CHRISTINA A. SNYDER, District Judge.
On August 31, 2007, plaintiff Osama Ahmed Fahmy ("plaintiff") filed suit against defendants Jay-Z, (aka Shawn Carter) ("Jay-Z"), Timothy Mosley ("Mosley"), Kyambo Joshua, Rob Bourdon, Brad Delson, Mike Shinoda, Dave Farrell, Joseph Hahn, Chester Bennington, Big Bad Mr. Hahn Music, Chesterchaz Publishing, EMI Blackwood Music Inc., EMI Publishing Ltd., Kenji Kobayashi Music, Lil Lulu Publishing, Machine Shop Recordings LLC, Marcy Projects Productions II, MTV Networks Enterprises Inc., Nondisclosure Agreement Music, Paramount Home Entertainment Inc., Paramount Pictures Corporation, Radical Media, Rob Bourdon Music, Roc-A-Fella Records LLC, Timbaland Productions Inc., UMG Recordings Inc., Universal Music and Video Distribution Inc., and Warner Music Inc. (collectively "defendants"), alleging various claims of copyright infringement. The gravamen of plaintiff's claims is that defendants' song Big Pimpin' ("Big Pimpin'") infringes plaintiff's rights in the song Khosara, Khosara ("Khosara").
A trial in this matter is currently scheduled to begin on October 13, 2015. The Court held a hearing on September 16, 2015. Having carefully considered the parties' arguments, the Court finds and concludes as follows.
Plaintiff seeks to exclude the testimony of defendants' expert witness Jason King ("King") regarding the impact of various factors, including Khosara, to the commercial success of Big Pimpin' and other albums, films, and performances of Jay-Z. Pl.'s Mot. in Lim. No. 1. Plaintiff contends that King's conclusions are the product of unreliable methods and are not based on sufficient facts or data.
Under Federal Rule of Evidence 702, a trial judge acts as a "gatekeeper" to insure that expert testimony "is not only relevant, but reliable."
The Supreme Court in
In addition to evaluating an expert's reliability, a trial court must also determine whether an expert has "appropriate qualifications — i.e., some special knowledge, skill, experience, training or education."
King is an associate professor at the Clive Davis Institute of Recorded Music at New York University. Dkt. 561-1, Ex. A ("King Report"), at 6. As a professor at the Clive Davis Institute, King has helped to establish a curriculum focusing on the study of hip-hop music and the recording industry.
Defendants intend to present King's testimony regarding the various factors that have contributed to the commercial success of Jay-Z and his music, including Big Pimpin'. Opp. to Mot. in Lim. No. 1, at 3-4. In his expert report, King asserts that it is possible to deconstruct the factors that contributed to the success of a particular song or sound recording. King Report, at 12-13. Specifically, King reviews evidence of marketing campaigns, chart successes, and historical and journalistic discussions of a sound recording.
Applying this method to Big Pimpin', King identifies six factors that drove the success of the song and prioritizes them as either primary, secondary, or tertiary factors.
King then assigns a percentage range to each factor which he asserts represents his professional opinion of the extent to which the success of Big Pimpin' can be apportioned to that factor.
Finally, King applies this analysis to various other products, such as albums, movies, and performances in which Big Pimpin' was featured.
As a preliminary matter, the Court finds that King is qualified to testify regarding cultural and social factors that contribute to the success of musicians and their songs. The Court also finds that, King is qualified to engage in a comparative discussion of these factors, including a discussion of the relative influence of defendants' use of Khosara in comparison to other factors contributing to Big Pimpin's success. As explained above, King has extensive academic and professional credentials with regard to the music industry and the convergence of pop culture and hip-hop music. Furthermore, his research has focused on how artists label and brand themselves to appeal to commercial audiences, and he has specific knowledge about Jay-Z's career and music. Based on his experience and scholarship, King bears the necessary qualifications to engage in the type of comparative discussion set forth in his expert report.
Moreover, the Court finds that King's basic methodology for evaluating the relative importance of various factors to the success of Big Pimpin' may be considered by the jury. King's opinion is informed by a lengthy and detailed analysis of relevant sources such as chart successes, marketing materials, and journalistic and historical evidence of defendants' and Big Pimpin's success. And King's methodology stems from the apparently reasonable assumption that the success of a given work of music can best be understood within its cultural and historical context. Accordingly, the Court finds that King's qualitative analysis, which is based on his demonstrated expertise, may be helpful to the factfinder in determining the relative importance of Khosara to the success of Big Pimpin'.
Notwithstanding the foregoing, King's use of precise percentage ranges to quantify the importance of factors he deems relevant does not appear to be supported by any objective methods of reliable calculation. Applying the factors enumerated in
First, King has identified no means for testing his method of calculating percentage ranges. His report does not explain how numbers were calculated and when asked in his deposition whether someone could replicate his analysis, he responded: "I cannot speculate on that." Dkt. 561-1, Ex. B, ("King deposition"), at 176:19-23;
Second, King's method has not been peer-reviewed by any journal nor has he established that it is generally accepted in the relevant field. King himself was unable to identify other academics or experts who have attempted to quantify the factors he identifies, let alone with the specificity contained in his report.
Finally, with regard to the "rate of error" factor, King stated throughout his deposition that "while he was quite confident about the percentages," his methodology could not be evaluated on a strictly mathematical basis. King deposition, at 133:7-134:15;
Furthermore, the Court finds that King's use of percentages may mislead and confuse the jury. Defendants assert that King's use of percentages is merely intended to illustrate his analysis. Opp. to Pl.'s Mot. in Lim No. 1, at 2. However his expert report reads differently. For example, King's report states that Khosara could have "contributed at most to . . . between .004% and .03% of total concert revenues." King Report, at 59 (emphasis added). Rather than providing merely an estimate of Khosara's influence, as defendants suggest, King's opinion is phrased as an absolute ceiling on the amount of concert revenues that can reasonably be apportioned to Khosara. King's other apportionments are phrased similarly.
