Repp v. Webber
| Decision Date | 30 December 1997 |
| Docket Number | 509,D,Nos. 218,s. 218 |
| Parties | 1998 Copr.L.Dec. P 27,711, 45 U.S.P.Q.2d 1285 Ray REPP & K & R Music, Inc., Plaintiffs-Counter-Defendants-Appellants-Cross Appellees, v. Andrew Lloyd WEBBER; Really Useful Group, plc, Defendants-Counter-Claimants-Appellees-Cross Appellants, Really Useful Company, Incorporated; MCA Records, Inc.; Hal Leonard Publishing Corporation; Polygram Records, Incorporated, Defendants-Appellees-Cross Appellants. ockets 96-9691, 97-7050. |
| Court | U.S. Court of Appeals — Second Circuit |
William R. Coulson, Cherry & Flynn, Chicago, IL (Peter Flynn, Cherry & Flynn, Chicago, IL, of counsel), for Plaintiffs-Counter-Defendants-Appellants-Cross-Appellees.
Jane G. Stevens, Gold, Farrell & Marks, New York City (Christine Lepera, Robert P. Mulvey, Gold, Farrell & Marks, New York
City, of counsel), for Defendants-Counter-Claimants-Appellees-Cross-Appellants and Defendants-Appellees-Cross Appellants.
Before: KEARSE, MINER and CABRANES, Circuit Judges.
Plaintiffs Ray Repp and K & R Music, Inc. ("K & R") appeal from a summary judgment entered in the United States District Court for the Southern District of New York (Kram, J.) in favor of defendants in an action involving claims and counterclaims grounded in copyright infringement. The defendants are Andrew Lloyd Webber, a well-known British composer of musical works for stage production, Really Useful Group, plc, his copyright proprietor, and Really Useful Company, Incorporated, Polygram Records, Inc., MCA Records, Inc. ("MCA") and Hal Leonard Publishing Corporation, all said to be Lloyd Webber's licensees. The summary judgment dismissed the claim of Repp, an established American composer of popular liturgical music, and K & R, a publisher of religious and church music, that the "Phantom Song," composed by Lloyd Webber, copies the song, "Till You," composed by Repp. Also before us is a cross-appeal from a judgment in favor of Repp and K & R entered in the same action after a non-jury trial. This judgment dismissed the counterclaims of Lloyd Webber and his copyright proprietor alleging that "Till You" copies the song "Close Every Door" composed by Lloyd Webber.
For the reasons that follow, we reverse the summary judgment that is subject of the appeal, and we affirm the judgment entered after trial that is subject of the cross-appeal.
Repp has been a professional composer and performer of liturgical music for more than thirty years. He has written and published music for eleven albums, encompassing one hundred twenty different musical compositions. Over the years, Repp has performed in the United States, Canada, Europe and Asia, and some of his lyrics have been translated into foreign languages. His music has been published by his own company, plaintiff K & R, as well as others, including Our Sunday Visitor, FEL Publications, Word Publications and Hope Publications. It also has been published by the Lutheran, Episcopal, Presbyterian and Catholic churches and by the Church of the Brethren. Repp's songs have been included in various hymnals and song books. He has been recognized as a leading author and performer of liturgical folk music.
Repp wrote the song "Till You" in 1978 and registered it with the United States Copyright Office the same year. The song is liturgical in nature, being based on passages from the Book of Luke, commonly known as the "Magnificat." It has been distributed since 1978 as part of the album "Benedicamus" in the form of cassettes and record albums. The song appears in sheet music form in books entitled "Benedicamus" and "Life Songs." Twenty-five thousand copies of the sheet music were said to have been published and distributed.
