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Case: 16-55213, 03/01/2017, ID: 10338285, DktEntry: 44, Page 1 of 54

U.S. Court of Appeals Docket No. 16-55213

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OSAMA ARMED FAHMY,

Plaintiff-Appellant,

vs.

JAY-Z(aka SHAWN CARTER),et al.,

Defendants-Appellees

APPELLANT'S REPLY BRIEF

Appeal from a Judgment of


the United States District Court, Central District of California
Case No.07-CV-05715 CAS(PJWx)
The Honorable Christina A. Snyder, United States District Judge

BROWNE GEORGE ROSS LLP


Peter W. Ross (State Bar No. 109741)
Keith J. Wesley (State Bar No. 229276)
Corbin K. Barthold (State Bar No. 297938)
2121 Avenue ofthe Stars, Suite 2400
Los Angeles, California 90067
Telephone: (310)274-7100
Facsimile: (310)275-5697

Attorneys for Plaintiff-Appellant


Osama Ahmed Fahmy

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TABLE OF CONTENTS

Page

I. INTRODUCTION........................................................................................... 1
II. PLAINTIFF HAS STANDING TO SUE....................................................... 3
A. Plaintiff Retained, by Operation ofEgyptian Law, His Right to
Control Fundamental Modifications to Khosara, Which is a
Right that is Protected Under the U.S. Copyright Act. ........................ 3
1. Articles 143 and 145 limit the ability of an Egyptian
copyright licensee who owns the "economic right" of
adaptation to make or authorize changes to the
copyrighted work........................................................................ 5
2. Plaintiff is not restricted to enforcing his rights in
EgYPtian court. ........................................................................... 7
3. The right owned by Plaintiff is a right protected under the
U.S. Copyright Act................................................................... 10
4. Defendants' "parade of horribles" argument is
unconvincing............................................................................ ]5
B. The District Court Erred in Interpreting the 2002 Agreement, as
a Matter ofLaw,to Strip Plaintiff of His Right to Approve
Changes to Khosara............................................................................ 17
C. Plaintiff Has Standing as a Beneficial Owner ofKhosara................. 21
1. This Court can and should review the issue............................. 22
2. Plaintiff is a beneficial owner because he is the heir of
the author who has a right to receive royalties......................... 22
III. THIS COURT SHOULD GRANT PLAINTIFF JUDGMENT AS A
MATTER OF LAW ON LIABILITY.......................................................... 24
A. The Court Can and Should Consider the Issue of Liability................ 24
B. All Reasonable Jurors Would Find that Big Pimpin Infringes
Khosara............................................................................................... 25
1. Defendants do not own a valid license..................................... 25
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TABLE OF CONTENTS
(cont'd)
Page

2. The doctrine of equitable estoppel is inapplicable................... 27

3. The works are substantially similar as a matter of law............ 30


4. There is no "de minimis" or "fair" use. ................................... 31
IV. THE DISTRICT COURT ABUSED ITS DISCRETION IN
PROHIBITING THE JURY FROM HEARING THE ORIGINAL
RECORDING OF KHOSARA...................................................................... 33

V. THE CASE SHOULD BE REASSIGNED ON REMAND......................... 35

CERTIFICATE OF COMPLIANCE PURSUANT TO 9TH CIRCUIT


RULES 28-1.1(F), 29-2(C)(2) AND (3), 32-1, 32-2 OR 32-4 FOR
CASE NUMBER 16-55213.......................................................................... 36
APPENDIX ............................................................................................................. 37

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TABLE OF AUTHORITIES

Pages)
FEDERAL CASES

Akazawa v. Link New Tech. Intl, Inc.,


520 F.3d 1354(Fed. Cir. 2008)............................................................................

Alexander v. Baltimore Ins. Co.,


8 U.S. 370(1808)(Marshall, C.J.)..................................................................... 1

Bridgeport Music, Inc. v. UMG Recordings, Inc.,


585 F.3d 267(6th Cir. 2009).............................................................................. 34

Cheffins v. Stewart,
825 F.3d 588 (9th Cir. 2016)(McKeown, J., concurring)..................... 10, 11, 12

Creative Technology, Ltd. v. Aztech Sys. Pte, Ltd.,


61 F.3d 696(9th Cir. 1995)............................................................................ 8, 15

Davis v. Blige,
505 F.3d 90(2d Cir. 2007)................................................................................. 26

Fisher v. Dees,
794 F.2d 432(9th Cir. 1986)........................................................................ 31, 32

Friedman v. Zimmer,
2015 U.S. Dist. LEXIS 143941 (C.D. Cal. July 10, 2015).......................... 1 1, 12

Friedman v. Zimmer,
2015 WL 6164787(C.D. Cal. July 10, 2015).................................................... 12

Garcia v. Google, Inc.,


786 F.3d 733 (9th Cir. 2015)(en banc).................................................. 10, 11, 22

Golan v. Holder,
132 S. Ct. 873(2012)..................................................................................... 8, 16

Itar-Tass Russian News Agency v. Russian Kurier, Inc.,


153 F.3d 82(2d Cir. 1998)...............................................................................?, 8

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TABLE OF AUTHORITIES
(co~t'd)
Pages)

Jacobellis v. State ofOhio,


378 U.S. 184(1964)(Stewart, J., concurring)................................................... 34

Johnson v. Paradise Valley Unified Sch. Dist.,


251 F.3d 1222(9th Cir. 2001)............................................................................ 19

Kelley v. Chicago Park Dist.,


635 F.3d 290(7th Cir. 2011).............................................................................. 12

Lanard Toys Ltd. v. Novelty Inc.,


511 F. Supp. 2d 1020(C.D. Cal. 2007).............................................................. 19

Leadsinger, Inc. v. BMG Music Publishing,


512 F.3d 522(9th Cir. 2008).............................................................................. 32

Motola v. EMIAmerica Records,


Case No. 82-6308-PAR(C.D. Cal. April 18, 1984)........................ 13, 14, 15, 18

Nafal v. Carter,
540 F. Supp. 2d 1128(C.D. Cal. 2007).............................................................. 28

Newton v. Diamond,
388 F.3d 1189(9th Cir. 2004)...................................................................... 30,33

Petrella v. Metro-Goldwyn-Mayer, Inc.,


134 S. Ct. 1962(2014)....................................................................................... 29

Pickett v. Prince,
207 F.3d 402(7th Cir. 2000)(Posner, J.)........................................................... 31

Redevelopment Agency ofCity ofStockton v. BNSF Ry. Co.,


643 F.3d 668 (9th Cir. 2011).............................................................................. 24

Smith v. Casey,
741 F.3d 1236(1 lth Cir. 2014).......................................................................... 23

Swirsky v. Carey,
376 F.3d 841 (9th Cir. 2004).............................................................................. 31

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TABLE OF AUTHORITIES
(coot'd)
Pages)

United States v. Gabriel,


625 F.2d 830(9th Cir. 1980).............................................................................. 22

STATE CASES

Edwards v. Arthur Andersen LLP,


44 Cal. 4th 937(2008)........................................................................................ 18

FEDERAL STATUTES

U.S. Copyright Act, 17 U.S.C.


106(2).......................................................... 2, 3, 4, 6, 10, 11, 12, 13, 14, 15, 17
115 ................................................................................................................... 1 ~
501(b).............................................................................................................. 23

U.S. Patent Act .......................................................................................................... 2

RULES

Federal Rules of Civil Procedure, Rule 50.............................................................. 19

INTERNATIONAL STATUTES

Egyptian Copyright Act


Article 143 ......................................................................................2, 3, 4, 5, 7, 12
Article 145 ................................................................................................ 3,4, 5,7

OTHER AUTHORITIES

Berne Convention for the Protection of Literary and Artistic Works....................... 8

Cheryl Swack,Safeguarding Artistic Creation and the Cultural Heritage:


A Comparison ofDroit Moral Between France and the United States,
22 Colum.-VLA J.L. &Arts 361, 388(1998).................................................... 11

Compendium of U.S. Copyright Office Practices 619.7(3d ed.)........................ 22

H.R. Rep. No. 609, 100th Cong., 2d Sess, 9-10, 32-34 .......................................... 10

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TABLE OF AUTHORITIES
(cont'd)
Pages)

Nimmer on Copyright, 17.05 (1998)...................................................................... 8

Universal Copyright Convention............................................................................... 8

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I. INTRODUCTION.

The parties here have been pitted against each other in contentious litigation

for over a decade. It should therefore come as no surprise that they disagree on

much. But after distilling the rancor and the red herrings from the relevant, a

fundamental point on which they agree emerges.

