USCA Second Circuit, July 24, 2008 (unpublished opinion)

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Plaintiffs appealed from summary judgment entered in favor of defendants in a copyright infringement action. Plaintiffs alleged that defendants’ song “Unpretty,” which was commercially released in February 1999, infringed upon plaintiffs’ rights in their song “Make Up Your Mind,” allegedly recorded and submitted to the defendants on or about August 25, 1998.

In vacating and remanding the district court’s decision, the Second Circuit explained that copyright infringement is established when the owner of a valid copyright demonstrates unauthorized copying, which may be established circumstantially by “demonstrating [(i)] that the person who composed the defendant[s’] work had access to the copyrighted material and [(ii)] that there are similarities between the two works that are probative of copying.”

Here, the court stated that plaintiffs had adduced significant evidence of similarities between the two works that were probative of copying because plaintiffs proffered the expert report of Lawrence Ferrara, Ph.D., a professor and chair of the Department of Music and Performing Arts of New York University, who analyzed and compared the two songs. Dr. Ferrara found that the songs “share significant and substantial similar elements of original musical expression.” In his report, Dr. Ferrara highlighted the substantial similarities in harmony, rhythm, melody, tempo and overall structure of the compositions. Dr. Ferrara concluded that “with a reasonable degree of probability [that] whichever song was created first, the second song was created with reference to and influenced by the first.” The defendants did not submit any evidence rebutting Dr. Ferrara’s report.

Therefore, according to the court, the only real issue for purposes of this motion was whether defendants had access to plaintiffs’ song before defendants created all of the allegedly infringing portions of “Unpretty.” Although the court believed that the evidence of access was significantly weaker than the evidence of probative similarity, the court explained that since there is an inverse relationship between access and probative similarity and the evidence of probative similarity was strong in this instance, plaintiffs’ proof of access was sufficient to withstand summary judgment.

The court found that there was a significant piece of circumstantial evidence showing that defendants did have access to the allegedly infringed upon elements of “Make Up Your Mind” because plaintiffs established that defendants invited them to create a song for the album on which “Unpretty” appeared and that “Make Up Your Mind” was written for this sole purpose. In addition, defendants’ business records demonstrated that defendants continued to work on “Unpretty” well after a copy of “Make Up Your Mind” was recorded and provided to defendants. The court also believed that there was a credibility issue as to the contrary evidence offered by defendants because every witness who testified for defendants as to when the allegedly infringing elements of “Unpretty” were recorded was either a defendant or someone who has been employed by the defendants. Further, the court found that there was evidence from which a jury could reasonably infer that defendants’ witnesses were simply mistaken in their belief that the version recorded before defendants received plaintiffs’ recording was substantially similar to the final version. In sum the court reiterated its reluctance to grant summary judgment on the basis of the affirmative defense of independent creation.