Motion to Exclude Newspapers and Books (Skidmore v. Led Zeppelin "Stairway to Heaven" lawsuit)

7/26/2019 Motion to Exclude Newspapers and Books (Skidmore v. Led Zeppelin "Stairway to Heaven" lawsuit)

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Peter J. Anderson, Esq., Cal. Bar No. 88891E-Mail: [email protected] OFFICES OF PETER J. ANDERSONA Professional Corporation100 Wilshire Boulevard, Suite 2010Santa Monica, CA 90401

Tel: (310) 260-6030Fax: (310) 260-6040Attorneys for DefendantsJAMES PATRICK PAGE, ROBERT ANTHONYPLANT, JOHN PAUL JONES, WARNER/CHAPPELLMUSIC, INC., SUPER HYPE PUBLISHING, INC.,ATLANTIC RECORDING CORP., RHINOENTERTAINMENT COMPANY and WARNERMUSIC GROUP CORP.

Helene Freeman, Esq., admittedpro hac viceE-Mail: [email protected] NIZER LLP666 Fifth AvenueNew York, NY 10103-0084Tel: (212) 977-9700Fax: (212) 262-5152Attorneys for DefendantsJAMES PATRICK PAGE, ROBERT ANTHONYPLANT and JOHN PAUL JONES

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

Case No. 2:15-cv-03462 RGK AGRx

DEFENDANTS NOTICE OFMOTION AND MOTIONIN

LIMINENO. 2RENEWSPAPERSAND BOOKS; MEMORANDUM OFPOINTS AND AUTHORITIES ANDDECLARATION IN SUPPORT

Date: May 10, 2016Time: 9:00 a.m.

Courtroom of the HonorableR. Gary Klausner

United States District Judge

MICHAEL SKIDMORE, etc.,

Plaintiff,

vs.

LED ZEPPELIN, et al.,

Defendants.

))))))))))

)

Case 2:15-cv-03462-RGK-AGR Document 135 Filed 03/25/16 Page 1 of 21 Page ID #:3381


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TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on May 10, 2016, at 9:00 a.m. or as soon

thereafter as the matter may be heard in Courtroom 850 of the above-entitled Distric

Court, located at 255 East Temple Street, Los Angeles, California, defendants Jame

Patrick Page, Robert Anthony Plant, John Paul Jones, Warner/Chappell Music, Inc.

Super Hype Publishing, Inc., Atlantic Recording Corporation, Rhino Entertainmen

Company and Warner Music Group Inc., will move the above-entitled Court, the

Honorable R. Gary Klausner, United States District Judge presiding, for an Order

excluding all evidence and argument as to newspapers and books that purport to

attribute statements to defendants or to otherwise establish unproven facts.This Motion is brought on the grounds that, as stated more fully in the

accompanying Memorandum of Points and Authorities, the claimed out of cour

statements are inadmissible hearsay and also would confuse or mislead the jury

prejudice defendants and result in undue delay and wasted trial time.

This Motion is based upon this Notice of Motion and Motion, the

Memorandum of Points and Authorities filed with this Notice of Motion and

Motion, the pleadings and papers on file in this action, the matters of which this

Court may take judicial notice, and such additional matters and oral argument as

may be offered in support of the Motion.

The Motions are made following the conference with plaintiffs counse

pursuant to Local Rule 7-3, which took place on March 22, 2016.

Dated: March 25, 2016 /s/ Peter J. Anderson

Peter J. Anderson, Esq.LAW OFFICES OF PETER J. ANDERSONA Professional Corporation

Attorney for DefendantsJAMES PATRICK PAGE, ROBERT

ANTHONY PLANT, JOHN PAUL JONES,WARNER/CHAPPELL MUSIC, INC.,SUPER HYPE PUBLISHING, INC.,

ATLANTIC RECORDING CORP., RHINOENTERTAINMENT COMPANY andWARNER MUSIC GROUP CORP.



