Case 2:22-cv-01982-JLS-MAA Document 27 Filed 08/11/22 Page 1 of 10 Page ID #:722
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CIVIL MINUTES – GENERAL
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`Case No. 2:22-cv-01982-JLS-MAA Date: August 11, 2022
`Title: Brian Wilson v Marilyn Wilson Rutherford
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`Present: Honorable JOSEPHINE L. STATON, UNITED STATES DISTRICT JUDGE
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` V.R. Vallery
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`Deputy Clerk
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`ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:
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`PROCEEDINGS: (IN CHAMBERS) ORDER GRANTING MOTION TO
`REMAND TO CALIFORNIA FAMILY COURT PURSUANT
`TO 28 U.S.C. § 1447(c) (Doc. 21)
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`Not Present
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`Before the Court is a Motion to Remand to California Family Court Pursuant to 28
`U.S.C. § 1447(c) filed by Respondent Marilyn Wilson-Rutherford. (Mot., Doc. 21.)
`Petitioner Brian Wilson opposed, and Respondent replied. (Opp., Docs. 25-1; Reply,
`Doc. 26.) Having considered the pleadings, the parties’ briefs, and for the reasons stated
`below, the Court GRANTS the Motion.
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`BACKGROUND
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`In 1979, a petition to dissolve the marriage between Marilyn and Brian1 was filed
`in the Family Law division of the Los Angeles Superior Court. (Ex. B, Doc. 22-2.) The
`Court permitted the parties to dissolve the marriage and issued a forty-two-page judgment
`that allocated the parties’ property holdings (the “1981 Judgment”). (Ex. C (1981
`Judgment), Doc. 22-3.) As relevant here, the 1981 Judgment provided, among other
`things, that the 170 musical compositions Brian had written during his marriage with
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`1 The Court intends no disrespect by using first names; the intent is to allow the reader to readily
`distinguish the parties.
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` CIVIL MINUTES – GENERAL 1
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`I.
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`Case 2:22-cv-01982-JLS-MAA Document 27 Filed 08/11/22 Page 2 of 10 Page ID #:723
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CIVIL MINUTES – GENERAL
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`Case No. 2:22-cv-01982-JLS-MAA Date: August 11, 2022
`Title: Brian Wilson v Marilyn Wilson Rutherford
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`Marilyn as a member of The Beach Boys constituted community property (hereinafter,
`the “Community Works”). (Id. ¶ 6.) Pursuant to the Los Angeles Superior Court’s
`ruling, Marilyn and Brian would each hold a 50% interest in the Community Works as
`tenants-in-common. (Id. ¶ 7.) While the 1981 Judgment provided that Brian had the sole
`right “to administer and exploit all rights” in the Community Works, he was required to
`“transmit” to Marilyn her share of any monetary receipts arising from that exploitation.
`(Id. ¶¶ 8-9.) The 1981 Judgment provided that the Los Angeles Superior Court retained
`jurisdiction to oversee disputes related to the Community Works and to fashion whatever
`appropriate relief necessary to effectuate the Judgment. (Id. ¶¶ 9; Ex. C at PDF Page 2,
`Doc. 22-3.)
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`As relevant to this dispute, Brian purportedly transferred the rights to the music he
`wrote, including the Community Works at issue here, to Sea of Tunes, Inc. (Declaration
`of Eric Custer (“Custer Decl.”) ¶ 3, Doc. 24-3.) In return, Sea of Tunes “promised to pay
`Brian songwriter royalties” while it “retained the other 50% of revenues as the copyright
`owner.” (Id.) Later on, Sea of Tunes’ rights in those works were transferred to Universal
`Music Publishing. (Id.) Pursuant to the 1981 Judgment, Marilyn allegedly acquired a
`50% community interest in the contractual revenues generated. (See, e.g., Opp. at 2, Doc.
`24.)
