Halper v. Sony/ATV Music Publishing LLC et al
REPORT AND RECOMMENDATION: For the reasons discussed above, the undersigned recommends that Defendants' Motion to Dismiss (Docket No. 25) be GRANTED, and that this action be DISMISSED. Signed by Magistrate Judge Jeffery S. Frensley on 11/15/2017. (xc:Pro se party by email. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
SONY/ATV MUSIC PUBLISHING, LLC,
Case No. 3:16-cv-00567
Judge Steeh / Frensley
REPORT AND RECOMMENDATION
I. Introduction and Background
This matter is before the Court upon a Motion to Dismiss and Incorporated Memorandum
of Law filed pursuant to Fed. R. Civ. P. 12(b)(6) by Defendants Sony/ATV Music Publishing
LLC, EMI April Music Inc., Gone Gator Music, Universal-Polygram International Tunes, Inc.,
Sony/ATV Songs LLC, and UMG Recordings, Inc. Docket No. 25. In support of their Motion,
Defendants have contemporaneously filed the Declaration of Elizabeth Gonser with attached
Exhibit. Docket No. 26.
Plaintiff has filed a Response in Opposition to Defendants’ Motion. Docket No. 28.
With leave of Court (Docket No. 31), Defendants have filed a Reply (Docket No. 29-1).
Also with leave of Court (Docket Nos. 40, 43), Plaintiff has filed a Sur-Reply (Docket
Plaintiff, pro se, filed this copyright infringement action alleging that “Sam Smith,
Capitol Recording artist, used and replicated phraseology and significant phrase ‘stay with me’
eight (8) times in the body of his mega hit song ‘Stay with Me’ thereby copying and infringing
upon the original musical production of Plaintiff Mark Halper whose original song ‘Don’t Throw
Our Love Away’ written in April 1984 and musically recorded as a demo in a Nashville studio in
February 1986 and a second demo musically recorded in 2013 that began in line 1 with the
phraseology and significant phrase ‘stay with me’ and continued in line 2 with the phraseology
‘lay with me.’” Docket No. 1, p. 2. Plaintiff argues that Defendants gained access to his work
through the production and “wide” dissemination of two (2) demos of “Don’t Throw Our Love
Away” to “some of the most successful music producers and recording artists of that time.” Id.
at 6. Specifically, Plaintiff argues:
The first demo was produced in 1986 and the second demo was
produced in 2013 with two different arrangements and sung by two
different female singers. In between, there was also a demo sung
by a male singer. The cassette demo of “Don’t Throw Our Love
Away” was first produced and widely disseminated to some of the
most successful music producers of that period (1986) to include
Garth Fundis (3/7/86), Don Lanier (3/7/86), Brent Maher (3/7/86),
Paul Worley (3/10/86), Rich Alves and Tom Collins (4/8/86), and
Brian Rawlings (4/8/86) and also widely disseminated to some of
the most successful recording artists and entertainers of that period
(1986) to include Lee Greenwood (3/7/86), Don Williams (3/7/86),
Reba McEntire (3/7/86), Crystal Gayle (4/9/86), Sylvia (4/9/86),
Gary Morris (4/9/86), Barbara Mandrell (4/9/86), Ronnie Milsap
(4/10/86), and Dolly Parton (1/8/90). The demo of “Don’t Throw
Our Love Away” was also sent to Marvin Hamlisch before he
died. The third demo was produced and widely disseminated in
2013 to include one of the most successful music producers of that
period (2013), Emilio Estefan via referral from a mutual friend
Gladys Passes whose name was Julio, and to include one of the
most successful recording artists, Gloria Estefan via referral from
that same mutual friend of Gladys Passes whose name was Julio.
Plaintiff contends that the “phraseology ‘stay with me’ has now become readily and
instantly recognizable and forever engrained [sic] in the hearts, souls, and minds of music lovers
around the world.” Id. Plaintiff asserts that the phraseology ‘stay with me’ and ‘lay with me’
first written by him and appearing in his original 1984 song “Don’t Throw Our Love Away” and
subsequently copyrighted with Certificate of Registration, Registration Number Pau003785645
contains a protectable expression. Id. at 8. Plaintiff therefore maintains:
In this case, we are not talking about substantial similarity. We are
talking about the exact and identical phraseology and significant
phrase ‘stay with me’ being used and replicated eight (8) times
throughout the song “Stay With Me” and then the exact and
identical phraseology ‘lay with me’ being used as a counterpart in
“Stay With Me”.