Additionally, given the complexity of apportioning profits in a copyright infringement case, it may be misleading to present the jury with numbers as remarkably precise as those in King's report.
Accordingly, defendants may present King's testimony regarding the factors that contribute to the success of musicians and their music, as well as the relative importance of these factors. However, King may not testify regarding the percentage values by which he quantifies these factors. In accordance with the foregoing, plaintiff's motion is GRANTED in part and DENIED in part.
Plaintiff also seeks to preclude King from testifying in rebuttal against Plaintiff's experts Rubin, Finell, and Kamins. Pl.'s Mot. in Lim. No. 1, at 2. Plaintiff argues that King is not qualified to critique the methodologies and qualifications of these witnesses.
As a preliminary matter, the Court has granted defendant's motion to exclude the testimony of Rubin. Accordingly, plaintiff's motion is moot to the extent it seeks to exclude rebuttal regarding Rubin's testimony.
Next, plaintiff argues that King is not qualified to critique Finell's opinions because he is not a musicologist.
Similarly, plaintiff contends that King is not qualified to critique Kamins' use of consumer surveys. Pl.'s Mot. in Lim. No. 1, at 12. Plaintiff argues that King has never conducted a consumer survey and has no specialized knowledge on consumer surveys.
In accordance with the foregoing, plaintiff's motion to exclude King's rebuttal testimony is DENIED.
Plaintiff seeks to exclude certain testimony of defendants' expert witness, Lawrence Ferrara ("Ferrara") on the grounds that the testimony relies on evidence that was not timely disclosed. Pl.'s Mot. in Lim. No. 2, at 1. Specifically, plaintiff seeks to exclude testimony regarding three pieces of alleged prior art that plaintiff asserts were first disclosed during the final minutes of Ferrara's deposition.
Pursuant to Federal Rule of Civil Procedure 26(a)(2)(B), an expert witness who intends to testify at trial must provide a written report to the other parties summarizing their expected trial testimony. This report must contain, among other information, (1) "a complete statement of all opinions the witnesses will express and the basis and reasons for them" and (2) "the facts or data considered by the witness in forming them." Fed. R. Civ. P. 26(a)(2)(B)(i)-(ii). "If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence . . . at trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). Nonetheless, Rule 26(a)(2)(B) "does not limit an expert's testimony simply to reading his report[.] The rule contemplates that the expert will supplement, elaborate upon, and explain his report in his oral testimony."
Plaintiff contends that Dr. Ferrara will testify that elements of Khosara that are featured in Big Pimpin' were already in use prior to when Khosara was composed. Pl.'s Mot. in Lim. No. 2, at 1. In his expert report, Ferrara identified three pieces of prior art on which he based his opinion.
The Court finds that plaintiff has not presented a persuasive reason to preclude Ferrara from testifying regarding the new prior art. First, plaintiff does not deny that he was generally aware that Ferrara intended to testify regarding the existence of prior art and similarities between this prior art and Khosara. Moreover, at a minimum the new prior art was disclosed through Ferrara's deposition.
Moreover, plaintiff's counsel has not indicated why they are unable to depose Ferrara at this time regarding the new prior art. And, they have not sufficiently explained why they were unable to question Ferrara regarding his analysis of prior art during his deposition. Plaintiff contends that Ferrara waited until the "last few minutes of his deposition" to disclose the new prior art and therefore plaintiff's counsel was unable to question him regarding this "belatedly" disclosed evidence. Pl.'s Mot. in Lim. No. 2, at 3. However, while plaintiff suggests that this was a deliberate tactic by Ferrara to avoid questioning, the transcript of Ferrara's deposition shows that he disclosed this information in response to specific questions from plaintiff's counsel.
Accordingly, because the Court finds that Ferrara's reliance on the new prior art was disclosed to plaintiff and that plaintiff has failed to sufficiently establish that he has been prejudiced by any alleged delay in disclosing this evidence, plaintiff's motion is DENIED.
Plaintiff seeks to exclude the testimony of defendant's expert witness Niri Shanmuganathan ("Shan"). Pl.'s Mot. in Lim. No. 3. Shan is expected to testify as a rebuttal witness regarding the proper construction of a 1995 License agreement between Sout el Phan and EMI Arabia (the "1995 agreement"), one of the links in defendants' chain of title to Khosara.
First, the Court finds that a qualified expert may testify regarding the application of foreign law to the facts of a given case. While, pursuant to Federal Rule of Civil Procedure 44.1, determinations of foreign law are treated as questions of law, "[Rule 44.1] does not prohibit testimony about foreign law." Wright & Miller,
Second, the Court finds that Shan is qualified to testify regarding the application of English law to the 1995 agreement. According to Shan's testimony, the proper method for interpreting a contract under English law requires the fact finder to evaluate contract terms using "the natural and ordinary meaning of those words" and from the perspective of a person having all of the background knowledge that would reasonably have been available to the parties to the agreement. Pl.'s Mot. in Lim No. 3, at 1. Plaintiff argues that, first, a jury does not require an expert's assistance in evaluating the "natural and ordinary meaning" of contract terms and, second, Shan does not possess the relevant background knowledge of the parties to the 1995 agreement, who were all members of the Middle Eastern music business.
Accordingly, because the Court finds that Shan's testimony will assist the jury and because the Court finds that Shan is qualified to give his intended testimony, plaintiff's motion is DENIED.