On the threshold issue of standing, Plaintiff asserted that he could not, in

Egypt through an Egyptian contract, have validly given up his right to control

fundamental changes to the work Khosara, because any attempt to do so would

have been "null and void" under Egyptian law. On this key point, the parties seem

to agree. Defendants a~ that Egyptian law governs the scope of rights conveyed

under the 2002 agreement, which was an agreement between two Egyptians

executed in Egypt regarding an Egyptian work. And Defendants and their expert

agree that, in the country that bestowed the rights in issue (Egypt), the author or his

heirs always retain the right to control fundamental alterations to the author's

work.' In other words, Plaintiff could not, based on an Egyptian contract between

' See Answering Brief["AB"] at 39("[T]he moral right of `integrity' is a wholly


separate right, recognizable in Egypt, to object ... to those derivative works
deemed to constitute `deforming changes' or a `distortion or mutilation ofthe
work,' whether or not the relevant economic rights have been transferred"); AB at
40("As explained by Defendants' Egyptian law expert, `[ifJ I authorize someone
directly or indirectly to make an adaptation of my work and I'm not happy with the
derivative work that has been created[,] I can go in Egypt to court and object [to]
the use that is made with my original work because I believe that it mutilates my
work or it creates distortion or it harms my reputation"').

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two Egyptians being construed under Egyptian law, have validly relinquished his

right to prevent unauthorized fundamental alterations to Khosara. Plaintiff still

owns that right.

What remains disputed is whether Plaintiff can enforce his right in the

United States.2 In his opening brief, Plaintiff explained that, like Article 143 ofthe

Egyptian copyright law, the "derivative works" provision of the U.S. Copyright

Act, 17 U.S.C. 106(2), prohibits the creation, display, or distribution of a

copyrighted work that has been fundamentally altered. Section 106(2) of the U.S.

Copyright Act thus outlaws a violation of the very right owned by Plaintiff.

Plaintiff has standing to sue to stop and obtain redress for a violation of his right.

To convince the district court to hold otherwise (and to attempt to convince

this Court to hold otherwise), Defendants rely on ambiguous labels that can mean

different things in different contexts and countries (e.g.,"economic rights," "moral

rights") and generalized dicta (i.e., America "generally" does not recognize "moral

It is undisputed that while Egyptian law governs the issue of copyright


ownership, U.S. copyright law governs the issue of infringement. See also Itar-
Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 84(2d Cir. 1998)
("On the conflicts issue, we conclude that, with respect to the Russian plaintiffs,
Russian law determines the ownership and essential nature ofthe copyrights
alleged to have been infringed and that United States law determines whether those
copyrights have been infringed in the United States and, if so, what remedies are
available"); Akazawa v. Link New Tech. Intl, Inc., 520 F.3d 1354, 1357(Fed. Cir.
2008)(applying Japanese intestacy law to determine ownership of patent prior to
applying U.S. Patent Act to determine if patent infringed in U.S.).

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rights"). But setting aside semantics and dicta(and accusations and invective), this

case boils down to a rather unremarkable proposition: Plaintiffowns, under the

law ofthe country oforigin ofhis copyright(Egypt), the right to protect his

copyrightfromfundamental changes, and the U.S. Copyright Act(17 U.S.C.

, 106(2)) recognizes the right owned by Plaintiffand expressly prohibits Americans

from violating Plaintiff's right. That statement is true, regardless of how

Defendants label Plaintiff's right and regardless of any dicta from opinions that do

not address the issue pending before this Court.

Plaintiff respectfully submits that he should be able to sue for copyright

infringement here in an American court i.e., the only court that would have the

power to stop Defendants' extensive, continuing, unauthorized, and (yes) vulgar

and unfortunate distortion ofPlaintiff's work in America. The district court's entry

ofjudgment as a matter oflaw in favor ofDefendants should be reversed, and the

case should be remanded for a full and fair trial on the merits.

II. PLAINTIFF HAS STANDING TO SUE.

A. Plaintiff Retained, by Operation of Egyptian Law, His Ri6ht to

Control Funclamental Modifications to Khosarn, Which is a Right

that is Protected Under the U.S. Copyright Act.

In the Opening Brief at pages 39-48, Plaintiff explained: (a) Articles 143

and 145 of the Egyptian copyright act are as much a part of the 2002 agreement as

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any express provision therein;(b) Articles 143 and 145 rendered "null and void"

any transfer ofPlaintiff's right to control fundamental changes to Khosara; and(c)

the right Plaintiff retained under Articles 143 and 145 is enforceable under the U.S.

Copyright Act. As previewed above, Defendants do not really contest that Articles

143 and 145 are part of the 2002 agreement,3 or that those provisions render "null

and void" any transfer ofPlaintiff's right to control fundamental changes to

Khosara. Rather, Defendants contend that the limitation on the contractual transfer

is irrelevant because (a)the non-transferable "moral right" to control fundamental

alterations to a work is wholly separate from the transferable "economic right" to

control alterations to the work;(b)Plaintiff's moral rights can only be exercised in

Egypt; and (c)the United States copyright laws do not protect Plaintiff's moral

rights. Those contentions part misleading, part incomplete, part erroneous are

rebutted below.

Defendants do at one point half-heartedly argue that Articles 143 and 145
should not be read into the 2002 agreement because the agreement was to be
performed "in all parts ofthe world." (AB at 41.) However,the agreement,
between two Egyptians, was negotiated and executed in Egypt. And the agreement
effectuated a limited transfer of Egyptian property in Egypt from one Egyptian to
another. Under these circumstances, Defendants' suggestion that the U.S.
Copyright Act is actually the law that should be read into the 2002 agreement is
nonsensical. Taken to its logical conclusion, every worldwide licensing deal
negotiated in America between Americans would inherently include every law of
every country in the world. Defendants cannot seriously be requesting that result.
And Defendants seem to abandon the assertion elsewhere in their brief, where they
and their expert concede that Plaintiff retained, via Egyptian law, the right to object
to changes to Khosara see footnote 1.

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1. Articles 143 and 1451imit the ability of an Egyptian

copyright licensee who owns the "economic right" of

adaptation to make or authorize changes to the copyrighted

work.

Defendants exert much energy trying to erect an impenetrable wall between

the "economic right" of adaptation and the "moral right" of an author to control

fundamental alterations to his work under Egyptian law. In fact, Defendants are

correct that moral rights can be conceptualized as existing separately and

independently from economic rights in certain ways under Egyptian law. For

example, moral rights under Egyptian law remain with the author regardless of the

transfer of economic rights and regardless ofthe term of the copyright. However,

Defendants ultimately concede that, as a practical matter and in the context of this

case, the economic right of adaptation and the moral right to control fundamental

changes to a work are not "wholly separate" at all. Rather, the author's moral right

prevents a licensee from making fundamental changes to a work without the

author's consent. (AB at 39)(Article 143 gives Plaintiff the right "to object ... to

those derivative works deemed to constitute `deforming changes' or a `distortion or

mutilation of the work,' whether or not the relevant economic rights have been

transferred"). In other words, the author's moral right is an automatic statutory

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limitation on the scope of any economic right of adaptation that has been

transferred.4

Defendants' acknowledgement that Plaintiff still owns the right to control

any "distortion or mutilation" ofKhosara in Egypt is consistent with Plaintiff's

position, as articulated on page 45 ofthe Opening Brief and as supported by the

author of the Egyptian copyright law, Dr. Loutfi:

[A]ny right related to the copyright including, for

example, the right to adapt the copyright from a book to a

movie or a musical composition to a recording can be

transferred via a license. (ER 728-30.) However, the

right to alter a copyrighted work in a way that could be

considered a `mutilation or distortion' is always subject

to the author's prior consent on a case-by-case basis.

(Opening Brief["OB"] at 45.) The parties thus agree that even if Plaintiff had

licensed all of his "economic rights"(which Plaintiff disputes in the Opening Brief

4 As emphasized in the Opening Brief at page 12, Egypt's decision to reserve


automatically to an author a subpart ofthe adaptation right that we protect under
Section 106(2) is not remarkable. American authors often reserve expressly in
their contracts the right to control significant changes to their works, as Jay-Z
himself did in his publishing contract. Egypt simply made it easier on its authors
the law automatically reserves the author's right to control significant changes to
his or her work. This legal limitation protects authors, who oftentimes have less
bargaining power than music companies when negotiating licenses or assignments.

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and below), Plaintiff would have retained the ability, under Egyptian law,to

prevent fundamental changes to Khosara that he has not approved.

The question, which will be answered next, is the following: Can Plaintiff

enforce his right only in a court in Egypt?

2. Plaintiff is not restricted to enforcing his rights in Egyptian

court.

Defendants contend that "even assuming Egyptian moral rights are `read

into' the 2002 Agreement, such rights may be `exercised only in ajurisdiction

where they have been granted by law."' (AB at 40)(emphasis in original). In

other words, according to Defendants, Plaintiff's only avenue for stopping

Defendants' ongoing infringement in America is to sue Defendants in Egypt.

Defendants are wrong for multiple reasons.

