FILED

NOT FOR PUBLICATION FEB 21 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRYAN PRINGLE, an individual, No. 12-55998

Plaintiff - Appellant, D.C. No. 8:10-cv-01656-JST-RZ

v.

MEMORANDUM*

WILLIAM ADAMS, Jr., individually and collectively as the music group the Black Eyed Peas; STACY FERGUSON, individually and collectively as the music group the Black Eyed Peas; JAIME GOMEZ, individually and collectively as the music group the Black Eyed Peas; DAVID

GUETTA; FREDERICK RIESTERER; UMG

RECORDINGS, INC.; INTERSCOPE

RECORDS; EMI APRIL MUSIC, INC.;

HEADPHONE JUNKIE PUBLISHING, LLC;

WILL.I.AM MUSIC, LLC; JEEPNEY

MUSIC, INC.; TAB MAGNETIC

PUBLISHING; CHERRY RIVER MUSIC

CO.; SQUARE RIVOLI PUBLISHING;

RISTER EDITIONS; SHAPIRO

BERNSTEIN & CO., INC.; ALLAN

PINEDA, Individually and collectively as the music group the Black Eyed Peas,

Defendants - Appellees.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. BRYAN PRINGLE, an individual, No. 12-56744

Plaintiff - Appellee, D.C. No. 8:10-cv-01656-JST-RZ

v.

WILLIAM ADAMS, Jr., individually and collectively as the music group the Black Eyed Peas; STACY FERGUSON, individually and collectively as the music group the Black Eyed Peas; JAIME GOMEZ, individually and collectively as the music group the Black Eyed Peas; ALLAN PINEDA, Individually and collectively as the music group the Black Eyed Peas; DAVID

GUETTA; FREDERICK RIESTERER; UMG

RECORDINGS, INC.; INTERSCOPE

RECORDS; EMI APRIL MUSIC, INC.;

HEADPHONE JUNKIE PUBLISHING, LLC;

WILL.I.AM MUSIC, LLC; JEEPNEY

MUSIC, INC.; TAB MAGNETIC

PUBLISHING; CHERRY RIVER MUSIC

CO.; SHAPIRO BERNSTEIN & CO., INC.,

Defendants - Appellants.

Appeal from the United States District Court for the Central District of California Josephine L. Staton, District Judge, Presiding

Argued and Submitted February 7, 2014 Pasadena, California

2 Before: SCHROEDER and CLIFTON, Circuit Judges, and COGAN, District Judge.**

Bryan Pringle (“Plaintiff”) appeals the district court’s decision granting summary

judgment to Defendants and its order of sanctions against Plaintiff under 28 U.S.C. §

1927. Defendants cross-appeal the district court’s refusal to impose sanctions on Plaintiff

and his counsel. We have jurisdiction under 28 U.S.C. § 1291.

Plaintiff brought this complaint alleging that Defendants violated the copyright of

his song “Take a Dive” and its derivative. “Take a Dive” was properly registered for

copyright in 1998. The evidence in support of Plaintiff, however, raises only the barest

possibility that Defendants had access to “Take a Dive,” and Plaintiff does not argue that

there is a “striking similarity” between “Take a Dive” and Defendants’ allegedly

infringing work. See Art Attacks Ink, LLC v. MGA Entm’t, Inc., 581 F.3d 1138, 1143–45

(9th Cir. 2009) (holding that where there is no more than a bare possibility of access,

summary judgment is appropriate); Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485

(9th Cir. 2000) (noting that if there is no evidence of access, infringement may be found

only if the songs are “strikingly similar”). Further, Plaintiff’s attempt to show a valid

copyright in the derivative version of “Take a Dive” fails because the copy deposited with

** The Honorable Brian M. Cogan, United States District Judge for the Eastern District of New York, sitting by designation.

3 the U.S. Copyright Office was an impermissible reconstruction. See Kodadek v. MTV

Networks, Inc., 152 F.3d 1209, 1211–12 (9th Cir. 1998).

Additionally, the district court did not abuse its discretion in ordering sanctions

against Plaintiff under § 1927 for improper service. See Lahiri v. Universal Music &

Video Distrib. Corp., 606 F.3d 1216, 1218 (9th Cir. 2010). Plaintiff’s third attempt to

serve Rister Editions through Shapiro Bernstein & Co. violated a court order, and the

district court reasonably concluded it was “reckless[]” and that it “unreasonably and

vexatiously multiplied the proceedings.” Sanctions may be imposed for willful violation

of a court order without a showing or finding of bad faith. Evon v. Law Offices of Sidney

Mickell, 688 F.3d 1015, 1035 (9th Cir. 2012).

Defendants’ cross-appeal is also unavailing. The district court reasonably

concluded that it could not “identify any single piece of unassailable evidence . . .

conclusively establishing that Pringle’s claim was legally and factually baseless.” See

Christian v. Mattel, Inc., 286 F.3d 1118, 1128 (9th Cir. 2002). The district court did not

abuse its discretion in declining to impose Rule 11 sanctions against Plaintiff and his

counsel.

We therefore AFFIRM.

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