United States District Court, Southern District of New York
February 17, 2000
RHONDA DIMMIE, P/K/A RHONDA DEE, PLAINTIFF,
MARIAH CAREY; WALTER AFANASIEFF; COLUMBIA RECORDS, INC.; SONY MUSIC ENTERTAINMENT INC.; SONY SONGS, INC.; SONY MUSIC PUBLISHING; WALLYWORLD MUSIC; RYE SONGS; WB MUSIC CORPORATION; AMERICAN SOCIETY OF COMPOSERS; AUTHORS & PUBLISHERS (ASCAP); BROADCAST MUSIC, INC. (BMI); AND HAL LEONARD PUBLISHING CORPORATION, DEFENDANTS.
The opinion of the court was delivered by: Berman, District Judge.
On October 22, 1996, the Plaintiff, Rhonda Dimmie ("Plaintiff"
or "Dimmie"), filed the instant complaint claiming that
Defendants Mariah Carey ("Carey"), Walter Afanasieff
("Afanasieff"), Columbia Records Inc. ("Columbia Records"), Sony
Music Entertainment Inc. ("Sony"), Sony Songs, Inc., Sony Music
Publishing, Wallyworld Music, Rye Songs, WB Music Corporation,
American Society of Composers, Authors & Publishers ("ASCAP"),
Broadcast Music, Inc. ("BMI"), and Hal Leonard Publishing
Corporation (collectively, "Defendants") had committed copyright
infringement under 17 U.S.C. § 101 et seq. Specifically,
Plaintiff asserts that she is the author and copyright holder of
a song called "Be Your Own Hero" which was allegedly
misappropriated by Carey and the other Defendants. Defendants
have filed a motion for summary judgment pursuant to Rule 56 of
the Federal Rules of Civil Procedure ("Fed.R.Civ.P."). For the
reasons stated below, Defendants' motion is granted.
Dimmie alleges that in June of 1990 she composed a song
entitled "Be Your Own Hero" and that she obtained a valid
copyright for "Be Your Own Hero" in August of 1991. (Complaint
("Compl.") ¶¶ 3, 6). Dimmie claims that she mailed one or more
recordings of "Be Your Own Hero" to Defendant Columbia Records
sometime between late 1990 and early January of 1992. (Compl. ¶¶
12-13). Dimmie states that she never sought or obtained an
acknowledgment of receipt by Columbia Records; she further
alleges that the recordings were never returned. (Dimmie
Affidavit ("Dimmie Aff.") ¶ 172). Dimmie asserts that she heard
the recording of a song by singer/songwriter Defendant Mariah
Carey, entitled "Hero," on a local radio station in November of
1993. (Compl., ¶ 27). She says that she did not become aware of
"significant similarities" between "Hero" and "Be Your Own Hero"
until she "conducted a side by side" analysis of the two songs in
October of 1995. (Compl. ¶ 28).
Dimmie's principal accusations against Defendants rest upon a
series of tenuous inferences or assumptions. Dimmie "infers" that
employees of Defendant Columbia Records "listened to the tape" of
"Be Your Own Hero" and that ("it would also be reasonable to
infer that") the song came to the attention of (the President of
Defendant Sony of which Columbia Records is a division,) Tommy
Mattola. (Plaintiff's Opposition Brief ("Pl.'s Opp'n. Br.") at
4). Dimmie "infers" that Mattola "shared (the tape) with
Afanasieff" and states that it is "reasonable to infer that Carey
listened to the tape." (Pl.'s Opp'n. Br. at 4). Dimmie says she
is under the "belief" that Defendant Carey listened to her song
and copied portions of its melodic and lyrical content in the
development of Defendant Carey's song "Hero." (Compl. ¶ 24).
Dimmie also says she is also under the "belief" that Defendant
Afanasieff utilized this recording during the development stages
of "Hero." (Compl. ¶ 24).