All told, 26% of the song “Stay With Me” represents use of and
replication of the phraseology significant phrase of Plaintiff’s
original song “Don’t Throw Our Love Away”. Without the court
and your Honor granting Plaintiff copyright infringement
protection on the phraseology and significant phrase ‘stay with me’
(at the very least) and realistically to include the counterpart
phraseology ‘lay with me,’ the songwriters Samuel Smith, James
Napier, William Phillips and now to include Tom Petty and Jeff
Lynne will be in a strong legal position to exert control over and
ownership of this phraseology significant phrase. Since “Don’t
Throw Our Love Away” was never published, without this
copyright infringement protection, it is unlikely that any singer or
publisher would proceed to record “Don’t Throw Our Love Away”,
thus denying Plaintiff rightfully deserved marketing, retail sales,
and promotional value. All recognition and revenue would
continue to go directly to Samuel Smith, James Napier, William
Phillips, Tom Petty, and Jeff Lynne through Sony/ATV Music
Publishing LLC et al to include all the Defendants named in this
Id. at 7.
There are two (2) key elements most relevant to this case. The first
is to understand what has occurred prior to the filing of the
copyright infringement claim involving the phraseology contained
in the first two lines of “Don’t Throw Our Love Away” as
previously originally written by Plaintiff, i.e. ‘stay with me’ and
‘lay with me’. The second is to understand in fact that a willful
infringement has been perpetuated by Defendant since the initial
letter was sent by Plaintiff Mark Halper to Jeff Smaar, VP Global
Copyright Administration, SONY ATV SONGS LLC the
designated office for Sony/ATV Music Publishing LLC, advising
them of a copyright infringement claim, and acknowledged by Jeff
Smaar as being received on February 25, 2015. There was then the
formal filing of the copyright infringement claim in Federal court.
From the very beginning, there has been a refusal and failure by
Sony/ATV Music Publishing LLC to communicate with Plaintiff in
any meaningful manner. It represents and clearly shows the intent
of the Defendants to deny and deprive the Plaintiff of any financial
gain and recognition for that which he created while every entity
and member associated with Defendants has received significant
career and financial benefits and gain.
Id. at 8-9.
Plaintiff sues Defendants seeking:
a. Acknowledge contribution with co-songwriting credit for “Stay
With Me” to include Plaintiff Mark Halper to be added to Samuel
Smith, James Napier, and William Phillips for lyrics while
acknowledging that following the out of court settlement as
referenced above, Jeff Lynne and Tom Petty have been added to
the songwriting credit of “Stay With Me”.
b. 28% royalty from the single “Stay With Me” and the CD album
“In the Lonely Hour” and the subsequent CD album “In the Lonely
Hour” (Drowning Shadows Edition), produced and distributed by
Capitol Records and publishing revenue containing the song “Stay
With Me” which propelled the CD album to sales in excess of 2
million copies in both the US, the UK as well as many countries
internationally with sales and revenue having been received
through new technology to include, but not limited to [sic]
downloading and streaming through Apple, YouTube, Amazon,
iTunes, and Spotify as well as the previously considered four
principle sources of revenue for compositions which include
mechanical royalties, performance royalties, sale of sheet music &
folios, and profits of record label(2) [sic].
c. 28% financial compensation from the financial arrangement and
compensation paid for use of the excerpt of the song “Stay With
Me” with Sam Smith singing the phraseology and significant
phrase “stay with me” for a commercial promo for the Universal
mini-series production of AD - The Bible Continues which began
airing 3/30/15 during the episode of The Voice for the program set
to begin airing Easter Sunday, 4/5/15 on NBC.
d. 28% financial compensation from the financial arrangement and
compensation paid for use of the promo transition following a
competitor’s performance (Alex Boye) from America’s Got Talent
which aired 6/23/15.
e. Statutory damages for willful infringement as of February 23,
f. Recommendation by Defendants to include acknowledged
songwriters as referenced above to the National Academy of
Recording Arts & Sciences (NARAS) and Society of European
Stage Authors and Composers (SESAC) to acknowledge and honor
Mark Halper with presentation of a Grammy and SESAC award as
co-writer of the lyrics of “Stay With Me”.
g. Public apology by all Defendants noted within Sony/ATV
Music Publishing LLC et al to Mark Halper in the music trade
magazines to include Billboard, Variety, and Hollywood Reporter.
