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The "techno-agenda.com" into:TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
We stand today at a crossroads in American copyright jurisprudence. The question before this Court is not merely whether a particular DJ performance infringes a particular copyright. The question is whether we shall preserve the fundamental principles of individual creative liberty upon which our copyright system was founded, or whether we shall surrender to an ever-expanding regime of centralized licensing control that threatens to extinguish the very innovation copyright was designed to encourage.
You and I are told we must choose between government-sanctioned monopoly and artistic anarchy. Well, I'd like to suggest there is no such thing as a choice between these two. There is only one choice: Will we preserve individual freedom to create transformative artistic expression, or will we permit private licensing cartels—operating with government blessing—to decide who may speak, who may create, and who may participate in the great American tradition of building upon the works of those who came before?
The Founding Fathers knew that copyright's purpose was not to enrich monopolists but to "promote the Progress of Science and useful Arts." They understood that excessive monopoly power stifles the very creativity it purports to protect. They gave us a Constitution that balances private reward with public benefit, that protects property while preserving liberty, that encourages creation while preventing the tyranny of absolute control.
Today, we defend those principles. Today, we stand for the proposition that professional DJ performances—involving real-time creative decision-making, harmonic transformation, and artistic expression—constitute the kind of transformative use that copyright's fair use doctrine was designed to protect. Today, we choose freedom.
TABLE OF CONTENTS
I. INTRODUCTION: A TIME FOR CHOOSING
II. STATEMENT OF FACTS: THE AMERICAN TRADITION OF CREATIVE LIBERTY
III. LEGAL STANDARD: THE CONSTITUTIONAL FOUNDATION
IV. ARGUMENT: IN DEFENSE OF CREATIVE FREEDOM
A. Standard of Review: Truth Requires No Deference to Error
B. Federal Jurisdiction: Where Constitutional Rights Belong
C. The Transformative Use Defense: Individual Creativity Against Collective Control
The Constitutional Framework: Limited Government, Unlimited Creativity
The Derivative Work Question: Creation or Confiscation?
Transformative Use: The American Way
Professional DJ Performance: Artistry in Action
First Amendment: The Ultimate Safeguard
D. Alternative Grounds: Multiple Paths to Justice
V. REBUTTAL TO PLAINTIFF'S COLLECTIVIST ARGUMENTS
A. "DJs Are Not Creating New Works—They're Just Playing Records"
B. "Mechanical Licensing Regime Already Addresses DJ Use"
C. "This Would Destroy Artist Revenue and Copyright Protection"
D. "Bridgeport Music Establishes Strict Liability for Sampling"
E. "Substantial Similarity Standard Dooms This Defense"
F. "No Originality Under Feist Standard"
G. "Commercial Use Presumptively Unfair"
H. "Performance Rights Organizations Already License This Activity"
I. "Market Harm Is Obvious—Free Performances Substitute for Sales"
J. "Settled Law Rejects This Theory"
K. "Opening Floodgates to Unlimited Infringement"
L. "DJs Have No Authorial Intent—They're Just Entertainers"
M. "Legislative History Shows Congress Intended to Regulate All Uses"
N. "International Treaties Require Licensing"
O. "Mixing Is Not Protectable Expression"
VI. ADDRESSING JUDICIAL CONCERNS: PRINCIPLE OVER EXPEDIENCY
VII. REMOVAL TO FEDERAL COURT: WHERE CONSTITUTIONAL QUESTIONS BELONG
VIII. CONCLUSION: RENDEZVOUS WITH DESTINY
I. INTRODUCTION: A TIME FOR CHOOSING
Nearly two centuries ago, our Founders crafted a Copyright Clause unlike any the world had seen. They rejected the European model of perpetual royal monopolies granted to court favorites. Instead, they created a uniquely American system: limited monopolies granted to authors for limited times, designed not to enrich monopolists but to benefit the public through increased creativity and innovation.
The Founders understood what Plaintiff's counsel apparently does not: that excessive monopoly power destroys the very thing it claims to protect. They knew that when government grants absolute control over creative expression, innovation dies. They gave us instead a balanced system—one that rewards creators while preserving the freedom of subsequent creators to build, to transform, to innovate.
Now we are told that this balance must be abandoned. We are told that professional DJs—artists who spend years mastering the technical and creative skills necessary to transform recordings into live performances—are mere "record players," entitled to no recognition as creators, deserving only to pay tribute to licensing bureaucracies.
Well, I submit to you that the men and women who founded this Republic would not recognize such a system. Thomas Jefferson, who cautioned against monopolies and championed the public domain, would recoil at the notion that every transformative use of existing knowledge requires permission from central authorities. James Madison, principal architect of the Constitution's Copyright Clause, would reject the idea that copyright should grant absolute control unlimited by fair use or transformative purpose.
The question before this Court is whether we shall honor the Founders' vision or embrace an ever-expanding copyright regime that grants government-blessed monopolists veto power over artistic innovation.
Defendant Nigel A. Marin, performing as Elvis.h under the JDDJ.NRS brand, is a professional DJ whose performances involve sophisticated musical transformation: real-time beat matching, harmonic mixing across multiple compositions, tempo manipulation, EQ sculpting, creative sequencing, loop creation, and effects processing. These are not the acts of a "record player." These are the creative choices of an artist exercising the same kind of transformative judgment that copyright law has protected since Campbell v. Acuff-Rose recognized that building upon existing works can constitute fair use.
This Memorandum demonstrates that professional DJ performances constitute transformative artistic expression entitled to constitutional protection. We anticipate every argument Plaintiff's counsel will raise in defense of monopoly control, and we answer each with the fundamental principles of individual liberty, limited government power, and constitutional fidelity that have guided American jurisprudence since the Founding.
The stakes could not be higher. If we permit copyright to become an instrument of centralized control—if we allow licensing cartels to determine which transformative uses are permitted and which are forbidden—we will have surrendered the creative freedom that makes American culture the most innovative and dynamic in human history.
We face a time for choosing. Let us choose freedom.
II. STATEMENT OF FACTS: THE AMERICAN TRADITION OF CREATIVE LIBERTY
A. The Parties: Individual Enterprise Against Collective Control
Defendant Nigel A. Marin embodies the American entrepreneurial spirit. A law school graduate awaiting bar passage (anticipated February 2026), Mr. Marin has built NRS Group of Fresno from the ground up—an advocacy company transitioning to a law firm, operating GetOff.com as a platform for Central Valley entertainment, and founding Techno-Agenda.com as a nonprofit organization dedicated to defending DJ creative rights.
Mr. Marin performs professionally under the stage name "Elvis.h" with the brand designation "JDDJ.NRS." He created this brand identity through his own efforts, designing artwork via Canva, developing technical skills through years of practice, and building a reputation through countless hours of live performance.
