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Songwriter brought pro se copyright infringement action against music publishers and distributors.The United States District Court for the Southern District of New York, John F.Keenan, J.,2002 WL 31119377, granted summary judgment for defendants, and songwriter appealed.The Court of Appeals held that:（1）songwriter failed to establish that one set of defendants had access to his copyrighted work, but (2) fact issue existed as to whether other defendants had access.
Affirmed in part, vacated in part, and remanded.
STRAUB, Circuit Judge.
Plaintiff John L.Jorgensen（“Jorgensen”）,pro se, appeals from the judgment of the United States District Court for the Southern District of New York (John F.Keenan, Judge) ,dated September 27, 2002, granting the defendants’motion for summary judgment and dismissing Jorgensen’s copyright infringement case in its entirety.The District Court found that Jorgensen had not presented sufficient evidence of access to support his claim of copyright infringement, i.e.,Jorgensen had not shown a reasonable opportunity by the allegedly infringing songwriters to hear and copy Jorgensen’s unpublished song.
We agree with the District Court that evidence of corporate receipt of unsolicited work is insufficient to raise a triable issue of access where there is no evidence of any connection between the individual recipients of the protected work and the alleged infringers.As to Defendants Careers BMG Music Publishing, Songs of Nashville Dreamworks, and Warner-Tamerlane Publishing Corp.,Jorgensen failed to introduce evidence of any such nexus; indeed, those defendants introduced uncontroverted evidence to the contrary.As such, we affirm the District Court’s ruling that Jorgensen failed to raise a triable issue of access as to those defendants.
With respect to Defendants Famous Music Corporation, Fox Film Music Corp.,Blue Sky Rider Songs, and Sony Music Entertainment Inc.(improperly sued as Epic/Sony Records) ,however, we find that Jorgensen did proffer sufficient evidence of a connection between the recipients of his recordings and the alleged infringers to make the grant of summary judgment on the issue of access inappropriate at this stage of the proceedings.We therefore vacate the judgment of the District Court as to Defendants Famous Music Corporation, Fox Film Music Corp.,Blue Sky Rider Songs, and Sony Music Entertainment Inc.and remand the case for further proceedings.
Jorgensen, a musician and songwriter, wrote and copyrighted a song entitled“Long Lost Lover”（“Lover”）that he claims has been infringed upon by the songs“My Heart Will Go On”（“Heart”）and“Amazed.”Written by James Horner and Will Jennings, and sung by Celine Dion,“Heart”was the Academy Award-winning theme song for the 1997 blockbuster movie Titanic.Defendants Famous Music Corporation, Fox Film Music Corp.and Blue Sky Rider Songs are the three co-publishers of“Heart,”and Defendant Sony Music Entertainment Inc.（“Sony”）manufactured and distributed the Titanic soundtrack.These defendants are collectively referred to as“the‘Heart’defendants”in this opinion.
“Amazed”,a song written by Chris Lindsey, Aimee Mayo and Marv Green, was recorded by the country music group Lonestar and released on their multi-platinum album“Lonely Grill”.Defendants Careers BMG Music Publishing（“BMG”）,Songs of Nashville Dreamworks, and Warner-Tamerlane Publishing Corp.(collectively‘the“Amazed”defendants’) are music publishing companies that administer the publishing rights to“Amazed.”
Jorgensen asserts two primary theories by which he hypothesizes that the writers of“Heart”and“Amazed”had access to, and copied his song,“Lover”：(i) through his unsolicited mass mailings of“Lover”to a multitude of entertainment companies listed in industry songwriter market books, including the defendants; and (ii) through actual receipt of his mailings by two executives at two of the defendant companies, BMG and Sony.Jorgensen has not named the writers of either song as defendants in this suit.