Defendants Carey and Afanasieff assert there was no
infringement and that "Hero" was the product of independent
creation. (Answer ¶ 19). They state that "Hero"
was written and created during two writing sessions in early
1992. (Carey Transcript ("Tr.") 41:4-12). Defendants Carey and
Afanasieff have submitted, together with their moving papers
herein, recordings of these sessions, along with Carey's "writing
book," as proof of independent creation. Both Defendants allege
that they did not hear Dimmie's "Be Your Own Hero" until after
the commencement of the instant action. (Afanasieff Tr.
87:22-89:12; Carey Tr. 52:9-13). Defendants Afanasieff and Carey
also state that they follow a strict policy of refusing to review
unsolicited recordings of the type purportedly sent by
Dimmie.*fn1 (Afanasieff Tr. 26:18-21; Carey Tr. 11:12-16).
Summary Judgment Standard
A party is entitled to summary judgment "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). The existence of a factual dispute between the parties is
only relevant if that particular fact is "material" (i.e., its
resolution is necessary to achieve a final judgment on the
merits). See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56(c) precludes
summary judgment if the dispute over the "material" fact is
"genuine," in that there is sufficient evidence to allow a
"reasonable jury" to "return a verdict for the nonmoving party."
Id. (citing First National Bank of Arizona v. Cities Service
Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). While
the Court must "resolve all ambiguities and draw all reasonable
inferences against the moving party," it is clear that the "mere
existence of an alleged factual dispute . . . will not defeat an
otherwise properly supported motion for summary judgment."
Anderson, 477 U.S. at 247-248, 106 S.Ct. 2505, see also Fran
Corp. v. United States, 164 F.3d 814, 816 (2nd Cir. 1999). It is
up to the nonmoving party to show more than a "metaphysical doubt
as to the material facts." Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538
