Case 2:20-cv-03212-ODW-SK Document 82-1 Filed 02/28/22 Page 1 of 29 Page ID #:1036

1 DAVID A. STEINBERG (SBN 130593)

[email protected]
2 GABRIELLA N. ISMAJ (SBN 301594)
[email protected]
3 MITCHELL SILBERBERG & KNUPP LLP
2049 Century Park East, 18th Floor
4 Los Angeles, CA 90067-3120
Telephone: (310) 312-2000
5 Facsimile: (310) 312-3100
6 CHRISTINE LEPERA (pro hac vice)
[email protected]
7 JEFFREY M. MOVIT (pro hac vice)
[email protected]
8 437 Madison Avenue, 25th Floor
New York, New York 10022
9 Telephone: (212) 509-3900
Facsimile: (212) 509-7239
10
Attorneys for Defendants
11 Austin Richard Post p/k/a Post Malone
Adam King Feeney p/k/a Frank Dukes
12
UNITED STATES DISTRICT COURT
13
CENTRAL DISTRICT OF CALIFORNIA
14
WESTERN DIVISION
15
Case No. 2:20-cv-03212-ODW-SK
16 TYLER ARMES, Consolidated with 2:20-cv-10205
17 Plaintiff,
v. DEFENDANTS’ MEMORANDUM
OF LAW IN SUPPORT OF
18 AUSTIN RICHARD POST, publicly MOTION FOR SUMMARY
known as POST MALONE, an JUDGMENT
19 individual; ADAM KING FEENEY
Date: April 4, 2022
20 publicly known as FRANK DUKES, an
individual; UNIVERSAL MUSIC Time: 1:30 p.m.
Ctrm: 5D (First Street
21 GROUP, INC., a Delaware corporation;
DOES 1 through 10, inclusive, Courthouse)
22 Defendants. Filed: April 7, 2020
Trial: May 17, 2022
23
24
25
26
27
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DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

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1 TABLE OF CONTENTS
2 Page
3
I. PRELIMINARY STATEMENT ..................................................................... 1
4
5 II. SUMMARY OF UNDISPUTED FACTS ...................................................... 4

6 A. The Parties And Non-Party Songwriters .............................................. 4

7 B. Armes Attends A Recording Session Controlled By Dukes At
8 Which Nothing Offered By Armes Is Recorded Or Otherwise
Fixed ...................................................................................................... 4
9
C. Armes Secretly Tapes On His iPhone A Playback By Dukes Of A
10
Recorded Performance By Post And Dukes ......................................... 5
11
D. Armes’s Admissions Establish His Alleged Contributions To
12 “Circles” Are Not Protectible ............................................................... 6
13
E. Armes Admittedly Has No Agreement For An Authorship Interest
14 In The Circles Composition .................................................................. 7
15 F. Armes Admittedly Had No Participation In, Or Control Over, The
16 Subsequent Writing Sessions For The Circles Composition ................ 8
17 G. Circles Is Commercially Released, And Its Credits Properly Do
Not List Armes As A Co-Author .......................................................... 8
18
19 III. PROCEDURAL HISTORY ............................................................................ 9
20 A. The Parties File Two Actions, Which Are Later Consolidated
Before This Court.................................................................................. 9
21
22 B. This Court Dismisses Armes’s Claim Of Joint Authorship In The
Circles Recording, Pursuant To Rule 12(b)(6) ..................................... 9
23
IV. SUMMARY JUDGMENT STANDARD ..................................................... 10
24
25 V. ARMES CANNOT DEMONSTRATE THAT HE IS A JOINT
AUTHOR OF THE CIRCLES COMPOSITION ......................................... 11
26
27 A. Armes Cannot Prove That He Made An “Independently
Copyrightable Contribution” To The Circles Composition................ 12
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1 TABLE OF CONTENTS
(continued)
2
Page
3
1. Armes’s Purported Contributions Do Not Satisfy The
4 “Fixation” Requirement Under The Copyright Act. ................ 12
5
2. Armes’s Purported Contributions Are Not “Sufficiently
6 Original” To Warrant Copyright Protection. ............................ 15
7
a. Armes Cannot Prevail Without Establishing That He
8 Made An Original Contribution To The Circles
Composition ................................................................... 15
9
10 b. Armes’s Admissions Preclude Him From Making
The Requisite Showing Of Originality .......................... 16
11
3. Armes Has No Expert Testimony That Disputes Any Of
12
The Foregoing. .......................................................................... 17
13
B. Armes Cannot Demonstrate That He Is A Joint Author. .................... 18
14
1. Armes Admits He Had No Control Over The Whole Work. ... 18
15
16 2. Armes Cannot Demonstrate That There Was A “Shared
Intent” To Be Co-Authors. ....................................................... 20
17
3. While The Court Need Not Reach The Issue, Armes Cannot
18
Set Forth Any Facts Showing That The “Audience Appeal”
19 Of The Circles Composition Turned On His Alleged
Contribution. ............................................................................. 21
20
21 VI. THE ACCOUNTING AND CONSTRUCTIVE TRUST CLAIMS FAIL... 22
22 VII. CONCLUSION ............................................................................................. 23
23
24
25
26
27
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1 TABLE OF AUTHORITIES
2 Page(s)
3 CASES
4 Aalmuhammed v. Lee,
202 F.3d 1227 (9th Cir. 2000) ..................................................................... passim
5
6 Andrien v. Southern Ocean Cnty. Chamber of Commerce,
927 F.2d 132 (3d Cir. 1991) ............................................................................... 14
7
8 Armes v. Post,
2020 WL 6135068 (C.D. Cal. Oct. 19, 2020) ............................................. passim
9
Ashton-Tate Corp. v. Ross,
10 916 F.2d 516 (9th Cir. 1990) .............................................................................. 16
11
Brown v. Flowers,
12 297 F. Supp. 2d 846 (M.D.N.C. 2003) ............................................................... 15
13 BTE v. Bonnecaze,
14 43 F. Supp. 2d 619 (E.D. La. 1999) ....................................................... 13, 14, 15
15 Celotex Corp. v. Catrett,
16 477 U.S. 317 (1986) ........................................................................................... 10

