IP Law Daily Failure to show access to copyrighted works doomed infringement claims
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Tuesday, September 6, 2016

Failure to show access to copyrighted works doomed infringement claims

By Jody Coultas, J.D.

The U.S. Court of Appeals in Pasadena, California upheld dismissal of copyright infringement claims by the federal district court in Los Angeles. The copyright holder was unable to show that the defendants had access to his work (Loomis v. Cornish, September 2, 2016, Clifton, R.).

Loomis wrote "Bright Red Chords" (BRC) in June or July 2008 and obtained a copyright registration for the song. In 2009 and 2010, Loomis released CDs that contained a recording of BRC.

Cornish was signed to the Universal Republic Records (URR) label, which was owned by UMG. In June 2011, Cornish and four other individuals (collectively, the "Domino Writers") wrote a composition entitled "Domino." Later that month, the song was recorded, with a vocal performance by Cornish. The recording of "Domino" was released by URR. Loomis has never met or spoken to any of the Domino Writers and never instructed anyone to send any of his music to any of the Domino Writers.

Loomis alleged that the defendants infringed his copyright in BRC by producing and distributing "Domino." According to Loomis, "Domino" contains substantially similar elements to BRC. The complaint was filed on June 25, 2012, the defendants answered on August 20, 2012. On September 19, 2013, the defendants moved for summary judgment.

A district court held that Loomis failed to present sufficient evidence supporting a plausible theory that the defendants had access to the copyrighted work. The court did not address the issue of whether the works were substantially similar. Loomis appealed.

Loomis’ mere speculation as to the defendants’ access through intermediaries to the copyrighted works was insufficient to overturn the lower court verdict, according to the court. To prove access, a plaintiff must show a reasonable possibility that the alleged infringer had the chance to view the protected work. Where there is no direct evidence of access, courts look for circumstantial evidence establishing a chain of events linking the work and the access, or showing that the work has been widely disseminated. Loomis identified several potential intermediaries through whom he alleged the defendants might have gotten access to his song. However, there was no evidence of a nexus between those intermediaries and the Domino songwriters sufficient to raise a triable issue of access.

A copyright holder may establish access by showing that the work at issue was widely disseminated. Widespread dissemination generally centers on the degree of a work’s commercial success and on its distribution through radio, television, and other relevant mediums. Courts have also focused on saturation in a relevant market in which both the plaintiff and the defendant participate. A mere possibility that the defendants heard BRC on the radio, or that they read about Loomis and the Lust in a magazine in the break room of Playback Studios, or that they picked up one of Loomis’s promotional CDs while at Playback was insufficient to raise a triable issue of access.

The case is No. 13-57093.

Attorneys: Michael Gross (Michael Gross Law Office) for Will Loomis. Jeffrey M. Movit, Christine Lepera, and Elaine K. Kim (Mitchell Silberberg & Knupp LLP) for Jessica Cornish.

Companies: UMG Recordings, Inc.; Universal Republic Recordings

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