In order for a defendant to succeed on a motion for summary
judgment he or she must demonstrate the absence of material
evidence supporting the elements of the plaintiff's copyright
infringement claim. See Repp, K & R Music v. Webber,
132 F.3d 882, 890 (2nd Cir. 1997), cert. denied, 525 U.S. 815, 119 S.Ct.
52, 142 L.Ed.2d 40 (1998).*fn2 To succeed in a copyright
infringement case, a plaintiff must show: (1) ownership of a
valid copyright; and (2) unauthorized copying of the copyrighted
work. See Feist Publications, Inc. v. Rural Telephone Service
Co., 499 U.S. 340, 111 S.Ct. 1282, 113 L.Ed.2d 358
(1991); Castle Rock Entertainment v. Carol Publishing Group,
Inc., 150 F.3d 132, 137 (2nd Cir. 1998); Twin Peaks
Productions, Inc. v. Publications International, Ltd.,
996 F.2d 1366, 1372 (2nd Cir. 1993). A prima facie showing of ownership is
made by demonstrating that the plaintiff has obtained a
certificate of registration from the United States Copyright
Office. See Paramount Pictures Corp. v. Carol Publishing Group,
11 F. Supp.2d 329, 332 (S.D.N.Y. 1998), aff'd., 181 F.3d 83,
1999 WL 319328 (2d Cir. 1999) (citing 17 U.S.C. § 410(c)).
Unauthorized copying can be shown either by direct evidence, such
as word for word copying, or by indirect evidence, such as proof
that defendants had (a reasonable possibility of) "access" to the
work, see E.J. Novak v. National Broadcasting Company,
752 F. Supp. 164, 170 (S.D.N.Y. 1990), reargument denied,
760 F. Supp. 47 (S.D.N.Y. 1991) (citing Ferguson v. National
Broadcasting Co., 584 F.2d 111, 113 (5th Cir. 1978)), combined
with a showing of "probative [substantial] similarities" between
the plaintiff's and defendant's work. Castle Rock
Entertainment, 150 F.3d at 137; see also Twin Peaks
Productions, 996 F.2d at 1372; Repp & K & R Music, 132 F.3d at
889; Ringgold v. Black Entertainment Television, 126 F.3d 70,
74 (2nd Cir. 1997); Langman Fabrics v. Graff Californiawear,
Inc., 160 F.3d 106, 115 (2nd Cir. 1998), opinion amended by,
169 F.3d 782 (2d Cir. 1998). After unauthorized copying has been
shown, the plaintiff must also prove that the portion copied
amounts to an "improper or unlawful appropriation." Castle Rock
Entertainment, Inc., 150 F.3d at 137; see also Repp & K & R
Music, 132 F.3d at 889.*fn3
The Plaintiff here has satisfied the "ownership" requirement
referred to above by producing a certificate of copyright
registration, dated August 12, 1991, in accordance with
17 U.S.C. § 401(c). (Compl., Ex. A). The certificate constitutes prima
facie evidence of copyright ownership. Paramount Pictures, 11
F. Supp.2d at 332.
Plaintiff asserts a theory of indirect proof of copying based
upon the Defendants' alleged "access" to her copyrighted work and
the "probative similarities" between the two songs. (Pl.'s Opp'n.
Br. at 11, 14).
The Plaintiff bases her claim of access solely and exclusively
upon the theory that she sent (by mail) a tape of "Be Your Own
Hero" to corporate Defendant
Columbia Records. (Dimmie Aff. ¶ 7). The Plaintiff does not,
however, offer or supply any evidence to establish that the
Defendants, or any of them, actually had (a reasonable
possibility of) access to a copy of "Be Your Own Hero" during or
prior to the creation of "Hero." Plaintiff claims that Columbia
Records (initially) received the tape and then must have passed
it on to Defendants Mattola, Carey and Afanasieff before Hero was
created. (Pl.'s Opp'n. Br. at 4.) There is not a scintilla of
evidence that this occurred. She bases this purported receipt and
exchange upon the series of uncertain inferences described at
page 2 above and also upon the alleged "direct connection between
Columbia Records, Inc. and Defendants Carey and Afanasieff."
(Pl.'s Opp'n Br. at 16). She contends that the mailing of her
song to Columbia Records, in turn, afforded Carey and Afanasieff
a "reasonable opportunity to view or read Plaintiff's work."
(Pl.'s Opp'n. Br. at 16). "At best, the proof establishes that
Defendants received Plaintiff's song as mailed; at worst, there
is a triable issue of fact whether Defendants received the song
and had access to it." (Pl.'s Opp'n. Br. at 18). She also
hypothesizes that the "pressure" on Defendant Carey to "produce
recordings" and "fulfill her contractual obligations" with
Defendant Columbia Records may have motivated her to copy "Be
Your Own Hero." (Pl.'s Opp'n. Br. at 3).
Plaintiff's theory of access appears to be based upon the
notion of "bare corporate receipt" and, relatedly, Bevan v.
Columbia Broadcasting System, Inc., 329 F. Supp. 601 (S.D.N Y
1971), reargument denied, 1971 WL 17104 (S.D.N.Y. Nov. 1,
1971). In Bevan, the plaintiffs alleged that the Columbia
Broadcasting Systems, Inc. ("CBS") television program "Hogan's
Heroes" infringed their own presentation for a television
series.*fn4 The plaintiffs based their access claim on the fact
that they sent an unsolicited copy of their presentation to the
corporate offices of CBS, and obtained an acknowledgment of
receipt letter prior to the production of the CBS television
series. ("Acknowledgment and virtual rejection of the
presentation was communicated to plaintiffs by CBS representative
Lawrence White." Bevan, 329 F. Supp. at 609) The Court found for
the plaintiffs holding that "defendants' failure to dispel the
inference of access from the facts of submission to CBS is fatal
to their motions for judgment N.O.V. or alternatively for a new
trial." Bevan, 329 F. Supp. at 610. In the case at bar,
Plaintiff Dimmie claims that her unsolicited (and undocumented)
mailing(s) to Defendants of a recording of "Be Your Own Hero"
constitutes "corporate receipt", under Bevan, and entitles her
to a finding of prima facie access. (Pl.'s Opp'n. Br. at 15). It
does not. On the facts presented here, plaintiff's "best case"
scenario of (alleged) unsolicited mailing does not establish
"access". It would be an unfair and legally impermissible
"stretch" to conclude, as Plaintiff does, that "by Ms. Dimmie
mailing her song to Columbia, Defendants Carey and Afanasieff
`had a reasonable opportunity to view or read Plaintiff's work'
and therefore had access". Id. Mailing cannot, on these facts,
be equated with access.
