Kihn v. Bill Graham Archives, LLC

Citation445 F.Supp.3d 234
Decision Date10 April 2020
Docket NumberCase No. 17-cv-05343-YGR
Parties Greg KIHN, et al., Plaintiffs, v. BILL GRAHAM ARCHIVES, LLC, et al., Defendants.
CourtU.S. District Court — Northern District of California

Daniel L. Warshaw, Bobby Pouya, Matthew A. Pearson, Pearson, Simon & Warshaw, LLP, Sherman Oaks, CA, Arun Dayalan, Daniel Boris Lifschitz, Douglas L. Johnson, Neville L. Johnson, Johnson and Johnson LLP, Beverly Hills, CA, Douglas Lowell Johnson, Johnson & Rishwain LLP, Los Angeles, CA, Joseph C. Bourne, Melissa S. Weiner, Pearson, Simon & Warshaw, LLP, Minneapolis, MN, for Plaintiffs.

Erin R. Ranahan, Diana L. Leiden, Winston & Strawn LLP, Los Angeles, CA, Michael S. Elkin, Seth E. Spitzer, Pro Hac Vice, Thomas Patrick Lane, Winston & Strawn New York Office, New York, NY, Jason Craig Hamilton, Theodora Oringher PC, Costa Mesa, CA, for Defendants.


Dkt. No. 107, 109, 120, 126, 128, 145, 167

Yvonne Gonzalez Rogers, United States District Court Judge

This case arises from defendants’ exploitation of audio and video recordings of live musical performances, and the musical compositions performed therein, from the 1950s to the 1990s. Plaintiffs Greg Kihn and Rye Boy Music, LLC (Kihn's music publisher) allege that defendants Bill Graham Archives, LLC dba Wolfgang's Vault; Norton, LLC; and William Sagan distributed and sold in thousands of recordings acquired from a dozen private collections—recordings that captured live performances spanning several decades, made by concert producers and sound engineers without the performers’ authorization. Plaintiffs allege that the conduct began in 2006 when defendants began offering digital downloads or on-demand streaming on two websites: (1), which offers audio recordings; and (2), which offers both audio and audiovisual recordings for on-demand streaming (hereinafter, "Websites").1

Plaintiffs Kihn and Rye Boy bring this motion seeking to certify two classes: a Composer Class and a Performer Class.2 With respect to the Composer Class, plaintiff Rye Boy seeks to represent a putative class of composers of musical works alleging infringement of copyrighted musical compositions based upon unauthorized sale and distribution of sound recordings and audiovisual recordings. With respect to the Performer Class, plaintiff Kihn seeks to represent a putative class of live music performers, alleging that defendants trafficked in recordings of their live musical performances without authorization in violation of 17 U.S.C. section 1101.

Defendants oppose class certification arguing that plaintiffs cannot meet any of the requirements to certify a class under either Rule 23(b)(2) or (b)(3). In summary, they contend that individualized issues arise from the creation and ownership of the live music recordings, as well as from licensing arrangements and their alleged defenses of consent, fair use, and untimeliness. While defendants raise arguments in their opposition as to all the elements of Rule 23, the focus of the fight here is whether common issues of fact and law would predominate, as required by Rule 23(b)(3).

As set forth more fully herein, with respect to the Composer Class, the Court concludes plaintiffsprima facie case for copyright infringement may be established readily on common evidence. In opposition to class certification, defendants have put forward a common set of contractual agreements, applicable to the entire class, which they contend preclude liability. Consequently, the Court concludes that common issues of fact and law would predominate on the copyright infringement claims and the Composer Class should be certified.

For much the same reasons, the Court concludes that common issues would predominate on the section 1101 claim of the Performer Class. As explained below, the Court has considered the novel legal question of the evidentiary burdens on a claim under section 1101. Having carefully examined the text and purposes of the statute, as well as principles of evidence and statutory interpretation bearing on the question, the Court finds the authorization requirement is an affirmative defense, and defendants bear the burden to establish authorization. As with their affirmative defenses to the Composer Class's claims, defendants’ opposition to certification of the Performer Class relies on the same limited number of agreements, applicable to all class members, for their contention that the recordings and their exploitation were authorized. Thus, on the record put forward by the parties at class certification, common issues of fact and law predominate on the Performer Class's section 1101 claim, and certification of the Performer Class is appropriate.

