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Case 2:18-cv-09088-VAP-SS Document 78 Filed 09/16/20 Page 1 of 29 Page ID #:1472
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`
`Tracy Chapman,
`
`Plaintiff,
`v.
`Onika Tanya Maraj et al.,
`
`Defendant.
`
`2:18-cv-09088-VAP-SSx
`
`Order DENYING Plaintiff’s
`Motion for Partial Summary
`Judgment (Dkt. 54)
`and GRANTING Defendant’s
`Motion for Partial Summary
`Judgment (Dkt. 57)
`
`
`
`
`Before the Court are Plaintiff Tracy Chapman’s (“Chapman”) Motion for
`Partial Summary Judgment (“Chapman MSJ,” Dkts. 54 (redacted), 56, Ex. A)
`and Defendant Onika Tanya Maraj’s (“Maraj”) Motion for Partial Summary
`Judgment (“Maraj MSJ,” Dkt. 57). The parties each opposed the other’s
`Motion. (“Maraj Opposition,” (“Opp.”), Dkt. 66; “Chapman Opp.,” Dkt. 67).
`
`
`After considering all the papers filed in support of, and in opposition to,
`the Motions, the Court deems this matter appropriate for resolution without a
`hearing. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. The Court GRANTS
`Maraj’s Motion for Partial Summary Judgment and DENIES Chapman’s
`Motion for Partial Summary Judgment.
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`United States District Court
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`Case 2:18-cv-09088-VAP-SS Document 78 Filed 09/16/20 Page 2 of 29 Page ID #:1473
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`I. BACKGROUND
`This action arises out of a copyright dispute between Chapman and
`Maraj regarding the use and distribution of Chapman’s musical composition.
`
`
`On October 22, 2018, Chapman brought this action alleging copyright
`infringement of her musical composition, Baby Can I Hold You (the
`“Composition”). (Dkt. 1). According to Chapman, Maraj violated Chapman’s
`exclusive rights to “reproduce, distribute, and prepare derivative works from
`and otherwise exploit the Composition.” (Id. ¶ 50). Maraj denies these
`allegations. (Dkt. 14).
`
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`Each party now moves for partial summary judgment. (Chapman MSJ;
`Maraj MSJ). Chapman seeks partial summary judgment only on the issue of
`copyright infringement (not damages). (Chapman MSJ, at 2). Specifically,
`Chapman alleges that Maraj is liable for copyright infringement in two ways:
`(1) for creating a song (hereinafter, the “new work” or “song”) that
`incorporates lyrics and melodies of the Composition; and (2) for distributing
`the song to a DJ and radio host. (Id.). Chapman also requests that the Court
`summarily adjudicate that the infringement was willful. (Id.).
`
`
`Maraj, in her Motion, seeks summary judgment only on the issue of her
`alleged infringement for creating the song. (Maraj MSJ). According to Maraj,
`the creation of the song constitutes fair use. (Id.).
`
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`On August 24, 2020, both parties opposed the other’s Motion.
`(Chapman Opp.; Maraj Opp.). On August 31, 2020, both parties filed replies
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`Case 2:18-cv-09088-VAP-SS Document 78 Filed 09/16/20 Page 3 of 29 Page ID #:1474
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`in support of their Motions. (“Chapman Reply,” Dkt. 72; “Maraj Reply,” Dkt.
`73). For the reasons stated below, the Court DENIES Chapman’s Motion in
`its entirety and GRANTS Maraj’s Motion.
`
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`II.
`
`LEGAL STANDARD
`A motion for summary judgment or partial summary judgment shall be
`granted when there is no genuine issue as to any material fact and the moving
`party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
`
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`“[W]hen parties submit cross-motions for summary judgment, each
`motion must be considered on its own merits.” Fair Hous. Council of
`Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001)
`(internal quotations and citations omitted). Thus, “[t]he court must rule on
`each party’s motion on an individual and separate basis, determining, for
`each side, whether a judgment may be entered in accordance with the Rule
`56 standard.” (Id. (quoting Wright, et al., Federal Practice and Procedure §
`2720, at 335–36 (3d ed. 1998))). If, however, the cross-motions are before
`the court at the same time, the court must consider the evidence proffered by
`both sets of motions before ruling on either one. Riverside Two, 249 F.3d at
`1135–36.
