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Complaining Work

Defending Work

Suzane McKinley

"I Think About You"

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Steve Seskin and Collin Raye

"I Think About You"

Hear Sound Recording

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Comment

Over the past twenty-five years or so, recording technologies that produce good quality audio recordings have become inexpensive and accessible to virtually anyone, at least in the U.S. Now anyone can compose original musical works, usually by imitating the sounds of existing recordings of popular works. A consequence of this essentially witless approach to music composition has been an increase in the significance of the lyrics; popular songwriters are typically musically, but not verbally, illiterate.

Suzane McKinley joins a growing line of plaintiffs who have unsuccessfully pursued hugely popular performers like Michael Jackson, Bob Dylan, and Mariah Carey. In McKinley's, as in these earlier cases, the failed claim originated not so much from the plaintiff's noting musical similarities between the contested works, but rather the fact that the defending work shared a distinctive word or short verbal expression with the plaintiff's.

Sony Music's website says that in "I Think About You" Collin Raye takes on the role of a watchful father – indeed, based on the execrable lyrics of the song, I might prefer to be orphaned:

When I see a pretty woman walkin' down the street --
I think about you.
Men look her up and down like she's some kinda treat --
I think about you.

 

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Opinion by Judge Jorge A. Solis

Presently before the Court is Defendants' Second Motion for Summary Judgment, 1 filed on December 23, 1998. Plaintiff filed a Response on January 4, 1999 and Defendants filed a Reply on January 8, 1999. For the reasons set forth below, the Court is of the opinion that Defendants' motion should be GRANTED.

On March 10, 1998, the Court entered an Order ("March 10 Order") which denied Defendants' First Motion for Summary Judgment. 2 In that Order, the Court found there was a reasonable possibility that Defendants had access to Plaintiff Suzane McKinley's ("McKinley") song. In doing so, the Court found two possible avenues to access. First, the Court found that Defendant Steve Seskin ("Seskin"), one of the writers for Defendant Collin Raye's ("Raye") song, "I Think About You," had voluntarily performed and lectured at the Kerville Folk Festival ("Festival") where Plaintiff had submitted her version of "I Think About You" in 1991. The Court further found that although Seskin's participation at the Festival did not involve judging, evaluating or critiquing the material submitted, given his apparent stature in the music industry, he could have had access to the songs of the contestants at the Festival. See March 10 Order at 6.

As a second possible avenue of finding Defendants had access to Plaintiff's song, the Court found there was a reasonable possibility that one of Raye's producers, John Hobbs ("Hobbs"), who had a relationship with both Defendants Seskin and Steve Cox ("Cox"), 3 Raye's manager, could have provided Defendants with Plaintiff's song. The Court stated:

There is a possibility that Hobbs had access to Plaintiff's tape because of his business relationship with Cox, and there is a possibility that Seskin had access to Plaintiff's tape because of this business relationship with Hobbs. Plaintiff appears to assert that Cox gave Plaintiff's tape to Hobbs (because of their business relationship) and Hobbs gave the tape to Seskin (because they had written songs together in the past).

March 18 Order at 7. In finding merit in Plaintiff's theory of exchanges, however, the Court indicated that this theory has merit only when coupled with Seskin's presence at the Festival in 1991. Id.

In the present motion, Defendants provide the Court with supplemental evidence, in the form of affidavits, from two nondefendants in this suit, John Hobbs and Rod Kennedy. See App. to Defs. Second Mot. for Summ. J. Specifically, Defendants assert that this additional evidence, coupled with their prior affidavits from Defendants Seskin, Cox, and Schlitz, indicates that there was no possible access to Plaintiff's song. See Defs. Second Mot. for Summ. J. at 4-6. In response, Plaintiff relies on the same evidence as offered in her response to Defendants' First Motion for Summary Judgement and maintains that she has met her burden of presenting a genuine issue of material fact as to whether there was a reasonable possibility that Defendants had access to her song.

ANALYSIS 4

Access includes an opportunity to view the copyrighted work. See Ferguson v. Nat'l Broadcasting Co., 584 F.2d 111, 113 (5th Cir. 1978). The "mere possibility" of access is not sufficient to satisfy a plaintiff's burden of showing a defendant's access once a defendant denies copying, and denies having access to plaintiff's work. See id. For a finding of access, there must be a reasonable possibility of access, not a just bare possibility. See id. Access can not be comprised of speculation or conjecture. See id. In some situations, evidence of possession of a plaintiff's work by a third party with whom the plaintiff and defendant dealt is sufficient to establish defendant's access. See Kamar Int'l, Inc. v. Russ Berrie and Co., 657 F.2d 1059, 1062 (9th Cir. 1981).

