In late December 2007, the United States Court of Appeals for the Fifth Circuit affirmed a district court’s grant of summary judgment of no copyright infringement and also dismissed the appeal of an order awarding costs for “want of jurisdiction.” Armour v. Knowles et al., Case No. 06-20934 (5th Cir., Dec. 21, 2007) (Higginbotham, J.: Smith, J.; Owen, J.) (per curiam).
In early 2003, Jennifer Armour, an aspiring singer and songwriter, recorded a demo tape that included an instrumental version of her song “Got a Little Bit of Love for You.” A month later, Armour registered a copyright of an a cappella version of her song, and in May 2006, she registered a copyright of an instrumental version of the same song. Meanwhile, Beyoncé Knowles recorded and commercially released the song “Baby Boy” on June 24, 2003, which quickly received large amounts of radio airtime. Upon hearing Beyoncé perform “Baby Boy” at a concert, Armour was so struck by the similarities between “Baby Boy” and her song that she filed a suit alleging copyright infringement. At the district court level, Armour argued that she had a valid copyright to “Got a Little Bit of Love for You,” that Beyoncé copied parts of her song (notably portions of the melody) and that the two songs sounded substantially similar. Beyoncé successfully moved for summary judgment, the district court concluding that no reasonable jury could find the two songs substantially similar. Armour appealed the judgment.
On appeal, Armour again attempted to prove the factual copyright prong circumstantially by proving access and similarity. As the 5th Circuit stated, “[t]aking the access and summary judgment standards together, a plaintiff can survive summary judgment only if his evidence is significantly probative of a reasonable opportunity for access.” In this regard, Armour claimed that her manager sent copies of her demo tape sometime between January and March 2003 to numerous individuals in the music industry, a number of whom were thought to be associated with Beyoncé Knowles. Armour contended that Beyoncé had access to the demo tape prior to composing the allegedly infringing portion of “Baby Boy.” However, in her responses to Beyoncé’s requests for admission, Armour admitted that the demo tapes sent to those associated with Beyoncé were sent well after Beyoncé created the allegedly infringing portion of “Baby Boy.” Because Armour was unable to prove access, the 5th Circuit affirmed the district court’s grant without even reaching the question of substantial similarity.