17 Cmty. for Creative Non-Violence v. Reid,

490 U.S. 730 (1989) ..................................................................................... 13, 15
18
19 Erickson v. Trinity Theater, Inc.,
13 F.3d 1061 (7th Cir. 1994) .............................................................................. 19
20
Ets-Hokin v. Skyy Spirits, Inc.,
21 225 F.3d 1068 (9th Cir. 2000) ............................................................................ 15
22
Ford v. Ray,
23 130 F. Supp. 3d 1358 (W.D. Wash. 2015) ......................................................... 19
24
Heger v. Kiki Tree Pictures, Inc.,
25 2017 WL 5714517 (C.D. Cal. July 24, 2017) .................................................... 19
26 Jefferson v. Raisen,
27 2021 WL 4732592 (C.D. Cal. Apr. 27, 2021) .................................. 18, 19, 20, 21
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1 TABLE OF AUTHORITIES
(continued)
2
Page(s)
3
Johannsongs-Publ’g Ltd. v. Lovland,
4 2020 WL 2315805 (C.D. Cal. Apr. 3, 2020) ................................................ 16, 17
5
Jordan v. Star Trak Entm’t, Inc.,
6 2010 WL 454374 (C.D. Cal. Feb. 8, 2010) ........................................................ 22
7
Malcomson v. The Topps Co.,
8 2010 WL 383359 (D. Ariz. Jan. 29, 2010) ......................................................... 19
9 McCoy v. Scantlin,
10 2004 WL 5502111 (C.D. Cal. June 1, 2004)...................................................... 22

11 Newton v. Diamond,
204 F. Supp. 2d 1244 (C.D. Cal. 2002) ................................................................ 1
12
13 Richlin v. Metro-Goldwyn-Mayer Pictures, Inc.,
531 F.3d 962 (9th Cir. 2008) .................................................................. 18, 20, 22
14
Rosa v. Taser Int’l, Inc.,
15
684 F.3d 941 (9th Cir. 2012) .............................................................................. 10
16
S.O.S., Inc. v. Payday, Inc.,
17 886 F.2d 1081 (9th Cir. 1989) ...................................................................... 13, 15
18
Satava v. Lowry,
19 323 F.3d 805 (9th Cir. 2003) .............................................................................. 15
20 Skidmore v. Zeppelin,
21 952 F. 3d 1051 (9th Cir. 2020) ........................................................................... 16
22 StreamCast Networks, Inc. v. Skype Techs., S.A.,
2006 WL 5441237 (C.D. Cal. Sept. 14, 2006) ................................................... 22
23
24 Thomson v. Larson,
147 F.3d 195 (2d Cir. 1998) ................................................................... 12, 19, 21
25
26 Tradewinds Escrow, Inc. v. Truck Ins. Exch.,
97 Cal. App. 4th 704 (2002) ............................................................................... 22
27
Mitchell Weissmann v. Freeman,
Silberberg & 28 868 F.2d 1313 (2d Cir. 1989) ............................................................................. 20
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1 TABLE OF AUTHORITIES
(continued)
2
Page(s)
3
Wise v. Wells Fargo Bank, N.A.,
4 850 F. Supp. 2d 1047 (C.D. Cal. 2012) .............................................................. 22
5
STATUTES AND OTHER AUTHORITIES
6
17 U.S.C.
7 § 101 ............................................................................................................. 12, 14
8 § 102 ................................................................................................................... 12

9 Federal Rules of Civil Procedure,

Rule 12(b)(6) .............................................................................................. 1, 9, 10
10 Rule 56(a) ........................................................................................................... 10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
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1 Austin Richard Post, professionally known as Post Malone (“Post”) and

2 Adam King Feeney, professionally known as Frank Dukes (“Dukes”) (together,
3 “Defendants”) respectfully seek the entry of summary judgment in their favor in
4 this consolidated action. Specifically, Defendants seek: (1) the entry of the
5 declaratory judgment requested in their Consolidated Complaint: namely, that
6 Plaintiff Tyler Armes (“Armes”) is not a joint author and concomitant copyright
7 co-owner of the musical composition “Circles” (hereafter, the “Circles
8 Composition”); and (2) the dismissal with prejudice of Armes’s First Amended
9 Complaint, which seeks a declaratory judgment that Armes is a joint author of the
10 Circles Composition, as well as an accounting and constructive trust over profits
11 earned by that composition.
12 I. PRELIMINARY STATEMENT
13 This motion seeking an adjudication that Armes is not a joint author of the
14 Circles Composition is based on his fatal testimonial admissions and the absence
15 of any other evidence that could raise a disputed issue of material fact under the
16 governing criteria for determining joint authorship—which this Court has already
17 applied in this case.
18 Previously, this Court dismissed Armes’s claim of joint authorship of the
19 sound recording of the Circles Composition (the “Circles Recording”) pursuant to
20 Rule 12(b)(6).1 See Armes v. Post, 2020 WL 6135068 (C.D. Cal. Oct. 19, 2020)
21 (the “Prior Decision”). This Court ruled in its Prior Decision that Armes’s
22 allegations of having supplied “direction and ideas,” while others actually fixed
23
24 1
“Sound recordings and their underlying musical compositions are separate works with their
own distinct copyrights . . . A musical composition consists of rhythm, harmony, and melody,”
25 can be notated in sheet music, and can be performed by any musical performer with sufficient
skill. Newton v. Diamond, 204 F. Supp. 2d 1244, 1248-1249 (C.D. Cal. 2002) (citations
26 omitted), aff’d 349 F.3d 591 (9th Cir. 2003), amended and superseded on denial of reh, 388 F.3d
27 1189 (9th Cir. 2004), and aff’d, 388 F.3d 1189 (9th Cir. 2004). A sound recording captures “the
sound produced by . . . [a particular] performer’s rendition of” a musical composition. Id. at
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1 the work into a tangible medium of expression, does not constitute an

2 “independently copyrightable contribution[.]” Id., at *7 (emphasis added). This
3 Court also found that Armes had not pled allegations sufficient to demonstrate that
4 he had control over the Circles Recording.2 Now, discovery has confirmed that
5 these same judicial conclusions apply with equal dispositive force to Armes’s
6 claim of authorship of the Circles Composition. His claim fails for three
7 independent reasons, each one alone being sufficient to warrant adjudication
8 adverse to Armes.
9 First, just like with the Circles Recording, Armes did not fix any musical
10 material into a tangible medium of expression. As this Court has already
11 recognized, fixation is the sine qua non of copyright: “‘[t]o be an author, one must
12 supply more than mere direction or ideas: one must ‘translate an idea into a fixed,
13 tangible expression entitled to copyright protection.’” 2020 WL 6135068, at *7
14 (quoting S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087 (9th Cir. 1989)). Armes
15 admittedly did not do so, and this is singularly dispositive of the claim. Armes
16 conceded that: (1) he has no recordings or any other documentary materials
17 evidencing that he made any creative contributions to the Circles Composition; and
18 (2) no instrumental or vocal performances of Armes (which he claims he did) is
19 fixed in a tangible medium of expression, and none appears in the Circles
20 Recording.
21 Second, Armes admitted that his contributions did not even rise to the level
22 of originality, which is also required in addition to the fixation requirement. He
23 either conceded that his ideas were commonplace musical devices, or failed to
24 meet his burden to demonstrate any originality otherwise. Armes thus cannot even
25 establish the threshold requirement that he made a copyrightable contribution.
26
2
27 The Court afforded Armes the opportunity to amend his complaint to try to substantiate with
facts his claim of authorship of the Circles Recording; he never attempted to do so. Defendants
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1 Armes’s alleged creative contributions to the Circles Composition were, at most

