                 NOT RECOMMENDED FOR FULL TEXT PUBLICATION
                            File Name: 14a0722n.06

                                        No. 13-5796


                        UNITED STATES COURTS OF APPEALS
                             FOR THE SIXTH CIRCUIT

JAMES MARTINEZ,                        )                                    FILED
                                       )                               Sep 15, 2014
      Plaintiff - Appellant,           )                           DEBORAH S. HUNT, Clerk
v.                                     )
                                       )
                                                             ON APPEAL FROM THE
SAMUEL TIM MCGRAW; JAMES STROUD; BYRON )
                                                             UNITED STATES DISTRICT
GALLIMORE; CRAIG WISEMAN; MIKE REID;   )
                                                             COURT FOR THE MIDDLE
ALAMO MUSIC CORP.; DADDY RABBIT MUSIC; )
                                                             DISTRICT OF TENNESSEE
BRIO BLUES MUSIC; CURB RECORDS, INC.,  )
RONDOR MUSIC INTERNATIONAL, INC.,      )
                                       )
      Defendants - Appellees.          )



BEFORE: BOGGS, BATCHELDER, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. In this copyright-infringement action, Plaintiff

James Martinez alleges that Defendants infringed his musical composition Anytime, Anywhere

Amanda with the musical composition Everywhere.        The district court granted Defendants

summary judgment and we AFFIRM.

                                                 I.

       Martinez, a recording artist and producer of musical recordings, wrote Anytime,

Anywhere Amanda (Anytime) around July or August 1996 and registered the copyright, together

with two other songs, in December 1996. He filed the instant action in 2005 against Samuel Tim

McGraw, the country-music recording artist who recorded and released Everywhere in 1997,
No. 13-5796
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producers James Stroud and Byron Gallimore, songwriters Craig Wiseman and Mike Reid, and

the entities that registered the copyright of Everywhere in March 1997.

         The district court dismissed Martinez’s action for failure to state a claim, Martinez

appealed, and a panel of this court reversed the dismissal of the copyright infringement claims.

No. 10-5594, order entered 8/23/11. The case proceeded on remand, and Defendants moved for

summary judgment and to exclude the reports and testimony of Martinez’s proffered expert.

Martinez opposed the motions and requested three additional depositions under Fed. R. Civ. P.

56(d).

         The district court denied Martinez’s request for additional depositions and granted

Defendants’ motion to exclude Martinez’s expert’s reports and testimony. Subsequently, the

court granted Defendants summary judgment, concluding that Martinez presented only

speculation and conjecture to support his theories of access. The district court denied Martinez’s

motion for reconsideration.

                                               II.

         We review the district court’s grant of summary judgment de novo; viewing the facts and

inferences therefrom in a light most favorable to Martinez. Zomba Enters., Inc. v. Panorama

Records, Inc., 491 F.3d 574, 581 (6th Cir. 2007). To succeed in a copyright infringement action,

Martinez must establish 1) that he owns the copyrighted creation, and 2) that the defendant

copied original elements of the work. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,

361 (1991); Jones v. Blige, 558 F.3d 485, 490-91 (6th Cir. 2009). Only the second element,

copying, is at issue here.




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                                              A. ACCESS

          Martinez argues that the district court did not apply the correct legal standard in

determining that he failed to establish access. He asserts that he is not required to show that the

purported infringer actually had access to the copyrighted material, but rather, need only show an

opportunity for access. Martinez correctly states the law; however, the district court required no

more than the opportunity for access.

          Where, as here, “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 defendant(s)

and (2) a substantial similarity between the two works.” Kohus v. Mariol, 328 F.3d 848, 853

(6th Cir. 2003); see also R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 274 (6th Cir.

2010); Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir. 1999). “Access is essentially ‘hearing or

having a reasonable opportunity to hear the plaintiff[’s] work and thus having the opportunity to

copy.’”     Ellis, 177 F.3d at 506; see also 3 William F. Patry on Copyright § 9:23 (“the

unlikelihood that copyright owners will catch many defendants in flagrante delicto has led to a

relaxed definition of access as merely a reasonable opportunity for the work to have been

available to defendant, the theory being that a reasonable person doing reasonable things would

have been exposed to plaintiff’s work.”).