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`Beginning in 2011, Brian began terminating the copyright grants in the
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`Community Works he had issued to entities such as Universal Music Publishing
`(hereinafter referred to as the “Reverted Rights”). (Custer Decl. ¶ 5, Doc. 24-3.) Brian
`terminated the grants pursuant to 17 U.S.C. 304(c) of the Copyright Act, which permits
`an author of a copyrighted work to terminate a grant of a copyright “at any time during a
`period of five years beginning at the end of fifty-six years from the date copyright was
`originally secured, or beginning on January 1, 1978, whichever is later.” 17 U.S.C.
`§ 304(c)(3); Mot. at 12, Doc. 21; Opp. at 3, Doc. 24. In December 2021, Brian sold the
`Reverted Rights along with other surviving rights in the Community Works (the “Extant
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`Case 2:22-cv-01982-JLS-MAA Document 27 Filed 08/11/22 Page 3 of 10 Page ID #:724
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CIVIL MINUTES – GENERAL
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`Case No. 2:22-cv-01982-JLS-MAA Date: August 11, 2022
`Title: Brian Wilson v Marilyn Wilson Rutherford
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`Rights”) to a third-party. (Custer Decl. ¶ 6, Doc. 24-3.) Marilyn contends that Brian
`purported to pay “her 50% tenant-in-common interest for his sale of the Extant Rights”
`but “paid her nothing of the proceeds allocated to the Reverted Rights.” (Mot. at 13,
`Doc. 21.)
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`On February 18, 2022, Marilyn filed a Request for Order (“RFO”) in the Family
`Law division of the Los Angeles Superior Court against Brian. (Ex. 1 (RFO), Doc. 1-1.)
`In the RFO, Marilyn sought an accounting and payment of all funds that Brian owed her
`“as a result of her interest” in the Community Works awarded to her under the 1981
`Judgment. (Id. at PDF Page 6.) Marilyn requested that the Los Angeles Superior Court
`award her “a minimum of $6,704,879.64 for the sale of 50% of the community property
`reversion rights, or such other amount as may be determined by the Court, and an
`additional amount for producers’ royalties.” (Id.) As to accounting, the RFO provided
`that the accounting, at a minimum, should include: (1) “a computation of Marilyn’s
`copyright reversion rights”; (2) “a complete computation of Marilyn’s rights to 50% of
`Brian’s producer royalties”; and (3) “a complete computation of Marilyn’s rights to 50%
`of all sums generated from synchronization licenses, mechanical royalties, public
`performance royalties, . . . and royalties based on Brian’s performance of the songs.”
`(Id.) The RFO also requested that the Superior Court find any omitted assets from the
`1981 Judgment be declared an omitted asset under California Family Code Section 2556.
`(Id.) Lastly, the RFO requested that attorneys’ fees and costs be awarded in connection
`with her RFO. (See, e.g., id. at PDF Page 15.)
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`On March 25, 2022, Brian removed the action to this Court based on Marilyn’s
`request that sought an accounting and computation of her copyright reversion rights.
`(Notice of Removal, Doc. 1.) In the Notice of Removal, Brian notes that he was served
`with the RFO wherein Marilyn claims “she is entitled to half of the proceeds from
`Brian’s December 2021 disposition of his copyright termination interests in certain
`musical compositions Brian composed or co-composed before 1970.” (Id. at 2.) Brian
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`Case 2:22-cv-01982-JLS-MAA Document 27 Filed 08/11/22 Page 4 of 10 Page ID #:725
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CIVIL MINUTES – GENERAL
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`Case No. 2:22-cv-01982-JLS-MAA Date: August 11, 2022
`Title: Brian Wilson v Marilyn Wilson Rutherford
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`asserts that federal-question jurisdiction exists because the “copyright termination
`interests were created by 17 U.S.C. § 304, and § 304 must be applied to determine
`whether Marilyn has any interest in them.” (Id.) As support for his argument, Brian
`argues that although the parties were married from 1964 to 1978, the Reverted Rights he
`sold in the Community Works cannot be community property because pursuant to
`Section 304(c) the termination rights did not first vest until 2011. (Id. at 10.) Brian also
`argues, among other things, that the Reverted Rights are not community property because
`“Marilyn could never own termination rights . . . under 17 U.S.C. § 304(c), because she is
`not in the class of persons to whom the Copyright Act gives standing to own or exercise
`such rights.” (Id.)
