Will Loomis v. Jessica Cornish ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILL LOOMIS, an individual, No. 13-57093
Plaintiff-Appellant,
D.C. No.
v. 2:12-cv-05525-
RSWL-JEM
JESSICA CORNISH, PKA Jessie J.,
an individual; UNIVERSAL MUSIC
GROUP, INC., Delaware corporation OPINION
Erroneously Sued As UMG
Recordings, Inc.; UNIVERSAL
REPUBLIC RECORDS, a division of
UMG Recordings, Inc.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Argued and Submitted March 8, 2016
Pasadena, California
Filed September 2, 2016
Before: Richard R. Clifton, and Sandra S. Ikuta, Circuit
Judges, and Frederic Block,* District Judge.
Opinion by Judge Clifton
*
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
2 LOOMIS V. CORNISH
SUMMARY**
Copyright
The panel affirmed the district court’s summary judgment
in favor of the defendants in a copyright infringement case.
Will Loomis, composer of the song “Bright Red Chords,”
alleged that the defendants stole a two-measure vocal melody
and used it as the theme for the verse melody in their hit song
“Domino.” The panel held that Loomis did not put forth any
potentially admissible evidence to establish that the Domino
songwriters had access to Bright Red Chords, either on a
chain-of-events theory or a widespread-dissemination theory.
Accordingly, he failed to establish copyright infringement.
COUNSEL
Michael Gross (argued), Michael Gross Law Office, St.
Louis, Missouri, for Plaintiff-Appellant.
Jeffrey M. Movit (argued) and Christine Lepera, Mitchell
Silberberg & Knupp LLP, New York, New York; Elaine K.
Kim, Mitchell Silberberg & Knupp LLP, Los Angeles,
California; for Defendants-Appellees.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LOOMIS V. CORNISH 3
OPINION
CLIFTON, Circuit Judge:
Plaintiff Will Loomis is the composer of a song called
“Bright Red Chords.” He brought this lawsuit alleging that
Defendant Jessica Cornish (publicly known as Jessie J) and
a team of high-profile songwriters led by Lukasz Gottwald
(publicly known as Dr. Luke) stole a two-measure vocal
melody from Bright Red Chords and used it as the theme for
the verse melody in their hit song “Domino.” The district
court granted the Defendants’ motion for summary judgment,
concluding that Loomis did not put forth any potentially
admissible evidence to establish that the Domino songwriters
had access to Bright Red Chords. We affirm.
I. Background
Loomis composed and recorded Bright Red Chords with
his band, Loomis and the Lust, in Santa Barbara, California,
in 2008, and thereafter obtained a copyright registration for
the song by depositing a copy with the U.S. Copyright Office.
Loomis then released Bright Red Chords on a 2009 album,
Nagasha, and a 2010 album, Space Camp. He also created a
music video for the song.
Bright Red Chords was Nagasha’s feature track and it
garnered some attention in 2009 and 2010. For example, the
Bright Red Chords video won the MTVU “Best Freshman”
video award and was featured in Billboard Magazine. In
addition, there was evidence presented that Bright Red
Chords was distributed by Urban Outfitters as part of a
corporate sampler CD and was played in a variety of name-
brand clothing stores. MTV selected Loomis and the Lust as
4 LOOMIS V. CORNISH
one of its best new bands of 2010, and the band won an
industry-sponsored “Artist on the Verge” award, which
included a $25,000 prize.
Despite these achievements, Bright Red Chords was not
commercially successful. Although the band hired a radio
promotions company to promote the song on a variety of
radio stations and a video promotions company to
disseminate the music video through multiple media
platforms, Bright Red Chords did not achieve an appreciable
level of national saturation. Loomis was able to provide to
the district court documentation of only 46 sales of the
recording.
Domino was written in June of 2011 by a five-person
songwriting team. Dr. Luke and his collaborator Henry
Walter created the instrumental track that became the musical
bed for the song. The melody and lyrics were added in a later
session at Conway Studios in Los Angeles. Jessie J created
the melody in collaboration with Dr. Luke and Claude Kelly.
