Opinion
No. 00 Civ. 9181 (JFK)
September 23, 2002
Attorney For Plaintiff: John Jorgensen, Pro Se from Brooklyn, New York.
Attorneys For Defendant, Warner-Tamerlane Publishing Corp.: SONNENSCHEIN NATH ROSENTHAL from New York, New York. Of Counsel: Christine Lepera.
Attorneys For Defendants, BMG Music Publishing Inc., Songs of Nashville Dreamworks: PARCHER, HAYES SNYDER from New York, New York. Of Counsel: Orin Snyder.
Attorneys For Defendants, Fox Film Music Corporation, Famous Music Corporation and Blue Sky Rider Songs: LOEB LOEB LLP from New York, New York. Of Counsel: Jonathan Zivin.
OPINION AND ORDER
Pro se plaintiff John Jorgensen ("Jorgensen") brought this copyright infringement action claiming that two songs, My Heart Will Go On ("Heart"), performed by Celine Dion on the soundtrack to the film Titanic, and Amazed, performed by the country music group Lone Star, infringe upon his copyrighted work Long Lost Lover ("Lover"). Plaintiff filed his original complaint on December 1, 2000, and filed an amended complaint on January 17, 2001. The amended complaint contains one count of copyright infringement under 17 U.S.C. § 101 alleging infringement by both songs. See Amend. Compl. ¶ 10. Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motion is granted.
BACKGROUND
Plaintiff is a musician who sings, plays guitar, piano and bass guitar, and is a songwriter. He also teaches and performs at functions including weddings and parties. Jorgensen has registered several copyrights for his works with the Copyright Office, including registering " Lover" (registration number PAU-2-013-382) on October 2, 1995.
Heart was written in 1997 by James Horner ("Horner") and Will Jennings ("Jennings") for inclusion on the Titanic soundtrack. Horner wrote the music, and Jennings wrote the lyrics. See Affidavit of Kent Klavens ("Klavens Aff.") ¶ 9. Pop music artist Celine Dion recorded the song. Id. ¶ 12. Heart won several awards including an Oscar for Best Original Song in 1998, and four Grammy awards. Id. ¶ 13. It is estimated that over forty million copies of the song have been sold in compact disc ("CD") format alone. Id. ¶ 14.
Defendant Sony Music Entertainment ("Sony") is an entertainment company that manufactures and distributes CDs and audio tapes of sound recordings. By agreement with the producers of the film Titanic, Sony manufactured and distributed the film's soundtrack album and also distributed a single of the song and other albums containing the song. Sony was not involved with the writing of Heart, but only its distribution.
Defendant Famous Music Corporation ("Famous") is a music publishing company affiliated with Paramount Pictures Corporation ("Paramount"). Paramount, with Twentieth Century Fox Film Corporation ("Fox Film"), co-produced Titanic. Fox Film Music Corporation ("Fox Music") is a music publishing company affiliated with Fox Film. Defendant Blue Sky Rider Songs ("Sky Rider") is a music publishing company owned by Jennings.
The three co-publishers of Heart are Famous, Fox Music, and Sky Rider.
Amazed was written by Chris Lindsey, Aimee Mayo, and Mary Green. In 1999, the country music group Lonestar recorded the song on their album "Lonely Grill" which was produced by Nashville record producer Dan Huff ("Huff"). Amazed was on the Billboard Hot 100 chart for fifty-five weeks. The Lonely Grill album was on the Billboard Top Country Albums chart for 104 weeks. Defendants Career BMG Music Publishing Inc. ("BMG"), Songs of Nashville Dreamworks ("Dreamworks") and Warner-Tamerlane Publishing Corp. ("Warner-Tamerlane") administer the publishing rights to Amazed. All of the above named defendants now move for summary judgment.
DISCUSSION
I. Summary Judgment
A motion for summary judgment may be granted under Fed.R.Civ.P. 56 if the entire record demonstrates that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). When viewing the evidence, the Court must "assess the record in the light most favorable to the non-movant and . . . draw all reasonable inferences in its favor." Delaware Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990); McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). Courts should "take care not to abort a genuine factual dispute prematurely and thus deprive a litigant of his day in court." Donahue, 834 F.3d at 55. The moving parties bear the burden of proving that no material facts are in dispute. Donahue v. Windsor Locks Bd. of Fire Comm'rs., 834 F.3d 54, 57 (2d Cir. 1987). Once the movants show there are no genuine issues of material fact, the Opposing party must produce sufficient evidence to permit a reasonable jury to return a verdict in its favor, identifying "specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248, 256. The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Repp K R Music, Inc. v. Webber, 132 F.3d 882, 889 (2d Cir. 1997) (citation omitted). Conclusory allegations will not suffice. Id.
