Armour v. Knowles

I.

Jennifer Armour, an aspiring singer and songwriter, composed a demo tape that *151 she hoped would help advance her career. Produced in early January 2003, the material on the tape included an instrumental version of her song, “Got a Little Bit of Love for You” (hereinafter “Little Bit of Love”). On February 12, 2003, Armour registered a copyright of an a cappella version of “Little Bit of Love.” On May 1, 2006, she registered a copyright of an instrumental version of the same song.

Sometime between January and March 2003, Armour’s manager, Marc McKinney, sent copies of the tape to a number of people thought to be associated with Bey-oncé Knowles, a successful, popular rhythm-and-blues artist. After sending the tapes, McKinney heard nothing in response, nor were any of the tapes returned.

Meanwhile, in February 2003, Beyoncé entered a recording studio and began work on a new album with collaborators Robert Waller and Scott Storch. The album included a song entitled “Baby Boy.” After finishing in the studio, Beyoncé decided to add a guest artist, Sean Paul, who contributed a section to the song. Beyoncé commercially released “Baby Boy” on June 24, 2003, and it soon became a hit.

Armour claims to have heard Beyoncé perform “Baby Boy” at a concert and to have been struck by the similarities between that song and her own. On July 11, 2005, Armour filed a suit for copyright infringement against Beyoncé, Robert Waller, Scott Storch, Sean Paul, their respective record labels, and. various other parties alleged to have been involved in the creation and distribution of “Baby Boy” (all defendants hereinafter collectively referred to as “Beyoncé”). Armour claims she had a valid copyright to “Little Bit of Love,” that Beyoncé copied parts of “Little Bit of Love” in creating “Baby Boy,” and that the two songs sound substantially similar to establish a claim of infringement. Armour principally claims Beyoncé copied portions of the melody of the two-bar “hook” — pop parlance for “chorus” — that formed the musical heart of “Little Bit of Love.” 1

Beyoncé successfully moved for summary judgment, contending that Armour had not established any genuine issues of material fact. Although the district court found summary judgment inappropriate as to some elements of Armour’s copyright infringement claim, it concluded that no reasonable jury could find the two songs substantially similar. The court also awarded Beyoncé costs. We affirm the judgment, dismiss the appeal of an order awarding costs, and deny a motion to strike record excerpts.

*152 II.

We review a summary judgment de novo, applying the same standards as did the district court. Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir.2003). To prove copyright infringement, a plaintiff must establish (1) ownership of a valid copyright; (2) factual copying; and (3) substantial similarity. 2

The second prong, factual copying, can be proved by direct or circumstantial evidence. To make out a circumstantial claim, a plaintiff must prove that (1) the defendant had access to the copyrighted work before creation of the infringing work and (2) the works contain similarities that are probative of copying. 3 In other words, for the circumstantial case of factual copying, the combined existence of access to the copyrighted work and similarities between the two works establishes the assumption as a matter of law that copying in fact occurred. Once a plaintiff circumstantially establishes factual copying, the defendant may rebut the circumstantial evidence if he can prove that he independently created the work. Positive Black Talk, 394 F.3d at 367-68.'

Finally, once a valid copyright and factual copying have been established, the plaintiff must establish the third prong of substantial similarity. Here, the plaintiff must show that the copyrighted expressions in the two works are sufficiently alike that the copyright to the original work has been infringed. Id.

Armour sought to establish the second prong circumstantially by proving access and probative similarity. Beyoncé disputed access and probative similarity and sought to rebut factual copying by claiming independent creation. The district court refused to grant summary judgment on access, probative similarity, or independent creation but granted summary judgment on the third prong of substantial similarity.

On appeal, Armour requests that we reverse the finding of no substantial similarity. Beyoncé asks us to affirm the substantial similarity finding or, alternatively, to affirm on the ground of access, probative similarity, or independent creation. We conclude that Armour cannot prove Beyoncé had access to Armour’s demo tape before composing the allegedly infringing elements of her own song, so we affirm the summary judgment on that ground 4 and do not reach the question of probative or substantial similarity.

III.

To establish access, a plaintiff must prove that “the person who created *153 the allegedly infringing work had a reasonable opportunity to view the copyrighted work” before creating the infringing work. 5 Indeed, “[a] bare possibility will not suffice; neither will a finding of access based on speculation or conjecture.” 6 “Reasoning that amounts to nothing more than a ‘tortuous chain of hypothetical transmit-tals’ is insufficient to infer access.” 7 “[0]nce the moving party has properly supported his summary judgment motion, the nonmoving party must rebut with ‘significant probative’ evidence.” 8 Such evidence must be sufficient on its own to “support a jury verdict in the nonmoving party’s favor.” 9 . Taking the access and summary judgment standards together, a plaintiff can survive summary judgment only if his evidence is significantly probative of a reasonable opportunity for access.

A.

Beyoncé’s creation of “Baby Boy” was a gradual process, involving various iterations and refinements over time. Although Beyoncé did not put the final touches on her song until March 13, 2003, the parties agree that she composed the key allegedly infringing portion of “Baby Boy” — the melody of the two-bar “hook”— by February 13, 2003. 10

Armour suggests four paths by which Beyoncé allegedly had access to Armour’s demo before composing the relevant portion of “Baby Boy” on February 13. Armour maintains that her manager, Marc McKinney, mailed or passed the demo tape at the end of January 11 to four of Bey-oncé’s associates: Matthew Knowles, Bey-oncé’s father and manager; Jim Vellutato, an executive at Beyoncé’s record publisher, Sony Music; Andrew Feigenbaum, an executive at Atlantic Records, the label of Beyoncé’s collaborator Sean Paul; and a mysterious man known as “T-Bone,” who Armour contends was a “friend” of Bey-oncé’s.

