Hall v. Swift

Case 2:17-cv-06882-MWF-AS Document 112 Filed 01/14/22 Page 1 of 25 Page ID #:3045
1 GERARD FOX LAW P.C.

Gerard P. Fox (SBN 151649)
2 gfox@gerardfoxlaw.com
Marina V. Bogorad (SBN 217524)
3 mbogorad@gerardfoxlaw.com
1880 Century Park East, Suite 1410
4 Los Angeles, CA 90067
Telephone: (310) 441-0500
5 Facsimile: (310) 441-4447
6 Attorneys for Plaintiffs
SEAN HALL D.B.A. GIMME SOME HOT
7 SAUCE MUSIC AND NATHAN BUTLER
D.B.A. FAITH FORCE MUSIC
8
9 UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
10
11 SEAN HALL d.b.a. GIMME SOME Case No. 2:17-cv-06882 MWF (ASx)
HOT SAUCE MUSIC, et al.,
12
13 Plaintiffs, PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION TO
14 vs. AMEND OR RECONSIDER
15 TAYLOR SWIFT, et al., SUMMARY JUDGMENT RULING
16 Defendants.
17 Date: February 7, 2022
18 Time: 10:00 a.m.
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1 TABLE OF CONTENTS
2 I. THERE ARE NO VALID GROUNDS FOR THE RELIEF SOUGHT ............. 2
3
II. IT WOULD BE “UNPRECEDENTED” TO FILTER OUT PLAINTIFFS’
4
SELECTION AND ARRANGEMENT OUT OF THEIR SELECTION AND
5
ARRANGEMENT...............................................................................................6
6
7 III. THE TOTALITY OF THE SIMILARITIES BETWEEN THE LYRICAL
8 SEQUENCES AT ISSUE CANNOT BE “FILTERED OUT” .........................13
9
10
11
12
13
14
15
16
17
18
19
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25
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27
28
i
1 TABLE OF AUTHORITIES
2 Cases
3 ACT Grp., Inc. v. WaterFurnace Int’l, Inc.,
700 F. App’x 718 (9th Cir. 2017) ..........................................................................8
4
Alaimalo v. United States,
5 645 F.3d 1042 (9th Cir. 2011) ................................................................................6
6 Allen v. Destiny’s Child,
2009 WL 2178676 (N.D. Ill. July 21, 2009) ........................................................14
7
Andreas Carlsson Prod. AB v. Barnes,
8 2016 WL 11499657 (C.D. Cal. Apr. 14, 2016) ...................................................18
9 Art Attacks Ink, LLC v. MGA Ent., Inc.,
2006 WL 8439847 (S.D. Cal. Nov. 1, 2006) .........................................................6
10
Audionics Sys., Inc. v. AAMP of Fla., Inc.,
11 2015 WL 11201243 (C.D. Cal. Nov. 4, 2015) .......................................................3
12 Backlund v. Barnhart,
778 F.2d 1386 (9th Cir. 1985) ................................................................................5
13
Benay v. Warner Bros. Ent.,
14 607 F.3d 620 (9th Cir. 2010) ................................................................................18
15 Bright Tunes Music Corp. v. Harrisongs Music, Ltd.,
420 F. Supp. 177 (S.D.N.Y. 1976) .......................................................................15
16
Cavalier v. Random House, Inc.,
17 297 F.3d 815 (9th Cir. 2002) ......................................................................... 17, 18
18 Cent. Registration Depository v. Fin. Indus. Regul. Auth.,
2010 WL 11545217 (C.D. Cal. July 8, 2010) ........................................................5
19
20 Craft Smith, LLC v. EC Design, LLC,
969 F.3d 1092 (10th Cir. 2020) ............................................................................17
21 Cummings v. Starbucks Corp.,
22 2014 WL 12597110 (C.D. Cal. May 27, 2014) .....................................................3
23 Desire, LLC v. Manna Textiles, Inc.,

986 F.3d 1253 (9th Cir. 2021) ..............................................................................12
24 Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc.,
25 924 F. Supp. 1559 (S.D. Cal. 1996) .....................................................................12
26 Dragan v. Valladolid,
2021 WL 3260605 (C.D. Cal. Apr. 5, 2021)......................................................1, 5
27 Feist Publications, Inc. v. Rural Tel. Serv. Co.,
28 499 U.S. 340 (1991) ...........................................................................................1, 6
ii
1 Fodor v. Los Angeles Unified Sch. Dist.,

2014 WL 12235424 (C.D. Cal. June 3, 2014) .................................................9, 18
2
Funky Films, Inc. v. Time Warner Ent. Co., L.P.,
3 462 F.3d 1072 (9th Cir. 2006) ..............................................................................17
4 Grindstone Indian Rancheria v. Olliff,
2021 WL 5529894 (E.D. Cal. Nov. 24, 2021) .......................................................3
5
Hall v. Swift,
6 2018 WL 3203045 (C.D. Cal. Apr. 16, 2018) .......................................................2
7 Hall v. Swift,
2020 WL 5358390 (C.D. Cal. Sept. 2, 2020).......................................................11
8
Heim v. Universal Pictures Co.,
9 154 F.2d 480 (2d Cir. 1946) .................................................................................15
10 Jarvis v. A & M Recs.,
827 F. Supp. 282 (D.N.J. 1993) ...........................................................................14
11
JCW Invs., Inc. v. Novelty, Inc.,
12 482 F.3d 910 (7th Cir. 2007) ............................................................................9, 11
13 Johnson v. Caliber Home Loans, Inc.,
2021 WL 4814986 (C.D. Cal. Feb. 3, 2021) ......................................................1, 5
14
Keeling v. Hars,
15 809 F.3d 43 (2d Cir. 2015) ...................................................................................11
16 Ketab Corp. v. Mesriani Law Group,
2015 WL 2084469 (C.D. Cal. May 5, 2015) .........................................................4
17
Key Publications, Inc. v. Chinatown Today Pub. Enterprises, Inc.,
18 945 F.2d 509 (2d Cir. 1991) ...................................................................................7
19 L.A. Printex Indus., Inc. v. Aeropostale, Inc.,
676 F.3d 841 (9th Cir. 2012) ......................................................................... 10, 18
20
Martinez-Gonzalez v. Elkhorn Packing Co. LLC,
21 17 F.4th 875 (9th Cir. 2021)...................................................................................6
22 May v. Sony Music Ent.,
399 F. Supp. 3d 169 (S.D.N.Y. 2019) ..................................................................14
23
McNeley v. Sheppard, Mullin, Richter & Hampton LLP,
24 2019 WL 4187376 (C.D. Cal. June 18, 2019) ...................................................1, 5
25 Metcalf v. Bochco,
294 F.3d 1069 (9th Cir. 2002) ................................................................. 13, 16, 18
26
Motorola, Inc. v. J.B. Rodgers Mechanical Contractors, Inc.,
27 215 F.R.D. 581 (D. Ariz. 2003) .............................................................................5
28
iii
1 N. Coast Indus. v. Jason Maxwell, Inc.,