After discovery, the defendants moved for summary judgment on the ground that Jorgensen had failed to adduce any evidence to support these theories of access.In particular, the defendants argued that, with the two exceptions noted below, Jorgensen had made no showing that any of the defendants ever actually received his submission.Even where Jorgensen established actual receipt, the defendants asserted that there was no evidence that Jorgensen’s song had been forwarded to the writers of“Amazed”or“Heart,”or to any other third party.In addition, the defendants argued that Jorgensen never had any contact with the writers of either“Amazed”or“Heart,”and that Jorgensen had no evidence that the writers of either song would ever have received any tapes of unsolicited material from any of the companies to which Jorgensen sent copies of“Lover.”
Bruce Pollock, a managing producer at a BMG division that has no connection with the music publishing company, submitted a sworn declaration in which he admitted having received a compact disc copy of“Lover”from Jorgensen.Pollock stated, however, that he did not give the CD to anyone at any time, including the writers of“Amazed”whom he did not know and had never met.
Harvey Leeds, a Vice President at Sony responsible for reviewing touring budgets for Sony artists, also admitted during his deposition that he had received a few tapes from Jorgensen but stated that he did not listen to them, and had assumed they were thrown away.Leeds also testified that he did not know the“Heart”songwriters.
Based on this evidence from Pollock and Leeds and because Jorgensen did not produce any cover letters or other correspondence to the defendants indicating to whom (or when) he sent his other mailings of“Lover,”the District Court held that Jorgensen could not establish that the authors of either“Amazed”or“Heart”had a reasonable opportunity to hear his unpublished work.The court held that“bare corporate receipt”of Jorgensen’s work by those defendants who may have received Jorgensen’s mass mailings did“not create a prima facie case of access sufficient to defeat summary judgment.”And, according to the District Court, with respect to BMG and Sony, the fact that Pollock and Leeds, respectively, admitted receiving Jorgensen’s songs, without further evidence that they had forwarded the tapes to the songwriters or anyone else, was similarly inadequate to show access.
The District Court’s summary of the evidence regarding Jorgensen’s interactions with Leeds and Sony, however, was incomplete.During his deposition, Jorgensen testified at length about multiple conversations that he’d had with both Leeds and Leeds’s assistants over the course of three or more years regarding several tapes that Jorgensen sent to Leeds, including at least one tape that contained a recording of“Lover.”According to Jorgensen, during every one of these conversations, Leeds or his assistants confirmed that Leeds had received Jorgensen’s tapes (including, in particular, the“Lover”tape) and told Jorgensen that his tapes had been forwarded to Sony’s Artist and Repertoire（“A & R”）Department, the department responsible for helping the company“find, sign and guide new talent.”In addition, in response to Jorgensen’s Requests for Admissions, Sony indicated that“on limited occasions, writers, producers or musicians affiliated with Sony may have been shown some material solicited by the A & R Dept.at some point during 1995, 1996 and 1997 ....”This evidence-which the District Court does not appear to have considered-undercuts the defendants’claim that“Jorgensen failed to adduce even a scintilla of evidence”that Leeds“provided [ Jorgensen’s] song to anyone else ....”
We review the District Court’s grant of summary judgment de novo, construing the evidence in the light most favorable to Jorgensen, the non-moving party.Moreover, because Jorgensen is proceeding pro se, we read his pleadings“liberally and interpret them to raise the strongest arguments that they suggest.”As the District Court observed, however, our“application of this different standard does not relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment.”
To prevail on a motion for summary judgment, the defendants must demonstrate the absence of material evidence supporting an essential element of Jorgensen’s copyright infringement claim.Jorgensen, to avoid summary judgment,“may not rely simply on conclusory allegations or speculation ...,but instead must offer evidence to show that [ his ] version of the events is not wholly fanciful.”
In a copyright infringement case, the plaintiff must show: (i) ownership of a valid copyright; and (ii) unauthorized copying of the copyrighted work.A certificate of registration from the United States Register of Copyrights constitutes prima facie evidence of the valid ownership of a copyright.Jorgensen secured such registration for“Lover,”and the defendants do not dispute the validity of that copyright.Thus, Jorgensen has met the first element of an infringement claim.
