Case: 16-56057, 08/16/2017, ID: 10548018, DktEntry: 44, Page 1 of 85
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`United States Court of Appeals
`For the Ninth Circuit
`
`
`
`No. 16-56057; 16-56287
`__________________
`Skidmore et al.
`
`Michael Skidmore, Trustee for the
`Randy Craig Wolfe Trust
`Plaintiff-Appellant/Cross Appellee
`v.
`
`Led Zeppelin et al.
`
`Defendants-Appellees
`
`and
`Warner/Chappell Music, Inc.
`
`Defendant, Cross Appellant
`__________________________
`Skidmore’s Combined Reply Brief and
`Opening Brief Responding to
`Defendant’s Costs and Fees Appeal
`_____________________________________
`
`(Music copyright infringement, on appeal from the final Order dated June 23, 2016
`of the Honorable R. Gary Klausner, of the United States District Court for the
`Central District of California. The case was docketed in the Central District at 15-
`cv-03462)
`_____________________________________
`
`Francis Alexander, LLC
`Francis Malofiy, Esquire
`Alfred Joseph Fluehr, Esquire
`280 N. Providence Road | Suite 1
`Media, PA 19063
`T: (215) 500-1000
`F: (215) 500-1005
`Law Firm / Lawyer for Michael Skidmore
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`Table of Contents
`
`Table of Authorities  ............................................................... 5
`Introduction and Summary of the Argument ......................... 7
`
`Request for Oral Argument ................................................... 12
`
`Part I - Argument on Reply ..................................................... 13
`
`1.
`
`The 1909 Copyright Act and the Case Law Do Not Limit the Scope
`of a Musical Copyright’s Composition to Written Sheet Music ................ 13
`a. Plaintiff’s Opening Argument and Defendants’ Response ................ 13
`
`ii.
`
`b. Plaintiff’s Reply on Why Recordings of a Song May Be Used
`to Establish the Composition of Songs and Why The 1909
`Copyright Act Does Not Limit the Protected Composition
`of a Song to Sheet Music ............................................................... 17
`i. Defendants’ Response Fails to Explain why Recordings of
`a Song Cannot be Used to Establish the Composition
`of the Song Under the 1909 Act ......................................... 17
`Plaintiff Has Clearly Shown Why Sections 11-12 Do
`Not Control or Define the Scope of Protected Expression
`in a Musical Composition ................................................. 21
`c. The Ninth Circuit and Sixth Circuit Have Previously Ruled
`That Album Recordings May Be Used to Establish the
`Composition of a Song Copyrighted under the 1909 Act ................... 24
`d. Plaintiff and Future Litigants Will Suffer Severe Consequences if
`the Lower Court’s Decision Restricting the Substantial
`Similarity Comparison is Affirmed ................................................. 28
`
`The Court Should have Permitted Plaintiff to Present Expert
`Testimony that the Composition in the “Taurus” Album Recording
`was Embodied in the Deposit Sheet Music Composition of
`“Taurus”, as the Plaintiff was Allowed to Do in Williams ........................ 29
`
`Plaintiff Demonstrated in His Opening Brief Through Expert
`Testimony, Expert Reports, and Audio Exhibits that the Album
`Composition of “Taurus” was “Identical” to “Stairway to Heaven” Whereas
`the Deposit Copy was Merely “Substantially Similar” ............................ 31
`Plaintiff Has Never Attempted to Claim a Sound Recording
`Copyright Exists or was Copied; Defendants’ Argument to the
`
`
`
`2.
`
`3.
`
`4.
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`5.
`
`6.
`
`7.
`
`8.
