Case 3:19-cv-05440-RS Document 138 Filed 09/03/21 Page 1 of 5
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`LARRY REYNOLDS,
`
`Plaintiff,
`
`v.
`
`APPLE INC.,
`
`Defendant.
`
`Case No. 19-cv-05440-RS
`
`
`ORDER GRANTING MOTION FOR
`SUMMARY JUDGMENT
`
`
`
`
`
`
`
`I. INTRODUCTION
`
`Plaintiff Larry Reynolds accuses Apple Inc. (“Apple”) of unlawfully making available for
`
`streaming and downloading a number of songs in which he holds a valid copyright. Following the
`
`denial of its motion to dismiss on other grounds, Apple now puts forth evidence showing it
`
`properly licensed each song before distributing it. For the reasons set forth below, the motion for
`
`summary judgment is granted.
`
`II. BACKGROUND
`
`Reynolds, a musician from Louisiana, contends Apple has engaged in a “digital music
`
`administrative campaign to reproduce and distribute” approximately seventy of Reynolds’ songs
`
`without his authorization. Second Amended Complaint (“SAC”) ¶ 10. Specifically, he alleges
`
`Apple did not file with him or the United States Copyright Office a Notice of Intent (“NOI”) to
`
`reproduce his works and that Apple has not paid, or underpaid, royalties owed to him. He does
`
`acknowledge, however, that he has received some royalty payments from the Harry Fox Agency
`
`(“HFA”), a mechanical rights clearinghouse that licenses the musical compositions of musicians to
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:19-cv-05440-RS Document 138 Filed 09/03/21 Page 2 of 5
`
`
`
`distributors. Reynolds provides Certificates of Registration for seven albums in which he owns
`
`valid copyrights: L.P. Reynolds Christmas, Tennessee Fever (Presidential Edition), L.P. Reynolds
`
`Bride for Doctor Levinstein, L.P. Reynolds Something New, L.P. Reynolds If You Don’t Believe,
`
`L.P. Reynolds God Gave Love Today, and L.P. Reynolds and the Argonauts (collectively, the
`
`“Asserted Works”).
`
`III. LEGAL STANDARD
`
`Summary judgment is proper “if the movant shows that there is no genuine dispute as to
`
`any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
`
`The purpose of summary judgment “is to isolate and dispose of factually unsupported claims or
`
`defenses.” Celotex v. Catrett, 477 U.S. 317, 323–24 (1986). The moving party “always bears the
`
`initial responsibility of informing the district court of the basis for its motion, and identifying
`
`those portions of the pleadings, depositions, answers to interrogatories, and admissions on file,
`
`together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of
`
`material fact.” Id. at 323 (internal quotation marks omitted). If it meets this burden, the moving
`
`party is then entitled to judgment as a matter of law when the non-moving party fails to make a
`
`sufficient showing on an essential element of the case with respect to which it bears the burden of
`
`proof at trial. Id. at 322–23.
`
`
`
`To preclude the entry of summary judgment, the non-moving party must bring forth
`
`material facts, i.e., “facts that might affect the outcome of the suit under the governing law[.]”
`
`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The opposing party “must do more
`
`than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
`
`Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The trial court must “draw all
`
`justifiable inferences in favor of the nonmoving party, including questions of credibility and of the
`
`weight to be accorded particular evidence.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496,
`
`520 (1991).
`
`A. Motion for Summary Judgment
`
`IV. DISCUSSION
`
`ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
`CASE NO. 19-cv-05440-RS
`
`2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:19-cv-05440-RS Document 138 Filed 09/03/21 Page 3 of 5
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`To establish a claim for copyright infringement, a plaintiff must demonstrate “(1)
`
`ownership of a valid copyright, and (2) copying of constituent elements of the work that are
`
`original.” Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). However, “[t]he
`
`existence of a license creates an affirmative defense to a claim of copyright infringement.”
`
`Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1114 (9th Cir. 2000).
`
`The distribution of any song implicates two separate copyrights – one in the musical
`
`composition and the other in the sound recording. The former “protects the generic sound that
`
`would necessarily result from any performance of the piece.” Newton v. Diamond, 204 F. Supp. 2d
`
`1244, 1240 (C.D. Cal. 2002), aff’d, 349 F.3d 591 (9th Cir. 2003), amended and superseded on
`
`denial of reh’g and aff’d, 388 F.3d 1189 (9th Cir. 2004). The latter shields “the sound produced by
`
`the performer’s rendition of the musical work.” Id. at 1249–50. A distributing entity must obtain a
`
`license for each of these copyrights to distribute a sound recording lawfully.