First, as explained in the Opening Brief at page 46, nothing in the Egyptian

copyright act states that an Egyptian author is prohibited from protecting the rights

he retains under Articles 143 and 145 in another country. And nothing in the

Egyptian copyright act states that a transfer of an author's right to object to

fundamental changes in his work is "null and void" only in Egypt. The only basis

for Defendants' assertion that Plaintiff's only recourse is a lawsuit in Egypt is the

ipse dixit of Defendants' expert, Mr. Farhat. But Mr. Farhat's testimony on this

point is unsupported by any Egyptian law or legal authority, contradicted by the

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testimony of the author Dr. Loutfi ofthe law being interpreted, and inconsistent

with basic "choice oflaw" principles that routinely require courts to apply the laws

of other states or countries.5

Second, under international copyright law, including as applied by federal

courts of this country, courts protect the rights of foreign authors to the same extent

as they protect the rights of native authors. See, e.g., Creative Technology, Ltd. v.

Aztech Sys. Pte, Ltd., 61 F.3d 696, 700-01 (9th Cir. 1995)("Both the Universal

Copyright Convention (U.C.C.) and the Berne Convention for the Protection of

Literary and Artistic Works(Berne) mandate a policy of national treatment in

which copyright holders are afforded the same protection in foreign nations that

those nations provide their own authors"); Ita~-Tass Russian News Agency v.

Russian Kurier, Inc., 153 F.3d 82, 89(2d Cir. 1998)("an author who is a national

of one of the member states of either Berne or the U.C.C., or one who first

publishes his work in any such member state, is entitled to the same copyright

protection in each other member state as such other state accords to its own

nationals"), quoting Nimme~ on Copyright, 17.05 (1998); see also Golan v.

Indeed, would Egypt a country where the author's right is supreme really
intend for the author's right to control fundamental changes to his work to extend
solely to Egypt's borders? Absent a clear expression of that intent in Egypt's
statutory law (which does not exist), this Court should not read into Egyptian law
an illogical limitation that is directly contrary to a fundamental tenet ofEgypt's
copyright system.

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Holder, 132 S. Ct. 873(2012)("Congress determined that U.S. interests were best

served by our full participation in the dominant system of international copyright

protection. Those interests include ensuring exemplary compliance with our

international obligations, securing greater protection for U.S. authors abroad, and

remedying unequal treatment of foreign authors"). Thus, if a Russian author pens

an original novel that is protectable under the laws of Russia and is infringed in

Canada, the author is not limited to bringing a suit in Russia; the author can

enforce his copyright in the courts of Canada as well.

This case is actually a textbook example of why courts, including U.S.

courts, recognize and enforce copyrights offoreign authors in suits against

domestic defendants. If courts forced the aggrieved copyright owner to sue solely

in her home country, rare would be the case in which the court has jurisdiction

over the infringer and/or its assets. Most copyright owners' hands (including

Plaintiff's hands here) are tied unless they are able to enforce their rights to the

location ofthe infringers and the infringement.

In conclusion, there is nothing in law or equity that supports the Catch-22

that Defendants ask this Court to impose on Plaintiff i.e., you can't enforce your

rights against American infringers here, but you can enforce your rights against

Americans in your home country ...which lacks jurisdiction over the American

infringers and which lacks the ability to stop infringement in America.

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This leads to the final question: Does the U.S. Copyright Act prohibit

unauthorized fundamental changes to a copyrighted work? In other words, does

the U.S. Copyright Act protect the right still owned by Plaintiff? That question

will be addressed next.

3. The right owned by Plaintiff is a right protected under the

U.S. Convright Act.

In the Opening Brief at pages 33-35, Plaintiff explained why the "derivative

works" provision of the U.S. Copyright Act protects, among other things, the same

exact right owned and asserted by Plaintiff i.e., the right to control fundamental

changes to a copyrighted work. Defendants ignore the authorities cited by

Plaintiff, including legislative history that expressly found that 17 U.S.C. section

106(2) is part of"a composite of laws" that protects the right of integrity of a

copyrighted work see Opening Brief at note 10, quoting H.R. Rep. No. 609,

100th Cong., 2d Sess, 9-10, 32-34.

Instead, as expected, Defendants trumpet broad dicta from courts, including

this Court, that "United States copyright law generally does not recognize moral

rights."6 (AB at 35, quoting Garcia v. Google, Inc., 786 F.3d 733, 746(9th Cir.

2015)(en banc), and citing Cheffins v. Stewart, 825 F.3d 588, 598-99(9th Cir.

6 Even the broad proclamations in Defendants' dicta are conditional i.e., we


"generally" do not recognize moral rights.

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2016)(McKeown, J., concurring), and Friedman v. Zimmer, 2015 U.S. Dist.

LEXIS 143941, at * 16(C.D. Cal. July 10, 2015).) This dicta is neither binding

nor pertinent.

This Court decided Google v. Garcia, 786 F.3d 733 (9th Cir. 2015),"solely

on the copyright issue" i.e., the fact that the plaintiff did not own (and had never

owned)a valid copyright in her performance. Id. at 744. The remainder of the

opinion, which includes the passing reference to "moral rights" that Defendants

rely upon, is not necessary to the holding. Nor did this Court, in its dicta in

Garcia, address the issue here i.e., whether a provision in a foreign country's law

that reserves to an author the right to object to fundamental changes to his work

falls within the scope ofthe derivative works prohibition in the Copyright Act.

Indeed, the derivative works provision ofthe Copyright Act is never cited in and is

wholly irrelevant to Garcia.

This Court in Cheffins also did not address the issue here or anything close.

Cheffins involved the Visual Artist Rights Act(VARA), not the derivative works

right under section 106(2). In fact, when describing the evolution of moral rights

in her concurring opinion in Cheffins, Judge McKeown relied on a law review

article that endorses Plaintiff's position in this appeal. See Cheryl Swack,

Safeguarding Artistic Creation and the Cultural Heritage: A Comparison ofDroit

Moral Between France and the United States, 22 Colum.-VLA J.L. &Arts 361,

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388(1998)("[T]he right to prepare derivative works, under section 106(2),

arguably protects the right of integrity insofar as it pertains to protecting works

against mutilations and distortions").~

Finally, in Friedman v. Zimmer,2015 WL 6164787(C.D. Cal. July 10,

2015), the plaintiff claimed that the defendants' film violated his moral right of

attribution i.e., the right to be listed as an author under French and German

law. The district court declined to exercise jurisdiction after noting that the claim

being asserted by the defendants had "no clear parallel in U.S. law." Id. at *6.

This case is distinguishable from Friedman in that it involves the "clear parallel"

deemed lacking in Friedman i.e., Section 106(2) protects the right owned by

Plaintiff pursuant to Article 143 of the 2002 Egyptian copyright act.

Defendants' argument on the unenforceability of"moral rights" illustrates

perfectly the danger of relying on and overextending broad proclamations rendered

in dicta. Alexander v. Baltimore Ins. Co., 8 U.S. 370, 379(1808)(Marshall, C.J.)

("It is extremely dangerous to take general dicta upon supposed cases not

considered in all their bearings, and, at best, inexplicably stated as establishing

' Like Cheffins, the Seventh Circuit decision in Kelley v. Chicago Park Dist., 635
F.3d 290(7th Cir. 2011), involved a VARA claim and had nothing to do with the
"derivative works" right under section 106(2) ofthe U.S. Copyright Act. The
Seventh Circuit panel that wrote a "brief history of moral rights" in Kelley, id. at
296-98, had no reason to consider the potential overlap between the derivative
work right under section 106(2) and the right to control fundamental alterations
under Egyptian copyright law (or analogous foreign statutes).

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important law principles"). Unlike the authorities cited by Plaintiff on pages 33-35

of the Opening Brief, Defendants' authorities were not considering and thus never

addressed the specific issue before this Court.

An opinion by then-district judge Pamela A. Rymer in a case with many

parallels to this one offers yet another and perhaps the most stark illustration of

why Plaintiff's right is(and has long been) protected under the U.S. Copyright Act.

See Motola v. EMI America Records, Case No. 82-6308-PAR(C.D. Cal. April 18,

1 984).8 The plaintiff there owned the copyright in the song "Jeannie, Jeannie,

Jeannie," popularized by the singer Eddie Cochran. The defendants were a rock

`n' roll band called "The Stray Cats." Id. at 1-2. The defendants recorded a

version of"Jeannie, Jeannie, Jeannie" with "changed and vulgarized lyrics." Id. at

2. The defendants asserted they had a license to "cover" i.e., record their own

version of the song based on a licensing agreement that expressly incorporated

the "compulsory license" scheme for cover versions of songs see 17 U.S.C.

1 15. Id. at 2-4. Plaintiff noted, however, that a compulsory license" under Section

1 15 would not apply if the song is "perverted, distorted or travestied" or if the

license holder changes the "basic melody" of the song or altered its "fundamental

character." Id. at 3. Judge Rymer granted partial summary judgment in favor of

g Because the decision is not available on Westlaw or Lexis, Plaintiff includes a


certified copy in an appendix to this brief.