With respect to albums or cassettes that included "Till You," Repp asserts that he personally ordered a total of eighteen thousand copies and that all but a handful have been sold or distributed. Repp is not fully able to document the sales, but he does have some records, including those relating to sales of fifty albums and fifty cassettes of "Benedicamus" to a distributor in Australia. Although music from "Benedicamus" may have made the "heavy play list" at the Fordham University Radio Station, Repp could not establish the frequency with which "Till You" was played on any radio station. However, Repp has performed the song in over two hundred concerts given since 1978 in the United States and many foreign countries. These performances were given in convention centers, churches, universities and theaters. Repp estimates that over one hundred thousand people have heard him perform his song "Till You," and he contends that Lloyd Webber, having had access to this music, copied it, intentionally or unintentionally, in writing the "Phantom Song."
Lloyd Webber is a composer who has achieved outstanding international success. He resides in England, maintains a residence in New York City, and travels widely. He has more than three hundred published compositions to his credit. His work for the theater includes such acclaimed musical shows as "Joseph and the Amazing Technicolor Dreamcoat," "Jesus Christ Superstar," "Cats," "Evita," "Starlight Express," "Song and Dance," "Aspects of Love," "Sunset Boulevard," and "The Phantom of the Opera." Lloyd Webber completed the "Phantom Song" in late 1984, and the piece was recorded in December 1985 by Sarah Brightman and Steve Harley. It was released as a single recording in January 1986 in England. "The Phantom of the Opera," a dramatico-musical show had its premiere in London in 1986. "Phantom Song" is an important part of the work, which was registered in the United States Copyright Office in 1987. The show opened on Broadway in 1988.
"Joseph and the Amazing Technicolor Dreamcoat" (hereinafter, "Joseph") first was presented as a choral work in London in 1968. The song "Close Every Door" was among the first portions of the choral presentation that Lloyd Webber completed. The composition was a centerpiece in every subsequent version of "Joseph," which was based on the Biblical tale of Joseph's sale into slavery by his brothers and subsequent rise to success in Egypt. An expanded version was presented at the Edinburgh Festival in 1972 and in London in 1973. Following the London run, Lloyd Webber and lyricist Tim Rice further expanded "Joseph" into a full-length musical. In 1989, Lloyd Webber's company, Really Useful Group, acquired by assignment all the rights and interest in the copyright for "Joseph," including "Close Every Door." The assignment thereafter was recorded in the United States Copyright Office.
"Joseph" was recorded as an album by Decca Records and publicly released in 1969. "Close Every Door" was the first single recording released from the album. In 1971, Sceptre Records released the album in the United States, where it was sold in retail stores and appeared on the Billboard Magazine charts of Top LPs for twelve weeks. MCA issued a sound recording of "Joseph," including "Close Every Door," in 1974. Sales of the MCA recording exceeded twenty-three thousand units. Between 1969 and 1978, at least forty thousand copies of the sheet music of the vocal score were sold. Between 1968 and 1978, "Joseph" was widely performed by stock and amateur theater companies and was broadcast on the radio. "Close Every Door" was heard in the United States on religious radio programs, which Lloyd Webber asserts were "directly within Repp's sphere of interest." Lloyd Webber contends that the widespread dissemination of "Close Every Door," together with Repp's interest in the musical genre, provide important evidence of access. He asserts that there are striking and significant similarities demonstrating that "Till You" copies the earlier written "Close Every Door."
The defendants' summary judgment motion was made at the conclusion of fact and expert discovery. The moving papers include a declaration by Lloyd Webber that he began to compose "Phantom Song" at Sydmonton Court, his home in Sydmonton, England, in late 1983. Sarah Brightman, who later became his wife, worked with him as he composed. According to Lloyd Webber, the song was designed to show off Brightman's vocal range, and she sang the melody as he composed at the piano. No lyrics were written at that time, and no notation of the music was made. Lloyd Webber declared that, although the song was not completed that day, the whole of the melody was developed. Thereafter, Lloyd Webber was occupied with other projects and did not get around to completing the entire "Phantom Song" until 1984.
