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JORGENSEN v. EPIC/SONY RECORDS

December 15, 2004.

JOHN JORGENSEN, Plaintiff,
v.
EPIC/SONY RECORDS, FAMOUS MUSIC CORPORATION, FOX FILM MUSIC CORPORATION, BLUE SKY RIDER SONGS, Defendants.



The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge

OPINION and ORDER

Procedural Status

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.

  Background

  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 Sky Rider.

  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 ...


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