Case 2:18-cv-04761-PSG-SK Document 25 Filed 08/13/18 Page 1 of 18 Page ID #:93 1 2 3 4 5 6 7 8 DANIEL M. PETROCELLI (S.B. # 97802) dpetrocelli@omm.com DREW E. BREUDER (S.B. # 198466) dbreuder@omm.com NICOLE M. CAMBEIRO (S.B. # 313433) ncambeiro@omm.com O’MELVENY & MYERS LLP 1999 Avenue of the Stars, 8ᵗʰ Floor Los Angeles, California 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 Attorneys for Defendants The Walt Disney Company and ABC, Inc. 9 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA 12 13 14 15 16 17 MJJ PRODUCTIONS, INC., a California corporation, OPTIMUM PRODUCTIONS, a California corporation, NEW HORIZONS TRUST III, LLC, a Delaware limited liability company, d/b/a MIJAC MUSIC, THE MICHAEL JACKSON COMPANY, LLC, a Delaware limited liability company, and MJJ VENTURES, INC., a California corporation, 18 19 20 21 22 23 Case No. 2:18-cv-04761-PSG-(SKx) Hon. Philip S. Gutierrez THE WALT DISNEY COMPANY’S AND ABC, INC.’S ANSWER AND AFFIRMATIVE DEFENSES IN RESPONSE TO PLAINTIFFS’ FIRST AMENDED COMPLAINT Plaintiffs, v. THE WALT DISNEY COMPANY, a Delaware corporation, ABC, INC., a Delaware corporation, and DOES 1 through 10, inclusive, Defendants. 24 25 26 27 28 DEFS’ ANSWER AND AFFIRMATIVE DEFENSES TO FAC 2:18-CV-04761-PSG-(SKX) Case 2:18-cv-04761-PSG-SK Document 25 Filed 08/13/18 Page 2 of 18 Page ID #:94 1 INTRODUCTION 2 The Walt Disney Company and ABC, Inc. (together, “ABC”), by and 3 through their attorneys, hereby answer the first amended complaint (“Complaint,” 4 Doc. 24) filed by plaintiffs MJJ Productions, Inc., Optimum Productions, New 5 Horizons Trust III, LLC, The Michael Jackson Company LLC, and MJJ Ventures, 6 Inc. (collectively, “Plaintiffs”). 7 This case is about the right of free speech under the First Amendment, the 8 doctrine of fair use under the Copyright Act, and the ability of news organizations 9 to use limited excerpts of copyrighted works—here, in most instances well less than 10 1% of the works—for the purpose of reporting on, commenting on, teaching about, 11 and criticizing well-known public figures of interest in biographical documentaries 12 without fear of liability from overzealous copyright holders. See, e.g., 17 U.S.C. 13 § 107 (“[T]he fair use of a copyrighted work…for purposes such as criticism, 14 comment, news reporting, teaching…, scholarship, or research, is not an 15 infringement of copyright.”) (emphasis added). As Plaintiffs acknowledge, 16 Michael Jackson (“Jackson”) is one of the most iconic performers of the last 17 century, and his music career, tumultuous personal life, and tragic passing continue 18 to be enduring topics of public interest even today, nearly a decade after his 19 passing. ABC News used and incorporated short excerpts of some songs, music 20 videos and other material featuring Jackson within a two-hour documentary entitled 21 The Last Days of Michael Jackson for the purpose of providing historical context 22 and explanation tracing the arc and aspects of Jackson’s life and career—precisely 23 what is contemplated and permitted by the First Amendment. Plaintiffs’ lawsuit, in 24 violation of these legal principles, constitutes an attempt to exercise unfettered 25 control over public commentary and opinion on Jackson’s life and career. 26 As set forth below, ABC denies that it is liable in any way for the copyright 27 infringement claims alleged by Plaintiffs and will request that the Court dismiss the 28 Complaint in its entirety with prejudice and enter judgment in its favor. 1 DEFS’ ANSWER AND AFFIRMATIVE DEFENSES TO FAC 2:18-CV-04761-PSG-(SKX) Case 2:18-cv-04761-PSG-SK Document 25 Filed 08/13/18 Page 3 of 18 Page ID #:95 1 ANSWER 2 JURISDICTION AND VENUE 3 1. ABC admits that the Complaint purports to allege claims for copyright 4 infringement against The Walt Disney Company and ABC, Inc., but lacks 5 knowledge or information sufficient to form a belief as to the truth of the 6 remaining allegations in Paragraph 1 of the Complaint and on that basis denies the 7 allegations. 