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David Jackson Mueller Testifies In Taylor Swift Trial

The second day in court and the first day of testimony in former KYGO/DENVER host DAVID "JACKSON" MUELLER's lawsuit against TAYLOR SWIFT for accusing him of groping her, which led to his firing by KYGO, included MUELLER testifying that he may have touched SWIFT's ribs and saying that audio of his post-incident meeting with station management was destroyed by an accidental coffee spill on his computer keyboard while he sent the files to SWIFT's lawyers.
MUELLER has steadfastly denied inappropriately touching the singer at the 2013 pre-concert meet-and-greet, and repeated his denial on the stand, admitting that he may have touched her ribs with a closed hand while trying to reach around her posing for a photo.

On the audio files, MUELLER said he recorded a meeting with then-PD/host EDDIE HASKELL (HERSHEL COOMER) and VP/Market Manager BOB CALL but, after sending 19 clips to SWIFT's lawyers (who said they got only 11 of them), the coffee spill and a water spill on a second computer prevented further clips from being sent. Further testimony involved MUELLER's assertion that HASKELL told him that SWIFT had jumped into his arms and he held her with his hands on her butt, which MUELLER dismissed as "one of his stories," but he did not explain under cross-examination why he did not inform CALL about the story.

Led Zeppelin Asks Appeals Court to Award Fees for "Stairway" Trial Win

"Skidmore continues to advance frivolous arguments and misstate the law," writes the band's attorney in the brief.

The "Stairway to Heaven" legal fight has become an even more formidable climb for the 9th Circuit, as Led Zeppelin's legal team has filed a cross-appeal asking it to consider whose glittering gold should be used to pay for the litigation.

Last summer, a jury found guitarist Jimmy Page did not copy the song's iconic riff from a 1968 instrumental piece by Spirit called "Taurus."

Michael Skidmore, the trustee who sued the band on behalf of late Spirit songwriter Randy Wolfe's estate, wasn't content to accept the loss. His attorney Francis Malofiy filed a 90-page appeal brief in March, arguing that the jury did not believe the songs were substantially similar because it wasn't allowed to hear the "Taurus" sound recording. At the time Wolfe created the composition, sheet music was protected by federal copyright law but sound recordings weren't.

The jury did find, however, that Page had access to the song — and that's the cornerstone of Malofiy's second major argument on appeal. He says the jury wasn't adequately informed about the inverse ratio rule, which essentially lowers the bar for substantial similarity when a high degree of access has been proven.

Led Zeppelin attorney Peter Anderson filed an even more voluminous reply on Friday, arguing that "substantial evidence supports the jury's verdict and Skidmore's appeal has absolutely no merit."

Specifically, Anderson says the argument about jury instructions regarding the inverse ratio rule is moot because Skidmore "did not prove the high degree of access required to trigger that rule" and "no amount of access will establish copyright infringement if, as the jury found here, there is no substantial similarity in protectable expression."

As to the sound recording issue, Anderson argues, "Skidmore misreads statutes and cases to advocate against black-letter copyright law that the copyright registered in a work protects only the copyrighted work and that federal copyright does not extend to sound recordings created prior to February 15, 1972."

In addition to replying to Skidmore's appellate arguments, Anderson is cross-appealing. He's asking the 9th Circuit to affirm the judgment, but reverse U.S. District Court judge R. Gary Klausner's order regarding fees. Anderson also represents publisher Warner/Chappell Music, which bore nearly all of the legal costs and fees for the defense — and he wants the appellate court to make Wolfe's estate pick up the tab.

Klausner in August denied Warner/Chappell's request for an award of $800,000 in fees and costs, finding that Skidmore's lawsuit was not frivolous or objectively unreasonable — despite litigation misconduct by his attorney.

Anderson says Klausner erred in treating that misconduct with equal weight as the Fogerty factors, a set of standards that were established for evaluating fee awards in copyright cases in a 1994 U.S. Supreme Court case involving singer John Fogerty.

"The District Court — without considering whether its ruling furthered the purposes of the Copyright Act — identified the following Fogerty factors: '(1) "the degree of success obtained on the claim"; (2) "frivolousness"; (3) "motivation"; (4) "objective reasonableness of factual and legal arguments"; and (5) "need for compensation and deterrence,"'" writes Anderson. "However, the District Court erred on the law and the record, and all of the Fogerty factors favor awarding attorneys’ fees."

