Cottrill v. Spears , 87 F. App'x 803 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
1-30-2004
Cottrill v. Spears
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2717
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2717
MICHAEL COTTRILL;
LAWRENCE E. WNUKOWSKI,
Appellants
v.
BRITNEY SPEARS;
ZOMBA RECORDING CORPORATION,
ZOMBA ENTERPRISES, INC.,
ZOMBA SONGS, INC.;
JIVE RECORDS;
WRIGHT ENTERTAINMENT GROUP;
BMG MUSIC PUBLISHING, INC.
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 02-cv-03646)
District Judge: Honorable Berle M. Schiller
Argued: January 12, 2004
Before: BARRY, SMITH,
and GREENBERG Circuit Judges,
(Filed: January 30, 2004)
George Bochetto, Esq. [Argued]
Gavin P. Lentz, Esq.
David P. Heim, Esq.
Vincent van Laar, Esq.
Bochetto & Lentz
1524 Locust Street
Philadelphia, Pennsylvania 19102
Attorneys for Appellants
Michael T. Mervis, Esq. [Argued]
Proskauer Rose
1585 Broadway
New York, New York 10036
Vincent V. Carissimi, Esq.
Pepper Hamilton
3000 Two Logan Square
Eighteenth & Arch Streets
Philadelphia, Pennsylvania 19103
Attorneys for Appellees
OPINION OF THE COURT
SMITH, Circuit Judge.
Michael Cottrill and Lawrence N. Wnukoski bring this copyright infringement
suit, claiming that defendants infringed upon their song “What You See is What You
Get” (“What You See”). The District Court granted summary judgment for the
defendants. Plaintiffs appeal from that decision.
I.
Sometime in early 1995, plaintiffs Michael Cottrill and Lawrence Wnukowski met
2
with performer Britney Spears and her then-agent William Kahn. Kahn urged Cottrill and
Wnukowski to write songs for Spears. After a subsequent lapse in his relationship with
Spears, Kahn re-established a business relationship with her, which included scouting for
song material for her. Kahn again requested that Cottrill and Wnukowski compose music
for Spears.
On or about August 17, 1999, Per Magnusson, Jörgen Elofsson, Rami Yacoub, and
David Kreuger began working on a song originally entitled Latin Song, written for Zomba
Recording Corporation’s (“Zomba Records”) artist Spears. On October 28, 1999, Spears
flew to Stockholm, Sweden to record songs for her upcoming album Ooops! . . . I Did it
Again. While in Stockholm, Spears recorded the lyrics for Latin Song, which was retitled
What U See (Is What U Get)(“What U See”). Spears departed Sweden on November 8,
1999. She never re-recorded the vocals for What U See after that date. The song
continued to be mixed1 until May 2000, when it was copyrighted and released.
Wnukowski and Cottrill registered What You See with the United States Copyright
Office on December 1, 1999. Wnukowski and Cottrill did not distribute copies of the
song until after it was copyrighted.2 Once copyrighted, Cottrill and Wnukowski
1
Yacoub described mixing as “taking bits and pieces that you already have and just
making all these things sound as good as possible together.”
2
Plaintiffs suggest in their brief that Kahn heard an earlier version of What You See
when Cottrill played it on the piano prior to the lyrics being recorded. However, at oral
argument before the District Court, plaintiffs’ counsel conceded that “there’s no
allegation in this case that what was infringed was an early rough version of ‘What You
See is What You Get,’ the plaintiffs’ song without the lyrics.” Plaintiffs’ counsel directed
3
forwarded the song to Kahn. Cottrill claims that he hoped Kahn would forward the
materials to Steven Lunt, an employee of Zomba Records, then acting as Spears’ agent.
Kahn, however, denied ever having given the song to anyone after he received it from
Cottrill and Wnukowski. He explained that he did not think it was a “good song.”
Cottrill also provided a copy of the song to a professional associate, Lance
Lowenstein, who subsequently forwarded the song to Louis Pearlman. Pearlman was the
President and CEO of Trans Continental Companies. According to plaintiffs, Pearlman
was the individual who put together the hit group the Backstreet Boys, a group which had
recorded music with Zomba Records. This previous relationship between Pearlman and
Zomba notwithstanding, Pearlman had no direct contractual or employment relationship
with Zomba Records. 3
II.
Plaintiffs filed a complaint alleging copyright infringement on June 7, 2002.
Plaintiffs sued Spears, as well as Zomba Records, Jive Records, its parent company
Zomba Enterprises, Inc., and BMG M usic Publishing, Inc. On April 14, 2003 defendants
moved for summary judgment.
The District Court held that plaintiffs had not established that defendants had any
the District Court’s attention to the complaint clarifying that only access to the
copyrighted material was at issue. We, therefore, do not address the possibility of access
to an earlier instrumental version.
3
Cottrill and Wnukowski gave the tape to another individual, Jeff Townes. Plaintiffs do
not claim any direct relationship between Townes and Zomba records.
4
meaningful access to What You See before the song was copyrighted. Because defendants
had no access to What You See until after Spears recorded the vocals to What U See, the
District Court required plaintiffs to show that defendants actually changed What U See
after gaining access to What You See. The District Court concluded that plaintiffs could
not meet this burden. Further, the District Court determined that plaintiffs’ expert
addressed only the aural similarity, as opposed to actual similarity of the two songs, and
therefore failed to establish a genuine issue of material fact as to actual copying. After
the District Court granted defendants’ motion for summary judgment, this timely appeal
followed.4
III.
