Case 1:17-cv-00123-WJM-KMT Document 25 Filed 03/07/17 USDC Colorado Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action Number: 1:17-cv-00123-WJM-KMT

RICHARD MORRILL,

Plaintiff,

v.

GWEN STEFANI,
PHARRELL WILLIAMS,
HARAJUKU LOVERS, LLC, d/b/a HARAJUKU LOVER MUSIC, and
BLACKGROUND-INTERSCOPE RECORDS, LLC, d/b/a INTERSCOPE RECORDS,

Defendants.

DEFENDANTS GWEN STEFANI, PHARRELL WILLIAMS, AND HARAJUKU

LOVERS, LLCs MOTION TO TRANSFER UNDER 28 U.S.C. 1404(a)

Defendants Gwen Stefani (Stefani), Pharrell Williams (Williams) and Harajuku

Lovers, LLC (Harajuku) (collectively, Defendants) respectfully move under 28 U.S.C.

1404(a) to transfer this case to the United States District Court for the Central District

of California. In support of this motion, Defendants state the following.

D.C.COLO.LCivR 7.1(A) CERTIFICATE OF CONFERRAL

Defendants counsel conferred with Plaintiffs counsel in person with respect to

the relief sought in this motion. Plaintiff opposes the relief sought in this motion.

INTRODUCTION

As explained in the Defendants motion to dismiss filed earlier today, neither

personal jurisdiction nor venue exist in this District, and so the Court should either

dismiss this case or transfer it under 28 U.S.C. 1631 to the Central District of
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California. See ECF No. 22. Alternatively, even if the Court concludes that personal

jurisdiction (and therefore venue) exist in this District, for the reasons explained in this

motion, the Court still should transfer this case under 28 U.S.C. 1404(a). The Section

1404(a) factors favor the Central District of California, which includes Los Angeles, as

the proper forum for this case.

FACTUAL BACKGROUND

This case arises from a song called Spark the Fire, which was co-written by

Ms. Stefani and Mr. Williams and released as a single on December 1, 2014. See

Complaint, ECF No. 1, 28, 33. According to the Complaint, since then Spark the

Fire has been performed in a Fiat commercial, on a December 2014 episode of The

Voice, in a MasterCard commercial, during a December 31, 2014 New Years special,

at the 2014 People Magazine Awards, and in the trailer for season two of Foxs

Scream Queens. Id., 36.

Ms. Stefani and Mr. Williams both live in California, where they largely wrote,

recorded, and produced Spark the Fire. Exhibit 1 (Declaration of Ms. Stefani), 2, 5-

7; Exhibit 2 (Declaration of Mr. Williams), 2, 5-7. Ms. Stefani and Mr. Williams co-

wrote the song in California during the time they appeared together on NBCs The

Voice (itself produced in California). Exhibit 1, 6; Exhibit 2, 6. Ms. Stefani and

Mr. Williams recorded the song in California, New York, and Florida. Exhibit 1, 5-7.

Mr. Williams produced the song in California and Florida. Exhibit 2, 7. The song was

not written, recorded, or produced in Colorado. Exhibit 1, 8; Exhibit 2, 8.

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Mr. Williams personally and Ms. Stefanis limited liability companyBreak Out

My Cocoon, LLC, which does business as Harajuku Lover Music, and which is not a

defendantown the copyright to the musical composition Spark the Fire.1 Exhibit 1,

12; Exhibit 2, 12. UMG Recordings, Inc., which also is not a defendant, owns the

copyrights to the sound recording of Spark the Fire. Exhibit 3 (Declaration of JoAnn

Cho), 4. UMG Recordings, Inc. is a Delaware corporation with its principal place of

business in Santa Monica, California. Id., 3.

UMG, with Ms. Stefanis approval, licensed the sound recording of Spark the

Fire to third parties. Exhibit 1, 15. UMG negotiated those licenses in and from

California. Exhibit 3, 6. The counterparties to those license agreements are located

in various states, with many of them (Fox Broadcasting Co., NBC, and Finnmax LLC)

located in California. Exhibit 2, 15; Exhibit 3, 5. None of the counterparties are in

Colorado. Exhibit 2, 15.

Plaintiff was a member of a California-based band called L.A.P.D. ECF No. 1,

9. Plaintiff alleges that he wrote the music and lyrics for a song called Whos Got My

Lightah in 1996. Id., 12. He further alleges that, nineteen years ago (in 1998), in

California, he played a CD of Whos Got My Lightah through a sound system at a hair

salon and that Ms. Stefani accepted [his] offer of a CD with Whos Got My Lightah on

it. Id., 21.

