UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF TENNESSEE
`NASHVILLE DIVISION
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`Case No. 3:07-0929
`Judge Trauger
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`DAVE BRAINARD,
`JUSTIN FAGERHAUG pka DUSTIN
`EVANS, and TIM
`MATHEWS,
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`Plaintiffs,
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`v.
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`PHIL VASSAR, CRAIG
`WISEMAN,
`PHYLVESTER MUSIC, INC.,
`BIG LOUD SHIRT INDUSTRIES,
`L.L.C., BMG MUSIC,
`and PROCTER &
`GAMBLE COMPANY,
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`
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`Defendants.
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`MEMORANDUM
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`Motions are pending before the court in this copyright infringement case, in which most
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`of the plaintiffs’ claims have already been dismissed. First, defendant Procter & Gamble
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`Company (“P&G”) independently moved for summary judgment on the plaintiffs’ remaining
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`claims. (Docket No. 67.) Next, all defendants, that is, Phil Vassar, Craig Wiseman, Phylvester
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`Music, Inc. (“Phylvester”), Big Loud Shirt Industries, LLC (“BLS”), BMG Music (“BMG”), and
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`P&G have also moved for summary judgment on the plaintiffs’ remaining claims (the “all
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`defendants” motion). (Docket No. 71.) Also, the defendants have moved to strike a declaration
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`submitted by Glenn Cummings in support of the plaintiffs’ response to the defendants’ summary
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`judgment motions. (Docket No. 107.) For the reasons discussed herein, the “all defendants”
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`motion for summary judgment will be granted, and the remaining motions denied as moot.
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`1
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`FACTUAL AND PROCEDURAL BACKGROUND
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`This case involves two country music songs, which both contain the optimistic notion
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`that the “good old days” are actually yet to come.1 The plaintiffs, Dave Brainard, Dustin Evans,
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`and Tim Mathews, are professional songwriters who have, apparently, achieved a moderate level
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`of success, with Evans apparently also achieving a relatively high level of success as a
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`performer. (Docket No. 1 at 3.)
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`Defendants Phil Vassar and Craig Wiseman are successful professional songwriters, and
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`Vassar is a nationally known country music recording artist who has had substantial success in
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`the industry. (Docket No. 54 at 3.) Defendant Phylvester is a music publishing company owned
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`by Vassar. (Id.) Defendant BLS is a music publishing company owned by Wiseman. (Id. at 3-
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`4.) Defendant BMG is a music company with whom Vassar was affiliated as a recording artist
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`during the relevant time period. (Id. at 3.) Defendant P&G is a well-known, large national
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`corporation that is involved in the sale of an abundant number of household products.
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`In October 2003, the plaintiffs collaborated on a musical composition titled “Good Ol’
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`Days to Come.” (Docket No. 1 at 5.) The plaintiffs recorded a demo version of the song in
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`January 2004, featuring Dustin Evans on the vocals. (Id.) Beginning in January 2004, the
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`plaintiffs began the process of pitching their song to various recording artists and representatives
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`1 Because the respective statements of material facts do a poor job of actually recounting
`the relevant facts of this case, the court is drawing undisputed facts from the plaintiffs’
`Complaint and the defendants’ answers. The court is using the various affidavits and exhibits
`submitted in summary judgment briefing to discuss issues that remain in dispute. Although facts
`are drawn from submissions made by both parties, on a motion for summary judgment, all
`inferences are drawn in the light most favorable to the non-moving party. See Matsushita Elec.
`Indus. Co. v. Zenith Radio Corp., 475 U.S 574, 586 (1986); McLean v. 988011 Ontario, Ltd.,
`224 F.3d 797, 800 (6th Cir. 2000).
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`2
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`of recording artists. (Id.) Specifically, the plaintiffs retained Joshua King and Wayne Jackson of
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`Courtyard Music (a music publishing company) to pitch their song to prominent recording artists
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`and their representatives. (Docket No. 98 at 1.)
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`According to King, on February 6, 2004, he and Jackson met with Leslie Roberts of the
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`Artists and Repertoire (“A&R”) Department of RCA Nashville (a division of BMG) for the sole
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`purpose of pitching “Good Ol’ Days to Come.” (Id.) King stated that, prior to the meeting, he
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`was aware that defendant Vassar (who was affiliated with RCA Nashville/BMG at the time)
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`“was due to go in to a recording studio within the next few days to record songs for his
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`upcoming album, and [we] felt the [plaintiffs’ song] ... would be a good song to pitch for []
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`Vassar.” (Id.)
