Ambrosetti v. Oregon Catholic Press

In copyright infringement case involving Christian musical works, Ninth Circuit affirms district court's decision to exclude certain evidence pertaining to access as sanction for untimely disclosure, but nonetheless reverses district court's grant of summary judgment, finding triable issues as to plaintiff's access theories and substantial and/or striking similarity.

Plaintiff Vincent Ambrosetti sued defendants Bernadette Farrell and Oregon Catholic Press, alleging that Farrell copied his liturgical work "Emmanuel" in her own Christian music composition "Christ Be Our Light." Plaintiff's work was first published in 1980 in an anthology including other works. Plaintiff subsequently performed "Emmanuel" at hundreds of events in the United States, including at conventions of the National Association of Pastoral Music (NPM), and did a commercial recording of the work. At a 1985 NPM convention, plaintiff alleged he met the then publisher and chief executive of defendant Oregon Catholic Press (OCP), Owen Alstott. Plaintiff provided Alstott a copy of "Emmanuel" at the convention and provided a second copy a year later. In 1986 and 1987, plaintiff received letters acknowledging Alstott's receipt of music from plaintiff. In 1986, Alstott traveled to London and met defendant Farrell, a British musician; by 1992, the two were married. In 1993, Farrell composed the song "Christ Be Our Light," which was published by OCP.

Plaintiff filed suit for copyright infringement against Farrell and OCP on May 8, 2020. After the close of discovery, and five days prior to the deadline for filing dispositive motions, plaintiff disclosed to defendants for the first time the existence of the letters from Alstott acknowledging receipt of music from plaintiff. Plaintiff had not previously disclosed that he had submitted music to OCP, and instead had alleged that defendants accessed plaintiff's work either by attending conventions where the work was performed or via widespread dissemination of the work.

Defendants moved for summary judgment, and plaintiff opposed, stating in his declaration that he had submitted copies of his work to OCP and had received the acknowledgment letters. Defendants requested on reply that the district court exclude the letters and preclude plaintiff from asserting a theory of access based on the letters. The district court held that Alstott's letters, as well as plaintiff's theory of access based on the letters, should be excluded as a sanction for untimely disclosure. The district court further granted defendants' motion for summary judgment; despite finding the works substantially similar, the district court held that plaintiff had not raised a genuine issue of material fact as to other theories of access or demonstrated striking similarity. Plaintiff appealed the decision.

First, plaintiff argued that the district court abused its discretion by failing to apply the proper legal standard when imposing its "claim dispositive" discovery sanctions. But the court of appeals held that the sanctions were not, in fact, claim dispositive, as the exclusion of Alstott's letters was not "fatal" to plaintiff's claim for copyright infringement. For example, plaintiff could still establish access to his work by proving Farrell's attendance at NPM conferences or via a theory of widespread dissemination; and even if plaintiff could not establish any theory of access, he could still argue that the works at issue were strikingly similar. Further, the court held, the district court had not abused its discretion by excluding the letters, as the failure to produce the letters earlier in the litigation was neither substantially justified nor harmless.

However, the court also held that the district court erred by granting defendants' motion for summary judgment. Even excluding Alstott's letters, plaintiff had raised genuine issues of material fact as to Farrell's access to "Emmanuel" and, moreover, as to whether the works were strikingly similar.

For example, there was no dispute that Alstott and Farrell attended NPM conventions at which plaintiff performed "Emmanuel," and these conventions would not have had more than 5,000 attendees. The court therefore determined that there was a reasonable possibility that Farrell could have accessed "Emmanuel" before composing "Christ." Though Farrell and Alstott denied attending these events, defendants could not obtain summary judgment through their own unilateral denial of access.

The court also found a genuine dispute of material fact as to plaintiff's theory that "Emmanuel" was widely disseminated. The district court had rejected this theory because plaintiff failed to establish the amount of sales—and thus sufficient commercial success—of his work. However, the court noted that "saturation of the relevant market can create a reasonable possibility of access," and here, plaintiff had demonstrated that the parties all were members of a small liturgical music community during the relevant period. Plaintiff further showed that "Emmanuel" was heavily publicized in that small musical community. Thus, plaintiff had created a triable issue regarding the work's widespread dissemination.

Lastly, the court found that the district court properly held that there was a genuine issue of material fact as to whether "Christ" and "Emmanuel" were substantially similar. Plaintiff had provided expert analysis showing 23 aggregate similarities between the works, and the court held this analysis adequately explained how unprotectable elements were combined in a unique selection and arrangement shared by both works. Moreover, defendants failed to identify any prior works sharing this same selection and arrangement of pitches, rhythm, meter and other elements. Based on the same reasoning, the court also held that there was a genuine issue of material fact as to whether the two works were strikingly similar.

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