`
`
`Generally, the burden is on the moving party to demonstrate that it is
`entitled to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.
`1998). “The moving party may produce evidence negating an essential
`element of the nonmoving party’s case, or . . . show that the nonmoving party
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`Case 2:18-cv-09088-VAP-SS Document 78 Filed 09/16/20 Page 4 of 29 Page ID #:1475
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`does not have enough evidence of an essential element of its claim or
`defense to carry its ultimate burden of persuasion at trial.” Nissan Fire &
`Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1106 (9th Cir. 2000)
`(reconciling Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) and Celotex
`Corp. v. Catrett, 477 U.S. 317 (1986)). The nonmoving party must then “do
`more than simply show that there is some metaphysical doubt as to the
`material facts” but must show specific facts which raise a genuine issue for
`trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
`(1986). A genuine issue of material fact will exist “if the evidence is such that
`a reasonable jury could return a verdict for the non-moving party.” Anderson,
`477 U.S. at 248.
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`In ruling on a motion for summary judgment, a court construes the
`evidence in the light most favorable to the non-moving party. Barlow v.
`Ground, 943 F.2d 1132, 1135 (9th Cir. 1991). “[T]he judge’s function is not []
`to weigh the evidence and determine the truth of the matter but to determine
`whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
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`III.
`
`FACTS
`Both Chapman and Maraj filed statements of undisputed facts,
`(“Chapman SUF,” Dkts. 54-1, 56, Ex. B; “Maraj SUF,” Dkt. 59), to which the
`other party has filed statements of genuine dispute and additional facts,
`(“Chapman RSUF,” Dkt. 67-2, “Maraj RSUF,” Dkt. 69). Chapman also filed a
`response to Maraj’s additional facts proffered in opposition to Chapman’s
`Motion. (“Chapman RAMF,” Dkt. 72-4). Each party has also filed various
`evidentiary objections to facts cited in the other’s papers. (“Chapman
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`Case 2:18-cv-09088-VAP-SS Document 78 Filed 09/16/20 Page 5 of 29 Page ID #:1476
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`Objections to Maraj’s MSJ Evidence,” Dkt. 67-3; “Maraj Objections to
`Chapman’s MSJ Evidence,” Dkt. 68; “Chapman Objections to Maraj’s Opp.
`Evidence,” Dkt. 72-2). Chapman also filed a response to Maraj’s objections
`to Chapman’s evidence. (“Chapman Response to Maraj Objections,” Dkt. 72-
`3).
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`To the extent certain facts or contentions are not mentioned in this
`Order, the Court has not found it necessary to consider them in reaching its
`decision. In addition to considering the evidentiary objections raised by the
`parties, the Court has reviewed independently the admissibility of the
`evidence that both parties submitted and has not considered evidence that is
`irrelevant or inadmissible. At the summary judgment stage, a district court
`should “focus on the admissibility of the [evidence’s] contents” and not the
`form in which the evidence is presented—it is sufficient that a party will be
`able to produce evidence in its admissible form at trial. See Fraser v.
`Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); Block v. City of Los Angeles,
`253 F.3d 410, 418–19 (9th Cir. 2001).
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`Moreover, “objections to evidence on the ground that it is irrelevant,
`speculative, and/or argumentative, or that it constitutes an improper legal
`conclusion are all duplicative of the summary judgment standard itself” and
`thus need not be considered on a motion for summary judgment. Burch v.
`Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1120 (E.D. Cal. 2006).
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`Case 2:18-cv-09088-VAP-SS Document 78 Filed 09/16/20 Page 6 of 29 Page ID #:1477
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`A. Evidentiary Objections
`Chapman’s Objections
`The Court sustains Chapman’s objections to Maraj’s SUF No. 1 as
`unsupported by the evidence and SUF Nos. 3, 4, 6, and 11 as compound.
`The Court also sustains Chapman’s objection to SUF No. 7 as unsupported
`by the evidence. The Court overrules Chapman’s objections to Maraj’s SUF
`Nos. 9 and 12 but finds only the following statement supported by Maraj’s
`proffered evidence for SUF No. 9: “Tracy Chapman has requested samples
`of proposed works when considering a license request.” The Court overrules
`Chapman’s objections to Maraj’s SUF Nos. 8 and 10, but finds only the
`following statements supported by Maraj’s proffered evidence: “rights holders
`often request copies of new works during licensing discussions,” and
`“prospective licensees usually include their proposed derivative works with
`their initial licensing requests.” Chapman also objects to certain statements
`within the declarations of Maraj and Aubry Delaine filed in support of Maraj’s
`Opposition to Chapman’s Motion.