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Helene M. Freeman, Esq.PHILLIPS NIZER LLPAttorney for Defendants

JAMES PATRICK PAGE,ROBERT ANTHONY PLANT and

JOHN PAUL JONES



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MEMORANDUM OF POINTS AND AUTHORITIES

1. INTRODUCTION

In this copyright infringement action, plaintiff claims that forty-five years ago

members of Led Zeppelin copied the beginning of Stairway to Heaven from an

instrumental titled Taurus by the late Randy Wolfe. Plaintiff intends to rely upon

newspaper or magazine articles and books to try to prove that the individua

defendants or others made statements attributed to them or that other unproven facts

are true.

Thus, to date plaintiff has relied upon:

a 1970 newspaper article purporting to quote Jimmy Page as praisingSpirit and enjoy[ing] seeing them.

a reprint of a 1972 article purporting to quote Jimmy Page as praising

Spirit and as saying he saw Spirit a couple of times.

a 2006 reprint of an article purporting to quote the late John Bonham,

who died in 1980, as saying that Stairway to Heaven had become one

of the biggest things weve ever done and playing its first chord

created bedlam atLed Zeppelin concerts.

a 2012 unauthorized biography that, in a purported chronology of Led

Zeppelin concerts, asserts that at a December 30, 1968 concert Led

Zeppelin had begun playing a bass riff similar to Spirits Fresh

Garbage.

Without either the authors testimony or the individual defendants

confirmation that they indeed made the statements attributed to them, the statements

in articles and books are indisputably hearsay and even hearsay-on-hearsay

Alternatively, they are properly excluded because any probative value is outweighed

by the risk of confusing issues, misleading the jury, prejudicing defendants and

unduly delaying the case and wasting trial time.

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2. EVIDENCE AND ARGUMENT AS TO ASSERTIONS IN

NEWSPAPERS, MAGAZINES AND BOOKS ARE PROPERLY

EXCLUDED

(a) Assertions in Articles and Books Are Inadmissible Hearsay

Published articles offered for the truth of their assertions, including when they

purport to quote a defendant, are inadmissible hearsay. Larez v. City of Los Angeles

946 F.2d 630, 642 (9th Cir. 1991) (As the reporters never testified nor were

subjected to cross-examination, their transcriptions of Gatess statements involve a

serious hearsay problem; articles inadmissible). Hearsay is inadmissible unless i

comes within one of the exceptions set forth in Federal Rules of Evidence 803 or804 or the residual exception in Rule 807, and the articles and books do not come

within any exception.

The newspaper and magazine articles do not come within Rules 803 and 804

and do not come within Rule 807s mandate that the hearsay must have

circumstantial guarantees of trustworthiness equivalent to the listed exceptions to the

hearsay rule . . . [and] must (1) be evidence of a material fact; (2) be more probative

on the point for which it is offered than any other evidence which the proponent can

procure through reasonable efforts; and (3) serve the general purposes of the Rule

of evidence and the interests of justice by its admission into evidence. United

States v. Sanchez-Lima, 161 F.3d 545, 547 (9th Cir. 1998). This residual hearsay

exception is to be used only rarely, in truly exceptional cases. Pozen Inc. v. Par

Pharm., Inc., 696 F.3d 1151, 1161 (Fed. Cir. 2012), quoting United States v. Walker

410 F.3d 754, 547, 757 (5th Cir. 2005) (Rule 807 applied to videotaped testimony

under oath, based on the witnesses personal knowledge and consistent with their

prior statements; the jury had the opportunity to view their demeanor; and the

government was provided the opportunity to cross-examine the witnesses). Nothing

of the sort applies to the articles and books plaintiff intends to present at trial.

Accordingly, the articles and books should be excluded.



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(b) Articles and Books Would Confuse Issues, Mislead the Jury,

Unfairly Prejudice Defendants and Waste Trial Time

Newspaper and magazine articles and books also are properly excluded

because any probative value is substantially outweighed by a danger of one or more

of the following: unfair prejudice, confusing the issues, misleading the jury, undue

delay, wasting time, . . . . Fed. R. Evid. 403; United States v. McFall, 558 F.3d

951, 963-64 (9th Cir. 2009) (Rule 403 balancing test requires the assessment of

probative value in order to weigh it against the danger of undue prejudice). Any

probative value in articles and books is substantially outweighed by the Rule 403

considerations.First, because newspapers, magazines and books frequently misquote people

and sometimes misstate facts, there is little or no probative value in statements

contained in articles and books. Indeed, it is telling that out of the hundreds o

articles and books about Led Zeppelin, plaintiff cherry-picks the ones that claim

statements or purported facts he thinks are helpful. And, the individual defendant

have testified that they have no recollection of making the statements attributed to

them.

