Case 2:15-cv-05642-CAS-JC Document 483 Filed 10/09/19 Page 1 of 6 Page ID #:8217
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`CHRISTINE LEPERA (admitted pro hac vice)
`ctl@msk.com
`JEFFREY M. MOVIT (admitted pro hac vice)
`jmm@msk.com
`JACOB D. ALBERTSON (admitted pro hac vice)
`j1a@msk.com
`MITCHELL SILBERBERG & KNUPP LLP
`437 Madison Avenue, 25th Floor
`New York, New York 10022
`Telephone: (212) 509-3900
`Facsimile: (212) 509-7239
`
`AARON M. WAIS (SBN 250671)
`amw@msk.com
`GABRIELLA A. NOURAFCHAN (SBN 301594)
`gan@msk.com
`MITCHELL SILBERBERG & KNUPP LLP
`2049 Century Park East, 18th Floor
`Los Angeles, California 90067
`Telephone: (310) 312-2000
`Facsimile: (310) 312-3100
`
`GREENBERG TRAURIG, LLP
`VINCENT H. CHIEFFO (SBN 49069)
`Email: ChieffoV@gtlaw.com
`ALANA C. SROUR (SBN 271905)
`Email: SrourA@gtlaw.com
`1840 Century Park East, Suite 1900
`Los Angeles, CA 90067-2121
`Telephone: 310-586-7700
`Facsimile: 310-586-7800
`Attorneys for Defendants
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION
` CASE NO. 2:15-cv-05642-CAS (JCx)
`MARCUS GRAY (p/k/a FLAME), et
`al.,
`Honorable Christina A. Snyder
`DEFENDANTS’ NOTICE OF
`MOTION AND MOTION FOR
`MOTION FOR JUDGMENT AS A
`MATTER OF LAW OR,
`ALTERNATIVELY, FOR A NEW
`TRIAL
`January 27, 2020
`Date:
`Time: 10:00 a.m.
`Ctrm: 8D—8th Fl., First Street
`
`Filed:
`July 1, 2014
`Trial:
`July 17, 2019
`
`v.
`KATHERYN ELIZABETH HUDSON
`(p/k/a KATY PERRY), et al.,
`Defendants.
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`Plaintiffs,
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`DEFENDANTS’ NOTICE OF MOTION FOR JMOL OR NEW TRIAL
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`Mitchell
`Silberberg &
`Knupp LLP
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`11474024.1
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`Case 2:15-cv-05642-CAS-JC Document 483 Filed 10/09/19 Page 2 of 6 Page ID #:8218
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`NOTICE OF MOTION AND MOTION
`TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
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`PLEASE TAKE NOTICE THAT on January 27, 2020, in Courtroom 8D
`of the Federal Courthouse located at 350 West 1st Street, Los Angeles, CA 90012,
`Defendants Capitol Records, LLC, Jordan Houston, Lukasz Gottwald, Sarah
`Theresa Hudson, Karl Martin Sandberg, Henry Russell Walter, WB Music Corp.,
`Kobalt Music Publishing America, Inc., Kasz Money, Inc., and Katheryn Elizabeth
`Hudson (collectively “Defendants”) will and hereby do move pursuant to Rule
`50(b) of the Federal Rules of Civil Procedure for judgment as a matter of law on
`the single claim for copyright infringement brought by Plaintiffs Marcus Gray,
`Chike Ojukwu, and Emanuel Lambert against all Defendants, or in the alternative,
`for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure.
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`The motion for judgment as a matter of law is made on the following
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`grounds:
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`First, no legally sufficient evidentiary basis supports the jury’s finding that
`“Dark Horse” is substantially similar to “Joyful Noise” in original, protectable
`expression. The only claimed similarities between the two works are a small
`number of indisputably commonplace elements in the works’ ostinatos and the
`undisputed evidence at trial established the many differences between both the
`ostinatos and the works as a whole. As such, the proper application of the extrinsic
`and intrinsic tests to these facts requires a finding of no substantial similarity.
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`Second, no legally sufficient evidentiary basis supports the jury’s finding
`that Plaintiffs have sustained their burden of proving access to “Joyful Noise” by
`the relevant authors of “Dark Horse” (Walter and Gottwald) prior to creation of the
`allegedly infringing portion of “Dark Horse.” Plaintiffs did not present any direct
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`Case 2:15-cv-05642-CAS-JC Document 483 Filed 10/09/19 Page 3 of 6 Page ID #:8219
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`evidence of access or circumstantial evidence of a chain of events linking “Joyful
`Noise” to the relevant authors of “Dark Horse.” Nor did Plaintiffs present
`sufficient evidence of widespread dissemination of “Joyful Noise” that would give
`rise to a reasonable opportunity to hear “Joyful Noise.” Further, the
`uncontroverted evidence proved that, whatever the reach of “Joyful Noise,” neither
`Walter nor Gottwald (or any other defendant author) availed himself of the
`opportunity to hear “Joyful Noise.”
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`Third, no legally sufficient evidentiary basis supports the jury’s finding
`against Defendants on the grounds that Defendants presented unrebutted and
`unimpeached evidence at trial demonstrating that all of the authors of “Dark
`Horse” independently created the composition.
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`Fourth, no legally sufficient evidentiary basis supports the jury’s finding that
`Plaintiffs’ copyright registration in “Joyful Noise” protects the instrumental beat
`created by Chike Ojukwu, which includes the allegedly infringed portion of
`“Joyful Noise.” This is because “Joyful Noise” is a derivative work of that beat
`and not a work of joint authorship. Plaintiffs lack a copyright registration for
`Ojukwu’s beat itself.