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`1. Maraj Declaration
`According to Chapman, the following statements contradict Maraj’s
`former sworn testimony and must be stricken from the record:
`
`
` “I thought that maybe, if Ms. Chapman heard my song on the
`radio, and learned of a positive reaction among listeners, she
`would allow me to release the song.”
` “[]that day, however, I had a change of heart. I never sent the
`recording.”
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`Case 2:18-cv-09088-VAP-SS Document 78 Filed 09/16/20 Page 7 of 29 Page ID #:1478
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` “I was surprised to learn that Flex played Sorry on the radio that
`evening. I have no idea how he obtained the recording. He did
`not obtain it from me or, to my knowledge, from anyone I know.”
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`(Dkt. 72-2). The Court agrees with Chapman as to the first statement and
`most of the second statement but disagrees as to the third statement.
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`“[]The Ninth Circuit has held that ‘a party cannot create an issue of fact
`by [submission of] an affidavit contradicting his prior deposition testimony’
`where the court determines that the later affidavit is merely ‘‘sham’ testimony
`that flatly contradicts earlier testimony.’” Ana Mora et al. v. City of Garden
`Grove et al., 2020 WL 4760184, at *7 (C.D. Cal. 2020) (citing to Kennedy v.
`Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1999)). “The rationale
`underlying the sham affidavit rule is that a party ought not be allowed to
`manufacture a bogus dispute with himself to defeat summary judgment.”
`Nelson v. City of Davis, 571 F.3d 924, 928 (9th Cir. 2009).
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`The Ninth Circuit in Yeager reiterated two important limitations on the
`sham affidavit rule: (1) the district court must make a “factual determination
`that the contradiction was actually a sham”; and (2) the “inconsistency
`between a party’s deposition testimony and subsequent affidavit must be
`clear and unambiguous.” Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir.
`2012). For example, “[]an affidavit might not be a sham if the affiant’s actions
`were the result of honest discrepancy, a mistake, or the result of newly
`discovered evidence … [or] if the affiant gives a plausible excuse for the
`contradiction ….” Jack v. Trans World Airlines, 854 F. Supp. 654, 660 (N.D.
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`Case 2:18-cv-09088-VAP-SS Document 78 Filed 09/16/20 Page 8 of 29 Page ID #:1479
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`Cal. 1994); see Yeager, 693 F.3d at 1080 (“[T]he nonmoving party is not
`precluded from elaborating on, explaining or clarifying prior testimony elicited
`by opposing counsel on deposition . . . ”) (quoting Van Asdale v. Int’l Game
`Tech., 577 F.3d 989, 999 (9th Cir. 2009)).
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`Maraj’s statements explaining why she asked DJ Flex to play the new
`work on his radio show and her statement about her “change of heart”
`contradict her earlier deposition testimony, rendering her affidavit a sham one.
`In her September 3, 2019 supplemental responses to Chapman’s Requests
`for Admission, Maraj denied that she asked DJ Flex to play the new work.
`(Dkt. 54-2, Ex. 8, p. 87). In her September 23, 2019 deposition, Maraj stated
`that she could not locate any communications between her and DJ Flex. (Dkt.
`54-2, Ex. 6 at 22:4-8). Maraj further testified that the only discussion she
`recalled having with DJ Flex over social media was when she responded to
`his Instagram post saying that he can only play official album music. (Id., at
`24:5-22). According to Chapman, DJ Flex, not Maraj, submitted the direct
`messages where Maraj asked him to play the song on his show. (Dkt. 54-2,
`Declaration of Nicholas Frontera ¶ 16).