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the plaintiff on his claim for infringement under the U.S. Copyright Act, holding as

follows:

Although the musical arrangements in this case are, by

plaintiff's own admission, quite similar, the changes in

the lyrics are substantial and clearly beyond the scope of

the 115(a)(2) privilege. Regardless of whether these

changes are detrimental or beneficial with regard to the

income produced by `Jeannie, Jeannie, Jeannie,' the

ultimate effect is to change radically the tenor and appeal

of plaintiff's song. The references to `wild parties' and

`free booze' and the insertion of obscenities into the

lyrics must certainly have the effect of `pervert[ing],

distort[ing], and travesty[ing]' plaintiff's composition.

Musicians and record companies should be required and

Congress has determined that they are required, to obtain

the consent ofthe copyright owner before making these

kinds of changes in a protected work.

Id. at 6. In Motola, an American copyright owner could sue and succeed in suing

under section 106(2) of the U.S. Copyright Act when a defendant recorded his

song with new and vulgar lyrics. Here, Plaintiff should be able to sue under

~z~zz6.4 14
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section 106(2) ofthe U.S. Copyright Act when Defendants recorded Plaintiff's

song with new and vulgar lyrics. Plaintiff and.the American copyright owner in

Motola should receive "the same protection" under the law. Creative Technology,

61 F.3d at 701 ("National treatment ...requires this Court to grant Creative the

same copyright protection enjoyed by American authors").

4. Defendants'"parade of horribles" ar~umenf is

unconvincing.

Plaintiff will respond briefly to Defendants' "parade of horribles" argument

on pages 44 and 45 of the Answering Brief:

[E]very author of a copyrighted work in a moral rights

country (such as France, the United Kingdom, Egypt, and

China) who, as here, fully transfers and assigns his or her

economic right to create derivative works, could come

into U.S. courts and use a moral rights restriction

purportedly "read into" the assignment to seek damages

under the U.S. Copyright Act for exploitations of U.S.

copyrights in the U.S., simply because of the location in

which the original agreement was entered.

Upon first read, Defendants' speculation perhaps sounds ominous, as any

good pat-ade-of-horribles advocate intends. But pause for a moment to consider


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Defendants' hypothetical. If(a)a foreign author,(b) has his work altered by

someone in the U.S., but(c)the foreign author had previously assigned the right to

create derivative works in its entirety, but(d)part ofthe foreign author's derivative

works right is automatically reserved as a matter of his country's law, then (e)the

foreign author will be able to exercise, in U.S. court, the rights he retained by law

in his country. Upon further reflection, Defendants' hypothetical is not frightening

at all. First, the situation posed by Defendants sounds rather unique (and

Defendants present no empirical data to indicate otherwise). Second, it seems like

a good thing that a foreign author whose rights are being violated by Americans

could obtain redress in a court that has jurisdiction over the American infringers

and their infringing works. Third, the U.S. Supreme Court has ensured compliance

with U.S. obligations to foreign authors in the face of far more ominous(and

plausible)"parade of horribles" arguments. See, e.g., Golan, 132 S. Ct. at 893-94.

Finally, Defendants' hypothetical scenario is exactly how the law is supposed to

work under the Berne Convention. If a foreign author retained a right under the

law of the country of origin of his work and that is enforceable and infringed under

U.S. law, then the foreign author should be allowed the same access to our- courts

and our remedies as any American author.

In fact, if this Court were inclined to contemplate the potential practical

effects of its ruling, Plaintiff posits that it is Defendants' position that is more

~z ~ 226.4 16
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likely to strike up the parade of horribles. Defendants want this Court to tell a

foreign author that, despite the Berne Convention, and despite consistent

pronouncements by U.S. courts that the rights of foreign authors will be protected

to the same extent as U.S. authors, this U.S. court will not enforce, against U.S.

citizens, Plaintiff's undisputed rights in Khosara. By sending a message that U.S.

courts will not protect foreign authors who own rights that U.S. citizens or entities

have infringed, it is at least plausible that foreign courts will return the favor the

next time U.S. authors seek redress from them.

In any event, this Court need not engage in speculation as to the potential

effects of its holding. Rather, law and logic compel the following holding:

Plaintiffretained, as a matter ofEgyptian law, the right to controlfundamental

changes to Khosara, which is a right thatfalls within the protections ofthe U.S.

Copyright Act; therefore, Plaintiffhas standing to sue.

Plaintiff will next turn to alternative arguments demonstrating his standing.

B. The District Court Erred in Interpreting the 2002 Agreement, as

a Matter of Law,to Strip Plaintiff of His Right to Approve

Changes to Khosara.

In the Opening Brief, Plaintiff asserted that the totality of circumstances,

(including the governing law in effect at the time ofthe 2002 agreement and the

convoluted text in the agreement), created a material dispute as to whether Plaintiff

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clearly and unequivocally transferred his right to approve fundamental alterations

to Khosara. (OB at 49-53.) In particular, Plaintiff contended that the parties to the

2002 agreement both Egyptian would have understood that Egyptian law

automatically preserved Plaintiff's right to control fundamental changes to

Khosara, and therefore the parties would not have contemplated an express

contractual reservation of that right. (Id. at 49-51.)

In response, Defendants ignore the authorities cited by Plaintiff at pages 50-

51 of the Opening Brief. See OB at 50-51, citing Edwards v. Arthur Andersen

LLP,44 Cal. 4th 937, 950-55 (2008)(limiting a broad transfer ofrights on the

basis that it "could presume" that contracting parties knew that the governing law

at the time rendered part of the transfer "null and void"). Instead, Defendants say

dismissively that "Plaintiff recycles the same baseless argument that he can bring a

disguised moral rights claim in U.S. courts." (AB at 48.) But Defendants miss the

real point. The real point is that a reasonable juror could have found that the

parties to the 2002 agreement did not intend to transfer Plaintiff's right to object to

fundamental changes to Khosara because those parties knew that the governing

law automatically reserved the right to Plaintiff Defendants offer no response to

that point.

Plaintiff also flagged other surrounding circumstances that could indicate to

a reasonable juror that the parties to the 200? agreement did not intend for Plaintiff

721226.4 1O
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to transfer to Jaber the right to object to fundamental changes to Khosara. For

example, Plaintiff noted that before, during, and after entering into the 2002

agreement, he was pursuing an infringement claim against Big Pimpin, which

indicates that he did not intend to convey to Jaber his right to object to Big

Pimpin.9 In response, Defendants put their own spin on these circumstances.

Defendants infer that Plaintiff"decided to `cash in' and completely transfer any

remaining rights in Khosara(and other Hamdy compositions) to Jaber in the 2002

Agreement." (AB at 48-49.) However, Defendants' inference, which is entirely in

their favor, cannot be made when evaluating a Rule 50 motion for judgment as a

matter of law in favor of Defendants. See Johnson v. Paradise Valley Unified Sch.

Dist., 251 F.3d 1222, 1227(9th Cir. 2001)("That there was also evidence

favorable to the District was simply not relevant, since the jury was free to

disbelieve, and therefore to disregard, that evidence")

As another example, Defendants say that Jaber's company was kept apprised

ofthe EMI-Mosely agreement and ultimately received 50% of the net funds that

EMI got under the agreement. But the ENII-Mosley agreement was signed in 2001

y Indeed, absent a clear and express assignment of Plaintiff's cause of action


(which is not contained in the 2002 agreement), Plaintiff would have maintained
ownership of his pre-existing and accrued claim, which is being asserted herein.
See Lanard Toys Ltd. v. Novelty Inc., 511 F. Supp. 2d 1020, 1033(C.D. Cal. 2007)
("A grant of copyright, even if it purports to convey `all right, title and interest,' is
generally construed not to assign existing causes of action unless such causes of
action are expressly included in the grant").

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i.e., before the 2002 agreement. Therefore, the EMI-Mosely agreement says

nothing about the parties' intent regarding the scope ofthe 2002 agreement. Nor is

there any evidence that Plaintiff was made aware of the EMI-Mosley agreement

(or Jaber's purported knowledge of same). (In fact, Plaintiff was never apprised of

any of it.) Defendants' story i.e., that both Jaber and Plaintiff intended for all

rights in the copyright to go to Jaber is a post hoc concoction by creative defense

counsel. Jaber who is a client of Defendants' expert, Mr. Farhat did not submit

any evidence as to the scope of the 2002 agreement. If Jaber truly believed he had

received, contrary to Egyptian law, all rights to authorize fundamental changes to

Khosara, Jaber would have submitted evidence to that effect. At the least, a

reasonable juror could so infer.

Finally, while Defendants say the 2002 agreement "clearly" transferred to

Jaber the right to make and approve fundamental changes to Khosara Khosara,

Plaintiff again respectfully requests the Court to read the agreement. (ER998-

1000.)10 Where in the agreement does Plaintiff clearly manifest his intent to

' Defendants slyly quote an isolated piece of testimony from Dr. Loutfi for the
proposition that even he believed the 2002 agreement transferred all rights in
Khosara to Jaber. (AB at 33-34.) But it is clear, based on a review of the entirety
of Dr. Louth's testimony, that Dr. Louth truly believed that the 2002 agreement
did not transfer the rights to make fundamental changes to Khosara. (ER727-33.)
Indeed, after the moment of confusion cited in isolation by Defendants, Dr. Louth
immediately clarified his actual view. (ER728)("Q. Yeah. So,just so the record's
clear, based on the plain language ofthe agreements that you reviewed, do you

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transfer the right to make and approve fundamental changes to Khosara? Where is

that "clear" sentence or provision? If the agreement is properly viewed in a light

most favorable to Plaintiff, the Court should at the very least find that the language

is unclear and that the district court erred in finding that every reasonable juror

would have to construe the agreement as Defendants do (and as the district court

now does).'~ See, e.g., ER998("I hereby assign ...the right to print, publish and

use the music of the songs stated in this statement on all currently known audio

and/or visual ... or any other means that may be invented in the future including

musical re-segmentation and alteration methods while maintaining the original

segment ofthe music")(emphasis added).