1
The case caption asserts that Defendant Harajuku Lovers, LLC does business as
Harajuku Lover Music. This is incorrect. See Exhibit 1, 12. Moreover, Defendant
Harajuku Lovers, LLC does not own any copyright to Spark the Fire. Id., 12-14.
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Sometime after that, Plaintiff apparently moved to Colorado, where in 2009 he

wrote another version of Whos Got My Lightah called Whos Got My Lighter or

Lighter. Id., 22. Plaintiff alleges that Lighter is a derivative work of Whos Got My

Lightah. Id., 14. Plaintiff alleges that he recorded Lighter to CDs and placed that

song on two Internet sites (MySpace and ReverbNation) in Colorado. Id., 24.

Plaintiff claims that in 2014 Ms. Stefani copied the chorus from Whos Got My

Lighter into Spark The Fire. Id., 28. Plaintiff alleges that he learned in December

2014 that Ms. Stefani had allegedly copied Whos Got My Lighter. Id., 38. He filed

this suit in the District of Colorado more than two years later. ECF No. 1.

ARGUMENT

Section 1404(a) provides that, [f]or the convenience of parties and witnesses, in

the interest of justice, a district court may transfer any civil action to any other district or

division where it might have been brought[.] See 28 U.S.C. 1404(a).

The district court has discretion under Section 1404(a). See Bovino v. Incase

Designs Corp., No. 13-cv-2106-WJM-MJW, 2014 WL 1796914, at *1 (D. Colo. May 6,

2014). To decide whether to transfer, the court considers two issues: (i) whether the

proposed transferee court is a district . . . where [the case] might have been brought

and (ii) whether the competing equities favor transferring the case. Bovino, 2014 WL

1796914, at *1.

Those competing equities include (i) the plaintiffs choice of forum, (ii) the

location of witnesses and other items of proof, including whether compulsory process is

available to get witnesses to trial, (iii) the cost of making necessary proofs, (iv) the

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enforceability of any judgment, (v) relative advantages and obstacles to a fair trial,

(vi) docket congestion, (vii) any choice-of-law questions, (viii) the advantage of having a

local court decide issues of local law, and (ix) all other practical considerations that

make a trial easy, expeditious, and economical. Bovino, 2014 WL 1796914, at *1. Of

these competing equities, the convenience of witnesses is the most important factor

in deciding a motion under 1404(a). Employers Mut. Cas. Co. v. Bartile Roofs, Inc.,

618 F. 3d 1153, 1169 (10th Cir. 2010).

Here, the case should be transferred to the Central District of California. This

case mightindeed, shouldhave been brought there, and the Section 1404(a)

factors, particularly the convenience and availability of witnesses, weigh in favor of

transfer.

A. This Case Might Have Been Brought in the Central District of California.

The geographic scope of the Central District of California includes Los Angeles

County. See https://www.cacd.uscourts.gov/jurisdiction. The Central District of

California, therefore, has personal jurisdiction over the Defendants: Ms. Stefani and

Mr. Williams live in that District, Exhibit 1, 2 and Exhibit 2, 2, and the entity

defendants (Harajuku and Blackground-Interscope Records, LLC) are alleged to have

their principal places of business in Beverly Hills and Santa Monica, California,

respectively, which are both in the Central District, see Complaint, ECF No. 1, 7-8.

Moreover, because the Central District has personal jurisdiction, venue is proper in that

district under the copyright venue provision, 28 U.S.C. 1400(a). See Dudnikov v.

Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1069 n. 2 (10th Cir. 2008); see also

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Lumiere v. Mae Edna Wilder, Inc., 261 U.S. 174, 176 (1923) (The venue of suits for

infringement of copyright is not determined by the general provision governing suits in

the federal district courts.) (addressing earlier venue provision).

Accordingly, this case might have been brought in the Central District of

California.

B. The Competing Equities Weigh in Favor of Transfer.

The competing equities also favor trying this dispute in the Central District of

California.

1. Plaintiffs Choice of Forum Carries Little Weight Here.

Though the plaintiffs forum selection receives some deference, that factor has

little weight in this case. See Bovino, 2014 WL 1796914, at *2. Where, as here, the

facts giving rise to the lawsuit have no material relation or significant connection to the

plaintiffs chosen forum, the courts give little weight to the plaintiffs choice. Id., at *2

(citing and quoting Employers Mut. Cas. Co., 618 F.3d at 1168).

