Dan Lifschitz
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lifschitz.esq
Dan Lifschitz
@lifschitz.esq
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Entertainment/IP litigator @ Gipson Hoffman & Pancione, copyright professor @ UCLA and Southwestern Law School. Would like to stop having to reconstitute my online presence every time a prior platform lights itself on fire.

E-mail: dan[at]lifschitz.esq
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lifschitz.esq
Fourth, they royally botched their separate statement through poor drafting, inclusion of irrelevant facts, and failing to support what facts actually mattered through evidence in the record. When you make a judge slog through shoddy work product like this, you’re begging for a benchslap.
Were that all, the Court would hesitate to find such conduct sanctionable under Rule 11. But as Defendants note, many of the other claimed facts are also "vague, compound, and incomprehensible mixtures of factual assertions and conclusions, subjective opinions, and other irrelevant evidence." ECF 74-1 at 17 (citing P-SUF 2, 5, 6, 8-14, 24-25, 27-34, 36-43, 47-64, 66-69). For example, Plaintiffs' Fact 10 states, without any evidentiary support, that "Defendants undoubtedly had access to [Vance] prior to writing and releasing [Carey] given its wide commercial and cultural success," P-SUF 10, even though access was not at issue in this initial phase as to the extrinsic test. Similarly, Fact 68 cites Sakakeeny's declaration for the bald proposition that "Carey would have had ample access to [Vance]," P-SUF 68, despite Sakakeeny's admission that he was never designated as an expert on the factual issue of copying, ECF 69-4 1 7. Although Plaintiffs withdrew certain legally irrelevant arguments in their Reply, Plaintiffs did not withdraw numerous irrelevant facts in their Response to Statements of Genuine Dispute ("RSGD"). See generally ECF 77-1. At Fact 68, for instance, Plaintiff responds, "As to the disputed portion, Plaintiff (sic) respectfully refers to Sakakeeny Decl." Id. 68. The RSGD is replete with this type of perfunctory response. E.g., id. 7-9, 12, 19, 23-29, 32-43, 50-68. The Local Rules clearly provide that for facts disputed by the opposing party, the moving party's response must include "pinpoint citations including page and line numbers, if available, to evidence in the record... to rebut the existence of a genuine dispute." L.R. 56-3. It is clear to the Court that Plaintiffs' counsel made no reasonable effort to ensure that the factual contentions asserted have evidentiary support. Thus, the litany of irrelevant and unsupported factual assertions reflected in Plaintiffs' SUF and RSGD has served only to confuse the Court and the parties. Defendants argue that Plaintiffs' Statement of Uncontroverted Facts ("SUF") are improper because they violate the Local Rules and "simply copy-and-paste[]" conclusory allegations from the FAC. They further contend that Plaintiffs' factual contentions lack any evidentiary basis. Id. at 18-22. Plaintiffs accuse Defendants of "hammering on Plaintiffs' inclusion of facts unrelated to the extrinsic test" and "misstating the background information which Plaintiffs did not include for any nefarious purpose[.]" The Court agrees with Defendants that the Plaintiffs' SUF violates the Local Rules and is procedurally improper. The Local Rules require parties moving for summary judgment to "set forth the material facts as to which the moving party contends there is no genuine dispute" with each fact "supported by pinpoint citations (including page and line numbers, if available) to evidence in the record." L.R. 56-1. Several of the purported facts set forth in Plaintiffs' SUF are supported only by Plaintiffs' FAC or statements made in conclusory declarations accompanying the Motion, not evidence in the record. Plaintiffs also fail to pin cite any of the evidence supporting their purported facts. See generally P-SUF 16-69. Plaintiffs explain that they included background facts from their pleading "for the simple purpose of providing a historical context of the two works .... There is no reason to sanction a party for including more, rather than less, factual information." As explained above, most facts derived from the FAC are cited in support of irrelevant arguments on copying, not as background. Further, irrelevant and unsupported allegations in a pleading are not material facts at summary judgment and therefore do not belong in a statement of uncontroverted facts. The Court finds that these deficiencies alone are sanctionable under the Local Rules. See L.R. 83-7(a)-(b).