2 (1) an admittedly extremely commonplace guitar chord progression known as “I-
3 IV-V”—with a bass guitar pattern doing the same; and (2) a fragment of a guitar
4 melody that Armes claims he sung to Post; with no evidence that this fragment is
5 protectible expression.3
6 Third, even if he could satisfy the threshold fixation and originality
7 requirements, and he cannot, as this Court also recognized in its Prior Decision,
8 “[m]erely making a copyrightable contribution” is a necessary requirement,
9 but “not enough [by itself] to establish joint authorship.” Armes v. Post, 2020
10 WL 6135068, *6 (emphasis added). This Court held in its Prior Decision that a
11 plaintiff cannot be a joint author without control over the work at issue: “‘Control
12 in many cases will be the most important factor.’” 2020 WL 6135068, at *6
13 (quoting Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th Cir. 2000)). Armes
14 admitted he had no control over whether any of his creative suggestions would be
15 incorporated by Post and Dukes into the Circles Composition, just like he had no
16 control of the Recording in which the Circles Composition was embodied. He has
17 no evidence that any author of the Circles Composition intended him to be a co-
18 author. Indeed, during the course of the next year, three other writers joined with
19 Post and Dukes to finish the Composition, and Armes had no involvement or
20 control. Armes did not even know about—let alone contribute to or control—any
21 of the subsequent songwriting sessions for the Circles Composition, at which the
22 lyrics were written, and other additions to the song were made by Defendants and
23 three non-party songwriters.
24 At bottom, Armes’s contention that because he was present for one early
25 session while Dukes and Post were creating the Circles Composition and
26
3
27 As set forth in the accompanying Statement of Uncontroverted Facts (“SUF”), certain of the
facts set forth herein are accepted as uncontroverted by Defendants solely for purposes of the
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1 Recording, and because he played some instruments there and offered some verbal
2 musical suggestions, he is entitled to joint authorship, is simply incorrect under
3 governing law. Under the correct legal standards already applied by the Court, and
4 given Armes’s dispositive admissions at his deposition, there is zero evidence upon
5 which a fact-finder could decide in Armes’s favor at trial, which would be held as
6 a bench trial before this Court in all events on the declaratory judgment claims at
7 issue.
8 II. SUMMARY OF UNDISPUTED FACTS
9 A. The Parties And Non-Party Songwriters
10 Post is a recording artist, songwriter and musician. SUF ¶ 1. Dukes is a
11 songwriter, record producer and musician. SUF ¶ 2. Armes is a musician. SUF
12 ¶ 3. Along with Post and Dukes, the credited writers of the Circles Composition
13 are Kaan Gunesberk, Louis Bell, and Billy Walsh. SUF ¶ 52.
14 B. Armes Attends A Recording Session Controlled By Dukes At
15 Which Nothing Offered By Armes Is Recorded Or Otherwise
16 Fixed
17 On the evening of August 7, 2018, Post, Dukes and Armes were each
18 present at a concert by a third-party rock band in Toronto, Canada. SUF ¶ 4. After
19 the concert, Armes was invited by Post’s manager to join Post, Dukes, and others,
20 at Dukes’s Toronto music studio (“Dukes’s Studio”). SUF ¶ 5. Although the other
21 guests left Dukes’s Studio earlier in the night, Armes, Post, and Dukes remained in
22 Dukes’s Studio from 2:00 a.m. to 9:00 a.m. on August 8, 2018. SUF ¶ 6. During
23 that time period in Dukes’ Studio, there was some “jamming,” and also the process
24 of Dukes recording Dukes’s and Post’s performances. SUF ¶ 7. (This time period
25 is hereafter called the “August 8 Session.”) Prior to the beginning of the August 8
26 Session, Post stated: “Let’s write a tune!” SUF ¶ 8.4
27 4
As noted above, these allegations are accepted as uncontroverted solely for purposes of this
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1 During the August 8 Session, Armes played a bass guitar and a keyboard;
2 Armes did not play a guitar or any other instrument. SUF ¶ 9. Post played guitar
3 and drums at the August 8 Session, and Dukes played both guitar and bass guitar.
4 SUF ¶ 10.
5 Musical performances were recorded by Dukes during the August 8 Session.
6 SUF ¶ 11. None of Armes’s performances were recorded or fixed in any tangible
7 medium of expression. SUF ¶¶ 16, 17.
8 Dukes solely controlled the laptop that recorded those musical
9 performances. SUF ¶ 12. Duke’s laptop also functioned as the “mixing board”
10 which combined various recorded performances (none of Armes’s) into a single
11 recording. SUF ¶ 13. Armes admitted he never touched Dukes’s laptop; in
12 Armes’s words, “Frank was controlling the laptop. It was his laptop, his
13 session.” SUF ¶ 14 (emphasis added). Although a third-party sound engineer was
14 present at times during portions of the August 8 Session, the engineer was at
15 Dukes’s “beck and call” and only came in and out of the room when Dukes asked
16 him to. SUF ¶ 15.
17 Thus, critically, Armes does not have, and is not aware of, any recording
18 of Armes engaging in any musical performance (whether instrumental or vocal)
19 at the August 8 Session. SUF ¶ 16. Nor is Armes aware of any recording or notes
20 reflecting that Armes provided any creative contributions during the August 8
21 Session. SUF ¶ 17. There is no performance of Armes in the Circles Recording.
22 SUF ¶ 18.
23 C. Armes Secretly Tapes On His iPhone A Playback By Dukes Of A
24 Recorded Performance By Post And Dukes
25 At the end of the August 8 Session, Dukes played back in the studio a
26 recording—one that had already been fixed on his laptop—of certain of the
27 performances of Dukes and Post that Dukes had previously recorded from that
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Silberberg & 28 same night (the “Rough Mix”). SUF ¶ 19. Certain musical compositional
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1 elements in the Rough Mix were later incorporated into the final Circles
2 Composition completed a year later. SUF ¶ 20. On the Rough Mix, Post is singing
3 a vocal melody (largely without lyrics) and playing the guitar melody, and Dukes
4 is playing both the bass guitar, and the chord progression on the rhythm guitar.
5 SUF ¶ 21. Armes, on the other hand, is not playing any instruments, singing or
6 otherwise engaging in any performance whatsoever on the Rough Mix. SUF
7 ¶ 22.
8 Armes taped on his iPhone a portion of Dukes’s playback of the Rough Mix.
9 SUF ¶ 23. Armes did not obtain Dukes’s and Post’s permission to do so.
10 SUF ¶ 24. Indeed, Armes did not even inform Dukes and Post that he was taping.
11 SUF ¶ 25. (Armes’s surreptitious taping is hereafter called the “iPhone
12 Recording”). This iPhone Recording provides no evidence of any contributions by
13 Armes to the Circles Composition. SUF ¶¶ 19, 21, 22.
14 D. Armes’s Admissions Establish His Alleged Contributions To
15 “Circles” Are Not Protectible
16 Armes admits that he did not come up with the title “Circles”; nor did Armes
17 write any of the lyrics for the Circles Composition. SUF ¶¶ 26-27. Indeed, Armes
18 merely asserts that he made three (3) contributions to the Circles Composition.
19 SUF ¶¶ 28-35. Armes’s admissions, and the evidentiary record, establish the
20 commonplace (and therefore unprotectible) nature of these alleged contributions:
21 1. Armes claims to have co-written, with Dukes, the chord progression for the
22 Circles Composition. SUF ¶ 28.
23 o Armes claims to have “sang,” rather than played, his alleged
24 contribution to this chord progression. SUF ¶ 29.
25 o This chord progression is I-IV-V (or C-F-G), which Armes admits is
26 an “extremely” common chord progression, and “one of the most
27 common progressions in the history of music.” SUF ¶ 30 (emphasis
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1 2. Armes claims to have had “significant input” into the writing of the bass
2 guitar line in the Circles Composition. SUF ¶ 31.
3 o Armes’s claimed contribution to the bass guitar line is the exact same
4 admittedly commonplace I-IV-V (or C-F-G) sequence as the chord
5 progression. SUF ¶ 32.
6 3. Armes claims to have contributed to the writing of the guitar melody in the
7 Circles Composition. SUF ¶ 33.
8 o Armes admits that Post wrote the “initial melody” for the guitar.
9 SUF ¶ 34.
10 o Armes claims that he then “sang” additional notes which Post added
11 to the guitar melody. SUF ¶ 35.
12 o Armes has no evidence that the additional notes which he claims to
13 have contributed to the guitar melody are copyrightable material.
14 E. Armes Admittedly Has No Agreement For An Authorship
15 Interest In The Circles Composition
16 During the August 8 Session, Post and Dukes never agreed that Armes
17 would be a co-author of the Circles Composition. SUF ¶ 37. Indeed, the subject of
18 authorship/ownership was not even discussed with Armes prior to the release of
19 the Circles Recording. SUF ¶ 38. And when Armes left the August 8 Session,
20 neither Post nor Dukes asked Armes for his contact information or otherwise
21 indicated that they would be in touch about the song. SUF ¶ 39. By Armes’s own
22 admission, Armes had no involvement whatsoever in the creation of the Circles
23 Composition following the August 8 Session. SUF ¶ 40. Moreover, after the
24 August 8 Session, Armes had no communications with any of the writers about the
25 Circles Composition prior to the commercial release of the Circles Recording over
26 a year later on August 30, 2019. SUF ¶¶ 39-41, 48-49.
27
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1 F. Armes Admittedly Had No Participation In, Or Control Over,

