Tyler Armes v. Austin Richard Post

• Court: District Court, C.D. California
• Decided: April 18, 2022
• Docket: 2:20-cv-03212
• Status: Unknown

Opinion

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O 1

2 3 4 5 6 7

8 United States District Court 9 Central District of California

11 TYLER ARMES, Case № 2:20-cv-03212-ODW (PJWx)

12 Plaintiff, ORDER GRANTING IN PART AND

13 v. DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY 14 AUSTIN RICHARD POST p/k/a POST JUDGMENT [82] MALONE, et al., 15

Defendants. 16

17 I. INTRODUCTION 18 Plaintiff Tyler Armes brought suit against Defendants Austin Richard Post, 19 publicly known as Post Malone (“Post”); Adam King Feeney, publicly known as 20 Frank Dukes (“Dukes); and Universal Music Group, Inc., seeking a declaration and an 21 accounting regarding his rights in the hit song Circles, which Armes alleges he co- 22 wrote with Post. Post countersued in the Southern District of New York for a 23 declaration that Armes has no rights in Circles; that case has been consolidated with 24 this one. Post and Dukes (hereinafter, “Defendants”) now move for summary 25 judgment in their favor on both Armes’ First Amended Complaint and Post Malone’s 26 Consolidated Complaint. (Mot. Summ. J. (“Motion” or “Mot.”), ECF No. 82.) 27 On April 11, 2022, the Court heard oral argument from counsel for each side. 28 Having carefully considered the arguments raised at the hearing, along with all the Case 2:20-cv-03212-ODW-SK Document 90 Filed 04/18/22 Page 2 of 28 Page ID #:1477

1 papers filed in connection with the Motion, the Court GRANTS the Motion IN 2 PART and DENIES the Motion IN PART, for the reasons that follow. 3 II. KEY ALLEGATIONS 4 Plaintiff Armes is a professional musician whose credits include his work as 5 bandleader, writer, and producer for the multi-platinum band Down With Webster. 6 (First Am. Compl. (“FAC”), ECF No. 24 ¶ 2.) Defendant Post is a well-known 7 rapper, singer, and songwriter, and Defendant Dukes is one of Post’s musical 8 collaborators. (See FAC ¶¶ 1, 3, 15–16.) 9 Armes’s key allegations are as follows. 10 On a number of occasions, Post’s manager, Dre London (“Dre”), encouraged 11 Armes to collaborate with Post. (Id. ¶ 12.) In early August 2018, at Dre’s invitation, 12 Armes attended a private concert in Toronto, Canada where Post was performing. (Id. 13 ¶ 13.) The following evening, Dre invited Armes to go to Dukes’s Toronto studio 14 with Post and Dukes to write music together. (Id. ¶¶ 13–14.) On August 8, 2018, 15 from 2:00 a.m. to 9:00 a.m., Armes, Post, and Dukes worked together in the studio, 16 with Armes on bass and keyboard, Post on drums, and Dukes on guitar and keyboards 17 (the “April 8 Session”). (Id. ¶¶ 15–16.) Working from a keyboard and a bass, Armes 18 co-wrote the chords and the distinctive bassline that would ultimately become part of 19 Circles. (FAC ¶ 16.) Armes also co-wrote, with Post, the lead guitar line that would 20 ultimately be heard in the introduction to the commercial release of Circles. (Id.) 21 By the end of the April 8 Session, the three had reduced their collaboration to a 22 recording (the “Session File”) on Dukes’s laptop, which contained a bassline, a 23 looping chord progression, drums, some lead guitar lines, and several fragments of 24 vocal lines, both with and without lyrics. (See id. ¶ 18; Decl. Tyler Armes (“Armes 25 Decl.”) Ex. 1 (“iPhone Recording”), ECF No. 84-2.) At the end of the April 8 26 Session, around 9:00 a.m., the three listened to a playback of the Session File, and 27 Post and Dukes expressed enthusiasm about the results. (FAC ¶ 18; iPhone Recording 28 at timestamp 7:34.) About a year later, after contributions and modifications from

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1 Post’s lyricists and other collaborators, the musical material in the Session File 2 debuted as Circles, Post’s fourth number one song on the US Billboard Hot 100. (See 3 FAC ¶ 21; Armes Decl. ¶ 19, ECF No. 84-2.) With the exception of the lyrics and 4 some of the vocal melodic content, the musical content of Circles is identical to the 5 musical content in the Session File. (Armes Decl. ¶ 19; compare iPhone Recording 6 with Armes Decl. Ex. 2 (“Circles Commercial Release”), ECF No. 84-2.) Along with 7 Post and Dukes, the credited writers of Circles are non-parties Billy Walsh, Louis 8 Bell, and Kaan Gunesberk. (FAC ¶ 24.) 9 When Post first premiered Circles on social media, Armes immediately reached 10 out to Dre to ask him to speak with Post about giving Armes co-writer credit and 11 publishing royalties for his role in creating Circles. (Id. ¶ 22.) Dre responded by 12 texting, “Just showed Posty the message [¶] He said he remembers [¶] U played a tune 13 on the bass then he played more of it after.” (Id. ¶ 23.) Later, Post offered a five 14 percent share of the publishing royalties for Circles, and Armes tried to negotiate for a 15 larger percentage, without success. (Id. ¶ 25.) To date, Defendants have refused to 16 credit Armes as a co-writer of Circles. (Id. ¶ 23.) 17 Defendants, for their part, do not dispute the basic facts underpinning these 18 allegations. (See generally SUF, SGD.) They do not dispute that Armes is a 19 musician; that Dre introduced Armes to Post; that Armes, Post, and Dukes spent a 20 night in Post’s studio in August 2018; that the results of that studio session led to the 21 release of Circles about a year later; and Armes is not credited as a co-writer of 22 Circles. What they dispute is the extent to which Armes participated in the August 8 23 Session as a musical collaborator. 24 III. PROCEDURAL BACKGROUND 25 The morning of April 7, 2020, Armes filed a Complaint in the Central District 26 of California against Post, Dukes, and Universal Music Group, asserting four causes 27 of action for: (1) Declaratory Judgment that Armes is: (a) a joint author of the Circles 28 musical composition (“Circles Composition”), (b) a joint author of the Circles sound

