Johnson v. Gordon

• Decision Date: 31 May 2005
• Docket Number: No. 04-2475.,04-2475.
• Citation: 409 F.3d 12
• Parties: Calvin R. JOHNSON, Plaintiff, Appellant, v. Allen GORDON, Jr., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

409 F.3d 12

Calvin R. JOHNSON, Plaintiff, Appellant, v. Allen GORDON, Jr., et al., Defendants, Appellees.

No. 04-2475.

United States Court of Appeals, First Circuit.

Heard April 5, 2005.

Decided May 31, 2005.

COPYRIGHT MATERIAL OMITTED

Burton A. Nadler, with whom Petrucelly & Nadler, P.C. was on brief, for appellant.

Cynthia S. Arato, with whom Manatt, Phelps & Phillips, LLP was on brief, for appellees.

Before SELYA, LYNCH and LIPEZ, Circuit Judges.

SELYA, Circuit Judge.

Music is an international language that has the capacity to bring together people from every corner of the world. It is also an economic engine, capable of yielding financial gain to those who own and control it. This appeal, which involves a controversy over the authorship of a hit song, exposes us to that coarser side of the music industry.

An allegation of plagiarism lies at the heart of this matter: plaintiff-appellant Calvin R. Johnson claims that a bevy of defendants unlawfully copied parts of his musical composition "You're the One (For Me)" in order to produce a song entitled "You're the One." After the defendants' song was recorded by the popular singing trio Sisters With Voices (SWV), it shot to the top of the charts.

The plaintiff subsequently commenced a copyright infringement action. The district court rejected the plaintiff's core contention of substantial similarity and granted summary judgment for the defendants. The plaintiff appeals. Discerning nothing off-key in the lower court's decision, we affirm.

I. Background

We rehearse the background facts in the light most generous to the party opposing summary judgment (here, the plaintiff) and resolve all reasonable inferences in that party's favor. Int'l Ass'n of Machinists v. Winship Green Nursing Ctr., 103 F.3d 196, 200 (1st Cir.1996).

On March 11, 1999, the plaintiff filed a complaint in federal district court against eighteen defendants, alleging in substance that they had infringed the copyright of his musical composition, "You're the One (For Me)," in violation of 17 U.S.C. § 501, and relatedly, that they had failed to credit him as an author of a song released commercially by SWV entitled "You're the One," in violation of the Lanham Act, 15 U.S.C. § 1125(a).¹ For purposes of this appeal, we take as true certain of the facts alleged in the complaint (the parties having stipulated that those allegations, though disputed in part by the defendants, may be credited for the limited purpose of deciding the summary judgment motion). These include the facts as to the origin of the copyrighted work, i.e., that the plaintiff created the musical composition "You're the One (For Me)" for a band called Special Edition sometime between 1990 and 1992. They also include the averment that, in 1994, the plaintiff met with Kenny Ortiz, a vice-president of RCA Records (a division of BMG Music) to discuss the possibility of signing Special Edition to a record deal. At that meeting, the plaintiff gave Ortiz a videotape and audio demo tapes of Special Edition performing "You're the One (For Me)."

Special Edition apparently was not the one for RCA and the company never offered the group a recording contract. The complaint further alleges, however, that unbeknownst to the plaintiff, Ortiz gave the tapes of the plaintiff's song to SWV (a vocal group under contract to RCA) and that SWV then reworked it with the assistance of other defendants to create "You're the One."

It is not disputed that, in March of 1996, BMG released SWV's recording of "You're the One" as a single. The song enjoyed considerable commercial success, rocketing to the top of the Billboard R & B singles chart. The next month, the song was released as part of SWV's album "New Beginning," which became a gold record.

Dismayed by these developments, the plaintiff filed a copyright application for "You're the One (For Me)" and deposited a copy of the sheet music for the song with the United States Copyright Office. The Copyright Office issued a copyright registration for the musical composition to the plaintiff, effective July 19, 1996. The plaintiff then informed BMG of his belief that SWV's "You're the One" infringed his copyright in "You're the One (For Me)," and demanded royalties. BMG turned a deaf ear to these overtures.

II. Travel of the Case

After holding an initial scheduling conference, the district judge limited first-stage discovery to the issue of liability. On February 15, 2001, the parties designated musicological experts who were expected to testify regarding liability. They then exchanged expert reports. See Fed. R.Civ.P. 26(a)(2).

