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OPTIONAL (Spring 2013)
  • 1 Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F.Supp. 177 (S.D.N.Y. 1976) (Excerpts)

    1

    420 F. Supp. 177

    BRIGHT TUNES MUSIC CORP., Plaintiff,
    v.
    HARRISONGS MUSIC, LTD., et al., Defendants.

    No. 71 Civ. 602.

    United States District Court, S. D. New York.

    August 31, 1976.

    As Amended September 1, 1976.

    [420 F. Supp. 178] Pryor, Cashman & Sherman, by Gideon Cashman, James A. Janowitz, New York City, for plaintiff.

    2

    Hardee, Barovick, Konecky & Braun, by Joseph J. Santora, Robert B. McKay, Michael Perlstein, New York City, for defendants Harrisongs Music, Ltd., George Harrison, Apple Records, Inc. and Apple Records, Ltd.

    3

    Leibman & Schreier, by Leonard S. Leibman, New York City, for defendant Broadcast Music, Inc.

    4

    Netter, Dowd, Ness, Alfieri & Stern, by Edward Berman, New York City, for defendant Hansen Publications, Inc.

    5
    OPINION AND ORDER
    6

    OWEN, District Judge.

    7

    This is an action in which it is claimed that a successful song, My Sweet Lord, listing George Harrison as the composer, is plagiarized from an earlier successful song, He's So Fine, composed by Ronald Mack, recorded by a singing group called the "Chiffons," the copyright of which is owned by plaintiff, Bright Tunes Music Corp.

    8

    He's So Fine, recorded in 1962, is a catchy tune consisting essentially of four repetitions of a very short basic musical phrase, "sol-mi-re," (hereinafter motif A),[1] altered as necessary to fit the words, followed by four repetitions of another short basic musical phrase, "sol-la-do-la-do," (hereinafter motif B).[2] While neither motif is novel, the four repetitions of A, followed by four repetitions of B, is a highly unique pattern.[3] In addition, in the second use of the motif B series, there is a grace note inserted making the phrase go "sol-la-do-la-re-do."[4]

    9

    My Sweet Lord, recorded first in 1970, also uses the same motif A (modified to suit the words) four times, followed by motif B, repeated three times, not four. In place of He's So Fine's fourth repetition of motif B, My Sweet Lord has a transitional passage of musical attractiveness of the same approximate length, with the identical grace note in the identical second repetition.[5] The harmonies of both songs are identical.[6]

    10

    [420 F. Supp. 179] George Harrison, a former member of The Beatles, was aware of He's So Fine. In the United States, it was No. 1 on the billboard charts for five weeks; in England, Harrison's home country, it was No. 12 on the charts on June 1, 1963, a date upon which one of the Beatle songs was, in fact, in first position. For seven weeks in 1963, He's So Fine was one of the top hits in England.

    11

    According to Harrison, the circumstances of the composition of My Sweet Lord were as follows. Harrison and his group, which include an American black gospel singer named Billy Preston,[7] were in Copenhagen, Denmark, on a singing engagement. There was a press conference involving the group going on backstage. Harrison slipped away from the press conference and went to a room upstairs and began "vamping" some guitar chords, fitting on to the chords he was playing the words, "Hallelujah" and "Hare Krishna" in various ways.[8]During the course of this vamping, he was alternating between what musicians call a Minor II chord and a Major V chord.

    12

    At some point, germinating started and he went down to meet with others of the group, asking them to listen, which they did, and everyone began to join in, taking first "Hallelujah" and then "Hare Krishna" and putting them into four part harmony. Harrison obviously started using the "Hallelujah," etc., as repeated sounds, and from there developed the lyrics, to wit, "My Sweet Lord," "Dear, Dear Lord," etc. In any event, from this very free-flowing exchange of ideas, with Harrison playing his two chords and everybody singing "Hallelujah" and "Hare Krishna," there began to emerge the My Sweet Lord text idea, which Harrison sought to develop a little bit further during the following week as he was playing it on his guitar. Thus developed motif A and its words interspersed with "Hallelujah" and "Hare Krishna."

    13

    Approximately one week after the idea first began to germinate, the entire group flew back to London because they had earlier booked time to go to a recording studio with Billy Preston to make an album. In the studio, Preston was the principal musician. Harrison did not play in the session. He had given Preston his basic motif A with the idea that it be turned into a song, and was back and forth from the studio to the engineer's recording booth, supervising the recording "takes." Under circumstances that Harrison was utterly unable to recall, while everybody was working toward a finished song, in the recording studio, somehow or other the essential three notes of motif A reached polished form.

    14

    "Q. By the Court: . . . you feel that those three notes . . . the motif A in the record, those three notes developed somewhere in that recording session?

    "Mr. Harrison: I'd say those three there were finalized as beginning there."

    * * * * * *

    "Q. By the Court: Is it possible that Billy Preston hit on those notes comprising motif A?

    "Mr. Harrison: Yes, but it's possible also that I hit on that, too, as far back as the dressing room, just scat singing."

    15

    Similarly, it appears that motif B emerged in some fashion at the recording session as did motif A. This is also true of the unique grace note in the second repetition of motif B.

    16

    "Q. By the Court: All I am trying to get at, Mr. Harrison, is if you have a recollection when that grace note popped into existence as it [420 F. Supp. 180] ends up in the Billy Preston recording.

    * * * * * *

    "Mr. Harrison: . . . Billy Preston might have put that there on every take, but it just might have been on one take, or he might have varied it on different takes at different places."

    17

    The Billy Preston recording, listing George Harrison as the composer, was thereafter issued by Apple Records. The music was then reduced to paper by someone who prepared a "lead sheet" containing the melody, the words and the harmony for the United States copyright application.[9]

    18

    Seeking the wellsprings of musical composition —why a composer chooses the succession of notes and the harmonies he does—whether it be George Harrison or Richard Wagner—is a fascinating inquiry. It is apparent from the extensive colloquy between the Court and Harrison covering forty pages in the transcript that neither Harrison nor Preston were conscious of the fact that they were utilizing the He's So Fine theme.[10] However, they in fact were, for it is perfectly obvious to the listener that in musical terms, the two songs are virtually identical except for one phrase. There is motif A used four times, followed by motif B, four times in one case, and three times in the other, with the same grace note in the second repetition of motif B.[11]

    19

    What happened? I conclude that the composer,[12] in seeking musical materials to clothe his thoughts, was working with various possibilities. As he tried this possibility and that, there came to the surface of his mind a particular combination that pleased him as being one he felt would be appealing to a prospective listener; in other words, that this combination of sounds would work. Why? Because his subconscious knew it already had worked in a song his conscious mind did not remember. Having arrived at this pleasing combination of sounds, the recording was made, the lead sheet prepared for copyright and the song became an enormous success. Did Harrison deliberately use the music of He's So Fine? I do not believe he did so deliberately. Nevertheless, it is clear that My Sweet [420 F. Supp. 181] Lord is the very same song as He's So Fine with different words,[13] and Harrison had access to He's So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished. Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936); Northern Music Corp. v. Pacemaker Music Co., Inc., 147 U.S.P.Q. 358, 359 (S.D.N.Y. 1965).

    20

    Given the foregoing, I find for the plaintiff on the issue of plagiarism, and set the action down for trial on November 8, 1976 on the issue of damages and other relief as to which the plaintiff may be entitled. The foregoing constitutes the Court's findings of fact and conclusions of law.

    21

    So Ordered.

    22

    [1] [Image]

    23

    [2] [Image]

    24

    [3] All the experts agreed on this.

    25

    [4] [Image]

    26

    [5] This grace note, as will be seen infra, has a substantial significance in assessing the claims of the parties hereto.

    27

    [6] Expert witnesses for the defendants asserted crucial differences in the two songs. These claimed differences essentially stem, however, from the fact that different words and number of syllables were involved. This necessitated modest alterations in the repetitions or the places of beginning of a phrase, which, however, has nothing to do whatsoever with the essential musical kernel that is involved.

    28

    [7] Preston recorded the first Harrison copyrighted recording of My Sweet Lord, of which more infra, and from his musical background was necessarily equally aware of He's So Fine.

    29

    [8] These words ended up being a "responsive" interjection between the eventually copyrighted words of My Sweet Lord. In He's So Fine the Chiffons used the sound "dulang" in the same places to fill in and give rhythmic impetus to what would otherwise be somewhat dead spots in the music.

