Case 2:22-cv-01508-AB-AS Document 40-1 Filed 07/25/22 Page 1 of 22 Page ID #:263

1 Peter Anderson, Esq., Cal. Bar No. 88891

peteranderson@dwt.com
2 Sean M. Sullivan, Esq., Cal. Bar No. 229104
seansullivan@dwt.com
3 Eric H. Lamm, Esq., Cal. Bar No. 324153
ericlamm@dwt.com
4 DAVIS WRIGHT TREMAINE LLP
865 South Figueroa Street, 24th Floor
5 Los Angeles, CA 90017-2566
Tel: (213) 633-6800
6 Fax: (213) 633-6899
7 Attorneys for Defendants
SAMUEL SMITH, NORMANI KORDEI
8 HAMILTON, also sued as SONGS OF NKH,
JAMES NAPIER, TOR HERMANSEN and
9 MIKKEL ERIKSON, also sued as STARGATE,
UMG RECORDINGS, INC., UNIVERSAL
10 MUSIC GROUP, INC., SONY MUSIC
PUBLISHING (US) LLC, EMI BLACKWOOD
11 MUSIC INC., EMI APRIL MUSIC INC.,
SONY CORPORATION OF AMERICA,
12 45TH AND 3RD MUSIC LLC, TIM &
DANNY MUSIC LLC, and DOWNTOWN
13 MUSIC PUBLISHING LLC
14 UNITED STATES DISTRICT COURT
15 CENTRAL DISTRICT OF CALIFORNIA
16 WESTERN DIVISION
17 Sound and Color, LLC ) Case No. 2:22-cv-01508-AB-AS
)
18 Plaintiff, )
)
19 v. ) DEFENDANTS’ MEMORANDUM
) OF POINTS AND AUTHORITIES IN
20 Samuel Smith, Normani Kordei ) SUPPORT OF MOTION TO DISMISS
Hamilton, Stargate, Mikkel Storleer ) AND TO STRIKE
21 Eriksen, Tor Erik Hermansen, James )
John Napier, Universal Music Group, )
22 Universal Music Operations Limited )
UMG Recordings Inc., Sony Music ) Date: August 26, 2022
23 Group, Sony Corporation of America, ) Time: 10:00 a.m.
Sony/ATV Music Publishing LLC, )
24 Sony/ATV Music Publishing Ltd., ) Courtroom of the Honorable
Sony/ATV Songs LLC, EMI Music ) André Birotte, Jr.
25 Publishing LTD, EMI April Music Inc., ) United States District Judge
EMI Blackwood Music Inc., Downtown )
26 Music Publishing LLC, Salli Isaak Songs )
LTD, Naughty Words Limited, Songs of )
27 NKH, Stellar Songs Limited, Stellar )
(Continued on next page) )
28 )
Case 2:22-cv-01508-AB-AS Document 40-1 Filed 07/25/22 Page 2 of 22 Page ID #:264

1 Songs, Tim & Danny Music LLC, 45th & )

3rd Music LLC, )
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Defendants. )
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Case 2:22-cv-01508-AB-AS Document 40-1 Filed 07/25/22 Page 3 of 22 Page ID #:265

1 TABLE OF CONTENTS
2 Page

3 1. INTRODUCTION .............................................................................................. 1
4 (a) Summary of Argument.............................................................................1
5 (b) Summary of the Complaint’s Allegations ...............................................2
6
(1) Plaintiff’s 2015 Song, “Dancing with Strangers”..........................2
7
(2) Plaintiff’s Allegation that Defendants’ 2019 Dancing with a
8 Stranger Copies Plaintiff’s Song ...................................................3
9
(3) The Claims that Plaintiff Asserts ...................................................5
10
2. PLAINTIFF’S SECOND AND THIRD CLAIMS FOR RELIEF AND
11 CLAIMS FOR STATUTORY DAMAGES, ATTORNEY’S FEES AND
12 PUNITIVE DAMAGES SHOULD BE DISMISSED ....................................... 6
13 (a) The Standards Governing the Rule 12(b)(6) Motion to Dismiss .............6
14
(b) Plaintiff’s Claims for Contributory and Vicarious Copyright
15 Infringement Fail, Including Because Plaintiff Does Not Allege How
the Allegedly Direct Infringers Are Secondarily Liable..........................6
16
17 (1) Plaintiff’s Second Claim for Contributory Copyright
Infringement Fails as a Matter of Law ..........................................7
18
(2) Plaintiff’s Claim for Vicarious Infringement Also Fails .............10
19
20 (c) Plaintiff’s Claims for Statutory Damages, Attorney’s Fees, and
Punitive Damages Also Fail as a Matter of Law ...................................13
21
(1) A Rule 12(b)(6) Motion Is the Proper Procedure to Challenge
22
Requested Remedies ....................................................................13
23
(2) Plaintiff’s Failure to Timely Register Its Copyrights Bars its
24 Claims for Statutory Damages and Attorney’s Fees ...................13
25
(3) Punitive Damages Are Not Recoverable on a Copyright
26 Infringement Claim ......................................................................15
27 3. CONCLUSION ................................................................................................ 15
28
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Case 2:22-cv-01508-AB-AS Document 40-1 Filed 07/25/22 Page 4 of 22 Page ID #:266

