[00:00:00] Speaker 01:
Good morning.

[00:00:02] Speaker 01:
May it please the court?

[00:00:04] Speaker 01:
In the court below, Mr. Ember said he submitted compelling expert evidence from a renowned musicologist that his work, Emanuel, was copied in a work composed 13 years later.

[00:00:20] Speaker 01:
The district court held that the extrinsic test for copyright infringement was met because there was a substantial similarity between the two works.

[00:00:31] Speaker 01:
Mr. Amber said he also submitted clear and compelling evidence of the defendant's access to his work.

[00:00:39] Speaker 04:
Counsel, perhaps I missed this, but I thought that the 23 similarities that Dr. Ferraro referred to that were selected and arranged, he didn't say anything about it being in a novel form.

[00:00:52] Speaker 04:
As a matter of fact, it looks rather random to me, which is insufficient for Skidmore.

[00:00:57] Speaker 04:
How would you respond to that?

[00:01:00] Speaker 01:
Your Honor, Dr. Ferrara, a well-known expert in this circuit, said that there was an immense amount of original expression in a manual that consisted of these 23 similarities.

[00:01:15] Speaker 01:
So he found that the selection and arrangement of these musical choices by Mr. Ambrosetti constituted an immense amount of expression.

[00:01:27] Speaker 04:
But with respect, he also pointed out that

[00:01:29] Speaker 04:
liturgical music is very similar.

[00:01:32] Speaker 04:
There's just lots and lots and lots of things that you hear over and over and over again.

[00:01:36] Speaker 04:
And Emmanuel's filled with that, filled with it.

[00:01:40] Speaker 04:
I'm struggling with where there are striking similarities.

[00:01:43] Speaker 04:
As you know, it's a very high bar to meet.

[00:01:46] Speaker 04:
And I thought that Dr. Ferrara's statement was almost damning to you rather than helpful.

[00:01:53] Speaker 04:
What am I missing?

[00:01:55] Speaker 01:
Your Honor, I might go back to Dr. Ferrara's deposition testimony where he's mentioned that he's been doing music copyright work for more than a quarter century.

[00:02:07] Speaker 01:
And he said in this case, he had never seen more original expression copied in his entire career as an expert.

[00:02:19] Speaker 01:
And in order to suggest that

[00:02:25] Speaker 01:
Immanuel consisted of things that are found in prior art.

[00:02:31] Speaker 01:
You have to break down Immanuel into bits and pieces.

[00:02:37] Speaker 01:
And that's a mistake.

[00:02:39] Speaker 04:
But you also have to show where Christ in the opposing part, where they got it from.

[00:02:48] Speaker 04:
And that's what's missing.

[00:02:51] Speaker 04:
If you just take random sample, OK.

[00:02:54] Speaker 04:
You got to show where they got it.

[00:02:56] Speaker 04:
And I'm not seeing that.

[00:02:57] Speaker 04:
Where do they get it from?

[00:02:58] Speaker 04:
What can you show?

[00:02:59] Speaker 04:
Where's the causation?

[00:03:02] Speaker 01:
What's unique in this case, your honor, this is not like Gray, where we're talking about a six note ostinato.

[00:03:10] Speaker 01:
As Dr. Ferrara mentioned, this was a melody and a melody that consists not just of pitch sequences,

[00:03:18] Speaker 01:
but rhythmic durations and musical development.

[00:03:24] Speaker 01:
There are three musical phrases in this 26 note melody, over 12 bars of music.

[00:03:31] Speaker 04:
What a very common phrase.

[00:03:32] Speaker 04:
I had a case called Blurred Lines years ago.

[00:03:35] Speaker 04:
That's a very similar kind of thing.

[00:03:36] Speaker 04:
You could say Mary had a little lamb, same thing.

[00:03:39] Speaker 04:
And in this case,

[00:03:41] Speaker 04:
You've got repeated the things he referred to.

[00:03:44] Speaker 04:
You can find that in all kinds of liturgical music, all kinds of it, in the same way, in the same fashion.

[00:03:51] Speaker 04:
So it seems to me what your client has to show is that the author of Christ got it from the Immanuel piece.

[00:04:03] Speaker 04:
And I'm not seeing that.

