Didn't You Used To Be Axl Rose?
Q Magazine, May 2001
Phil Sutcliffe

When the reclusive Guns N' Roses star re-emerged last year, even old band mates didn't recognise him. After a decade of hiring and firing, an $8 million studio bill and the last minute cancellation of his European tour, is there a future for the Howard Hughes of rock? Phil Sutcliffe finds out...

Thursday is a low-key night at The Cat of LA's Sunset Boulevard. Proprietor Slim Jim Phantom, ex-Stray Cats drummer and current self-styled Prince Of The Strip, has fun "slaughtering the FM classics" with his bar band, The Starfuckers, featuring ex-Guns N' Roses guitarist Gilby Clarke. But Thursday 22 June last year turned out to be something special: the night Axl Rose sang in public for the first time since the Use Your Illusion tour ended in 1993.

Phantom didn't spot him. Rose had become so reclusive nobody really knew what he looked like anymore. But the bartender advised his boss that the fellow with the baseball cap leaning on the bar was indeed the legendary hellion. "I wasn't sure," Phantom tells Q. "So I took Gilby over and tapped the guy on the shoulder. He turns round and Gilby says, That's not him! But Axl grins and says, Hey, Gilby, how're you doin'?"

Long estranged - Rose fired Clarke in 1994 - they talked until 4am. At one point, Rose got up with The Starfuckerrs for half an hour to scream the bejesus out of the The Rolling Stones' Wild Horses, Dead Flowers and other favourites.

Clarke hasn't heard a word from him since, but Phantom reckons that having "got his feet wet", Rose decided it was time to declare the silent years over. His label, Polydor, suggested that Chinese Democracy, the album Guns N' Roses' new line-up had been crafting since dinosaurs roamed the Earth, would be out this summer. UK concerts were announced for June. To prove it, they really did play live at the Las Vegas House Of Blues early on New Year's Day and again, to 200,000, at Rock In Rio on 15 January. But the tour has since been pulled due to illness - "internal haemorranging" suffered by Slash replacement Buckethead. Chinese Democracy, too, has been postponed for the umpteenth time - until autumn at the very earliest - pending adjustments by, possibly, its sixth producer, Queen veteran Roy Thomas Baker. To date, the project is rumoured to have cost a mindboggling $8 million. What, exactly, is going on with Axl Rose?

It would be silly to claim that there are straight lines to be drawn through Rose's character, any clear-cut pointers to why, after selling more than 40 million albums, he allowed his career to slide into limbo. But, probably, all the enigmatic twists and turns that ultimately broke up the old Guns N' Roses and led their frontman into willful obscurity started in Indiana.

Rose, aka Bill Bailey, grew up in the self-styled "all-American city" of Lafayette (population 43,764). It gave him a picket-fence Midwest childhood. It gave him a natural father, William Rose, who abused him as a two-year-old -"fucked me up the ass", Axl said in a 1992 interview. It gave him a Pentecostal preacher stepfather, L Stephen Bailey, who talked in tongues and beat him for such transgressions as singing along to Barry Manilow's Mandy on the radio. It gave him 20 arrests for drunken misdemeanours when he ran wild as a teenager.

And ever since he left the town for LA in '82, he has both hated Indiana and clung to it like a life-raft.

Guns N' Roses stumbled together in 1985 as an accidental combination of big city and Hicksville: Rose and his Lafayette high-school pal Izzy Stradlin (guitar), along with Angelenos Slash (lead guitar) and Steven Adler (drums), plus Duff McKagan (bass) from Seattle. En route, they discovered a special gift for uproar: drugs, girls, riots. Controversial, but it all seemed to work perfectly well for a while. When the band began to fall apart, though, that Indiana thing was at the bitter heart of it.

If Adler's sacking in '90, because of heroin addiction, was hardly seismic, when Stradlin quit the following year, Rose ballistic. Stradlin, newly drug-free, critised Rose for keeping fans waiting for over two hours before he went on stage.

Rose just felt betrayed. "I feel like Izzy shit all over me," he howled. He was appalled that his small-town compadre could fail to understand the agonies he went through nightly - the "living hell" of trying to get himself ready to face 50,000 fans. And he seemed even more upset that, after leaving the band, Stradlin hopped on his Harley and drove home to Lafayette. "The fucking idea of going back to Indiana!" Rose raged to Rolling Stone as late as '99. "I know how much Izzy hated it. It's pitiful."

Clarke came in as immediate substitute, but Rose had a need to fill that Indiana-shaped void. In autumn '94, Slash checked a mix of Guns N' Roses covering Sympathy For The Devil (for Interview With The Vampire's soundtrack). He heard a guitar part he didn't like and learned it was Paul Huge (it rhymes with "boogie"), late of Lafayette - and it turned out, catalyst for the destruction of the original Guns N' Roses.

"I never liked that guy from day one," said Slash. "That's one of the biggest, most personal things that Axl and I have gone through - to bring in an outside guitar player without even telling me."

Matt Sorum, who replaced Adler, confirmed to Q that the band "didn't feel Paul was one of us", while allowing that, "I guess there were times when Axl felt outside the band - and Paul told him what he wanted to hear."

Indiana in exile was taking over. Even before the Huge hoo-ha, Rose "turned down flat" an album's worth of new songs Slash had written in the hope of hurrying along the successor to Use Your Illusion (not counting 1993's interim covers venture, The Spaghetti Incident). This was where straightforward musical differences - no, for real - contributed to the conflagration. Slash wanted to make a "simple, kick-ass hard rock record". Rose was determined to modernise, and eulogised Nine Inch Nails, The Prodigy, "electronica", industrial and all the new influences he reckons to have explored with the new lineup

Crucially, although the other four favoured "kick-ass" over modernisation every time, it was a debate the majority was never going to carry for the simple reason that, by them, Axl Rose effectively owned Guns N' Roses. During one of their regular post-multi-platinum power struggles, Rose had threatened to withdraw from the Use Your Illusion tour unless they gave him full rights to the band's name. They waved the white flag and he secured what he once called "the power rewards of my vision".

By September 1996, Slash was so miserable that he swore, "I'm going to confront it. Either Paul goes, or..." A month later, Rose announced that Slash had quit the band.

But Indiana wasn't done yet. A year on, Matt Sorum introduced Rose to former Nine Inch Nail guitarist Robin Finck, advising that he would make a great foil for Slash - who could then be restroed to the lineup Rose said, "No, he would be a great replacement for Slash."

"Then Paul Huge walked into the studio and made a bad comment about Slash," says Sorum. "I said, You don't say that when I'm in the room." Then Axl laid in, I argued with him and it was over. Huge followed me out into the parking lot and said, Come back. I said, I can't come back, he's fired me. Do you feel good about breaking up one of the greatest bands that ever lived?"

By 1998, McKagan, the other remaining original, had drifted away to join the others in a loose fellowship of LA club bands and uncommercial solo albums. "Paul Huge is the Yoko Ono of GN'R". Sorum concludes.

Perhaps more accurately, Indiana is the Yoko Ono of GN'R. Conversely, in January, at Rock In Rio, Rose made a point of telling the crowd that "Without Paul Huge there probably wouldn't be a Guns N' Roses." It all depends on your point of view.

For the past eight years, Axl Rose's life has been the subject of gossip, speculation and "reported sightings". Rumour and fact, however, combine to sketch a life that's quiet, drug-free, very withdrawn, yet largely mundane - apart from the never-ending nocturnal studio sessions.

Although he is rarely seen in daylight, sometimes he goes to the beach, sometimes he goes to the movies. Occasionally he attends concerts - Red Hot Chili Peppers, Radiohead, Tool (he has been observed struggling to get backstage because security didn't recognise him anymore).

He lives in a mansion off Latigo Canyon Road, in the hills above Malibu, keeping fit via kick-boxing and home gym work-outs. His domestic needs are attended to by his assistant/cook, a Brazilian called Beta Lebeis (recipient of another onstage thank you in Rio) and he is sometimes spotted at a Malibu mall shopping for groceries with her and one of her three children.

Rather charmmingly - not an adverb often associated with Rose - at the singer's '99 Halloween fancy dress party, Dave Quakenbush, vocalist with LA punk band The Vandals, encountered him "wearing a dinosaur outfit. When some kids approached him and asked if he was Barney The Dinosaur, he said Nah! Barney's a fag! Then he stopped himself and said, Oh, uh, I mean Barney's a pussy."

While further cuteness is not expected to crop up on the Rose agenda, his last known breach of public tranquillity occurred as long ago as 1998 when he was arrested at Phoenix airport for refusing to let security search his bags. He has also been involved in several cases against a persistent stalker called Karen McNeil, jailed last year for breaking into his property at least six times after travelling from Ohio in response to Rose's "psychic call", she claimed.

But there seems no doubt that his dominant pre-occupation for the past years at least has been that Guns N' Roses album. Most weekdays he's spent the hours between 9pm and 9am at a Los Angeles or San Fernando Valley Studio with a shifting cast of expensive players. These have included former members of Jane's Addiction, Circus of Power, Ozzy Osbournes band, The Vandals and intriguingly, Queen's Brian May. Rose loved Freddie Mercury and the old Guns N' Roses lineup always described the Wembley tribute concert in 1992 as their collective happiest moment.