972 F.2d 1031 (9th Cir. 1992) ................................................................................8
2
Norse v. Henry Holt & Co.,
3 991 F.2d 563 (9th Cir. 1993) ..................................................................................9
4 Parts & Elec. Motors, Inc. v. Sterling Elec., Inc.,
866 F.2d 228 (7th Cir. 1988) ..................................................................................6
5
Positive Black Talk, Inc. v. Cash Money Recs., Inc.,
6 2003 WL 1921999 (E.D. La. Apr. 21, 2003) .......................................................15
7 Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc.,
204 F.3d 867 (9th Cir. 2000) ..................................................................................3
8
Salinger v. Random House, Inc.,
9 811 F.2d 90 (2d Cir. 1987) ...................................................................................14
10 Santrayll v. Burrell,
1996 WL 134803 (S.D.N.Y. Mar. 25, 1996) .......................................................15
11
Satava v. Lowry,
12 323 F.3d 805 (9th Cir. 2003) ..................................................................................9
13 Schmidt v. Baldy,
2019 WL 5389868 (C.D. Cal. Oct. 19, 2019) ......................................................10
14
Shaw v. Lindheim,
15 919 F.2d 1353 (9th Cir. 1990) ................................................................. 11, 13, 16
16 Situation Mgmt. Sys., Inc. v. ASP. Consulting LLC,
560 F.3d 53 (1st Cir. 2009) ..................................................................................12
17
Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin,
18 952 F.3d 1051 (9th Cir. 2020) ....................................................................... 13, 14
19 Straughter v. Raymond,
2011 WL 3651350 (C.D. Cal. Aug. 19, 2011) .....................................................18
20
Swirsky v. Carey,
21 376 F.3d at 841 (9th Cir. 2004) ............................................................................15
22 Tin Pan Apple, Inc. v. Miller Brewing Co.,
1994 WL 62360 (S.D.N.Y. Feb. 24, 1994) ..........................................................15
23
Unicolors, Inc. v. Urb. Outfitters, Inc.,
24 853 F.3d 980 (9th Cir. 2017) ................................................................................12
25 United Westlabs, Inc. v. Seacoast Lab’y Data Sys., Inc.,
2010 WL 11515301 (C.D. Cal. Jan. 7, 2010) ........................................................5
26
27
28
iv
1 Rules
2 C.D. Cal., L.R. 7-18 .......................................................................................... 3, 5, 6
3 Fed. R. Civ. P. 60 ...................................................................................................2, 3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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20
21
22
23
24
25
26
27
28
v
1 Plaintiffs’ “choices as to selection and arrangement” amount to the protected

