                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-30-2004

Cottrill v. Spears
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2717




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                                          NOT PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 03-2717


          MICHAEL COTTRILL;
       LAWRENCE E. WNUKOWSKI,

                            Appellants

                       v.

         BRITNEY SPEARS;
  ZOMBA RECORDING CORPORATION,
      ZOMBA ENTERPRISES, INC.,
        ZOMBA SONGS, INC.;
           JIVE RECORDS;
   WRIGHT ENTERTAINMENT GROUP;
    BMG MUSIC PUBLISHING, INC.


On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
         (D.C. Civil No. 02-cv-03646)
  District Judge: Honorable Berle M. Schiller


          Argued: January 12, 2004


          Before: BARRY, SMITH,
      and GREENBERG Circuit Judges,

           (Filed: January 30, 2004)
George Bochetto, Esq. [Argued]
Gavin P. Lentz, Esq.
David P. Heim, Esq.
Vincent van Laar, Esq.
Bochetto & Lentz
1524 Locust Street
Philadelphia, Pennsylvania 19102
                                   Attorneys for Appellants

Michael T. Mervis, Esq. [Argued]
Proskauer Rose
1585 Broadway
New York, New York 10036

Vincent V. Carissimi, Esq.
Pepper Hamilton
3000 Two Logan Square
Eighteenth & Arch Streets
Philadelphia, Pennsylvania 19103
                                   Attorneys for Appellees




                               OPINION OF THE COURT


SMITH, Circuit Judge.

       Michael Cottrill and Lawrence N. Wnukoski bring this copyright infringement

suit, claiming that defendants infringed upon their song “What You See is What You

Get” (“What You See”). The District Court granted summary judgment for the

defendants. Plaintiffs appeal from that decision.

                                            I.

       Sometime in early 1995, plaintiffs Michael Cottrill and Lawrence Wnukowski met



                                             2
with performer Britney Spears and her then-agent William Kahn. Kahn urged Cottrill and

Wnukowski to write songs for Spears. After a subsequent lapse in his relationship with

Spears, Kahn re-established a business relationship with her, which included scouting for

song material for her. Kahn again requested that Cottrill and Wnukowski compose music

for Spears.

       On or about August 17, 1999, Per Magnusson, Jörgen Elofsson, Rami Yacoub, and

David Kreuger began working on a song originally entitled Latin Song, written for Zomba

Recording Corporation’s (“Zomba Records”) artist Spears. On October 28, 1999, Spears

flew to Stockholm, Sweden to record songs for her upcoming album Ooops! . . . I Did it

Again. While in Stockholm, Spears recorded the lyrics for Latin Song, which was retitled

What U See (Is What U Get)(“What U See”). Spears departed Sweden on November 8,

1999. She never re-recorded the vocals for What U See after that date. The song

continued to be mixed1 until May 2000, when it was copyrighted and released.

       Wnukowski and Cottrill registered What You See with the United States Copyright

Office on December 1, 1999. Wnukowski and Cottrill did not distribute copies of the

song until after it was copyrighted.2 Once copyrighted, Cottrill and Wnukowski


 1
  Yacoub described mixing as “taking bits and pieces that you already have and just
making all these things sound as good as possible together.”
 2
   Plaintiffs suggest in their brief that Kahn heard an earlier version of What You See
when Cottrill played it on the piano prior to the lyrics being recorded. However, at oral
argument before the District Court, plaintiffs’ counsel conceded that “there’s no
allegation in this case that what was infringed was an early rough version of ‘What You
See is What You Get,’ the plaintiffs’ song without the lyrics.” Plaintiffs’ counsel directed

                                             3
forwarded the song to Kahn. Cottrill claims that he hoped Kahn would forward the

materials to Steven Lunt, an employee of Zomba Records, then acting as Spears’ agent.

Kahn, however, denied ever having given the song to anyone after he received it from

Cottrill and Wnukowski. He explained that he did not think it was a “good song.”

       Cottrill also provided a copy of the song to a professional associate, Lance

Lowenstein, who subsequently forwarded the song to Louis Pearlman. Pearlman was the

President and CEO of Trans Continental Companies. According to plaintiffs, Pearlman

was the individual who put together the hit group the Backstreet Boys, a group which had

recorded music with Zomba Records. This previous relationship between Pearlman and

Zomba notwithstanding, Pearlman had no direct contractual or employment relationship

with Zomba Records. 3

                                            II.

       Plaintiffs filed a complaint alleging copyright infringement on June 7, 2002.

Plaintiffs sued Spears, as well as Zomba Records, Jive Records, its parent company

Zomba Enterprises, Inc., and BMG M usic Publishing, Inc. On April 14, 2003 defendants

moved for summary judgment.

       The District Court held that plaintiffs had not established that defendants had any


the District Court’s attention to the complaint clarifying that only access to the
copyrighted material was at issue. We, therefore, do not address the possibility of access
to an earlier instrumental version.
 3
  Cottrill and Wnukowski gave the tape to another individual, Jeff Townes. Plaintiffs do
not claim any direct relationship between Townes and Zomba records.

                                             4
meaningful access to What You See before the song was copyrighted. Because defendants

had no access to What You See until after Spears recorded the vocals to What U See, the

District Court required plaintiffs to show that defendants actually changed What U See

after gaining access to What You See. The District Court concluded that plaintiffs could

not meet this burden. Further, the District Court determined that plaintiffs’ expert

addressed only the aural similarity, as opposed to actual similarity of the two songs, and

therefore failed to establish a genuine issue of material fact as to actual copying. After

the District Court granted defendants’ motion for summary judgment, this timely appeal

followed.4

                                              III.

