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February 17, 2000


The opinion of the court was delivered by: Berman, District Judge.


I. Introduction

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.

II. Background

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).

III. Analysis

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 (1986).

Copyright Infringement

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 ...

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