`
`Contrary is Nonsensical ...................................................................... 36
`
`Plaintiff Proved a High Degree of Access at Trial and Requested an
`Inverse Ratio Rule Instruction; The Lower Court Erroneously Refused
`to Give the Instruction and Caused Plaintiff Severe Prejudice .................. 38
`a. The Jury Found that Defendants had Access to “Taurus” Because
`Plaintiff Proved a High Degree of Access with both Direct
`and Circumstantial Evidence ........................................................ 39
`
`b. There is No Case Which Limits the Applicability of an Inverse Ratio Rule
`Jury Instruction to Cases with “High Degrees” of Access ................ 41
`
`Plaintiff Explicitly Complied with Central District L.R. 51, the
`Prescribed Method for Preserving Exceptions to Jury Instructions, and
`the Trial Court Acknowledged that All Exceptions and Objections
`were Preserved; Defendants’ Argument that Plaintiff Waived these
`Objections is Disingenuous .................................................................. 43
`
`Plaintiff Did Not Waive Any Claim of Error Regarding the Court’s
`Failure to Instruct the Jury that Combinations and Arrangements of
`Musical Elements are Copyrightable; This Erroneous Omission was
`Highly Prejudicial ................................................................................ 45
`
`The Originality Instruction Given by the Court was Inadequate, Not
`Legally Correct, and Severely Harmed Plaintiff’s Case; Plaintiff Did
`Not Waive this Objection as Defendants Erroneously Claim .................... 49
`a.
`
`Plaintiff Suffered Severe Harm Due to the Incorrect
`Instruction on Originality .............................................................. 49
`b. Plaintiff Did Not Waive any Objection to the Erroneous
`Originality Instruction and In Fact Explicitly Preserved that
`Objection in Writing ..................................................................... 50
`
`9.
`
`During Jury Deliberations the Jury’s Final Question was to Hear
`Plaintiff’s Audio of “Taurus”—The Court Ordered An Irrelevant
`Version of “Taurus” To Be Played, Which Seriously Prejudiced
`Plaintiff By Ending the Case; Plaintiff Specifically Objected and
`Did Not Waive this Error ..................................................................... 53
`10. The Ten-Hour Time Limit Placed on Plaintiff Severely Hindered His
`Ability to Prove Substantial Similarity and Abused the Court’s
`Discretion; This Objection was Explicitly Preserved and Not Waived ....... 56
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`11.
`
`Dr. Lawrence Ferrara’s Testimony Should Have Been Precluded for
`Failing to Disclose that He Had Been Previously Hired by Plaintiff’s
`Publisher to Compare “Taurus” and “Stairway to Heaven” ................... 59
`
`Part II - Plaintiff’s Response Brief to Defendant’s
`Costs and Fees Appeal .................................................................... 63
`
`1.
`
`2.
`
`3.
`
`4.
`
`
`
`Defendant Erroneously and Disingenuously Claims the Trial Court
`Failed to Consider the Purpose of the Copyright Act when Denying
`their Costs and Fees Motion ................................................................. 63
`
`The District Court’s Opinion was Correct and Did Not Abuse
`Its Discretion ...................................................................................... 65
`
`Defendants Spuriously Argue that the Trial Court Erred Because,
`In their Mind, the Musical Expression in “Taurus” was Unprotected
`and the Lawsuit was Unreasonable; This Argument Fails Because
`Defendants Failed to Preserve this Claim of Error and are Improperly
`Asking this Circuit to Resolve a Dispute of Fact between Musical
`Experts ................................................................................................ 69
`
`a.
`
`b.
`
`The Court Properly Found that there was a Dispute of Fact
`Between the Opposing Experts Over the Protectability of “Taurus”
`and its Substantial Similarity to “Stairway to Heaven” ................. 70
`
`Defendants Ignore that There Were Novel Issues of Law
`At Play Which Precluded a Finding that Plaintiff’s Lawsuit
`was Unreasonable or Frivolous ................................................... 72
`
`c.