2 expression that cannot, as a matter of law, be filtered out of the substantial similarity
3 analysis. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348-49
4 (1991) (further confirming that “if the selection and arrangement are original, these
5 elements of the work are eligible for copyright protection”).1 If Defendants had their
6 way, no selection and arrangement claim would ever see a jury, since Defendants
7 simply label the protected choices as “ideas” and call it a day. That is not the law;
8 accordingly, this Court correctly denied Defendants’ summary judgment motion.
9 But the Court does not even need to reach that far to dispose of the motion at
10 bar. This is because it rests on illusory procedural grounds, as there is no conceivable
11 procedural vehicle that allows Defendants to seek the relief sought here—namely,
12 persuade the Court that it somehow got it wrong. The rules simply do not provide
13 Defendants with “vehicles for rehashing old arguments and are not intended to give
14 an unhappy litigant one additional chance to sway the judge.” Johnson v. Caliber
15 Home Loans, Inc., 2021 WL 4814986, at *3 (C.D. Cal. Feb. 3, 2021). This Court
16 echoed the same sentiment when it confirmed that Defendants’ “[u]nhappiness with
17 the outcome” is not a valid ground to rehash their previously raised arguments that
18 this Court already considered and rejected. Dragan v. Valladolid, 2021 WL
19 3260605, at *1 (C.D. Cal. Apr. 5, 2021) (Fitzgerald, J.); McNeley v. Sheppard,
20 Mullin, Richter & Hampton LLP, 2019 WL 4187376, at *2 (C.D. Cal. June 18, 2019)
21 (Fitzgerald, J.). Defendants present no cognizable reasons to depart from this sound
22 practice here.
23 Even if, however, the Court were to entertain the merits, it would find them
24 lacking. All Defendants propose here is to disregard the very selection and
25 arrangement choices that make up Plaintiffs’ selection and arrangement—the very
26
27 1
All internal alterations, quotation marks, footnotes and citations herein are
28 omitted, and all emphasis is added unless otherwise noted.
1
1 same (at least) nine expressive choices that Defendants cloned when they, just like
2 Plaintiffs, decided to put together a song chorus about how one should not pay
3 attention to others but rather stay true to one’s self. Similarly, when it comes to the
4 chorus as a literary sequence, Defendants propose to ignore the forest that is the
5 totality of all the similarities for the trees that are certain “public domain” phrases
6 that it includes. This granular approach to expressiveness finds no support in the
7 copyright jurisprudence—indeed, as already shown during the summary judgment
8 briefing and further shown below, it has been specifically rejected by other courts.
9 Contrary to Defendants’ labeling, this Court does not stand alone; 2 in fact, it follows
10 in the well-travelled tracks of precedent that mandates directing this case to the jury
11 after the Court concluded that Plaintiffs had raised a genuine issue of material fact
12 as to whether there is substantial similarity based on the works’ shared “lyrical
13 phrasing, word arrangement … [and] poetic structure.” (Order Denying Defendants’
14 Motion for Summary Judgment, Dkt. No. 104 (“MSJ Order”), at 9.)
15 I. THERE ARE NO VALID GROUNDS FOR THE RELIEF SOUGHT
16 As an initial matter, Defendants incorrectly rely on Rule 60(b)(6) as one of
17 the grounds for the relief sought, even though it does not apply to interlocutory
18
19 2
For every opinion that bemoans the ruling’s supposed effect on “future
20 creativity” (Mot. at 5 n.4), Plaintiffs can direct the Court’s attention to contrary
opinions that find it “correct” for the Court to avoid usurping the jury’s role in fact
21
finding. See, e.g., https://www.bloomberg.com/news/audio/2021-12-19/taylor-
22 swift-can-t-shake-off-lawsuit-podcast, at 5:42 (Dec. 19, 2021). Indeed, “future
creativity” is best served by protecting original expressions from unlawful
23
misappropriation. Cf. Hall v. Swift, 2018 WL 3203045, at *6 (C.D. Cal. Apr. 16,
24 2018) (setting forth this Court’s reasoning along the same lines when observing that
“[t]here are very few recording artists, if any, who have a greater interest than Ms.
25
Swift in a robust regime of copyright law. Be careful what you wish for.”). In any
26 event, summary judgment decisions are not made in the court of public opinion, and
27 this Court should not be swayed by its fickle nature. As Defendants cite no basis for
their truly unprecedented attempt to infuse public debate into the Court’s analysis, it
28 is not properly before the Court and thus cannot be considered.
2
1 orders such as the MSJ Order at issue. See, e.g., Grindstone Indian Rancheria v.
2 Olliff, 2021 WL 5529894, at *2 (E.D. Cal. Nov. 24, 2021) (“Plaintiffs use of Rule
3 60(b) as a vehicle to challenge the Court’s July 2021 Order denying partial summary
4 adjudication is improper.”); see also Fed. R. Civ. P. 60(b) (“On motion and just
5 terms, the court may relieve a party or its legal representative from a final judgment,
6 order, or proceeding ....”); cf. Prudential Real Estate Affiliates, Inc. v. PPR Realty,
7 Inc., 204 F.3d 867, 880 (9th Cir. 2000) (“[A] preliminary injunction is not a ‘final
8 judgment, order, or proceeding’ that may be addressed by a motion under Rule
9 60(b).”); accord Advisory Comm. Note to Fed. R. Civ. P. 60(b) (“The addition of
10 the qualifying word ‘final’ emphasizes the character of the judgment, orders or
11 proceedings from which Rule 60(b) affords relief; ... interlocutory judgments are not
12 brought within the restrictions of the rule....”). Accordingly, the “clear error” or
13 “manifestly unjust” standard that Defendants invoke based on Rule 60(b) does not
14 apply. See Cummings v. Starbucks Corp., 2014 WL 12597110, at *1 (C.D. Cal. May
15 27, 2014) (Fitzgerald, J.) (holding that “the [clear error or manifest injustice]
16 standard for a Rule 60(b) motion is inapposite here” because “Rule 60(b) motions
17 are brought to ‘relieve a party ... from a final judgment, order, or proceeding’” and
18 thus do not apply to “an interlocutory order, [which is] not a final order or
19 judgment”).
20 While Defendants also invoke this Court’s Local Rule 7-18 providing for
21 reconsideration motions, it supplies no grounds for what Defendants are essentially
22 trying to do here: namely, persuade this Court that it simply got it wrong. Realizing
23 as much, Defendants rely on the Court’s purported “failure to consider material
24 facts” but never actually identify what those “facts” are supposed to be. Judge
25 Morrow rejected a similar ploy in Audionics Sys., Inc. v. AAMP of Fla., Inc., 2015
26 WL 11201243 (C.D. Cal. Nov. 4, 2015), by observing that the movant “appears to
27 contend that the court should reconsider its order simply because the order is wrong,”
28 but “as the text of the Local Rule 7-18 makes clear, … this is typically not a basis
3
1 for reconsideration. It is not the fact that the court reached an incorrect conclusion,
2 but its failure to consider evidence that justifies reconsideration.” Id. at *13 (original
3 italics), citing, inter alia, Ketab Corp. v. Mesriani Law Group, 2015 WL 2084469,
4 *3 (C.D. Cal. May 5, 2015) (“An argument that the Court’s decision is ‘simply
5 wrong’ is not a permissible ground for reconsideration under Local Rule 7-18, and
6 the Court will not reconsider its Order on such a basis.”).
7 Indeed, Defendants’ reliance on some mythical facts that the Court allegedly
8 failed to consider is especially ironic because none of their expert witnesses actually
9 opined on originality of Plaintiffs’ work as a combination of unprotected elements
10 that were selected and arranged in a unique way. (See Pls. Opp’n to Defs. Mot. for
11 Summ. J., Dkt. No. 98, at 9 n.20 (analyzing the expert testimony offered and
12 concluding that none of Defendants’ experts dealt with a selection and arrangement
13 claim).) Accordingly, they could not possibly supply any “facts” to consider once it
14 came to filtering out unprotected elements to ascertain whether Defendants’
15 selection and arrangement is substantially similar to Plaintiffs’ selection and
16 arrangement. It is noteworthy that the motion at bar never actually relies on
17 Defendants’ expert testimony in support of the relief sought.
18 In the end, Defendants’ motion boils down to the argument that the extrinsic
19 test requires filtering out of unprotected elements, and the Court failed to perform
20 this filtering exercise. But just because the Court did not expressly invoke the magic
21 “filtering out” mantra does not mean that it somehow forgot to apply it. In fact, the
22 Court’s holding is clear that the Court considered these arguments and rejected them.
23 (Compare Defs. MOL re Summ. J., Dkt. No. 92-1, at 13:3 (arguing that filtering out
24 of unprotected elements is required), id. at 21:3-12 (contending that the alleged
25 selection and arrangement consists of four short public domain phrases that are not
26 protected) & Defs. Reply MOL re Summ. J., Dkt. No. 99, at 22:13-15 (referring to
27 the choices of combining and sequencing phrases as unprotected “ideas”), with MSJ
28 Order at 9 (measuring substantial similarity “of lyrical phrasing, word arrangement,
4
1 [and] … poetic structure).)

