drum circle

7/27/2019 Drum Circle

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SUPERIOR COURT O C LIFORNI COUNTY O OS NGELES

12/2 0/13 DEPT WEO

LISA H RT OLE JUDGE N LEE DEPUTY CLERK

S. MIXON c/AJUDGE PRO TEM ELECTRONIC RECORDING MONI

NONE Deputy Sheriff NONE Reporter

SC118527 Plaintiff

Counsel

HOW RD SCOTT KING NO APPEARANCES Defendant

TOMMY LEE ET AL Counsel

N TURE OF PRO EEDINGS

allegedly drove to th e guard and retrieved thepackage. Id Plaintiff d id not ask Lee to ex ecu tean ND prior to turning the package over to him .Id. at 70. Lee d en ies that this meetin g ev er tookplace or that he ever received a package from King.See Motion, Deci. of Tommy Lee, ¶6 7.

In opposition Plaintiff does not dispute thatFisher and Thaler had noth ing to do w ith th ecreation of the “drum ring.” See SSUMF No. 88. Forthis reason whether Fisher and T h aler had access

and wheth er the 1991 meeting o ccu rred is immaterial.Even assum ing th e meeting had occu rred and Fisher

and T haler received the proposal Plaintiff has noev id ence that Fisher and T h aler ever conveyedPlaintiff’s idea to the perso ns responsible forcreating th e drum ring. The access inquiry fo cu seson whether those p erso n s w ith access were th eindividuals who purportedly in dep en d en tly createdthe purportedly misappropriated work. “A reasonable

possibility of access requires a sufficiently strong

nexus betw een the intermediary to whom thepl int iffs su b m itted their work and the creator ofth e allegedly offending work.” S pinn er v. AmericanB ro adcast in g Companie s, In c 2013 215 C al A pp 4 th172, 186.

Instead Plaintiff claim s that Lee, 20 years afterpurportedly receiving l intiff’s packet proposedsom e fo rm of the “drum ring” based on his memory ofthe Plaintiff’s Loop Coaster. See Plaintiff’s

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COUNTY CLERK



SUPERIOR COURT O C LIFORNI COUNTY OF OS NGELES

E 12/20/13 DEPT WEO

R BLE LISA HART COLE JUDGE N LEE DEPUTY CLERK

S. MIXON C/AOR BLE JUDGE PRO TEM ELECTRONIC RECORDING MONI


SC118527 Plaintiff

Counsel

HOW RD SCOTT KING NO APPEARANCES Defendant


NATURE OF PROCEEDINGS

Response to SSUMF Nos. 86-87. However l intiff

adm its he d id not require Lee to execu te an NDA andmerely dropped of the unmarked package w ithou tsay ing any th ing to Lee nor does he have anyevidence that Lee actually looked at the package.Based on these undisputed facts and as to Lee l intiff lls within that category of th e “ idea

man who blurts out his idea w ithou t hav ing irstmade his bargain ” Such facts do not support aclaim for breach of an im plied contract

Moreover even i Lee had access to l intiff’s

idea l intiff has no ev idence to refute

Defendant’s assertion that Lee was not invo lved inthe creation of th e drum ring See l intiff’s

Response to SSUMF Nos. 73-82 86-88. Pearce Longand White detail how they arrived at the idea of adrum ring through tri l and error initi llyproposing an “egg yolk ” idea to the band. Id Thedrum ring idea was proposed by Pearce after the bandrejected the “egg yolk” id ea and was prompted bythe existing circular stage centerpiece and a trussthat Show Group P roduction Services already had.See Declaration of E. Pearce ¶J9-11 . Pearcesuggested the idea Id

l intiffhas no ev id ence to refute Defendan ts’

position that the “drum ring” was created by“independen t effort ” which is a com plete defense to

l intiff’s 5th c/a Mann v. Columbia PicturesInc supra 128 Cal.App .3d at 650 any inference of

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COUNTY CLERK



SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES

12/20/13 DEPT WEO

LISA HART COLE JUDGE N LEE DEPUTY CLERK

S. MIXON C/AJUDGE PRO TEM ELECTRONIC RECORDING MONIT


SC118527 Plaintiff

Counsel

HOW RD SCOTT KING NO APPEARANCESVS Defendant


N TURE OF PROCEEDINGS:

drum ring was independently created l intiffcannot avoid summary judgment even if a quest ion offact exists regarding whether simil rities existedbetween the drum ring and th e Loop Coaster . Suchsimil rities would merely give rise to an inferenceof access and use. Id . Such an inference would bedispelled by direct evidence of independentcreation. Id. “An issue of fact regardingsubstantial similarity is not necessarily sufficientto overcome summary judgment when the defendantsshow as a matter of law that they independentlycreated their product. In an idea submission casesimilarities that do not result from copying are

similarities without legal significance.” Spinnersupra 215 Cal.App.4th at 184-185 defendant C

established affirmative defense of independentcreation to pl intiff’s breach of implied contractclaim with direct evidence from creators of Lostseries that they d id not have access to pl intiff’sscript L.O.S.T. nor did they consul t with anypersons who may have had access to pl intiff’sscript which was submit ted 30 years prior tocreation of Lost series

With regard to substantial similarity Defendantargues that the issue is one of law to be determined

by the Court . However applicable California caselaw is to the contrary. “Similarity access anduse present quest ions of fact fo r th e jury.” Mannsupra 128 Cal.App.3d at 648. “ f as a mat ter oflaw there is no such similarity no quest ion of

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COUNTY CLERK

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