Based on the summary judgment evidence on file, the Court finds Plaintiff has failed to show there is a material dispute of fact as to whether Defendants had access to her song. As to Seskin's access to Plaintiff's song at the Kerville Folk Festival, the Court is of the opinion that the affidavit of Rob Kennedy, a nonparty to this suit and the producer of the Festival, conclusively indicates that Seskin did not have the opportunity to have access to Plaintiff's song. According to Kennedy, Kennedy receives, listens to, and narrows the entries down to the list of finalists who perform at the Festival. Kennedy Aff. at P 4. Once the finalists are selected, Kennedy then returns all of the participating songs to the entrants along with a letter announcing the finalists. Id Seskin did not participate in the process of narrowing down the finalists during any of the years that Plaintiff submitted her song, nor did Seskin participate at any time in judging, evaluating or critiquing the materials submitted. Id. at P 6; see also Seskin Supp. Aff. at P 1. In addition, Plaintiff's name is not on the list of finalists selected from the years 1990 to 1997, so Seskin could not have heard Plaintiff's tape played as one of the finalists. Therefore, the Court finds that regardless of Seskin's attendance at the Festival, Plaintiff has failed to demonstrate that Seskin had a reasonable possibility of access to her song at the Festival.

The Court is also of the opinion that in light of Defendants' additional summary judgment evidence Plaintiff's second argument, that Cox gave Hobbs a copy of Plaintiff's song who then gave a copy to Seskin, also fails. In the Court's March 18 Order, the Court found that "this theory of exchanges, coupled with Seskin's presence at the Festival in 1991, is sufficient to demonstrate a material dispute of fact as to the reasonable possibility of access." March 18 Order at 7. However, because the Court no longer finds that there is a reasonable possibility that Seskin had access to Plaintiff's song at the Festival, the Court is of the opinion that Plaintiff's theory of exchanges alone does not rise to the level of demonstrating a reasonable possibility of access. 5 In addition, John Hobbs' affidavit, along with the undisputed affidavits of Seskin and Cox, indicates that Hobbs "never received a tape containing any song by [Plaintiff] from anyone, including Defendant Steve Cox." Hobbs Aff. at P 3; see also Cox Aff. at P 2; Seskin Aff. Hobbs further indicates that he "was unaware of Suzane McKinley and her song entitled "I Think About You" until after this lawsuit was filed, [and he] did not give any song written by [Plaintiff] to anyone, including Mr. Schlitz, Mr. Seskin or Mr. Raye." Hobbs Aff. PP 3-4.

For the reasons set forth above, the Court is of the opinion that Plaintiff has failed to show that Defendants had a reasonable possibility of access to Plaintiff's song. Defendants' Second Motion for Summary Judgment should be GRANTED.

Signed this 22nd of January, 1999.

So Ordered.

JORGE A. SOLIS

UNITED STATES DISTRICT JUDGE

 

Footnotes

1 By Order dated December 18, 1998, the Court granted Defendants leave to file their Second Motion for Summary Judgment. In that Order, the Court limited the parties briefing to the issue of Defendants' accessibility to Plaintiff's song, "I Think About You."

2 See the Court's March 18 Order for a recital of the factual background in this case.

3 Plaintiff alleges that she gave Cox a copy of her tape at K-Mart when Collin Raye was signing autographs. McKinley Dep. at 82-83.

4 See the March 10 Order for the copyright infringement standard.

5 As support for Plaintiff's position, Plaintiff relies upon cases holding that evidence of a third-party with whom both the plaintiff and defendant were dealing with and who had possession of plaintiff's work is sufficient to establish access by the defendant. See, e.g., Kamar International, Inc. v. Russ Berrie and Co., 657 F.2d 1059, 1062 (9th Cir, 1981); Zervitz v. Hollywood Pictures, Inc. 989 F. Supp. 727, 728-29 (D.Md. 1995) However, as Defendant correctly points out, these cases differ from the situation in the present case. In those cases, unlike in the present case, there was some direct business or social connection between a person with access to the plaintiff's copyrighted work and the maker of the allegedly infringing work.

 

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