2 Distilled accordingly, it becomes clear that Defendants simply have no valid
3 grounds for the relief they seek. “[M]otions for reconsideration are not the proper
4 vehicles for rehashing old arguments and are not intended to give an unhappy litigant
5 one additional chance to sway the judge.” Johnson, 2021 WL 4814986, at *3; see
6 also Motorola, Inc. v. J.B. Rodgers Mechanical Contractors, Inc., 215 F.R.D. 581,
7 582 (D. Ariz. 2003) (“Motions for reconsideration ... [not] to be used to ask the Court
8 to rethink what it has already thought [through—rightly or wrongly].”). Indeed, this
9 Court observed that Local Rule 7-18 “explicitly states … [that] ‘[n]o motion for
10 reconsideration shall in any manner repeat any oral or written argument made in
11 support of or in opposition to the original motion.’” McNeley, 2019 WL 4187376,
12 at *2, citing C.D. Cal. L.R. 7-18; see also Dragan, 2021 WL 3260605, at *1
13 (“Unhappiness with the outcome is not included within the rule ….”); accord Cent.
14 Registration Depository v. Fin. Indus. Regul. Auth., 2010 WL 11545217, at *1 (C.D.
15 Cal. July 8, 2010) (“A party cannot have relief under this rule merely because he or
16 she is unhappy with the judgment.”); United Westlabs, Inc. v. Seacoast Lab’y Data
17 Sys., Inc., 2010 WL 11515301, at *1 (C.D. Cal. Jan. 7, 2010) (same). Accordingly,
18 this Court has rejected similar reconsideration motions as the one at bar because they
19 “provide no newly discovered facts or change in law … [but] [r]ather … reiterate
20 [the litigant]’s arguments” from his previous submissions. McNeley, 2019 WL
21 4187376, at *2 (holding that reconsideration motions are “properly denied where
22 [they] merely present[] arguments previously raised”), citing Backlund v. Barnhart,
23 778 F.2d 1386, 1388 (9th Cir. 1985).
24 Having run out of the actual rules, Defendants fall back on the Court’s
25 supposed “inherent” powers to revise its previous orders “for cause seen to it to be
26 sufficient.” (Mot. at 2:20-25.) There are no authorities, however, supporting the
27 notion that Defendants’ unhappiness with the Court’s decision could qualify as such
28 a cause. This Court’s “sufficient” causes are specifically enumerated in Local Rule
5
1 7-18, which does not even provide for any kind of error as a valid basis to reconsider
2 the MSJ Order. In any event, “[a]s we have colorfully observed, [t]o be clearly
3 erroneous, a decision must strike us as wrong with the force of a five-week old,
4 unrefrigerated dead fish.” Martinez-Gonzalez v. Elkhorn Packing Co. LLC, 17 F.4th
5 875, 900 (9th Cir. 2021); see also Alaimalo v. United States, 645 F.3d 1042, 1060
6 (9th Cir. 2011) (“To be clearly erroneous, a decision must strike us as more than just
7 maybe or probably wrong; … [it] must be dead wrong.”), citing Parts & Elec.
8 Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988) (applying the
9 same standard to reconsideration motions). Defendants’ disagreement with the
10 Court’s reasoning simply does not rise to the occasion.
11 II. IT WOULD BE “UNPRECEDENTED” TO FILTER OUT
12 PLAINTIFFS’ SELECTION AND ARRANGEMENT OUT OF THEIR
SELECTION AND ARRANGEMENT
13
14 Assuming the Court reaches the merits of Defendants’ motion, it would
15 discover that there is none. According to the U.S. Supreme Court, the protected
16 expression in Plaintiffs’ work consists of their “choices as to selection and
17 arrangement,” and it is “these elements of the work [that] are eligible for copyright
18 protection.” Feist Publications, 499 U.S. at 348-49. Defendants’ labeling of these
19 choices as mere unprotected “ideas” is thus contrary to established law, 3 and their
20 proposed filtering out of “two phrases” (Mot. at 4:1-2) does not help them, since the
21 substantial similarity in the “choices as to selection an arrangement” between the
22
23 3
It also impermissibly ventures into the intrinsic test territory, see, e.g., Art
24 Attacks Ink, LLC v. MGA Ent., Inc., 2006 WL 8439847, at *4 (S.D. Cal. Nov. 1,
2006) (where “the designation of which elements are ‘stock’ elements … is a subject
25
of debate between the parties and their experts,” denying summary judgment based
26 on the conclusion that “[w]hether … [the] products have the same arrangement of
27 elements or simply are based upon a similar theme comes down to subjective
opinion. Therefore, several issues of material fact remain with regards to the
28 extrinsic test.”).
6
1 two works still remains and requires denial of summary judgment.

2 Feist is directly on point, as Defendants concede. (See Mot. at 6:20-24.)
3 Dealing with the selection and arrangement of a telephone book, the only reason the
4 court denied protection was that there was nothing unique in the selection and
5 arrangement at issue—plaintiff selected all the residents in the relevant service areas
6 and arranged the data alphabetically. But when another author of a similar phone
7 book decided to select data that was only of interest to Chinese Americans, the
8 Second Circuit, citing Feist, found the resulting compilation to be protected. See
9 Key Publications, Inc. v. Chinatown Today Pub. Enterprises, Inc., 945 F.2d 509, 515
10 (2d Cir. 1991). The court then proceeded to observe that if defendant copied “the
11 arrangement of over 260 categories under which businesses are catalogued and …
12 the selection of the 9000 businesses so categorized,” then “a finding of infringement
13 can be supported.” Id.
14 Here, out of the myriad of choices available to put together a chorus
15 expressing the basic idea that people will do what they do, while the protagonist
16 should stay true to herself, Defendants decided to appropriate all the Plaintiffs’
17 choices. As discussed, there are at least nine such choices that Defendants copied:
18 (1) just like Plaintiffs, they chose to express the idea in a four-part lyrical
19 structure;
20 (2) just like Plaintiffs, they arranged that structure out of tautological phrases;
21 (3) just like Plaintiffs, they chose to arrange those four tautological phrases
22 through parallel lyrics;
23 (4) just like Plaintiffs, they chose those tautological phrases that bear the
24 “Xers gonna X” structure, although there are plenty of other tautological phrases that
25 do not;
26 (5) just like Plaintiffs, they chose two of the four phrases to be variations on
27 the playa/hater phrases;
28 (6) just like Plaintiffs, they chose for those two variations on the playa/hater
7
1 phrases to open the chorus;

