                                                                   [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS
                                                                             FILED
                                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                                       ________________________  ELEVENTH CIRCUIT
                                                                      FEBRUARY 8, 2012
                                             No. 10-14710                JOHN LEY
                                       ________________________           CLERK


                                D.C. Docket No. 1:08-cv-03386-TWT

CHARLES WATT, d.b.a. Silverhawk Records,
d.b.a. Bend Of The River Publishing,

lllllllllllllllllllllllllllllllllll                  lPlaintiff - Counter Defendant-
                                                     Appellant,

                                            versus

DENNIS BUTLER, f.k.a. Mook B,
LEFABIAN WILLIAMS, f.k.a. Fabo,
CARLOS WALKER, f.k.a. Shawty Lo,
ADRIAN PARKS, Individually and f.k.a. Stoner,
a.k.a. Stuntman,
d.b.a. D4L,
TERIYAKIE NOCODEAN SMITH, et al.,

llllllllllllllllllllllllllllllllllll                 Defendants - Counter Claimants-
                                                     Appellees,

ARTIST PUBLISHING GROUP, et al.,

                                                     Defendants.
                              ________________________

                     Appeal from the United States District Court
                        for the Northern District of Georgia
                           ________________________
                                 (February 8, 2012)

Before TJOFLAT and CARNES, Circuit Judges, and MICKLE,* District Judge.

MICKLE, District Judge:

      This is a copyright infringement case involving a repeating three-note riff,

or ostinato, used in the 2004 rap song, “Betcha Can’t Do it Like Me” (“Betcha”)

by the rap group D4L. Appellant Charles Watt claims that the riff was copied

from the group Woodlawn Click’s 1995 rap song, “Come Up.” Watt owns the

copyright to “Come Up” and he sued D4L along with others associated with

“Betcha,” including Teriyakie Smith, who claims to have composed the music for

“Betcha” in 2004 using three adjacent keys on his laptop keyboard and the “Fruity

Loops” music production software.

      The district court found that Watt presented sufficient evidence to create a

jury issue regarding (1) D4L’s access to “Come Up,” and (2) substantial similarity

between the riffs used in D4L’s “Betcha” and Woodlawn Click’s “Come Up.” The



          *
             Honorable Stephan P. Mickle, United States District Judge for the Northern
   District of Florida, sitting by designation

                                               2
district court found, however, that Watt failed to rebut Teriyakie Smith’s

testimony that he independently created the riff, and granted summary judgment in

D4L’s favor.

      We review the district court’s ruling de novo, applying the same summary

judgment standard. Calhoun v. Lillenas Publ’g, 298 F.3d 1228, 1232 (11th Cir.

2002). We examine the facts and the reasonable inferences drawn therefrom in the

light most favorable to the nonmoving party to determine whether there is any

genuine dispute of material fact for a jury to decide. Id. “We may affirm the

district court on different grounds as long as ‘the judgment entered is correct on

any legal ground regardless of the grounds addressed, adopted or rejected by the

district court.’” Id. at 1230 n.2 (quoting Ochran v. United States, 273 F.3d 1315,

1318 (11th Cir. 2001)). Because the evidence was not sufficient for Watt to

sustain a genuine dispute that “Betcha” was copied from “Come Up,” we affirm.

                                         I.

      The gravamen of a copyright infringement suit is copying. The plaintiff

must show that the defendant copied elements of an original work that is protected

by the plaintiff’s valid copyright. Id. at 1232. Direct evidence of copying is rarely

available, so the law provides a method of proving copying indirectly, which

creates a presumption of copying that may be negated with evidence of

                                          3
independent creation. Id.; Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1249

(11th Cir. 1999).

      A plaintiff can establish prima facie evidence of copying by showing (1)

that the defendant had access to the plaintiff’s work; that is, a reasonable

opportunity to come across the work, and (2) that there is a substantial similarity

between plaintiff’s and defendant’s work; that is, an average lay observer would

recognize defendant’s work as having been taken from plaintiff’s work. Calhoun,

298 F.3d at 1232, 1234 n.11. If the plaintiff is able to make the showing, then a

presumption of copying arises and the burden of production shifts to the

defendant. Id. at 1232; see also Keeler Brass Co. v. Cont’l Brass Co., 862 F.2d

1063, 1066-67 (4th Cir. 1988) (discussing presumptions and burdens in copyright

cases). A defendant can negate the presumption of copying by presenting

evidence that he independently created the work. Calhoun, 298 F.3d at 1232.

Once the defendant does so, the presumption is negated and the plaintiff has the

burden of proving that the defendant in fact copied his work. Id.