1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4 A&M Records, Inc. v. Napster, Inc.,
5 239 F.3d 1004 (9th Cir. 2001) ....................................................................... 6, 8, 10
6 Ashcroft v. Iqbal,
556 U.S. 662 (2009) .................................................................................... 6, 10, 11
7
8 Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) ................................................................................ 6, 9, 10, 11
9
Benay v. Warner Bros. Entm’t,
10
607 F.3d 620 (9th Cir. 2010), overruled on other grounds by
11 Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d
1051 (9th Cir. 2020) ........................................................................................ 3, 4, 5
12
13 Bucklew v. Hawkins, Ash, Baptie & Co., LLP.,
329 F.3d 923 (7th Cir. 2003) ................................................................................. 15
14
15 Derek Andrew, Inc. v. PoofApparel Corp.,
528 F.3d 696 (9th Cir. 2008) ................................................................................. 14
16
eCash Tech. v. Guargliardo,
17 127 F. Supp. 2d 1069 (C.D. Cal. 2000) ................................................................... 6
18
Erickson v. Blake,
19 839 F. Supp. 2d 1132 (D. Or. 2012) ........................................................................ 2
20 Granite Music Corp. v. United Artists Corp.,
21 532 F.2d 718 (9th Cir. 1976) ................................................................................... 4
22 Gray v. Hudson,
23 28 F.4th 87 (9th Cir. 2022) ...................................................................................... 4

24 Ileto v. Glock. Inc.,

349 F.3d 1191 (9th Cir. 2003) ................................................................................. 6
25
26 In re NVIDIA Corp. Sec. Litig.,
768 F.3d 1046 (9th Cir. 2014) ............................................................................... 14
27
28
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Case 2:22-cv-01508-AB-AS Document 40-1 Filed 07/25/22 Page 5 of 22 Page ID #:267

1 In re Toyota Motor Corp. Unintended Acceleration Litig.,

754 F. Supp. 2d 1145 (C.D. Cal. 2010) ................................................................. 13
2
Luvdarts, LLC v. AT & T Mobility, LLC,
3 710 F.3d 1068 (9th Cir. 2013) ............................................................. 7, 8, 9, 10, 12
4
Perfect 10, Inc. v. Giganews, Inc.,
5 847 F.3d 657 (9th Cir. 2017) ................................................................. 6, 7, 8, 9, 12
6 Perfect 10, Inc. v. Visa Int’l Serv. Ass’n,
7 494 F.3d 788 (9th Cir. 2007) ........................................................................... 7, 8, 9
8 Polar Bear Prods., Inc. v. Timex Corp.,
9 384 F.3d 700 (9th Cir. 2004) ................................................................................. 15

10 Por Los Rios, Inc. v. Lions Gate Entm’t, Inc., No. 2:13-CV-7640-CBM-
PLA,
11
2014 WL 12605374 (C.D. Cal. May 21, 2014)..................................................... 14
12
Silvers v. Sony Pictures Entm’t, Inc.,
13 402 F.3d 881 (9th Cir. 2005) ................................................................................. 15
14
Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d
15 1051 (9th Cir. 2020) ............................................................................................ 4, 5
16 Smith v. Weeknd, No. CV 19-2507 PA (MRWX),
17 2019 WL 6998666 (C.D. Cal. Aug. 23, 2019) .................................................... 2, 8

18 Smith v. Weeknd, No. CV 19-2507 PA (MRWX),

2020 WL 4932074 (C.D. Cal. July 22, 2020), aff’d sub nom. Clover
19
v. Tesfaye, No. 20-55861, 2021 WL 4705512 (9th Cir. Oct. 8, 2021) .................... 4
20
Three Boys Music Corp. v. Bolton,
21 212 F.3d 477 (9th Cir. 2000), overruled on other grounds by
22 Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d
1051 (9th Cir. 2020) ............................................................................................ 4, 5
23
VMG Salsoul, LLC v. Ciccone,
24
824 F.3d 871 (9th Cir. 2016) ............................................................................... 2, 4
25
Whittlestone, Inc. v. Handi-Craft Co.,
26 618 F.3d 970 (9th Cir. 2010) ................................................................................. 13
27
YellowCake, Inc. v. DashGo, Inc., No. 1:21-CV-0803 AWI BAM,
28 2022 WL 172934 (E.D. Cal. Jan. 19, 2022) .......................................................... 15
iii
Case 2:22-cv-01508-AB-AS Document 40-1 Filed 07/25/22 Page 6 of 22 Page ID #:268

1 Statutes

2 17 U.S.C.
§ 106 ........................................................................................................................ 6
3 § 114 ........................................................................................................................ 4
4 § 114(b).................................................................................................................... 4
§ 412 ................................................................................................................ 13, 14
5 §§ 502-05 ............................................................................................................... 15
6 § 504 .................................................................................................................. 5, 13
§ 504(c)(1) ............................................................................................................. 13
7 § 505 ...................................................................................................................... 13
8
Rules
9
Federal Rules of Civil Procedure
10
Rule 8 ..................................................................................................................... 10
11 Rule 10(c) .............................................................................................................. 14
Rule 12(b)(6) ....................................................................................... 6, 7, 8, 13, 14
12
Rule 12(f) ............................................................................................................... 13
13
Other Authorities
14
MELVILLE NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT (1999) ...................... 5
15
16 MELVILLE NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT (2022) ...... 2, 4, 14, 15

17
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Case 2:22-cv-01508-AB-AS Document 40-1 Filed 07/25/22 Page 7 of 22 Page ID #:269

