Opposition Brief — Moore v. Time Warner, Inc.

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| FILED

No. 98-363 |

! UCT 2 > 1905,

In The 1 OFS: OF THE CLERK

Supreme Court of the Hnited Stites’

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October Term, 1998

DOUGLAS MOORE, O’NEIL BRADFORD,

Petitioners,

VS.

TIME WARNER, INC., et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

CAROLE E. HANDLER JOEL McCABE SMITH

Counsel of Record ROBERT S. GUTIERREZ

R. ALEXANDER PILMER LEOPOLD, PETRICH & SMITH

KAYE, SCHOLER, FIERMAN, Attorneys for Respondents

HAYS & HANDLER, LLP EMI Entertainment World, Inc.

Attorneys for Respondent and Charles Koppelman

Atlantic Recording Corporation, Inc. 2049 Century Park East

1999 Avenue of the Stars Suite 3110

Los Angeles, California 90067 Los Angeles, California 90067

(310) 788-1000 (310) 277-3333

149279 @ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 * (800) 359-6859

i

QUESTIONS PRESENTED

1. Whether the Ninth Circuit correctly affirmed the District

Court’s rejection of petitioners’ copyright infringement claims

on the grounds that petitioners’ songs were not substantially

similar to respondent’s songs.

2. Whether the Ninth Circuit correctly affirmed the District

Court’s dismissal of petitioner O’Neil Bradford’s identical

second action, on the basis of claim preclusion and collateral

estoppel.

ii

PARTIES TO THE PROCEEDINGS

Petitioners are Douglas Moore and O’Neil Bradford, both

appearing pro se. Their petition challenges a Ninth Circuit

Memorandum decision in two consolidated appeals (Nos. 96-

56337 and 96-56748) affirming two summary judgments

adverse to petitioners.

These consolidated cases were initiated by an action styled

Moore v. Atlantic Recording Corporation, United States District

Court, Central District of California, Case No. 95-2256 JGD

(“First Action”). Both petitioners were plaintiffs in the First

Action. Bradford attempted to withdraw from the First Action,

but the District Court specifically found that Bradford was a

plaintiff in the First Action. (App. C, 18, fn.1). Petitioners sued

a number of defendants in the First Action, but served only

Atlantic Recording Corporation (“Atlantic”). (App. C, 18). The

First Action was resolved on the merits of the copyright claim

by way of summary judgment in favor of Atlantic on July 31,

1996 (App. C), in which the District Court ruled that the matters

were not substantially similar.

On July 22, 1996, petitioner O’Neil Bradford filed an action

in the Superior Court of the State of California, County of Los

Angeles, entitled Bradford v. Time Warner Inc., Case No. BC

154 147 (“Second Action”). Although Bradford sued forty-one

defendants in the Second Action, he served only Atlantic, EMI

Music Publishing Inc. (“EMI”), and Charles Koppleman

(“Koppleman”). (App. B, 7). On September 2, 1996, Atlantic

removed the Second Action to the District Court, where it was

assigned Case No. 96-5877 JGD. EMI and Koppleman, the only

other parties served, joined in this removal. (App. B, 6). On

October 31, 1996, the District Court granted Atlantic’s motion

to dismiss, in which EMI and Koppleman joined. (App. B).

lil

Petitioners appealed to the Ninth Circuit Court of Appeals

from the dismissals of the First Action and Second Action. The

Ninth Circuit consolidated these appeals, and on December 19,

1997, affirmed the judgments against petitioners. (App. A). On

March 27, 1998, the Ninth Circuit rejected petitioners’ request

for rehearing en banc. (App. A). On August 31, 1998, the

Supreme Court docketed this petition.

iv

STATEMENT PURSUANT TO RULE 29.6

Pursuant to Sup. Ct. Rule 29.6, Atlantic is a corporation.

Atlantic’s parent corporation is Warner Communications, Inc.

Warner Communications, Inc.’s parent corporation is Time

Warner, Inc. Atlantic does not have any nonwholly owned

subsidiaries.

Respondent EMI Entertainment World, Inc., erroneously

sued as EMI Music Publ., Inc. is ultimately owned by EMI

Group plc, which has issued shares to the public that are traded

on the London Stock Exchange.