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`Fifth, if the Court does not grant judgment as a matter of law as to all
`Defendants, judgment should still be granted as a matter of law as to the following
`Defendants: Kobalt Music Publishing America, Inc., WB Music Corp., Kasz
`Money, Inc., Katheryn Hudson, Lukasz Gottwald, Sarah Hudson, Karl Martin
`Sandberg, and Jordan Houston on grounds that Plaintiffs presented no evidence
`that any of these defendants infringed Plaintiffs’ exclusive rights under the
`Copyright Act. Moreover, Plaintiffs have no claim for vicarious liability or
`contributory infringement.
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`11474024.1
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`Case 2:15-cv-05642-CAS-JC Document 483 Filed 10/09/19 Page 4 of 6 Page ID #:8220
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`Sixth, even if the Court does not grant judgment as a matter of in favor of
`Defendants on liability, no legally sufficient evidentiary basis supports the jury’s
`finding that 22.5% of the net profit earned by each Defendant from “Dark Horse”
`was attributable to the use of the “Joyful Noise” musical composition in Ostinato 2
`in “Dark Horse” as opposed to other factors. Plaintiffs failed to satisfy their
`burden to prove Defendants’ gross revenue attributable to the infringement (i.e., a
`causal link). Defendants presented the unrebutted testimony of two expert
`witnesses who testified about the insignificance of Ostinato 2 to the commercial
`success and profits of “Dark Horse” and Prism. Plaintiffs did not present their own
`experts, or any other apportionment evidence.
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`Seventh, no legally sufficient evidentiary basis exists to support the jury’s
`decision to exclude Capitol Records’ overhead costs in calculating its net profit.
`As a matter of law, in accordance with this Court’s instructions and the unrebutted
`and unimpeached evidence presented by Capitol at trial, the jury should have
`deducted overhead and calculated Capitol’s net profit as equaling $629,725.
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`The motion for a new trial is made on the following grounds:
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`First, for the reasons explained above, the jury’s findings of (i) substantial
`similarity, (ii) access, including that Gottwald or Walter availed themselves of the
`opportunity to hear “Joyful Noise,” (iii) that “Dark Horse” was not independently
`created, and (iv) that the inclusion of the Beat created by Ojukwu was part of a
`joint work of authorship were contrary to the weight of the evidence.
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`Second, a new trial is warranted due to the misconduct at trial by Plaintiffs’
`counsel and witnesses. Plaintiffs’ musicologist Dr. Todd Tecker gave improper
`and highly prejudicial testimony that invaded the province of the jury and during
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`Silberberg &
`Knupp LLP
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`11474024.1
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`Case 2:15-cv-05642-CAS-JC Document 483 Filed 10/09/19 Page 5 of 6 Page ID #:8221
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`closing argument, Plaintiff’s counsel made knowingly false and highly prejudicial
`assertions warranting a new trial.
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`Third, in the event that the Court reached the jury’s damage award, it should
`find that the award is contrary to the clear weight of the evidence and excessive.
`As discussed above, as to Capitol, the jury wrongly ignored Capitol’s overhead in
`calculating Capitol’s profit. Second, as discussed above, nothing supports the
`jury’s conclusion that 22.5% of Defendant’s profits is attributable to the use of the
`“Joyful Noise” musical composition in Ostinato 2. As such, at a minimum, the
`Court should remit the amount of the damages awarded.
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`This Motion is and will be based upon this Notice of Motion and Motion;
`the accompanying Memorandum of Points and Authorities; the exhibits and trial
`testimony identified in this motion; all other relevant evidence introduced at trial;
`the pleadings and papers on file herein; any Reply and supporting pleadings and
`exhibits that may be filed in support; any oral argument that may be made; and
`upon such other or further material as may be presented at or before the hearing of
`this matter.
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`Case 2:15-cv-05642-CAS-JC Document 483 Filed 10/09/19 Page 6 of 6 Page ID #:8222
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`For the foregoing reasons, as further discussed in Defendants’
`accompanying Memorandum of Points and Authorities, Defendants’ motion for
`judgment as a matter of law should be granted and judgment entered in
`Defendants’ favor on Plaintiffs’ Third Amended Complaint and the claim for
`copyright infringement asserted therein. In the alternative, Defendants’ motion for
`a new trial should be granted.
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`
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`DATED: October 9, 2019
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`MITCHELL SILBERBERG & KNUPP LLP
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`
`
`By: /s/ Aaron M. Wais
`Aaron M. Wais (SBN 250671)
`Attorneys for Defendants Capitol Records,
`LLC, Jordan Houston, Lukasz Gottwald,
`Sarah Theresa Hudson, Karl Martin Sandberg,
`Henry Russell Walter, WB Music Corp.,
`Kobalt Music Publishing America, Inc., and
`Kasz Money, Inc.
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`GREENBERG TRAURIG, LLP
`
`By: /s/ Vincent H. Chieffo
`Vincent H. Chieffo (SBN 49069)
`Attorneys for Defendant Katheryn Elizabeth
`Hudson p/k/a Katy Perry
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`DATED: October 9, 2019
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`
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`ATTESTATION REGARDING SIGNATURES
`Pursuant to Local Civil Rule 5-4.3.4(a)(2)(i), I hereby attest that all Parties,
`on whose behalf this filing is jointly submitted, concur in this filing’s content and
`have authorized its filing.
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`DATED: October 9, 2019
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` /s/ Aaron M. Wais
`Aaron M. Wais
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`Silberberg &
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`11474024.1
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