Smith v. Jackson, s. 94-55355
| Decision Date | 05 June 1996 |
| Docket Number | Nos. 94-55355,94-55616 and 94-55617,s. 94-55355 |
| Citation | 84 F.3d 1213 |
| Parties | 1996 Copr.L.Dec. P 27,531, RICO Bus.Disp.Guide 9055, 39 U.S.P.Q.2d 1026, 96 Cal. Daily Op. Serv. 4023, 96 Daily Journal D.A.R. 6511 Robert SMITH, aka Robert Austin; Reynaud D. Jones; Clifford Rubin, Plaintiffs-Appellants, v. Michael JACKSON; Mijac Music; Joseph Jackson; Lionel Richie; Rod Temperton; Rodsongs; USA for Africa Foundation, aka United Support of Artists for Africa; Warner Brothers Publications, Inc.; Columbia Pictures Publication; Brockman Music; Almo Publications; Warner-Tamerlane Publishing Co.; CBS, Inc.; Quincy Jones; MJJ Productions, Inc., Defendants-Appellees. Robert SMITH, aka Robert Austin; Reynaud D. Jones; Clifford Rubin, Plaintiffs-Appellees, v. Michael JACKSON; Defendant, and Rod Temperton; Defendant-Appellant. Robert SMITH, aka Robert Austin; Reynaud D. Jones; Clifford Rubin, Plaintiffs-Appellees, v. Michael JACKSON; Mijac Music; Joseph Jackson; Lionel Richie; USA for Africa Foundation, aka United Support of Artists for Africa; Warner-Tamerlane Publishing Corp.; Warner Bros. Publications, Inc.; Quincy Jones; MJJ Productions, Inc.; Sony Records, successor-in-interest to CBS Records, Inc., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert H. Rotstein and Robyn-Marie Lyon Monteleone, McDermott, Will & Emery, Los Angeles, California, and Gerald A. Margolis and Ronald M. Monitz, Manatt, Phelps & Phillips, Los Angeles, California, for defendants-appellees-cross-appellants.
Douglas M. Grimes, Gary, Indiana, and Howard Manning, Jr., Los Angeles, California, for plaintiffs-appellants-cross-appellees.
Appeals from the United States District Court for the Central District of California, Harry L. Hupp, District Judge, Presiding. D.C. No. CV-87-07732-HLH.
Before: GOODWIN and HAWKINS, Circuit Judges, and MARQUEZ, * District Judge.
Appellants/Cross-Appellees Robert Smith and Reynaud Jones brought copyright infringement and RICO actions against appellees/cross-appellants, including Michael Jackson, Rod Temperton, and Lionel Richie. Appellants argue that (1) the district court erred in dismissing appellants' RICO claims pursuant to Fed.R.Civ.P. 12(b)(6), (2) the court erred in granting partial summary judgment in appellees' favor, and (3) the court's jury instructions improperly permitted the jury to find for appellees without considering appellees' access to appellants' copyrighted works. Appellees cross-appealed the court's decision to deny attorney's fees. We affirm.
Appellants' copyright claims were based on appellees' alleged infringement of six of appellants' songs. Appellants had registered copyrights on each song. Appellants did not allege infringement of the lyrics or copying of large parts of the music, but rather alleged that appellees misappropriated musical "motives" from each of appellants' works. 1 More specifically, appellants alleged that:
* Jackson's and Richie's "We Are The World" infringed on one motive from appellants' "If There Be You"
* Jackson's and Richie's "We Are The World" infringed on two motives from appellants' "What Will Become of the Children"
* Jackson's "The Girl is Mine" infringed on one motive from appellants' "Don't Let the Sunshine Catch You Crying"
* Jackson's "The Girl is Mine" infringed on two motives from appellants' "Happy Go Lucky Girl"
* Temperton's "Thriller" infringed on four motives from appellants' "Run on Manchild"
* Jackson's "Another Part of Me" infringed on two motives from appellants' "Send Your Love"
In addition to the copyright infringement claims, appellants alleged that appellees' dissemination and marketing of the songs were mail and wire fraud predicate acts under RICO. The district court dismissed appellants' RICO counts for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). The court concluded that although appellants claimed to allege mail and wire fraud as predicate acts, their RICO claims were actually based on copyright infringement. Because copyright infringement is not a RICO predicate act under 18 U.S.C. § 1961, the court dismissed appellants' RICO claims.