8 9 10 11 2. The allegations in Paragraph 2 of the Complaint state a legal conclusion to which no answer is required; if such an answer is required, ABC denies the allegations. 3. The allegations in Paragraph 3 of the Complaint state a legal conclusion 12 to which no answer is required; if such an answer is required, ABC denies the 13 allegations. 14 FACTUAL ALLEGATIONS 15 4. ABC admits that it or its affiliates own intellectual property rights in and 16 to various entertainment-related works, and that ABC, Inc. is owned indirectly by 17 The Walt Disney Company. The remaining allegations in Paragraph 4 of the 18 Complaint state a legal conclusion to which no answer is required; if such an 19 answer is required, ABC denies the allegations. 20 5. ABC admits that it or its affiliates own intellectual property rights in and 21 to various entertainment-related works and that it endeavors to protect those rights. 22 ABC lacks knowledge or information sufficient to form a belief as to the truth of 23 the remaining allegations in Paragraph 5 of the Complaint and on that basis denies 24 the allegations. 25 a. ABC lacks knowledge or information sufficient to form a belief 26 as to the truth of the allegations in Paragraph 5(a) of the Complaint and on that 27 basis denies the allegations. 28 2 DEFS’ ANSWER AND AFFIRMATIVE DEFENSES TO FAC 2:18-CV-04761-PSG-(SKX) Case 2:18-cv-04761-PSG-SK Document 25 Filed 08/13/18 Page 4 of 18 Page ID #:96 1 b. ABC lacks knowledge or information sufficient to form a belief 2 as to the truth of the allegations in Paragraph 5(b) of the Complaint and on that 3 basis denies the allegations. 4 c. ABC lacks knowledge or information sufficient to form a belief 5 as to the truth of the allegations in Paragraph 5(c) of the Complaint and on that 6 basis denies the allegations. 7 6. ABC admits that The Last Days of Michael Jackson (the “Documentary”) 8 aired on May 24, 2018 at 8 p.m. (EST) and 7 p.m. (Central). ABC lacks 9 knowledge or information sufficient to form a belief as to the truth of the 10 remaining allegations in Paragraph 6 of the Complaint and on that basis denies the 11 allegations. 12 7. ABC admits that the Documentary is titled The Last Days of Michael 13 Jackson and that a May 25, 2018 Rolling Stone article by Elias Leight concerning 14 the Documentary used, in part, the words quoted in Paragraph 7 of the Complaint, 15 but otherwise denies the remaining allegations in Paragraph 7 of the Complaint. 16 8. ABC admits the Documentary contains short excerpts of various musical 17 and other works featuring Jackson that were included in the Documentary on a 18 transformative and fair use basis. The remaining allegations in Paragraph 8 of the 19 Complaint state a legal conclusion to which no answer is required; if such an 20 answer is required, ABC denies the allegations. 21 9. ABC lacks knowledge or information sufficient to form a belief as to the 22 truth of the allegation in Paragraph 9 of the Complaint that “the lifeblood of the 23 Estate’s business is intellectual property” and on that basis denies the allegation. 24 The remaining allegations in Paragraph 9 of the Complaint state a legal conclusion 25 to which no answer is required; if such an answer is required, ABC denies the 26 allegations. 27 28 10. ABC admits the Documentary contains short excerpts of various musical and other works featuring Jackson that were included in the Documentary on a 3 DEFS’ ANSWER AND AFFIRMATIVE DEFENSES TO FAC 2:18-CV-04761-PSG-(SKX) Case 2:18-cv-04761-PSG-SK Document 25 Filed 08/13/18 Page 5 of 18 Page ID #:97 1 transformative and fair use basis. The remaining allegations in Paragraph 10 of the 2 Complaint state a legal conclusion to which no answer is required; if such an 3 answer is required, ABC denies the allegations. 4 11. ABC admits the Documentary contains short excerpts of various musical 5 and other works featuring Jackson that were included in the Documentary on a 6 transformative and fair use basis, but otherwise denies the remaining allegations in 7 Paragraph 11 of the Complaint. 