2 The Subsequent Writing Sessions For The Circles Composition
3 It is undisputed that the writing of the Circles Composition was not
4 completed at the August 8 Session. SUF ¶ 42. Quite the contrary. Post and
5 Dukes—along with their co-authors Kaan Gunesberk, Louis Bell, and Billy Walsh
6 (the “Non-Party Songwriters”)—continued to work on writing the Circles
7 Composition at subsequent writing sessions. SUF ¶ 43. Among other creative
8 work, the lyrics to the Circles Composition were written at these subsequent
9 writing sessions. SUF ¶ 44. Critically, Armes was not present for any of these
10 subsequent writing sessions—and he did not even know that they were occurring.
11 SUF ¶ 45. Therefore Armes admits, as he must, that he had no input into, let alone
12 control over, any of those sessions. SUF ¶ 46.
13 Indeed, at his deposition, Armes repeatedly conceded that he had no control
14 whatsoever over what was ultimately contained in the Circles Composition.
15 SUF ¶ 47 (“… [Y]our client cut me out of the process in how things were arranged.
16 . . a lot of things were done [to Circles] that I wasn’t privy to . . . .”).
17 The Non-Party Songwriters had no dealings whatsoever with Armes in
18 connection with the creation of the Circles Composition, and in fact had no
19 knowledge of any alleged contributions by Armes to the Circles Composition.
20 SUF ¶ 48. Just like Post and Dukes, the Non-Party Songwriters did not agree to
21 merge their contributions with anything by Armes, and never had any intention for
22 Armes to be a co-author or co-writer of the Circles Composition. SUF ¶ 49.
23 G. Circles Is Commercially Released, And Its Credits Properly Do
24 Not List Armes As A Co-Author
25 Armes did not hear the final Circles Composition until the Circles Recording
26 was shared on social media on August 5, 2019 (i.e., nearly one year after the
27 August 8 Session). SUF ¶ 50. The Circles Recording was commercially released
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1 ¶ 51. The credits for “Circles” (the “Liner Notes”), available at

