Recording artist Tim McGraw can still sing his song Everywhere, anytime.

In this action, Martinez claimed the Tim McGraw song Everywhere was a copy of his song Anytime, Anywhere, Amanda. The lower court dismissed his claim, and he appealed. The 6th Circuit upheld the dismissal as Martinez’s claims were based on unsupported “speculation or conjecture.” And while the news media broadcast headlines like, “Tim McGraw sued for $20 million,” and “McGraw’s Stolen Song” the facts of this case reveal the lengths people can go to try and make a claim.

In a copyright action the two things to prove are ownership of the original work, and that the work was copied. This is key, as there is no copying in an independent creation. If two artists write songs that are very similar, yet neither knows of the other’s work, then there is no copyright infringement. As rarely is someone caught outright, copying is generally proven by showing 1) access, and 2) substantial similarity between the two works.

While Martinez lost on multiple points, this case is an interesting relation of the extremes people will go to in trying to connect the dots. The district court found there was no substantial similarity between the works (upheld) but the key discussion relates to Martinez’s attempts to show access. Because McGraw could not have copied something he had never heard, Martinez had to show that somehow his song made it to McGraw (or his writers).

Martinez attempted to do so in a failed version of “seven degrees of separation.”   As a quick summary according to Martinez, he recording the song in July or August 1996. The song was never released, never offered for sale, no one had a print of the lyrics. It was performed only in South Texas. In the fall of 1996 he mailed a tape of the song to his friend Susan Tomac. Tomac says she then gave the tape to David Bartly, who had a photography studio in Tennessee. Bartly died in 2012, before he could be deposed for the case. (Note, the case was filed in 2005, so there was 7 years available to do this.) Martinez claims Bartly’s ex-wife states Bartley “could have” passed the tape on to Karen Phillips or maybe Lee Greenwood, but this is admittedly “guessing.” Martinez then claims both Bartley and Phillips passed the tape to Lee Greenwood, or Lee Greenwood’s attorney Ralph Gordon. Then somehow, since Greenwood and Reid (one of the authors of the Tim McGraw song) had met once 12 years prior, and not seen each other sense, the tape got back to Reid who is credited as an author of the McGraw song.

Disregarding the required element of time travel, the district court politely refers to this as “attenuated chains of hypothetical transmittals.” The 6th Circuit states, “the hypothetical transmittals fail to support a reasonable inference that any Defendant or associate of any Defendant received a copy of Anytime, much less that Wiseman or Reid, the alleged infringers, heard or had a reasonable opportunity to hear Anytime and copied it before they co-wrote Everywhere.”

As the court points out:

“[a]ccess may not be inferred through mere speculation or conjecture.” Blige, 558 F.3d at 493; see also Ellis, 177 F.3d at 506.

A plaintiff cannot rely on unsupported inferences to prove access. See e.g., Raum v. Norwood, 93 F. App’x 693, 696-97 (6th Cir. 2004); Ellis, 177 F.3d at 506.

The songs may be similar (the district court and Court of Appeals held they were not) but that is beside the point. A copyright claim requires someone copying. Two people with independent creation does not give rise to a copyright claim. And access needs to me more than a fanciful game of seven degrees of separation.   Though not discussed, under Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) this case approaches the standards for an award of attorney fees to McGraw.

Of course relevant headlines do not sell, so this all gets dumbed down to “Tim McGraw’s Stolen Song” for the masses.

Full text of 6th Circuit Opinion:   Martinez v. Tim McGraw, et al. 13-5796, 6th Cir., Sept. 15, 2014

 

 

 

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