Federal Judge Gary Allen Feess Alters Evidence With Exhibits

FEDERAL JUDGE GARY ALLEN FEESS ALTERS EVIDENCE VIOLATING FEDERAL AND CONSTITUTIONAL LAWS There is currently a copyright infringement complaint before the UNTED STATES COURT OF APPEAL, NINTH CIRCUIT, Bruce Ameil Williams v. McGraw-Hill Inc.,…, Case No.: CV-10-6062- GAF(SHx), Appeal No. 11-55178, where the basis of the Appeal is the blatant, willful, purposeful, and carefully crafted illegal ruling of issue preclusion by Federal Judge Gary Allen Feess who alters the 45 word Afrimerican copyright protected text, and changing it to the single word Afrimerican, and where he, Judge Feess alters the 29 word alleged infringing, unauthorized derivative text which Judge Feess also alters to the single word Afrimerican. The following narrative will detail and point out exactly how Judge Feess alters evidence which results in Obstruction of Justice (Tampering with Evidence), Perjury, Deprivation of Rights under Color of the Law, Judicial Abuse of Discretion, and Judicial Misconduct which involve violation of Constitutional guarantees, and safeguards for the fair administration of justice, and upholding of the laws of the United States, The basic fact of the matter of concern, outside the prior described methodologies, and steps taken by Judge Feess to create what amounts to an illegal ruling, is Judge Feess Altered Evidence to impede its integrity, and Judge Feess committed Perjury by accusing me of making a claim not being made. The issue preclusion issue in the ruling by Judge Feess, is false and a complete illegal fabrication. 1. The source of Judge Feess’s criminal acts is Judge Feess alters the valid copyright protected text of the Afrimerican copyright protected text copyright infringement claim from, “AFRIMERICAN (AF/RI/Me/RI/CAN) – Noun Definition; A member of a race of mankind, Born in the United States, Descended from African Immigrants, Classified and Characterized according physical features such as skin tone, (Lite Brown to Dark Brown), Hair Texture, and Body Skeletal build, (i.e. Nose, Lips, etc…).” (45 word copyright protected text). Illegally altering the 45 word Afrimerican copyright protected text to the single word, Afrimerican. 2. Judge Feess’s false and illegal misrepresentation of the copyright infringement claim of text as a copyright infringement claim of the single word Afrimerican evidences one of many acts of alteration of evidence and Perjury because the current copyright infringement claim is not for the single word Afrimerican, but the 45 word Afrimerican copyright protected text which Judge Feess discards, and fails to properly, legally, and procedurally examine under Ninth Circuit

Copyright Infringement Examination Standards as required of the whole 45 word Afrimerican copyright protected text registered copyright. 3. Simultaneously, Judge Feess uses a gobbledegook narrative of various methods of logical illogical fallacies in his ORDER RE: ORDER TO DISMISS to falsely make it appear Judge Wilson made a ruling in the previous case to invalidate the valid, registered Afrimerican copyright protected text, which Judge Wilson did not do, thus Judge Feess again engages in alteration of evidence, and perjury by his efforts to infuse aspects from the previous case into the present case that are not true in anyway. 4. Judge Feess then takes the 29 word alleged infringing derivative text, “… a three-person style committee in one of the authors’ classes decided that the proper way to refer to people of African descent was to coin a term “Afrimerican”. Illegally altering the 29 word alleged infringing derivative text to the single word, Afrimerican. 5. The issue “necessarily litigated” in the prior case “Williams v. Warner/Chappell Music, Case No. 2:07-cv-026382 (C.D. Cal. Sept. 26, 2007), aff’d 274 Fed. App.601 (9th Cir. 2008)”, is the claim of copyright protection for the single word Afrimerican and the simultaneous claim of infringement of the single word Afrimerican by the single word Afrimerican. 6. The current issue submitted for litigation in the current Williams v McGraw-Hill, Inc. et all… case is a claim of copyright infringement of the 45 word Afrimerican copyright protected text, “AFRIMERICAN (AF/RI/Me/RI/CAN) – Noun Definition; A member of a race of mankind, Born in the United States, Descended from African Immigrants, Classified and Characterized according physical features such as skin tone, (Lite Brown to Dark Brown), Hair Texture, and Body Skeletal build, (i.e. Nose, Lips, etc…).” (45 word copyright protected text). By the 29 word alleged infringing derivative text, “… a three-person style committee in one of the authors’ classes decided that the proper way to refer to people of African descent was to coin a term “Afrimerican”. The issues “necessarily litigated” in the prior case of the single ward Afrimerican being infringed by the single word Afrimerican is not the same issues “necessarily litigated” in the current case of a 45 word copyright protected text being infringed by a 29 word unauthorized derivative text. Evidencing not only a falsification, and alteration of evidence, but also evidencing a falsification of the ruling based on the falsification of evidence which does’nt match, include, or involve the actual, factual, documented evidence of the current case. 7. The alteration of evidence by the altering of the 45 word Afrimerican copyright protected text to the single word, Afrimerican, and the simultaneous altering of the 29 word alleged infringing derivative text to the single word, Afrimerican are blatantly, undoubtedly, and obviously two illegal actions because they are not the actual claim being made in the current case.

(Judge Feess, as stated above, attempts to make it appear Judge Wilson ruled to invalidate the Afrimerican copyright protected text, which Judge Wilson did not do. Judge Feess does that to give persuasive subliminal credence to his altered evidence, in an effort to infuse the idea in the minds of readers of his ruling through grammatical psychological inferences to influence readers of his ruling to think that even if the single word ruling was challenged, he wants readers to think there isn’t a valid copyright at all in an effort to thwart any question of his ruling. The Afrimerican Copyright Protected Text was not ruled invalid by Judge Wilson, and is valid, and validation can be easily verified by calling the current, new Register of Copyrights, Senior Copyright Office Attorney Renee Coe, or Senior Copyright Office Attorney Virginia Giroux) 8. Judge Feess uses his illegal alteration of the 45 word Afrimerican copyright protected text to the single word, Afrimerican, and his illegal alteration of the 29 word alleged infringing derivative text to the single word, Afrimerican to illegally create an illegal issue preclusion. ruling. 9. The issue Preclusion ruling is illegal because it is not supported by the actual evidence, it is illegally created by illegally altering the evidence of the current case and illegally replacing it with evidence of the previous case that does not apply. Judge Feess’s actions are obviously willful and intentional which is determinable by the convoluted, and carefully crafting of the infusion of words, descriptions, statements and or analogies from the prior case, with statements from the current case which does not include any of the words descriptions, statements, or analogies Judge Feess falsely incorporates from the prior case. A simple reading of the complaint, or First Amended Complaint for the current case and a reading of Judge Feess’s Order Re: Motion to Dismiss will demonstrate the ruling does not coincide or support what’s in the current complaint. Additionally, a reading of Judge Wilson’s ruling beginning under his “Ownership of Copyright” Section, up to the end of his order on page 12, will establish beyond doubt Judge Wilson only concerned himself, his analysis, and his ruling on the single word Afrimerican, not the Afrimerican copyright protected text. This too evidences Judge Feess’s alteration of evidence because it demonstrates the text was not at issue in the prior case as it is in the current case. All of the above support the claim of illegal acts as stated of the issue preclusion issue being a false ruling on the false claim by Judge Feess the current complaint is about the single word Afrimerican, which by now should be obvious to anyone is not, but the greater proof exist in Judge Feess’s ORDER RE: ATTORNEY FEES, where Judge Feess alters his own false issue preclusion issue (falsely) being the single word Afrimerican to Judge Feess changing the issue preclusion issue to (falsely) being the Afrimerican copyright protected text Judge Feess made an illegal ruling of issue preclusion by illegally accusing me of claiming copyright infringement of the single word Afrimerican in his Order Re: Motion to Dismiss.

