Armour v. Knowles

• Decision Date: 21 December 2007
• Docket Number: No. 06-20934.,06-20934.
• Citation: 512 F.3d 147
• Parties: Jennifer ARMOUR, Plaintiff-Appellant, v. Beyoncé G. KNOWLES; Beyonce Publishing; Sean Paul Henriques; Scott S. Storch; Robert Waller; EMI Music Publishing, Ltd.; TVT Music, Inc.; Sony Music Entertainment, Inc.; Columbia Records, Inc.; Atlantic Recording Corporation; Shawn Carter, Presently Known as Jay-Z; EMI April Music, Inc.; V.P. Music Group, Inc.; Black Owned Musik; Notting Dale Songs, Inc.; Music Of Windswept, Inc.; Hitco Music Publishing, LLC, Doing Business as Hitco South; Carter Boys Publishing; Irving Music, Inc.; Dutty Rock Music; Hottis We Do Hits Music; Scott Storch Music, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

512 F.3d 147

Jennifer ARMOUR, Plaintiff-Appellant, v. Beyoncé G. KNOWLES; Beyonce Publishing; Sean Paul Henriques; Scott S. Storch; Robert Waller; EMI Music Publishing, Ltd.; TVT Music, Inc.; Sony Music Entertainment, Inc.; Columbia Records, Inc.; Atlantic Recording Corporation; Shawn Carter, Presently Known as Jay-Z; EMI April Music, Inc.; V.P. Music Group, Inc.; Black Owned Musik; Notting Dale Songs, Inc.; Music Of Windswept, Inc.; Hitco Music Publishing, LLC, Doing Business as Hitco South; Carter Boys Publishing; Irving Music, Inc.; Dutty Rock Music; Hottis We Do Hits Music; Scott Storch Music, Defendants-Appellees.

No. 06-20934.

United States Court of Appeals, Fifth Circuit.

December 21, 2007.

Dana G. Kirk (argued), Kirk Law Firm, Houston, TX, for Armour.

Henry James Fasthoff, IV, Stumpf, Craddock, Massey & Farrimond, Houston, TX, Cynthia Sharon Arato (argued), Gibson, Dunn & Crutcher, New York City, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, SMITH and OWEN, Circuit Judges.

PER CURIAM:

I.

Jennifer Armour, an aspiring singer and songwriter, composed a demo tape that she hoped would help advance her career. Produced in early January 2003, the material on the tape included an instrumental version of her song, "Got a Little Bit of Love for You" (hereinafter "Little Bit of Love"). On February 12, 2003, Armour registered a copyright of an a cappella version of "Little Bit of Love." On May 1, 2006, she registered a copyright of an instrumental version of the same song.

Sometime between January and March 2003, Armour's manager, Marc McKinney, sent copies of the tape to a number of people thought to be associated with Beyoncé Knowles, a successful, popular rhythm-and-blues artist. After sending the tapes, McKinney heard nothing in response, nor were any of the tapes returned.

Meanwhile, in February 2003, Beyoncé entered a recording studio and began work on a new album with collaborators Robert Waller and Scott Storch. The album included a song entitled "Baby Boy." After finishing in the studio, Beyoncé decided to add a guest artist, Sean Paul, who contributed a section to the song. Beyoncé commercially released "Baby Boy" on June 24, 2003, and it soon became a hit.

Armour claims to have heard Beyoncé perform "Baby Boy" at a concert and to have been struck by the similarities between that song and her own. On July 11, 2005, Armour filed a suit for copyright infringement against Beyoncé, Robert Waller, Scott Storch, Sean Paul, their respective record labels, and various other parties alleged to have been involved in the creation and distribution of "Baby Boy" (all defendants hereinafter collectively referred to as "Beyoncé"). Armour claims she had a valid copyright to "Little Bit of Love," that Beyoncé copied parts of "Little Bit of Love" in creating "Baby Boy," and that the two songs sound substantially similar to establish a claim of infringement. Armour principally claims Beyoncé copied portions of the melody of the two-bar "hook"—pop parlance for "chorus"—that formed the musical heart of "Little Bit of Love."¹

Beyoncé successfully moved for summary judgment, contending that Armour had not established any genuine issues of material fact. Although the district court found summary judgment inappropriate as to some elements of Armour's copyright infringement claim, it concluded that no reasonable jury could find the two songs substantially similar. The court also awarded Beyoncé costs. We affirm the judgment, dismiss the appeal of an order awarding costs, and deny a motion to strike record excerpts.

II.

We review a summary judgment de novo, applying the same standards as did the district court. Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir.2003). To prove copyright infringement, a plaintiff must establish (1) ownership of a valid copyright; (2) factual copying; and (3) substantial similarity.²

The second prong, factual copying, can be proved by direct or circumstantial evidence. To make out a circumstantial claim, a plaintiff must prove that (1) the defendant had access to the copyrighted work before creation of the infringing work and (2) the works contain similarities that are probative of copying.³ In other words, for the circumstantial case of factual copying, the combined existence of access to the copyrighted work and similarities between the two works establishes the assumption as a matter of law that copying in fact occurred. Once a plaintiff circumstantially establishes factual copying, the defendant may rebut the circumstantial evidence if he can prove that he independently created the work. Positive Black Talk, 394 F.3d at 367-68.

