Bare Corporate Receipt Doctrine Less Help to Copyright Plaintiffs

The first line of defense in most copyright infringement actions revolves around the question of “access” ' namely, whether the defendant had a reasonable possibility of viewing or hearing the plaintiff's work such that the defendant could have copied it illegally. Absent some direct proof that the defendant actually copied the plaintiff's work ' evidence that typically is not present ' a plaintiff will attempt to prove such copying indirectly by establishing that a defendant had access to the plaintiff's work and that the defendant's work is “substantially similar” to the plaintiff's.

The U.S. Court of Appeals for the Second Circuit has made it more difficult for plaintiffs to prove access. Specifically, in the Second Circuit's view, a company's “bare corporate receipt” of a plaintiff's work is insufficient proof of access.

In the entertainment arena, copyright plaintiffs alleging infringement of their creative works by large media companies often seek to establish access simply by proving that they sent an unsolicited copy of their work ' eg, a demonstration tape of a song, a written treatment for a TV show or a film screenplay ' to the media company that released the allegedly infringing work. Occasionally, courts have accepted such arguments under the legal doctrine of bare corporate receipt ' a spurious doctrine that enables a plaintiff to create a jury question on access simply by proving that someone at the company that released the allegedly infringing work received the plaintiff's work. The Second Circuit has held instead that in order to create a jury question on access, a plaintiff must have evidence that the plaintiff's work was conveyed to the artists who created the allegedly infringing work. If not, the court has made clear that summary judgment is required notwithstanding receipt of the plaintiff's work by the defendant corporation.

John L. Jorgensen, a musician and songwriter, wrote and copyrighted a song entitled “Long Lost Lover.” He brought a pro se action alleging that his song was infringed by two different works ' the Academy Award-winning theme song

“My Heart Will Go On” from the movie “Titanic” (manufactured and distributed by defendant Sony Music Entertainment and published by several other defendants) and “Amazed,” a song recorded by the country music group Lonestar and released on their multi-platinum album “Lonely Grill” (published by Careers BMG Music Publishing and several other music publishing company defendants). The district court granted all of the defendants' motions for summary judgment on the ground that the plaintiff had alleged nothing beyond the defendants' bare corporate receipt of his song, and that such receipt was insufficient evidence of access to support a copyright infringement claim.

On appeal the Second Circuit affirmed in part and reversed in part. Jorgensen v. Epic/Sony Records, 351 F.3d 46 (2d Cir. 2003). The court first quickly dismissed the plaintiff's argument that he had demonstrated access by virtue of a mass mailing of his work to scores of record and music publishing companies, including the defendants. The court noted that Jorgensen failed to provide any reasonable documentation that he actually mailed his work, or when or to whom the work purportedly was sent. The court then turned to the plaintiff's more narrow theory of access: that receipt by itself of his work by executives at defendants BMG and Sony constituted sufficient proof of access. As to the BMG executive, the appeals court noted that the executive testified that he had no relationship with any songwriters, that he never even listened to, let alone forwarded to anyone else, the plaintiff's work, and that the plaintiff's sole argument to negate this showing was the conjecture that “anything and everything can very well happen.”

Thus, the court affirmed the district court's grant of summary judgment to BMG and its related defendants, concluding that the plaintiff failed to demonstrate any evidence to support a nexus between the recipient of the work (the BMG executive) and the alleged infringers (the writers of “Amazed”). In so holding, the court flatly rejected the so-called bare corporate receipt doctrine, expressly overruling Bevan v. Columbia Broad. Sys., Inc., 329 F. Supp. 601 (S.D.N.Y. 1971), an influential district court decision that some courts and commentators had cited, improperly in the Second Circuit's view, as authority for that doctrine. The appeals court specifically held that the “[b]are corporate receipt of Jorgensen's work, without any allegation of a nexus between the recipients and the alleged infringers, is insufficient to raise a triable issue of access.”

Evidentiary Issue Remains

The appeals court went on, however, to reverse the district court's grant of summary judgment to Sony and the related defendants associated with “My Heart Will Go On.” The appeals court criticized the district court's conclusion that the plaintiff failed to establish a nexus between the executive at Sony who received the plaintiff's work and the songwriters of “My Heart Will Go On.” In the Second Circuit's view, the lower court ignored evidence (essentially Jorgensen's disputed deposition testimony) that the Sony executive sent the plaintiff's work to Sony's A&R Department, and Sony's “admission” that the A&R Department occasionally showed works “solicited” by it to writers, producers or musicians “affiliated” with Sony. The appeals court noted that it was not clear in the record whether the allegedly infringing songwriters were in fact “affiliated” with Sony in the period between Jorgensen's sending of his tapes to Sony and the defendants' publishing of their song ' evidence the appeals court held was necessary for the plaintiff to establish a link between his work and the artists responsible for the alleged infringement. Nonetheless, because the defendants didn't support their summary judgment motion with evidence showing a lack of such a relationship, the appeals court reversed and remanded for further discovery into the question of the timing of the songwriters' affiliation with Sony.