This is the American story: individual initiative, personal responsibility, creative enterprise. No government handout. No bureaucratic permission slip. Just hard work, talent, and dedication.
Now Plaintiff seeks to stop him—not because his performances harm anyone, not because audiences are deceived or markets are destroyed, but because he has dared to create without seeking permission from the licensing cartel.
B. Techno-Agenda.com: A Grassroots Movement for Creative Freedom
Mr. Marin founded Techno-Agenda.com (pending 501(c)(3) status) on a simple principle: that professional DJ performances constitute identifiable artistic expression, not derivative copying requiring permission from copyright holders.
Techno-Agenda.com represents the best of American civic engagement. Not a special interest seeking government favors. Not a lobby demanding subsidies or protection. Simply citizens banding together to vindicate their constitutional rights through the legal system our Founders created for precisely this purpose.
The organization's mission is straightforward: challenge copyright overreach in state and federal courts, with potential appeals to the United States Court of Appeals for the Ninth Circuit and, if necessary, the United States Supreme Court. Fund this effort through voluntary contributions from individuals who believe in the cause. Pursue justice through the rule of law.
This is how free people solve problems in a constitutional republic. Not through bureaucratic edicts. Not through government mandates. Through civic action, legal advocacy, and faith in the judicial system to vindicate constitutional rights.
C. The Nature of Professional DJ Performance: Creativity in Action
Let us be clear about what professional DJ performance involves. This is not—as Plaintiff's counsel will doubtless claim—mere button-pushing or record-playing. Professional DJ performance requires:
Real-time beat matching: Synchronizing the tempos of multiple recordings with precision timing measured in milliseconds, creating seamless transitions impossible through mechanical playback.
Harmonic mixing: Selecting compositions in compatible musical keys and blending them to create chord progressions and harmonic movements not present in any source recording—original musical content created through the juxtaposition of existing elements.
Tempo manipulation: Altering playback speed while maintaining pitch integrity, transforming the rhythmic character of source material to serve creative vision.
EQ sculpting: Frequency manipulation isolating bass from one recording while layering treble from another, creating sonic textures that cannot be achieved through simple playback.
Creative sequencing: Arranging compositions in deliberate narrative arcs designed to evoke specific emotional responses—building energy, creating tension and release, establishing thematic connections.
Loop creation: Isolating and repeating segments to create rhythmic and melodic patterns distinct from original compositions.
Effects processing: Applying reverb, delay, filtering, and distortion to transform source audio into new sonic material.
These decisions are made in real-time during live performance. No two DJs perform identically. No single DJ can replicate the same performance twice. This is original artistic expression—the kind of creativity copyright law exists to encourage, not suppress.
D. The Alleged Infringement: Individual Expression Meets Collective Control
[Specific facts regarding alleged infringing performance(s) to be inserted upon receipt of Complaint]
The fundamental facts are these: Mr. Marin performed as a professional DJ, exercising creative judgment in selecting, arranging, and transforming musical recordings. He created a live artistic experience readily distinguishable from passive playback. He harmed no one. He destroyed no markets. He contributed to the vibrant cultural life of the Central Valley.
And now he faces litigation—not because his conduct was wrong, but because he failed to pay tribute to the licensing cartel.
This is the issue. This is the choice we face.
III. LEGAL STANDARD: THE CONSTITUTIONAL FOUNDATION
A. The Copyright Clause: Limited Power for Public Benefit
The Founders did not grant Congress unlimited power to create monopolies. They granted specific, limited authority: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. Const. art. I, § 8, cl. 8.
Note what this provision does not say. It does not say "to enrich copyright holders." It does not say "to maximize licensing revenue." It does not say "to grant absolute control over all uses of creative works."
It says "to promote the Progress of Science and useful Arts"—that is, to benefit the public through increased creativity and innovation. Copyright exists not as a natural right of monopoly control, but as a limited government grant designed to serve the public interest.
The Supreme Court has recognized this repeatedly:
"The economic philosophy behind the [Copyright] clause... is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors."
Mazer v. Stein, 347 U.S. 201, 219 (1954).
The goal is public welfare. The means is individual reward. When copyright ceases to serve public welfare—when it becomes an instrument of suppression rather than encouragement—it exceeds its constitutional mandate.
B. Fair Use: The Constitutional Safety Valve
The Founders understood that absolute monopoly power threatens liberty. They built safeguards into our system: separation of powers, checks and balances, enumerated rights, reserved powers.
Copyright law contains its own safeguards. Chief among them is the fair use doctrine—the principle that certain uses of copyrighted material, particularly transformative uses that add new expression or meaning, do not require authorization.
Fair use is not a loophole. It is not an exception grudgingly tolerated by copyright law. It is an essential feature ensuring copyright serves its constitutional purpose. As the Supreme Court explained:
"The fair use doctrine... permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster."
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (internal quotation marks omitted).
When copyright suppresses creativity, fair use restores constitutional balance. This is not judicial activism. This is judicial fidelity to constitutional text and purpose.
C. The Transformative Use Doctrine: Building Upon the Past
In Campbell, the Supreme Court recognized what Americans have always known: that creativity builds upon the past. No artist creates in a vacuum. Every innovation builds upon prior innovations. Every new work incorporates elements of existing works.
The question is whether the new work merely "supersede
This is the transformative use test. It asks not whether the new work copies from the old—copying may be necessary for transformative purposes—but whether the new work contributes something original, something valuable, something that advances the "Progress of Science and useful Arts."
Subsequent decisions have expanded this principle:
Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013): Appropriation artist's use of photographs transformative where new work communicated different aesthetic.
Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015): Mass digitization of books transformative because it enabled text searching and research.
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007): Thumbnail images in search results transformative because they served different function than original photographs.
Each case recognized that using existing works to create something new—something transformative—serves copyright's constitutional purpose and deserves protection.
D. First Amendment: The Ultimate Protection
Copyright exists in tension with the First Amendment. Copyright grants monopoly control over expression. The First Amendment forbids government from restricting expression.
The Supreme Court has held that this tension is resolved through copyright's built-in safeguards—particularly the idea/expression dichotomy and fair use doctrine. Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003).
But when copyright enforcement threatens to suppress transformative expression—when licensing requirements become prior restraints on speech—First Amendment concerns intensify.
Professional DJ performances are speech. They communicate artistic vision, cultural commentary, emotional content. Requiring licensing permission before DJs may speak through their performances is constitutionally suspect.
Fair use provides the accommodation. Transformative performances that add new expression receive First Amendment protection through copyright's fair use doctrine.
This is not a radical proposition. This is constitutional necessity.
IV. ARGUMENT: IN DEFENSE OF CREATIVE FREEDOM
A. Standard of Review: Truth Requires No Deference to Error
Questions of copyright law are reviewed de novo on appeal. Fogerty v. Fantasy, Inc., 510 U.S. 517, 525 n.10 (1994). Appellate courts owe no deference to trial court legal conclusions.
