Case 4:05-cv-02407 Document 126 Filed in TXSD on 09/21/06 Page 1 of 9
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`CIVIL ACTION NO. H-05-2407
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`§§
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`§
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`JENNIFER ARMOUR,
`Plaintiff,
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`v.
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`BEYONCE G. KNOWLES, et al.,
`Defendants.
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`MEMORANDUM AND ORDER
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`This copyright infringement case is before the Court on the Motion for Summary
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`Judgment [Doc. # 79] filed by Defendants Beyonce G. Knowles, Scott Storch, Robert
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`Waller, Shawn Carter, Sony BMG Music Entertainment, TVT Music, Inc., Notting
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`Dale Songs, and Hitco Music Publishing (“the Knowles Defendants”), the Motion for
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`Summary Judgment [Doc. # 91] filed by Defendants Sean Paul Henriques, EMI Music
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`Publishing, Ltd., Atlantic Recording Corporation, EMI April Music, Inc., VP Music
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`Group, Inc., and Dutty Rock Music (the “Henriques Defendants”), and the Motion for
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`Summary Judgment on Access, Independent Creation, and Originality [Doc. # 95] filed
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`by the Knowles Defendants. Each motion has been fully briefed and is ripe for
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`decision.
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`The Court has carefully reviewed the full record in this case and has conducted
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`a “side-by-side” comparison of the songs at issue. Based on this review of the record,
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`Case 4:05-cv-02407 Document 126 Filed in TXSD on 09/21/06 Page 2 of 9
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`the comparison of the relevant songs, and the application of governing legal authorities,
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`the Court grants the Motions for Summary Judgment [Docs. # 79 and # 91]. The
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`Motion for Summary Judgment on Access, Independent Creation, and Originality [Doc.
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`# 95] and the other pending motions are denied as moot.
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`I.
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`FACTUAL BACKGROUND
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`Plaintiff Jennifer Armour is a professional songwriter who lives in Minnesota.
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`Defendants are participants in the music industry with various relationships to Beyonce
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`Knowles, known professionally as Beyonce. Plaintiff alleges that she composed a song
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`entitled “Got a Little Bit of Love for You” for which she obtained a copyright. Plaintiff
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`alleges that she provided a copy of the song to Beyonce and her father, as well as to
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`record executives at Sony Music Entertainment, Inc. and Atlantic Recording
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`Corporation.
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`Plaintiff alleges that the song “Baby Boy” performed by Beyonce infringes her
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`copyright of the song “Got a Little Bit of Love for You.” Defendants deny that the
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`song “Baby Boy” infringes Plaintiff’s song.
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`II.
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`ANALYSIS
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`A.
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`General Summary Judgment Standard
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`Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary
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`judgment, after adequate time for discovery and upon motion, against a party who fails
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`to make a sufficient showing of the existence of an element essential to the party’s
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`case, and on which that party will bear the burden at trial. Celotex Corp. v. Catrett,
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`477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
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`1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil
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`Corp., 289 F.3d 373, 375 (5th Cir. 2002). Summary judgment is appropriate when the
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`record shows “that there is no genuine issue as to any material fact and that the moving
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`party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); Celotex Corp.,
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`477 U.S. at 322–23; Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003). “An issue
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`is material if its resolution could affect the outcome of the action. A dispute as to a
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`material fact is genuine if the evidence is such that a reasonable jury could return a
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`verdict for the nonmoving party.” DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th
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`Cir. 2006) (internal citations omitted).
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`In deciding whether a genuine and material fact issue has been created, the facts
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`and the inferences to be drawn from them must be reviewed in the light most favorable
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`to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336
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`F.3d 410, 412 (5th Cir. 2003). However, factual controversies are resolved in favor of
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`the non-movant “only when there is an actual controversy—that is, when both parties
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`have submitted evidence of contradictory facts.” Olabisiomotosho v. City of Houston,
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`185 F.3d 521, 525 (5th Cir. 1999).
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`B.