Id. at 2-3.
Defendants filed the instant Motion and supporting materials arguing that Plaintiff’s
copyright infringement claim against them must be dismissed because: (1) Plaintiff does not
allege any theory by which any of the Defendants had access to Plaintiff’s song “Don’t Throw
Our Love Away”; and (2) Plaintiff has no copyright protection for the phrase “stay with me,”
since copyright protection does not extend to short phrases. Docket No. 25, p. 2, citing Ellis v.
Diffie, 177 F.3d 503, 506 (6th Cir. 1999); Pendleton v. Acuff-Rose Publications, Inc., 605 F.
Supp. 477, 486 (M.D. Tenn. 1984). Defendants additionally argue that although Plaintiff
identifies a number of people to whom he gave a demo recording of his song “Don’t Throw Our
Love Away” in 1986, 1990, and 2013, Plaintiff does not allege that any of these individuals are
among the named Defendants in this action or are otherwise associated with them, nor does he
allege a “chain of events” which could tie the individuals to Defendants and demonstrate that
Defendants would have received and heard Plaintiff’s song. Id. at 3, 5. Defendants further argue
that although Plaintiff alleges that Defendants may have “subconsciously” copied his work given
the “widespread dissemination” of his demo recordings to the named individuals in 1986, 1990,
and 2013, Plaintiff concedes that his song “was never published.” Id. at 3, 6.
Plaintiff responds that Defendants had a reasonable opportunity to see or hear his work,
and did in fact see or hear his work. Docket No. 28, p. 2. Plaintiff maintains that he “went to the
two respective county courthouses and then looked up in the treasurer’s office the official
property registration with address and then on weekends drove out to the homes and personally
presented the cassette demo and lyric sheet of “Don’t Throw Our Love Away” to some of the
most popular and respected record producers, publishers, and recording artists of that time
period. Later on, with the advent of high speed electronic communication and messaging,
Plaintiff used e-mail, scanned e-mail attachment, and YouTube video to disseminate his songs,”
including “Don’t Throw Our Love Away.” Id. at 1. Plaintiff further responds that he sent via email and e-mail attachment “all relevant documentation” pertaining to “Don’t Throw Our Love
Away” to Defendants and that the February 23, 2015 e-mail from Jeff Smaar, VP Global
Copyright Administration, Sony/ATV Music Publishing LLC, which stated, “Mr. Halper, We are
in receipt of your letter dated February 12, 2015 and it is currently being evaluated,” establishes
that Defendants had access to his work. Id. at 2. Plaintiff continues:
In this instance, there was clear access with the communication by
Plaintiff to Sony/ATV Music Publishing LLC of the willful
copyright infringement and the subsequent e-mail response from
Jeff Smaar, VP Global Copyright Administration, Sony/ATV
Music Publishing LLC dated February 23, 2015 acknowledging
receipt of Plaintiff’s letter dated February 12, 2015 which included
a notice of willful copyright infringement and the lead sheet and
lyrics of “Don’t Throw Our Love Away”. Moreover, presumed
access must be allowed especially considering the preceding events
months earlier to October 2014 when the same three co-writers
Samuel Smith, James Napier, and William Phillips of “Stay With
Me” and their publishers agreed in an out of court settlement with
the writers (Jeff Lynne and Tom Petty) of “I Won’t Back Down” to
a subconscious use and replication of the music, chord
progressions, and melody from “I Won’t Back Down” with only
the rhythm slowed down. Jeff Lynne and Tom Petty each were
given songwriting credit to “Stay With Me” and each given 12.5%
royalty rights. Then, only three months later, Plaintiff initiated
communication with Sony/ATV Music Publishing, LLC in
Nashville, TN alleging a willful copyright infringement for
phraseology used and replicated in “Stay With Me.”
Id. at 3.