Together, the new model Guns N' Roses have assembled more than 70 songs. In 1998, Moby did some production work with Rose and told him he had a finished album and should release it, but only one track has emerged as yet, the End of Days soundtrack contribution Oh My God, a song clearly informed by post-Limp Bizkit developments in metal. Which makes the $8 million studio bill rumour almost believable.

Unusually in the hush-hush environs of Guns N' Roses, ex-Killing Joke bassist and Verve producer Youth was willing to recount his experience of Chinese Democracy. He had "four or five" spells working with Rose in 1998-'99. The first thing he did was temporarily distract the singer from inter-minable studio rehearsals of Appetite For Destruction - which, astonishingly, Rose did later re-record in its entirety (conspiracy theorists suggest it will be released to kill off sales of the original and deprive the old lineup of royalties, but that's both unrealistic and over-paranoid).

"I went to his house and we started writing songs, strumming guitars in the kitchen", says Youth. "That was a major breakthrough because it got him singing again which he hadn't done for a long time".

But when Youth ushered Rose back into the studio, progress ceased: "So I said, Next time I come over I want to record the songs, and he said, You're pushing me too fast. I had to pull out. Sadly, because I think he's one of the last great showmen of rock, incredibly committed and passionate."

So why can't Axl Rose finish the record? Is it perfectionism? Is it fear - or as Slash once put it, "The more you hide from people the more you can't get off your fuckin' ass".

"Partly perfectionism," says Youth, "But the psychology is that if you have something out you get judged - so you want to stay in a place where you don't get judged. Which means it is a good sign that he's now playing live.

Yet, even as Axl Rose and his band creep towards the light of day, wrangles with his old cohorts continue. For one, the Live Era '87-'93 album released in 1999 caused another row between Rose and Matt Sorum. A few months before its release, Sorum was quoted expressing his concern that Rose was "being taken advantage of" by hippy healers he visited in Arizona. Rose made no public reply, but when Sorum saw a proof of the album sleeve, his heart sank: he was listed only as an "additional musician".

"That hurt", he says. "It was the biggest dig he ever took at me. But Axl said he wouldn't release the album if it was changed. That's how spiteful he got. I didn't mean what I said badly. I felt sorry for him".

Strange. People fight him for years, suffer the rough end of his power and money, and still come out empathising with his vulnerability and isolation. Ex-wife Erin Everly told a court she had suffered regular beatings and that Rose removed all the doors in her appartment so that he could keep tabs on what she was doing. She also testified "I felt sorry for him" and "I thought I could make it all better"

Slash, who hasn't spoken to his former partner for five years, once reflected: "I feel sorry for him sometimes, if only because he's such a tough act to be - he's in such a funny place because Axl is Axl and no-one will really understand him as much as he would probably like to be understood. He's really on his own in that respect. You know, I once asked him why he didn't do a solo album to get it off his chest. Well, he didn't see any reason why he should, because in Axl's mind, Guns is his solo project."

It is now. And still the hesitation continues.

Perhaps Axl Rose might consider the merits of Slim Jim Phantom's rough-hewn summing up: "He should just go out and play a couple of new songs, then do the family favourites like The Rolling Stones and pink Floyd do. Sometimes you can over-think these things".

United States District Court, C.D. California,
Western Division.
W. Axl ROSE, et al., Plaintiffs,
v.
GEFFEN RECORDS, a division of Umg Recordings, Inc., Defendant.
March 15, 2004.

I. INTRODUCTION AND SUMMARY OF ARGUMENT

The Application for a Temporary Restraining Order and an Order to Show Cause re Preliminary Injunction filed by Plaintiffs Axl Rose, Saul Hudson and Michael McKagan ('Plaintiffs') is completely without merit. As demonstrated below, they have not established either that they are likely to prevail on the merits of their claims or that they will suffer irreparable harm in the absence of provisional relief. Moreover, the 'balance of hardships' tips entirely in favor of defendant Geffen Records, a division of UMG Recording, Inc. (hereinafter 'UMG'). Among the defects in Plaintiffs' Application for emergency relief, any one of which requires denial of the Application, are the following:

'¢ The factual predicate for all of Plaintiffs' claims is wrong: All of Plaintiffs' claims, and particularly the Lanham Act claims which form the basis of the request for provisional relief, are premised on the assertion that UMG violated Plaintiffs' rights when it 'remastered' the songs on the Guns N' Roses Greatest Hits album (the 'Guns N' Roses GHLP'). That claim is demonstrably wrong. Not only is there no competent evidence to support that contention (the only evidence adduced by Plaintiffs is a hearsay exhibit printed out from a website of a company unaffiliated with UMG), but UMG has submitted evidence - including the declaration of Bill Levenson, the producer of the Guns N' Roses GHLP - that unqualifiedly proves that no song on the Guns N' Roses GHLP was either 'remastered' or remixed, or edited, or altered in any respect. As the merits of Plaintiffs' claims rest entirely on this rebutted assertion, they have no probability, nay, no possibility, of prevailing on the merits.

'¢ Plaintiffs Cannot Demonstrate Irreparable Injury: Plaintiffs' claims of irreparable harm are likewise entirely premised on the claim that their reputation, artistic vision and trademarks will be somehow harmed by the release of 'remastered' versions of their songs. As the premise underlying the claimed harm is demonstrably false, Plaintiffs are left with having made absolutely no showing of irreparable harm at all.

'¢ Plaintiffs' Lanham Act claims fail as a matter of law. Even if there were any factual basis for Plaintiffs' claims, they still could not provide a basis for equitable relief. Both of the Lanham Act claims are facially deficient. The first, for trademark infringement, fails because Plaintiffs have no standing even to bring such a claim. The U.S. Patent and Trademark Office records submitted by Plaintiffs show that a California partnership called 'Guns N' Roses,' and not the individuals who are plaintiffs here, owns the registered trademarks sued on in this action. The second Lanham Act claim, for 'False Designation of Origin,' completely disregards the Supreme Court's recent Dastar decision holding that for purposes of the Lanham Act, the 'origiN' of goods is 'not the person or entity that originated the ideas or communications' contained in the goods, but the manufacturer of the goods itself. There is no allegation, nor could there be, that UMG is not the true origin of the Guns N' Roses GHLP.

'¢ Plaintiffs have unduly delayed moving for provisional relief: A fundamental principle applicable to requests for emergency relief is that the party seeking such relief must move promptly to secure it. Here, Plaintiffs have known of the respective international and domestic release dates for the GHLP of March 15 and March 23, 2004 for many weeks - since January 22, 2004 - yet waited until the last business day before the release to seek relief. This delay belies their claims of irreparable harm and is, in itself, a basis for denying relief for several reasons. First, the only emergency is one created by Plaintiffs' delay; plaintiffs cannot create the need for a TRO by delay and then cry they must have one. Second, TROs are not issued to prevent harm that has already occurred. That is the case here; Plaintiffs have moved too late. The GHLP has been for sale in over 50 countries throughout the world for most of this day. Insofar as Plaintiffs (incorrectly) claim that their irreparable harm inures in the very release of the Guns N' Roses' GHLP, that harm has already occurred. Third, as explained below, Plaintiffs' delay in seeking relief has exacerbated the harm and hardship suffered by UMG if a TRO (or preliminary injunction) is issued.

'¢ The 'balance of hardships' tips entirely in favor of UMG: In contrast to the non-existent showing of harm by Plaintiffs, the harm that would be suffered by UMG, and third parties not before the Court, is enormous. The extent and magnitude of the harm cannot be adequately summarized in a paragraph or two. But as explained in detail below, the issuance of a TRO, particularly at this late date, would irreparably undermine UMG's carefully planned marketing efforts for the Guns N' Roses GHLP throughout the world, disrupt UMG's relationships with its customers in a manner that cannot be quantified or recompensed by damages and vitiate the multi-million dollar investment UMG has made in recent weeks in producing, promoting and distributing the GHLP.

For these, and all the other reasons explained below, Plaintiffs' Application for a TRO and an Order to Show Cause should be denied.

II. FACTUAL BACKGROUND

A. Background Facts Relevant To The Relationship Between UMG And Guns N' Roses

The relationship between Guns N' Roses and UMG's Geffen Records division dates back to 1986, when Geffen's corporate predecessor, The David Geffen Company, entered into a recording agreement with five individuals, Steven Adler, Izzy Stradlin, Michael 'Duff McKagan, Saul Hudson (p/k/a 'Slash') and W. Axl Rose, who were professionally known as 'Guns N' Roses.' Hoffman Decl. ¶ 2. In 1992, Geffen's corporate predecessor entered into a new recording agreement with Messrs. Hudson, McKagan and Rose dated September 1, 1992 (hereinafter the 'Recording Agreement'). Prior to the signing of the 1992 Recording Agreement, Adler and Stradlin had left the band (although they still retained a royalty interest in master recordings created under the original 1986 agreement during their tenure in the band.) Id.

