Fantasy, Inc. v. Fogerty

• Citation: 664 F. Supp. 1345
• Decision Date: 02 July 1987
• Docket Number: No. C-85-4929 SC.,C-85-4929 SC.
• Court: U.S. District Court — Northern District of California
• Parties: FANTASY, INC., Plaintiff, v. John C. FOGERTY, Wenaha Music Co., Warner Bros. Records, Inc., WEA International, Inc., Defendants. John C. FOGERTY, Counterclaimant, v. FANTASY, INC., Counterdefendant.

664 F. Supp. 1345

FANTASY, INC., Plaintiff, v. John C. FOGERTY, Wenaha Music Co., Warner Bros. Records, Inc., WEA International, Inc., Defendants.

John C. FOGERTY, Counterclaimant, v. FANTASY, INC., Counterdefendant.

No. C-85-4929 SC.

United States District Court, N.D. California.

June 5, 1987.

Order on Motion for Reconsideration July 2, 1987.

Malcolm Burnstein, Burnstein, Walker & Bull, San Francisco, Cal., for plaintiff.

Kenneth Sidle, Gipson, Hoffman & Pancione, Los Angeles, Cal., for defendant Fogerty.

Joseph Golden, Rudin, Richman & Appel, Beverly Hills, Cal., for defendants Warner Bros. and WEA Intern.

ORDER RE PLAINTIFF'S MOTION TO STRIKE AND MOTIONS FOR SUMMARY JUDGMENT AND FOGERTY'S MOTION FOR SUMMARY JUDGMENT

CONTI, District Judge.

Plaintiff brings this action against defendants John C. Fogerty and Wenaha Music Co., (collectively "Fogerty") and Fogerty's licensees, defendants WEA International, Inc. ("WEA") and Warner Bros. Records, Inc. ("WBR") (collectively "Warner") for copyright infringement. Plaintiff also sues Fogerty for declaratory relief. In turn, Fogerty asserts various counterclaims against plaintiff.

In 1970, Fogerty wrote the song "Run Through the Jungle" ("Jungle"). Fogerty subsequently granted the exclusive rights in the Jungle copyright to plaintiff's alleged predecessors, Cireco Music and Galaxy Records. In return, Fogerty received a sales percentage and other royalties derived from the exploitation of Jungle. In 1984, Fogerty wrote the song "The Old Man Down the Road" ("Old Man"). Fogerty registered a copyright to Old Man and then authorized Warner to distribute copies of Fogerty's performance of Old Man. Plaintiff claims Old Man is Jungle with new words and has sued for infringement.

Several motions bring this matter presently before the court. First, plaintiff moves to strike Fogerty's filing titled: "Answer of John Fogerty to First Amended Complaint for Copyright Infringement and Declaratory Relief and Counterclaims for Relief Based on Rescission (Restitution of Songs), Copyright Infringement or, in the Alternative, for Damages and an Accounting" ("Fogerty's Answer to First Amended Complaint"). Second, plaintiff moves for summary judgment establishing defendants' liability for copyright infringement or, in the alternative, an order specifying that certain facts appear without substantial controversy. Warner joins Fogerty's opposition to this motion. Third, Fogerty seeks summary judgment on plaintiff's second claim for declaratory relief. And fourth, plaintiff's seeks summary judgment on Fogerty's first and second counterclaims for restitution and copyright infringement.

I. Plaintiff's Motion to Strike.

Plaintiff seeks to strike Fogerty's Answer to First Amended Complaint. Plaintiff argues that Fogerty's Answer to Amended Complaint makes no new allegations against Fogerty. Memorandum of Points and Authorities in Support of Motion to Strike Purported Answer and Counterclaims ("Motion to Strike"), pp. 2-3. Plaintiff also argues that Fogerty filed his pleading untimely and without the court's leave. Id. Fogerty contends that his filing does not prejudice plaintiff since it does not introduce any new material issues. Memorandum of Points and Authorities in Opposition to Motion to Strike Answer and Counterclaim to First Amended Complaint ("Opposition to Motion to Strike"), p. 3. Fogerty states that his filing simply eliminates confusion between the First Amended Complaint and Fogerty's original answer and counterclaims. Id., at pp. 5-7.

The court finds Fogerty's Answer to First Amended Complaint untimely. Fed. R.Civ.P. 15(a) requires a party to file a response to an amended pleading "within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders." On October 6, 1986, plaintiff filed his First Amended Complaint. On October 3, 1986, plaintiff served his First Amended Complaint on Fogerty by mail. Six months later on April 8, 1987, Fogerty filed Fogerty's Answer to First Amended Complaint. Thus, Fogerty responded to plaintiff's amended pleading outside the time period prescribed by Rule 15(a).