[00:04:06] Speaker 01:
Of course, there's the rare case where you have direct evidence of copying.

[00:04:10] Speaker 04:
You don't have that in here for sure, right?

[00:04:12] Speaker 01:
For sure.

[00:04:12] Speaker 01:
So instead, we look to two tests, substantial similarity and striking similarity.

[00:04:19] Speaker 01:
If there is only substantial similarity, as the district court found, then the author of the original work has to also show an opportunity for access.

[00:04:30] Speaker 04:
And where do you find that here?

[00:04:32] Speaker 01:
The opportunity for access?

[00:04:35] Speaker 01:
The first clear, compelling proof was that Mr. Ambrosetti supplied the composer of Christ the later work.

[00:04:47] Speaker 01:
Her husband, music publisher, and musical collaborator supplied him with a copy of a manual in 1985 at a music convention, and then also sent him copies of a manual in 1986.

[00:05:03] Speaker 01:
This was acknowledged by Mr. Alstott in two letters saying that he was... This was something that was allegedly discovered after this was done.

[00:05:12] Speaker 04:
It wasn't new evidence.

[00:05:14] Speaker 04:
It didn't ever come in.

[00:05:15] Speaker 04:
So how does that help you?

[00:05:18] Speaker 01:
We believe that the exclusion was improper, Your Honor, because it was a claim dispositive exclusion.

[00:05:24] Speaker 04:
And it wasn't.

[00:05:25] Speaker 04:
You had another way to get there and you didn't do it.

[00:05:28] Speaker 04:
You weren't successful.

[00:05:30] Speaker 01:
Here's why we think it was claim dispositive.

[00:05:33] Speaker 01:
The district court found that substantial similarity was shown in the selection and arrangement of the music over this 26-note melody over 12 bars of music, and that was original expression not found in any prior art.

[00:05:49] Speaker 01:
So all Mr. Ambrosetti had to show at that point, Your Honor, to prevail on the summary judgment

[00:05:55] Speaker 01:
was an opportunity for access, not actual access, of course, but an opportunity or a reasonable possibility of access.

[00:06:03] Speaker 04:
But that wasn't shown at the time of the motion, right?

[00:06:08] Speaker 04:
That came up later.

[00:06:09] Speaker 01:
It was shown at the time of the motion.

[00:06:12] Speaker 01:
In fact, the first party to reference these letters in which Mr. Alstadt, the husband, musical collaborator, and publisher of Bernadette Farrell,

[00:06:23] Speaker 01:
They were first mentioned in the opening summary judgment papers.

[00:06:27] Speaker 01:
Now it's true that Mr. Ambrosetti found these two compelling letters in Mr. Alstadt's own hand.

[00:06:35] Speaker 01:
He found them 29 days after the discovery cutoff date and they were produced, but they were produced before the summary judgment motion was filed, before the cutoff for dispositive motions.

[00:06:48] Speaker 01:
And so the defendants had an opportunity to comment on those letters, not in just their reply brief, but in their opening brief.

[00:06:56] Speaker 02:
Well, let me ask you, didn't they contend that they were harmed, though, by the lateness because they had defended the case based on the dissemination theory and not the conduit theory?

[00:07:10] Speaker 02:
And this was a new theory being introduced right before summary judgment?

[00:07:14] Speaker 01:
That's what the defendants contended, Your Honor.

[00:07:16] Speaker 01:
But the problem was,

[00:07:19] Speaker 01:
and I'll come back to the claim dispositive nature of the exclusion sanction, the wrong standard was applied in the court below.

[00:07:27] Speaker 01:
This court has clearly said that where there's a claim dispositive motion, the court must examine willfulness, bad faith, fault, and must consider the availability of alternative sanctions.

[00:07:43] Speaker 02:
Well, how is this dispositive if

[00:07:45] Speaker 02:
after the court excluded the letters, he still had the fallback position that he brought his case on in the first place involving the dissemination theory.

[00:07:57] Speaker 01:
So this court has said, for example, in R&R sales and in the Loomis case, that it doesn't have to be an explicit, your claim is dismissed to be claimed dispositive.

[00:08:10] Speaker 01:
It has to have the practical effect of resulting in dismissal.