Since 1992, the parties have executed various amendments to the Recording Agreement, including most notably, two amendments dated as of May 1, 1998. One of these amendments, see Froeling Decl. Ex. D, confirmed Slash's and Duff's departure from the band and their status as 'Leaving Members' under the 1992 Recording Agreement, thereby relieving them of charges against their royalty accounts for the enormous recording costs and other expenses being incurred by Axl Rose (the only 'Remaining Member'[FN1] of Guns N' Roses) in connection with the recording of the new Guns N' Roses studio album. Hoffman Decl. ¶ 3. Slash and Duff, like Stradlin and Adler before them, retained a royalty interest in masters created under the Recording Agreement prior to their departure from the band. Id In the other May 1, 1998 amendment, see Hoffman Decl. Ex. A, Axl Rose agreed, among other things, to deliver that new studio LP (which was even then long overdue under the Recording Agreement) no later than March 1, 1999 and received a substantial advance from Geffen in return. Hence, although other individuals have joined Axl Rose in performing under the name 'Guns N' Roses' since 1998, Rose is the only principal in the band. Id.

FN1. 'Leaving Member' and 'Remaining Member' are both defined terms as used in Paragraph 17.02 of the Recording Agreement.

B. Plaintiffs Were Notified Of The March 15 And March 23, 2004 Release Dates In January 2004

December 31, 2003 came and went without delivery of the studio LP, as had so many previous deadlines. Hoffman Decl. ¶ 6. Accordingly, in January 2004, Geffen resumed its plans to release the GHLP. At that time, Mr. Hoffman asked Ms. Lori Froeling to send another notice to Guns N' Roses pursuant to the Recording Agreement, informing Guns N' Roses that the GHLP would be released on March 23, 2004 in the United States and Canada, and on March 15, 2004 in other international territories. Ms. Froeling sent such a notice on January 22, 2004. The January 22 notice also indicated that the previously approved track listing and sequence had not changed. Hoffman Decl. ¶ 6; Froeling Decl. ¶ 6 & Ex. F.

At no time after January 22, 2004 did Geffen Records ever indicate to Guns N' Roses, or any of its representatives, that Geffen was not intent on releasing the Guns N' Roses GHLP on the respective March 15 and March 23, 2004 release dates mentioned above. Hoffman ¶ 7. The release dates were in fact confirmed in a subsequent letter to Plaintiff Rose dated February 2, 2004. Marenberg Decl. ¶ 3; Ex. B. Froeling Decl. ¶¶ 4, 5. Accordingly, Mr. Rose, the only 'Remaining Member' of Guns N' Roses (as that term is defined in Section 17.02 of the Recording Agreement) was advised no later than January 22, 2004 of the March 23 and March 15, 2004 release dates for the Guns N' Roses GHLP in the United States and Canada and other international territories, respectively. 14. ¶ 6.

In connection with the release of the Guns N' Roses GHLP, Geffen has already paid $1 million dollars in advances to Rose and the four former members of Guns N' Roses. Hoffman Decl. ¶ 8. Specifically, Rose has received an advance of $257,545 for the GHLP; Slash and Duff have received an advance of $568,565 for them to split; and Messrs. Stradlin and Adler, who are not plaintiffs in the present lawsuit (and whose interests could be adversely affected by the issuance of the relief requested by Rose, Slash and Duff), have received advances of $ 136,228 and $37,662, respectively. Notably, plaintiffs did not file this suit until after they received these advances, and none of the three plaintiffs in this case who has received advances on account of the GHLP has offered to return it. Id.

C. None of the Songs On The Guns N' Roses Greatest Hits LP Have Been Remastered Or Otherwise Altered

Plaintiffs' Application is based entirely on the belief that the GHLP contains remastered songs. See Pls.' Ex Parte App. at 1. In fact, none of the songs on the Guns N' Roses GHLP were remastered, nor were they edited, mixed, remixed or otherwise altered. Levenson Decl. ¶ 3. Specifically, the Guns N' Roses GHLP was compiled utilizing the 1630 original EQ'd digital masters of previous Guns N' Roses albums (and one radio single) stored in UMG's tape library. Levenson Decl. ¶ 4. A 1630 EQ'd digital master is the producer/artist approved master used to manufacture compact discs. Each song was transferred 'as is,' with no additional equalization or other remastering technique applied. Id.

Plaintiffs have submitted a declaration of Peter Asher, which describes various remastering processes that Mr. Asher claims cause alterations of original master recordings. Asher Decl. ¶¶ 7-10. Mr. Asher mentions processes such as conversion (the transformation of an analog recording to a digital recording using an 'A to D converter'), 'equalization,' 'limiting and compressioN' and 'expansion.' Id. None of these processes, nor any other remastering technique, was applied to the master recordings of the songs that were compiled on the Guns N' Roses GHLP. Levenson Decl. ¶ 5.

Never in the course of any discussions with representatives of Guns N' Roses, including the current band's manager, Mr. Merck Mercuriadis, was UMG ever asked if any of the songs on the Guns N' Roses GHLP had been remastered. Had UMG been asked, UMG would have informed Guns N' Roses that no song on the Guns N' Roses GHLP had been remastered. Hoffman Decl. ¶ 7.

D. Because The Guns N' Roses GHLP Was Not Remastered, UMG Never Marketed The Album As Having Been Remastered And Any Reference To The Contrary Is Mistaken

Throughout preparation for the marketing and promotion of the Guns N' Roses GHLP release, it was understood that the songs on the Guns N' Roses GHLP had not been remastered in any way. Resnikoff Decl. ¶ 9. Consistent with that understanding, none of UMG's marketing materials or campaigns include any reference to any remastering of songs on the Guns N' Roses GHLP. See Resnikoff Decl. ¶¶ 11-20 and Ex. A (promotional 'flat' shipped to retailers in advance of album's release); Ex. B (written information provided to retailers); Ex. C (advertisement for use in Blender magazine); Ex. D ('snipe' poster used for promotion in metropolitan areas); Ex. E (advertisement for use in Hit Parade magazine); Ex. F (promotional poster); Ex. G (promotional poster); Ex. H (promotional poster); Ex. I (advertisement for use in Rolling Stone magazine); Ex. J (advertisement for use in WWE Smackdown magazine). Nowhere has UMG stated or implied that the Guns N' Roses GHLP contains remastered songs. Resnikoff Decl. ¶ 9. Had the album in fact been remastered, this fact undoubtedly would have been a key component of UMG's advertising and marketing campaign. Id.

The sole basis for Plaintiffs' incorrect assertion that the album was remastered (and, in turn, the sole basis for this application) is a single reference on the website of CD Universe. See Pls.' Ex Parte App. at 5 (citing Ex. 4 to Mercuriadis Decl). This so-called evidence is rank, objectionable hearsay.[FN2] UMG has no affiliation whatsoever with CD Universe and does not create the content on the site. Resnikoff Decl. ¶ 10. Plaintiffs submitted a printout from the CD Universe website attached to the Declaration of Merck Mercuriadis as Exhibit 4. The website's apparent representation under 'Additional Info' that that the Guns N' Roses GHLP was 'Remastered' is incorrect. Resnikoff ¶ 10. UMG is unaware as to how CD Universe came to include such information on its website. Id. To UMG's knowledge, nobody associated with UMG ever informed CD Universe that the Guns N' Roses GHLP contained remastered songs. Id None of the marketing material ever provided to CD Universe or any other entity contains such a reference. Id. at 9.

FN2. UMG has concurrently filed, under separate cover, objections to this document and other evidence.

E. UMG Would Suffer Substantial And Irreparable Harm If A Temporary Restraining Order Were Issued

UMG would suffer substantial harm, some quantifiable and some not, if a temporary restraining order were issued by this Court at this late date. Planning for the release of the Guns N' Roses GHLP started many months ago and by now - only one week before the domestic release of that album and after the international release has occurred - much of that planning has already been implemented. A temporary restraining order at this late date would severely disrupt these plans, causing confusion in the marketplace and damage to retailers who have invested in the album. Further, UMG's relationship with its retail customer base would be damaged, and that damage is not quantifiable. Resnikoff Decl. ¶ 4.

In addition, UMG could suffer substantial economic harm from the issuance of provisional relief. In the North American marketplace alone, UMG has already spent well over $1 million dollars on marketing, production and distribution expenses. Most of that investment, which will largely be lost if an injunction prohibiting the release were to issue, was made in the past few weeks, when Plaintiffs were aware of the projected release date of the Guns N' Roses GHLP and did not seek relief. In international markets, Universal Music Group's international affiliates have invested even larger sums - between 1.5 and 2 million Euros (nearly $2.5 million) - in connection with the Guns N' Roses GHLP. Were UMG prohibited from further distribution of the album, much of that investment too would be lost. Of course, these sums do not remotely account for the entire monetary loss that UMG would suffer. Demand for the Guns N' Roses GHLP has exceeded even UMG's high expectations. It is quite possible, to say the least, that several million copies of the CD can be sold, to the substantial economic benefit of UMG and the current and former members of Guns N' Roses, including at least two former members of the band who have not joined Plaintiffs in pursuing in this lawsuit. Those benefits too would be lost if the album were to be enjoined. Resnikoff Decl. 14.