Ms. Brightman furnished a declaration confirming Lloyd Webber's account of the origination of "Phantom Song." In her declaration, she recalled Lloyd Webber asking her Both Lloyd Webber and Brightman assert that they never heard of Ray Repp or his music prior to this litigation. Lloyd Webber testified at his deposition that he dislikes "pop church music" and never listens to it. His interest in "church music" is limited to "the English Choral tradition." Although Repp alleged a connection with Lloyd Webber through a common acquaintance, Robert Velline, it appears that Velline actually was acquainted with Lloyd Webber's brother and met Lloyd Webber only briefly in 1986. Velline, a 1960s rock singer known as Bobby Vee, had received a copy of Repp's album, "Benedicamus," in 1979.
to sing the music that he played on the piano. Lloyd Webber modified the melody and the chords of the piece as he played and she sang. Brightman declared that in September 1984 she accompanied Lloyd Webber to a meeting with Michael Batt, who was to produce a recording of the song Lloyd Webber had composed for her. In October 1984, Brightman and Batt recorded "Phantom Song"...
To continue reading
Request your trial
-
R. Ready Productions, Inc. v. Cantrell
...intent of Plaintiffs is irrelevant. This comports with the general view of intent in copyright infringement cases. See Repp v. Webber, 132 F.3d 882, 889 (2d Cir.1997) (holding that "the fact that infringement is `subconscious' or `innocent' does not affect liability"); see also Pinkham v. S......
-
R.F.M.A.S., Inc. v. Mimi So
...creation is an affirmative defense, evidence of which may be introduced to rebut a prima facie case of infringement," Repp v. Webber, 132 F.3d 882, 889 (2d Cir.1997), and it is a question of fact, id. at 891. The Court finds that this argument raises yet another instance where a genuine dis......
-
Cobalt Multifamily Investors I, LLC v. Arden
...by demonstrating the absence of evidence supporting an essential element of the non-moving party's claim. See, e.g.,Repp v. Webber, 132 F.3d 882, 890 (2d Cir.1997); Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996), cert. denied,517 U.S. 1190, 116 S.Ct. 1678, 134 L.Ed.2d 780 (1996). ......
-
M.A. v. N.Y. Dep't of Educ.
...by demonstrating the absence of evidence supporting an essential element of the non-moving party's claim. See, e.g., Repp v. Webber, 132 F.3d 882, 890 (2d Cir.1997); Gummo v. Vill. of Depew, 75 F.3d 98, 107 (2d Cir.1996). If the movant satisfies its initial burden, the burden then shifts to......
-
Table Of Cases
...Litig., 360 F. Supp. 2d 166 (D. Mass. 2005), 102. In re Remeron Antitrust Litig., 335 F. Supp. 2d 522 (D.N.J. 2004), 102. Repp v. Webber, 132 F.3d 882 (2d Cir. 1997), 71. Research Plastics v. Fed. Packaging Corp., 421 F.3d 1290 (Fed. Cir. 2005), 34, 36. Rexnord Corp. v. Laitram Corp., 274 F......
-
Remedies available under the adea
...applied it think that the absence of pay increases compensates for the failure to discount the calculation to present value. Stratton, 132 F.3d at 882. The best approach is to put on expert testimony setting forth factors considered in calculating front pay losses based on things like life ......
-
Basics of Intellectual Property Laws for the Antitrust Practitioner
...offending object itself.”). 357. See Castle Rock Entm’t v. Carol Publ’g Group, 150 F.3d 132, 137 (2d Cir. 1998). 358. See Repp v. Webber, 132 F.3d 882, 889 (2d Cir. 1997). 359. See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000). 360. See Bouchat v. Baltimore Ravens, Inc......
-
Tesla, Marconi, and the great radio controversy: awarding patent damages without chilling a defendant's incentive to innovate.
...1998) (Defendants failed to prove innocent infringement and "were not entitled to the reduction in statutory damages."); Repp v. Webber, 132 F.3d 882, 889 (2d Cir. 1997) ("The fact that infringement is 'subconscious' or 'innocent' does not affect liability, although it may have some bearing......