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`In the face of that evidence, Maraj now seeks to claw back her prior
`testimony to create additional issues of fact on summary judgment. Rather
`than providing an explanation for her former testimony, Maraj offers a new
`version of contradictory events. This is exactly what the sham affidavit
`doctrine aims to prevent. The Court thus strikes Paragraphs 4 and 5 from
`Maraj’s declaration. The Court also strikes Paragraph 6, except for Maraj’s
`statement that she “never sent the recording” because that statement does
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`Case 2:18-cv-09088-VAP-SS Document 78 Filed 09/16/20 Page 9 of 29 Page ID #:1480
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`not contradict prior testimony. (See Dkt. 66-1, Deposition of Tanya Maraj at
`78:24-79:18). For similar reasons, the Court declines to strike the third
`statement at issue. Maraj stated in her deposition that she was not sure how
`DJ Flex received the new work. Her statement that she was surprised to hear
`him play the song is thus consistent with that testimony.
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`2. Delaine Declaration
`Chapman also argues that statements in Delaine’s declaration
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`contradicts his deposition testimony in this case. (Dkt. 72-2, at 4-7). The
`Court disagrees.
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`None of the statements in Delaine’s declaration directly contradict his
`deposition testimony. To the extent that there are any inconsistencies, the
`Court finds that they do not rise to the level of sham statements but rather are
`offered to explain certain aspects of his testimony. See Ana Mora et al., 2020
`WL 4760184, at *7. Further, Chapman improperly attempts to use the “sham
`affidavit” rule as both a shield and a sword. In re GGW Brands, LLC, 504
`B.R. 577, 629 (Bankr. C.D. Cal. 2013). For example, Chapman relies on the
`fact that Delaine reached out to Chris Athens for a mastered copy of Sorry
`(Dkt. 69, Chapman’s SUF No. 30) while simultaneously seeking to strike the
`same information from Delaine’s declaration. In the absence of “clear and
`unambiguous” inconsistencies in Delaine’s testimony, the Court declines to
`strike the contested statements from the record. Yeager, 693 F.3d at 1080.
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`Maraj’s Objections
`Maraj contests the admissibility of Exhibits 20 and 21 to the declaration
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`Case 2:18-cv-09088-VAP-SS Document 78 Filed 09/16/20 Page 10 of 29 Page ID #:1481
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`of Nicholas Frontera, which consists of copies of Instagram and Twitter posts
`made by DJ Flex on August 11, 2018. (Dkt. 68; Dkt. 54-2, p. 212-214). The
`posts state:
`“Shhhhhhh!!!! TONIGHT 7 PM!!! NICKI GAVE ME
`SOMETHING!!! @nickiminaj ft @nas !!! (NOT ON HER
`ALBUM!) GONNA STOP THE CITY TONIGHT!!!!!!!!!!!!!”
`(Dkt. 54-2, at 212-214). Maraj claims that the posts are inadmissible hearsay
`because Chapman cites to them for the truth of the matter asserted – that
`Maraj supplied the recording of the song to DJ Flex. (Dkt. 68, at 1; Dkt. 72,
`at 8) (“Mr. Taylor’s multiple social media postings that he received the
`Infringing Work
`from Ms. Maraj are contemporaneous statements
`demonstrating Ms. Maraj in fact sent it to him.”). Chapman claims the posts
`are admissible either as exclusions from or exceptions to the hearsay rule.
`(Dkt. 72-3). The Court disagrees.
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`Chapman first argues that these documents are admissible as
`admissions of a person authorized to make the statement and/or a co-
`conspirator. (Id., at 1-2). Nevertheless, Chapman cites no evidence of Maraj
`authorizing DJ Flex to make the social media posts, nor are they statements
`of a co-conspirator; Chapman provides no facts showing that DJ Flex and
`Maraj entered into a “conspiracy.” See Bourjaily v. United States, 483 U.S.
`171, 175 (1987) (requiring a court to make a preliminary finding of the
`existence of a conspiracy by a preponderance of the evidence before
`admitting statements under Rule 801(d)(2)(E)).
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`Chapman also argues that the social media posts are admissible under
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`Case 2:18-cv-09088-VAP-SS Document 78 Filed 09/16/20 Page 11 of 29 Page ID #:1482
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`one or more of the exceptions to the hearsay rule, i.e., present sense
`impression, excited utterance, existing mental condition,
`recorded
`recollection, or business record. (Dkt. 72-3, at 3). All of these arguments fail.
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`The facts do not support a finding that the social media posts are
`present sense impressions, excited utterances, or evidence of existing mental
`conditions. The Ninth Circuit has held that to qualify as an exception as a
`present sense impression or an excited utterance, the “out-of-court statement
`must be nearly contemporaneous with the incident described and made with
`little chance for reflection.” Bemis v. Edwards, 45 F.3d 1369, 1372 (9th Cir.