Judge Feess’s ORDER RE: ATTORNEY FEES furthers his illegal acts by altering his own issue preclusion issue from the illegal ruling of the single word Afrimerican he made in his ORDER RE: ORDER TO DISMISS to, in his ORDER RE: ATTORNEY FEES, he changes the issue preclusion issue to being the Afrimerican copyright protected text. The alteration is blatant and readily ascertainable by a side by side comparison of the ORDER RE: ATTORNEY FEES with the ORDER RE: ORDER TO DISMISS by Judge Feess in this matter. Judge Feess’s ORDER RE: ORDER TO DISMISS makes an illegal issue preclusion ruling based on an illegal, false accusation that the single word Afrimerican is what’s being claimed as copyright protected, and claimed to be infringed, which is not the actual claim made in the current complaint, and all the evidence provided Judge Feess and the United States Court of Appeals firmly proves there is no issue preclusion based on the single word Afrimerican, now in Judge Feess’s ORDER RE: ATTORNEY FEES Judge Feess clearly, and undoubtedly exposes that he is fully aware there is no single word Afrimerican issue by how he changes the issue preclusion issue from the single word Afrimerican, and uses the whole Afrimerican copyright protected text as the issue preclusion issue in his ORDER RE: ATTORNEY FEES. Judge Feess basically tells on himself. Judge Feess, in making the Afrimerican copyright protected text the issue preclusion issue in his ORDER RE: ATTORNEY FEES, furthers his earlier misrepresentation of facts by attempting to make it appear Judge Wilson ruled to invalidate the Afrimerican copyright protected text, which Judge Wilson did not do. Judge Feess is again falsely, illegally creating an issue preclusion issue that is not only contrary to his earlier ruling, but contrary to all the evidence and facts presented by the Plaintiff in this matter and defense claims to the contrary are wholly, completely, and absolutely unsupported. Judge Feess is willfully creating this false ruling platform that to be used in future copyright infringement cases which the defense can use to claim issue preclusion based on Afrimerican copyright protected text Judge Feess has falsely claimed as an issue preclusion issue. The whole of this is carefully crafted, intentional, and obviously designed to commit the crimes stated in order to deny me the full benefits of my copyright now, and in the future, and Judge Feess is reliant on all official channels used to complain being resistant to addressing and correcting the matter. Judge Feess is committing the crimes under the color of authority, and he relies on a cover-up by officials of the United States District Courts, the United States Court of Appeals who are under obligation to take corrective measures, but who have thus far help facilitate the illegal acts of Judge Feess and engage in a sepreate crime of covering up the crimes noted. This too demonstrates a willful, intentional illegal act that in effect is snowballing and/or encompassing various hinderance to the core aspects of the rights and protections relevant to the Afrimerican copyright protected text. Judge Feess is using the court to negate the Afrimerican copyright text, while it still shows as valid by the U.S. copyright Office. It is a purposeful design and effort,

and any denial of that is belayed by the facts, and evidence, and the only way for this to stand is a high level cover-up. Comparing the following narrative of/from Judge Feess’s ORDER RE: ATTORNEY FEES to narrative of/from Judge Feess’s ORDER RE: MOTION TO DISMISS will prove the discrepancies as stated as true. 1. In Judge Feess’s ORDER RE: ATTORNEY FEES he begins his misrepresentations by falsely, and illegally accusing me of discovering the Afrimerican copyright protected text being used in the song titled Afrimerican in the “Williams v. Warner/Chappell Music, Case No. 2:07-cv-026382 (C.D. Cal. Sept. 26, 2007)” case. This is UNTRUE, and a gross misrepresentation of fact because the Original Afrimerican song, discovered in 2005, and the subject of the Williams v Warner Chappell case does not have any words, no lyrics, the song is all instrumental, it does not include any text. Judge Feess basically tells an outright lie. 2. Following the above illegal and false statement regarding the song Afrimerican, Judge Feess in his ORDER RE: ATTORNEY FEES describes my current copyright infringement complaint exactly as it was/is presented, but now Judge Feess is falsely, and illegally presenting the Afrimerican copyright protected text as the issue preclusion issue, when before, and opposite his ORDER RE: ATTORNEY FEES, Judge Feess, in his ORDER RE: ORDER TO DISMISS, altered various elements of the current complaint, and the copyright protected text, and the infringing text to illegally change them to the single word Afrimerican, which he used to illegally create an issue preclusion ruling based on his false claim that the single word Afrimerican was the issue of the current copyright complaint, which it isn’t. He changed the issue preclusion issue from the single word Afrimerican, to the issue preclusion issue being the Afrimerican copyright protected text, both of which are false, and illegal for different reason. 3. From the beginning of the current copyright infringement complaint I have maintained the issue is the Afrimerican copyright protected text being infringed by an unauthorized derivative text. Furthermore, I have also maintained Judge Wilson did not rule to invalidate the Afrimerican copyright protected text, and that the Afrimerican copyright protected text is a valid registered copyright. The proof of the truth of my complaint, and all my claims up to now is evidenced in Judge Feess’s ORDER RE: ATTORNEY FEES, with the only exception being the illegal, false presentation by Judge Feess of the Afrimerican copyright protected text being the issue ruled on by Judge Wilson, which Judge Wilson did not do, making Judge Feess’s presentation of the issue of the Afrimerican copyright protected text as the issue preclusion issue false. 4. Judge Feess alters evidence, commits perjury by changing a 45 word copyright protected text to the single word Afrimerican, changing the 29 word unauthorized infringing derivative text to the single word Afrimerican, making an illegal issue preclusion ruling based on the alteration in his ORDER RE: ORDER TO DISMISS, then Judge Feess basically exposes the criminality of his ORDER RE: ORDER TO DISMISS by illegally changing the issue preclusion issue from the single word Afrimerican to the Afrimerican copyright protected text in his ORDER RE: ATTORNEY FEES. His alteration of the issue preclusion issue from the single word

Afrimerican is illegal in itself by how it was created, and because it is false, and it is exposed as being illegal by how Judge Feess alters the issue preclusion issue to the Afrimerican copyright protected text which is also illegal because judge Wilson did not rule against the Afrimerican copyright protected text making the Afrimerican copyright protected text exempt from being a valid issue preclusion. The criminal nature of this is evident by Judge Feess’s own writings,as compared to each other, and as compared to the evidence submitted by me to the court Judge Feess’s ORDER RE: ATTORNEY FEES is, in itself, evidence of Judge Feess altering evidence, and his misrepresentations of facts, and his, illegal issue preclusion ruling falsely being the single word Afrimerican because in the ORDER RE: ATTORNEY FEES Judge Feess lies again by illegally, and falsely presenting the Afrimerican copyright protected text as the issue preclusion issue and ruling which is easily provable by comparing it to Judge Feess’s ORDER RE: ORDER TO DISMISS. Judge Feess’s ORDER RE: ATTORNEY FEES is proof of the alteration of evidence of the Afrimerican copyright protected text to the single word Afrimerican in Judge Feess’s ORDER RE: ORDER TO DISMISS, and it’s proof there is no real, actual issue preclusion, because the Afrimerican copyright protected text is not what Judge Wilson, or Judge Feess ruled on in order to dismiss either the prior or current lawsuit. All that’s described above also evidences a willful, intentional effort by Judge Feess, and it demonstrates his full knowledge and awareness of his wrongdoing. While I reserved this matter to the violation of ;

1. 18 U.S.C. § 1512(b)(B) Tampering with a witness, victim, or an informant. 2. 18 USC § 1519 Destruction, alteration, or falsification of records in Federal investigations and bankruptcy 3. 18 USC §1621. Perjury 4. 18 USC § 242 Deprivation of Rights Under Color of Law