1 MEMORANDUM OF POINTS AND AUTHORITIES

2 1. INTRODUCTION
3 (a) Summary of Argument
4 Plaintiff Sound and Color, LLC’s Complaint is rambling, repetitive, and filled
5 with argument, and there are fundamental problems with the underlying allegation
6 that Plaintiff’s claimed copyrights in a song have been infringed. Some of those
7 fundamental problems are identified below. However, Defendants’ Motion raises
8 different and clear defects in Plaintiff’s claims.
9 Plaintiff’s first claim for relief alleges that all Defendants are direct infringers.
10 However, Plaintiff’s second and third claims allege that all Defendants also are
11 secondarily liable as contributory and vicarious infringers. The second and third
12 claims fail as a matter of law because, by definition, an alleged direct infringer cannot
13 be secondarily liable for the same alleged infringement, and also because the second
14 and third claims are based solely on the Complaint’s verbatim repetition of conclusory
15 allegations, stripped of any facts making the claims plausible as to any Defendant, and
16 failing to even identify for whom and why Defendants are supposedly secondarily
17 liable. Under established pleading rules, each Defendant is entitled to notice of the
18 basis on which Plaintiff alleges he, she, or it is not only a direct infringer, but also
19 secondarily liable for the alleged infringement of unidentified others. Accordingly,
20 these claims are properly dismissed. See below at 6-12.
21 In addition, Plaintiff includes in its Complaint claims for statutory damages and
22 attorney’s fees. However, Plaintiff’s Complaint establishes that the alleged
23 infringement commenced in January 2019 and that Plaintiff did not register the
24 allegedly infringed copyrights with the U.S. Copyright Office until May 2019.
25 Because the allegedly infringed copyrights were not registered before the alleged
26 infringement commenced, statutory damages and attorney’s fees are not potential
27 remedies, and these claims are properly dismissed. See below at 13-14. Plaintiff also
28 includes in its Complaint a claim for punitive or exemplary damages. But that claim
1
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1 fails as a matter of law because punitive damages are not recoverable for alleged
2 copyright infringement. See below at 15. Accordingly, it also is properly dismissed.
3 Moreover, these defects are not only plain on the face of the Complaint but also
4 are known to Plaintiff’s Pennsylvania counsel: in 2019 they filed in this District Court
5 a complaint with the exact same defects, and the defendants’ motion to dismiss those
6 claims was granted.1 Yet, despite that ruling and the underlying established law upon
7 which that ruling was based, Plaintiff’s counsel has refused to amend Plaintiff’s
8 Complaint to address the following defects.
9 Defendants respectfully submit that their Motion should be granted.
10 (b) Summary of the Complaint’s Allegations
11 Solely for the purposes of this Motion, the Complaint’s properly pleaded
12 allegations, although strenuously disputed, are taken as true.
13 (1) Plaintiff’s 2015 Song, “Dancing with Strangers”
14 Plaintiff claims ownership of the copyrights in a sound recording and the
15 composition embodied in that sound recording, referred to as “Dancing with
16 Strangers” (“Plaintiff’s Song”), which Plaintiff alleges was created in 2015 by Jordan
17 Vincent and Christopher Miranda. Complaint (Doc. 1) at 1, ¶¶ 5-7, 12, ¶ 64.2 That
18 same year, a music video of a performance of Plaintiff’s Song was shot. Id. at 2, ¶ 8.
19 Plaintiff’s Song and the music video apparently were never released by a record
20 company and, instead, Plaintiff alleges they were pitched in the industry and
21
1
22 See Smith v. Weeknd, No. CV 19-2507 PA (MRWX), 2019 WL 6998666, at *3
(C.D. Cal. Aug. 23, 2019).
23 2
“Sound recordings and musical compositions are separate works with their own
24 distinct copyrights.” VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 877 (9th Cir. 2016)
(quoting Erickson v. Blake, 839 F. Supp. 2d 1132, 1135 n.3 (D. Or. 2012)). “The
25
distinction may be summed up as the difference between a copyright in a Cole Porter
26 song, and copyright in Frank Sinatra’s recorded performance of that song. The former
would be a musical work copyright and the latter would be a sound recording
27
copyright, although both may be embodied in the same phonorecord.” 1 MELVILLE
28 NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 4.06 n.1 (2022).
2
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1 Plaintiff’s Song was posted on YouTube and elsewhere on the Internet. Id. at 2, ¶¶ 9-
2 10.
3 (2) Plaintiff’s Allegation that Defendants’ 2019 Dancing with a
4 Stranger Copies Plaintiff’s Song
5 In 2019, the song Dancing with a Stranger featuring Sam Smith and Normani
6 Kordei Hamilton (“Dancing with a Stranger”) was released and became extremely
7 successful. Complaint at 1, ¶¶ 1, 4. Plaintiff alleges that Dancing with a Stranger
8 copies the title, “Dancing with Strangers,” and music of Plaintiff’s Song. See, e.g., id.
9 at 1, ¶ 2. However, the claim relies on hyperbole and ignores established circuit law.
10 As for the titles, they are not only different but, in any event, titles are not
11 protectable.3 Moreover, Plaintiff attaches to its Complaint a claimed expert report
12 confirming that before Plaintiff’s song there were other songs with such titles,
13 including Cyndi Lauper’s 1989 Dancing with a Stranger. Id. at Exh. 2 at 7.4
14 As for music, Plaintiff alleges that the choruses of Dancing with a Stranger and
15 Plaintiff’s Song include “a nearly identical melody and musical composition” and the
16 two songs’ lyrics and musical composition “are all the same.” Id. at 1, ¶ 2. However,
17 Plaintiff’s allegations are repudiated by the claimed expert report attached to
18 Plaintiff’s Complaint.
19 For example, that report includes what it describes as a transcription of the
20 relevant music transposed to the same key and which shows eight notes in Dancing
21 with a Stranger and nine notes in Plaintiff’s song. Even as transcribed by Plaintiff’s
22 expert, only the first and sixth notes are the same. Id. at Exh. 2 at 5. Given that an
23
24 3
Benay v. Warner Bros. Entm’t, 607 F.3d 620, 628 (9th Cir. 2010), overruled on
25 other grounds by Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952
26 F.3d 1051 (9th Cir. 2020).
4
Indeed, a search of the U.S. Copyright Office’s online database reveals multiple
27
songs and other works with the titles “Dancing with Strangers” or “Dancing with a
28 Stranger.” See U.S. Copyright Office Records Search.
3
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1 uninterrupted sequence of four notes is not protected by copyright,5 two non-

