Parker v. Winwood

Steve Winwood, other former members of band The Spencer Davis Group, and their publishing companies obtain summary judgment in copyright infringement suit, based on finding that plaintiffs’ evidence that defendants had access to and copied portions of their song was inadmissible hearsay.

Willa Dean Parker and Homer Banks co-authored a song titled “Ain’t That a Lot of Love” in 1965. The next year, British rock band The Spencer Davis Group — Steve Winwood, Mervyn Winwood and Spencer Davis — created the song “Gimme Some Lovin’.” Plaintiffs Parker and Rose Banks (successor in interest to Homer Banks) in March 2016 brought suit against defendants Steve Winwood, Mervyn Winwood, Davis, The Spencer Davis Group, Kobalt Music Publishing and Universal Songs of Polygram International Inc. for copyright infringement. Plaintiffs alleged that defendants had access to “Ain’t That a Lot of Love” prior to their creation of “Gimme Some Lovin’,” and that they incorporated a bass riff from the plaintiffs’ work into “Gimme Some Lovin’.” Defendants Steve Winwood and Kobalt moved for summary judgment, arguing that The Spencer Davis Group had independently written “Gimme Some Lovin’” before the U.K. release of “Ain’t That a Lot of Love” and that it would have been impossible for the band to have infringed the plaintiffs’ work in the 21 days between the U.K. release of “Ain’t That a Lot of Love” and the release of “Gimme Some Lovin’.” Plaintiffs countered that an independently recorded version of their song had been available in the U.K. in the year prior to the release of “Gimme Some Lovin’” and that Spencer Davis had admitted that the defendants’ song was based on the plaintiffs’ song. Plaintiffs’ proffered online copies of articles in support of their arguments.

The district court determined that the online articles submitted by the plaintiffs were inadmissible hearsay and could not be considered for purposes of the summary judgment motion, and that the plaintiffs had failed to provide any evidence to rebut the defendants’ evidence of independent creation. As to whether The Spencer Davis Group could have infringed the plaintiffs’ work in the 21 days between the release of the two songs, the district court found that the plaintiffs likewise had not offered any admissible evidence to show that such an infringement had occurred, but merely alleged that the infringement was possible. Holding that the plaintiffs had not put forth evidence demonstrating that there was a genuine issue of material fact as to whether the defendants had heard “Ain’t That a Lot of Love” prior to the creation or release of “Gimme Some Lovin’,” the district court granted summary judgment in favor of Winwood and Kobalt.

The district court ruled on various other motions brought by the defendants, including motions to dismiss by Steve Winwood, Kobalt and Universal.

In their motion to dismiss for failure to state a claim, Steve Winwood and Kobalt argued that the plaintiffs failed to allege that they complied with the statutory formalities required under the 1909 Copyright Act, which governed publication and registration issues relating to “Ain’t That a Lot of Love,” which would grant them copyright protection and allow them to bring this action. Specifically, Winwood and Kobalt argued that the 1909 Act required plaintiffs to reregister their work, which was initially registered as an unpublished work, with the Copyright Office after it had been published and to deposit copies of the work with the Copyright Office. According to the district court, the plaintiffs could have obtained copyright protection by either (1) publishing the work with the proper notice or (2) composing, but not publishing, the work and making the necessary deposits. Such deposits were required only after the Register of Copyrights demanded them. The district court first explained that distribution of phonorecords prior to 1978 does not constitute publication of the underlying composition. Even if the work had been published, the court found, a failure to promptly file deposit after publication would not prevent the plaintiffs from later bringing a copyright infringement suit. The district court therefore denied Winwood and Kobalt’s motion to dismiss.

Universal separately moved to dismiss, arguing that the plaintiffs lacked standing to bring a copyright infringement suit because they had assigned their copyright in the song to a music publishing company. However, the district court found that because the assignment of legal title to “Ain’t That a Lot of Love” was made in exchange for a right to receive royalties based on sales and license fees, the plaintiffs were beneficial owners of the song and had standing to sue for copyright infringement. Universal also argued that because the copyright to “Ain’t That a Lot of Love” was ultimately transferred to one of its sister companies, Universal had “common ownership” of the work and could not be sued for infringement of it. The district court agreed, citing law that “[a] copyright owner cannot infringe upon the particular interest owned by him,” and granted Universal’s motion to dismiss. The district court also denied Universal’s motion to dismiss contributory infringement claims against Mervyn Winwood and Spencer Davis on the ground that they could not be liable because Universal was not liable for direct infringement. But because Winwood and Davis did not join in that motion, the district court denied that portion of Universal’s motion.

Summary prepared by Tal Dickstein and Kyle Petersen.