The district court erred in usurping the role ofthe jury in ruling, as a matter

of law, that Plaintiff had conveyed to Jaber all rights including those rights

guaranteed to Plaintiff under Egyptian law to object to distortions ofKhosara.

C. Plaintiff Has Standing as a Beneficial Owner of Khosara.

Plaintiff alternatively demonstrated in his Opening Brief that he has standing

because he is a "beneficial owner" ofKhosara. Plaintiff posited that he is a

beneficial owner both because he is the author's heir and because he still has a

believe that these agreements that are an issue in this case provide the defendants
the right to use `Khosara' in `Big Pimpin"? A. No.").
" Lest it be forgotten, the district court itself had originally concluded that the
language of the 2002 agreement was too ambiguous to interpret as a matter of law.
(ERl203.)

~z~zz6.4 21
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contractual right to royalties for the exploitation of Khosara. (OB at 54-55.)

Defendants cannot refute these truths or their legal significance.

1. This Court can and should review the issue.

Defendants first contend that this Court should not review the issue because

it was not raised below. (AB at 50.) Defendants are wrong. The argument was

made below. (ER1244-45 ("Plaintiff is still a beneficial owner, with standing to

sue, because he is paid royalties from SACEM").) And, in any event, the relevant

facts are undisputed and fully developed, and the issue is purely one oflaw i.e.,

does an author who retained the right to receive royalties have standing to sue?

The Court thus can and should review the issue. See United States v. Gabriel, 625

F.2d 830, 832(9th Cir. 1980).

2. Plaintiff is a beneficial owner because he is the heir of the

author who has a right to receive royalties.

As explained in the Opening Brief, Plaintiff remains a beneficial owner with

standing to sue because he is the heir of the author ofKhosara. This is confirmed

by the U.S. Copyright Office. (OB at 54, quoting Compendium of U.S. Copyright

Office Practices 619.7(3d ed.)("[T]he author always retains a legal or equitable

interest in the copyright, even ifthe copyright has been licensed or assigned to a

third party").) Defendants ignore the Copyright Office's definition of an interested

party. This Court should not. See Garcia, 786 F.3d at 741-42 (crediting and

721226.4 22
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adhering to "expert opinion ofthe Copyright Office"). Plaintiff should have

standing to sue for infringement ofKhosara purely because he is, now that Hamdy

is deceased, the legal author ofthe work.

Defendants instead focus on the significance of Plaintiff's ability to receive

royalties from the continued exploitation ofKhosara. Initially, Defendants

challenge whether Plaintiff has any ability to receive royalties for Khosara. (AB at

50-51.) But Defendants' position is contrary to the finding of the district court that

Plaintiff did in fact retain the right to receive royalties (ER24-26), as confirmed by

the 2002 agreement itself. (ER1000.) Defendants also say that Plaintiff lacks

standing because he does not own the derivative work right that he claims is being

infringed. As explained above, Plaintiff vigorously disagrees. Regardless, the

overwhelming weight ofthe case law holds that an author who continues to receive

royalties has standing to sue. See OB at 54; see also Smith v. Casey, 741 F.3d

1236, 1241 (11th Cir. 2014)("To our knowledge, each of our sister circuits to have

confronted the situation has agreed that an author who assigns his legal rights to a

work in exchange for royalties from its exploitation has a beneficial interest

sufficient for statutory standing under 501(b)")

For all these reasons, the district court's judgment should be reversed, and

the case should be remanded for a new trial. Plaintiff will next address

Defendants' arguments related to the scope of the new trial.

721226.4 23
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III. THIS COURT SHOULD GRANT PLAINTIFF JUDGMENT A5 A

MATTER OF LAW ON LIABILITY.

A. The Court Can and Should Consider the Issue of Liability.

On pages 52-53 ofthe Answering Brief, Defendants argue that this Court

should not address Plaintiff's arguments in favor of granting him judgment as a

matter of law on liability because the district court did not rule on them.

Defendants, however, cite no authority for the proposition that this Court lacks the

power to enter judgment as a matter of law in Plaintiff's favor after a full trial has

already been conducted and the district court has granted the defendant's motion

for judgment as a matter of law. Indeed, this Court has held that it can entertain an

appeal of the denial of a plaintiff's motion for summary judgment and,if

appropriate, grant plaintiff summary judgment after ruling that a grant of a

defendant's competing motion for summary judgment was in error. See

Redevelopment Agency ofCity ofStockton v. BNSF Ry. Co., 643 F.3d 668,672

(9th Cir. 2011).

If there were ever a case in which this Court should exercise its power to

determine whether the plaintiff is entitled to judgment as a matter of law on

liability, as opposed to remanding for another trial, this is the one. The case has

been pending for over a decade. The parties already proceeded through a full jury

trial; the relevant evidence is in the record. And if it is true, as Plaintiff posits, that

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the evidence on liability can lead to only one reasonable conclusion as a matter of

law, it would be far more efficient and just for this Court to make that ruling now,

as opposed to years from now when again reviewing the issue de novo, only after

the time, burden, and expense of another trial and more post-trial proceedings that

could have been avoided or streamlined.

B. All Reasonable Jurors Would Find that Bid Pif~7pin Infringes

K{losarn.

1. Defendants do not own a valid license.

Defendants contend at pages 54-56 of the Answering Brief that they had a

valid license to use Khosara. They invoke the "chain of title" described on pages

8-9 and 16-17 ofthe Opening Brief, pursuant to which Plaintiff granted certain

rights to an Egyptian company named Sout el Phan, which then licensed certain

rights to EMI Music Arabia, which then agreed not to sue Defendants for

Defendants' use ofKhosara in Big Pimpin.

The fundamental problem with Defendants' argument is that the original

licensee (Sout el Phan) did not own the rights that Defendants are saying were

conveyed by it. Sout el Phan was an Egyptian company who entered into an

agreement with Plaintiff in Egypt. Therefore, the same limitations described above

with regard to the 2002 agreement apply to the license from Plaintiff to Sout el

Phan:

~z~zz6.4 25
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Plaintiff automatically reserved by operation oflaw his right to object

to any fundamental changes in Khosara,'2 and

The language of Plaintiff's agreement with Sout el Phan did not

clearly and unequivocally convey the right to make or authorize

changes to Khosara. (ER958-66.)

If Sout el Phan did not own the right to control fundamental changes to

Khosara, then Sout el Phan could not have validly conveyed that right to EMI

Music Arabia. Thus EMI Music Arabia's agreement not to sue Defendants is

irrelevant because EMI Music Arabia did not own the right that Defendants are

violating. See Davis v. Blige, 505 F.3d 90,99(2d Cir. 2007)("[W]hile an owner

may convey any of his rights to others permanently or temporarily, he may not

convey more than he owns").

In addition, Defendants fail to address the alternative chink in their "chain of

title" i.e., the right conveyed by Sout el Phan to EMI Music Arabia solely

consisted ofthe right to exploit "sound recording[s]," not altered version of the

Khosara composition. (OB at 57-58, quoting ER971.) For this reason as well,

EMI Music Arabia did not own the right that Defendants had infringed, and EMI

Music Arabia could not insulate Defendants from liability for their infringement.

12 Sout el Phan itself confirmed that Plaintiff retained the right to object to
fundamental changes to Khosara, regardless ofthe license it owned. (ER943.)

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Finally, Defendants contend they were granted "an implied license" for the

use ofKhosara in Big Pimpin. But Egyptian law does not authorize "implied

licenses"; all licenses must be express and in writing. (ER730-31.) Also, neither

Sout el Phan nor Alam el Phan owned the right to create or authorize fundamental

changes to Khosara. So even if either company had impliedly licensed a right to

Defendants, the license would be invalid.13 And there is zero evidence that

Plaintiff ever communicated with Defendants at all, let alone in a way that led

Defendants to believe Plaintiff had authorized them to use Khosara. (ER1331-32.)

Finally, Defendants have continued to exploit Big Pimpin throughout this decade-

long lawsuit; therefore, any implied license would have been extinguished long

._~

In conclusion, Defendants did not do what artists and record companies

generally must do to avoid exposing themselves to liability i.e., seek permission

from the original author and rights holder to use his copyright. Defendants did not

obtain the requisite rights; they lack a valid license as a matter oflaw.