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`Marilyn now seeks to remand this case back to the Family Law division of the Los
`Angeles Superior Court. (Mot., Doc. 21.) Marilyn argues that remand is proper here
`because she “makes no claim grounded in the Copyright Right—she does not allege any
`infringement, copying or similar claims protected by the Copyright Act.” (Id. at 9.) She
`also argues that “[s]he does not even dispute that Brian has the right to control the use of
`the copyrights in his musical compositions.” (Id.) Marilyn notes that she simply argues
`that “under the 1981 Judgment and California Family Code . . . she has a 50%
`community property interest in the copyrights and any referred thereof, and Brian must
`account to her for those interests.” (Id.)
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`LEGAL STANDARD
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`“A defendant may remove an action originally filed in state court only if the case
`originally could have been filed in federal court.” In re NOS Commc’ns, MDL No. 1357,
`495 F.3d 1052, 1057 (9th Cir. 2007) (citing 28 U.S.C. § 1441(a)). There is a “strong
`presumption” against removal jurisdiction, and the defendant seeking removal bears the
`burden of establishing that removal is proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th
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`II.
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`Case 2:22-cv-01982-JLS-MAA Document 27 Filed 08/11/22 Page 5 of 10 Page ID #:726
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CIVIL MINUTES – GENERAL
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`Case No. 2:22-cv-01982-JLS-MAA Date: August 11, 2022
`Title: Brian Wilson v Marilyn Wilson Rutherford
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`Cir. 1992). “[R]emoval statutes are strictly construed against removal.” Luther v.
`Countrywide Home Loans Serv., LP, 533 F.3d 1031, 1034 (9th Cir. 2008).
`
`For removal to be proper based on federal question jurisdiction, a federal question
`must appear on the face of the complaint. See Chesler/Perlmutter Prods. v. Fireworks
`Entm’t, Inc., 177 F. Supp. 2d 1050, 1055 (C.D. Cal. 2001). “The plaintiff is the master of
`the complaint,” and ordinarily, a plaintiff “may avoid federal jurisdiction by exclusive
`reliance on state law. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).
`Moreover, a defendant “cannot, merely by injecting a federal question into an action that
`asserts what is plainly a state-law claim, transform the action into one arising under
`federal law.” Id. at 399.
`
`The rare exception to the plaintiff’s mastery of the complaint rule is the complete
`preemption doctrine. See Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102,
`1107 (9th Cir. 2000). Some federal statutes have such a strong preemptive force that they
`“completely preempt” an area of state law, and even state law claims in such areas are
`treated as if they are federal claims, and therefore, they may be removed to federal court.
`See id. “Because complete preemption often applies to complaints drawn to evade
`federal jurisdiction, a federal court may look beyond the face of the complaint to
`determine whether the claims alleged as state law causes of action in fact are necessarily
`federal claims.” Parrino v. FHP, Inc., 146 F.3d 699, 704 (9th Cir. 1998), overruled by
`statute on other grounds.
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`III. DISCUSSION
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`There is no real dispute that the RFO does not, on its face, allege a claim arising
`under the Copyright Act. The RFO requests an accounting and payment of funds owed to
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`Case 2:22-cv-01982-JLS-MAA Document 27 Filed 08/11/22 Page 6 of 10 Page ID #:727
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CIVIL MINUTES – GENERAL
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`Case No. 2:22-cv-01982-JLS-MAA Date: August 11, 2022
`Title: Brian Wilson v Marilyn Wilson Rutherford
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`Marilyn pursuant to the 1981 Judgment, or in the alternative, an order finding that certain
`assets be considered an omitted asset under Section 2556 of California’s Family Code.
