The opinion of the court was delivered by: Sand, J.
Plaintiff Eric Johnson, professionally known as "E-Bass," brings this action for copyright infringement or, in the alternative, an accounting from joint authors against defendants Justin Smith (a songwriter and music producer know as "Just Blaze"), FOB Music Publishing, Inc. and NQC Music Publishing, LLC (music publishing companies controlled by Smith), and various record companies. Plaintiff claims that defendants exploited his contribution to a musical composition without authorization. Before the Court is the defendants' motion for summary judgment.
In March 28, 2003 in Los Angeles, California, defendant Justin Smith created a ProTools music file that contained an edited and manipulated sample of Dionne Warwick's 1973 recording of the song "You're Gonna Need Me," as well as some sound effects and drum sounds. Smith submitted this composition to the popular rap musician Usher Raymond for his consideration in October 2003. Usher decided to include the composition, which eventually became a portion of the song "Throwback," on his album "Confessions."
In a series of late night sessions in February 2004 at Baseline Recording Studios in New York, Smith worked with an engineer named Kenneth Lewis, Usher, and plaintiff Eric Johnson to turn the composition contained in the ProTools file into the final version and recording of Throwback that would appear on the album Confessions. Smith and Lewis edited and blended certain elements of the composition and added vocal tracks sung by Usher and musical tracks performed by Lewis and plaintiff in the studio.
Plaintiff's first involvement with the Throwback composition was at these recording sessions with Smith.*fn1 The exact timing of these sessions and the extent of plaintiff's involvement is unclear. Defendants claim that Smith and Lewis started work on mixing and arranging the composition on February 12 and into the early morning hours of February 13. (Def.'s Mem. in Support at 4.) Smith and Lewis returned to the studio on February 15 and worked through the night and into the morning of February 16. (Id.) Defendants claim that at approximately 1:00 a.m. on February 16, plaintiff joined them in the studio and played various guitar and piano parts in a number of different ways at Smith's direction. (Id. at 5.) Smith chose which takes to include on the recording. (Id.) Plaintiff then left the studio around 5:00 a.m. and Smith and Lewis stayed and continued to work on the composition. (Id.) Later in the day on February 16, Usher came to the studio and recorded several vocal tracks which Smith and Lewis mixed into the recording. (Id.)
Plaintiff states that he recalls working on the Throwback composition
during three separate sessions at Baseline Studios.*fn2
(Pl.'s Mem. in Opp. at 22.) He does not recall exactly when
these sessions were, but instead relies on the studio logs and
affidavits of Smith and Lewis to claim that these sessions occurred
from February 15 through February 17. (Id. at 10-11.) Unfortunately
the session logs shed little light on the situation because they are
internally inconsistent and cover overlapping time periods, but they
seem to indicate that plaintiff was present at the recording studio
for some periods before and after the 1:00 a.m. to 5:00 a.m. window on
February 16. (See Camacho Decl., Ex. E.) Plaintiff claims that he was
present at a session with Usher (see Johnson Decl. ¶ 15) and that his
work on the composition was completed on February 17, the same day the
final version of Throwback was completed. (See Pl.'s Mem. in Opp. at
On February 18, 2004, plaintiff submitted a form to his union, the American Federation of Musicians (AFM), for compensation as a "session musician" in connection with his work on Throwback. The form stated that plaintiff played guitar as a session musician on February 16, 2004 from 1:00 a.m. to 5:00 a.m. and listed "Just Blaze" (Smith) as producer. (Camacho Decl., Ex. D.) On June 24, 2004, plaintiff was issued a check for $1,065.15 for four hours work as a session musician, which he cashed. (Id.) The form explicitly incorporated the terms of American Federation of Musicians Agreement, which states that any work performed as a session musician is "work-made-for-hire" for copyright purposes.*fn3 (Id.; Datsi Decl., Ex. E at 10 ¶ 26.)
Plaintiff does not dispute that he was employed as a session musician under the terms of the AFM Agreement for a four hour period on February 16. He asserts, however, that he was not performing as a session musician for the entire time that he worked on the Throwback composition, and therefore the AFM Agreement is not applicable to plaintiff's contributions that were made outside of that four hour window. Plaintiff had worked with Smith on several prior occasions, and claims that he and Smith had an agreement that they would share producer credit and authorship rights on musical compositions that they created together. (Pl.'s Mem. in Opp. at 8.) Plaintiff states that he believed that his work on Throwback was covered by this agreement and that he would receive producer credit and authorship rights for his contribution to the composition in addition to his payment for four hours of work as a session musician. (Id. at 11.)
There is no dispute that plaintiff played several instruments (including keyboard and guitar) at Smith's direction, but the extent of plaintiff's creative contribution to the composition is at issue. Plaintiff claims that he played original notes and chords that constitute the original musical portion (as opposed to the sampled music) of the Throwback composition. (Id. at 10.) Defendants claim that plaintiff added no original creative content to that which Smith had embodied in the ProTools file. (Def.'s Mem. in Support at 8.)
On June 15, 2004, defendants registered the Throwback composition with the U.S. Copyright Office, listing Smith as a co-author. (Datsi Decl., Ex. D.) The registration did not list plaintiff as a co-author. Usher's album Confessions, containing the song Throwback, was a commercial success, selling over nine million copies.
On October 25, 2005, plaintiff registered what he claims were his musical contributions to the Throwback composition with the Copyright Office under the title "Let's Go All the Way. (See Chin Decl.) Plaintiff registered only the composition, not his contributions to the recording of Throwback.*fn4 The deposit copy that plaintiff submitted with his registration contained what he claims are his musical contributions to the Throwback composition and the Dionne Warwick sample, but not the lyrical portion of the composition. Defendants have offered a report from an expert musicologist saying that plaintiff's deposit copy contains no original copyrightable elements that are not also contained on the March 28, 2003 ProTools file. (Ferrara Decl. ¶¶ 3-8.) Defendants served notice of their expert and his report on the deadline for discovery and simultaneously moved for summary judgment. Plaintiff has not had an opportunity to depose defendants' expert, and has not submitted an expert report of his own.
Plaintiff raises two alternative and mutually exclusive claims: (1) that defendants infringed his copyrighted interest in his musical contributions to the Throwback composition or (2) that he is a joint author of the Throwback composition and thus entitled to an accounting for the profits made by defendants in its exploitation.*fn5 Defendants argue first that both claims must be dismissed because plaintiff did not make any creative contribution to the Throwback composition that is sufficiently original to be copyrightable.*fn6 And second, even if he had, because of Smith's work on the piece, plaintiff's contribution would make him at most a joint author, and thus ...