Plaintiff seeks to preclude defendants from referencing conversations with, or reliance on, their attorneys in connection with asserting an "advice of counsel" defense. Pl.'s Mot. in Lim. No. 4. Plaintiff alleges that defendants willfully infringed his copyright in Khosara, therefore entitling him to damages for willful infringement. Id. at 1. Plaintiff believes that defendants may assert that they relied on the opinions of their attorneys that Big Pimpin' did not infringe Khosara as a defense to willful infringement.
As a general matter, if any defendant asserts that it relied on the advice of its attorneys and that advice was made subject to an objection of attorney-client privilege, then that party may not rely on that advice as a defense to willful infringement.
However, as currently presented, plaintiff's motion is not sufficiently specific. Plaintiff fails to identify any specific legal advice that was withheld during discovery; rather, plaintiff states broadly that the attorney-client privilege was invoked throughout discovery to block the production of documents and testimony. Accordingly, the Court considers plaintiff's request to be overbroad and therefore his motion is DENIED without prejudice to raising specific objections at trial.
Plaintiff contends that defendants did not disclose several witnesses and exhibits during discovery. Plaintiff argues that the late disclosure of these witnesses and exhibits should preclude defendants from offering them at trial. The Court will address each of these disputes in turn.
On May 25, 2015, Magistrate Judge Patrick Walsh ordered all defendants, other than defendant Jay-Z, to provide updated and more extensive financial disclosures. Dkt. 539. Magistrate Judge Walsh's order resolved an ongoing discovery dispute between the parties regarding allegedly inadequate responses to interrogatories pertaining to defendants' revenues and profits.
Defendants complied with this order on June 19, 2015 and June 22, 2015. Opp. to Defs.' Mot. in Lim No.5, at 2. Witnesses Odle, Sawaya, Schwartz, and Schoenrock's testimony relates solely to verifying the supplemental financial information produced in response to Magistrate Judge Walsh's order.
Plaintiff's motion is DENIED as to these witnesses because (1) he has not identified any specific prejudice he will suffer from testimony regarding the authenticity of financial documents, and (2) the testimony of these witnesses was only made necessary by virtue of a discovery dispute to which plaintiff was equally a party.
On November 26, 2014, both witnesses Emmons and Seckendorf were identified to plaintiff's counsel.
On May 20, 2013, defendants identified Julie Horwitz ("Horwitz") as a representative for defendant MTV.
Witness Dhamodiwala merely intends to testify to authenticate various books and records obtained from non-party EMI Arabia. Opp. to Pl.'s Mot. in Lim. No. 5, at 4. Dhamodiwala has previously authenticated similar documents in connection with plaintiff's February 2, 2015 motion for summary judgment.
Defendant's obtained exhibit 209 from non-party EMI Arabia on June 18, 2015. Dkt. 605-1, at 5. Defendants' counsel had not seen this document prior to June 18, 2015 and it was produced to plaintiff's counsel that same day.
Exhibits 387, 393, and 395 through 397 are all publicly available documents, the subject or existence of which plaintiff has been aware for at least several months. Exhibit 387 is an academic work reviewed by defendants' English law expert, Shan.
Exhibits 398 and 399 are amendments to agreements between defendants concerning the accounting of revenues from Collision Course and Fade to Black. Opp. to Pl.'s Mot. in Lim. No. 5, at 5. Defendants intend to offer these exhibits to provide further support for the testimony of their financial witnesses and to ensure that any accounting of revenues at trial is accurate.
Accordingly, plaintiff's motion to exclude these exhibits is DENIED.
Plaintiff seeks to pre-admit exhibits 271 through 283. Pl.s' Mot. in Lim. No. 6, at 1. These exhibits are documents produced by defendants, regarding digital downloads of Big Pimpin' and the revenues of each defendant deriving from Big Pimpin'.
Local Rule 16-6 establishes the procedure for admitting and objecting to exhibits before trial. Pursuant to this rule, the parties must meet and confer concerning the exhibits to be presented at trial and then jointly file a list of exhibits.
Nonetheless, it appears that defendants do not object to the authenticity of these exhibits and acknowledge that they may be relevant should plaintiff establish that he is entitled to damages. In the interest of saving time, it would be helpful to the Court if the parties could stipulate to the admissibility of exhibits to which there is no objection.
Defendants request an order precluding plaintiff from presenting evidence or argument regarding two issues of foreign law: (1) the applicability of "moral rights" under Egyptian copyright law to this action and (2) evidence that a transferable right of adaptation does not exist under Egyptian copyright law. Defs.' Mot. in Lim. No. 1, at 1. Defendants argue that plaintiff should be precluded from offering evidence regarding these issues because this Court has already addressed these issues and determined that a claim for violations of plaintiff's "moral rights" does not arise in this action and that Egyptian law recognizes a transferable right of adaptation.
In an order dated May 2, 2011, the Court found that "a transferable adaptation right exists" under Egyptian law. Dkt. 271, at 15. Moreover, the Court found that to the extent plaintiff "requests that the Court determine whether defendants' use of Khosara, Khosara violated plaintiff's moral rights in the work by making changes that might be considered `mutilation or distortion' of the original work, the Court agrees with defendants that the claim does not arise under U.S. copyright law, except to the extent that it is a reformulation of the question of whether defendants acted outside of the scope of the relevant licenses. To the extent plaintiffs argue that defendants acted outside of those licenses, the Court, as discussed herein, finds that this issue raises there is [sic] a triable question of fact."
To the extent defendants argue that plaintiff should be precluded from introducing evidence or argument intended to re-litigate the applicability of "moral rights" in this action or the existence of transferable adaptation rights under Egyptian law, the Court agrees with defendants that these issues have already been resolved and that plaintiff may not submit evidence which contradicts the Court's rulings. The Court has previously declined to revisit these rulings, Dkt. 509, at 9 n.6, and it similarly declines to revisit them here.
