Proving Copyright Access in an On-Demand World

Proving Copyright Access in an On-Demand World

11.29.2023

By Neville L. Johnson, Douglas L. Johnson and Daniel b. Lifschitz

For many decades, courts have bemoaned the frequency at which they are presented with ill-conceived copyright infringement claims predicated “upon that obsessive conviction, so frequent among authors and composers, that all similarities between their works and any others which appear later must inevitably be ascribed to plagiarism.”1 This problem has been compounded by the digital revolution’s near-complete removal of barriers to publication for the vast majority of the internet- connected public. Historically, information only moved as quickly as the analog printing press allowed for, making it relatively straightforward to determine whether one had a “reason- able opportunity” to view and copy another’s work. How does that inquiry operate when the world is at everyone’s fingertips?

Generally, unless the similarities between two works are so overwhelming as to preclude the possibility of independent creation (i.e., “striking” similarity),2 proving the act of copying also requires proving that the defendant had access to the plaintiff’s work by “demonstrating either that (1) the infringed work has been widely disseminated; or (2) a particular chain of events exists by which the alleged infringer might have gained access to the copyrighted work.”3 Strictly speaking, one can- not disseminate a work more widely than on the internet, which counts virtually all American adults among its users.4 However, mere presence online speaks to a “bare” possibility of access rather than a “reasonable” one5 – accordingly, courts have taken a probabilistic approach to finding access by digital publication.

In Gray v. Perry, for example, the plaintiff – a Christian rapper going by the moniker “Flame” – contended that pop singer Katy Perry had copied an eight-note ostinato from his track “Joyful Noise” to create her double-platinum hit “Dark Horse.”6 Flame’s evidence of widespread dissemination included that at least five videos containing “Joyful Noise” were up- loaded to YouTube with a collective total of 1,365,041 views, in addition to the song being streamed more than 2.5 million times on MySpace.7 Although Perry’s camp denigrated the significance of these statistics and the prevalence of the Christian music market in general (despite evidence Perry had originated in that very market),8 the court found a reasonable juror could construe the success of “Joyful Noise” raised “more than a ‘bare possibility’ that defendants—who are experienced professional songwriters—had the opportunity to hear [it].”9

Less successful than Flame10 was Artikal Sound System, a South Floridian reggae band that made waves in 2022 by suing pop star Dua Lipa over her quadruple-platinum hit “Levitating,” which allegedly copied the chorus of Artikal’s 2017 song “Live Your Life.”11 Although the lawsuit sparked a fascinating musicological debate based solely upon the sonic similarities between the tracks,12 the issue of access ultimately felled Artikal’s claim. The district court was unimpressed with, inter alia, the bare assertion that “Live Your Life” was “widely available online via streaming platforms” absent any indication that it had achieved notable success on those platforms, “reject[ing] [Artikal’s] premise that their song’s availability through Internet streaming services offers meaningful sup- port for an inference of access.”13

Perhaps the most humorous online access analysis of 2023 was in Morford v. Cattelan,14 which concerned an art exhibit by Maurizio Cattelan consisting entirely of a single banana duct-taped to a wall.15 After the exhibit, entitled “Comedian,” sold for $120,000 at Art Basel Miami Beach,16 artist Joe Morford sued Cattelan on the basis that “Comedian” ripped off a similar piece Morford had created entitled “Banana and Orange.”17 Problematically for Morford, his evidence of access “amount[ed] to no more than proof that his work was available on one Facebook post, one YouTube video, and one blog post,” with no indication that it “enjoyed any particular or meaningful level of popularity.”18

In the absence of general popularity, some plaintiffs have endeavored to shoehorn their work’s online availability into the “chain of events” bucket of access rather than “widespread dissemination.” For example, in Segal v. Segal,19 the plaintiff argued that her screenplay’s availability on The Black List (a well-known script-hosting site that the plaintiff contended was frequently visited by entertainment industry insiders) raised the possibility the defendants had viewed it due to their relative status within the industry.20 The district court rejected this theory as unduly speculative and conclusory, holding that “it is unreasonable to infer access based on a bare allegation that a protected work can be found in a location popular among professionals in an industry of which the infringer is a part.”21

As the foregoing demonstrates, despite the world being at our fingertips, courts have strenuously resisted the temptation to infer that simply because a work can be viewed on- line, there exists any likelihood it was so viewed absent some supporting evidence. In an ever-more interconnected digital ecosystem, creators are increasingly being influenced by the same monoculture, and copyright doctrine holds space for the possibility that shared inspiration can simply strike at different times.