Accordingly, having carefully considered the papers submitted, the pleadings in this action, the admissible evidence,3 and the arguments of the parties, and for the reasons set forth below, the Court GRANTS the Motion for Class Certification of: (1) a Composer Class for copyright infringement, and (2) a Performer Class for violation of the Anti-Bootlegging Statute, 17 U.S.C. section 1101 as defined herein.


As a preliminary matter, both sides have submitted administrative motions to seal documents or portions of documents offered in support of their class certification briefing and supplemental briefing. (Dkt. Nos. 98, 109, 120, 126, 128, 145, 167.) While the standard for sealing documents in connection with class certification does not require "compelling reasons" as set forth in Pintos v. Pacific Creditors Ass'n, 605 F.3d 665, 678 (9th Cir. 2010), the Court nevertheless finds that the sealing requests here are overbroad and good cause has not been established to seal certain documents to the extent requested. The Court has considered the basis offered for sealing, as well as the significance to the Court's decision of the portions sought to be sealed, in determining which portions to cite or quote in its order herein. The motions to seal are granted only insofar as they are not necessary to the Court's analysis.

Therefore, to the extent the Court has quoted or recited the contents of any specific portion of a document in this decision, the motion to seal that information is DENIED for lack of good cause. The motions to seal (Dkt. Nos. 98, 109, 120, 126, 128, 145, 167) are otherwise GRANTED for good cause shown.4


Defendants acquired collections of audio and audiovisual recordings capturing the live musical performances of more than 900 musical artists, spanning the decades from the 1950's through 1990's. In 2002, defendants purchased the archives from the estate of deceased San Francisco Bay Area rock concert promoter Bill Graham. (Weiner Decl. Exh. 2.) Graham had amassed a large personal collection of thousands of recordings from the concerts he promoted in the San Francisco Bay Area. (See Weiner Decl. Exh. 3.) Defendants contend that they made this purchase with the understanding that they were acquiring ownership of the "master recordings"5 in the Bill Graham Archive. (See Weiner Decl. Exh. 1 [Sagan Depo.] at 147:10-17.)6 Thereafter, defendants acquired the rest of the recordings from about twelve other third-party sources, mostly concert producers and sound engineers. (See Weiner Decl. Exhs. 4-16, "Acquisition Agreements").7 Nearly all of those agreements included substantially the same representations concerning knowledge and consent of the performers in the recordings:

To the best of Seller's knowledge and belief , any and all performers whose performance is captured in the Recordings were fully aware of, and expressly approved of and consented to, the making of the Recordings. The performers included in the Recordings did not impose , either orally or in writing, any restrictions or requirements on Seller on any use or exploitation of any the Recordings that resulted from such recording and have never, to Seller's knowledge, asserted any ownership interest in or other rights to such Recordings.

(Sagan Decl., Exh. E [Brower Agreement] at § 4(f) (emphasis supplied); see also Exh. C [Festival Network] at § 4(e); Exh. F [Plainfield Music] at § 4(h); Exh. G. [Hewitt] at § 4(f); Exh. I [Dawson] at § 4(f); Exh. J [Amazingrace] at § 7(f); Exh. K [Filmsonix] at § 4(g); Exh. L [Fuel 2000] at § 4(f); Exh. M [Ash Grove Theater] at 4(f); compare id. Exh. H. [Tramps Club] at § 4(f) substituting the words "and did not object to " instead of "approved of and consented to").8

In total, defendants acquired over 21,000 audio and audiovisual recordings, some of which included multiple songs (or musical works). (Sagan Depo. at 143:1-13.) Defendants copied the recordings onto hard drives and servers, sometimes mixing or mastering the files depending on their condition, and then created mp3 file copies of them. (Sagan Decl. ¶¶ 29, 30.)

In 2006, defendants began offering copies of the recordings to the public on their Websites for digital download or on-demand streaming, by individual sale or on a subscription basis. (Id. ¶¶ 30, 31.) In 2009, following litigation defendants brought by several record companies and musicians alleging unauthorized exploitation of the recordings via the Websites, defendants entered into settlement agreements with three major record labels: UMG Recordings Inc., Warner Music, Inc., and Sony Music Entertainment. (Sagan Decl. N, O, P ["Joint Exploitation Agreements"].)9 The Joint Exploitation Agreements state that defendants own the copyright in the "master" recordings covered therein.10

In the present litigation, Kihn declares that the recordings of his live performances available on the Websites were made and exploited without his permission, and that he was not aware the performances were recorded and archived for later exploitation. (Kihn Decl., Dkt. No. 107-3, ¶ 3). Joel Turtle, co-owner of Rye Boy Music, LLC, likewise avers that Rye Boy did not...

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