Plaintiff's reliance upon Bevan is misplaced. For one thing
Bevan is factually distinguishable from the case at bar. In
Bevan, which involved a motion after a jury trial, the
plaintiffs, in fact, received notice of receipt of their
presentation from CBS stating that CBS had an "interest in the
ideas" but no current plans to use it. Bevan, 329 F. Supp. at
603. Thus, unlike this case, CBS acknowledged receiving and being
interested in the plaintiff's presentation. Here, there is no
proof that corporate receipt, approaching the Bevan facts, was
ever effectuated. "To support a finding of access on a motion
for summary judgment, the plaintiff must show `a reasonable
possibility of access, not a bare possibility.'" Novak, 752
F. Supp. at 168 (quoting Ferguson v. National Broadcasting
Co., 584 F.2d 111, 113 (5th Cir. 1978)), Siskind v.
Newton-John, 1987 WL 11701 at *4 (S.D.N.Y. May 22, 1978).
Second, Bevan is (arguably) out-dated; more recent cases have
come to a different conclusion in similar circumstances. For
example, in Meta-Film v. MCA Inc., 586 F. Supp. 1346 (C.D.Cal.
1984), where the author of a screenplay entitled "Frat Rats" sent
a copy of his work to a motion picture director at Universal City
Studios, Inc., the Court specifically rejected the concept of
"corporate receipt" stating:
In such a business [film production], countless
unsolicited scripts are submitted to numbers of
individuals on studio lots every day. Under these
circumstances, it is clearly unreasonable to
attribute the knowledge of any one individual . . .
to every other individual just because they occupy
offices on the same studio lot. To the extent that
any case suggests a contrary result — that is, that
"bare corporate receipt" is sufficient as a matter of
law to preclude a finding of non-access — the court
rejects such reasoning.
Meta-Film, 586 F. Supp. at 1357-58 (emphasis added).
In Cox v. Abrams, 1997 WL 251532 (S.D.N.Y. May 14, 1997),
District Court Judge Robert Ward refused to find "access" for
summary judgment purposes, where the plaintiffs had mailed an
unsolicited copy of their manuscript to the Harcourt Publishing
Company ("Harcourt"). See Cox, 1997 WL 251532 at *3. The Court
stated that the plaintiffs had failed to meet their burden of
showing a "reasonable probability of access." Id. at *4. The
Court was persuaded that plaintiffs did not provide any evidence
to suggest that Harcourt had kept the manuscript, or provided the
manuscript to the defendant, Paramount Pictures Corporation, who
then used it in producing the (allegedly) infringing movie
in order to accept that [plaintiffs'] theory, this
Court would have to assume (1) that Harcourt, despite
rejecting the manuscript of Breaking the Tape, made
and kept a copy of it and provided it or communicated
its substance to one of the defendants; (2) that
Harcourt editors and other Harcourt employees lied
when they swore under oath that they did not provide
the manuscript or communicate its substance to any of
the defendants; and (3) that defendants lied when
they swore under oath that they had never heard of
the . . . [plaintiffs] or of the manuscript before
this litigation. . . . Plaintiffs, however, have been
unable to set forth any evidence supporting these
assumptions. Under these circumstances, plaintiffs
have failed to meet their burden of establishing a
reasonable probability of access.
Id. (citation omitted).
