District court grants motion to dismiss copyright infringement claim alleging that Alan Jackson’s 2003 song “Remember When” infringed copyrights in plaintiff’s original composition, finding plaintiff’s allegations of access insufficient.

Timothy Arnett sued country music star Alan Jackson and Sony Music Holdings for copyright infringement, alleging that the song “Remember When,” which was written and recorded by Jackson and released by Sony in 2003, infringed Arnett’s copyrights in his original composition of the song “Remember Me.” Arnett claimed that “Remember When” amounted to a derivative work based on his composition, and particularly on the music of “Remember Me.” Arnett asserted that “Remember When” is “strikingly similar” to “Remember Me,” especially given the “mimicry of [its] title and theme.”

Arnett asserted that Jackson had access to “Remember Me,” claiming that it was widely disseminated because Arnett performed the song at events, posted audio recordings of it on the internet and sold recordings of it. He also claimed that Jackson had access to the song because Arnett sent a copy of it to third-party intermediaries who purportedly knew Jackson. In support of the claim, Arnett alleged that “Remember Me” was reviewed by an individual “who had a business relationship with recording and publishing companies that also handled Jackson’s works”; the composition was submitted to and circulated by “an acquaintance of Mr. Jackson”; it was submitted to and reviewed by “T Bone Burnett, whose work includes recordings handled by Sony Music Entertainment and its labels with which [Jackson] was affiliated”; and the song was “accepted for review and consideration for inclusion on an album by Faith Hill,” with whom Jackson performed “during that time.”

Jackson and Sony moved to dismiss the complaint for failure to state a claim on which relief can be granted, arguing that Arnett had not plausibly alleged access to “Remember Me.” The district court granted the motion, finding plaintiff’s allegations of access insufficient. On Arnett’s allegation regarding public dissemination, the court held that the existence of the song on the internet and its distribution by sale, without more, cannot justify the inference that Jackson had access to materials. While an inference of access may follow from a protected work’s “considerable commercial success” or “a large amount of copies sold,” Arnett made no allegations to that effect in his complaint.

As to Arnett’s theory of access through intermediaries, the court noted that allegations of access through a third-party intermediary may be sufficient where a plaintiff establishes that defendants maintained a close relationship with the intermediary — such as that of supervisor-supervisee, employment within the same department, shared office space or the exchange of creative ideas — and that their dealings involved some overlap in subject matter. No inference of access arises, however, where “nothing establishes that the alleged infringer had contact with the third-party intermediary during the period the alleged infringer was working on the allegedly copied work.” Here, the court held, the alleged connections between Jackson and the intermediaries did not qualify as sufficiently “close relationships,” nor did Arnett plausibly allege that Jackson had a reasonable opportunity to encounter the song during the time that those intermediaries purportedly possessed it.

Finally, Arnett argued that the striking similarity of “Remember When” and “Remember Me” precluded any reasonable explanations other than copying. Expressing skepticism that the Fourth Circuit had even adopted the “striking similarity doctrine,” which permits an inference of access where the works are so similar as to create a high probability of copying and negate the reasonable possibility of independent creation, the court nonetheless held that this doctrine did not apply here. According to the court, Arnett’s allegation that the works were strikingly similar due to the “mimicry of the title and theme” was insufficient, because he failed to say what common themes they shared and why.

The court also denied Arnett’s request, in his opposition papers, to file a second amended complaint because it was made in a separately and properly noticed motion and Arnett failed to submit a proposed amended pleading as required by the local rules.