As to copyright protection extending to phrases, Plaintiff responds, “the big question
becomes how does Tim Warnock argue that the Plaintiff does not have protection of the dual
phraseology ‘stay with me’ and ‘lay with me’ while the Defendants apparently have the copyright
protection and entitlement to receive significant financial compensation for the same dual
phraseology ‘stay with me’ and ‘lay with me’ earlier written by Plaintiff, and subsequently
successfully copyrighted?” Id. at 2-3. Plaintiff argues that the reference to the dual phraseology
“stay with me” and “lay with me” was made multiple times, and that it is this dual phraseology
that should receive protection. Id. at 5. Plaintiff contends, “It is this dual phraseology that is so
critical in this copyright infringement claim, because the use and replication of this dual
phraseology ‘stay with me’ and ‘lay with me’ also appears as a promotional commercial
appearing on the episode of the Voice on NBC showing an excerpt of the Sam Smith video “Stay
With Me” singing the dual phraseology ‘stay with me’ and ‘lay with me’ as a controversial
promotion from Lightworkers Media (Mark Burnett and his wife Roma Downey) for their then
upcoming lavish NBC mini-series production (which aired on NBC Easter Sunday 2015 and
continued for 12 weeks[)].” Id. at 6. Plaintiff asserts:
The standard for legal review is “substantially similar”. We are not
speaking “substantially similar”. The protectable elements from
“Don’t Throw Our Love Away” include the phraseology/
significant phrase ‘stay with me’ and ‘lay with me.’ What is
represented here is that the phraseology/significant phrase ‘stay
with me’ and ‘lay with me’ as it appears in “Don’t Throw Our
Love Away” is exact and identical in theme, sentimental mood,
and feeling, inflexion [sic] and tone as it appears in “Stay With
Me”. So much so, that Sam Smith could have inserted the first two
lines of Plaintiff’s “Don’t Throw Our Love Away” into the end of
“Stay With Me” and his hundreds of millions of fans would have
believed that it was part of “Stay With Me”. That speaks to the
fundamental element of this case. Defendants have appropriated
the fundamental essence and structure of Plaintiff’s work, that
being an emotional love song speaking to the essence of a
relationship between two people who have been intimate
(regardless of being between a man and woman or between two
men, or two women).
Plaintiff additionally contends that he is entitled to recovery under the doctrine of Fair
Use. Id. at 4, 7.
Defendants, in their Reply, maintain that “[n]one of Plaintiff’s many arguments resolves
Plaintiff’s failure to allege access sufficiently or to allege infringement of protectable elements in
his work, each of which is independently fatal to his claim of copyright infringement.” Docket
No. 29-1, p. 1. Defendants argue that Plaintiff’s allegations of access fail to identify the number
or names of any of the people to whom he purportedly gave his demo tape and fail to allege any
means by which his demo tape could have made its way decades later to either the writers of Sam
Smith’s Stay With Me or to Defendants themselves. Id. at 2. Defendants contend that Plaintiff
has failed to allege that he ever gave a copy of his work to a record producer, publisher, or
recording artist associated with the allegedly infringing work. Id. at 3. Defendants further
contend that Plaintiff points to no elements of the allegedly infringing work beyond the phrases
“stay with me” and “lay with me” that are present in his work. Id. Defendants reiterate their
contention that those phrases are not protectable, and they maintain that even if those short
phrased were protectable, the existence of two very short and commonplace phrases cannot
establish a striking similarity between two otherwise very different musical compositions. Id.,
citing Kohus v. Mariol, 328 F.3d 848, 853 (6th Cir. 2003). Defendants assert that Plaintiff has
also failed to address the fact that the phrases “stay with me” and “lay with me” exist in works
that pre-date his work. Id. at 4, referencing the Copyright Office report reflecting that at least
two works that include the phrases “stay with me” and “lay with me” were registered in 1980 and
1982, predating Plaintiff’s 1986 alleged date of creation. Defendants maintain that Plaintiff was
not the first person to use both phrases in the same song, so any alleged similarities would not be
of protectable elements and could not sustain a claim for copyright infringement. Id. at 5.
Addressing Plaintiff’s contention that the email from Jeff Smarr dated February 23, 2015
establishes access, Defendants note that February 23, 2015 is a date well after the alleged
infringement would have begun, and they argue that no one can copy a work unless he had
“access” to the work before he created the allegedly infringing work. Id. at 2, citing King
Records, Inc. v. Bennett, 438 F. Supp. 2d 812, 846 (M.D. Tenn. 2006). Defendants maintain that
Mr. Smarr’s email simply acknowledges receiving a February 12, 2015 letter from Plaintiff and
therefore does not establish that Defendants had a copy of Plaintiff’s work prior to receipt of that
February 12, 2015 letter. Id. at 3.