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`According to King, at the February 6 meeting, he and Jackson played the plaintiffs’ song
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`for Roberts, and this was the only song played at the meeting. (Id.) According to King, Roberts
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`said she would “take a copy of the song for Phil Vassar” and, therefore, King left the meeting
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`with the impression that Vassar would receive a copy of the plaintiffs’ song. (Id.) King stated
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`that he and Jackson “left the CD of the demo of [the plaintiffs’ song] with Ms. Roberts for [the]
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`purpose” of delivering the song to Vassar. (Id.) King further stated that, after the meeting with
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`Roberts, he and Jackson went to the offices of Greg Hill, Vassar’s manager, and left a copy of
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`the plaintiffs’ song (on CD) at the front desk of Hill’s office, “to his attention, for the purpose of
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`pitching the [plaintiffs’] song ... to Phil Vassar.” (Id.)
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`King’s “pitch log,” which was produced in conjunction with Mathews’ deposition,
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`supports King’s statements. The log (which is a written record of the pitches that King and
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`Jackson made during the relevant time period) reflects that King pitched the plaintiffs’ song, for
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`3
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`Vassar’s use, to both Hill and Roberts on February 6, 2004 and that Roberts “kept” the song (as
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`opposed to “passing” on the song). (Docket No. 81 Ex. 30 at 6.) There is no notation indicating
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`whether Hill ever “kept” or “passed” on the plaintiffs’ song. (Id.)
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`Roberts submitted an affidavit stating that she has “no recollection” of screening the
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`plaintiffs’ song. (Docket No. 77 at 2.) Roberts stated that she was not authorized to submit
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`songs directly to recording artists such as Vassar, and she “did not exceed [her] authority.” (Id.)
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`Roberts was authorized to pass potentially viable songs along to her superiors at RCA Nashville,
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`who would, in turn, pitch those songs to artists such as Vassar. (Id.) Roberts does not recall
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`whether she passed the song along in this manner. (Id.)
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`Vassar’s manager, Greg Hill, submitted an affidavit in which he stated that he had never
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`heard the plaintiffs’ song prior to this litigation, that he had no recollection of receiving the
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`plaintiffs’ song and that he “never provided [] Vassar with a copy of plaintiffs’ composition.”
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`(Docket No. 75 at 1.) Likewise, Vassar and Wiseman submitted affidavits stating that they did
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`not hear the plaintiffs’ song during this time period and that they were not even aware of the
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`plaintiffs’ song prior to this litigation. (Docket Nos. 74 and 76.)
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`Subsequently, in July 2004, Evans recorded the plaintiffs’ song on an album also titled
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`“Good Ol’ Days to Come.” (Docket No. 1 at 6.) A second authorized version of the plaintiffs’
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`song, titled “Good Ol’ Days,” was recorded by an artist named Big Glenn Cummings on his self-
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`titled debut album; this version was released in October 2004. (Id.) A copyright of this version
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`of the song was registered on March 24, 2005. (Id.)
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`In their affidavits, Wiseman and Vassar state that, in March 2004, during a joint writing
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`session, they wrote a song called “Good Ole Days” (“the accused song”). (Docket Nos. 74 and
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`76.) In September 2004, the accused song was released, by defendant BMG, on Vassar’s
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`“Shaken, Not Stirred” album. (Docket No. 54 at 6.) The accused song was successful, as it was
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`released as a single, publicly performed by Vassar both in concert and on national television (in
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`2005, on NBC’s “Tonight Show” and FOX’s New Year’s Eve special), and it was made into a
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`country music video, a cell phone ringtone, and also made available to download through various
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`commercial music download services. (Id. at 6-8.)
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`Despite their similar titles, the two songs, recordings of which were provided to the court,
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`sound different in many ways. The plaintiffs’ song has unremarkable musical interludes in the
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`beginning, middle and end of the song, and it is sung with a typical, modern country drawl and
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`limited vocal or instrumental embellishments. The accused song, on the other hand, is
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`significantly more “upbeat,” and it has noticeable and unique vocal and instrumental
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`embellishments throughout the song that might be characterized by the listener as “fun” or “toe-
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`tapping.”