Anderson argues that it was unreasonable for Skidmore to sue based on "the shared presence of five pitches of the chromatic scale" when it's fundamentally true that "no one owns musical scales."

Further, Anderson argues that "motivation" should have been a strike against Skidmore because Wolfe in his lifetime did not sue Led Zeppelin, and neither did any of his heirs until a 2014 Supreme Court case eliminated the defense of laches in copyright claims. That case, Petrella v. Metro-Goldwyn-Mayer, opened the floodgates for damages claims that were previously time-barred as long as they were filed within the three-year statute of limitations. Here, Led Zeppelin became a target by releasing a remastered version of the band's album IV containing "Stairway" in 2014.

Finally, Anderson argues that treating litigation misconduct as an unofficial sixth Fogerty factor dilutes the severity of the act.

"Defendants respectfully submit that the District Court’s Judgment and Amended Judgment should be affirmed and that the District Court’s Order denying Warner/Chappell’s motions for attorneys’ fees and additional costs should be reversed with instructions to grant those motions," writes Anderson. "In addition, and including because Skidmore continues to advance frivolous arguments and misstate the law ... defendants should recover their costs and attorneys’ fees on appeal."

The studio can't escape Incarcerated Entertainment's lawsuit that claims the film was marketed as a true story when it isn't one.

Cast and crew saying or implying that War Dogs is a "true story" is enough to keep a false advertisement lawsuit against Warner Bros. alive, a Florida federal judge ruled Wednesday.

Efraim Diveroli, a former arms dealer portrayed by Jonah Hill in the 2016 film, is suing Warners for false advertising and unfair competition, among other claims.

Instead of optioning Diveroli's manuscript, Once a Gun Runner, Warner Bros. enlisted Guy Lawson, a Rolling Stone writer who had interviewed him in prison and written a magazine feature that was expanded into a book. The ex-con takes issue with how he was portrayed and how the film was promoted.

"The gravamen of the Amended Complaint is that Warner grossed more than $85 million by promoting War Dogs as Diveroli’s 'true story' when it was not the true story," writes U.S. District Judge Mary Scriven. "The Amended Complaint identifies a number of allegedly false advertisements, including statements in movie trailers, social media posts, and promotional interviews with War Dogs’ director, Todd Phillips, screenwriter Stephen Chin, and stars Jonah Hill, Miles Teller, and Bradley Cooper."

Warners, meanwhile, argued that the statements regarding the truth of the story aren't actionable because they're protected by the First Amendment.

Scriven found that Diveroli plausibly alleged in his amended complaint that the comments are "commercial speech" and therefore subject to the Lanham Act, which prohibits false advertising in connection with commercial advertising or promotion. The judge found that the statements were promotional, referred to a specific product and that Warners had an economic motivation for making them.

"Warner knew that representing the story as 'true' would induce consumers to see War Dogs," writes Scriven. "Although movies are works of artistic expression and must be protected, 'they are also sold in the commercial marketplace like other more utilitarian products, making the danger of consumer deception a legitimate concern that warrants some government regulation.'"

The studio also argued that Diveroli failed to allege facts necessary to state a false advertising claim, but Scriven disagrees, noting that, while Warner Bros. is right to insist the statements be considered in their full context, the argument is not well-suited to a motion to dismiss.

"[A]part from advancing that argument, Warner neglects to address the relevant question: whether the statements, read in their full context, falsely or misleadingly portray War Dogs as a true story," writes Scriven. "Warner implies that they do not, but that conclusion calls for a fact-intensive inquiry and that the Court draw inferences in Warner’s favor, neither of which is appropriate on a motion to dismiss."

The decision isn't a total loss for the studio, though. The judge found that allegations involving the War Dogs website and Facebook page and comments Lawson made while promoting his own book "are not, in and of themselves, actionable."
(The full order is posted below.)

were false or misleading, the accuracy of the movie is not relevant to the issue of materiality.
3. Zone of interests and proximate causation

Warner next argues that the Amended Complaint omits the necessary allegations of injury and causation. (Dkt. 89 at 22-23) In Lexmark International, Inc. v. Static Control Components, Inc., the Supreme Court held that, in order to state a false-advertising claim under the Lanham Act, a plaintiff “ordinarily must show economic or reputational injury flowing directly from the deception wrought by the defendant’s advertising . . . .” 134 S. Ct. 1377, 1391 (2014).