In addition, purported statements by Jimmy Page in 1970 or 1972 that he liked

Spirit or had seen them perform a couple of times have little or no probative value

because by late 1968 Spirit had released its break-out, second album and Spiri

performed its new and later songs at concerts, and by 1972 Spirit had released

additional successful albums, none of which included Taurus. The two surviving

members of Spirit identified the tent-pole or mainstay songs they performed in

concerts and those songs did not include Taurus. Anderson Decl. at 8, 3-4, &

Exh. 1-3.

Similarly,plaintiff relies on the late John Bonhams supposed statement tha

Stairway to Heaven had become one of the biggest things weve ever done and

playing its first chord caused bedlam at concerts, as proof of the value of the



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opening chord progression. That the opening chord progression alerted audiences a

Led Zeppelin concerts as to what song was about to be performed does not mean

that the opening is more important than the rest of the song. Put another way, there

would have been no bedlam, and no song, if it did not contain the rest of the music

and the lyrics that make up Stairway to Heaven. Further, John Bonhamssupposed

statements prior to his 1980 death are not probative of anything thirty-six years later

As to the statement in a 2012 unauthorized biography that at a December 30

1968 concert Led Zeppelin had begun playing a bass riff similar to Spirits Fresh

Garbage, the statement has no probative value since it lacks any foundation as to

either personal knowledge of the author or source. Moreover, the assertion that LedZeppelin only began playing the medley with the bass riff in December 1968 is flatly

wrong: the evidence is they played that medley with the bass riff in Europe and

Scandinavia earlier that year.

Accordingly, the probative value of articles and books is slim or nil.

Second, any probative value is outweighed by the certainty of prejudice

Plaintiffs reliance on statements in articles and books is likely to mislead the jury

into believing that, since the statements appear in publications, they are entitled to

credit and perhaps more credit than witness testimony. And, battling articles and

books would only waste time and delay the proceedings.

Accordingly, articles and books are also properly excluded under Rule 403.

3. CONCLUSION

Lacking direct and admissible evidence, plaintiff hopes to rely on unsworn

out-of-court assertions in newspaper and magazine articles and books. The

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statements in articles and books are hearsay not within any exception and

alternatively, properly excluded under Rule 403.

Dated: March 25, 2016 /s/ Peter J. Anderson

Peter J. Anderson, Esq.LAW OFFICES OF PETER J. ANDERSONA Professional Corporation

Attorney for DefendantsJAMES PATRICK PAGE, ROBERT

ANTHONY PLANT, JOHN PAUL JONES,WARNER/CHAPPELL MUSIC, INC.,SUPER HYPE PUBLISHING, INC.,

ATLANTIC RECORDING CORP., RHINOENTERTAINMENT COMPANY andWARNER MUSIC GROUP CORP.

He ene M. Freeman, Esq.PHILLIPS NIZER LLPAttorney for Defendants

JAMES PATRICK PAGE,ROBERT ANTHONY PLANT and

JOHN PAUL JONES



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DECLARATION OF PETER J. ANDERSON

I, Peter J. Anderson, declare and state:

1. I am an attorney admitted to practice before this Court and all Courts o

the State of California. I have personal knowledge of the following facts and could

competently testify to these facts if called upon to do so.

2.

I represent defendants Warner/Chappell Music, Inc., Super Hype

Publishing, Inc., Atlantic Recording Corp., Rhino Entertainment Company, James

Patrick Page, Robert Plant and John Paul Jones in this action. This Reply

Declaration is submitted in support of their foregoing Motion in limine.

3.

I took the deposition of Jay A. Ferguson on January 13, 2016, in thisaction. Mr. Ferguson provided corrections to the transcript of his deposition

Attached to this Declaration as Exhibit 1 are true and correct copies of pages from

the transcript of Mr. Fergusons deposition and which is marked to identify the

testimony cited in the foregoing Motion.

4.

