Bridgeport Music, Inc. v. Wm Music Corp.

• Decision Date: 21 November 2007
• Docket Number: No. 06-5546.,06-5546.
• Citation: 508 F.3d 394
• Parties: BRIDGEPORT MUSIC, INC., Plaintiff-Appellant, Westbound Records, Inc., et al., Plaintiffs, v. WB MUSIC CORP., et al., Defendants, Universal-MCA Music Publishing, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

508 F.3d 394

BRIDGEPORT MUSIC, INC., Plaintiff-Appellant Westbound Records, Inc., et al., Plaintiffs, v. WB MUSIC CORP., et al., Defendants Universal-MCA Music Publishing, Inc., Defendant-Appellee.

No. 06-5546.

United States Court of Appeals, Sixth Circuit.

Argued: October 22, 2007.

Decided and Filed: November 21, 2007.

ARGUED: Richard S. Busch, King & Ballow, Nashville, Tennessee, for Appellant. Russell J. Frackman, Mitchell, Silberberg & Knupp, Los Angeles, California, for Appellee. ON BRIEF: Richard S. Busch, King & Ballow, Nashville, Tennessee, for Appellant. Russell J. Frackman, Marc E. Mayer, Mitchell, Silberberg & Knupp, Los Angeles, California, Philip M. Kirkpatrick, Stewart, Estes & Donnell, Nashville, Tennessee, for Appellee.

Before MARTIN, GIBBONS, and SUTTON, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Plaintiff-appellant Bridgeport Music, Inc. ("Bridgeport") appeals the district court's grant of summary judgment in favor of defendant-appellee Universal-MCA Music Publishing ("Universal") in this copyright infringement case alleging that Universal interpolated the lyrics to the recording Pumpin' It Up in the recording Change Gone Come. For the reasons set forth below, we affirm the district court's grant of summary judgment in favor of Universal.

I.

Pumpin' It Up was composed by the P-Funk All Stars: Gary Shider, Linda Shider, Barbarella Bishop, and Gary Ford. The album "Urban Dancefloor Guerillas" was released in 1983 and contained the recording Pumpin' It Up. In 1995, the album was re-released on compact disc with the title "Hydraulic Funk." Bridgeport owns a one hundred percent ownership interest in Pumpin' It Up.

Calvin Broadus ("Snoop Dogg"), Priest Joseph Brooks, and Lenton ("L.T.") Hutton composed Change Gone Come. Universal and Hutton, doing business as T-Funk Music Universal ("TFunk"),¹ entered into an "Exclusive Songwriter & Co-Publishing Agreement" on January 31, 2000.² Through this exclusive publishing agreement, Universal acquired a twenty-five percent interest in the copyright in certain songs, such as Change Gone Come, or fifty percent of T-Funk's fifty percent share in the recording. The agreement provided that Songs of Universal obtained "without limitation, universe-wide exclusive administration rights" over Hutton's works, including the right to license the use of included compositions. The other writers own the remainder of the copyright in Change Gone Come.

In May 1999, Soul Town released the album "Well Connected" that contained a recording of Change Gone Come. In October 2000, D-3 Albums released the album "Dead Man Walkin" that contained a recording of Change Gone Come.

Universal never manufactured, distributed, or sold either the albums "Well Connected" and "Dead Man Walkin" or any recording containing Change Gone Come. Universal issued no licenses in connection with Change Gone Come. Specifically, it issued no licenses authorizing the use of Change Gone Come in connection with either the album "Well Connected" or the album "Dead Man Walkin." Universal does not control the public performance of Change Gone Come and has never performed it.

Universal received royalties in connection with Change Gone Come. It received $.86 from Touchtunes Music Corporation in mechanical royalties, approximately $600 in foreign royalties, and $ .38 from BMI in performance royalties. Bridgeport, however, has not received any royalties or income from the alleged interpolation of Pumpin' It Up in Change Gone Come. Moreover, no license exists for the use of Pumpin' It Up in Change Gone Come.