2. The doctrine of equitable estoppel is inapplicable.

On pages 56 and 57 of the Answering Brief, Defendants assert that Plaintiff

should be equitably estopped from pursuing his infringement claim. Defendants

13 It is for this reason that musicians and music companies must conduct detailed
"chain of title" searches, rather than simply relying on representations that a
putative licensor actually owns the rights being licensed.

721226.4 2
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contend that Plaintiff should be equitably estopped because (a)EMI represented to

Plaintiff's original lawyer(David Braun of Akin Gump)that EMI owned a valid

license in Khosara and never received a response, and then (b)"EMI never heard

from Plaintiff or his representatives again until Plaintiff filed this action six years

later." (AB at 56.) Defendants' argument is flawed factually and legally and

would lead to an inequitable result.

Defendants' recitation ofthe facts is misleading.

EMI actually received a response from Mr. Braun. Mr. Braun called

EMI's representative and requested proof of EMI's claim that EMI

owned a license. EMI refused to provide the proof(recognizing, no

doubt, that an experienced intellectual property lawyer would see that

EMI was asserting ownership of rights that remained with Plaintiff.

(ER764-72.) Neither Plaintiff nor any of his representatives,

including Mr. Braun, withdrew the objection to Big Pimpin.

A representative of Plaintiff attempted to file suit on his behalf in

2005 i.e., four years after Braun had communicated with EMI. See

Nafal v. Carter, 540 F. Supp. 2d 1128(C.D. Cal. 2007).

As for the law, the U.S. Supreme Court recently described the doctrine of

equitable estoppel as applying "when a copyright owner engages in intentionally

721226.4 20
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misleading representations concerning his abstention from suit, and the alleged

infringer detrimentally relies on the copyright owner's deception ...." Petrella v.

Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1977(2014).

Regarding intentional deception, Plaintiff did not make any

affirmative representatives that would have led Defendants to believe

he had consented to Big Pimpin. In fact, Plaintiff did not

communicate with Defendants at all.

Regarding prejudice, after Defendants were notified of Plaintiff's

objection, they continued to act just as they had before. They

continued to exploit Khosa~a in Big Pimpin. Indeed, several

Defendants even put out new albums with Big Pimpin as a track, and

Jay-Z continued to perform it at concerts. Defendants did not rely on

Plaintiff's silence. They didn't even consider Plaintiff. And when

they heard from Plaintiff, they decided that they had done nothing

wrong and would continue to use Khosara without Plaintiff's

permission.

Defendants were not prejudiced by any "affirmative misrepresentation" of

Plaintiff. The equitable estoppel contemplated in Petrella is not present here.

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Finally, estoppel is an equitable defense. Here, Defendants initially used

Khosara without asking anyone. They used Khosara in a vulgar, misogynistic,

offensive song. Only after Defendants faced potential claims did they attempt to

secure the protection of an (inadequate)license (really, a covenant not to sue based

on whatever rights the licensor had). And after receiving notice that their

"licensor"(EMI Music Arabia) may well not have owned the rights it had

"licensed" to them, Defendants did not stop infringing. Rather, they continue to

exploit Khosara to this day. Equity should not rescue Defendants from their

deliberate and ill-advised choices.

3. The works are substantially similar as a matter of law.

Plaintiff contended, at page 57 ofthe Opening Brief, that "any reasonable

juror would conclude that the songs share substantially similar protectable

expression." If the Court listens to the music something Defendants so

desperately want to avoid the Court will hear what Defendants themselves have

already admitted in their al-bum notes: Big Pimpin uses an immediately

recognizable and memorable portion ofKhosara.14 That is sufficient to show

infringement. See Newton v. Diamond, 388 F.3d 1189, 1193 (9th Cir. 2004)(use

is substantially similar when average audience would recognize appropriation).

'a Commercial recordings ofBig Pimpin released by Defendants themselves state


that the song "contains a sample of `Khusara Khusara,'(ER860), and "[c]ontains
elements of `Khosara Khosara."'(ER865.)

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Nor can the testimony of Defendants' expert musicologist, Dr. Lawrence

Ferrara, alter what a reasonable juror would hear. Dr. Ferrara noted that certain

"elements" ofKhosara are common. But "[a]11 works of art are ultimately

combinations of familiar, uncopyrightable items." Pickett v. Prince, 207 F.3d 402,

405 (7th Cir. 2000)(Posner, J.). For that reason, the relevant question is not

whether an accused infringer misappropriated an individual "element" of a

copyrighted work e.g., a note or a letter or a shape but whether the accused

infringer misappropriated an original combination of elements. As for the specific

combination of notes in the four measures ofKhosa~a that were used in Big

Pimpin, Dr. Ferrara could not find a single preexisting work with that combination.

(ER581-82.) In short, any reasonable juror would conclude that Big Pimpin used

original expression from Khosara. See Swirsky v. Carey, 376 F.3d 841, 851 (9th

Cir. 2004)(noting that a plaintiff's work is "original" simply if it was not copied

from a preexisting source).

4. There is no "de minimis" or "fair" use.

On page 58 ofthe Answering Brief, Defendants state conclusorily that the

jury reasonably could have found "de minimis" use or "fair" use. These defenses

warrant as much of this Court's time as Defendants allotted them in the Answering

Brief.

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The de minimis use exception to infringement is quite limited. It applies

only if a defendant's taking "is so meager and fragmentary that the average

audience would not recognize the appropriation." Fisher v. Dees, 794 F.2d 432,

434 n.2(9th Cir. 1986). Here, like in Fisher,"the appropriation would be

recognized instantly by anyone familiar with the original." Id.

As for "fair use," the district court correctly observed that "this is not [sic]

fair use case." (ER796.) Defendants' purely commercial use was not parodic or

satirical. Defendants used an important section of Plaintiff's work (the opening

"hook," which is repeated multiple times in the original). (ER165-66.)

Defendants' musicologist conceded that "portions ofthe Khosara composition

constitute important portions of the melody in Big Pimpin'...." (ER579.) And

Defendants used Plaintiff's expression in an obscene song. Cf. Fisher, 794 F.2d at

437(assuming, but not deciding, that an obscene use cannot be a fair use).

Nothing about Defendants' use was "fair." See, e.g., Leadsinger, Inc. v. BMG

Music Publishing, 512 F.3d 522, 529-32(9th Cir. 2008).

Defendants should be held liable for infringing Khosara as a matter oflaw.

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IV. THE DISTRICT COURT ABUSED ITS DISCRETION IN

PROHIBITING THE JURY FROM HEARING THE ORIGINAL

RECORDING OF KHOSARA.

On pages 58-62 of the Opening Brief, Plaintiff argued that the district court

had misconstrued the law and therefore abused its discretion in outlawing the

playing of the original recording ofKhosara at trial. Plaintiff noted that(a)the

best evidence ofKhosara was the contemporaneous recording of its performance

by Hafez;(b)a lead sheet ofKhosara penned by a third party after Hamdy's death

was an inadequate representation of the song;(c)the U.S. Copyright Office accepts

a recording of a composition as the requisite deposit;(d) many composers do not

know how to write sheet music; and (e)it is common for the fact-finder in cases

involving musical compositions to hear the music in issue.

In response, Defendants ignore most of these points. They ignore that the

Copyright Office listens to a recording when determining whether a musical

composition can be registered. They ignore that many composers including Jay-

Z and Timbaland themselves do not compose on sheet music. They ignore the

testimony that the lead sheet identified as Exhibit 133 was not a complete and

accurate representation of Hamdy's original creation.

Instead, Defendants rely on (a)the Newton case, and (b)two district court

cases, one of which (Williams v. Bridgeport Music)involves a pending appeal of

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the district court's exclusion of sound recordings. But Newton is distinguishable,

as Plaintiff explained on pages 61 and 62 ofthe Opening Brief. It involved jazz,

where the performer "provides as much musical content as the composer."

Newton, 388 F.3d at 1194. Here, on the other hand, the composer Hamdy literally

sat with the performer Hafez and guided him through the performance. And none

of Defendants' cases involved a foreign work, as here, that was not registered with

the U.S. Copyright Office and thus lacked a "deposit copy" of sheet music.

A far more analogous case is Bridgeport Music, Inc. v. UMG Recordings,

Inc., 585 F.3d 267, 276 (6th Cir. 2009). Like here, the plaintiff's song "was

composed and recorded in the studio simultaneously and, therefore ...the

composition was embedded in the sound recording." Id. Like here, the plaintiff

owned solely the composition ofthe work in issue. Id. Like here, the defendant

who happened to be one of the defendants herein(LJMG Recordings) argued that

the jury should not have considered elements of the work that were not part of

sheet music that, like here,"was created long after the song was composed."

Unlike the district court here, the Sixth Circuit ruled that the jury was not restricted

to hearing testimony about a piece of misleading sheet music. Rather, the jury

could hear the actual music. The jury here should be permitted to hear the music

as well.

721226.4 34
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V. THE CASE SHOULD BE REASSIGNED ON REMAND.

The standard for determining whether a case should be reassigned to a new

district judge seems a bit like Justice Stewart's standard for evaluating obscenity.