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`The lyrics of the two songs are as follows, as those songs are performed on the CDs with
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`which the court has been provided.2 First, the lyrics of the plaintiffs’ song are shown as
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`embodied on a 2004 demo recording. Importantly, the ellipsis after the word “Hey” reflects that,
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`as sung, the word “Hey” is carried on the singer’s voice for an extended period of time.
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`Additionally, where the word “days” is in italics below, a similar effect is noticeable.
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`Life seemed so easy back then; Had a lotta good laughs with a lotta of good
`friends;
`We’d load up the Chevy and spend the weekend; Kickin’ back at the lake;
`That sun’d go down we’d head across the tracks; For bonfires, twelve packs;
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`2 While the court was presented with CDs containing at least two versions of each song,
`the slight differences in the versions are not important for the purposes of the motions here.
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`You might say lookin’ back; Those were the good old days (but)
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`CHORUS: Hey... the night’s still young; And there’s more where that came from;
`Hey ... here’s to the good ol’ days; The good ol’ days to come; (END CHORUS)
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`We could spend all night just reminiscing; Bout the songs we were singin’ the
`girls we were kissin’;
`But all of that stuff was just the beginning; So let’s raise our glasses high;
`To the places we ain’t been and the things we haven’t done; You’ve got to admit
`we’ve had a good run (but)
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`CHORUS: Hey... the night’s still young; And there’s more where that came from;
`Hey ... here’s to the good ol’ days; The good ol’ days to come; (END CHORUS)
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`Life seemed so easy back then; but whoever said it’s all gotta end?
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`CHORUS: Hey... the night’s still young; And there’s more where that came from;
`Hey ... here’s to the good ol’ days; The good ol’ days to come; (END CHORUS)
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`CHORUS: Hey... the night’s still young; And there’s more where that came from;
`Hey ... here’s to the good ol’ days; The good ol’ days to come; (END CHORUS)
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`The good ol’ days to come.
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`(Docket No. 87 Ex. C.)
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`Following are the lyrics of the accused song, as embodied on the 2004 “Shaken, Not
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`Stirred” album. Again, the ellipsis after the word “Hey” reflects that, as sung, the word “Hey” is
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`carried on the singer’s voice for an extended period of time. Again, where the word “days” is
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`similarly carried on the voice, it is italicized.
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`I work my job all the way to the weekend; call on my buddies ask ‘where you
`been’;
`Let’s get together somewhere 7 o’clock; wanna pop a top, pop a top;
`Wanna go wanna roll wanna rock and
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`CHORUS: Hey ... let’s make some good ‘ol days; hey ... let’s make some good
`‘ol days; that’s right let’s make some good ol’ days tonight (END CHORUS)
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`Hey Baby what’s the chance you dancin’ with me; been watching you all night,
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`like what I see;
`That big ‘ol moon is shining down from above; you know we’re stirring up magic
`stuff; This could be the night we fall in love;
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`CHORUS: Hey ... let’s make some good ‘ol days; hey ... let’s make some good
`‘ol days; that’s right let’s make some good ol’ days tonight (END CHORUS)
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`Ice cold, wild free, night’s young for you and me; let’s do something that we’d
`never dare;
`something we’ll be talkin’ about now; rockin’ chair, rock, rock, rock baby rock on
`now
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`Hey ... let’s make some good ‘ol days;
`Hey ... let’s make some good ‘ol days;
`Hey ... let’s make some good ‘ol days;
`Hey ... let’s make some good ‘ol days;
`Hey ... let’s make some good ‘ol days;
`Hey ... let’s make some good ‘ol days;
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`(Docket No. 87 Ex. E.)
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`In 2005, defendant P&G teamed with Vassar and his representatives in a cross-
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`promotional campaign, in which the accused song was featured in a series of television
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`commercials for P&G’s product “Prilosec OTC,” which is a heartburn medication. (Docket No.