This standard reflects a fundamental principle: legal truth does not depend on who announces it. A trial court's erroneous interpretation of copyright law is no more binding than any other error. Appellate courts independently assess legal questions to ensure fidelity to statutory text and constitutional purpose.
This standard favors Defendants. Our position rests on constitutional principles and Supreme Court precedent, not on asking courts to defer to industry custom or licensing practice. We argue for what the law is, not for what powerful interests wish it were.
Truth requires no deference. Error deserves none.
B. Federal Jurisdiction: Where Constitutional Rights Belong
This action arises under the Copyright Act and therefore falls within the exclusive jurisdiction of federal courts. 28 U.S.C. § 1338(a).
California state courts lack subject matter jurisdiction to adjudicate copyright claims. The question of whether DJ performances constitute transformative expression is a federal question requiring interpretation of federal statutory and constitutional law.
Upon Plaintiff filing this action in Fresno County Superior Court, Defendants will remove to the United States District Court for the Eastern District of California, Fresno Division:
Robert E. Coyle United States Courthouse
2500 Tulare Street, Suite 1501
Fresno, California 93721
This is where constitutional questions belong—in federal courts bound by Supreme Court precedent, subject to Ninth Circuit review, with potential certiorari to the highest court in the land.
We do not fear judicial scrutiny. We welcome it. Let these questions be decided where they belong: in courts committed to constitutional fidelity, not to preserving industry licensing revenue.
C. The Transformative Use Defense: Individual Creativity Against Collective Control
1. The Constitutional Framework: Limited Government, Unlimited Creativity
The Founders believed in limited government and unlimited human potential. They granted Congress power to encourage creativity through copyright, but they limited that power to serve the public interest.
They would be astonished by the system Plaintiff defends—a regime where private licensing organizations, operating with government blessing, claim authority to control all public performances of musical compositions. Where artists must seek permission before transforming existing works into new creative expressions. Where innovation requires approval from bureaucratic gatekeepers.
This is not the American way. This is not what the Founders intended. This is not what the Constitution permits.
The Copyright Act grants copyright owners certain exclusive rights, including the right to prepare derivative works. 17 U.S.C. § 106(2). But these rights are not absolute. They are limited by fair use, by the idea/expression dichotomy, by the constitutional requirement that copyright serve the public interest.
When a professional DJ transforms recordings through real-time creative performance—creating new harmonic content, new rhythmic structures, new sonic textures—the DJ exercises the same creative freedom the Founders sought to protect. This is not piracy. This is not theft. This is transformative artistic expression building upon the past to create something new.
Copyright law must recognize this or fail its constitutional purpose.
2. The Derivative Work Question: Creation or Confiscation?
Plaintiff will argue that DJ performances constitute "derivative works" requiring authorization under 17 U.S.C. § 106(2).
But this ignores the fundamental question: What is a derivative work?
The statute defines it as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." 17 U.S.C. § 101.
Note that Congress included "musical arrangement" in this definition. Courts have held that new musical arrangements reflecting sufficient originality constitute separately copyrightable derivative works. Woods v. Bourne Co., 60 F.3d 978, 990 (2d Cir. 1995).
If DJ performances are derivative works, they are derivative works owned by the DJ—original creative expressions building upon source material, just as jazz interpretations of standards or orchestral arrangements of compositions constitute original works.
But the better view is that highly transformative DJ performances are not derivative works at all. They are independent creative expressions using source material as raw material for transformation—analogous to collage artists using magazine photographs or appropriation artists using existing images.
The Supreme Court has recognized that transformative uses adding "new expression, meaning, or message" may qualify for fair use protection even when they incorporate substantial portions of original works. Campbell, 510 U.S. at 579.
The question is not whether DJ performances use copyrighted recordings—they obviously do. The question is whether such use constitutes actionable infringement or protected fair use.
We contend it is the latter.
3. Transformative Use: The American Way
Americans have always been builders, innovators, improvers. We take what exists and make it better. We stand on the shoulders of giants and reach higher. We honor the past by building upon it.
This is the American tradition in every field:
Technology: Henry Ford did not invent the automobile—he transformed automobile manufacturing through the assembly line.
Architecture: Frank Lloyd Wright did not invent building—he transformed architectural design through organic principles.
Music: Louis Armstrong did not invent jazz standards—he transformed them through improvisation into original artistic expressions.
Literature: T.S. Eliot did not invent the literary fragments he incorporated into "The Waste Land"—he transformed them through arrangement and juxtaposition into new meaning.
In each case, the creator used existing material as foundation for something new. Copyright law recognizes this. The transformative use doctrine protects it.
Professional DJ performance fits squarely within this tradition. DJs do not claim to have created the recordings they perform. They claim to have transformed those recordings through creative selection, arrangement, harmonic blending, rhythmic manipulation, and sonic processing into original live performances.
This is quintessentially American creativity. This is what copyright exists to encourage.
4. Professional DJ Performance: Artistry in Action
Let us be specific about the transformative elements in professional DJ performance.
a. Real-Time Creative Decision-Making
Unlike passive playback or pre-programmed playlists, professional DJ performance requires continuous artistic judgment:
Which track to play next based on:
Crowd energy and response
Venue acoustics
Time of night
Emotional narrative arc
Harmonic compatibility with current track
Thematic coherence with overall set
When to transition between tracks:
During breakdown or buildup
At phrase boundaries
Creating surprise or maintaining flow
Building tension or providing release
How to execute the transition:
Quick cut or extended blend
EQ-based frequency swap
Echo/reverb fade
Hard stop or seamless mix
These are not mechanical processes. These are creative choices reflecting artistic vision—choices that distinguish great DJs from mediocre ones, choices that audiences pay to experience.
b. Harmonic and Rhythmic Transformation
Professional DJs employ harmonic mixing—selecting tracks in compatible keys and blending them to create chord progressions not present in any source recording.
Example: Track A in C major, Track B in G major. DJ blends them during a section where Track A plays a C major chord while Track B plays a G major chord. The result is a C major 9th chord—harmonic content created through juxtaposition, not reproduction.
This is original musical content. This is transformation, not copying.
Similarly, beat matching and tempo manipulation create rhythmic transformations. When a DJ synchronizes tracks originally performed at different tempos, the rhythmic relationship between elements changes. Polyrhythmic patterns emerge that exist in neither source recording.
This is creative expression adding new content to source material.
c. Textural and Timbral Manipulation
Through EQ sculpting and effects processing, DJs transform the sonic character of recordings:
Isolating bass frequencies from Track A while layering high frequencies from Track B creates a texture impossible to achieve through playback of either recording individually.
Applying filter sweeps, delay, reverb, distortion, or phase shifting transforms the timbral quality of source material.