.Iacobellis v. State ofOhio, 378 U.S. 184, 197(1964)(Stewart, J., concurring)("I

know it when I see it"). Plaintiff thus will not be so bold as to say too much else as

to whether the case should be reassigned. Plaintiff simply reiterates that this is a

unique case(now pending for over a decade), with a unique plaintiff(an elderly

man living halfway across the globe), with a unique trial record (one that could be

read as showing a defense bias). Therefore, Plaintiff respectfully reiterates his

request, based on the unique circumstances of this case, that the case be reassigned

on remand.

Dated: February 28, 2017 Respectfully submitted,

BROWNE GEORGE ROSS LLP


Peter W. Ross
Keith J. Wesley
Corbin K. Barthold

By: s/ Keith J. Wesley


Keith J. Wesley

Attorneys for Plaintiff-Appellant


Osama Ahmed Fahmy

~2~ 226.4 35
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Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28-1.1(x,


29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 16-55213
Note: This form must be signed by the attorney or unrepresented litigant and attached to the end ofthe brief.
I certify that(check appropriate option):

This brief com lies with the length limits permitted by Ninth Circuit Rule 28-1.1.
The brief is~words or~pages, excluding the portions exempted by Fed. R. App. P.
32(x, if applicable. The briefs type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-1.
The brief is~words or~pages, excluding the portions exempted by Fed. R. App. P.
32(x, if applicable. The briefs type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

D This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b).
The brief is 3y'~ words or~pages, excluding the portions exempted by Fed. R. App. P.
32(x, if applicable, and is filed by (1)separately represented parties; (2) a party or parties filing a
single brief in response to multiple briefs; or (3) x a party or parties filing a single brief in response to a
longer joint brief filed under Rule 32-2(b). The briefs type size and type face comply with Fed. R. App. P.
32(a)(5) and (6).

~ This brief complies with the longer length limit authorized by court order dated
The briefs type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is
words or ~ pages, excluding the portions exempted by Fed. R. App. P. 32(fl, if applicable.

~ This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2
(a) and is ~ words or ~ pages, excluding the portions exempted by Fed. R. App. P. 32
(~, if applicable. The briefls type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).

~ This brief is accom anted b a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2
(c)(2) or (3) and is ~ words or0pages, excluding the portions exempted by Fed. R.
App. P. 32(x, if applicable. The briefs type size and type face comply with Fed. R. App. P. 32(a)(5) and
(6)

~ This brief com lies with the length limits set forth at Ninth Circuit Rule 32-4.
The brief is ~ words or ~ pages, excluding the portions exempted by Fed. R. App. P.
32(x, if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

Signature of Attorney or Date l Z$" / 7


s/ Keith J. Wesley
Unrepresented Litigant
("s/" plus typed name is acceptable for electronically-filed documents)

(Rev.12/1/16)

36
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APPENDIX

Motola v. EMIAmerica Records, Case No. 82-6308-PAR (C.D. Cal. Api-. 19,

1984).

~z~zz6.4 37
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~ i'"'

2 APB 1 ~~~?'`` .
3
CLERK, U. S DISTRICT ~~
4 ~(~Nl'RAt. DISTRICT F IFO~ irk
~ .
~ _{

s ~NT~R~
7 ~~ `~~ ~

8 UNITED STATES DISTRICT COURT CIE~K, U. S. DISTftICI ';~3UQ?


LMTc?,~L nISTRICT OF
CAL~GEPUiY
9 CENTRAL DISTRICT OF CALIFORNIA ~~
l~

~~ GBORGE MOTOLA, ) NO. 82-6308PAR


I2 Plaintiff, )
)
13 v, )
) MEMORANDUM OF DECISION
14 EMI AMERICA RECORDS, etc., )
~ AND ORDER
et al ,, )
25 ~
~~ Defendants. )
~

~~ EMI AMERICA RECORDS, etc., )


et al ,, )
18 ~
Third-Party Plaintiffs, )
19 ~
v. )
2Q )
THE HARRY FOX AGENCY, INC., )
21 )
Third-Party Defendant. }
22 ~

~3 This is an action for copyright infringement.

~~ Plaintiff is the owner and co-author of a song entitled,

2~ "Jeannie, Jeannie, Jeannie" which was first recorded and

~6 popularized in the early 1960's by a singer named Eddie

~7 Cochran. Plaintiff claims that the defendants, a popular rock

~$ band called 'The Stray Cats," the band's record company, and
~; ';
....~.. bcrketl~$ '~
..~:. 1 d e o ~:~1
~y p't~g
r- Id NoL3Ge Ptp~ ~l~
~'~"'$
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certain recora retailers, have infringed on plaintiff's

2 copyright by recording and selling a rendition of "Jeannie,

3 Jeannie, Jeannie" which contains changed and vulgarized lyrics.


4 The Stray Cats originally recorded the altered version of the

5 song in England in October of 1980. Plaintiff did not become

6 a ware of the Stray Cats' version until June of 1982, however,

when the band's record was first released in the United States.
t l Plaintiff then filed this action in December of 1982.

Defendants made significant changes only to the

10 l yrics of plaintiff's song. Both parties agree that the

I1 m usical arrangement of the new recording is very similar to

12 Eddie Cochran's earlier rendition. The lyrics, however, have

13 been changed substantially. A comparison of the copyrighted

l~ version o the song and the Stray Cats' version reveals that 85

15 o f 191 actual words have been changed and that the subject

16 matter has shifted from dancing in the original song to "booze"

~.? a nd sex in the defendants' rendition, After listening to the

~~ :;.defendants' recorded version and comparing it to plaintiff's

~~ i copyrighted music and lyrics, the Court concludes that defen-

2Q d ants' recording has perverted and distorted plaintiff's

21 original composition.

22 , Defendants make no challenge to the validity of

mil{ plaintiff's copyright or to the fact that they have used the

the other hand, admits tht


~~ f copyrighted work. Plaintiff, on

25 defendants obtained a consensual license from plaintiff's

2~ copyright collections agent, authorizing defendants to make and

2?' d istribute phanorecords of the song in exchange for payment by

2$ d efendants of certain royalties. Plaintiff also admits that

-2-
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1 defendants have remained willing at all times to pay the

2 royalties called for in the license. The infringement of which

3 plaintiff complains is that defendants' changes in the song's

4 1 l yrics were not authorized by the license they obtained and are
5 thus a violation of the copyright laws.

6 U nder the general scheme of the Copyright Act, the

7 owner of a copyrighted song has absolute control over the use

8 of the song until such time as he allows it to be recorded and

~ distributed by someone else. See, 17 U.S.C. ~ 115. 2 Nimmer

~~ on Copyright ~ 8.04(A) (1983). At that point, any other person

l~ can make and distribute a recording of the song after obtaining

~~ a compulsory license pursuant to 115. The rights conferred

~3 by the compulsory license include, in addition to the recording

~~ =and distribution rights, a limited right to arrange or adapt

I~ the song to suit the particular performers' style or interpre-

~-~ Cation._ See, 17 U,S.C. 115(a)(2) However, the adaptation

~~ ~ ~arinot be so extensive as to allow the song to be "perverted,

~~ ,distorted or travestied." House Report No. 94-1476, 94th

~~ Congress 2d Sess at 109 (1976) 2 Nimmer an Copyright

2a 8.04(F) (1983) The statute also specifically prohibits the

2~ compulsory license holder from changing the "basic melody" of

2~? the song or altering its "fundamental character." 17 U.S.C,

23 115(a)(2).

24 W hat is involved in this case is not actually a

compulsory license. Rather it is a consensual license entered

i nto between the defendant EMI America Records and plaintiff's

collection agent, the Harry Fox Agency, Inc. See, Exhibit H to

plaintiff's moving papers, pp. 147-48. However, the consensual

-3-
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~ license expressly incorporates the terms and provisions of ~

2 115. The fact that the parties' relationship is actually

~ governed by a consensual license rather than the statutory

4 compulsory one does not derive this Court of jurisdiction

'
~ since the parties sti11 invoked the protection of the compul-

~ sory license provision. See, Harry Fox Agency, Inc, v. Mills

7 Music, Inc., 543 F.Supp. 844, 851 (S.D. N.Y. 1982); 2 Nimmer on

g Copyright, 8.04(T) (1983). Although the consensual licenses

~ used by the Harry Fox Agency modify the statutory provisions in

~~ some respects, the one in this cast does not appear to alter

~~ the statutory limitations on the adaptation privilege, Waiver

~2 of such provisions is not to be presumed, absent a clear show-

~~ ing'; to the contrary . See, Joy Music, Inc , v , Seeco Records,

I'~ Inc.., 201 F.Supp. 549 (S .D. N.Y. 1958) .