[00:08:14] Speaker 01:
And here the practical effect, because substantial similarity was shown, this compelling evidence of a chain of communication or conduit evidence resulted in summary judgment being granted because the district court ultimately held that Mr. Ambrosetti had presented no evidence of access.

[00:08:35] Speaker 02:
We believe, let me ask you this though, wasn't there evidence presented that they were at some sort of gathering years ago where they had played his music had been played and she was there.

[00:08:47] Speaker 01:
Yes, your honor.

[00:08:49] Speaker 01:
That's our second fallback position that even apart from the excluded evidence.

[00:08:54] Speaker 01:
the district court should have denied the summary judgment motion because there was competent non-speculative evidence that Bernadette Farrell herself had an opportunity to hear a manual.

[00:09:06] Speaker 01:
And this was at a trade convention, a national pastoral musicians conference in Buffalo, New York in 1988.

[00:09:13] Speaker 02:
Well, let me ask you this.

[00:09:15] Speaker 02:
She testified, though, that she didn't go listen to it.

[00:09:18] Speaker 01:
Exactly.

[00:09:19] Speaker 01:
Exactly.

[00:09:20] Speaker 01:
Of course she would testify that.

[00:09:22] Speaker 02:
a jury would not be required to believe her testimony in that respect.

[00:09:42] Speaker 01:
It wasn't just played at this musical convention.

[00:09:45] Speaker 01:
It was featured and showcased.

[00:09:47] Speaker 01:
There are these special showcases where people attend and a musical work is featured through the distribution of the score and the exhibition of the work played.

[00:09:59] Speaker 02:
So that's special.

[00:10:02] Speaker 02:
When you say distribution of the score, you're talking about the written sheet music?

[00:10:04] Speaker 01:
The written sheet music is distributed and it's also performed.

[00:10:09] Speaker 02:
And she was there in 1988 when that happened?

[00:10:11] Speaker 01:
She was there in Buffalo of 1988.

[00:10:12] Speaker 01:
That's undisputed.

[00:10:14] Speaker 04:
But I think what you're really doing is proving the point that there is an alternative way, which is the widespread dissemination, which does away with the concept that somehow this was claimed as positive, doesn't it?

[00:10:27] Speaker 01:
I think not, Your Honor.

[00:10:28] Speaker 01:
I respectfully disagree, and let me explain why if I can.

[00:10:35] Speaker 01:
There's no question that if those letters had been allowed in, and Mr. Amber said his three paragraphs in his declaration 11 through 13 were allowed, that that definitively showed opportunity for access.

[00:10:49] Speaker 01:
So coupled that with substantial similarity, which was overwhelmingly proved, keep in mind this.

[00:10:58] Speaker 01:
The plaintiff was the only person that submitted expert evidence and opinion on the substantial similarity and striking similarity of the works.

[00:11:09] Speaker 01:
For strategic reasons, the defendants decided not to submit their experts' reports as part of the summary judgment papers.

[00:11:17] Speaker 01:
Ms.

[00:11:17] Speaker 01:
Fennell only submitted a very short declaration that didn't opine on the substantial similarity.

[00:11:23] Speaker 04:
With respect, counsel, I don't think you're answering my question.

[00:11:25] Speaker 04:
What I'm saying is

[00:11:26] Speaker 04:
that the idea that this was claimed as positive I think is definitively defeated.

[00:11:32] Speaker 04:
You're making a good point that there were, you're saying there was widespread dissemination and there's lots of proof for it.

[00:11:39] Speaker 04:
But that's an alternative theory.

[00:11:40] Speaker 04:
So you weren't damned by the court's decision.

[00:11:45] Speaker 04:
It wasn't claimed as positive.

[00:11:46] Speaker 04:
So what we're really dealing with now is what did you do with the

[00:11:51] Speaker 04:
widespread dissemination issue, and that's what you're talking about with us now.

[00:11:55] Speaker 04:
And you're saying that the district court was wrong to decide this on a summary judgment basis, isn't that right?

[00:12:03] Speaker 01:
And we're, thank you, Your Honor.

[00:12:05] Speaker 01:
We're really not arguing widespread dissemination on that Buffalo, New York thing.