There are other law violations encompassing this matter that involve several variation of the laws that govern Obstruction of Justice, and there are several civil rights and constitutional legal violations that the FBI, the DOJ, the U. S Attorney Generals are better equipped to identify, investigate and prosecute, and this is a request you forward this matter to those agencies with a Senatorial Order, or Senatorial Request that they investigate this matter and prosecute Judge Feess for his criminal actions. The civil rights violations are evident by how Judge Feess is acting in a manner to deprive me of the legal copyright rights I have as the owner of the valid copyright protected text that is the subject of this whole matter. Additionally, while civil rights protections, and violations have been grossly altered, and or diluted from the defending of Black people against racial discriminatory motives and actions that deprive Black people because they are Black people, that strongly appears to be the

motivating factor in/of/behind Judge Feess’s behaviour. It’s like when Lindsay Lohan got arrested after her high speed chase of her assistant and she immediately told the police the Black guy was driving the car when there was proof it was her. Or when Susan Smith killed her kids and said the black guy did it, or when Charles Stuart killed his wife and said the Black guy did it but it was him. It is true Blacks have done this also, but it is a long term, almost White traditional trait for Whites to Blame a Black person of a wrong just because they know their white skin tone will give them credence above and beyond the black person protestations, and the actions by Judge Gary Allen Feess follows the thread of that motivation and reliance. He is engaged in race based deprivation of rights in the veign of Plessy v Ferguson, and Dred Scott v Sanford, and that is in addition to the described criminal acts as they relate to the current copyright lawsuit. I am submitting this letter with a copy of the exhibits that prove everything I claim, and I am available to answer any and all questions that may arise. Bruce Ameil Williams

EXHIBIT A Appellants/Plaintiffs First Amended Complaint does not contain a claim for a “word”, or a “phrase”, or a “term” as Judge Feess claims in his November 16, 2010, ORDER RE: MOTION TO DISMISS. (See Exhibit D) Appellants/Plaintiffs First Amended complaint issue to be litigated is the copyright protected text, “AFRIMERICAN (AF/RI/Me/RI/CAN) – Noun Definition; A member of a race of mankind, Born in the United States, Descended from African Immigrants, Classified and Characterized according physical features such as skin tone, (Lite Brown to Dark Brown), Hair Texture, and Body Skeletal build, (i.e. Nose, Lips, etc…)”, which Judge Feess illegally alters and reduces to the single word Afrimerican, and discarding 44 words of evidenced text, and Judge Gary Allen Feess also illegally alters the evidence of the infringing derivative text, “… a three-person style committee in one of the authors’ classes decided that the proper way to refer to people of African descent was to coin a term Afrimerican”, reducing it to the single word Afrimerican, and discarding 28 words of evidenced unauthorized infringing text What legal authority, law, rule, procedure, authorizes the alteration of evidence as Judge Feess did by altering actual evidence and misrepresentation of facts as he did as described above, and as he did in alering FAC 15, “15. Plaintiff is the Copyright owner of the text, “Afrimerican”, officially registered with the United States Copyright Office as of December 26, 1989, registration number TXu 399-322, and as such, is entitled to all protections and exclusive rights relative to the federal copyright laws as granted per 17 USC §106.” To, “Because the court in Williams [Williams v Warner Chappell] already addressed whether the term “Afrimerican” was entitled to copyright protection, Williams is essentially seeking to relitigate this same issue. Thus, the first element for issue preclusion is met in this case”. Judge Fess illegally alters the claim of copyright infringement of the actual 21 year old, valid, registered, Afrimerican copyright protected text to a claim for a word, and is Illegally creating an issue preclusion issue that does not correspond with the evidentiary claim, and the actual evidence in Appellants/Plaintiffs First Amended Complaint for infringement of the properly identified valid registered text. What legal authority, law, rule, procedure, authorizes alteration of a 45 word text to one word, and changing a 29 word text to one word in order to create false facts to create a false issue preclusion ruling contrary to the actual facts in and of Appellants/Plaintiffs First Amended Complaint as Judge Feess does in his ORDER RE: MOTION TO DISMISS dismissing Appellants/Plaintiffs complaint. This is a crime by Judge Gary Allen Feess

EXHIBIT A

Case 2:10-cv-06062-GAF -SH Document 6 Filed 09/03/10 Page 1 of 11 Page ID #:37











EXHIBIT B

EXHIBIT B Appellant/Plaintiff has a valid, registered copyright protected text, registered

December 26, 1989, registration number TXu 399-322.

Judge Feess’s ORDER RE: MOTION TO DISMISS creates a false narrative of

Appellants/Plaintiffs complaint Afrimerican copyright protected text, to make it

appear Judge Wilson in the Williams v. Warner Chappell case ruled to invalidate

the Afrimerican Copyright protected text, which Judge Wilson did not do. (See

Exhibit C, page 8/9, page 12).

The procedure when a copyright is ruled invalid is for the court to send a notice to

the U. S. Copyright Office informing them of the invalidation, and the U.S.

Copyright Office removes the invalidated copyright registration from their public

records.

The Afrimerican Copyright Protected text is valid and remains publicly listed by

the U.S. Copyright Office as a valid copyright evidencing Appellants/Plaintiffs

valid copyright of the Afrimerican copyright protected text

Judge Feess misrepresents facts in his ORDER RE: MOTION TO DISMISS to

make it appear Judge Wilson ruled against the whole copyright text, but Judge

Wilson actually ruled that any claims/or defense in regard to the Afrimerican

copyright protected text as a whole were inapplicable. Judge Wilson only ruled on,

and in sole reference to the single word Afrimerican. Appellants/Plaintiffs current

complaint issue is the copyright text, not the single term Afrimerican as Judge

Feess illegally created, to support his illegal ruling.

Judge Feess includes the fallacious narrative regarding the Afrimerican copyright

text in his ORDER RE: MOTION TO DISMISS to make it appear Judge Wilson

ruled to invalidate it, but then, contrary to the fallacious Afrimerican copyright text

narrative Judge Feess, does not rule on the text, Judge Feess instead rules only on

the single word Afrimerican, as Judge Wilson did.

Judge Feess uses the false narrative regarding the Afrimerican copyright text in his

ORDER RE: MOTION TO DISMISS to confuse the issues, which he later uses

EXHIBIT B

to further his alteration of evidence, and misrepresentation of fact later in his

ORDER RE: ATTORNEY FEES where Judge Feess describes

Appellants/Plaintiffs complaint precisely as Appellant/Plaintiff presented it but,

Judge Feess in the ORDER RE: ATTORNEY FEES alters evidence, and

misrepresents evidence and describes the text as the issue preclusion issue,

contrary to his own prior ruling where he ruled the single word Afrimerican as the

issue preclusion issue.

The issue preclusion issue Judge Feess presents in his ORDER RE: ATTORNEY

FEES is the Afrimerican copyright text, which is opposite of Judge Wilsons ruling

in Williams v Warner Chappell, and more importantly, it is opposite Judge Fess’s

own ORDER RE: MOTION TO DISMISS ruling where he had ruled the issue

preclusion issue was the single word Afrimerican.

This evidences Judge Feess knows Appellant/Plaintiff has a valid copyright.

This evidences Judge Feess is well aware Appellants/Plaintiffs current complaint is

about the Afrimerican copyright text, not the single word Afrimerican.

This evidences Judge Feess is intentionally altering evidence, misrepresenting

facts, committing perjury, and violating several federal laws.

This evidences most importantly that Judge Feess’s ruling to dismiss

Appellants/Plaintiffs complaint for issue preclusion issue based on the single word

Afrimerican is false, and illegal.

weovoyage Kecor<l V1ew 1 bttp:/!cocatalog.loc.gov/cgi-binfPwebrecon.cgi?Search _Arg=Afi

~Opyright _ ~ _ United States Copyright Office

Public Catalog

Copyright Catalog (1978 to present)

Search Request: Left Anchored Title = Afrimerican

Search Results: Displaying 1 of 1 entries ow ._ - I pn:vious II next ~I

Labeled Vi w

Afrimerican

Type -GfWork: Text

Registration Number I Date: TXu000399322 I 1989-12-26

Application Title: Afrimerican

Title: Afrimerican

Description: 1 p.

