Case 3:19-cv-05440-RS Document 114 Filed 04/26/21 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`Case No. 19-cv-05440-RS
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`ORDER GRANTING IN PART AND
`DENYING IN PART MOTIONS TO
`DISMISS; GRANTING MOTION TO
`SEVER
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`I. INTRODUCTION
`In their renewed motions to dismiss, Defendants Apple Inc. (“Apple”) and Google LLC
`(“Google”) hum a familiar tune. Once again, they complain Plaintiff Larry Reynolds, appearing
`pro se, has not alleged his claim of copyright infringement with enough specificity. Google also
`renews its motion to sever. For the reasons set forth below, the motions to dismiss are granted in
`part and denied in part and the motion to sever is granted.
`II. BACKGROUND1
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`Reynolds is a musician who has produced a number of songs and albums under the stage
`name L.P. Reynolds. He alleges Defendants have initiated a “digital music administrative
`campaign to reproduce and distribute” approximately seventy of Reynolds’ “sound recordings and
`works of musical composition[] to en[gage] with a third party, (the Harry Fox Agency) without
`
`LARRY REYNOLDS,
`Plaintiff,
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`v.
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`APPLE INC., et al.,
`Defendants.
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`1 Facts are drawn from Plaintiff’s complaint and are taken as true for the purpose of deciding this
`motion to dismiss.
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`Plaintiff[‘s] authorization.” Second Amended Complaint (“SAC”) ¶ 10. He identifies the eight
`albums and seventy songs at issue. SAC at 17-24. He has provided Certificates of Registration
`showing that he owns valid copyrights in seven albums: L.P. Reynolds Christmas, Tennessee
`Fever (Presidential Edition), L.P. Reynolds Bride for Doctor Levinstein, L.P. Reynolds Something
`New, L.P. Reynolds If You Don’t Believe, L.P. Reynolds God Gave Love Today, and L.P.
`Reynolds and the Argonauts.
`Reynolds contends the Defendants do not have the proper license, or exceeded the scope of
`such a license, to distribute his music and that they have not paid, or underpaid, royalty payments
`owed to him “from as far back as 2015-2017[.]” Id. ¶ 11. More specifically, he alleges that the
`Defendants did not file with him or the United States Copyright Office a Notice of Intent (“NOI”)
`or that they “went far over the (Notice of Intention date) that [] would have been granted.” Id. ¶
`18. Reynolds explains that he has been served with Notices of Intent from other companies, but
`neither from Apple nor Google. He does, however, note that he has received small royalty
`payments from the Harry Fox Agency (“HFA”) – $0.75 on December 26, 2018, $0.01 on January
`28, 2019, $12.28 on June 3, 2019, $0.02 on August 28, 2019, and $12.81 on November 25, 2019.
`He also accuses both Defendants of issuing false bank statements related to his “music account”
`using the HFA. Id. ¶ 28.
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`On October 15, 2020, the parties participated in a settlement conference before Magistrate
`Judge Ryu. Judge Ryu reported that the matter was fully settled and the parties had agreed to all
`terms and made arrangements for signing. In an order entered twelve days later, however, Judge
`Ryu stated that Reynolds had not yet signed the settlement agreement. She explained that as a
`result of the pandemic, the settlement conference had taken place over Zoom rather than in person
`and that Reynolds did not have the equipment to sign the agreement at home. He represented to
`the court at the settlement conference that he would get the agreement signed later that day at his
`local Office Depot. By October 27, he had not yet done what he promised to do on October 15. As
`a result, he was ordered to return the signed settlement agreement, or submit a written response
`explaining why he had not done so, by November 6, 2020. On November 4, 2020, Reynolds filed
`ORDER
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`a response (now under seal) in which he stated that he had decided not to sign the settlement
`agreement. These motions followed.
`III. LEGAL STANDARDS
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`A. Motion to Sever
`Joinder is proper if the plaintiffs: (1) assert any right to relief arising out of the same
`transaction, occurrence, or series of transactions or occurrences and (2) if any question of law or
`fact common to all the plaintiffs will arise in the action. Fed. R. Civ. P. 20 (a)(1). The Ninth
`Circuit has noted that Rule 20 “is to be construed liberally in order to promote trial convenience
`and to expedite the final determination of disputes, thereby preventing multiple lawsuits.” League
`to Save Lake Tahoe v. Tahoe Reg'l Planning Agency, 558 F.2d 914, 917 (9th Cir.1977); see also
`United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966) (“Under the Rules, the impulse is
`toward entertaining the broadest possible scope of action consistent with fairness to the parties;
`joinder of claims, parties and remedies is strongly encouraged”). Nonetheless, “a district court
`must examine whether permissive joinder would comport with the principles of fundamental
`fairness or would result in prejudice to either side.” Coleman v. Quaker Oats Co., 232 F.3d 1271,
`1296 (9th Cir. 2000) (internal quotations omitted).
