Newly Discovered Evidence Stays Liability Finding In Shakira Suit

Mayimba Music, Inc. v. Sony Corp. of Am., No. 12-cv-01094 (S.D.N.Y. filed 04/30/15) [Doc. 139].

Finding that newly discovered evidence concerning the authenticity and date of creation of an audio tape, which implicated a potential fraud on the court during the liability phase of trial, resulted in the Court staying a previous finding of liability pursuant to Rules 59 and 60.  The Court had previously found plaintiff had a valid copyright in the song at issue, that the plaintiff's testimony was credible that he had authored the song between 1996 and 1998, that it was an original song, that the song was recorded onto a cassette tape in 1998, and that a copy of the song on the tape was registered at the Copyright Office in November 2011.  After trial, the parties engaged in extensive discovery of damages in preparation  for the second phase of trial.  Four months after the liability opinion was issued, Defendants filed a motion contending that newly-discovered evidence demonstrated that the tape was fabricated in 2011, not created in 1998, and that plaintiff had lied under oath when he testified that the tape had been created in 1998.  Thus, the core issues before the Court were "when the tape was created, and whether witnesses lied on the stand with respect to its creation".  The Court found that "this is newly discovered evidence which could not have been found with reasonable diligence before trial. ... Furthermore, the evidence now put forth, if credited, clearly establishes that Plaintiff attempted to commit a fraud upon this court, going so far as to fabricate evidence and to commit perjury."  Accordingly, the Court suspended the finding of liability against Defendants "until further clarification can be found on these very serious issues."

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.