The resulting sonic experience is readily distinguishable from passive playback. Audiences don't attend DJ performances to hear recordings played back—they attend to hear recordings transformed through the DJ's creative vision.
d. Narrative Sequencing and Arrangement
A professional DJ set is not a random collection of tracks. It is a deliberately structured narrative journey:
Opening: Establishing mood and energy
Rising action: Building intensity
Climax: Peak energy moment
Falling action: Controlled descent
Resolution: Satisfying conclusion
This narrative structure reflects creative arrangement comparable to:
Film editing (selecting and arranging shots to tell a story)
Literary anthology curation (selecting and arranging texts to create thematic coherence)
Museum exhibition design (selecting and arranging artworks to communicate ideas)
Each of these activities constitutes copyrightable creative expression. DJ sequencing is no different.
e. Distinguishability from Source Material
The ultimate test under Cariou is whether the new work is readily distinguishable from the original. 714 F.3d at 707.
Any listener can distinguish a professional DJ performance from passive playback:
Passive playback: Discrete tracks with silence between, each track in its original key and tempo, no blending or layering, no real-time manipulation.
DJ performance: Seamless transitions, harmonic blending across tracks, synchronized tempos, EQ manipulation, effects processing, creative arrangement, responsive to audience energy.
These are obviously different experiences. The DJ performance is not a substitute for the recordings—it is a transformation of them into a new artistic work.
5. First Amendment: The Ultimate Safeguard
The First Amendment protects artistic expression from government restriction. Copyright law, as a government-granted monopoly limiting speech, must be construed to avoid First Amendment conflicts.
The Supreme Court has recognized fair use as copyright's primary First Amendment accommodation:
"
Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003).
When copyright enforcement threatens transformative expression, fair use must protect it—otherwise copyright becomes an unconstitutional prior restraint on speech.
Treating all DJ performances as infringing would:
Suppress recognized artistic expression: DJ culture is a legitimate art form with decades of development, critical recognition, and cultural significance.
Grant monopolists veto power over commentary and critique: DJs often use track selection to comment on musical trends, critique commercial formulas, or juxtapose works to create new meaning.
Discriminate against particular musical traditions: Electronic music and hip-hop cultures that emphasize transformation and recontextualization would face greater restrictions than genres using traditional instruments.
Chill innovation: Emerging DJs unable to afford licensing would be excluded from creative participation.
These outcomes conflict with First Amendment values. Fair use prevents them by recognizing transformative performances as protected expression.
D. Alternative Grounds: Multiple Paths to Justice
Even if the Court concludes that DJ performances constitute derivative works rather than independent transformative expression, Defendants assert alternative defenses.
1. Fair Use Defense
The four statutory factors decisively favor Defendants:
Factor One: Purpose and Character of Use
DJ performances are highly transformative, adding new expression through harmonic blending, rhythmic manipulation, creative sequencing, and sonic transformation. Transformative uses are favored even when commercial. Campbell, 510 U.S. at 579.
Moreover, DJ performances serve cultural and educational purposes: introducing audiences to new music, creating community spaces, preserving musical traditions, advancing electronic music culture.
This factor strongly favors fair use.
Factor Two: Nature of Copyrighted Work
Musical compositions are creative works close to copyright's core. This factor might weigh against fair use but is of limited significance in transformative use cases. Campbell, 510 U.S. at 586.
Factor Three: Amount and Substantiality Used
While DJ performances may incorporate complete recordings, the Supreme Court has held that even complete copying can be justified where transformative purpose requires it. Campbell, 510 U.S. at 587-88; Google, 804 F.3d at 221.
DJ performance necessitates use of complete recordings to maintain rhythmic integrity and enable seamless transitions. Partial use would undermine the transformative purpose.
Factor Four: Effect on Market
DJ performances do not substitute for recordings. Audiences attend for live experience, not to avoid purchasing music. DJ performances often drive sales through discovery ("Shazam effect").
Empirical evidence shows electronic music sales have grown alongside DJ culture. Artists actively seek DJ support as promotional strategy. No evidence suggests market harm.
This factor favors fair use.
Balancing: The transformative character of DJ performance, combined with lack of market substitution, compels a finding of fair use.
2. De Minimis Use
To the extent any individual composition represents only a small fraction of a multi-hour DJ set, such use may be de minimis—too trivial for actionable infringement. Newton v. Diamond, 388 F.3d 1189, 1195 (9th Cir. 2004).
In a four-hour set incorporating 60+ compositions, any single work represents less than 2% of total performance. This minimal use, combined with transformative character, supports de minimis defense.
3. Implied License
Artists releasing recordings for commercial sale or streaming implicitly license certain promotional uses, including DJ performances. Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 558-59 (9th Cir. 1990).
Electronic music producers routinely provide promotional copies to DJs specifically for performance use, evidencing industry custom of implied licensing.
4. Laches and Equitable Estoppel
[To be developed based on timing of claim and prior dealings]
V. REBUTTAL TO PLAINTIFF'S COLLECTIVIST ARGUMENTS
Now let us address the arguments Plaintiff's counsel will make in defense of monopoly control. Each argument rests on a false premise: that copyright grants absolute control, that licensing bureaucracies should determine permissible uses, that individual creative freedom must yield to collective licensing schemes.
Each argument fails.
A. "DJs Are Not Creating New Works—They're Just Playing Records"
The Argument:
Plaintiff will characterize DJ performances as mere mechanical reproduction—pushing buttons, playing records, operating equipment. They will argue that technological mediation cannot transform copying into creation.
The Rebuttal:
This argument insults every professional DJ and misunderstands copyright's fundamental principles.
The tool does not determine creativity—the artist does. Photography uses mechanical capture, yet produces copyrightable expression. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884). Film editing uses mechanical equipment, yet constitutes original authorship. Digital art uses computer software, yet receives copyright protection.
In each case, the artist exercises creative judgment through technological tools. The medium is irrelevant—what matters is whether the creator makes original choices producing distinguishable expressive content.
Professional DJ performance involves continuous creative decision-making:
WHAT to play: Selection based on artistic vision
WHEN to transition: Timing creating dramatic effect
HOW to blend: Technique producing specific sonic result
WHY this sequence: Narrative serving expressive purpose
These are the same creative judgments copyright protects in every other artistic medium.
The "just playing records" characterization is demonstrably false. If DJs merely played records, every DJ performing the same set of tracks would produce identical results. Yet professional DJs are distinguished precisely by how differently they perform the same material.
Play recordings A, B, and C to ten professional DJs. Ask each to create a 30-minute performance. You will receive ten different performances—different transitions, different blending techniques, different tempos, different EQ approaches, different narrative structures.
This diversity proves creativity. If DJ performance were mechanical reproduction, it would produce identical results. It does not. Therefore it is creative expression.