2 (7) just like Plaintiffs, they chose for the playa variation to be sequenced first;
3 (8) just like Plaintiffs, they chose for the hater variation to follow the playa
4 variation right after; and
5 (9) just like Plaintiffs, they chose all the four tautological phrases to feature
6 groups of “Xers” that bear certain negative connotations (as opposed to neutral or
7 positive actors, such as thinkers, dreamers, or swimmers).
8 This is certainly a far cry from a mere alphabetical arrangement. These are
9 specifically the kind of “elements” that make up a protected selection and
10 arrangement. It is Defendants’ copying of those elements that results in an
11 infringement claim. Cf. N. Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1035
12 (9th Cir. 1992) (reversing summary judgment: “If we were to accept the view that,
13 as a matter of law the differences in the placement of geometric shapes should be
14 regarded as trivial, we would be forced to conclude that Mondrian’s creativity with
15 geometric shapes ended with his first painting, and that he went on to paint the same
16 painting a thousand times. This is not the judgment of art history, and it cannot be
17 the correct judgment of a court as a matter of law.”).
18 The Ninth Circuit’s decision in ACT Grp., Inc. v. WaterFurnace Int’l, Inc.,
19 700 F. App’x 718 (9th Cir. 2017), is instructive. Dealing with words and phrases
20 appearing in plaintiff’s training manual, the court approved of a jury instruction that
21 imported “the central jury question of whether the manner in which the words were
22 selected and arranged was sufficiently creative to be an original expression subject
23 to copyright protection.” Id. at 718-19. The court rejected defendants’ complaint
24 that the trial court failed to instruct the jury that “expressions that are common, stock,
25 or standard to a particular matter are not protectable under copyright law.” Id. at
26 718. This is because the court found that defendants’ “requested additional language
27 would have sidetracked the jurors’ focus” on the correct issue “and improperly
28 changed the tenor of the charge ….” Id. at 719. Crucially, the Ninth Circuit
8
1 underscored here that “[e]ven though many common phrases already in the public
2 domain were used, ACT’s selection, arrangement, and expression of these words
3 and phrases were copyright protectable.” Id., citing Satava v. Lowry, 323 F.3d 805,
4 811 (9th Cir. 2003); see also Fodor v. Los Angeles Unified Sch. Dist., 2014 WL
5 12235424, at *12-13 (C.D. Cal. June 3, 2014) (concluding that the protected
6 elements were “[t]he authors’ manner of expression, analysis, structuring of material
7 and marshaling of facts, choice of words, and emphasis,” despite the work’s usage
8 of “ordinary words and word combinations”), citing, inter alia, Norse v. Henry Holt
9 & Co., 991 F.2d 563, 567 (9th Cir. 1993). The same result is embodied in the Court’s
10 MSJ Order here.
11 Defendants’ contention that these elements of Plaintiffs’ selection and
12 arrangement are nothing but unprotected “ideas or concepts” (Mot. at 6:11-15) is the
13 same as the rejected argument in JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910 (7th
14 Cir. 2007), where the court found that a similar notion “tried to shoehorn too much
15 into the ‘idea’” by attempting to reduce plaintiff’s particular expression of “a plush
16 doll that makes a farting sound and articulates jokes when its finger is activated” to
17 a mere concept rather than a combination of protected choices that selected and
18 arranged the doll’s features in a particular way:
19 Novelty urges that the similarity of the two dolls reflects the fact that
… [plaintiff’s expression, the Fred doll] is only minimally creative,
20
representing a combination of elements that were in the public domain
21 or were scènes à faire. The problem with this argument is that the very
combination of these elements as well as the expression that is Fred
22
himself are creative. Novelty wants us to take the entity that is Fred,
23 subtract each element that it contends is common, and then consider
whether Novelty copied whatever leftover components are creative.
24
But this ignores the fact that the details—such as the appearance of
25 Fred’s face or even his chair—represent creative expression. It is not
26 the idea of a farting, crude man that is protected, but this particular
embodiment of that concept. Novelty could have created another plush
27 doll of a middle-aged farting man that would seem nothing like Fred
28 [but it did not].
9
1 Id. at 916-17 (“We have no trouble concluding that the district court properly granted
2 partial summary judgment … [in plaintiff’s favor] on the issue of liability for
3 copyright infringement.”); see also Schmidt v. Baldy, 2019 WL 5389868, at *6 (C.D.
4 Cal. Oct. 19, 2019) (performing the “filtering out” analysis and, while declining to
5 “consider the sex or age of the characters in the drawings, their resemblance to
6 humans, the mere fact of exaggerated features, or the black outline and lack of
7 colors,” concluding that “where wavy hair alone may not be protectable, wavy hair
8 combined with a polka dotted dress, stilettos, and a smiling child smelling a flower
9 may form protectible expression…. Considering the selection and arrangement of
10 these elements in combination, the works are substantially similar under the
11 extrinsic test.”).
12 Indeed, the Ninth Circuit followed this very line of reasoning in L.A. Printex
13 Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841 (9th Cir. 2012), when presented with
14 two fabrics, each featuring small bouquets of flowers with one largest flower, both
15 largest flowers emerging from three buds, and both patterns featuring three-leaf
16 branches and flowers with similar shape and number of petals, arranged at similar
17 angles and coordinated using similar spacing. See id. at 850-51. It is in these
18 “protectible elements” that the Ninth Circuit found “objective similarities,”
19 concluding that the fabrics were substantially similar. Id. at 851. 4 The Ninth Circuit
20 did not go: oh, both fabrics just feature flower bouquets and stopped there. But that
21 is exactly what Defendants propose for the Court to do here, and this proposal was
22 correctly rejected.5
23
24
4
In fact, the court underscored that it was not extending protection to “ideas,”
which in that context were “flowers with brightly colored petals, stems, and buds”
25 but rather to plaintiff’s particular “stylized” expression of those ideas through “an
26 artistic combination of floral elements,” id. at 850 n.4.
27
5
Now that the Court saw Defendants’ numerosity challenge for what it was—
“a motion for reconsideration of the Ninth Circuit’s ruling” that Plaintiffs’ work is
28 plausibly original (MSJ Order at 7), Defendants switch tactics and contend that the
10
1 In fact, other courts confirm that Defendants’ rejection of Plaintiffs’ artistic