`(See Ex. 1 (RFO) at PDF Page 6, Doc. 1-1.) The mere fact that the RFO makes mentions
`“copyright” is “insufficient to support federal jurisdiction under the well-pleaded
`complaint rule.” Dennis v. Hart, 724 F.3d 1249, 1252 (9th Cir. 2013); ARCO Env’t
`Remediation, L.L.C. v. Dep’t of Health & Env’t Quality of Montana, 213 F.3d 1108, 1113
`(9th Cir. 2000) (“repeated references” to federal law does not “create[] the cause of
`action under which ARCO sues”); Rains v. Criterion Sys., Inc., 80 F.3d 339, 344 (9th Cir.
`1996) (“The direct and indirect references to Title VII in those two state law causes of
`action do not make those claims into federal causes of action.”). Accordingly, the
`primary issue for the Court to decide is whether the federal Copyright Act completely
`preempts Marilyn’s claims.
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`“The Copyright Act specifically preempts ‘all legal or equitable rights that are
`equivalent to any of the exclusive rights within the general scope of copyright.’” Altera
`Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1089 (9th Cir. 2005) (quoting 17 U.S.C.
`§ 301(a)). “The rights protected under the Copyright Act include the rights of
`reproduction, preparation of derivative works, distribution, and display.” Id. (citing 17
`U.S.C. § 106). The Ninth Circuit has applied a two-part test to determine whether a state
`law claim is preempted by the Copyright Act. Laws v. Sony Music Entm’t, 448 F.3d
`1134, 1137-38 (9th Cir. 2006). Courts must first “determine whether the ‘subject matter’
`of the state law claim falls within the subject matter of copyright as described in 17
`U.S.C. § 102 and 103.” Id. at 1137. Second, “assuming that it does,” courts “must
`determine whether the rights asserted under state law are equivalent to the rights
`contained in 17 U.S.C. § 106, which articulates the exclusive rights of copyright holders.”
`Id. at 1137-38 (emphasis added).
`
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`Marilyn focuses her Motion primarily on the second prong. To satisfy the
`equivalent rights part of the preemption test, the asserted state-law cause of action must
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`Case 2:22-cv-01982-JLS-MAA Document 27 Filed 08/11/22 Page 7 of 10 Page ID #:728
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CIVIL MINUTES – GENERAL
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`Case No. 2:22-cv-01982-JLS-MAA Date: August 11, 2022
`Title: Brian Wilson v Marilyn Wilson Rutherford
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`seek to protect a right equivalent to an exclusive right within the scope of the Copyright
`Act, namely the exclusive rights of reproduction, preparation of derivative works,
`distribution, and display. Id. (citing Del Madera Props. v. Rhodes & Gardner, 820 F.2d
`973, 977 (9th Cir. 1987), overruled on other grounds). Therefore, “[t]o survive
`preemption, the state cause of action must protect rights which are qualitatively different
`from the copyright rights.” (Id. (internal quotation marks omitted)). In other words, the
`“state claim must have an extra element which changes the nature of the action.” Id.
`(internal quotation marks omitted). Marilyn argues that the rights sought to be protected
`in the RFO are qualitatively different from the exclusive rights provided by the Copyright
`Act. (See, e.g., Mot. at 18-19, Doc. 21.) For example, Marilyn argues that some of the
`extra elements in her community property claim “include proving that the unvested
`Reverted Rights were acquired during the marriage, that they were acquired while
`domiciled in California, and that dividing them equally would further the equal
`distribution of community assets.” (Mot. at 18, Doc. 21.) Brian offered no opposition to
`Marilyn’s argument that the above extra elements are present in her community property
`claim, and for that reason, concedes the validity of Marilyn’s argument. (See Opp. at 14-
`15, Doc. 24); Kakalia v. Hawaii, 2019 WL 2902509, at *1 (C.D. Cal. Apr. 25, 2019)
`(Staton, J.), aff’d, 808 F. App’x 582 (9th Cir. 2020).