`B. Motion to Dismiss
`Under the Federal Rules of Civil Procedure, a complaint must contain a short and plain
`statement of the claim showing the pleader is entitled to relief. Fed. R. Civ. P. 8(a). While
`“detailed factual allegations” are not required, a complaint must have sufficient factual allegations
`to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
`(quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). A motion to dismiss under Rule
`12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of Bus.,
`Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal under Rule 12(b)(6) may be
`based on either the “lack of a cognizable legal theory” or on “the absence of sufficient facts
`alleged” under a cognizable legal theory. UMG Recordings, Inc. v. Shelter Capital Partners LLC,
`718 F.3d 1006, 1014 (9th Cir. 2013). Pro se complaints are liberally construed and may only be
`ORDER
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`dismissed for failure to state a claim where “it appears beyond doubt that the plaintiff can prove no
`set of facts in support of his claim which would entitle him to relief.” Wilhelm v. Rotman, 680
`F.3d 1113, 1121 (9th Cir. 2012).
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`IV. DISCUSSION
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`A. Reynolds’ Motions
`Since Defendants filed their motions, Reynolds has filed four motions: two motions to
`amend his complaint, one for summary judgment, and one “motion for ruling.” This Court
`previously granted Defendant’s motion to enlarge time to respond to Reynolds’ motion for
`summary judgment (Dkt. 104) and the later of Reynolds’ two motions to amend (Dkt. 103). The
`earlier titled motion to amend, however, is identical to the SAC, except that it adds a number of
`new exhibits.2 For ease of administration, it will be considered here and the motion granted over
`Defendants’ objections. The “motion for ruling,” on the other hand, is denied because no such
`motion exists.3
`B. Motion to Sever
`While Reynolds accuses each Defendant of a similar course of infringing conduct, he does
`not allege that they worked together or that the findings of fact necessary to resolve each claim in
`his favor would overlap. He makes separate claims about Google with regard to Google Play and
`Apple with regard to Apple Music. Even if they both distributed Reynolds’ music without a
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`2 The new exhibits include: a formal list of Reynolds’ works; scans of print outs of his work on
`Google Play; a scan of 17 U.S.C. §§ 106, 501, 504; what appears to be the second chapter of a
`copyright treatise; scans of print outs of his work on iTunes Music; a scan of a print out of a page
`entitled “Top Songs by L.P. Reynolds” from Shazam; a scan of a print out of a search of “lp
`reynolds” on Google Play; scans of a print out of Reynolds’ albums “Supersaint,” “L.P. Reynolds
`Christmas,” “Tennessee Fever (Presidential Edition),” and “L.P. Reynolds & the Argonauts” for
`sale in an online music store; a scan of a print out of a search for “l.p. reynolds” on Google, and
`Certificates of Registration from the United States Copyright Office for the albums L.P. Reynolds
`Christmas, L.P. Reynolds and the Argonauts, L.P. Reynolds Bride for Doctor Levinstein, L.P.
`Reynolds Something New, Tennessee Fever (Presidential Edition), L.P. Reynolds If You Don’t
`Believe, and L.P. Reynolds God Gave Love Today.
`3 The “motion for ruling” appears also to contain Reynolds’ case management statement. Though
`the motion is technically denied, he need not submit another statement before the case
`management conference.
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`ORDER
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`license, they did so separately. Because Reynolds’ allegations are clearly siloed as to each
`Defendant, severance is appropriate. The Clerk is directed to open a separate file against Google.
`C. Motions to Dismiss
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`To establish a prima facie case of copyright infringement, a plaintiff must show “(1)
`ownership of a valid copyright and (2) violation by the alleged infringer of at least one of the
`exclusive rights granted to copyright owners by the Copyright Act.” UMG Recordings, 628 F.3d at
`1178. Section 106 of the Copyright Act grants copyright owners the exclusive right, among others,
`“to distribute copies ... of the copyrighted work to the public by sale or other transfer of
`ownership.” 17 U.S.C. §§ 106(3), 501(a). Thus, to survive a motion to dismiss, Reynolds must
`allege facts showing that he owns valid copyrights and that Apple and Google distributed the
`copyrighted work without permission. In the previous order, Reynolds was directed to provide an
`exhaustive list of his copyrights and to describe more fully why Apple’s alleged conduct was
`unauthorized.
`Before an entity may reproduce and distribute a phonorecord of a musical work in which
`another holds a valid copyright, it must obtain a compulsory license. Eight Mile Style, LLC v.
