Will Loomis, composer of the song \u201cBright Red Chords,\u201d alleged that the defendants stole a two-measure vocal melody and used it as the theme for the verse melody in their hit song \u201cDomino.\u201d 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.<\/p>\n
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Will Loomis is the composer of a song called \u201cBright Red Chords.\u201d 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 \u201cDomino.\u201d<\/p>\n
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.<\/p>\n
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.<\/p>\n
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.<\/p>\n
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.<\/p>\n
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.\u00a0In 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\u2019s work.<\/p>\n
Proof of access requires \u201can opportunity to view or to copy plaintiff\u2019s work.\u201d \u201cTo 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.\u201d \u201cWhere 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\u2019s work and the defendant\u2019s access, or (2) showing that the plaintiff\u2019s work has been widely disseminated.\u201d<\/p>\n
Loomis\u2019 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.<\/p>\n
Sunny Elle Lee worked for UMG Recordings as an Artists and Repertoire Representative. In May of 2010, Lee emailed Loomis\u2019s 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\u2019s responsibility as an A&R representative was to \u201cfind\u201d and \u201cshare\u201d music.<\/p>\n
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\u2019s solicitation of Bright Red Chords makes this case distinguishable from the \u201cbare corporate receipt\u201d cases.<\/p>\n