Jones v. Blige, 2009 WL 578753 (6th Cir. Mar. 9, 2009)
James White was the business manager for Tim Acker, a hip hop artist who used the show-name “Benevolence.” White claimed that Andre Young (“Dr. Dre”) and Mary J. Blige’s song, “Family Affair,” infringed Acker’s work, “Party Ain’t Crunk.” White alleged that he had pitched “Party Ain’t Crunk” to the Senior Vice President of Artists and Repertoire for Universal Music Enterprises over the phone. White further alleged that the executive invited him to send a demo, which he dropped off at the label. White followed up with a call to the executive, who told him that “their department had decided to pass on [the CD].” At White’s request, the executive returned the materials White had submitted, sans the original envelope and cover letter, thus showing that White’s envelope had been opened.
The district court granted summary judgment for the defendants on the grounds that White failed to respond to a request for an admission that the lyrics of the two songs were not substantially similar and an admission that defendants had no access to the lyrics of “Party Ain’t Crunk.” The district court further found that no reasonable juror could find that the lyrics of the two songs were substantially similar.
On appeal, White made the argument, among others, that he had established access by virtue of the corporate receipt doctrine. The doctrine states that the possession of a work by one employee of a corporation implies possession by another corporate employee who allegedly infringed the work.
Judge R. Guy Cole, writing for a panel that included Judges Cornelia Groefsema Kennedy and Ronald Lee Gilman, affirmed the district court, and created an end-around by distinguishing bare corporate receipt from the corporate receipt doctrine. While Judge Cole didn’t explicitly demarcate the dividing line between the two, it appears that for the corporate receipt doctrine to come into play, there must be some evidence tending to show a reasonable possibility of access:
While we are cautious of making it overly difficult for plaintiffs to establish access where the chain of possession of a work within a corporation is difficult to prove, Plaintiffs in this case have set forth no evidence tending to show a reasonable possibility that their work made its way from [the A&R executive] to the creators of “Family Affair.” There is no evidence that Blige, Young, or the other artists knew [the A&R executive] or worked with him, even indirectly. There is no evidence of the nature of Blige’s and Young’s relationships with Universal employees that would support an inference that [the A&R executive] transferred Plaintiffs’ song to Blige or Young through other intermediaries at Universal. As far as the record shows, Blige and Young were affiliated with [the A&R executive] only through an attenuated corporate connection, and to find a reasonable possibility of access, a jury would be required to make an implausible leap, unsupported by evidence other than bare corporate receipt.
For precedent, Judge Cole cited to an unpublished decision, Glanzmann v. King, 887 F.2d 265 (6th Cir .1989), where the Circuit found that the application of the corporate receipt doctrine would have resulted in the “implausible … quantum leap” that Stephen King had “access to a script submitted to a secretary at Columbia Pictures, even though the evidence suggested no reasonable possibility that the script had made its way to King.” The Court also cited to holdings in the 2d, 4th and 8th Circuits:
Other circuits have rejected “bare corporate receipt” as sufficient proof of access, requiring plaintiffs to introduce some evidence that it was “reasonably possible that the paths of the infringer and the infringed work crossed.” Towler v. Sayles, 76 F.3d 579, 583 (4th Cir.1996) (requiring a “close relationship” for the corporate receipt doctrine to apply); see also Jorgensen v.. Epic/Sony Records, 351 F.3d 46, 48 (2d Cir.2003) (“[B]are corporate receipt …, without any allegation of a nexus between the recipients and the alleged infringers, is insufficient to raise a triable issue of access.”); Moore, 972 F.2d at 942 (a “bare possibility” of access is not enough; rather, a plaintiff must show that the defendant had a “reasonable possibility” of viewing his work).