This article originally appeared in the NYSBA Entertainment, Arts, Sports Law Section Journal. To join the EASL section, contact Sharmin Woodall at [email protected]. 

Neville L. Johnson and Douglas Johnson are partners at Johnson & Johnson LLP, in Beverly Hills, CA, practicing entertainment, media, intellectual property, and class action litigation.

Daniel B. Lifschitz is a senior associate at Johnson & Johnson LLP, whose practice focuses on copy- right litigation.

Endnotes

1. Dellar Samuel Goldwyn, Inc., 150 F.2d 612, 613 (2d Cir. 1945).
2. See Direct of Va., Inc. v. E. Mishan & Sons, Inc., 753 F. Supp. 100, 104 (S.D.N.Y. 1990) (“if the parties’ works are so strikingly similar as to preclude the possibility of independent creation, copying may be proved by substantial similarity alone without a showing of access”).
3. Repp Webber, 858 F. Supp. 1292, 1301 (S.D.N.Y. 1994).
4. Pew Research Center, “Internet, Smartphone, and Social Media Use” (Dec. 6, 2022), available at https://www.pewrorg/ global/2022/12/06/internet-smartphone-and-social-media-use-in- advanced-economies-2022/; see also Skidmore v. Led Zeppelin, 952 F.3d 1051, 1068 (9th Cir. 2020) (“As a practical matter, the concept of ‘access’ is increasingly diluted in our digitally interconnected world. Access is often proved by the wide dissemination of the copyrighted work. Given the ubiquity of ways to access media online, from YouTube to subscription services like Netflix and Spotify, access may be established by a trivial showing that the work is available on demand.”) (internal citations omitted); 4 NIMMER ON COPYRIGHT § 3D.05 (2023) (“Internet dissemination may be argued to make almost all works generally accessible.”).
5. Loomis Cornish, No. CV 12-5525 RSWL (JEMx), 2013 U.S. Dist. LEXIS 162607, at *47 (C.D. Cal. Nov. 13, 2013) (“The availability of a copyrighted work on the Internet, in and of itself, is insufficient to show access through widespread dissemination.”) (citing Art Attacks Ink, Ltd. Liab. Co. v. MGA Enter. Inc., 581 F.3d 1138, 1145 (9th Cir. 2009)).

6. Case 2:15-cv-05642-CAS (JCx) (C.D. Cal.).
7. Gray Perry, 2018 U.S. Dist. LEXIS 138263, at *4-5 (C.D. Cal. Aug. 13, 2018).
8. at *10 n.3 (acknowledging a Rolling Stone article claiming that Perry was previously a Christian music artist).
9. at *11-12; compare Loomis v. Cornish, 836 F.3d 991, 998 n.3 (9th Cir. 2016) (sufficient dissemination could not be demonstrated where the plaintiff was only able to document 46 sales of his allegedly infringed song).
10. Success being a relative term, as although Flame initially prevailed in a jury trial against Perry, his victory was overturned by the district court shortly thereafter on the basis that the ostinato from “Joyful Noise” did not qualify for copyright protection, and that finding was upheld on appeal in Gray v. Hudson. 28 F.4th 87 (9th Cir. 2022).
11. Case 2:22-cv-01384-SSS-AS.
12. See Ethan Shanfield, Dua Lipa’s Dual Lawsuits Explained: Musicologists Break Down ‘Levitating’ Similarities, Variety (Mar. 17, 2022), available at https://variety.com/2022/music/news/dua-lipa- levitating-lawsuits-explained-1235204715/.
13. Cope Warner Records, Inc., No. 2:22-cv-01384-SSS-AS, Dkt. 73 at 9:9-11 (C.D. Cal. June 5, 2023).
14. Case 21-20039-Civ-Scola (S.D. Fla.).
15. Morford Cattelan, Civil Action No. 21-20039-Civ-Scola, 2023 U.S. Dist. LEXIS 102287, at *4 (S.D. Fla. June 9, 2023).

16. See Caroline Elbaor, Buyers of Maurizio Cattelan’s $120,000 Banana Defend the Work as ‘the Unicorn of the Art World, Comparing It to Warhol’s Soup Cans,” Artnet (Dec. 10, 2019), available at https://news.artnet.com/art-world/maurizio-cattelan-banana- collector-1728009.

17. Morford, 2023 S. Dist. LEXIS 102287, at *2.
18. at *14-15.
19. Case 20-cv-1382-BAS-JLB (S.D. Cal.).
20. Segal Segel, No. 20-cv-1382-BAS-JLB, 2022 U.S. Dist. LEXIS 11832, at *20 (S.D. Cal. Jan. 21, 2022).

21. at *24.