March 20, 2025 at 5:12 AM
lifschitz.esq
Third, they repeatedly relied on expressly overruled legal principles. Some (like the inverse ratio rule) were overruled fairly recently (2020). Others (like the extrinsic test concerning similarity of ideas) haven’t been good law for several decades. I found this part genuinely horrifying.
Fink also bases his conclusions on the inverse ratio rule, which required "a lower standard of proof of substantial similarity when a high degree of access [to the protected work] is shown." Skidmore, 952 F.3d at 1065-66 (quoting Three Boys, 212 F.3d at 486- 87). He states in his report that a claimed similarity would be significant "given . .. a strong case for access." ECF 73-5 1 6, at 26 (emphasis added). Skidmore explicitly abrogated the inverse ratio rule in this circuit, explaining: "Because the inverse ratio rule, which is not part of the copyright statute, defies logic, and creates uncertainty for the courts and the parties, we take this opportunity to abrogate the rule in the Ninth Circuit and overrule our prior cases to the contrary." Id. at 1066. In so holding, the Ninth Circuit "join[ed] the majority of [its] sister circuits that have considered the inverse ratio rule and have correctly chosen to excise it from copyright analysis." Id. at 1069. The court clarified that it is "not suggesting that access cannot serve as circumstantial evidence of actual copying in all cases; access, however, in no way can prove substantial similarity." Id. (emphasis added). Rule 11 imposes a non-delegable, "affirmative duty" upon the attorney to conduct a reasonable inquiry into the law before filing a motion. Lloyd v. Schlag, 884 F.2d 409, 412 (9th Cir. 1989). Plaintiffs' counsel did not uphold this duty. As an initial matter, Plaintiffs submitted legal arguments on elements wholly irrelevant to the extrinsic test. See ECF 69; cf. ECF 53. Although Plaintiffs later withdrew these arguments, ECF 77, Plaintiffs' Motion is nevertheless frivolous within the meaning of Rule 11 as to the extrinsic test. The Court agrees with Defendants that Plaintiffs' Motion is predicated on an abrogated legal rule: that "substantial similarity is inextricably linked to the issue of access." ECF 69 at 11 (citing Skidmore, 952 F.3d at 1065-66). As explained above, the very case cited by Plaintiffs expressly abrogated this rule. Skidmore, 952 F.3d at 1069 ("Because the inverse ratio rule, which is not part of the copyright statute, defies logic, and creates uncertainty for the courts and the parties, we take this opportunity to abrogate the rule in the Ninth Circuit and overrule our prior cases to the contrary."). A reasonably diligent review of Skidmore would have made clear that access "in no way can prove substantial similarity" in this circuit. Id. Plaintiffs' reliance on Skidmore for a legal proposition abrogated by that case is as clear an indication as any that Plaintiffs' counsel did not conduct a reasonable inquiry into the law prior to filing the Motion. Plaintiffs make no attempt to square their misstatement of the law. In fact, they double down on outdated legal standards and overruled authorities in their Reply. They once more assert, without any legal support, that "[t]he question of' access' is encompassed under the 'copying' element, along with substantial similarityL.]" ECF 77 at 2. That is not so. See Skidmore, 952 F.3d at 1064 (explaining that copying and unlawful appropriation, which includes substantial similarity, are "separate components"). Plaintiffs further claim that "[under Krofft, if the extrinsic test reveals similarities in ideas, the court proceeds to the ... intrinsic test." ECF 77 at 2 (citing Sid & Marty Krofft Tel. Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1165 (9th Cir. 1977)). This has not been the law of this circuit for over 30 years. It is true that in Krofft, the Ninth Circuit initially conceived of the extrinsic test as a "test for similarity of ideas" and the intrinsic test as a test of similarity "in the expression of the ideas." 562 F.2d at 1164. But the Ninth Circuit has long since rejected this formulation, holding instead that "the line [between the extrinsic and intrinsic tests] is more properly drawn between objective and subjective analyses of expression," not ideas. Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1473-74 (9th Cir. 1992) (citing Shaw v. Lindheim, 919 F.2d 1353, 1357 (9th Cir. 1990)). That is because "[i]n no case does copyright protection... extend to any idea." 17 U.S.C. § 102(b); see also Skidmore, 952 F.3d at 1069 ("[Clopyright does require at least a modicum of creativity and does not protect... ideas, concepts, and common elements[.]"). Plaintiffs' continued reliance on abrogated legal principles confirms that Plaintiffs' counsel failed to conduct a reasonable inquiry into the law.
