938 F.3d 833
6th Cir.2019Background
- In 1965 plaintiffs Willia Dean Parker and Homer Banks (Parker and Rose Banks as successor) wrote and registered the song "Ain't That a Lot of Love." In 1966 Mervyn and Steve Winwood (Spencer Davis Group) wrote and registered "Gimme Some Lovin'."
- Plaintiffs sued Steve Winwood, Mervyn Winwood, and Kobalt Music Publishing in Middle District of Tennessee alleging the bass line from their song was copied in "Gimme Some Lovin'."
- Steve and Kobalt moved for summary judgment on the copying element; the district court granted the motion after excluding several documents plaintiffs proffered (scanned webpages/interviews) as inadmissible hearsay. The court found no admissible evidence of copying.
- Mervyn moved to dismiss for lack of personal jurisdiction; he submitted a declaration that he is a U.K. resident with no Tennessee contacts. The district court dismissed him for lack of specific jurisdiction.
- Plaintiffs introduced an expert report (musicologist Dan Dixon) after summary-judgment briefing, arguing striking similarity; the district court did not rely on it. On appeal the Sixth Circuit affirmed summary judgment for Steve and Kobalt and affirmed dismissal of Mervyn.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of contemporaneous/interview documents (hearsay) | The scanned webpages and book excerpts contain direct admissions or fall under hearsay exceptions (ancient documents / party admission) | The materials are hearsay: third‑party statements (Timothy White, Spencer Davis, Jim Capaldi) and hosting on SteveWinwood.com does not constitute adoption | Documents excluded as hearsay; district court correct to reject them as admissible evidence |
| Copying / striking similarity at summary judgment | Songs are strikingly similar; expert musicological report shows identical bass lines and other similarities creating a triable issue | No admissible evidence of access/copying; expert report was produced after summary-judgment briefing and issue was forfeited | Affirmed summary judgment for Steve and Kobalt: plaintiffs failed to produce admissible evidence of copying and forfeited the striking‑similarity argument/evidence |
| Personal jurisdiction over Mervyn Winwood (U.K. resident) | Mervyn purposefully availed himself of Tennessee by willfully infringing Tennessee residents and by contracting with Island Records to market/distribute the song in the U.S. | Mervyn is a lifelong U.K. resident, had no Tennessee contacts, and did not direct distribution into Tennessee; mere placement into the stream of commerce is insufficient | No specific jurisdiction: plaintiffs failed to show Mervyn took steps specifically directing distribution to Tennessee (no "plus" conduct); dismissal affirmed |
| Applicability of federal long-arm rule (Fed. R. Civ. P. 4(k)(2)) | Federal long-arm could supply jurisdiction because defendant is not subject to any single state's jurisdiction | Exercising jurisdiction would violate due process absent purposeful availment | Rejected: even under Rule 4(k)(2) jurisdiction would be inconsistent with due process given lack of purposeful contacts |
Key Cases Cited
- SEC v. Zada, 787 F.3d 375 (6th Cir. 2015) (standard of review for summary judgment)
- Jones v. Blige, 558 F.3d 485 (6th Cir. 2009) (elements of copyright infringement: ownership and copying)
- Ellis v. Diffie, 177 F.3d 503 (6th Cir. 1999) (access plus substantial similarity inference for copying)
- Murray Hill Publ’ns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312 (6th Cir. 2004) (striking similarity doctrine when access not shown)
- Janus Capital Grp., Inc. v. First Derivative Traders, 564 U.S. 135 (2011) (hosting material on a website does not necessarily indicate adoption of its statements)
- Walden v. Fiore, 571 U.S. 277 (2014) (plaintiff's forum contacts cannot be attributed to defendant for jurisdictional purposes)
- Bridgeport Music, Inc. v. Still N The Water Publ’g, 327 F.3d 472 (6th Cir. 2003) (stream-of-commerce-plus approach requires additional conduct showing intent to serve the forum market)
- Daimler AG v. Bauman, 571 U.S. 117 (2014) (distinction between general and specific jurisdiction)
- Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945) (minimum contacts / due process test for jurisdiction)