Addressing Plaintiff’s contention that the number of views on the Sam Smith YouTube
video of “Stay With Me” is evidence that can be used for evaluating this action, Defendants
argue that Plaintiff fails to explain how the view count of a video informs an analysis of either
access or protectability. Id. at 5. Turning to Plaintiff’s invocation of the doctrine of fair use,
Defendants note that the doctrine of fair use presents a possible defense to a claim of copyright
infringement. Id., citing 17 U.S.C. §107.
Plaintiff, in his Sur-Reply, responds that he “clearly provided and identified in the
original pleading the names of all the record producers, publishers, and recording artists that he
personally presented the demo cassette recording and lyrics to ‘Don’t Throw Our Love Away’”
and that, in addition to the February 12, 2015 letter Plaintiff sent to Mr. Smaar, which Mr. Smaar
acknowledged receiving, there was also email communication between Plaintiff and Martha
Braithwaite, Senior Vice President of Business Affairs, Universal Music on February 24, 2015,
which Ms. Braithwaite acknowledged receiving and to which she sent Plaintiff a response on
behalf of Capital Music Group dated March 11, 2015, as well as communication between
Plaintiff and Adam Clough, Managing Director of 365 artists and representing Stephen
Fitzmaurice, the record producer for Sam Smith’s “Stay With Me,” to which Mr. Clough
responded on March 17, 2015. Docket No. 44, p. 1-2.
Plaintiff further replies, “At issue here, is the subsequent promotional commercial
presenting Sam Smith singing only the dual phraseology ‘stay with me’ and ‘lay with me’ under
an exclusive licensing agreement with Mark Burnett and his wife Roma Downey of
Lightworker’s Media which appeared as a commercial during the NBC program The Voice on
March 30, 2015 to promote the then upcoming lavish NBC mini-series ‘A.D. - The Bible
Continues’ which was set to air Easter Sunday, April 5, 2015 and continue for twelve
consecutive Sunday evenings.” Id. at 2. Plaintiff argues that “[t]his is most relevant” because
the “significant success” of “Stay With Me” “has spawned the potential for a $100 million global
marketing enterprise supporting the song ‘Stay With Me’ and the dual phraseology ‘stay with
me’ and ‘lay with me.’” Id.
As to the protectability of the dual phrases ‘stay with me’ and ‘lay with me,’ Plaintiff
argues that they are “clearly not common words or a cliched language as argued,” such that they
are protectable. Id. at 3. Plaintiff maintains that the nearly 700,000 YouTube views “speaks to
the ubiquitous response of the music listeners around the world to the dual phraseology ‘stay
with me’ and ‘lay with me.’” Id. Plaintiff asserts that Defendants stand to earn over
$100,000,000 from the song while Plaintiff stands to earn $0 if he is not given co-songwriting
credit and royalties. Id. Plaintiff additionally maintains that the fact that “Producer Mark
Burnett and his wife, Roma Downey accomplished their desired objective - getting millions of
viewer’s attention and getting the ‘buzz’ going the following day,” “speaks to the ubiquitous
response to the song ‘Stay With Me’ and the tremendous financial and marketing potential
associated with the dual phraseology ‘stay with me’ and ‘lay with me.’” Id. at 4.
Plaintiff argues that he has proffered sufficient allegations to defeat Defendants’ Motion
to Dismiss, such that their Motion should be denied. Id. at 4-5.
For the reasons discussed below, the undersigned recommends that Defendants’ Motion
to Dismiss (Docket No. 25) be GRANTED, and that this action be DISMISSED.
II. Facts Alleged in Re-Filed Complaint
Plaintiff wrote “Don’t Throw Our Love Away” in April 1984. Docket No. 1, p. 2.
Plaintiff recorded the first demo of “Don’t Throw Our Love Away” in 1986, and recorded a
second demo of “Don’t Throw Our Love Away” in 2013; each demo featured a different
arrangement sung by different female singer. Id. at 2, 6. “In between, there was also a demo
sung by a male singer.” Id. at 6.
In 1986, Plaintiff “widely disseminated” his demo to Garth Fundis, Don Lanier, Brent
Maher, Paul Worley, Rich Alves, Tom Collins, Brian Rawlings, Lee Greenwood, Don Williams,
Reba McEntire, Crystal Gayle, “Sylvia,” Gary Morris, Barbara Mandrell, and Ronnie Milsap. Id.
at 6. In 1990, Plaintiff “disseminated” his demo to Dolly Parton. Id. Plaintiff also sent the demo
to Marvin Hamlisch “before he died.” Id.
