Parker v. Winwood

• Citation: 938 F.3d 833
• Decision Date: 17 September 2019
• Docket Number: No. 18-5305,18-5305
• Parties: Willia Dean PARKER; Rose Banks, Plaintiffs-Appellants, v. Mervyn WINWOOD; Steve Winwood ; Kobalt Music Publishing, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

938 F.3d 833

Willia Dean PARKER; Rose Banks, Plaintiffs-Appellants,

v.Mervyn WINWOOD; Steve Winwood ; Kobalt Music Publishing, Defendants-Appellees.

No. 18-5305

United States Court of Appeals, Sixth Circuit.

Argued: October 18, 2018

Decided and Filed: September 17, 2019

Rehearing En Banc Denied October 23, 2019^*

GRIFFIN, Circuit Judge.

Plaintiffs Willia Dean Parker and Rose Banks sued defendants Mervyn Winwood, Steve Winwood, and Kobalt Music Publishing for copyright infringement. The district court found that plaintiffs failed to submit admissible evidence showing that Steve copied plaintiffs’ protected work—one element of an infringement claim—so it granted judgment in his and Kobalt’s favor. The court also found that it lacked personal jurisdiction over Mervyn, who resides in the United Kingdom, and therefore dismissed him from the case. Plaintiffs contest both rulings. We affirm.

I.

In 1965, in Memphis, Tennessee, Willia Dean Parker and Homer Banks wrote the song Ain’t That a Lot of Love and registered it with the United States Copyright Office. The very next year, in London, England, brothers Mervyn and Steve Winwood wrote the song Gimme Some Lovin’ . They were members of the Spencer Davis Group, a band that contracted with Island Records to market its music. Island registered the song with the Copyright Office as well.

Ain’t That a Lot of Love fell flat. But Gimme Some Lovin’ roared up the charts, reaching the second spot in the United Kingdom and later the seventh spot in the United States.

Fifty-one years later, Parker and Banks’s wife, Rose, sued the Winwoods and Kobalt Music Publishing—the company that exploits Steve’s copyright interest in Gimme Some Lovin’ —in the United States District Court for the Middle District of Tennessee. When writing Gimme Some Lovin’ , plaintiffs claimed, the Winwoods lifted the bass line from Ain’t That a Lot of Love . And that move, plaintiffs asserted, entitled them to statutory damages for copyright infringement under 17 U.S.C. § 504, as well as other relief.

Steve Winwood and Kobalt moved for summary judgment, arguing that Steve had not infringed plaintiffs’ copyright because no one in the Spencer Davis Group had heard Ain’t That a Lot of Love before writing Gimme Some Lovin’ . In response, plaintiffs asked the district court to consider several documents they claimed contained direct evidence of copying. They also argued that there was a twenty-one-day window—between Ain’t That a Lot of Love ’s debut in the United Kingdom and the commercial release of Gimme Some Lovin’ —during which the Spencer Davis Group could have copied the bass line. In reply, Steve and Kobalt claimed that plaintiffs’ direct evidence of copying was inadmissible under the rule against hearsay. See Fed. R. Evid. 802. The district court granted the motion. It noted that Steve and Kobalt had submitted affidavits in support of their claim that no one in the band had heard Ain’t That a Lot of Love before writing Gimme Some Lovin’ . The court also ruled that the documents plaintiffs sought to rely on to show direct evidence of copying were inadmissible under the rule against hearsay, see Fed. R. Evid. 801, 802, which meant they failed to produce any evidence showing that Steve copied Ain’t That a Lot of Love .

Mervyn Winwood then moved to dismiss the case against him, arguing that personal jurisdiction was lacking. In support of his motion, he submitted a declaration in which he stated that he was "a lifelong British subject"; that he had never lived or worked in the United States; that he had never even been to Tennessee; and that he had never done business, had a mailing address, or had a bank account in Tennessee, either. In response, plaintiffs argued that Mervyn had subjected himself to the jurisdiction of courts in Tennessee in two ways. First, they said, he purposely infringed their copyright and therefore willfully harmed Tennessee residents. And second, they claimed, he contracted with Island Records to distribute his infringing song, which made its way to Tennessee. The district court granted this motion as well, ruling that Mervyn had not established enough of a connection with Tennessee to exercise jurisdiction over him without depriving him of due process.

Plaintiffs appealed both rulings.

II.

We begin with the district court’s grant of summary judgment in favor of Steve Winwood and Kobalt, which we review de novo. S.E.C. v. Zada , 787 F.3d 375, 380 (6th Cir. 2015). Summary judgment is appropriate if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

Because plaintiffs brought a copyright-infringement claim, to make it to trial they needed to create factual disputes over two things: whether they owned a copyrighted creation and whether Steve copied it. Jones v. Blige , 558 F.3d 485, 490 (6th Cir. 2009). Only the second is at issue.