Nevertheless, the Second Circuit's clear rejection of the bare corporate receipt doctrine in Jorgensen was not lessened by the reversal of the district court's grant of summary judgment to Sony and the related publishing companies. The court reversed that judgment only because Jorgensen arguably had come forward with some evidence first connecting the corporate executive who received Jorgensen's work with Sony's A&R Department and then arguably connecting that department with its “affiliated” songwriters.

But the Second Circuit appears to have misconstrued the record in reaching the conclusion that Jorgensen possibly could have proven access on that basis. Missing from the chain of possible events is any evidence, or admission by Sony, that Sony's A&R Department ever solicited any material from the Sony executive or that the department ever forwarded to any “affiliated” songwriter any material merely received by the department (as opposed to affirmatively solicited by it).

Thus, it appears that the record before the court did foreclose any possibility of access, regardless of whether the songwriters at issue were affiliated with Sony, and that the grant of summary judgment to Sony (and related publishers) should have been affirmed. In any event, in giving Jorgensen a second chance to make a showing of access, the court observed that he was a pro se litigant who may not have “appreciated the need” to develop in discovery proof of any “affiliation” between Sony and the relevant songwriters.

In sum, Jorgensen's clear holding is that, even where a plaintiff produces evidence that his work was forwarded by a corporate executive to a corporate department, such as Sony's A & R Department, with direct relationships with creative artists, a defendant is entitled to summary judgment if it produces uncontroverted evidence that the relevant artists had no affiliation with that department at the relevant time, or that those artists nonetheless had no personal access to the plaintiff's work. And where a plaintiff's only evidence of access is receipt of his or her work by a corporate executive with no direct relationship to creative artists, and who never sends the plaintiff's work to anyone in the company with such a relationship ' such as the receipt of Jorgensen's song by the BMG executive ' Jorgensen squarely holds that the plaintiff fails as a matter of law to prove access.

Of course, the best protection against such copyright claims would be for large entertainment companies to develop and implement policies designed to prevent corporate executives from receiving or reviewing outside, unsolicited submissions ' including policies ensuring that unsolicited submissions are returned to the sender with written notice that the company does not accept unsolicited material. Even so, Jorgensen's clear rejection of the “bare corporate receipt” doctrine ' a decision that is bound to be influential throughout the federal courts ' should provide substantial legal protection against copyright claims by plaintiffs who send unsolicited submissions to large media companies with the hope of creating an inference of access to prop up what might be an otherwise frivolous copyright infringement claim.

The first line of defense in most copyright infringement actions revolves around the question of “access” ' namely, whether the defendant had a reasonable possibility of viewing or hearing the plaintiff's work such that the defendant could have copied it illegally. Absent some direct proof that the defendant actually copied the plaintiff's work ' evidence that typically is not present ' a plaintiff will attempt to prove such copying indirectly by establishing that a defendant had access to the plaintiff's work and that the defendant's work is “substantially similar” to the plaintiff's.

The U.S. Court of Appeals for the Second Circuit has made it more difficult for plaintiffs to prove access. Specifically, in the Second Circuit's view, a company's “bare corporate receipt” of a plaintiff's work is insufficient proof of access.

In the entertainment arena, copyright plaintiffs alleging infringement of their creative works by large media companies often seek to establish access simply by proving that they sent an unsolicited copy of their work ' eg, a demonstration tape of a song, a written treatment for a TV show or a film screenplay ' to the media company that released the allegedly infringing work. Occasionally, courts have accepted such arguments under the legal doctrine of bare corporate receipt ' a spurious doctrine that enables a plaintiff to create a jury question on access simply by proving that someone at the company that released the allegedly infringing work received the plaintiff's work. The Second Circuit has held instead that in order to create a jury question on access, a plaintiff must have evidence that the plaintiff's work was conveyed to the artists who created the allegedly infringing work. If not, the court has made clear that summary judgment is required notwithstanding receipt of the plaintiff's work by the defendant corporation.

John L. Jorgensen, a musician and songwriter, wrote and copyrighted a song entitled “Long Lost Lover.” He brought a pro se action alleging that his song was infringed by two different works ' the Academy Award-winning theme song

“My Heart Will Go On” from the movie “Titanic” (manufactured and distributed by defendant Sony Music Entertainment and published by several other defendants) and “Amazed,” a song recorded by the country music group Lonestar and released on their multi-platinum album “Lonely Grill” (published by Careers BMG Music Publishing and several other music publishing company defendants). The district court granted all of the defendants' motions for summary judgment on the ground that the plaintiff had alleged nothing beyond the defendants' bare corporate receipt of his song, and that such receipt was insufficient evidence of access to support a copyright infringement claim.

