IP Law Daily, COPYRIGHT—MDTenn: Aspiring Songwriter Provides Only Speculation and Conjecture that Country Star, Record Companies Had Access to His Work, (Mar 14, 2013)

By Thomas Long, J.D.

A songwriter (James Martinez) could not go forward with copyright infringement claims against country music star Tim McGraw, other individuals, record companies (“the defendants”) the federal district court in Nashville has decided (Martinez v. McGraw, March 13, 2013, Campbell, T.). Martinez failed to present evidence raising a genuine issue of material fact as to whether the defendants’ song “Everywhere” was copied from Martinez’s copyrighted song entitled “Anytime, Anywhere, Amanda.” In particular, Martinez failed to show that the defendants had access to his song, the court held.

To establish copyright infringement, a plaintiff must establish ownership of the copyrighted work and copying of that work by the defendant. Where, as in this case, there is no direct evidence of copying, a plaintiff may establish an inference of copying by showing (1) access to the allegedly infringed work by the defendants and (2) a substantial similarity between the two works at issue.

In a case involving a copyrighted musical work, access would mean hearing or having a reasonable opportunity to hear the plaintiff’s work, and thus having the opportunity to copy it. Although evidence that a third party with whom both the plaintiff and the defendant were concurrently dealing had possession of the plaintiff’s work would be sufficient to establish access by the defendant, access may not be inferred through mere speculation or conjecture. A mere assertion of access, unaccompanied by probative evidence would not be adequate to withstand a motion for summary judgment.

Martinez alleged that he asked Susan Tomac (the mother of Amanda Little, Miss Texas, for whom the song “Anytime, Anywhere, Amanda” was written) to take and play his song in Nashville in August or September of 1996. Martinez asserted that Tomac gave a cassette tape containing song to a photographer named David Bartley and a dressmaker named Karen Phillips. Phillips allegedly was close to Kim Greenwood, who was married to country music artist Lee Greenwood. Lee Greenwood denied receiving the tape. All of the individual defendants denied ever having heard Martinez’s song prior to the filing of the lawsuit.

Martinez argued that Bartley “could have” given the song to Melanie Shelley, who cut the hair of defendant McGraw and his wife, was a friend of Bartley’s ex-wife, and owned a shop near Music Row in Nashville. Shelley testified that she never received a tape of Martinez’s music.

Martinez also contended that another country artist, Terri Clark, copied one of the other songs on Martinez’s demo tape. Because Clark and McGraw recorded at the same studio and used some of the same people on their recordings, Martinez argued that the song “Everywhere” must have been copied from his song.

In the court’s view, Martinez’s assertion of access was based solely upon speculation and conjecture. There was no proof that the defendants had access to “Anytime, Anywhere, Amanda.” In addition, there was no competent expert evidence that the two songs were “strikingly similar” such that the court could infer access and copying.

Even if copying could be inferred, such an inference was rebuttable by evidence of independent creation of the allegedly infringing work, the court noted. The writers of “Everywhere” testified unequivocally that they created the song independently, with no input from Martinez and without reference to or inclusion of any portion or element of “Anytime, Anywhere, Amanda.” The defending songwriters testified that they had never heard of Martinez and had never heard his song.

Because there was no reasonable possibility of access, the court stated that it did not need to address the element of substantial similarity. However, if it were to address that element, the court would find that the defendants’ expert testimony on the issue was unrebutted, because the court had excluded Martinez’s expert witness.

Therefore, the defendants’ motion for summary judgment was granted, and Martinez’s copyright infringement claims were dismissed.

The case is No. 3-08-0738.

Attorneys: William P. Ramey, III (Ramey & Browning, PLLC) for James Martinez. Timothy L. Warnock (Riley, Warnock & Jacobson) for Samuel Timothy McGraw.

Cases: Copyright TennesseeNews