Currin v. Arista Records Inc. .

• Decision Date: 15 April 2010
• Docket Number: Case No. 3:07-CV-1069 (RNC).
• Parties: Peter CURRIN, et al., Plaintiffs, v. ARISTA RECORDS, INC., et al., Defendants.
• Court: U.S. District Court — District of Connecticut

724 F.Supp.2d 286

Peter CURRIN, et al., Plaintiffs,

v.ARISTA RECORDS, INC., et al., Defendants.

Case No. 3:07-CV-1069 (RNC).

United States District Court,D. Connecticut.

April 15, 2010.

Peter Currin, Bloomfield, CT, pro se.

David Currin, Bloomfield, CT, pro se.

Joseph M. Gillis, Michael Menapace, Timothy Andrew Diemand, Wiggin & Dana, Hartford, CT, for Defendants.

RULING AND ORDER

ROBERT N. CHATIGNY, District Judge.

The Magistrate Judge's recommended ruling of February 25, 2010 (Doc. 187), recommends that the defendants' motion for summary judgment be granted on the plaintiffs' claims of copyright infringement on the ground that no reasonable trier could find that the two songs at issue are substantially similar. Plaintiffs, proceeding pro se, have filed written objections to the recommended ruling (Doc. 196). In their memorandum, they argue that summary judgment should not be granted because there are “eleven disputes of material fact.” Of these eleven “disputes,” only “disputes” five through eleven relate to the recommended ruling. ¹ None of the arguments advanced in connection with these “disputes” (i.e. “disputes” five through eleven) provides a basis for denying the defendants' motion for summary judgment. Accordingly, the recommended ruling is approved and adopted.

Plaintiffs contend that in ruling on the motion for summary judgment, the Court should consider the report of their expert witness, Mr. Mask. See Disputes 5, 10. The Magistrate Judge's recommended ruling sustains the defendants' objection to this report on the grounds that the report does not disclose Mr. Mask's qualifications, see Fed.R.Civ.P. 26(a)(2)(B)(iv), and plaintiffs have otherwise failed to show that he is qualified to provide expert testimony. See F.R.E. 702. Plaintiffs contend that the report should be considered on the merits because the failure to disclose Mr. Mask's qualifications as an expert is attributable to their former counsel. As the recommended ruling makes clear, however, even if defendants' objection to Mr. Mask's report was overruled, and his report was considered on the merits, summary judgment still would be proper. See Recommended Ruling at 290-91, 291-92.

Plaintiffs next contend that they have a right to a trial at which they can show that Pharrell Williams lacks credibility. See Dispute 6. The recommended ruling does not rely on Mr. Williams' testimony, however. Rather, it assumes for the purpose of ruling on the motion for summary judgment that Mr. Williams had access to the plaintiffs' song and an opportunity to copy it. See Recommended Ruling at 289. Accordingly, Mr. Williams' alleged lack of credibility is immaterial.

Plaintiffs contend that a trial also is necessary to enable them to prove that their song was produced in 1991 and thus predates the allegedly infringing work. See Dispute 7. It is undisputed, however, that plaintiffs' song predates Williams' recording. ²

Plaintiffs next contend that their work is protected by copyright. See Dispute 8. For purposes of summary judgment, the defendants have not disputed plaintiffs' copyright ownership, as the Magistrate Judge correctly recognized. See Recommended Ruling at 289.

Plaintiffs contend that the two songs at issue share common errors and are therefore substantially similar. See Dispute 9. Plaintiffs did not raise this argument before the Magistrate Judge and, accordingly, it does not provide a proper basis for objecting to the recommended ruling. Even now, moreover, they do not identify any common errors.

Plaintiffs next contend that summary judgment is inappropriate because (a) their former counsel omitted to bring to the attention of the Magistrate Judge several material facts and (b) it is necessary to evaluate the credibility of the witnesses. See Dispute 10. Plaintiffs do not identify any material facts, however, and the credibility of the witnesses has no bearing on the issue of substantial similarity.

Finally, plaintiffs contend that their depositions disclose the existence of disputed issues of material fact requiring a trial. See Dispute 11. Here again, however, no such issues are identified.

Accordingly, the Magistrate Judge's recommended ruling is hereby approved and adopted. Judgment will enter in favor of the defendants. The Clerk may close the file.