[00:12:09] Speaker 01:
We're arguing direct opportunity for access.

[00:12:12] Speaker 04:
Just overall, though, you're saying that's what it is.

[00:12:14] Speaker 01:
That's another means of proving this opportunity.

[00:12:17] Speaker 01:
Again, it doesn't have to be actual, only a reasonable possibility.

[00:12:21] Speaker 01:
But I'd go back, if you've proven substantial similarity and you've got definitive proof of a channel of communication, and this court said in Kamar, evidence that a third party with whom both the plaintiff and the defendant were dealing had possession of the plaintiff's work is sufficient to establish access by the defendant.

[00:12:42] Speaker 04:
There was no publication.

[00:12:45] Speaker 04:
A lot was in England.

[00:12:48] Speaker 04:
It didn't say who got it or any of that stuff.

[00:12:52] Speaker 04:
It was there.

[00:12:52] Speaker 04:
She was at the convention.

[00:12:54] Speaker 04:
She said she didn't go to that.

[00:12:55] Speaker 04:
Didn't hear what it was done.

[00:12:57] Speaker 04:
It was a big convention.

[00:12:58] Speaker 01:
Is that enough?

[00:12:59] Speaker 01:
Oh, there was huge publication all over the world in the United States and in England where she lived.

[00:13:05] Speaker 01:
That's one issue.

[00:13:07] Speaker 01:
But also, Your Honor, the performance at these showcase events, not only that she attended in Buffalo, New York, but Mr. Alstadt, her husband and music publisher, attended in Cincinnati, Ohio in 1985.

[00:13:20] Speaker 01:
Emanuel was specifically performed in a showcase event there.

[00:13:26] Speaker 01:
And is that enough?

[00:13:28] Speaker 04:
It would be if I summary judgment like because that is you've been to conventions like a bar convention Yeah, all kinds of people all over the place people performing this they're selling that to do an AI Does that mean that if it's being done that you heard it if you look at the case?

[00:13:45] Speaker 01:
called peel and company versus rug market

[00:13:48] Speaker 01:
The Court of Appeals in that case reversed the summary judgment based on the defendant and its principal attending a trade show where their original work was exhibited.

[00:13:57] Speaker 04:
What year was that case?

[00:13:59] Speaker 01:
I'm sorry?

[00:13:59] Speaker 01:
What year was that case?

[00:14:01] Speaker 01:
That was in 2001, Your Honor.

[00:14:03] Speaker 01:
238 F3rd 391.

[00:14:05] Speaker 04:
You want to save any of your time?

[00:14:07] Speaker 01:
You don't have much, but if you want to save it, you can.

[00:14:09] Speaker 01:
I would like to save a little bit of time for rebuttal.

[00:14:12] Speaker 01:
Thank you so much.

[00:14:13] Speaker 01:
Thank you.

[00:14:15] Speaker 04:
All right.

[00:14:15] Speaker 04:
Mr.

[00:14:17] Speaker 04:
You say this?

[00:14:19] Speaker 04:
Craigie?

[00:14:21] Speaker 04:
Craigish.

[00:14:21] Speaker 04:
Okay.

[00:14:22] Speaker 04:
Miracle.

[00:14:24] Speaker 00:
May it please the Court, Bert Craigish, for Defendant DePelees, Bernadette Farrell, and Oregon Catholic Press?

[00:14:33] Speaker 00:
The Court obviously has some questions about this matter.

[00:14:36] Speaker 00:
One thing I would like to discuss is the issue of selection and arrangement.

[00:14:46] Speaker 00:
there is no selection arrangement when the elements of the works are arranged differently, as they were in this case.

[00:14:54] Speaker 00:
And case law, notably Skidmore versus Led Zeppelin and the earlier case of Litchfield versus Spielberg, make clear that just making a list of

[00:15:14] Speaker 00:
the common elements between two works does not constitute a selection and arrangement.

[00:15:22] Speaker 00:
Particularly with regard to this matter, the percentages of shared elements do not constitute a selection or an arrangement, do not constitute an arrangement because they do not reflect how those elements are specifically arranged.

[00:15:38] Speaker 00:
Likewise, aspects of music such as key, meter, phrase length, number of measures really do not reflect an arrangement.

