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Francescatti v. Germanotta

United States District Court, N.D. Illinois, Eastern Division

June 17, 2014



MARVIN E. ASPEN, District Judge.

Presently before us is a motion for summary judgment filed by Defendants Stephani Joanne Germanotta p/k/a Lady Gaga ("Gaga"), Interscope Records, Universal Music Group, Inc. ("UMG"), DJ White Shadow, LLC ("DJWS, LLC"), and Brian Joseph Gaynor ("Gaynor"). Defendants contend that Plaintiff Rebecca Francescatti's ("Francescatti") music copyright infringement case should be dismissed because she cannot prove that (1) Defendants had access to and actually copied the protectable expression embodied in Francescatti's song, and (2) Gaga's song sounds substantially similar to Francescatti's. (Def.'s Br. 1.) For the reasons discussed below, we grant Defendants' motion because no reasonable trier of fact could find that the songs are substantially similar.


Francescatti, a songwriter and performing artist who resides in Chicago, Illinois, is the author of her musical work titled "Juda" ("Francescatti Song"). (RSOF ¶¶ 2, 7.) Defendant Gaynor was the sound engineer and bassist for the re-recording of the Francescatti Song. ( Id. ¶ 10.) Defendant Gaga is a "well-known, popular media star performing under the name Lady Gaga'" and created the song "Judas" ("Gaga Song"). ( Id. ¶ 3.) Defendant DJWS, LLC is an Illinois limited liability company that was originally formed by Gaynor, DJ Paul Blair p/k/a DJ White Shadow ("Blair"), and Brian Lee ("Lee"). ( Id. ¶ 6.) Defendant Interscope Records, a division of UMG, is the record company to which Gaga is signed and which released the Gaga Song and the album in which it appears, Born this Way. (SOF ¶ 4.) Francescatti contends that Gaga's song "Judas" infringes upon Francescatti's copyright in her song "Juda." (Compl. ¶ 37.)

A. Defendants' Motion to Strike

The parties have filed lengthy Local Rule 56.1 statements, and virtually all of the 122 statements of fact are disputed in whole or in part. Much of the forty additional statements of fact are disputed as well. Defendants also filed a motion to strike portions of Francescatti's response to Defendants' 56.1 Statement of Undisputed Facts. (Def.'s Mot. to Strike.)

The Local Rules "assist the court by organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side proposed to prove a disputed fact with admissible evidence." Bordelon v. Chi. Sch. Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir. 2000) (quoting Markham v. White, 172 F.3d 486, 490 (7th Cir. 1999)). The Seventh Circuit has "consistently and repeatedly upheld a district court's discretion" to require compliance with the Local Rules. Bordelon, 233 F.3d at 527 (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir. 1995); Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994) (collecting cases)).

With one exception to a fact that concerns a glissando (RSOF ¶ 91), we have not relied upon the material that Defendants have asked us to strike. We therefore deny the motion in two parts. We deny Defendants' motion as to the fact about the glissando that appears in paragraph 91 of Francescatti's Responses because, despite what Defendants argue, it does not introduce new facts in violation of Local Rule 56.1. Rather, Francescatti disputes Defendants' statement about the placement of a glissando in the two songs with evidence that points to their similar placement. In accordance with the local rule, this response includes a "disagreement" with "specific references to... parts of the record." L.R. 56.1(b)(3)(B).[1]

We deny the motion to strike with regard to the remaining disputed facts because they are irrelevant to our decision. Thus, without getting caught up in this labyrinth of disputes, the basic facts are as follows. See Zimnicki v. Gen. Foam Plastics Corp., 09 C 2132, 2011 WL 5866267, at *1 (N.D. Ill. Nov. 22, 2011).

B. Facts

In 1998, Francescatti wrote a song entitled "Juda, " which she states is both about an acquaintance, Juda, whom she met while working at the Chicago Board of Trade and about her betrayal of her father. (Francescatti Dep. 138-140, 143, 173-74.) The song was registered with the Copyright Office initially in 1999 for guitar and voice. ( Id. at 209:16-20.) Francescatti registered it again in 2005 after working with Gaynor on a new recording that added "drums, bass, strings, background vocals, sound mapping and samples (self made)." (SOF ¶ 10.)

