When a Bare Possibility of Access Is Not Enough
Column Editor: Bruce Strauch (The Citadel) <firstname.lastname@example.org>
Leonard Jones & James White v. Mary J. Blige; Universal-MCA Music Publishing et al, United States Court of Appeals for the Sixth Circuit, 2009 U.S. App. LEXIS 4451.
In the year 2000, Rap artist-wannabe Tim Acker a/k/a Benevolence wrote the lyrics to the unknown, except to litigants, “Party Ain’t Crunk.” His manager James White registered it with the U.S. Copyright Office listing himself as one of the authors.
The Urban Dictionary defines crunk as crazy, wild, stoned, delirious. A crunk-daddy is a party animal. And while your ace legal interpreter lacks the lyrics, presumably, party ain’t crunk, is a criticism of the absence of crazy and wild behavior.
Leonard Jones collaborated in some fashion and has a financial stake in the song, hence he’s in the caption. Acker was still involved, however, when a Dannie Longmire created beat tracks and a melody over which Acker recorded his lyrics. This with other songs was what was registered for copyright as “Benevolent Vol. 1.”
White then hooked up with Abdul Fakir, formerly of “The Four Tops,” who put him in touch with Universal Music Enterprises a division of MCA Music Publishing. But the Enterprises division does not do new music but rather re-issues greatest hits albums of oldies.
In May of 2001, White hand-delivered a sealed package with the demo CD, cover letter and photo of Benevolence looking street-wise and hip. White followed up with a phone call and was told by a secretary that the demo was on the desk of a top dog and he is “going to take a listen to it.”
Then White received the demo back in a fresh envelope with that dreaded letter “MCA is not accepting any unsolicited material at this time. Sorry.”
White was likewise unsuccessful at other record companies. Then — dum-da-dum-dum — he heard Mary J. Blige’s song “Family Affair” on the radio and was instantly convinced it infringed “Party Ain’t Crunk.”
And if you’re curious, a quick trip to You-Tube will inform you that “Family Affair” actually does have a melody to it. “Party Ain’t Crunk,” alas, cannot be found.
So Who Is This Blige Exactly?
Mary J. Blige’s album No More Drama was released in 2001 to sell two million copies. “Family Affair” is the second song. The music was created by producer/performer Andre Young known to the public as “Dr. Dre.”
And for crossword puzzle addicts, Dr. Dre is always the answer to the rap music question.
Young — or Dr. Dre if you will — does music tracks which he provides for artists to lay vocals over. The first version of “Family Affair” was evidenced by a studio log as being done on September 13, 2000.
And doing some minor detective work, you’re noting the “Party Ain’t Crunk” demo was handed to MCA in May of 2001!!! Doesn’t seem like much of a case.
But Not Seeing Things That way, White Sued
But got bounced on summary judgment on the theory that no reasonable jury could find the lyrics of the two songs to be substantially similar; MCA did not have access to the lyrics; and evidence showed “Family Affair” was independently created.
So let’s go to the Sixth Circuit (OH, KY, TENN).
Review de novo blah blah. Was there any genuine issue of material fact for a jury? And more blah blah.
They do, however, note that summary judgment should be used sparingly in these type cases as substantial similarity can be such a close question of fact. But “a court may compare the two works and render a judgment for the defendant on the ground that as a matter of law a trier of fact would not be permitted to find substantial similarity.” Kohus v. Mariol, 328 F.3d 848, 853 (6th Cir. 2003) (quoting Wickham v. Knoxville Int’l Energy Expo, Inc., 739 F.2d 1094, 1097 (6th Cir. 1984).
Which is a round-about way of saying the district court is entitled to make the decision itself.
Plaintiff has to show ownership of copyright and proof of copying. Lacking proof, he may establish an inference by showing access and a substantial similarity between the two works. Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir. 1999).
“Access is essentially hearing or having a reasonable opportunity to hear the plaintiff[‘s] work and thus having the opportunity to copy.” Id. at 506. But — big BUT — although both White and Blige were concurrently dealing with MCA, “access may not be inferred through mere speculation or conjecture.” Murray Hill Publ’ns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 316 (6th Cir. 2004) (quoting Ellis, 177 F.3d at 506).
“’Nor is a ‘bare possiblity’ of access sufficient …[; a] plaintiff must establish that defendant(s) had a ‘reasonable possibility’ to view plaintiff’s work.’” Id. (quoting Glanzmann v. King, 8 U.S.P.Q.2d (BNA) 1594, 1595 (E.D. Mich. 1988).
White’s “probative” evidence consisted of him having delivered the CD to MCA, someone opened it and told him a Senior VP would listen to it. And Blige is published by MCA so she must have heard it.
But not so fast. Blige presented uncontroverted evidence that she and others created “Family Affair” and had no access to “Party Ain’t Crunk.” The MCA secretary in question testified she never listened to it nor passed it to a Senior VP. She opened it and sent it back with the kiss-off letter. And the VP in question said he had no contact whatsoever with Blige et al. His gig was golden oldies.
Corporate Receipt Doctrine White argued that receipt of a work by one employee of a company implies possession by another. See 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.02[A](2008).
The Sixth Circuit had not taken a published stance on this, but had affirmed a district court’s refusal to make the inference from a bare showing of corporate receipt. In Glanzmann, a secretary at Columbia Pictures received a script which the corporate receipt theory would require a quantum leap to Stephen King then having access to it despite the complete impossibility of that under the facts.
This was Stephen King’s novel Christine and a ten-page plot sketch called “Sideswipe.”
Other circuits required evidence of reasonable possibility of the work getting intothe hands of the infringer. Towler v. Sayles, 76 F.3d 579, 583 (4th Cir. 1996) (requiring a “close relationship” for the corporate receipt doctrine to apply).
The Sixth Circuit noted it’s hard for plaintiff to show chain of possession once the CD enters the maw of a giant corporation. But Blige had clear evidence of independent creation. “[A]n inference of copying is rebuttable by evidence of independent creation of the allegedly infringing work.” Ellis, 177 F.3d at 507.
Dr. Dre documented the various states of development and was finished with “Family Affair” by January 10, 2001. “Party Ain’t Crunk” was not in final form until March of 2001 and was not in MCA’s hands until May of that year.