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Remember When?

Remember when several courts held that the existence of copyrighted materials on the Internet cannot by itself justify an inference that an accused infringer accessed the copyrighted work? Many copyright attorneys remember these cases, but apparently, a songwriter and his attorneys in North Carolina do not—or at least they thought they had more valid “access” evidence that the court held they did.

Songwriter Timothy Arnett alleged Alan Jackson infringed Arnett’s copyrighted composition “Remember Me,” claiming Jackson’s hit “Remember When” was an unauthorized derivative work based on Arnett’s song. To prove copyright infringement, a plaintiff must prove that he owns a copyrighted original work registered with the U.S. Copyright Office and that the infringer copied his work without authorization. To prove to copy, a plaintiff can provide evidence of direct access to the work (“I handed him a CD at my showcase.”). In the absence of direct evidence, an inference can be made that the infringer had access to the work. (“My song was played on the radio in high rotation and charted in the top 20.”) Finally, a plaintiff could show that the two works are strikingly similar, i.e., the works are so similar that there is a huge probability of copying instead of independent creation. If the works are strikingly similar, there could an inference of copying.

Like many songwriters, Arnett just did not have enough valid evidence from which any inferences could be drawn that Alan Jackson copied his song. A possibility of access because the song is on a website or available on the Internet is simply not enough to state a claim for infringement. Further, public distribution is not enough without some evidence that the alleged infringer actually obtained a copy of or was exposed to the work. Considerable commercial success could be evidence of access, but several cases have held that selling thousands of copies is not, in and of itself, enough. Arnett did not show that his work was a commercial success or that he had sold enough copies for it to be reasonable to believe Jackson heard it. Further, simply showing that people who knew or might know Jackson had a copy of Arnett’s song is not enough. There has to be a close relationship between the intermediary and the infringer and that their dealings involved some overlap in the song. (e.g., a manager pitched the song to the artist) Just knowing the alleged infringer or having a business relationship cannot support an infringement claim.

Arnett also could not show the court that the two songs were strikingly similar, which similarity could result in an inference of copying. The best Arnett alleged was that the two songs were similar conceptually and had harmonic similarities. Instead, the court found that Arnett merely had recited the legal standard without alleging sufficient supporting facts. A credible, knowledge musicologist would be a key asset to establish striking similarity; however, it does not per se relieve a plaintiff of his burden to prove access (in the Fourth Circuit). Because Arnett could not allege access in a sufficiently plausible manner, his case was dismissed.

If you did not do it before, remember when this court ruled that suspicion or some possibility is not enough to show that someone infringed your work. “But he had to have heard it” does not fly in federal court. Other courts have ruled in a manner similar to the North Carolina judge, so carefully consider whether you have an actionable infringement case before filing suit.

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Ramona P. DeSalvo