In January 2010, Lee introduced Gaynor to Blair for the purpose of creating original material for Gaga to use in her Born This Way album. (RSAF ¶ 1.) On January 27, 2010, Blair provided fourteen mp3 music tracks to Gaga via a file sharing service-download link. (RSAF ¶ 2.) Later in April 2010, Blair sent some of his own "on-the-verge stuff" to Gaga. ( Id. ¶ 5.) Although Blair could not identify or recall many of the details of the music that he provided to Gaga between January 2010 and May 2010, he denies having heard or received a copy of the Francescatti Song and denies giving a copy of the song to Gaga. (SOF, RSOF ¶ 115.) Blair ultimately received producer and/or writer credit for contributions to nine songs on the initial release of the Born This Way album. (RSAF ¶ 31.) Gaynor also worked on and received credit for contributions to the album. ( Id. ) According to Blair, Gaynor, and Gaga, however, neither Blair nor Gaynor worked specifically on the Gaga Song. (SOF ¶ 116.)

Meanwhile, Gaynor worked with Francescatti in April 2010 on material unrelated to the Francescatti Song. (RSAF ¶ 6.) In an email on May 1, 2010, Gaynor informed Francescatti that he had placed three tracks on Gaga's next album and was being flown to meet Gaga in Paris. ( Id. ¶ 8.) Then on June 9, 2010, Gaynor again emailed Francescatti stating that he had in fact met Gaga on his trip to Europe. ( Id. ¶ 11.) He later recanted in a deposition, stating he lied to Francescatti to lead her on. ( Id. ) The parties therefore dispute whether Gaynor met Gaga on this trip. (SAF ¶ 8; RSAF ¶ 8.)

With respect to the Gaga Song, Nadir Khayat, professionally known as RedOne ("RedOne"), testified that he compiled much of its musical accompaniment in Stockholm, Sweden, prior to working with Gaga on the song in Amsterdam and in Paris. (RedOne Dep. 43:8-23, 46:1-5.) On May 9, 2010, Gaga decided on "Judas" as the title of the song because she missed her ex-boyfriend and thought of him as "Judas, he's the betrayer of all things, you know, because Judas is the biblical betrayer of all things[.]" (SOF ¶ 9.) In addition to Gaga and RedOne, the other individuals who were present and who worked on recording, mixing, and producing the Gaga Song include Trevor Muzzy, Dave Russell, Vincent Herbert, and Taymor Braxton. (RSAF ¶ 28.)

Throughout 2010 and early 2011, additional edits were made to the Gaga Song, which was ultimately published on April 23, 2011.[2] (Gaga Dep. 103:22-104:2.) Also in April 2011, Blair and Gaynor worked on the Gaga Song "remix" (a version of a song that can be used "for a different purpose than the original song"). (SOF ¶ 119.)[3] Although Blair and Gaynor worked on the Gaga Song remix and certain songs for the Born This Way album (Blair 30(b)(6) Dep. 60:18-61:19), Blair and Gaynor deny that they assisted with or discussed the original creation of the Gaga Song with Gaga or RedOne (SOF ¶ 116). According to Gaga, she first heard the Francescatti Song on July 19, 2012, after the Gaga Song was published. (Gaga Dep. 24:8-22.) The parties dispute whether Gaynor, in working with Blair on material for Gaga's Born This Way album, exposed Gaga, either directly or indirectly through Blair, to the Francescatti Song. (SOF ¶¶ 114-16; RSOF ¶¶ 114-16.)


A. Standard of Review

Summary judgment will be granted in favor of the moving party if "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). When ruling on a motion for summary judgment, we must view evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in the nonmovant's favor. Allen v. Destiny's Child, 06 C 6606, 2009 WL 2178676, at *2 (N.D. Ill. July 21, 2009) (citing Omega Healthcare Investors, Inc. v. Res-Care, Inc., 475 F.3d 853, 857 (7th Cir. 2007)). The nonmoving party, however, may not simply rest upon the pleadings but must instead come forward with specific facts showing that there is a genuine issue for trial. Allen, 2009 WL 2178676, at *2 (citing Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008)). While we do not make credibility determinations or weigh conflicting evidence, Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005), we must "function as a gatekeeper, " in determining whether the plaintiff has produced sufficient evidence with regard to each essential element of the plaintiff's claim, Myers v. Ill. Cent. R.R. Co., 679 F.Supp.2d 903, 917 (C.D. Ill. 2010).

B. Copyright analysis

"To establish copyright infringement, one must prove two elements: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.'" JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 914 (7th Cir. 2007) (quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296 (1991)). Because Francescatti is the owner of a valid copyright (SOF ¶¶ 9-10), the only issue before us for summary judgment purposes is whether she has produced evidence of actionable copying of the original elements of her song. Since it is virtually impossible to offer direct proof of copying, plaintiffs frequently establish copying circumstantially. Zimnicki, 2011 WL 5866267, at *2; Allen, 2009 WL 2178676, at *3. We may infer copying "where the defendant had access to the copyrighted work and the accused work is substantially similar to the copyrighted work." JCW Invs., 482 F.3d at 915 (quoting Susan Wakeen Doll Co., Inc. v. Ashton Drake Galleries, 272 F.3d 441, 450 (7th Cir. 2001)). Although we find that Francescatti has established a reasonable possibility of access, no reasonable juror could find that the songs are substantially similar.