    30

    [9] It is of interest, but not of legal significance, in my opinion, that when Harrison later recorded the song himself, he chose to omit the little grace note, not only in his musical recording but in the printed sheet music that was issued following that particular recording. The genesis of the song remains the same, however modestly Harrison may have later altered it. Harrison, it should be noted, regards his song as that which he sings at the particular moment he is singing it and not something that is written on a piece of paper.

    31

    [10] Preston may well have been the "composer" of motif B and the telltale grace note appearing in the second use of the motif during the recording session, for Harrison testified:

    32

    "The Court: To be as careful as I can now in summing this up, you can't really say that you or Billy Preston or somebody else didn't somewhere along the line suggest these; all you know is that when Billy Preston sang them that way at the recording session, you felt they were a successful way to sing this, and you kept it?

    "The Witness: Yes, I mean at that time we chose what is a good performance.

    "The Court: And you felt it was a worthy piece of music?

    "The Witness: Yes . . .."

    33

    [11] Even Harrison's own expert witness, Harold Barlow, long in the field, acknowledged that although the two motifs were in the public domain, their use here was so unusual that he, in all his experience, had never come across this unique sequential use of these materials. He testified:

    34

    "The Court: And I think you agree with me in this, that we are talking about a basic three-note structure that composers can vary in modest ways, but we are still talking about the same heart, the same essence?

    "The Witness: Yes.

    "The Court: So you say that you have not seen anywhere four A's followed by three B's or four?

    "The Witness: Or four A's followed by four B's."

    The uniqueness is even greater when one considers the identical grace note in the identical place in each song.

    35

    [12] I treat Harrison as the composer, although it appears that Billy Preston may have been the composer as to part. (See fn. 10 supra). Even were Preston the composer as to part, this is immaterial. Peter Pan Fabrics, Inc. v. Dan River Mills, Inc., 295 F.Supp. 1366, 1369 (S.D. N.Y.), aff'd, 415 F.2d 1007 (2d Cir. 1969).

    36

    [13] Harrison himself acknowledged on the stand that the two songs were substantially similar. This same conclusion was obviously reached by a recording group called the "Belmonts" who recorded My Sweet Lord at a later time. With "tongue in cheek" they used the words from both He's So Fine and My Sweet Lord interchangeably at certain points.

  • 2 Jorgensen v. Epic / Sony Records, 351 F.3d 46 (2d Cir. 2003) (Excerpts)

    1

    351 F.3d 46

    2
    John L. JORGENSEN, Plaintiff-Appellant,
    v.
    EPIC/SONY RECORDS, Famous Music Corporation, Fox Film Music Corporation, Careers BMG Music Publishing, Blue Sky Rider Songs, Warner-Tamerlane Publishing Corporation, Songs of Nashville Dreamworks, Defendants-Appellees.
    3

    No. 02-9305.

    4

    United States Court of Appeals, Second Circuit.

    5

    Argued: May 19, 2003.

    6

    Decided: December 3, 2003.

    7

    [47] John L. Jorgensen, pro se, Brooklyn, New York, for Plaintiff-Appellant.

    8

    Orin Snyder (Cynthia S. Arato, on the brief), Parcher, Hayes, & Snyder, P.C., New York, New York, for Defendants-Appellees Careers BMG Music Publishing Inc., Songs of Nashville Dreamworks, Sony Music Entertainment Inc., and Warner-Tamerlane Publishing Corporation.

    9

    [48] Jonathan Zavin, Loeb & Loeb, LLP, New York, New York, for Defendants-Appellees Famous Music Corporation, Fox Film Music Corporation, and Blue Sky Rider Songs.

    10

    Before: KEARSE, STRAUB, and RAGGI, Circuit Judges.

    11

    STRAUB, Circuit Judge.

    12

    Plaintiff John L. Jorgensen ("Jorgensen"), pro se, appeals from the judgment of the United States District Court for the Southern District of New York (John F. Keenan, Judge), dated September 27, 2002, granting the defendants' motion for summary judgment and dismissing Jorgensen's copyright infringement case in its entirety. The District Court found that Jorgensen had not presented sufficient evidence of access to support his claim of copyright infringement, i.e., Jorgensen had not shown a reasonable opportunity by the allegedly infringing songwriters to hear and copy Jorgensen's unpublished song. See Jorgensen v. Epic/Sony Records, No. 00 Civ. 9181, 2002 WL 31119377 (S.D.N.Y. Sept.24, 2002).

    13

    We agree with the District Court that evidence of corporate receipt of unsolicited work is insufficient to raise a triable issue of access where there is no evidence of any connection between the individual recipients of the protected work and the alleged infringers. As to Defendants Careers BMG Music Publishing, Songs of Nashville Dreamworks, and Warner-Tamerlane Publishing Corp., Jorgensen failed to introduce evidence of any such nexus; indeed, those defendants introduced uncontroverted evidence to the contrary. As such, we affirm the District Court's ruling that Jorgensen failed to raise a triable issue of access as to those defendants.

    14

    With respect to Defendants Famous Music Corporation, Fox Film Music Corp., Blue Sky Rider Songs, and Sony Music Entertainment Inc. (improperly sued as Epic/Sony Records), however, we find that Jorgensen did proffer sufficient evidence of a connection between the recipients of his recordings and the alleged infringers to make the grant of summary judgment on the issue of access inappropriate at this stage of the proceedings. We therefore vacate the judgment of the District Court as to Defendants Famous Music Corporation, Fox Film Music Corp., Blue Sky Rider Songs, and Sony Music Entertainment Inc. and remand the case for further proceedings.

    15
    BACKGROUND
    16

    Jorgensen, a musician and songwriter, wrote and copyrighted a song entitled "Long Lost Lover" ("Lover") that he claims has been infringed upon by the songs "My Heart Will Go On" ("Heart") and "Amazed." Written by James Horner and Will Jennings, and sung by Celine Dion, "Heart" was the Academy Award-winning theme song for the 1997 blockbuster movie Titanic. Defendants Famous Music Corporation, Fox Film Music Corp. and Blue Sky Rider Songs are the three co-publishers of "Heart," and Defendant Sony Music Entertainment Inc. ("Sony") manufactured and distributed the Titanic soundtrack.[1] These defendants are collectively referred to as `the "Heart" defendants' in this opinion.

    17

    "Amazed," a song written by Chris Lindsey, Aimee Mayo and Marv Green, was recorded by the country music group Lonestar and released on their multi-platinum [49] album "Lonely Grill." Defendants Careers BMG Music Publishing ("BMG"), Songs of Nashville Dreamworks, and Warner-Tamerlane Publishing Corp. (collectively 'the "Amazed" defendants') are music publishing companies that administer the publishing rights to "Amazed."

    18

    Jorgensen asserts two primary theories by which he hypothesizes that the writers of "Heart" and "Amazed" had access to, and copied his song, "Lover": (i) through his unsolicited mass mailings of "Lover" to a multitude of entertainment companies listed in industry songwriter market books, including the defendants; and (ii) through actual receipt of his mailings by two executives at two of the defendant companies, BMG and Sony.[2] Jorgensen has not named the writers of either song as defendants in this suit.

    19

    After discovery, the defendants moved for summary judgment on the ground that Jorgensen had failed to adduce any evidence to support these theories of access. In particular, the defendants argued that, with the two exceptions noted below, Jorgensen had made no showing that any of the defendants ever actually received his submission. Even where Jorgensen established actual receipt, the defendants asserted that there was no evidence that Jorgensen's song had been forwarded to the writers of "Amazed" or "Heart," or to any other third party. In addition, the defendants argued that Jorgensen never had any contact with the writers of either "Amazed" or "Heart," and that Jorgensen had no evidence that the writers of either song would ever have received any tapes of unsolicited material from any of the companies to which Jorgensen sent copies of "Lover."

    20

    Bruce Pollock, a managing producer at a BMG division that has no connection with the music publishing company, submitted a sworn declaration in which he admitted having received a compact disc copy of "Lover" from Jorgensen. Pollock stated, however, that he did not give the CD to anyone at any time, including the writers of "Amazed" whom he did not know and had never met.

    21

    Harvey Leeds, a Vice President at Sony responsible for reviewing touring budgets for Sony artists, also admitted during his deposition that he had received a few tapes from Jorgensen but stated that he did not listen to them, and had assumed they were thrown away. Leeds also testified that he did not know the "Heart" songwriters.