Nonetheless, to the extent defendants argue that all evidence regarding adaptation or moral rights under Egyptian law is precluded in this action, defendants overstate the Court's prior ruling. Indeed, the Court expressly stated that evidence concerning moral rights could raise a question under U.S. copyright law regarding "whether defendants acted outside of the scope of the relevant licenses." Dkt. 271, at 15-16 n.8.
Defendants have asserted a license defense in this action, claiming that because they held a license to use portions of Khosara in Big Pimpin' they may not be found liable for copyright infringement. Dkt. 532, at 20-21. Plaintiff disputes this claim and contends that the underlying agreement in which plaintiff initially transferred rights in Khosara did not include the right to use Khosara in Big Pimpin'. Dkt. 531, at 3-4. Plaintiff argues that this initial agreement, which forms the first link in the chain of title of defendants' purported license, either incorporated elements of Egyptian law or was negotiated "against the backdrop of Egyptian Copyright law." Pl.'s Opp. to Defs.' Mot. in Lim. No.1, at 3-5. Accordingly, plaintiff argues that evidence relating to Egyptian law is relevant to define the scope of defendants' claimed license.
The Court agrees with plaintiff. While the Court's prior rulings preclude plaintiff from presenting the argument that defendants violated his moral rights in Khosara or that Egyptian law does not recognize a transferable right of adaptation, a wholesale exclusion of evidence regarding these issues would ignore the potential relevance of Egyptian copyright law in defining the scope of defendants' license defense.
Defendant seeks an order precluding plaintiff from presenting any argument or evidence that defendants willfully infringed Khosara prior to June 1, 2006. Defs.' Mot. in Lim. No. 2. Defendants argue that the Court has previously: (1) ruled that plaintiff is barred by the statute of limitations from asserting claims for infringement, willful or otherwise, which accrued prior to August 31, 2004, and (2) granted summary judgment in favor of defendants that any infringement which may have occurred between March 30, 2001 and June 1, 2006 (the "settlement period") could not have been willful because during this period defendants' were subject to a license agreement (the "settlement agreement") with EMI Music Arabia ("EMI Arabia") which gave them, at a minimum, "colorable title" to use Khosara.
Plaintiff opposes this motion by arguing that evidence prior to June 1, 2006 is relevant to prove defendants intent after June 1, 2006 (the "post-settlement period"), when the settlement agreement allegedly expired. Opp. to Defs.' Mot. in Lim. No. 2, at 1-2. Specifically, plaintiff argues that this evidence will show that defendants did not rely on the settlement agreement when they used Khosara during the post-settlement period.
In an order dated August 12, 2013, the Court found that "the settlement with EMI [Arabia] gave defendants colorable title to produce Big Pimpin' and derivative works created using Big Pimpin', and under those circumstances, there is no willful infringement." Dkt. 380, at 16
Plaintiff argues that he was not permitted to depose defendants until after the hearing on these issues and therefore could not contest defendants argument that any infringement of Khosara during the settlement period was not willful. Opp. to Defs.' Mot. in Lim. No. 2, at 4. However, recent deposition testimony from defendants, plaintiff contends, indicates that many defendants either had little to no knowledge of the settlement agreement or failed to sufficiently inquire regarding the existence of a license to use Khosara.
However, plaintiff cites no authority for the proposition that defendants had an affirmative duty to investigate the existence of a license agreement covering Khosara. And, it remains undisputed that defendant Mosley was a party to the settlement agreement and thus, at a minimum, possessed colorable title.
Nonetheless, the Court has never ruled that defendants' infringement after the settlement period could not be willful. Plaintiff alleges that the settlement agreement expired on June 1, 2006.
In accordance with the foregoing, defendants' motion is DENIED.
Defendants request an order precluding evidence of plaintiff's ownership of a copyright in Khosara based upon sound recordings of Khosara. Defs.' Mot. in Lim. No. 3. Plaintiff intends to present evidence at trial regarding two sound recordings of Khosara: (1) a 1960 recording of Khosara performed by the Egyptian singer, Abdul Halim Hafez ("Hafez"); and (2) a 1992 recording of Khosara that appeared on a CD entitled "Best of Abdul Halim Hafiz" (the "1992 recording") (collectively "the sound recordings").
Plaintiff contends that he may proffer expert testimony regarding similarities between the sound recordings and Big Pimpin' as evidence of defendants infringement because, even if he does not own a copyright in the sound recordings, the sound recordings are purportedly illustrative of plaintiff's copyright in the written composition of Khosara. Opp. to Defs.' Mot. in Lim. No. 3, at 1. Nonetheless, the case law is legion that when a comparison is made for purposes of ascertaining whether there has been infringement of a copyright in a written composition, the factfinder may only compare those musical elements which are actually protected, which in most cases will be the sheet music of the written composition.
Plaintiff responds that this Court has already ruled that plaintiff owns a copyright in the musical composition underlying the sound recordings and that, in any event, defendants have previously admitted that plaintiff owns the musical composition underlying the sound recordings. Opp. to Defs.' Mot. in Lim. No. 3, at 1. On September 20, 2010, plaintiff brought a motion for partial summary judgment regarding certain material facts he contended were without substantial controversy in this action. Dkt. 227. Among those facts submitted for summary adjudication was that "Baligh Hamdy was the author of the Khosara, Khosara musical composition."