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1 recording (“Circles Recording”), (c) entitled to co-writer and co-producer credits for 2 both copyrights, and (d) entitled to prospective and retroactive royalties with respect 3 to his interests in those copyrights, in a percentage to be proven at trial; 4 (2) Accounting of all revenues derived from Defendants’ exploitation of the Circles 5 Composition and Circles Recording; and (3) Constructive Trust over the proceeds 6 from the exploitation of the Circles Composition and Circles Recording pending the 7 final disposition of this action. (See Compl., ECF No. 1.) 8 Later that same day, Post commenced a parallel action in the Southern District 9 of New York, Post v. Armes, No. 1:20-CV-02877-ALC (S.D.N.Y.), seeking 10 declaratory judgment that Armes is a co-author of neither the Circles Composition nor 11 the Circles Recording. 12 On May 13, 2020, Armes filed the operative FAC, and Defendants, including 13 Defendant Universal Music Group, moved to dismiss. (FAC; Mot. Dismiss FAC, 14 ECF No. 28.) The Court granted the motion in part and denied it in part, dismissing 15 Armes’s claims to authorship of and ownership in the Circles Recording, on the 16 grounds that Armes failed to allege facts showing that he (1) made an independently 17 copyrightable contribution to the Circles Recording, and (2) superintended the 18 creation of the Circles Recording by exercising control over it. (Order Dismissing 19 FAC 12–13, ECF No. 32.) Although the Court provided leave to amend, Armes did 20 not amend, instead stipulating to dismiss his claim of authorship in the Circles 21 Recording, including dismissal of Universal Music Group as a party, and proceeding 22 with his claim of authorship in the Circles Composition only. (Stip. Dismiss, ECF 23 No. 34; Min. Order, ECF No. 35.) 24 The parties stipulated to transfer the venue of Post’s Southern District of New 25 York case to the Central District of California, and, on December 15, 2020, upon 26 further stipulation of the parties, this Court consolidated the two cases. (Min. Order, 27 ECF No. 45.) 28

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1 Defendants now move for summary judgment. Their motion is two-pronged. 2 First, they seek summary judgment in their favor on Armes’s FAC and dismissal of 3 Armes’s FAC. Second, they seek summary judgment in their favor on their own 4 Consolidated Complaint. (See Mot.; Consol. Compl., ECF No. 1 in 2:20-cv-10205- 5 ODW (SKx).) The Motion is fully briefed. (Opp’n, ECF No. 84; Reply, ECF 6 No. 86.) 7 IV. LEGAL STANDARD 8 A court “shall grant summary judgment if the movant shows that there is no 9 genuine dispute as to any material fact and the movant is entitled to judgment as a 10 matter of law.” Fed. R. Civ. P. 56(a). A disputed fact is “material” where the 11 resolution of that fact “might affect the outcome of the suit under the governing law,” 12 and the dispute is “genuine” where “the evidence is such that a reasonable jury could 13 return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 14 242, 248 (1986). The burden of establishing the absence of a genuine issue of 15 material fact lies with the moving party, and the moving party may meet this burden 16 with arguments or evidence or both. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 17 (1986). 18 Once the moving party satisfies its burden, the nonmoving party cannot simply 19 rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a 20 material issue of fact precludes summary judgment. Matsushita Elec. Indus. Co., Ltd. 21 v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Cal. Architectural Bldg. Prods., Inc. 22 v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). The non-moving 23 party must show that there are “genuine factual issues that . . . may reasonably be 24 resolved in favor of either party.” Franciscan Ceramics, 818 F.2d at 1468 (quoting 25 Anderson, 477 U.S. at 250) (emphasis omitted). Provided the moving party has 26 satisfied its burden, the court should grant summary judgment against a party who 27 fails to present evidence establishing an essential element of its claim or defense when 28

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1 that party will ultimately bear the burden of proof on that claim or defense at trial. See 2 Celotex, 477 U.S. at 322. 3 In ruling on summary judgment motions, courts draw all reasonable inferences 4 in the light most favorable to the nonmoving party, refraining from making credibility 5 determinations or weighing conflicting evidence. Scott v. Harris, 550 U.S. 372, 378 6 (2007); Hous. Rts. Ctr. v. Sterling, 404 F. Supp. 2d 1179, 1183 (C.D. Cal. 2004). 7 However, “uncorroborated and self-serving” testimony will not create a genuine issue 8 of material fact. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 9 2002) (quoting Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)). 10 “Conclusory” or “speculative” testimony is likewise “insufficient to raise genuine 11 issues of fact and defeat summary judgment.” See Sterling, 404 F. Supp. 2d at 1183. 12 The nonmoving party must provide more than a “scintilla” of contradictory evidence 13 to avoid summary judgment. Anderson, 477 U.S. at 251–52; Addisu v. Fred Meyer, 14 Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). 15 V. DISCUSSION 16 The Copyright Act protects fixed original works of authorship, 17 U.S.C. § 102, 17 by granting to “copyright owners the ‘exclusive rights’ to display, perform, reproduce, 18 or distribute copies of a copyrighted work, to authorize others to do those things, and 19 to prepare derivative works based upon the copyrighted work,” Maloney v. T3Media, 20 Inc., 853 F.3d 1004, 1010 (9th Cir. 2017) (quoting 17 U.S.C. § 106). “The copyright, 21 in other words, gives the owner ‘the right to control the work’ . . . .” Id. (quoting 22 Laws v. Sony Music Ent., Inc., 448 F.3d 1134, 1137 (9th Cir. 2006)). 23 The issue this case presents is whether the Circles Composition is a joint work 24 authored in part by Armes. Under the Copyright Act, a joint work is “a work prepared 25 by two or more authors with the intention that their contributions be merged into 26 inseparable or interdependent parts of a unitary whole.” 17 U.S.C. § 101; see 27 Aalmuhammed v. Lee, 202 F.3d 1227, 1231 (9th Cir. 2000). “The authors of a joint 28 work are co-owners of the copyright in that work.” 17 U.S.C. § 201(a); Richlin v.

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1 Metro-Goldwyn-Mayer Pictures, Inc., 531 F.3d 962, 968 (9th Cir. 2008) (discussing 2 history of federal copyright law’s treatment of joint works). “Even if a person’s 3 contribution is minor, once he is accorded joint authorship status, he enjoys all 4 benefits of joint authorship.” Richlin, 531 F.3d at 968. 5 “[I]n the Ninth Circuit, a ‘joint work’ has four elements: (1) a copyrightable 6 work, (2) two or more authors, (3) the authors intend for their contributions to be 7 merged into inseparable or interdependent parts of a unitary whole, and (4) each 8 author made an independently copyrightable contribution to the work.” Yellowcake, 9 Inc. v. Morena Music, Inc., 522 F. Supp. 3d 747, 762–63 (E.D. Cal. 2021) (citing 10 Aalmuhammed, 202 F.3d at 1231). “[T]o be an author, one must supply more than 11 mere direction or ideas; one must translate an idea into a fixed tangible expression 12 entitled to copyright protection.” S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087 13 (9th Cir. 1989) (cleaned up). In determining whether individuals are joint authors of a 14 work in the absence of a contract defining the parties’ relationship, courts consider: 15 (1) whether the purported author “superintend[ed]” the work by exercising control; 16 (2) whether the putative co-authors made objective manifestations of a shared intent to 17 be co-authors; and (3) whether the audience appeal of the work turns on both 18 contributions and the share of each in its success cannot be appraised. Yellowcake, 19 522 F. Supp. 3d at 763 (quoting Aalmuhammed, 202 F.3d at 1234). Courts are to 20 apply these factors flexibly; the test for joint authorship “cannot be reduced to a rigid 21 formula, because the creative relationships to which they apply vary too much.” 22 Aalmuhammed, 202 F.3d at 1235. 23 A. Compositions and Sound Recordings 24 Armes initially sought a declaration of rights in both the Circles Composition 25 and the Circles Recording. He has since dismissed his claim to rights in the Circles 26 Recording, and the case is now limited to whether he has rights in the Circles 27 Composition. Copyright law recognizes musical compositions and sound recordings 28 as distinct classes of intellectual property, and a typical commercial-release song