March 20, 2025 at 5:04 AM
lifschitz.esq
Second, they relied on two perfunctory musicological expert reports (one three pages, one eight pages) that failed to properly apply the extrinsic test, submitted no rebuttal reports, and tried to sneak rebuttal testimony into depositions and declarations. Suffice to say, it didn’t work.
The Fink Report is deficient on its face. It consists of a scant six paragraphs of "preliminary" findings covering less than three pages without any supporting exhibits. See ECF 73-5 at 24-27. "Brevity alone does not render an expert report deficient, but [the Fink] Report is silent on too many matters to be considered either adequately supported or probative of the [only] issue [at hand]—the application of the extrinsic test." Johannsongs-Publ'g Ltd. v. Lovland, No. CV 18-10009-AB (SSx), 2020 WL 2315805, at *5 (C.D. Cal. Apr. 3, 2020). At the outset, Fink does not provide any explanation of the principles or methods he relied on to form his opinion. He does not disclose what materials he reviewed in making his findings, apart from a single reference to an unattached, "preliminary transcription" of Carey. ECF 73-5 95, at 24. Nor does he provide an adequate description of the technical terms used in his analysis or their relevance. E.g., id. at 25-26 (referring to "lyrical realizations," "musical style," "root progression," "tonal harmony," "patterns of tension and release," "scale degree," among other undefined terms). Because of these omissions, the Court has no way of determining whether the Fink Report is the product of any reliable principles and methods. Unlike the Fink Report, the Sakakeeny Report describes some principles and methods of analysis. Specifically, it is organized into five sections to compare the following musical elements in order of importance: (1) lyrics, (2) primary melody or "hook," (3) overall melody and phrasing, (4) harmony, and (5) rhythm. ECF 73-5 at 29. Nevertheless, it suffers from similarly obvious deficiencies that render it inadequately supported. See Johannsongs, 2020 WL 2315805, at *5. As with the Fink Report, several of the musical elements are left undefined, and their relevance unexplained. E.g., id. at 32 (referring to, among other undefined elements, "harmonic background," "rhythmic placement and emphasis," "the overall 'contour' or direction of the melody," and "harmonic language"). And apart from vaguely referencing prior art and the sheet music, see ECF 73-5 at 29, 35-36, it is unclear what materials Sakakeeny reviewed and relied upon before rendering his opinion. Thus, while the Sakakeeny Report contains some semblance of methodology, the Court still strains to ascertain the reliability of the methods and principles employed The Court's Bifurcation Order required Plaintiffs to submit rebuttal reports by June 3, 2024.6 See ECF 58. They did not. Now, months past the deadline, Plaintiffs inexplicably attempt to rehabilitate their witnesses by having them respond in their declarations to the Ferrara and Lewis Reports. Plaintiffs make no showing that their failure to timely disclose expert testimony was substantially justified or harmless. Plaintiffs only lament that "[diue to time constraints on the experts, the expert depositions stood in for any rebuttal report." P-SGD 4. The Court is not moved by such excuses. Depositions are not rebuttal disclosures. "A party's inability to prepare an expert report within the discovery and expert disclosure deadlines set forth in a scheduling order does not excuse compliance with the requirements of Rule 26(a)(2)(B)." Wilderness Dev., LLC v. Hash, No. CV 08-54-M-JCL, 2009 WL 564224 (D. Mont. Mar. 5, 2009) (citing Salgado v. Gen. Motors Corp., 150 F.3d 735, 741 (7th Cir. 1998)). Plaintiffs could have, but did not file a motion to extend the rebuttal deadline, and their failure to do so "amounts to nothing more than poor case management and lack of care and due diligence." Pineda v. City & Cnty. of San Francisco, 280 F.R.D. 517, 521 (N.D. Cal. 2012). Moreover, that these rebuttals were inserted into the experts' later-filed declarations in support of Plaintiffs' Opposition, but not their earlier-filed declarations in support of Plaintiffs' own Motion for Summary Judgment, tells a clear tale of too little, too late. Compare ECF 69-3 and ECF 69-4 with ECF 73-3 and ECF 73-4. The Court concludes that the Fink Declarations and the Sakakeeny Declarations are a product of unreliable and unhelpful expert testimony and untimely rebuttal testimony. Accordingly, the Court excludes the Fink and Sakakeeny Declarations.