Karl Martin Sandberg (publicly known as Max Martin) also
participated in this session, and he and Dr. Luke provided
additional creative contributions to the song. Defendant
Universal Republic Records released Domino, and it achieved
substantial commercial success.
After hearing Domino, Loomis brought suit against Jessie
J and her record label alleging copyright infringement. The
district court granted summary judgment in favor of the
Defendants. This appeal followed.
LOOMIS V. CORNISH 5
II. Discussion
We review a grant of summary judgment de novo.
Mitchell v. Washington, 818 F.3d 436, 441 (9th Cir. 2016).
Viewing the evidence in the light most favorable to the
nonmoving party, we must determine whether “there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law.” Id. (quoting
Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en
banc)).
To establish copyright infringement, a plaintiff must
prove two elements: “(1) ownership of a valid copyright, and
(2) copying of constituent elements of the work that are
original.” Feist Publications, Inc. v. Rural Telephone Service
Co., Inc., 499 U.S. 340, 361 (1991). Copyright ownership by
Loomis is not in dispute in this case. The only issue is
whether a reasonable jury could conclude that the Domino
songwriters copied protectable elements of Bright Red
Chords.
“Proof of copyright infringement is often highly
circumstantial, particularly in cases involving music.” Three
Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir.
2000). “Absent direct evidence of copying, proof of
infringement involves fact-based showings that the defendant
had ‘access’ to the plaintiff’s work and that the two works are
‘substantially similar.’” Id. (quoting Smith v. Jackson,
84 F.3d 1213, 1218 (9th Cir. 1996)); see also Funky Films,
Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1076 (9th
Cir. 2006). In this case there was no direct evidence of
copying. The summary judgment entered by the district court
relied entirely on the issue of access. Specifically, the district
court concluded that Loomis failed to present sufficient
6 LOOMIS V. CORNISH
evidence to support a finding that Defendants had access to
Loomis’s work. Although Defendants also disputed the claim
that the works were substantially similar, the district court’s
order did not address that issue.1
Proof of access requires “an opportunity to view or to
copy plaintiff’s work.” Sid and Marty Krofft Television
Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1172 (9th
Cir. 1977), superseded on other grounds by 17 U.S.C.
§ 504(b). “To prove access, a plaintiff must show a
reasonable possibility, not merely a bare possibility, that an
alleged infringer had the chance to view the protected work.”
Art Attacks Ink, LLC v. MGA Entm’t Inc., 581 F.3d 1138,
1143 (9th Cir. 2009). “Where there is no direct evidence of
access, circumstantial evidence can be used to prove access
either by (1) establishing a chain of events linking the
plaintiff’s work and the defendant’s access, or (2) showing
that the plaintiff’s work has been widely disseminated.” Id.Loomis relies on both theories to challenge the summary
judgment. His chain of events theory is that multiple
intermediaries could have provided a copy of Bright Red
Chords to the Domino songwriters. His widespread
dissemination theory is that Bright Red Chords had saturated
the market in Santa Barbara so thoroughly that the presence
of certain Domino songwriters at a recording studio in Santa
Barbara during the period of saturation created a reasonable
possibility of access. We take up each in turn.
1
“Absent evidence of access, a ‘striking similarity’ between the works
may give rise to a permissible inference of copying.” Baxter v. MCA.,
Inc., 812 F.2d 421, 423 (9th Cir. 1987). The district court noted that
Loomis had not presented any evidence or argument regarding striking
similarly, and Loomis has not advanced that theory on appeal.