In this case, Plaintiff himself alleges that in 1998 he played a CD with Whos Got

My Lightah on it for Ms. Stefani in California, and that Ms. Stefani accepted Plaintiffs

offer of a CD in California. The allegedly infringing song (Spark the Fire) was written,

recorded, produced, and performed in California. Exhibit 1, 5-7. The licensing

agreements for Spark the Fire were negotiated in California and entered into with third

parties based in California. Id., 15; Exhibit 3, 6. And Plaintiff was apparently living

in California when he allegedly wrote Whose Got My Lightah in 1996. In short, the

facts giving rise to the lawsuitnamely, Plaintiffs asserted ownership of a copyright in

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Whos Got My Lightah, Ms. Stefanis alleged access to Whos Got My Lightah, and

the alleged infringement of that workall occurred in California, not Colorado. See,

e.g., Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1138 (10th Cir. 2016) (explaining

that the elements of copyright infringement are ownership of a valid copyright and

copying of constituent elements of the work that are original).

By contrast, Colorado has no material relation or significant connection to the

facts that supposedly give rise to this case. Plaintiff does not allege that Ms. Stefani

accessed his songs in or from Colorado, or that she or the other defendants infringed

his alleged copyrights in or from Colorado. To be sure, Plaintiff alleges (with no

supporting detail) that Spark the Fire has been sold and performed within Colorado,

ECF No. 1, 2, but that allegation does not distinguish Colorado from any other state or

judicial district where the song has been sold or performed. See Bovino, 2014 WL

1796914, at *2 (citing and quoting Potter Voice Techs. LLC v. Apple, Inc., No. 12-cv-

01096-REB-CBS, 2013 WL 1333483, at *3 (D. Colo. Mar. 29, 2013) (holding that the

alleged infringements [were] not tied to Colorado any more than to other states and

districts)). Moreover, posting Lighter to MySpace or ReverbNation from Colorado is

not a significant connection to Colorado, especially given that Plaintiff does not even

allege that Ms. Stefani accessed Lighter on MySpace or ReverbNation, see generally

ECF No. 1, and that uploading to the internet can occur from any state or judicial

district. Finally, Plaintiffs Colorado residence is not relevant because it is not a fact

that gives rise to this case.

Plaintiffs choice of a Colorado forum, therefore, is entitled to little weight.

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2. The Convenience of Witnesses and Access to other Proof Heavily

Favors California.

The convenience of witnesses is the most important factor in deciding a motion

under 1404(a). Employers Mut. Cas. Co., 618 F.3d at 1169. This factor favors

transfer to the Central District of California.

Spark the Fire was written, recorded, and produced in California. Exhibit 1,

5-7; Exhibit 2, 5-7. All of the witnesses (including third-party witnesses) with

knowledge of Spark the Fires creation, recording, and production live in California.

See Exhibit 1, 18-22 and Exhibit 2, 15 (identifying California-based witnesses Tina

Kennedy, Irving Azoff, Tony Kanal, Aaron Bay-Shuck, and Caron Veazey). The

witnesses with knowledge of Spark the Fires licensing to third parties are also in

California. See Exhibit 3, 6 (identifying California-based witness Nick Guarino). Non-

party UMG Recordings, Inc., which owns the copyright to the Spark the Fire sound

recording, has its principal place of business in California, where its employees involved

with licensing, finance, and royalty matters are also located. See Exhibit 3, 3. Finally,

Plaintiff has himself identified two California businesses, Huntington Beach Beauty

Supply and Splash Hair Salon, with information relevant to Plaintiffs allegation that

Ms. Stefani had access to the allegedly infringed work. ECF No. 1, 16-20.

The Central District has the availability of compulsory process to secure the trial

attendance of these California witnesses. See Bovino, 2014 WL 1796914, at *3; Fed.

R. Civ. P. 45(c)(1)(A). By contrast, [t]his Court may not be able to secure these third-

party witnesses attendance at trial. See Bovino, 2014 WL 1796914, at *2.

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Against these numerous California-based witnesses, Plaintiff only seeks to call

one Colorado witnesshimself. Bovino, 2014 WL 1796914, at *2. But the plaintiffs

convenience counts for less than the convenience of third-party witnesses. Id. at *2.

Moreover, documents concerning Spark the Fire are located in California, not

Coloradoincluding documents showing the creation of the songs music and lyrics,

licensing and distribution agreements for the song, the master sound recording itself,

and documents showing sales, revenues, and royalties of and from Spark the Fire.

Because witnesses and documents in this case, including third parties, are

located in the [Central] District of California, while only Plaintiff is located in Colorado,

the convenience of witnesses weighs in favor of transfer. Bovino, 2014 WL 1796914,

at *3.

3. The Cost of Making the Necessary Proofs Favors the Central District.

The California location of witnesses and documents also shows that trial will be

less expensive in the Central District of California. Bovino, 2014 WL 1796914, at *3.