March 20, 2025 at 4:58 AM
lifschitz.esq
First, they ignored a bifurcation order that required them to focus their MSJ only on the issue of extrinsic similarity. They dedicated a scant three pages of their moving papers to that issue and larded up the rest with improper arguments about ownership, access, and copying.
The parties agreed that bifurcation would be "the most judicially efficient way to manage this litigation" because "[i]t would provide the parties an early opportunity to determine a dispositive issue[.]" ECF 53 at 2. Consistent with this shared understanding, the Court ordered the parties to conduct discovery and file motions for summary judgment as to the extrinsic test only. Id. at 3. The Court stayed all other discovery. Id. Despite the parties' agreement and the Court's clear instructions, Plaintiffs, by and through their counsel, inexplicably moved for summary judgment on other elements of their copyright claim, i.e., ownership, copying, and access. See ECF 69 at 10-15. Plaintiffs' counsel offers no explanation for failing to comply with the Bifurcation Order. Counsel claims that any reference to issues outside of the extrinsic test was "intended only as background." ECF 78 at 6. This explanation strains credulity. Plaintiffs' Motion devotes an entire section of the argument-not background —to the issues of ownership, copying, and access. See ECF 69 at 10-15. Tellingly, Plaintiffs' proposed order granting their Motion requests a finding that "[t]here are no genuine issues of material fact as to Plaintiffs' First and Second Causes of Action in the Complaint," ECF 69-5 at 2 (emphasis added), not just as to substantial similarity under the extrinsic test. This requested relief defies logic considering the parties have not had an opportunity to conduct fact discovery as to those elements. Plaintiffs' failure to comply with the Bifurcation Order is clear evidence of Plaintiffs' improper purpose in filing for summary judgment. Plaintiffs' counsel, as an officer of the Court, is at fault for this non-compliance. Instead of timely remedying this misconduct, Plaintiffs' counsel delayed and needlessly caused Defendants to oppose irrelevant factual and legal issues that are not properly before the Court.
March 20, 2025 at 4:49 AM
lifschitz.esq
Oh wow. The order on Mariah Carey’s MSJ in the copyright infringement litigation over All I Want For Christmas Is You dropped earlier today, and it’s an absolute bloodbath. You don’t often see Rule 11 sanctions in these cases, but the plaintiffs’ attorneys seemingly screwed up… basically everything!
