USDC S.D. New York, April 30, 2012

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  • District court grants summary judgment to plaintiff, song composer, finding substantial similarity between her song and the infringing work, based on court’s own auditory comparison of the recordings, and unrebutted assertions that defendants had access to the song.

Pro se plaintiff Peggy Harley brought suit against defendants Ann Nesby and Shanachie Entertainment Corporation, alleging that the Grammy-nominated song I Apologize, recorded in 2007 by Nesby and produced by Shanachie, infringed on plaintiff’s song It Will Never Happen Again. Plaintiff composed the song in 2002 and secured a copyright registration for it in January 2008.

On cross-motions for summary judgment, the court granted summary judgment to plaintiff on her copyright claim, finding no triable issue that defendants copied some portions of plaintiff’s song, including the key refrain. Basing its conclusion on its own “auditory comparison” of the songs, the court identified certain lyrics that infringed on plaintiff’s work, as well as substantial similarity in some, but not all, of the music, noting that it need not find substantial similarity in all of the lyrics or music in order to find copying occurred. The court found “unmistakable and substantial similarities between portions of It Will Never Happen Again and I Apologize,” and concluded that “[i]t defies credulity that It Will Never Happen Again (plaintiff's work) and I Apologize (Nesby's work) could bear the similarity they do without unlawful copying of some portion.”

The court rejected defendants’ argument that Nesby based I Apologize on a different musical composition, Never Meant to Hurt You, composed in 1990 by Roosevelt George and which George sang for Nesby in 1998. Once again, the court compared the Nesby recording with George’s song and found little or no similarity between the two works. The court also found no similarity between George’s song and plaintiff’s work, rejecting any argument defendants attempted to make that plaintiff had copied George’s song.

The court also held that defendants had failed to put forth any evidence rebutting plaintiff’s evidence that Nesby and Shanachie had access to her song in 2006. Plaintiff alleged that she provided copies of a 10-song CD, including It Will Never Happen Again, to Vaughn Harper, a radio personality and also a defendant in the suit, in 2006, and that Harper gave a copy of the CD to Nesby. Nesby recorded I Apologize in 2007, and Shanachie produced and distributed Nesby's CD entitled This Is Love, containing I Apologize the same year. Nesby’s CD included a special thanks to Vaughn Harper. Harper did not submit a declaration denying that he provided Harley’s song to Nesby and the court held that the chain of access was unrebutted.

The court concluded: “The timing as to the creation of plaintiff's work, the copies provided to Vaughn, the unrebutted statements that Vaughn provided the CDs to Nesby, and the recording of “I Apologize" are sufficient to show access. Defendants have failed to raise a triable issue of fact rebutting that evidence. Plaintiff composed her work in 2002, provided copies to Vaughn in 2006, and Nesby recorded “I Apologize" in 2007. Thus, there is no question of material fact that the allegedly infringing work was created after plaintiff's work.”