To satisfy the second element of an infringement claim-the“unauthorized copying”element-a plaintiff must show both that his work was“actually copied”and that the portion copied amounts to an“improper or unlawful appropriation.”“Actual copying may be established by direct or indirect evidence.”Because direct evidence of copying is seldom available, a plaintiff may establish copying circumstantially“by demonstrating that the person who composed the defendant’s work had access to the copyrighted material,”and that there are similarities between the two works that are“probative of copying.”
A.Jorgensen’s evidence of access
Access means that an alleged infringer had a“reasonable possibility”-not simply a“bare possibility”-of hearing the prior work; access cannot be based on mere“speculation or conjecture.”In order to support a claim of access, a plaintiff must offer“significant, affirmative and probative evidence.”
1.The mass mailings of “ Lover ”
Jorgensen argues, first, that his act of mailing unsolicited tapes of“Lover”to scores of record and music publishing companies, including the corporate defendants, constituted access because the corporate employees who allegedly received the mailing could have provided the“Heart”and“Amazed”songwriters with a copy of“Lover.”With two exceptions reviewed below, however, Jorgensen has not provided any reasonable documentation that he actually mailed such tapes (or when or to whom these tapes were purportedly sent) .Jorgensen’s mass-mailing allegation was, thus, properly rejected by the District Court as legally insufficient proof of access.
2.The submissions to Pollock and Leeds
Jorgensen’s second and more narrow theory of access, predicated on Pollock’s and Leeds’s admissions that they received Jorgensen’s submissions, was also rejected by the District Court.For the reasons outlined below, we agree with the District Court that Jorgensen’s speculation that Pollock could have provided the“Amazed”songwriters with a copy of“Lover”did not, standing alone, suffice to prove access, where there was no evidence of any relationship between Pollock and the songwriters and where Pollock stated in his sworn declaration that he had never forwarded Jorgensen’s tapes to anyone.With respect to Leeds and the“Heart”defendants, however, we find that Jorgensen introduced sufficient evidence to make the District Court’s grant of summary judgment inappropriate at this stage of the proceedings.
a.Pollock and the “ Amazed ” defendants
In his sworn declaration, Pollock stated that his job as a managing producer in BMG’s Special Products division“has nothing to do with the publishing company, Careers BMG Music Publishing, Inc.,or working creatively with songwriters at all.”Although he conceded that he had received a CD recording of“Lover,”Pollock denied that he had ever listened to the song and asserted that he never conveyed the CD“to anyone at any time,”much less anyone who“contributed creative ideas or material”to“Amazed”or“Heart.”In fact, Jorgensen conceded at his deposition that he had no knowledge that Pollock did anything with the CD that Jorgensen sent to him.Pollock stated that he did not have any relationship with the writers of“Amazed,”and Jorgensen has submitted no evidence to the contrary.
Jorgensen’s claim against the“Amazed”defendants was properly dismissed because he has not offered any evidence to rebut Pollock’s assertions.The most that Jorgensen offers to show a nexus between Pollock and the“Amazed”songwriters is his global assertion that“anything and everything can very well happen.”Such speculation does not give rise to a triable issue of access.Jorgensen has not adduced proof of a reasonable possibility that“the paths of [ the“Amazed”songwriters] and the infringed work crossed.”Bare corporate receipt of Jorgensen’s work, without any allegation of a nexus between the recipients and the alleged infringers, is insufficient to raise a triable issue of access.
b.Leeds and the “ Heart ” defendants
At his deposition, Leeds admitted that he had received tapes from Jorgensen but stated that he did not listen to them and he believed that they had been discarded.Leeds testified that his job as a Sony vice president involved reviewing promotional touring budgets and that he was“not involved in the A &R process.”Leeds also stated that he did not know the“Heart”songwriters.