`1995). “Under all three rules, the court must evaluate three factors:
`contemporaneousness, chance for reflection, and relevance.” United States
`v. Ponticelli, 622 F.2d 985, 991 (9th Cir. 1980).
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`Chapman’s argument that DJ Flex “described an event … right after it
`happened” is conclusory and unsupported. Chapman provides no evidence
`showing when DJ Flex allegedly received the text message. Chapman simply
`argues that DJ Flex must have received the text message sometime between
`August 10, 2018 when Maraj said “I’ll text” and 2:34 p.m. on the next day
`when DJ Flex made his first social media post. Maraj disputes whether the
`text message was received within this time frame. Thus, these facts do not
`establish that the social media posts were made without time for reflection.
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`The social media posts are also not recorded reflections or business
`records. “A recorded recollection is ‘[a] record that: (A) is on a matter the
`witness once knew about but now cannot recall well enough to testify fully
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`Case 2:18-cv-09088-VAP-SS Document 78 Filed 09/16/20 Page 12 of 29 Page ID #:1483
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`and accurately; (B) was made or adopted by the witness when the matter was
`fresh in the witness's memory; and (C) accurately reflects the witness's
`knowledge.’” United States v. Orm Hieng, 679 F.3d 1131, 1143 (9th Cir. 2011).
`Chapman provides no facts to demonstrate DJ Flex cannot recall his posts
`on social media well enough to testify about them. In fact, DJ Flex testified
`about the posts in his deposition. When asked why he tweeted that “Nicki
`gave me something” DJ Flex responded: “Well, if you are asking me why I
`said Nicki gave me something because I want the kids to believe that I got it
`from the artist so they tune in. It's called smoke and mirrors.” (Dkt. 66-1, at
`31, 162:7-12). This testimony also contradicts Chapman’s assertions that the
`social media posts demonstrate that “Ms. Maraj in fact sent it to him.” Thus,
`even assuming the social media posts were admissible non-hearsay, the
`meaning of the posts is a material disputed fact that must be resolved by the
`trier of fact.
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`Finally, the social media posts do not qualify as business records.
`Chapman provides no evidence from DJ Flex showing that the social media
`posts are regularly conducted business activities. FRE 801(3) (“all these
`conditions [must be] shown by the testimony of the custodian or another
`qualified witness.”). The social media posts do not describe an “act, event,
`condition, opinion, or diagnosis” that was made. FRE 801(3). To the extent
`Chapman argues that the event is “Nicki [giving] something” to DJ Flex, as
`explained above, that fact is disputed by the parties.
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`The Court thus SUSTAINS Maraj’s objection to the social media posts
`as inadmissible hearsay. The Court will consider the posts only for the fact
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`Case 2:18-cv-09088-VAP-SS Document 78 Filed 09/16/20 Page 13 of 29 Page ID #:1484
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`that they exist, but not for the truth of the matters asserted therein. (Dkt. 69,
`SUF 35 (parties agreeing that the posts exist)).
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`B. Undisputed Facts
`Local Rule 56 allows the Court to find that “the material facts as claimed
`and adequately supported by the moving party are admitted to exist without
`controversy except to the extent that such material facts are (a) included in
`the “Statement of Genuine Issues” and (b) controverted by declaration or
`other written evidence filed in opposition to the motion.” Local Rule 56–3
`(emphasis added). The Court finds that the following relevant facts are
`undisputed:
`
`
`The Copyrighted Work
`Chapman wrote her song Baby Can I Hold You (the “Composition”) in
`1982 and obtained copyright registration for the Composition on October 20,
`1983. (Maraj RSUF Nos. 1-2). Chapman is the sole owner of the copyright
`in the Composition. (Maraj RSUF No. 3).
`
`
`The New Work
`In 2017, Maraj agreed to work with a recording artist named Nasir Bin
`Olu (“Nas”) on a re-make of a song entitled Sorry. (Maraj RSUF No. 4;
`Chapman RSUF No. 2). At the time, Maraj believed that Sorry was created
`by an artist named Shelly Thunder. (Chapman RAMF No. 40). Maraj told
`Nas that she would experiment with Sorry to see where the project could go.