2 postmalone.com/credits, identify the writers of the Circles Composition as Post,
3 Dukes, Bell, Walsh, and Gunesberk. SUF ¶ 52. Armes is not identified in the
4 Liner Notes as a co-writer of the Circles Composition. SUF ¶ 53.
5 III. PROCEDURAL HISTORY
6 A. The Parties File Two Actions, Which Are Later Consolidated
7 Before This Court
8 On April 7, 2020, Armes filed his Complaint in this Court. (His action is
9 hereinafter referred to the “California Action”). See Complaint (the “Complaint”;
10 ECF No. 1). His Complaint sought a declaratory judgment that Armes was an
11 author and copyright owner of the Circles Recording and the Circles Composition.
12 It further sought an accounting and constructive trust of profits earned by the
13 Circles Recording and the Circles Composition. Id.
14 The very same day, Post commenced an action in the United States District
15 Court for the Southern District of New York, entitled Post v. Armes, Case No.
16 1:20-CV-02877-ALC (the “New York Action”). See Consolidated Complaint;
17 ECF. No. 28-1, Ex. 5, pp. 19-25. In the New York Action, Post sought a
18 declaration that Armes is neither an author nor a copyright owner of the Circles
19 Composition. Id. Armes filed a First Amended Complaint on May 13, 2020. See
20 First Amended Complaint (“FAC”; ECF No. 24). Ultimately, the New York
21 Action was transferred to this Court, and the two Actions were consolidated on
22 December 15, 2020. ECF No. 45. Armes’s and Defendants’ operative pleadings
23 are the FAC and the Consolidated Complaint, respectively.
24 B. This Court Dismisses Armes’s Claim Of Joint Authorship In The
25 Circles Recording, Pursuant To Rule 12(b)(6)
26 On June 3, 2020, before the Actions were consolidated, Defendants moved
27 pursuant to Rule 12(b)(6) to dismiss Armes’s FAC in the California Action on
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Silberberg & 28 multiple grounds. ECF No. 28. With respect to Armes’s claim for a declaration
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1 that he was a joint author and co-owner of the Circles Recording, Defendants
2 explained, inter alia, that, even assuming the allegations in the FAC to be true,
3 Armes could not prevail under the test set forth in Aalmuhammed, 202 F.3d at
4 1231. Id. Defendants further sought the concomitant dismissal of Armes’s claim
5 for an accounting and constructive trust over profits earned by the Circles
6 Recording. Id.
7 The Court thereafter granted dismissal of Armes’s Recording Claim
8 pursuant to Rule 12(b)(6), in the Prior Decision. Armes v. Post, 2020 WL
9 6135068, at *5-8. The Court further held that, because Armes failed to state a
10 viable claim for ownership of the Circles Recording, he was not entitled to an
11 accounting or constructive trust of profits earned by the Circles Recording. Id. at
12 *7, n.4.
13 As explained infra, the Court’s legal analysis in its Prior Decision, when
14 applied to Armes’s dispositive admissions regarding the creation of the Circles
15 Composition, mandates that the Court find that Armes is not a joint author of the
16 Circles Composition, and accordingly, that he is not entitled to an accounting or
17 constructive trust of profits earned by the Circles Composition.
18 IV. SUMMARY JUDGMENT STANDARD
19 Summary judgment is warranted “if the movant shows that there is no
20 genuine dispute as to any material fact and that the movant is entitled to judgment
21 as a matter of law.” Fed. R. Civ. P. 56(a). The movant may meet this burden
22 initially by demonstrating the absence of evidence supporting one or more essential
23 elements of the non-movant’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323,
24 325 (1986). The burden then shifts to the nonmoving party to produce affirmative,
25 admissible evidence of facts sufficient to defeat summary judgment. Rosa v. Taser
26 Int’l, Inc., 684 F.3d 941, 948 (9th Cir. 2012).
27 Post and Dukes have far exceeded the initial showing at the summary
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1 have Defendants demonstrated the complete absence of any evidence in the record
2 that supports Armes’s joint authorship claim, but moreover they have provided the
3 Court with the dispositive admissions of Armes which defeat his claim as a matter
4 of law. Given these admissions, Armes cannot possibly meet his own burden to
5 demonstrate the existence of any material fact precluding summary judgment.
6 V. ARMES CANNOT DEMONSTRATE THAT HE IS A JOINT
7 AUTHOR OF THE CIRCLES COMPOSITION
8 As the Court previously explained in the Prior Decision:
9 In the Ninth Circuit, a joint work “‘requires each author
10 to make an independently copyrightable contribution’ to
11 the disputed work.” Aalmuhammed v. Lee, 202 F.3d
12 1227, 1231 (9th Cir. 2000) (quoting Ashton-Tate Corp. v.
13 Ross, 916 F.2d 516, 521 (9th Cir. 1990)). Significantly,
14 joint authorship “requires more than a minimal creative
15 or original contribution to the work,” Aalmuhammed, 202
16 F.3d at 1233, and, furthermore, “[m]erely making a
17 copyrightable contribution is not enough to establish joint
18 authorship.” Morrill v. Smashing Pumpkins, 157 F. Supp.
19 2d 1120, 1123 (C.D. Cal. 2001). The Ninth Circuit has
20 instructed courts to look for three criteria of joint
21 authorship: (1) whether an alleged co-author exercised
22 control over creation of the work, (2) whether all co-
23 authors made “objective manifestations of a shared intent
24 to be coauthors,” and (3) whether “the audience appeal of
25 the work turns on [each co-author’s] contributions and
26 the share of each in its success cannot be appraised.”
27 Aalmuhammed, 202 F.3d at 1234 (internal quotation
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1 important factor.” Id.; accord Richlin v. Metro-Goldwyn-

2 Mayer Pictures, Inc., 531 F.3d 962, 968 (9th Cir. 2008).
3 Armes v. Post, 2020 WL 6135068 at *6.
4 The purpose of these requirements, as exemplified in this case, is to
5 “ensur[e] that true collaborators in the creative process are accorded the perquisites
6 of co-authorship[.]” Thomson v. Larson, 147 F.3d 195, 200 (2d Cir. 1998). As
7 explained below, Armes cannot satisfy his burden as to any element.
8 A. Armes Cannot Prove That He Made An “Independently
9 Copyrightable Contribution” To The Circles Composition.
10 As a threshold matter, a plaintiff cannot claim joint authorship in a
11 copyrighted work unless the plaintiff made “an independently copyrightable
12 contribution” to the disputed work. Aalmuhammed, 202 F.3d at 1231 (emphasis
13 added). See also Thomson, 147 F.3d at 200 (“[C]ollaboration alone is not
14 sufficient to establish joint authorship. Rather, the contribution of each joint
15 author must be independently copyrightable.”). Armes cannot satisfy his burden of
16 proof as to this essential requirement because: (1) Armes admittedly did not fix any
17 of his alleged authorship contributions in a tangible medium of expression; and
18 (2) Armes’s admissions establish that his alleged contributions to the Circles
19 Composition lack sufficient originality to be copyrightable.
20 1. Armes’s Purported Contributions Do Not Satisfy The
21 “Fixation” Requirement Under The Copyright Act.
22 In order to be copyrightable, a work must be an “original work[ ] of
23 authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a)
24 (emphasis added). A work is “fixed” in a tangible medium of expression, in turn,
25 when “its embodiment in a copy . . . by or under the authority of the author, is
26 sufficiently permanent . . . to permit it to be . . . reproduced.” 17 U.S.C. § 101
27 (emphasis added).
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1 According to the Supreme Court, “the author is the party who actually
2 creates the work, that is, the person who translates an idea into a fixed, tangible
3 expression entitled to copyright protection.” Cmty. for Creative Non–Violence v.
4 Reid, 490 U.S. 730, 737 (1989) (emphasis added); see also S.O.S., 886 F.2d at
5 1087 (“To be an author, one must supply more than mere direction or ideas: one
6 must ‘translate an idea into a fixed, tangible expression’”) (emphasis added)
7 (quoting Cmty. for Creative Non-Violence, 490 U.S. at 737).
8 Here, Armes’s admissions establish that Armes never fixed his purported
9 contributions to the Circles Composition in any tangible medium of expression.
10 See, e.g., SUF ¶¶ 16, 18, 19-22. At best, Armes claims to have made contributions
11 in the form of non-recorded directions, ideas, and suggestions to Post and Dukes
12 (for which there is no independent evidence), which Post and Dukes then, in turn,
13 had the discretion to accept or reject. SUF ¶¶ 9-18, 22. This is utterly insufficient
14 to constitute an independently copyrightable contribution.5
15 Again, this Court has already recognized, in its Prior Decision, that
16 Armes’s allegations of having supplied “direction and ideas,” while others
17 actually fixed the work into a tangible medium of expression, does not constitute
18 an “independently copyrightable contribution.” Armes v. Post, 2020 WL
19 6135068, at *7 (emphasis added). The identical analysis once again applies, this
20 time with respect to the Circles Composition. See also BTE v. Bonnecaze, 43 F.
21 Supp. 2d 619, 628 (E.D. La. 1999) (the contribution of “ideas and helpful
22 insights[,]” with no evidence that a purported co-author has himself “fixed those
23
24
25
5
To the extent Armes contends that his contributions were “fixed” by virtue of his
26 surreptitiously-obtained iPhone Recording, he is mistaken. Because the iPhone Recording does
27 not contain any recording of Armes playing or singing any music, and only copies a playback of
a recording of Dukes’s and Post’s performances, it in no way satisfies the fixation test for Armes.
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1 contributions into a tangible form of expression” is insufficient to stave off