1. Because Of The Extensive Marketing Efforts Undertaken By UMG, An Inability To Deliver The Album Would Cause Significant Irreparable Harm To UMG's Credibility And Goodwill With Customers And Retailers

In connection with the release of the Guns N' Roses GHLP, UMG has undertaken significant steps to promote the awareness of retailers and customers of the album's release and to launch the album at retail accounts pursuant to a marketing plan created for the album. The marketing efforts for the Guns N' Roses GHLP includes substantial print, radio, and television advertising and promotional events intended to focus retailers and consumers on the release of the Guns N' Roses GHLP. Resnikoff Decl. ¶ 5. The irreparable harm UMG would suffer if an injunction were issued includes the disruption of its carefully planned marketing campaign, loss of customer goodwill, and damage to UMG's relationships and credibility with retailers. Resnikoff Decl. ¶ 21.

In particular, UMG created a substantial print advertising campaign for the Guns N' Roses GHLP to run in a number of publications that was designed to coincide with the domestic release of the Guns N' Roses GHLP on March 23, 2004. These advertisements are created and prepared as long as six weeks in advance and cannot be changed on short notice at this late date. Resnikoff Decl. ¶ 22.

In addition to the print advertisements in magazines, UMG was able to persuade its major retail customers to include advertisements for the Guns N' Roses GHLP in their weekly store circulars. Because of the significant lead time in publishing such magazines and the last minute timing of the Plaintiffs' application, not only will the costs of these advertisements be incurred regardless of the outcome of Plaintiffs' application, but the circulars will be distributed. Resnikoff ¶ 6.

Additionally, UMG has prepared a large-scale television advertising campaign, including a number of high profile ads that feature retail stores as locations where the album can be purchased. Resnikoff Decl. ¶ 7. With the other print advertisements, this marketing will drive customers to retail outlets on and after March 23, 2004 expecting to purchase the GHLP. When they cannot, both the retailers' and UMG's goodwill with these customers and UMG's relationships with the retailers will be damaged. The fact that the Guns N' Roses GHLP is a major release with significant retail and consumer demand magnifies the potential for damage to these relationships. The harm to UMG from this loss of credibility is impossible to quantify. Resnikoff Decl. ¶ 24.

Another major component of the marketing plan for the Guns N' Roses GHLP is radio promotion. UMG has provided copies of the album to numerous radio stations throughout the country, including most rock, classic rock, classic hits, and college radio stations. In addition to the albums, a number of stations have received promotional packages to help promote the album on the air. Resnikoff Decl. ¶ 8. UMG's relationships with radio stations would be severely injured if the album's release were enjoined. Resnikoff Decl. ¶ 25.

2. UMG Will Also Suffer Substantial Economic Harm In The North American Marketplace

As noted, the North American release of the Guns N' Roses GHLP has been planned for March 23, 2004 for several months. Resnikoff Decl. ¶ 27. Consistent with its view that the Guns N' Roses GHLP is a high profile album, UMG has made a substantial investment in the marketing and the production of the album. Specifically, UMG has already manufactured a large number of units of the album, even before the album has been released for sale. The CD has been very well received by retailers, measured by advance orders. Orders for more than 425,000 units of the Guns N' Roses GHLP have already been received by UMG's distribution company. UMG has already shipped 260,000 units of the album and expects to ship approximately 500,000 units of the album to retailers by the end of March. These strong orders have exceeded expectations and already make this release one of UMG's more successful catalog promotions. Resnikoff Decl. ¶ 28.

Were this Court to enjoin UMG from releasing the album, UMG would lose the significant costs expended in the production, manufacturing, distribution and marketing of the album. The total manufacturing and production costs through March 12, 2004 incurred by UMG are approximately $700,000. This total includes the cost of over 550,000 units that have already been manufactured in order to meet the expected demand for the product. See Resnikoff Decl. ¶ 29.

In terms of costs associated with marketing and promoting the release, UMG has already committed approximately $227,570 in print advertising and merchandising costs. See Resnikoff Decl. ¶ 30; Ex. L. In addition, UMG has earmarked an additional $325,000 for television advertisement. The television advertisement has been filmed and a number of advertising spots have been reserved on over 20 selected television programs and cable networks that target the core audience of Guns N' Roses. Id. at ¶ 30. An order prohibiting the release of the album will likely result in the loss of most, if not all, of the money spent thus far on television advertising. Id. at ¶ 32.

In summary, were this Court to enjoin UMG from releasing the Guns N' Roses GHLP, UMG will likely suffer hard economic damages of more than $1.5 million, without even beginning to consider either: (1) the lost revenues and profits UMG expects to generate from sales of the Guns N' Roses GHLP itself, or (2) revenues and profits UMG expects to derive from additional sales of albums in its Guns N' Roses catalog, which would undoubtedly be increased in the wake of the successful release of the Guns N' Roses GHLP. Thus, the expected economic loss from an injunction could very well exceed several million dollars in the United States alone. Resnikoff Decl. ¶ 31.

F. A Temporary Restraining Order Would Also Cause Severe Harm To International Release Of The Album

The release of the Guns N' Roses GHLP was a very important release for Universal Music International, Ltd. ('UMI'), UMG's international affiliate. UMI expected high demand from retailers and from public customers and these high expectations have been met or exceeded by the marketplace. UMI has already shipped close to 500,000 copies of the album to retailers internationally. Hole Decl. ¶ 3. It would be difficult or impossible to cease distribution of the album at this time, and any such efforts would cause severe irreparable harm to UMI. Hole Decl. ¶ 4.

1. Plaintiffs' Application Is Far Too Late To Prevent The International Release Of The Greatest Hits LP

The international release of the Guns N' Roses GHLP was scheduled, weeks ago, for Monday, March 15, 2004 in approximately 55 countries throughout the world. At this point in time, it is not possible to stop the release of this album in these international markets. In fact, by the time the Court reads this Opposition, retailers who will be selling the Guns N' Roses GHLP will have their copies of the album and sales of the Guns N' Roses GHLP will have been taking place in parts of the world for over a full business day. Hole Decl. ¶ 5. Moreover, now that the album has reached the retailers, UMI has absolutely no ability to compel them to stop selling the albums that they have purchased and are in their possession. Hole Decl. ¶ 6[FN3]

FN3. Even had this Court ordered UMI to stop the international release of the Guns N' Roses GHLP as early as Friday, March 12, 2004, it still would have been impossible to prevent the release Monday morning due to the significant lead time required to effectuate a release of an album simultaneously in approximately 55 countries. Trucks carrying copies of the album began shipping the copies of the album last week (and in some cases the week before) in order to deliver to the retail stores in time for Monday's release. Indeed, many retail stores were already in possession of the album prior to Friday, March 12. Hole Decl. ¶ 7.

Like its sister company in the United States, UMI has already expended significant sums in manufacturing, marketing, promoting, and distributing the album. These sums are in addition to any sums spent in support of the album domestically. Hole Decl. ¶ 8. The costs already incurred by UMI include approximately 750,000 to 1 million Euro on production and manufacturing costs and an additional 750,000 to 1 million Euro on marketing, promotion, and distribution of the album. In total UMI would suffer damage in the amount of approximately 1.5 to 2 million Euro, again without considering either: (1) the lost revenues and profits UMI expects to generate from sales of the Guns N' Roses GHLP itself, or (2) revenues and profits UMI expects to derive from additional sales of albums in its Guns N' Roses catalog, which would undoubtedly be increased in the wake of the successful release of the Guns N' Roses GHLP. Hole Decl. ¶ 9.

2. Prohibiting The Continued Sale Of The Guns N' Roses Release Internationally Would Result In Significant Irreparable Harm To UMG

Equally important to UMI as the significant economic harm UMI would suffer if an injunction were issued by this Court, is the non-quantifiable injury that would result from an order prohibiting the further international marketing of the Guns N' Roses GHLP. The irreparable harm UMG would suffer includes the disruption of its carefully planned marketing campaign, loss of customer goodwill, and damage to UMI's relationship and credibility with retailers. Hole Decl. ¶ 10.

As with UMG's domestic efforts, UMI has spent considerable time and effort raising the awareness of international retailers about the upcoming release. These efforts were geared to the international release date of March 15, 2004. As a result of those efforts, many retailers have decided to feature the Guns N' Rose GHLP release in their advertisements. These advertisements are created and prepared well in advance and cannot be changed on short notice. Just like in the United States, in reliance on these advertisements, customers will travel to the store to purchase the album and the unavailability of the record will create disruption in the market, adversely affecting customer goodwill both for the retailers and for UMI, and damaging the important relationship between UMI and retailers. Again, this harm to UMI from this loss of credibility is impossible to quantify. Hole Decl. ¶ 12.

3. An Injunction Against Further Release At This Time Could Precipitate Widespread Counterfeiting And Piracy

In addition, because the injunction request was not brought to the Court prior to the international release of the record, so that copies of the Guns N' Roses GHLP are now widely available in the rest of the world outside North America, certain unique complications concerning piracy and counterfeit copies of the Guns N' Roses GHLP would arise were an injunction to issue now. Urie Decl. ¶ 6.

