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Jones v. Blige - 558 F.3d 485 (6th Cir. 2009)


In a copyright infringement action, access is essentially hearing or having a reasonable opportunity to hear the plaintiff's work and thus having the opportunity to copy. Access is proven when the plaintiff shows that the defendant had an opportunity to listen to or copy plaintiff's work. Access may not be inferred through mere speculation or conjecture. Nor is a bare possibility of access sufficient; a plaintiff must establish that defendant(s) had a reasonable possibility to view the plaintiff's work.


Plaintiffs, the holders of a rap song copyright, claimed that a song by the defendant singer infringed the copyrighted song that was created by plaintiffs. Plaintiffs based their theory of access on the fact that they submitted a demo compact disc (CD) of their copyrighted song to an executive at the publishing company, that the rejected demo CD was returned in a manner showing that the package had been opened, and that the company subsequently published the allegedly infringing song. The United States District Court granted judgment in favor of the defendants: the singer, two lyricists, and a music publishing company. According to the district court, Plaintiffs could not show that the Defendants had access to Plaintiffs' song and that, in any case, defendants had shown that they created their new song independently. 


Did the district court err in its decision to grant judgment in favor of the defendants?




Because plaintiffs set forth no evidence tending to show a reasonably possibility that their work made its way from the executive to the creators of the allegedly infringing song, the Court held that the district court correctly awarded its judgment in favor of the defendants. According to the Court, plaintiffs did not establish that defendants had access to plaintiffs' work. The Court posited that the failure to offer proof of access could not be excused because the two songs were not so strikingly similar as to preclude the possibility of independent creation. Further, the Court noted that the defendants offered unrefuted evidence that they created the allegedly infringing song before plaintiffs created their song.

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