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1 comprises these two independently copyrightable components. See Williams v. Gaye, 2 895 F.3d 1106, 1121 (9th Cir. 2018) (“[S]ound recordings and musical compositions 3 are separate works with their own distinct copyrights.”). 4 Musical compositions are protected under 17 U.S.C. § 102(a)(2), which protects 5 “musical works.” See Newton v. Diamond, 204 F. Supp. 2d 1244, 1248–49 (C.D. Cal. 6 2002). The musical composition is intellectual property consisting of the underlying 7 musical material: the notes, rhythms, chord progressions, melodies, harmonies, 8 basslines, instrumental lines, and lyrics that comprise the substantive musical content 9 of the song. See id. at 1249 (“A musical composition’s copyright protects the generic 10 sound that would necessarily result from any performance of the piece.”). Generally, 11 the initial copyright in a musical composition vests in the songwriters, lyricists, and 12 other musical artists who authored the musical composition. See U.S. Auto Parts 13 Network, Inc. v. Parts Geek, Inc., 692 F.3d 1009, 1015 (9th Cir. 2012) (“[C]opyright 14 ownership ‘vests initially in the author or authors of the work,’ which is generally the 15 creator of the copyrighted work.” (first quoting 17 U.S.C. § 201; and then citing Cmty. 16 for Creative Non–Violence v. Reid, 490 U.S. 730, 737 (1989)). 17 The sound recording is intellectual property that exists separate and apart from 18 the musical composition. It is “the aggregation of sounds captured in the recording,” 19 whereas “the song or tangible medium of expression embodied in the recording is the 20 musical composition.” See Newton, 204 F. Supp. 2d at 1249. To understand the 21 difference between a musical composition and a sound recording, consider Ludwig 22 van Beethoven’s iconic Moonlight Sonata. The Moonlight Sonata itself is a musical 23 composition authored by Beethoven in 1801. It is a piece of intellectual property, a 24 collection of melodies, harmonies, and rhythms, and it is part of the public domain, 25 meaning that any individual may perform, arrange, adapt, or otherwise exploit the 26 musical composition, including by copying the sheet music. See Klinger v. Conan 27 Doyle Estate, Ltd., 755 F.3d 496, 497 (7th Cir. 2014) (“Once the copyright on a work 28 expires, the work becomes a part of the public domain and can be copied and sold

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1 without need to obtain a license from the holder of the expired copyright.”). Over 2 time, thousands of pianists have recorded their own performances of the Moonlight 3 Sonata using the public domain musical composition as the underlying musical 4 material. Generally speaking, each pianist owns the copyright in the recording of his 5 or her own performance and has the right to control how that recording is used and 6 where it is played. See Erickson v. Blake, 839 F. Supp. 2d 1132, 1135 n.3 (D. Or. 7 2012) (“[A] copyright in a sound recording only protects against a direct duplication 8 of that recording.” (citing 17 U.S.C. § 114(b))). Each individual copyright in each 9 individual sound recording of the Moonlight Sonata is a separate piece of intellectual 10 property and is distinct from the intellectual property embodied in the underlying 11 composition. The composition remains in the public domain regardless of how 12 musicians and others might exploit it in making sound recordings. Cf. Tresóna 13 Multimedia, LLC v. Burbank High Sch. Vocal Music Ass’n, 953 F.3d 638, 645 14 (9th Cir. 2020) (explaining how and why a co-owner of a copyright may not act 15 independently to limit other co-owners’ independent rights to exploit the work). 16 The rights of a copyright in a sound recording do not extend to the musical 17 composition, and vice versa. Newton, 204 F. Supp. 2d at 1249. A defendant infringes 18 copyright in a musical composition by copying or distributing the composition in 19 some way—that is, by performing the composition, broadcasting a performance of it, 20 arranging it, or by making a photocopy of the sheet music on which the composition is 21 notated and embodied. See 17 U.S.C. § 106(1), (2), (4), (5); see ABKCO Music, Inc. 22 v. LaVere, 217 F.3d 684, 688–89 (9th Cir. 2000) (discussing history of copyright 23 protection of musical compositions). By contrast, a defendant infringes copyright in a 24 sound recording by copying the recording in some way—that is, by making physical 25 or digital copies of the recording, broadcasting the recording, or distributing copies of 26 the recording. See 17 U.S.C. § 106(1), (3), (5), (6); see also Griffin v. J-Recs., 398 F. 27 Supp. 2d 1137, 1142 (E.D. Wash. 2005) (“[T]he exclusive right of reproduction is 28

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1 limited to the right to duplicate the sounds in a form ‘that directly or indirectly 2 recaptures the actual sounds fixed in the recording.’” (citing 17 U.S.C. § 114(b))). 3 Moreover, and of particular relevance here, although in some cases the fixing of 4 a sound recording simultaneously establishes a copyright in the musical composition 5 embodied in the sound recording, see Griffin, 398 F. Supp. 2d at 1142, the fixing of a 6 final commercial-release sound recording is not a condition precedent to establishing a 7 copyright in the musical composition, because there are other ways to fix a musical 8 composition than embodying it in a finalized sound recording, such as by transcribing 9 it to sheet music, see ABKCO Music, 217 F.3d at 688 (“[W]hen Congress first 10 extended copyright protection to original musical compositions . . . [it] merely 11 protected the copying of the sheet music.”), or, as arose here, reducing a composition 12 to a playable file on a computer program. 13 Given the fundamental difference between a musical composition and a sound 14 recording, Defendants are incorrect to assert that the Court’s reasons for dismissing 15 Armes’s Recording-based claims also generally support summary judgment and 16 dismissal of Armes’s Composition-based claims. (Defs.’ Mem. P & A (“Mem.”) 1–2, 17 ECF No. 82-1.) For example, the Court previously observed that, as alleged, Armes 18 did not superintend sufficient control over the post-August 8 Session recording and 19 engineering process to establish any authorship in the Circles Recording. (Order 20 Dismissing FAC 12–13.) But this conclusion does not automatically apply to the 21 Circles Composition, because the Composition, or some form of it, was indeed 22 complete as of the close of the August 8 Session. That the Recording was not 23 complete as of the end of that session, and that Armes thereafter had no control over 24 the Recording, does not mean that the same is true of the Composition. See Newton, 25 204 F. Supp. 2d at 1249. 26 With these points clarified, the Court turns to the parties’ burdens. 27 28

