Jorgensen v. Epic/Sony Records

• Decision Date: 03 December 2003
• Docket Number: No. 02-9305.,02-9305.
• Citation: Jorgensen v. Epic/Sony Records, 351 F.3d 46 (2nd Cir. 2003)
• Parties: John L. JORGENSEN, Plaintiff-Appellant, v. EPIC/SONY RECORDS, Famous Music Corporation, Fox Film Music Corporation, Careers BMG Music Publishing, Blue Sky Rider Songs, Warner-Tamerlane Publishing Corporation, Songs of Nashville Dreamworks, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

351 F.3d 46

John L. JORGENSEN, Plaintiff-Appellant, v.EPIC/SONY RECORDS, Famous Music Corporation, Fox Film Music Corporation, Careers BMG Music Publishing, Blue Sky Rider Songs, Warner-Tamerlane Publishing Corporation, Songs of Nashville Dreamworks, Defendants-Appellees.

No. 02-9305.

United States Court of Appeals, Second Circuit.

Argued: May 19, 2003.

Decided: December 3, 2003.

John L. Jorgensen, pro se, Brooklyn, New York, for Plaintiff-Appellant.

Orin Snyder(Cynthia S. Arato, on the brief), Parcher, Hayes, & Snyder, P.C., New York, New York, for Defendants-AppelleesCareers BMG Music Publishing Inc., Songs of Nashville Dreamworks, Sony Music Entertainment Inc., and Warner-Tamerlane Publishing Corporation.

Jonathan Zavin, Loeb & Loeb, LLP, New York, New York, for Defendants-AppelleesFamous Music Corporation, Fox Film Music Corporation, and Blue Sky Rider Songs.

Before: KEARSE, STRAUB, and RAGGI, Circuit Judges.

STRAUB, Circuit Judge.

PlaintiffJohn L. Jorgensen("Jorgensen"), pro se, appeals from the judgment of the United States District Court for the Southern District of New York(John F. Keenan, Judge), dated September 27, 2002, granting the defendants' motion for summary judgment and dismissing Jorgensen's copyright infringement case in its entirety.The District Court found that Jorgensen had not presented sufficient evidence of access to support his claim of copyright infringement, i.e., Jorgensen had not shown a reasonable opportunity by the allegedly infringing songwriters to hear and copy Jorgensen's unpublished song.SeeJorgensen v. Epic/Sony Records,No. 00 Civ. 9181, 2002 WL 31119377(S.D.N.Y.Sept.24, 2002).

We agree with the District Court that evidence of corporate receipt of unsolicited work is insufficient to raise a triable issue of access where there is no evidence of any connection between the individual recipients of the protected work and the alleged infringers.As to Defendants Careers BMG Music Publishing, Songs of Nashville Dreamworks, and Warner-Tamerlane Publishing Corp., Jorgensen failed to introduce evidence of any such nexus; indeed, those defendants introduced uncontroverted evidence to the contrary.As such, we affirm the District Court's ruling that Jorgensen failed to raise a triable issue of access as to those defendants.

With respect to DefendantsFamous Music Corporation, Fox Film Music Corp., Blue Sky Rider Songs, and Sony Music Entertainment Inc.(improperly sued as Epic/Sony Records), however, we find that Jorgensen did proffer sufficient evidence of a connection between the recipients of his recordings and the alleged infringers to make the grant of summary judgment on the issue of access inappropriate at this stage of the proceedings.We therefore vacate the judgment of the District Court as to DefendantsFamous Music Corporation, Fox Film Music Corp., Blue Sky Rider Songs, and Sony Music Entertainment Inc. and remand the case for further proceedings.

BACKGROUND

Jorgensen, a musician and songwriter, wrote and copyrighted a song entitled "Long Lost Lover"("Lover") that he claims has been infringed upon by the songs "My Heart Will Go On"("Heart") and "Amazed."Written by James Horner and Will Jennings, and sung by Celine Dion, "Heart" was the Academy Award-winning theme song for the 1997 blockbuster movie Titanic.DefendantsFamous Music Corporation, Fox Film Music Corp. and Blue Sky Rider Songs are the three co-publishers of "Heart," and DefendantSony Music Entertainment Inc.("Sony") manufactured and distributed the Titanic soundtrack.¹These defendants are collectively referred to as `the "Heart"defendants' in this opinion.

"Amazed," a song written by Chris Lindsey, Aimee Mayo and Marv Green, was recorded by the country music group Lonestar and released on their multi-platinum album "Lonely Grill."Defendants Careers BMG Music Publishing ("BMG"), Songs of Nashville Dreamworks, and Warner-Tamerlane Publishing Corp.(collectively `the "Amazed"defendants') are music publishing companies that administer the publishing rights to "Amazed."