TABLE OF CONTENTS

Page

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Statement Pursuant to Rule 29.6 .................. iv

BE Ie SE ec aees Sch kde ceete sees ce otess Vv

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lg | EVP PT ETEETUEP TERE LETT ere ]

Reasons for Denying the Writ .................... 2

I. Petitioners Assert No Compelling Reasons For

TT eer ee reer ree 2

II. Petitioners Offer No Basis On Which To Reverse

The Lower Courts’ Decisions .............. 4

SEERA gpa rate. Pik SA Ae omg ge an gt A &

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TABLE OF CITED AUTHORITIES

Page

Cases:

Baxter v. MCA, Inc., 812 F.2d 421 (9th Cir. 1987) ... 5

Bradford v. Time Warner Inc., Case No. BC 154 147 . ii

Dillon v. State of Mississippi Military Dept., 23 F.3d 915

eee ae ROUEN orc cncucacahevsatyeneeauaes cae 3

Moore v. Atlantic Recording Corporation, United States

District Court, Central District of California, Case No.

PPE eee Ore ee re ery rT eee ey eT Te ii

Salveson v. Western States Bankcard Association, 731

we py. Fe ee Serene ee 3

Sid & Marty Krofft Television v. McDonald’s Corp., 562

Fe SA ee eee TR, 6.004% wb4 cakes Soemekea 1, 4, 5,6

Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S. Ct.

BOOG, DES L.. BG. BO Bee Cl GPa) oo veces se caccvins 3

Teitelbaum v. Soloski, 843 F. Supp. 614 (D.C. Cal. 1994),

ERotie Wass ORAKT ESR EMESCS UE REL a

Statute:

te a ge eeerr Teer rere rer 3

Rules:

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Table of Cited Authorities

We UG I oe okt as viueee veetance’s

Pee PUM Ge wa ec accvcsiceesccve

Sup. Ct.R.10 .

Sup. Ct. R. 10(a)

Sup. Ct. R. 10(b)

Sup. Ct. R. 10(c)

Sup. Ct. R. 29.6

Page

iV

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STATEMENT OF THE CASE

Petitioners initially filed a copyright infringement lawsuit

in federal court, which was rejected on the merits on summary

judgment. Undaunted, one of the petitioners filed an identical

State court lawsuit, which was removed to the District Count

The District Court dismissed the second suit on the doctrine of

res judicata and collateral estoppel. Petitioners then appealed

their two defeats to the Ninth Circuit, which affirmed the

judgments against them. They also pursued an appeal in the

State appellate court, which was rejected. The state appellate

court held that any disputes regarding the propriety of the

federal court’s jurisdiction or the merits of petitioners’ claims

should be resolved by the federal court. Petitioners did not seek

review of that decision from the state’s highest court. Instead,

petitioners now request that this Court consider claims which

have been rejected by a United States District Court (twice), a

federal Circuit Court of Appeal, a state trial court, and a state

appellate court — although petitioners’ persistence is not

justified by the merits of their claims.

Petitioners’ claims on the merits are simply whether

Atlantic infringed copyrights owned by petitioners for two

songs, “From the Heart” and “Sexxy (sic) Nights,” by copying

the music from these songs in two recordings, “I Wanna Be

Down” and “Baby.” [App. C, 18-19].

Atlantic moved for summary judgment on the basis that “I

Wanna Be Down” and “Baby” were not substantially similar

to “From the Heart” and “Sexxy Nights.” The District Court

specifically found (a finding affirmed by the Ninth Circuit)

that under the extrinsic test of Sid & Marty Krofft Television v.

McDonald's Corp., 562 F.2d 1157, 1164 (9th Cir. 1977),

Atlantic’s songs were not substantially similar to petitioners’

works. The District Court granted Atlantic’s motion to dismiss

2

the Second Action, finding the doctrines of res judicata and

collateral estoppel “clearly applicable.”

Petitioners offer no coherent reason why these specific

findings should now be rejected. Accordingly, their petition

should be dismissed.

REASONS FOR DENYING THE WRIT

I.

PETITIONERS ASSERT NO COMPELLING

REASONS FOR GRANTING REVIEW

Review on a petition for writ of certiorari is granted only

for “compelling reasons.” Sup. Ct. R. 10. Petitioners present

no reasons whatsoever, compelling or otherwise, why the Court

should grant their petition.