`
`Defendant Waived any Reasonableness/Frivolousness
`Argument by Failing to Appeal the Underlying Rulings,
`Failing to Develop this Point in the Costs and Fees Motion,
`and By Failing to Develop this Argument in its Opening Brief ........ 75
`
`Defendant’s Litigation Misconduct Argument Does Not Make Sense ....... 78
`
`Conclusion .............................................................................. 81
`
`Statement of Related Cases .................................................................... 82
`Certificate of Compliance ...................................................................... 83
`
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`Table of Authorities
`
`Cases
`
`ABKCO Music, Inc. v. LaVere, 217 F. 3d 684 (9th Cir. 2000) ................................ 17, 19
`
`Berkla v. Corel Corp., 302 F.3d 909, 922 (9th Cir. 2002) ...........................................65
`
`Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 276
`(6th Cir. 2009) ................................................................................... 1, 20-28, 37
`
`Chaidez v. US, 133 S. Ct. 1103, 1108 (2013) ........................................................... 80
`
`Chambers v. Mississippi, 410 US 284, 304 (1973) ................................................ 76-77
`
`Fantasy, Inc. v. Fogerty, 94 F.3d 553, 558 (9th Cir. 1996) .......................................... 66
`
`Fogerty v. Fantasy, Inc., 510 US 517, 526 (1994) ................................................ 64-66
`
`Goldstein v. California, 412 US 546 (1973) .............................................. 14, 20-23, 37
`
`Inhale, Inc. v. Starbuzz Tobacco, Inc., 75 F.3d 1038, 1042-43 (9th Cir. 2014) .................. 67
`
`Kensington Rock Island Ltd. Partnership v. American Eagle Historic Partners, 921
`F.2d 122, 124-25, n. 1 (7th Cir.1990) ..................................................................... 77
`
`Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979, 1989 (2016) .................. 65, 69, 79-80
`
`Lieb v. Topstone Indus., 788 F.2d 151, 156 (3d. Cir. 1986) ......................................... 66
`
`Los Angeles Memorial Coliseum Com'n v. NFL, 726 F. 2d 1381, 1398 (9th Cir. 1984) .. 48, 50
`
`Lotus Development Corp. v. Borland International, 140 F.3d 70, 75 (1st Cir. 1998) ............ 67
`
`Montclair v. Ramsdell, 107 U. S. 147, 152 (1883) ..................................................... 23
`
`Monotype Corp., PLC v. Int'l Typeface Corp., 43 F.3d 443, 451 (9th Cir.1994) .............. 80
`
`National Conference of Bar Examiners v. Multistate Legal Studies, 692 F. 2d 478 (7th Cir.
`1982) .................................................................................................. 17, 21, 22
`
`Newton v. Diamond, 204 F. Supp. 2d 1244, 1259 (C.D. Cal. 2002) .......................... 24, 38
`
`Perfect 10, Inc. v. Visa Int’l Ass’n, Inc., 2005 WL 2007932 at *4
`(N.D. Cal. Aug. 12, 2005) ................................................................................. 67
`
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`Perfect 10, Inc. v. Ccbill LLC, 488 F.3d 1102, 1120 (9th Cir. 2007) ............................... 67
`
`Rice v. Fox Broadcasting Co., 330 F. 3d 1170 (9th Cir. 2003) .................................. 41, 42
`
`Seltzer v. Green Day, 725 F.3d 1170, 1180 (9th Cir. 1980) ................................. 65-67, 70
`
`Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) ................................................. 78
`
`Smith v. Barry, 502 U.S. 244, 248, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992) ....................... 76
`
`SOFA Entm’t, Inc. v. Dodger Prods., Inc., 709 F.3d 1273, 1280 (9th Cir. 2013) .......... 70-75
`
`Swirsky v. Carey, 376 F.3d 841, 849 (9th Cir. 2004) ............................................. et seq.
`
`Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000) ............................ et seq.
`
`United States v. Menasche, 348 US 528, 538-39 (1955) ............................................. 23
`
`US v. WR Grace, 504 F.3d 745 (2007) .................................................................. 21
`
`Viva Video, Inc. v. Cabrera, 9 Fed.Appx. 77, 80 (C.A.2 2001) ..................................... 79
`
`Washingtonian Publ’g Co. v. Pearson, 306 U.S. 30, 41 (1939) ...................................... 15
`
`White-Smith Music Publ’g Co. v. Apollo Co., 209 U.S. 1, 10-11 (1908) ..................... 14, 29
`
`Statutes and Rules
`
`Copyright Act of 1909, 35 Stat. 1075 (1909) (repealed 1978), §§ 1(e), 3, 11, 12 ................ et seq.
`
`Copyright Act of 1831 (repealed 1909) ....................................................................... 13, 14, 18
`
`FRCP 51 ................................................................................................................................ 43
`
`FRCP 61 ................................................................................................................................ 80
`
`Fed. Rule of Evidence 403 ..................................................................................................... 20
`
`FRAP 3 .................................................................................................................................. 76
`
`Central Dist. Of Cali. L.R. 51 ................................................................................. 43-45, 51-52
`
`
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`Introduction and Summary of Arguments
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`Plaintiff-Appellant1, Michael Skidmore, submits this Combined Reply Brief
`
`and Opening Brief Responding to Defendant’s Costs and Fees Appeal.