`
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`Instead, Brian attempts to side-step the extra element analysis by arguing that it is
`irrelevant as Marilyn’s claim requires application of Section 304(c) of the Copyright Act
`(Opp. at 14-15, Doc. 24); the Court disagrees. Section 304(c) permits an author of a
`copyrighted work to terminate a grant of a copyright “at any time during a period of five
`years beginning at the end of fifty-six years from the date copyright was originally
`secured, or beginning on January 1, 1978, whichever is later.” 17 U.S.C. § 304(c)(3).
`However, in the RFO, Marilyn does not assert that she has a right to terminate any grants
`of copyrights in the Community Works; nor does she dispute that Brian had the right to
`terminate the grants. (Ex. 1 (RFO), Doc. 1-1.) Instead, Marilyn merely asserts that she is
`entitled to certain revenues arising from Brian’s exploitation of the Community Works,
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`Case 2:22-cv-01982-JLS-MAA Document 27 Filed 08/11/22 Page 8 of 10 Page ID #:729
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CIVIL MINUTES – GENERAL
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`Case No. 2:22-cv-01982-JLS-MAA Date: August 11, 2022
`Title: Brian Wilson v Marilyn Wilson Rutherford
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`as provided under the 1981 Judgment (or more broadly under California’s family law).
`(Ex. 1 (RFO), Doc. 1.) Whether Marilyn has a right to certain economic benefits arising
`from Brian’s decision to sell the Reverted Rights under the 1981 Judgment and
`California’s Family Code is simply not an issue addressed by Section 304(c). Indeed,
`courts in the Ninth Circuit have routinely held that a court lacks federal-question
`jurisdiction in cases involving a claimed right to economic benefits associated with a
`work that is divorced from the exclusive rights protected by the Copyright Act. See, e.g.,
`Segundo Suenos, LLC v. Jones, 494 F. App’x 732, 734 (9th Cir. 2012) (finding court
`lacked subject matter jurisdiction in case concerning a copyright work where if the action
`were “recast” it would be “really an action to recover royalties under a contract”); Yount
`v. Acuff Rose-Opryland, 103 F.3d 830, 835 (9th Cir. 1996) (noting that “our prior
`decisions and those of other courts establish the principle that construction of the
`assignment of royalty interests is a question of state law” and that a royalty interest is
`separate from the copyright interest as it is just “an interest in receiving money when the
`owner of the copyright exploits”); Holiday Legacy IP, LLC v. Cleveland, 2014 WL
`12573372, at *3 (C.D. Cal. Aug. 13, 2014) (“Plaintiffs do not allege that the royalties
`arise from unlawful reproduction or distribution. Because Plaintiffs do not seek to
`vindicate any of the rights enumerated under § 106, their conversion claim is not
`preempted by the Copyright Act.”).2
`Brian next asserts that the claim asserted in the RFO arises under federal law
`because “the Copyright Act must be applied to determine ownership.” (See, e.g., Opp. at
`8, Doc. 24.) As an initial matter, the Court has serious doubts as to whether the claim at
`issue here requires that the Copyright Act be applied. Aside from Marilyn’s arguments
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`2 See also Rodrigue v. Rodrigue, 218 F.3d 432, 440 (5th Cir. 2000) (“Notably absent
`from the Copyright Act’s exclusive sub-bundle of five rights is the right to enjoy the earnings
`and profits of the copyright,” and “[w]e discern nothing in the Act’s plain wording or legislative
`history to indicate that Congress-fully aware of the existence of community property laws in a
`number of states—had any intention of preempting that entire body non-federal law as well.”).