2 contiguous notes cannot be protected.6 Further, the report—rather than supporting the
3 Complaint’s allegation of “nearly identical melody”—acknowledges the melodies are
4 different and instead claims similarity in “melodic contour” and rhythm. Id.
5 However, melodic contour, or the shape of a melody, is too abstract to protect by
6 copyright, and the claimed similar rhythm is largely repeated eighth notes, which also
7 is not protected.7 Remarkably, the report confirms the chord progressions in Dancing
8 with a Stranger and Plaintiff’s Song are different, but argues that “rotation of the
9 chords”—that is, changing them—can make them “almost identical.” Id. at Exh. 2 at
10 3. In any event, finding similarity in the chord progressions by changing them does
11 no good because chord progressions also are not protected.8
12 Also, Plaintiff alleges that Dancing with a Stranger infringes both Plaintiff’s
13 claimed musical composition and sound recording copyrights. See, e.g., id. at 32, ¶
14 226-27. However, sound recording copyrights protect only against the recapture of
15 “the actual sounds fixed in the sound recording.”9 Yet nowhere in Plaintiff’s
16
17
5
18 Skidmore, 952 F.3d at 1071 (holding that copyright does not protect sequence
of three notes, and reaffirming prior holding that “‘a four-note sequence common in
19 the music field’ is not the copyrightable expression in a song.” (quoting Granite Music
20 Corp. v. United Artists Corp., 532 F.2d 718, 721 (9th Cir. 1976))).
6
In fact, Plaintiff’s expert’s reliance on three non-contiguous notes in another
21
case was rejected by the Court. Smith v. Weeknd, No. CV 19-2507 PA (MRWX),
22 2020 WL 4932074, at *6 (C.D. Cal. July 22, 2020), aff’d sub nom. Clover v. Tesfaye,
No. 20-55861, 2021 WL 4705512 (9th Cir. Oct. 8, 2021).
23
7
Gray v. Hudson, 28 F.4th 87, 99 (9th Cir. 2022).
24 8
Gray, 28 F.4th at 100.
25 9
17 U.S.C. § 114(b); VMG Salsoul, 824 F.3d at 883 (“A new recording that
26 mimics the copyrighted recording is not an infringement, even if the mimicking is
very well done, so long as there was no actual copying.”); 2 NIMMER ON COPYRIGHT
27
§ 8.05[A] (Section 114 “limit[s] the right of reproduction [of sound recordings] to the
28 recapture of the original sounds”).
4
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1 Complaint or its attached report are any supposedly recaptured actual sounds
2 identified.
3 Aside from the Complaint’s hyperbole—negated by its attached report—as to
4 supposedly identical music, Plaintiff spends much of the Complaint speculating as to
5 how the creators of Dancing with a Stranger might have learned of Plaintiff’s Song.10
6 Plaintiff even claims support in that both songs’ music videos include a woman
7 dancing alone (id. at 3-4, ¶¶ 20-21), even though that has been seen in countless music
8 videos before Plaintiff’s Song.
9 (3) The Claims that Plaintiff Asserts
10 Plaintiff’s Complaint asserts “cause[s] of action,” each expressly “Against All
11 Defendants,” for (1) direct copyright infringement, (2) contributory copyright
12 infringement, and (3) vicarious copyright infringement. Complaint at 31-34, ¶¶ 218-
13 40. However, in asserting all three claims against all Defendants, Plaintiff’s
14 Complaint relies on general allegations without identifying what each Defendant
15 supposedly did or did not do, or for whose infringements they are supposedly liable.
16 Also, in a Prayer mislabeled “Claims for Relief,” Plaintiff “demands,” inter
17 alia, statutory damages pursuant to 17 U.S.C. Section 504, attorney’s fees, and
18 punitive damages. Complaint at 34, ¶¶ (c), (g) & (i).
19 ///
20 ///
21 ///
22
23 10
Of course, “[a]ccess may not be inferred through mere speculation or
24 conjecture.” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000)
(quoting 4 MELVILLE NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 13.02[A]
25
(1999)), overruled on other grounds by Skidmore, 952 F.3d 1051. Moreover, with
26 Skidmore’s abandonment of the so-called inverse ratio rule, access is irrelevant if a
plaintiff cannot prove substantial similarity in protected expression under this
27
Circuit’s extrinsic test. Skidmore, 952 F.3d at 1069 (“[A]ccess . . . in no way can
28 prove substantial similarity”).
5
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1 2. PLAINTIFF’S SECOND AND THIRD CLAIMS FOR RELIEF AND