`
`Apple obtained sound recording and mechanical licenses from CD Baby and HFA,
`
`respectively, to distribute the works and paid all royalties due under these licenses.1 CD Baby is an
`
`online purveyor of independent music that offers digital music distribution services. When artists
`
`opt into CD Baby’s service, they can authorize CD Baby to license their music to other streaming
`
`and downloading services, including iTunes and Apple Music. From February 28, 2011 to
`
`November 14, 2017, Reynolds submitted all the Asserted Works to CD Baby and repeatedly
`
`executed with his digital signature CD Baby’s standard artist agreement. The agreement granted a
`
`host of rights to CD Baby and its “Licensees,” which is defined in the contract to include Apple.
`
`These include the non-exclusive right to “[r]eproduce and create derivative works of [the artist’s]
`
`[c]ontent”, “[p]ublicly perform, publicly display, communicate to the public, and otherwise make
`
`available [the artist’s] [c]ontent”, and “[a]uthorize . . . Licensees to perform any one or more of the
`
`
`1 Apple’s records indicate only 17 of the Asserted Works were streamed through the third quarter
`of 2019 when this action was filed. One of Reynolds’ songs was downloaded, though it is not
`among the Asserted Works. Because the other works were not “copied,” they cannot form the
`basis of an infringement claim.
`
`ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
`CASE NO. 19-cv-05440-RS
`
`3
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:19-cv-05440-RS Document 138 Filed 09/03/21 Page 4 of 5
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`activities specified above[.]” Black Declaration Ex. 3. Similarly, on August 16, 2016, Reynolds,
`
`acting on behalf of his publisher L.P. Reynolds Music and Film, agreed to Apple’s Subscription,
`
`Cloud and Lyrics Agreement using a click-through process hosted by HFA. By doing so, he
`
`granted Apple “all necessary rights” to distribute the Asserted Works. Williams Declaration Ex. C.
`
`Apple submits competent evidence showing each of the licenses was duly granted. The
`
`declaration of Donna Marisa Black, a Rights and Compliance Specialist at CD Baby, indicates she
`
`is qualified to authenticate business records. She confirms CD Baby licenses its clients’ work to
`
`Apple and attaches to her declaration a list of all the musical works, including the Asserted Works,
`
`Reynolds has authorized CD Baby to distribute and license. A similar HFA declaration from John
`
`Raso, Vice President of Client Services at HFA, states that HFA works with Apple and attaches a
`
`screenshot of HFA’s Agreement Portal indicating Reynolds opted into Apple’s Subscription,
`
`Cloud, and Lyrics Agreement. Though Reynolds stated at the hearing that he never provided his
`
`electronic signature to either entity, he provides nothing beyond his unadorned denial in support.
`
`He also acknowledges that he has received royalty checks from HFA and cashed some royalty
`
`checks from CD Baby. He advances no other evidence disputing the validity of either license or
`
`substantiating his claim that Apple exceeded the scope of either license.
`
`By signing the CD Baby and HFA contracts, Reynolds authorized those entities and, by
`
`extension, Apple, to distribute his music. Consequently, Apple was not obligated to file or serve
`
`NOIs, which are only required when an entity seeks a compulsory license under section 115 of the
`
`Copyright Act. Because Apple properly licensed the Asserted Works, it has not infringed on
`
`Reynolds’ copyrights. Its motion for summary judgment on the infringement claim is therefore
`
`granted.
`
`Reynolds also asserts he was not paid, or that he was underpaid, royalties. Apple explains
`
`that it paid royalties to CD Baby, which, in turn, distributed to Reynolds his share of those
`
`royalties. It had a similar arrangement with HFA – Apple paid mechanical royalties to HFA for
`
`streams matched to Reynolds’ publisher and HFA passed Reynolds’ share on to him. When works
`
`are not matched to a publisher, the case with “several” of the Asserted Works, Apple continually
`
`ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
`CASE NO. 19-cv-05440-RS
`
`4
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:19-cv-05440-RS Document 138 Filed 09/03/21 Page 5 of 5
`
`
`
`re-processes the royalty payments until the work is matched. Motion at 8. Reynolds does not offer
`
`any evidence showing any royalties were incorrectly calculated or unlawfully withheld. Apple is
`
`therefore entitled to summary judgment on this claim as well.
`
`B. Other Motions
`
`Apple has requested the entry of a protective order, a status conference to discuss
`
`discovery issues, and an extension of time to file a motion to compel discovery. Apple also seeks
`
`to seal a few exhibits related to royalty payments, an exhibit containing Apple’s licensing
`
`agreement with HFA, and parts of the motion that refer to these exhibits. A few days before the
`
`hearing, Reynolds filed a motion for ruling and a motion to amend. Yesterday, Apple filed a
`
`motion for extension of time to respond to Reynolds’ motions. Good cause appearing, the motion
`
`to seal is granted. All other motions are denied as moot.
`
`V. CONCLUSION
`
`For the reasons set forth above, the motion for summary judgment is granted.
`
`
`
`IT IS SO ORDERED.
`
`
`
`Dated: September 3, 2021
`
`
`
`
`
`______________________________________
`
`RICHARD SEEBORG
`Chief United States District Judge
`
`ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
`CASE NO. 19-cv-05440-RS
`
`5
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`