In Parker v. Winwood, musician Steve Winwood was accused of copyright infringement for allegedly copying the bass line of “Ain’t That A Lot Of Love” — written by Willa Dean Parker and Homer Banks in 1965 — for his song, “Gimme Some Lovin’,” written in 1966. 51 years later, Willa Dean Parker and the widow of Homer Banks, Rose Banks, sued Steve Winwood, his brother Mervyn, and Steve’s publishing company, Kobalt Music, for copyright infringement. The case was brought in the District of Tennessee, which granted summary judgment in favor of defendants.
One of the claims that the plaintiffs made in appealing before the Sixth Circuit was that the district court ignored evidence indicating that Steve Winwood had access to the plaintiff’s song before he wrote his own song. The trial court had found that access had not been demonstrated, noting that simply because a song is “out there” doesn’t mean Winwood in particular had heard it.
Plaintiffs tried to demonstrate Winwood had in fact heard the earlier song by submitting media interviews with Winwood’s former band mate, Spencer Davis. The district court found that such interviews, at best, were merely Spencer Davis’ opinion, spoken to an interviewer — and that equals hearsay. The appellate court affirmed.
To demonstrate copyright infringement, plaintiff can either show access and substantial similarity of the two works or, when access can’t be shown, arguing that the works strikingly similar. Showing either level of similarity typically requires expert testimony to provide competing reports, analyzing the two works — in this case, songs. Unfortunately, the expert that the plaintiffs retained was late in producing his report — and the plaintiffs themselves sat on the report after receiving it. As a result, it was filed with the court after the motion for summary judgment was fully submitted, and it was not allowed to be part of the record.
Next the plaintiffs pointed to Steve Winwood’s website, which habitually re-published news articles about the artist, including the Spencer Davis interview. Based on the fact that Winwood’s own website hosted the article, the plaintiffs alleged that Winwood himself was affirming its contents — and that was an admission that the article implicating him was true. In its decision, the district court disagreed, saying that the Supreme Court had already decided that hosting something on a website does not indicate that the person is affirming the truth of it. It literally just proves that the article was available.
There were two other documents proffered by the plaintiffs that were judged to be hearsay. (Side note: The specimens submitted to the court were printouts of articles that were then scanned back into a computer, which seemed to undermine their credibility further in the court’s view.) Once again the plaintiffs were trying to use the opinions of various artists who claimed that the bass line was copied from the plaintiff’s. The 6th Circuit again affirmed that those documents were inadmissible hearsay.
Lastly, the appellate court agreed that the district court did not have personal jurisdiction over Mervyn Winwood, because he had never been to Tennessee. Even if a record company was engaging in nationwide distribution, the court reasoned, it doesn’t show that Mervyn engaged in that kind of distribution. They agreed with the district court that plaintiffs had no right to drag Mervyn from the U.K. to Tennessee for this lawsuit.
The Sixth Circuit found no errors committed by the district court, and affirmed its decision to grant summary judgment, dismissing the case.
An important aspect of the post-mortem of this case can be found in the delayed submission of the plaintiffs’ expert report. The 6th Circuit acknowledged the report, but found that considering it after the deadline was tantamount to doing the plaintiffs’ work for them: “It’s not the court’s job to scour things outside of the brief and put them into their decision-making process.”
This issue figured prominently in the lone dissenting opinion authored by Judge Bernice Bouie Donald: “We in the appellate court are allowed to look beyond the record, including at this expert witness report to do substantial justice. In this case, that’s what should have happened. The report indicates striking similarity. With that in mind, summary judgment was inappropriate. We should have looked beyond the record to this expert report, regardless of it being filed late.”
Judge Donald pointed out that a number of other British musicians were influenced by the compositions of black musicians from America. She then cited three landmark copyright infringement lawsuits in the US in which the intellectual property of black musicians had been appropriated by acts that came later:
- The Beach Boys’ “Surfin USA” was found to have copied Chuck Berry’s “Sweet Little Sixteen.”
- George Harrison was found liable for copying the Chiffons’ “He’s So Fine” in his song, “My Sweet Lord.”
- Robin Thicke and Pharrell Williams were recently judged to have copied Marvin Gaye’s “Got to Give It Up” with their song “Blurred Lines.”
I encourage you to find a legal way to listen to the song pairs above — perhaps on an official YouTube channel — and you might find yourself intrigued by the original version of the melodies you may already know so well. Plus, you can become more knowledgeable about the trailblazing black musicians who were essential to the history of rock and roll.
That said, I don’t know if I would change the rules of how an appellate court works if litigants don’t — or for a variety of reasons, can’t — advocate for themselves properly. The report, essential to this case, came in late. It’s unfortunate that rules are often strictly applied.