RECOMMENDED RULING ON MOTION FOR SUMMARY JUDGMENT

DONNA F. MARTINEZ, United States Magistrate Judge.

This is a copyright infringement action brought by plaintiffs Peter Currin and David Currin. ¹ They allege that the defendants, Arista Records Inc. and Sony BMG Music Entertainment, distributed a song that infringes the plaintiffs' copyright. ² Pending before the court is the defendants' Motion for Summary Judgment, doc. # 171. The motion should be GRANTED.

I. Factual Background

The plaintiffs allege that they own the copyright in a song titled I'm Frontin', which they authored in or about 1993. They allege that a hit song issued by Pharrell Williams and The Neptunes, entitled Frontin' ³ , infringes their copyright. ⁴ The complaint alleges that the defendants were involved in distribution of Williams' song.

For purposes of this motion, the defendants do not dispute the plaintiffs' copyright ownership and ask the court to assume for the sake of argument that Williams and/or others had access to the plaintiffs' song and an opportunity to copy it. They move for summary judgment on the grounds that, even assuming that there was such access, no reasonable trier of fact could find the two songs to be substantially similar. Therefore, they argue, there was no infringement by Williams and, it follows, no contributory or vicarious infringement by the defendants.

II. Standard of Review

A party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, show that there is no genuine issue as to any material fact and that the party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the burden of showing the absence of any genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “A party opposing a ... motion for summary judgment bears the burden of going beyond the pleadings, and ‘designating specific facts showing that there is a genuine issue for trial.’ ” Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir.2002) (quoting Celotex, 477 U.S. at 324, 106 S.Ct. 2548). The court must view the evidence in the record in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000).

III. Copyright Principles

“In a copyright infringement case, the plaintiff must show: (i) ownership of a valid copyright; and (ii) unauthorized copying of the copyrighted work.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003). The first element, plaintiffs' ownership of a valid copyright, is undisputed for purposes of this motion.

To satisfy the second element, unauthorized copying, “a plaintiff must show both that his work was ‘actually copied’ and that the portion copied amounts to an ‘improper or unlawful appropriation.’ ” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003) (internal citation omitted). “Actual copying may be established either by direct evidence or circumstantial proof that the alleged infringer had access to the protected work and that the allegedly infringing work bears a ‘probative similarity’ to the copyrighted work.” Jean v. Bug Music, Inc., No. 00CIV4022(DC), 2002 WL 287786, *4 (S.D.N.Y. Feb. 27, 2002), citing Ringgold v. Black Entm't Television, Inc., 126 F.3d 70, 75 (2d Cir.1997).

“Once copying has been established, a plaintiff must next demonstrate that the copying was unlawful by showing that there is a substantial similarity between the protectible elements in the two works.” Hogan v. DC Comics, 48 F.Supp.2d 298, 307 (S.D.N.Y.1999) (internal citations omitted). “The copied elements of the work must be original and nontrivial to constitute improper appropriation.” Jean, 2002 WL 287786 at *5, citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991).

The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author.

Feist, 499 U.S. at 348, 111 S.Ct. 1282. “Careful scrutiny is necessary when the protected work contains unprotectible elements.” Jean, 2002 WL 287786 at *4, citing Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir.1995). “[A] court must attempt to extract the unprotectible elements from [its] consideration and ask whether the protectible elements, standing alone, are substantially similar.” Id., quoting Knitwaves, 71 F.3d at 1002 (emphasis in original). The copyright owner must demonstrate “that substantial similarities as to the protected elements of the work would cause an average lay observer to recognize the alleged copy as having been appropriated from the copyrighted work.” Jean, 2002 WL 287786 at *4. A court must “examine the total concept and feel of the work.” Hogan v. DC Comics, 48 F.Supp.2d 298, 309 (S.D.N.Y.1999).

Because the test is intended to gauge the reaction of an “average lay observer,” the testimony of expert witnesses plays, at most, a minor role in determining substantial similarity. “Expert testimony of musicians may also be received, but it will in no way be controlling on the issue of illicit copying, and should be utilized only to assist in determining the reactions of lay auditors.” Arnstein v. Porter, 154 F.2d 464, 473 (2d Cir.1946). See also Walker v. Time Life Films, Inc., 784 F.2d 44, 51 (2d Cir.1986); Shine v. Childs, 382 F.Supp.2d 602, 614 (...