8 9 12. a. ABC admits the Documentary contains short excerpts of the songs referenced in Paragraph 12(a) of the Complaint that were included in the 10 Documentary on a transformative and fair use basis. ABC lacks knowledge or 11 information sufficient to form a belief as to the truth of the allegations that 12 Plaintiffs and other third parties own the rights to the songs identified in Paragraph 13 12(a) of the Complaint and on that basis denies the allegations. The remaining 14 allegations in Paragraph 12(a) of the Complaint state a legal conclusion to which 15 no answer is required; if such an answer is required, ABC denies the allegations. 16 b. ABC admits the Documentary contains short excerpts of the 17 music videos referenced in Paragraph 12(b) of the Complaint that were included in 18 the Documentary on a transformative and fair use basis. ABC lacks knowledge or 19 information sufficient to form a belief as to the truth of the remaining allegations in 20 Paragraph 12(b) of the Complaint and on that basis denies the allegations. 21 c. ABC admits the Documentary contains short excerpts of the 22 videos referenced in Paragraph 12(c) of the Complaint that were included in the 23 Documentary on a transformative and fair use basis. ABC lacks knowledge or 24 information sufficient to form a belief as to the truth of the remaining allegations in 25 Paragraph 12(c) of the Complaint and on that basis denies the allegations. 26 d. ABC admits the Documentary contains short excerpts of concert 27 footage featuring Jackson that were included in the Documentary on a 28 transformative and fair use basis. ABC lacks knowledge or information sufficient 4 DEFS’ ANSWER AND AFFIRMATIVE DEFENSES TO FAC 2:18-CV-04761-PSG-(SKX) Case 2:18-cv-04761-PSG-SK Document 25 Filed 08/13/18 Page 6 of 18 Page ID #:98 1 to form a belief as to the truth of the remaining allegations in Paragraph 12(d) of the 2 Complaint and on that basis denies the allegations. 3 e. ABC admits the Documentary contains short excerpts of the 4 This Is It and Michael Jackson’s Journey from Motown to Off the Wall films that 5 were included in the Documentary on a transformative and fair use basis. ABC 6 further admits that ABC News licensed excerpts from a 20/20 interview of Jackson 7 for use in Michael Jackson’s Journey from Motown to Off the Wall. ABC lacks 8 knowledge or information sufficient to form a belief as to the truth of the remaining 9 allegations in Paragraph 12(e) of the Complaint and on that basis denies the 10 allegations. 11 f. ABC admits that the Documentary contains short excerpts of 12 footage from the 2009 memorial service for Jackson at Staples Center. ABC lacks 13 knowledge or information sufficient to form a belief as to the truth of the remaining 14 allegations in Paragraph 12(f) of the Complaint and on that basis denies the 15 allegations. 16 13. ABC admits that prior to the broadcast of the Documentary Plaintiffs’ 17 counsel wrote to the General Counsel of The Walt Disney Company and spoke 18 with an attorney for ABC, Inc. concerning two images appearing in the 19 promotional materials for the Documentary and that, prior to this conversation, 20 these images had been voluntarily removed from the promotional materials for the 21 Documentary as a courtesy. ABC lacks knowledge or information sufficient to 22 form a belief as to the truth of the remaining allegations in Paragraph 13 of the 23 Complaint and on that basis denies the allegations. 24 14. ABC admits that prior to the broadcast of the Documentary, an attorney 25 for ABC, Inc. told Plaintiffs’ counsel the Documentary would contain short 26 excerpts of works featuring Jackson on a transformative and fair use basis, but 27 otherwise denies the remaining allegations in Paragraph 14 of the Complaint. 