2 summary dismissal of a claim for co-authorship in a musical composition).6
3 In Bonnecaze, the plaintiff was a former drummer for the rock band “Better
4 Than Ezra,” who claimed copyright ownership in certain compositions for songs
5 created by the band. See 43 F. Supp. 2d at 621. The plaintiff claimed that he
6 “presented valuable contributions” to the band in “working up” songs initially
7 proposed by the lead singer, that eventually were fixed in a tangible form of
8 expression when the band (including the plaintiff) recorded the songs. Id. at 627.
9 The court rejected the plaintiff’s claims:
10 While Bonnecaze claims that he contributed ideas and
11 helpful insights in “working up” the songs introduced to
12 the band by Kevin Griffin, Bonnecaze has failed to
13 supply the court with any evidence (after ample time for
14 discovery) which could lead a rational trier of fact to
15 find that Bonnecaze had ever fixed those contributions
16 into a tangible form of expression. The sound
17 recordings of the [final versions of the] songs cannot
18 serve as the tangible form required for Bonnecaze to
19
20
21 6
In opposition to this motion, Armes may incorrectly argue that his alleged contributions to the
Circles Composition were fixed in the Circles Composition “under his authority” pursuant to 17
22 U.S.C. § 101. This argument is unavailing, as courts have narrowly interpreted the statutory
23 phrase, “by or under the authority of the author,” recognizing that “[w]hen one authorizes
embodiment, that process must be rote or mechanical transcription that does not require
24 intellectual modification or highly technical enhancement.” Andrien v. Southern Ocean Cnty.
Chamber of Commerce, 927 F.2d 132, 135 (3d Cir. 1991) (emphasis added). Even assuming the
25 truth of his testimony, Armes cannot meet this test. Armes claims to have given verbal
suggestions of certain chords or notes to Post or Dukes, who then performed independently their
26 instruments without any authority over them as to what they played exercised by Armes. By his
27 testimony that the “three of us [were] collaborating,” SUF ¶ 35, he has admitted he had no
authority over Dukes or Post. This is not the situation of a “mechanical transcription that does
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1 meet the independently copyrightable test required for

2 proving joint authorship.
3 Id. at 628 (emphases added). Like Bonnecaze, Armes admitted in his deposition
4 that his most significant purported contribution “had my ideas in it, but not me
5 playing.” SUF ¶¶ 16-18, 22, 31, 36 (emphasis added). Under Bonnecaze and its
6 antecedents, the contribution of such “ideas” is legally insufficient to constitute an
7 “independently copyrightable contribution.” Furthermore, here, unlike in
8 Bonnecaze, Armes did not even perform in the Circles Recording or any earlier
9 mix, including the Rough Mix. Accordingly, this case analysis applies with even
10 greater force here.
11 2. Armes’s Purported Contributions Are Not “Sufficiently
12 Original” To Warrant Copyright Protection.
13 a. Armes Cannot Prevail Without Establishing That He
14 Made An Original Contribution To The Circles
15 Composition
16 In addition to the fixation requirement, another threshold prerequisite for
17 copyright protection is that a work be sufficiently original. See Cmty. for Creative
18 Non-Violence, 490 U.S. 730 (to be an author, one must supply more than mere
19 direction or ideas: one must “translate [ ] an idea into a fixed, tangible expression
20 entitled to copyright protection”) (emphasis added).
21 Therefore, in order to be entitled to joint authorship status, a putative author
22 must “make some original contribution” to the work at issue. Brown v. Flowers,
23 297 F. Supp. 2d 846, 852 (M.D.N.C. 2003), aff’d, 196 F. App’x 178 (4th Cir.
24 2006) (emphasis added); Satava v. Lowry, 323 F.3d 805, 810 (9th Cir. 2003) (“Any
25 copyrighted expression must be ‘original.’”) (citing Feist Publ’ns, Inc. v. Rural
26 Tel. Serv. Co., 499 U.S. 340, 345 (1991)); see also Ets-Hokin v. Skyy Spirits, Inc.,
27 225 F.3d 1068, 1073 (9th Cir. 2000) (“The essence of copyrightability is
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Silberberg & 28 originality of artistic, creative expression.”); S.O.S., 886 F.2d at 1086-87
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1 (contribution insufficiently original to raise a material issue of fact about whether