The district court then granted appellees' motion for summary judgment as to all but three of appellants' infringement claims. 2 The court concluded that as to all but the three surviving allegations of infringement, appellants' experts had failed to rebut appellees' expert testimony that appellants' allegedly infringed motives were unprotected "scenes a faire." 3
The three surviving claims went to trial. The jury returned a special verdict for appellees on each of the three infringement claims. The jury concluded that none of appellants' works would be found to be substantially similar to appellees' works by the ordinary lay listener.
The district court denied appellees' post-trial motion for attorney's fees. The district court determined that appellants had not brought their claims in bad faith, that the claims were not frivolous, and that the claims had legal and factual support, and thus concluded that appellees' were not entitled to attorney's fees under the Copyright Act, 17 U.S.C. § 505.
Appellants timely appealed the dismissal of the RICO counts, the partial summary judgment, and alleged trial errors, 4 and Temperton and the Jackson appellees timely cross-appealed the denial of attorney's fees.
A dismissal for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) is a question of law reviewed de novo. Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir.1995). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Everest & Jennings v. American Motorists Ins. Co., 23 F.3d 226, 228 (9th Cir.1994). A complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts that would entitle her to relief. Id.
Liability under RICO, 18 U.S.C. § 1962(c), requires (1) the conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Sun Savings & Loan Assoc. v. Dierdorff, 825 F.2d 187, 191 (9th Cir.1987). "Racketeering activity" is any act indictable under several provisions of U.S.C. Title 18, including the predicate acts alleged in this case, mail fraud and wire fraud. 18 U.S.C. § 1961; see generally Sun Savings & Loan Assoc., 825 F.2d at 191.
The district court concluded that appellants' RICO claims were entirely based on copyright infringement, which is not a RICO predicate act under 18 U.S.C. § 1961, and dismissed them pursuant to Fed.R.Civ.P. 12(b)(6). Appellants argue that their claims were properly based on the predicate acts of mail and wire fraud. We affirm.
The district court did not err in concluding that appellants' RICO claims were reformulated copyright infringement claims. Appellants allege in their RICO counts the same activity alleged in their infringement claims: the unauthorized use and dissemination of appellants' copyrighted works. Indeed, without the alleged infringement of copyright, none of appellees' activity in disseminating their songs could be "fraudulent" and none of appellants' RICO claims could survive. Because appellants' RICO counts do no more than allege copyright infringement under the label of mail and wire fraud, and copyright infringement is not a predicate act under RICO, the district court properly concluded that appellants failed to state a claim.
Appellants' arguments are not persuasive. Appellants admit that the RICO predicate acts are linked with defendants' alleged copyright infringement. Appellants conclude, however, that because the copyright infringement and RICO claims are alleged in separate counts and have a separate jurisdictional basis, the allegations are "separate and distinct." Of course, alleging separate RICO counts does not mean appellants have successfully stated a RICO claim.
Appellants also assert that "[n]ot all of the predicate acts were assigned to carrying out the copyright infringement." Appellant, however, does not cite any examples of predicate acts unrelated to the alleged infringement of appellants' copyrights, nor could we find any non-copyright related predicate acts in appellants' complaint. Accordingly, we affirm the district court's decision to dismiss appellants' RICO counts for failure to state a claim.
The grant of summary judgment is reviewed de novo. Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1044 (9th Cir.1994). However, "summary judgment is not highly favored on questions of substantial similarity in copyright cases." Shaw v. Lindheim, 919 F.2d 1353, 1355 (9th Cir.1990) (citation omitted). When the issue is whether two works are substantially similar, summary judgment is appropriate if "no reasonable juror could find substantial similarity of ideas and expression, viewing the evidence in the light most favorable to the nonmoving party." Kouf, 16 F.3d at 1045. Where reasonable minds could differ on the issue of substantial similarity, summary judgment is improper. Shaw, 919 F.2d at 1355.
To establish a successful copyright infringement claim, a plaintiff must show that (1) she owns the copyright, and (2) defendant copied protected elements of the copyrighted work. Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1176, 130 L.Ed.2d 1129 (1995). Because direct evidence of copying is not available in most cases, plaintiff may establish copying by showing that defendant had access to plaintiff's work and that the two works are ...
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