Although the question of when Beyoncé had access to Armour’s demo tape through each of the four paths claimed by Armour remains a heavily dis *154 puted fact issue, that dispute is almost entirely eclipsed by binding judicial admissions made by Armour in her response to Beyoncé’s request for admissions. In her admissions, Armour stated that the demo tapes were sent or given to Beyoncé Knowles, Matthew Knowles, Jim Vellutato, and Andrew Feigenbaum in “either late February or early March 2003.” 12 (R. 509-10.). Accordingly, that date constitutes a binding judicial admission that this court must deem conclusively established under Federal Rule of Civil Procedure 86(b). 13

The binding date of “late February or early March” makes access impossible along the paths involving Matthew Knowles, Jim Vellutato, or Andrew Feig-enbaum. Because Beyoncé created the allegedly infringing portion of “Baby Boy” by February 13, Armour could not establish that Beyoncé had access before February 13 to a demo tape that was not sent to her or her associates until “late February or early March.” 14

B.

The only path not blocked by Armour’s admissions involves the elusive T-Bone, who was not mentioned in the admissions. 15 Armour could rely on McKinney’s testimony to support her theory that a tape was mailed to T-Bone at the *155 “end of January” and that it subsequently fell into Beyoncé’s hands before she created the allegedly infringing portions of “Baby Boy” by February 13. The T-Bone hypothesis, however, remains the weakest of Armour’s theories, because the nature of T-Bone’s relationship with Beyoncé has not been well established in the summary judgment record. Armour has not presented enough evidence to establish a genuine issue of material fact on that surmise alone.

Specifically, Armour has offered no direct evidence to explain the nature of T-Bone’s relationship to Beyoncé or the frequency with which the mysterious and unidentified “T-Bone” and Beyoncé were in contact. Instead, Armour relies solely on the affidavit of McKinney, Armour’s manager. In his affidavit, McKinney states his personal belief that T-Bone and Beyoncé were good friends, but he provides no information about the basis for this knowledge or about the frequency with which Beyoncé and T-Bone communicated. The only other evidence supplied by the affidavit suggests that Beyoncé and T-Bone had worked together on a movie set in the past and that T-Bone had played one of Armour’s previous demo tapes for everyone on the set to hear. There is no other evidence in the record to support Armour’s theory implicating T-Bone. Not surprisingly, the record contains no affidavit from, or deposition of, T-Bone.

Even construed in the light most favorable to Armour, this evidence alone is not significantly probative of a reasonable opportunity for access. For a jury to infer access, it would have to make the following leaps of logic, none of which is substantiated by evidence in the summary judgment record: (1) T-Bone and Beyoncé were in fact good friends; 16 (2) T-Bone and Bey-oncé regularly communicated; 17 (3) T-Bone received and listened to the demo tape that McKinney claims to have mailed to him in “late January”; 18 (4) after receiving and listening to it, T-Bone gave the tape to Beyoncé; (5) Beyoncé received the tape and had the opportunity to listen to it; (6) all of this happened in the two short weeks between the date McKinney mailed the demo tape at the “end of January” and the recording of “Baby Boy” on or before February 13.

Without more probative evidence to substantiate such a long chain of inferences, the T-Bone theory requires too much “speculation and conjecture” on which to rest the conclusion that Beyoncé had a reasonable opportunity for access. See Peel, 238 F.3d at 396. No reasonable jury could find access on the basis of that *156 summary judgement evidence alone. Accordingly, because Armour’s only theory not barred by her binding admissions fails, she cannot establish access, and her copyright claim therefore cannot survive summary judgment. 19

IV.

Armour argues that the district court abused its discretion in awarding Beyoncé costs. Because Armour did not file a timely notice of appeal of the post-judgment order on costs, she has waived any objection.

On September 21, 2006, the district court issued its memorandum and order granting summary judgment, from which Armour filed a timely notice of appeal. After the summary judgment order was issued, Beyoncé filed a motion for costs and attorneys’ fees. On November 7, the court issued its order awarding costs to Beyoncé. On November 8, Armour filed a motion for reconsideration, which was denied, but Armour never filed a separate notice of appeal objecting to the cost award.

“ ‘[A]n appeal from a final judgment sufficiently preserves all prior orders intertwined with the final judgment,’ even when those prior orders are not specifically delineated in the notice of appeal.” Fiess v. State Farm Lloyds, 392 F.3d 802, 806 (5th Cir.2004) (emphasis added) (quoting Trust Co. v. N.N.P., Inc., 104 F.3d 1478, 1485 (5th Cir.1997)). “While an issue initially raised in a post-judgment motion may be preserved for appeal, it cannot be considered by this court unless the judgment or order disposing of it is properly noticed for appeal.” Id. (emphasis added). The district court issued its order on costs almost two months after issuing its summary judgment order. Because the order on costs was a post-judgment order and not a prior order, it cannot be challenged without a separate notice of appeal. 20 We therefore do not have jurisdiction to decide whether the district court abused its discretion in awarding costs to Beyoncé.

The judgment is in all respects AFFIRMED. The appeal of the order awarding costs is DISMISSED for want of jurisdiction. The motion to strike record excerpts is DENIED.