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1 B. The Parties’ Burdens 2 Although Defendants seek summary judgment on two different pleadings, the 3 parties’ burdens with respect to the two pleadings are, on this Motion, substantially 4 the same. Armes’s pleading seeks a determination that Armes does have joint 5 authorship rights in the Circles Composition. (FAC 12 (“Prayer for Relief”) ¶ 1.) 6 Post’s pleading seeks a determination that Armes does not have joint authorship rights 7 in the Circles Composition. (See Consol. Compl.) Defendants can meet their initial 8 burden as to both of these pleadings by proffering arguments or evidence 9 demonstrating that Armes cannot establish joint authorship in the Composition. See 10 Celotex, 477 U.S. at 323. This would be sufficient to make the initial showing that 11 Armes’ joint authorship claim is without merit, and it would also make Post’s prima 12 facie case for his own Consolidated Complaint, which alleges the nonexistence of 13 joint authorship. 14 If Defendants are successful, then the burden shifts to Armes to introduce 15 evidence demonstrating that there is a genuine and material factual dispute about 16 whether Armes is a joint author of the Circles Composition. If Armes meets this 17 burden, he defeats Defendants’ Motion, because he shows that there is a triable issue 18 regarding his own joint authorship claim and a triable issue regarding Post’s no-joint- 19 authorship claim. 20 1. Defendants’ burden 21 Defendants’ initial showing consists of four components: originality, shared 22 intent, fixation, and control. 23 Originality. Originality refers to the requirement that a work—or, as applicable 24 here, a contribution to a joint work—contain sufficient originality of expression to 25 gain copyright protection. 17 U.S.C. § 102(a); see Newton, 204 F. Supp. 2d at 1254 26 (“Copyright protection extends only to those components of the work that are original 27 and non-trivial.”). Here, Defendants argue Armes’s contributions to Circles were not 28 sufficiently original. Defendants point to Armes’s own deposition, in which he

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1 testified that (1) he did not write any of the lyrics for Circles; (2) although he co-wrote 2 the chord progression for Circles, the progression is the extremely common I-IV-V 3 chord progression and is therefore not sufficiently original; (3) although he co-wrote 4 the bass line for Circles, the bass line is also based on the same extremely common 5 progression and is therefore not sufficiently original; and (4) although he wrote part of 6 the lead guitar melody which eventually became the introduction to the commercial 7 release version of Circles, he merely sang his contributions as an add-on to Post’s own 8 contributions, and his contribution is therefore not sufficiently original. (Defs.’ 9 Statement of Uncontroverted Facts (“SUF”) 27–35, ECF No. 83-1 (citing Decl. David 10 A. Steinberg Ex. B (“Armes Dep.”), ECF No. 82-2).) In presenting this evidence and 11 argument, Defendants meet their initial burden of showing a lack of originality. 12 Shared intent. Shared intent refers to the statutory requirement for joint 13 authorship that the authors prepare the work “with the intention that their 14 contributions be merged into inseparable or interdependent parts of a unitary whole.” 15 Yellowcake, 522 F. Supp. 3d at 762 (first citing 17 U.S.C. § 101; and then citing 16 Aalmuhammed, 202 F.3d at 1231). Here, Defendants argue that they and the non- 17 party songwriters neither had nor objectively manifested a shared intent to create a 18 joint work with Armes. Their argument also rests primarily on Armes’s own 19 deposition testimony. Armes admitted that during the August 8 Session, Post and 20 Dukes never expressly acknowledged that the three were writing a song together or 21 that Armes would be a joint author. (SUF 37–38 (citing Armes Dep.).) Moreover, 22 neither Post nor Dukes nor any of the other acknowledged co-writers of Circles ever 23 followed up with Armes after the August 8 Session, either to ask for his input or for 24 any other reason. (SUF 39–41 (citing Armes Dep.).) Additional declarations from the 25 acknowledged co-writers of Circles confirm that these individuals never knew about 26 Armes’s contributions to the composition, nor did they ever intend for Armes to be a 27 co-author. (SUF 48–49 (citing Decls. of Gunesberk, Walsh, and Bell).) Defendants 28 also point out that in the song credits for Circles, which can be found on Post

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1 Malone’s website, Armes is not listed as a co-writer. (SUF 52–53.) In presenting this 2 evidence and argument, Defendants meet their initial burden of showing a lack of a 3 shared intent to create a work. 4 Fixation. Fixation refers to the statutory rule providing that in order to gain 5 copyright protection a work must be fixed in a tangible medium expression. 6 17 U.S.C. § 102(a). Copyright vests in an author when the work is fixed directly by 7 the author or “by or under the authority of the author.” 17 U.S.C. § 101. Here, 8 Defendants argue that, during the process of composing Circles, Armes himself did 9 not fix any musical material into a tangible medium of expression. (Mem. 12.) In 10 support of this argument, they submit Armes’s own deposition testimony, in which 11 Armes explains that during the April 8 Session the three musicians recorded their 12 musical material on a Session File on Dukes’s laptop. (SUF 11–16 (citing Armes 13 Dep.).) Armes conceded in deposition that the Session File consists entirely of 14 musical material performed by Post and Dukes on their respective instruments; the 15 Session File does not contain a recording of any of Armes’s playing. (SUF 16 (citing 16 Armes Dep.).) In presenting this evidence and argument, Defendants meet their initial 17 burden of showing Armes did not fix the Circles Composition. 18 Control. Control refers to the requirement that putative co-authors 19 “superintended” the work by exercising control over its creation. Yellowcake, 522 F. 20 Supp. 3d at 763 (quoting Aalmuhammed, 202 F.3d at 1234). Here, Defendants argue 21 Armes did not exercise control over the creation of the Circles Composition. In 22 support of this argument, Defendants point again to Armes’s own deposition 23 testimony indicating that Dukes had sole control over the laptop the three used to 24 record and mix their musical ideas. (SUF 12–15 (citing Armes Dep.).) They also 25 present the declarations of the non-party songwriters describing their roles in the 26 Circles Composition following the August 8 Session, and they point out that Armes 27 had no control over these songwriters’ contributions or anything else that took place 28 after the August 8 Session. (SUF 27, 44–47 (citing Armes Dep., and Decls. of

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1 Gunesberg, Walsh, and Bell).) In presenting this evidence and argument, Defendants 2 meet their initial burden of showing Armes did not superintend control over the 3 Circles Composition. 4 Based on the foregoing, the Court finds that Defendants meet their initial 5 burden of demonstrating with evidence and arguments that Armes will not be able to 6 establish the requirements of originality, shared intent, fixation, and control, and 7 accordingly will not be able to establish joint authorship in the Circles Composition. 8 The burden shifts to Armes to demonstrate that there is sufficient evidence to render 9 triable each issue that would otherwise be dispositive of the case in Defendants’ favor. 10 2. Armes’s burden 11 With the focus squarely on the Circles Composition, the next salient 12 observation is that there are in fact two compositions at issue, and the parties argue 13 past each other somewhat because each side is generally staking its claim in a 14 different composition. 15 First, there is the musical composition embodied in the Session File, which was 16 complete by the end of the August 8 Session. Armes acknowledges this composition 17 in asserting that “the composition of the final version of the music for ‘Circles’ was 18 completed on August 8, 2018,” at the conclusion of the parties’ jam session, (Pl.’s 19 Statement of Genuine Disputes (“SGD”) 110, ECF No. 84-1), and Defendants 20 acknowledge this composition by acknowledging the existence of a “Rough Mix” that 21 existed as a result of the August 8 Session, (SUF 19). The Court refers to this 22 composition herein as the Session Composition. Second, there is the musical 23 composition embodied in the commercial release of Circles, which was not complete 24 until over a year later and which bore the musical contributions of several additional 25 lyricists and other musical collaborators. Both parties acknowledge this composition 26 in agreeing that “Armes had no involvement whatsoever in the creation of the Circles 27 Composition following the August 8 Session.” (SUF 40.) The Court refers to this 28 composition herein as the Commercial Release Composition.