`
` Part I – is Plaintiff Reply Brief in support of his appeal of the jury verdict in
`favor of Defendants and against Plaintiff.
` Part
`is Plaintiff Response Brief opposing Defendant
`II –
`Warner/Chappell’s claim that the trial court erred in denying the
`defendant its attorney’s fees and costs.
`
`First, Plaintiff Skidmore’s primary argument on appeal is that a recording of
`
`a song, which contains and embodies the composition of the song, is admissible to
`
`prove the protected composition of a musical work under the 1909 Copyright Act.
`
`Plaintiff also argues that nothing in the 1909 Act limits the scope of protected
`
`expression in a musical copyright to sheet music alone. In the underlying case, the
`
`district court limited the substantial similarity comparison to between the
`
`incomplete deposit copy sheet music of “Taurus” and “Stairway to Heaven”—to
`
`the exclusion of all other evidence of the composition in the original, full “Taurus”
`
`album composition which was owned and possessed by Defendant James Patrick
`
`Page in his record collection.
`
`                                                            
`1 For purposes of clarity, because this Brief is both a Plaintiff-Appellant’s Reply Brief
`and a Plaintiff-Cross Appellee’s Response Brief to Defendant-Appellant’s Appeal,
`counsel has chosen to primarily identify the parties according to their respective
`position in the district court: “Plaintiff” or “Defendant.”
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`Plaintiff’s Reply demonstrates that Defendants’ argument claiming that the
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`district court was correct to limit the scope of protected expression to only the exact
`
`notes on the deposit copy lead sheet—to the exclusion of all other relevant and
`
`competent evidence such as the “Taurus” album composition and recording—is an
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`egregious error of substantive and evidentiary law that warrants reversal. There is
`
`no case in 108 years since 1909 Act became law which holds that the deposit copy
`
`lead sheet substantively governs the scope of protected scope of expression in a
`
`musical work (except the Central District of California Williams v. Bridgeport case
`
`in 2014, a ruling which is currently on appeal). Further, there is no case in history
`
`that has held that a recording of a song—which contains a copy of the song’s
`
`composition—cannot be used as evidence to establish the composition of a musical
`
`work under the 1909 Act.
`
`Plaintiff’s Reply further demonstrates that Defendant’s Response
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`is
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`fundamentally flawed in alleging that no harm resulted from the use of the
`
`incomplete deposit copy composition versus the complete album composition of
`
`“Taurus” that was kept in defendant Jimmy Page’s record collection. Plaintiff
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`demonstrated severe prejudice in the opening brief by identifying the key
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`compositional element shared by “Taurus” and “Stairway to Heaven” (guitar
`
`melody) which only partially appears in the “Taurus” deposit copy lead sheet; by
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`presenting recordings of all the compositions at issue to this circuit for comparison;
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`and by presenting Plaintiff’s expert opinions that the composition of the album
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`version of “Taurus” is “identical” to “Stairway to Heaven,” while the deposit copy
`
`is merely “substantially similar.”
`
`Lastly, contrary to Defendants’ silly, unsupported, and blatantly false
`
`argument that Plaintiff is attempting to sue over a “sound recording copyright,”
`
`Plaintiff has never made nor lodged a claim over any “sound recording copyright.”
`
`Second, Plaintiff correctly argues that the Court’s failure to give an inverse
`
`ratio rule instruction was reversible error—especially in light of the fact that Plaintiff
`
`proved direct access and presented abundant evidence at trial to support this factual
`
`position. It was highly prejudicial that the jury did not know that Plaintiff’s burden
`
`to prove substantial similarity should have been lowered by the amount of access he
`
`could prove. Defendants’ response claims that the court properly declined to give an
`
`inverse ratio instruction because it was necessary for Plaintiff to provide a “high
`
`degree” of access—something Plaintiff did. Plaintiff’s reply details how he proved a
`
`high degree of access with direct and circumstantial evidence, namely demonstrating
`
`that defendant James Patrick Page owns “Taurus” in his record collection.