Copyright Claimant: Bruce Ameil Williams

Date of Creation: 1989

Authorship on Application: Bruce Arneil Williams.

Names: Williams, Bruce Arneil, 1960-

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EXHIBIT C

EXHIBIT C The ORDER GRANTING DEFENDANT WARNER/CHAPPELL MUSIC, INC.’S

MOTION TO DISMISS COMPLAINT PURSUANT TO FED. R. CIV. PROC. 12 (B)

(6) dismissing Appellants/Plaintiffs Complaint against Warner/Chappell in regard

to Appellants/Plaintiffs whole copyright protected text states on page 8 &9

“ The registration of a copyright by the Copyright Office simply creates prima

facie evidence of copyrightability, evidence that can be rebutted by the defendant

demonstrating why the work is not copyrightable…The Copyright Act also

provides for this presumption by stating that a certificate of registration "made

before or within five years after first publication of the work shall constitute prima

facie evidence of the validity of the copyright … .17 U.S.C. § 410(c). Plaintiff

appears to admit that he has not published the work, which would make the

presumption inapplicable under § 410(c). (See Pltf. opp. 5.} Even assuming,

however, that there was some form of publication alleged, Defendant

Warner/Chappell has overcome any prima facie evidence of copyrightability

by demonstrating that Plaintiff cannot copyright the term Afrimerican.”

Judge Wilsons analysis of the whole Afrimerican copyright protected text was not

relevant to his examination of the claim at large regarding the claim of copyright

protection for the single word Afrimerican, in short, Judge Wilson basically

disregarded the whole Afrimerican copyright protected text in his overall analysis

and ruling.

Judge Wilsons actual ruling in his ORDER GRANTING DEFENDANT

WARNER/CHAPPELL MUSIC, INC.’S MOTION TO DISMISS COMPLAINT

PURSUANT TO FED. R. CIV. PROC. 12 (B) (6) was, Page 12,

“IV. CONCLUSION

As Plaintiff cannot assert a valid copyright in the term Afrimerican, his claim for

copyright infringement should be dismissed.”

The prior claim in Williams v Warner Chappell was for copyright recognition, and

protection of the single word Afrimerican, being infringed by the single word

Afrimerican which is what Judge Wilson addressed, and ruled on exclusively.

EXHIBIT C

The current claim in Williams v McGraw-Hill, Inc. et al… is a claim for copyright

infringement of the 45 word Afrimerican copyright protected text being infringed

by a 29 word unauthorized derivative text, which Judge Feess illegally alters, and

reduces to the single word Afrimerican, to create an illegal, false issue preclusion

issue ruling.

Judge Feess alters the analysis by Judge Wilson by leaving out the part , “…the

term Afrimerican”. Judge Feess alters evidence to make it appear Judge Wilson

ruled against the Afrimerican copyright protected text, when Judge Wilsons

majority, and final concern, and ruling was on the single word Afrimerican, not the

Afrimerican copyright protected text.

Judge Feess mis states and misrepresents the facts to make it appear Judge Wilson

ruled against the whole copyright text when Judge Wilson only ruled on the single

word Afrimerican. Judge Feess alters the evidence of the copyright text, and the

infringing text, extracting the word Afrimerican from each, to create an illegal

issue preclusion ruling in his ORDER RE: MOTION TO DISMISS falsely

claiming Appellant/Plaintiff is making a claim for the single word Afrimerican,

when in truth the claim is for the Afrimerican copyright protected text, and Judge

Feess’s ruling that the single word Afrimerican is the issue preclusion issue is

illegal, and contrary to evidence.

Later Judge Feess in his ORDER RE: ATTORNEY FEES, he describes the

whole Afrimerican copyright protected text and the whole infringing text, and

falsely, and illegally describes the Afrimerican copyright protected text as the issue

preclusion issue.

This is in direct opposition to his prior ruling of the single word Afrimerican being

the issue preclusion issue, and it evidences Judge Feess knows the true aspects of

Appellants/Plaintiffs complaint, and evidences Judge Feess prior single word

Afrimerican issue preclusion ruling is false, and that there is actually no issue

preclusion making Judge Feess’s dismissal ruling false.

Case 2:07-cv-02683-SVW -CT Document 20 Filed 09/26/07 Page 1 of 12 Page ID #:13












EXHIBIT D

EXHIBIT D Judge Feess’s November 16, 2010, ORDER RE: MOTION TO DISMISS

First Judge Feess breaks the law by reclassifying the Afrimerican copyright

protected text as a single word.

Second, Judge Feess makes a series of circular statements combining a sentence

about the text, then following it up with a sentence about the term Afrimerican,

making it appear they are one and the same when they are not.

Third in Judge Feess’s actual analysis regarding the first standard of issue

preclusion, he writes,

“Here, similar to the prior proceeding, Williams is seeking copyright protection

for the phrase “Afrimerican” and its accompanying definition.(FAC ¶ 15.)”.

That is a proven lie by Exhibit B which shows (FAC ¶ 15.) states,

“15. Plaintiff is the Copyright owner of the text, “Afrimerican”, officially

registered with the United States Copyright Office as of December 26, 1989,

registration number TXu 399-322, and as such, is entitled to all protections and

exclusive rights relative to the federal copyright laws as granted per 17 USC

§106.”.

FAC15 describes what Appellant/Plaintiff already has, and has had for 21 years. It

is identification of Appellants/Plaintiffs 21 year copyright protected text, Judge

Feess illegally alters the facts illegally accusing Appellant/Plaintiff of “seeking

protection for the phrase “Afrimerican” and its accompanying definition”, which

FAC 15 does not do.

Judge Feess fails to specifically identify where a specific claim for protection is

made for a “phrase” or a “definition” is made by Appellant/Plaintiff because no

such claim is made in Appellants/Plaintiffs complaint or FAC.

The next falsehood by Judge Feess in November 16, 2010, ORDER RE:

MOTION TO DISMISS is, “Williams, however, argues that the Williams case

only addressed whether the term “Afrimerican” is entitled to protection and not

the entire text. (Docket No. 38, Opp. at 4.) This argument is without merit.”. Here

Judge Feess again infuses a misrepresentation of facts.

EXHIBIT D

The prior case looked at both the whole copyright, and the claim for protection of

the single word Afrimerican, and determined on page 9 of Judge Wilsons ruling

that, “Defendant Warner/Chappell has overcome any prima facie evidence of

copyrightability by demonstrating that Plaintiff cannot copyright the term

Afrimerican.” Judge Wilson did look at the whole text, but actually disregarded

the whole copyrighted text, focusing only on the claim for copyright protectionfor

the single word Afrimerican in the prior case. Judge Wilson did not apply the

whole copyright text to the claim being made in the prior case, therefore,

Appellants/Plaintiff claim has merit, and Judge Feess alters, and misrepresents the

fact described to make it appear Judge Wilson ruled on the copyright protected text

which he did’nt.

Again, Judge Feess makes nearly the same statement made earlier with, “…First,

similar to his FAC, Williams alleged in the prior case that he was entitled to

protection for both the term “Afrimerican” and its definition.”.

Judge Feess starts the Falsehood with , “…First, similar to his FAC,…”, but he

does not identify where in Appellants/Plaintiffs FAC, then Judge Feess uses claims

made in the prior complaint, “…Williams alleged in the prior case that he was

entitled to protection for both the term “Afrimerican” and its definition.”. and

falsely, illegally accuses Appellant/Plaintiff of making that claim in the current

complaint, and that claim does not appear anywhere in Appellants/Plaintiffs

current complaint. Judge Feess again misrepresents facts, and infuses false

statements into his ruling, altering evidence.

Judge Feess furthers his acts of misrepresentation of fact with the statement, “As

such, the Court considered this entire text when resolving the copyright issue.”.