      In this case, both sides take issue with the district court’s summary

judgment ruling. The appellees (collectively “D4L”) argue that Watt did not

present a prima facie case of copying because Watt’s evidence of access and

substantial similarity was insufficient to sustain a genuine dispute. Watt, on the

                                          4
other hand, argues that D4L’s evidence of independent creation was self-serving

and not sufficient to rebut the presumption of copying that arose from its prima

facie case. We find that Watt’s evidence of access was too speculative and

conjectural to make out a prima facie case. Furthermore, summary judgment was

appropriately granted against Watt because he could not sustain a genuine dispute

regarding copying.

                                         II.

      It is common in the rap industry for budding artists to distribute their music

by selling or giving away copies on the street. Watt claimed that between 1996

and 2005, he and others sold or gave away 12,000 to 15,000 compact discs

featuring Woodlawn Click’s “Come Up” throughout the Southeast United States,

including the Atlanta area where members of D4L and Teriyakie Smith are from.

“Come Up” was never commercially distributed.

      During the 1995-1999 time period, Woodlawn Click performed “Come Up”

at least 50 times in venues in the Atlanta area, including popular nightclubs, music

festivals, and the Jack the Rapper Convention. A music video for “Come Up” was

broadcast on the television shows “Front Row Video” and “Comic Escape” in the

Atlanta area. A 41-second portion of “Come Up” was included in the film “Dirty

South,” which was never commercially released but premiered to an audience of

                                         5
several hundred in Atlanta. Also, the soundtrack album for the film included

“Come Up,” although it had virtually no sales.

      The members of D4L and Teriyakie Smith denied that they ever heard

“Come Up” or of the group Woodlawn Click. They never saw the television

programs where “Come Up” might have played. They did not see the movie

“Dirty South” or hear its soundtrack. Furthermore, Teriyakie Smith was born in

1985. During the 1995-1999 time period, he was only 10 to 14 years old. He was

too young to go to clubs where “Come Up” may have been performed.

      To establish access, a plaintiff must have more than mere speculation and

conjecture. Herzog, 193 F.3d at 1250. There must be a reasonable possibility that

the defendant came across the plaintiff’s work. Id. Here, the chance that members

of D4L or Teriyakie Smith came across “Come Up” from a street copy is

exceedingly slim considering the population of the Southeastern United States,

where Watt says the song was handed out, compared to the number of copies

handed out during the nine year period between 1996 and 2005. The same can be

said for the performances of “Come Up” in the Atlanta area considering all the

other rap music performances taking place during the 1995-1999 time period

compared to the limited number of engagements that Woodlawn Click had.

      Watt’s evidence of access depends largely on the assumption that members

                                        6
of the Atlanta rap community share music among themselves and that the song

“Come Up” became popular and was widely shared for many years so as to

multiply its distribution. Otherwise, it would hardly be possible for members of

D4L, or Teriyakie Smith in particular, to have had access to “Come Up.” This

assumption is too conjectural and speculative to sustain a genuine dispute. There

is no evidence that “Come Up” ever caught on in popularity. To the contrary,

neither the song “Come Up” nor the group Woodlawn Click became a commercial

success.

                                             III.

         On the issue of substantial similarity, Watt was required to show that an

average lay observer would recognize “Betcha” as having been taken from “Come

Up.” Calhoun, 298 F.3d at 1232 (11th Cir. 2002). The two songs are both in the

rap genre. Yet, they do not sound alike upon casual listening. It is only when one

focuses on the riff that a similar repeating pattern can be heard underlying both

songs.

         A riff can constitute a copyrightable element if it is original and important

to the overall impression of the work.1 D4L does not argue that the riff from


            1
            See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 588-89, 114 S.Ct.
   1164, 1169, 1176 (1994) (acknowledging that the opening bass riff and first words of Ray
   Orbison’s “Pretty Woman” could be characteristic features that go to the heart of the

                                              7
“Come Up” is uncopyrightable. Instead they focus on other differences between

the songs to argue that the songs are not substantially similar. It is only the riff,

however, that Watt contends D4L copied.

      Watt’s expert prepared a chart showing a visual comparison of the riffs

using cipher notation.

      Come Up         |321--32|1---3-2-|321---32|1--1345-|

      Betcha          |321--32|1--------|321---32|1---------|

The notation shows some transition notes marked in italicized print in “Come Up”

that are not included in “Betcha.” (Font altered from shaded to italicized). The

main notes and the rests between them, marked with dashes, are the same. Watt’s

expert concluded that other than the lack of the transitional notes, the pattern is

identical. Listening to the two songs confirms this. An average lay observer

would likely recognize the riffs as being the same.

