Case 2:15-cv-03462-RGK-AGR Document 142 Filed 03/25/16 Page 1 of 9 Page ID #:3561

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

E-Mail: pja@pjanderson.com
LAW OFFICES OF PETER J. ANDERSON
A Professional Corporation
100 Wilshire Boulevard, Suite 2010
Santa Monica, CA 90401
Tel: (310) 260-6030
Fax: (310) 260-6040
Attorneys for Defendants
JAMES PATRICK PAGE, ROBERT ANTHONY
PLANT, JOHN PAUL JONES, WARNER/CHAPPELL
MUSIC, INC., SUPER HYPE PUBLISHING, INC.,
ATLANTIC RECORDING CORP., RHINO
ENTERTAINMENT COMPANY and WARNER
MUSIC GROUP CORP.
Helene Freeman, Esq., admitted pro hac vice
E-Mail: hfreeman@phillipsnizer.com
PHILIPS NIZER LLP
666 Fifth Avenue
New York, NY 10103-0084
Tel: (212) 977-9700
Fax: (212) 262-5152
Attorneys for Defendants
JAMES PATRICK PAGE, ROBERT ANTHONY
PLANT and JOHN PAUL JONES

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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MICHAEL SKIDMORE, etc.,

Plaintiff,

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vs.
LED ZEPPELIN, et al.,
Defendants.

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Case No. 2:15-cv-03462 RGK (AGRx)

DEFENDANTS NOTICE OF
MOTION AND MOTION IN
LIMINE NO. 9 TO EXCLUDE
EVIDENCE AND ARGUMENT AS
TO PRE-MAY 31, 2011 REVENUES
AND FOREIGN REVENUES;
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT
Date: May 10, 2016
Time: 9:00 a.m.
Courtroom of the Honorable
R. Gary Klausner
United States District Judge

Case 2:15-cv-03462-RGK-AGR Document 142 Filed 03/25/16 Page 2 of 9 Page ID #:3562

TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on May 10, 2016, at 9:00 a.m. or as soon

thereafter as the matter may be heard in Courtroom 850 of the above-entitled District

Court, located at 255 East Temple Street, Los Angeles, California, defendants James

Patrick Page, Robert Anthony Plant, John Paul Jones, Warner/Chappell Music, Inc.,

Super Hype Publishing, Inc., Atlantic Recording Corporation, Rhino Entertainment

Company and Warner Music Group Inc., will move the above-entitled Court, the

Honorable R. Gary Klausner, United States District Judge presiding, for an Order

excluding all evidence and argument as to pre-May 2011 revenues, including

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advance payments under pre-May 2011 contracts, and as to revenues from the

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exploitation of Stairway to Heaven outside the United States.

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This Motion is brought on the grounds that, as stated more fully in the

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accompanying Memorandum of Points and Authorities, these revenues are irrelevant

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and testimony and argument as to them also would confuse issues, mislead the jury,

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prejudice defendants and result in undue delay and wasted trial time.

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This Motion is based upon this Notice of Motion and Motion, the

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Memorandum of Points and Authorities filed with this Notice of Motion and

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Motion, the pleadings and papers on file in this action, the matters of which this

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Court may take judicial notice, and such additional matters and oral argument as

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may be offered in support of the Motion.

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Case 2:15-cv-03462-RGK-AGR Document 142 Filed 03/25/16 Page 3 of 9 Page ID #:3563

The Motions are made following the conference with plaintiffs counsel

pursuant to Local Rule 7-3, which took place on March 22, 2016.

Dated: March 25, 2016

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/s/ Peter J. Anderson

Peter J. Anderson, Esq.
LAW OFFICES OF PETER J. ANDERSON
A Professional Corporation
Attorney for Defendants
JAMES PATRICK PAGE, ROBERT
ANTHONY PLANT, JOHN PAUL JONES,
WARNER/CHAPPELL MUSIC, INC.,
SUPER HYPE PUBLISHING, INC.,
ATLANTIC RECORDING CORP., RHINO
ENTERTAINMENT COMPANY and
WARNER MUSIC GROUP CORP.
Helene M. Freeman, Esq.
PHILLIPS NIZER LLP
Attorney for Defendants
JAMES PATRICK PAGE,
ROBERT ANTHONY PLANT and
JOHN PAUL JONES

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MEMORANDUM OF POINTS AND AUTHORITIES

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INTRODUCTION

Plaintiff alleges that Stairway to Heaven, composed and recorded in England

in December 1970-January 1971, infringes a copyright in the musical composition

Taurus. Although plaintiff has agreed that the Copyright Acts three-year statute of

limitations bars any claim to revenues from the exploitation of Stairway to Heaven

prior to May 31, 2011, he intends to offer testimony as to pre-May 31, 2011

payments with respect to the Led Zeppelin catalogue.

established case law confirms that only revenues from the exploitation of Stairway

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to Heaven in the United States are relevant, plaintiff intends to offer testimony and

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argument as to revenues from foreign exploitation.

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argument is irrelevant and would be unduly prejudicial.