2 CLAIMS FOR STATUTORY DAMAGES, ATTORNEY’S FEES AND
3 PUNITIVE DAMAGES SHOULD BE DISMISSED
4 (a) The Standards Governing the Rule 12(b)(6) Motion to Dismiss
5 A Federal Rule of Civil Procedure 12(b)(6) motion “tests the legal sufficiency
6 of the claims asserted in the complaint.” Ileto v. Glock. Inc., 349 F.3d 1191, 1199-
7 1200 (9th Cir. 2003). While “[t]he Court must accept as true all material allegations
8 in the complaint, as well as reasonable inferences to be drawn from them” (eCash
9 Tech. v. Guargliardo, 127 F. Supp. 2d 1069, 1074 (C.D. Cal. 2000)), the plaintiff must
10 plead “more than labels and conclusions, and a formulaic recitation of the elements of
11 a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
12 (2007). Instead, “[t]o survive a motion to dismiss, a complaint must contain sufficient
13 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
14 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Twombly, 550 U.S. at 570. “A
15 claim has facial plausibility when the plaintiff pleads factual content that allows the
16 court to draw the reasonable inference that the defendant is liable for the misconduct
17 alleged.” Iqbal, 556 U.S. at 678.
18 (b) Plaintiff’s Claims for Contributory and Vicarious Copyright
19 Infringement Fail, Including Because Plaintiff Does Not Allege How
20 the Allegedly Direct Infringers Are Secondarily Liable
21 There are fundamental and important differences between direct copyright
22 infringement, contributory copyright infringement, and vicarious copyright
23 infringement. A direct copyright infringement claim is based on pleading, inter alia,
24 “that the alleged infringers violated at least one exclusive right granted to copyright
25 holders under 17 U.S.C. § 106.” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 666
26 (9th Cir. 2017) (“Giganews”) (quoting A&M Records, Inc. v. Napster, Inc., 239 F.3d
27 1004, 1013 (9th Cir. 2001)). That is what Plaintiff pleads as its first claim for relief,
28 “Against All Defendants.” Complaint at 31:4, & 31-32, ¶¶ 219, 226.
6
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1 In contrast, contributory and vicarious infringement are forms of secondary

2 liability for another’s infringement. Yet, Plaintiff’s Complaint also alleges claims
3 against “All Defendants” for contributory and vicarious infringement. Plaintiff
4 thereby impermissibly (1) alleges that all Defendants are both directly and secondarily
5 liable for the same alleged infringement; (2) fails to provide each Defendant with
6 notice of how, and for what alleged direct infringements, he, she, or it are supposedly
7 secondarily liable; and (3) relies on bare legal conclusions without any factual content.
8 (1) Plaintiff’s Second Claim for Contributory Copyright
9 Infringement Fails as a Matter of Law
10 Contributory copyright infringement is “a form of secondary liability” and
11 applies if a defendant “(1) has knowledge of another’s infringement and (2) either (a)
12 materially contributes to or (b) induces that infringement.” Giganews, 847 F.3d at
13 670 (quoting Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 795 (9th Cir.
14 2007)). Importantly, conclusory allegations are insufficient to state a claim for
15 contributory copyright infringement. Luvdarts, LLC v. AT & T Mobility, LLC, 710
16 F.3d 1068, 1072 (9th Cir. 2013) (Rule 12(b)(6) dismissal affirmed).
17 Plaintiff’s second claim is for contributory infringement and asserted “Against
18 All Defendants,” but it incorporates all prior allegations, including Plaintiff’s
19 allegations that “All Defendants” are direct infringers. Complaint at 32: 23, & 32-33,
20 ¶¶ 230-32. Moreover, the body of the second claim does not distinguish among
21 Defendants or otherwise allege how they can be both direct and contributory
22 infringers. Instead, Plaintiff merely characterizes the elements of contributory
23 infringement and then adds the conclusory allegation that the elements are satisfied:
24 “231. To state a claim for contributory copyright infringement a
25 plaintiff must show that the defendants induced, caused, materially
26 contributed to, and participated in the infringement of Plaintiff’s
27 copyrighted song, ‘Dancing With a Stranger.’
28 ///
7
Case 2:22-cv-01508-AB-AS Document 40-1 Filed 07/25/22 Page 14 of 22 Page ID #:276