I took the deposition of Mark Christopher Andes on January 15, 2016

in this action. Mr. Andes has not provided corrections to the transcript of hi

deposition. Attached to this Declaration as Exhibit 2 are true and correct copies o

pages from the transcript of Mr. Andes deposition and which is marked to identify

the testimony cited in support of the foregoing Motion.

5. Attached to this Declaration as Exhibit 3 is a true and correct copy of

deposition exhibit 352 at the deposition of Mr. Andes.

I declare under penalty of perjury that the foregoing is true and correct

Executed on March 25, 2016.

/s/ Peter J. AndersonPETER J. ANDERSON



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EXHIBIT 1

Case 2:15-cv-03462-RGK-AGR Document 135 Filed 03/25/16 Page 10 of 21 Page ID#:3390


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FOR THE CENTRAL DISTRICT OF CALIFORNIA

MICHAEL SKIDMORE, ETC., ) ) PLAINTIFFS, ) CASE NO. ) VS. ) 2:15-CV-03462 RGK (AGRx) )LED ZEPPELIN, ET AL., ) ) DEFENDANTS. ) )___________________________)

VIDEOTAPED DEPOSITION OF JAY A. FERGUSON

WEDNESDAY, JANUARY 13, 2016

JOB NO. 68321

REPORTED BY: DAYNA HESTER, C.S.R. 9970

EXHIBIT

9

JAY A. FERGUSON - 01/13/2016

Personal Court Reporters, Inc.800-43-DEPOS





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1 Trust.

2 THE VIDEOGRAPHER: We're on the record.

3 Would the court reporter, please, swear in

4 the witness.5 THE REPORTER:And I do want to

6 acknowledge my Rule 30 obligation for a federal

7 case.

8 My name is Dayna Hester, and I am

9 contracted by Personal Court Reporters.

10 At this time, please raise your right

11 hand.

12 THE WITNESS: (Witness did as requested.)

13 THE REPORTER: Do you affirm the testimony

14 you are about to give in the cause now pending will

15 be the truth, the whole truth, and nothing but the

16 truth?

17 THE WITNESS: I do.

18 THE REPORTER: Thank you.

19

20 JAY A. FERGUSON,

21 having been first duly sworn, was

22 examined and testified as follows:

23 ///

24 ///

25 ///

EXHIBIT

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1 Sorry. I can't just nod?

2 Q. -- did you and he discuss "Taurus"?

3 A. No.

4 Q. Do you know if "Taurus" was played by5 Spirit that night?

6 A. You know, it was a song that would be in

7 the set and out of the set, in the set and out of

8 the set, depending on the length of time usually.

9 So I can't remember specifically.

10 It was not -- there were certain songs

11 that we played religiously every show. "Taurus" was

12 not, but it was played often.

13 Q. What were the songs you played religiously

14 every show in the time period from '67 to '71, to

15 the end of '71?

16 A. "Fresh Garbage," "I Got a Line on You,"

17 "Nothing to Hide," "Mechanical World."

18 I wish I had a song list. I could -- I

19 could be more accurate. But those were sort of the

20 tent pole songs.

21 Q. Anything else you recall being said by

22 Mr. Malofiy or you in that first conversation last

23 month?

24 A. In December?

25 Q. In December of 2015.

EXHIBIT

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EXHIBIT 2



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FOR THE CENTRAL DISTRICT OF CALIFORNIA

MICHAEL SKIDMORE, ETC., ) ) PLAINTIFFS, ) CASE NO. ) VS. ) 2:15-CV-03462 RGK (AGRx) )LED ZEPPELIN, ET AL., ) ) DEFENDANTS. ) )___________________________)

VIDEOTAPED DEPOSITION OF MARK CHRISTOPHER ANDES

FRIDAY, JANUARY 15, 2016

JOB NO. 69364

REPORTED BY: DAYNA HESTER, C.S.R. 9970

EXHIBIT 2

13

MARK CHRISTOPHER ANDES - 01/15/2016






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1 Publishing, Rhino Entertainment Company, Jimmy Page,

2 Robert Plant, and John Paul Jones.

3 MR. MALOFIY: My name is Francis Alexander

4 Malofiy with the law firm Francis Alexander. I5 represent the plaintiff in this matter, Michael

6 Skidmore, trustee for the Randy Craig Wolfe Trust.

7 MR. KULIK:And I'm Glen Kulik, and I'm

8 co-counsel for the plaintiff.