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1 Armed with this distinction, the Court next notes that Post’s Consolidated 2 Complaint seeks a declaration with respect to the Commercial Release Composition 3 only. In the Consolidated Complaint, Post defines “Circles Composition” as the 4 musical composition contained in the Circles track on his album “Hollywood’s 5 Bleeding,” (see Consol. Compl. ¶ 4) and he requests declaratory judgment with 6 respect to this Composition in particular, (id. ¶¶ 18–25). By contrast, Armes’s FAC 7 is sufficiently broadly drafted so as to place both the Commercial Release 8 Composition and the Session Composition at issue. (See FAC ¶ 34 (generally 9 demanding “prospective and retroactive royalties and other money owed with respect 10 to his interest in” Circles)). 11 For the reasons that follow, Armes fails in his burden with respect to his 12 authorship in the Commercial Release Composition, but he meets his burden on each 13 issue raised with respect to his authorship in the Session Composition. Defendants are 14 therefore entitled to summary judgment in Post’s favor on his Consolidated Complaint 15 and partial summary judgment on Armes’s FAC. 16 a. Defendants get judgment in their favor as a matter of law on Armes’s 17 joint authorship in the Commercial Release Composition. 18 First, as a matter of law, by admitting that he “had no involvement whatsoever 19 in the creation of the Circles Composition following the August 8 Session,” (SUF 40), 20 Armes concedes that he has not and indeed cannot meet his burden with respect to 21 fixation of and control over the Commercial Release Composition. The product of the 22 parties’ efforts during the August 8 Session is the Session File, in which the Session 23 Composition was fixed. The Session File contains an eight-minute recording in which 24 the fundamental chord progression and bassline play on a loop while guitars and 25 vocals provide melodic content over the loop. (See iPhone Recording.) The Session 26 File, and the Session Composition embodied therein, is not the same as the final 27 release of Circles; later, the non-party songwriters made significant additional 28 contributions, including the majority of the lyrics and the re-structuring of the Session

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1 Composition into a radio-length song—the Commercial Release Composition —with 2 a standard structure consisting of verses, choruses, and a bridge. No one, including 3 Armes, disputes that Armes had nothing to do with any of this post-August 8 Session 4 work. This defeats Armes’s claim to joint authorship of the Commercial Release 5 Composition. Because Armes was not involved for the several months following the 6 August 8 Session when Post and others continued to fix aspects of the Circles 7 Composition, the fixation could not have possibly been done under Armes’s authority. 8 The same is true of control: Armes had no control over what went into the Circles 9 Composition following the August 8 Session. 10 To the extent this case is about joint authorship in the Commercial Release 11 Composition, this case is analogous to Aalmuhammed v. Lee. In Aalmuhammed, the 12 plaintiff was hired by actor Denzel Washington to provide consultation and advice, 13 on-set and elsewhere, regarding Washington’s portrayal of Malcolm X in the motion 14 picture of the same name. 202 F.3d at 1230. The plaintiff argued that his 15 contributions, which included revisions to the script, made it into the motion picture 16 and that he was therefore a joint author. Id. The Ninth Circuit disagreed, noting that 17 control over the final version of the motion picture was superintended by the film’s 18 director and the film studio, not by the plaintiff. Id. at 1235 (“Aalmuhammed did not 19 at any time have superintendence of the work. Warner Brothers and Spike Lee 20 controlled it.”). The same is true here. Although Armes made contributions to an 21 early version of the Circles Composition (that is, to the Session Composition), he 22 ultimately did not have superintendence of the Commercial Release Composition. 23 Post and his other collaborators modified and edited the Session Composition with no 24 input from Armes. Thus, even if Armes did make copyrightable contributions to the 25 Session Composition, he cannot establish joint authorship in the Commercial Release 26 Composition. 27 Yet, no one disputes that something was fixed by the end of the August 8 28 Session. (See SUF 19 (acknowledging that a rough mix was fixed on Dukes’s laptop

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1 by the end of the August 8 Session).) The iPhone Recording Armes submits with his 2 Opposition demonstrates as much. The recording1 is of the three musicians listening 3 back to the approximately eight-minute Session File at the end of their jam session. 4 (See iPhone Recording.) This recording demonstrates that some quantum of original 5 musical expression was fixed on Dukes’s laptop by the end of the evening. For the 6 reasons discussed in the following four subsections, there are genuine factual disputes 7 about whether this laptop recording, which contains the Session Composition, 8 (1) contains original material by Armes, (2) is the product of the three musicians’ 9 mutual intent to write a song, and (3) & (4) was fixed under Armes’s authority and 10 superintendence. The fact that the Session Composition then went to others who 11 added to and modified the musical content of the Session Composition to prepare it 12 for commercial release does not invalidate the genuine factual disputes concerning 13 Armes’s participation in the creation of the Session Composition. 14 The way forward, therefore, appears to be for the Court to view the Session 15 Composition as its own separate, standalone, copyrightable intellectual property, in 16 which Post and Dukes undisputedly have authorship and in which Armes may have 17 authorship. The Session Composition was a fixed original expression that Post then 18 handed off to the non-party songwriters, who, in adding lyrical material and 19 restructuring the Session Composition for commercial release, created a derivative 20 work, the Commercial Release Composition, using the Session Composition as source 21 material. See 17 U.S.C. § 101 (including musical arrangements in definition of 22 derivative work).2 23 24 1 Defendants assert, and Armes admits, that Armes’s iPhone recording was made in secret and 25 without authorization from Post or Dukes. (SUF 24.) This observation, even if true, does not appear to affect the outcome of this Motion. 26 2 Defendants' assertion that the Circles Composition was not complete as of the end of the August 8 Session does not alter the analysis, especially given that Defendants acknowledge the existence of 27 the Session File as what they call the “Rough Mix.” (See SUF 19, 20.) Copyright vests in fixed 28 original works of expression automatically, regardless of whether the author(s) deem the work to be a draft or final version. Garcia v. Google, Inc., 786 F.3d 733, 753 (9th Cir. 2015) (Kozinski, C.J.,

