Can you prove copyright infringement without proof of copying?

You’ve probably heard of guilt by association. Some copyright owners make a similar argument when trying to establish infringement of their works. Such was the argument presented to the Sixth U.S. Circuit Court of Appeals in Jones v. Blige.

2 songs, 1 lawsuit

The plaintiffs claimed that singer Mary J. Blige’s song “Family Affair” infringed their copyrighted song “Party Ain’t Crunk.”

The basis of their claim was the fact that one plaintiff had submitted a CD with the song to Andy McKaie, a record executive at Universal Music Enterprises. (The CD was eventually returned.) After “Family Affair,” a collaboration between Blige and Andre Young (also known as Dr. Dre), was released, the plaintiffs brought a lawsuit for copyright infringement.

Assessing access

To establish copyright infringement, a plaintiff must establish that it owns the copyrighted work, and that the defendant copied it. As the Sixth Circuit explained, however, in the absence of direct evidence of copying, a plaintiff may establish an inference of copying by showing access to the allegedly infringed work by the defendant and a substantial similarity between the two works.

The Sixth Circuit has defined access as “essentially hearing or having a reasonable opportunity to hear the plaintiff’s work and thus having the opportunity to copy.” If the works are “strikingly” similar, strongly suggesting that copying had occurred, a lesser showing of access will suffice — or even no showing at all.

The plaintiffs in Jones based their theory of access on the delivery of the CD to McKaie at Universal. But Blige’s only connection to McKaie is that she has a recording contract with Universal, and Young’s only connection is that his record label has a distribution joint venture with a Universal entity. They both denied knowing McKaie.

The court concluded that the plaintiffs’ assertion of a connection between McKaie and the defendants was “mere speculation” and unsupported by the evidence. The plaintiffs presented no evidence of the nature of Blige’s and Young’s relationships with Universal that would allow a jury to find that they might have received a copy of “Party Ain’t Crunk.”

Citing a doctrine

The plaintiffs argued that they had established access through the “corporate receipt” doctrine. Under the doctrine, possession of a work by one employee of a corporation implies possession by another employee who allegedly infringed the work.

The Sixth Circuit hadn’t previously taken a published stance on the doctrine but noted that other federal appellate courts have required more than “bare corporate receipt” as proof of access. Those courts require some evidence that it was reasonably possible that the paths of the infringer and the infringed work crossed.

Here the Sixth Circuit found that the plaintiffs had set forth no evidence tending to show a reasonable possibility that their work had made its way from McKaie to Blige and Young.

Providing evidence

The failure to prove access to the allegedly infringed work was not excusable in this case because the court determined that the songs “Family Affair” and “Party Ain’t Crunk” aren’t so strikingly similar to preclude the possibility of independent creation.

And even if the songs were similar to that degree, the defendants had provided unrefuted evidence of independent creation. •