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`101 at 3.) According to the version with which the court was provided, the thirty-second
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`commercial opens with an approximately four-second, full volume excerpt of the chorus of the
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`accused song (“Let’s make some good ole days”) set to images from a Vassar concert. (Docket
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`No. 86 Ex. A.) The next twenty-three seconds of the commercial feature Vassar (in various
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`poses and positions) pitching Prilosec OTC, while the chorus and musical embellishments of the
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`accused song play, at a significantly reduced volume, in the background. (Id.) The final few
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`seconds of the commercial do not use the accused song, and no portion of the verses of the
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`accused song appears in the commercial. (Docket No. 101 at 3.)
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`The plaintiffs apparently learned of the accused song when it was in wide release in 2004
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`or 2005. On September 17, 2007, the plaintiffs filed this action, alleging: (1) copyright
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`infringement, (2) common law misappropriation, (3) breach of confidential relationship, (4)
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`unfair competition in violation of the Lanham Act, (5) common law unfair competition, (6)
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`unjust enrichment, (7) constructive trust, and (8) accounting. (Docket No. 1.) Through motion
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`practice and various agreed orders, all counts, except counts one and five, have been dismissed
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`against all defendants. (Docket Nos. 47, 59 and 65.) Further, on April 20, 2009, at his request,
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`plaintiff Evans was dismissed from this case. (Docket No. 108.)
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`ANALYSIS
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`The plaintiffs claim that the defendants infringed their copyright in violation of federal
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`copyright law embodied in 17 U.S.C. § 101, et seq. and that the defendants engaged in common
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`law unfair competition. The defendants have moved for summary judgment on the plaintiffs’
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`claims. Summary judgment for all defendants on all remaining claims is appropriate for the
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`reasons discussed herein.
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`I.
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`Summary Judgment Standard
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`Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted if
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`“the pleadings, the discovery and disclosure materials on file, and any affidavits show that there
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`is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter
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`of law.” Fed. R. Civ. P. 56(c). To prevail, the moving party must meet the burden of proving the
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`absence of a genuine issue of material fact as to an essential element of the opposing party’s
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`claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Logan v. Denny’s, Inc., 259 F.3d
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`558, 566 (6th Cir. 2001).
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`In determining whether the moving party has met its burden, the court must view the
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`factual evidence and draw all reasonable inferences in the light most favorable to the non-moving
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`party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); McLean
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`v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). “The court’s function is not to weigh
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`the evidence and determine the truth of the matters asserted, ‘but to determine whether there is a
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`genuine issue for trial.’” Little Caesar Enters., Inc. v. OPPCO, LLC, 219 F.3d 547, 551 (6th Cir.
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`2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
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`If the non-moving party fails to make a sufficient showing on an essential element of the
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`case with respect to which she has the burden, however, the moving party is entitled to summary
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`judgment as a matter of law. See Williams v. Ford Motor Co., 187 F.3d 533, 537-38 (6th Cir.
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`1999). To preclude summary judgment, the non-moving party “must go beyond the pleadings
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`and come forward with specific facts to demonstrate that there is a genuine issue for trial.” Chao
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`v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). “The mere existence of a scintilla
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`of evidence in support of the [non-moving party’s] position will be insufficient; there must be
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`evidence on which the jury could reasonably find for the [non-moving party].” Shah v. Racetrac
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`Petroleum Co., 338 F.3d 557, 566 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 252). If the
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`evidence offered by the non-moving party is “merely colorable,” or “not significantly probative,”
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`or not enough to lead a fair-minded jury to find for the non-moving party, the motion for
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`summary judgment should be granted. Anderson, 477 U.S. at 249-52. “A genuine dispute
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`between the parties on an issue of material fact must exist to render summary judgment
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`inappropriate.” Hill v. White, 190 F.3d 427, 431 (6th Cir. 1999) (citing Anderson, 477 U.S. at
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`247-49).
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`II.
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`Copyright Infringement
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`In moving for summary judgment, none of the defendants challenges the validity of the
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`plaintiffs’ copyright, and none of the defendants argues that, even if the accused song infringed
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`on the plaintiffs’ copyright, it would not be liable for copyright infringement. Rather, in their
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`summary judgment brief, the defendants all argue that (1) Vassar did not have access to the
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`plaintiffs’ work and (2) the two songs are not substantially similar, as that term has been defined
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`by the Sixth Circuit. As noted above, defendant P&G, in addition to joining with the other
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`defendants, has filed its own motion for summary judgment, arguing that, because its use of the
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`accused song was limited to the Prilosec OTC commercial, the plaintiffs’ claim for copyright
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`infringement is even less viable as to P&G, when the issue of “substantial similarity” is
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`considered. For the reasons discussed below, it will not be necessary to reach P&G’s argument,
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`because all defendants are entitled to summary judgment based on the arguments in the “all
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`defendants” motion.