2 choices (as embodied in their selection and arrangement of words and phrases
3 through a combination of literary devices) as mere unprotected ideas and concepts
4 finds no support in copyright jurisprudence. Thus, the Second Circuit rejected the
5 same argument that plaintiff’s original contributions to the script, consisting of
6 supposedly “non-copyrightable stage directions and theatrical devices,” were
7 unprotected. Keeling v. Hars, 809 F.3d 43, 50-51 (2d Cir. 2015). “[C]opyright law
8 protects not only the individual elements themselves, but the creative choices made
9 in selecting and arranging even uncopyrightable elements.” Id. at 50. Accordingly,
10 while plaintiff “could not copyright the commonly used individual stage directions
11 and theatrical devices—e.g., the concept of drafting an audience member to play the
12 lead, the reliance on cue cards, or the use of squirt guns— … [plaintiff] has never
13 sought to do so. Rather, … [plaintiff]’s creative contribution, and thus her copyright,
14 is in the original way in which [she] has selected, coordinated, and arranged the[se]
15
16
creative elements that make Plaintiffs’ work original should be filtered out for
17 purposes of the substantial similarity analysis. Defendants cite no supporting
18 authority for this remarkable proposition, as all their cases on this point deal with
assessing a given work’s originality rather than its similarity to a later work. (See
19 Mot. at 8.) This is unsurprising, since Defendants propose to do exactly what the
20 Seventh Circuit rejected in Novelty—namely, “take the entity that is Fred, subtract
each element that it contends is common, and then consider whether Novelty copied
21
whatever leftover components are creative.” 482 F.3d at 916-17. In other words, to
22 borrow the elements at issue in L.A. Printex, filtering out flower bouquets (replaced
with phrases here) would still leave all the creative choices (at least nine, as shown
23
above) that make up the protected design (read: the four-part lyrical “sequence”
24 (Compl. ¶ 43)) that the Ninth Circuit deemed plausibly original here. The foregoing
discussion, of course, assumes that the numerosity requirement applies to lyrics as
25
opposed to lamps; however, as this Court already held, it does not. See Hall v. Swift,
26 2020 WL 5358390, at *3-4 (C.D. Cal. Sept. 2, 2020) (finding, inter alia, that
27 “Defendants’ argument regarding the number of unprotectable elements is still
foreclosed by the Ninth Circuit”), citing Shaw v. Lindheim, 919 F.2d 1353, 1360 (9th
28 Cir. 1990).
11
1 elements of ... her work ….” Id. at 51; accord Dr. Seuss Enterprises, L.P. v. Penguin
2 Books USA, Inc., 924 F. Supp. 1559, 1564 (S.D. Cal. 1996) (holding that plaintiff’s
3 selection of specific “literary devices represents several significant expressive
4 choices protected by copyright, and appropriated in their entirety in the infringing
5 work”), aff’d, 109 F.3d 1394 (9th Cir. 1997).
6 Defendants’ own authorities cited on this point further solidify the already
7 ample fundament underlying the Court’s MSJ Order. Thus, in Desire, LLC v. Manna
8 Textiles, Inc., 986 F.3d 1253, 1261 (9th Cir. 2021), the court rejected defendant’s
9 proposal to filter out plaintiff’s particular design of floral elements because it was
10 “similar to numerous floral motifs found in the public domain.” So what, said the
11 Ninth Circuit, just because the design is not “novel,” it does not mean it is not
12 “original” and thus protected. Id. Accordingly, plaintiff’s “original selection,
13 coordination, and arrangement of floral elements” that comprised its particular
14 design could not be copied. Id. Nowhere did the Ninth Circuit filter out the ways
15 of selecting, coordinating and arranging of the preexisting floral elements into the
16 protected design as mere ideas, which is what Defendants advocate here. See also
17 Unicolors, Inc. v. Urb. Outfitters, Inc., 853 F.3d 980, 985 (9th Cir. 2017) (same).
18 In the end, all Defendants are trying to do here is lure the Court into repeating
19 the same mistake as that of the district court in Situation Mgmt. Sys., Inc. v. ASP.
20 Consulting LLC, 560 F.3d 53, 61-62 (1st Cir. 2009), which, as the First Circuit
21 found, “lost sight of the expressiveness of the works as a whole by focusing too
22 closely on their noncopyrightable elements.” As the First Circuit further found, it
23 would be another mistake to limit the copyright protection “to little more than [the]
24 original text and formatting” because “the original selection and arrangement of
25 noncopyrightable elements is itself copyrightable;” accordingly, plaintiff’s “creative
26 choices in describing [its] processes and systems, including the works’ overall
27 arrangement and structure, are subject to copyright protection.” Id. The Court
28 should resist Defendants’ siren song and reject their unfounded challenge to the MSJ
12
1 Order.
2 III. THE TOTALITY OF THE SIMILARITIES BETWEEN THE
LYRICAL SEQUENCES AT ISSUE CANNOT BE “FILTERED OUT”
3
4 The result is the same when the works at issue are analyzed as lyrical
5 sequences. “A common pattern [that] is sufficiently concrete ... warrant[s] a finding
6 of substantial similarity.” Shaw, 919 F.2d at 1363. Indeed, as discussed in the
7 summary judgment briefing, “[t]he particular sequence in which an author strings a
8 significant number of unprotectable elements can itself be a protectable element.
9 Each note in a scale, for example, is not protectable, but a pattern of notes in a tune
10 may earn copyright protection.” Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir.
11 2002), overruled on other grounds by Skidmore as Tr. for Randy Craig Wolfe Tr. v.
12 Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020).6 It is this particular “sequence,” this
13 particular “pattern” (made up of at least nine elements set forth above) that
14 Defendants copied—and it is this “sequence/structure” that the Court correctly
15 compared when conducting its substantial similarity analysis. (MSJ Order at 9.)
16 Defendants’ argument that filtering out the underlying “public domain”
17 phrases would defeat substantial similarity (see Mot. at 4-5) had been rejected by
18 other courts long before this Court rejected it in the MSJ Order. As the Second
19 Circuit explained,
20 Though a cliche or an “ordinary” word-combination by itself will
frequently fail to demonstrate even the minimum level of creativity
21 necessary for copyright protection, such protection is available for the
22 “association, presentation, and combination of the ideas and thought
which go to make up the [author’s] literary composition.” 7 The
23
24 6
As Plaintiffs pointed out in their prior briefing, while the Skidmore court
25 overruled the “inverse ratio” rule applied in Metcalf, it left intact its substantial
26 similarity” analysis, since the Metcalf court applied the “inverse ratio” rule only to
“strengthen” plaintiff’s showing on substantial similarity, 294 F.3d at 1075, but it
27 was not dispositive on the issue.
28 7
Compare Mot. at 3 (presenting a directly contrary argument against Plaintiffs’
13
1 “ordinary” phrase may enjoy no protection as such, but its use in a