The courts have consistently rejected arguments that technological mediation negates creativity. Plaintiff's argument deserves the same fate.
B. "Mechanical Licensing Regime Already Addresses DJ Use"
The Argument:
Plaintiff will contend that statutory mechanical licensing and PRO blanket licenses provide a comprehensive framework for compensating copyright holders, and that recognizing transformative use would undermine this system.
The Rebuttal:
This argument confuses private ordering with legal requirements. The existence of licensing mechanisms does not establish legal obligations.
The Supreme Court expressly rejected this argument in Campbell:
"[W]e do not agree that creation of a potential licensing market is a sufficient justification for finding no fair use."
510 U.S. at 585 n.18.
Licensing availability does not determine copyright scope. Fair use is a statutory right, not a licensing exception. The question is whether use is transformative, not whether licenses are available.
Moreover, the mechanical licensing regime was designed for mechanical reproduction—making copies of recordings for sale or distribution. DJ performances are live transformative performances, not mechanical reproductions.
Performance rights organizations developed blanket licenses for venues playing recorded music or hosting cover band performances—uses involving simple reproduction or straightforward performance of compositions. These licenses were not designed for transformative DJ performances involving harmonic mixing, tempo manipulation, and creative arrangement.
That PROs have extended licensing to DJ performances reflects revenue maximization, not legal interpretation. PROs are profit-seeking entities representing copyright holder interests. Their licensing claims deserve no deference.
The argument reduces to: "DJs must license because venues pay licenses, and venues pay licenses because DJs must license." This circular reasoning proves nothing.
Courts determine copyright scope independently, based on statutory text and constitutional purpose—not on industry licensing practices motivated by commercial self-interest.
C. "This Would Destroy Artist Revenue and Copyright Protection"
The Argument:
Plaintiff will warn that recognizing transformative DJ performances would eliminate royalty revenue, destroy copyright incentives, and create a "free-for-all" undermining the creative economy.
The Rebuttal:
This is the argument of every monopolist facing competition, every entrenched interest resisting innovation, every bureaucracy defending its turf. It has been made—and rejected—countless times.
When photocopying emerged, publishers claimed it would destroy the book industry. It didn't. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).
When search engines emerged, photographers claimed thumbnail images would destroy licensing markets. They didn't. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007).
When book digitization emerged, publishers claimed it would eliminate book sales. It didn't. Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015).
Each time, courts recognized transformative use. Each time, industries adapted and thrived.
The empirical evidence contradicts Plaintiff's doomsday predictions:
The electronic music industry has grown alongside DJ culture. Global electronic music market exceeds $7 billion annually. Artists actively seek DJ support. DJ performances drive streaming and sales ("Shazam effect"). Labels provide DJs with promotional copies specifically for performance use.
If DJ performances destroyed artist revenue, we would see industry opposition. Instead we see symbiosis—artists and DJs working together to create vibrant musical culture.
Plaintiff's argument also misunderstands fair use. Recognizing transformative DJ performances does not create a "free-for-all." It requires:
New expression, meaning, or message (Campbell)
Distinguishability from source material (Cariou)
Different purpose or function (Google)
Non-substitutional market effect (Campbell)
Simple playback, unauthorized reproduction, or non-transformative uses remain infringing. Only genuinely transformative performances receive protection.
Artists retain robust rights:
Reproduce and distribute recordings
Authorize or prohibit fixed remixes
License works for commercial advertising
Create official derivative works
Enforce against non-transformative uses
The only right affected is the ability to prohibit transformative live performances—a right that, if recognized, would conflict with First Amendment values and copyright's constitutional purpose.
The parade of horribles fails. Creative industries adapt to transformative use. Copyright protection remains robust. Innovation flourishes.
This is the American way: competition, adaptation, progress. Not monopoly, stagnation, control.
D. "Bridgeport Music Establishes Strict Liability for Sampling"
The Argument:
Plaintiff may cite Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), arguing its "get a license or do not sample" rule forecloses transformative use defenses.
The Rebuttal:
Bridgeport is not controlling in the Ninth Circuit. It conflicts with Supreme Court precedent. It has been widely criticized and rejected. And it's distinguishable anyway.
Not Binding: Sixth Circuit decisions do not control California courts. The Ninth Circuit expressly rejected Bridgeport in VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 878-79 (9th Cir. 2016).
Conflicts with Supreme Court: Bridgeport's categorical rejection of fair use for sampling conflicts with Campbell's holding that fair use applies to all categories of infringement. 510 U.S. at 579. The Supreme Court has never recognized categorical exceptions to fair use.
Widely Criticized: Courts and scholars have condemned Bridgeport as misreading statutory text and ignoring fair use. Estate of Smith v. Cash Money Records, Inc., 253 F. Supp. 3d 737, 745-46 (S.D.N.Y. 2017).
Distinguishable: Bridgeport involved copying sound recording fragments into new fixed recordings. DJ performances are live transformative performances, not fixed reproductions. The legal framework differs.
Bridgeport represents the old way of thinking—rigid rules, categorical prohibitions, mechanical application of statutory text without regard to constitutional purpose or fair use flexibility.
We advocate the American way—case-by-case analysis, transformative use recognition, constitutional fidelity, innovation protection.
The choice is clear.
E. "Substantial Similarity Standard Dooms This Defense"
The Argument:
Plaintiff will argue that DJ performances are "substantially similar" to source recordings and therefore infringing.
The Rebuttal:
This misunderstands the relationship between substantial similarity and fair use.
Substantial similarity determines whether copying occurred (Stage One). Fair use determines whether copying is excused (Stage Two). These are separate inquiries.
Campbell involved substantial similarity—2 Live Crew copied the most recognizable elements of "Oh, Pretty Woman." 510 U.S. at 588. Yet the Supreme Court found fair use because the copying was transformative.
For transformative use, substantial similarity is often necessary. Parody must conjure the original. Appropriation art must incorporate recognizable imagery. DJ performances must include recognizable recordings.
The relevant question is not similarity but distinguishability. Is the new work readily distinguishable from the original in purpose, character, or message? Cariou, 714 F.3d at 707.
A DJ set is immediately distinguishable from passive playback:
Playback: Discrete tracks, original tempos, no blending
DJ set: Seamless transitions, synchronized tempos, harmonic blending
Any listener can hear the difference. The DJ performance serves a different aesthetic purpose than passive listening.
Substantial similarity does not defeat transformative use—it is often essential to it.
F. "No Originality Under Feist Standard"
The Argument:
Plaintiff may argue DJ performances lack sufficient creativity to satisfy Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), characterizing technical skill as non-creative.
The Rebuttal:
This argument conflates skill with creativity and misunderstands Feist.
Feist rejected copyright for alphabetical phone listings because they involved "no 'selection' and no 'arrangement'" beyond mechanical criteria. 499 U.S. at 362.