Jorgensen asserts two primary theories by which he hypothesizes that the writers of "Heart" and "Amazed" had access to, and copied his song, "Lover": (i) through his unsolicited mass mailings of "Lover" to a multitude of entertainment companies listed in industry songwriter market books, including the defendants; and (ii) through actual receipt of his mailings by two executives at two of the defendant companies, BMG and Sony.²Jorgensen has not named the writers of either song as defendants in this suit.

After discovery, the defendants moved for summary judgment on the ground that Jorgensen had failed to adduce any evidence to support these theories of access.In particular, the defendants argued that, with the two exceptions noted below, Jorgensen had made no showing that any of the defendants ever actually received his submission.Even where Jorgensen established actual receipt, the defendants asserted that there was no evidence that Jorgensen's song had been forwarded to the writers of "Amazed" or "Heart," or to any other third party.In addition, the defendants argued that Jorgensen never had any contact with the writers of either "Amazed" or "Heart," and that Jorgensen had no evidence that the writers of either song would ever have received any tapes of unsolicited material from any of the companies to which Jorgensen sent copies of "Lover."

Bruce Pollock, a managing producer at a BMG division that has no connection with the music publishing company, submitted a sworn declaration in which he admitted having received a compact disc copy of "Lover" from Jorgensen.Pollock stated, however, that he did not give the CD to anyone at any time, including the writers of "Amazed" whom he did not know and had never met.

Harvey Leeds, a Vice President at Sony responsible for reviewing touring budgets for Sony artists, also admitted during his deposition that he had received a few tapes from Jorgensen but stated that he did not listen to them, and had assumed they were thrown away.Leeds also testified that he did not know the "Heart" songwriters.

Based on this evidence from Pollock and Leeds and because Jorgensen did not produce any cover letters or other correspondence to the defendants indicating to whom (or when)he sent his other mailings of "Lover,"the District Court held that Jorgensen could not establish that the authors of either "Amazed" or "Heart" had a reasonable opportunity to hear his unpublished work.2002 WL 31119377, at *4("Without more proof of access than has been demonstrated, Jorgensen's case cannot proceed.").The court held that "bare corporate receipt" of Jorgensen's work by those defendants who may have received Jorgensen's mass mailings did "not create a prima facie case of access sufficient to defeat summary judgment."Id. at *3.And, according to the District Court, with respect to BMG and Sony, the fact that Pollock and Leeds, respectively, admitted receiving Jorgensen's songs, without further evidence that they had forwarded the tapes to the songwriters or anyone else, was similarly inadequate to show access.Seeid. at *4.

The District Court's summary of the evidence regarding Jorgensen's interactions with Leeds and Sony, however, was incomplete.During his deposition, Jorgensen testified at length about multiple conversations that he'd had with both Leeds and Leeds's assistants over the course of three or more years regarding several tapes that Jorgensen sent to Leeds, including at least one tape that contained a recording of "Lover."According to Jorgensen, during every one of these conversations, Leeds or his assistants confirmed that Leeds had received Jorgensen's tapes (including, in particular, the "Lover" tape) and told Jorgensen that his tapes had been forwarded to Sony's Artist and Repertoire ("A & R") Department, the department responsible for helping the company "find, sign and guide new talent."In addition, in response to Jorgensen's Requests for Admissions, Sony indicated that "on limited occasions, writers, producers or musicians affiliated with Sony may have been shown some material solicited by the A & R Dept. at some point during 1995, 1996 and 1997...."This evidence — which the District Court does not appear to have considered — undercuts the defendants' claim that "Jorgensen failed to adduce even a scintilla of evidence" that Leeds "provided [Jorgensen's] song to anyone else...."

DISCUSSION

We review the District Court's grant of summary judgment de novo, construing the evidence in the light most favorable to Jorgensen, the non-moving party.SeeMack v. Otis Elevator Co.,326 F.3d 116, 119(2d Cir.2003).Moreover, because Jorgensen is proceeding pro se,we read his pleadings "liberally and interpret them to raise the strongest arguments that they suggest."McPherson v. Coombe,174 F.3d 276, 280(2d Cir.1999)(citation and internal quotation marks omitted);see alsoGraham v. Henderson,89 F.3d 75, 79(2d Cir.1996).As the District Court observed, however, our "application of this different standard does not relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment."2002 WL 31119377, at *2.³

To prevail on a motion for summary judgment, the defendants must demonstrate the absence of material evidence supporting an essential element of Jorgensen's copyright infringement claim.SeeRepp v. Webber,132 F.3d 882, 889-90(2d Cir.1997), cert. denied,525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40(1998).Jorgensen, to avoid summary judgment, "may not rely simply on conclusory allegations or speculation ..., but instead must offer evidence to show that [his] version of the events is not wholly fanciful."Morris v. Lindau,196 F.3d 102, 109(2d Cir.1999)(citation and internal quotation marks omitted).

In a copyright infringement case, the plaintiff must show: (i) ownership of a valid copyright; and (ii) unauthorized...