`
`Furthermore, there is no legal requirement that there must be a “high degree” of
`
`access proven before an inverse ratio instruction is given; it should be given
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`whenever there is a triable issue of fact on access and substantial similarity.
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`Third, Plaintiff argues that the court failed to instruct the jury on the
`
`protectability of combinations of musical elements, and also misdefined originality
`
`in the jury instructions. Plaintiff argues that these errors seriously prejudiced his case
`
`because the Court erroneously instructed the jury that much of his experts’
`
`testimony on what was protectable in “Taurus”, and similar to “Stairway to
`
`Heaven,” could be disregarded. Defendants disingenuously respond that Plaintiff
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`waived the issues and that he suffered no harmful error. Plaintiff’s reply clearly
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`demonstrates that he preserved his claims of error by complying with L.R. 51 and the
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`Court’s on-the-record verbal instructions. Moreover, Plaintiff detailed the exact
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`expert testimony and musical elements that were undermined by the Court’s
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`deficient instructions.
`
`Plaintiff’s Response in Opposition to Defendant’s Cost and Fees Appeal
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`An award or denial of costs and fees is reviewed for an abuse of discretion.
`
`Here, Defendant Warner/Chappell has not identified any valid reasons why the
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`Court’s decision to deny costs and fees was an abuse of discretion or that any errors,
`
`if committed, constitute harmful error. The trial court denied Defendant’s motion
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`because this was a “hard-fought” case indisputably “motivated by a desire to
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`recognize Randy California’s musical contribution.” Supp. Excerpt 7.
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`First, Defendant erroneously and disingenuously claims that the trial court
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`failed to consider the purpose of the Copyright Act when denying its costs and fees
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`motion. This contradicts the fact that the Court analyzed every factor under the
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`Fogerty test (and also took into account additional considerations suggested by
`
`Defendants), which is designed to help courts evaluate whether litigation comported
`
`with the Copyright Act’s goals. Moreover, the trial court’s opinion explicitly stated
`
`that it was rendered “in light of the Copyright Act’s essential goals.”
`
`Second, the district court was correct in its denial of its award of costs and
`
`fees as the opinion was well reasoned, legally correct, and did not abuse its discretion.
`
`Defendant spuriously argues that Plaintiff’s lawsuit was frivolous and objectively
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`unreasonable on substantial similarity. The district court’s opinion, however,
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`explained that Plaintiff’s substantial similarity arguments were reasonable and that
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`this was the reason the court denied Defendants’ summary judgment motion and
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`allowed a jury trial in the first place. In addition, Defendants’ waived this issue at
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`every stage of the litigation. Defendants did not appeal the summary judgment ruling
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`which they now claim was incorrect, which held that there was a dispute of fact for
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`the jury on substantial similarity. That summary judgment ruling is law of the case
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`and cannot be disturbed. Moreover, Defendant never made or developed these
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`arguments in its motion for costs and fees; Defendant cannot make an argument to
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`this Circuit they did not develop below.
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`Third, Defendants wrongly claim that the Court somehow erred in weighing
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`the argument that Plaintiff’s counsel, not Plaintiff, had allegedly committed
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`litigation misconduct. What Defendant ignores is that the Court counted this factor
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`in favor of Defendant (which Plaintiff vehemently disagrees with), but still found
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`that fees were not appropriate. The Supreme Court and Ninth Circuit have explicitly
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`held that a district court may weigh a broad range of considerations when
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`determining whether assessing costs and fees are warranted and that there is no
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`precise formula to be followed. Here, the district court’s opinion methodically steps
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`through each of Defendant’s arguments and reasonably concludes that an award of
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`costs and fees does not satisfy the goals of the Copyright Act. There was no abuse of
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`discretion.
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`Request for Oral Argument
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`
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`Plaintiff-Appellant respectfully requests oral argument from this Honorable
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`Court and affirms that he believes that oral argument would prove helpful in
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`resolving these appeals and the issues raised herein because they are not only
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`complicated, but the resulting appellate court decision could affect many
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`copyrighted works under the 1909 Copyright Act and future litigants.