Before the Court are Defendants' and Plaintiffs' Motions for Summary Judgment and Defendants' Motion for Sanctions. ECF 68, 69, 74. The Court read and considered the moving, opposing, and reply papers and held a hearing. ECF 80. For the reasons stated herein, the Court GRANTS Defendants' Motion for Summary Judgment and Motion for Sanctions and DENIES Plaintiffs' Motion for Summary Judgment. Based on the foregoing, Plaintiffs have not met their burden of showing that Carey and Vance are substantially similar under the extrinsic test. Because Fink and Sakakeeny's testimony is not admissible, the well-supported conclusions made in the Ferrara Reports and the Lewis Reports are effectively unrebutted and not genuinely disputed. A plaintiff who fails to satisfy the extrinsic test cannot survive summary judgment on a copyright claim. Benay v. Warner Bros. Entm't, Inc., 607 F.3d 620, 624 (9th Cir. 2010). Accordingly, the Court GRANTS Defendants' Motion for Summary Judgment and DENIES Plaintiffs' Motion for Summary Judgment. Defendants request that the Court impose sanctions in the amount of reasonable attorney's fees that Defendants incurred in preparing their Opposition to Plaintiffs' Motion and their Motion for Sanctions. ECF 74-1 at 24. Although each incident of sanctionable conduct, in isolation, may not warrant more than a stern reprimand, it is the aggregate of misconduct reflected in Plaintiffs' Motion that makes this an egregious situation warranting more severe sanctions. Defendants have demonstrated that the requested fees are "a direct result of the offending conduct." Truesdell, 209 F.R.D. at 175. Plaintiffs' Motion prompted Defendants to incur needless expenses responding to frivolous legal arguments and unsupported factual contentions. The Court finds that the punitive and deterrent ends of Rule 11 are best served by imposing sanctions in the amount of some or all attorneys' fees incurred by Defendants in preparing their Opposition to Plaintiffs' Motion. Accordingly, the Court GRANTS Defendants' Motion for Sanctions and ORDERS Defendants to file within 14 days of this Order a motion to determine the amount of reasonable attorneys' fees to be awarded. For the foregoing reasons, Defendants' Motion for Summary Judgment and Motion for Sanctions is GRANTED. Plaintiffs' Motion for Summary Judgment is DENIED. The Court further ORDERS Defendants to file within 14 days of the date of this Order a proposed judgment and a motion for attorney fees reasonably incured in preparing their Opposition to Plaintiffs' Motion and the Motion for Sanctions.
March 20, 2025 at 4:44 AM
lifschitz.esq
I’ve been seeing these ads proliferate on Meta’s platforms in the last few months. Not only are they extremely gross and indisputably in violation of relevant advertising standards, I’m pretty sure some of the models being depicted are intended to be underage.
December 28, 2024 at 2:22 AM
lifschitz.esq
Anyone know who’s in charge of keeping ads for nonconsensual pornography generators featuring full frontal nudity off Facebook and Instagram? Because they’re doing a pretty bad job, and the ads in question are appearing directly attached to posts by creators on the platforms without their approval.
December 28, 2024 at 2:17 AM
lifschitz.esq
Respectable for a public filing. That said, it’s the confidential mediation briefs where you can really test the limits.
Screenshot of a legal brief with the following quote preceding the introduction: "the dildo of consequences rarely arrives lubed." - Twitter user @auntyamerican
December 13, 2024 at 2:12 PM
lifschitz.esq
I scanned the news too quickly and thought something even more heinous was in the works.
A snippet of a news article on Kraft’s new flavor offerings in which an industry figure opines to CNN that “Millennials and Gen-Z are more inclined to deviate from ‘traditional’ flavors — a strategy that Oreo is well known for — and putting absurd flavors out there to attract virality but also make consumers nostalgic for the original.”
November 30, 2024 at 1:43 AM
lifschitz.esq
dril’s classic tweet saying “and another thing: im not mad. please dont put in the newspaper that i got mad.”
November 26, 2024 at 6:00 AM
lifschitz.esq
This is why I missed Law Twitter.
Mike Dunford posts the following: “My son, who has been playing a bunch of Red Dead Redemption, came up with an interesting hypo. If a cowboy who has been dead for 100 years comes back to life, and discovers that a museum has been selling an edited version of his diary, is there a claim?” Will Frank replies to Mark: “Just when you thought the Rule Against Perpetuities couldn't get uglier!” Kathryn Tewson replies to Will: “you put that sentence back in your WHORE MOUTH, will”
November 12, 2024 at 5:42 AM
lifschitz.esq
And then Jaida Essence Hall’s character quadruples the limit! Madness!
November 12, 2024 at 5:12 AM
lifschitz.esq
Lawyer brain is when you ruin your rewatch of RPDR All Stars 7 by realizing Jinkx Monsoon’s prayer for relief in Fairytale Justice is twice the jurisdictional limit of a small claims matter in California, which is where Parade Magazine tells me the season was filmed. parade.com/1368360/mike...
November 12, 2024 at 5:01 AM
lifschitz.esq
It’s amazing that he finds the time to be this stupid when he’s otherwise so busy being this gross.
A tweet from Rep. Mike Collins on Twitter that reads “I would just like to be appointed to do a ride-along on one of @RealTomHoman’s deportation raids.”
November 12, 2024 at 2:07 AM