    22

    Based on this evidence from Pollock and Leeds and because Jorgensen did not produce any cover letters or other correspondence to the defendants indicating to whom (or when) he sent his other mailings of "Lover," the District Court held that Jorgensen could not establish that the authors of either "Amazed" or "Heart" had a reasonable opportunity to hear his unpublished work. 2002 WL 31119377, at *4 ("Without more proof of access than has been demonstrated, Jorgensen's case cannot proceed."). The court held that "bare corporate receipt" of Jorgensen's work by those defendants who may have received Jorgensen's mass mailings did "not create a prima facie case of access sufficient to defeat summary judgment." Id. at *3. And, according to the District Court, with [50] respect to BMG and Sony, the fact that Pollock and Leeds, respectively, admitted receiving Jorgensen's songs, without further evidence that they had forwarded the tapes to the songwriters or anyone else, was similarly inadequate to show access. See id. at *4.

    23

    The District Court's summary of the evidence regarding Jorgensen's interactions with Leeds and Sony, however, was incomplete. During his deposition, Jorgensen testified at length about multiple conversations that he'd had with both Leeds and Leeds's assistants over the course of three or more years regarding several tapes that Jorgensen sent to Leeds, including at least one tape that contained a recording of "Lover." According to Jorgensen, during every one of these conversations, Leeds or his assistants confirmed that Leeds had received Jorgensen's tapes (including, in particular, the "Lover" tape) and told Jorgensen that his tapes had been forwarded to Sony's Artist and Repertoire ("A & R") Department, the department responsible for helping the company "find, sign and guide new talent." In addition, in response to Jorgensen's Requests for Admissions, Sony indicated that "on limited occasions, writers, producers or musicians affiliated with Sony may have been shown some material solicited by the A & R Dept. at some point during 1995, 1996 and 1997...." This evidence — which the District Court does not appear to have considered — undercuts the defendants' claim that "Jorgensen failed to adduce even a scintilla of evidence" that Leeds "provided [Jorgensen's] song to anyone else...."

    24
    DISCUSSION
    25

    We review the District Court's grant of summary judgment de novo, construing the evidence in the light most favorable to Jorgensen, the non-moving party. See Mack v. Otis Elevator Co., 326 F.3d 116, 119 (2d Cir.2003). Moreover, because Jorgensen is proceeding pro se, we read his pleadings "liberally and interpret them to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (citation and internal quotation marks omitted); see also Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996). As the District Court observed, however, our "application of this different standard does not relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." 2002 WL 31119377, at *2.[3]

    26

    To prevail on a motion for summary judgment, the defendants must demonstrate the absence of material evidence supporting an essential element of Jorgensen's copyright infringement claim. See [51] Repp v. Webber, 132 F.3d 882, 889-90 (2d Cir.1997), cert. denied, 525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40 (1998). Jorgensen, to avoid summary judgment, "may not rely simply on conclusory allegations or speculation ..., but instead must offer evidence to show that [his] version of the events is not wholly fanciful." Morris v. Lindau, 196 F.3d 102, 109 (2d Cir.1999) (citation and internal quotation marks omitted).

    27

    In a copyright infringement case, the plaintiff must show: (i) ownership of a valid copyright; and (ii) unauthorized copying of the copyrighted work. See Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132, 137 (2d Cir.1998). A certificate of registration from the United States Register of Copyrights constitutes prima facie evidence of the valid ownership of a copyright. See 17 U.S.C. § 410(c). Jorgensen secured such registration for "Lover," and the defendants do not dispute the validity of that copyright. Thus, Jorgensen has met the first element of an infringement claim.

    28

    To satisfy the second element of an infringement claim — the "unauthorized copying" element — a plaintiff must show both that his work was "actually copied" and that the portion copied amounts to an "improper or unlawful appropriation." Castle Rock, 150 F.3d at 137 (citation and internal quotation marks omitted). "Actual copying may be established by direct or indirect evidence." Boisson v. Banian, Ltd., 273 F.3d 262, 267 (2d Cir.2001). Because direct evidence of copying is seldom available, a plaintiff may establish copying circumstantially "by demonstrating that the person who composed the defendant's work had access to the copyrighted material," Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1249 (11th Cir.1999); see also Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir.), cert. denied, 476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 721 (1986), and that there are similarities between the two works that are "probative of copying," Repp, 132 F.3d at 889.

    29
    A. Jorgensen's evidence of access
    30

    Access means that an alleged infringer had a "reasonable possibility" — not simply a "bare possibility" — of hearing the prior work; access cannot be based on mere "speculation or conjecture." Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir.1988); see also Herzog, 193 F.3d at 1250; Grubb v. KMS Patriots, L.P., 88 F.3d 1, 3 (1st Cir.1996); Ellis v. Diffie, 177 F.3d 503, 506-07 (6th Cir.1999); 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 13.02[A], at 13-19 to 13-20 (2002) ("[R]easonable opportunity ... does not encompass any bare possibility in the sense that anything is possible. Access may not be inferred through mere speculation or conjecture."); but cf. id. at § 13.02[A], at 13-22 (noting that "[a]t times, distinguishing a `bare' possibility from a `reasonable' possibility will present a close question"). In order to support a claim of access, a plaintiff must offer "significant, affirmative and probative evidence." Scott v. Paramount Pictures Corp., 449 F.Supp. 518, 520 (D.D.C.1978), aff'd, 607 F.2d 494 (D.C.Cir.1979) (table), cert. denied, 449 U.S. 849, 101 S.Ct. 137, 66 L.Ed.2d 60 (1980); see also Tisi v. Patrick, 97 F.Supp.2d 539, 547 (S.D.N.Y.2000).

    31
    1. The mass mailings of "Lover"
    32

    Jorgensen argues, first, that his act of mailing unsolicited tapes of "Lover" to scores of record and music publishing companies, including the corporate defendants, constituted access because the corporate employees who allegedly received the mailing [52]

    33

    could have provided the "Heart" and "Amazed" songwriters with a copy of "Lover." With two exceptions reviewed below, however, Jorgensen has not provided any reasonable documentation that he actually mailed such tapes (or when or to whom these tapes were purportedly sent). Jorgensen's mass-mailing allegation was, thus, properly rejected by the District Court as legally insufficient proof of access. 2002 WL 31119377, at *5 (noting that Jorgensen "did not maintain a log of where and when he sent his work, or keep receipts from certified mailings to establish a chain of access"); see also Dimmie v. Carey, 88 F.Supp.2d 142, 146 (S.D.N.Y. 2000) (rejecting plaintiff's claim that the mailing of tapes to a corporation could "be equated with access" where there was no evidence that the tapes were ever received or forwarded to the alleged infringers); Jorgensen v. Careers BMG Music Publ'g, No. 01 Civ. 0357, 2002 WL 1492123, at *4-5 (S.D.N.Y. July 11, 2002) (Preska, J.) ("Jorgensen I").[4]

    34
    2. The submissions to Pollock and Leeds
    35

    Jorgensen's second and more narrow theory of access, predicated on Pollock's and Leeds's admissions that they received Jorgensen's submissions, was also rejected by the District Court. 2002 WL 31119377, at *4-5. For the reasons outlined below, we agree with the District Court that Jorgensen's speculation that Pollock could have provided the "Amazed" songwriters with a copy of "Lover" did not, standing alone, suffice to prove access, where there was no evidence of any relationship between Pollock and the songwriters and where Pollock stated in his sworn declaration that he had never forwarded Jorgensen's tapes to anyone. With respect to Leeds and the "Heart" defendants, however, we find that Jorgensen introduced sufficient evidence to make the District Court's grant of summary judgment inappropriate at this stage of the proceedings.