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`Elements of Copyright Infringement
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`“To establish a claim for copyright infringement, a plaintiff must prove that: (1)
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`he owns a valid copyright and (2) the defendant copied constituent elements of the
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`plaintiff's work that are original.” Positive Black Talk Inc. v. Cash Money Records,
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`Inc., 394 F.3d 357, 367 (5th Cir. 2004) (citing General Universal Sys. v. Lee, 379 F.3d
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`131, 141 (5th Cir. 2004); Szabo v. Errisson, 68 F.3d 940, 942 (5th Cir. 1995));
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`R. Ready Prods., Inc. v. Cantrell, 85 F. Supp. 2d 672, 682 (S.D. Tex. 2000). “A valid
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`copyright certificate of registration constitutes prima facie evidence of the validity of
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`a copyright.” Cantrell, 85 F. Supp. 2d at 682. In the case at bar, Plaintiff has a
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`copyright certificate of registration for the song “Got a Little Bit of Love for You.”
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`To establish actionable copying, the second element of a copyright infringement
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`claim, a plaintiff must prove: “(1) factual copying and (2) substantial similarity.” Id.
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`(citing Bridgmon v. Array Sys. Corp., 325 F.3d 572, 576 (5th Cir. 2003)). Factual
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`copying “can be proven by direct or circumstantial evidence.” Id. at 367-68. In this
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`case, Plaintiff does not present direct evidence of copying and, therefore, relies on
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`circumstantial evidence of factual copying of her song by Defendants. Circumstantial
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`evidence of factual copying requires “(1) proof that the defendant had access to the
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`Case 4:05-cv-02407 Document 126 Filed in TXSD on 09/21/06 Page 5 of 9
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`copyrighted work prior to creation of the infringing work and (2) probative similarity.”1
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`Id. at 368 (citing Peel & Co. v. Rug Market, 238 F.3d 391, 394 (5th Cir. 2001)).
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`Plaintiff has presented evidence through affidavits that she sent a copy of the song to
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`representatives of Defendants. She has also presented expert testimony through
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`affidavits that indicates there are a few, very brief elements in “Baby Boy” that, once
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`the key and the tempo are changed to match “Got a Little Bit of Love for You,” appear
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`similar. This evidence, though disputed by Defendants, could potentially raise a
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`genuine issue of material fact on the issues of access and probative similarity.2 “If a
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`plaintiff establishes an inference of factual copying (by showing access and probative
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`similarity), the defendant can rebut that inference, and thus escape liability for
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`infringement, if he can prove that he independently created the work.” Id.
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`The Court assumes for purposes of the motions for summary judgment that
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`Plaintiff can establish factual copying and Defendants do not establish independent
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`1
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`2
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`Probative similarity “requires only that certain parts of the two works are similar, such that
`the jury may infer factual copying in light of the defendant’s access to the plaintiff’s work.”
`Positive Black Talk, 394 F.3d at 369. “[T]he purpose of the probative similarity inquiry is
`to determine whether factual copying may be inferred and . . . is not the same as the question
`of substantial similarity, which dictates whether factual copying, once established, is legally
`actionable.” Id. at 370. Two works may be probatively similar if there are any similarities
`between them, whether or not the similarities are substantial, if the similarities would not be
`expected to arise independently in the two works. Id.
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`Plaintiff’s evidence, at best, suggests potential access and indicates minimal factual copying
`such that a genuine issue of material fact on these elements would preclude summary
`judgment. It is highly questionable, however, whether Plaintiff’s evidence on access and
`probative similarity would support a verdict in her favor.
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`creation. Therefore, Plaintiff must then prove that the copyrighted work and the
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`allegedly infringing work are substantially similar. Id. (citing Bridgmon, 325 F.3d at
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`577). Substantial similarity is determined “without the aid of expert testimony, but with
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`the perspective of the lay observer.” See Kay Berry, Inc. v. Taylor Gifts, Inc., 421
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`F.3d 199, 208 (3rd Cir. 2005); see also Positive Black Talk, 394 F.3d at 378 (“question
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`of substantial similarity is typically left to the fact finders’ own impressions”); Murray
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`Hill Publications, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 317 (6th
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`Cir. 2004) (expert testimony is appropriate on copying issue but not on issue of
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`substantial similarity).
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`Summary judgment can be granted in favor of the defendant if the court
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`concludes, after conducting a side-by-side comparison of the two songs at issue, “that
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`no reasonable juror could find substantial similarity of ideas and expression.” See
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`General Universal, 379 F.3d at 142. Summary judgment is also appropriate where the
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`side-by-side comparison reveals that any similarities relate only to non-copyrightable
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`elements of the two songs. See, e.g., Boone v. Jackson, 2005 WL 1560511, *4
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`(S.D.N.Y. July 1, 2005).
