Brian Clover v. Abel Tesfaye

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 8, 2021
• Docket: 20-55861
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 8 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIAN CLOVER; SCOTT MCCULLOCH, No. 20-55861

Plaintiffs-Appellants, D.C. No. 2:19-cv-02507-PA-MRW v.

ABEL M. TESFAYE, PKA The Weeknd; et MEMORANDUM* al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted October 6, 2021** Pasadena, California

Before: GRABER, CHRISTEN, and OWENS, Circuit Judges.

Brian Clover and Scott McCulloch (“Plaintiffs”) appeal from summary

judgment entered in favor of Abel Tesfaye, also known as “The Weeknd,” and his

collaborators (collectively, the “Defendants”), in this copyright infringement claim

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). alleging Defendants’ song A Lonely Night illicitly copied Plaintiffs’ song I Need to

Love. Plaintiffs also appeal from various pretrial rulings. Because the parties are

familiar with the facts, we do not recount them here. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

1. Copyright Infringement

“We review a grant of summary judgment de novo.” Loomis v. Cornish,

836 F.3d 991, 994 (9th Cir. 2016). To prevail on a copyright infringement claim,

Plaintiffs must show (1) that they own a valid copyright, and (2) that Defendants

copied their work, and such copying was actionable. Skidmore v. Led Zeppelin,

952 F.3d 1051, 1064 (9th Cir. 2020) (en banc). Here, Plaintiffs fail to raise a

triable dispute as to the second element.

Because Plaintiffs lack direct evidence of copying, they must demonstrate

copying circumstantially by showing that (1) “the defendant[s] had access to the

plaintiff[s’] work,” and (2) “the two works share similarities probative of

copying”—in other words, a “striking similarity.” Id. (emphases added) (citation

omitted). Plaintiffs fail to establish a genuine dispute as to either. For access, their

allegation that Defendants may have heard I Need to Love through a large song

catalog amounts to no more than “bare corporate receipt,” Loomis, 836 F.3d at 995

(citation omitted), and their admission that I Need to Love was never released to

the public or generated any royalties indicates there is no “reasonable possibility of

2 access . . . [through] ‘wide[spread] disseminat[ion],’” id. at 997 (citation omitted).

For striking similarity, Plaintiffs fail to show the two works are so similar that their

resemblance can be explained only by “copying rather than . . . coincidence,

independent creation, or prior common source.” Skidmore, 952 F.3d at 1064

(ellipsis in original) (citation omitted). Indeed, Plaintiffs fail to timely or

adequately address evidence of a prior common source: Blondie’s 1979 song Heart

of Glass. Thus, Plaintiffs fail to raise a genuine dispute as to copying.

2. Pretrial Rulings

Plaintiffs also contend that the district court erred when it denied their

motions for a stay of discovery, extension of discovery deadlines, and continuance

pursuant to Fed. R. Civ. P. 56(d), and when it granted Defendants’ objection to

Plaintiffs’ untimely expert rebuttal report. We review the district court’s rulings

for an abuse of discretion, which “is [a] deferential [standard], and properly so,

since the district court needs the authority to manage the cases before it efficiently

and effectively.” Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir.

2005).

The district court permissibly exercised its discretion when it partially

denied Plaintiffs’ motions for a stay, extension, and continuance under Federal

Rule of Civil Procedure 56(d), as Plaintiffs were given ample time to retain new

counsel, conduct discovery, file dispositive motions, oppose summary judgment,

3 and submit a timely rebuttal report. The district court also did not abuse its

discretion when it denied Plaintiffs’ second Rule 56(d) motion for a continuance to

conduct additional discovery, because Plaintiffs did not “diligently pursue[]” their

previous discovery opportunities, Big Lagoon Rancheria v. California, 789 F.3d

947, 955 (9th Cir. 2015) (en banc) (citation omitted), and because their request

failed to enumerate the “specific facts” they hoped to gain from further discovery,

Stevens v. Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018) (emphasis and

citation omitted). Finally, the district court did not abuse its discretion in granting

Defendants’ objection to Plaintiffs’ untimely expert rebuttal report because

Plaintiffs never requested additional time to augment their expert evidence, even

though they requested other extensions.

AFFIRMED.