by Tamera H. Bennett
May 5, 2009
I first blogged here about the 2007 lawsuit for copyright infringement against extremely successful country songwriters Phil Vassar, Craig Wiseman, their individual music publishers and Proctor & Gamble.
On April 29, 2009 the judge granted the defendants’ Motion for Summary Judgment and dismissed the lawsuit. The Memorandum can be found here.
To survive summary judgment, the court stated, the plaintiffs would have to sufficiently show that Vassar had “access” to their song and that Defendants’ song is “substantially similar” to Plaintiffs’ song.
The defendants submitted evidence of their “pitch” log to show they had pitched the song to an A&R employee of Vassar’s record label and that a copy of the song on CD had been left for Vassar’s manager. The defendants assert the A&R record label employee agreed she would get the song to Vassar. The A&R record label employee had no recollection of ever hearing the song and stated she could not pitch directly to artists on the label’s roster.
The court stated:
Again, the plaintiffs’ burden is not to show that Vassar absolutely heard the song or even that he absolutely had the opportunity to hear the song; rather, the plaintiffs’ burden, at this stage, is to show, with all factual inferences drawn in their favor, that there is a genuine issue of material fact as to whether Vassar had a “reasonable opportunity” to hear the song. Blige, 558 F.3d at 491. The plaintiffs have met this relatively low burden by showing that the plaintiffs’ song was in the possession of Vassar’s manager’s office and Vassar’s record label, and by showing that there was some indication that the record label was prepared to forward the song to Vassar. This evidence creates at least a fact issue as to access.
The court moved to the next step, but found no “substantial similarity” between the two songs.
On the technical musical structure, there appears to be general agreement that the two songs are not particularly similar. While there are certain, basic musicological similarities between the two songs (for instance, similar or identical time, tempo, and length), the experts in this case essentially agree that these similarities are the result of common usage in the industry, and that they are not indicative of copying. (See Docket No. 79 Ex. 1 at 3.)