Fogerty v. Mgm Group Holdings Corp., Inc.

• Decision Date: 03 August 2004
• Docket Number: No. 03-5874.,No. 03-5498.,03-5498.,03-5874.
• Parties: Frank P. FOGERTY and Nathan Crow, Plaintiffs-Appellants, v. MGM GROUP HOLDINGS CORP., INC., d/b/a MGM Universal Music Group, Inc., Universal Studios, Inc., and EON Productions, Ltd., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 348

379 F.3d 348

Frank P. FOGERTY and Nathan Crow, Plaintiffs-Appellants, v. MGM GROUP HOLDINGS CORP., INC., d/b/a MGM Universal Music Group, Inc., Universal Studios, Inc., and EON Productions, Ltd., Defendants-Appellees.

No. 03-5498.

No. 03-5874.

United States Court of Appeals, Sixth Circuit.

Argued: June 9, 2004.

Decided and Filed: August 3, 2004.

Appeal from the United States District Court for the Middle District of Tennessee, William J. Haynes, Jr., J W. Gary Blackburn (argued and briefed), Blackburn & McCune, Nashville, TN, Adam Siegler (argued and briefed), The Siegler Law Group, Beverly Hills, California, for Plaintiffs-Appellants.

Timothy L. Warnock (argued and briefed), Jay S. Bowen (briefed), Bowen, Riley, Warnock & Jacobson, Nashville, TN, for Defendants-Appellees.

Before MARTIN and SUTTON, Circuit Judges; HOLSCHUH, District Judge.^*

OPINION

SUTTON, Circuit Judge.

Plaintiffs Frank P. Fogerty and Nathan Crow appeal the district court's order granting summary judgment and awarding attorneys' fees to defendants (collectively, "MGM") in this copyright infringement case. As we agree with the district court that plaintiffs have not presented a sustainable theory of relief, we affirm that ruling. As we disagree with the district court's award of attorneys' fees, we reverse that ruling.

I.

Michael Wilson and Barbara Broccoli, the current producers of the James Bond films and principals of Eon Productions, Ltd., sought a composer to write the musical score for the nineteenth Bond film — "The World Is Not Enough." In September 1998, Wilson and Broccoli selected David Arnold, a London-based composer, a Grammy award winner for the musical score for "Independence Day," and the author of the end theme song for the Bond film "Tomorrow Never Dies." Arnold maintains a private recording studio in London, where he composed the theme song and gave it the same name as the film. In writing the song, Arnold collaborated with lyricist Don Black, who also lives in London and who has written the lyrics to the theme songs for four previous Bond films. Arnold and Black met several times in November and December of 1998 to discuss the lyrics for "The World Is Not Enough," and they exchanged phone calls, faxes and e-mails during that time in collaborating on the song.

Arnold also contacted Shirley Manson, the Scottish-born lead singer for the rock-group "Garbage," and asked her to record the song. She agreed.

Between late October and November of 1998, Arnold played the melody of "The World Is Not Enough" over the phone to his personal assistant Trish Hillis, before whom he often informally auditioned his songs. According to Arnold, he "strung some la-la's together, and all of a sudden the [song] came to life, and [he] thought [that was] probably it." JA 229. On December 26, 1998, Arnold again played "The World Is Not Enough" for Hillis, this time on a piano at his London home. When Arnold played the music for Hillis, he had completed the song and lyrics, save for the bridge — a brief transition of approximately eight bars in the middle of the song. In December 1998, Arnold also played the melody for Geoff Foster and Isabel Griffiths, employees of Air Studios, on a grand piano in the studio's main hall.

In early January 1999, Arnold completed the song and created a "demo" recording of it on his computer at his private recording studio. Arnold's computer shows January 6, 1999 as the last day he modified the demo recording.

At roughly this time, Arnold played "The World Is Not Enough" for Michael Wilson and Barbara Broccoli, the producers of the upcoming film. They liked the song. On January 8, 1999, Arnold traveled to Pinewood Studios in England and played the song for Michael Apted, the director of "The World Is Not Enough," who "was extremely pleased with [the song]." JA 233.

Arnold next asked Trish Hillis to deliver a copy of the demo to Shirley Manson, who (as noted) had agreed to record the song. On January 19, Hillis's phone log shows that she contacted Ian Wesley, the general manager of Mushroom Records, Garbage's record label. Wesley told Hillis that Manson was staying at the Royal Garden Hotel in London and to deliver the recording to the hotel at 10 a.m. the next day. On January 20, after Hillis arrived at the Royal Garden Hotel, she called Harold Kohl, Garbage's tour manager, who told her to leave the recording at the front desk. A bill from the Royal Garden Hotel indicates that Shirley Manson stayed there on January 20, 1999, and Manson later recalled receiving the song from Kohl in January 1999 while staying at the hotel.