Plaintiff is proceeding pro se. The Court must judge his pleadings more leniently than it would submissions drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Ortiz v. Court Officers of Westchester County, et al., No. 95 Civ. 1194, 1996 WL 531877, at *1 (S.D.N.Y. Sept. 19, 1996). However, the Court's application of this different standard does not relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment. Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995).
Courts have "regularly granted summary judgment where it is clear that the plaintiff cannot make out the elements of the claim" of copyright infringement. Siskind v. Newton-John, No. 84 Civ. 2634, 1987 WL 11701, at *4 (S.D.N.Y. May 22, 1987). The grant of summary judgment in these actions "signal[s] an important development in the law of copyright, permitting courts to put `a swift end to meritless litigation' and to avoid lengthy and costly trials." Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir. 1980).
II. Copyright Infringement
In a copyright infringement action, plaintiff must establish (1) ownership of a valid copyright and (2) copying of constituent elements of the plaintiff's work that are original. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991); Williams v. Crichton, 84 F.3d 581, 587 (2d Cir. 1996). It is undisputed that Jorgensen owns a valid copyright for Lover. The dispute here centers on the second element. In the absence of direct evidence of copying, plaintiff must prove that defendant had access to plaintiff's work. Williams, 84 F.3d at 587. Because such evidence is typically unavailable, plaintiff may rely on indirect proof to demonstrate copying. Warner Bros. Inc. v. Am. Broad. Cos., Inc., 654 F.2d 204, 207 (2d Cir. 1981). "Copying may be inferred where a plaintiff establishes that the defendant had access to the copyrighted work and that substantial similarities exist as to protectable material in the two works." Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir. 1986); see also Williams, 84 F.3d at 586;Siskind, 1987 WL 11701, at *4. Defendants move for summary judgment on the issue of lack of access.
To establish access, plaintiff must show more than a bare possibility of access. Siskind, 1987 WL 11701, at *4 (citations omitted). Access means "hearing or having reasonable opportunity to hear the plaintiff's work, in other words having the opportunity to copy." Cox. v. Abrams, No. 93 Civ. 6899, 1997 WL 251532, at *3 (S.D.N.Y. May 14, 1997). Lover was never commercially recorded or released. (Tr. 214:18-2l5:17). Because Lover has not been widely disseminated, plaintiff can prove access by showing "a particular chain of events or link by which the alleged infringer might have gained access to the work." Cox, 1997 WL 251532, at *3 (quotations omitted).
"Tr." refers to the transcript of the deposition taken of John Jorgensen by defendants on July 31, 2001 and August 1, 2001.
Plaintiff bears the burden of presenting "significant, affirmative and probative" evidence to support his claim of access. Tisi v. Patrick, 97 F. Supp.2d 539, 547 (S.D.N.Y. 2000) (cites omitted) (emphasis added). "Conjecture or speculation of access will not suffice." Intersong-USA v. CBS, Inc., 757 F. Supp. 274, 281 (S.D.N.Y. 1991). To survive summary judgment, a plaintiff must show a reasonable possibility of access, not a bare possibility. Cox, 1997 WL 251532, at *3 (emphasis added).
The mere receipt of plaintiff's work by corporate defendants is insufficient to establish access. Dimmie v. Carey, 88 F. Supp.2d 142, 146-47 (S.D.N.Y. 2000). Such bare corporate receipt does not create a prima facie case of access sufficient to defeat summary judgment. Id.; see also Tisi, 97 F. Supp.2d at 546, 549 (holding that although plaintiff submitted unsolicited demo tapes to defendant's record company and other companies there was no evidence that plaintiff's composition was ever passed from the company to the defendant or to anyone involved in the creation of the allegedly infringing composition).
Jorgensen's access arguments center on receipt of his unsolicited mailings by defendants and an industry wide conspiracy against him. Plaintiff sent unsolicited tapes of his song to the artist and repertoire ("AR") departments at music record and publishing companies. The employees of those departments listen to unsolicited music, and help find and sign new talent. Jorgensen contends that any of these companies to which he sent his music could have provided those responsible for Heart or Amazed with Lover, but admits that these chains of access are based on his conjecture. (Tr. 182:10-183:24; 184:10-184:14). Further Jorgensen claims that Dan Huff, a Nashville musician, whom he never met and to whom he never sent a copy of the song, was at the center of a conspiracy among Nashville musicians and music executives to steal his song. See Amend. Compl. ¶ 7. Plaintiff believes Huff played a role in the alleged infringement "because of his association and affiliations with Nashville writers, musicians, and publishing companies," and because Huff is "very much involved in Nashville's very close knit music community." Id.