9 THE VIDEOGRAPHER: Today's court reporter

10 is Dayna Hester of Personal Court Reporter.

11 Please, swear in.

12 THE REPORTER:And I want to acknowledge

13 my 30(b) -- Rule 30(b) read-on. The videographer

14 has stated this information, so I will now swear in

15 the witness.

16 Please, raise your right hand.

17 THE WITNESS: (Witness did as requested.)

18 THE REPORTER: Do you affirm the testimony

19 you are about to give in the cause now pending will

20 be the truth, the whole truth, and nothing but the

21 truth?

22 THE WITNESS: I do.

23 THE REPORTER: Thank you.

24 MR. MALOFIY:And just to be clear, I also

25 represent Mark Andes, who is the deponent here

EXHIBIT 2

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1 today.

2 MARK CHRISTOPHER ANDES,

3 having been first duly sworn, was

4 examined and testified as follows:5

6 EXAMINATION

7 BY MR. ANDERSON:

8 Q. Mr. Andes, could you please state and

9 spell your full name.

10 A. Mark Christopher Andes; M-a-r-k,

11 C-h-r-i-s-t-o-p-h-e-r, A-n-d-e-s.

12 Q. Thank you, sir.

13 A. Yes, sir.

14 Q. And, again, my name is Peter Anderson, and

15 I represent the defendants in this action.

16 Have you ever had your deposition taken

17 before?

18 A. I believe so, but it's a been a long time.

19 I'm not sure what it was in regard to. But I've

20 had -- I've been deposed before at some point.

21 Q. How long ago was it?

22 A. It's got to be, maybe, 20 years.

23 Q. Okay. Let me just go over the procedure

24 we're going to follow today.

25 The woman to your left is a certified

EXHIBIT 2

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1 Anaheim Convention Center?

2 A. I think -- I would be -- I -- I really

3 can't give you a specific date. I can't, so, I

4 would be guessing.5 Q. Okay. I'm going to ask that the court

6 reporter to mark as Exhibit 352, I believe, the next

7 exhibit.

8 (Defendant's Exhibit 352 was marked for

9 identification and is attached hereto.)

10 BY MR. ANDERSON:

11 Q. Have you ever seen this before?

12 MR. MALOFIY: What did we mark it as,

13 350-...

14 MR. ANDERSON: -2.

15 MR. MALOFIY: Thank you.

16 THE WITNESS: [Witness reviews document].

17 I -- I don't think so.

18 BY MR. ANDERSON:

19 Q. This was a document that Mr. Ferguson

20 testified was provided to him by Mr. Pates.And it

21 purports to be a set list for the February 1, 1969,

22 performance, less than -- well, approximately a

23 month and a few days after the -- the Denver

24 performance.

25 A. Uh-huh.

EXHIBIT 2

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1 Q. Do you have any reason to doubt that the

2 13 compositions on Exhibit 352 are the compositions

3 that Spirit performed on February 1st, 1969?

4 A. No.5 MR. MALOFIY: Object.

6 MR. ANDERSON:And --

7 MR. MALOFIY: Objection. Vague and

8 ambiguous. Calls for speculation.

9 BY MR. ANDERSON:

10 Q. What is "Apple Orchard"?

11 A. It's a -- it's a -- a song.

12 Q. Is it an instrumental or...

13 A. No. It was a vocal.

14 Q. Is it fast or slow or...

15 A. It was about mid-tempo kind of a thing.

16 Q. And what is "Aren't You Glad"?

17 A. Another song that Jay also wrote.

18 Q. Okay. Would you describe this as a

19 typical set list for Spirit's performances in that

20 time period?

21 MR. MALOFIY: Objection. Vague and

22 ambiguous.

23 THE WITNESS: Well, I would say that this

24 is -- yeah, I would say it was typical.

25 ///

EXHIBIT 2

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Documents

Motion to Exclude Newspapers and Books (Skidmore v. Led Zeppelin "Stairway to Heaven" lawsuit)