Harcourt was found by Judge Ward not to have had "access" to the
material even though there was evidence of "corporate receipt" of
A similar result was reached in E.J. Novak v. National
Broadcasting Company, 752 F. Supp. 164 (S.D.N.Y. 1990),
reargument denied, 760 F. Supp. 47 (S.D.N.Y. 1991), where one of
the issues was whether or not the head of programming at the
National Broadcasting Company ("NBC"), Brandan Tartikoff
("Tartikoff"), had access to an unsolicited "demo" tape of a
comedy act entitled "Video Vault." The tape was (allegedly) hand
delivered to Tartikoff's office in December of 1985. Tartikoff
stated under oath that he never viewed the tape and that it was
his, and the network's, policy never to view unsolicited
See Novak, 752 F. Supp. at 169. The Court (Sweet, J.) refused to
find that there was access merely because an unsolicited work may
have been received by Tartikoff's office. "Given that . . .
[plaintiffs] Novak and Studer present no affirmative evidence
that Tartikoff viewed the tapes, Novak and Studer do not succeed
in raising a genuine question of fact as to Tartikoff's access to
the gangster skit script by means of the updated [demo] tape."
Similarly, in Vantage Point v. Parker Brothers, 529 F. Supp. 1204
(E.D.N.Y. 1981), aff'd, 697 F.2d 301 (2d Cir. 1982), the
plaintiff alleged that defendant had access to an unsolicited
idea for a board game where he sent his idea to the President of
Parker Brothers. The Court (Neaher, J.) held that unsolicited
sending (and receipt) of a game idea, without more, did not
constitute a prima facie showing of access. See Vantage Point,
529 F. Supp. at 1213.
In McGaughey v. Twentieth Century Fox Film Corp., 12 F.3d 62
(5th Cir. 1994), the plaintiff/appellant sought to overturn
dismissal of his case on the grounds that the District Court
failed to apply the Bevan interpretation of "corporate
receipt." In McGaughey, plaintiff/appellant sent portions of
his novel to defendant/appellee Twentieth Century Fox Television,
and received a rejection letter dated May 13 1981. In July of
1988, the appellant viewed a movie released by Twentieth Century
Fox Film Corp., entitled "Dreamscape", which he believed
infringed his novel. The Court upheld dismissal by the lower
court on the grounds that the appellant had not produced any
affirmative evidence to overcome the appellee's assertion that it
had never seen the appellant's work. See McGaughey, 12 F.3d at
[I]n order to determine that the appellees had access
to the appellant's work, we would have to assume that
the persons who created Dreamscape lied about their
lack of knowledge of the appellant and his novel. We
would also have to assume that Fox made copies of the
portions of appellant's novel before returning them
to his agent and then distributed those copies.
We decline to find access under the facts of this
The Plaintiff in the instant case has failed to provide any
evidence that the Defendants, or any of them, had access to her
work within the meaning of the cases cited. This is fatal to
Plaintiff's claim. On the other hand, the Defendants,
particularly Carey and Afanasieff, have offered proof that they
did not receive or review the Plaintiff's work prior to the
filing of the instant suit (Afanasieff Tr. 87:22-89:12; Carey Tr.
52:9-13); and that they follow a strict policy of refusing to
review unsolicited recordings. (Afanasieff Tr. 26:18-21; Carey
Tr. 11:12-16). On these facts, mere allegations of corporate
receipt without more (even assuming corporate receipt had been
established) do not create a prima facie case of access
sufficient to defeat summary judgment. See Meta-Film, 586
F. Supp. at 1357-1358; Cox, 1997 WL 251532 at *3; Novak, 752
F. Supp. at 169. The Plaintiff has offered no direct or indirect
proof to show that: 1) the work was ever received much less
reviewed by Defendant Columbia Records, Carey, Afanasieff or
Mattola; or 2) that Defendants Carey and Afanasieff ever had a
reasonable opportunity/possibility to listen to her work before
producing "Hero" much less that they actually copied Plaintiff's
work. Similarly, Dimmie has not put forth any affirmative
evidence to refute Defendants' (Carey and Afanasieff) sworn
testimony that they did not hear or review "Be Your Own Hero";
that Hero was independently created; and their statements that it
was against their policy and practice to review unsolicited
tapes. Among other things, Defendant Afanasieff stated:
Q: Can you describe those circumstances, if any, in
which you would receive a tape from an artist who
had sent one to Sony?