In March of 2002, the district judge referred the case to a magistrate judge. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Over the course of the next year, the designated experts (Kenrick John for the plaintiff and Dr. Lawrence Ferrara for the defendants) were deposed. On May 19, 2003, the parties, in the interest of narrowing the issues, submitted a stipulation of undisputed facts. They also submitted as exhibits the plaintiff's certificate of copyright, along with certain sheet music and recordings. In the latter category, the plaintiff proffered the sheet music for and a recording of the copyrighted composition "You're the One (For Me)"—sometimes referred to as the "short version"—as well as the sheet music for and a recording of an unregistered variation of it (the "long version"). The defendants tendered copies of SWV's released version of "You're the One," published sheet music for that song, and a studio recording of it.

On July 3, 2003, the defendants moved for summary judgment on both counts of the complaint. See Fed.R.Civ.P. 56(b). The plaintiff objected. On March 15, 2004, the magistrate judge recommended the entry of summary judgment. Johnson v. Gordon, No. 99-10534, slip op. at 30 (D.Mass. Mar. 15, 2004) (unpublished).

In his report, the magistrate judge first determined that the uncopyrighted long version of the plaintiff's composition warranted copyright protection only to the extent that it incorporated elements derived from the copyrighted short version. Id. at 8-10. As a practical matter, this meant that the judge only needed to probe for similarities between the short version and the defendants' song. Id. at 10.

Having identified the works to be compared, the magistrate judge noted that the plaintiff's expert had outlined only three relevant points of ostensible similarity between the plaintiff's copyrighted short version and "You're the One." See id. at 16-17. Drilling down into the record, the magistrate judge rejected all three proposed comparisons, concluding that these elements were either dissimilar or too common to be treated as protectable expression. See id. at 20-21, 24-26. Thus, the copyright infringement claim failed.

With regard to the Lanham Act claim, the magistrate judge concluded that 15 U.S.C. § 1125(a) does not safeguard authors from false designation of the origin of their creative expressions. Id. at 28-30 (citing Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 37-38, 123 S.Ct. 2041, 156 L.Ed.2d 18 (2003)). Consequently, the plaintiff could not prevail on the Lanham Act count. Id. at 30.

The plaintiff filed objections to the portion of the magistrate judge's report that recommended brevis disposition of the copyright infringement claim. See Fed. R.Civ.P. 72(b). On de novo review, the district judge adopted the findings and conclusions contained in the report and entered summary judgment for the defendants.² This timely appeal brought the matter to us.

III. Analysis

The plaintiff contests only the district court's entry of summary judgment on the copyright infringement claim (the Lanham Act claim is out of the case and we will not comment further on it). In addressing his contentions, we limn the standard of review; describe a legal framework for adjudicating copyright infringement cases; consider whether identified similarities from the plaintiff's (uncopyrighted) long version of the song are entitled to protection; apply the law to the relevant undisputed facts in order to determine whether the plaintiff can clear the summary judgment hurdle; and, finally, sift through a melange of miscellaneous arguments.

A. Standard of Review

We afford de novo review to the district court's grant of summary judgment. Int'l Ass'n of Machinists, 103 F.3d at 200. The office of summary judgment is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990) (quoting Fed.R.Civ.P. 56 advisory committee's note). In carrying out this function, we must review the entire record "in the light most hospitable to the party opposing summary judgment (here, the plaintiff), indulging all reasonable inferences in that party's favor." Euromodas, Inc. v. Zanella, Ltd., 368 F.3d 11, 17 (1st Cir.2004). When the nonmovant bears the ultimate burden of proof on a given issue, he must make a factual showing, by means of competent and specific evidence, sufficient to establish the essential elements of his claim. Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.1991); Garside, 895 F.2d at 48. Summary judgment is appropriate as long as "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c).

In the precincts patrolled by Rule 56, these standards govern trial and appellate courts alike. As an appellate tribunal, however, we are "not bound by the lower court's rationale but may affirm the entry of judgment on any independent ground rooted in the record." Int'l Ass'n of Machinists, 103 F.3d at 200.

B. The Legal Framework for Copyright Infringement

Copyright protection can subsist in an original musical work, including any...