[00:15:50] Speaker 04:
You all decided not to put on your own expert to counter Dr. Ferrara.

[00:15:56] Speaker 04:
Why was that?

[00:15:58] Speaker 00:
Well, there were a couple reasons.

[00:16:02] Speaker 00:
One I would note, you know, the appellant makes a lot

[00:16:07] Speaker 00:
the expert report of Judith Fennell was not submitted.

[00:16:11] Speaker 00:
I would note if Amber said he genuinely felt that that was helpful to his case, he was free to submit her entire report or portions thereof.

[00:16:24] Speaker 00:
The reason we did not submit the report, it was a lengthy report.

[00:16:27] Speaker 00:
It was prepared in accordance with the federal rules for the purpose of advising the opposing parties with regard to the theories.

[00:16:37] Speaker 00:
And it simply contained a lot of material that was extraneous to the motion.

[00:16:46] Speaker 00:
In other words, disputed facts.

[00:16:49] Speaker 00:
We wanted to focus on the undisputed facts.

[00:16:52] Speaker 00:
And what we did.

[00:16:54] Speaker 03:
So you were afraid that putting in the record would create an issue of disputed fact?

[00:17:01] Speaker 00:
No, no.

[00:17:03] Speaker 00:
It would not.

[00:17:06] Speaker 00:
create an issue of disputed- I mean, that cuts against yours.

[00:17:10] Speaker 03:
If true, that cuts against the fact that summary judgment was based on undisputed facts.

[00:17:17] Speaker 00:
No, no.

[00:17:18] Speaker 00:
Summary judgment is absolutely based on undisputed facts.

[00:17:20] Speaker 03:
Right, but getting back to Judge Smith's question, I don't understand why you didn't submit the declaration.

[00:17:25] Speaker 03:
You said it contained extraneous material.

[00:17:28] Speaker 00:
We submitted two declarations of Judith Fennell.

[00:17:33] Speaker 00:
What we did not submit was her entire

[00:17:37] Speaker 00:
expert disclosure report.

[00:17:39] Speaker 00:
And the reason we did not submit the report was that we wanted to focus on the undisputed facts.

[00:17:46] Speaker 00:
In other words, we needed to limit the motion to undisputed facts.

[00:17:50] Speaker 00:
In fact, most of the facts that we relied on were the facts that we obtained from Dr. Ferrara during his deposition.

[00:18:01] Speaker 00:
those facts, they were most explicitly set forth in the reply to the summary judgment motion, but the crux of the motion was based on Dr. Ferraro's testimony.

[00:18:13] Speaker 02:
Let me ask you this question.

[00:18:14] Speaker 02:
Sure.

[00:18:15] Speaker 02:
The judge found that there was a showing of substantial similarity, right?

[00:18:23] Speaker 00:
The district court judge, yes.

[00:18:25] Speaker 02:
Yeah.

[00:18:25] Speaker 02:
And so what was lacking from the plaintiff's point of view was the finding that there was access.

[00:18:33] Speaker 02:
Why wasn't a question a fact created by the fact that

[00:18:40] Speaker 02:
your client was at the 1988 Buffalo, New York convention where this very composition, Emmanuel, was highlighted and there were sheet music passed out.

[00:18:54] Speaker 02:
Why doesn't that at least create a question of fact as to her direct access to the piece itself?

[00:19:05] Speaker 00:
Okay.

[00:19:06] Speaker 00:
You have to look at the facts that are actually in the record.

[00:19:10] Speaker 00:
Okay, she did attend the 1988 NPN conference in Buffalo.

[00:19:17] Speaker 00:
She was there as part of a business trip.

[00:19:20] Speaker 00:
In other words, she was there to participate in the Oregon Catholic Press Choir with regard to a showcase that was put on by the Thomas Moore group out of London.

[00:19:36] Speaker 00:
The conference itself consisted of meetings, speakers, workshops, and it... You're not disputing that.

[00:19:46] Speaker 02:
It showcased Emanuel, though.

[00:19:49] Speaker 00:
Okay, the showcase event, these showcase events were put on by the different music publishers.