1 “232. Defendants had and have knowledge of the ongoing

2 infringing activity that is the subject of this lawsuit—the use of ‘Dancing
3 With A Stranger’ in ‘Dancing With A Stranger’—and have induced and
4 materially contributed to the infringing conduct of the direct infringers of
5 Plaintiff’s copyrighted song.”
6 Complaint at 32-33, ¶¶ 231-32.
7 As an initial defect, Plaintiff’s claim fails because, by definition, a defendant
8 cannot be—as the Complaint alleges—both directly and contributorily liable for the
9 same infringement. That is so because contributory infringement is a secondary
10 liability theory that imposes liability for “another’s infringement.” Giganews, 847
11 F.3d at 670 (quoting Perfect 10, 494 F.3d at 795; emphasis added); A&M Records,
12 239 F.3d at 1013 n.2 (“Secondary liability for copyright infringement does not exist
13 in the absence of direct infringement by a third party”); see, also Smith, 2019 WL
14 6998666, at *3 (“[A] defendant cannot be secondarily liable for that defendant’s own
15 direct infringement.”). Moreover, Plaintiff’s allegation in paragraph 232 that
16 Defendants, the alleged direct infringers, “have induced and materially contributed to
17 the infringing conduct of the direct infringers”—that is, themselves—is nonsensical.
18 In addition, Plaintiff’s claim for contributory infringement fails to notify each
19 Defendant of the identity of the alleged direct infringer that he, she, or it supposedly
20 induced or helped to infringe, and how he, she, or it supposedly induced or helped that
21 unidentified alleged direct infringer to infringe. Further, to survive a Rule 12(b)(6)
22 motion, a claim for contributory infringement must include factual content
23 establishing that the contributory infringer “had the necessary specific knowledge of
24 infringement ….” Luvdarts, 710 F.3d at 1074. However, Plaintiff’s claim merely (1)
25 paraphrases the claim’s required elements (paragraph 231) and then (2) alleges
26 “Defendants had and have knowledge of the ongoing infringing activity … and have
27 induced and materially contributed to the infringing conduct of the direct infringers”
28 ///
8
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1 (paragraph 232). That is just the “formulaic recitation of the elements of a cause of
2 action [and] will not do.” Twombly, 550 U.S. at 555.
3 The failings of the second claim are not cured by Plaintiff’s incorporation of
4 the Complaint’s preceding allegations. Instead, those preceding allegations simply
5 copy and paste the same conclusory and self-contradicting allegations as to each
6 Defendant.
7 For example, Plaintiff alleges that Mr. Smith directly infringed and that he
8 “materially contributed and caused the infringement by, including but not limited to,
9 promoting, distributing, and selling the infringing song ‘Dancing with a Stranger’
10 and/or permitting its use.” Complaint at 13, ¶¶ 71, 73. Those are alleged direct
11 infringements, and nowhere does Plaintiff identify “another’s infringement” that Mr.
12 Smith supposedly “materially contribute[d] to or … induce[d].”Giganews, 847 F.3d
13 at 670 (quoting Perfect 10, 494 F.3d at 795). Further, Plaintiff relies on the same
14 conclusory and incomplete language in charging each of the other individual
15 Defendants,11 as well as each of the entity Defendants,12 with contributory
16 infringement.
17 Plaintiff fares no better with the requirement that it plead factual content
18 establishing that each Defendant “had the necessary specific knowledge of [another’s]
19 infringement.” Luvdarts, 710 F.3d at 1074. Plaintiff alleges only that each Defendant
20 “knew of the infringement,” a bare assertion that the Complaint repeats twenty-four
21 times. See Complaint at 13-28. However, “conclusory allegations that [a defendant]
22 had the requisite knowledge of infringement are plainly insufficient.” Luvdarts, 710
23 F.3d at 1072. By way of example, only, Plaintiff fails to allege any basis for claiming
24 that any of the entity Defendants, or any individual Defendant not involved in the
25
11
26 See, Complaint at 14-17, ¶¶ 84, 86, 91, 93, 97, 99, 103, 105, 109, 111.
12
See, id. at 17-28, ¶¶ 115, 117, 120, 122, 125, 127, 131, 133, 136, 138, 142, 144,
27
147, 149, 153, 155, 159, 161, 165, 167, 171, 173, 177, 179, 181, 183, 186, 188, 191,
28 193, 196, 198, 201, 203, 207, 209.
9
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1 creation of the allegedly infringing chorus or without access to Plaintiff’s Song, “knew
2 of the infringement.”
3 As a result, the Complaint, even taken as a whole, does not provide any
4 Defendant with notice of what he, she, or it supposedly did to be contributorily liable;
5 notice of the identity of the person or entity whose direct infringement he, she, or it
6 supposedly materially contributed to or induced; or notice of how he, she, or it
7 supposedly obtained a specific financial benefit. As a general pleading matter, the
8 conclusory use of contributory infringement “labels and conclusions” is not sufficient.
9 Twombly, 550 U.S. at 555; see, also, Iqbal, 556 U.S. at 678 (complaint must provide
10 the defendant fair notice of the basis of the claim).
11 Neither can Plaintiff excuse its conclusory contributory infringement claim by
12 arguing it needs discovery to determine if there are facts entitling it to sue anyone for
13 contributory infringement. “Rule 8 [of the Federal Rules of Civil Procedure] does not
14 unlock the doors of discovery for a plaintiff armed with nothing more than
15 conclusions.” Iqbal, 556 U.S. at 678-79. If Plaintiff does not have a factual basis to
16 sue a Defendant for contributory infringement, Plaintiff is not allowed to assert that
17 claim against that Defendant.
18 Plaintiff’s second claim for contributory copyright infringement impermissibly
19 relies on conclusory allegations indiscriminately repeated verbatim as to each and
20 every Defendant. Accordingly, this claim should be dismissed.
21 (2) Plaintiff’s Claim for Vicarious Infringement Also Fails
22 Plaintiff’s third claim also incorporates all prior allegations but is for vicarious
23 copyright infringement. Complaint at 33-34, ¶¶ 235-40. “Vicarious copyright
24 liability is an ‘outgrowth’ of respondeat superior [and] requires that the defendant had
25 both the (1) ‘right and ability to supervise the infringing activity’ and (2) ‘a direct
26 financial interest’ in the activity.” Luvdarts, 710 F.3d at 1071 (quoting A & M
27 Records, 239 F.3d at 1022). Conclusory allegations also are insufficient to state a
28 claim for vicarious copyright infringement. Luvdarts, 710 F.3d at 1071-72.
10
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1 Once again, the body of the Complaint’s third claim does not distinguish among
2 Defendants. It also does not allege how Defendants can be both direct and vicarious
3 infringers. And once again, Plaintiff merely paraphrases the elements of the claim
4 and alleges they apply to all Defendants:
5 “236. To state a claim for vicarious copyright infringement the
6 defendants must vicariously profit from the direct infringement while
7 declining to exercise a right to stop or limit the direct infringement.
8 “237. Here, all Defendants profit from the dissemination, sale,
9 distribution, and licensing of the infringing song ‘Dancing With A
10 Stranger.’
11 “238. Furthermore, Defendants, as producers, publishers,
12 songwriters, and copyright holders, all have control over the
13 dissemination, sale, distribution, and licensing of the infringing song
14 ‘Dancing With A Stranger.’”
15 Complaint at 33, ¶¶ 236-38.
16 The third claim suffers from the same initial defect that one cannot be both
17 directly and secondarily liable for the same alleged infringement. See above at 8. In
18 addition, the third claim also just relies on “labels and conclusions” (Twombly, 550
19 U.S. at 555) without providing each Defendant “fair notice of the basis of the claim”
20 asserted against him, her, or it (Iqbal, 556 U.S. at 678).
21 The deficiencies of Plaintiff’s third claim also are not cured by its incorporation
22 of the Complaint’s preceding allegations. Those preceding allegations repeat as to
23 each Defendant the conclusory allegations that he, she, or it “had the right and ability
24 to control or stop the infringing conduct but failed to do so” and has “received
25 significant financial benefits as a result of the infringement.”13 Nowhere does the
26
27
13
See, Complaint at 13-28, ¶¶ 72, 74, 85, 87, 92, 94, 98, 100, 104, 106, 110, 112,
28 116, 118, 121, 123, 126, 128, 132, 134, 137, 139, 143, 145, 148, 150, 154, 156, 160,
11
Case 2:22-cv-01508-AB-AS Document 40-1 Filed 07/25/22 Page 18 of 22 Page ID #:280

