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Click here for the full text of this decision FACTS:Jennifer Armour, an aspiring singer and songwriter, composed a demo tape that she hoped would help advance her career. Produced in early January 2003, the material on the tape included an instrumental version of her song, “Got a Little Bit of Love for You” (hereinafter “Little Bit of Love”). On Feb. 12, 2003, Armour registered a copyright of an a cappella version of “Little Bit of Love.” On May 1, 2006, she registered a copyright of an instrumental version of the same song. Sometime between January and March 2003, Armour’s manager, Marc McKinney, sent copies of the tape to a number of people thought to be associated with Beyonce Knowles, a successful, popular rhythm-and-blues artist. After sending the tapes, McKinney heard nothing in response, nor were any of the tapes returned. Meanwhile, in February 2003, Beyonce entered a recording studio and began work on a new album with collaborators Robert Waller and Scott Storch. The album included a song entitled “Baby Boy.” After finishing in the studio, Beyonce decided to add a guest artist, Sean Paul, who contributed a section to the song. Beyonce commercially released “Baby Boy” on June 24, 2003, and it soon became a hit. Armour heard Beyonce perform “Baby Boy” at a concert and was struck by the alleged similarities between that song and her own. On July 11, 2005, Armour filed a suit for copyright infringement against Beyonce, Robert Waller, Scott Storch, Sean Paul, their respective record labels and various other parties alleged to have been involved in the creation and distribution of “Baby Boy” (collectively, “Beyonce”). Armour claimed that she had a valid copyright to “Little Bit of Love,” that Beyonce copied parts of “Little Bit of Love” in creating “Baby Boy,” and that the two songs sound substantially similar to establish a claim of infringement. Armour principally claims Beyonce copied portions of the melody of the two-bar chorus that formed the musical heart of “Little Bit of Love.” Beyonce successfully moved for summary judgment, contending that Armour had not established any genuine issues of material fact. Although the district court found summary judgment inappropriate as to some elements of Armour’s copyright infringement claim, it concluded that no reasonable jury could find the two songs substantially similar. The court also awarded Beyonce costs. HOLDING:The court affirmed the judgment, dismissed the appeal of an order awarding costs and denied a motion to strike record excerpts. To prove copyright infringement, a plaintiff must establish ownership of a valid copyright, factual copying and substantial similarity. Factual copying, the court stated, can be proved by direct or circumstantial evidence. To make out a circumstantial claim, a plaintiff must prove that the defendant had access to the copyrighted work before creation of the infringing work and the works contain similarities that are probative of copying. In other words, for the circumstantial case of factual copying, the combined existence of access to the copyrighted work and similarities between the two works establishes the assumption as a matter of law that copying in fact occurred. Once a plaintiff circumstantially establishes factual copying, the court stated, the defendant may rebut the circumstantial evidence if he can prove that he independently created the work. Armour sought to establish factual copying circumstantially by proving access and probative similarity. Beyonce disputed access and probative similarity and sought to rebut factual copying by claiming independent creation. The district court refused to grant summary judgment on access, probative similarity or independent creation but granted summary judgment on the third prong of substantial similarity. Beyonce asked the court to affirm the substantial similarity finding or, alternatively, to affirm on the ground of access, probative similarity or independent creation. The court concluded that Armour could not prove Beyonce had access to Armour’s demo tape before composing the allegedly infringing elements of her own song and did not reach the question of probative or substantial similarity. To establish access, the court stated, a plaintiff must prove that “the person who created the allegedly infringing work had a reasonable opportunity to view the copyrighted work” before creating the infringing work. Beyonce’s creation of “Baby Boy,” the court stated, was a gradual process, involving various iterations and refinements over time. Although Beyonce did not put the final touches on her song until March 13, 2003, the parties agree that she composed the key allegedly infringing portion of “Baby Boy” by Feb. 13, 2003. In her binding admissions, the court noted, Armour stated that the demo tapes were sent or given to several of the Beyonce parties in “either late February or early March 2003. Thus, because Beyonce created the allegedly infringing portion of “Baby Boy” by Feb. 13, 2003, the court held that Armour could not establish that Beyonce had access before Feb. 13, 2003, to a demo tape that was not sent to her or her associates until “late February or early March.” The only path not blocked by Armour’s admissions, the court stated, involved a mysterious man known only as “T-Bone,” allegedly a friend of Beyonce’s, who was not mentioned in the admissions. Armour, the court stated, could rely on McKinney’s testimony to support her theory that a tape was mailed to T-Bone at the “end of January” and that it subsequently fell into Beyonce’s hands before she created the allegedly infringing portions of “Baby Boy” by Feb. 13, 2007. The court found the T-Bone hypothesis, however, to be the weakest of Armour’s theories, because the nature of T-Bone’s relationship with Beyonce had not been well established in the summary judgment record. Accordingly, the court found that without more probative evidence to substantiate such a long chain of inferences, the T-Bone theory required too much “speculation and conjecture” on which to rest the conclusion that Beyonce had a reasonable opportunity for access. OPINION:Per curiam; Higginbotham, Smith and Owen, JJ.

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