IP Law Daily Songwriters’ evidence of copying, striking similarity falls short of creating dispute
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Wednesday, September 18, 2019

Songwriters’ evidence of copying, striking similarity falls short of creating dispute

By Pamela C. Maloney, J.D.

Exceptions to hearsay rule did not apply to songwriters’ evidence of copying against members of rock band who allegedly copied the songwriters’ bass riff when creating the band’s own song.

Two songwriters who authored the song "Ain’t That a Lot of Love" failed to provide admissible evidence of direct copying or substantial similarity to survive summary judgment motion by members of a London-based rock group accused of and recording an allegedly infringing song titled "Gimme Some Lovin," the U.S. Court of Appeals for the Sixth Circuit ruled, affirming the district court’s grant of summary judgment of noninfringement. The Sixth Circuit also affirmed the lower court’s finding that it lacked personal jurisdiction over one member of the group (Parker v. Winwood, September 17, 2019, Griffin, R.).

Willa Dean Parker and Homer Banks co-authored the musical composition "Ain’t That a Lot of Love" in 1965 and registered it with the U.S. Copyright Office. In 1966, Spencer Davis, Mervyn Winwood, and Steve Winwood, who had formed The Spencer Davis Group in 1963 in England, wrote the song "Gimme Some Lovin" and released it in the United Kingdom. The song was registered with the Copyright Office by Island Records who had a contract with the band to market its music. Fifty-one years later, Parker and Banks’s wife filed a copyright infringement action against the Winwoods and Kobalt Music Publishing—the company that exploited Steve Winwood’s copyright interest in "Gimme Some Lovin’"—alleging that when writing "Gimme Some Lovin’," the Winwoods had lifted the bass line from "Ain’t That a Lot of Love." The federal district court in Nashville granted the defendants’ motion for summary judgment, concluding that the writers of "Ain’t That a Lot of Love" failed to show a genuine issue of material fact as to whether the Winwoods had a reasonable possibility of access to "Ain’t That a Lot of Love" before the group created and recorded their song. The district court also dismissed the claims against Mervyn Winwood for lack of personal jurisdiction. The plaintiffs appealed.

Evidence of copying. In support of their infringement claim, the plaintiffs sought to introduce four documents containing interview statements given by group members or those acting in a representative capacity, all of which suggested that the bass riff in "Gimme Some Lovin’" was lifted from "Ain’t That a Lot of Love." The district court excluded the documents on the ground that they were inadmissible under the hearsay rule. The Sixth Circuit agreed, concluding that the statements cited in the documents did not fall under the party admission exception to the hearsay rule. The statements in three of the documents were not made by Steve Winwood—a party to the instant action—and thus could not be used as an opposing party statement. The mere fact that several of these documents appeared on Winwood’s webpage did not indicate that he had adopted the document as his own or that he exercised control over the content contained in them. The fourth document, which was a one-page excerpt from a book, did not fall under the ancient documents exception to the hearsay rule, the Sixth Circuit ruled, explaining that while the book might qualify as an ancient document, a statement made one of the co-writers of "Gimme Some Lovin’" was not an ancient document. Without these documents, the plaintiffs presented no evidence that created a genuine issue of material fact over whether Steve Winwood had copied their song.

Striking similarity. For the first time on appeal, the plaintiffs argued that the district court erred in granting summary judgment because the two songs were strikingly similar. The plaintiffs relied on an expert report comparing the two songs to support this argument. However, the expert’s report was not completed until after briefing on the summary judgment motion had been completed. Thus, on appeal the defendants were confronted with a new issue and new evidence. Noting that the district court was not required to scour the record for retroactive evidence in support of the plaintiffs’ argument, the Sixth Circuit concluded that the lower court did not error in granting summary judgment given the fact that the issue of striking similarity was never presented and the evidence to support it was produced after briefing was completed..

Jurisdiction. The Sixth Circuit also affirmed the lower court’s finding that it lacked personal jurisdiction over co-author, Mervyn Winwood. The plaintiffs’ primary contention on appeal was that Mervyn’s alleged willful copyright infringement, which occurred in England, qualified as purposeful activity in Tennessee because he intentionally harmed Tennessee residents. However, U.S. Supreme Court had rejected this argument because to find jurisdiction under such a scenario would be to mistake a plaintiff’s forum connections for that of the defendant.

Similarly, Mervyn’s alleged efforts to market the infringing work throughout the United States did not qualify as purposeful activity in Tennessee. The evidence showed that Mervyn was a member of the Spencer Davis Group; that the band contracted with a company that distributed and marketed its music; that the band wrote "Gimme Some Lovin’" with an "American perspective"; and that the song debuted in the United States while Mervyn was still in the band. However, there was no evidence that Mervyn himself directed distribution of the song within the United States or specifically within Tennessee or that Mervyn was more than "merely aware" that the song might be distributed in the United States. Therefore, the district court correctly had ruled that it lacked personal jurisdiction over Mervyn.

Dissent. Circuit Judge Bernice Bouie Donald took exception to the majority’s decision that the lower court did not err in neglecting to consider the expert’s report, which clearly established a triable issue of fact as to whether the defendants had copied the plaintiffs’ song. Even though the report was not submitted until after the summary judgment briefing schedule had ended, it was part of the record and the district court could have—and should have—reviewed the entire record in making its determination.

Judge Donald also disagreed with the majority’s conclusion that the plaintiffs failed to establish a prima facie case for personal jurisdiction. According to the judge, the evidence presented by the plaintiffs, when viewed in a light most favorable to them, was sufficient to established that as a party to the contact with Island Records to promote and market the group’s songs in the United States, Mervyn had taken steps to purposefully avail himself of the forum.

This case is No. 18-5305.

Attorneys: Taylor A. Cates (Burch, Porter & Johnson, PLLC) for Willia Dean Parker and Rose Banks. Jay S. Bowen (Shackelford Bowen McKinley Norton, LLP) for Mervyn Winwood, Steve Winwood and Kobalt Music Publishing.

Companies: Kobalt Music Publishing

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