28 5 DEFS’ ANSWER AND AFFIRMATIVE DEFENSES TO FAC 2:18-CV-04761-PSG-(SKX) Case 2:18-cv-04761-PSG-SK Document 25 Filed 08/13/18 Page 7 of 18 Page ID #:99 1 15. ABC admits that prior to the broadcast of the Documentary, an attorney 2 for ABC, Inc. told Plaintiffs’ counsel the Documentary would contain short 3 excerpts of works featuring Jackson on a transformative and fair use basis, and did 4 not identify the works by name. ABC denies that “[t]he Disney attorney said that 5 its uses were all a ‘fair use’ because the program was a ‘documentary’” or that 6 “[w]hen pressed, the Disney attorney kept falling back on the fact that the program 7 was a ‘documentary.’” The remaining allegations in Paragraph 15 of the 8 Complaint state a legal conclusion to which no answer is required; if such an 9 answer is required, ABC denies the allegations. 10 16. ABC admits that Plaintiffs’ counsel sent letters to an attorney for ABC, 11 Inc. dated May 22 and 23, 2018 and that no written response to these letters was 12 provided, but otherwise denies the remaining allegations in Paragraph 16 of the 13 Complaint. 14 17. The allegations in Paragraph 17 state a legal conclusion to which no 15 answer is required; if such an answer is required, ABC denies the allegations. 16 18. The allegations in Paragraph 18 state a legal conclusion to which no 17 answer is required; if such an answer is required, ABC denies the allegations. 18 19. ABC lacks knowledge or information sufficient to form a belief as to the 19 truth of the allegations in Paragraph 19 of the Complaint and on that basis denies 20 the allegations. 21 20. ABC admits the Documentary contains short excerpts of various musical 22 and other works featuring Jackson that were included in the Documentary on a 23 transformative and fair use basis, but otherwise denies the remaining allegations in 24 Paragraph 20 of the Complaint. 25 21. The allegations in Paragraph 21 state a legal conclusion to which no 26 answer is required; if such an answer is required, ABC denies the allegations. 27 28 22. ABC denies that it engaged in “flagrant and willful infringement of the Estate’s copyrights.” The remaining allegations in Paragraph 22 of the Complaint 6 DEFS’ ANSWER AND AFFIRMATIVE DEFENSES TO FAC 2:18-CV-04761-PSG-(SKX) Case 2:18-cv-04761-PSG-SK Document 25 Filed 08/13/18 Page 8 of 18 Page ID #:100 1 state a legal conclusion to which no answer is required; if such an answer is 2 required, ABC denies the allegations. 3 4 PARTIES 23. ABC admits that Jackson was a popular musician, but lacks knowledge 5 or information sufficient to form a belief as to the truth of the remaining 6 allegations in Paragraph 23 of the Complaint and on that basis denies the 7 allegations. 8 24. ABC admits that Jackson appeared in music videos for the songs 9 identified in Paragraph 24 of the Complaint, but lacks knowledge or information 10 sufficient to form a belief as to the truth of the remaining allegations in Paragraph 11 24 and on that basis denies the allegations. 12 25. ABC admits that Jackson performed the “moonwalk” dance at Motown’s 13 25th anniversary special, but lacks knowledge or information sufficient to form a 14 belief as to the truth of the remaining allegations in Paragraph 25 of the Complaint 15 and on that basis denies the allegations. 16 26. ABC admits that Jackson reportedly passed away on or about June 25, 17 2009, but lacks knowledge or information sufficient to form a belief as to the truth 18 of the remaining allegations in Paragraph 26 of the Complaint and on that basis 19 denies the allegations. 20 a. ABC lacks knowledge or information sufficient to form a belief 21 as to the truth of the allegations in Paragraph 26(a) of the Complaint and on that 22 basis denies the allegations. 23 b. ABC lacks knowledge or information sufficient to form a belief 24 as to the truth of the allegations in Paragraph 26(b) of the Complaint and on that 25 basis denies the allegations. 26 c. ABC lacks knowledge or information sufficient to form a belief 27 as to the truth of the allegations in Paragraph 26(c) of the Complaint and on that 28 basis denies the allegations. 7 DEFS’ ANSWER AND AFFIRMATIVE DEFENSES TO FAC 2:18-CV-04761-PSG-(SKX) Case 2:18-cv-04761-PSG-SK Document 25 Filed 08/13/18 Page 9 of 18 Page ID #:101 1 d. ABC lacks knowledge or information sufficient to form a belief 2 as to the truth of the allegations in Paragraph 26(d) of the Complaint and on that 3 basis denies the allegations. 