Ignoring the prior decisions and the posture of this case,

petitioners first argue that the Court should grant review to

insure “proper enforcement of jurisdictional issues.” (Pet., 4).

Petitioners suggest that the Second Action was improvidently

removed to the district court because “all defendants” allegedly

did not join in the removal of the Second Action. (Pet., 5). This

point, even if true — which it is not — does not fall within one

of the enumerated bases for granting review. See, Sup. Ct. R.

10(a), (b) and (c).

Petitioner Bradford sued forty-one defendants in the Second

Action, yet served only three of them; Atlantic, EMI, and

Koppleman. (App. B, 7). Petitioners cite no authority for the

ridiculous proposition that 38 unserved defendants must join a

Notice of Removal, to be effective — nor can they. Instead,

petitioners cite Teitelbaum v. Soloski, 843 F. Supp. 614, 615

3

(D.C. Cal. 1994), a case where a defendant actually received

the summons and complaint, but did not timely join in a co-

defendants’ removal petition. In contrast, petitioner Bradford

sued, but never served thirty-eight defendants. Here, all of the

defendants which were actually served with the Second Action

joined in its removal. (App. B, 7). Only parties served with a

lawsuit need join in its removal. Salveson v. Western States

Bankcard Association, 731 F.2d 1423, 1429 (9th Cir. 1984).

Bradford’s zeal in suing unnecessary parties, but failing to serve

them, should not, and does not, provide any justification for

vacating the decisions of the lower courts.

In addition, petitioners did not raise their claim that the

Second Action was improperly removed before either the

District Court or the Circuit Court. Accordingly, they are not

entitled to raise this issue for the first time before this Court.

Taylor v. Freeland & Kronz, 503 U.S. 638, 645-646, 112

S. Ct. 1644, 118 L. Ed. 2d 280 (1992). Instead, petitioner

Bradford opposed the motion to dismiss the Second Action on

the basis that he was not a plaintiff in the First Action. (App.

B, 8). The District Court properly rejected this claim.

Petitioners also intimate that they have not had any

adjudication of the state court claims contained within the

Second Action. (Pet., 4). It is hornbook law that removal of an

action removes al/ claims. 28 U.S.C. § 1441(a); Dillon v. State

of Mississippi Military Dept., 23 F.3d 915, 918 (Sth Cir. 1994).

Indeed, the Second Action contained precisely the same state

court claims as the First Action. (App. B, 9).

Petitioners argue that review should be granted to “instruct

lower courts” regarding the ownership and registration of

copyrighted materials. (Pet., 5). This is not a ground for this

Court to grant review in this case, in which the ruling followed

well-established copyright principles. There is no need for any

4

such instruction on these issues, especially as they relate to

petitioners’ claims. Indeed, the District Court granted summary

judgment based upon an application of the well established

“extrinsic test” to determine substantial similarity first

announced in Krofft v. McDonald's, Inc., supra. A substantial

body of copyright law has developed from the Krofft decision,

involving hundreds of reported decisions in every Circuit. There

is no reason for this Court to consider this issue anew.

Finally, petitioners argue that this Court should grant

review because “the district court did not properly apply the

‘extrinsic’ test ...” (Pet., 7). Not only did the District Court

properly apply the correct legal standard; but this issue is

precisely the type upon which the Court should deny review.

See Sup. Ct. R. 10 (review is “rarely granted when the asserted

error consists of . . . the misapplication of a properly stated

rule of law.”) Petitioners do not suggest that either lower court

misstated the correct legal rule. Nor do petitioners suggest there

is any split among the Circuits on this issue.

In sum, petitioners have not identified any of the Rule 10

considerations typically provided for granting review, and

review should therefore be denied.

PETITIONERS OFFER NO BASIS ON WHICH TO

REVERSE THE LOWER COURTS’ DECISIONS

Not only do petitioners fail to identify a compelling reason

to grant review; they fail to cast any doubt on the correctness

of the lower courts’ decisions.

Petitioners argue they should prevail because respondent

allegedly has not filed copyright registrations. This argument

ee

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turns the applicable legal standard upside down. To succeed

of: their copyright infringement claims, it is petitioners who

must establish (1) ownership of their copyrights and (2) copying

of a protectible expression. Baxter v. MCA, Inc., 812 F.2d 421,

423 (9th Cir. 1987). Whether respondent registered its

copyrights is immaterial.

