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Pop songstress Britney Spears last week won a decisive court victory when a federal judge in Philadelphia tossed out a copyright infringement suit brought by two Pennsylvania men who claimed that the melody of Spears’ song “What U See Is What U Get” infringed their song entitled “What You See Is What You Get.” U.S. District Judge Berle M. Schiller found that plaintiffs Michael Cottrill and Lawrence E. Wnukowski could never prove one of the essential elements of their case — that the defendants had access to their song. Schiller said the undisputed evidence showed that Spears recorded her version before the Pennsylvania men ever gave their song to an agent to be pitched to Spears. “As plaintiffs have not come forward with any affirmative evidence showing access, there is no reasonable possibility that the creators copied plaintiffs’ song before November 1999 when the melody of defendants’ song was completed,” Schiller wrote. But even if the copyright infringement were not chronologically impossible, Schiller found that the case would still fail because the two songs are not substantially similar. As a result, Schiller concluded that Spears and her co-defendants — Zomba Recording Corp., Jive Records, Wright Entertainment Group and BMG Music Publishing Inc. — were all entitled to summary judgment. The ruling is a victory for attorney Vincent V. Carissimi of Pepper Hamilton in Philadelphia and Michael T. Mervis of Proskauer Rose in New York. In the suit, plaintiffs Cottrill and Wnukowski claimed that they were contacted in 1995 by William Kahn, a talent scout who represented Spears, who invited them to submit songs for her upcoming album. Although the pair eventually submitted some songs to Kahn, their submissions were put on hold due to a lawsuit brought by Kahn against Spears, Jive and Zomba. In April 1999, after Kahn settled his lawsuit against Spears, he was again hired by Jive and Zomba and again became involved in Spears’ career. Cottrill and Wnukowski claim they began writing “What You See Is What You Get” in 1998 and gave Kahn an instrumental copy by October 1999. By November 1999, the suit said, the final version of the song was submitted to the U.S. Copyright Office. But the four men credited as writers of Spears’ song “What U See Is What U Get” — Jorgen Elofsson, David Kreuger, Per Magnusson, and Rami Yacoub — testified that their work on the song’s melody was completed by October 1999. All four also testified that they had not heard the plaintiffs’ song before March 2003 and did not copy it to create their song. Defense lawyers argued that the case failed because the plaintiffs could never prove even the possibility that the defendants had access to their song. Plaintiffs’ attorneys George Bochetto and Gavin P. Lentz of Bochetto & Lentz argued that the case was full of disputed factual issues that should be decided by a jury. “Defendants want this court to believe that access can only be established by an outright admission. This is incorrect,” Bochetto and Lentz wrote in their brief. “Not surprisingly, all parties involved in the ‘creation’ of the infringing song deny access. These self-serving denials merely create disputed issues of fact as to access and independent creation,” they wrote. Schiller disagreed, saying the plaintiffs’ lawyers were asking the court “to impermissibly weigh the credibility of the songwriters sworn testimony and improperly rely on mere speculation that the melody could have been changed after Ms. Spears completed the vocals in November 1999.” In their sworn declarations, Schiller said, the authors of “What U See Is What U Get” stated that the song, including the melody, “was substantially written and completed by October 1999.” As a result, Schiller said, “the record suggests that the melody of defendants’ song was completed by the beginning of November 1999, before defendants would have had access to a copyrighted version of plaintiffs’ song.” But even if Cottrill and Wnukowski could show access, Schiller found that summary judgment would still be warranted since they cannot show that the two works are “substantially similar.” “After an analysis of the elements of the songs, viewing the facts in a light most favorable to plaintiffs, the similarities between the two songs would not lead a reasonable juror to conclude that the creators of defendants’ song copied plaintiffs’ work,” Schiller wrote.

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