    36
    a. Pollock and the "Amazed" defendants
    37

    In his sworn declaration, Pollock stated that his job as a managing producer in BMG's Special Products division "has nothing to do with the publishing company, Careers BMG Music Publishing, Inc., or working creatively with songwriters at all." Although he conceded that he had received a CD recording of "Lover," Pollock denied that he had ever listened to the song and asserted that he never conveyed the CD "to anyone at any time," much less anyone who "contributed creative ideas or material" to "Amazed" or "Heart." Meta-Film Assocs., Inc. v. MCA, Inc., 586 F.Supp. 1346, 1355-56 (C.D.Cal.1984); see also Tisi, 97 F.Supp.2d at 547-48 (finding no proof of access where plaintiff alleged that he sent unsolicited tapes to record companies, including the company that released records containing the allegedly infringing song, but there was no evidence that plaintiff's song was conveyed to anyone with creative input into the allegedly infringing song). In fact, Jorgensen conceded at his deposition that he had no knowledge that Pollock did anything with the CD that Jorgensen sent to him. Pollock stated that he did not have any relationship with the writers of "Amazed," and Jorgensen [53] has submitted no evidence to the contrary. Cf. Towler v. Sayles, 76 F.3d 579, 583 (4th Cir.1996) ("A court may infer that the alleged infringer had a reasonable possibility of access if the author sent the copyrighted work to a third party intermediary who has a close relationship with the infringer. An intermediary will fall within this category, for example, if she supervises or works in the same department as the infringer or contributes creative ideas to him." (emphasis added)); Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939, 944 (8th Cir.1992) (finding access where intermediary was "in a position to provide suggestions" to the alleged copiers); Bouchat v. Baltimore Ravens, Inc., 241 F.3d 350, 354 (4th Cir.) (jury could infer access where intermediary with access to plaintiff's drawings had "a close relationship to the alleged infringers"), cert. denied, 532 U.S. 1038, 121 S.Ct. 2000, 149 L.Ed.2d 1003 (2001); Tomasini v. Walt Disney Co., 84 F.Supp.2d 516, 522 (S.D.N.Y.2000) (finding no relationship between recipient of plaintiff's work and alleged infringers).

    38

    Jorgensen's claim against the "Amazed" defendants was properly dismissed because he has not offered any evidence to rebut Pollock's assertions. The most that Jorgensen offers to show a nexus between Pollock and the "Amazed" songwriters is his global assertion that "anything and everything can very well happen." Such speculation does not give rise to a triable issue of access. See Ferguson v. Nat'l Broad. Co., 584 F.2d 111, 113 (5th Cir.1978) (holding that plaintiff's mere speculation did not support a finding of access where defendant offered uncontroverted evidence of a lack of access); Towler, 76 F.3d at 582-83; Segal v. Paramount Pictures, 841 F.Supp. 146, 150 (E.D.Pa.1993), aff'd, 37 F.3d 1488 (3d Cir.1994) (table); Novak v. Nat'l Broad. Co., 752 F.Supp. 164, 169 (S.D.N.Y.1990); Meta-Film, 586 F.Supp. at 1355 (plaintiff's "tort[u]ous chain of hypothetical transmittals" was "insufficient to avoid summary judgment on the question of access"). Jorgensen has not adduced proof of a reasonable possibility that "the paths of [the "Amazed" song-writers] and the infringed work crossed." Towler, 76 F.3d at 582. Bare corporate receipt of Jorgensen's work, without any allegation of a nexus between the recipients and the alleged infringers, is insufficient to raise a triable issue of access.[5] See Jorgensen I, 2002 WL 1492123, at *4-5; Dimmie, 88 F.Supp.2d at 146-47; Tisi, 97 F.Supp.2d at 547-48.

    39
    [54] b. Leeds and the "Heart" defendants
    40

    At his deposition, Leeds admitted that he had received tapes from Jorgensen but stated that he did not listen to them and he believed that they had been discarded. Leeds testified that his job as a Sony vice president involved reviewing promotional touring budgets and that he was "not involved in the A & R process." Leeds also stated that he did not know the "Heart" songwriters.

    41

    Citing this evidence (and echoing their arguments with respect to Pollock), the defendants assert that the mere fact that Leeds had received a copy of Jorgensen's song does not mean that the "Heart" songwriters had a reasonable opportunity to hear it. Defendants argue that it is "undisputed" that Leeds did not forward Jorgensen's tape to the "Heart" songwriters, but they do not address the evidence introduced by Jorgensen that Leeds and his assistants repeatedly told Jorgensen that his tapes — including, in particular, one containing the song "Lover" — were being sent to Sony's A & R department.[6] Leeds, at his deposition, disputed Jorgensen's version of events, testifying that he did not recall ever making such a promise to Jorgensen and that he likely threw Jorgensen's tapes away. Leeds also conceded, though, that it was possible that if there was a tape that he received that he found interesting he might "pass it on" to one of his "friends in the A & R department."

    42

    To draw a connection between Sony's A & R department and Horner and Jennings, the creators of "Heart," Jorgensen relied on Sony's admission, in its response to his Request for Admissions, that during the relevant time period, "on limited occasions, writers, producers or musicians affiliated with Sony may have been shown some material solicited by the A & R Dept. ...." In concluding that Leeds "did not forward Jorgensen's package," the District Court made no mention of (i) Jorgensen's deposition testimony to the contrary or (ii) Sony's admission regarding the practices of its A & R Department.[7] 2002 WL 31119377, at *4.

    43

    Although the defendants accurately note that Jorgensen has put forth no evidence that the "Heart" songwriters actually heard his song, that argument misapprehends Jorgensen's burden. Jorgensen must show a "reasonable possibility of access" by the alleged infringer. Dimmie, 88 F.Supp.2d at 146 (citation and internal quotation marks omitted); see also Herzog, 193 F.3d at 1249 (explaining that to show access, a plaintiff must establish that the alleged infringer had "a reasonable [55] opportunity to view" his work (citation and internal quotation marks omitted)). He is not required to establish actual access. See Bouchat, 241 F.3d at 354-55 ("A copyright infringement plaintiff need not prove that the infringer actually saw the work in question; it is enough to prove that the infringer (or his intermediary) had the mere opportunity to see the work and that the subsequent material produced is substantially similar to the work.") (emphasis added).

    44

    The facts of Jorgensen's case against the "Heart" defendants are entirely distinguishable from those presented in Dimmie, upon which the defendants rely, where the district court found that the plaintiff had not introduced "a scintilla of evidence" that the corporate recipient of her tape had forwarded it to the alleged infringers. 88 F.Supp.2d at 146; see also Novak, 752 F.Supp. at 169. Jorgensen's evidence sets out a clear nexus between Leeds, who has admitted receiving the "Lover" tape and the Sony A & R department, to which Leeds told Jorgensen he'd forwarded the tape. In addition, Jorgensen elicited an admission that the Sony A & R department occasionally shares such material with "affiliated" songwriters. Cf. Bouchat, 241 F.3d at 354 (noting that it was permissible for the jury to rest its access finding, in part, on the "standard office routines" of the defendant). What is not clear from the record before us is whether Horner and Jennings were songwriters "affiliated" with Sony in the period between when Jorgensen sent his tapes to Sony and when "Heart" was published. Absent some evidence on this issue, a jury could not reasonably infer simply from Sony's access to Jorgensen's work that Horner and Jennings also had such access. See generally Towler, 76 F.3d at 583 (refusing to find access where there was no evidence that intermediaries (who had access to plaintiff's screenplay) had contact with alleged infringer during the relevant time period).

    45

    As already noted, it is the defendant seeking summary judgment who must demonstrate a lack of evidence supporting an essential element of plaintiff's claim. See Repp, 132 F.3d at 890. The "Heart" defendants, who undoubtedly possess information about the time frame of Sony's affiliation with Horner and Jennings, failed to support their summary judgment motion with any evidence showing the lack of a relationship during the relevant period.[8] [56] Because Jorgensen, appearing pro se, may not have appreciated the need to develop this particular evidence in discovery, summary judgment should not have been granted to defendants until the timing of any affiliation was clarified. Viewing the evidence adduced thus far in the light most favorable to Jorgensen and drawing all justifiable inferences in his favor, as we must at the summary judgment stage, see Mack, 326 F.3d at 119, we find that the District Court erred in granting summary judgment to the "Heart" defendants. Of course, it would be well within the District Court's discretion to permit limited discovery into the question of the timing of the songwriters' affiliation with Sony and to entertain a renewed motion for summary judgment, as may be appropriate.

    46
    B. Jorgensen's claim of striking similarity
    47

    As noted above, a copyright plaintiff's circumstantial proof of copying requires a showing of both access and probative similarity. Repp, 132 F.3d at 889; Herzog, 193 F.3d at 1249. In this case, the "Heart" defendants' summary judgment motion was based solely on the issue of access and did not address Jorgensen's claim of probative similarity between "Lover" and "Heart." As such, the District Court declined to address the question of probative similarity.