2 such a contributor was a joint author); Ashton-Tate Corp. v. Ross, 916 F.2d 516,
3 521 (9th Cir. 1990) (“A collaborator’s contribution will not produce a joint work,
4 and a contributor will not obtain a co-ownership interest, unless the contribution
5 represents original expression that could stand on its own as the subject matter of
6 copyright.”) (citing P. Goldstein, Copyright: Principles, Law and Practice, § 4.2.1
7 p. 379 (1989)).
8 b. Armes’s Admissions Preclude Him From Making The
9 Requisite Showing Of Originality
10 Armes cannot satisfy his burden to establish that he made any original
11 contributions to the Circles Composition. As discussed above, Armes only claims
12 to have contributed to three aspects of the Circles Composition: (1) the chord
13 sequence I-IV-V on the guitar; (2) the same I-IV-V sequence as a bass pattern; and
14 (3) a series of pitches which Armes claims to have sang to Post for use in the guitar
15 melody. These all fail as a matter of law.
16 With respect to the I-IV-V sequence on the guitar and bass, Armes himself
17 admits that it is “extremely” common. SUF ¶¶ 30, 32. The Ninth Circuit has
18 explained that copyright protection does not “extend to ‘common or trite’ musical
19 elements … or ‘commonplace elements that are firmly rooted in the genre’s
20 tradition,’ ... These building blocks belong in the public domain and cannot be
21 exclusively appropriated by any particular author.” Skidmore v. Zeppelin, 952 F.
22 3d 1051, 1069 (9th Cir. 2020) (citations omitted).
23 Similarly, Armes does not have a shred of affirmative evidence with which
24 to meet his burden of proof that his alleged contribution to the guitar melody is
25 original. Thus he cannot meet that burden. See, e.g., Johannsongs-Publ’g Ltd. v.
26 Lovland, 2020 WL 2315805, at *7 (C.D. Cal. Apr. 3, 2020), aff’d, 2021 WL
27 5564626 (9th Cir. Nov. 29, 2021) (in copyright case, plaintiff could not meet its
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1 affirmative evidence that the expression was original as opposed to trite and
2 commonplace).
3 3. Armes Has No Expert Testimony That Disputes Any Of The
4 Foregoing.
5 Defendants rely on no expert testimony in connection with this Motion. In
6 opposition to this Motion, Defendants anticipate that Armes may try to muddy the
7 waters, albeit without merit, by raising an argument about expert evidence. The
8 only expert report that he offered in this case, however, was a rebuttal by
9 musicologist Judith Finell (the “Finell Rebuttal Report”) to a report by Dr.
10 Lawrence Ferrara offered by Defendants7 that has now become moot on the issue
11 addressed by the Finell Rebuttal Report. Initially, Dr. Ferrara was provided an
12 assumption that there were two recordings of bass parts performed by Armes from
13 the August 8 Session and asked to assess whether those recordings contain any
14 significant expression that is also contained in the Circles Composition. Both his
15 report on this issue and Ms. Finell’s rebuttal thereon became moot as Armes
16 testified that his bass performances were not embodied in those recordings, making
17 them irrelevant.
18 There is nothing in the Finell Rebuttal Report that addresses any of Armes’s
19 alleged contributions to the Circles Composition—no less whether they are
20 original. Finell in fact conceded that she did not know and could not know the
21 source of individual musical features in the Circles Composition.8 Should Armes
22 try, he should be precluded from offering any untimely affirmative report as Armes
23 chose not to avail himself of the opportunity.9
24 7
Armes did not serve any “affirmative” expert report. The only expert report which Armes
served is the Finell Rebuttal Report, which purports to respond to the affirmative expert report of
25 Defendants’ musicologist, Dr. Lawrence Ferrara.
26 8
While Finell claimed that there were similarities between the Rough Mix described above that
was captured in the iPhone Recording and the final Circles Composition, this opinion is
27 irrelevant as she does not know who created what in the Circles Composition.
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1 B. Armes Cannot Demonstrate That He Is A Joint Author.

2 As discussed above, Armes cannot establish that he made a copyrightable
3 contribution to the Circles Composition—which is fatal to his claim. However,
4 even “contribution of independently copyrightable material to a work…will not
5 suffice to establish authorship of a joint work.” Aalmuhammed, 202 F.3d at 1233;
6 see also Jefferson v. Raisen, 2021 WL 4732592, at *4 (C.D. Cal. Apr. 27, 2021)
7 (“an individual can make a ‘copyrightable contribution’ and yet not become a joint
8 author of the whole work.”). Rather, for a plaintiff to establish joint authorship,
9 the plaintiff also must satisfy a three-part test: “(1) whether the putative author
10 superintended the work by exercising control; (2) whether the putative coauthors
11 made objective manifestations of a shared intent to be coauthors; and (3) whether
12 the audience appeal of the work turns on both contributions and the share of each
13 in its success cannot be appraised.” Richlin v. Metro-Goldwyn-Mayer Pictures,
14 Inc., 531 F.3d 962, 968 (9th Cir. 2008) (citing Aalmuhammed, 202 F.3d at 1234)
15 (emphasis added). Armes’s admissions establish that he cannot satisfy any prong
16 of this test.
17 1. Armes Admits He Had No Control Over The Whole Work.
18 The “most important factor” in determining joint authorship is “control.”
19 Richlin, 531 F.3d at 968; accord Aalmuhammed, 202 F.3d at 1235 (the “absence of
20 control is strong evidence of the absence of co-authorship”). An alleged author
21 exercises control when he or she is “the inventive or master mind who creates or
22 gives effect to the idea.” Aalmuhammed, 202 F.3d at 1234 (quoting Burrow–Giles
23 Lithographic Co. v. Sarony, 111 U.S. 53, 61 (1884)).
24 The Ninth Circuit has made clear that a putative author’s control over his
25 own contributions is not tantamount to “control” for authorship purposes, which
26 must extend to the “whole work.” Aalmuhammed, 202 F.3d at 1234 (emphasis
27 added). Absent proof that a putative author had “supervisory powers” over the
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1 F.3d at 970 (no “control” for authorship purposes where plaintiff wrote the
2 screenplay and “may have had control over [it] as originally written, [but] had no
3 control over how [it was] incorporated into [the film]”); Heger v. Kiki Tree
4 Pictures, Inc., 2017 WL 5714517, at *5 (C.D. Cal. July 24, 2017) (no “control”
5 over film where plaintiff alleged “creative control over separate and indispensable
6 elements of the completed [film]” but no “supervisory powers over the [whole
7 film]”); Ford v. Ray, 130 F. Supp. 3d 1358, 1363 (W.D. Wash. 2015) (no “control”
8 over a song where plaintiff had “control over his contribution to [the song],” but
9 the “decision as to how or whether to incorporate [his] creations was left to
10 defendant”).
11 Armes’s admissions establish that Dukes had all decision-making authority
12 during the August 8 Session, and that Dukes controlled the session. See, e.g.,
13 SUF ¶¶ 12-15. This is fatal to his argument that he had any “control” over the
14 Circles Composition, because “[a]n important indicator of authorship is a
15 contributor’s decision-making authority over what changes are made and what is
16 included in a work.” Thomson, 147 F.3d at 202-03; see also Erickson v. Trinity
17 Theater, Inc., 13 F.3d 1061, 1071-72 (7th Cir. 1994) (an actor’s suggestion of text
18 does not support a claim of co-authorship where the sole author determined
19 whether and where such contributions were included in the work); Malcomson v.
20 The Topps Co., 2010 WL 383359, at *5 (D. Ariz. Jan. 29, 2010) (no control where
21 party had “unrestricted right to reject” putative co-author’s work, and “unilateral
22 right to reject” whatever putative co-author submitted); Jefferson, 2021 WL
23 4732592, at *3 (alleged contribution of elements of a musical composition
24 insufficient to establish “control” where the putative author cannot establish the
25 exercise of “control over the creation of [the work] independent from their
26 contributions[.]’”).
27 And, just as critically, Armes admits he had nothing whatsoever to do with
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1 39-53. Armes had no awareness of, was not invited to, and was not present for the
2 multiple subsequent sessions where the Circles Composition was composed. Id.
3 All of the lyrics to the Circles Composition were written after the August 8
4 Session, and Armes admittedly had no control over any of them. SUF ¶¶ 27, 44-
5 47. Thus, Armes indisputably did not have control over the “whole work,” as is
6 necessary to demonstrate control. See Jefferson, 2021 WL 4732592, at *3
7 (dismissing counterclaim for declaratory judgment as to joint authorship of a song
8 when the counterclaim plaintiffs seeking authorship credit “appear not to have
9 even known of the existence of [the final version of the song at issue] until after it
10 was released …”).
11 2. Armes Cannot Demonstrate That There Was A “Shared
12 Intent” To Be Co-Authors.
13 The second factor considers whether the putative co-authors made “objective
14 manifestations of a shared intent to be coauthors” of the work. Aalmuhammed, 202
15 F.3d at 1234. Each and every putative author “must intend to contribute to a joint
16 work at the time his or her alleged contribution is made.” Weissmann v. Freeman,
17 868 F.2d 1313, 1318 (2d Cir. 1989); see also Richlin, 2006 WL 8448673, at *3
18 (“this must be the intent of all the putative co-authors, not just the person claiming
19 co-authorship”) (emphasis added). Armes’s entire claim of “shared intent” hinges
20 on his self-serving—and uncorroborated—allegation that Post casually said “Let’s
21 write a tune” after Post’s manager introduced him to Armes following a concert
22 that the two attended. SUF ¶ 8. Even assuming, solely for the purposes of this
23 motion, that those words were said in any context, it does not remotely carry
24 Armes’s burden to show a “shared intent.”
25 Here, by Armes’s own admission, none of the Defendants or Non-Party
26 Songwriters have made any acknowledgement whatsoever that they intended for
27 Armes to be a co-author. SUF ¶¶ 37-41, 48-49. Indeed, the actual songwriters of
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1 Moreover, during the August 8 Session, Post and Dukes never indicated—let alone
2 agreed—that Armes would be a co-author of the Circles Composition. SUF ¶ 37.
3 Indeed, the subject of authorship/ownership was not even discussed prior to the
4 release of the Circles Recording. SUF ¶ 38. And after the August 8 Session,
5 Armes had no communications with any of the writers about the Circles
6 Composition prior to its commercial release. SUF ¶¶ 39-41, 48-49.
7 Moreover, in the Liner Notes for Post’s “Hollywood’s Bleeding” album on
8 which the Circles Recording is contained, Defendants and the Non-Party
9 Songwriters are the only individuals credited as the songwriters of the Circles
10 Composition. Armes has no credit whatsoever in the Liner Notes. SUF ¶¶ 52-53.
11 It is well-recognized that “the manner in which [Defendants] listed credits on the
12 [work]” is “strongly” indicative of how they regard themselves vis-à-vis
13 authorship. Thomson, 147 F.3d at 203; see also Aalmuhammed, 202 F.3d at 1234
14 (“putative coauthors make objective manifestations of a shared intent to be
15 coauthors, as by denoting the authorship of The Pirates of Penzance as ‘Gilbert and
16 Sullivan.’”); Jefferson, 2021 WL 4732592, at *5 (“[the counterclaim defendant’s]
17 choice to credit some co-authors, but not the [counterclaim plaintiffs], at the time
18 of releasing [the work at issue] is relevant.”). Here the liner notes provide
19 objective evidence that Armes, Post and the Non-Party Writers had zero intent for
20 Armes to be a joint author with them.
21 3. While The Court Need Not Reach The Issue, Armes Cannot
22 Set Forth Any Facts Showing That The “Audience Appeal”
23 Of The Circles Composition Turned On His Alleged
24 Contribution.
25 Armes has no evidence with which he could establish the audience appeal of
26 Circles turns on his alleged contribution. Nonetheless, when as here, the plaintiff’s
27 showing of “control” and “shared intent” are insufficient to meet his burden, the
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Silberberg & 28 courts routinely dismiss joint authorship claims without even considering the
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1 “audience appeal” factor. Aalmuhammed, 202 F.3d at 1234-35 (finding no joint