`(Maraj RSUF No. 41). Maraj began to experiment with Sorry before seeking
`a license (Chapman SUF No. 10), but she knew she would need a license to
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`Case 2:18-cv-09088-VAP-SS Document 78 Filed 09/16/20 Page 14 of 29 Page ID #:1485
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`produce a song on an album eventually. (Chapman SUF No. 9). Maraj did
`not intend to release a new work without securing an appropriate license first.
`(Maraj RSUF No. 42). This was customary practice because rights holders
`often request copies of new works during licensing discussions and
`prospective licensees usually include their proposed derivative works with
`their initial licensing requests. (Maraj SUF Nos. 8-10). Chapman has
`requested copies of new works from prospective licensees herself. (Maraj
`SUF No. 9).
`
`
`License Requests
`Maraj’s representatives later found out that Sorry was a cover to Tracy
`Chapman’s song, Baby Can I Hold You. (Maraj SUF No. 12). The new work
`created by Maraj incorporated a large number of lyrics and vocal melodies
`from Baby Can I Hold You. (Chapman SUF Nos. 7-8). Thus, on May 23,
`2018, Maraj, through her representatives, began seeking Chapman’s
`clearance to publish the new work in Maraj’s then-upcoming album, Queen.
`(Maraj SUF No. 12). Between May 23, 2018 and August 2, 2018, Maraj and
`her representatives made multiple requests to Chapman for a license to
`publish the new work. (Id., at Nos. 13-15; Chapman SUF Nos. 11-20).
`Chapman repeatedly denied the requests. (Id.). On at least one occasion,
`Maraj attempted to reach out to Chapman directly via Twitter to change
`Chapman’s mind. (Id.). Despite these efforts, Chapman continued to deny
`Maraj’s requests. (Id.).
`
`
`Maraj told Nas that the song “was not gonna get cleared” by Chapman.
`(Chapman SUF No. 23). She further stated that, “they saying [Ms. Chapman]
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`Case 2:18-cv-09088-VAP-SS Document 78 Filed 09/16/20 Page 15 of 29 Page ID #:1486
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`don’t clear stuff. She was forced to with [another song] but took all the money
`cuz they put it out w/no approval.” (Id., SUF No. 24). Nas expressed his
`frustrations with Chapman’s refusal to issue a license. (Maraj RSUF No. 51).
`
`
`Maraj Reaches Out to DJ Flex
`On August 3, 2018, Maraj direct messaged DJ Aston George Taylor
`(“DJ Flex”) the following message:
`
`
`“Hey. I got a record I want u to world premier. The week album drops.
`U will be the only one with it. I’ll have Jean hit u to explain. Keep it on
`the low. Wait til u see who’s on it. Not going on album either. No one
`will get it.”
`(Chapman SUF No. 25). DJ Flex indicated that he would play the record on
`his show (Id., SUF No. 26). On that same day, Maraj sent Nas a copy of the
`latest mix of the new work via WeTransfer. (Maraj RSUF No. 50). There is
`no record of Maraj sending DJ Flex a copy of the latest mix on that day.
`
`
`One week later, on August 10, 2018, Maraj followed up with DJ Flex
`about the show asking, “You got me tonight? The song is me and Nas. Send
`your number.” (Chapman SUF No. 27). DJ Flex responded with his number
`and confirmed that he would play the song the next day. (Id., SUF No. 28).
`Maraj responded, “Ok I’ll text.” (Id., SUF No. 29).
`
`
`The New Work is “Mastered”
`On the same day, Maraj’s lead recording engineer, Aubry Delaine,
`asked Chris Athens Masters, Inc. to “master” the song and return clean and
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`Case 2:18-cv-09088-VAP-SS Document 78 Filed 09/16/20 Page 16 of 29 Page ID #:1487
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`explicit versions of the mastered copy. (Chapman SUF No. 30). Chris Athens
`mastered the work and his intern, David Castro, sent Delaine links to
`download the mastered versions via email at 9:12 p.m. that night. (Id., SUF
`Nos. 31-32). The links only allowed for one download each. (Id., SUF No.
`33). Delaine never sends unreleased recordings of Maraj’s work to third
`parties without receiving instructions from Maraj to do so. (Id., SUF No. 34).
`Maraj’s album, Queen, was released on August 10, 2018 without the new
`work. (Maraj SUF No. 16).