      As for differences in the use of the riff, the riff in “Betcha” is prominent. In

fact, there is little else to the song aside from the riff and the vocals. A listener can

easily identify the riff, which is repeated throughout the song. Likewise in “Come



   work and 2 Live Crew’s use of these features would constitute a violation of the
   copyright act if not for fair use parody); Fred Fisher, Inc. v. Dillingham, 298 F.145, 147
   (D.C.N.Y. 1924) (Learned Hand, J.) (“[P]largarism of any substantial component part,
   either in melody or accompaniment, would be the proper subject of such a [copyright]
   suit as this.”).

                                                8
Up” a listener can hear the riff prominently at the beginning of the song. The riff

falls into the background when the vocals and another melody are added, making

it difficult to hear at times. The riff, though, is arguably a substantial component

of “Come Up” that is repeated throughout the song.

      The district court concluded that Watt could show that “Come Up” and

“Betcha” were substantially similar because the riff, which is a copyrightable

element, is the same in both songs. We agree. The main portion of the riff, which

is a copyrightable feature, sounds the same in both songs and is repeated

throughout both songs.

                                              III.

      The evidence of independent creation comes from Teriyakie Smith’s

testimony that he wrote the music for “Betcha,” and specifically the riff, in 2004

using three adjacent keys on his laptop keyboard and the “Fruity Loops” music

production software. The district court accepted this testimony and found that it

rebutted the presumption of copying that arose from Watt’s prima facie case.2


          2
             Watt argues that the district court treated the evidence of independent creation
   as an affirmative defense. He is not correct. Negation of a presumption is different
   from an affirmative defense. See Calhoun, 298 F.3d at 1230 n.3 (“It should be
   emphasized that independent creation is not an affirmative defense (i.e. a claim
   extraneous to the plaintiff’s prima facie case). Rather, independent creation attempts to
   prove the opposite of the Calhoun’s primary claim, i.e., copying by McGee. Keeler Brass
   Co. v. Cont’l Brass Co., 862 F.2d 1063, 1066 (4th Cir. 1988)”).

                                               9
      Proof of access and substantial similarity give rise to a presumption of

copying that is fully negated when uncontradicted testimony of independent

creation is produced. Calhoun, 298 F.3d at 1233. The testimony of Teriyakie

Smith, though not corroborated by documentary evidence or by a disinterested

third-party, was plausible. We agree with the district court’s determination that

the evidence met the burden of production. As a result, even if Watt had made out

a prima facie case based on a showing of access and substantial similarity, the

evidence of independent creation would have negated the presumption of copying

that arose from Watt’s prima facie case.

                                           IV.

      As we have already mentioned, Watt failed to create a genuine issue of fact

about access. Watt also argued, however, that “Betcha” and “Come Up” are

strikingly similar. Striking similarity evidence is generally considered to be a

substitute for access. Herzog, 193 F.3d at 1248. The district court considered

Watt’s argument about striking similarity and found that it did not rebut the

defendants’ uncontradicted evidence of independent creation.

      When a plaintiff in a copyright action cannot demonstrate access, “he may,

nonetheless, establish copying by demonstrating that his original work and the

putative infringing work are strikingly similar.” Corwin v. Walt Disney, 475 F.3d

                                           10
1239, 1253 (11th Cir. 2007). Strikingly similar means that “the proof of similarity

in appearance is ‘so striking that the possibilities of independent creation,

coincidence and prior common source are, as a practical matter, precluded.’” Id.

(quoting Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 1984)).

      The district court reviewed Watt’s evidence of striking similarity not as a

substitute for evidence of access, which it found Watt had established, but as a

rebuttal to Teriyakie Smith’s testimony of independent creation and in determining

whether Watt could meet his ultimate burden of persuasion. Whichever way the

evidence is treated, Watt cannot show striking similarity.

      A plaintiff claiming striking similarity must present evidence that the

similarities between the two works are unique or complex. Selle v. Gibb, 741 F.2d

896, 904 (7th Cir. 1984). This requirement is “particularly important with respect

to popular music, ‘in which all songs are relatively short and tend to build on or

repeat a basic theme.’” Benson v. Coca-Cola Co., 795 F.2d 973, 975 n.2 (11th Cir.

1986) (quoting Selle, 741 F.2d at 905).

      In this case, the riff is not so complex or unique so as to preclude the

possibility of independent creation, despite Watt’s expert’s conclusion. Indeed,

the simplicity of the riff is what makes Teriyakie Smith’s testimony of

independent creation plausible.

                                          11
                                         V.

      In conclusion, we find that the district court did not err when it granted

summary judgment against Watt on his copyright claim. Watt did not create a

genuine issue of material fact about access. Watt did not contradict Teriyakie

Smith’s testimony of independent creation. Overall, Watt was unable to sustain a

genuine issue of copying.

      AFFIRMED.




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