Judge Wilson did consider the entire text, but basically deemed it inapplicable to

the claim for protection of the single word, and concerned his analysis, and his

ruling on the term [the single word] Afrimerican. Judge Feess, with this statement,

combined with the previous statements by Judge Feess is a deliberate act to make it

appear Judge Wilson ruled against the text and against the word and Judge Wilson

only ruled on the word Afrimerican, not the text. Again Judge Feess alters

evidence.

Lastly, Judge Feess disregards the copyright text he repeatedly misconstrued in his

earlier statements, and then indirectly evidences altering evidence by

acknowledging the infringing text, and describing he only considered the single

word Afrimerican with his ruling statement,

“Next, the phrase in McGraw’s book does not copy the definition of

“Afrimerican,” but rather uses only the term. (FAC ¶ 18.) Because the court in

EXHIBIT D

Williams already addressed whether the term “Afrimerican” was entitled to

copyright protection, Williams is essentially seeking to relitigate

this same issue. Thus, the first element for issue preclusion is met in this case.”.

Appellant/Plaintiff never makes a claim for a word, or phrase, or term, or

definition in Appellants/Plaintiffs First Amended complaint. Judge Feess uses

those identifiers, and falsely presents them in a manner that gives the impression

Appellants/Plaintiffs current complaint uses them when in truth it does’nt. The

word “definition” appears in Appellants/Plaintiffs current complaint only because

it is in, and an actual part of the Afrimerican copyright protected text.

Judge Feess illegally alters evidence by extracting the word Afrimerican from the

29, word infringing text he is legally obligated to examine and rule on as a whole,

and instead he falsely creates a false issue preclusion issue when in fact there is no

issue preclusion issue.

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UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 10-06062 GAF (SHx) Date November 16, 2010

Title Bruce Ameil Williams v. McGraw-Hill Inc. et al

1 The registration number for this copyright is Txu 399-322. (FAC ¶ 15.)CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 4

Present: The Honorable GARY ALLEN FEESS

Renee Fisher None N/ADeputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

None None

Proceedings: (In Chambers)

ORDER RE: MOTION TO DISMISS

I. INTRODUCTION

On September 3, 2010, Plaintiff Bruce Ameil Williams (“Williams”) filed his FirstAmended Complaint (“FAC”) against McGraw-Hill Inc. (“McGraw”), Professor Daryl L.Frazell (“Frazell”), Professor George Tuck (“Tuck”), and University of Nebraska (collectively“Defendants”) for copyright infringement. (Docket No. 6, FAC.) On November 3, 2010,Williams dismissed his complaint against University of Nebraska. (Docket No. 36, Notice ofDismissal.) Pending before the Court is McGraw’s motion to dismiss. (Docket No. 17, Not.) Inpertinent part, McGraw argues that its motion should be granted because Williams has alreadylitigated this issue in a prior proceeding―the Court agrees. For the reasons discussed more fullybelow, the Court DISMISSES Williams’s copyright infringement claim against McGrawWITHOUT LEAVE TO AMEND.

II. BACKGROUND

Williams is the copyright owner of the text, “Afrimerican” that was registered1 with theUnited States Copyright Office on December 26, 1989. (FAC ¶ 15.) Williams’s copyright textreads as follows:

AFRIMERICAN (AF/RI/Me/RI/CAN) - Noun Definition; A member of a race of


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CV-90 (06/04) CIVIL MINUTES - GENERAL Page 2 of 4

mankind, Born in the United States, Descended from African Immigrants,Classified and Characterized according physical features such as skin tone, (LiteBrown to Dark Brown), Hair Texture, and Body Skeletal build, (i.e. Nose, Lips,etc . . .).

(Id. ¶ 11.) The Afrimerican text became widely available to the public on September 19, 1991when the Los Angeles Wave Newspaper printed this text in an article. (Id. ¶ 13.) On November18, 2009, while Williams was conducting a regular weekly check for uses of the Afrimericantext on the internet, he discovered that Frazell and Tuck “had created, and used a derivative ofthe ‘Afrimerican’ text, in a book they authored titled, ‘PRINCIPLES OF EDITING’, ‘AComprehensive Guide for Students and Journalist.’” (Id. ¶ 8.) The book in question―that ispublished by McGraw―allegedly infringed Williams’s copyright with the following passage:“‘a three-person style committee in one of the authors’ classes decided that the proper way torefer to people of African descent was to coin a term ‘Afrimerican.’” (Id. ¶ 18.)

Williams alleges in the FAC that this purported “infringement began in 1996, andcontinues to date because . . . [McGraw] . . . still collects, and has the life of copyright right tocollect a royalty, and disperse a royalty to the other Defendants from the infringing work, andthe Defendants continue, and can continue to benefit from the copyright infringement.” (Id. ¶14.)

III. DISCUSSION

A. RULE 12(B)(6) LEGAL STANDARD

On a motion to dismiss brought pursuant to Rule 12(b)(6), a court must accept as true allfactual allegations pleaded in the complaint, and construe those facts and draw all reasonableinferences therefrom “in the light most favorable to the nonmoving party.” Cahill v. LibertyMut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996); see also Stoner v. Santa Clara Cnty. Officeof Educ., 502 F.3d 1116, 1120–21 (9th Cir. 2007). A court may dismiss a complaint under Rule12(b)(6) only if it appears beyond a doubt that the alleged facts, even if true, will not entitle theplaintiff to relief on the theories asserted. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,560–61 (2007); Stoner, 502 F.3d at 1120–21; see also Cahill, 80 F.3d at 338.

While a complaint need not contain detailed factual allegations, “a plaintiff’s obligationto provide the grounds of his entitlement to relief requires more than labels and conclusions, anda formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at555 (citation, alteration, and internal quotation marks omitted). Likewise, the court is not


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2 The court concluded as follows: “Plaintiff asserts a copyright in the term Afrimerican and its definition. On its face, the term is simply a shortened version of African-American, excluding the ‘can-A.’ Considering theoverwhelming precedent and Copyright Office regulations stating that short words and phrases are not subject tocopyright protection, this term lacks the necessary creativity to obtain a valid copyright.” Williams, No. 2:07-CV-02683 SVW (CTx) at 6 (emphasis added). CV-90 (06/04) CIVIL MINUTES - GENERAL Page 3 of 4

“required to accept as true allegations that are merely conclusory, unwarranted deductions offact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9thCir. 2001) (emphasis added). In other words, “the tenet that a court must accept as true all of theallegations contained in a complaint is inapplicable to legal conclusions. . . . While legalconclusions can provide the framework of a complaint, they must be supported by factualallegations.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949–50 (2009) (citing Twombly, 550 U.S. at555); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Moreover, the Supreme Court clarified in Iqbal that “only a complaint that states a plausibleclaim for relief survives a motion to dismiss. . . . [W]here the well-pleaded facts do not permitthe court to infer more than the mere possibility of misconduct, the complaint has alleged—but ithas not ‘shown’—that the pleader is entitled to relief.” 129 S. Ct. at 1950.

B. APPLICATION

1. ISSUE PRECLUSION

McGraw argues in its motion that Williams’s copyright infringement claim is barred bythe doctrine of issue preclusion. (Mem. at 7-8.) “Issue preclusion bars relitigation of issuesadjudicated in an earlier proceeding if three requirements are met: (1) the issue necessarilydecided at the previous proceeding is identical to the one which is sought to be relitigated; (2)the first proceeding ended with a final judgment on the merits; and (3) the party against whomcollateral estoppel is asserted was a party or in privity with a party at the first proceeding.” Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 (9th Cir. 2006) (citing Kourtis v.Cameron, 419 F.3d 989, 994 (9th Cir. 2005)).