4 e. ABC lacks knowledge or information sufficient to form a belief 5 as to the truth of the allegations in Paragraph 26(e) of the Complaint and on that 6 basis denies the allegations. 7 27. ABC admits that the Complaint refers to Plaintiffs collectively as the 8 “Estate,” but lacks knowledge or information sufficient to form a belief as to the 9 truth of the remaining allegations in Paragraph 27 of the Complaint and on that 10 basis denies the allegations. 11 28. ABC admits that The Walt Disney Company is a Delaware corporation, 12 but otherwise denies the remaining allegations in Paragraph 28 of the Complaint. 13 29. ABC admits that ABC, Inc. is owned indirectly by The Walt Disney 14 Company, but otherwise denies the remaining allegations in Paragraph 29 of the 15 Complaint. 16 30. ABC denies the allegations of Paragraph 30 of the Complaint as to The 17 Walt Disney Company and ABC, Inc. ABC lacks knowledge or information 18 sufficient to form a belief as to the truth of the allegations in Paragraph 30 of the 19 Complaint as to any other defendants and on that basis denies the allegations. 20 21 FURTHER ALLEGATIONS 31. ABC admits that Jackson reportedly passed away on or about June 25, 22 2009, but lacks knowledge or information sufficient to form a belief as to the truth 23 of the remaining allegations in Paragraph 31 of the Complaint and on that basis 24 denies the allegations. 25 32. ABC admits that the Documentary aired on May 24, 2018 at 8 p.m. 26 (EST) and 7 p.m. (Central) and that the Documentary included some paid 27 advertising between segments of the show, but otherwise denies the remaining 28 allegations of Paragraph 32 of the Complaint. 8 DEFS’ ANSWER AND AFFIRMATIVE DEFENSES TO FAC 2:18-CV-04761-PSG-(SKX) Case 2:18-cv-04761-PSG-SK Document 25 Filed 08/13/18 Page 10 of 18 Page ID #:102 1 33. ABC admits that the Documentary was previously available for viewing 2 on a few streaming services for a short period of time, but otherwise denies the 3 allegations of Paragraph 33 of the Complaint. 4 34. ABC denies the allegations of Paragraph 34 of the Complaint. 5 35. ABC denies the allegations of Paragraph 35 of the Complaint. 6 36. ABC denies the allegations of Paragraph 36 of the Complaint. 7 37. The allegations in Paragraph 37 of the Complaint state a legal conclusion 8 to which no answer is required; if such an answer is required, ABC denies the 9 allegations. 10 38. The allegations in Paragraph 38 of the Complaint state a legal conclusion 11 to which no answer is required; if such an answer is required, ABC denies the 12 allegations. 13 39. The allegations in Paragraph 39 of the Complaint state a legal conclusion 14 to which no answer is required; if such an answer is required, ABC denies the 15 allegations. 16 40. ABC lacks knowledge or information sufficient to form a belief as to the 17 truth of the allegations in Paragraph 40 of the Complaint that the “Estate’s 18 investigation is ongoing,” that the Estate owns copyrights to “other concert footage 19 not listed here and several [other] photographs and images,” and that the “Estate 20 will amend this Complaint with those further works when further information is 21 discovered,” and on that basis denies the allegations. The remaining allegations in 22 Paragraph 40 of the Complaint state a legal conclusion to which no answer is 23 required; if such an answer is required, ABC denies the allegations. 24 FIRST CLAIM FOR RELIEF: COPYRIGHT INFRINGEMENT 25 OF MICHAEL JACKSON’S SOUND RECORDINGS 26 41. ABC lacks knowledge or information sufficient to form a belief as to the 27 truth of the allegations in Paragraph 41(a)-(i) of the Complaint and on that basis 28 denies the allegations. 9 DEFS’ ANSWER AND AFFIRMATIVE DEFENSES TO FAC 2:18-CV-04761-PSG-(SKX) Case 2:18-cv-04761-PSG-SK Document 25 Filed 08/13/18 Page 11 of 18 Page ID #:103 1 42. ABC lacks knowledge or information sufficient to form a belief as to the 2 truth of the allegations in Paragraph 42 of the Complaint and on that basis denies 3 the allegations. 