Moore v. Columbia Pictures Industries, Inc.

• Decision Date: 09 October 1992
• Docket Number: No. 91-2844,91-2844
• Citation: 972 F.2d 939
• Parties: 1992 Copr.L.Dec. P 26,963, 23 U.S.P.Q.2d 1864 Derrick D. MOORE, Appellant, v. COLUMBIA PICTURES INDUSTRIES, INC., a Delaware corporation; MCA Records, Inc., a California corporation; La'Face, Inc., a California corporation; Antonio Reid and Kenny Edmonds, also known as L.A. and Babyface, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 939

972 F.2d 939

1992 Copr.L.Dec. P 26,963, 23 U.S.P.Q.2d 1864

Derrick D. MOORE, Appellant, v. COLUMBIA PICTURES INDUSTRIES, INC., a Delaware corporation;

MCA Records, Inc., a California corporation; La'Face, Inc.,

a California corporation; Antonio Reid and Kenny Edmonds,

also known as L.A. and Babyface, Appellees.

No. 91-2844.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 11, 1992.

Decided Aug. 14, 1992.

Rehearing and Rehearing En Banc Denied Oct. 9, 1992.

David O. Carson, New York City, argued, for appellant.

Russell J. Frackman, Los Angeles, Cal. argued (Bruce H. Little and Calvin L. Litsey, Minneapolis, Minn., and Gleam O. Davis, Los Angeles, Cal., on the brief), for appellees.

Before RICHARD S. ARNOLD, Chief Judge, and LAY and HEANEY, Senior Circuit Judges.

HEANEY, Senior Circuit Judge.

Derrick D. Moore, a 28-year old, self-taught, Minneapolis songwriter and musician, composed a song he entitled "She Can't Stand It" in March, April, and early May 1989. With hopes of gaining a contract, Moore decided to submit the song to MCA Records. On March 22, 1989, Moore's agent, James Selmer, delivered two cassette tapes to Cheryl Dickerson, then MCA's Director of Artists and Repertoire, Black Artists Division, in Los Angeles. One of the tapes contained the instrumental version of "She Can't Stand It." Dickerson asked Selmer to send her a final version of "She Can't Stand It." Selmer complied with the request and sent her the final version on May 11. Moore registered the completed song with the United States Copyright Office on June 6, 1989. On the same day, Moore notified one of the defendants, Columbia Pictures Industries, that it was infringing his copyright through the use of the song "On Our Own" which was written by defendants, Antonio Reid and Kenny Edmonds. This song was subsequently used as the theme song in GHOSTBUSTERS II. Columbia promptly denied the charge of copyright infringement. On July 14, 1989, Moore filed an action against Columbia and the other defendants in the United States District Court for the District of Minnesota alleging infringement of his song "She Can't Stand It."

On February 8, 1991, the defendants jointly moved for summary judgment. The district court granted the motion on June 27, 1991, ruling that Moore's evidence was "insufficient to find access as a matter of law." It stated that Moore's evidence on this crucial issue was highly speculative, suggesting only a bare possibility of access; that defendants' song "On My Own" was not so strikingly similar to Moore's song so as to create an inference of access; and that Moore had not been able to challenge defendants' claim of independent creation. ¹ It further stated that such independent creation alone "has been held to rebut a prima facie case of copying." We affirm.

DISCUSSION

I.

To establish copyright infringement, Moore must prove his ownership of the copyright ² and copying by the defendants. Feist Publications, Inc. v. Rural Tel. Serv. Co., --- U.S. ----, ----, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991). Typically, however, the latter element cannot be proven directly. Therefore, copying can be established by demonstration of access (by the alleged infringer) and substantial Moore can establish access by showing that the defendants had an "opportunity to view or to copy" his work. See e.g., Sid & Mary Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1172 (9th Cir.1977); 3 Nimmer on Copyright § 13.02[A]. Establishing a "bare possibility" of access is not enough; rather, Moore must prove that the defendants had a "reasonable possibility" of viewing his work. See, e.g., Ferguson v. Nat'l Broadcasting Co., 584 F.2d 111, 113 (5th Cir.1978); 3 Nimmer on Copyright § 13.02[A]. A reasonable possibility of access can be established under the "corporate receipt doctrine."

                similarity (between the works at issue).   See, e.g., Nelson v. PRN Prods., Inc., 873 F.2d 1141, 1142 (8th Cir.), cert. denied, 493 U.S. 994, 110 S.Ct. 544, 107 L.Ed.2d 541 (1989);  3 Melville B. Nimmer, Nimmer on Copyright § 13.01[B] (1992).   We turn initially to the question of access
                

[I]f the defendant is a corporation, the fact that one employee of the corporation has possession of plaintiff's work should warrant a finding that another employee (who composed defendant's work) had access to plaintiff's work, where by reason of the physical propinquity between the employees the latter has the opportunity to view the work in the possession of the former.

