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Loomis v. Cornish

District court grants summary judgment in favor of defendants, a recording artist and record labels on plaintiff’s copyright infringement, finding that plaintiff failed to present either a clear chain of access to his work by the alleged infringers, despite corporate receipt, or widespread dissemination of his work.

Plaintiff, a self-employed musician who wrote a composition titled “Bright Red Chords” and later obtained a copyright registration for his work, brought suit against several recording artists as well as the recording companies UMG Recordings, Inc., and Universal Republic Records, alleging that defendants infringed upon his copyright by producing and distributing a musical composition called “Domino.”

As the court noted, because plaintiff lacked any evidence of direct copying, he needed to establish that the Domino writers had access to “BRC” and that the works were substantially similar. Plaintiff had never met with or spoken to the “Domino writers,” nor had he attempted to send his work to them. Instead, plaintiff attempted to establish access to his work through several different chains of alleged connections between the defendants and other individuals having access to “BRC” – some employed at defendant UMG and others not. Specifically, plaintiff identified five “high ranking executives” at UMG who he claimed had access to his work and argued that these individuals exerted such a degree of control over UMG’s artists that defendant writers likely would have received his work.

Noting that “bare corporate receipt” by an individual employed by the same company as the alleged copier is insufficient to establish a triable issue of access, and after reviewing other cases involving chains of access between copyright owners and the work of their alleged infringers, the court rejected plaintiff’s attempts to establish the requisite connection – an overlap in subject matter – between the intermediaries and defendant writers. The court examined in detail the alleged chain of events between each of the intermediaries and the defendant writers and concluded that plaintiff had failed to establish any meaningful connection or overlap between the alleged receipt of his song by any of the five UMG executives and any of the writers. In addition, the court noted that plaintiff’s chain of connection consisted of speculation and supposition, in part based on the positions the UMG executives held at the time (vice president of A&R, for example), and that plaintiff failed to provide concrete evidence rebutting defendants’ evidence that the intermediaries had no connection to or overlap with defendant writers.

The court also examined and rejected plaintiff’s arguments that two non-UMG employees served as conduits to one or more of the defendant writers, again finding that plaintiff had failed to provide any concrete evidence of the connection between the intermediary and the writers. The court specifically rejected plaintiff’s argument that the former guitar player for his band could have served as the conduit to the writers because all three played some role in the creation of a Katy Perry film (the guitar player was a writer, and the defendants were co-producers), finding that plaintiff had not presented any concrete evidence showing how or in what manner the three overlapped. The court also reached the same conclusion with respect to plaintiff’s allegation that an intermediary to whom he gave a copy of his song also worked with three of the defendant writers, finding that plaintiff’s assertion rested solely on his uncorroborated and self-serving testimony that he discovered that information on the Internet.

The district court also rejected plaintiff’s attempt to demonstrate access by showing that the plaintiff's work had been “widely disseminated.” Generally, the court noted, the case law makes clear that in order for a work to be considered widely disseminated, “it must achieve a high degree of commercial success or be readily available in the relevant market.” Here, the court noted that plaintiff’s evidence concerning the availability of “BRC” on the Internet and through various promotions fell far short of the degree of dissemination necessary to support an access claim.

Finally, the court noted that a plaintiff may circumvent the access element by demonstrating an overwhelming “striking similarity” between the works. The plaintiff failed to present any evidence on that issue, however, and the court further noted that evidence of “striking similarity” must show a nearly inescapable similarity that would be obvious to people listening to both works. Accordingly, the court granted defendants’ motion for summary judgment.

For more information, please contact Jonathan Zavin, W. Allan Edmiston, David Grossman, Tal Dickstein or Meg Charendoff.

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