4 43. ABC admits the Documentary contains short excerpts of the songs 5 referenced in Paragraph 41(a)-(i) of the Complaint that were included in the 6 Documentary on a transformative and fair use basis. The remaining allegations in 7 Paragraph 43 of the Complaint state a legal conclusion to which no answer is 8 required; if such an answer is required, ABC denies the allegations. 9 44. The allegations in Paragraph 44 of the Complaint state a legal conclusion 10 to which no answer is required; if such an answer is required, ABC denies the 11 allegations. 12 45. ABC lacks knowledge or information sufficient to form a belief as to the 13 truth of the allegations in Paragraph 45 of the Complaint and on that basis denies 14 the allegations. 15 46. The allegations in Paragraph 46 of the Complaint state a legal conclusion 16 to which no answer is required; if such an answer is required, ABC denies the 17 allegations. 18 47. The allegations in Paragraph 47 of the Complaint state a legal conclusion 19 to which no answer is required; if such an answer is required, ABC denies the 20 allegations. 21 48. ABC denies the allegations of Paragraph 48 of the Complaint. 22 49. The allegations in Paragraph 49 of the Complaint state a legal conclusion 23 to which no answer is required; if such an answer is required, ABC denies the 24 allegations. 25 50. The allegations in Paragraph 50 of the Complaint state a legal conclusion 26 to which no answer is required; if such an answer is required, ABC denies the 27 allegations. 28 10 DEFS’ ANSWER AND AFFIRMATIVE DEFENSES TO FAC 2:18-CV-04761-PSG-(SKX) Case 2:18-cv-04761-PSG-SK Document 25 Filed 08/13/18 Page 12 of 18 Page ID #:104 1 SECOND CLAIM FOR RELIEF: COPYRIGHT INFRINGEMENT 2 OF MICHAEL JACKSON’S MUSICAL COMPOSITIONS 3 51. ABC lacks knowledge or information sufficient to form a belief as to the 4 truth of the allegations in Paragraph 51(a)-(g) of the Complaint and on that basis 5 denies the allegations. 6 52. ABC admits the Documentary contains short excerpts of the songs 7 referenced in Paragraph 51 of the Complaint that were included in the 8 Documentary on a transformative and fair use basis. The remaining allegations in 9 Paragraph 52 of the Complaint state a legal conclusion to which no answer is 10 11 required; if such an answer is required, ABC denies the allegations. 53. The allegations in Paragraph 53 of the Complaint state a legal conclusion 12 to which no answer is required; if such an answer is required, ABC denies the 13 allegations. 14 54. ABC lacks knowledge or information sufficient to form a belief as to the 15 truth of the allegations in Paragraph 54 of the Complaint and on that basis denies 16 the allegations. 17 55. The allegations in Paragraph 55 of the Complaint state a legal conclusion 18 to which no answer is required; if such an answer is required, ABC denies the 19 allegations. 20 56. The allegations in Paragraph 56 of the Complaint state a legal conclusion 21 to which no answer is required; if such an answer is required, ABC denies the 22 allegations. 23 57. ABC denies the allegations of Paragraph 57 of the Complaint. 24 58. The allegations in Paragraph 58 of the Complaint state a legal conclusion 25 to which no answer is required; if such an answer is required, ABC denies the 26 allegations. 27 28 11 DEFS’ ANSWER AND AFFIRMATIVE DEFENSES TO FAC 2:18-CV-04761-PSG-(SKX) Case 2:18-cv-04761-PSG-SK Document 25 Filed 08/13/18 Page 13 of 18 Page ID #:105 1 59. The allegations in Paragraph 59 of the Complaint state a legal conclusion 2 to which no answer is required; if such an answer is required, ABC denies the 3 allegations. 4 THIRD CLAIM FOR RELIEF: COPYRIGHT INFRINGEMENT 5 OF MICHAEL JACKSON’S AUDIOVISUAL WORKS 6 60. ABC lacks knowledge or information sufficient to form a belief as to the 7 truth of the allegations in Paragraph 60(a)-(q) of the Complaint and on that basis 8 denies the allegations. 