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1 To be clear, a declaration of joint authorship in the Session Composition is 2 fundamentally different relief than a declaration of joint authorship in the Commercial 3 Release Composition. A declaration of joint authorship in the Session Composition 4 would not imply joint authorship in the Commercial Release Composition because 5 “[j]oint authorship in a prior work is insufficient to make one a joint author of a 6 derivative work.” Ashton-Tate Corp. v. Ross, 916 F.2d 516, 522 (9th Cir. 1990). 7 Such a declaration would, however, be a significant win for Armes; joint authorship in 8 the Session Composition would entitle him to profits and proceeds from exploitation 9 of the Session Composition. Yellowcake, 522 F. Supp. 3d at 763 (“[C]o-authors must 10 account to other co-authors for any profits earned from licensing or using the 11 copyright.” (citing Ashton-Tate, 916 F.2d at 522)). This includes certain proceeds 12 from the exploitation of the Commercial Release Composition because the 13 Commercial Release Composition is derivative of the Session Composition. Thus, a 14 win for Armes under this approach would entitle him to profits generated from the use 15 of the Session Composition in the creation of the Commercial Release Composition. 16 (Cf. FAC ¶ 34 (“Plaintiff is entitled to prospective and retroactive royalties and other 17 money owed with respect to his interest in the Song.”).) In other words, Armes would 18 be entitled to a percentage of the profits Post and Dukes have received and continue to 19 receive as authors of the Circles Composition.3 20 Following the April 8 Session, Armes had no control over the final version of 21 the Circles Composition (the Commercial Release Composition) and nothing to do 22 with its fixation, and therefore, Post is entitled to judgment as a matter of law on 23 Armes’s authorship in the Commercial Release Composition. As discussed, Post, in 24 his Consolidated Complaint, indicates that he seeks a declaration regarding rights in 25 the Commercial Release Composition in particular. (See Consol. Compl. ¶¶ 4, 18– 26 dissenting) (“[U]nder our copyright law, the creators of original, copyrightable material 27 automatically acquire a copyright interest in the material as soon as it is fixed.”). 28 3 The legal principles and methods for calculating and allocating these profits are not currently articulated in the record of this case.

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1 25.) The Court can therefore proceed to rule on the Motion to the extent Defendants 2 seek a ruling on Post’s Consolidated Complaint. The Court GRANTS Defendants’ 3 Motion IN PART by granting Post judgment in favor of his Consolidated Complaint 4 and the narrow relief sought therein, which relates solely to the Commercial Release 5 Composition.4 The Court further GRANTS the Motion IN PART by granting Post 6 judgment in his favor as against Armes’s FAC to the extent Armes claims joint 7 authorship in the Commercial Release Composition. 8 The remaining question is whether Defendants are also entitled to judgment as a 9 matter of law on Armes’s claim in the FAC to joint authorship in the Session 10 Composition. The Court now focuses on joint authorship of the Session Composition, 11 ultimately concluding that Armes may go to trial on this issue. 12 b. Whether Armes in fact contributed musical material to the Session 13 Composition, including the bass line, the chord progression, and the lead 14 guitar line, and whether those contributions were sufficiently original, is 15 in genuine dispute. 16 First, whether Armes in fact contributed musical material to the Session 17 Composition, and whether those contributions were sufficiently original, are 18 genuinely disputed issues of material fact. Armes’s declaration and deposition 19 testimony substantiate his claim that he made the following contributions to the 20 Session Composition, and in each case, Defendants do not dispute the fundamental 21 assertion that Armes in fact co-wrote the material: 22  Armes made contributions to the Circles chord progression, including the 23 shift from F major to F minor5 that functions as a variation on the basic 24 chord progression and appears intermittently throughout the Session 25

26 4 To be clear, this does not mean that Post is entitled to a declaration on each and every matter as presented and requested in his Consolidated Complaint. The Court will make this determination if 27 and when it becomes appropriate to issue a final judgment. 28 5 As a technical note, for the purposes of this Order and for clarity, all musical references have been transposed to C Major.

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1 Composition. (SGD 99–102.) Defendants do not submit any evidence 2 that logically contradicts Armes’s assertions about his contributions to 3 the chord progression. 4  Armes co-wrote the bassline, versions of which are found throughout the 5 Session Composition. (SGD 88–91.) While Defendants object to 6 Armes’s assertions to this effect, Defendants submit no evidence that 7 controverts Armes’s own testimony that he co-wrote this bass line. The 8 fact that Armes is not the person playing the bass in the Session File does 9 not logically controvert Armes’s statements on this matter because the 10 person who records musical content to a session file is not necessarily the 11 same person who devised or composed the musical content being 12 recorded. 13  Armes supplied the latter part of the lead guitar line, which can be heard 14 in several places on the Session Composition and at the very beginning of 15 the introduction in the Commercial Release Composition. (SGD 93–98 16 (similarly objected to by Defendants, but not controverted by evidence).) 17 Moreover, when Armes contacted Dre immediately upon hearing a preview of the 18 commercial release of Circles to assert his authorship in the song, Dre responded that 19 Post “remember[ed]” that Armes “played a tune on the bass,” and then Post “played 20 more of it after.” (SGD 117; Armes Decl. Ex. 4 (“Dre Texts”)., ECF No. 84-2.) ) 21 The trier of fact could examine this piece of evidence along with the other evidence 22 discussed above and find that Armes did indeed make musical contributions to the 23 Session Composition. 24 The next substantive question is whether Armes’s contribution to the Session 25 Composition is sufficiently original. Armes’s contribution to the bass line and to the 26 lead guitar line are sufficiently original such that the Court can not conclude as a 27 matter of law that Armes’s contributions are wholly unoriginal contributions 28 unworthy of copyright protection.

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1 Joint authorship requires that the putative author make an original contribution 2 to the work at issue. Ashton-Tate, 916 F.2d at 521 (“A collaborator’s contribution will 3 not produce a joint work, and a contributor will not obtain a co-ownership interest, 4 unless the contribution represents original expression that could stand on its own as 5 the subject matter of copyright.”); cf. Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 6 1073 (9th Cir. 2000) (“The essence of copyrightability is originality of artistic, 7 creative expression.”). With regard to musical compositions, copyright protection 8 does not “extend to common or trite musical elements or commonplace elements that 9 are firmly rooted in the genre’s tradition. These building blocks belong in the public 10 domain and cannot be exclusively appropriated by any particular author.” Skidmore as 11 Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051, 1069 (9th Cir. 2020) 12 (citations and internal quotation marks omitted); see Satava v. Lowry, 323 F.3d 805, 13 810 (9th Cir. 2003) (“[E]xpressions that are standard, stock, or common to a particular 14 subject matter or medium are not protectable under copyright law.”) 15 As for the Circles chord progression, Defendants argue that, according to 16 Armes’s own deposition testimony, the progression is a simple I-IV-V chord 17 progression, and that, because that progression is extremely commonplace and 18 unoriginal, Armes’s contribution to the chord progression is insufficiently original. 19 But, having listened to the Session Composition as captured on the iPhone Recording 20 with special attention to the chord progression throughout, the Court makes two 21 observations. First, the chord progression is not an exact loop throughout, and instead 22 contains variations; the existence of these variations, and where the collaborators 23 chose to place them, cannot be disregarded as unoriginal. Second, and foreshadowing 24 the Court’s discussion below regarding Armes’s contribution to the lead guitar line, 25 isolating the chord progression and disregarding it as unoriginal misses the fact that 26 the collaborators not only chose this chord progression, but chose a particular melody 27 and a particular vocal line to be played simultaneously with the chord progression at 28 any given time. These decisions all went into the creation of the Session