Plaintiff's argument is unavailing. First, while plaintiff is correct that defendants have previously stated that certain facts regarding Hamdy's ownership of the Khosara composition were "undisputed," defendants' admissions were made only conditionally. In noting that various facts were undisputed, defendants added a footnote stating that "for purposes of this motion, Defendants assume to be true this and certain other facts alleged by Plaintiff." Dkt. 243-1, at 1 n.1 (emphasis added). Accordingly, defendants cannot appropriately be said to have admitted these facts for all purposes in their response to plaintiff's motion for partial summary judgment. Furthermore, as the issue was previously presented in plaintiff's motion for summary judgment, the parties did not address whether the sound recordings could be submitted as evidence of plaintiff's copyright in the written composition of Khosara. Moreover, to the extent the parties did address the relationship between the sound recordings and the Khosara written composition, they appear to have drawn a distinction between the sound recordings and the written composition in their papers. For example, in his reply plaintiff stated that "Hamdy's copyright in the Khosara musical composition and Sout El Phans's copyright interest in sound recordings are separately registered in Egypt." Dkt. 249, at 6 (emphasis added). Accordingly, the Court's prior rulings are best understood as finding that plaintiff, as Hamdy's successor, owns a copyright interest in the written composition of Khosara, but that the order has no bearing on whether plaintiff may submit the sound recordings as a reflection of that copyright.
Second, plaintiff argues that there is ample evidence that the sound recordings accurately represent plaintiff's copyright in Khosara. Opp. to Defs.' Daubert Mot. No. 4, at 3. Specifically, plaintiff identifies several iterations of the sound recordings in which Hamdy is listed as a composer.
Because plaintiff concedes that any copyright he holds in Khosara does not include the sound recordings, the relevance of this evidence is unclear. At best, the sound recordings are illustrative of plaintiff's copyright in the written composition of Khosara. Moreover, to the extent the sound recordings are illustrative of the musical composition that is the subject of plaintiff's copyright, defendants contend that there are multiple differences between the version of Khosara depicted in the sound recordings and the version depicted in the lead sheet. Daubert Mot. No. 4, at 3.
Presenting the sound recordings at trial carries a significant risk of confusing and misleading the jury. The parties do not dispute that at least the 1992 recording was used in Big Pimpin'. However, permitting plaintiff to use the exact
In accordance with the foregoing, defendants' motion is GRANTED.
Defendants seek to exclude evidence or argument regarding what plaintiff would or could have received for any license of Khosara as a measure of plaintiff's actual damages. Defendants argue that this evidence should be excluded because, throughout discovery, plaintiff has failed to produce any evidence demonstrating what would constitute a reasonable license fee for Khosara. Defs.' Mot. in Lim. No. 4, at 1. Plaintiff does not oppose defendants' motion.
The Court agrees that failure to produce any documents regarding the reasonable license fee for Khosara is an appropriate grounds for excluding this evidence pursuant to Federal Rules of Civil Procedure 26 and 37. Accordingly, the Court GRANTS defendants' motion.
Defendants seek to preclude plaintiff from introducing evidence of civil actions and other allegations of copying made against defendants. Defs.' Mot. in Lim. No. 5. Plaintiff argues that these prior allegations are relevant to show defendants' state of mind. Opp. to Mot. in Lim. No. 5, at 3. Specifically, plaintiff contends that this evidence is relevant to a finding that defendants were willful infringers because it shows that defendants were aware from past experience that music is subject to copyright protections.
Plaintiff's argument is unavailing. At most, the evidence plaintiff identifies is only minimally probative to establish defendants' willfulness. Moreover, this evidence has a substantial risk of prejudicing the jury. As defendants argue, this evidence may "paint the defendants as serial infringers" and "impugn their character." Defs.' Mot. in Lim. No. 5, at 3. And, evidence of these prior allegations will result in mini-trials regarding these alleged instances of unrelated copyright infringement. This will unduly delay these proceedings and may confuse the jury. Accordingly, pursuant to Federal Rule of Evidence 403, defendants' motion is GRANTED.
Defendants seek to preclude evidence of criminal convictions or other criminal conduct by any of the defendants. Defs.' Mot. in Lim. No. 6. Defendants argue that such evidence is irrelevant and poses a substantial risk of prejudicing the jury.
Federal Rule of Evidence 609(a)(2) provides that evidence of a criminal conviction "must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness's admitting — a dishonest act or false statement." However, if the conviction is more than ten years old, the court must engage in a rigid balancing test before evidence of the conviction may be admitted at trial. Fed. R. Evid. 609(b)(1).
Defendants' motion is denied primarily because it is overbroad and premature.
Nonetheless, the Court agrees with defendants that evidence of criminal convictions carries a significant risk of causing unfair prejudice. And as a general matter, evidence of criminal convictions bears no relevance to the underlying dispute in this action regarding copyright infringement. Therefore, the Court is not inclined to admit evidence of defendants' criminal convictions or history. However, as defendants have not identified any specific evidence to be excluded, the Court will reserve judgment until plaintiff attempts to present evidence of criminal convictions at trial. Accordingly, Defendants' motion is DENIED without prejudice to making specific objections at trial.
Defendants seek to exclude evidence relating to their wealth and financial resources. Defs.' Mot. in Lim. No. 7. Defendants argue that this evidence is unduly prejudicial and may bias the jury to artificially inflate the size of any potential damage award.
Plaintiff's argument is unavailing. First, defendants do not contest that they had sufficient resources to investigate the ownership of Khosara. Defs.' Mot. in Lim. No. 7, at 2. And, plaintiff has provided no authority for the proposition that defendants had an affirmative duty to investigate the ownership of Khosara. Thus, at most, this evidence is only minimally relevant to the issue of willfulness. Second, even if this evidence is minimally relevant, the Court agrees with defendants that evidence of their financial resources will unduly prejudice the jury and could result in an outsized award of damages.
