No Proof Of Access To Plaintiff's Songs Dooms Copyright Infringement Claim

William Smith et al. v. Abel M. Tesfaye (“The Weeknd”) et al. 2:19-cv-02507 (C.D. Cal. July 22, 2020)

A Los Angeles federal court has ruled for The Weeknd against claims that his track “A Lonely Night” was copied from “I Need to Love” by a trio of British musicians. The court expressed that there was no showing by Plaintiffs that The Weeknd had access to their song or that their works were substantially similar. The Complaint alleges claims for: (1) direct copyright infringement (against all defendants); (2) contributory copyright infringement (against all defendants); (3) vicarious copyright infringement (against all defendants); (4) declaration of authorship/ownership; (5) accounting - declaratory relief; (6) constructive trust - declaratory relief; and (7) unjust enrichment. In their Motion for Summary Judgment, Defendants argued that Plaintiffs’ did not have any evidence that Defendants had access to Plaintiffs’ song and because the protectable elements in “I Need to Love” are not substantially similar to “A Lonely Night.” In an opinion issued on July 22, 2020, the Court of the Central District of California granted Defendants’ Motion for Summary Judgement. The Court ruled that Plaintiffs were unable to sufficiently establish genuine issues of material fact regarding the elements of access and substantial similarity. The Court said that it found no evidence those involved with the creation of “A Lonely Night” had any access to the song “I Need to Love”. Also, the lyrics in the two songs are not similar. Therefore, the Court concluded there was no reasonable inference for anything more than a “bare possibility” that Defendants accessed “I Need to Love. After discovery Plaintiffs still had no evidence of any license. Without evidence of a license, Plaintiffs’ state law claims fail as a matter of law. Additionally, without evidence of a license, Plaintiffs’ state law claims lack the “extra element” required to avoid the Copyright Act’s preemption provision. The Court thus ruled in favor of summary judgement for Defendants on Plaintiffs’ state law claims. Since Plaintiffs failed to establish genuine disputed issues of material fact concerning Defendants’ access to Plaintiffs’ musical composition or that Defendants’ musical composition is substantially similar to Plaintiffs’ work in its protectable elements, the Court ruled in favor of summary judgement for the Defendants on all issues.

9th Circuit Affirms Led Zeppelin Trial Verdict That "Stairway To Heaven" Is Not An Infringement

Skidmore as Trustee for Randy Craig Wolfe Trust v. Zeppelin, No. 16-56067, No. 16-56287, 2020 WL 1128808 (9th Cir. Mar. 9, 2020) (en banc)

In an en banc decision, the 9th Circuit affirmed the Central District of California’s post-jury trial judgment in favor of Led Zeppelin in a suit alleging that Led Zeppelin’s song “Stairway to Heaven” infringed the song “Taurus” written by guitarist Randy Wolfe of the band Spirit.

In Part I of the en banc decision, the court held that the 1909 Copyright Act controlled the court’s analysis because the allegedly infringed song “Taurus” was registered prior to the 1976 Copyright Act’s enactment. As a result, it was not error for the lower court to refuse to admit the sound recordings of “Taurus” to evidence.

In Part II, the court held that proving copyright infringement here required a showing that (1) the plaintiff owned a valid copyright for “Taurus,” and (2) Led Zeppelin copied protected elements of “Taurus,” which further required a showing of both copying and unlawful appropriation by Led Zeppelin.

In Part III, the court concluded that as it pertained to access and confusion with substantial similarity, the lower court’s exclusion of the “Taurus” sound recordings was moot because the jury found access regardless.

Next, in Part IV the court addressed the following issues regarding the district court’s jury instructions: (1) “the failure to give an inverse ratio instruction”; (2) “the sufficiency of the court’s originality instructions”; and (3) “the failure to give a selection and arrangement instruction.” In addressing these issues, the court held that (1) an inverse ratio was not required for substantial similarity; (2) the district court’s originality instructions were proper; and (3) failure to give selection and arrangement instruction receives plain error review, there was no plain error by the district court, there was no error by the district court because the plaintiff’s case did not involve a selection and arrangement theory at trial, and the district court’s instructions as a whole were fair and adequate as to plaintiff’s argument of extrinsic similarity between the songs.