LOOMIS V. CORNISH 7
A. Access Through Intermediaries
“[E]vidence that a third party with whom both the
plaintiff and defendant were dealing had possession of
plaintiff’s work is sufficient to establish access by the
defendant.” 4 Meville B. Nimmer & David Nimmer, Nimmer
on Copyright § 13.02[A] (2015); Kamar Int’l, Inc. v. Russ
Berrie & Co., 657 F.2d 1059, 1062 (9th Cir. 1981). “[T]he
dealings between the plaintiff and the intermediary and
between the intermediary and the alleged copier must involve
some overlap in subject matter to permit an inference of
access.” Meta-Film Assocs., Inc. v. MCA, Inc., 586 F. Supp.
1346, 1358 (C.D. Cal. 1984); id. at 1355–58 (citing cases
where the intermediary “either was a supervisor with
responsibility for the defendant’s project, was part of the
same work unit as the copier, or contributed creative ideas or
material to the defendant’s work,” id. at 1355–56). For
example, in Kamar, we held that access was established by
the fact that the defendant purchased stuffed animals from a
manufacturer that had previously made stuffed animals for
the plaintiff based on the plaintiff’s copyrighted designs.
657 F.2d at 1060–62; see also De Acosta v. Brown, 146 F.2d
408, 410 (2d Cir. 1944) (sufficient evidence of access where
plaintiff submitted her work to a literary agent who thereafter
was consulted by the defendant for input on the infringing
work).
By contrast, multiple courts have held that a plaintiff
“cannot create a triable issue of access merely by showing
‘bare corporate receipt’ of her work by an individual who
shares a common employer with the alleged copier.” Bernal
v. Paradigm Talent & Literary Agency, 788 F. Supp. 2d 1043,
1056 (C.D. Cal. 2010); see, e.g., Jorgensen v. Epic/Sony
Records, 351 F.3d 46, 48 (2d Cir. 2003). “Rather, it must be
8 LOOMIS V. CORNISH
reasonably possible that the paths of the infringer and the
infringed work crossed.” Towler v. Sayles, 76 F.3d 579,
582–83 (4th Cir. 1996) (requiring a “close relationship” for
the corporate receipt doctrine to apply); see also Jones v.
Blige, 558 F.3d 485, 491–92 (6th Cir. 2009) (affirming
summary judgment for the defendant where plaintiff
submitted her work to a senior vice president at Universal
because there was no evidence that the vice president had any
contact with anyone involved in the creation of the allegedly
infringing work).
Loomis identified several potential intermediaries through
whom he alleged Defendants might have gotten access to his
song.
Sunny Elle Lee worked for UMG Recordings as an Artists
and Repertoire Representative. In May of 2010, Lee emailed
Loomis’s mother, Kristin Loomis, who acted as
administrative coordinator for the band, to request a copy of
Bright Red Chords. The band furnished Lee a copy of the
song. Loomis argues that this chain of events created a
triable issue of access because Lee’s responsibility as an
A&R representative was to “find” and “share” music.
Loomis posits that because Lee was successful in her job and
received a promotion, a reasonable juror could extrapolate
that she provided Bright Red Chords to the Domino
songwriters. He further argues that Lee’s solicitation of
Bright Red Chords makes this case distinguishable from the
“bare corporate receipt” cases.
We disagree. On the record before us, there is no
evidence of a nexus between Lee and the Domino songwriters
that would be sufficient to raise a triable issue of access. See
Jorgensen, 351 F.3d at 53 (“Bare corporate receipt . . . ,
LOOMIS V. CORNISH 9
without any allegation of a nexus between the recipients and
the alleged infringers, is insufficient to raise a triable issue of
access.”). In fact, the evidence shows the opposite. Loomis
did not dispute Defendants’ statement that “[t]he five Domino
Writers do not know, have never met, and have never
received anything from Sunny Elle Lee.” He also did not
dispute that “Lee was not part of the work unit that created
Domino.” There was no evidence presented beyond mere
speculation from Loomis himself to show that Lee had any
role or input on any of Jessie J’s music or recordings.
Therefore, it is not “reasonably possible that the paths of the
infringer and the infringed work crossed.” Towler, 76 F.3d at
582.