In 2013, Plaintiff “widely disseminated” his new demo to Emilio Estefan and Gloria
Estefan “via referral from a mutual friend of Gladys Passes whose name was Julio.” Id.
Plaintiff’s song contains the phrases “stay with me” and “lay with me.” Id., passim. Sam
Smith’s “Stay With Me” uses the phrases “stay with me” and “lay with me” eight (8) times. Id.
at 7, 8.
Plaintiff’s song was never published. Id. at 7.
Plaintiff completed formal registration with the United States Copyright Office and
obtained a Certificate of Registration, Registration Number Pau003785645, from the Register of
Copyrights, with an effective date of registration of July 9, 2015, for his original song “Don’t
Throw Our Love Away.” Id. at 2.
In February 2015, Plaintiff sent a letter to Mr. Jeff Smaar, VP Global Copyright
Administration, Sony /ATV Songs, LLC, at the designated office for Sony/ATV Music
Publishing LLC, advising them of his copyright infringement claim. Id. at 8. On February 23,
2015, Mr. Smaar acknowledged receipt of Plaintiff’s letter. Id.
Plaintiff thereafter filed his copyright infringement claim in federal court. Id.
III. Law and Analysis
A. Motion to Dismiss - Fed. R. Civ. P. 12(b)(6)
Fed. R. Civ. P. 12(b)(6) provides that a claim may be dismissed for failure to state a claim
upon which relief can be granted. In order to state a claim upon which relief can be granted, a
complaint must contain either direct or inferential allegations respecting all material elements to
sustain a recovery under some viable legal theory. Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir.
2005). Conclusory allegations or legal conclusions masquerading as factual allegations will not
suffice. Id. A complaint containing a statement of facts that merely creates a suspicion of a
legally cognizable right of action is insufficient. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955,
1965 (2007). The “[f]actual allegations must be enough to raise a right to relief above the
speculative level”; they must “state a claim to relief that is plausible on its face.” Id. At 1965,
1974. See also, Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th
Moreover, the United States Supreme Court has recently addressed the appropriate
standard that must be applied in considering a Motion to Dismiss for failure to state a claim. See
Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Iqbal Court stated in part as follows:
Two working principles underlie our decision in Twombly. First,
the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of the cause of action,
supported by mere conclusory statements, do not suffice . . . . Rule
8 marks a notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock the
doors of discovery for plaintiff armed with nothing more than
conclusions. Second, only a complaint that states a plausible claim
for relief survives a motion to dismiss . . . . Determining whether a
complaint states a plausible claim for relief will, as the Court of
Appeals observed, be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense. . . . But where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged - but it has not “show[n]” - “that the pleader
is entitled to relief.”
556 U.S. at 678-79 (citations omitted).
B. Copyright Infringement
In order to establish copyright infringement, a plaintiff must prove two elements: (1) that
it owns valid copyrights in the infringing composition(s); and (2) that the defendant copied
original elements of the composition(s) without authorization. Feist Publications, Inc., v. Rural
Tel. Ser. Co., 499 U.S. 340, 361; King Records Inc. v. Bennett, 438 F. Supp. 2 812, 837 (M.D.
As noted, after proving ownership, a plaintiff must establish that the defendant copied
plaintiff’s copyrighted work. Kohus v. Mariol, 328 F.3d 848, 853 (6th Cir. 2003). In most cases,
there is no direct evidence of copying. Accordingly, courts must rely on inferences drawn from
(1) a defendant’s access to the allegedly infringed work; and (2) the substantial similarity
between defendant’s work and the allegedly infringed work. Murray Hill Publ'ns, Inc. v.
Twentieth Century Fox Film Corp., 361 F.3d 312, 316 (6th Cir. 2004). If a plaintiff is able to
establish the inference of copying, a defendant may rebut such an inference with proof of
independent creation of the allegedly infringing work. Ellis v. Diffie, 177 F.3d 503, 507 (6th Cir.
Access is proven when a plaintiff shows that the defendant saw or had a reasonable
opportunity to see plaintiff’s work, and therefore had the opportunity to copy. Id. at 506.
