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TISI v. PATRICK

May 22, 2000

MICHAEL TISI, PLAINTIFF,
V.
RICHARD PATRICK, FILTER, WARNER BROTHERS RECORDS INC., D/B/A REPRISE RECORDS, WEA INTERNATIONAL INC., EMI APRIL MUSIC INC., EMI MUSIC INC. D/B/A EMI RECORDS AND EMI RECORDS GROUP, DEFENDANTS.



The opinion of the court was delivered by: Sweet, D.J.

OPINION

Plaintiff Michael Tisi ("Tisi"), a songwriter and the composer of a copyrighted but unpublished musical composition entitled "Sell Your Soul" ("SYS"), sought a preliminary injunction under Rule 65, Fed.R.Civ.P., to enjoin the defendants Richard Patrick ("Patrick"), Filter, a performing group, Warner Brothers Records Inc., d/b/a Reprise Records ("Warner Brothers"), WEA International Inc. ("WEA"), EMI April Music Inc., EMI Music Inc. d/b/a EMI Records and EMI Records Group (collectively, "Defendants") from distributing "Take A Picture" ("TAP"), a musical composition written by Patrick, on the grounds that TAP is derived from SYS and thereby infringes on Tisi's copyright.

In addition, both Tisi and Defendants have moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P. Upon the findings of fact and conclusions of law set forth below, Tisi's motions for a preliminary injunction and summary judgment are denied, and Defendants' motion for summary judgment dismissing the complaint is granted.

This action requires an analysis of the common and unique aspects of the two rock music compositions at issue, as well as resolution of the issue of Patrick's access to Tisi's composition. Thanks to the skill of counsel and the clarity of the Defendants' expert witness, the unfamiliarity of the court with the genre has been overcome. A combination of common sense and a hastily trained ear dictate the forthcoming result.

Prior Proceedings

Tisi commenced this action on February 7, 2000, by filing a complaint alleging that Defendants' publication of TAP violates Tisi's copyright in SYS.

An order to show cause seeking a preliminary injunction was obtained on February 14, 2000, discovery proceeded, affidavits in support and in opposition to the motion were submitted, and a hearing on the application was held on March 16, 20, and 21, at which evidence in the form of testimony and exhibits was produced.

At the close of the hearing, both sides moved for summary judgment on the record before the court.

Findings of Fact

Tisi has composed and performed rock and roll songs off and on over the past ten years. Early in 1994, with a group, Blue Dahlia, he made a demonstration tape (the "Demo Tape") which included a recording of his composition SYS. Tisi classified this song as adult, contemporary rock music. SYS was copyrighted.

Tisi, his father Arthur Tisi, and his father's partner in Arthur Joseph Productions Company, Joseph Giovanni ("Giovanni"), sought to promote the Demo Tape and to obtain a recording contract for Tisi. Arthur Joseph Productions coordinates and promotes special events and in the course of such activities Giovanni and Arthur Tisi developed some knowledge of and contacts in the entertainment industry.

In 1994, Arthur Tisi sent the Demo Tape to Kenneth Lane, who at that time was a senior vice president of promotion at EMI Records. Lane listened to the tape and played it for executives in EMI's A&R (artists and repertory) department. The tape was rejected some weeks later. A letter of rejection was received from Lane on December 20, 1994. EMI Records at the time had no relationship with Patrick or Filter and was a competitor of Warner Brothers.

After the initial submission to EMI, Arthur Tisi made a submission to Warner Brothers through Greg Geller on December 13, 1994, which resulted in a rejection on March 13, 1995. The Demo Tape was sent to Brian Koppelman at EMI Records again in August 1995.

In the same time frame, Giovanni, through his dentist, got the name of Jason Flom at a Warner Brothers Company, Atlantic Records. Giovanni testified that he sent the Demo Tape to Flom, who rejected the tape. There is no record relating to these actions.

Giovanni also testified that he requested John Ferry, an agent who had signed performers with Interscope, to have Interscope review the Demo Tape. Giovanni further testified that he had been told by someone that an unidentified member of "Nine Inch Nails" had heard the Demo Tape. Without corroboration, however, this vague double hearsay is not credible in view of Giovanni's interest and his failure to refer to these events in an earlier sworn statement on the subject.

In 1994 and 1995, Arthur Joseph Productions also submitted the Demo Tape to Mercury Records, Arista Records, Inc., Columbia Records, MCA Records, Interscope Records, Island Records, Geffen Records, Sony Music, Epic Records and Virgin Records, through particular individuals in most instances. These submissions did not result in any further inquiries with respect to the Demo Tape.

Ken Lane and Brian Koppelman of EMI were invited to a performance by Blue Dahlia on October 29, 1995 at which SYS was played. Lane attended, but there is no evidence that Koppelman did.

There has been no effort to promote or sell the Demo Tape since early 1996.

In early November 1999, Tisi heard TAP for the first time and bought the a copy of the compact disc, "Title of Record," on which the song appears, although in an affidavit submitted in connection with the order to show cause, Tisi stated that he had not learned of the Patrick song until told about it by others in "late December 1999." The Tisis first consulted an attorney concerning the enforcement of Tisi's copyright on October 25, 1999.

Patrick, a Chicago resident, has performed and composed music since 1984 and has achieved wide recognition. In 1989, Patrick, then twenty-one years of age, toured as a guitar player with the band "Nine Inch Nails" and wrote music when not touring. In 1993, Patrick formed his own band, Filter, and in 1994 signed a recording agreement with Warner Brothers Records. "Short Bus," Filter's first album with songs written by Patrick, was released in April 1995 by Reprise Records, Inc., a division of Warner Brothers. A two-year tour followed. The "Short Bus" album achieved platinum sales status. Although most of the compositions on "Short Bus" are hard rock, two are more acoustic and softer, as was a 1997 Patrick composition for television.

In late 1996, Patrick, while playing his electric guitar, hit upon several chords which he liked, and he then composed a chorus, all of which he put aside during the construction of his sound studio in Chicago, the Abyssinian Sons Studio. In November 1997, Patrick recorded this guitar segment with a percussion group and added a melody which was heard by a Reprise executive. He composed the lyrics in 1998, which were related to an incident when Patrick was asleep on an airplane.

In 1999, Patrick completed work on Filter's next album, "Title of Record" and included as one of the songs this material which he had worked on in 1996 and 1997 and entitled it "Take A Picture." In the final version of the song, world-beat drums and a twelve-string guitar and additional guitar tracks were added. TAP was an independent creation by Patrick and those working with him, none of whom had heard SYS.

TAP was commercially released on August 24, 1999, and was promoted as a single to radio stations beginning on September 21, 1999. It started on the Billboard "Hot 100" chart at number 91 and by February 12, 2000 had risen to number 12. In early March it was number 20, when it was simultaneously number 1 on the Billboard "Dance" chart. Filter has been on tour since the release of the album "Title of Record," and TAP has become a signature song for Filter and Patrick. Warner Brothers Records has invested over $4.5 million in the composition, licensing, and promotion of the album.

Patrick does not accept or listen to unsolicited tapes and has no relationship with EMI Records. EMI April Music Inc. and EMI Music Inc. administer copyrights, including Patrick's, but have no role in the creative process and have not sent tapes to Patrick or to anyone else. Until this ...


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