Finally, in Part V the court held that the district court’s trial time limits, response to a jury question, admission of expert testimony, and non-award of attorneys’ fees was not error.

"Gimme Some Lovin'" Guitar Riff Claim Dismissed

Parker v. Winwood et al., No. 16-cv-684 (M.D. Tenn. 10/17/2017) [Doc. 99].

In a copyright infringement action concerning the guitar riff in the classic rock song Gimme Some Lovin' performed by the Spencer Davis Group, the Court granted the defendants' motion for summary judgment.  Plaintiff's song was governed by the 1909 Act, under which the general rule was that the publication of a work with proper notice was necessary to obtain statutory copyright protection.  The Court found that "Although Defendants proffer evidence that the work was distributed as a phonorecord prior to 1978, the Copyright Act specifically states that the distribution of phonorecords prior to 1978 is not considered a publication under copyright law. See 17 U.S.C. § 303. Even if the work-at-issue had been published, however, Plaintiffs would not be foreclosed from bringing an infringement suit so long as they made the requisite deposit. The right to sue is not destroyed for failure to make a prompt deposit after publication."  Accordingly, the motion to dismiss was denied.

Nonetheless, there were other basis to dismiss.  One defendant's motion to dismiss was granted for lack of personal jurisdiction -- he was not properly served, and had no minimum contacts with Tennessee.  As to the record label owner, after rejecting the argument that the plaintiff's lacked standing, the Court nonetheless found that the claim should be dismissed because the record label's sister company owned the rights to plaintiff's song!

Turning to the meat of the claim, the Court granted the defendant musicians summary judgment:

The Court finds no dispute of material fact still exists regarding whether Defendants had a “reasonable possibility” of access to Plaintiffs’ song before they created “Gimme Some Lovin’.” Specifically, the Court finds Plaintiffs have failed to meet their burden to show that there is a dispute regarding whether Defendants infringed Plaintiffs’ song between its release date on October 7, 1966 in the United Kingdom (ECF No. 64 ¶ 25) and the release date of “Gimme Some Lovin’” on October 28, 1966 (ECF No. 64 ¶ 25), or at any time before that date. Defendants presented evidence in the form of affidavits that the members of The Spenser Davis Group had not heard Plaintiffs’ song prior to creating "Gimme Some Lovin’.” (Mervyn Winwood Decl., ECF No. 57 ¶ 5; Stephen Winwood Dec., ECF No. 58 ¶ 4; Spenser Davis Decl., ECF No. 59 ¶¶ 3, 5.) The burden then shifted to Plaintiffs to set forth specific facts showing a triable issue of material fact. Plaintiffs only proffered inadmissible evidence to refute these facts Defendants set out in affidavit form. Plaintiffs also proffer no admissible evidence that Defendants infringed Plaintiffs’ song between its release and Defendants’ release, but rather contend it would have been possible. (ECF No. 64-6 at PageIDs 547-48.) Because Plaintiffs have failed to proffer any admissible evidence that establishes a genuine issue of material fact as to whether Defendants heard Plaintiffs’ song prior to creating or releasing “Gimme Some Lovin’,” the Court GRANTS summary judgment in favor of Defendants Steve Winwood and Kobalt (ECF No. 54)

Copyright Infringement Claim Against Songwriter Dr. Luke Fails Absent Evidence of "Access"; 9th Cir.

Loomis v. Cornish, No. 13-57093 (9th Cir. Sept. 2, 2016).

Plaintiff composer's claim, alleging that high-profile songwriters (including Dr. Luke) stole a two-measure vocal melody and used it as the theme for the verse melody in their hit song “Domino,” failed because the plaintiff did not put forth any potentially admissible evidence to establish that the Domino songwriters had access to plaintiff's song, holds the 9th Circuit in affirming summary judgment for the defendants.