sequence of expressive words does not cause the entire passage to lose
2
protection. And though the “ordinary” phrase may be quoted without
3 fear of infringement, a copier may not quote or paraphrase the sequence
of creative expression that includes such a phrase.
4
***
5
In almost all of those instances where the quoted or paraphrased
6 passages from Salinger’s letters contain an “ordinary” phrase, the
7 passage as a whole displays a sufficient degree of creativity as to
sequence of thoughts, choice of words, emphasis, and arrangement to
8 satisfy the minimal threshold of required creativity. And in all of the
9 instances where that minimum threshold is met, the Hamilton
paraphrasing tracks the original so closely as to constitute
10 infringement.
11 Salinger v. Random House, Inc., 811 F.2d 90, 98-99 (2d Cir. 1987) (also holding
12 that an additional important consideration was that defendant’s copying and
13 paraphrasing was from the “heart of the book”); accord Skidmore, 952 F.3d at 1071
14 (observing that since “original work may include or incorporate elements taken from
15 prior works or works from the public domain,” the court below “correctly instructed
16 the jury that original expression can be the result of borrowing from previous works
17 or the public domain”); see also May v. Sony Music Ent., 399 F. Supp. 3d 169, 184
18 (S.D.N.Y. 2019) (finding that “use of a lyrical phrase from one song in another song
19 may in some instances be the basis for an infringement claim”). 8
20
21 infringement claim as based on “[t]wo [p]ublic [d]omain [p]hrases along with [i]deas
22 and [c]oncepts”).
8
Given May and other similar cases cited in Plaintiffs’ opposition brief during
23
summary judgment briefing, Defendants clearly overplay their hand when they
24 announce that “no other court” has blessed an infringement claim involving “the use
of two short public domain phrases” (Mot. at 2:4-7). But see Allen v. Destiny’s
25
Child, 2009 WL 2178676, at *9 (N.D. Ill. July 21, 2009) (rejecting summary
26 judgment as to claimed infringement based on defendant’s use of the phrase “cater
27 to you” in song lyrics where it expressed the same idea, which was “one of relieving
the stress from the significant other and getting them to relax”); Jarvis v. A & M
28 Recs., 827 F. Supp. 282, 292 (D.N.J. 1993) (holding that copying of, inter alia, “the
14
1 The Ninth Circuit precedent is the same. The Swirsky v. Carey court, having
2 held that “an arrangement of a limited number of notes can garner copyright
3 protection,” 376 F.3d at 841, 851 (9th Cir. 2004), did not then proceed to filter out
4 those notes and find no creative expression left to compare in the end. Similarly, in
5 Shaw, once the court determined that “[t]he most striking similarity [in the works’
6 characters] is their self-assuredness, and unshakeable faith in the satisfactory
7 outcome of any difficult situation,” it still considered the combination of these
8 unprotected elements as comprising “the totality of the similarities” for purposes of
9 the extrinsic test:
10 Although James Bond may have the … [same] demeanor and the
Ghostbusters may have their penchant for unpopular assignments, the
11
totality of the similarities between the two characters goes beyond the
12 necessities of the … theme and belies any claim of literary accident.
We find that defendants’ copying of the … [main] character and other
13
14
precise relationship of the phrases vis a vis each other” amounted to infringement,
15 despite the commonality of the phrases involved (“ooh,” “moves” and “free your
16 body”)); Positive Black Talk, Inc. v. Cash Money Recs., Inc., 2003 WL 1921999, at
*3-4 (E.D. La. Apr. 21, 2003) (denying defendants’ motion for summary judgment
17 on protectability as to the allegedly infringed song phrase “back that ass up,” despite
18 expert evidence that it was a popular club chant that was “relatively common in hip-
hop vernacular”); Santrayll v. Burrell, 1996 WL 134803, at *2 (S.D.N.Y. Mar. 25,
19 1996) (holding that “the repetition of the non-protectible word ‘uh-oh’ in a
20 distinctive rhythm” was protectable); Tin Pan Apple, Inc. v. Miller Brewing Co.,
1994 WL 62360, at *4 (S.D.N.Y. Feb. 24, 1994) (denying summary judgment on
21
infringement where defendant copied “Hugga-Hugga and Brrr sounds, used as lyrics
22 in the copyrighted work” because they “are sufficiently creative to warrant copyright
protection, quite apart from the rhythmic patterns or durations demonstrated by that
23
work and the commercial”); Bright Tunes Music Corp. v. Harrisongs Music, Ltd.,
24 420 F. Supp. 177, 178 (S.D.N.Y. 1976) (finding for plaintiff on the issue of
plagiarism and holding that “[w]hile neither motif is novel, the four repetitions of A,
25
followed by four repetitions of B, is a highly unique pattern”); accord Heim v.
26 Universal Pictures Co., 154 F.2d 480, 488 n.8 (2d Cir. 1946) (“There may be
27 wrongful copying, though small quantitatively,” for example, “if someone were to
copy the words, ‘Euclid alone has looked on Beauty bare,’ or ‘Twas brillig and the
28 slithy toves.’”).
15
1 characters extends to elements of protected expression. Because the