In Williams v. Warner/Chappell Music, No. 2:07-CV-02683 SVW (CTx) (C.D. Cal. Sept.26, 2007), Williams brought a copyright infringement claim against the defendant and assertedthat he had “a copyright in the term Afrimerican and its definition.” Id. at 6. The court analyzedat length whether Williams in fact owned a legally valid copyright in the term. Id. at 5-9. Thecourt ultimately concluded2 that Williams did not own a valid copyright, and that any prima faciepresumption of validity was rebutted by the defendant. Id. at 9.


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Here, similar to the prior proceeding, Williams is seeking copyright protection for thephrase “Afrimerican” and its accompanying definition. (FAC ¶ 15.) Williams, however, arguesthat the Williams case only addressed whether the term “Afrimerican” is entitled to protectionand not the entire text. (Docket No. 38, Opp. at 4.) This argument is without merit. First,similar to his FAC, Williams alleged in the prior case that he was entitled to protection for boththe term “Afrimerican” and its definition.” Williams, No. 2:07-CV-02683 SVW (CTx) at 6. Assuch, the Court considered this entire text when resolving the copyright issue. Id. 5-9. Next, thephrase in McGraw’s book does not copy the definition of “Afrimerican,” but rather uses only theterm. (FAC ¶ 18.) Because the court in Williams already addressed whether the term“Afrimerican” was entitled to copyright protection, Williams is essentially seeking to relitigatethis same issue. Thus, the first element for issue preclusion is met in this case.

Finally, the last two elements for issue preclusion are satisfied as well. The court inWilliams rendered a final judgment on the merits of the case, Williams, No. 2:07-CV-02683SVW (CTx) at 12, and Williams―the party against whom McGraw is asserting issuepreclusion―was the plaintiff in the prior case, id. at 1. Because all of the elements are met,Williams’s copyright infringement claim is barred under the doctrine of issue preclusion. Accordingly, the Court DISMISSES Williams’s copyright infringement claim against McGrawWITHOUT LEAVE TO AMEND.

IV. CONCLUSION

Based on the foregoing, the Court GRANTS McGraw’s motion and DISMISSESWilliams’s copyright infringement claim against McGraw WITHOUT LEAVE TO AMEND. The hearing presently scheduled for Monday, November 29, 2010, at 9:30 a.m. is herebyVACATED.

IT IS SO ORDERED.


EXHIBIT F

EXHIBIT F Judge Feess’s March 21, 2011 ORDER RE: ATTORNEYS’ FEES is a

furtherance of Judge Feess’s alteration of evidence, and misrepresentation of fact,

and ironically it provides evidence to his previous federal law violations, because

whereas before in his ORDER RE: MOTION TO DISMISS, Judge Feess altered

evidence in an effort to discard the Afrimerican copyright protected text, and the

29 word infringing text to illegally reduce the claim, and his ruling to the single

word Afrimerican, contrary to the true evidence, and now in his ORDER RE:

ATTORNEYS’ FEES, Judge Feess does the opposite by actually describing

Appellants/Plaintiffs complaint as it was submitted and actually is, and he alters

the false issue preclusion issue in his earlier ORDER RE: MOTION TO

DISMISS ruling from the single word Afrimerican, to now make it appear the

Afrimerican copyright protection text is the issue preclusion issue, which it is not.

This is irrefutable obvious evidence of Judge Feess’s on going criminal acts of

altering evidence.

Judge Feess begins by accurately identifying, and procedurally acknowledging

Appellants/Plaintiffs Afrimerican copyright protected text as it appears in

Appellants/Plaintiffs First Amended Complaint,

“AFRIMERICAN (AF/RI/Me/RI/CAN) - Noun Definition; A member of a race of

mankind, Born in the United States, Descended from African Immigrants,

Classified and Characterized according [sic] physical features such as skin tone,

(Lite Brown to Dark Brown), Hair Texture, and Body Skeletal build, (i.e. Nose,

Lips, etc . . .). (Docket No. 6, First Amended Complaint (“FAC”) ¶¶ 11, 15.)”.

Judge Feess no longer refers to the Afrimerican copyright protected text as

“phrase”, or a “term”, or a “definition”, or “word”, but actually, and accurately

identifies it as text, as it is referred to by Appellant/Plaintiff in

Appellants/Plaintiffs First Amended Complaint.

Judge Feess uses his ORDER RE: ATTORNEYS’ FEES to portray the

Afrimerican copyright protected text as the issue preclusion issue, contrary to his

prior ruling that the issue preclusion issue was the “term Afrimerican”.

EXHIBIT F

Judge Feess begins his new acts of alteration of evidence, and misrepresentation of

fact with the statement, “Plaintiff… subsequently filed a copyright infringement

action in 2007 after discovering that a record company had used the text in one of

its songs. Williams v. Warner/Chappell Music, No. 2:07-CV-02683 SVW (CTx) at

*2 (C.D. Cal. Sept. 26,2007)”. That is egregiously false, and provable false

because the song is all instrumental. The song which was the subject of the Warner

Chappell lawsuit did not have lyrics, there was no text, it was all instrumental,

Judge Feess tells an outright lie by his statement Plaintiff discovered the text in a

song.

This can easily be proven, by looking up the Afrimerican song (The Original

2004/5) on the internet. This misrepresentation and alteration can also be verified

by the Warner Chappell’s Attorneys motion, (to follow), which specifies the song

has no text. This again evidences Judge Feess’s criminal acts.

Judge Feess continues to misrepresent facts, and alter evidence, by again making it

appear Judge Wilson ruled against the validity of the Afrimerican copyright

protected text, which he did’nt, then Judge Feess outlines Appellants/Plaintiffs

current complaint, corresponding with what Appellant/Plaintiff actually wrote, but

now Judge Feess is claiming the copyright text is the issue preclusion issue, when

before he altered evidence and ruled the issue preclusion issue was the single word

Afrimerican.

Judge Feess writes, “In that action [Williams v Warner Chappell], the court

analyzed at length whether Plaintiff was entitled to copyright protection, and

ultimately concluded1 that Plaintiff did not own a valid copyright, and that any

prima facie presumption of validity was rebutted by the defendant. Id. at 9”. Here,

Judge Feess furthers his misrepresentation by again making it appear Judge Wilson

ruled to invalidate the Afrimerican copyright protected text, which he did’nt, Judge

Wilsons ruling “Id. at 9” actually states, “The Copyright Act also provides for this

presumption by stating that a certificate of registration "made before or within five

years after first publication of the work shall constitute prima facie evidence of the

validity of the copyright … .17 U.S.C. § 410(c). Plaintiff appears to admit that he

has not published the work, which would make the presumption inapplicable under

§ 410(c). (See Pltf. opp. 5.} Even assuming, however, that there was some form of

publication alleged, Defendant Warner/Chappell has overcome any prima facie

evidence of copyrightability by demonstrating that Plaintiff cannot copyright the

term Afrimerican. Defendant Warner/Chappell has overcome any prima facie

evidence of copyrightability by demonstrating that Plaintiff cannot copyright the

term Afrimerican.” . Judge Feess misrepresents Judge Wilson’s actual statement

which was solely in reference to the single word Afrimerican, not the copyright

protected text.

EXHIBIT F

Then Judge Feess goes on to describe Appellants/Plaintiffs current complaint as

Appellant/Plaintiff actually wrote it in Appellants/Plaintiffs complaint, contrary to

his ORDER RE: MOTION TO DISMISS ruling, Judge Feess states/writes ,

“ Undeterred by the court‟s ruling, Plaintiff once again sought to find alleged

infringements of the Afrimerican text and discovered on November 18, 2009, that

Professors Daryl L. Frazell (“Frazell”) and George Tuck (“Tuck”) from the

University of Nebraska “had created, and used a derivative of the „Afrimerican‟

text, in a book they authored titled, „PRINCIPLES OF EDITING‟, „A

Comprehensive Guide for Students and Journalist.‟” (FAC ¶ 8.) The book in

question―which was published by McGraw-Hill Inc. (“McGraw”)―allegedly

infringed Plaintiff‟s copyright with the following passage: “„a three-person style

committee in one of the authors‟ classes decided that the proper way to refer to

people of African descent was to coin a term “Afrimerican.” (Id. ¶ 18.)