Citing this evidence (and echoing their arguments with respect to Pollock) ,the defendants assert that the mere fact that Leeds had received a copy of Jorgensen’s song does not mean that the“Heart”songwriters had a reasonable opportunity to hear it.Defendants argue that it is“undisputed”that Leeds did not forward Jorgensen’s tape to the“Heart”songwriters, but they do not address the evidence introduced by Jorgensen that Leeds and his assistants repeatedly told Jorgensen that his tapes-including, in particular, one containing the song“Lover”-were being sent to Sony’s A & R department.Leeds, at his deposition, disputed Jorgensen’s version of events, testifying that he did not recall ever making such a promise to Jorgensen and that he likely threw Jorgensen’s tapes away.Leeds also conceded, though, that it was possible that if there was a tape that he received that he found interesting he might“pass it on”to one of his“friends in the A & R department.”
To draw a connection between Sony’s A & R department and Horner and Jennings, the creators of“Heart,”Jorgensen relied on Sony’s admission, in its response to his Request for Admissions, that during the relevant time period,“on limited occasions, writers, producers or musicians affiliated with Sony may have been shown some material solicited by the A & R Dept.....”In concluding that Leeds“did not forward Jorgensen’s package,”the District Court made no mention of (i) Jorgensen’s deposition testimony to the contrary or (ii) Sony’s admission regarding the practices of its A & R Department.
Although the defendants accurately note that Jorgensen has put forth no evidence that the“Heart”songwriters actually heard his song, that argument misapprehends Jorgensen’s burden.Jorgensen must show a“reasonable possibility of access”by the alleged infringer.He is not required to establish actual access.
The facts of Jorgensen’s case against the“Heart”defendants are entirely distinguishable from those presented in Dimmie, upon which the defendants rely, where the district court found that the plaintiff had not introduced“a scintilla of evidence”that the corporate recipient of her tape had forwarded it to the alleged infringers.Jorgensen’s evidence sets out a clear nexus between Leeds, who has admitted receiving the“Lover”tape and the Sony A & R department, to which Leeds told Jorgensen he’d forwarded the tape.In addition, Jorgensen elicited an admission that the Sony A & R department occasionally shares such material with“affiliated”songwriters.What is not clear from the record before us is whether Horner and Jennings were songwriters“affiliated”with Sony in the period between when Jorgensen sent his tapes to Sony and when“Heart”was published.Absent some evidence on this issue, a jury could not reasonably infer simply from Sony’s access to Jorgensen’s work that Horner and Jennings also had such access.
As already noted, it is the defendant seeking summary judgment who must demonstrate a lack of evidence supporting an essential element of plaintiff’s claim.The“Heart”defendants, who undoubtedly possess information about the time frame of Sony’s affiliation with Horner and Jennings, failed to support their summary judgment motion with any evidence showing the lack of a relationship during the relevant period.Because Jorgensen, appearing pro se, may not have appreciated the need to develop this particular evidence in discovery, summary judgment should not have been granted to defendants until the timing of any affiliation was clarified.Viewing the evidence adduced thus far in the light most favorable to Jorgensen and drawing all justifiable inferences in his favor, as we must at the summary judgment stage, we find that the District Court erred in granting summary judgment to the“Heart”defendants.Of course, it would be well within the District Court’s discretion to permit limited discovery into the question of the timing of the songwriters’affiliation with Sony and to entertain a renewed motion for summary judgment, as may be appropriate.
B.Jorgensen’s claim of striking similarity
As noted above, a copyright plaintiff’s circumstantial proof of copying requires a showing of both access and probative similarity.In this case, the“Heart”defendants’summary judgment motion was based solely on the issue of access and did not address Jorgensen’s claim of probative similarity between“Lover”and“Heart.”As such, the District Court declined to address the question of probative similarity.
We have reviewed the record and considered all of Jorgensen’s remaining contentions and find them to be without merit.We therefore AFFIRM the District Court’s grant of summary judgment in favor of Defendants Careers BMG Music Publishing, Songs of Nashville Dreamworks, and Warner-Tamerlane Publishing Corporation.With respect to Defendants Famous Music Corporation, Fox Film Music Corporation, Blue Sky Rider Songs, and Sony Music Entertainment Inc.,however, we VACATE the District Court’s grant of summary judgment and remand the case for further proceedings not inconsistent with this opinion.Each party shall bear its own costs in regard to this appeal.