On appeal the Second Circuit affirmed in part and reversed in part. Jorgensen v. Epic/Sony Records , 351 F.3d 46 (2d Cir. 2003). The court first quickly dismissed the plaintiff's argument that he had demonstrated access by virtue of a mass mailing of his work to scores of record and music publishing companies, including the defendants. The court noted that Jorgensen failed to provide any reasonable documentation that he actually mailed his work, or when or to whom the work purportedly was sent. The court then turned to the plaintiff's more narrow theory of access: that receipt by itself of his work by executives at defendants BMG and Sony constituted sufficient proof of access. As to the BMG executive, the appeals court noted that the executive testified that he had no relationship with any songwriters, that he never even listened to, let alone forwarded to anyone else, the plaintiff's work, and that the plaintiff's sole argument to negate this showing was the conjecture that “anything and everything can very well happen.”

Thus, the court affirmed the district court's grant of summary judgment to BMG and its related defendants, concluding that the plaintiff failed to demonstrate any evidence to support a nexus between the recipient of the work (the BMG executive) and the alleged infringers (the writers of “Amazed”). In so holding, the court flatly rejected the so-called bare corporate receipt doctrine, expressly overruling Bevan v. Columbia Broad. Sys., Inc ., 329 F. Supp. 601 (S.D.N.Y. 1971), an influential district court decision that some courts and commentators had cited, improperly in the Second Circuit's view, as authority for that doctrine. The appeals court specifically held that the “[b]are corporate receipt of Jorgensen's work, without any allegation of a nexus between the recipients and the alleged infringers, is insufficient to raise a triable issue of access.”

Evidentiary Issue Remains

The appeals court went on, however, to reverse the district court's grant of summary judgment to Sony and the related defendants associated with “My Heart Will Go On.” The appeals court criticized the district court's conclusion that the plaintiff failed to establish a nexus between the executive at Sony who received the plaintiff's work and the songwriters of “My Heart Will Go On.” In the Second Circuit's view, the lower court ignored evidence (essentially Jorgensen's disputed deposition testimony) that the Sony executive sent the plaintiff's work to Sony's A&R Department, and Sony's “admission” that the A&R Department occasionally showed works “solicited” by it to writers, producers or musicians “affiliated” with Sony. The appeals court noted that it was not clear in the record whether the allegedly infringing songwriters were in fact “affiliated” with Sony in the period between Jorgensen's sending of his tapes to Sony and the defendants' publishing of their song ' evidence the appeals court held was necessary for the plaintiff to establish a link between his work and the artists responsible for the alleged infringement. Nonetheless, because the defendants didn't support their summary judgment motion with evidence showing a lack of such a relationship, the appeals court reversed and remanded for further discovery into the question of the timing of the songwriters' affiliation with Sony.

Nevertheless, the Second Circuit's clear rejection of the bare corporate receipt doctrine in Jorgensen was not lessened by the reversal of the district court's grant of summary judgment to Sony and the related publishing companies. The court reversed that judgment only because Jorgensen arguably had come forward with some evidence first connecting the corporate executive who received Jorgensen's work with Sony's A&R Department and then arguably connecting that department with its “affiliated” songwriters.

But the Second Circuit appears to have misconstrued the record in reaching the conclusion that Jorgensen possibly could have proven access on that basis. Missing from the chain of possible events is any evidence, or admission by Sony, that Sony's A&R Department ever solicited any material from the Sony executive or that the department ever forwarded to any “affiliated” songwriter any material merely received by the department (as opposed to affirmatively solicited by it).

Thus, it appears that the record before the court did foreclose any possibility of access, regardless of whether the songwriters at issue were affiliated with Sony, and that the grant of summary judgment to Sony (and related publishers) should have been affirmed. In any event, in giving Jorgensen a second chance to make a showing of access, the court observed that he was a pro se litigant who may not have “appreciated the need” to develop in discovery proof of any “affiliation” between Sony and the relevant songwriters.

In sum, Jorgensen's clear holding is that, even where a plaintiff produces evidence that his work was forwarded by a corporate executive to a corporate department, such as Sony's A & R Department, with direct relationships with creative artists, a defendant is entitled to summary judgment if it produces uncontroverted evidence that the relevant artists had no affiliation with that department at the relevant time, or that those artists nonetheless had no personal access to the plaintiff's work. And where a plaintiff's only evidence of access is receipt of his or her work by a corporate executive with no direct relationship to creative artists, and who never sends the plaintiff's work to anyone in the company with such a relationship ' such as the receipt of Jorgensen's song by the BMG executive ' Jorgensen squarely holds that the plaintiff fails as a matter of law to prove access.

Of course, the best protection against such copyright claims would be for large entertainment companies to develop and implement policies designed to prevent corporate executives from receiving or reviewing outside, unsolicited submissions ' including policies ensuring that unsolicited submissions are returned to the sender with written notice that the company does not accept unsolicited material. Even so, Jorgensen's clear rejection of the “bare corporate receipt” doctrine ' a decision that is bound to be influential throughout the federal courts ' should provide substantial legal protection against copyright claims by plaintiffs who send unsolicited submissions to large media companies with the hope of creating an inference of access to prop up what might be an otherwise frivolous copyright infringement claim.