Notwithstanding the foregoing, the Court recognizes that plaintiff is seeking an award of defendants' "wrongful profits." Opp. to Mot. in Lim. No. 7, at 4. "In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the element of profit attributable to factors other than the copyrighted work." 17 U.S.C. § 504(b). Therefore, evidence of defendants' financial condition may be necessary to accurately determine their profits deriving from Big Pimpin' and Khosara. Accordingly, evidence of Defendants' financial resources may be admissible for this purpose alone.
Defendants seek to exclude evidence of concert reviews, books, and similar evidence discussing Jay-Z concerts and live performances. Defs' Mot. in Lim No. 8. Defendants argue that this evidence should be excluded because it is hearsay and may unduly prejudice the jury.
While this evidence may be probative for the purpose plaintiff identifies, it is only minimally so. First, these articles and reports contain only the subjective impressions of their authors based on their own experiences attending Jay-Z concerts. See Defs.' Mot. in Lim. No. 8, at 3. They provide no evidence regarding how this evidence may have impacted other concert goers to attend Jay-Z performances or whether the concerts described were representative of Jay-Z performances.
Accordingly, because this evidence poses a greater potential for confusion that probative value, defendants' motion is GRANTED.
Defendants seek an order precluding plaintiff from presenting evidence of Jay-Z's revenue deriving from merchandise sales. Plaintiff alleges that he is entitled to a portion of defendants' revenue derived from sales of merchandise at Jay-Z concerts where Big Pimpin' was played. Defendants argue that this claim is merely speculative and that plaintiff has failed to demonstrate a "causal nexus" between defendants' alleged infringement and merchandise revenue. Accordingly, defendants argue that pursuant to Federal Rules of Evidence 401 and 402, this evidence should be excluded as irrelevant.
However, the Court cannot conclude at this juncture, before any evidence has been presented at trial, that plaintiff will not be able to demonstrate that he is entitled to a portion of defendants' merchandise revenue or that this evidence is relevant. Furthermore, the Court has previously determined that the relationship between Big Pimpin' and defendants' concert revenues, which may include the sale of merchandise, presents a question of fact to be resolved at trial. Dkt. 309, at 15 ("[T]here are material questions of fact whether Jay-Z directly profited from performances of Big Pimpin'."). And, in the related case of
Defendants seek to exclude the testimony of plaintiff's expert witness Sam Rubin ("Rubin"). Daubert Mot. No. 1. Defendants argue that Rubin is not qualified to offer an expert opinion in this case and that his conclusions are not based on sufficient facts and data or a reliable methodology.
Rubin is an entertainment reporter for the Channel 5 morning news in Los Angeles. Dkt. 551-1, Ex. 2 ("Rubin Report"), at 1. He regularly provides televised reports on recent events in the entertainment business, including reports on recording artists.
Rubin is proffered to testify regarding: (1) whether any profits from Jay-Z's concerts and performance are attributable to Big Pimpin'; and (2) methods of trying to estimate the percentage of profits attributable to Big Pimpin'. Opp. to Daubert Mot. No. 1, at 1. In his expert report, Rubin concludes that "some profits from Jay-Z concerts are attributable to Big Pimpin'." Rubin Report, at 3. This conclusion is based on Rubin's opinion that, because Big Pimpin' was a major Jay-Z hit, and because consumers attend concerts to hear musicians perform their hits, at least some consumers likely purchased tickets to Jay-Z concerts out of a desire to hear Big Pimpin'.
Federal Rule of Evidence 702 provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Fed. R. Evid. 702. The district court must "ensure that the proposed expert testimony is relevant and will serve to aid the trier of fact . . . Expert testimony assists the trier of fact when it provides information beyond the common knowledge of the trier of fact."
The Court finds that the proposed testimony of Rubin does not meet this standard. Regarding Rubin's testimony that Big Pimpin' contributed to "some" of defendants' revenue from Jay-Z concerts, Rubin's underlying conclusions are not "expert" opinions. Rather, Rubin's conclusions are based on his personal experiences attending concerts, an experience millions of members of the public and likely many members of the jury share. While personal observation and experience may form the basis of an expert's opinion, they must ultimately result in a specialized opinion; generalized statements regarding Rubin's observations as a concert-attendee lack the necessary substance to be helpful to a jury.
Furthermore, Rubin does not adequately support his opinions regarding methods for apportioning concert revenues. While Rubin states generally that factors such as Big Pimpin's mainstream popularity might support attributing a greater percentage of defendants' concert revenues to Big Pimpin', he does not state in his expert report that he considered these factors or how those factors might function in connection with his 15 percent valuation. Rather, Rubin provides only his conclusory statement that "it would be reasonable to attribute at least 15 percent of the revenue from a show to Big Pimpin'." Expert opinions must be based on sufficient facts and data and must apply reliable methods. Fed. R. Evid. 702. Here, Rubin's opinion appears to be based primarily on speculative conclusions and lacks the factual basis required for expert testimony.
Accordingly, because Rubin's testimony does not meet the requirements set forth in Federal Rule of Evidence 702, the Court GRANTS defendants' motion.
Defendants seek an order excluding the testimony of plaintiff's expert Michael Kamins ("Kamins") and the consumer survey on which his testimony is based. Daubert Mot. No. 2. Defendants' chief criticism of Kamins' testimony is that the consumer survey that he conducted and on which he relies is unreliable.
Kamins is a professor and researcher in the fields of marketing and business. Opp. to Daubert Mot. No. 2, at 1-2. He has a background in statistics and has published articles on marketing, and in particular survey methodology.
