible
8 evidence, copying, which requires Plaintiffs to prove that the relevant authors of
9 “Dark Horse” had access to Plaintiffs’ work before the creation of the allegedly
10 infringing instrumental music and that “Dark Horse” and “Joyful Noise” are
11 substantially similar in protected expression. Pl. Memo, p. 2. In their
12 Memorandum of Contentions of Fact and Law, Defendants showed why Plaintiffs
13 will be unable to prove either prong. See Defs. Memo, pp. 7-11 (intro) & 15-23.
14 Defendants herein respond to several new arguments that Plaintiffs make in
15 their Memorandum.
16 A. Plaintiffs’ New Access Theories Are Precluded.
17 First, Plaintiffs argue that access can be proven through the alleged
18 “striking” similarity between “Joyful Noise” and “Dark Horse.” Defendants,
19 however, moved to preclude such evidence and argument at trial and this Court
20 granted Defendants’ motion in recognition of the fact that Plaintiffs have failed to
21 offer expert testimony that the works at issue are “strikingly” similar. Thus, the
22 argument is barred. Dkt. 403, pp. 5-6.
23 Second, Plaintiffs argue that they can prove access by presenting the
24 “GRAMMYs” as an intermediary. This argument, likewise, has been precluded.
25 Specifically, the Court held that “plaintiffs have no evidence demonstrating that
26 Gottwald would have been able to access [“Joyful Noise”] because he was a voting
27 member of the GRAMMYs,” and therefore “plaintiffs’ chain of events theory is
28 too speculative to establish a reasonable possibility of access and would confuse
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1 and distract the jury.” Id. at 19. Plaintiffs will not be able to offer the fact that
2 Gottwald was a GRAMMY voter to meet their burden of proof as to access.
3 B. Plaintiffs’ Discussion of Substantial Similarity Does Not Change
4 The Conclusion That the Two Works are Not Substantially
5 Similar.
6 In reciting the reasons why Plaintiffs contend they will be able to prove
7 substantial similarity, they ignore that the trier of fact must “filter out and
8 disregard the non-protectible elements in making [a] substantial similarity
9 determination.” Cavalier v. Random House, 297 F.3d 815, 822 (9th Cir. 2002);
10 Apple Comp. Inc. v. Microsoft Corp., 35 F.3d 1435, 1446 (9th Cir. 1994) (“the
11 unprotectable elements have to be identified, or filtered, before the works can be
12 considered as a whole.”). They also ignore that their own musicologist was
13 compelled to concede that each of the purported similarities between the works are
14 commonplace and there are substantive differences between the two works. For
15 these reasons, as well as the ones stated in Defendants’ Pretrial Memorandum of
16 Contentions of Fact and Law, Plaintiffs will be unable to prove that “Joyful Noise”
17 and “Dark Horse” are either intrinsically or extrinsically substantially similar in
18 original, protected expression.
19 C. Plaintiffs Do Not Explain How They Can Rebut Defendants’
20 Evidence of Independent Creation.
21 Finally, as explained in Defendants’ Pretrial Memorandum of Contentions of
22 Fact and Law, any inference of copying will be rebutted by the extensive and
23 unrebutted testimony—and corroborating evidence—of Walter and Gottwald that
24 they independently created the allegedly infringing instrumental music over the
25 course of a single day in March 2013. In their own Pretrial Memorandum,
26 Plaintiffs simply deny the evidence of independent creation without identifying
27 any evidence that would rebut Defendants’ evidence. Absent contrary evidence,
28 Defendants’ showing of independent creation will result in a finding of no liability.
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1 * * *
2 In sum, Plaintiffs will not be able to prove copyright infringement at trial.
3
DATED: July 10, 2019 MITCHELL SILBERBERG & KNUPP LLP
4
5 By: /s/ Aaron M. Wais
Aaron M. Wais (SBN 250671)
6
Attorneys for Defendants other than Katheryn
7 Elizabeth Hudson, and Kitty Purry, Inc.
8
9 DATED: July 10, 2019 GREENBERG TRAURIG, LLP
10 By: /s/ Vincent H. Chieffo
11 Vincent H. Chieffo (SBN 49069)
Attorneys for Defendants Katheryn Elizabeth
12 Hudson p/k/a Katy Perry and Kitty Purry, Inc.
13
14
15 ATTESTATION REGARDING SIGNATURES
16 Pursuant to Local Civil Rule 5-4.3.4(a)(2)(i), I hereby attest that all Parties,
17 on whose behalf this entire filing is jointly submitted, concur in this filing’s
18 content and have authorized its filing.
19
Dated: July 10, 2019 /s/ Aaron M. Wais
20 Aaron M. Wais
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