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1 Composition, and a reasonable juror could conclude that all three collaborators took 2 part in these decisions and that the combination of these decisions created something 3 that is not stock or commonplace, despite the fact that it may contain stock or 4 otherwise uncopyrightable building blocks. Satava, 323 F.3d at 811. Thus, the Court 5 cannot conclude that at this phase that, as a matter of law, the chord progression lacks 6 sufficient originality. 7 Defendants further argue that, because the I-IV-V progression is commonplace 8 and unoriginal, so too is the associated bassline. But the bassline in question consists 9 of much more than three unadorned bass notes outlining a I-IV-V progression. 10 Loosely speaking, the roman numeral progression I-IV-V refers to the first, fourth, 11 and fifth notes in a major scale, and in C Major would refer to the notes C, F, and G. 12 Here, however, the bassline in question is much more complex than a simple, 13 repeated, three-note, C-F-G loop. Instead, it is a significantly adorned and adapted 14 setting of the chord progression in question. Therefore, the Court cannot simply 15 assume or accept that the bassline is insufficiently original. The undisputed evidence 16 indicates that Armes did in fact contribute to the chord progression and bassline, 17 leaving open the possibility that Armes made a material contribution to this bassline. 18 That being the case, the Court cannot conclude that, as a matter of law, Armes did not 19 make an original contribution to the Session Composition. 20 The same conclusion applies to the lead guitar line, and perhaps even more 21 clearly so. As the evidence suggests, Post composed the four-note gesture (G-A-G-E) 22 that repeats three times, and Armes then composed “the turnaround phrasing that 23 conclude[s] the guitar melody.” (See SUF 95 (citing Armes Dep. 118:21-23 (“I sang 24 the melody to him on how to include and resolve the melody nicely and he did it 25 exactly as I sang it and there it is on the master recording.”)).) The Court cannot 26 conclude that, as a matter of law, Armes’s contribution to this line was minimal to the 27 point of unoriginal. Armes’s three-bar contribution consists of a specific musical 28 contour set to a particular rhythm. Moreover, and just as importantly in the musical

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1 context, the decision to include this three-bar fragment out of all the possible three-bar 2 fragments after Post’s particular five-bar fragment is a creative decision unto itself 3 with a cognizable amount of originality. In making his contribution, Armes not only 4 wrote a short three-bar fragment; he wrote a three-bar fragment that picks up where 5 the previous five bars left off and brings Post’s musical gesture to a resolution. Thus, 6 even if Armes’s contribution—as its own standalone three-bar phrase—might not 7 qualify as original, the same three-bar phrase coupled with Armes’s idea to include it 8 after Post’s contribution could be sufficiently original. See Satava, 323 F.3d at 811 9 (“[A] combination of unprotectable elements is eligible for copyright protection only 10 if those elements are numerous enough and their selection and arrangement original 11 enough that their combination constitutes an original work of authorship.”); cf. 12 Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir. 2002) (“The particular sequence in 13 which an author strings a significant number of unprotectable elements can itself be a 14 protectable element. Each note in a scale, for example, is not protectable, but a 15 pattern of notes in a tune may earn copyright protection.”), overruled on other 16 grounds by Skidmore, 952 F.3d 1051. The originality exhibited by the compilation of 17 component musical parts cannot be ignored and contributes to the finding that the 18 originality of Armes’s contributions is an issue which does not resolve in Defendants’ 19 favor based on the papers alone. The issue must be tried. 20 c. Whether the Session Composition was fixed by or under Armes’s 21 authority is a genuinely disputed issue. 22 Next, Armes demonstrates a genuine and material factual dispute as to fixation. 23 As discussed above, under the Copyright Act, a work is “fixed” when it is embodied 24 “in a copy or phonorecord, by or under the authority of the author.” Armes’s key 25 evidence in this regard is his deposition testimony and declaration which indicate that 26 during the recording process, Armes, Post, and Dukes discussed and “mutually agreed 27 on which takes of the song should be included” in the Session File on Dukes’s laptop. 28 (SGD 104; see generally SGD 85–108; Armes Decl. ¶ 16.) For example, the three

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1 agreed that Circles sounded better stripped down to just bass, guitar, and drums as the 2 prominent sounds, and Dukes adjusted the session on the laptop to reflect this 3 decision. (See SGD 105.) The evidence indicates that Dukes controlled the laptop; 4 the evidence does not indicate that, as a matter of law, this control of the laptop 5 functioned as a general veto power over musical ideas Armes might have suggested 6 during the session. Instead, Armes’s evidence suggests that the three musicians 7 jointly controlled the flow of the jam session and jointly decided what musical 8 material would be included in the Session File. (See generally SGD 85–108.) This, in 9 turn, would be sufficient to establish that the fixation occurred under the authority of 10 all three musicians, including Armes. Cf. Del Rio v. Virgin Am., Inc., No. CV 18- 11 1063-GW (SKx), 2018 WL 5099720, at *5 (C.D. Cal. June 28, 2018) (noting that the 12 “under authority” requirement for fixation is an issue that “seldom rise[s] to the fore”). 13 Armes accordingly demonstrates that the fixation requirement remains in genuine 14 dispute. 15 d. Whether Armes, Post, and Dukes objectively manifested an intent to 16 jointly create a musical composition is in genuinely dispute. 17 Next, Armes demonstrates that whether he, Post, and Dukes had a shared intent 18 to jointly create the Session Composition, and objectively manifested that intent, are 19 genuinely disputed issues of fact. Courts making this determination have looked to 20 statements and admissions of the putative co-authors at or around the time the work 21 was created, Morrill v. Smashing Pumpkins, 157 F. Supp. 2d 1120, 1124 (C.D. Cal. 22 2001), the testimony of the parties regarding their intent at the time the work was 23 created, Stillwater Ltd. v. Basilotta, No. 2:16-cv-01895-SK, 2020 WL 4355306, at *7 24 (C.D. Cal. Feb. 5, 2020), the extent to which, and the means by which, the parties 25 collaborated in making the work, Marya v. Warner/Chappell Music, Inc., 131 F. Supp. 26 3d 975, 993–94 (C.D. Cal. 2015), whether one party paid the other, Reinsdorf v. 27 Skechers U.S.A., 922 F. Supp. 2d 866, 874 (C.D. Cal. 2013), whether any putative co- 28 author “attempt[ed] to constrain an intended co-author’s use of [the] collaborative