On November 28, 2000, Bridgeport discovered the alleged infringement. In May 2001, Bridgeport filed this lawsuit. On September 28, 2001, Bridgeport filed a first amended complaint in which it alleged claims for copyright infringement, a declaratory judgment, a permanent injunction, and an accounting. The first amended complaint alleges:

Rap artists Calvin Broadus a/k/a Snoop Dogg and Michael Hutchence performed the Infringing Composition and Sound Recording "Change Gone Come" on the "Dead Man Walkin" and "Well Connected" records. "Change Gone Come" contains sampled and/or interpolated portions of the Bridgeport and/or Southfield-owned musical composition and the Westbound and/or Nine-owned sound recording "Pumpin' It Up," which were included without license or agreement from the applicable Plaintiffs, the inclusion of which greatly enhanced the musical and financial value of "Change Gone Come."

Bridgeport contends that Universal interpolated the vocals "I feel like Pumpin' It Up, Feel Like Pumpin' It Up" with the vocals "I Feel Like Givin' It Up, Real Like Livin' It Up."

On November 14, 2005, Universal filed a motion for summary judgment. On February 24, 2006, United States Magistrate Judge Joe Brown issued a report and recommendation in which he recommended that United States District Judge Todd Campbell grant Universal's motion for summary judgment. Judge Brown determined that there was no genuine issue of material fact regarding whether Universal issued a license in the infringing works. He concluded that Universal met its initial burden and Bridgeport failed to introduce evidence to meet its resulting burden that Universal had infringed Bridgeport's copyright. He added that the receipt of royalties alone was insufficient to create contributory copyright infringement. On April 6, 2006, Judge Campbell adopted the magistrate judge's report and recommendation while overruling Bridgeport's objections to it. Judge Campbell entered final judgment on May 22, 2006, following the voluntary dismissal of another defendant, T-Funk.

II.

A.

We review a district court's decision to grant summary judgment de novo. Pagan v. Fruchey, 492 F.3d 766, 770 (6th Cir. 2007) (citation omitted). Summary judgment may be granted only if there are no genuine issues of material fact and one party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact, and all inferences should be made in favor of the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To support its motion, the moving party may show "that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548.

Once the moving party satisfies its initial burden, the burden shifts to the nonmoving party to set forth specific facts showing a triable issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient [to defeat a motion for summary judgment]; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In reviewing a district court's decision to grant summary judgment, we view all the facts and the inferences drawn therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348.

B.

Direct copyright infringement occurs when anyone "violates any of the exclusive rights of the copyright owner." 17 U.S.C. § 501(a). These include the rights to reproduce the copyrighted work and to create a derivative work based on it. 17 U.S.C. § 106(1), (2). Copyright infringement has two elements: "(1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original." Stromback v. New Line Cinema, 384 F.3d 283, 293 (6th Cir.2004) (citation and quotation marks omitted). "Contributory infringement occurs when one, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another." Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376 F.3d 615, 621 (6th Cir.2004) (citation and internal quotation marks omitted). "A defendant can be held vicariously liable if he enjoys a direct financial benefit from the infringing activity and has the right and ability to supervise the infringing activity." Id. (internal quotation marks and citation omitted).

i.

Bridgeport contends Universal granted an oral, written, or implied license in Change Gone Come as the recording appeared on the albums "Well Connected" and "Dead Man Walkin." Universal introduced an affidavit that it issued no licenses in connection with Change Gone Come. Specifically, according to the affidavit, it issued no licenses authorizing the use of Change Gone Come in connection with either the album "Well Connected" or the album "Dead Man Walkin." The affidavit adds that Universal does not control the public performance of Change Gone Come and has never performed it. With the affidavit, Universal satisfied its initial burden and the burden shifted to Bridgeport to introduce evidence that Universal granted a license in Change Gone Come. Bridgeport failed to meet its resulting burden as it failed to introduce any evidence of a license.

Bridgeport argues that a reasonable trier of fact could infer that an oral or implied license had been granted based on certain circumstantial evidence. This evidence includes the facts that Bridgeport held a copyright in Pumpin' It Up, that Universal held a copyright in Change Gone Come, and that Change Gone Come contains an unauthorized interpolation of Pumpin' It Up.³ It also includes Universal's receipt of royalty payments for Change Gone Come in contexts not related to the albums "Well Connected" and "Dead Man Walkin."

Under the binding Sixth Circuit precedent of Rhyme Syndicate, the circumstantial evidence relied upon by Bridgeport cannot create a genuine issue of material fact as to whether Universal granted a license in Change Gone Come as the recording appeared on the albums "Well Connected" and "Dead Man Walkin." As here, the...