`Spotify USA Inc., 2021 WL 1578106, at *2 (M.D. Tenn. April 22, 2021). “Once a copyright owner
`distributes the musical work ‘to the public,’ the compulsory license provision of § 115 is triggered,
`and anyone may obtain a compulsory license in the musical work by serving an NOI on the
`copyright owner within the applicable time frame[.]” Yesh Music, LLC v. Amazon.com, 249
`F.Supp.3d 645, 651 (E.D.N.Y. 2017) (citing 17 U.S.C. § 115(a), (b)). “For a compulsory license to
`be available,” “the NOI must be sent before, or no more than 30 days after, the first distribution of
`the composition.” Eight Mile Style, 2021 WL 1578106, at *2.
`Though Reynolds’ SAC is at times hard to follow, it is clear he is asserting that Apple and
`Google are using Apple Music and Google Play to “distribute copies or phonorecords of the
`copyrighted work to the public,” an exclusive right under 17 U.S.C. § 106, without having served
`on him a valid NOI. Under 17 U.S.C. § 115(b)(4), “the failure to serve or file the notice of
`intention . . . forecloses the possibility of a compulsory license.” Without a voluntary license, “the
`ORDER
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`failure to obtain a compulsory license renders the making and distribution of phonorecords
`actionable as acts of infringement.” 17 U.S.C. § 115(b)(4). Because Defendants do not make the
`argument that the filing or serving of an NOI is irrelevant or unnecessary in this instance,
`Reynolds has alleged sufficiently that Defendants did not obtain the license required to distribute
`his music. Thus, his claim of infringement survives at this stage.
`Apple argues that Reynolds “appears to acknowledge” by virtue of the received royalty
`payments “that he authorized HFA as his agent to license his works.” Apple Reply at 2. Though an
`allegation of the receipt of royalties in the absence of an NOI does suggest some confusion on
`Reynolds’ part, the fact remains that he alleges he never received an NOI. Thus, Apple seems to
`insinuate an NOI was unnecessary either because Reynolds entered into an agreement with HFA
`to distribute his works (which Reynolds does not allege) and HFA proceeded to contract with
`Defendants or that Reynolds reached some type of voluntary agreement with Defendants. It would
`be unreasonable to read Reynolds’ complaint as a whole and come to the conclusion that he had at
`any point agreed to let Apple or Google distribute his works or that he allowed HFA to license his
`works on his behalf. The very gravamen of Reynolds’ complaint is the unauthorized nature of
`Defendant’s distribution. If Apple has evidence of either type of agreement, it is encouraged to
`submit it at the summary judgment stage.
`Moreover, while both Defendants assert Reynolds’ allegations of unauthorized distribution
`are conclusory, neither gives any indication about what kind of detail is missing. Google
`complains Reynolds has not identified which works Google infringed, and how. Yet it is clear on
`the face of the complaint that Reynolds is asserting all seventy songs he lists were distributed
`without authorization on Google Play.4 The paragraph before his list of seventy songs over eight
`albums refers to “Plaintiff[‘s] exhau[s]tive list of sound recording[s] and musical works that
`Defendants reproduced and distributed without a license of compulsory, [sic] and exceeded the
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`4 Though he includes it in his “exhaustive list,” Reynolds’ claims related to L.P. Reynolds
`Supersaint must be dismissed because he has not alleged he holds a valid copyright in that album
`or any of its songs.
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`ORDER
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`scope of a granted license from 2015-2019, through the Henry Fox Agency.” SAC ¶ 27. Similarly,
`Google’s argument that Reynolds has not identified the manner in which Google exceeded its
`license is belied by Reynolds’ specific allegation that Defendants “went far over the [NOI] date
`that . . . would have been granted.” SAC ¶ 18. Reynolds has thus identified who, what, when, and
`by what means he is alleging copyright infringement. Of course, Google may disagree with that
`assessment, and may provide proof to the contrary at summary judgment. It cannot at this stage,
`however, maintain that it is unaware of the claims against it.
`Google additionally argues Reynolds’ claim that Defendants have issued false bank
`statements must be dismissed. Though not listed as a separate claim, and though Reynolds
`specifically states he has elected only to amend his copyright claim, Reynolds makes the
`allegation so it must be addressed. Because Reynolds offers no support on this point, any claim
`related to false bank statements is dismissed with leave to amend. Should Reynolds have any
`evidence that the amounts, origins, or any other aspect of the statements were falsified, he should
`include it in an amended complaint within 21 days.
`V. CONCLUSION
`For the reasons set forth above, the motions to dismiss are granted in part and denied in
`part and Google’s motion to sever is granted. As indicated above, the Clerk is directed to open a
`new file against Google only.
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`IT IS SO ORDERED.
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`Dated: April 26, 2021
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`______________________________________
`_____ _____________________________________________
`RICHARD SEEBORG
`RICHARD SEEBORG
`Chief United States District Judge
`Chief United States District Judge
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`ORDER
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