Jorgensen v. Epic/Sony Records - 351 F.3d 46 (2d Cir. 2003)

Rule:

To satisfy the second element of a copyright infringement claim - the "unauthorized copying" element - a plaintiff must show both that his work was "actually copied" and that the portion copied amounts to an improper or unlawful appropriation. Actual copying may be established by direct or indirect evidence. Because direct evidence of copying is seldom available, a plaintiff may establish copying circumstantially by demonstrating that the person who composed the defendant's work had access to the copyrighted material, and that there are similarities between the two works that are "probative of copying."

Facts:

Plaintiff songwriter wrote and copyrighted a song he claimed had been infringed upon by two songs. He asserted two theories by which he hypothesized the writers of the two songs had access to, and copied his song: (1) through his unsolicited mass mailings of his song to entertainment companies listed in industry songwriter market books, including defendants; and (2) through actual receipt of his mailings by two executives at two of the publishers. The songwriter had not named the individual songwriters in the suit. The district court had found that the songwriter had not presented sufficient evidence of access to support his claim of copyright infringement.

Issue:

1. Was the evidence of corporate receipt of unsolicited work sufficient to raise a triable issue of access where there was no evidence of any connection between the individual recipients of the protected work and the alleged infringers? 
2. Did the evidence of actual receipt of plaintiff’s mailings establish sufficient evidence of a connection between the recipients of his recordings and the alleged infringers? 

Answer:

1) No. 2) Yes.

Conclusion:

The appellate court noted that in a copyright infringement case, the plaintiff must show: (i) ownership of a valid copyright; and (ii) unauthorized copying of the copyrighted work. To satisfy the second element of an infringement claim - the "unauthorized copying" element - a plaintiff must show both that his work was "actually copied" and that the portion copied amounts to an "improper or unlawful appropriation." Because direct evidence of copying was seldom available, a plaintiff may establish copying circumstantially by demonstrating that the person who composed the defendant's work had access to the copyrighted material. Access meant that an alleged infringer had a reasonable possibility – not simply a bare possibility of hearing the prior work. Access cannot be based on mere speculation or conjecture. In this case, the court held that evidence of corporate receipt of unsolicited work was insufficient to raise a triable issue of access where there was no evidence of any connection between the individual recipients of the protected work and the alleged infringers. However, the court held that evidence of actual receipt of plaintiff’s mailings established sufficient evidence of a connection between the recipients of his recordings and the alleged infringers. According to the court, a plaintiff must only establish that the alleged infringer had a reasonable opportunity to view his work; he was not required to establish actual access. Accordingly, as to three defendants, the court affirmed the district court's ruling, but vacated as to the remaining defendants because plaintiff proffered sufficient evidence of a connection between the recipients of his recordings and the alleged infringers.