Based on this, Plaintiff filed suit for copyright infringement against the University

of Nebraska, McGraw, Frazell, and Tuck in August of 2010. (Docket No. 1.)”

Judge Feess describes the current complaint how it was submitted, but contrary to

how he described it in his ORDER RE: MOTION TO DISMISS, now, unlike

before, Judge Feess is depicting the Afrimerican copyright text as the issue

preclusion issue, when his own prior ruling in his ORDER RE: MOTION TO

DISMISS was of the single word Afrimerican as the issue preclusion issue.

In Judge Feess’s ORDER RE: ATTORNEYS’ FEES Judge Feess details

Appellants/Plaintiff current complaint truthfully with the exception he now alters

the evidence, and misrepresents the facts by claiming the text was the issue

preclusion issue. Judge Wilson did not make a ruling on the Afrimerican copyright

protected text, except to rule it inapplicable to the prior complaint, Judge Feess

does not use the grammar, “phrase”, “term, “word” as he did before. Judge Feess

now focuses solely on the Afrimerican copyright protected text, and now, falsely

presents the Afrimerican copyright protected text as the issue preclusion issue,

contrary to his own ruling to dismiss here he ruled that the single word

Afrimerican was the issue preclusion issue.

This is in glaring contrast to the myriad of misrepresentations Judge Feess makes

in his ORDER RE: MOTION TO DISMISS where he alters, discards the text,

except for the single word Afrimerican to make a false issue preclusion issue,

when he should have ruled on the text, which is not an issue preclusion issue

because Judge Wilson only ruled on the single word Afrimerican.

EXHIBIT F

The two contradictions evidence no issue preclusion, and criminal acts by Judge

feess.

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Case No. CV 10-06062 GAF (SHx) Date March 21, 2011


1 The court concluded as follows: “Plaintiff asserts a copyright in the term Afrimerican and its definition. On its face, the term is simply a shortened version of African-American, excluding the ‘can-A.’ Considering theoverwhelming precedent and Copyright Office regulations stating that short words and phrases are not subject tocopyright protection, this term lacks the necessary creativity to obtain a valid copyright.” Williams, No. 2:07-CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 6

Present: The Honorable GARY ALLEN FEESS

Renee Fisher None N/ADeputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

None None

Proceedings: (In Chambers)

ORDER RE: ATTORNEYS’ FEES

I. INTRODUCTION AND BACKGROUND

The facts pertinent to this lawsuit arose in 1989 when Plaintiff Bruce Ameil Williams(“Plaintiff”) registered the following text with the United States Copyright Office:

AFRIMERICAN (AF/RI/Me/RI/CAN) - Noun Definition; A member of a race ofmankind, Born in the United States, Descended from African Immigrants, Classified andCharacterized according [sic] physical features such as skin tone, (Lite Brown to DarkBrown), Hair Texture, and Body Skeletal build, (i.e. Nose, Lips, etc . . .).

(Docket No. 6, First Amended Complaint (“FAC”) ¶¶ 11, 15.) Sometime after this text wasprinted in a newspaper article in September 19, 1991, Plaintiff began to check for uses of theAfrimerican term on the internet, (id. ¶¶ 8, 13), and subsequently filed a copyright infringementaction in 2007 after discovering that a record company had used the text in one of its songs. Williams v. Warner/Chappell Music, No. 2:07-CV-02683 SVW (CTx) at *2 (C.D. Cal. Sept. 26,2007). In that action, the court analyzed at length whether Plaintiff was entitled to copyrightprotection, and ultimately concluded1 that Plaintiff did not own a valid copyright, and that any


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CV-02683 SVW (CTx) at 6 (emphasis added). CV-90 (06/04) CIVIL MINUTES - GENERAL Page 2 of 6

prima facie presumption of validity was rebutted by the defendant. Id. at 9. Undeterred by thecourt’s ruling, Plaintiff once again sought to find alleged infringements of the Afrimerican textand discovered on November 18, 2009, that Professors Daryl L. Frazell (“Frazell”) and GeorgeTuck (“Tuck”) from the University of Nebraska “had created, and used a derivative of the‘Afrimerican’ text, in a book they authored titled, ‘PRINCIPLES OF EDITING’, ‘AComprehensive Guide for Students and Journalist.’” (FAC ¶ 8.) The book in question―whichwas published by McGraw-Hill Inc. (“McGraw”)―allegedly infringed Plaintiff’s copyright withthe following passage: “‘a three-person style committee in one of the authors’ classes decidedthat the proper way to refer to people of African descent was to coin a term “Afrimerican.”’” (Id. ¶ 18.)

Based on this, Plaintiff filed suit for copyright infringement against the University ofNebraska, McGraw, Frazell, and Tuck in August of 2010. (Docket No. 1.) At the outset,however, it was evident that there was no merit to Plaintiff’s complaint. First, realizing thatthere was no viable cause of action against the University of Nebraska, Plaintiff voluntarilydismissed the University from the case on October 18, 2010. (Docket No. 36.) Next, onNovember 16, 2010, the Court granted McGraw’s motion to dismiss and held that Plaintiff’scopyright infringement claim was clearly barred under the doctrine of issue preclusion based onthe court’s holding in Warner/Chappell Music. (Docket No. 45.) Still adamant about pursuingthis action, Plaintiff filed a motion for reconsideration of the order dismissing the infringementclaim against McGraw and continued to maintain its causes of action against Frazell and Tuck. (Docket No. 47.)

On January 20, 2011, the Court addressed Plaintiff’s motion for reconsideration and thesubsequent motion to dismiss filed by Frazell and Tuck. (Docket No. 74, 1/20/11 Order.) TheCourt first held that Plaintiff’s motion for reconsideration was without merit because it simplyrehashed the same arguments raised in the opposition brief to McGraw’s motion to dismiss andfailed to present any new developments in the law that would require this Court to set aside itsprior judgment. (Id. at 4.) Next, the Court, referencing its November 16, 2010 order, alsogranted the motion to dismiss filed by Frazell and Tuck under the doctrine of issue preclusion. (Id. at 3-4.)

Finally, on January 27, 2011, Plaintiff filed a notice of appeal and a motion for leave toappeal in forma pauperis, which the Court denied and found to be in bad faith and frivolous. (Docket Nos. 75, 77, 78.) McGraw, Frazell, and Tuck (collectively, “Defendants”) now move


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for attorneys’ fees pursuant to 17 U.S.C. § 505 of the Copyright Act. (Docket No. 80.) Basedon the reasons discussed in further detail below, the Court GRANTS the motion.

II. DISCUSSION

A. LEGAL STANDARD

“Under the Copyright Act of 1976, a district court has the discretion to award ‘areasonable attorneys’ fee to the prevailing party.’” Love v. Associated Newspapers, Ltd., 611F.3d 601, 614 (9th Cir. 2010) (citing 17 U.S.C. § 505)). The applicable test is set forth inFogerty v. Fantasy, Inc., 510 U.S. 517 (1994): “(1) the degree of success obtained; (2)frivolousness; (3) motivation; (4) the objective unreasonableness of the losing party’s factual andlegal arguments; and (5) the need, in particular circumstances, to advance considerations ofcompensation and deterrence.” Love, 611 F.3d at 614 (citation omitted). While all of thesefactors can be considered, they “need not all be met,” and “attorney’s fee awards to prevailingdefendants are within the district court’s discretion if they further the purposes of the CopyrightAct and are evenhandedly applied.” Fantasy, Inc. v. Fogerty, 94 F.3d 553, 558 (9th Cir. 1996). “While the discretion to award fees and costs does not require an explicit finding of bad faith orblameworthiness on behalf of the losing party, any improper motives or ‘culpability in bringingor pursuing the action’ may also influence this determination.” Scott v. Meyer, 2010 WL2569286, at *1 (C.D. Cal. June 21, 2010) (quoting Fantasy, 94 F.3d at 555-58).

