Professional Documents
Culture Documents
Defendants.
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LGO. Defendants maintain that the deposit copy (not the sound
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Case 1:17-cv-05221-LLS Document 93 Filed 01/03/19 Page 2 of 20
BACKGROUND
Let's Get It On
who co-wrote LGO with Marvin Gaye in 1973. 1 Townsend created the
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music and lyrics for LGO while he was sitting at the piano . The
o f LGO.
Sheet music for LGO (the "deposit copy " ) was deposited in
No . 68) .
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Ltrs GIT ff ON
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The parties agree that the LGO deposit copy includes the
elements . Add ' l Rule 56.1 Stmt. (0kt . No. 79) <j[<j[ 36 - 37.
progressions on the deposit copy imply the bass - line and guitar,
as a performance element .
LGO has become one of the most famous songs in R&B and soul
music history .
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Case 1:17-cv-05221-LLS Document 93 Filed 01/03/19 Page 6 of 20
Association of America.
STANDARD
fact issue for jury resolution." Warner Bros . Inc. v . Am. Broad.
Cos., Inc., 720 F.2d 231, 239-40 (2d Cir . 1983) (citations
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into plain English , but they may not opine that a defendant ' s
Laureyssens v . Idea Grp ., Inc ., 964 F . 2d 131 , 140 (2d Cir . 1992)
appropriation " ).
DISCUSSION
Led Zeppelin, 905 F . 3d 1116 (9th Cir. Sept . 28, 2018) . There ,
the Ninth Circuit discussed the point fully and thoughtfully, and
Act , " the deposit copy of ' Taurus ' [the plaintiff ' s work], rather
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Case 1:17-cv-05221-LLS Document 93 Filed 01/03/19 Page 8 of 20
omitted) .
motion is the same under either view. Hearing the percussion and
Law
original to the a u thor ." Fei s t Publ ' ns , Inc . v . Rural Tel . Serv .
copyrightable :
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Bender & Co. v. W. Pub. Co., 158 F.3d 674, 681 (2d Cir. 1998).
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413-14 (S.D . N.Y. 2004) (" It would be improper for this Court , on
Phrase ." ) .
Application
determined at trial .
chord progression used in LGO was commonplace prior to LGO . " Id.
defendants ' expert opined that " the I - iii - IV-V chord progression
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Case 1:17-cv-05221-LLS Document 93 Filed 01/03/19 Page 11 of 20
least thirteen songs that predate LGO that use the same chord
progression used in LGO," (id. 'TI 53), although they note, "Out of
method books," (id. 'TI 55) , al though they note that "the two
pre-LGO song ("Georgy Girl") with the same harmony and harmonic
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Substantia1 Simi1arity
Law
must establish that "(1) the defendant has actually copied the
Architecture LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir.
The Second Circuit has also set forth the test that courts should
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Id . at 66 .
Application
LGO . Even applying the " more discerning " analysis for works that
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which chords change (not the rate at which chords are played) ,
I I ...
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Swirsky v . Carey, 376 F.3d 841, 848 (9th Cir. 2004) ("no approach
parts in TOL may be the elements that are most similar to the
the drums both include eight-note high hats, 3 snare drum on beats
in the deposit copy because the chord names written above certain
lyrics indicate the bass notes and rhythm. But those chord names
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Key , Tempo, and Meter . The key , tempo , meter , and genre of
minute , and is in 4/4 meter ("common time " ) . TOL is in the key
that that the total concept and feel of the two works is
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Ex . 1 .
are not present in the LGO deposit copy , the question whether TOL
summarily .
and thus entitled to 30% of the royalties from his music catalog,
she was Townsend's biological daughter but did not disclose that
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State, including California, "shall have the same full faith and
taken." Thus, this Court must give the same effect to the
4 Although the petition to administer Townsend ' s estate does not expressly
mention Kathryn's adoption, it states:
Pet . to Adm ' r Estate (0kt . No. 67, Ex. 15 ~ 17) . It is almost inconceivable
that Clef, Kathryn ' s half-brother, and Cherrigale, Townsend's former wife,
were not aware of Kathryn's adoption.
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Superior Court was aware of the point: it did not mention it, nor
express any view on it. Neither side's brief discusses what the
CONCLUSION
denied .
So ordered .
LOUIS L . STANTON
U.S.D.J .
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