       In order to establish a claim of copyright infringement, a plaintiff must prove: (1)

ownership of a valid copyright, and (2) copying of constituent elements of the work that

are original. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (citing

Harper & Row Publishers v. Nation Enters., 471 U.S. 539, 548 (1985)). The first prong

of the test is not at issue,5 but the parties hotly contest whether plaintiffs established a

genuine issue of material fact with respect to the second.



  4
  The District Court had jurisdiction pursuant to 28 U.S.C. § 1400(a). We exercise
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
  5
  It is undisputed that the subject work was copyrighted and that the plaintiff hold a
copyright registration certificate. Such a certificate is prima facie evidence sufficient to
meet the first prong of the copyright infringement test. See 17 U.S.C. § 410(c); Ford
Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 290-91 (3d Cir. 1991).

                                               5
       Copying under Feist may be proven circumstantially by demonstrating (1) that the

defendant had access to the allegedly infringed copyrighted work, and (2) that the

allegedly infringing work is substantially similar to the copyrighted work. Dam Things

From Denmark v. Russ Berrie and Co., Inc., 290 F.3d 548, 561 (3d Cir. 2002).

       To meet the first prong of Dam Things, plaintiffs are not required to prove by

direct evidence that defendants gained access to plaintiffs’ work. Instead, access can be

inferred by indirect evidence. Boisson v. Banian, Ltd., 273 F.3d 262, 269 (2d Cir. 2001).

The indirect evidence must simply show that there is a “reasonable possibility of access.”

Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir. 1988) (citing Ferguson v. National

Broadcasting Co., 584 F.2d 111, 113 (5th Cir. 1978), and 3 M. & D. Nimmer, N IMMER

ON C OPYRIGHT   § 13.02[A] (1988)). Thus, where there is a “relationship linking the

intermediary and the alleged copier,” access may be inferred. Moore v. Columbia Pictures

Indus., Inc., 972 F.2d 939, 942 (8th Cir. 1992) (internal quotations omitted); Towler v.

Sayles, 76 F.3d 579, 582 (4th Cir. 1996).6



 6
   Plaintiffs urge that the requisite connection may be looser where the third party is a
corporation. The Eighth Circuit has articulated this corporate receipt doctrine as follows:

       If the defendant is a corporation, the fact that one employee of the
       corporation has possession of the plaintiff’s work should warrant a finding
       that another employee (who composed defendant’s work) had access to
       plaintiff’s work, where by reason of the physical propinquity between the
       employees the latter has the opportunity to view the work in the possession
       of the former.

Moore, 972 F.2d at 942 (quoting 3 N IMMER ON C OPYRIGHT § 13.02[A]); see also Bouchat

                                             6
       Regardless of the means by which plaintiffs allege that defendants gained access to

the infringed work, that access must be meaningful. Plaintiffs must show that defendants

had an “opportunity to view or to copy his work.” Moore, 972 F.2d at 942 (internal

quotations removed); Kamar Int’l, Inc. v. Russ Berrie & Co., 657 F.2d 1059, 1062 (9th

Cir. 1981). If the only opportunity to view plaintiffs’ work occurs after defendants have

completed their own work, then there can be no opportunity to copy the work, and thus no

access for purposes of copyright law. See Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 1984)

(“[If] the plaintiff admits to having kept his or her creation under lock and key, it would

seem logically impossible to infer access . . . .”). Here, Cottrill and Wnukowski failed to

show that the defendants had meaningful access to plaintiffs’ song prior to the defendants

recording the allegedly infringing song, What U See.

       Plaintiffs argue that, although they did not copyright their song What You See until

after Spears had already recorded her vocals to the allegedly infringing song What U See,

they adduced evidence to show that defendants’ access to plaintiffs’ song was

meaningful. Plaintiffs point to the declaration of George Hajioannou, a musical

technician, that it was possible to change the “instrumental and vocal track” of a piece of

music using the software employed by the defendants to mix What U See. Plaintiffs



v. Baltimore Ravens, Inc., 241 F.3d 350, 354 (4th Cir. 2001) (faxing logo to employee of
Baltimore Ravens who shared an office with the new logo’s designer was sufficient to
prove access). Because we find plaintiff cannot show any meaningful access by
defendants to plaintiffs’ song What You See, we need not address whether the corporate
receipt doctrine is viable, or should be adopted, in the Third Circuit.

                                              7
reason that, because a change was possible, they are entitled to an inference that

defendants did change their song, What U See, after having access to What You See. We

disagree. “Access must be more than a bare possibility and may not be inferred through

speculation or conjecture.” Gaste, 863 F.2d at 1066. By arguing no more than what is

technically possible, plaintiffs engage in speculation that defendants altered What U See

after December 1999. Speculation is no substitute for the kind of circumstantial evidence

needed to preclude the entry of summary judgment.

       In order to establish a genuine issue of material fact on summary judgment,

plaintiffs “must do more than simply show that there is some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). Plaintiffs have not met that burden here. Defendants put forward affidavits and

deposition testimony from the song writers that they made no changes to the melody and

basic structure of What U See after Spears recorded the vocal track. The District Court

correctly determined that plaintiffs’ theory essentially required it to impermissibly find

defendants’ affiants’ testimony incredible while at the same time inferring a fact for

which plaintiffs provided no evidence. It is therefore unnecessary to determine whether

plaintiffs put forward a viable theory of from whom defendants could have obtained

access to What You See or if they adequately demonstrated substantial similarity.

       Because plaintiffs cannot show that defendants had access to What You See prior

to completing What U See, the District Court’s grant of summary judgment was proper.



                                              8
We therefore affirm the District Court’s grant of summary judgment in favor of the

defendants.




TO THE CLERK:

      Please file the foregoing Opinion.




                                           By the Court,

                                              /s/ D. Brooks Smith
                                           Circuit Judge




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