K. Perry Granted Judgment as a Matter of Law in “Dark Horse” Copyright Infringement Suit

Gray; et al. v. Perry; et al., No. 2:15-cv-05642-CAS-JCx, 2020 WL 1275221 (C.D. Cal. Mar. 16, 2020)

The U.S. District Court for the Central District of California granted a renewed motion for judgment as a matter of law filed by Katy Perry, Juicy J, and others involved in producing Perry’s song “Dark Horse” (“Defendants”) after a jury returned a verdict in favor of Plaintiffs in August 2019. The trial focused on Plaintiffs’ claims that Perry’s song “Dark Horse” infringed an 8-note ostinato in their song “Joyful Noise.” Applying the 9th Circuit’s “extrinsic test,” the court held that it could not conclude as a matter of law that the “allegedly original individual elements” of the ostinato in question were independently protectable. Additionally, the court held that the 8-note ostinato from “Joyful Noise” is not a sufficiently original combination of those individually unprotectable elements and thus the Plaintiffs failed to satisfy the “extrinsic test.” Furthermore, the court determined that even if the ostinato combination were protectable, under the Led Zeppelin case recently decided by the 9th Circuit, to find infringement the allegedly infringing ostinato in “Dark Horse” and the 8-note ostinato from “Joyful Noise” would have to be “virtually identical,” which the court found they were not. As a result, the court concluded that the Defendants were entitled to judgment as a matter of law on the copyright infringement claim.

Judge Overturns ‘Jersey Boys’ Verdict; Jury Came to Wrong Conclusion

Corbello v. DeVito et al., No. 2:08-cv-00867 (D. Nev. June 13, 2017)

U.S. District Judge Robert Jones overturned a verdict that the creators of “Jersey Boys,” had improperly used material from an unpublished autobiography of Tommy DeVitto. In November, the jury found for Donna Corbello, widow of Rex Woodard who was the ghostwriter of DeVitto’s autobiography. After the jury found that the show’s writers infringed on the copyrighted material, the defendants filed a motion for a new trail. Judge Jones determined the show’s content constituted fair use of the book. He stated that the jury could have found 145 creative words to have been copied from the book into the show. He determined those 145 words to constitute about 0.2 percent of the 68,500 words in the book. Back in November, the jury concluded that 10 percent of the play’s success was credited to the book, which Judge Jones called “unsupportable.” While comparing the book to the play was a difficult job, the jury also had to deal with 40 pages of instructions, which may have caused them to come to an improper conclusion.

Judge Dismisses Jersey Boys Suit Against Frankie Valli After Trial

Corbello v. DeVito, 08-cv-867 (D. Nev. Nov. 17, 2016).

The widow of a ghostwriter who had been engaged by a member of the Four Seasons to write an autobiography (the work), lost her copyright infringement case against Frankie Valli alleging that he and the other members of the band wrongfully misappropriated the work in making the hit musical "Jersey Boys."  The evidence at trial was un-rebutted that neither Valli nor band-mate Bob Gaudio ever saw the work until their depositions.  The Court further found that all claims for willful infringement failed as a matter of law.

Motion For Judgment As Matter Of Law, Or For New Trial, Denied In Beastie Boys/Monster Case

Beastie Boys v. Monster Energy, 1:12-cv-06065-PAE (SDNY filed 12/04/14) [Doc. 181].

After a jury awarded plaintiff Beastie Boys a verdict on their copyright and trademark claims, defendant Monster moved for a judgment as a matter of law under Federal Rule of Civil Procedure 50.  As to the Copyright Act claim, Monster argued that the evidence was insufficient to support the finding of willful infringement on which the award of enhanced statutory damages was based.  As to the Lanham Act claim, Monster argued that the evidence was insufficient to support either a finding of a false endorsement or that
Monster acted with intentional deception.  Monster alternatively moved for a new trial under
Rule 59 or for a reduction in damages.   The court denied Monster’s motions.

Punitive Damages Verdict Significantly Reduced; Defendant Granted Judgment Notwithstanding Verdict On Cover Art And DMCA "Red Flag" Theories

Capitol Records, Inc. v. MP3Tunes, No. 07-cv-9931 (S.D.N.Y. filed Sep. 29, 2014) [Doc. 629].

Defendant moved for judgment as a matter of law, or alternatively a new trial, and for remittur following a $48,061,073 jury verdict in favor of plaintiffs, who consisted of record labels and publishers who had filed copyright and unfair competition claims alleging that defendant and MP3Tunes made infringing copies of copyright songs and cover art.  The motion was denied in part, and granted in part.  Specifically, defendant's motion for judgment as a matter of law was granted as to plaintiffs' claims of (1) public display rights in cover art, and (2) copyright infringement under "red flag" knowledge and willful blindness theories (except for certain works sideloaded and which the source domain's URL was obviously infringing and viewed by a company executive).  Further, defendant's motion for a new trial on punitive damages was granted unless plaintiffs elected to remit the jury's punitive damage award to $750,000.

Mtn. for Judgment and New Trial Denied

Malmsteen v. Berdon LLP, No. 05 Civ. 00958, 1/28/09 N.Y.L.J. Decision of Interest (S.D.N.Y. decided Jan. 20, 2009).

Plaintiff Yngwie Malmsteen ("plaintiff") asserted claims against defendants Berdon, LLP ("Berdon"), Michael Mitnick, James Lewis and James Lewis Entertainment ("JLE") for, inter alia, breach of contract and breach of fiduciary duty. Plaintiff is a professional musician who employed defendant Lewis as his personal manager and defendant Mitnick as his business manager in the 1990s and until early 2000. Plaintiff claimed that Lewis embezzled millions of dollars from him between approximately 1995 and 2000 and that defendants Mitnick and Berdon (collectively, "defendants") enabled Lewis to do so. Plaintiff alleged that defendants acted with fraudulent intent or, alternately, in violation of their contractual and fiduciary duties.

A trial was held in mid-2008. At the close of plaintiff's case, defendants moved for judgment as a matter of law under Rule 50(a) on all of plaintiff's claims. The Court granted the motion with respect to the fraud claim but allowed the breach of contract and breach of fiduciary duty claims to go forward. At the end of the trial, the jury returned a verdict for plaintiff on both of his claims. The special verdict form completed by the jury indicated that plaintiff was entitled to zero dollars on his breach of contract claim, $450,000 in damages on his breach of fiduciary duty claim, and zero dollars in punitive damages on the breach of fiduciary duty claim.

Defendants filed the instant motion seeking (i) judgment as a matter of law pursuant to Rule 50(b) (ii) a new trial pursuant to Rule 59(a), or (iii) denial of the motion for a new trial conditional on plaintiff's acceptance of a remittur on damages.

After outlining the standards for Rules 50 and 59, and remittur, the Court held:

1. A reasonable jury Could Have Concluded That Lewis Embezzled Money From Plaintiff
2. Plaintiff's Breach of Contract Claim is Not Time-Barred
3. A Reasonable Jury Could Have Concluded That Defendants Breached Their Contract With Plaintiff
4. The Jury's Failure to Award Damages for Plaintiff's Breach of Contract Claim Did Not Require Vacatur of the Jury's Finding on Liability
5. A Reasonable Jury Could Have Concluded That Defendants Breached Their Fiduciary Duty to Plaintiff
6. The Jury's Damages Award Was Not Excessive
7. Plaintiff's Summation Did Not Warrant a New Trial

For the foregoing reasons, the Court denied defendant's motions for judgment as a matter of law, for a new trial, and for remittur.