In order to establish a claim of copyright infringement, a plaintiff must prove: (1)
ownership of a valid copyright, and (2) copying of constituent elements of the work that
are original. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (citing
Harper & Row Publishers v. Nation Enters., 471 U.S. 539, 548 (1985)). The first prong
of the test is not at issue,5 but the parties hotly contest whether plaintiffs established a
genuine issue of material fact with respect to the second.
4
The District Court had jurisdiction pursuant to 28 U.S.C. § 1400(a). We exercise
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
5
It is undisputed that the subject work was copyrighted and that the plaintiff hold a
copyright registration certificate. Such a certificate is prima facie evidence sufficient to
meet the first prong of the copyright infringement test. See 17 U.S.C. § 410(c); Ford
Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 290-91 (3d Cir. 1991).
5
Copying under Feist may be proven circumstantially by demonstrating (1) that the
defendant had access to the allegedly infringed copyrighted work, and (2) that the
allegedly infringing work is substantially similar to the copyrighted work. Dam Things
From Denmark v. Russ Berrie and Co., Inc., 290 F.3d 548, 561 (3d Cir. 2002).
To meet the first prong of Dam Things, plaintiffs are not required to prove by
direct evidence that defendants gained access to plaintiffs’ work. Instead, access can be
inferred by indirect evidence. Boisson v. Banian, Ltd., 273 F.3d 262, 269 (2d Cir. 2001).
The indirect evidence must simply show that there is a “reasonable possibility of access.”
Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir. 1988) (citing Ferguson v. National
Broadcasting Co., 584 F.2d 111, 113 (5th Cir. 1978), and 3 M. & D. Nimmer, N IMMER
ON C OPYRIGHT § 13.02[A] (1988)). Thus, where there is a “relationship linking the
intermediary and the alleged copier,” access may be inferred. Moore v. Columbia Pictures
Indus., Inc., 972 F.2d 939, 942 (8th Cir. 1992) (internal quotations omitted); Towler v.
Sayles, 76 F.3d 579, 582 (4th Cir. 1996).6
6
Plaintiffs urge that the requisite connection may be looser where the third party is a
corporation. The Eighth Circuit has articulated this corporate receipt doctrine as follows:
If the defendant is a corporation, the fact that one employee of the
corporation has possession of the plaintiff’s work should warrant a finding
that another employee (who composed defendant’s work) had access to
plaintiff’s work, where by reason of the physical propinquity between the
employees the latter has the opportunity to view the work in the possession
of the former.
Moore, 972 F.2d at 942 (quoting 3 N IMMER ON C OPYRIGHT § 13.02[A]); see also Bouchat
6
Regardless of the means by which plaintiffs allege that defendants gained access to
the infringed work, that access must be meaningful. Plaintiffs must show that defendants
had an “opportunity to view or to copy his work.” Moore, 972 F.2d at 942 (internal
quotations removed); Kamar Int’l, Inc. v. Russ Berrie & Co., 657 F.2d 1059, 1062 (9th
Cir. 1981). If the only opportunity to view plaintiffs’ work occurs after defendants have
completed their own work, then there can be no opportunity to copy the work, and thus no
access for purposes of copyright law. See Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 1984)
(“[If] the plaintiff admits to having kept his or her creation under lock and key, it would
seem logically impossible to infer access . . . .”). Here, Cottrill and Wnukowski failed to
show that the defendants had meaningful access to plaintiffs’ song prior to the defendants
recording the allegedly infringing song, What U See.
Plaintiffs argue that, although they did not copyright their song What You See until
after Spears had already recorded her vocals to the allegedly infringing song What U See,
they adduced evidence to show that defendants’ access to plaintiffs’ song was
meaningful. Plaintiffs point to the declaration of George Hajioannou, a musical
technician, that it was possible to change the “instrumental and vocal track” of a piece of
music using the software employed by the defendants to mix What U See. Plaintiffs
v. Baltimore Ravens, Inc., 241 F.3d 350, 354 (4th Cir. 2001) (faxing logo to employee of
Baltimore Ravens who shared an office with the new logo’s designer was sufficient to
prove access). Because we find plaintiff cannot show any meaningful access by
defendants to plaintiffs’ song What You See, we need not address whether the corporate
receipt doctrine is viable, or should be adopted, in the Third Circuit.
7
reason that, because a change was possible, they are entitled to an inference that
defendants did change their song, What U See, after having access to What You See. We
disagree. “Access must be more than a bare possibility and may not be inferred through
speculation or conjecture.” Gaste, 863 F.2d at 1066. By arguing no more than what is
technically possible, plaintiffs engage in speculation that defendants altered What U See
after December 1999. Speculation is no substitute for the kind of circumstantial evidence
needed to preclude the entry of summary judgment.
In order to establish a genuine issue of material fact on summary judgment,
plaintiffs “must do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). Plaintiffs have not met that burden here. Defendants put forward affidavits and
deposition testimony from the song writers that they made no changes to the melody and
basic structure of What U See after Spears recorded the vocal track. The District Court
correctly determined that plaintiffs’ theory essentially required it to impermissibly find
defendants’ affiants’ testimony incredible while at the same time inferring a fact for
which plaintiffs provided no evidence. It is therefore unnecessary to determine whether
plaintiffs put forward a viable theory of from whom defendants could have obtained
access to What You See or if they adequately demonstrated substantial similarity.
Because plaintiffs cannot show that defendants had access to What You See prior
to completing What U See, the District Court’s grant of summary judgment was proper.
8
We therefore affirm the District Court’s grant of summary judgment in favor of the
defendants.
TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ D. Brooks Smith
Circuit Judge
9