similarities between the principals in each script and among the other
2
common characters point to copying of more than a general theme or
3 plot idea, they support the district court’s finding that Shaw raised a
triable issue of fact regarding substantial similarity under the extrinsic
4
test.
5 919 F.2d at 1363. Similarly, when the Shaw court looked at the similarities in the
6 sequence of events, it observed that “[e]ven if none of these plot elements is
7 remarkably unusual in and of itself, the fact that both scripts contain all of these
8 similar events gives rise to a triable question of substantial similarity of protected
9 expression.” Id. (describing the common events to include “a criminal organization
10 that blackmails a candidate for public office,” that organization attempting to “kill a
11 prospective … client [of the main character], who has discovered their operation, by
12 means of an oncoming truck,” and the “uninvited … [main character] appear[ing] at
13 a party in a tuxedo”). Nowhere did the court “filter out” any given specific event
14 because it could be found in prior works—rather, it agreed with the district court that
15 defendant copied “a common sequence and rhythm” or a “pattern” made up of
16 preexisting literary elements, “which is sufficiently concrete so as to warrant a
17 finding of substantial similarity if it is common to both plaintiff’s and defendant’s
18 works.” Id.
19 In the same vein, the Metcalf court relied on Shaw to find that defendant’s
20 copying of the “common patterns” in which the similarities arise “help the Metcalfs
21 satisfy the extrinsic test.” 294 F.3d at 1074. Once again, the underlying elements
22 were unprotected—be it “the idea of an idealistic young professional choosing
23 between financial and emotional reward, or of love triangles among young
24 professionals that eventually become strained, or of political forces interfering with
25 private action”—but the court still held that “[t]he cumulative weight of these
26 similarities allows the Metcalfs to survive summary judgment,” even though “the
27 similarities proffered by the Metcalfs are not protectable when considered
28 individually; they are either too generic or constitute ‘scenes a faire.’” 294 F.3d at
16
1 1074. As such, the Metcalf court never completely discarded them for purposes of
2 the comparison—once they made up a “common pattern,” they still counted in their
3 totality. The same is true here.
4 Even Defendants’ own cases do not help them. Thus, in Cavalier v. Random
5 House, Inc., 297 F.3d 815 (9th Cir. 2002), the court filtered out “the general premise
6 of a child, invited by a moon-type character, who takes a journey through the night
7 sky and returns safely to bed to fall asleep.” Id. at 824. Here, the same process
8 would, at most, result in filtering out the idea of a female protagonist addressing
9 rumors. But none of the claimed nine sequencing choices that create the common
10 pattern here involves this kind of abstract generality. By contrast, what the Cavalier
11 court did address in finding substantial similarity were the particular expressive
12 choices involved in rendering the general idea of a built-in light. As the court
13 reasoned, “[a]lthough the concept of a built-in night light is not protectible under
14 copyright law, the choice of a smiling moon or star face with pinkish cheeks
15 surrounded by stars in a specific configuration, and situated above an encircled star
16 ‘on’ button, constitutes protectible expression.” Id. at 827; 9 see also Funky Films,
17 Inc. v. Time Warner Ent. Co., L.P., 462 F.3d 1072, 1081 (9th Cir. 2006) (filtering
18 out such general plot similarities as “the family-run funeral home, the father’s death,
19 and the return of the ‘prodigal son,’ who assists his brother in maintaining the family
20 business” and finding that beyond that, “[t]he stories do not share any detailed
21 sequence of events” or “concrete renderings specific” to plaintiff’s work).
22
9
The Tenth Circuit recently underscored the protectability of such choices
23
when dealing with a literary work in Craft Smith, LLC v. EC Design, LLC, 969 F.3d
24 1092, 1102-03 (10th Cir. 2020), by observing that “the LifePlanner’s original
selection, coordination, and arrangement of phrases, inspirational quotations,
25
holidays, and other numerical data qualify the LifePlanner compilation as a literary
26 work…. [The] protectable expression, for example, is the selection of the quotations
27 [of unoriginal text] … and the quotations’ arrangement on the pages immediately
after the ownership page.” Id. (concluding, however, that it was not that particular
28 selection that was ultimately copied).
17
1 As such, the Court’s finding of substantial similarity based on the totality of

2 the expressive choices that form a common pattern between the two lyrical works at
3 issue is well-grounded in supporting precedent.10 In other words, there are no valid
4 substantive grounds for the relief sought.
5 Because Defendants lack any valid procedural or substantive grounds for the
6
7 10
Defendants’ contention that the Court “did not identify” the claimed
8 differences between the works “or discuss them” has been rightfully relegated to a
footnote (Mot. at 5 n.3) because the applicable precedent clearly directs the Court to
9 focus its analysis on “articulable similarities” and whether their totality overcomes
10 the claimed differences. Metcalf, 294 F.3d at 1073; see also L.A. Printex, 676 F.3d
at 851 (concluding that given the many identifiable similarities, “the differences
11 support the opposite conclusion, that there is a genuine dispute of material fact on
12 substantial similarity”); Fodor, 2014 WL 12235424, at *13 n.15 (“Defendants’
contention that the Sixth Edition contains different protected elements than the
13 Current Work is unavailing as the issue is whether the Current Work copies protected
14 elements of the Sixth Edition, not the ways in which the works are dissimilar.”)
(original emphasis); accord Andreas Carlsson Prod. AB v. Barnes, 2016 WL
15 11499657, at *18 (C.D. Cal. Apr. 14, 2016) (concluding that “while there are
16 substantial differences between the works, there is sufficient similarity between
certain characters and plot elements of the works to create at least a triable issue
17 regarding whether [one] is substantially similar to the [other]”); Straughter v.
18 Raymond, 2011 WL 3651350, at *15-16 (C.D. Cal. Aug. 19, 2011) (denying
summary judgment and observing that plaintiff’s expert did not “completely ignore
19 the differences … [because he] ultimately concludes that those differences do not
20 impact his ultimate conclusion on similarity. Furthermore, to the extent [the expert]
does not identify certain dissimilarities between the works, such a failure is not fatal
21
to plaintiff’s case ….”). In fact, Defendants’ own authorities say so. See Benay v.
22 Warner Bros. Ent., 607 F.3d 620, 624 (9th Cir. 2010) (“The extrinsic test … focuses
on articulable similarities ….”); cf. Cavalier, 297 F.3d at 827 (“Despite the[]
23
differences, the striking similarities in the details of the subject matter, and
24 arrangement of the stars and the clouds, dress of the stars, and accompanying text
are sufficient to survive summary judgment on the question of substantial
25
similarity.”). This is exactly what the Court determined by concluding that despite
26 “some noticeable differences between the works, … there are enough objective
27 similarities amongst the works to imply that the Court cannot presently determine
that no reasonable juror could find substantial similarity” as to the protected
28 elements. (MSJ Order at 9.)
18
1 relief they seek, their motion should be denied in its entirety.

2 DATED: January 14, 2022 BY: GERARD FOX LAW P.C.
3
/s/ Marina Bogorad
4
5 Gerard P. Fox
Marina V. Bogorad
6
7 Attorneys for Plaintiffs
SEAN HALL D.B.A. GIMME SOME
8 HOT SAUCE MUSIC and NATHAN
9 BUTLER D.B.A. FAITH FORCE MUSIC
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Case 2:17-cv-06882-MWF-AS Document 112 Filed 01/14/22 Page 1 of 25 Page ID #:3045

1 GERARD FOX LAW P.C.

23 Desire, LLC v. Manna Textiles, Inc.,

1 Fodor v. Los Angeles Unified Sch. Dist.,

1 N. Coast Indus. v. Jason Maxwell, Inc.,

1 Plaintiffs’ “choices as to selection and arrangement” amount to the protected

1 [and] … poetic structure).)

1 two works still remains and requires denial of summary judgment.

1 phrases to open the chorus;

1 In fact, other courts confirm that Defendants’ rejection of Plaintiffs’ artistic

1 “ordinary” phrase may enjoy no protection as such, but its use in a

1 characters extends to elements of protected expression. Because the

1 As such, the Court’s finding of substantial similarity based on the totality of

1 relief they seek, their motion should be denied in its entirety.

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