9 61. ABC lacks knowledge or information sufficient to form a belief as to the 10 truth of the allegations in Paragraph 61 of the Complaint concerning ownership of 11 and an application to register the copyright in Michael Jackson’s Journey from 12 Motown to Off the Wall, and on that basis denies the allegations. The remaining 13 allegations in Paragraph 61 of the Complaint state a legal conclusion to which no 14 answer is required; if such an answer is required, ABC denies the allegations. 15 62. ABC lacks knowledge or information sufficient to form a belief as to the 16 truth of the allegations in Paragraph 62 of the Complaint and on that basis denies 17 the allegations. 18 63. ABC admits the Documentary contains short excerpts of the music 19 videos and works referenced in Paragraphs 60(a)-(p) and 61-62 of the Complaint 20 that were included in the Documentary on a transformative and fair use basis. The 21 remaining allegations in Paragraph 63 of the Complaint state a legal conclusion to 22 which no answer is required; if such an answer is required, ABC denies the 23 allegations. 24 64. The allegations in Paragraph 64 of the Complaint state a legal conclusion 25 to which no answer is required; if such an answer is required, ABC denies the 26 allegations. 27 28 12 DEFS’ ANSWER AND AFFIRMATIVE DEFENSES TO FAC 2:18-CV-04761-PSG-(SKX) Case 2:18-cv-04761-PSG-SK Document 25 Filed 08/13/18 Page 14 of 18 Page ID #:106 1 65. ABC lacks knowledge or information sufficient to form a belief as to the 2 truth of the allegations in Paragraph 65 of the Complaint and on that basis denies 3 the allegations. 4 66. The allegations in Paragraph 66 of the Complaint state a legal conclusion 5 to which no answer is required; if such an answer is required, ABC denies the 6 allegations. 7 67. The allegations in Paragraph 67 of the Complaint state a legal conclusion 8 to which no answer is required; if such an answer is required, ABC denies the 9 allegations. 10 68. ABC denies the allegations of Paragraph 68 of the Complaint. 11 69. The allegations in Paragraph 69 of the Complaint state a legal conclusion 12 to which no answer is required; if such an answer is required, ABC denies the 13 allegations. 14 70. The allegations in Paragraph 70 of the Complaint state a legal conclusion 15 to which no answer is required; if such an answer is required, ABC denies the 16 allegations. 17 FOURTH CLAIM FOR RELIEF: COPYRIGHT INFRINGEMENT 18 OF MICHAEL JACKSON’S THIS IS IT AND RELATED WORKS 19 71. ABC lacks knowledge or information sufficient to form a belief as to the 20 truth of the allegations in Paragraph 71 of the Complaint and on that basis denies 21 the allegations. 22 72. ABC admits the Documentary contains short excerpts of the This Is It 23 film that were included in the Documentary on a transformative and fair use basis, 24 and that it contains short excerpts of footage from the 2009 memorial service for 25 Jackson at Staples Center. The remaining allegations in Paragraph 72 of the 26 Complaint state a legal conclusion to which no answer is required; if such an 27 answer is required, ABC denies the allegations. 28 13 DEFS’ ANSWER AND AFFIRMATIVE DEFENSES TO FAC 2:18-CV-04761-PSG-(SKX) Case 2:18-cv-04761-PSG-SK Document 25 Filed 08/13/18 Page 15 of 18 Page ID #:107 1 73. The allegations in Paragraph 73 of the Complaint state a legal conclusion 2 to which no answer is required; if such an answer is required, ABC denies the 3 allegations. 4 74. ABC lacks knowledge or information sufficient to form a belief as to the 5 truth of the allegations in Paragraph 74 of the Complaint and on that basis denies 6 the allegations. 7 75. The allegations in Paragraph 75 of the Complaint state a legal conclusion 8 to which no answer is required; if such an answer is required, ABC denies the 9 allegations. 10 76. The allegations in Paragraph 76 of the Complaint state a legal conclusion 11 to which no answer is required; if such an answer is required, ABC denies the 12 allegations. 13 77. ABC denies the allegations of Paragraph 77 of the Complaint. 