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`Plaintiff observes that oral argument is scheduled for Williams v. Bridgeport
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`Music (15-56880) on October 7, 2017. As the deposit copy issue is front-and-center,
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`and the main issue on appeal in both matters, and because a decision in the Williams
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`case will have a substantial effect on Plaintiff’s appeal and on copyright law moving
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`forward, Plaintiff respectfully requests that this Circuit withhold its decision on
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`Williams until oral argument has been heard on both cases.
`
`
`
`1.
`
`Part I - Reply Arguments
`
`The 1909 Copyright Act and the Case Law Do Not Limit the Scope of a
`Musical Copyright’s Composition to Written Sheet Music
`a.
`
`Plaintiff’s Opening Argument and Defendants’ Response
`
`Plaintiff’s opening brief advocated that the 1909 Copyright Act does not limit
`
`the scope of protected musical expression in a work to only written sheet music. Plt.
`
`Brief, at p.28-42. Plaintiff’s brief explained that a musical work under the 1909 Act
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`first obtained common law copyright protection the moment it was created and then
`
`became a federal copyright once published or registered. Id. at 31. Plaintiff also
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`provided key background showing that the 1909 Act was enacted in a push by
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`Congress to expand the protections of musical works beyond sheet music. Id. at p.30-
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`31.
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`The Supreme Court ruled in 1908 that the 1831 Copyright Act only allowed
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`an author to protect from copying a musical composition placed in sheet music, not
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`musical compositions placed on piano rolls. See White-Smith Music Publ’g Co. v.
`
`Apollo Co., 209 U.S. 1, 10-11 (1908) (holding that the only musical expression
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`protected under 1831 Copyright Act was sheet music and inviting Congress to
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`expand scope of protection). It should be noted that in 1831 there was no way, other
`
`than sheet music, to fix a musical composition in tangible form, nor was there any
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`real way to introduce evidence of a song’s musical composition other than sheet
`
`music.2
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`Thus, given the advancements in technology since 1831, in 1909 Congress
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`accepted the Supreme Court’s invitation and made it clear in section 1(e) of the 1909
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`Copyright Act that an author would be able to protect a musical composition fixed
`
`by mechanical reproduction (like piano roll or record), in addition to sheet music:
`
`[a musical composition may be fixed in] any system of notation
`or any form of record in which the thought of an author might be
`recorded and from which it may be read or reproduced.
`
`1909 Act, § 1(e).
`
`This meant the author/owner could now protect compositions contained on
`
`piano rolls and records from copying, as well as sheet music. Goldstein v. California,
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`412 US 546 (1973) (stating that “under § 1 (e), records and piano rolls were to be
`
`                                                            
`2 The piano roll was not invented until, at the earliest, 1863, and the
`phonograph/gramophone was not invented until 1877.
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`considered as ‘copies’ of the original composition they were capable of
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`reproducing”). Consequently, it necessarily follows that because piano rolls and
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`recordings are copies of musical compositions, they are evidence of a song’s
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`composition. See Plt. Brief, at p.37.
`
`All of this indicates that Congress intended, and the Courts understood, that
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`the scope of copyright protection in a musical composition was not limited to sheet
`
`music under the 1909 Act. Many, many songs, including “Taurus” and “Stairway
`
`to Heaven”, were composed under the 1909 Act independent of sheet music. Id.
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`As an archival and record keeping requirement for songs being copyrighted,
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`the 1909 Act required a sheet music copy be deposited with the copyright office. 1909
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`Copyright Act, at §11-12. The Supreme Court stated in 1939 that the deposit copy
`
`requirement under the 1909 Act is not connected to the “subject matter of protected
`
`works” and that “the requirement for deposit is not for the purpose of a permanent
`
`record of copyright publications and . . . such a record is not indispensable to the
`
`existence of the copyright.” See Washingtonian Publ’g Co. v. Pearson, 306 U.S. 30,
`
`39-41 (1939).
`
`No court has ever held that sections 11-12 of the 1909 Act substantively define
`
`the scope of protected expression in a musical work (except two Central District of
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`Cali. courts in 2014 (Williams) and 2016 (this case), and both decisions are being
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`Case: 16-56057, 08/16/2017, ID: 10548018, DktEntry: 44, Page 16 of 85
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`appealed). Moreover, no court has ever held or observed that the scope of common
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`law protection a copyright acquired upon creation could be somehow limited by
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`federal registration. See 1909 Act, §3.
