Will Loomis is the composer of a song called “Bright Red Chords,” recorded by his band Loomis & the Lust. Loomis brought a copyright infringement suit against Jessica Cornish, publicly known as recording artist Jessie J; her record label, Universal Music Group Inc.; and Universal Republic Records, alleging that she and a team of high-profile songwriters including Dr. Luke and Max Martin copied a vocal melody from “Bright Red Chords” and used it in her hit song “Domino.” The district court granted the defendants’ motion for summary judgment, basing its ruling entirely on the fact that Loomis presented no evidence that the defendants had access to “Bright Red Chords.” On appeal, the Ninth Circuit reviewed the case de novo.
Loomis composed, recorded and obtained a copyright registration for “Bright Red Chords” in 2008 and included the song on his band’s 2009 album, “Nagasha.” While the song and the band received some attention in 2009 and 2010, obtaining features on MTV, in name-brand clothing stores and in Billboard magazine, Loomis could provide documentation for only 46 sales of the recording. “Domino,” on the other hand, was written in 2011 and achieved substantial commercial success.
To establish a claim of copyright infringement, a plaintiff must show (1) ownership of a valid copyright and (2) copying of constituent elements of the work that are original. The parties did not dispute that Loomis owned a valid copyright to “Bright Red Chords.” Where there is no direct evidence of copying, an inference of copying can be made when the facts show that the defendants had access to the plaintiff’s work and that the two works are substantially similar. To prove access, a plaintiff must show a reasonable possibility, not merely a bare possibility, that the defendants had the chance to view the plaintiff’s work. As the district court’s findings in this case relied entirely on the issue of the defendants’ access to “Bright Red Chords,” the Ninth Circuit’s review on appeal was limited to this point.
Loomis argued two separate theories to show that the defendants had access to “Bright Red Chords.” First, he argued there were numerous third-party intermediaries with which both he and the defendants were dealing who could have provided the defendants with access to his song. One of these intermediaries was Sunny Elle Lee, a talent scout and development representative for UMG Recordings, who was furnished a copy of “Bright Red Chords.” Loomis argued that because Lee’s job was to find and share music, and because she appeared successful at her job, a reasonable jury could find that she passed his song along to the “Domino” songwriters. The Ninth Circuit disagreed, holding that “bare corporate receipt” of a work, without any nexus between the intermediary and the alleged infringers, is insufficient to raise a triable issue of fact as to access. Furthermore, the “Domino” songwriters stated that they never interacted with Lee nor received any songs from her. The Ninth Circuit found no evidence beyond Loomis’ speculation of a nexus between the “Domino” songwriters and Lee.
Loomis also argued that Casey Hooper, a former guitarist for Loomis & the Lust who later allegedly participated in two Katy Perry projects involving Dr. Luke and Max Martin, could have given the “Domino” songwriters access to “Bright Red Chords.” However, Loomis relied on hearsay evidence to argue that Hooper had worked with Dr. Luke and Max Martin during a 10-day recording session for Katy Perry’s album “Teenage Dream”; he did not submit any admissible evidence to show that Hooper was involved in the “Teenage Dream” sessions, the Ninth Circuit pointed out. This, the Ninth Circuit held, was not enough to survive summary judgment.
Loomis’ second theory of access relied on the doctrine that a reasonable possibility of access can be established by showing that the plaintiff’s work has been widely disseminated. While “Bright Red Chords” was not a widely disseminated commercial success, the Ninth Circuit noted a variation of this doctrine that allows the plaintiff to show that the work had saturated a relevant market and that the defendants had participated in that market. Based on this theory, Loomis argued that “Bright Red Chords” had saturated the Santa Barbara, California, market at a time when Dr. Luke and Max Martin were in the city recording songs with Katy Perry. Loomis testified that “Bright Red Chords” was receiving a lot of local radio airplay at the time, local publications were running stories on the band, and he had deposited promotional copies of “Bright Red Chords” at the recording studio where the “Domino” songwriters were working. However, the Ninth Circuit concluded that Dr. Luke and Max Martin were not participating in the Santa Barbara local music scene. Their brief stay in Santa Barbara was spent recording an album for a major artist and had nothing to do with listening to local radio or scouting local bands. Although the Ninth Circuit recognized a “bare possibility” that the “Domino” songwriters heard “Bright Red Chords” while in Santa Barbara, without additional evidence establishing a reasonable possibility that they had access to “Bright Red Chords,” that possibility was not enough to raise a triable issue of access for purposes of summary judgment.
Accordingly, because Loomis failed to present potentially admissible evidence of a reasonable possibility that the “Domino” songwriters had access to “Bright Red Chords,” the Ninth Circuit affirmed the district court’s granting of summary judgment in favor of the defendants.