Speculation is not enough for triable issue of access in copyright infringement case

Will Loomis, composer of the song “Bright Red Chords,” alleged that the defendants stole a two-measure vocal melody and used it as the theme for the verse melody in their hit song “Domino.” The panel held that Loomis did not put forth any potentially admissible evidence to establish that the Domino songwriters had access to Bright Red Chords, either on a chain-of-events theory or a widespread-dissemination theory. Accordingly, he failed to establish copyright infringement.

Will Loomis is the composer of a song called “Bright Red Chords.” He brought this lawsuit alleging that Defendant Jessica Cornish (publicly known as Jessie J) and a team of high-profile songwriters led by Lukasz Gottwald (publicly known as Dr. Luke) stole a two-measure vocal melody from Bright Red Chords and used it as the theme for the verse melody in their hit song “Domino.”

Loomis composed and recorded Bright Red Chords with his band, Loomis and the Lust, in Santa Barbara, California, in 2008, and thereafter obtained a copyright registration for the song by depositing a copy with the U.S. Copyright Office. Loomis then released Bright Red Chords on a 2009 album, Nagasha, and a 2010 album, Space Camp. He also created a music video for the song.

Bright Red Chords was not commercially successful. Although the band hired a radio promotions company to promote the song on a variety of radio stations and a video promotions company to disseminate the music video through multiple media platforms, Bright Red Chords did not achieve an appreciable level of national saturation. Loomis was able to provide to the district court documentation of only 46 sales of the recording.

Domino was written in June of 2011 by a five-person songwriting team. Dr. Luke and his collaborator Henry Walter created the instrumental track that became the musical bed for the song. The melody and lyrics were added in a later session at Conway Studios in Los Angeles. Jessie J created the melody in collaboration with Dr. Luke and Claude Kelly. Karl Martin Sandberg (publicly known as Max Martin) also participated in this session, and he and Dr. Luke provided additional creative contributions to the song. Defendant Universal Republic Records released Domino, and it achieved substantial commercial success.

After hearing Domino, Loomis brought suit against Jessie J and her record label alleging copyright infringement. The district court granted summary judgment in favor of the Defendants. Appeal has followed.

Copyright ownership by Loomis was not in dispute in this case. The only issue was whether a reasonable jury could conclude that the Domino songwriters copied protectable elements of Bright Red Chords. In this case there was no direct evidence of copying. The summary judgment entered by the district court relied entirely on the issue of access. Specifically, the district court concluded that Loomis failed to present sufficient evidence to support a finding that Defendants had access to Loomis’s work.

Proof of access requires “an opportunity to view or to copy plaintiff’s work.” “To prove access, a plaintiff must show a reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to view the protected work.” “Where there is no direct evidence of access, circumstantial evidence can be used to prove access either by (1) establishing a chain of events linking the plaintiff’s work and the defendant’s access, or (2) showing that the plaintiff’s work has been widely disseminated.”

Loomis’ chain of events theory is that multiple intermediaries could have provided a copy of Bright Red Chords to the Domino songwriters. His widespread dissemination theory is that Bright Red Chords had saturated the market in Santa Barbara so thoroughly that the presence of certain Domino songwriters at a recording studio in Santa Barbara during the period of saturation created a reasonable possibility of access.

Sunny Elle Lee worked for UMG Recordings as an Artists and Repertoire Representative. In May of 2010, Lee emailed Loomis’s mother, Kristin Loomis, who acted as administrative coordinator for the band, to request a copy of Bright Red Chords. The band furnished Lee a copy of the song. Loomis argued that this chain of events created a triable issue of access because Lee’s responsibility as an A&R representative was to “find” and “share” music.

Loomis posited that because Lee was successful in her job and received a promotion, a reasonable juror could extrapolate that she provided Bright Red Chords to the Domino songwriters. He further argued that Lee’s solicitation of Bright Red Chords makes this case distinguishable from the “bare corporate receipt” cases.

The court disagreed. There was no evidence of a nexus between Lee and the Domino songwriters that would be sufficient to raise a triable issue of access. Loomis did not dispute Defendants’ statement that “the five Domino Writers do not know, have never met, and have never received anything from Sunny Elle Lee.” He also did not dispute that “Lee was not part of the work unit that created Domino.” There was no evidence presented beyond mere speculation from Loomis himself to show that Lee had any role or input on any of Jessie J’s music or recordings. Therefore, it is not “reasonably possible that the paths of the infringer and the infringed work crossed.”

Casey Hooper played lead guitar for Loomis and the Lust from September of 2009 to April of 2010. Hooper did not perform on the recording of Bright Red Chords, but he did perform the song live on MTV and at various shows. He left the band in April of 2010 to join Katy Perry’s band.

Loomis’s second argument is that a triable issue of access was established by evidence that Hooper was involved in Katy Perry’s movie “Part of Me.” Loomis testified that the packaging from the film shows that Hooper appeared as a cast member and that he received songwriting credits on two tracks. He further testified that Dr. Luke and Max Martin are listed as co-producers of the movie.

This theory is deficient because there is no evidence detailing the responsibilities of Hooper, Dr. Luke, or Max Martin with respect to the film, let alone evidence that demonstrated that they actually worked together and were in personal contact. Nothing in the record shows the requisite nexus between Hooper and the Domino songwriters except for Loomis’s own speculation.

Loomis also argued that Domino songwriters Dr. Luke and Max Martin were in Santa Barbara for the Teenage Dream sessions at a time when Santa Barbara was saturated with Bright Red Chords. Loomis testified that the band was receiving “tons of airplay” on local radio stations at that time, and that Mix Magazine, Billboard, and the Santa Barbara Independent newspaper had carried stories about the band’s achievements.

Loomis also testified that he had deposited promotional copies of Bright Red Chords at Playback Studios in the weeks leading up to the Teenage Dream sessions, and that the studio kept copies of Mix Magazine and the Santa Barbara Independent in the break room. The fact that Dr. Luke and Max Martin spent ten days recording an album for a major national recording artist in Santa Barbara during a period when the local music scene was saturated with Bright Red Chords does not raise a triable issue of access.

Dr. Luke and Max Martin were not participating in the relevant market – the Santa Barbara local music scene – during their brief stay in Santa Barbara. Their production responsibilities had nothing to do with listening to local radio, reading local press, or scouting local bands, and there was no evidence that they undertook any other activity in that market that created a reasonable possibility of access to Bright Red Chords.

Plaintiff’s arguments in this case tell a story that, if adequately substantiated, might have survived summary judgment. The problem is that it was not supported by potentially admissible evidence. The district court did not err in granting summary judgment.