The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
Pro se plaintiff John Jorgensen ("Jorgensen") originally
brought this copyright infringement action claiming that two
songs, My Heart Will Go On ("Heart"), performed by Celine
Dion on the soundtrack to the film Titanic, and Amazed,
performed by the country music group Lone Star, infringed upon
his copyrighted work Long Lost Lover ("Lover"). Plaintiff
filed the original complaint on December 1, 2000, and filed an
amended complaint on January 17, 2001. The amended complaint
contained one count of copyright infringement under
17 U.S.C. § 101 alleging infringement by both songs. See Amend. Compl. ¶
10. Defendants moved for summary judgment pursuant to Rule 56 of
the Federal Rules of Civil Procedure.
On September 23, 2002, I granted summary judgment to all
defendants as to both songs. Jorgensen v. Epic/Sony Records,
No. 00 Civ. 9181, 2002 WL 31119377 (S.D.N.Y. Sept. 24, 2002). On
December 3, 2003, the Court of Appeals affirmed the grant of
summary judgment relating to Amazed and in favor of defendants
Careers BMG Music Publishing, Songs of Nashville Dreamworks, and
Warner-Tamerlane Publishing Corporation. Jorgensen v. Epic/Sony
Records, 351 F.3d 46, 56-57 (2d Cir. 2003). Concerning
defendants Famous Music Corporation, Fox Film Music Corporation,
Blue Sky Rider Songs and Sony Music Entertainment Inc. ("Heart
defendants"), the grant of summary judgment was vacated and the
case remanded for further proceedings. Id. at 57. The Heart defendants now renew their motion for summary
judgment based primarily on declarations of James Horner, Will
Jennings (the writers of Heart) and David Jacoby of Sony.
Plaintiff, a musician who sings, plays guitar, piano and bass
guitar, is also a songwriter. Mr. Jorgensen has registered
several copyrights for his works with the Copyright Office,
including registering Lover (registration number PAU-2-013-382)
on October 2, 1995.
Heart was written in 1997 by James Horner and Will Jennings.
It was included on the soundtrack of the movie hit, Titanic.
Horner wrote the music, and Jennings wrote the lyrics to Heart,
which was recorded by the singer, Celine Dion. Heart won
several awards including an Oscar for Best Original Song in 1998,
and four Grammy awards.
Defendant Sony Music Entertainment ("Sony") manufactures and
distributes CDs and audio tapes of sound recordings. The
producers of Titanic and Sony agreed for Sony to manufacture
and distribute the film's soundtrack album and also distribute a
single of the song and other albums containing the song. Sony was
not involved with the writing of Heart, but only its
distribution. Defendant Famous Music Corporation ("Famous") is a
music publishing company affiliated with Paramount Pictures
Corporation ("Paramount"). Paramount, with Twentieth Century Fox
Film Corporation ("Fox Film"), co-produced Titanic. Fox Film
Music Corporation ("Fox Music") is a music publishing company affiliated with Fox Film. Defendant Blue Sky Rider Songs ("Sky
Rider") is a music publishing company owned by Jennings.
The three co-publishers of Heart are Famous, Fox Music, and
Neither songwriter, Mr. Horner or Mr. Jennings, has been sued
in this action.
After the Court of Appeals remand, the remaining theories of
access on which the plaintiff relies are that Messrs. Horner and
Jennings may have had the opportunity to hear Lover, through
the Artists and Repertoire ("A & R") Department of Sony if they
were "affiliated" with Sony. Mr. Jorgensen had sent the Lover
tape to Sony, and Harvey Leeds, a Vice President at Sony,
acknowledged at deposition receiving a few tapes from plaintiff.
The Court sees no need to further amplify the facts in this
decision because they are more than adequately explained in the
Court of Appeals decision and my earlier ruling.
Jorgensen, in his deposition, testified concerning several
conversations he had with "Leeds and Leeds's assistants . . .
regarding . . . tapes that Jorgensen sent to Leeds, including at
least one tape that contained . . . `Lover.'" Jorgensen,
351 F.3d at 50.
In its remand decision, the Court of Appeals wrote:
According to Jorgensen, during every one of these
conversations, Leeds or his assistants confirmed that
Leeds had received Jorgensen's tapes (including, in
particular, the "Lover" tape) and told Jorgensen that
his tapes had been forwarded to Sony's Artist and
Repertoire ("A & R") Department, the department
responsible for helping the company "find, sign and
guide new talent." In addition, in response to Jorgensen's
Requests for Admissions, Sony indicated that "on
limited occasions, writers, producers or musicians
affiliated with Sony may have been shown some
material solicited by the A & R Dept. at some point
during 1995, 1996 and 1997. . . ."
Id. (alteration in original). The Court of Appeals ruled that
this undercut the defense claim that plaintiff "failed to adduce
even a scintilla of evidence" of Leeds supplying the Lover song
to anyone else. Id.
The Court of Appeals further wrote that "it would be well
within the District Court's discretion to permit limited
discovery into the question of the timing of the songwriters'
affiliation with Sony and to entertain a renewed ...