Specifically, given the availability of the Guns N' Roses GHLP internationally (but not in North America), were any TRO to issue now, it is likely that the domestic market would be flooded with counterfeit copies and with 'bootleg' imports from overseas in order to meet the demand for the product in North America. Id. ¶ 7. Physical piracy and bootlegging is common where an album is released in one region of the world and not another. Because the album will be readily available internationally, it would be impossible to prevent bootleggers from easily obtaining the CD to make counterfeit copies. Likewise, given the quantity of units available overseas, it would be easy for persons to transship international copies of the record to the United States and Canada in order to meet demand. Id The availability of counterfeit goods damages UMG in an obvious way, although the damage is difficult to quantify; UMG receives no revenue from the sale of counterfeit goods. Id

III. ARGUMENT

A. Plaintiffs Cannot Show A Likelihood Of Success Or Serious Questions On The Merits of Their Claims

To justify a temporary restraining order, Plaintiffs must show either (1) 'a likelihood of success on the merits and the possibility of irreparable injury,' or (2) 'that serious questions going to the merits were raised and the balance of hardships tips sharply in its favor.' Clear Channel Outdoor, Inc. v. City of L.A., 340 F.3d 810, 813 (9th Cir. 2003). Because their claims rest on a faulty factual premise, and lack merit as a matter of law, Plaintiffs cannot show either any likelihood of success or serious questions as to the merits. Further, as Plaintiffs' entire 'showing' of irreparable harm and hardship rests on the mistaken claim that UMG remastered songs on the Guns N' Roses GHLP, they have not demonstrated and harm and the balance of hardships tips entirely toward UMG. Finally, Plaintiffs' inexplicable delay in raising these claims is sufficient alone to warrant denial of the injunction.

1. The Guns N' Roses GHLP Does Not Contain Any Remastered Songs

The merits of all of Plaintiffs' claims rest entirely on the allegation that UMG has 'remastered' or otherwise altered the songs on the Guns N' Roses GHLP. As noted above, Plaintiffs based their erroneous allegation on a single source: a hearsay advertisement from an Internet retailer, unaffiliated with UMG, which appears to mistakenly list the GHLP album as 'remastered.' Plaintiffs do not contend that they have heard, much less examined the GHLP album. In fact, none of the songs on the Guns N' Roses GHLP were remastered, nor were they edited, mixed, remixed or otherwise altered. Levenson Decl. ¶ 3. Nor has UMG made any representations to this effect to anyone. Resnikoff Decl. ¶ 9. Each song was transferred 'as is,' with no additional equalization or other remastering technique applied. Levenson Decl. ¶ 4.[FN4] Accordingly, as the assertion underpinning Plaintiffs' allegations has been wholly disproved, they have made no showing of likely success or serious questions on the merits.

FN4. As Mr. Levenson explains in his declaration, none of the remastering processes mentioned by Plaintiffs' expert, Mr. Asher, were used with respect to the songs on the GHLP. See Levenson Decl. ¶ 5.

2. Plaintiffs Do Not Have Standing To Bring Their Claim of Trademark Infringement

Not only are Plaintiffs' claims without factual support, they lack legal merit as well. For example, Count 1 of Plaintiffs' Complaint for 'Trademark Infringement' fails because Plaintiffs are not the registered owners of the trademarks at issue in this case, and thus do not have standing to bring a claim for infringement. It is elementary that only the trademark 'registrant,' or the registrant's legal representative, predecessors, successors or assigns, may sue for infringement. See 15 U.S.C. §§ 1114(1), 1127; Glow Indus, v. Lopez, 273 F. Supp. 2d 1095, 1106-07 (C.D. Cal. 2003). Plaintiffs' own filings indicate that the GUNS N' ROSES marks are registered to the GUNS N' ROSES Partnership. See Mercuriadis Decl., Ex. 2 at 57, 59 and 61, attached to Pls.' Ex Parte App. The GUNS N' ROSES Partnership is not a party to this litigation. Rather, this action was brought by Plaintiffs in their individual capacities. Accordingly, Plaintiffs lack standing to assert a claim of infringement and cannot, therefore, show any possibility of success on the merits.

3. Plaintiffs' Trademark Claims Would Fail Even If UMG Remastered Songs Because The License Agreement Between The Parties Is Not Limited By Paragraph 10.05 Of The Recording Agreement

Plaintiffs' Application fails for another independent reason. Plaintiffs' assertions that UMG exceeded the scope of the license agreement between the parties is wrong, and would be wrong even if UMG had remastered songs on the album. To the contrary, the license agreement between the parties, contained in Paragraph 9.03 of the Recording Agreement (attached to the Froeling Decl. as Exhibit A) grants UMG broad rights to use the GUNS N' ROSES trademarks at issue in this action ('GNR marks'). The relevant portion of the license agreement states:

Subject to paragraph 10.03, Geffen and any licensee of Geffen shall have the perpetual right, without liability to any Person, and may grant to others the right, to reproduce, print, publish or disseminate in any medium the Album Artwork, your name, the names, portraits, pictures and likenesses of the Artist ... and biographical material concerning them solely for purposes of advertising, promotion and trade in connection with you or Artist, the making and exploitation of Records[FN5] hereunder and general goodwill advertising for Geffen Records.

FN5. The term Records is defined in the Recording Agreement to include all forms of reproductions. Recording Agreement at paragraph 14.01.

Though this provision is expressly subject to paragraph 10.03 (unrelated to the present dispute), it is not, contrary to Plaintiffs' unsupported assertions, subject to or limited by the provisions of paragraph 10.05. Plaintiffs make the inexplicable leap that paragraph 10.05 somehow limits this license agreement. See Pls.' Ex Parte App. at 9 ('The Recording Agreement grants Geffen a license to use GNR's Mark ... However, the license contained in the Recording Agreement does not grant Geffen the right to remaster GNR's tracks ... In fact, the Recording Agreement limits the scope of Geffen's license in paragraph 10.05'). Plaintiffs jump to this conclusion despite the fact that nowhere does paragraph 9.03 purport to be subject to paragraph 10.05 and nowhere does paragraph 10.05 purport to limit paragraph 9.03. Indeed, it is clear from the express language of the license agreement, and admitted by Plaintiffs in their Application, that Geffen has the right to use the GNR marks in connection with the sale, advertisement, promotion and distribution of cassettes, compact discs and other recordings. Pis.' Ex Parte App. at 9. McCarthy makes clear that '[a] trademark licensee's right to use of the mark is defined by the valid terms of the trademark license.' McCarthy on Trademarks and Unfair Competition, § 25.30 (4th ed. 2004).

Because the license agreement is broad and not limited by section 10.05, even had UMG remastered songs on the album (which UMG has not), such remastering would not be a violation of the license agreement and would not support a claim of trademark infringement. As such, the cases and treatise that Plaintiffs cite are inapposite. UMG cannot be infringing the GNR marks because UMG has not engaged in 'sales of goods or services under the mark which are outside the area of consent granted in the license.' Indeed, the sale of the Guns N' Roses GHLP, even with remastered songs, would plainly be within the scope of the license agreement and thus not an infringement of the GNR marks.

If Plaintiffs believed that UMG had violated the provision in paragraph 10.05 that prohibits Geffen from 'edit[ing], mix[ing], remix[ing] or otherwise alter [ing]' the original master, Plaintiffs' redress would be limited to a breach of contract claim based on that provision. Plaintiffs' efforts to transmute this breach of contract claim into a trademark claim cannot be supported by the contract.

4. Plaintiffs' Claim For False Designation of Origin Is Legally Flawed

Likewise, even if Plaintiffs' claim had a factual basis, they still could not prevail on their claim for false designation of origin. See Pls.' Compl. ¶¶ 30-33. Plaintiffs' theory - that it is a false designation of origin for UMG to manufacture and distribute allegedly remastered songs as authored and recorded by the Guns N' Roses band - is clearly precluded by Supreme Court's recent decision in Dastar Corp. v. Twentieth Century Fox Films, 539 U.S. 23, 123 S. Ct. 2041 (2003). In Dastar, a unanimous Court concluded that, 'as used in the Lanham Act, the phrase '˜origin of goods' is ... incapable of connoting the person or entity that originated the ideas or communications that '˜goods' embody or contain.' 123 S. Ct. at 2047. Rather, 'the phrase refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods.' 123 S. Ct. at 2049; accord Williams v. UMG Recordings, 281 F. Supp. 2d 1177, 1181-86 (CD. Cal. 2003). Indeed, after Dastar, certain cases cited by Plaintiffs are no longer good law. See, e.g. Pls.' Ex Parte App. at 11 (citing Benson v. Paul Winley Record Sales Corp., 452 F. Supp 516, 518 (S.D.N.Y. 1978)). Because UMG is correctly identified as the source of the tangible goods offered for sale (i.e., the GHLP album), Plaintiffs' claim necessarily fails.