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`A.
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`The Sixth Circuit Standard For Copyright Infringement
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`As a general matter, in copyright infringement cases, summary judgment, particularly in
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`favor of a defendant, is to be used “sparingly,” because very close questions of fact are
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`frequently involved. Jones v. Blige, 558 F.3d 485, 490 (6th Cir. 2009). That said, on a
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`defendant’s motion for summary judgment, the court should compare the two works at issue and
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`should render summary judgment for the defendant if the trier of fact would not be permitted to
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`find substantial similarity at trial. Id. Where, as here, there is no dispute as to whether the
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`plaintiff owns the copyrighted creation, to succeed on a copyright infringement action, the
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`plaintiff must sufficiently show that the defendant copied the copyrighted creation. Id.
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`Frequently, as here, the plaintiff will be unable to put forth any “direct evidence” of
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`copying; in this situation, the plaintiff is permitted to establish “an inference” of copying, by
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`showing (1) that the defendant had “access” to the allegedly infringed work and (2) that there is
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`a “substantial similarity between the two works at issue.”3 Id. at 490-91.
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`Access occurs when the defendant either hears or has a “reasonable opportunity” to hear
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`the plaintiff’s work. Id. at 491. To establish “access” the plaintiff need not show that the
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`defendant actually heard the plaintiff’s work, but the plaintiff must show that the defendant “had
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`an opportunity” to hear the work and copy it. Id. While access may not be “inferred through
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`mere speculation or conjecture,” “evidence that a third party with whom both the plaintiff and
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`defendant were concurrently dealing had possession of plaintiff’s work is sufficient to establish
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`access.” Id. (internal quotations omitted). In sum, the plaintiff must present a “reasonable
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`possibility” that the defendant heard the plaintiff’s work. Id.
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`The “substantial similarity” analysis involves two parts. First, the court is to “filter” out
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`“the unprotectible aspects of the protected work.” Fogerty v. MGM Group Holdings Corp., Inc.,
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`379 F.3d 348, 352 (6th Cir. 2004). That is, the court is to “filter out the unoriginal, unprotectible
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`elements – elements that were not independently created by the inventor, and that possess no
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`minimal degree of creativity ... .” Stromback v. New Line Cinema, 384 F.3d 283, 294 (6th Cir.
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`2004). The filtering process is to be conducted so that, when the filtering is over, the court is left
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`with “only the expressive elements” of the protected work. Id.
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`3Where two works are “strikingly similar,” the Sixth Circuit permits a significantly
`reduced showing of access, but, here, there is no argument that these works are “strikingly
`similar.” Id.
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`As applied by the Sixth Circuit, this filtering process is not particularly complicated.
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`First, “ideas” are filtered out of the protected work; that is, because “copyright protection
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`extends only to expression of ideas and not to ideas themselves,” the ideas should be filtered out
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`and not used in making the “substantial similarity” evaluation. Id. at 296. Next, “scenes a
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`faire,” that is, “incidents, characters or settings which are as a practical matter indispensable, or
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`at least standard, in the treatment of a given topic” are filtered out of the protected work because
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`such scenes a faire are not afforded copyright protection either. Id. Finally, any other
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`“common” or “stock” themes and usages are filtered out of the protected work and also not used
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`for purposes of comparison. Id. at 297.
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`At this point, left with the core, expressive aspects of the work, the court investigates
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`whether the works are “substantially similar.” Substantial similarity exists when the relevant
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`aspects of the accused work are so similar to the relevant aspects of the copyrighted work that an
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`“ordinary reasonable person” would conclude that the defendant took “material of substance and
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`value” from the copyrighted work and “unlawfully appropriated” it. Id. at 297 (internal
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`quotations omitted). The fact that the defendant embellishes or adds to the work or changes it,
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`even in significant ways, does not preclude a finding of infringement. Indeed, “the
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`misappropriation of even a small portion of a copyrighted work may constitute infringement
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`under certain circumstances. ... Even if a copied portion be relatively small in proportion to the
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`entire work, if qualitatively important, the finder of fact may properly find substantial
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`similarity.” Id. (internal quotation omitted). Bluntly stated, “no plagiarist can excuse the wrong
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`by showing how much of his work he did not pirate.” Id. (internal quotation omitted).