[00:19:55] Speaker 00:
Each showcase event lasted one hour.

[00:19:57] Speaker 00:
At the regional conventions, which the Buffalo Convention was a regional convention, the four major

[00:20:04] Speaker 00:
liturgical, Catholic liturgical publishers were able to present their own showcase.

[00:20:10] Speaker 00:
In other words, when they had their showcases, it was the only showcase going on.

[00:20:15] Speaker 02:
So what you're telling me is it only creates a question of fact if your client admits she was there sitting there listening to it and got the sheet music?

[00:20:24] Speaker 00:
Okay, the standard with regard to access is the party asserting that there was access has to produce

[00:20:35] Speaker 00:
submit evidence showing that there was a reasonable possibility that the work would have been viewed by the other party.

[00:20:45] Speaker 02:
So you're saying it's possible, but not reasonably possible?

[00:20:48] Speaker 00:
Right.

[00:20:48] Speaker 00:
There is a bare possibility.

[00:20:51] Speaker 03:
But why don't you say it's reasonably possible?

[00:20:53] Speaker 03:
I'm sorry to interrupt your question.

[00:20:55] Speaker 03:
Why do I say reasonably?

[00:20:57] Speaker 03:
I mean, she was at the convention, was played at the convention.

[00:21:00] Speaker 03:
We don't know what happened at the convention, but, you know, it's reasonably possible, isn't it?

[00:21:05] Speaker 00:
I would say no, because there were a thousand attendees at the convention.

[00:21:09] Speaker 00:
There were multiple works.

[00:21:12] Speaker 00:
Keep in mind, I mean, there are multiple.

[00:21:14] Speaker 00:
with regard to the lesser publishers.

[00:21:16] Speaker 03:
I get that but I mean that's just because there's a lot going on doesn't necessarily exclude possibilities or reasonable possibilities.

[00:21:25] Speaker 00:
The possibility isn't excluded but I would maintain that it's a bare possibility not a reasonable possibility.

[00:21:32] Speaker 00:
How do we distinguish?

[00:21:34] Speaker 04:
Pardon me?

[00:21:35] Speaker 04:
Any question for a fact finder?

[00:21:39] Speaker 00:
If you look at

[00:21:42] Speaker 00:
Cases, particularly Loomis versus Cornish, that was decided as a matter of law.

[00:21:49] Speaker 00:
So I think here, when you look at it as a matter of law, is this evidence sufficient to submit to a jury?

[00:21:59] Speaker 04:
That's what you really have to do to succeed here, is to show that even though there are conflicting versions, that as a matter of law, you win.

[00:22:09] Speaker 04:
Otherwise, don't you have to have a jury look at it or the trial court look at it and determine based upon her access, all these things about the convention and so on, was enough to turn this over?

[00:22:24] Speaker 00:
I don't think so.

[00:22:24] Speaker 00:
I mean, one thing you need to consider is who has the burden of proof with regard to access and what was submitted with respect to the 1988 conference.

[00:22:34] Speaker 02:
Well, let me ask you this.

[00:22:36] Speaker 02:
What did they need to submit that they didn't submit to create the reasonable possibility?

[00:22:43] Speaker 00:
Well, one thing they did not submit was the number of attendees at the showcase.

[00:22:51] Speaker 00:
There's a difference between having 100 people attend versus having 10 people attend.

[00:22:57] Speaker 00:
That's totally

[00:22:58] Speaker 00:
absent from the record.

[00:23:01] Speaker 00:
So that would be one thing.

[00:23:03] Speaker 04:
Isn't that something that a jury would look at?

[00:23:05] Speaker 04:
A jury may say it's just not reasonable.

[00:23:08] Speaker 04:
On the other hand, the jury may say, you know, she's married to somebody who is a publisher, in charge of the other press, lots of interest there.

[00:23:17] Speaker 04:
We don't believe this person.

[00:23:22] Speaker 00:
I mean, of course that's fine, but the point I'm trying to make is there was very little

[00:23:29] Speaker 00:
evidence submitted with regard to what happened at this conference.

[00:23:32] Speaker 00:
The defendants, in this case, did not have the burden of proof.

[00:23:36] Speaker 00:
There is no evidence that anyone even attended the showcase.