5. Plaintiffs' Breach Of Contract Claim Fails Because They Have Not (And Cannot) Show That UMG Has Willfully Breached Paragraph 10.05

As discussed above in great detail, Plaintiffs cannot show that UMG violated paragraph 10.05 of the Recording Agreement because it is undisputed that UMG did not 'edit, mix, remix or otherwise alter' the master recordings delivered by Plaintiffs. However, even had UMG remastered the songs in some way, paragraph 10.05 requires more than just showing that UMG somehow altered the master recordings - paragraph 10.05(b) specifically states that '[a]n inadvertent failure by Geffen to comply with the provisions of this paragraph 10.05 shall not be deemed a breach of this agreement.' Therefore, even if Plaintiffs could show that UMG somehow violated the terms of 10.05 (which they cannot because UMG did not remaster the songs in any way), Plaintiffs would still be required to show that any such violation was intentional and not merely inadvertent.[FN6] Such a showing has not and cannot be made.

FN6. In addition, Plaintiffs are required under paragraph 16.06 of the Recording Agreement to give notice of, and an opportunity to remedy, any alleged breach before an action may be brought. Indeed, had Plaintiffs given the required notice, they would have been informed that the GHLP does not, in fact, contain any remastered songs, thus avoiding this unnecessary suit and emergency application.

B. Plaintiffs Cannot Show A Likelihood Of Irreparable Harm

As explained above, Plaintiffs premise their application for provisional relief on the erroneous claim that the songs appearing on the GHLP have been remastered. Indeed, all of the harm alleged by Plaintiffs is based upon this incorrect belief. See, e.g. Plaintiffs' Ex Parte App. at 15 ('Specifically, the sale, distribution, advertising, marketing and promotion of the planned compilation will cause irreparable damage to the goodwill inherent in the Mark by causing consumers to believe mistakenly that the remastered recordings have been authorized, approved or sponsored by [GUNS N' ROSES] ...') (emphasis added). Simply put, because the songs have in fact not been remastered, Plaintiffs will suffer none of the alleged harm.

Further, Plaintiffs' attempted reliance on the presumption of irreparable injury that is recognized in certain trademark cases is misplaced here. Claims of trademark infringement are presumed to involve irreparable injury only where the plaintiffs first establish a likelihood of confusion. International Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 827 (9th Cir. 1993); Vision Sports, Inc. v. Melville Corp., 888 F.2d 609, 612 n.3 (9th Cir. 1989). Plaintiffs contend that consumers will be confused 'if [UMG] is permitted to use [certain GUNS N' ROSES trademarks] outside the scope of the license in connection with a compilation containing tracks remastered without approval of, or any input by, the band.' Pls.' Ex Parte App. at 10 (emphasis added). Under Plaintiffs' own terms, there is no likelihood of confusion because none of the tracks appearing on the GHLP have been remastered. See supra Sec. II(B). Accordingly, Plaintiffs cannot rely on any presumption of irreparable harm here.[FN7]

FN7. Likewise, Plaintiffs' contract claim cannot justify equitable relief. Plaintiffs' Application states that a temporary restraining order is necessary to enjoin a breach of the Recording Agreement that will obtain by way of '[UMG's] threatened release of a Greatest Hits compilation containing remastered versions of well known [Guns N' Roses] recordings ...' Pls.' Ex Parte App. at 14 (emphasis added). Because the GHLP does not contain remastered songs, no such injury will obtain and thus emergency relief is not warranted.

C. The Balance of Hardships Tips Entirely In Favor Of Defendant

Even if Plaintiffs could demonstrate a possibility of success on the merits - which they cannot - the Court would still be required to consider the hardship Defendant would suffer and weigh it against Plaintiffs' threatened injury. Armstrong v. Mazurek, 94 F.3d 566, 568 (9th Cir. 1996); Southwest Voter Registration Educ. Project v. Shelley. 278 F. Supp. 2d 1131, 1143 (C.D. Cal.), aff'd en bane, 344 F.3d 914 (9th Cir. 2003). Because Plaintiffs will suffer no injury if the TRO is denied, and because UMG would suffer enormous hardship if it were granted, the TRO should not issue.

The GHLP has already been released internationally, and is scheduled for release in the U.S. and Canada on March 23. More than 500,000 albums have shipped to international retailers, while more than 260,000 albums had been shipped domestically as of March 12. As a result, it would be impossible in many cases to prevent release of the Album at this late date. Indeed, 'harm that has already occurred .... [is] not appropriately remedied by injunction.' In re Sanford's, Inc., 1991 U.S. Dist. LEXIS 884, at *2 (D. Or. 1991).

Further, a restraining order at this late date would cause severe irreparable harm to UMG, including disruption of its carefully planned marketing campaign, loss of consumer goodwill, and damage to UMG's relationships and credibility with retailers. UMG, together with its international affiliates, have incurred over $3.5 million in marketing, production and distribution expenses in connection with the scheduled release. Were UMG prohibited from further distribution of the album, much of that investment would be lost. In addition to lost revenue and profits expected from sale of the album, UMG's economic losses could very well exceed several million dollars in the United States alone and an additional several million dollars internationally

Aside from monetary loss, provisional relief will cause UMG to suffer significant harm to its credibility and goodwill with customers and retailers that is also detailed above. UMG has also undertaken a large domestic and international marketing campaign in anticipation of the scheduled release dates, including television, radio, print and advertising in cooperation with retailers. Because of the significant lead time required for these matching efforts, there is simply no way to change or cancel these promotional activities. UMG's marketing efforts will have been vitiated and retailers' and consumers' expectations will be disrupted.[FN8] In short, if the albums are not available as of the promised dates, UMG's goodwill with retailers and customers will be damaged. Accordingly, because the balance of hardships tips entirely against granting provisional relief, Plaintiffs' Application should be denied.

FN8. In addition, as noted above, significant counterfeiting problems would likely be occasioned by trie issuance of a TRO.

D. Plaintiffs' Delay In Seeking Provisional Relief Is Cause Itself For Denial Of Their Application

The evidence submitted by UMG establishes, beyond dispute, that Plaintiffs have known for almost all of two months that the Guns N' Roses GHLP would be released for sale internationally and domestically on March 15 and March 23, 2004, respectively. See supra at II(B).[FN9] Yet, they waited until the last business day before filing a lawsuit and seeking provisional relief. For several reasons, this delay alone is fatal for to their Application.

FN9. To summarize the evidence, Plaintiff Rose was originally informed by letter dated August 6, 2003 that UMG intended to release the Guns N' Roses GHLP, and of the specific tracks to be included on that album and their sequence. Froeling Decl. ¶ 3; Ex. B; Marenberg Decl. ¶ 2. Mr. Rose was informed in writing of the March 15 and March 23 release dates by letter dated January 22, 2004. Froeling Decl. ¶ 6, Ex. F; Marenberg Decl. ¶ 2, Ex. A. The January 22 letter also advised Mr. Rose that the previously approved track listing and sequence had not changed. Froeling Decl. ¶ 6, Ex. F. The release dates were again confirmed in a subsequent letter to Mr. Rose dated February 2, 2004. Marenberg Decl. ¶ 3, Ex. B.

First, it is well-settled that delay in seeking provisional relief belies a claim of irreparable harm. ''˜Plaintiff's long delay before seeking a preliminary injunction implies a lack of urgency and irreparable harm.' ' Miller v. California Pac. Med. Or., 991 F.2d 536, 544 (9th Cir. 1993) (quoting Oakland Tribune, Inc. v. Chronicle Pub. Co., 762 F.2d 1374, 1377 (9th Cir. 1985)). Indeed, '[t]he district court may legitimately think it suspicious that the party who asks to preserve the status quo through interim relief has allowed the status quo to change through unexplained delay.' Id at 544 (quoting Kobell v. Suburban Lines, Inc., 731 F.2d 1076, 1092 n.27 (3d Cir. 1984)). Here too, Plaintiffs' unexplained delay in petitioning the Court for this extraordinary remedy 'is powerful evidence that [the plaintiff] is not suffering irreparable harm,' and 'may be taken as an indication that the harm would not be serious enough to justify a preliminary injunction.' Ali v. United States, 932 F. Supp. 1206, 1209-10 (N.D. Cal. 1996).

Second, by waiting until the eve of the GHLP's release to file this Application, Plaintiffs have foreclosed themselves from seeking provisional relief. Courts do not issue TROs for harm that has already occurred. In re Sanford's, Inc., 1991 U.S. Dist. LEXIS 884, at *2. The GHLP has been available in international markets for most of this day. Plaintiffs' delay in bringing this Application has placed them in the position of asking the Court to 'unring the bell' of their alleged (and non-existent) irreparable harm. In addition, Plaintiffs' delay has exacerbated the harm and hardship suffered by UMG if a TRO were to be issued.

Third, by filing their Ex Parte Application at the last possible moment, Plaintiffs are misusing the ex parte process. In Mission Power Engineering Co. v. Continental Casualty Co., 883 F. Supp. 488 (C.D. Cal. 1995) (cited with approval in this Court's Procedures and Schedules webpage), in describing the 'showing necessary to justify ex parte relief,' the Court stated:

'Second, it must be established that the moving party is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect.'