Fogerty also failed to seek the court's permission prior to amending his answer and counterclaims. Rule 15(a) provides that a party must seek the court's leave or obtain the adverse party's written consent before amending his pleading after the adverse party has filed a response. Fogerty's Answer to First Amended Complaint amends his prior pleading by adding a new allegation to his first counterclaim and restating certain affirmative defenses. See, Fogerty's Answer to First Amended Complaint, ¶¶ 23, 28 & 36. Prior to the filing of this amended pleading however, plaintiff replied to Fogerty's counterclaims. See, Plaintiff's Reply to Defendant Fogerty's Amended Counterclaims. Since plaintiff has filed a responsive pleading to Fogerty's counterclaims, Rule 15(a) requires Fogerty to seek the court's leave prior to amending them. Fed.R.Civ.P. 15(a). Fogerty has failed to do so.

Lastly, the court finds Fogerty's Answer to First Amended Complaint redundant. Plaintiff's First Amended Complaint makes no new allegations against Fogerty. The amended complaint simply adds defendant WEA International, Inc. and eliminates certain pendant claims. Thus, Fogerty had the opportunity to respond to plaintiff's allegations in his initial and amended answers to plaintiff's complaint. Apparently, Fogerty admits this fact since he states that Fogerty's Answer to First Amended Complaint presents no new material issues. Opposition to Motion to Strike, p. 3.

For the reasons stated above, the court strikes Fogerty's Answer to First Amended Complaint. The court finds Fogerty's filing untimely and redundant. In addition, Fogerty has failed to request the court's leave to amend his answer and counterclaims. In striking Fogerty's Answer to First Amended Complaint, the court does not consider Fogerty prejudiced. Fogerty states his filing presents no new material issues and was submitted to eliminate confusion in the pleadings, apparently for the court's convenience. Opposition to Motion to Strike, pp. 3, 5-7. Accordingly, the court grants plaintiff's motion to strike Fogerty's Answer to First Amended Complaint.

II. Motions for Summary Judgment.

Summary judgment is proper only when there is no genuine issue of material fact or when, viewing the evidence in the light most favorable to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56(c); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985). Once a summary judgment motion is made and properly supported, the adverse party may not rest on the mere allegations of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Myrtle Nell Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Weighing evidence, determining credibility, and drawing inferences from facts remain jury functions which may not be undertaken by the trial judge. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2516, 91 L.Ed.2d 202 (1986).

A. Plaintiff's Motion for Summary Judgment Re Copyright Infringement.

Plaintiff moves for summary judgment concerning defendants' liability for copyright infringement. In addition, plaintiff requests summary judgment regarding defendants' fair use and 1st Amendment defenses. Lastly, plaintiff seeks summary judgment as to defendants' liability for extraterritorial damages. In the alternative, plaintiff seeks an order specifying that certain facts appear without substantial controversy. Warner joins Fogerty's opposition to plaintiff's motion.

1. Summary Judgment as to Infringement.

The Ninth Circuit has recently reviewed the elements necessary for a successful claim of copyright infringement.

To establish a successful claim for copyright infringement, a plaintiff must prove (1) ownership of the copyright, and (2) "copying" of a protectible expression by defendant. citations omitted Because direct evidence of copying is rarely available, a plaintiff may establish copying by circumstantial evidence of: (1) defendant's access to the copyrighted work prior to the creation of defendant's work, and (2) substantial similarity of both general ideas and expression between the copyrighted work and the defendant's work.

Baxter v. MCA, 812 F.2d 421, 423 (9th Cir.1987). Once a plaintiff proves access and substantial similarity, the burden shifts to the defendant to disprove copying. Transgo, Inc. v. Ajac Transmissions Parts Corp., 768 F.2d 1001, 1018 (9th Cir.1985).

Addressing the first element, plaintiff has established its chain of title to the Jungle copyright. In January 1968, John Fogerty entered into a three year publishing agreement with Cireco Music ("Cireco Agreement"). Declaration of Malcolm Burnstein in Support of Plaintiff's Motions for Summary Judgment ("Burnstein Declaration"), Ex. 64A. The Cireco Agreement granted to Cireco Music and its "successors and assigns" all rights to Fogerty's music composed during the agreement's term and provided Fogerty with royalties derived from the exploitation of such works. Burnstein Declaration, Ex. 64A at ¶¶ 1-4. Galaxy Records, Inc. ("Galaxy") succeeded to the Cireco Agreement when the partnership doing business as Cireco Music incorporated. Declaration of Saul Zaentz in Support of Plaintiff's Motions for Summary Judgment ("Zaentz Declaration"), ¶¶ 3, 4 & 6; Supplemental Declaration of Saul Zaentz in Support of Plaintiff's Motions for Summary Judgment ("Supplemental Zaentz Declaration"), ¶¶ 2-4, Exs. SZ1, SZ4; Declaration of Albert M. Bendich in Support of Plaintiff's Motions for Summary Judgment ("Bendich Declaration"), ¶ 3. Sometime in 1969 or 1970, John Fogerty, under the name of Dunes Corporation Limited ("Dunes"), entered into a publishing...