1. Access

Defendants contend that they are entitled to summary judgment because Francescatti cannot show a reasonable possibility of access. (Def.'s Br. 26.) In support of this contention, they present evidence that neither Gaga nor Blair heard the Francescatti Song prior to this litigation. (Gaga Dep. 24:8-22; SOF ¶ 115.) In addition, Defendants present the testimony of Gaynor, who worked on the Francescatti Song, who attests that he did not give the Francescatti Song to either Blair or Gaga, that he never worked on the Gaga Song, and that he never had direct contact with Gaga. (SOF ¶¶ 18, 115-16; RSAF ¶ 11.) Defendants add that it was not until after the Gaga Song was published that Blair and Gaynor worked on its remix. (SOF ¶ 119.)

Proof of access is "an important component" of the circumstantial evidence supporting an inference of copying. Allen, 2009 WL 2178676, at *5 (citing Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 1984)). "As a threshold matter, " a plaintiff must prove access through "evidence which would establish a reasonable possibility that the accused work was available to the alleged infringer." Selle, 741 F.2d at 901. Francescatti may plausibly plead that her song was available to Defendants with facts alleging that they had the opportunity to view the protected item. Peters v. West, 776 F.Supp.2d 742, 748 (N.D. Ill. 2011) (citing Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 508 n.5 (7th Cir. 1994)). Again, "a defendant's opportunity to view the copyrighted work must exist by a reasonable possibility-not a bare possibility." 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.02[A] (2013). Distinguishing "bare" from "reasonable, " as the case law demonstrates, is "anything but straightforward." Id. What is clear, however, is that while an inference of access may not be based on mere conjecture or speculation, Selle, 741 F.2d at 901, Francescatti need not prove that Defendants were actually exposed to the song. Whether the alleged infringer actually availed herself of the opportunity to view the protected work is relevant to "the ultimate issue of copying, and not the subordinate issue of access." Nimmer § 13.02[A].

One way that a plaintiff can establish that a defendant had the reasonable opportunity to view the protected item is through proof of a "nexus' between the alleged copier and the individual possessing knowledge of the creator's work." Le Moine v. Combined Commc'ns Corp., 95 C 5881, 1996 WL 332688, at *4 (N.D. Ill. June 13, 1996) ("Where there is a close relationship' or nexus' between the alleged copier and the individual possessing knowledge of the creator's work, a reasonable probability of access may be inferred by the trier of fact."); Meta-Film Associates, Inc. v. MCA, Inc., 586 F.Supp. 1346, 1357 (C.D. Cal. 1984).

Based on the nature and timing of the collaboration between Gaynor, Blair, and Gaga, a reasonable juror could find that there exists "nexus" between the parties and that therefore the Defendants had an opportunity to view the Francescatti Song. The nexus between the parties in this case may be proved through a channel of communication. See Repp v. Webber, 132 F.3d 882, 887 (2d Cir. 1997); Sanford v. Columbia Broadcasting Sys., Inc., 594 F.Supp. 711 (N.D. Ill. 1984). Although the parties dispute that Gaynor ever came into direct contact with Gaga, it is undisputed that Gaynor worked on the Francescatti Song before he collaborated with Blair on material for Gaga's Born This Way album and that Gaynor and Blair received credit for contributions to the same album.

If a channel of communication between the person to whom the work is submitted (here, Gaynor) and the person who ultimately created the allegedly infringing work (here, Gaga) and "such channel involves a number of different people, each of whom (other than the original person to whom plaintiff submitted the work) denies knowledge of the work, " access is a reasonable, not a bare possibility. Nimmer § 13.02[A]. Furthermore, in a previous case where even the existence of such a channel of communication was denied by the defendant, but supported by some evidence from the plaintiff, we denied summary judgment based on our finding that plaintiff had established a reasonable possibility of access. Sanford, 594 F.Supp. at 713 (finding a reasonable possibility of access despite defendant CBS denying plaintiff's allegations that he submitted his song to CBS's office in Illinois, which then allegedly sent the tape to the CBS's Los Angeles office at a time when CBS allegedly knew that defendant Michael Jackson was in contact with CBS and looking for a song to perform with Paul McCartney).