~~` - There is apparently no clear precedent on the issue

~~ Of :whether a licensee's alteration of the lyrics of a copy-

'~~'~~~~~ ~~~ ~ ~~ righted song subject to 115 compulsory licensing exceeds the

~g adaptation privilege conferred by the statute. Plaintiff fails

~g to cite a single case on this precise point. The cases cited

~~ by defendants, while they do have some bearing on the question,

2~ do not support defendants' position. In Edward B. Marks Music

~~ Corp, v. Foullon, 79 F.Supp. 664 (S.D. N.Y. 1948}, aff'd, 171

~ ~'.2d 905 (2d Cir. 1949) (Hand, J.), the court held that a

2~ defendant could not be found to have infringed plaintiff's

25 copyright by altering the arrangement where the plaintiff had

~~ failed to present any evidence of how the two arrangements

27 differed, 79 F.Supp. at 666-667. The appellate court affirmed

~~ the judgment for defendant on the ground that the parties'

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~!

~ ~ relationship was governed by a consensual license which pro-

~ hibited only the use of plaintiff's song in a medley. 171 F.2d

3 at 908. Neither of these grounds is applicable to the instant

`~ case .

~ A case that is somewhat closer to the mark is

~ Stratchborneo v. Arc Music Corp., 357 F.Supp, 1393 (S.D,N.Y.

7 1973). In that case, dealing with alleged copyright infringe-

~ ment of the song "Mojo Workout," the court held that despite

g lyrical and musir_al differences, including a "more apparent

l~ lewd meaning" in the defendant's version, the defendant had not

~~ { exceeded the adaptation privilege. Id. at 1405. The case thus

~~ I clearly supports the proposition that some modification of the

l~ lyrics is allowable under ~ 115(a)(2). However, Stratchborneo

~~ `is distinguishable in a number of respects. The case involved

~~' several conflicting claims to authorship of a song whose lyrics

_ ~~ appeared to change nearly every time the song was performed,

~7 See, id'. at 1397-1407 nn. 3-5, 8, & 11 (containing seven dif-

~$ feren~. versions of the song) In fact, the court found that

'
~9 two different versions were properly copyrighted and that none

~~ of the versions had infringed on any others. Id. at 1407. The

~~ seven different versions quoted in the opinion were not nearly

~~ as divergent in language and tone as the two versions of the

23 song involved in this case.

~4 A third case, not cited by either party, is Leo

2~ Feist, Inc, v, Apollo Records, 300 F.Supp. 32 (S.D. N.Y. 1969).

26 In that case, as in the Marks case discussed above, the court

2'7 held only that plaintiff had failed to provide sufficient

28 evidence of the differences between the original and the

-5-
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~ allegedly infringing arrangements. Id, at 4I. The plaintiff

2 in Feist attempted to rely solely on the defendants' represen-

~ tations on the record jacket which advertised the recordings as

4 containing "completely new" arrangements. Id, at 39-40. In

~ the instant case, however, the evidence consists of the actual

S lyrics themselves. The proof is quite clear,

~ Although the musical arrangements in this case are,

g by plaintiff's own admission, quite similar, the changes in the

9 lyrics are substantial and clearly beyond the scope of the

10 ~ 115(a)(2) privilege. Regardless of whether these changes are

~~ detrimental or beneficial with regard to the income produced by

l~ "Jeannie, Jeannie, Jeannie," the ultimate effect is to change

1~ radically the tenor and appeal of plaintiff's song. The refer-

~`~ ences to "wild parties'" and "free booze" and the insertion of

l~ obscenities into the lyrics must certainly have the effect of

1s "pervert[ing], distort[ing], and travesty[ing]" plaintiff's

~~ composition. Musicians and record companies should be required

~~ and Congress has determined that they are required, to obtain

7~ the consent of the copyright owner before making these kinds of

2d changes in a protected work.

~~ Because the Court finds that plaintiff has made a

~~ pri.ma facie showing of liability on his 115(a)(2) claim, it

~3 need not reach the other theories of liability propounded by

~4 plaintiff an this motion. Instead, the Court will consider

25 whether any genuine issues of fact are raised by defendants'

~6 assertion of an estoppel defense.

~~ Defendants indiscriminately refer to the affirmative

28 defenses of waiver and estoppel in their opposition papers,


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~ without making any attempt to specify which one they are in-

~ yoking. Waiver requires '"an intentional relinquishment of a

3 known right" by a party. See, Witkin, Summary oL- California

`~ Law, Equity ~ 133(b) (8th ed . 1974) Defendants do not even

5 assert that plaintiff has made any such affirmative act of

6 waiver and the Court finds that there is no genuine issue of

7 fact on this defense. Although defendants also claim estoppel,

8 it is clear from the facts on which they base this defense that

~ they are actually referring to the doctrine of laches, a par-

1~ ticular species of estoppel, Lacher requires unreasonable

1~ delay in bringing suit plus either plaintiff's acquiescence in

1~ the act complained of or prejudice to the defendant resulting


13 from the delay. Miller v. Eisenhower Medical Center, 27 Cal.3d

~`~ 614, 624, 166 Ca1.Rptr. 826, 832 (1980). It is undisputed on

1~ this record that the act of which plaintiff complains, the

~~ release of the Stray Cats' record in the United States, occur-

~~ red in June of 1982 , Plaintiff filed this action in December

xg of 1,9.82. This six-month period does not constitute unreason-

~~ able delay when compared to the three-year statute of limita-

~~ tions applicable to copyright actions. 17 U.S.C. 507. Since

~~ plaintiff's delay has not been unreasonable, any prejudice

~~ which defendants may have suffered in the interim is of no

~~ consequence .

~`~ Nor have defendants raised an issue of tact regarding

~~" the general defense of estoppel. In order to establish an

~~ estoppel, each of the following elements must be shown:

~~ 1. The party to be estopped must know the facts;

~8 2. He must intend that his conduct be acted on or

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~ must so act that the party asserting the estoppel has a right

2 to believe he so intends;

3 3. Thy party asserting the estoppel must be ignorant

`~ of the true facts; and

5 4. He must rely to his injury on the conduct of the

~ party to be estoppel.

7 See, Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104

g (9th Cir.), cert, denied, 364 U.S. 882 (1960); Lottie Joplin

~ Trust v, Crown Publishers, Inc ., 456 F.Supp. 531, 535 (S.D.

~~ N.Y. 1977), off'd, 592 F.2d 651 (2d Cir. 1978) Defendants

~~ contend that there is an issue of fact as to whether plaintiff

~~ intentionally delayed notifying them of his claim until October

7~ of 1982 so as to induce defendants to incur a greater liability

~`~ by . issuing additional copies of the allegedly infringing

~~ recording. The deposition testimony relied upon by defendants

~~ does not support their claim that there is evidence indicating

i`~ ` that plaintiff's conduct induced them to act to their

18 detriment. First of a11, the uncontradicted evidence is that

~~ plaintiff informally notified one of the defendants' executives

~Q in August 1982 of his objections to the defendants' version.

21 See, plaintiff's declaration, at 47-48 of moving papers.

~~ Secondly, there is no evidence at all that defendants would

~~ have refrained from issuing more copies of the record had they

~`~ known of plaintiff's claim. Thus, defendants have not raised

2~ an issue of material fact regarding an estoppel defense.

26 IT IS, THEREFORE, ORDERED that:

~~ 1. Plaintiff's motion for partial summary judgment

28 ~~ as to the first cause of action for statutory copyright


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Y infringement is GRANTED. Plaintiff's copyright, as alleged in

2 paragraphs 1-23 of the complaint has been infringed and

3 d efendants have no defenses to liability under the first cause

~~ of action.

4~ 2. The issue of liability under the first cause of

6 action is severed from the other issues raised by the complaint

7 a nd this action shall proceed as to the remaining issues con-

8 tained therein.

9 3. UP on termination of this action, the 'ud


J 9ment
10 h erein shall, in addition to any other matters determined,

1~ a ward judgment to plaintiff on that portion of his claim

12~ declared established by this order.


13 4. This case is placed on the Court's calendar for a

~4 status, conference by telephone on June 7, 1984, at 8:15 a.m.

15 Counsel shall file a joint status conference report 1D days in

26 advance of that date.


~~
5. The Clerk shall serve copies of this order by

l.8 .,United States mail upon all counsel of record.


i~ DATED: April 17, 1984.

ill
27
Pamela Ann R rner
22 United States District Judge

23
24
25 ~~
~I
27
~~!.
Case: 16-55213, 03/01/2017, ID: 10338285, DktEntry: 44, Page 54 of 54

9th Circuit Case Numbers) 16-55213

NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF PrinterfCrec~tor).

*~**********~:**x~****************************~******************~*****************************

CERTIFICATE OF SERVICE
When All Case Participants are Registered for the CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk ofthe Court for the
United States Court of Appeals for the Ninth Circuit by using the CM/ECF system
on (date) March 1, 2017

I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CMlECF system.

Signature (use "s/" format) /s/ Keith J. Wesley

CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk ofthe Court for the
United States Court of Appeals for the Ninth Circuit by using the CM/ECF system
on (date)

Participants in the case who are registered CM/ECF users will be served by the CM/ECF
system.

I further certify that some ofthe participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:

Signature (use "s/" format)


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