    48

    The District Court did, however, reject Jorgensen's last-minute argument that the allegedly infringing works, "Heart" and "Amazed," were so strikingly similar to "Lover" that Jorgensen need not prove access. 2002 WL 31119377, at *5. There is an inverse relationship between access and probative similarity such that "the stronger the proof of similarity, the less the proof of access is required." NIMMER ON COPYRIGHT, § 13.03[D], at 13-77. We have held that where the works in question are "so strikingly similar as to preclude the possibility of independent creation, copying may be proved without a showing of access." Lipton v. Nature Co., 71 F.3d 464, 471 (2d Cir.1995) (citation and internal quotation marks omitted); see also Repp, 132 F.3d at 889. Jorgensen offered nothing to support this allegation of a striking similarity,[9] however, and as the District Court properly concluded, Jorgensen's own statements — e.g., that the infringement of his song, Lover, was "subtle" — wholly undercut his claim of a "striking" similarity between the songs. 2002 WL 31119377, at *5.

    49
    CONCLUSION
    50

    We have reviewed the record and considered all of Jorgensen's remaining contentions and find them to be without merit. We therefore AFFIRM the District [57] Court's grant of summary judgment in favor of Defendants Careers BMG Music Publishing, Songs of Nashville Dreamworks, and Warner-Tamerlane Publishing Corporation. With respect to Defendants Famous Music Corporation, Fox Film Music Corporation, Blue Sky Rider Songs, and Sony Music Entertainment Inc., however, we VACATE the District Court's grant of summary judgment and remand the case for further proceedings not inconsistent with this opinion. Each party shall bear its own costs in regard to this appeal.

    51

    [1] Jorgensen has not introduced sufficient evidence to support his suggestion that Sony — listed on the Form SR 248-234 as the "author" of "Heart" for purposes of ownership of the copyright — was the actual creator of "Heart."

    52

    [2] Jorgensen also posits a third theory of access involving Dan Huff, a Nashville musician and producer. According to Jorgensen, Huff may have played a central role in these alleged infringements "because of his association and affiliations with Nashville writers, musicians, and publishing companies." The District Court, noting that Jorgensen admitted that "he has never met, spoken to or sent music to Huff," rejected as unsubstantiated Jorgensen's theory of access via an alleged "Huff conspiracy," 2002 WL 31119377, at *4-5, as do we.

    53

    [3] Although it is not clear from the record whether the District Court or the defendants ever explicitly advised Jorgensen of the "nature and consequences of a summary judgment motion," see Vital v. Interfaith Med. Center, 168 F.3d 615, 620-21 (2d Cir.1999), Jorgensen's submissions to the District Court make clear that he understood the significance of the defendants' motion and what was required of him in opposing that motion. In his brief, he asserted that summary judgment would be "improper in this case because there are genuine issues of material fact on each element of plaintiff's cause of action," and in his brief and the Rule 56.1 Statement that he submitted, he carefully marshaled the evidence in support of his theories of access. See Sawyer v. Am. Fed'n of Gov't Employees, 180 F.3d 31, 34-35 (2d Cir.1999) (recognizing an exception to the obligation outlined in Vital where "the pro se litigant responds to the summary judgment motion with factual and legal submissions indicating that he understood the nature and consequences of summary judgment and the need to set forth all available evidence demonstrating a genuine dispute over material facts" (citation and internal quotation marks omitted)); Vital, 168 F.3d at 621.

    54

    [4] In Jorgensen I, a separate action filed the same day as this action, Jorgensen alleged copyright infringement of another of his songs by Eric Clapton's Grammy Award-winning song, "Change the World." Id. at *1. The district court granted summary judgment for defendants, finding that Jorgensen's "evidence of access [wa]s speculative and/or legally insufficient [such that] no rational fact finder could find in favor of [him]." Id. at *5. Jorgensen has not appealed in Jorgensen I.

    55

    [5] Over thirty years ago, the court in Bevan v. Columbia Broad. Sys., Inc., 329 F.Supp. 601 (S.D.N.Y.1971), interpreting a then-recent First Circuit decision in Morrissey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir.1967), observed that "receipt of a manuscript at defendants' principal corporate office has been held sufficient to raise a triable issue [of access], despite plaintiff's inability to show receipt by the responsible employee." 329 F.Supp. at 609. Despite the fact that the evidence introduced in Bevan appears to have included much more than "bare corporate receipt" of the plaintiff's work, see 329 F.Supp. at 603-04, 609, courts and commentators have cited Bevan as endorsing a "bare corporate receipt" doctrine that "allows a plaintiff to satisfy her burden as to access merely by showing that the company employing the alleged infringer received the work." Stacy Brown, Note, The Corporate Receipt Conundrum: Establishing Access in Copyright Infringement Actions, 77 MINN. L. REV. 1409, 1411 (1993) (noting that this is not widely accepted); see also, e.g., Dimmie, 88 F.Supp.2d at 147 (characterizing Bevan as "(arguably) out-dated") (collecting cases); Vantage Point, Inc. v. Parker Bros., Inc., 529 F.Supp. 1204, 1213 (E.D.N.Y.1981) (describing Bevan's "`generous' view of corporate access" and distinguishing Bevan on its facts); NIMMER ON COPYRIGHT, § 13.02[A], at 13-17 n. 13. Although the Bevan court seemed to anticipate that the Second Circuit would eventually adopt the bare corporate receipt rule outlined in Morrissey, see Bevan 329 F.Supp. at 609, we have not done so and we decline to do so today.

    56

    [6] Indeed, in their submissions to the District Court, the "Heart" defendants incorrectly asserted that it was Leeds's "undisputed testimony" that "he never forwarded Jorgensen's package anywhere ...." (emphasis added).

    57

    [7] On our review of the record, it appears likely that this evidence — both Jorgensen's deposition testimony and Sony's response to Jorgensen's Request for Admissions — would be admissible against the "Heart" defendants at a trial. However, since the parties did not address any evidentiary hurdles in their briefs to this Court and because we lack the benefit of the District Court's guidance on these issues, we leave their resolution to the District Court on remand.

    58

    We do note, however, that in their response to Jorgensen's Request for Admissions, after admitting that some unsolicited tapes were shared with Sony-affiliated artists, the "Heart" defendants denied that Jorgensen's material was either received by Sony's A & R Department or shown by that department to anyone else. Unlike the adjoining admission, that denial, however, is not admissible evidence because a party responding to Requests for Admission under Rule 36 of the Federal Rules of Civil Procedure may not rely upon his own answers to a Request for Admission as the basis for a summary judgment motion.

    59

    [8] The most that the "Heart" defendants offer to challenge the connection between Sony's A & R Department and the alleged infringers is defense counsel's claim in his affidavit that "[u]pon information and belief, neither Horner nor Jennings are associated as songwriters with Sony." (emphasis added). That supposition, however, is too tentative to qualify as evidence warranting summary judgment. See Fed.R.Civ.P. 56(e) ("Supporting ... affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."); see also Dellacava v. Painters Pension Fund of Westchester and Putnam Counties, 851 F.2d 22, 26 (2d Cir.1988) (finding that assertion made "`upon information and belief' ... could not have been considered in the summary judgment motion") (citing Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 831, 70 S.Ct. 894, 94 L.Ed. 1312 (1950), overruled in part on other grounds by Lear, Inc. v. Adkins, 395 U.S. 653, 671, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969)).

    60

    This case is distinguishable from a number of the precedents cited herein because the "Heart" defendants apparently elected not to introduce sworn testimony from the songwriters themselves to show that they lacked access to Jorgensen's tapes. See, e.g., Herzog, 193 F.3d at 1245, 1255-56 (granting summary judgment for defendants, in part based on alleged infringer's testimony negating access); Ferguson, 584 F.2d at 113-14 (same); Dimmie, 88 F.Supp.2d at 144, 148-49 (alleged infringers' deposition testimony that they did not review unsolicited material and, in particular, that they did not receive or review plaintiff's work considered by trial judge in granting summary judgment to defendants on the issue of access).