          Martinez wrote Anytime for Amanda Little, the daughter of his friend Susan Tomac.

After Tomac offered to “plug” the song during a trip to Nashville in the fall of 1996, Martinez

mailed her a single demonstration cassette (demo tape) of three songs, one being Anytime. The

demo tape was labeled with Martinez’s name and phone number. Martinez acknowledged never




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giving a written copy of Anytime’s lyrics to anyone before Everywhere was released in 1997.1

There is no dispute that Anytime was never published or distributed, never received radio play, is

not available on iTunes, has not been performed by third parties, and that Martinez performed

the song only in South Texas. Defendants’ only possible access would have been through the

demo tape Martinez gave to Tomac.

        While Tomac was in Nashville in September or October 1996 she gave photographer

David Bartley the demo tape at his photo studio in Franklin, Tennessee. Tomac considered

Bartley “connected to the music industry” because “[h]e had branched out and was doing

cassette covers and album covers for Nashville singers.” PID 4900, 4902-03; 2044.

        Defendants Wiseman and Reid, professional songwriters based in Nashville, attested that

they co-wrote the music and lyrics of Everywhere around November 1996. Wiseman and Reid

recorded a demo of Everywhere, which Defendant Almo Music, a publishing company that

employed Reid and Weisman, pitched to non-party Missi Gallimore, a song selector for

Defendant McGraw.

        The copyright of Everywhere was registered on March 28, 1997, and lists Wiseman and

Reid as the “words and music” authors. In June 1997, Defendant McGraw, then a country-music

recording artist of some fame, released the album Everywhere, the title cut of which would climb

to the top of the country music Billboard chart. Martinez alleges that retail sales of Everywhere

exceeded 1,000,000 units.

        Martinez testified that he heard Everywhere on the radio “probably the year it was

released,” i.e., 1997, but that was not what prompted him to bring this action. PID 3326. Rather,

in 1997 or 1998, Martinez heard a different song, sung by Terri Clark, which had the same title

        1
        Only after Everywhere’s release in 1997 did Martinez distribute copies of Anytime to persons other than
Tomac. PID 3296, 3045-46, 3295 (“Later on in years, people would ask me for the song.”)

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as one of the three songs he copyrighted in December 1996, Easy on the Eyes, Hard on the

Heart. Upset, Martinez called and asked Tomac what his song title was doing on the radio and

to whom she had given his demo tape. Tomac responded that she gave the demo tape to

someone in Nashville she thought was “connected.” Years later, in 2005, while “plugging” his

Copyrighted Collection in Corpus Christi with a disc jockey, the disc jockey told Martinez that

Tim McGraw had already released the songs in the Collection. Martinez contends that at that

point he realized that Anytime “had also been stolen . . . by McGraw or the other Defendants.”

Suppl. Interrogatory Responses, PID 3683.

       All of Martinez’s theories of access begin with third-party Susan Tomac, undisputedly

the only person to whom he gave a taped recording of Anytime before Everywhere was released

in 1997. Tomac testified that she gave the sole tape Martinez sent her to photographer David

Bartley when she visited Nashville in the fall of 1996. Bartley was not deposed before he passed

away in 2012: Martinez relies on the testimony of Bartley’s ex-wife, Jenny Alvis,2 that Bartley

could or would have passed the demo tape to Karen Phillips, the then-owner of a pageant gown

shop in Nashville, or to country music singer Lee Greenwood. Alvis testified that Bartley

“wanted to be a big wheel” and would have jumped on an opportunity to become more involved

in the country music industry. Alvis also testified that Lee Greenwood, with whom she and

Bartley were acquainted through photography and the pageant industry, “could possibly have

been a contact for David [Bartley] to pass along the cassette,” and that Phillips, who was a friend

of Lee Greenwood’s wife, Kim, “could possibly also have been involved” in passing the demo

cassette to Lee Greenwood. PID 4919; 5235.




       2
           Bartley and Alvis separated in May 1996; their divorce was final in 1998. PID 4921.

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       On deposition, Tomac admitted having no knowledge that Bartley passed Plaintiff’s

demo tape to anyone or that anyone expressed interest in the demo tape. Alvis similarly testified

that she never saw Bartley pass a cassette tape to anyone; no one ever told her that Bartley

passed on the demo tape; she never heard Bartley mention a cassette; and she was “guessing”

that Bartley could have passed the cassette to someone he knew in the music industry. As for

Phillips, she denied ever having received a tape from either Tomac or Bartley.

