Jorgensen v. Epic/Sony Records
2003 WL 22857469, 351 F.3d 46 (2003)
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Rule of Law:
In a copyright infringement claim, bare corporate receipt of an unsolicited work is insufficient to establish a triable issue of access. A plaintiff must provide evidence of a nexus or relationship between the corporate recipient and the alleged infringers to demonstrate a reasonable possibility that the infringers had an opportunity to view the copyrighted work.
Facts:
- John L. Jorgensen, a musician, wrote and obtained a copyright for his song entitled 'Long Lost Lover'.
- Jorgensen engaged in unsolicited mass mailings of his song to numerous music publishing and record companies.
- Bruce Pollock, a managing producer at a BMG division unrelated to music publishing, admitted to receiving a CD of 'Long Lost Lover' from Jorgensen.
- Pollock stated under oath that he never listened to the CD, did not forward it to anyone, and had no relationship with the songwriters of the allegedly infringing song 'Amazed'.
- Harvey Leeds, a Vice President at Sony, also admitted to receiving tapes containing 'Long Lost Lover' from Jorgensen.
- Jorgensen testified that Leeds and his assistants repeatedly told him that his tapes were being forwarded to Sony's Artist and Repertoire (A&R) department.
- Sony admitted in response to a Request for Admissions that its A&R department, on limited occasions, showed material to writers and producers affiliated with the company.
- Subsequently, the songs 'Amazed' and 'My Heart Will Go On' were released, which Jorgensen claimed infringed on his copyright for 'Long Lost Lover'.
Procedural Posture:
- John L. Jorgensen filed a copyright infringement suit in the United States District Court for the Southern District of New York against several music publishing and entertainment companies.
- Following the discovery phase, the defendants filed a motion for summary judgment, arguing Jorgensen had failed to produce sufficient evidence of access.
- The District Court granted summary judgment in favor of all defendants, dismissing Jorgensen's case in its entirety.
- Jorgensen, the plaintiff, appealed the District Court's decision to the United States Court of Appeals for the Second Circuit.
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Issue:
Does a copyright plaintiff raise a triable issue of fact regarding access by demonstrating that a corporate defendant received an unsolicited copy of the protected work, without showing a specific nexus between the corporate recipient and the alleged infringers?
Opinions:
Majority - Straub
No, as to the 'Amazed' defendants; Yes, as to the 'Heart' defendants. Bare corporate receipt of an unsolicited work, without more, is insufficient to establish a triable issue of access for copyright infringement. A plaintiff must demonstrate a nexus between the recipient of the work and the alleged infringers. For the 'Amazed' defendants, Jorgensen failed to rebut the sworn testimony of the recipient, Bruce Pollock, who stated he had no connection to the songwriters and never forwarded the material. This constitutes mere 'bare corporate receipt' and fails to create a triable issue. However, for the 'Heart' defendants, Jorgensen provided evidence creating such a nexus. His testimony that Sony VP Harvey Leeds stated he would forward the tapes to the A&R department, coupled with Sony's admission that its A&R department shares materials with affiliated artists, creates a plausible 'chain of transmittal.' This evidence presents a triable issue of fact regarding whether the writers of 'My Heart Will Go On' had a reasonable possibility of access to Jorgensen's song.
Analysis:
This decision clarifies the 'access' element in copyright infringement within a corporate context, explicitly rejecting a broad 'bare corporate receipt' doctrine. It establishes that a plaintiff cannot survive summary judgment merely by proving they mailed their work to a company; they must adduce evidence of a tangible link or 'nexus' between the recipient and the alleged infringer. The ruling sets a practical standard, protecting large companies from speculative lawsuits while still allowing legitimate claims to proceed where a plaintiff can show a plausible internal channel—like an A&R department—through which the protected work could have reached the creators.
