The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
The following facts are not in dispute, except where noted. In
the early 1970s, plaintiffs Paul DiFranco and Norman Dolph
wrote "Life Is a Rock (But the Radio Rolled Me)" (hereinafter
referred to as "LIFE"). An arrangement of this song by DiFranco
and plaintiffs Mark Bellack and Joseph Levine was recorded by a
group called Reunion and released by RCA in 1974. The song
became one of the ten most popular songs in the United States
shortly after it was released and sold more than 750,000
The song consists of a verse section, which is at issue here,
and a chorus section, which is not at issue in this case. The
lyrics of the verse section of LIFE consist of a list of Rock
and Roll icons.*fn1 The verse section utilizes what the
parties call a "patter" technique, in which the words are sung
in a rapid tempo. The patter section of LIFE is nine measures
long and consists of the pitch "G" repeated 128 times in a
constant sixteenth note pattern, followed by eight repetitions
of the pitch "A" (one step up in the scale), and ends with
eight repetitions of "G" again.
Plaintiffs obtained certificates of registration of claims to
copyright in versions of LIFE from the United States Copyright
Office on December 1, 1972 and August 22, 1974.
Defendants' work at issue is a song used in various renditions
in McDonald's commercials in February 1989, called the "Menu
Song" ("MENU"). That song also includes a patter section, the
lyrics of which recite the food and beverage items on the
McDonald's menu.*fn2 The patter section of MENU also
consists of the rapid singing of the lyrics in a constant
sixteenth note pattern of one or two pitches.
Plaintiffs have submitted evidence that members of the public
who were exposed to the McDonald's commercials using MENU
identified MENU as being similar to LIFE. For example, radio
disc jockeys announced their opinions that the songs were
identical, and trade publications received letters noting the
similarity of the songs.
A third work is relevant to this case, as defendants argue that
certain elements of MENU were taken from it rather than from
LIFE. In 1987, defendant Leo Burnett Company, Inc. ("Burnett")
retained Levine and his company, Joey Levine Crushing Music, to
compose a jingle for its client, McDonald's. Levine and
Crushing Music composed a song entitled "Good Time/Great Taste
McDonald's" (hereinafter "GOOD TIME/GREAT TASTE"). Levine
thereafter assigned all rights to GOOD TIME/GREAT TASTE to
Burnett as agent for McDonald's. GOOD TIME/GREAT TASTE has been
used in numerous McDonald's commercials since 1988 as
McDonald's theme song.
Defendants move for an order pursuant to Fed.R.Civ.P. 56
granting summary judgment in their favor on plaintiffs'
copyright and Lanham Act claims on the ground that there is no
similarity of protected expression between the works at issue.
Plaintiffs, in addition to opposing defendants' motion for
summary judgement, move for an order pursuant to Rule 56(d)
specifying that there is no genuine issue of material fact with
respect to (a) whether plaintiffs are the owners of valid and
enforceable copyrights in LIFE, (b) whether LIFE was copied in
the making of MENU, and (c) whether MENU is substantially
similar to LIFE.*fn3
Summary judgment under Fed.R.Civ.P. 56 will be granted only if
the movant shows that (1) there is no genuine issue as to any
material fact, and (2) movant is entitled to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In
deciding a motion for summary judgment, the "fundamental maxim"
is that the court "`cannot try issues of fact; it can only
determine whether there are issues to be tried.'" Donahue v.
Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir.
1987) (quoting Heyman v. Commerce & Industry Ins. Co.,
524 F.2d 1317, 1319-20 (2d Cir. 1975)). "Moreover, in determining
whether a genuine issue has been raised, a court must resolve
all ambiguities and draw all reasonable inferences against the
moving party." Id. at 57. See also Merritt Forbes v. Newman
Investment Securities, Inc., 604 F. Supp. 943, 952 (S.D.N Y
1985). The existence of contradictory expert affidavits does
not preclude summary judgment unless those affidavits establish
the existence of a genuine issue of material fact.
A plaintiff may establish a copyright claim by demonstrating
(1) the ownership of a valid copyright, (2) that the infringer
had access to the plaintiff's work, and (3) that protected
elements of the two works are substantially similar. Walker v.
Time Life Films, 784 F.2d 44, 48 (2d Cir.), cert. denied,
476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 721 (1986); Narell
v. Freeman, 872 F.2d 907, 910 (9th Cir. 1989). For purposes of
this motion, defendants ...