Casey Hooper played lead guitar for Loomis and the Lust
from September of 2009 to April of 2010. Hooper did not
perform on the recording of Bright Red Chords, but he did
perform the song live on MTV and at various shows. He left
the band in April of 2010 to join Katy Perry’s band.
Loomis argues that Hooper could have provided the
Domino songwriters with access to Bright Red Chords in two
ways. First, Loomis asserts that Hooper worked with Dr.
Luke and Max Martin in early 2010 on a ten-day recording
session for Katy Perry’s album Teenage Dream. Loomis did
not testify that he had personal knowledge of Hooper’s
involvement in the project. Rather, he claimed that Tucker
Bodine, an owner of the studio and an assistant engineer on
Teenage Dream, told him that Hooper was involved in the
project.
Loomis’s argument fails because he did not submit any
potentially admissible evidence that would show that Hooper
was involved in the Teenage Dream sessions. See Fed. R.
10 LOOMIS V. CORNISH
Civ. P. 56(c)(2) (“A party may object that the material cited
to support or dispute a fact cannot be presented in a form that
would be admissible in evidence.”). The only evidence that
Loomis provided was his hearsay report of alleged statements
by Bodine. See Kim v. United States, 121 F.3d 1269,
1276–77 (9th Cir. 1997) (“Because the affidavit was not
based on personal knowledge and because it relied on
inadmissible hearsay testimony, the district court properly
rejected it.”). That is not enough to survive summary
judgment.
Loomis’s second argument is that a triable issue of access
was established by evidence that Hooper was involved in
Katy Perry’s movie “Part of Me.” Loomis testified that the
packaging from the film shows that Hooper appeared as a cast
member and that he received songwriting credits on two
tracks. He further testified that Dr. Luke and Max Martin are
listed as co-producers of the movie. This theory is deficient
because there is no evidence detailing the responsibilities of
Hooper, Dr. Luke, or Max Martin with respect to the film, let
alone evidence that demonstrated that they actually worked
together and were in personal contact.2 Nothing in the record
shows the requisite nexus between Hooper and the Domino
songwriters except for Loomis’s own speculation. “[M]ere
allegation and speculation do not create a factual dispute for
purposes of summary judgment.” Nelson v. Pima Community
College, 83 F.3d 1075, 1081–82 (9th Cir. 1996).
2
We do not have the packaging from Part of Me in the appellate record,
but the Internet Movie Database indicates that at least 59 individuals
appeared in the movie, that at least 34 individuals received production
credit, and that many others worked on the project. See
http://www.imdb.com/title/tt2215719/fullcredits?ref_=tt_cl_sm#cast (last
checked August 25, 2016).
LOOMIS V. CORNISH 11
Loomis also argues that Sean Walsh, Bonnie McKee, Sam
Hollander, and Tucker Bodine could have served as conduits
between Bright Red Chords and the Domino songwriters.
But Loomis did not raise these arguments before the district
court in his opposition to summary judgment, so they were
waived. See Alaska Airlines, Inc. v. United Airlines, Inc.,
948 F.2d 536, 546 n. 15 (9th Cir. 1991) (“It is well
established that an appellate court will not reverse a district
court on the basis of a theory that was not raised below.”).
Loomis conceded, in any event, that he did not have any
admissible evidence to support these access theories.
B. Widespread Dissemination
A copyright plaintiff, alternatively, may establish a
reasonable possibility of access by “showing that the
plaintiff’s work has been widely disseminated.” Art Attacks
Ink, 581 F.3d at 1143. “The evidence required to show
widespread dissemination will vary from case to case.” L.A.
Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 847
(9th Cir. 2012). In most cases, the evidence of widespread
dissemination centers on the degree of a work’s commercial
success and on its distribution through radio, television, and
other relevant mediums. See, e.g., Rice v. Fox Broadcasting
Co., 330 F.3d 1170, 1178 (9th Cir. 2003); Art Attacks Ink,
581 F.3d at 1144–45; Three Boys Music, 212 F.3d at 483.
We have also recognized a doctrinal variant that focuses
on saturation in a relevant market in which both the plaintiff
and the defendant participate. In L.A. Printex, we held that a
triable issue of access existed where (1) the plaintiff’s fabric
design had saturated the fabric market for apparel vendors in
Los Angeles over a four-year period, and (2) the defendant
routinely participated in the Los Angeles fabric market during
12 LOOMIS V. CORNISH
that period. 676 F.3d at 848. This, we held, created “a
‘reasonable possibility’ that Defendants had an opportunity
to view and copy L.A. Printex’s design.” Id.; see also Peel &
Co., Inc. v. Rug Market, 238 F.3d 391, 397 (5th Cir. 2001)
(holding that plaintiff raised a triable issue of access as to
whether its rug design “was widely disseminated among those
involved in the United States rug trade”).
Loomis submits that this case is similar. He argues that
Domino songwriters Dr. Luke and Max Martin were in Santa
Barbara for the Teenage Dream sessions at a time when Santa
Barbara was saturated with Bright Red Chords. Loomis
testified that the band was receiving “tons of airplay” on local
radio stations at that time, and that Mix Magazine, Billboard,
and the Santa Barbara Independent newspaper had carried
stories about the band’s achievements. Loomis also testified
that he had deposited promotional copies of Bright Red
Chords at Playback Studios in the weeks leading up to the
Teenage Dream sessions, and that the studio kept copies of
Mix Magazine and the Santa Barbara Independent in the
break room.
The fact that Dr. Luke and Max Martin spent ten days
recording an album for a major national recording artist in
Santa Barbara during a period when the local music scene
was saturated with Bright Red Chords does not raise a triable
issue of access. Unlike the defendants in L.A. Printex, Dr.
Luke and Max Martin were not participating in the relevant
market – the Santa Barbara local music scene – during their
brief stay in Santa Barbara. Their production responsibilities
had nothing to do with listening to local radio, reading local
press, or scouting local bands, and there was no evidence that
they undertook any other activity in that market that created
a reasonable possibility of access to Bright Red Chords.
LOOMIS V. CORNISH 13
Although there was a bare possibility that they heard Bright
Red Chords on the radio, or that they read about Loomis and
the Lust in a magazine in the break room of Playback Studios,
or that they picked up one of Loomis’s promotional CDs
while at Playback, that is not enough to raise a triable issue of
access. See, e.g., Nimmer, supra at § 13.02[A] (explaining
that “evidence showing that Gloria Estefan was present in a
room with 15,000 records, including one containing
plaintiff’s song” was insufficient to demonstrate access
(discussing Palmieri v. Estefan, 35 U.S.P.Q.2d 1382, 1383
(S.D.N.Y. 1995))).3
III. Conclusion
Plaintiff’s arguments in this case tell a story that, if
adequately substantiated, might have survived summary
judgment. The problem is that it was not supported by
potentially admissible evidence. At bottom, the record
consists primarily of Loomis’s speculations of access
unsupported by personal knowledge. The other evidence did
not fill the breach. The district court did not err in granting
summary judgment.
AFFIRMED.
3
In his reply brief, Loomis argued that evidence of Bright Red Chords’s
dissemination in retail chains and evidence of its multi-media publicity
campaign raised a triable issue of access. Loomis waived this argument
by failing to make it in his opening brief. See Cruz v. Int’l Collection
Corp., 673 F.3d 991, 998 (9th Cir. 2012). Even if it were otherwise,
Loomis’s argument is belied by the fact that he was only able to document
46 sales of Bright Red Chords. See Rice, 330 F.3d at 1178 (holding that
because the plaintiff’s video “only sold approximately 17,000 copies
between 1986 and 1999,” it could not be considered “widely
disseminated” despite some evidence of national publicity).