[00:23:39] Speaker 04:
But when there's a motion for summary judgment, you basically credit the non-moving party, right?

[00:23:49] Speaker 00:
The non-moving party still has the burden.

[00:23:51] Speaker 03:
Right, but you have to draw the inferences in favor of the non-moving party at summary judgment.

[00:23:57] Speaker 03:
I think their argument is, look, there's an inference that this was available at this convention, and you ought to draw that inference in our favor.

[00:24:05] Speaker 03:
I agree with you on the burden of proof, but that goes to trial, not summary judgment.

[00:24:10] Speaker 04:
What's your best argument that as a matter of law, despite the exposure that your client had to a manual, that she wins?

[00:24:22] Speaker 00:
Well, I would look at a case such as Artitax in which

[00:24:27] Speaker 00:
There were t-shirts on display at a county fair.

[00:24:31] Speaker 00:
There was testimony there that a representative of the defendant in that case attended the LA County Fair.

[00:24:41] Speaker 00:
The evidence that was submitted in that matter was unclear whether the person actually attended the fair.

[00:24:51] Speaker 00:
when the t-shirts were on display.

[00:24:54] Speaker 04:
But I mean... You don't have that.

[00:24:56] Speaker 04:
She did attend.

[00:24:58] Speaker 04:
The music was there.

[00:24:59] Speaker 04:
Correct.

[00:24:59] Speaker 04:
Published.

[00:25:01] Speaker 04:
She may or may not have heard it.

[00:25:03] Speaker 04:
But that's a finder of fact determination, right?

[00:25:05] Speaker 02:
And the music was showcased.

[00:25:08] Speaker 02:
Okay.

[00:25:08] Speaker 00:
The music... I would disagree that the music was showcased.

[00:25:15] Speaker 00:
These events were called showcase events.

[00:25:18] Speaker 00:
They're basically just an opportunity for a publisher

[00:25:21] Speaker 00:
They were given one hour to perform what they considered, generally, what they considered to be their new music.

[00:25:29] Speaker 00:
And this was primarily for the benefit of the attendees at the conference who were either church musicians or musical directors at these churches.

[00:25:42] Speaker 00:
This wasn't a convention for publishers.

[00:25:44] Speaker 00:
This was a convention for publishers to have an opportunity.

[00:25:48] Speaker 00:
The role that the publishers had in the

[00:25:51] Speaker 00:
conference was an opportunity to show their work to church musicians and music directors.

[00:26:01] Speaker 00:
Bernadette Farrell was neither a music director nor a church musician.

[00:26:07] Speaker 00:
She was a composer, and nothing else.

[00:26:11] Speaker 00:
There's no motivation shown for her to attend the various showcase events.

[00:26:17] Speaker 00:
And I would draw on the Loomis

[00:26:21] Speaker 00:
versus Cornish case that supports that proposition.

[00:26:26] Speaker 03:
But Loomis involved intermediaries, right?

[00:26:28] Speaker 03:
Not an allegation of direct.

[00:26:32] Speaker 00:
No.

[00:26:32] Speaker 00:
At the tail end of the Loomis opinion, it discusses how two of the songwriters who composed the

[00:26:44] Speaker 00:
accused work had participated in recording another work at a studio in Santa Barbara and that studio, they were there for 10 days during which the local radio station gave widespread airplay to the allegedly infringed work.

[00:27:07] Speaker 00:
The studio had been given promotional copies

[00:27:11] Speaker 00:
of the allegedly infringed work.

[00:27:14] Speaker 00:
And the group that had performed the allegedly infringed work had been given a lot of write-ups in music magazines and also had been... That was their distribution claim, right?

[00:27:28] Speaker 03:
I mean, they didn't say, look, at that radio station this thing was performed.

[00:27:36] Speaker 03:
and they could have heard it.

[00:27:38] Speaker 03:
It said the ant was in the area and there was a widespread distribution.

[00:27:43] Speaker 03:
I took the, you know, the rest of it's just intermediary.

[00:27:49] Speaker 00:
Well, correct, the rest of the Loomis opinion is intermediary, but the point that I'm making with regard to the Loomis opinion is the court there did hold that

[00:28:02] Speaker 00:
The musicians were not in Santa Barbara.