`
`
`DJ Flex Plays the New Work on His Show
`On August 11, 2018, the day after Maraj’s album released, DJ Flex
`promoted the debut of the new work on his Twitter and Instagram accounts:
`
`
`“Shhhhhhh!!!! TONIGHT 7 PM!!! NICKY GAVE ME SOMETHING!!!
`@nickiminaj ft @nas !!! (NOT ON HER ALBUM!) GONNA STOP THE
`CITY TONIGHT!!!!!!!!!!!!!”
`(Chapman SUF No. 35). Maraj commented on DJ Flex’s post stating that he
`was not to play any material that was not included on her album. (Maraj
`RSUF No. 45). Later that night, DJ Flex played a version of the new work
`that was titled, “01 Sorry – 72518 – master.mp3.” (Chapman SUF No. 37).
`DJ Flex received that version of the song via text message. (Id., SUF No.
`37).
`
`C. Disputed Facts
`The parties dispute the following facts in connection with their Motions:
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`Case 2:18-cv-09088-VAP-SS Document 78 Filed 09/16/20 Page 17 of 29 Page ID #:1488
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`When DJ Flex Received the New Work
` Chapman argues that DJ Flex must have received the new work
`after Maraj said “she’ll text” it to him on August 10, 2018 and before
`he played it on the air the next evening. (Chapman SUF No. 36).
` Maraj maintains that DJ Flex’s testimony only establishes that he
`received the new work before he sent the Tweet broadcasting the
`show but does not establish that DJ Flex received it after Maraj said
`“she’ll text.” (Maraj RSUF No. 36).
`
`
`Who texted DJ Flex the New Work
` Chapman states that Maraj or one of her representatives sent DJ
`Flex the song based on the following disputed facts.
` Maraj maintains that neither she, nor anyone acting with her
`authority, sent DJ Flex the song. (Maraj RSUF No. 46). DJ Flex
`denies that Maraj sent him the song. (Id.). DJ Flex claims he
`received the new work from one of his bloggers, and not from
`anyone associated with Maraj. (Id.). Delaine states that neither he,
`nor anyone else to his knowledge, was asked to send a recording
`of the new work to DJ Flex. (Id.). Delaine states that he does not
`know how DJ Flex received the new work. (Id.). Roberson also
`denies sending DJ Flex the new work. (Id.).
`
`
`Whether “01 Sorry – 72518 – master.mp3” is the mastered version
` Maraj maintains that the “01 Sorry – 72518 – master.mp3” file is a
`mixed version generated by Serban Ghenea and not the mastered
`
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`Case 2:18-cv-09088-VAP-SS Document 78 Filed 09/16/20 Page 18 of 29 Page ID #:1489
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`copy created by Chris Masters on August 10, 2018. (Maraj RSUF
`No. 47).
` Chapman disputes this and maintains that because of the file name,
`the file is the mastered version. (Chapman SUF No. 37).
`
`
`Whether the Mastered Version Can Be Sent Via Text Message
` Maraj maintains that the mastered copy cannot be sent via text
`message because the file is too large. (Maraj RSUF No. 49).
` Chapman argues that the mastered copy can be sent via text
`message using WeTransfer the same way Maraj sent Nas a copy of
`the file via text message through WeTransfer on August 3, 2018.
`(Chapman RAMF No. 49).
`
`When the Mixed Version Was Created
` Maraj maintains that the mixed version of the song was completed
`on July 25, 2018 as indicated by the “72518” in the file name. (Maraj
`RSUF No. 48).
` Chapman maintains that the mixing services were completed later
`than that. (Maraj RSUF No. 48).
`
`
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`
`
`IV. DISCUSSION
`A.
`Copyright Infringement
`To establish a claim for direct copyright infringement, a plaintiff must
`demonstrate: (1) it owns a valid copyright in a work, and (2) defendant’s
`violation of plaintiff's exclusive rights under the Copyright Act. 17 U.S.C. §§
`106, 501; see also Funky Films, Inc. v. Time Warner Entertainment Co., L.P.,
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`462 F.3d 1072, 1076 (9th Cir. 2006). “In addition, direct infringement requires
`the plaintiff to show causation (also referred to as ‘volitional conduct’) by the
`defendant.” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 666 (9th Cir.
`2017).
`
`
`Ownership
`1.
`A c

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