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`The district court nevertheless erroneously held that under the 1909 Act only
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`the written deposit copy controlled the scope of protection of the composition in a
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`song—to the exclusion of all other evidence of the song’s composition. (Excerpt 73-
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`74, 1865, 1866-67).
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`Plaintiff demonstrated in the opening brief on pages 37-38 that, contrary to the
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`District Court’s decision, that there are several appellate cases from across the
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`nation, including the Ninth Circuit, where the Circuit courts have allowed the
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`protected composition of a song copyrighted under the 1909 Act to be established by
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`reference to recordings of the song which contain a copy of the underlying musical
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`composition. The defendants in those cases contended that only the written deposit
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`lead sheet should be used. See Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th
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`Cir. 2000); Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 276 (6th
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`Cir. 2009) (observing that deposit copy sheet music could be disregarded when the
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`song’s composition was “embedded in the sound recording” and the composition
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`was created long before the deposit copy lead sheet); see also Pearson, 306 U.S. at
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`39-41; National Conference of Bar Examiners v. Multistate Legal Studies, 692 F. 2d
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`Case: 16-56057, 08/16/2017, ID: 10548018, DktEntry: 44, Page 17 of 85
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`478 (7th Cir. 1982).
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`Defendants contend in response, in support of the trial court’s erroneous
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`decisions, that only the deposit copy sheet music is protectable composition under
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`the 1909 Act because sections 11-12 state that a “complete” copy of the song should
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`be submitted to the Copyright Office. Def. Brief, at p.43. Defendants also contend
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`that the cases presented by Plaintiff showing that sections 11-12 do not prohibit
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`recordings from being admissible to prove the composition of a song are
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`distinguishable, specifically Three Boys Music, because they allegedly are only about
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`jurisdiction. Def. Brief at p.45-46, 50. Defendants further claim that Plaintiff has not
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`demonstrated that the incomplete composition on the deposit copy differs from the
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`full album composition of “Taurus” owned by Jimmy Page. Id. at 36.
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`b.
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`Plaintiff’s Reply on Why Recordings of a Song May Be Used to
`Establish the Composition of Songs and Why The 1909 Copyright
`Act Does Not Limit the Protected Composition of a Song to Sheet
`Music
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`i.
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`Defendants’ Response Fails to Explain why Recordings of a
`Song Cannot be Used to Establish the Composition of the
`Song Under the 1909 Act
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`Plaintiff made the point on page 31 of his opening brief that "Under the 1909
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`Act, an unpublished work was protected by state common law copyright from the
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`moment of its creation until it was either published or until it received protection
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`under the federal copyright scheme." See ABKCO Music, Inc. v. LaVere, 217 F. 3d
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`Case: 16-56057, 08/16/2017, ID: 10548018, DktEntry: 44, Page 18 of 85
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`684 (9th Cir. 2000). The full “Taurus” composition was created and in a final
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`concrete form independent of sheet music in 1966 and was soon after included on
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`Spirit’s first album (which defendant Page owns). See Excerpt 2515; Excerpt 286;
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`Audio Exhibits 32-39; Plaintiff’s Brief at p.14. The deposit lead sheet of Taurus was
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`later created in 1967 when the song was registered with the Copyright Office.
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`Excerpt 2642.
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`There is no indication, anywhere, that the copyright protection an original
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`composition received under common law, such as a musical composition placed on
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`a record, was limited or circumscribed by conversion to federal copyright. In fact,
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`the 1909 Act specifically states that “the copyright provided by this Act shall protect
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`all the copyrightable component parts of the work copyrighted, and all matter therein
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`in which copyright is already subsisting, but without extending the duration or scope
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`such copyright.” See 1909 Act, §3. The very idea that common law copyright could
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`be shrunk by federal copyright is risible.
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`Defendants maintain in their response that section 1(e) only identified new
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`technical forms in which compositions could be reproduced and protected, not that
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`it expanded the scope of copyright protection. Def. Brief at, p.38-39. But this misses
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`the point. When the 1831 Act was enacted, which preceded the 1909 Act, there was
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`no way to fix or prove a musical composition—other than in or with sheet music.
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`Case: 16-56057, 08/16/2017, ID: 10548018, DktEntry: 44, Page 19 of 85
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`Before the 1909 Act, the