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Sixth Circuit: No evidence of license, no contributory copyright infringement
November 28, 2007

In a decision last week, the Sixth Circuit affirmed a district court's grant of summary judgment of no copyright infringement. At issue was whether a record company, Universal, granted a license to others to perform a Snoop Dogg song - "Change Gone Come" - that allegedly infringed an earlier work by the P-Funk All Stars, "Pumpin' It Up," the copyright to which is owned by the plaintiff, Bridgeport. The Sixth Circuit agreed with the district court's decision that the plaintiffs failed to introduce evidence that Universal had granted a license, and therefore contributorily infringed Bridgeport's copyright, and that receipt of royalties alone by Universal was insufficient to create contributory copyright infringement.

Pumpin' It Up was composed by P-Funk All Stars and originally released in 1983; it was re-released in 1995. Snoop Dogg and others composed the song Change Gone Come. Universal entered into an exclusive songwriter and co-publishing agreement with one of the composers of Change Gone Come in which Universal acquired 25% interest in the copyright in certain songs, including Change Gone Come.

In 1999 and 2000, other record companies released albums ("Well Connected" and "Dead Man Walkin'" respectively) which contained a recording of Change Gone Come. Universal was not involved in the manufacturing, distribution, or sale of either of the 1999 or 2000 albums. Universal did, however, receive royalties in connection with Change Gone Come in the amount of approximately $700.

When Bridgeport became aware of the release of the albums that included Change Gone Come, it filed a lawsuit alleging claims of copyright infringement, and seeking a declaratory judgment, a permanent injunction, and an accounting. Bridgeport contended that song interpolated the vocals "I Feel Like Pumpin' It Up, Feel Like Pumpin' It Up" from "Pumpin' It Up" with the vocals "I Feel Like Givin' It Up, Real Like Livin' It Up" in "Change Gone Come."

The infringement claim was one of contributory infringement, based on the assertion that Universal had granted Snoop Dogg a license to use "Pumpin' It Up." Bridgeport alleged that Universal granted an oral, written, or implied license in Change Gone Come as the recording appeared on the albums "Well Connected" and "Dead Man Walkin'." Universal denied any licenses were issued in connection with either of the albums,a and submitted an affidavit to that effect. Given this showing, the court found that Universal had "satisfied its initial burden and the burden shifted to Bridgeport to introduce evidence that Universal granted a license."

Bridgeport argued that an oral or implied license could be inferred in that Bridgeport held a copyright in Pumpin' It Up, that Universal held a copyright in Change Gone Come, and that Change Gone Come contains an unauthorized interpolation of Pumpin' It Up. Bridgeport also argued that receipt of royalties by Universal for Change Gone Come was evidence of a license, and therefore copyright infringement.

In affirming the district court, the Sixth Circuit cited its Rhyme Syndicate case (interestingly, another case with Bridgeport as the plaintiff), that the circumstantial evidence relied upon by Bridgeport cannot create a genuine issue of material fact as to whether Universal granted a license in Change Gone Come regarding the recordings of the song in the 1999 and 2000 albums. With Universal's affidavit denying any grant of license, the burden shifted to Bridgeport to come forward with evidence connecting the defendant to the distribution and sale of the albums. No such evidence was ever introduced. As a result, the court affirmed the district court's grant of summary judgment of no infringement.

To read the full decision in Bridgeport Music, Inc. v. WB Music Corp., click here.

Astute music aficionados will notice that the court erroneously refers to Snoop Dogg as "Snoop Dog," eliminating one "g." No errata notice has yet been issued by the court.

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