2 authorship without considering “audience appeal” factor); see also Armes v. Post,
3 2020 WL 6135068, at *7 (dismissing Armes’s claim for joint authorship of the
4 Circles Recording after construing “audience appeal” allegations in Armes’s favor,
5 given that Armes’s allegations of “control” were insufficient to state a viable
6 claim); Richlin, 531 F.3d at 970 (9th Cir. 2008) (dismissing co-authorship claim
7 where the “two primary Aalmuhammed factors weigh[ed] most heavily in favor of”
8 the moving party). This Court can and should do the same here.
9 VI. THE ACCOUNTING AND CONSTRUCTIVE TRUST CLAIMS FAIL
10 Because summary judgment should be granted in Defendants’ favor with
11 respect to Armes’s declaratory judgment claim, his accounting and constructive
12 trust claims also should be dismissed. “Accounting ‘is not an independent cause of
13 action but merely a type of remedy and an equitable remedy at that.”’ Wise v.
14 Wells Fargo Bank, N.A., 850 F. Supp. 2d 1047, 1055 (C.D. Cal. 2012) (citation
15 omitted); see also Tradewinds Escrow, Inc. v. Truck Ins. Exch., 97 Cal. App. 4th
16 704, 714 n.7 (2002) (request for accounting must be predicated on an underlying
17 claim); Jordan v. Star Trak Entm’t, Inc., 2010 WL 454374, at *2 (C.D. Cal. Feb. 8,
18 2010) (“An accounting is an equitable remedy, not an independent cause of
19 action.”). Likewise, “[a] constructive trust is not a substantive device but merely a
20 remedy.” StreamCast Networks, Inc. v. Skype Techs., S.A., 2006 WL 5441237, at
21 *11 (C.D. Cal. Sept. 14, 2006) (citations omitted); McCoy v. Scantlin, 2004 WL
22 5502111, at *4 (C.D. Cal. June 1, 2004) (constructive trust is an equitable remedy).
23 In its Prior Decision, the Court followed this reasoning, and dismissed
24 Armes’s accounting and constructive trust claims “[i]nsofar as those claims
25 encompass Armes’s” dismissed claim for authorship of the Recording. Armes,
26 2020 WL 6135068, at *7. Given that Armes’s claim of authorship in the Circles
27 Composition also must be dismissed, the identical analysis now compels the
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1 dismissal of Armes’s accounting and constructive trust claims for the Circles
2 Composition.
3 At minimum, even in the event summary judgment is not granted on the
4 joint authorship claims, and it should be in Defendants’ favor, Armes’s accounting
5 and constructive trust claims should be dismissed as premature.10 There can be no
6 trial on these issues prior to a determination of the declaratory relief.11
7 VII. CONCLUSION
8 For the foregoing reasons, Defendants respectfully request that the Court
9 grant their motion for summary judgment in its entirety.
10
11 Dated: February 28, 2022 MITCHELL SILBERBERG & KNUPP LLP
12 DAVID A. STEINBERG
CHRISTINE LEPERA
13 JEFFREY M. MOVIT
14 GABRIELLA N. ISMAJ
15
16 By: /s/ David A. Steinberg
17 David A. Steinberg (SBN 130593)
Attorneys for Defendants
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Defendants could also seek to bifurcate these as well should it become necessary.
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27 Notably Plaintiff failed to seek any discovery related to these claims even in the belated
discovery he did serve, which this Court ruled could not be pursued under the Scheduling and
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