DJ performances involve extensive selection and arrangement:
Selection: Choosing which recordings to play based on artistic vision, emotional arc, harmonic compatibility, audience response, thematic coherence.
Arrangement: Sequencing recordings to create narrative progression, building energy, establishing mood, creating transitions.
These are quintessentially creative choices, not mechanical processes.
Technical skill does not negate creativity. Photography requires technical skill (aperture, shutter speed) yet is copyrightable based on creative choices (composition, lighting). Burrow-Giles, 111 U.S. at 58. Sculpture requires technical skill (welding, carving) yet is copyrightable based on creative vision.
The fact that DJs require technical proficiency to execute their vision does not diminish the creativity embedded in that vision.
Feist's threshold is "extremely low"—only "a modicum of creativity" is required. 499 U.S. at 345. Courts do not assess artistic merit, only whether the author made creative choices. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903).
DJ performances easily exceed this threshold. The creative choices in track selection, transition timing, harmonic blending, tempo manipulation, EQ sculpting, and narrative arrangement reflect original creative expression.
G. "Commercial Use Presumptively Unfair"
The Argument:
Plaintiff will argue commercial DJ performances weigh against fair use under the first factor.
The Rebuttal:
Campbell expressly rejected commercial use presumptions:
"Congress could not have intended a presumption against fair use based on commercial use alone."
510 U.S. at 584.
Transformative character outweighs commerciality. Courts have found fair use in numerous commercial contexts:
Campbell: Commercial parody album
Cariou: Commercial gallery sales
Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006): Commercial appropriation art
Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006): Commercial book using concert posters
The Supreme Court established a sliding scale: "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." Campbell, 510 U.S. at 579.
DJ performances are highly transformative. Commerciality is therefore of minimal significance.
Moreover, DJ performances serve public benefits beyond private profit: cultural preservation, music discovery, community building, artistic innovation. These benefits support fair use even in commercial contexts.
H. "Performance Rights Organizations Already License This Activity"
The Argument:
Plaintiff will point to ASCAP, BMI, and SESAC blanket licenses as evidence that industry consensus requires licensing.
The Rebuttal:
Private licensing practices do not establish legal requirements. Industry custom is not law.
PROs are profit-maximizing entities representing copyright holders. Their licensing practices reflect commercial strategy, not disinterested legal analysis. They have economic incentive to maximize licensable activity regardless of legal necessity.
Courts determine copyright scope independently, without deference to industry practices:
Campbell: Music industry parody licensing did not preclude fair use
Google: Publishing industry licensing did not preclude fair use
Perfect 10: Photography licensing did not preclude fair use
The argument is circular: "DJs must license because venues pay licenses, and venues pay because DJs must license." This proves nothing.
Fair use is a question of law, not industry practice.
I. "Market Harm Is Obvious—Free Performances Substitute for Sales"
The Argument:
Plaintiff will claim DJ performances provide free access to music, substituting for paid sales or streaming.
The Rebuttal:
The empirical evidence contradicts this claim.
DJ performances do not substitute for recordings:
Audiences attend for live communal experience, not to avoid purchasing music
DJ performances drive streaming spikes (documented by Shazam, Spotify data)
Artists actively seek DJ support as promotional strategy
Electronic music sales have grown alongside DJ culture
Different markets serve different functions:
RecordingsDJ PerformancesOn-demand accessEphemeral live experienceIndividual listeningSocial gatheringPortable/repeatableUnique/non-replicable
Transformative uses serve different markets than originals and therefore don't substitute. Google, 804 F.3d at 224.
The fourth factor weighs decisively in favor of fair use.
J. "Settled Law Rejects This Theory"
The Argument:
Plaintiff will claim absence of prior cases recognizing transformative DJ performances demonstrates settled law against this defense.
The Rebuttal:
Novel applications of established doctrines are not foreclosed by absence of identical precedent.
Every technological advance requires applying copyright principles to new contexts:
Photography (1884): Burrow-Giles
Photocopying (1984): Sony
Digital sampling (2004): Newton
Search engines (2007): Perfect 10
Book digitization (2015): Google
In each case, courts applied existing doctrine to unprecedented technology. Absence of prior identical cases did not preclude fair use.
Absence of litigation reflects industry dynamics, not legal consensus:
Artists benefit from DJ promotion
Individual stakes are small
Venues purchase licenses to avoid risk
Industry values collaboration over litigation
Fair use doctrine is intentionally flexible to accommodate unanticipated uses. Campbell, 510 U.S. at 577. Applying it to DJ performances fulfills congressional intent.
K. "Opening Floodgates to Unlimited Infringement"
The Argument:
Plaintiff will warn that recognizing transformative DJ performances creates unmanageable line-drawing problems.
The Rebuttal:
"Floodgates" arguments have been made—and rejected—for every expansion of transformative use.
Courts routinely manage line-drawing:
Original expression vs. unprotectable ideas
Substantial similarity vs. independent creation
Transformative parody vs. derivative satire
Fair use vs. infringement across diverse contexts
Distinguishing professional DJ performances from non-transformative uses presents no greater difficulty.
Clear limiting principles exist:
Professional skill: Technical proficiency in beat-matching, harmonic mixing, EQ manipulation
Real-time performance: Live creative decisions, not pre-recorded mixes
Transformative execution: New harmonic content, rhythmic transformation, textural innovation
Distinguishability: Objectively different from passive playback
Expert testimony facilitates line-drawing:
Music theorists analyze harmonic/rhythmic transformation
Professional DJs explain technical skill
Industry analysts describe market distinctions
Musicologists compare performances to source recordings
Bad faith uses are excluded. Uses undertaken solely to avoid licensing, without genuine transformative purpose, fail fair use analysis.
Analogous doctrines function without floodgates:
Parody (Campbell): 30+ years without difficulty
Appropriation art (Cariou): Objective distinguishability standard
Search engines (Perfect 10): Clear functional distinctions
Principled application prevents floodgates while protecting legitimate transformative uses.
L. "DJs Have No Authorial Intent—They're Just Entertainers"
The Argument:
Plaintiff may claim DJs lack authorial intent, characterizing performances as entertainment rather than artistic expression.
The Rebuttal:
This argument insults professional artists and contradicts copyright's fundamental principles.
Bleistein forbids artistic merit judgments:
"It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations."
188 U.S. at 251.
Courts may not discriminate between "high art" and commercial entertainment. Entertainment purpose does not negate copyright protection.
Copyrightable works serving entertainment purposes:
Popular music
Hollywood films
Video games
Stand-up comedy
Television programs
If entertainment purpose negated protection, vast creative industries would lose copyright.