[00:28:04] Speaker 00:
The songwriters were not in Santa Barbara for the purpose of listening to other people's music.

[00:28:09] Speaker 00:
And likewise, in the present case, Ms.

[00:28:15] Speaker 00:
Farrell was not at the Buffalo Conference for the purpose of listening to other people's music.

[00:28:21] Speaker 02:
But she was there.

[00:28:22] Speaker 00:
She was there.

[00:28:24] Speaker 02:
So what's the difference between what you're arguing?

[00:28:28] Speaker 02:
It sounds like you're arguing there has to be a probability that she heard it as opposed to a possibility.

[00:28:33] Speaker 00:
Correct.

[00:28:34] Speaker 00:
The case law distinguishes between bare possibility and reasonable possibility.

[00:28:39] Speaker 02:
Was reasonable possibility equivalent to probability?

[00:28:48] Speaker 00:
Really depends on, I'm not trying to be cute here, but it really depends on your definition of probability.

[00:28:53] Speaker 00:
Do you mean?

[00:28:53] Speaker 02:
Well, why don't they just call it probability as opposed to possibility?

[00:28:57] Speaker 00:
I'm just using the terms that the Ninth Circuit has used.

[00:29:00] Speaker 00:
I mean, I think, you know, it could be expressed clearer, for instance, more likely than not.

[00:29:08] Speaker 00:
You know, if that is what you mean by probability, then, you know, that would be one standard, but.

[00:29:13] Speaker 02:
But that's not the standard.

[00:29:16] Speaker 00:
The standard as presented by the Ninth Circuit has been bare possibility and reasonable possibility.

[00:29:22] Speaker 00:
And I haven't found any case law that really clarifies, you know, where the dividing line between.

[00:29:29] Speaker 04:
But however you define it, haven't they met that here?

[00:29:32] Speaker 00:
Excuse me?

[00:29:33] Speaker 04:
However you define those terms, hasn't that been met here?

[00:29:37] Speaker 00:
No.

[00:29:37] Speaker 04:
On the widespread dissemination concept?

[00:29:40] Speaker 00:
No, I think at most there's a bare possibility.

[00:29:44] Speaker 04:
Okay.

[00:29:44] Speaker 04:
Your time is up.

[00:29:45] Speaker 04:
Let me ask whether my colleagues have additional questions.

[00:29:48] Speaker 04:
I think not.

[00:29:48] Speaker 04:
Thank you very much, counsel.

[00:29:50] Speaker 04:
Thank you.

[00:29:51] Speaker 04:
So, Mr. Schmidt, you have some rebuttal time.

[00:29:56] Speaker 01:
Thank you, your honor.

[00:29:58] Speaker 01:
The two cases that the defendants rely on, on reasonable possibility or opportunity for access, that's the other phrasing, are Artitax and Loomis v. Cornish.

[00:30:09] Speaker 01:
Artitax, the court said,

[00:30:11] Speaker 01:
And I quote, our taxes failed to show that Storer visited the Los Angeles County Fair during the relevant period.

[00:30:18] Speaker 01:
Easily distinguishable.

[00:30:19] Speaker 01:
We know Bernadette Farrell was at the Buffalo Convention where the music was showcased.

[00:30:24] Speaker 01:
And that's what distinguishes Loomis v. Cornish.

[00:30:27] Speaker 01:
Loomis v. Cornish involved, as Your Honor said, radio play and other intermediaries.

[00:30:32] Speaker 01:
This was direct access by Bernadette Farrell.

[00:30:36] Speaker 01:
And if she denies it, still Nimmer says even if

[00:30:40] Speaker 01:
the person who is supposed to have access denies it, it's still, you must deny summary judgment where there's evidence that there is exposure and opportunity for access.

[00:30:50] Speaker 01:
The other case I'd cite is Sound and Color, recently decided by this court on April 29th as a helpful decision to decide this case.

[00:30:59] Speaker 01:
Thank you so much.

[00:30:59] Speaker 04:
Thank you very much, counsel.

[00:31:01] Speaker 01:
The case just argued is submitted.

[00:31:03] Speaker 01:
We thank you both.