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`Case 2:22-cv-01982-JLS-MAA Document 27 Filed 08/11/22 Page 9 of 10 Page ID #:730
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CIVIL MINUTES – GENERAL
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`Case No. 2:22-cv-01982-JLS-MAA Date: August 11, 2022
`Title: Brian Wilson v Marilyn Wilson Rutherford
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`pursuant to the 1981 Judgment, Marilyn also argues that irrespective of who owns the
`Reverted Rights, California’s family law can be applied to determine how to equitably
`divide the cash proceeds from Brian’s sale of the Reverted Rights. (See, e.g., Reply at 9-
`10 (citing, among other things, Cal. Fam. Code § 2550 and In re Marriage of Oliverez, 33
`Cal. App. 5th 298, 310, 313 (2019), Doc. 26.) For example, Marilyn notes, that pursuant
`to California’s community property law, “the Family Court could determine that because
`Brian performed the services necessary to create the musical compositions during
`marriage, the proceeds from the sale of the Reverted Rights are community assets, or it
`could decide to grant the funds from the Reverted Rights to Brian but grant a greater
`share of other funds to Marilyn in order to equalize the sharing of martial property.” (Id.
`at 10.) Brian has not shown that Section 304(c), the provision upon which he relies,
`forecloses such arguments. Indeed, Section 304(c) provides that “[t]ermination of a grant
`under this subsection affects only those rights covered by the grant that arise under this
`title, and in no way affects rights arising under” state law. 17 U.S.C § 304(c)(6)(E).3
`
`Moreover, Ninth Circuit jurisprudence teaches that “[a] claim seeking a mere
`naked declaration of ownership or contractual rights does not give rise to subject matter
`jurisdiction, even though the claim might incidentally involve a copyright or the
`Copyright Act.” Baker v. Baker, 860 F. App’x 502, 504 (9th Cir. 2021) (internal
`quotation marks omitted); see also Vestron, Inc. v. Home Box Off., Inc., 839 F.2d 1380,
`1381 (9th Cir. 1988) (“[W]here a suit is for a naked declaration of copyright ownership
`without a bona fide infringement claim, federal courts decline jurisdiction”). This is
`because the Copyright Act does not “specify a cause of action to fix the locus of
`ownership,” and if the claim does not seek to vindicate an express remedy under the
`
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`3 Brian’s attempt to argue that he has a defense to Marilyn’s state-law claim under the
`Copyright Act (see, e.g., Opp. at 11, Doc. 24) does not transform this case into one arising under
`federal law. Segundo Suenos, LLC, 494 F. App’x 732, 735 (9th Cir. 2012) (“The absence of
`federal question jurisdiction is not cured by a defense arising from copyright law.”).
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`Case 2:22-cv-01982-JLS-MAA Document 27 Filed 08/11/22 Page 10 of 10 Page ID #:731
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CIVIL MINUTES – GENERAL
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`Case No. 2:22-cv-01982-JLS-MAA Date: August 11, 2022
`Title: Brian Wilson v Marilyn Wilson Rutherford
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`Copyright Act (e.g., for infringement), the claim really seeks to vindicate a right created
`under state law. See Scholastic Ent., Inc. v. Fox Ent. Grp., Inc., 336 F.3d 982, 986 (9th
`Cir. 2003) (internal quotation marks omitted); Vestron, Inc., 839 F.2d at 1382. And here,
`Brian’s Opposition and the RFO illustrates that the remedies Marilyn seeks are those not
`within the exclusive scope of the Copyright Act.
`
`Accordingly, the Court finds that Brian has failed to carry his burden in
`establishing federal subject-matter jurisdiction. Hunter v. Philip Morris USA, 582 F.3d
`1039, 1042 (9th Cir. 2009) (noting that the party seeking removal “‘always has the
`burden of establishing that removal is proper, and that the court resolves all ambiguity in
`favor of remand to state court’”). Given the ruling here, the Court need not consider the
`additional arguments raised in the Motion.
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`IV. CONCLUSION
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`For the above reasons, Marilyn’s Motion is GRANTED. The case is hereby
`remanded to the Superior Court of California (Los Angeles), Case No. D 983 605.
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`Initials of Deputy Clerk: vrv
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