In addition, although

All of this testimony and

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Accordingly, testimony and argument as to revenues from the exploitation of

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Stairway to Heaven prior to May 11, 2011 and revenues from the exploitation of

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Stairway to Heaven outside the United States should be excluded.

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2.

THE EVIDENCE AND ARGUMENT ARE PROPERLY LIMITED TO

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RELEVANT REVENUES

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(a)

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Pre-May 31, 2011 Revenues Are Properly Excluded

(1)

Pre-May 31, 2011 Revenues as Well as Advances Under

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Pre-May 31, 2011 Contracts Are Not Relevant

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The Copyright Act provides for a three-year statute of limitations. 17 U.S.C.

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507(a). Under the Acts three-year provision, an infringement is actionable

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within three years, and only three years, of its occurrence. And the infringer is

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insulated from liability for earlier infringements of the same work. Petrella v.

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Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1969 (2014). Plaintiff did not file this

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action until May 31, 2014. Complaint (Doc. 1). Accordingly, the only potential

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copyright infringements are public performances or distribution of Stairway to

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Case 2:15-cv-03462-RGK-AGR Document 142 Filed 03/25/16 Page 5 of 9 Page ID #:3565

Heaven on or after May 31, 2011. Defendants are insulated from liability for

earlier [alleged] infringements . . . . Petrella, 134 S. Ct. at 1969.

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Plaintiff conceded this point and his and defendants counsel advised the
Court in their August 10, 2015 Joint Rule 26(f) Report:
Counsel discussed the subjects on which they presently anticipate
discovery will be needed and those subjects include:

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(6) Defendants respective revenues, if any, from the licensing,

sale, distribution or other exploitation of the musical

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composition Stairway to Heaven on or after May 31, 2011

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(plaintiff having agreed that the Copyright Acts three year

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statute of limitations precludes relief as to any alleged

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infringements prior to May 31, 2011).

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Jt. R. 26(f) Report (Doc. 75) at 3-4, 6. But, apparently unhappy with those

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revenues, plaintiff advises he now intends to claim that payments prior to May 31,

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2011 are included in the calculation of his request for profits attributable to the

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alleged infringement.

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For example, months ago and a day after the Protective Order was entered in

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this case, defendants produced a 2008 contract as to all 87 musical compositions in

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the Led Zeppelin catalog, that created a contractual obligation to pay an advance, in

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installments in 2008, 2010, 2011 and 2012. Plaintiff now intends to argue that the

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advance constitutes revenues received from the alleged infringement. Aside from

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the fact that plaintiff did not name as a defendant the payor nor the recipient of the

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advance, plaintiffs attempt to turn a 2008 contractual obligation into a post-May 31,

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2011 alleged infringement fails.

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The advance is not revenue, let alone revenue from a post-May 31, 2011

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alleged infringement. Rather, the advance is a 2008 contractual obligation as to the

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entire Led Zeppelin catalog, and the advance is divorced from any alleged
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infringement: even if Stairway to Heaven were never exploited, the advance was still

contractually due. The 2008 contractual obligation to pay the advance is at most an

authorization to use the Led Zeppelin catalog, and it is well-established that

authorizing a use is not an infringement. Subafilms, Ltd. v. MGM-Pathe Commcns

Co., 24 F.3d 1088, 1090, 1095 (9th Cir. 1994), cert. denied 513 U.S. 1001 (1994).

None of this is changed by the fact that a portion of the 2008 advance was

paid in 2011 and 2012. They are still part of an advance that was agreed to in 2008

well outside the three-year statute of limitations and required by the 2008

contract to be paid whether or not Stairway to Heaven were publicly performed or

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distributed.

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The only revenues that are potentially the basis for a profit recovery in this

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action are revenues from the public performance or distribution of Stairway to

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Heaven on or after May 31, 2011. Testimony and argument as to other payments,

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including payment of the 2008 advance over time, is irrelevant and should be

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excluded.

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(2)

Testimony and Argument as to Pre-May 31, 2011 Revenues

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and Advances Under Pre-May 31, 2011 Contracts Would Be

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Unduly Prejudicial

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Because plaintiffs potential recovery is limited to profits from alleged

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infringements on or after May 31, 2011, testimony and argument as to revenues or

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advance payments under contracts prior to May 31, 2011 have no probative value.

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Also, any conceivable probative value is substantially outweighed by the substantial

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prejudice to defendants. Fed. R. Evid. 403.

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Testimony and argument as to pre-May 31, 2011 revenues or advances under

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pre-May 31, 2011 contracts, will only confuse the issues by injecting into the profit

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determination revenues as to alleged infringements and contracts as to which

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defendants are insulated from liability . . . . Petrella, 134 S. Ct. at 1969. Such

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testimony and argument will also mislead the jury into believing it is relevant when,
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Case 2:15-cv-03462-RGK-AGR Document 142 Filed 03/25/16 Page 7 of 9 Page ID #:3567

instead, it is not.