The Ninth Circuit has held that under
First, defendants argue that the survey results are not "relevant" to this case because the questions Kamins asked respondents have no bearing on whether a causal nexus exists between Jay-Z concert revenues and Big Pimpin'. Daubert Mot. No. 2, at 7. However, the survey asked respondents whether they would be "less likely" to attend a Jay-Z concert had they known Big Pimpin' would not be performed. Opp. to Daubert Mot. No. 2, at 2-3. Defendants contend that this question is irrelevant because it does not directly ask respondents why they decided to attend a Jay-Z concert. Daubert Mot. No. 2, at 7. However, the fact that a respondent would have been less likely to attend a Jay-Z concert had they known that Big Pimpin' would not be performed is at least relevant to establish that Big Pimpin' was a motivating factor for some consumers to purchase concert tickets. Defendants also argue that Kamins' intends to offer testimony apportioning defendant's concert revenues to consumers' desire to see a performance of Big Pimpin' and that this analysis relies on data not present in Kamins' survey. Reply in Support of Daubert Mot. No. 2, at 7-8. Nonetheless, while any opinion Kamins' provides as to the precise impact of Big Pimpin' on defendants' concert revenues must be derived from his survey data, as the Court understands plaintiff's position he does not intend to proffer any testimony from Kamin's regarding apportionment of defendants' concert revenues that is not supported by the survey.
Second, defendants argue that Kamins' survey should be excluded because it was not "conducted according to accepted principles." Daubert Mot. No. 2, at 5. Specifically, defendants argue that the song list selected by Kamins was designed to exclude Jay-Z's hit songs other than Big Pimpin.'
However, while defendants may raise valid criticisms of Kamins' survey, generally, "[c]hallenges to survey methodology go to the weight given the survey, not its admissibility."
Finally, defendants argue that Kamins should be excluded because he is not qualified to make the inferences he draws from his survey. Dauber Mot. No. 2, at 10-13. Kamins' survey did not directly ask respondents why they attend concerts.
Accordingly, because the Court finds that Kamins' survey is based on sufficiently reliable methodology and that Kamins bears the necessary qualifications to offer his intended testimony, defendants' motion is DENIED.
Defendants seek to exclude testimony relating to concert revenues from plaintiff's expert Patrick Kennedy ("Kennedy"). Daubert Mot. No. 3. Defendants argue that this portion of Kennedy's testimony is based on the apportionment analyses of plaintiff's expert witnesses Rubin and Kamins, whom defendants have separately filed motions to exclude at trial.
Kennedy is an expert economist. Opp. to Daubert Mot. No. 3, at 1. At trial he will testify regarding his analysis of various financial documents produced during discovery which track the revenue and profits of defendants.
As a preliminary matter, while the Court has found that Rubin's testimony should be excluded, it has denied defendants' motion to exclude the testimony of Kamins. Therefore, Kennedy may properly testify regarding Kamins' conclusions. Moreover, Kennedy does not intend to testify regarding the apportionment values identified by Kamins and Rubin in their expert reports. Rather, his testimony will be based on the apportionment values actually in evidence at trial. Accordingly, his testimony regarding concert revenues may change depending on the testimony elicited from other expert witnesses, including defendants' experts such as King and Ferrara, and it will be based on testimony deemed admissible by the Court. As defendants do not object to Kennedy's qualifications or his ability to apply apportionment values to defendants' concert revenues, the Court finds that there is not a persuasive reason to exclude this testimony. Therefore, while Kennedy may not testify regarding testimony the Court has excluded as unreliable, he may testify regarding the apportionment values produced at trial and their application to defendants' concert revenues.
For the foregoing reasons, defendants' motion is DENIED.
Defendants seek to exclude or limit the testimony of Plaintiff's expert Judith Finell ("Finell"). Defs.' Daubert Mot. No. 4. Finell is a musicologist who intends to testify regarding similarities between Big Pimpin' and Khosara.
Defendants argue that, because plaintiff does not claim to own any copyright in the sound recordings, Finell's testimony regarding similarities between Big Pimpin' and the sound recordings is irrelevant, likely to confuse the jury, and based on unsupported factual assumptions (i.e. that the sound recordings accurately represent the scope of plaintiff's copyright). Daubert Mot. No. 4, at 1. Therefore dependants contend that Finell's testimony should either be excluded or limited solely to a comparison of the lead sheet and the Big Pimpin' sound recording.
As stated above, the Courts finds that plaintiff may not introduce either of the sound recordings as evidence of the scope of his copyright in the written composition of Khosara. To the extent Finell's testimony relies on a comparison of Big Pimpin' and the sound recordings, on which plaintiff admits he does not own a copyright, her testimony carries the same risk of misleading and confusing the jury as presenting the sound recordings themselves. Moreover, to the extent any of the musical elements in the sound recordings are not present in the written composition of Khosara, on which plaintiff may hold a copyright, Finell's conclusion that the sound recordings and Big Pimpin' contain substantial similarities is irrelevant to a finding of infringement.
Nonetheless, because plaintiff contends that he owns a copyright in the written composition of Khosara, Finell may still offer testimony regarding similarities between the written composition of Khosara and Big Pimpin'. For example, Finell could testify regarding a comparison of the copyrighted composition and a recording of Big Pimpin'. Accordingly, defendants' motion to limit the testimony of Finell to only similarities found between Big Pimpin' and the written composition of Khosara is GRANTED. To the extent, based on this ruling, it is necessary for plaintiff to supplement Finell's expert report, plaintiff may request additional time to do so and defendants may request the opportunity to depose Finell regarding any additions to her testimony or expert report.
Defendants seek to exclude the testimony of plaintiff's expert Scott Marcus ("Marcus"). Daubert Mot. No. 5. Defendants challenge Marcus' qualifications, the relevance of his opinions, and his reliance on the sound recordings.