"Direct evidence of copying is rare," and in its absence, a plaintiff can create an inference of copying if she can show both that the defendant had access to the work and that the original and allegedly infringing work are substantially similar. Ellis v. Diffie , 177 F.3d 503, 506 (6th Cir. 1999). And even when a plaintiff is unable to prove access, she can establish copying by showing a "striking similarity" between her work and the allegedly infringing one. Murray Hill Publ’ns, Inc. v. Twentieth Century Fox Film Corp. , 361 F.3d 312, 317 (6th Cir. 2004) (emphasis added).

A.

On appeal, plaintiffs argue that the district court erred when it ruled that four documents they sought to rely on were inadmissible under the rule against hearsay. Those documents were admissible, plaintiffs claim, and summary judgment was inappropriate because they contained direct evidence of copying. Whether proffered evidence is hearsay is an issue we review de novo. United States v. Jinadu , 98 F.3d 239, 244 (6th Cir. 1996).

The first document plaintiffs claim is admissible is a one-page excerpt from Timothy White’s 1990 book, titled Rock Lives: Profiles and Interviews . That excerpt, plaintiffs assert, contains portions of an interview with Spencer Davis in which Davis said Gimme Some Lovin’ used Ain’t That a Lot of Loving ’s bass riff. And the book falls under the ancient-documents exception to the rule against hearsay, they contend, which means the district court should have considered it as evidence. See Fed. R. 803(16). Although the book might well be an ancient document, Davis’s statement is not. And because plaintiffs seek to use Davis’s statement for its truth, it is inadmissible unless they can show that it is not hearsay, see Fed. R. Evid. 801(d), or that it falls under an exception to the rule against hearsay, see Fed. R. Evid. 803 ; see also Fed. R. Evid. 802, 805. But plaintiffs do not contend that Davis’s statement, as it appears in White’s book, is admissible. And we are not in the business of developing parties’ arguments for them. See My Imagination, LLC v. M.Z. Berger & Co. , 726 F. App'x 272, 276 (6th Cir. 2018). Thus, we find that the district court correctly excluded the document as hearsay.

The second document plaintiffs seek to rely on is more difficult to describe. Plaintiffs characterize it as "Timothy White’s 1988 Billboard Magazine interview with Spencer Davis ... as republished ... on SteveWinwood.com." That description appears at least partially accurate. The document includes the phrase "By Timothy White," contains the date "November 23, 1988," and has the type of exposition one might find in a magazine. It also purports to quote Spencer Davis. Yet the document is obviously not just a copy of a magazine article. The document is in black and white, the text is faded, and the size is standard for printer paper. A menu appears at the top of the first page; its options include "Home"; "news"; "Bio"; "media"; "Live"; "Music"; "Jukebox"; and "store." The url "www.stevewinwood.com/news/1414" appears at the bottom of each page. And the date "2/28/2017" appears at the bottom of each page as well. The document also contains a title: " ‘Coming to America’ Musician, Nov. 1988." Perhaps the best way to describe the document, then, is to call it a scan, of a printout, of the webpage www.stevewinwood.com/news/1414, as it appeared on February 28, 2017, that seems to include a reproduction of an article, by Timothy White, that itself appeared in the November 1988 copy of Musician magazine (not Billboard magazine). Like the first document, this document seems to include portions of an interview with Spencer Davis in which Davis said Gimme Some Lovin’ used Ain’t That a Lot of Loving ’s bass riff.

Plaintiffs argue that the webpage printout is not hearsay because it is a party admission under Federal Rule of Evidence 801(d)(2)(A) or (B). Subsection (d)(2)(A) provides that a statement a proponent offers against an opposing party is not hearsay if the opposing party made the statement in an individual or representative capacity. Fed. R. Evid. 801(d)(2)(A). Although the webpage itself might be an opposing-party statement (assuming Steve Winwood created the page), it contains two levels of statements that fall outside subsection (d)(2)(A): the article by Timothy White and Spencer Davis’s statements within that article. Steve Winwood is neither Timothy White nor Spencer Davis, so their statements are not his statements.

Then there is subsection (d)(2)(B), which provides that a statement a proponent offers against an opposing party is not hearsay if the opposing party manifested its adoption of the statement or its belief that the statement is true. Fed. R. Evid. 801(d)(2)(B). Plaintiffs contend that Steve Winwood manifested his adoption of the entire article—including Davis’s statement that Gimme Some Lovin’ used Ain’t That a Lot of Loving ’s bass riff—by reproducing it on his website. But as the Supreme Court has noted, "[m]erely hosting a document on a Web site does not indicate that the hosting entity...