Arnold next sent a recording of the song to his American agent, Vas Vangelos, who lives in Los Angeles. An invoice shows that Air Studios billed Eon Productions for a shipment to Vangelos on February 2, 1999. Michael Sandoval, then an executive vice president at MGM, requested a copy of "The World Is Not Enough" from Vangelos. Sandoval received "The World Is Not Enough" on February 4, 1999, and he played the song for other MGM executives. No one apparently liked the song initially because it was a ballad and because they had hoped for a theme song with a different tempo.

On the same day (February 4, 1999), Nathan Crow visited Michael Sandoval at MGM and delivered a recording of his song "This Game We Play," which he had co-written with Frank P. Fogerty. According to Crow, Sandoval liked the song, suggested that he might consider it for the 1999 film "The Thomas Crown Affair" and kept a copy of the recording. Arnold's "The World Is Not Enough," it turns out, shares an identical four-note sequence with Crow's "This Game We Play."

Before Manson recorded the commercial version of "The World Is Not Enough," MGM contacted Arnold in March of 1999 and suggested that a "three-note motif" in "The World Is Not Enough" was too similar to a motif in earlier Bond theme songs. Arnold agreed to remove the three-note sequence, which all agree is unrelated to the four-note sequence that "This Game We Play" and "The World Is Not Enough" have in common.

In June and August of 1999, Shirley Manson and her band recorded "The World Is Not Enough." Manson requested one lyrical change in the song because the line — "I know when to kiss and I know when to kill" — did not meet her tastes. JA 228. Arnold and Black changed the lyrics, and she completed the recording.

II.

Convinced that Arnold and MGM had copied the four-note sequence from "This Game We Play" in composing "The World Is Not Enough," Fogerty and Crow filed a copyright infringement action in the United States District Court for the Middle District of Tennessee. The parties conducted discovery, and MGM moved for summary judgment, claiming that the undisputed facts showed that Arnold independently created "The World Is Not Enough."

The district court granted MGM's motion, concluding that Arnold had independently written the tune to the song:

Defendants and composers of ["The World Is Not Enough"] did not have access to ["This Game We Play"] [through] any of the avenues postulated by Plaintiffs because a review of the record indicates that the melody and significant portions of ["The World Is Not Enough"] ... were completed prior to the dates that any alleged access by Defendants to ["This Game We Play"] could have occurred.

D. Ct. Op. at 17 (Mar. 14, 2003). The district court also rejected plaintiffs' alternative claim that the two songs are "strikingly similar," an independent theory of liability that warrants relief even when the plaintiff cannot prove access. Id. at 19-20. "There is no evidence adduced by Plaintiffs," the court concluded, "to support the proposition that the two works are so strikingly similar that copying is the only plausible explanation of the similarities." Id. at 20.

In the aftermath of this ruling, MGM moved for attorneys' fees under § 505 of the Copyright Act, 17 U.S.C. § 505, and for nontaxable costs under Federal Rule of Civil Procedure 54(d). Alleging that plaintiffs' claims were "objectively unreasonable," MGM sought $170,519 in attorneys' fees and $11,647.60 in non-taxable costs. The district court granted MGM's motion for attorneys' fees "in the interests of justice and in furtherance of the objectives of the Copyright Act." D. Ct. Op. at 8 (June 17, 2003). "Plaintiffs ['] claims were objectively unreasonable," the district court observed, "in that Plaintiffs pursued litigation despite multiple third-party declarations establishing independent creation of ["The World Is Not Enough"] before any of the Defendants had access to Plaintiffs' original work," and "Plaintiffs offered no direct evidence to support one of the two basic elements of copyright infringement." Id. at 8-9. The district court, however, "conclude[d] that a 30% reduction in the billed hours ... is appropriate ... in light of the overstaffing of this litigation, the redundant billing, and vague entries on the firm's invoices," id. at 15, and awarded MGM $85,507.16 in attorneys' fees, id. at 19. Holding that fees for "(1) legal research; (2) federal express charges; (3) messenger service; (4) phone/telecopy; (5) postage; (6) out of town travel; and (7) copies" were not allowable, the district court denied MGM's request for nontaxable costs of $11,647.60. Id. at 20. For routine taxable costs, the district court awarded $4,847.58. Id. at 23.

III.

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," the Supreme Court has held, "there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quotation...