Will Loomis, composer of the song “Bright Red Chords,” alleged that the defendants stole part of his song. The panel held that at summary judgment Loomis failed to put forth any potentially admissible evidence to establish that the Domino songwriters had access to Bright Red Chords, either on a chain-of-events theory or a widespread-dissemination theory. Accordingly, he failed to establish copyright infringement.

Country Stars Beat Copyright Infringement Case Over "Remind Me" Hook

Bowen v. Paisley, No, 13-414 (M.D. Tenn. Aug. 25 2016).

Brad Paisley and Carrie Underwood did not infringe plaintiff's song, holds the Court in granting Defendants summary judgment in a case brought by a country music songwriter.  The two songs at issue were called "Remind Me," and specifically their allegedly similar "hooks."  The Court held that the plaintiff had sufficiently established originality and access, but that she has not presented sufficient evidence of substantial similarity between the two works to survive summary judgment.  As to substantial similarity, in sum, plaintiff's expert identified the use of some similar techniques and musical devices, but she did not show that the two Works employ these techniques and devices in the same manner.  Further, these technical similarities were overwhelmed by the broader dissimilarities in context, structure, mood, melody, and harmony—the very features a lay listener would be likely to identify. 

In this case, however, the plaintiff does not allege literal copying of anything except the lyric phrases “remind me” and “baby, remind me,” and she has not shown that the defendants’ use of some of the same musical techniques and melodic features was similar enough to her use of the same techniques and features to render the expressions of the hook phrases in the two Works substantially similar. In short, the court finds that no reasonable juror could conclude, based on the undisputed evidence, that the songs overall, or the “hook” phrases specifically, are substantially similar. 

Stairway To Heaven Not Copyright Infringement Finds Federal Jury

Skidmore v. Led Zeppelin, No. 15-cv-3462 (C.D. Cal. June 23, 2016).

After about one day of deliberating, a federal jury in California returned a verdict in favor of Led Zeppelin finding that their iconic song "Stairway To Heaven" did not infringe the song "Taurus" by 1960's band Spirit.  News outlets report that the jury found that while Led Zeppelin had a reasonable chance of having heard "Taurus" in order to copy it, the songs were not extrinsically similar.

In Tejano Case, Virtually Identical Opening Lines Of Song Does Not Mean Per Se Striking Similarity; 5th Cir.

Guzman v. Hacienda Records, No. 15-40927 (5th Cir. Dec. 14, 2015).

Affirming judgment after a bench trial, the Fifth Circuit held that the District Court did not err in finding lack of access to the song (despite radio play and live performances) and that the songs were not strikingly similar even though the first lines were virtually identical (because there was no evidence of uniqueness or complexity).  Applying the "clearly erroneous standard," the 5th Circuit declined to second guess the District Court's findings.

Tejano Music Infringement Claim Fails Because No Access And Not Enough Similarity

Guzman v. Hacienda Records & Recording Studio, Inc., No. 6:12-CV-42, 2014 BL 344493 (S.D. Tex. Dec. 09, 2014).

After a bench trial, the Court dismissed plaintiff's copyright infringement claim because the alleged infringers did not have access to plaintiff's work nor were the two works strikingly similar.  This case is about two Tejano songs -- a hugely popular style of music in Corpus Christi from the 1970s through the 1990s, that is a a fusion of the Mexican and German influences in Texas. Although the Court found that substantial similarity existed between the songs, the Court declined to find the much higher standard of striking similarity, which is necessary for a finding of factual copying without any proof of access.  The Court also found that the evidence did not support a finding that defendants had access to plaintiff's song. The Court concluded that it was purely speculative that anyone associated with defendant heard plaintiff's song on the radio on the occasions when it was actually played, or ever heard it performed live.  "Because [plaintiff] has not shown a reasonable possibility that Defendants had access to his song, he cannot show that they copied it and his copyright infringement claim fails".

Tim McGraw Didn't Have Access To Plaintiff's Demo Tape; Summary Judgment Affirmed In Defendants' Favor

Martinez v. McGraw et al., No. 13-5796 (6th Cir. filed Sep. 15, 2014).