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`In sum, the substantial similarity test is based upon the “net impression” of the “ordinary
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`observer”; that is, on a motion for summary judgment by the defendant, after “casting aside”
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`“stock themes, scenes a faire, and raw ideas,” the court must decide whether a reasonable,
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`ordinary juror could find, based on the “overall look and feel” of the relevant “constituent
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`expressive elements,” that the two works are substantially similar. Id. If so, summary judgment
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`for the defendant is improper. Id.
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`B.
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`The Sixth Circuit Analysis Applied to the “All Defendants” Motion
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`As noted above, to survive summary judgment, the plaintiffs would have to sufficiently
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`show that Vassar had “access” to their song and that the accused song is “substantially similar”
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`to the plaintiffs’ song. The court will consider each element in turn.
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`1.
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`Access
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`The defendants largely focus on the fact that the plaintiffs have no direct evidence that
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`Vassar listened to their song prior to March 2004 (when Vassar claims he created the accused
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`song with Wiseman), and that Vassar and Wiseman deny ever having heard the plaintiffs’ song
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`prior to this litigation. (Docket No. 72 at 6-7.) They also attempt to negate the plaintiffs’ two
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`primary proposed “routes of access” for Vassar, which are, as discussed above in the factual
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`section: (1) the fact that the plaintiffs’ song was dropped off for Vassar’s manager (Greg Hill) on
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`February 6, 2004 and (2) the fact that the plaintiffs pitched the song, for Vassar’s use, to Leslie
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`Roberts, an A&R representative at Vassar’s record label, RCA Nashville, the same day.
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`On this first “route of access,” the defendants point to Hill’s affidavit, which states that
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`he does not remember receiving the plaintiffs’ song and that he did not pass the song along to
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`Vassar. (Docket No. 75.) The defendants further argue that Joshua King’s pitch log “does not
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`even evidence that a demo of plaintiffs’ composition was given to Hill.” (Docket No. 72 at 8.)
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`That may technically be correct, but the “pitch log” shows that, on February 6, 2004, the
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`plaintiffs’ song was “pitched,” in some form, to Hill. There is no indication, however, as to
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`whether Hill “passed on” or “kept” the song. (Docket No. 81 Ex. 30 at 6.)
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`On the second “route of access,” the defendants, underwhelmingly, point out that Roberts
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`does not remember the February 6, 2004 pitch and that the meeting between Roberts and
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`King/Jackson does not establish that Vassar heard the song prior to the March 2004 writing
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`session with Wiseman. (Docket No. 72 at 8-9.) The defendants argue that Roberts was not
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`authorized to submit pitches directly to Vassar, but “would only have sent the demo to the label
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`head of RCA/Nashville for his review.” (Docket No. 72 at 9.) Even accepting Roberts’ affidavit
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`statement that she did not pitch the song directly to Vassar, the defendants offer little reliable
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`evidence that Roberts did not forward the song to her superiors at RCA/Nashville, who were in
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`the position to pitch directly to Vassar.4
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`In response, the plaintiffs point to the affidavit of Josh King, who, as discussed above,
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`stated that (1) he and Jackson had a February 6, 2004 meeting with Roberts, for the sole purpose
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`of pitching the plaintiffs’ song for Vassar’s use, and that the meeting ended with King believing
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`that Vassar would receive a CD containing the plaintiffs’ song and (2) he and Jackson left the
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`meeting with Roberts and dropped off the plaintiffs’ song on a CD at Hill’s office. (Docket No.
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`4The defendants state that “BMG produced a document listing those third-party
`compositions that were forwarded by RCA/Nashville to Vassar for his consideration in recording
`the 2004 album Shaken, Not Stirred, and the plaintiffs’ composition was not listed as one of the
`compositions forwarded to Vassar.” (Id.) This document is simply a single piece of paper, with
`the title “2004 Phil Vassar Comps” and a series of songs listed under various dates. (Docket No.
