Comments Posted on YouTube Purporting to State When Video Was Shot = Hearsay, Inadequate to Authenticate Timing of Depicted Activities

Sublime v. Sublime Remembered, 2013 U.S. Dist. LEXIS 103813 (C.D. Cal. July 22, 2013):

Plaintiffs Sublime and Floyd Gaugh IV filed this case in this Court on September 22, 2006. Sublime is a well-known popular music group, and Floyd Gaugh IV is a former member of Sublime. Plaintiffs brought this case seeking to enforce intellectual property rights related to Sublime and its music. Defendant Mike Houlihan is a musician, and a former member of the Sublime tribute band Sublime Remembered; defendant Tawnee Houlihan is Mike Houlihan's wife and former manager.

This case was eventually settled in July 2010, when defendants agreed to permanently cease and desist selling, offering for sale, or promoting goods or services related to Sublime or a Sublime cover band. The Court issued a permanent injunction on July 19, 2010, which sets out several terms enforcing the parties' settlement agreement ("the injunction"). Dkt. #117.

Plaintiffs now claim that in February 2013, they  [*2] discovered that Mike Houlihan ("defendant") was acting in violation of the injunction. On March 8, 2013, plaintiffs filed an application requesting that the Court issue an order to show cause regarding why defendant should not be found in contempt of court for violating the injunction. On April 15, 2013, the Court issued an order to show cause, requesting that defendant explain why he should not be found in contempt due to his alleged violations of the following four terms of the injunction:

   A. Cease and desist selling, offering for sale, advertising and promoting goods and services related to Sublime, Bradley Nowell, Floyd "Bud" Gaugh IV or Eric Wilson, their music or creative endeavors, specifically including, but without limitation, any and all activities related to a Sublime tribute band or Sublime cover band.

B. Refrain from performing in public or in private for more than ten people music compositions written in whole or in part by Sublime . . . or contributing to, encouraging or authorizing the same.

H. Take down all existing, and refrain from creating any new websites related to any musical group comprised of one or more of the Houlihan Parties that has performed the music of  [*3] Sublime, Bradley Nowell, Floyd "Bud" Gaugh IV or Eric Wilson.

I. Take down or cause to be taken down all videos posted . . . on the Internet and refrain [from] posting any new videos on YouTube.com, VidiLife.com or any other website that (a) feature performances of any of the Defendants performing music compositions written in whole or in part by Sublime [or its members] or (b) reference or mention, Q-Ball, Sublime Remembered, The LBC or any other Sublime tribute band or Sublime cover band comprised in whole or in part of any Houlihan Party.

Specifically, plaintiffs allege that defendant violated these terms by performing the music of Sublime at several concert venues, at times after the injunction had issued, with his band Long Beach Rehab. Plaintiffs learned of these performances through videos posted on the website youtube.com. Additionally, plaintiffs allege that defendant violated the injunction by maintaining a website related to a music group that has performed the music of Sublime, and by failing to take down videos posted on the Internet depicting defendant performing the music of Sublime. Finally, plaintiffs allege that in February 2013, defendant used the names "Sublime" and  [*4] "Bradley Nowell" to promote a concert in Malibu, California.

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B. Performance of Sublime's Music

Plaintiffs claim that defendant has performed Sublime's music several times since the injunction was entered. Plaintiffs' evidence consists of videos posted on youtube.com, which purportedly show defendant performing the songs "Ball and Chain," "Let's Go Get Stoned," "April 29 1992," "Santeria," and "Pawn Shop." The performance of "Ball and Chain" purportedly occurred in Jacinto, California on June 12, 2011; the performance of "Let's Go Get Stoned" and "Santeria" purportedly occurred in Seattle, Washington in February 2011; the performance of "April 29 1992" purportedly occurred in Enumclaw, Washington on January 8, 2013; and the performance of "Pawn Shop" purportedly occurred in Sacramento, California on May 31, 2013.

Defendant does not deny that the videos referenced by plaintiffs  [*9] depicts him performing "Ball and Chain," but argues that the performance occurred in 2009, prior to the issuance of the injunction. Additionally, defendant claims that the alleged performances of "April 29 1992" and "Let's Go Get Stoned" did not occur. Third Houlihan Declaration ¶¶ 26 - 27. Regarding the performance of "Pawn Shop," defendant admits that the performance depicted in the video took place, but contends that he was actually performing a song entitled "War Deh Round a John Shop." Finally, defendant does not dispute that he participated in the performance of "Santeria" depicted in plaintiffs' submissions.

Regarding the performances of songs other than "Pawn Shop" and "Santeria," the Court finds that plaintiffs have not met their burden of proving a violation of the injunction through clear and convincing evidence. In re Dual-Deck Video Cassette Recorder Antitrust Litigation, 10 F.3d at 695. Plaintiffs' evidence consists solely of videos posted on youtube.com. In order to admit a video posted on youtube.com under the Federal Rules of Evidence, the proponent of the video "must produce evidence sufficient to support a finding that the item is what the proponent claims it is."  [*10] Fed. R. Evid. 901, Orr v. Bank of America, 285 F.3d 764, 774 (9th Cir. 2002) ("Authentication is a condition precedent to admissibility . . ."). Therefore, to admit the youtube.com videos, plaintiffs must introduce evidence sufficient to support a finding that these videos depict performances that occurred at the times and places claimed by plaintiffs.

Plaintiffs have failed to offer any evidence authenticating the youtube.com videos purportedly depicting post-injunction performances of "Ball and Chain," "Let's Go Get Stoned," and "April 29 1992." The videos clearly depict defendant performing with a band, but there is no evidence regarding when or where the videos were created. While statements posted on youtube.com by the users who uploaded the videos claim that the performances occurred at particular times and places, these statements are inadmissible hearsay if introduced to authenticate the videos. United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000). Moreover, plaintiffs have not identified the users who uploaded the videos and obtained testimony from these individuals, and without such evidence, the Court cannot make a finding that the youtube.com videos actually depict  [*11] post-injunction performances. Accordingly, there is no evidence that defendant has performed these three works by Sublime at a time after the injunction.

Defendant has admitted that the other two performances actually occurred, and these admissions are sufficient to authenticate the videos. See 31 C. Wright & V. Gold, Federal Practice and Procedure § 7105 at 39 (Updated April 2013) (evidence may be authenticated through a judicial admission); see also Orr, 285 F.3d at 777 n.20.

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