Here, Francescatti has come forward with facts concerning a channel of communication between Gaynor, Blair, and Gaga that surpasses the threshold of "mere conjecture or speculation, " thus giving rise to a reasonable possibility of access. Judges in this district have found access based on similar facts. In Allen, although (1) the creators of the Destiny Child's Song ("DC Song") denied under oath that they did not receive a copy of the plaintiff's song from any source, and (2) a third party-whom the plaintiff had allegedly given his song and who later created a remix of the DC Song-denied giving the creators a copy of the plaintiff's song, it was undisputed that "sometime in 2000, 2001, or 2002, " the creators came into contact with the third party. Allen, 2009 WL 2178676, at *6. "It was therefore possible for [the third party] to have provided a copy of [the plaintiff's song], or a key part thereof" to the creators of the DC Song before the songwriter defendants wrote and recorded the DC song in 2004. Id .; see also Le Moine, 1996 WL 332688, *4 (finding that although the defendants never saw the plaintiff's compositions this fact did not foreclose the reasonable probability that the defendants had access to the creative components of the plaintiff's work through their discussions with third parties).

Defendants claim that Allen in fact supports Defendants' position because whereas in Allen "it was undisputed that the third party actually came into contact with the defendants, " here, it is undisputed that the third party, Gaynor, " never came into contact with Gaga." (Def.'s Reply 20 (emphasis added).) Defendants' application of Allen to the facts of this case misses the mark. Here, it is Blair who is the third party. Gaynor worked on the Francescatti Song before collaborating with Blair for the purpose of providing music to Gaga for the Born This Way album, and Blair worked with Gaga on the same album. (SOF ¶ 10; RSAF ¶¶ 1, 31.) Accordingly, as in Allen, it is reasonably possible for Blair to have provided the Francescatti Song to Gaga before the Gaga Song was published on April 23, 2011.

Furthermore, despite Defendants' statement to the contrary, it is not undisputed that Gaynor never came into contact with Gaga. (SAF ¶ 8; RSAF ¶ 8.) Whether there exists a direct nexus between Gaynor and Gaga depends on the credibility of the witnesses. Because courts are constrained in making credibility determinations at the summary judgment stage, we hold that the factual question of access as it relates to a direct nexus between Gaynor and Gaga is material and disputed. See Allen, 2009 WL 2178676, at *7 (denying summary judgment because whether the plaintiff "has established a reasonable possibility of access is a close call, the resolution of which hinges entirely on the credibility of the witnesses"). Here, where Francescatti has attempted to impeach Defendants' credibility, whether Gaynor came into contact with Gaga and whether Gaga heard the Francescatti Song before the Gaga Song was published, remain disputed. (RSOF ¶¶ 13, 25, 115-118; SAF ¶¶ 1-4, 8, 10-11); compare Selle, 741 F.2d at 903 (finding that plaintiff was unable to raise more than a speculation that the Bee Gees had access to his song where the "extensive testimony of the defendants and their witnesses describing the creation process went essentially uncontradicted, and there was no attempt even to impeach their credibility ") (emphasis added).

Defendants argue that because both Blair and Gaga deny knowledge of the Francescatti Song and Gaynor denies exposing both individuals to the song, Francescatti cannot avoid summary judgment merely by suggesting that Defendants' evidence may not be believed. (Def.'s Reply 19 (citing Alvarez v. Industria del Amor, 98 C 1851, 1999 WL 498610, at *3 (N.D. Ill. July 9, 1999). We agree. Francescatti, however, comes forward with more evidence than just "merely" suggesting that Defendants' evidence is not to be believed. Francescatti offers specific, undisputed evidence about Gaynor, Blair, and Gaga's collaboration on the Born This Way album and the sequence of events surrounding the creation of the Gaga Song before it was published in 2011.

To reach the conclusion that the Francescatti Song was available to Defendants, a trier of fact would have to (1) discredit the testimony of Gaynor, Blair, and Gaga that neither Blair nor Gaga received a copy of the Francescatti Song, (2) infer that Gaynor either gave the Francescatti Song to Gaga directly, or that he gave it to Blair and Blair then gave it to Gaga, and (3) discredit Gaga and RedOne's testimony that they independently created the Gaga Song. When the evidence is viewed in the light most favorable to Francescatti, as we must do in evaluating a motion for summary judgment, this chain of events is reasonably possible. See Allen, 2009 WL 2178676, at *7 (conducting a similar analysis and concluding that however attenuated plaintiff's theory of access, factual questions still must be presented to the trier of fact); see also Gaste v. Kaiserman, 863 F.2d 1061, 1067 (2d Cir. 1988) ("Although Gaste's theory of access relies on a somewhat attenuated chain of events extending over a long period of time and distance, we cannot say as a matter of law that the jury could not reasonably conclude that Kaiserman had access to the song through Lebendiger. Access ...

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