    61

    [9] It is unclear whether Jorgensen is alleging that both "Amazed" and "Heart" are strikingly similar to "Lover" or if he is arguing that degree of similarity with respect to "Heart" alone. Notably, Jorgensen's expert, Judith Finnell, did not find either song to be strikingly similar to "Lover." Instead, she concluded that "Amazed" and "Lover" are "substantially similar in some of their primary elements" and that "`Heart' is substantially similar to key elements of `Lover.'" (emphasis added). She noted, however, that the relationship between "Heart" and "Lover" "is subtle." The only other proof offered by Jorgensen that "Heart" and "Lover" are "strikingly similar" is his own conclusory statement to that effect in his amended report of his comparative analysis of the two songs. That conclusion, which contradicts his original report that "Heart" was a "subtle infringement" of "Lover," is insufficient to survive summary judgment.

  • 3 Jean v. Bug Music, 2002 U.S. Dist. LEXIS 3176, 2002 WL 287786 (S.D.N.Y. Feb. 25, 2002) (Excerpts)

    1

    2002 WL 287786

    2

    2002 U.S. Dist. LEXIS 3176

    3
    Jean et al.
    4
    v.
    5
    Bug Music
    6

    No. 00 Civ. 4022

    7

    (S.D.N.Y. Feb. 25, 2002)

    8
    Opinion by Judge Chin
    9

    In this copyright case, plaintiffs seek a declaratory judgment that their song "My Love Is Your Love" ("My Love") does not infringe defendants' copyright of the song "The Hand Clapping Song" ("HCS"). Plaintiffs move for summary judgment pursuant to Fed. R. Civ. P. 56 on their claim for a declaratory judgment holding that plaintiffs have not violated the copyright laws. Alternatively, plaintiffs request an order pursuant to Fed. R. Civ. P. 42(b) for separate trials on liability and damages. Defendants cross-move for partial summary judgment on the issues of the originality of HCS and access.

    10

    Defendants allege that the lyrical and musical excerpt at issue in My Love -- "Clap your hands, y'all, 't's'all right" (the "My Love Phrase") -- infringes the HCS copyright because HCS contains the lyrical and musical excerpt "Clap your hands now, people clap now" (the "HCS Phrase"). (Def. Resp. to Pl. 56.1 Stmt. PP 19, 20).

    11

    The HCS Phrase is unprotectible because it uses common musical and lyrical phrases that have been used in other recordings. In other words, the HCS Phrase lacks the requisite originality. Moreover, the phrases constitute only a de minimis portion of the songs. Only three words and notes in the HCS and My Love Phrases are identical. Overall the songs are different in sound and they convey different moods.

    12

    Accordingly, plaintiffs' motion for summary judgment is granted; no reasonable fact finder could conclude that My Love was copied, even in part, from HCS. I do not reach plaintiffs' motion to bifurcate or defendants' cross-motion.

    13
    BACKGROUND
    14
    I. Facts
    15

    The following facts are drawn from the record before the Court. The record includes declarations, recordings of HCS and My Love, expert reports, and deposition transcripts. All conflicts in the evidence have been resolved in defendants' favor.

    16
    A. HCS
    17

    Defendants and counterclaim plaintiffs Bug Music, Inc. ("Bug Music") and R & B Music LLC[1] ("R & B Music") license and market musical compositions. (Def. 56.1 Stmt. PP 1, 2). The HCS copyright was first registered in 1970 to Rhinelander Music, Inc. (Compl. P 20; Countercl.[2] P 13). In 1996, Rhinelander Music, Inc. assigned all of its interests in HCS to R & B Music, and Bug Music became administrator of R & B Music. (Countercl. PP 14, 15). Defendants own a valid copyright in HCS.

    18

    HCS was authored by four non-party individuals -- Leo Nocentelli, George Porter, Arthur Neville, and Joseph Modeliste -- who were members of the music group "the Meters." (Compl. P 21; Ans. P 16). The Meters, a rhythm and blues ("R & B") band formed in the 1960's, was popular in the 1960's and 1970's. Some considered it "the best new R & B group and the best R & B instrumental group" in 1967 and 1968. (Nocentelli Decl. P 3). The Meters are especially known for their strong influence on funk music in the 1970's. (Nocentelli Decl. P 3; Art Neville Decl. P 3). The Meters have recorded with many artists, including Robert Palmer and Paul McCartney, and the group performed with the Rolling Stones in 1975 and 1976. (Nocentelli Decl. P 6). The group has released numerous albums since 1969. (Id. at P 7). Fifteen musical compositions of the Meters have been sampled or interpolated by 45 different artists or groups. (Hirshland Decl. P 9).

    19

    The playing time of HCS is 2 minutes, 55 seconds. (Lepera Decl., Ex. O). The song begins and ends with the HCS Phrase. At the outset, the HCS Phrase repeats four times and the excerpt "clap your hands" repeats eight times for a total of about 23 seconds. At the end of the song, the HCS Phrase repeats five times and the excerpt "clap your hands" repeats nine times for a total of about 20 seconds. (Eskelin Rep. PP 6, 10, Lepera Decl., Ex. O).

    20

    The HCS Phrase contains the following nine pitches: C, B-flat, C, B-flat, G, F-sharp, G, B-flat, C. The accompanying scale steps are 1, flat-7, 1, flat-7, 5, sharp-4, 5, flat-7, and 1. (Lepera Decl. P 30; Eskelin Tr. at 122, 123). HCS is a funk song laced with percussion and strong guitar sounds. It is energetic and invites the listener to participate. The HCS Phrase has a staccato rhythm with short hand clapping accompanying the lyrics.

    21

    HCS was released as a single in 1970 and was recorded on five albums between 1970 and 2001. (Nocentelli Decl. P 8). The song enjoyed great fame. For example, it was listed as a top 50 R & B single for several weeks in 1970. (Nocentelli Decl. P 10; Art Neville Decl. P 8).

    22
    B. My Love
    23

    My Love is a recent hit song performed by Whitney Houston and is included on an album by Houston that bears the same name. My Love is authored by plaintiffs Nel Wyclef Jean and Jerry Duplessis -- both of whom are musicians, performers, and composers. (Compl. P 1, Ex. A; Def. Resp. to Pl. 56.1 Stmt. PP 1, 3). Plaintiffs Huss-Zwingli Publishing, Inc. ("Zwingli") and Te-Bass Music, Inc. ("Te-Bass") are music publishing entities respectively through which Jean and Duplessis own and control their music compositions. (Def. Resp. to Pl. 56.1 Stmt. PP 2, 4). The copyright for the words and music of My Love was registered in 1998. (Compl. P 14).

    24

    The playing time of My Love is 4 minutes, 15 seconds. (Lepera Decl., Ex. N). The My Love Phrase contains the following six pitches: C, B-flat, C, B-flat, G, B-flat. The accompanying scale steps are 1, flat-7, 1, flat-7, 5, and flat-7. (Lepera Decl. P 30; Eskelin Tr. at 133). As with HCS, My Love begins and ends with the phrase at issue. The song opens with a 13-second, four-time repetition of the My Love Phrase. The song ends with an eight-time repetition of the My Love Phrase that runs for 20 seconds. The My Love Phrase appears alone or as part of a repetition an additional 15 times. In total, the My Love Phrase covers 59 seconds of the playing time.

    25

    My Love was intended to be a "spiritual sounding ballad" with "an R & B vibe." (Jean Tr. at 19). The song has a reggae sound with a slow, smooth base line accompanied by soft percussion. In comparison to HCS, My Love does not invite the listener to clap hands along with the lyrics. Instead, it is an easy listening song. During the song, the My Love Phrase is sometimes sung in the background with overlapping lyrics.

    26

    Plaintiffs never sought permission to use any portion of HCS.

    27
    C. The Song's Similarities
    28

    The first three words in the HCS and My Love Phrases are identical -- both start with "clap your hands." (Eskelin Rep. P 6). The first three notes, including pitch and rhythm, in the phrases are identical as well. (Id.). These three notes and lyrics comprise the only portions identical in both songs. (Eskelin Tr. at 198, 279; Eskelin Decl. P 11).

    29
    D. Prior Art
    30

    The lyrics identical in both songs, "clap your hands," can be found in the biblical phrase "O clap your hands all ye people." (Ferrara Rep. at 5; Beavers Rep. at 2 (quoting Psalm 47:1, King James Version)). The lyrics can also be found in many songs, including "church anthems," "secular music," and "general entertainment related to applause." (Eskelin Tr. at 272-73, 316). For example, the following nine recorded gospel songs contain the lyrics "clap your hands": He is the Reason; I've Got Jesus; He'll Welcome Me; Benny Cummings Medley: Lift Him Up; The Kingdom Medley: Higher, Higher; Love Lifted Me; Working On a Building; Lift Your Head Up, Rejoice in the Lord; and The Only Way. (Ferrara Rep., Ex. B; see also Beavers Rep. at 3-4, 8 & Listening Exs. 1.2, 2.2, 2.3 & 4.1). The website for Broadcast Music, Inc. ("BMI") identifies 120 songs that include "clap your hands" in the title. (Ferrara Rep. at 5, Ex. C). A hymn written by Baroque English composer Henry Purcell (1659-1695) is entitled "clap your hands." (Id. at 5).

