The opinion of the court was delivered by: Sweet, D.J.
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of a copyrighted but unpublished musical composition entitled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
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.
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
At the close of the hearing, both sides moved for summary
judgment on the record before the court.
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
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
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
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
There has been no effort to promote or sell the Demo Tape since
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,
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.
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 ...