Petitioners also argue that summary judgment should not

have been granted against them because they submitted an

unsworm letter from a purported expert witness which allegedly

created a triable issue of fact. However, the federal rules of

civil procedure provide that a party opposing a motion for

summary judgment must submit “affidavits ... made on

personal knowledge [which], shall set forth such facts as would

be admissible in evidence.” Fed. Civ. Proc. R. 56(e). An

opposing party can even request a continuance of a hearing in

order to allow sufficient time to obtain appropriate affidavits.

Fed. Civ. Proc. R. 56(f). The District Court found petitioners’

“letter” to be inadmissible, another finding upheld by the Ninth

Circuit. Moreover, the District Court found that even if the

“letter” were admissible, “it fails to demonstrate a genuine issue

of material fact as to substantial similarity.” (App. C, 26).

Next, petitioners claim their songs are substantially similar

to respondent’s recordings. The District Court specifically

found to the contrary. Petitioners do not suggest that this Court

can overturn this factual finding.

The District Court’s finding was based upon an application

of the Krofft “extrinsic test” which can be used to establish the

second of the prima facie elements of a copyright infringement

claim — copying of a protectible expression. Baxter, supra.

As stated in Krofft, the test

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is extrinsic because it depends not on the responses

of the trier of fact, but on specific criteria which

can be listed and analyzed. Such criteria include the

type of artwork involved, the materials used, the

subject matter, and the setting for the subject. Since

it is an extrinsic test, analytic dissection and expert

testimony are appropriate. Moreover, this question

may often be decided as a matter of law.

Krofft, at 1164.

The District Court conducted precisely such an analytic

dissection of the respective songs, and considered the expert

testimony of both parties — even though it was not obligated

to consider petitioners’ inadmissible expert “letter.” It found

that the “only similarities between the works are that they are

written in the same key and begin with the same tonic minor

chord.” (App. C, 25). The District Court further noted that these

same similarities are found in many songs, including such

diverse recordings as

You Lied to Me, by Cathy Dennis, Shep Pettibone,

and Tony Shimki (1992); Keep Coming Back by

Richard Marx (1991); Real Love, by Jody Watley

and Andra Cymore (1989); Visions, by Stevie

Wonder (1973); and Light My Fire, by the Doors

(1967).

(App. C, 20-21).

In sum, the District Court made a specific finding that

petitioners could not establish the central point of their case.

The Ninth Circuit affirmed this finding. This Court should not

now consider overturning these factual findings.

-

Additionally, petitioner Bradford contends that the District

; Court should not have dismissed the Second Action on res

judicata grounds. The District Court held that

! this is a paradignmatic (sic) case for res judicata

' and collateral estoppel, and both doctrines are

| clearly applicable. Bradford attempts in the instant

suit to relitigate exactly the same claims and issues

| he raised as a party in the [First Action] .. .

|

(App. B, 6). On this issue, the Ninth Circuit agreed. “The district

court properly concluded that Bradford’s action was barred

under the doctrines of claim preclusion and issue preclusion.”

(App. A, 5). Petitioners offer no reason why this Court should

reexamine this issue.

Both the District Court and the Ninth Circuit correctly

analyzed the factual basis of petitioners’ claims, and applied

the correct legal rules. Both courts concluded petitioners had

no claims against respondents. There is no need for this Court

to prolong this case, only to come to the same inevitable

conclusion.

eg Be ol

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CONCLUSION

For all the foregoing reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

CAROLE E. HANDLER

Counsel of Record

R. ALEXANDER PILMER

KAYE, SCHOLER, FIERMAN,

HAYS & HANDLER, LLP

Attorneys for Respondent

Atlantic Recording Corporation, Inc.

1999 Avenue of the Stars

Los Angeles, California 90067

(310) 788-1000

JOEL McCABE SMITH

ROBERT S. GUTIERREZ

LEOPOLD, PETRICH & SMITH

Attorneys for Respondents

EMI Entertainment World, Inc.

and Charles Koppelman

2049 Century Park East

Suite 3110

Los Angeles, California 90067

(310) 277-3333

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