California-based witnesses (if they are willing to come to trial in Colorado) will incur

travel and subsistence expenses that they would not incur if the trial were held in Los

Angeles. Ms. Stefani, Mr. Williams, and representatives of any business defendant

entities likewise would incur substantial costs to travel and stay in Colorado for the trial,

which they would not incur for a California trial. In addition, Ms. Stefani and

Mr. Williams are well-known to many members of the public, and so their travel and

housing arrangements during trial would be more expensive and logistically

burdensome than needed for the usual, relatively anonymous party to a lawsuit.

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Moreover, though Plaintiff himself would have to travel to California for trial, he is, after

all, the plaintiff in the case and it would be more expensive for several California-

based witnesses to travel to Colorado than it would be for [the plaintiffs] one witness

(himself) to travel to California for trial. See Bovino, 2014 WL 1796914, at *3 (citation

and quotation omitted).

The cost of trial, therefore, weighs in favor of transfer.

4. The Enforceability of any Judgment Weighs in Favor of Transfer.

The enforceability of any judgment also weighs in favor of transfer. Because the

defendants are California citizens with no assets in Colorado, a judgment issued by a

California federal court would be more readily enforceable than a judgment issued by a

Colorado federal court. This factor, therefore, weighs in favor of transfer.

5. Relative Advantages and Obstacles to a Fair Trial

Both the Colorado and California federal courts are equipped to provide a fair

trial of this case. Accordingly, this factor is neutral.

6. Docket Congestion Weighs in Favor of Transfer.

Colorado and the Central District are both busy federal courts. On balance,

however, the Central Districts docket allows speedier dispositions of civil actions. More

specifically, in the year ended September 2016, the Central District disposed of civil

cases in a median of 4.9 months (compared to 7.8 months in Colorado), and brought

civil cases to trial in a median of 20.5 months (compared to 26.8 months in Colorado).2

Accordingly, docket congestion and case speed weigh in favor of transfer.

2
See
http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0930.2016.pdf
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7. Conflict of Laws and Local Law Questions Do Not Exist.

Potential conflict of laws and local law questions do not exist, and so this factor is

neutral. Plaintiffs federal claims present no conflict-of-law or local law questions.

Plaintiffs state-law claimfor civil theft under C.R.S. 18-4-401, ECF No. 1, 70-

75presents no serious question of local law that a California federal court would find

difficult to decide.

This claim is also preempted by the Copyright Act. See 17 U.S.C. 301(a).

Plaintiffs civil theft claim is based on Ms. Stefanis supposedly listening to [Plaintiffs]

songs, mimicking them, and copying them in Spark the Fire, which Plaintiff alleges

deprived [him] of the benefit of his exclusive and proprietary rights in his copyrighted

work. See ECF No. 1, 70, 73. Any claim arising from allegedly mimicking and

copying Plaintiffs songs is governed exclusively by federal copyright law, not by

Colorados civil theft statute. See, e.g., BC Tech., Inc. v. Ensil Intl Corp., 464 Fed.

Appx 689, 698 (10th Cir. 2012) (holding that the Copyright Act preempts claims under

Utahs theft statute).

8. Other Practical Considerations

Defendants believe that any practical considerations involved in transferring this

case to the Central District have been addressed by the factors discussed above, which

weigh in favor of transferring this case.

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CONCLUSION

WHEREFORE, Defendants respectfully request as alternative relief to their

motion to dismiss, ECF No. 22, that the Court transfer this case to the United States

District Court for the Central District of California under 28 U.S.C. 1404(a).

Respectfully submitted this 7th day of March, 2017.

/s/ Timothy M. Reynolds

Timothy M. Reynolds
BRYAN CAVE LLP
1801 13th Street, Ste. 300
Boulder, CO 80302
Phone: 303-444-5955
timothy.reynolds@bryancave.com

Michael J. Hofmann
BRYAN CAVE LLP
1700 Lincoln Street, Ste. 4100
Denver, CO 80203
Phone: 303-861-7000
michael.hofmann@bryancave.com

Attorneys for Defendants Gwen

Stefani, Pharrell Williams, and
Harajuku Lovers, LLC d/b/a Harajuku
Lover Music

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on March 7, 2017, a true and correct copy
of the foregoing DEFENDANTS GWEN STEFANI, PHARRELL WILLIAMS, AND
HARAJUKU LOVERS, LLCs MOTION TO TRANSFER UNDER 28 U.S.C. 1404(a)
was filed with the Clerk of Court using the CM/ECF system which will service such filing
on the following:

Rick Martin Alan F. Blakley

Patent Law Offices of Rick Martin, P.C. Samantha Peaslee
1777 S. Harrison Street, Suite 1500 POLARIS LAW, LLC
Denver, CO 80210 916 South Main Street, Ste. 201
rmartin@patentcolorado.com Longmont, CO 80501
ab@lawpolaris.com
speaslee@lawpolaris.com

s/ Jennifer Pearce

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