3 Nimmer on Copyright § 13.02[A]. Like other courts, we believe that the corporate receipt doctrine applies where there is a "relationship linking the intermediary and the alleged copier," even though the purported copier is not an employee of the intermediary. Meta-Film Assoc., Inc. v. MCA, Inc., 586 F.Supp. 1346, 1357 (C.D.Cal.1984); see also Ferguson, 584 F.2d at 113; Intersong-USA v. CBS, Inc., 757 F.Supp. 274, 281 (S.D.N.Y.1991).

II.

Moore contends that the district court erred in ruling that Moore has not established a reasonable possibility that Reid and Edmonds obtained access to "She Can't Stand It" before they composed "On My Own." This case arises from summary judgment against Moore. Thus, viewing the facts and all reasonable inferences to be drawn therefrom in the light most favorable to Moore, we must determine whether any genuine issue exists as to any material fact. See, e.g., Stever v. Indep. School Dist. No. 625, 943 F.2d 845, 849 (8th Cir.1991). ³ Given this standard and based on the facts of this case, we agree with Moore's contention that sufficient facts have been presented to defeat the defendants' motion for summary judgment on the basis of access.

On March 22, 1989, James Selmer, Moore's manager and agent, met with Cheryl Dickerson, then Senior Director of Artists and Repertoire, Black Artists Division, in her Los Angeles office to convince MCA to sign a recording contract with Moore. As part of his presentation to Dickerson, Selmer played several cassette tapes of Moore's music, including an instrumental version of "She Can't Stand It." According to Selmer, Dickerson responded enthusiastically to "She Can't Stand It," exclaiming "I like this, I really like this," and told Selmer that her immediate supervisor and Vice President for Black Music at MCA, Louil Silas, "is going to love this track," and that she "want[ed] to offer this guy a deal; I want to offer him a contract. Would you get me a tape of six of his best songs all on one tape so that I can present it to Louil. Would you have Derrick take his time writing the lyrics [for 'She Can't Stand It']."

Dickerson then asked Selmer if she could keep the tape of "She Can't Stand It." Selmer hesitated, but decided to do so because of Dickerson's positive reaction to the song. Dickerson also requested that Moore select six of his best songs, including "She Can't Stand It," and compile them on a tape that she could give to Silas. On May 11, 1989, Selmer forwarded the requested "best of" tape to Dickerson, including Dickerson's meeting with Selmer typified her responsibilities at MCA, where she was immediately supervised by Silas, and her duties included signing new recording artists. Dickerson testified that she had personally introduced Reid and Edmonds to several of MCA's performers. In fact, Dickerson introduced Reid to an MCA singer who eventually became his wife. Dickerson's office is located around the corner from Silas's office, who had worked with Reid and Edmonds in the past, sometimes making specific suggestions regarding the composition of songs. In either February or March of 1989, Silas suggested to Reid and Edmonds that they write a song for Bobby Brown (for whom Silas had previously produced songs composed by Reid and Edmonds) to sing for the GHOSTBUSTERS II soundtrack.

                a finalized version of "She Can't Stand It."   Silas's "tape log," a book which listed the tape recordings received by Silas, indicates that the completed version of "She Can't Stand It" reached his desk.   Despite Selmer's subsequent efforts to contact Dickerson, she never responded to his messages and they never talked again regarding Moore's work
                

Accordingly, during February and March, Reid claims to have created a number of rhythm tracks (i.e., drum beats) at his Los Angeles home, including the drum beat for "On My Own." On March 21, 1989, he claims he delivered a copy of these tracks to Edmonds. On March 22, the same day Selmer met with Dickerson, Edmonds began creating the music to accompany the drum beat. On March 23, Reid and Edmonds composed the lyrics for "On My Own" with the intent of submitting the song for the GHOSTBUSTERS II soundtrack. The next day, March 24, Reid and Edmonds brought a floppy disc containing their creation to a Hollywood recording studio to transfer to a master tape. On March 31, Reid and Edmonds called Silas to let him know that they had completed a song that Silas might want to consider for Bobby Brown to sing for GHOSTBUSTERS II and proceeded to play "On My Own" for Silas over the phone.

In early April, Reid and Edmonds arranged for Silas to record a copy of "On My Own." After Silas did so, copies were provided to various individuals, including Bobby Brown and the director of GHOSTBUSTERS II, who liked the song but suggested a few minor changes, one of which resulted in the song being retitled "On Our Own." After Reid and Edmonds refined the song, the director agreed to use it in the movie, and MCA released "On Our Own" as a single in late May 1989 and as a track on the GHOSTBUSTERS II soundtrack a few weeks later.

When we consider these facts and their inferences in the light most favorable to Moore, we conclude that there was a reasonable possibility that Reid and Edmonds heard Moore's work before they composed "On My Own." Dickerson, Silas, Reid and Edmonds had on-going professional and personal relationships. Silas had worked previously with Reid and Edmonds on...