Finally, once a valid copyright and factual copying have been established, the plaintiff must establish the third prong of substantial similarity. Here, the plaintiff must show that the copyrighted expressions in the two works are sufficiently alike that the copyright to the original work has been infringed. Id.

Armour sought to establish the second prong circumstantially by proving access and probative similarity. Beyoncé disputed access and probative similarity and sought to rebut factual copying by claiming independent creation. The district court refused to grant summary judgment on access, probative similarity, or independent creation but granted summary judgment on the third prong of substantial similarity.

On appeal, Armour requests that we reverse the finding of no substantial similarity. Beyoncé asks us to affirm the substantial similarity finding or, alternatively, to affirm on the ground of access, probative similarity, or independent creation. We conclude that Armour cannot prove Beyoncé had access to Armour's demo tape before composing the allegedly infringing elements of her own song, so we affirm the summary judgment on that ground⁴ and do not reach the question of probative or substantial similarity.

III.

To establish access, a plaintiff must prove that "the person who created the allegedly infringing work had a reasonable opportunity to view the copyrighted work" before creating the infringing work.⁵ Indeed, "[a] bare possibility will not suffice; neither will a finding of access based on speculation or conjecture."⁶ "Reasoning that amounts to nothing more than a `tortuous chain of hypothetical transmittals' is insufficient to infer access."<sup>7</sup> "[O]nce the moving party has properly supported his summary judgment motion, the nonmoving party must rebut with `significant probative' evidence."⁸ Such evidence must be sufficient on its own to "support a jury verdict in the nonmoving party's favor."⁹ Taking the access and summary judgment standards together, a plaintiff can survive summary judgment only if his evidence is significantly probative of a reasonable opportunity for access.

A.

Beyoncé's creation of "Baby Boy" was a gradual process, involving various iterations and refinements over time. Although Beyoncé did not put the final touches on her song until March 13, 2003, the parties agree that she composed the key allegedly infringing portion of "Baby Boy"—the melody of the two-bar "hook"— by February 13, 2003.¹⁰

Armour suggests four paths by which Beyoncé allegedly had access to Armour's demo before composing the relevant portion of "Baby Boy" on February 13. Armour maintains that her manager, Marc McKinney, mailed or passed the demo tape at the end of January¹¹ to four of Beyoncé's associates: Matthew Knowles, Beyoncé's father and manager; Jim Vellutato, an executive at Beyoncé's record publisher, Sony Music; Andrew Feigenbaum, an executive at Atlantic Records, the label of Beyoncé's collaborator Sean Paul; and a mysterious man known as "T-Bone," who Armour contends was a "friend" of Beyoncé's.

Although the question of when Beyoncé had access to Armour's demo tape through each of the four paths claimed by Armour remains a heavily disputed fact issue, that dispute is almost entirely eclipsed by binding judicial admissions made by Armour in her response to Beyoncé's request for admissions. In her admissions, Armour stated that the demo tapes were sent or given to Beyoncé Knowles, Matthew Knowles, Jim Vellutato, and Andrew Feigenbaum in "either late February or early March 2003."¹² (R. 509-10.). Accordingly, that date constitutes a binding judicial admission that this court must deem conclusively established under Federal Rule of Civil Procedure 36(b).¹³

The binding date of "late February or early March" makes access impossible along the paths involving Matthew Knowles, Jim Vellutato, or Andrew Feigenbaum. Because Beyoncé created the allegedly infringing portion of "Baby Boy" by February 13, Armour could not establish that Beyoncé had access before February 13 to a demo tape that was not sent to her or her associates until "late February or early March."¹⁴

B.

The only path not blocked by Armour's admissions involves the elusive T-Bone, who was not mentioned in the admissions.¹⁵ Armour could rely on McKinney's testimony to support her theory that a tape was mailed to T-Bone at the "end of January" and that it subsequently fell into Beyoncé's hands before she created the allegedly infringing portions of "Baby Boy" by February 13. The T-Bone hypothesis, however, remains the weakest of Armour's theories, because the nature of T-Bone's relationship with Beyoncé has not been well established in the summary judgment record. Armour has not presented enough evidence to establish a genuine issue of material fact on that surmise alone.

Specifically, Armour has offered no direct evidence to explain the nature of T-Bone's relationship to Beyoncé or the frequency with which the mysterious and unidentified "T-Bone" and Beyoncé were in contact. Instead, Armour relies solely on the affidavit of McKinney, Armour's manager. In his affidavit, McKinney states his personal belief that T-Bone and Beyoncé were good friends, but he provides no information...