Id. 883 F. Supp. at 492. Plaintiffs cannot make that showing here. Given the substantial advance notice provided by UMG of the GHLP's release dates, Plaintiffs had ample time - several weeks - to bring this matter on a noticed motion basis. Instead, they dawdled and created the crisis of which they now complain. In short, their Application is an abuse of the ex parte process. In addition to all the other grounds on which the Application should be denied, it can and should be denied on this basis alone.

IV. CONCLUSION
For the foregoing reasons, Defendant respectfully submits that Plaintiffs' application for a temporary restraining order should be denied.

The Most Expensive Album Never Made
By JEFF LEEDS
Published: March 6, 2005

WEST HOLLYWOOD, Calif.

In the faint red light of the Rainbow Bar and Grill, Tom Zutaut sips at his drink and spills a bit of regret. It's been 19 years since he signed the then-unknown rock band Guns N' Roses to a contract with Geffen Records, where they turned into multiplatinum superstars. Back in those days, the Rainbow was their hangout of choice.

Years after he left the label, he returned in 2001 to try to coax Axl Rose, the band's magnetic leader and by then its only original member, into completing one of the most highly anticipated albums in the industry: an opus tentatively titled "Chinese Democacy." The deadline for turning in the album had passed two years earlier.

"I really thought I could get him to deliver the record," said Mr. Zutaut, who spent nine months trying. "And we got close."

He is speaking in relative terms. Mr. Zutaut is but one of a long series of executives and producers brought in over the years to try to conjure up the maddeningly elusive album - to cajole the reclusive rock star into composing, singing, recording, even just showing up. Like everyone else who had tried, or has tried since, Mr. Zutaut came away empty-handed.

Mr. Rose began work on the album in 1994, recording in fits and starts with an ever-changing roster of musicians, marching through at least three recording studios, four producers and a decade of music business turmoil. The singer, whose management said he could not be reached for comment for this article, went through turmoil of his own during that period, battling lawsuits and personal demons, retreating from the limelight only to be followed by gossip about his rumored interest in plastic surgery and "past-life regression" therapy.

Along the way, he has racked up more than $13 million in production costs, according to Geffen documents, ranking his unfinished masterpiece as probably the most expensive recording never released. As the production has dragged on, it has revealed one of the music industry's basic weaknesses: the more record companies rely on proven stars like Mr. Rose, the less it can control them.

It's a story that applies to the creation of almost every major album. But in the case of "Chinese Democracy," it has a stark ending: the singer who cast himself as a master of predatory Hollywood in the hit song "Welcome to the Jungle" has come to be known instead as the keeper of the industry's most notorious white elephant.

AT THE STROKE of midnight on Sept. 17, 1991, Guns N' Roses was the biggest band in the world. Hundreds of record stores had stayed open late or re-opened in order to cash in on the first sales that night of "Use Your Illusion," Vols. 1 and 2, the band's new twin albums. On the strength of that promotion - and the coattails of the band's blockbuster 1987 debut - the band set a record: for the first time in rock history, two albums from one act opened at Nos. 1 and 2 on Billboards national album sales chart. But by 1994 their fortunes had changed. After years of drug addiction, lyric controversies, onstage tantrums and occasional fan riots, their members had started to drift away, their lead singer had become bogged down in personal lawsuits, and "The Spaghetti Incident?," their collection of cover versions of classic punk songs, had been released to mixed reviews and disappointing sales.

The members of the band - what was left of it - reconvened at the Complex, a Los Angeles studio, in a massive soundstage with a pool table and a Guns N' Roses-themed pinball machine, to prepare for their next album, which Geffen executives expected to release some time the following year. But they quickly began suffering from an ailment that has proved fatal to bands from time immemorial: boredom.

"They had enough money that they didn't have to do anything," said a longtime observer of the band, one of the 30 people involved with the album who spoke for this article. He spoke on the condition of anonymity, as did many others who had signed a confidentiality agreement while working with Mr. Rose. "You couldn't get everyone in the room at the same time."

Mr. Rose had appointed himself the leader of the project, but he didn't seem to know where to lead. As Slash, the band's longtime guitarist, said recently, in reference to the singer's songwriting style: "It seemed like a dictatorship. We didn't spend a lot of time collaborating. He'd sit back in the chair, watching. There'd be a riff here, a riff there. But I didn't know where it was going."

Geffen was riding toward an uncertain destiny as well: its founder, David Geffen, retired, and its corporate parent, MCA Inc., was sold to the liquor giant Seagram, led by Edgar Bronfman Jr. With all those changes swirling, and with old Guns N' Roses material still ringing up millions in new sales, executives decided to leave the band alone to write and record.

A cover of the Rolling Stones' "Sympathy for the Devil," however, which was released as part of a movie soundtrack, would be the last addition to the original band's catalog. Slash quit the band in 1996; the drummer Matt Sorum and the bassist Duff McKagan were the next to go. Of the founding members, that left just Mr. Rose. But instead of starting something new, he chose to keep the band's name and repopulate it with new musicians. Geffen wasn't in much of a position to deny him. The label was on a cold streak and wagered that fans would still flock to the singer, even if a band had to be rebuilt around him.

Geffen wasn't in much of a position to prod him forward, either. In 1997 Todd Sullivan, who was then a talent executive for the company, sent Mr. Rose a sampling of CD's produced by different people, and encouraged him to choose one to work on "Chinese Democracy." Mr. Sullivan says he received a call informing him that Mr. Rose had run over the albums with a car.

The singer had encouraged everyone in the band's camp to record their ideas for riffs and jams, hours and hours of song fragments that he hoped to process into full compositions. "Most of the stuff he had played me was just sketches," Mr. Sullivan recalled. "I said, 'Look, Axl, this is some really great, promising stuff here. Why don't you consider just bearing down and completing some of these songs?' He goes, 'Hmm, bear down and complete some of these songs?' Next day I get a call from Eddie" - Eddie Rosenblatt, the Geffen chairman - "saying I was off the project."

Around the start of 1998 Mr. Rose moved the band that he had assembled to Rumbo Recorders, a three-room studio deep in the San Fernando Valley where Guns N' Roses had recorded parts for its blockbuster debut, "Appetite for Destruction." The crew turned the studio into a rock star's playground: tapestries, green and yellow lights, state-of-the-art computer equipment and as many as 60 guitars at the ready, according to people involved in the production. But Mr. Rose wasn't there for fun and games. "What Axl wanted to do," one recording expert who was there recalls, "was to make the best record that had ever been made. It's an impossible task. You could go on infinitely, which is what they've done."

As time and dollars flew by, pressure mounted at Geffen. The label's dry spell lingered, making them more dependent than ever on new music from their heavy hitters. "The Hail Mary that's going to save the game," the recording expert who spoke on the condition of anonymity explained, "is a Guns N' Roses record. It keeps not coming and not coming." The label paid Mr. Rose $1 million to press on with the album, with the unusual promise of another $1 million if he delivered "Chinese Democracy" by March 1 of the following year. Geffen also offered one of the producers Mr. Rose had recently hired extra royalties if the recording came in before that.

He never collected. The producer, who goes by the name Youth (his real name is Martin Glover), started visiting the singer in the pool room of his secluded Malibu estate, to try to help him focus on composing. But that collaboration didn't go any better than his predecessors' had. "He kind of pulled out, said 'I'm not ready,' " Youth said. "He was quite isolated. There weren't very many people I think he could trust. It was very difficult to penetrate the walls he'd built up."

Youth's replacement was Sean Beavan - a producer who had previously worked with industrial-rock acts like Marilyn Manson and Nine Inch Nails - and under his care the riffs and song fragments that the band had recorded slowly began to take shape. But costs were spiraling out of control. The crew rented one piece of specialized equipment, for example, for more than two years - at a cost well into six figures - and used it for perhaps 30 days, according to one person involved with the production.

Mr. Rose appeared sporadically, some weeks just one or two days, some weeks not at all. "It was unorganized chaos," the same person said. "There was never a system to this. And in between, there were always parties to go to, different computers Axl was trying out or buying. There were times when we didn't record things for weeks."

So the studio technicians burned as many as five CD's per week with various mixes of different songs, which were driven to Malibu for Mr. Rose to study. The band's archive of recorded material swelled to include more than 1,000 digital audio tapes and other media, according to people who were there at the time, all elaborately labeled to chart the progress of songs. "It was like the Library of Congress in there," said one production expert who spent time on the album there.

By one count, the band kept roughly 20 songs it considered on the A list and another 40 or so in various stages of completion on the B list.

All that material, however, didn't do much to reassure the band's label. "In 1998 and 1999 you start getting a little bit nervous," Mr. Rosenblatt, the executive who led the outfit after David Geffen's departure, said delicately. "Edgar Bronfman picks up the phone more than once. He wanted to know what was going on. You unfortunately have got to give him the answer, you don't know. Because you don't." To take the pressure off, Mr. Rose's manager at the time presented the idea of releasing a live album from the original band, which. Mr. Rose's crew began to assemble.