Marcus will testify as a musicologist on behalf of plaintiff. Opp. to Daubert Mot. No. 5, at 1. Marcus is an expert on Egyptian music and has a PhD in ethnomusicology.
First, defendants argue that Marcus should be excluded because his testimony focuses primarily on the fame or popularity of Khosara, Hamdy, and Hafez in Egypt. Daubert Mot. No.5, at 1. Defendants argue that these topics are irrelevant to the instant dispute.
Second, defendants argue that because Marcus has no experience with hip-hop or other contemporary music, he is not qualified to testify regarding the musical significance of Khosara to Big Pimpin'. Daubert Mot. No. 5, at 8. However, Marcus' testimony is not based on knowledge of hip-hop music. Opp. to Daubert Mot. No. 5, at 6-7. Rather, he applies his expertise as a musicologist and his knowledge of music generally.
Finally, defendants contend that Marcus' analysis comparing Khosara and Big Pimpin' is based upon a consideration of the sound recordings. As stated above, the Court finds that plaintiff may not introduce either of the sound recordings as evidence of the scope of his copyright in the written composition of Khosara. Accordingly, to the extent Marcus' testimony regarding similarities between Big Pimpin' and Khosara relies on the sound recordings, plaintiff may not offer that testimony at trial. Nonetheless, Marcus may still testify regarding similarities between the written composition of Khosara and Big Pimpin'.
In accordance with the foregoing, defendants' motion is GRANTED in part and DENIED in part. To the extent, based on this ruling, it is necessary for plaintiff to supplement Marcus' expert report, plaintiff may request additional time to do so and defendants may request the opportunity to depose Marcus regarding any additions to his testimony or expert report.
Defendants move the Court for an order, pursuant to Federal Rule of Civil Procedure 42(b), bifurcating the trial. Defendants argue that the trial should be bifurcated on two grounds: (1) to resolve issues of foreign law before reaching the other issues in this case; and (2) to bifurcate the liability and damages phases of the trial.
Federal Rule of Civil Procedure 42(b) permits a court to order separate trials of one or more issues for "convenience, to avoid prejudice, or to expedite and economize." "Whether to bifurcate is a decision reserved to the trial court's sound discretion.'"
Defendants request that the Court resolve certain issues of foreign law at the outset of the trial. Dkt. 532, at 32. Specifically, defendants argue that in a 2002 agreement (the "2002 agreement") governed by Egyptian law, plaintiff may have assigned all of his rights in Khosara to a third party not present in this litigation. Dkt. 568, at 1. Defendants contend that, before the parties proceed to trial, the Court should determine whether the 2002 agreement effectuated a complete transfer of plaintiff's rights in Khosara, therefore denying plaintiff standing to bring the instant suit.
The Court has previously addressed the impact of the 2002 agreement on plaintiff's standing. In an order dated May 27, 2015, the Court found that, while "the 2002 Agreement contains some language that could support a conclusion that plaintiff transferred all of his economic rights in Khosara, Khosara . . . the Court finds the contract to be ambiguous on this point, and not properly adjudicated as a matter of law on the current record." Dkt. 509, at 7. In addition, the Court noted that neither party had presented expert testimony regarding the meaning of the 2002 agreement under Egyptian law.
Defendants now contend that both parties have conducted discovery regarding the proper interpretation of the 2002 agreement. Dkt. 568, at 3. Specifically, the parties have designated experts on Egyptian law and deposed these experts.
The Court disagrees. While discovery may have provided additional evidence from which to interpret the 2002 agreement, genuine issues of material fact still remain. For example, under Egyptian law, a transfer of economic rights must "contain an explicit and detailed indication of each right to be transferred with the extent and purpose of the transfer." Egyptian Law No. 82 of 2002. The Court has previously found that the 2002 agreement is ambiguous with regard to this requirement of Egyptian law because it does not explicitly assign the right to modify or adapt Khosara. Dkt. 509, at 7. Defendants argue that based on the opinion of their expert, when a copyright holder seeks to transfer all of his economic rights, a comprehensive list of the specific economic rights transferred is unnecessary. Dkt. 568, at 9. Nonetheless, the 2002 agreement does expressly identify some rights while, notably, not clearly authorizing a transfer of the right to modify or adapt Khosara.
Accordingly, because there are still genuine issues of material fact regarding the scope of the 2002 agreement, the Court declines to address the issue of plaintiff's standing at this juncture, and DENIES defendants' request to bifurcate to resolve issues of foreign law first.
Defendants also seek to bifurcate the liability and damages portions of the trial. Dkt. 532, at 29. Bifurcating a trial "into a liability and damages phase may be appropriate where doing so would be economical and efficient, and where there is little overlap in the evidence that would be presented at each phase."
The Court finds that bifurcating the liability and damages phases of the trial is appropriate in this case. First, the liability and damages portions of the trial involve separate and distinct issues. The liability portion of the trial centers on whether defendants infringed a copyright owned by plaintiff.
Furthermore, bifurcating the trial may conserve judicial resources because the liability portion of the trial may obviate the need for a trial on damages. The damages portion of the trial will require the parties to present extensive financial information as well as numerous witnesses to authenticate and interpret this information. Dkt. 532 at 30-31. In addition, multiple experts will testify regarding the connection between Big Pimpin' and defendants' profits and regarding the complex question of apportioning the contribution of Khosara to defendants' profits.
Accordingly, because the issues of damages and liability may readily be separated in this case and because resolving the issue of liability first may promote judicial economy, the Court GRANTS defendants' request to bifurcate the liability and damages portions of the trial.
IT IS SO ORDERED.