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1 work,” id., and “other objective evidence of intent,” Richlin, 531 F.3d at 969. Here, 2 ample evidence supports Armes’s position on this matter, including the following: 3  In a greenroom following Post’s performance, the day before the 4 August 8 Session, Dre informed Post that Armes was “an awesome 5 musician” and that he was going back to the studio with Post to work 6 with him. (Armes Decl. ¶ 6.) Post responded, “Awesome, man, let’s 7 write a tune, awesome, f*** yeah.” (Id.) 8  Armes himself is a renowned professional musician. He is best known 9 for his work with the band Down With Webster, having produced and 10 written the band’s top five Canadian singles. The song “Over,” written 11 and produced by Armes through his band Honors, was the #1 Global 12 Viral Track on Spotify in January 2017. Armes has a music publishing 13 deal with Warner Chappel Music and has worked with many well-known 14 names in the music industry. (SGD 54–68.) The trier of fact could 15 reasonably construe these facts as supporting the conclusion that three 16 professional musicians entered the studio with the intent of writing a 17 song together. 18  Prior to August 8, 2018, no music for any version of the Circles 19 Composition had been written. (SGD 82 (undisputed).) The fact that 20 what was created had no life of its own until Armes, Post, and Dukes 21 convened could reasonably be construed as evidence that the parties 22 intended to write a song that would be the product of their joint efforts. 23  It is undisputed that the members of Post’s entourage who were with him 24 at the beginning of the August 8 Session all eventually left, leaving 25 Armes, Post, and Dukes alone in the studio for several hours overnight, 26 interrupted only occasionally by a sound engineer who entered when 27 beckoned by Post. (SUF 6, 15; SGD 81.) The trier of fact could 28

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1 reasonably find that by keeping Armes in the studio with them all night 2 long, Post and Dukes manifested their intent to write a song with Armes. 3  What existed at the end of the night was a single, unified, coherent 4 musical composition. (See iPhone Recording.) The result of the 5 August 8 Session was more than a series of fragmented or unrelated 6 ideas; instead, it was a robust palette of cohesive musical ideas that 7 would ultimately form most of the musical content of the Commercial 8 Release Composition. The trier of fact could listen to the iPhone 9 Recording and the parties’ comments describing their composition as a 10 complete musical creation and reasonably conclude that this evidence 11 supports the parties’ shared intent to write a song together. 12  Armes substantiated his allegation about the text from Dre with evidence 13 of undisputed authenticity. (Dre Texts.) Defendants submit nothing to 14 controvert this evidence, such as a declaration from Post or Dukes. A 15 reasonable juror could consider the fact that, a year after the August 8 16 Session, Post still remembered that Armes “played a tune on the bass” 17 and Post “played more of it after” and find even more support for the 18 parties’ shared intent to write a song together. 19 In light of this evidence, the issue of the parties’ shared intent to write a song together 20 is a genuinely disputed factual issue. 21 e. Whether Armes superintended control over the composition embodied in 22 the Session File is in genuine dispute. 23 Finally, Armes demonstrates a genuine dispute as to whether he superintended 24 the creation of the Session Composition by an exercise of control. “Control may often 25 be the most important factor.” Richlin, 531 F.3d at 968. Courts may find mutual 26 control where the work “relies on each author’s contributions to make a unitary 27 whole,” McMunigal v. Bloch, No. C 10-02765 SI, 2010 WL 5399219, at *4 (N.D. Cal. 28 Dec. 23, 2010), or where the collaborators exercised “creative control over separate

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1 and indispensable elements of the completed product.” Morrill, 157 F. Supp. 2d 2 at 1124. Conversely, courts may find a lack of mutual control when one party has 3 veto power over another party’s contributions, Stiletto Television v. Hastings, Clayton 4 & Tucker, Inc.,, 392 F. Supp. 3d 1133, 1142 (C.D. Cal. 2019), or control over how the 5 other party’s contributions are used, Moi v. Chihuly Studio, Inc., No. C17-0853RSL, 6 2019 WL 2548511, at *2 (W.D. Wash. June 20, 2019). See also Stillwater, 2020 WL 7 4355306, at *7 (framing issue of control as whether the putative co-author was the 8 “inventive mastermind” of the work (internal quotation marks omitted)). 9 Most of the evidence and reasoning demonstrating a genuine dispute with 10 regard to fixation is also applicable here. While Dukes may have controlled the 11 laptop, nothing suggests that he or Post possessed any special veto or decision-making 12 power that Armes did not. Armes’s evidence, if credited, supports the finding that the 13 three musicians shared equal control in the session, making nonhierarchical 14 contributions to a “unitary whole.” McMunigal, 2010 WL 5399219, at *4 Armes’s 15 creative control over the August 8 Session remains in genuine dispute. 16 With the Court’s focus on the authorship of the Session Composition, 17 Aalmuhammed becomes inapposite. In Aalmuhammed, the plaintiff who coached and 18 advised Denzel Washington had no control over the final product, which was the 19 studio release of the motion picture Malcolm X. 202 F.3d at 1235. Here, however, the 20 “final product” is the Session Composition itself, and Armes was involved with the 21 creation of the Session Composition up to the moment the parties completed their jam 22 session, listened back to the Session Composition embodied in the Session File, and 23 saved the file. Nothing in the record precludes the possibility that Armes 24 superintended control of the Session Composition up to that point. 25 26 27 28

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1 As to the Session Composition, Armes shows a genuine dispute on each issue 2|| Defendants raised. The Court DENIES the Motion IN PART by recognizing 3 || Armes’s right to a trial on his claim to joint authorship in the Session Composition.°® 4 VI. CONCLUSION 5 For the reasons discussed above, the Court GRANTS IN PART and DENIES 6 || IN PART Defendants’ Motion. (ECF No. 82.) As a matter of law, Armes has no clam to authorship in the Commercial Release Composition. But Armes 8 | demonstrates genuine disputes in regard to his authorship in the Session Composition, 9 | and he is entitled to a trial on that issue. 10 Finally, the Court CONTINUES the deadline for the parties to file their pretrial 11 || documents to April 20, 2022. The parties should ensure that a courtesy copy trial 12 | binder is delivered to the First Street Courthouse by no later than 11:00 a.m. on April 13 | 21, 2022. 14 15 IT IS SO ORDERED. 16 . ~, 17 April 18, 2022 Tag sa, 3 Yui 19 20 OTIS D. GHT, Il UNITED STATES DISTRICT JUDGE 21 22 23] © Given the Court’s approach, which focuses specifically on joint authorship of the Session Composition, Armes’s expert musicologist declaration is of no relevance to this disposition. 24 Armes’s expert establishes no more and no less than that the musical content of the Session 25 || Composition is substantially the same as the musical content of the Commercial Release Composition. For the purpose of this Motion, this fact appears undisputed, (compare iPhone 26 Recording with Circles Commercial Release; SUF 20 (“Certain musical composition elements in the 7 Rough Mix were later incorporated into the final Circles Composition completed a year later.”)), and will be relevant only if Armes establishes joint authorship in the Session Composition, when it 28 || comes time to account for profits made from the derivative work (the Commercial Release Composition) as part of Armes’s accounting and constructive trust claims.