Technical skill and artistic expression coexist:
Classical performance: Technical mastery + interpretive expression
Ballet: Athletic precision + artistic vision
Cinematography: Technical operation + creative composition
Sculpture: Material manipulation + aesthetic conception
Professional DJs make conscious aesthetic choices:
Curatorial decisions: Thematic coherence, emotional narrative, genre juxtaposition
Performative decisions: Harmonic compatibility, rhythmic complementarity, textural contrast
Industry recognition demonstrates authorial status:
Grammy Awards: "Best Remixed Recording" category
Critical discourse: DJ performances treated as artistic works
Academic programs: DJ performance and electronic music courses
Museum exhibitions: Smithsonian, Victoria & Albert Museum featuring DJ culture
Copyright protects creative expression regardless of entertainment purpose or technical skill.
M. "Legislative History Shows Congress Intended to Regulate All Uses"
The Argument:
Plaintiff may cite 1976 Copyright Act legislative history arguing Congress intended broad exclusive rights.
The Rebuttal:
Legislative history cannot override statutory text or Supreme Court interpretation.
Congress expressly intended fair use to remain flexible:
"The bill endorses the purpose and general scope of the judicial doctrine of fair use... the courts must be free to adapt the doctrine to particular situations on a case-by-case basis."
H.R. Rep. No. 94-1476, at 66 (1976).
Congress could not have addressed DJ performances—the technology and culture didn't exist in 1976. Applying general statutory language to unanticipated practices requires judicial interpretation through fair use.
Subsequent Supreme Court precedent controls:
Campbell (1994): Transformative use favored
Eldred (2003): Fair use as First Amendment accommodation
Golan (2012): Fair use as essential limitation
These authoritative interpretations post-date the 1976 Act.
Copyright Clause constitutional limits constrain congressional power. Copyright serving monopoly rather than progress exceeds constitutional authority. Eldred, 537 U.S. at 219.
Legislative history cannot expand copyright beyond constitutional bounds.
N. "International Treaties Require Licensing"
The Argument:
Plaintiff may invoke Berne Convention and WIPO treaties claiming international obligations require licensing.
The Rebuttal:
International treaties do not override domestic fair use doctrine.
Berne Convention Article 9(2) expressly permits fair use exceptions:
"It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author."
U.S. fair use satisfies the three-step test:
Special cases: Transformative use is specific category
Normal exploitation: DJ performances don't conflict with primary markets
Legitimate interests: No unreasonable prejudice where use is transformative
DMCA implementing WIPO treaties expressly preserved fair use:
"Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title."
17 U.S.C. § 1201(c)(1).
U.S. courts interpret treaty obligations consistent with constitutional principles. Fair use reflects First Amendment values. Treaties will not be construed to eliminate constitutional protections. Medellín v. Texas, 552 U.S. 491, 505-06 (2008).
International trends support transformative use:
EU: Parody exception
UK: Fair dealing for quotation and parody
Canada: Fair dealing for transformative purposes
Recognizing transformative DJ performances is consistent with international norms.
O. "Mixing Is Not Protectable Expression"
The Argument:
Plaintiff may claim mixing is purely functional—technical audio processing unworthy of copyright protection.
The Rebuttal:
This confuses functional processes with creative choices executed through those processes.
Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct. 1002, 1010 (2017): Artistic elements are protectable if they can be "identified separately from, and are capable of existing independently of, the utilitarian aspects."
Utilitarian aspect: Blending audio signals
Artistic element: Harmonic progression, rhythmic layering, textural development, narrative sequencing
The creative choices are separable from the functional process.
Analogous functional-expressive hybrids receive copyright protection:
Architecture: Buildings serve functional purposes, architectural design copyrightable
Software: Programs serve functional purposes, code copyrightable
Choreography: Dance serves movement function, sequences copyrightable
Multiple creative options defeat merger doctrine. For any track pair, countless mixing approaches exist:
Different entry/exit points
Different transition durations
Different EQ curves
Different effect processing
Different tempo relationships
Professional DJs creating transitions between identical tracks produce recognizably different results, proving expression has not merged with function.
Industry recognition of individual mixing styles demonstrates creative expression:
Harmonic vs. energy mixing
Quick cuts vs. extended blends
Minimal vs. heavy effects processing
Genre-specific vs. genre-crossing approaches
If mixing were purely functional, all DJs would produce identical results. They manifestly do not.
Copyright protects creative choices in selection, arrangement, and transformation—not the technical processes used to execute them.
VI. ADDRESSING JUDICIAL CONCERNS: PRINCIPLE OVER EXPEDIENCY
We anticipate the Court may harbor certain practical concerns about recognizing transformative DJ performances. Let us address them directly.
A. Administrability
The Concern: That line-drawing between transformative and non-transformative performances requires subjective aesthetic judgments beyond judicial competence.
The Response:
Courts already manage transformative use analysis across diverse contexts without administrability problems. Campbell distinguishes parody from satire. Cariou assesses appropriation art. Google evaluates mass digitization. Each requires fact-intensive inquiry. Each works.
Objective criteria are available:
Multiple recordings blended simultaneously? (Yes = transformative element)
Recordings manipulated in tempo creating synchronized rhythms? (Yes = transformative)
Recordings processed through EQ/effects creating new textures? (Yes = transformative)
Overall performance distinguishable from sequential playback? (Yes = transformative)
Expert testimony provides factual foundation. Music theory experts can objectively analyze harmonic progressions, rhythmic transformations, textural changes, formal structure.
Limiting principles prevent over-breadth:
Must add "new expression, meaning, or message"
Must be "readily distinguishable" from original
Must serve different purpose or function
Must not merely "supersede the objects" of original
Copyright law already operates through case-by-case analysis. Fair use is intentionally fact-intensive. Campbell, 510 U.S. at 577. DJ performance cases present no greater challenge than existing litigation.
The choice is not between perfect administrability and chaos. The choice is between protecting constitutional rights through established analytical frameworks or denying those rights out of exaggerated fear of difficulty.
We choose principle over expediency.
B. Circuit Split Potential
The Concern: That recognizing transformative DJ performances might create circuit disagreement leading to inconsistent copyright treatment.
The Response:
Circuit splits are common and manageable. The Supreme Court resolves them when necessary. Allowing circuits to address novel issues differently facilitates development of diverse reasoning, identification of practical problems, testing of alternative frameworks.
The Ninth Circuit has consistently adopted expansive transformative use doctrine: Perfect 10, VMG Salsoul, Seltzer. A decision here would align with Ninth Circuit precedent and potentially influence other circuits.
Given the strength of transformative use arguments and alignment with Second Circuit (Cariou) and Ninth Circuit precedent, other circuits are likely to converge on similar analysis.
This Court's decision would bind district courts within the Ninth Circuit, ensuring consistent treatment within this jurisdiction regardless of decisions elsewhere.
Potential circuit disagreement is not reason to deny meritorious constitutional defense. Principled decision-making in novel contexts is appropriate even where other circuits may initially differ.
