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9th Circuit: Steve Perry's Lawsuit Over Unreleased Demos Should Keep on Turning in California

Steve Perry of Journey at the Rock and Roll Hall of Fame Induction Ceremony in 2017 Steve Perry of Journey at the Rock and Roll Hall of Fame Induction Ceremony in 2017
By Joseph Fawbush, Esq. on November 07, 2019 2:27 PM

Remember when epic hair bands recorded classic songs on 8-tracks in a garage? Former Journey frontman Steve Perry probably does vividly, in part because he's currently embroiled in a lawsuit about the copyright ownership of four such songs recorded in the early 90s.

Steve Perry's manager introduced the Hall of Fame inductee to guitarist Phil Brown in 1991. Brown had written two songs he wanted Perry to hear, and the two also co-wrote two songs together. They recorded them on 8-track in Perry's garage, but Perry ultimately declined to record them in studio for release.

Brown Didn't Stop Believing in Ownership, Despite Long Dormancy

The issue of ownership did not arise until 2002, when Brown claimed to have co-ownership in the recordings and threatened to release them. A letter from Perry's attorney ended the matter, however – at least until 2018, when Perry planned to release a solo album after a long hiatus. At that point, Brown, through his girlfriend (who was also his manager) advertised on social media that Perry would be a part of Brown's also newly released album. She also posted a 35-second clip of one of the unreleased recordings.

Perry immediately sued for copyright infringement, among other claims. Brown contested whether the California district court had personal jurisdiction over him and filed an anti-SLAPP motion against Perry.

Ninth Circuit Received Perry's Arguments With Open Arms

The Ninth Circuit panel, in a brief unpublished opinion, upheld the lower court's ruling, finding that Brown's intentional acts in California gave the court personal jurisdiction. Nor did the panel find Brown's anti-SLAPP motion convincing, writing succinctly that “there is a factual issue as to whether Brown created the false impression that Perry has endorsed Brown's band. That issue prevents Brown from prevailing as a matter of law."

The panel did, however, find that the district court improperly extended a temporary restraining order against Brown for three months, in effect giving Perry a preliminary injunction. However, since the parties had already agreed to extend the TRO until after the Ninth Circuit issued its decision, the panel simply remanded with instructions to hold a hearing on the matter as soon as possible.

Brown's Crying Now

Despite the purported inconvenience, Brown will have to litigate the matter in California. Meanwhile, Steve Perry fans will not hear the four unreleased demo tracks, pending the district court's decision on a preliminary injunction. But Perry's fans are likely to stand – faithfully – behind the rock icon's preference.

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