Sixth Circuit affirms summary judgment for defendants in copyright infringement case involving Spencer Davis Group song Gimme Some Lovin’, finding statements by band members about their use and knowledge of plaintiffs’ song were inadmissible hearsay.

Plaintiffs Willia Dean Parker and Rose Banks sued defendants Mervyn Winwood, Steve Winwood and Kobalt Music Publishing for copyright infringement, alleging that the Winwoods, as part of the Spencer Davis Group, lifted the bass line from plaintiffs’ 1965 song Ain’t That a Lot of Love to write the song Gimme Some Lovin’ the following year. Steve Winwood and Kobalt moved for summary judgment, arguing that no one in the Spencer Davis Group had heard Ain’t That a Lot of Love before writing Gimme Some Lovin’. In response, plaintiffs asked the district court to consider several documents that they claimed constituted direct evidence of copying. Defendants objected, arguing that plaintiffs’ evidence — statements from non-party band members contained in a 1990 book and in magazine articles posted to defendant Steve Winwood’s website — was inadmissible hearsay. The district court agreed and granted the motion for summary judgment, noting that defendants had submitted affidavits that no one in the band had heard Ain’t That a Lot of Loving before writing Gimme Some Lovin’, and plaintiffs had failed to produce any evidence of copying.

Defendant Mervyn Winwood moved to dismiss for lack of personal jurisdiction, arguing that he was a British citizen with no contacts with the United States or Tennessee, where the lawsuit was filed. Plaintiffs argued that Mervyn had subjected himself to jurisdiction in Tennessee by purposely infringing the copyright owned by Tennessee residents, and by contracting with Island Records to distribute the allegedly infringing song in the U.S. The district court granted Winwood’s motion to dismiss for lack of personal jurisdiction.

Plaintiffs appealed both rulings, and the Sixth Circuit affirmed. The court first addressed the four documents plaintiffs submitted as evidence of defendants’ copying. First, they offered an excerpt from a book that contained portions of an interview with Spencer Davis in which he admitted that Gimme Some Lovin’ used the bass riff from plaintiffs’ song. Plaintiffs claimed the book fell within the ancient documents exception to hearsay, but the court held that, even assuming that were the case, the statements attributed to Davis in the book did not qualify as an ancient document. Next, plaintiffs offered a 1988 Billboard Magazine interview with Spencer Davis that had been posted to SteveWinwood.com, arguing that it fell within the hearsay exception for opposing party statements. The court, however, held that “merely hosting a document on a Web site does not indicate that the hosting entity adopts the document as its own statement or exercises control over its content,” and therefore the statements were not attributable to Steve Winwood. The third and fourth documents were also printouts of magazine articles that had been posted to Winwood’s website. The court similarly held that these were not statements from Steve Winwood and therefore did not qualify for the exception to hearsay.

The court then turned to plaintiffs’ argument that the parties’ songs are strikingly similar, which would eliminate the need to prove access and copying. The court held that plaintiff’s expert report on strikingly similar was properly excluded from consideration because it was not submitted until more than a month after the briefing on Steve Winwood and Kobalt’s motion for summary judgment had closed.

The court also affirmed the dismissal of Mervyn Winwood for lack of personal jurisdiction. The court held that the following facts were insufficient to confer personal jurisdiction on Mervyn: (i) while he was a member of the Spencer Davis Group, the band contracted with a company that distributed and marketed its music in the U.S., (ii) the band wrote Gimme Some Lovin’ with an “American perspective,” and (iii) the song debuted in the United States while Mervyn was still in the band. The court found no evidence that Mervyn himself directed distribution of the song in the United States, and that he was, at most, merely aware that the song would be distributed internationally.

One judge dissented. Noting at the outset that many British bands have been inspired by the works of black R&B artists, the dissenting judge argued that plaintiffs’ expert report should have been considered in order to avoid a grave injustice, even though it was submitted after the close of summary judgment briefing. The dissenting judge also argued that, in viewing the evidence in the light most favorable to plaintiff, Mervyn’s assertion that he contracted for the promotion and marketing of his music in the U.S. supports the exercise of personal jurisdiction.