The 6th Circuit affirmed summary judgment in favor of defendants in a copyright-infringement action wherein Plaintiff alleged that Defendants infringed his musical composition Anytime, Anywhere
Amanda with the musical composition Everywhere by country-artist Tim McGraw.  On appeal, the 6th Circuit found that the District Court applied the correct standard -- that defendant had an opportunity to access Plaintiff's song -- and that Plaintiff could not meet that standard.  "There is no dispute that Anytime was never published or distributed, never received radio play, is not available on iTunes, has not been performed by third parties, and that Martinez performed the song only in South Texas. Defendants’ only possible access would have been through the demo tape Martinez gave to Tomac."  The record, though, was devoid of any evidence that the demo tape had been passed along.  "Martinez’s theories of access through third-party intermediaries fall short. The district court properly determined that Martinez presented only 'attenuated chains of hypothetical transmittals' in support of his claim that Defendants heard or had a reasonable opportunity to hear Anytime. See Patry on Copyright § 9:29. The chain of access vanishes after Tomac gave the lone demo tape to Bartley in the fall of 1996, and the hypothetical transmittals fail to support
a reasonable inference that any Defendant or associate of any Defendant received a copy of Anytime, much less that Wiseman or Reid, the alleged infringers, heard or had a reasonable opportunity to hear Anytime and copied it before they co-wrote Everywhere in November 1996."  Lastly, there was no error because no evidence was presented that protectible elements of the two works are substantially similar.

Infringement Action Against Lady Gaga Dismissed; No Substantial Similarity

Francescatti v. Germanotta; No. 11-cv-520 (N.D. Ill. June 17, 2014).

The Court granted defendant Lady Gaga's motion to dimiss the copyright infringement case over Gaga's song "Judas", even though the Court found that defendants had access to plaintiff's song "Juda," because no reasonable trier of fact could find that the songs are substantially similar.  With respect to access, the Court found that based on the nature and timing of a collaboration between Gaga and other defendants, a reasonable juror could find that there exists a nexus -- via a channel of communication -- between the parties and that therefore the defendants had an opportunity to hear the plaintiff's songs.  Accordingly, defendants were not entitled to summary judgment on that ground.  However, the Court found no substantial similarity.  First, the Court undertook an extensive analysis of whether expert testimony was necessary, or permissible, to determine similarity under the ordinary observer test.  The Court found that expert testimony was warranted because the songs are sufficiently complex, especially given the use of computer technology.  Second, the Court undertook the extrinsic-intrinsic test and held that the songs are substantially similar.  The songs do not share enough unique features to give rise to a breach of the duty not to copy another's work.

Blacked Eyed Peas Not Liable For Infringement In Absence Of Access And Lack Of Similarity

Pringle v. Adams, No. 12-55998 (9th Cir. Feb. 21, 2014).

The 9th Circuit affirmed summary judgment for the defendants -- the Black Eyed Peas and related parties -- in a copyright infringement case.  The Court found: "The evidence in support of Plaintiff, however, raises only the barest possibility that Defendants had access to [the song], and Plaintiff does not argue that there is a 'striking similarity' between [the song] and Defendants’ allegedly infringing work."  The 9th Circuit also affirmed sanctions against plaintiff for violating a court order regarding service of process on one of the defendants.

Summary Judgment Motions Denied In Alleged Hip Hop Infringement

Lessem v. Taylor et al., No. 07 Civ 10601(LLS), 2011 WL 344104 (S.D.N.Y. Feb. 3, 2011).

Plaintiffs moved for summary judgment that defendants' song "How We Do" infringes their copyrighted song "Elevator". (Defendants' song appears on the album "The Documentary" by hip-hop artist The Game.)

The Court analyzed defendants' access to the Plaintiff's work (specifically, through a third-party intermediary), the probative similarity of the two works (based on expert reports), the alleged improper appropriation, and whether or not defendants independently created their song. The Court determined that factual issues precluded summary judgment.