       Thus, Martinez’s insistence that both Bartley and Phillips gave a copy of the demo tape to

Lee Greenwood or to Greenwood’s personal attorney, Ralph Gordon, is devoid of record

support.

       Martinez also failed to present evidence that Wiseman or Reid, the co-writers of

Everywhere, had access or a reasonable possibility of access to Anytime through third-party

intermediaries. Wiseman testified that he had never met Lee or Kim Greenwood and did not

know Susan Tomac, Karen Phillips, David Bartley or his wife, Jennie. Reid similarly testified

that he had never met David Bartley, Susan Tomac or Karen Phillips.

       Greenwood and Reid testified that they met when Greenwood’s producer and Barbara

Mandrell’s producer asked Reid to come to the studio while they were recording a duet album.

Reid played a song on the piano titled “To Me” for Greenwood, which Greenwood later

recorded. Greenwood testified that he never spoke to Reid again and Reid testified that he had

not seen Greenwood since 1984. Greenwood testified that Bartley and his wife Jennie were

acquaintances of his wife, Kim Greenwood, and he did not know either of them. Greenwood

testified that he met Terri Clark only once, during an event at a hotel, and never saw her again.

       Co-producer of Everywhere Byron Gallimore testified that he does not know Jennie

Bartley, that he met Terri Clark for the first time around 2004, and that he only met Lee


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Greenwood in the last five years. Gallimore testified that he and his wife Missi accept demo

tapes but only from major publishing companies. Co-producer James Stroud testified that he

knows Ralph Gordon but has never worked with him and did not know that Gordon is

Greenwood’s personal attorney. Stroud met Kim Greenwood around 2009 at a concert. Stroud

testified that he does not know Jennie Bartley or Karen Phillips.

       Missi Gallimore testified that she had nothing to do with the writing of Everywhere or the

creative process behind it and does not remember what song pluggers worked on that album.

She does remember that the song Everywhere was pitched to her through a song plugger at Almo

Irving and that it was a Wiseman and Reid song. She testified that she has known Wiseman

since the early 1990s and has known of Mike Reid since the early 1990s but does not think she

ever met him. Missi Gallimore testified that she knows Kim Greenwood because they both have

children at the same school. She testified that she knows Terri Clark because Byron Gallimore

produced one of her records approximately several years after co-producing Everywhere.

       Although Martinez maintains that Everywhere and Terri Clark’s You’re Easy on the Eyes

were recorded “at the same relative time” at Sound Stage Studios, from all indications, the latter

was recorded after Reid and Wiseman recorded a demo of Everywhere in November 1996, and

both testified they had nothing to do with Clark’s recording. Clark, Tom Shapiro, and Chris

Waters co-wrote You’re Easy on the Eyes, Clark released it in 1998 on Mercury Records, and

Columbia House distributed it.

       Martinez’s theories of access through third-party intermediaries fall short. The district

court properly determined that Martinez presented only “attenuated chains of hypothetical

transmittals” in support of his claim that Defendants heard or had a reasonable opportunity to

hear Anytime. See Patry on Copyright § 9:29. The chain of access vanishes after Tomac gave


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the lone demo tape to Bartley in the fall of 1996, and the hypothetical transmittals fail to support

a reasonable inference that any Defendant or associate of any Defendant received a copy of

Anytime, much less that Wiseman or Reid, the alleged infringers, heard or had a reasonable

opportunity to hear Anytime and copied it before they co-wrote Everywhere in November 1996.

       The district court did not apply an improper standard in determining that Martinez failed

to present sufficient evidence of access to survive summary judgment. As this court observed in

Blige, “[a]ccess may not be inferred through mere speculation or conjecture.” 558 F.3d at 493;

see also Ellis, 177 F.3d at 506. A plaintiff cannot rely on unsupported inferences to prove

access. See e.g., Raum v. Norwood, 93 F. App’x 693, 696-97 (6th Cir. 2004); Ellis, 177 F.3d at

506.

                                                 III.