14 78. The allegations in Paragraph 78 of the Complaint state a legal conclusion 15 to which no answer is required; if such an answer is required, ABC denies the 16 allegations. 17 79. The allegations in Paragraph 79 of the Complaint state a legal conclusion 18 to which no answer is required; if such an answer is required, ABC denies the 19 allegations. 20 AFFIRMATIVE DEFENSES 21 80. As separate and additional defenses to the Complaint, and without 22 suggesting or conceding that it has the burden of proof on any such defenses, ABC 23 alleges as follows: 24 FIRST AFFIRMATIVE DEFENSE 25 (Failure to State a Claim) 26 81. Plaintiffs’ Complaint fails to state a claim upon which relief may be 27 granted. 28 14 DEFS’ ANSWER AND AFFIRMATIVE DEFENSES TO FAC 2:18-CV-04761-PSG-(SKX) Case 2:18-cv-04761-PSG-SK Document 25 Filed 08/13/18 Page 16 of 18 Page ID #:108 1 SECOND AFFIRMATIVE DEFENSE 2 (First Amendment) 3 82. Plaintiffs’ claims are barred in whole or in part by the First Amendment. 4 THIRD AFFIRMATIVE DEFENSE 5 (Fair Use) 6 7 83. Plaintiffs’ claims are barred in whole or in part by the doctrine of fair use. 8 FOURTH AFFIRMATIVE DEFENSE 9 (De Minimis Use) 10 11 84. Without admitting any liability or infringement, any alleged use of the works purportedly owned by Plaintiffs was de minimis. 12 FIFTH AFFIRMATIVE DEFENSE 13 (Wrong Parties) 14 85. Plaintiffs’ claims are barred, in whole or in part, because the entities 15 named in the Complaint—ABC, Inc. and The Walt Disney Company—were not 16 responsible for producing and broadcasting the Documentary. 17 SIXTH AFFIRMATIVE DEFENSE 18 (Lack of Ownership) 19 20 86. Plaintiffs’ claims are barred in whole or in part because they do not own some or all of the purported rights at issue. 21 SEVENTH AFFIRMATIVE DEFENSE 22 (Lack of Standing / Failure to Register) 23 87. Plaintiffs’ claims are barred in whole or in part because they do not 24 possess copyright registrations for some or all of the works at issue and therefore 25 have no standing to assert their claims. 26 27 28 15 DEFS’ ANSWER AND AFFIRMATIVE DEFENSES TO FAC 2:18-CV-04761-PSG-(SKX) Case 2:18-cv-04761-PSG-SK Document 25 Filed 08/13/18 Page 17 of 18 Page ID #:109 1 EIGHTH AFFIRMATIVE DEFENSE 2 (Waiver / Estoppel / Acquiescence / Unclean Hands) 3 4 88. Plaintiffs’ claims are barred in whole or in part by the doctrine of waiver, estoppel, acquiescence, and/or unclean hands. 5 NINTH AFFIRMATIVE DEFENSE 6 (Innocent Intent) 7 8 89. Plaintiffs’ claims and any relief sought against ABC are barred in whole or in part by the doctrine of innocent intent. 9 TENTH AFFIRMATIVE DEFENSE 10 (Lack of Injury / Damages) 11 12 90. Plaintiffs’ claims are barred in whole or in part because they have sustained no injury or damages. 13 ELEVENTH AFFIRMATIVE DEFENSE 14 (Failure to Mitigate Damages) 15 16 91. Plaintiffs’ claims are barred in whole or in part because they have failed to mitigate any alleged damages. 17 18 ADDITIONAL DEFENSES 92. ABC is informed and believe and on that basis alleges that it may have 19 additional defenses that are not fully known of and of which ABC is not presently 20 aware. ABC reserves the right to add and assert additional defenses as discovery 21 commences and when they are ascertained. 22 WHEREFORE, ABC respectfully requests that the Court enter an Order: 23 A. Dismissing Plaintiffs’ Complaint in its entirety with prejudice; 24 B. Entering judgment in ABC’s favor; 25 C. Awarding ABC its fees and costs incurred; and 26 D. Awarding such other and further relief as the Court may deem just and 27 proper. 28 16 DEFS’ ANSWER AND AFFIRMATIVE DEFENSES TO FAC 2:18-CV-04761-PSG-(SKX) Case 2:18-cv-04761-PSG-SK Document 25 Filed 08/13/18 Page 18 of 18 Page ID #:110 1 2 Respectfully submitted, Dated: August 13, 2018 O’MELVENY & MYERS LLP 3 4 By: 5 6 /s/ Daniel M. Petrocelli Daniel M. Petrocelli Attorneys for Defendants The Walt Disney Company and ABC, Inc. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 DEFS’ ANSWER AND AFFIRMATIVE DEFENSES TO FAC 2:18-CV-04761-PSG-(SKX)