Regarding Heart, Jorgensen admits that he has never met Horner or Jennings nor that he has ever sent them any music. (Tr. 89:13-90:1). Plaintiff focuses on his sending a copy of Lover to Harvey Leeds of Sony. See Amend. Compl. ¶ 8. Leeds received tapes of Jorgensen's songs but did not listen to them. (Leeds Dep. Tr. 9:21-23; 18:21-24; 21:17-19; 26:13-19). He did not forward Jorgensen's package, nor has he met or spoken with Horner or Jennings. (Leeds Dep. Tr. 29:23-30:11). Leeds is involved with the budget and production aspect of recording; he does not work creatively with the artists and writers. Jorgensen's argument that Leeds as a vice-president "knows and mingles with many important people in the music industry does not establish access. See Opp. Br. ¶ 7. Similarly, the contention that Leeds' office is in direct proximity of the AR Dept." and he knows people in that department is inadequate to meet plaintiff's burden. Id.
Regarding Amazed, Jorgensen claims that the three writers of Amazed gained access to Lover through his unsolicited mailings. (Tr. 63:4-9; 174:22-176:4; 184:10-14). However, Jorgensen concedes that he never met or communicated with any of the Amazed writers and has never sent his music to any of them. (Tr. 152:24-153:15.). Jorgensen has no knowledge that any of the writers of Amazed ever attended any of his performances. (Tr. 22:18-223:14). Jorgensen focuses on the fact that he sent his tape to Bruce Pollock ("Pollock"), a Managing Producer in Bertelsmann Music Group's Special Products division, in 1996 and 1997. Pollock admits that he received a CD containing Lover, but he did not send it to the writers of Amazed, Dan Huff, or anyone else. See Pollock Decl. ¶ 3, ¶ 5. His position at BMG does not involve working creatively with the songwriters. Id. ¶ 4.
While plaintiff asserts that Huff is at the center of this industry-wide conspiracy, he admits that he has never met, spoken to or sent music to Huff. (Tr. 92:25-93:1, 153:16-19). In fact, Jorgensen cannot demonstrate that Huff has ever heard Lover. (Tr. 925:25-93:2; 153:16-19; 196:21-24; 199:9-20).
Viewing the evidence in the light most favorable to plaintiff, the Court concludes that Jorgensen has not proven access here. Jorgensen has not presented the requisite "significant, affirmative and probative" evidence in support of his claim. Jorgensen's claims stretch inference and presumption to the limits of their meaning. His complaint is based on sheer speculation and the proposition that infinitely possible things could have happened to his work after he submitted it to these corporate AR departments. However, a court of law cannot deal in the world of possibility but must rule in the land of actuality. Without more proof of access than has been demonstrated, Jorgensen's case cannot proceed. His claims amount to bare corporate receipt of his work and speculations of wrongdoing. Statements such as "everything can and will happen" Pl. R. 56.1 Stat. ¶ 5, do not support properly a legal claim.
Jorgensen fails to distinguish the mere receipt by these companies of his work from meaningful access and opportunity to copy. In fact Jorgensen cannot, with the rare exceptions of the admissions by Leeds and Pollock, show that his tapes were in fact received. Without even this initial step, the Court cannot make the leap to concluding that defendants had access to plaintiff's work. Plaintiff 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. The evidence adduced by plaintiff is insufficient to meet his burden.
Plaintiff's argument that defendants gained access by means of the Huff conspiracy fail. This argument is also based on conjecture, speculation and coincidence. Plaintiff did not show Huff to have access to his work, nor presuming Huff did have access, that Huff shared plaintiff's work with those responsible for creating the allegedly infringing songs.
Plaintiff attempted to argue in his opposition brief, see Opp. Br. ¶ 4, and supplemental submissions that the allegedly infringing works were so similar to Lover that he need not prove access. Where a plaintiff cannot establish access, he can avoid dismissal by showing a "striking similarity" — one strong enough to "preclude the possibility of independent creation" — between the two works at issue. Tisi, 97 F. Supp. at 547. Essentially plaintiff would have to show that the two works are so alike that the only explanation for the circumstance is that copying occurred. Nevertheless, plaintiff admitted that the alleged infringement of Lover was "subtle" and is now raising striking similarity in a belated attempt to survive dismissal. In light of his own earlier admissions and his failure to supply evidence of "striking similarity", the Court will not address this argument at length. Further discussion of this issue is not necessary to decide this motion because the matter turns on the doctrine of access.
CONCLUSION
For the reasons outlined above, defendants' motion is granted. The Court orders this case closed and removed from its active docket.
SO ORDERED.