A: You have to understand, the only time I would hear
a tape is an existing artist at Sony who is sending
me a tape of a song to record for their album. I
would never listen to tapes outside of Sony that
are potential artists. (Afanasieff Tr. 26:15-23)
Similarly, Defendant Carey stated:
Q: In 1989 did you ever have access to any tapes of
any of Sony's, or CBS's tapes?
A: No. That's not what I do. I don't accept any
tapes, because I'm not seeking anybody else's
material. (Carey Tr. 11:12-16) (emphasis added)
Conclusory allegations, such as those made by the Plaintiff here,
do not give rise to a "genuine issue" of material fact as to
access. Repp & K & R Music, 132 F.3d at 889; see also Delaware
& Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174
(2d Cir. 1990), cert. denied, 500 U.S. 928
, 111 S.Ct. 2041
L.Ed.2d 125 (1991); Meta-Film, 586 F. Supp. at 1357-58; Cox,
1997 WL 251532 at *3; Novak, 752 F. Supp. at 169; Vantage
Point, 529 F. Supp. at 1212; McGaughey, 12 F.3d at 65.
Otherwise, authors, producers, writers, and their affiliated
companies could, as here, be forced to defend against baseless
accusations of misappropriating others' work which they never
saw, heard or solicited.
The Plaintiff also argues that "probative similarities" exist
between "Be Your Own Hero" and "Hero" presumably because
Plaintiff's expert, Professor John Andrew Johnson ("Johnson"),
concluded that the two works were so similar as to make
independent creation "unlikely."(Pl.'s Opp'n. Br., at 11). But
probative similarity, in the absence of "access", is not
dispositive. See Procter & Gamble Co. v. Colgate-Palmolive Co.,
199 F.3d 74, 77 (2d Cir. 1999); Twin Peaks Productions, 996
F.2d at 1372 n. 1; Williams v. Crichton, 84 F.3d 581, 587 (2d
Cir. 1996); Kregos v. Associated Press, 3 F.3d 656, 662 (2d
Cir. 1993), cert. denied, 510 U.S. 1112, 114 S.Ct. 1056, 127
L.Ed.2d 376 (1994); Ringgold, 126 F.3d at 74; Langman, 160
F.3d at 115-116, (citing 4 MELVILLE NIMMER and DAVID NIMMER,
NIMMER on COPYRIGHT § 13.01[B] (1998)); Kerr v. New Yorker
Magazine, 63 F. Supp.2d 320, 325 (S.D.N.Y. 1999); Cox, 1997 WL
251532 at *3.*fn6 The existence of "probative similarities" will
not create a prima facie case of copying without a further
showing of access.
If, as here, a plaintiff has failed to produce indirect
evidence of copying (by demonstrating both access and "probative
similarities"), he or she may defeat a motion for summary
judgment by showing that the works in question are "strikingly
similar." See Repp & K & R Music, 132 F.3d at 889. Two works
are considered to be "strikingly similar" if creation of one is
so dependent on the other "as to preclude the possibility of
independent creation." Id. "Striking similarity" can be shown
through expert testimony. Id. at 890.
The Second Circuit Court of Appeals has addressed the
application of "striking similarity" in the context of musical
works in the case of Repp, K & R Music v. Webber. In Repp, K &
R Music, the Court (Miner, J.) reversed the decision of the
lower court which had based its findings, in part, upon its own
"aural examination," instead of relying upon the testimony of
highly qualified experts. The Court noted that both experts had
the works were "strikingly similar" in their reports, and both
experts specifically stated that the works could not have been
created independently. Id. at 890-891.