With respect to injury, the Amended Complaint alleges that Warner’s advertising has caused “loss of goodwill” and “loss of sales.” (Dkt. 78 at ¶ 113) Those allegations are similar to the allegations in Lexmark, and Warner cites no authority to support its contention that Plaintiff must allege in “detail” how its goodwill was damaged or how its sales declined. (Dkt. 89 at 22); Lexmark, 134 S. Ct. at 1393 (explaining that the counterclaimant’s “alleged injuries – lost sales and damage to its business reputation – are injuries to precisely the sorts of commercial interests the [Lanham] Act protects”). Warner may instead seek discovery on the nature and extent of Plaintiff’s damages. With respect to causation, Lexmark instructs that the necessary showing is present when “deception of consumers causes them to withhold trade from the plaintiff.” Lexmark, 134 S. Ct. at 1391. In contrast to the facts at issue in Lexmark, which involved a claim by a downstream supplier, Plaintiff alleges that it is a direct victim of Warner’s advertising because
War Dogs

diverted book sales from Plaintiff. In particular, the Amended Complaint alleges that “consumers who desire to learn the true story are most likely to purchase a ticket to the movie, after being bombarded with promotional material, rather

Case 8:16-cv-01302-MSS-AAS Document 117 Filed 05/10/17 Page 16 of 19 PageID 2528

than purchasing Diveroli’s memoir.” (Dkt. 78 at ¶ 75) Accordingly, Plaintiff plausibly alleges that its injuries “flow[ ] directly” from Warner’s advertising. Lexmark, 134 S. Ct. at 1393. Again, whether Plaintiff will actually be able to prove its theory is a separate question that is not appropriate for resolution on a motion to dismiss.
C. Florida’s Anti-SLAPP Statute
At the conclusion of the motion to dismiss, Warner asserts that Plaintiff’s complaint falls within Florida’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, Fla. Stat. § 768.295. (Dkt. 89 at 24-25) As a result, Warner contends that “if and when” the Court grants its motion to dismiss, Warner will file a motion for an award of fees and costs. (Id. at 25); see Fla. Stat. § 768.295(4) (“The court shall award the prevailing party reasonable attorney fees and costs incurred in connection with a claim that an action was filed in violation of this section.”). Currently, Warner does not appear to ask for any relief under the anti-SLAPP statute. For instance, Warner does not contend that resolution of this motion is evaluated under a summary-judgment standard and it does not request an expedited hearing. See Fla. Stat. § 768.295(4) (providing that a defendant may file a motion for summary judgment seeking a determination that the anti-SLAPP statute has been violated). The Court therefore declines to address the application of Fla. Stat. § 768.295 at this juncture. Compare Royalty Network, Inc. v. Harris, 756 F.3d 1351, 1357-62 (11th Cir. 2014) (holding that verification requirement imposed by Georgia’s anti-SLAPP statute did not apply in a diversity case), and Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1337 n.5 (D.C. Cir. 2015) (holding that attorney’s fees were not available under Washington D.C.’s anti-SLAPP statute), with Edward Lewis Tobinick, MD, 848 F.3d at 944-45 & n.8

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(applying California’s anti-SLAPP statute, which allowed a special motion to strike, where the appellants waived their challenge to its application in the district court), and Adelson v. Harris, 774 F.3d 803, 809 (2d Cir. 2014) (holding that mandatory fee shifting provision in Nevada’s anti-SLAPP scheme applied in federal court).
D. Consideration of Exhibits
Warner filed a separate request for the Court to consider twenty-two exhibits in support of its motion to dismiss, which are designated as Exhibits A through V. (Dkts. 90, 91) After the parties conferred, Warner withdrew its request as to Exhibits F through H, and Plaintiff stipulated to the Court’s consideration of Exhibits A and N through V (Dkt. 96), which are referred to, excerpted in, or attached to the Amended Complaint or original complaint, and which are central to Plaintiff’s claims. (Dkt. 91 at ¶¶ 4, 17-25; Dkt. 78 at ¶¶ 29-30, 55, 60, 62-67, 70); see Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (holding that documents may be considered on a Rule 12(b)(6) motion if they are undisputed and central to the plaintiff’s claims). The remaining exhibits—Exhibits B through E and I through M—include documents from Diveroli’s criminal and civil cases, a U.S. Congressional committee report about Diveroli’s company, and a related news article. (See Dkt. 91 at ¶¶ 5-8, 12-16) Although Warner asserts that these exhibits are relevant to Diveroli’s “misconduct and notoriety” (Dkt. 90 at 5), the Court declines to consider the documents because Diveroli’s misconduct and notoriety are not relevant to the motion to dismiss. For its part, Plaintiff submits screenshots from four websites that offer movies on-demand and in which
War Dogs
is described as a “true story.” (Dkt. 98) Plaintiff contends that these descriptions were “located after filing the Amended Complaint,” and that they