       Martinez also argues that the district court relied on declaration evidence submitted by

Defendants McGraw, Almo Music, and Curb Records to support its grant of summary judgment

without allowing him to cross-examine, i.e., depose, them.

                                                 A.

       “If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot

present facts essential to justify its opposition, the court may: (1) defer considering the motion

or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any

other appropriate order.” Fed. R. Civ. P. 56(d). We review for abuse of discretion the denial of

a Rule 56(d) request for additional discovery. Ball v. Union Carbide Corp., 385 F.3d 713, 720

(6th Cir. 2004) (“The Sixth Circuit generally applies the abuse of discretion standard to the

district court’s decision to deny discovery whether such request was made on a motion or a Rule

56(f) [now Rule 56(d)] affidavit. See Plott [v. Gen. Motors Corp.,] 71 F.3d [1190,] 1196-97


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[(6th Cir. 1995].”) The test to determine whether discovery on a particular matter is permissible

is whether the line of interrogation is reasonably calculated to lead to the discovery of admissible

evidence. See e.g., Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976,

982 (6th Cir. 2003) (“Rule 26 provides that discovery is permissible where it ‘appears reasonably

calculated to lead to the discovery of admissible evidence.’”); Lewis v. ACB Bus. Servs., Inc.,

135 F.3d 389, 402 (6th Cir. 1998) (“The scope of examination permitted under Rule 26(b) is

broader than that permitted at trial. The test is whether the line of interrogation is reasonably

calculated to lead to the discovery of admissible evidence.”)

                                                      B.

       Martinez does not address the district court’s basis for denying the additional

depositions--that the requested depositions were not reasonably calculated to lead to discovery of

admissible evidence on the issues of access and similarity. Assuming the issue is not waived, see

e.g., Ott v. Fed. Home Loan Mortg. Corp., 535 F. App’x 488, 489 (6th Cir. 2013), we observe

that the only aspect of Martinez’s Rule 56(d) request that could relate to Defendants’ access to

Anytime--Martinez’s request that Almo Music provide the name of the person who worked with

Missi Gallimore--could have been sought by interrogatory rather than by deposing a corporate

representative of Almo.

       Because Martinez did not show that the three additional depositions were reasonably

calculated to lead to discovery of admissible evidence, the court did not abuse its discretion by

denying his Rule 56(d) request. See Goodyear Tire & Rubber Co., 332 F.3d at 982.

                                                IV.

       Martinez also argues that the district court erred by failing to compare the two works to

gauge whether they are substantially similar. In response, Defendants maintain that where a


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plaintiff fails to establish any inference of access, the court need not address substantial

similarity, the second prima facie element of a copyright infringement claim.

       Substantial similarity is determined in two steps: “[T]he first step requires identifying

which aspects of the artist’s work, if any, are protectible by copyright; the second involves

determining whether the allegedly infringing work is substantially similar to protectible elements

of the artist’s work.” Kohus v. Mariol, 328 F.3d 848, 855 (6th Cir. 2003) (internal quotations

and citations omitted); see also R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 274 (6th

Cir. 2010) (quoting Kohus, 328 F.3d at 853).

       Martinez presented no evidence that any protectible musical element of Anytime is

substantially similar to Everywhere. Martinez does not challenge the district court’s ruling that

his proffered expert, Sanders, was unqualified. Rather, Martinez argues that the district court

should have considered Sanders’s factual testimony regarding substantial similarity.         This

argument fails because Sanders relied wholly on non-party Rod Moore for his (Sanders’s)

opinion regarding whether the two works were musically substantially similar, in contravention

of Fed. R. Evid. 701(a)’s requirement that lay witness testimony be rationally based on the

witness’s perception.

       The only evidence addressing whether Everywhere is substantially similar to protectible

elements of Anywhere was the testimony of Defendants’ expert, musicologist Anthony

Ricigliano, who opined that the two works “do not share any significant similarity in lyric

content, melodic content (pitch-series, rhythm or rhythmic patterns, melodic development or

structure), or harmonic content, that rises to the level of substantial similarity of protectable

expression.” PID 5532-36.




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       Assuming that substantial similarity would be sufficient, there was no error because no

evidence was presented that protectible elements of the two works are substantially similar.

       For these reasons, we AFFIRM the grant of summary judgment to Defendants.




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