Such testimony and argument will also unfairly prejudice

defendants by allowing plaintiff, his witnesses and counsel to repeat figures that

have no bearing on the determination of profits. And, it will only waste time and

unduly delay the proceedings.

Accordingly, testimony and argument as to pre-May 31, 2011 revenues and

advance payments under pre-May 31, 2011 contracts have no probative value are

properly excluded under Rule 403.

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(b)

Extraterritorial Revenues Also Are Properly Excluded

(1)

Because the Potential Profit Recovery Is Limited to Use of

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Stairway to Heaven in the United States, Foreign Revenues

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Are Not Relevant

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Plaintiff asserts claims for copyright infringement and it is an undisputed

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axiom, . . . that the United States copyright laws have no application to

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extraterritorial infringement . . . . Subafilms, 24 F.3d at 1095, quoting 3 M.

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Nimmer & D. Nimmer, Nimmer on Copyright 12.04[D][2] (2016).

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plaintiffs claims do not reach alleged infringements outside the United States,

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revenues from those alleged infringements are not relevant.

Because

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As a narrow exception to that rule, courts have held that when an infringing

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work is created in the United States an equitable interest or lien attaches to copies of

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the United States-created work sold outside the United States, with that interest

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extending to resulting profits. Sheldon v. Metro-Goldwyn Pictures Corp., 106 F.2d

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45, 52 (2d Cir. 1939) (since defendant made the [movie] negatives in this country,

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or had them made here, and shipped them abroad, equitable interest applied to

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profits from extraterritorial sales), affd, 309 U.S. 390 (1940); Update Art, Inc. v.

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Modiin Pub., Ltd., 843 F.2d 67, 73 (2d Cir. 1988); 5 Nimmer on Copyright 14.05

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(Sporadic cases have held. . . that when an infringing work is produced in the

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United States, the copyright owner acquires an equitable interest therein as soon as it

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comes into being, and that the work is thereafter impressed with a constructive trust
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so that the plaintiff is entitled to profits accruing from exploitation of the work

anywhere in the world). This Circuit also recognizes that narrow exception. Los

Angeles News Serv. v. Reuters Television Intl, Ltd., 149 F.3d 987, 992 (9th Cir.

1998), cert. denied, 525 U.S. 1141 (1999).

Here, however, it is undisputed that Stairway to Heaven was composed and

recorded in England, not the United States. That precludes application of this

narrow exception because the predicate act of [alleged] infringement did not occur

in the United States. Los Angeles News Serv., 149 F.3d at 992; Update Art, 843 F.2d

at 73 (the geographic location of the illegal reproduction is crucial, with no

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recovery if th[e] predicate act occurred in Israel). Failing to require that the

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allegedly-infringing work was created in the United States would mean that every

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alleged infringement anywhere in the world triggers a potential profit award under

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the United States Copyright Act, effectively and improperly giving the Copyright

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Act extraterritorial effect.

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Revenues from the exploitation of Stairway to Heaven outside the United

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States are irrelevant and testimony and argument as to those revenues should be

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excluded.

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(2)

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Testimony and Argument as to Foreign Revenues Also

Would Be Unduly Prejudicial

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Because only profits from the exploitation of the Stairway to Heaven in the

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United States are potentially recoverable, revenues from outside the United States

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are irrelevant. And, to the extent extraterritorial revenues have any probative value,

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which they do not, it is substantially outweighed by the unfair prejudice of testimony

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and arguments as to foreign revenues, which would confuse the issues, mislead the

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jury and waste trial time and unduly delay the case.

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Accordingly, testimony and argument as to extraterritorial revenues are also

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properly excluded under Federal Rule of Evidence 403.

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Case 2:15-cv-03462-RGK-AGR Document 142 Filed 03/25/16 Page 9 of 9 Page ID #:3569

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3.

CONCLUSION

Pre-May 31, 2011 revenues and advance payments under pre-May 31, 2011

contracts are not relevant, and neither are revenues from the exploitation of Stairway

to Heaven outside the United States. Testimony and argument as to those revenues

and advance payments also have no probative value and would be unduly

prejudicial. Accordingly, testimony and argument as to pre-May 31, 2011 revenues

and advance payments under pre-May 31, 2011 contracts, as to extraterritorial

revenues, should be excluded.

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Dated: March 25, 2016

/s/ Peter J. Anderson

Peter J. Anderson, Esq.
LAW OFFICES OF PETER J. ANDERSON
A Professional Corporation
Attorney for Defendants
JAMES PATRICK PAGE, ROBERT
ANTHONY PLANT, JOHN PAUL JONES,
WARNER/CHAPPELL MUSIC, INC.,
SUPER HYPE PUBLISHING, INC.,
ATLANTIC RECORDING CORP., RHINO
ENTERTAINMENT COMPANY and
WARNER MUSIC GROUP CORP.
Helene M. Freeman, Esq.
PHILLIPS NIZER LLP
Attorney for Defendants
JAMES PATRICK PAGE,
ROBERT ANTHONY PLANT and
JOHN PAUL JONES

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