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`C.
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`Substantial Similarity
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`“Two works are substantially similar if the expression of ideas in the plaintiff’s
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`copyrighted work and the expression of ideas in the defendant’s work that are shared
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`are substantially similar. The test for expression of ideas is whether the intended
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`audience would find the total concept and feel of the two songs to be substantially
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`similar.” Positive Black Talk, 394 F.3d at 373. The parts of the two songs that are
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`similar must be compared in determining substantial similarity. Id. at 374. “[A] side-
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`by-side comparison must be made between the original and the copy to determine
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`whether a layman would view the two works as ‘substantially similar.’” Id.
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`Additionally, a court must determine the copied parts’ qualitative importance in relation
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`to the over-all copyrighted work. See Cantrell, 85 F. Supp. 2d at 863 (citations
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`omitted).
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`In this case, the songs are not substantially similar. Both songs feature a female
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`vocalist and are pleasant to hear, but otherwise the two songs sound almost nothing
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`alike. The key, the tempo, the rhythm, and the melody are substantially dissimilar.
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`Any minimal similarity, such as the similar beat in a half measure of each song, is
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`insignificant in relation to the overwhelming differences between the two songs.
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`The lyrics are also substantially dissimilar. “Baby Boy” describes a woman’s
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`fantasies about a man, while “Got a Little Bit of Love for You” describes a woman
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`whose feelings for a male friend are deepening and the woman hopes the man feels the
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`same for her. The only similarity in the lyrics is the phrase “Every time I close my
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`eyes.” This is a small, common phrase that also appears in dozens of songs that
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`predate both “Baby Boy” and “Got a Little Bit of Love for You.” Such a common
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`phrase lacks originality and is not protected under copyright law. See, e.g., Acuff-Rose
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`Music, Inc. v. Jostens, Inc., 155 F.3d 140, 144 (2d Cir. 1998) (copyright protection
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`denied to phrase “you’ve got to stand for something or you’ll fall for anything” because
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`the phrase is widespread and common). Where, as here, a comparison of the two songs
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`shows that the similarity relates only to an unprotected element, summary judgment is
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`appropriate.
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`Additionally, the phrase “Every time I close my eyes” is a more significant
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`element of “Got a Little Bit of Love for You” than of “Baby Boy.” The phrase, almost
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`indecipherable, appears only once in a fast tempo, rap-style section near the middle of
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`“Baby Boy.” The phrase, on the other hand, appears more frequently and more
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`prominently in “Got a Little Bit of Love for You.” The phrase is not qualitatively
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`important to the song “Baby Boy” and, as an unprotected element, cannot support
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`Plaintiff’s copyright infringement claim. Defendants are entitled to summary judgment
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`in this case because, assuming that Plaintiff can establish factual copying by
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`Defendants, no reasonable jury could find substantial similarity of ideas and expression
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`between the protected elements of the two songs at issue.
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`III. CONCLUSION AND ORDER
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`The Court has conducted a side-by-side comparison of Plaintiff’s song “Got a
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`Little Bit of Love for You” and Beyonce’s song “Baby Boy.” Based on this
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`comparison, the Court concludes that no reasonable jury, if properly instructed, could
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`find that the two songs are substantially similar. Accordingly, Plaintiff cannot establish
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`that Defendants engaged in actionable copying of her song, and it is hereby
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`ORDERED that Defendants’ Motions for Summary Judgment [Docs. # 79 and
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`# 91] are GRANTED. It is further
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`ORDERED that the Knowles Defendants’ Motion for Summary Judgment on
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`Access, Independent Creation, and Originality [Doc. # 95], Defendants’ Joint
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`Conditional Motion to Bifurcate [Doc. # 96], Plaintiff’s Motion to Compel Production
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`of Damage Documents [Doc. # 107], and the Agreed Motion to Amend Scheduling
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`Order to Extend Deadline to Mediate [Doc. # 125] are DENIED AS MOOT.
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`The Court will issue a separate final judgment consistent with this Memorandum
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`and Order.
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`SIGNED at Houston, Texas, this 21st day of September, 2006.
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