`84 Ex. 44.) There is no indication from the document as to when it was created or who created
`it. (Id.)
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`98.) Summarizing both “routes of access,” the plaintiffs’ argue that “Roberts and Hill were both
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`in positions that would have enabled them to provide Vassar with the demo of plaintiffs’
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`composition prior to creation of the [accused work]. ... Both such individuals are closely
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`connected to Vassar for the purpose of submitting songs for consideration.” (Docket No. 96 at
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`5-6.)
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`Ultimately, the plaintiffs’ case for “access” is certainly not overwhelming, but it does not
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`have to be to survive summary judgment. The Blige case, which the court has repeatedly cited in
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`this Memorandum, provides a helpful factual contrast. In Blige, the access claim was solely
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`based on the fact that the plaintiff had, at the invitation of a Mr. McKaie who worked in the
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`A&R department of the “Universal” record label, submitted his song to Mr. McKaie. 558 F.3d
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`at 488-89. Universal, which is a very large record label, also happened to be the record label of
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`the defendant Mary J. Blige, who was the vocalist on the allegedly infringing work. Id. The
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`evidence also showed that someone at Universal (likely McKaie) had listened to the plaintiffs’
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`song before deciding to “pass” on the song. Id. The Sixth Circuit found that there was no
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`access as a matter of law, because there was no demonstrated connection between McKaie and
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`the defendants (Blige and her associates) other than that they both had relationships with
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`Universal. Id. at 491.
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`The court implied, however, that it was only the weakness of the plaintiffs’ argument in
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`Blige that made summary judgment on the issue of access appropriate. The court stated, “we are
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`cautious of making it overly difficult for plaintiffs to establish access where the chain of
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`possession of a work within a corporation is difficult to prove [but] Plaintiffs in this case have
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`set forth no evidence tending to show a reasonable possibility that their work made its way from
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`McKaie” to the creators of the allegedly infringing work. Id. at 493. The court went on, “there
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`is no evidence of the nature of [the defendants’] relationships with Universal employees that
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`would support an inference that McKaie transferred Plaintiffs’ song to [the defendants] through
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`other intermediaries at Universal. As far as the record shows, [the defendants] were affiliated
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`with McKaie only through an attenuated corporate connection, and to find a reasonable
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`possibility of access, a jury would be required to make an implausible leap, unsupported by
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`evidence other than bare corporate receipt.” Id.
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`Here, the plaintiffs have clearly come forth with more evidence than the plaintiffs in
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`Blige, as the plaintiffs here have established connections between the individuals who received
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`the plaintiffs’ demo and the allegedly infringing artist. Again, the plaintiffs’ burden is not to
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`show that Vassar absolutely heard the song or even that he absolutely had the opportunity to hear
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`the song; rather, the plaintiffs’ burden, at this stage, is to show, with all factual inferences drawn
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`in their favor, that there is a genuine issue of material fact as to whether Vassar had a
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`“reasonable opportunity” to hear the song. Blige, 558 F.3d at 491.
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`The plaintiffs have met this relatively low burden by showing that the plaintiffs’ song
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`was in the possession of Vassar’s manager’s office and Vassar’s record label, and by showing
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`that there was some indication that the record label was prepared to forward the song to Vassar.
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`This evidence creates at least a fact issue as to access.
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`2.
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`Substantial similarity
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`As the plaintiffs have sufficiently demonstrated access, the next question is whether there
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`is a fact issue as to substantial similarity. As noted above, the first step in this analysis is to
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`“filter” out the unprotectible aspects of the plaintiffs’ work. Ideas are unprotectible, and,
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`therefore, the court does not consider, for purposes of comparison, the ideas contained in the
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`plaintiffs’ song, including the core idea that, despite the great times of the past, the “good old
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`days” can actually be yet to come.
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`Further, all of the scenes a faire, that is, “incidents, characters or settings which are as a
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`practical matter indispensable, or at least standard, in the treatment of a given topic” are filtered
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`out of the plaintiffs’ song. Of course, this filters out much of the content of the plaintiffs’ work.
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`In any country song discussing the past and future “good old days,” the subjects of drinking,
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`socializing, and courting are clearly scenes a faire. Here, when these unprotected elements are
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`removed, as a practical matter, what is left is the te