We face no stare decisis concerns—this is a case of first impression. Establishing new precedent where none exists does not disturb settled law.
C. Industry Reliance Interests
The Concern: That disrupting established licensing practices creates uncertainty for venues, DJs, and PROs.
The Response:
Reliance on unlawful practices creates no protected interest. If PRO licensing of transformative performances exceeds statutory authority, industry reliance on such practices does not create legal rights.
Campbell rejected music industry reliance on parody licensing. Google rejected publishing industry reliance on digitization licensing. Courts have consistently refused to allow industry practice to expand copyright beyond statutory limits.
Voluntary licensing remains available. Nothing prevents parties from purchasing licenses for risk management, access to databases, relationship maintenance, or non-transformative uses.
PROs already accommodate fair use exceptions: educational performances, religious services, agricultural fairs, retail establishments. Adding transformative DJ performances requires minor administrative adjustment, not fundamental business model disruption.
Reducing licensing requirements benefits:
Emerging artists: Lower barriers to entry
Small venues: Reduced overhead
Musical innovation: Greater creative freedom
Cultural diversity: Support for alternative scenes
These public benefits outweigh private interests in maintaining unnecessary licensing revenue.
Prospective application minimizes disruption. Past licenses purchased in good faith would not be invalidated. Industry would adapt as it has to other fair use recognitions.
VII. REMOVAL TO FEDERAL COURT: WHERE CONSTITUTIONAL QUESTIONS BELONG
Upon Plaintiff filing this action in Fresno County Superior Court, Defendants will remove to federal court pursuant to 28 U.S.C. § 1441(a).
Copyright claims arise under federal law and fall within exclusive federal jurisdiction. 28 U.S.C. § 1338(a). State courts lack subject matter jurisdiction.
United States District Court for the Eastern District of California
Fresno Division
Robert E. Coyle United States Courthouse
2500 Tulare Street, Suite 1501
Fresno, California 93721
Telephone: (559) 499-5600
This is where constitutional questions belong—in federal courts bound by Supreme Court precedent, subject to Ninth Circuit review, with potential Supreme Court certiorari.
Strategic considerations favor federal adjudication:
Ninth Circuit precedent: Expansive transformative use doctrine (Perfect 10, VMG Salsoul, Seltzer)
Federal judiciary expertise: Greater experience with copyright issues than state courts
Appellate pathway: Clear route through Ninth Circuit to Supreme Court for precedent-setting decision
Amicus participation: Federal litigation attracts briefs from Electronic Frontier Foundation, music industry associations, artist advocacy groups, academic institutions
Robust discovery: Federal Rules provide comprehensive mechanisms for developing factual record on industry practices, economic impact, technical transformation, expert testimony
We do not fear judicial scrutiny—we welcome it. Let constitutional questions be decided in courts designed for their adjudication.
VIII. CONCLUSION: RENDEZVOUS WITH DESTINY
You and I have a rendezvous with destiny. We can preserve for our children the last best hope of creative freedom, or we can sentence them to take the first step into a thousand years of licensing control.
That may sound dramatic. But consider what is at stake.
If copyright becomes an instrument of absolute monopoly control—if transformative use is denied, if fair use is eviscerated, if every creative act requires permission from licensing bureaucracies—then we will have surrendered the very freedom that makes American culture the most innovative and dynamic in human history.
The Founders understood this. They granted Congress power to encourage creativity through copyright, but they limited that power to serve the public interest. They knew that excessive monopoly destroys innovation. They gave us a Constitution that balances reward with access, property with liberty, encouragement with freedom.
Today we defend that constitutional vision.
Professional DJ performances—involving real-time beat matching, harmonic mixing, tempo manipulation, EQ sculpting, creative sequencing, loop creation, and effects processing—constitute transformative artistic expression of the highest order. They add new expression, new meaning, new message to existing works. They serve different purposes than passive playback. They create different aesthetic experiences. They do not substitute in the market. They enhance, rather than harm, copyright holder interests.
These performances satisfy every element of transformative use established by the Supreme Court in Campbell and expanded in Cariou, Google, and Perfect 10.
Plaintiff's arguments—that DJs merely play records, that licensing regimes establish requirements, that recognizing fair use would destroy copyright—have been made before and rejected before. They rest on false premises: that copyright grants absolute control, that industry practice determines law, that monopoly serves the public interest better than freedom.
Each premise is wrong. Each argument fails.
The judicial concerns about administrability, circuit splits, and industry disruption are manageable through objective criteria, expert testimony, established precedent, and prospective application. The benefits of recognizing transformative use—fostering innovation, accommodating new creative forms, appropriately calibrating copyright scope, honoring constitutional values—far outweigh transitional costs.
This case is not merely about whether one DJ infringed one copyright. It is about whether copyright law will fulfill its constitutional mandate to "promote the Progress of Science and useful Arts" or become an instrument of monopoly control stifling the very creativity it was designed to encourage.
It is about whether we will preserve individual freedom to create, to transform, to innovate—or surrender to centralized licensing control determining who may speak and who must pay tribute.
It is about whether we honor the Founders' vision of limited government and unlimited human potential—or embrace a system where every creative act requires bureaucratic permission.
The choice, as it was in 1964, is between freedom and control, between individual liberty and collective regulation, between constitutional fidelity and expedient surrender.
We choose freedom.
We choose to defend the constitutional principles upon which this Republic was founded.
We choose to recognize that professional DJs are artists deserving the same transformative use protection the law grants to parodists, appropriation artists, search engines, and book digitizers.
We choose principle over expediency, liberty over control, constitutional fidelity over industry convenience.
For these reasons, and having addressed every anticipated counterargument and judicial concern with the full force of constitutional principle and Supreme Court precedent, Defendants respectfully request that this Court:
GRANT Defendant's Motion to Dismiss for lack of subject matter jurisdiction and permit removal to federal court; or
FIND in favor of Defendants on the merits, holding that professional DJ performances constitute transformative artistic expression entitled to fair use protection and constitutional recognition; or
PERMIT removal to the United States District Court for the Eastern District of California, where these questions of federal copyright law and constitutional liberty can be adjudicated in accordance with Ninth Circuit precedent and Supreme Court authority.
The defense of freedom is never finished. Each generation must choose whether to preserve the heritage of liberty or surrender to the encroachment of control.
Today we choose freedom.
Tomorrow belongs to those who defend it.
Dated: November 21, 2025
Respectfully submitted,
NIGEL A. MARIN, J.D.
Pro Se Defendant
[State Bar Number Pending - Anticipated February 2026]
NRS Group of Fresno
[Address]
Fresno, California 93721
Telephone: [Number]
Email: [Email]
Counsel for Defendants
Nigel A. Marin, individually and dba Elvis.h/JDDJ.NRS;
NRS Group of Fresno; GetOff.com; and Techno-Agenda.com
"Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same."