1 Complaint, for example, provide notice to any Defendant of the identity of the person
2 or entity for whose alleged direct infringement the Defendant is supposedly
3 vicariously liable.
4 Further, a vicarious infringement claim must allege factual content supporting
5 that the allegedly vicariously liable defendant had the right and ability to supervise the
6 alleged infringing activity. Luvdarts, 710 F.3d at 1071-72. Plaintiff’s third claim
7 alleges that Defendants, “as producers, publishers, songwriters, and copyright holders,
8 all have control over the dissemination, sale, distribution, and licensing of” Dancing
9 with a Stranger. Complaint at 33, ¶ 238. But that does not mean that any particular
10 Defendant had the right to control any particular use, let alone some unidentified use
11 by some unidentified user.
12 In addition, a claim for vicarious infringement must provide factual content
13 establishing “a causal link between the infringing activities and a financial benefit to”
14 the vicariously liable defendant. Giganews, 847 F.3d at 673. By failing to identify
15 the alleged direct infringer, and also by failing to identify the relationship between
16 that Defendant and the allegedly vicariously liable Defendant, the Complaint fails to
17 plead the required causal link between any direct infringer and a financial benefit to
18 any allegedly vicariously liable Defendant.
19 Plaintiff’s third claim for vicarious copyright infringement ignores that a
20 defendant cannot be both directly and secondarily liable for the same alleged
21 infringement and also impermissibly relies on conclusory allegations indiscriminately
22 repeated verbatim as to each and every Defendant. This claim should be dismissed.
23 ///
24 ///
25 ///
26
27
162, 166, 168, 172, 174, 177, 179, 182, 184, 187, 189, 192, 194, 197, 199, 202, 204,
28 208, 210.
12
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1 (c) Plaintiff’s Claims for Statutory Damages, Attorney’s Fees, and

2 Punitive Damages Also Fail as a Matter of Law
3 (1) A Rule 12(b)(6) Motion Is the Proper Procedure to Challenge
4 Requested Remedies
5 Allegations and prayers for relief that is unavailable as a matter of law are
6 properly challenged by a Rule 12(b)(6) motion to dismiss rather than a Rule 12(f)
7 motion to strike. Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974-75 (9th Cir.
8 2010); In re Toyota Motor Corp. Unintended Acceleration Litig., 754 F. Supp. 2d
9 1145, 1169-70 (C.D. Cal. 2010).14
10 (2) Plaintiff’s Failure to Timely Register Its Copyrights Bars its
11 Claims for Statutory Damages and Attorney’s Fees
12 Plaintiff’s Complaint prays for, inter alia, statutory damages under 17 U.S.C.
13 Section 504 and attorney’s fees. Complaint at 34-35, ¶¶ (c) & (i). Presumably,
14 attorney’s fees are sought under 17 U.S.C. Section 505, insofar as the Complaint
15 asserts only copyright claims. However, the Complaint’s claims for statutory damages
16 and for attorney’s fees both fail as a matter of law.15 That is so because the Copyright
17 Act provides that a plaintiff cannot recover statutory damages or attorney’s fees if he
18 failed to register his claim to copyright before the infringement “commenced.”
19 17 U.S.C. § 412. And here, Plaintiff alleges that the claimed infringements
20 commenced on January 11, 2019 (Complaint at 6:2-3) and also attaches a copy of the
21
14
22 In case the Court determines that a Rule 12(f) motion to strike is the proper
procedure to challenge Plaintiff’s prayer for statutory damages, attorney’s fees, and
23 punitive damages, a motion to strike those requests is included in the alternative. See
24 Notice of Motion & Motion at 2:11-15.
15
As an additional defect mooted by dismissal of Plaintiff’s claim for statutory
25
damages, Plaintiff prays for separate statutory damage awards “per infringement.”
26 Complaint at 34, ¶ (c). However, only one statutory damage award is permitted “for
all infringements involved in the action, with respect to any one work” for which, as
27
Plaintiff alleges here, all defendants are jointly and severally liable. See 17 U.S.C.
28 § 504(c)(1); see, e.g., Complaint at 34:12-14.
13
Case 2:22-cv-01508-AB-AS Document 40-1 Filed 07/25/22 Page 20 of 22 Page ID #:282

