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Musical Domino theory fails to make a copyright impact in Loomis v. Cornish

Source: Grill IP patents news

loomis-v-cornish-infringementDisputes over musical copyright have taken up quite a lot of time in the Ninth Circuit of the US Federal Courts lately. In their most recent decision, the judges upheld a district court ruling, which found that English singer-songwriter Jessie J had not infringed the copyright of plaintiff Will Loomis of his song “Bright Red Chords.” The district court had argued that Loomis failed to show that Jessie J and her fellow songwriters had any access to the track prior to writing their own song.

Background

    The plaintiff composed and recorded the song “Bright Red Chords” with his band Loomis & the Lust, registering copyright for the tune in 2008. It appeared on their 2009 album “Nagasha.” Loomis argued that Jessica Cornish, better known as “Jessie J,” her record label Universal Music Group Inc., and Universal Republic Records, had infringed his copyright by copying a core vocal melody of “Bright Red Chords” in Jessie’s hit single “Domino.”

The case hinged on whether Loomis could prove that the creators of “Domino” had had access to Loomis’ work.

    Loomis’ band did indeed make a few MTV appearances, was featured in a variety of clothing stores, and was mentioned by Billboard magazine, but overall the band struggled to get attention, and between 2009 and 2010 sold a mere 46 copies of “Bright Red Chords.” In contrast, Jessie J’s “Domino” was tremendously successful.

    For a claim of copyright infringement to be established, a plaintiff must demonstrate their ownership of a valid copyright and that there was copying of constituent “original” elements of the work by the defendant. While the litigating parties in this case recognize Loomis’ copyright, an inference of infringement requires to prove that the defendant had access to the plaintiff’s work, and that the two works contain substantial similarities. To prove this access, the plaintiff is tasked with showing a “reasonable possibility” that the defendants listened to the work in question. The Ninth Circuit’s review of this point was limited by the fact that the district court’s findings wholly rested on the defendant’s access to “Bright Red Chords.”

Not reasonable enough

    In order to demonstrate that Jessie J and her co-writers had access to his work, Loomis provided two separate theories. He first argued that a number of third party intermediaries existed between Loomis and J, any of whom could have given the defendants access to the song. One of these intermediaries was Sunny Elle Lee, a talent scout and development representative for UMG Recordings, who was given a copy of “Bright Red Chords.” Loomis maintained that any reasonable jury could conclude that Lee passed his song to the “Domino” creators. The Circuit disagreed, arguing that without a direct connection between the alleged infringers and the intermediary, a “bare corporate receipt” was insufficient to prove the defendant had listened to the plaintiff’s work. Additionally, Loomis contended that a former guitarist for Loomis & the Lust, Casey Hooper, later collaborated with the songwriters of “Domino,” giving them access to the track. The court discounted this claim, since Loomis relied on hearsay that Hooper worked with fellow songwriters of Jessie J during a recording session for Katy Perry’s album “Teenage Dream.”

    The plaintiff’s second theory of access was grounded in the doctrine that a “reasonable possibility” can be shown if the plaintiff’s work is widely distributed before the alleged infringement. While Loomis’ song did not achieve such commercial success, the Circuit considered a variation of this doctrine, allowing Loomis to demonstrate that “Bright Red Chords” had flooded a relevant market where the defendants were present. Loomis argued that “Bright Red Chords” was popular in Santa Barbara, California, while the songwriters of “Domino” were in the city recording with Katy Perry. According to Loomis, his track was played often by local radio stations, and he had distributed promotional copies of the work at the recording studio where the creators of “Domino” were working. The Ninth Circuit disagreed, saying that a brief stay in the city to record an album did not necessarily mean that the “Domino” songwriters were part of the local music scene, whether by scouting local talent or listening to local radio.

    While there was the “bare possibility” that the defendants had heard Loomis’ work during their stay, in the absence of additional evidence, the court found that possibility insufficient to advance a triable issue of access for summary judgment. In light of Loomis’ failure to provide proof of access, the District Court’s decision to grant the defendants’ summary judgment was affirmed by the Ninth Circuit. Looks like those chords were not “bright” enough.

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