    31

    The melodic sequence that is identical in both songs and accompanies the lyrics "clap your hands" -- C, B-flat, C -- appears in "thousands" of "songs." (Eskelin Tr. 276-77). Those pitches matched with the rhythms in the HCS Phrase also create a common musical arrangement. (Eskelin Tr. 277).

    32
    II. Procedural History
    33

    At the end of 1999 and in January 2000, defendants sent letters to plaintiffs alleging that My Love infringed on the copyright of HCS. (Ans. PP 16, 18). In January 2000, defendants sent plaintiffs a letter demanding that plaintiffs cease and desist from continuing to violate copyright laws and compensate defendants for damages allegedly incurred. Defendants also threatened to file suit should plaintiffs continue their activities. (Ans. P 19). This suit followed.[3]

    34

    Plaintiffs initiated this action on May 26, 2000 by filing a complaint seeking a declaratory judgment holding that My Love does not infringe defendants' copyright and, accordingly, that plaintiffs are entitled to reproduce, distribute, adapt, exploit, market, and sell My Love. Plaintiffs also seek attorneys' fees and costs.

    35

    On June 22, 2000, defendants filed an answer and counterclaim alleging copyright infringement. In the counterclaim defendants seek damages, profits resulting from any infringement, costs, attorneys' fees, and an injunction enjoining plaintiffs from violating copyright laws.

    36

    These motions followed

    37
    DISCUSSION
    38
    I. Summary Judgment Standard
    39

    Summary judgment will be granted when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Accordingly, the court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Summary judgment is inappropriate if, resolving all ambiguities and drawing all inferences against the moving party, there exists a dispute about a material fact "such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248-49 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)); accord Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991).

    40

    To defeat a motion for summary judgment, however, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus., 475 U.S. at 586. There is no issue for trial unless there exists sufficient evidence in the record favoring the party opposing summary judgment to support a jury verdict in that party's favor. Anderson, 477 U.S. at 249-50. As the Court held in Anderson, "if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. (citations omitted).

    41
    II. Copyright Infringement
    42
    A. Applicable Law
    43

    A party seeking summary judgment on a claim of non-infringement of copyright must establish that at least one element of the alleged infringement cannot be proven. Cantor v. NYP Holdings, Inc., 51 F. Supp. 2d 309, 311 (S.D.N.Y. 1999).

    44

    To prevail on a claim of copyright infringement, a copyright owner must prove two elements: "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Arden v. Columbia Pictures Indus., Inc., 908 F. Supp. 1248, 1257 (S.D.N.Y. 1995) (quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991)) (other citations omitted).

    45

    As to the first element, for the purposes of this motion, it is undisputed that defendants can establish valid copyright ownership to HCS.

    46

    The second element, copying, is comprised of two requirements: actual copying and improper appropriation. Actual copying may be established either by direct evidence or circumstantial proof that the alleged infringer had access to the protected work and that the allegedly infringing work bears a "probative similarity" to the copyrighted work. See Ringgold v. Black Entm't Television, Inc., 126 F.3d 70, 75 (2d Cir. 1997).

    47

    Once actual copying has been established, the copyright owner must then satisfy the "improper appropriation" requirement by demonstrating that "substantial similarities" as to the protected elements of the work would cause an average lay observer to "recognize the alleged copy as having been appropriated from the copyrighted work." Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 912 (2d Cir. 1980) (internal quotation and citation omitted). Careful scrutiny is necessary when the protected work contains unprotectible elements. See Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir. 1995) ("Where we compare [works] that contain both protectible and unprotectible elements, our inspection must be 'more discerning'; we must attempt to extract the unprotectible elements from our consideration and ask whether the protectible elements, standing alone, are substantially similar." (emphasis in original, citations omitted)). While "probative similarity" goes only to whether copying factually occurred and is largely a qualitative inquiry, "substantial similarity" is a more quantitative and qualitative assessment as to whether the copying is legally actionable. See Ringgold, 126 F.3d at 75. An analysis into the "substantial similarity" between the protected work and the allegedly infringing work "must be made on a case-by-case basis, as there are no bright line rules for what constitutes substantial similarity." Sandoval v. New Line Cinema Corp., 147 F.3d 215, 217-18 (2d Cir. 1998) (citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577, 127 L. Ed. 2d 500, 114 S. Ct. 1164 (1994)).

    48

    The copied elements of the work must be original and nontrivial to constitute improper appropriation. See Feist, 499 U.S. at 345 ("The sine qua non of copyright is originality."). For purposes of copyright law, "original" means that "the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity." Id. Common phrases are generally not protected by copyright. Stratchborneo v. ARC Music Corp., 357 F. Supp. 1393, 1405 (S.D.N.Y. 1973); see also Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 144 (2d Cir. 1998) ("The prior usage of the saying was sufficiently widespread as to make it exceedingly unlikely ... that [the song's author] had ... independently created the phrase.").

    49

    Notwithstanding proof that copying occurred, copying that is so trivial as to fall below the quantitative and qualitative threshold of substantial similarity will be considered de minimis and thus not actionable. Sandoval, 147 F.3d at 217 (quoting Ringgold, 126 F.3d at 74); see also Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 71 (2d Cir. 1999) ("de minimis infringement of a copyrighted work is not actionable"). In making this determination, courts should consider "the amount of the copyrighted work that was copied." Sandoval, 147 F.3d at 217.

    50

    In the context of a copyright infringement claim, summary judgment may be granted when any similarities between the works relate only to non-copyrightable elements or when no reasonable jury could find the two works substantially similar. See Cantor, 51 F. Supp. 2d at 311 (citing Arica Inst. v. Palmer, 970 F.2d 1067, 1072 (2d Cir. 1992)); Arden, 908 F. Supp. at 1259.

    51
    B. Application
    52

    In this case, the main issue is whether there was improper appropriation.[4] As an initial matter, although defendants have identified the allegedly infringing excerpt in the My Love song to include the lyrics "Clap your hands, y'all, 't's'all right" and the accompanying music, it is undisputed that "clap your hands" and the accompanying note sequence C, B-flat, C comprise the only portions of the two songs that are identical. (Eskelin Tr. at 198, 279; Eskelin Decl. P 11). Moreover, a reasonable jury could only find that the other lyrics and music in the HCS and My Love Phrases are significantly different such that an average lay listener would not "recognize the alleged copy as having been appropriated from the [allegedly] copyrighted work." Durham Indus., 630 F.2d at 912. (See Eskelin Tr. at 278-79, 294). Accordingly, the infringement analysis that follows is applied only to the lyrics "clap your hands" and the three accompanying notes.

    53
    1. Protectibility
    54

    Although HCS is protected as a complete work, not every element of the song is per se protected. Rogers v. Koons, 960 F.2d 301, 307 (2d Cir. 1992) ("copyright protection extends only to those components of the work that are original"). Here, a reasonable jury could only conclude that the relevant excerpt of the HCS Phrase is not protectible because the sequence of the three notes and the lyrics lack the requisite originality.

    55

    As to the musical notes, the sequence C, B-flat, C commonly appears in music. (Eskelin Tr. at 276-77). Many songs contain a "mordent," which is a sequence of notes alternating from one note to a second note down one step and then returning to the first note. (Id.). Here, defendants' expert conceded at his deposition that "thousands" of "songs exist in the literature containing the melodic pitches C, B-flat and C." (Id.). In fact, the specific sequence C, B-flat, C is used as an example of a mordent in the Harvard Dictionary of Music. Harvard Dictionary of Music 540 (Willi Apel, The Belknap Press of Harvard University Press, 2d ed. 1997) (1944). Moreover, according to Eskelin, the pitches C, B-flat, C accompanied by the same rhythmic values found in the HCS Phrase commonly appear in music. (Eskelin Tr. 277). Because C, B-flat, C is a common musical sequence, a reasonable jury could only find that the authors of HCS did not create the musical excerpt, and, therefore, this musical phrase is not susceptible to copyright protection. Acuff-Rose, 155 F.3d at 144; Stratchborneo , 357 F. Supp. at 1405.