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Sylvester Stallone Suing Warner Bros. for Fraud and "Dishonesty"

The actor claims that the studio intentionally concealed 'Demolition Man' profits and is seeking to "end" bad accounting practices on Warners' part "for all talent."

In the 1993 science-fiction film Demolition Man, Sylvester Stallone's character is brought out of a decades-long state of cryopreservation to pursue a nemesis. The actor himself has now wakened from a slumber of a different kind to take on Warner Bros. over its accounting of profits on the film.

On Wednesday, through his loan-out company Rogue Marble, Stallone filed contract and fraud claims against the studio. In a complaint lodged in Los Angeles Superior Court, he alleges that the participation statement doesn't make sense while demanding a fuller accounting on Demolition Man, which also starred Wesley Snipes and Sandra Bullock. The film made about $58 million upon its theatrical release and much more in home video sales.

In taking on Warner Bros., Stallone is fighting the same studio that distributed 2015's Creed, which earned him an Oscar nomination. But the 70-year-old actor believes the time is right and is making a stab at doing something about "Hollywood Accounting" with the stated intention of helping others in the creative community.

"The motion picture studios are notoriously greedy," states the complaint. "This one involves outright and obviously intentional dishonesty perpetrated against an international iconic talent. Here, WB decided it just wasn't going to account to Rogue Marble on the Film. WB just sat on the money owed to Rogue Marble for years and told itself, without any justification, that Rogue Marble was not owed any profits. When a representative of Rogue Marble asked for an accounting, WB balked and then sent a bogus letter asserting the Film was $66,926,628 unrecouped. When challenged about this false accounting, it made a double-talk excuse, then prepared an actual profit participation statement for the same reporting period, and sent a check for $2,820,000 because the Film had in fact recouped its deficit."

According to the lawsuit, Stallone got 15 percent of defined gross once the picture earned $125 million. When Demolition Man earned more than $200 million, his take would escalate to 17.5 percent, and when it surpassed $250 million, his profit participation would climb to 20 percent.

Demolition Man, states the complaint, achieved at least $125 million, so Stallone asserts he's entitled to at least 15 percent.

Stallone says that after 1997, he got no profit participation statements until his agent reached out to Warners in 2014 to inquire.

In January 2015, he received a short summary which noted an alleged deficit for the film and stated that no payment was due. Stallone's company then questioned the validity of numbers "because they did not make any sense." Soon, a second statement came along with a $2.8 million check. It was only one page. There wasn't much detail.

"Rogue Marble alleges on information and belief that it is owed additional contingent compensation on the Film," states the complaint.

The actor is seeking an unknown amount of restitution for the alleged contractual breach and also targeting much greater damages with a fraud claim. Stallone will be attempting to support the fraud claim by showing that the studio misrepresented and intentionally concealed facts. However, as the case moves forward, he'll likely need to demonstrate why such a claim isn't duplicative of the asserted contract breach.

Somewhat unusually, Stallone is also bringing a cause of action that alleges Warner Bros. has engaged in unfair business practices. The complaint characterizes the studio's conduct as "unscrupulous, unethical and offensive, and causes substantial injury to consumers" and "threatens or harms competition because other studios (that compete with WB) have their own agreements with profit participants and account using their own accounting methods. ... WB attempts to keep its accounting methods hidden from competitors and the public at large because revealing such methods will have an impact on competition."

Besides money, the actor wants injunctive relief. The complaint states, "Mr. Stallone is entitled to, among other things, a full accounting, an explanation of how this practice came to be, interest, damages, and an end to this practice for all talent who expect to be paid by WB for the fruits of their labor."

We've uploaded a full copy of the complaint. Stallone is represented by attorney Neville Johnson.

Warner Bros. had no comment.