It is somewhat unclear (from the papers submitted) to what
extent the Plaintiff in this action is relying upon "striking
similarity". In any event, Plaintiff has not demonstrated
"striking similarity" sufficient to defeat summary judgment. The
Plaintiff's own expert witness, Professor Johnson, reviewed both
songs and came to the conclusion that he did not "possess
sufficient evidence . . . to state without any doubt that `Hero'
was based on `Be Your Own Hero.'" (Snyder Aff., Ex. Q, p. 10).
(emphasis added). Rather, Professor Johnson, concludes that, in
his view, it is "unlikely" that the two works were created
independently. (Snyder Aff., Ex. Q, p. 10). This is not enough.
See Repp, K & R Music, 132 F.3d at 889 (Court held that
"strikingly similar" works must be so identical as to preclude
any reasonable possibility of independent creation); Cox, 1997
WL 251532 at *7 (In order for two works to be "strikingly
similar" they must be so "alike as to preclude the possibility of
independent creation"); Gaste v. Kaiserman, 863 F.2d 1061, 1068
(2d Cir. 1988) (Court inferred access through "striking
similarity" where plaintiff's expert testified that the two works
were so similar that could not have been created independently).
And, Professor Johnson further qualifies his conclusion by
stating that Carey and Dimmie share "common musical
sensibilities" that could have lead to the creation of similar
but independent works. Id.
Q: But you would agree, would you not, based on
everything we've discussed, that while it's in your
mind unlikely, it's possible that they were
A: I have to say it's within the realm of possibility
because there are differences that are there.
(Johnson Tr. 200:21-201:3). emphasis added.
Johnson's comments do not provide the level of proof required
to show "striking similarity." He does not use the phrase
"striking similarity." Nor does he state that "Hero" could not
have been independently created.*fn7 See Repp & K & R Music,
132 F.3d at 890-891 (where the plaintiff's experts specifically
stated that the works were so substantially similar and that they
could not have been independently created.).
At the same time, Defendants here have produced substantial
evidence to show that "Hero" was independently created. (Snyder
Aff., Ex. S-V). Defendants' evidence includes several working
tapes which document the creative steps that Carey and Afanasieff
took to produce "Hero", and a journal kept by Carey that shows
the evolution of the lyrics for the song. (Snyder Aff., Ex. T,
U). As noted (although not binding here), the same evidence of
"independent creation" was assessed in Selletti, and was
characterized by Judge Chin as "compelling proof that Carey and
Afanasieff actually wrote the song". Selletti, 177 F.R.D. at
Where, as here, convincing proof of independent creation exits,
prima facie copying (assuming it were established) may be
rebutted. See Procter & Gamble, 199 F.3d at 77 ("If the
plaintiff establishes a prima facie case of infringement, the
defendant may rebut it by proving the affirmative defense of
independent creation."); Repp, K & R Music, 132 F.3d at 889
("[i]ndependent creation is an affirmative defense, evidence of
which may be introduced to rebut a prima facie case of
infringement"); Kerr, 63 F. Supp.2d at 324 ("If the plaintiff
is able to make out a prima facie claim for copyright
infringement, the defendant may then offer proof if independent
creation as an affirmative defense."); Cox, 1997 WL 251532 at
*7 ("[E]vidence . . . [of] independent creation offers yet
another ground on which summary judgement can be granted").
Therefore, even if the Plaintiff could be said to have
established prima facie copying, (which she has not), both
Defendants Carey and Afanasieff have offered convincing
documentary evidence to support their claim of independent
creation. See Selletti, 177 F.R.D. at 194; see also Novak,
752 F. Supp. at 164 (Court granted summary judgment to the
defendants where they submitted proof of independent creation in
the form of tape that was a "precursor" to their eventual work).
There are no genuine issues of copying here. The Defendants here
are entitled to summary judgment. See Novak, 752 F. Supp. at
170; Cox, 1997 WL 251532 at *7.
IV. Conclusion and Order
For the foregoing reasons, Defendants' motion for summary
judgment is granted. The Clerk is directed to enter an order
dismissing the complaint.