In January 1999 Seagram orchestrated a massive restructuring of its music division, firing 110 Geffen employees, including Mr. Rosenblatt, and folding the unit into the corporation's bigger Interscope Records division. The unfinished album was placed in the hands of Interscope's chairman, Jimmy Iovine. Mr. Iovine declined to comment for this article.

Mr. Rose was said to be crushed by the departure of his Geffen contacts - just as "White Trash Wins Lotto," a musical satire that sent the singer up as a star-eyed hayseed forced to learn the harsh lessons of the music industry, was developing a cult following in Los Angeles. When he missed his March deadline, however, he set a pattern that would repeat itself for years to come: a flurry of energetic activity, followed by creative chaos and a withdrawal from the studio.

That June he allowed a version of the old Guns N' Roses hit "Sweet Child O' Mine" that begins with the original band playing but almost seamlessly shifts into the new band to appear on the soundtrack of the film "Big Daddy." Later that summer he agreed to release his first original song in eight years, the industrial-flavored "Oh My God," for another soundtrack and introduced it in a commercial on MTV. (Mr. Rose fussed over the song so much that he, Mr. Iovine and studio technicians stayed up until nearly dawn adjusting the final mix, according to people involved.) News of its release stoked speculation that an album might follow. But it was panned by many critics and quickly forgotten.

In late 1999 he invited Rolling Stone to preview about a dozen tracks. The magazine reported the album appeared "loosely scheduled" for release in the summer of 2000. In fact, Mr. Rose's visits to the studio had become so irregular, according to several executives and musicians involved with the band, that an engineer working with him, Billy Howerdel, and the band's drummer, Josh Freese, found time during that period to start their own project, the band A Perfect Circle, and to begin recording an album, "Mer de Noms," which went on to sell 1.7 million copies.

Label executives still clung to the idea that if they could just bring in the right producer, he could find a way to finish the album and finally bring a return on their ever-growing investment. They summoned Roy Thomas Baker, famed for his work with the art-rock band Queen. (Mr. Beavan, who was said to have tired of the project, soon bowed out.) But instead of wrapping things up, Mr. Baker decided that much of what the band had needed to be re-recorded - and painstakingly so, as he sometimes spent as long as eight hours on a few bars of music.

The process was drawn out even further after Mr. Rose hired two new musicians - the guitarist Buckethead, a virtuoso who wore a mannequin-like face mask and a KFC bucket on his head, and the drummer Brian "Brain" Mantia - whom the singer directed to re-record all the music that their predecessors had spent months performing.

Still, Mr. Rose seemed to be emerging from his sullen shell. In mid-2000, for what was thought to be the first time since the "Illusions" tour ended in 1993, he performed in public, with the Thursday night bar band at the Cat Club on the Sunset Strip. "He was psyched," recalled one person who worked with the band at Rumbo. "It seemed like it boosted him again, people still want to hear him."

At about 4 a.m on New Year's Day 2001, at the House of Blues in Las Vegas, he and the new lineup of the band finally unveiled some of their new material. "I have traversed a treacherous sea of horrors to be with you here tonight," Mr. Rose told the crowd, which received him with roars of approval. Warm reviews followed. Making the most of the moment, he took his band on the road, going to Brazil to play in the Rock in Rio festival.

With the band's return, Mr. Rose's machinery cranked up again. One internal cost analysis from the period pegs the operation's monthly tab at a staggering $244,000. It included more than $50,000 in studio time at the Village, a more modern studio where Mr. Baker had moved the band. It also included a combined payroll for seven band members that exceeded $62,000, with the star players earning roughly $11,000 each. Guitar technicians earned about $6,000 per month, while the album's main engineer was paid $14,000 per month and a recording software engineer was paid $25,000 a month, the document stated.

Label executives were losing patience. Interscope turned to Mr. Zutaut, the original band's talent scout. Could an old friend succeed where so many others had failed? He was offered a roughly 30 percent bonus, he said, if he could usher the project to completion within a year.

But Mr. Rose's renewed energies were not being directed toward the finish line. He had the crew send him CD's almost daily, sometimes with 16 or more takes of a musician performing his part of a single song. He accompanied Buckethead on a jaunt to Disneyland when the guitarist was drifting toward quitting, several people involved recalled; then Buckethead announced he would be more comfortable working inside a chicken coop, so one was built for him in the studio, from wood planks and chicken wire.

Mr. Rose was far less indulgent of his producers and label. Around Christmas, he ousted both Mr. Baker and Mr. Zutaut (who said there had been a miscommunication). It would be weeks before the singer would even allow an Interscope executive to visit him in the studio, according to people involved with the production. Interscope dispatched a senior talent executive, Mark Williams, to oversee the project. Mr. Williams declined to comment for this article.

If Mr. Rose appeared more remote, his vision of the project became more grandiose, people involved with the band said. He directed that music produced by Mr. Baker be redone again, those people said. He now spoke of releasing not merely one album but a trilogy. And he planned one very big surprise.

At MTV's annual awards show in 2002, publicists buzzed through the audience whispering about a big finale. And with just minutes to go in the broadcast, a screen lifted away to reveal the band and Mr. Rose, in cornrows and a sports jersey, looking strikingly young. The musicians burst into "Welcome to the Jungle," one of the original band's biggest hits, and the crowd went wild. But on television Mr. Rose quickly seemed out of breath and out of tune. He ended the performance, which included the new song "Madagascar" and the original band's hit "Paradise City" in a messianic stance, raising his arms and closing his eyes. He left the audience with a cryptic but tantalizing message: "Round one."

Round two never came. The band went on a successful tour, but in the hours after their triumphant Madison Square Garden appearance, Mr. Rose was reportedly refused entry to the Manhattan nightclub Spa because he was wearing fur, which the club does not allow. That killed the mood. He didn't show up for the band's next performance, and the promoter canceled the rest of the tour.

Months dragged on as the band waited for Mr. Rose to record more vocals. In August 2003 when label executives announced their intention to release a Guns N' Roses greatest-hits CD for the holidays, the band's representatives managed to hold them off with yet another promise to deliver "Chinese Democracy" by the end of the year. But the album, of course, did not materialize. And then the game was over.

"HAVING EXCEEDED ALL budgeted and approved recording costs by millions of dollars," the label wrote in a letter dated Feb. 2 , 2004, "it is Mr. Rose's obligation to fund and complete the album, not Geffen's." The tab at Village studio was closed out, and Mr. Rose tried a brief stint recording at the label's in-house studio before that too was ended. The band's computer gear, guitars and keyboards were packed away. Over a legal challenge by Mr. Rose, the label issued a greatest-hits compilation, in search of even a modest return on their eight-figure investment.

Released in March of 2004, it turned out to be a surprisingly strong seller, racking up sales of more than 1.8 million copies even without any new music or promotional efforts by the original band. The original band's debut, "Appetite for Destruction," which has sold 15 million copies, remains popular and racked up sales of another 192,000 copies last year, according to Nielsen SoundScan. It is a sign that Mr. Rose's audience still waits.

Mr. Rose is reportedly working on the album even now in a San Fernando Valley studio. "The 'Chinese Democracy' album is very close to being completed," Merck Mercuriadis, the chief executive officer of Sanctuary Group, which manages Mr. Rose, wrote in a recent statement. He added that other artists including Peter Gabriel and Stevie Wonder "have throughout their careers consistently taken similar periods of time without undeserved scrutiny as the world respects that this is what it can sometimes take to make great art." There's certainly more than enough material; as Mr. Zutaut says, even years ago "people felt like the record had been made four or five times already." But of course, rumors of the album's imminent release have circulated since almost the very beginning of the tale, more than a decade ago.

And at the center of that tale, now as then, is the confounding figure of Axl Rose himself. A magnetic talent, a moody unpredictable artist, a man of enormous ideas and confused follow-through, he has proven himself to be an uncontrollable variable in any business plan.

His involvement on "Chinese Democracy" has outlasted countless executives, producers and fellow musicians - even the corporate structure that first brought the band to worldwide celebrity. Even, in fact, the recognizable configuration of the recording industry as a whole, which since the band first went into the studio in 1994 has consolidated to four major corporations from six, and staggered amid an epidemic of piracy, leaving it more focused than ever on the bottom line, and on reliable musicians with a proven track record of consistent performance. The sort of rock stars that the original members of Guns N' Roses, who recently submitted a claim seeking $6 million in what were called unpaid royalties from its catalog, used to be. But which Mr. Rose, with his mood swings, erratic work habits and long dark stretches, no longer is.

He hasn't disappeared entirely. His voice can be heard on the latest edition in the "Grand Theft Auto" video game series, in the character of a grizzled 70's-style rock D.J. "Remember," he advises the radio station's audience, "we're not outdated and neither is our music."

Interscope has taken "Chinese Democracy" off its schedule. Mr. Rose hasn't been seen there since last year, when he was spotted leaving the parking area beneath Interscope's offices, where witnesses reported that a small traffic jam had congealed when attendants halted other cars to clear a path for his silver Ferrari. Mr. Rose punched the gas and cruised into the day.