1 Copyright Office’s website summary showing that Plaintiff did not register its claimed
2 sound recording and musical composition copyrights until May 27, 2019 (id. at 7, ¶ 7,
3 & Exh. 1); In re NVIDIA Corp. Sec. Litig., 768 F.3d 1046, 1051 (9th Cir. 2014) (in
4 ruling on a Rule 12(b)(6) motion, the court considers, inter alia, “the complaint itself
5 and its attached exhibits”); Fed. R. Civ. P. 10(c) (“A copy of a written instrument that
6 is an exhibit to a pleading is a part of the pleading for all purposes.”).
7 Accordingly, statutory damages and attorney’s fees are not potential remedies
8 on Plaintiff’s copyright infringement claims. Derek Andrew, Inc. v. PoofApparel
9 Corp., 528 F.3d 696, 701 (9th Cir. 2008) (“the first act of infringement in a series of
10 ongoing infringements of the same kind marks the commencement of one continuing
11 infringement under [17 U.S.C.] § 412” (emphasis in original)); Por Los Rios, Inc. v.
12 Lions Gate Entm’t, Inc., No. 2:13-CV-7640-CBM-PLA, 2014 WL 12605374, at *2-3
13 (C.D. Cal. May 21, 2014) (granting Rule 12(b)(6) motion to dismiss request for
14 statutory damages and attorney’s fees where alleged infringements commenced prior
15 to registration of allegedly infringed copyrights). Statutory damages and attorney’s
16 fees do not become available remedies for a plaintiff even if the alleged infringement
17 continues after he or she registers. Derek Andrews, 528 F.3d at 701; Por Los Rios,
18 2014 WL 12605374, at *3 (“Courts are strict in determining when an infringement
19 commenced, and statutory damages and attorney’s fees cannot be recovered without
20 a timely registration, regardless of alleged continuing or reoccurring infringements.”);
21 2 NIMMER ON COPYRIGHT § 7.16[C][1][a][i] (“[E]nhanced damages are barred even if
22 the infringement continues past the date of registration.”).16
23 Accordingly, Plaintiff’s claims for statutory damages and attorney’s fees are
24 properly dismissed.
25
16
26 Registration is a precondition only for the party alleging infringement to
recover attorney’s fees. 2 NIMMER ON COPYRIGHT § 7.16[C][1][a][iii]. Accordingly,
27
Plaintiff’s failure to timely register does not bar Defendants from seeking from
28 Plaintiff the attorney’s fees that Defendants incur in defending this action.
14
Case 2:22-cv-01508-AB-AS Document 40-1 Filed 07/25/22 Page 21 of 22 Page ID #:283

1 (3) Punitive Damages Are Not Recoverable on a Copyright

2 Infringement Claim
3 Plaintiff’s Complaint also prays for “[p]unitive and exemplary damages.”
4 Complaint at 34, ¶ (g). However, it is well-established that “[p]unitive damages are
5 never available for copyright infringement actions brought under the 1976 Copyright
6 Act.” 6 William F. Patry, PATRY ON COPYRIGHT § 22:151 (2022) (emphasis in
7 original); Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 705 (9th Cir. 2004)
8 (district court’s dismissal of state law claims, leaving plaintiff with copyright
9 infringement claim, “effectively precluded [plaintiff] from seeking punitive
10 damages.”); Bucklew v. Hawkins, Ash, Baptie & Co., LLP., 329 F.3d 923, 931 (7th
11 Cir. 2003) (the Copyright Act “contains no provision for punitive damages.”);
12 YellowCake, Inc. v. DashGo, Inc., No. 1:21-CV-0803 AWI BAM, 2022 WL 172934,
13 at *3 (E.D. Cal. Jan. 19, 2022) (“Because punitive damages are unavailable
14 in copyright infringement cases, dismissal of the prayer for punitive damages without
15 leave to amend is appropriate”; gathering cases); 4 NIMMER ON COPYRIGHT
16 § 14.02[C][2] (“[P]unitive damages are not available for statutory copyright
17 infringement”) & at 14.02[C][2] nn. 132-33.
18 “Copyright . . . is a creature of statute, and the only rights that exist under
19 copyright law are those granted by statute.” Silvers v. Sony Pictures Entm’t, Inc., 402
20 F.3d 881, 883–84 (9th Cir. 2005). And the Copyright Act identifies the potential
21 remedies for copyright infringement and, in doing so, does not provide for the award
22 of punitive damages. See 17 U.S.C. §§ 502-05. Accordingly, Plaintiff’s claim for
23 punitive damages also is properly dismissed.
24 3. CONCLUSION
25 Plaintiff’s Complaint suffers from multiple defects that should be resolved at
26 the pleading stage and before an answer is required.
27 Plaintiff alleges a claim for direct copyright infringement against all Defendants
28 but then also alleges against all Defendants claims for contributory and vicarious
15
Case 2:22-cv-01508-AB-AS Document 40-1 Filed 07/25/22 Page 22 of 22 Page ID #:284

1 copyright infringement, based on conclusory allegations and without identifying for

2 any Defendant those for whom it is supposedly secondarily liable and why. Each
3 Defendant is entitled to notice of why he, she, or it is being sued for contributory and
4 vicarious liability. In addition, Plaintiff’s claims for statutory damages, attorney’s
5 fees, and punitive damages each fail as a matter of law.
6 Defendants respectfully submit that the Motion should be granted.
7
8 Dated: July 25, 2022 /s/ Peter Anderson
9 Peter Anderson, Esq.
Sean M. Sullivan, Esq.
10 Eric H. Lamm, Esq.
DAVIS WRIGHT TREMAINE LLP
11 Attorneys for Defendants
SAMUEL SMITH, NORMANI KORDEI
12 HAMILTON, JAMES NAPIER, TOR
HERMANSEN, MIKKEL ERIKSON,
13 UMG RECORDINGS, INC., UNIVERSAL
MUSIC GROUP, INC., SONY MUSIC
14 PUBLISHING (US) LLC, EMI
BLACKWOOD MUSIC INC., EMI APRIL
15 MUSIC INC., SONY CORPORATION OF
AMERICA, 45TH AND 3RD MUSIC LLC,
16 TIM & DANNY MUSIC LLC, and
DOWNTOWN MUSIC PUBLISHING LLC
17
18
19
20
21
22
23
24
25
26
27
28
16