    56

    Similarly, a reasonable jury could only conclude that the lyrical excerpt "clap your hands" is not afforded copyright protection because the excerpt is a common phrase. The lyrics appear often in church anthems and secular music. (Eskelin Tr. at 272-73, 316; see Beavers Rep. at 3-8 & Listening Exs. 1.1, 2.1, 3.1 - 3.5). There are, for example, recordings of other songs with the same lyrics and theme. (Ferrara Rep., Ex. B; see also Beavers Rep. at 3-4, 8 & Listening Exs. 1.2, 2.2, 2.3 & 4.1). "Clap your hands" is even part of a biblical phrase. (Ferrara Rep. at 5; Beavers Rep. at 2 (quoting Psalm 47:1, King James Version)). Because the lyrical phrase appears frequently, a reasonable jury could only conclude that it is an element of HCS that is not protectible. Acuff-Rose, 155 F.3d at 144; Stratchborneo, 357 F. Supp. at 1405.

    57

    Defendants argue that the lyrics and accompanying music must be analyzed together and that because plaintiffs have failed to show prior art using the same lyrics and notes together, originality can be properly credited to defendants. The argument is rejected. First, the lyrical phrase and the three notes are so common and unoriginal that even when they are combined they are not protectible.

    58

    Second, the cases cited by defendants are distinguishable. Where, for example, the Second Circuit in Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 161 F.2d 406 (2d Cir. 1946), held that "the words and music of a song ... are as little separable for purposes of the copyright as are the individual musical notes which constitute the melody[,]" id. at 409, the Second Circuit was assessing copyright validity and ownership rather than substantial similarity in an infringement context.

    59

    In Acuff-Rose Music, Inc. v. Jostens, Inc., 988 F. Supp. 289, 295 (S.D.N.Y. 1997), aff'd, 155 F.3d 140, this Court found that the scope of the creator's copyright extended to his vocal rendition of unprotected lyrics. Such a finding, however, does not prove defendants' proposition here, that the combination of unprotected lyrics and unprotected notes creates one protected element.

    60

    M.H. Segan Ltd. P'shp v. Hasbro, Inc., 924 F. Supp. 512 (S.D.N.Y. 1996), abrogated on other grounds by Nadel v. Play-By-Play Toys & Novelties, Inc., 208 F.3d 368 (2d Cir. 2000), in which the Court relied on the Second Circuit's holding in Knitwaves, 71 F.3d 996. In its infringement analysis in Knitwaves, the Second Circuit considered the unprotected elements of the sweaters at issue, namely stripes and common colors, along with the original elements, such as the placement of leaves and squirrels. Knitwaves, 71 F.3d at 1003 (examining the "total concept and feel"). The Court concluded that "an observer viewing the sweaters side by side cannot help but perceive them as coming from one creative source." Id. at 1004. Here, however, a listener hearing the two phrases one after the other would not conclude that they came from the same source. Similarly, the finding in Stratchborneo , 357 F. Supp. 1393, that "initial focus should be placed on music and lyrics taken together" does not establish that unprotectible elements combined are per se protectible. Id. at 1405 (emphasis in original).

    61

    Because a reasonable jury could only find that "clap your hands" is a common lyrical phrase and the music accompanying is a common musical sequence, neither the lyrics nor the music could be found to be a protectible element of HCS. Likewise, no reasonable jury could find that the combination of the unprotectible lyrics and unprotectible music would create one protectible element. Accordingly, a reasonable jury could only find that there is no substantial similarity as to the protected elements under the average lay listener test and that there is no copyright infringement. Knitwaves, 71 F.3d at 1002; Durham Indus., 630 F.2d at 912.

    62
    2. De Minimis Copying
    63

    Even assuming that the HCS and My Love Phrases are protectible and that there was copying, a reasonable jury could only conclude that there was no infringement because the excerpts at issue are de minimis and trivial compared to the entire works. A jury could only find that copying the HCS Phrase alone is not actionable. See Stratchborneo, 357 F. Supp. at 1404-05 (No "substantial similarity [will] be found if only a small, common phrase appears in both the accused and complaining songs ... unless the reappearing phrase is especially unique or qualitatively important.").

    64

    Although the excerpts repeat throughout the songs, a jury could only find that the similarity of the songs is of "small import quantitatively and qualitatively." Williams v. Crichton, 84 F.3d 581, 588 (2d Cir. 1996); see Duffy v. Penguin Books USA Inc., 4 F. Supp. 2d 268, 273 (S.D.N.Y. 1998). First, the songs, taken as a whole, are substantially different. (Eskelin Decl. P 11). Second, the only identical portions of the two songs are the first three words and notes of the HCS and My Love Phrases -- common musical and lyrical phrases. (Id.).

    65

    An average lay listener would not "recognize [My Love] as having been appropriated from [HCS]." Durham, 630 F.2d at 912. Accordingly, a reasonable jury could not conclude that the plaintiffs copied defendants' work in violation of defendants' copyright.

    66
    CONCLUSION
    67

    For the reasons set forth above, plaintiffs' motion for summary judgment is granted. Plaintiffs' motion to bifurcate the case pursuant to Fed. R. Civ. P. 42(b) and defendants' motion are denied as moot. Plaintiffs' request for attorneys' fees and costs is denied. Plaintiffs shall submit a proposed judgment on notice on or before March 4, 2002.

    68

    SO ORDERED

    69

    Dated: New York, New York

    70

    February 25, 2002

    71

    DENNY CHIN

    72

    United States District Judge

    73

    [1] Although R & B Music LLC is the party named in the caption, various documents refer to R & B Music, Inc. rather than R & B Music LLC. For the purposes of this Memorandum Decision, R & B Music LLC and R & B Music, Inc. are used synonymously.

    74

    [2] References to "Countercl." are to the counterclaim portion of the Answer, Counterclaim and Jury Demand of Defendants Bug Music, Inc. and R & B Music LLC. Because the document includes two sets of sequential paragraphs beginning with paragraph 1, references are made specifically to the answer or counterclaim portion of the document.

    75

    [3] By letters to the Court in early July 2001, plaintiffs requested that the declaration and accompanying exhibits of defendants' expert Eskelin be stricken from the record on the grounds that this material was submitted in violation of the Court's orders. By Order dated July 9, 2001, I denied plaintiffs' request and stated that I would consider plaintiffs' objections when I decide these motions. Plaintiffs' objections are overruled, and I have considered Eskelin's declaration.

    76

    [4] For the purposes of plaintiffs' motion only, plaintiffs concede that defendants can establish valid ownership of a copyright as well as a prima facie showing of actual copying. (Pl. Br. at 2 n.1). Defendants, in their cross-motion, move for summary judgment on the grounds that the HCS Phrase is original and protectible and that plaintiffs had access to defendants' work. Because I am granting plaintiffs' motion for summary judgment, I do not reach defendants' arguments as to access.

  • 4 David J. Prince and Gary Graff, "Coldplay, Satriani Copyright Lawsuit Dismissed," Billboard.com (September 15, 2009)

  • 5 Randy Lewis, "Beach Boys vs. Katy Perry? A warning, not a lawsuit," Pop & Hiss, The L.A. Times Music Blog (August 5, 2010)

  • 6 Ben Sheffner, "Henley, DeVore settle lawsuit; Henley rails against remixes and mash-ups, YouTube, 'dark side' of Internet; songs are not 'toys or playthings'," Copyrights & Campaigns (August 5, 2010)

  • 7 Henley v. Devore, Case No. 8:09-cv-00481-JVS-RNB (C.D. Cal.), Lawrence Ferrara, Report re: (1) "The Boys of Summer" as recorded by Don Henley and "The Hope of November" and (2) "All She Wants to Do Is Dance" as recorded by Don Henley and "All She Wants to Do is Tax," read pp. 1 - 5 and 13 - 18

  • 8 Henley v. Devore, Case No. 8:09-cv-00481-JVS-RNB (C.D. Cal.), Declaration of Lawrence Ferrara in Support of Plaintiffs' Motion for Partial Summary Judgment (April 8, 2010) (.pdf), read Pars. 1 - 5; 31 - 33; 44 - 47

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