B. APPLICATION

1. THE FOGERTY TEST

In sum and substance, Defendants contend that an evaluation of the Fogerty factors favorsgranting them an award of reasonable attorneys’ fees in this case. (Mem. at 6-11.) Plaintiff, onthe other hand, opposes essentially by rearguing the merits arguments that have been repeatedlyrejected by this Court. (Opp. at 3-5.) As discussed below, the Fogerty factors strongly supportDefendants’ claim for attorney’s fees.

a. The Degree of Success Obtained

Here, Defendants achieved complete success in this case when the Court granted theirmotions to dismiss without leave to amend and denied Plaintiff’s motion for reconsideration. Moreover, because the motions to dismiss were granted pursuant to the doctrine of issuepreclusion, Defendants also clearly established that Plaintiff could not assert new copyright


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claims against them or any other party based on the use of the Afrimerican text. This factorclearly favors Defendants’ position. See Yue v. Storage Tech. Corp., 2008 WL 4185835, at *3(N.D. Cal. Sept. 5, 2008) (holding that the first factor weighs in favor of granting fees becauseDefendants “obtained a dismissal of the entire action with prejudice,” the court “deniedPlaintiff’s motion for relief from judgment,” and Defendants “established that Plaintiff could notassert new copyrights against Defendants. . . .”)

b. The “Frivolousness” and “Objective Reasonableness” Factors

The Court next considers the frivolousness and objective reasonableness of Plaintiff’scopyright infringement claim. For both of these factors, the Court must consider whetherPlaintiff’s claims were lacking in both legal and factual basis. Gilbert v. New Line Prods., Inc.,2010 WL 5790688, at *2-3 (C.D. Cal. Dec. 6, 2010). Here, there is little doubt that Plaintiff’slawsuit against Defendants was frivolous in nature and objectively unreasonable. Plaintiff knewfrom the outset that there was no legal basis for pursuing the copyright infringement claimsagainst Defendants based on the prior action in 2007, where the court in Warner/Chappell Musicunequivocally held that Plaintiff did not own a legally valid copyright to the Afrimerican text. No. 2:07-CV-02683 SVW (CTx) at *9. Moreover, this Court further notified Plaintiff that hiscopyright infringement causes of action lacked merit when it granted McGraw’s motion todismiss pursuant to the doctrine of issue preclusion. (Docket No. 45.) Despite being apprised ofthe groundless nature of his copyright infringement claims, Plaintiff continued to maintain theaction against Frazell and Tuck, and even filed a motion for reconsideration that merelyrehashed his previously rejected arguments. (Docket No. 47.) Accordingly, the Court holds thatthis factor also favors an award of attorneys’ fees in the case at hand.

c. Motivation

“Courts generally hold that a finding of bad faith can be based on ‘not only the actionsthat led to [the] lawsuit, but also [] the conduct of the litigation.” Gilbert, 2010 WL 5790688, at*3 (quoting Hall v. Cole, 412 U.S. 1, 15 (1973)). Here, there is evidence to suggest that Plaintiffpursued this action in bad faith. In October 26, 2010, after McGraw filed its motion to dismiss,Plaintiff called Defendants’ counsel and stated that he “‘ha[d] nothing else to do for the next 12months’ and threatened, ‘if you want to play games with these motions, that’s what we’ll do,’”after Defendants refused to settle the case. (Mem., Kohn Decl. ¶ 6.) This statement, the Courtnotes, when viewed in light of Plaintiff’s groundless pursuit of the action despite the Court’sclear holding that the claims were barred under the doctrine of issue preclusion, supportsDefendants’ contention that Plaintiff used this lawsuit “to extort a nuisance payout. . . .” (Mem.at 9.) Thus, the Court finds that Plaintiff’s pursuit of this action was influenced by improper


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motives, which further supports awarding attorneys’ fees to Defendants.

d. Considerations of Compensation and Deterrence

As Circuit law teaches, an award of attorneys’ fees should “advance considerations ofcompensation and deterrence.” Fantasy, Inc., 94 F.3d at 558 n.2 (citation omitted). Here, theCourt determined that Plaintiff’s lawsuit was objectively unreasonable, frivolous, and motivatedby bad faith. A fee award in this case is justified in order to deter Plaintiff, and those similarlysituated, from prosecuting such meritless copyright infringement claims. Accordingly, thisfactor weighs in favor of Defendants’ motion as well.

e. Conclusion re: Fogerty Factors

In sum, after considering the factors set forth in Fogerty, the Court holds that an award ofattorneys’ fees is justified in this case. As such, the Court GRANTS Defendants’ motion andproceeds to consider whether the amount of attorneys’ fees sought is reasonable.

2. WHETHER THE AMOUNT OF ATTORNEYS’ FEES REQUESTED IS REASONABLE

Here, Defendants seek $52,119.48 in attorneys’ fees, which represents 166 hours of workthat was billed by Defendants’ attorneys while defending this lawsuit. (Mem. at 12, 14.) Insum, the law firm that represented Defendants staffed the case with one partner, Alonzo Wickers(“Wickers”), and one associate, Lisa J. Kohn (“Kohn”), who respectively charged $508.25 and$266 per hour in 2010, and $527.25 and $294.50 per hour in 2011. (Id., Kohn Decl. ¶¶ 11-15.) The Ninth Circuit has specified that “[d]espite a district court’s discretion in determining theamount of a fee award, it must calculate awards for attorneys’ fees using the lodestar method.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 982 (9th Cir. 2008) (citation and internalquotation marks omitted). The lodestar figure is calculated by “multiplying the number of hoursthe prevailing party reasonably expended on the litigation by a reasonable hourly rate.” Id. at978. Thus, the amount of attorneys’ fees “must be [based] on the facts of each case.” Id. (citingHensley v. Eckerhart, 461 U.S. 424, 429 (1983)). While in most cases the lodestar figure is“presumptively reasonable,” in rare cases a district court “may make upward or downwardadjustments to the presumptively reasonable lodestar on the basis of those factors set out in Kerrv. Screen Actors Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975), that have not been subsumed inthe lodestar calculation.” Id. at 982 (quoting Gates v. Deukmejian, 987 F.2d 1392, 1402 (9th


LINK: 80





2 The relevant Kerr factors that have not been subsumed in the lodestar calculation include: (1) thepreclusion of other employment by the attorney due to acceptance of the case; (2) time limitations imposed by theclient or the circumstances; (3) the amount involved and the results obtained in the case; (4) the “undesirability”of the case; (5) the nature and length of the professional relationship with the client; and (6) the amount ofattorneys’ fees awarded in similar cases. Camacho, 523 F.3d at 982 n.1 (citing Kerr, 526 F.2d at 70). CV-90 (06/04) CIVIL MINUTES - GENERAL Page 6 of 6

Cir. 1992)).2

Here, the Court holds that the hourly rates charged by these attorneys were reasonable. The Court has addressed numerous attorneys’ fees motions and is thoroughly familiar withbilling rates charged by counsel in the local legal community. The rates reflected in the billssubmitted to the Court are within the range of what attorneys in similar cases charge theirclients. In addition, after reviewing the charges made in the bill, the Court holds that it does notneed to make any deductions from the final sum that was requested by Defendants. The billingstatements submitted by Defendants do not contain, for example, excessive or unnecessarycharges or duplication of effort. Accordingly, the Court GRANTS Defendants a total of$52,119.48 in attorneys fees.

III. CONCLUSION

In sum and substance, because all of the Fogerty factors support Defendants’ motion, theCourt GRANTS Defendants’ motion for an award of $52,119.48 in attorneys’ fees pursuant to §505 of the Copyright Act.

IT IS SO ORDERED.


Documents

Federal Judge Gary Allen Feess Alters Evidence With Exhibits