“Access may not be inferred through mere speculation or conjecture. There must be a reasonable
possibility of viewing the plaintiff’s work—not a bare possibility.” 4 Nimmer on Copyright,
§13.02[A], at 13–21; see also Ellis, 177 F.3d at 506. An assertion of access must be supported
by probative evidence. Murray Hill, 361 F.3d at 316. Where there is no direct evidence of
access, such as when the defendant denies having seen the allegedly infringed work,
circumstantial evidence may be used to demonstrate reasonable access. Two forms of
circumstantial evidence are accepted as evidence of reasonable access: (1) a particular chain of
events establishing defendant’s access to plaintiff's work, or (2) plaintiff’s work has been widely
disseminated. King Records, Inc. v. Bennett, 438 F. Supp. 2d 812, 846 (M.D. Tenn. 2006)
(internal citations omitted).
Where access cannot be proved through either direct or circumstantial evidence, the
plaintiff must show a striking similarity between the allegedly infringed work and defendant’s
work, rather than the lower substantially similar standard. Murray Hill, 361 F.3d at 317. If the
plaintiff is able to prove striking similarity, additional proof of access is not required. King
Records, Inc., 438 F. Supp. 2 at 846. This is because “striking similarity carries the burdens of
proof that the infringing work is sufficient[ly] similar as to intrude into the copyrighted work’s
protection and that the defendant must have had access to the copyrighted work, even if the
plaintiff can provide no extrinsic proof of that fact.” Id. (emphasis in original).
C. The Case At Bar
As discussed above, in order for Plaintiff to establish copyright infringement, Plaintiff
must first prove that he owns valid copyrights in the infringing composition. Feist Publications,
Inc., 499 U.S. at 361; King Records Inc., 438 F. Supp. 2 at 837. Plaintiff acknowledges that
although he wrote “Don’t Throw Our Love Away” in 1984, he did not copyright it until 2015,
after Sam Smith’s “Stay With Me” had been released. See Docket No. 1. Because Plaintiff did
not have a copyright on “Don’t Throw Our Love Away” when “Stay With Me” was released,
“Stay With Me” cannot be said to have infringed on Plaintiff’s copyright. For this reason alone
Defendants’ Motion should be granted.
Even if Plaintiff had copyrighted “Don’t Throw Our Love Away” in 1984, however, the
fact that Plaintiff gave his demo to Garth Fundis, Don Lanier, Brent Maher, Paul Worley, Rich
Alves, Tom Collins, Brian Rawlings, Lee Greenwood, Don Williams, Reba McEntire, Crystal
Gayle, “Sylvia,” Gary Morris, Barbara Mandrell, and Ronnie Milsap in 1986, Dolly Parton in
1990, Marvin Hamlisch “before he died,” and Emilio Estefan and Gloria Estefan “via referral
from a mutual friend of Gladys Passes whose name was Julio” in 2013, dissemination to these
few people does not establish that Plaintiff “widely disseminated” his work. Id. at 6. Moreover,
Plaintiff has not alleged facts connecting any of these people with Defendants, nor has Plaintiff
alleged facts establishing any chain of events whereby “Don’t Throw Our Love Away” would
have made its way throughout the years from the possession of these individuals to Defendants.
Plaintiff cannot establish that Defendants had access to his work, and Defendants’ Motion should
Furthermore, Plaintiff concedes that “Don’t Throw Our Love Away” was never
published. Id. at 7. It is also noteworthy that the 2015 communication that Plaintiff avers
establishes that Defendants had knowledge of, and access to, “Don’t Throw Our Love Away”
occurred after “Stay With Me” had been released and before Plaintiff had copyrighted “Don’t
Throw Our Love Away.” See Docket No. 1. Accordingly, these 2015 communications cannot
establish either knowledge or access, and Defendants’ Motion should be granted.
Finally, other than both songs containing the phrases “stay with me” and “lay with me,”
Plaintiff has failed to allege that “Don’t Throw Our Love Away” and “Stay With Me” are either
substantially similar or strikingly similar in composition or melody. Absent sufficient similarity,
Plaintiff cannot establish copyright infringement, and Defendants’ Motion should be granted.
For the reasons discussed above, the undersigned recommends that Defendants’ Motion
to Dismiss (Docket No. 25) be GRANTED, and that this action be DISMISSED.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
JEFFERY S. FRENSLEY
United States Magistrate Judge
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