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3 DePaul-LCA J. Art & Ent. L. 36 (1992-1993)
Moore v. Columbia Pictures Industries, Inc., 972 F.2d 939, 941 (8th Cir. 1992)

handle is hein.journals/dael3 and id is 38 raw text is: gious speech be afforded no disparate treatment from secular speech. Linda M. Cecchin 1. Doe v. Small, 964 F.2d 611, 615 (7th Cir. 1992). 2. Id. at 617 (citing Heffron v. Int'l. Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981)). 3. Id. (quoting Board of Educ. of Westside Community Schools v. Mergens, 496 U.S. 226, 250 (1990)). 4. Id. at 618. 5. Id. 6. Id. at 619. 7. Id. 8. Id. at 620 (citing Widmar V. Vincent, 454 U.S. 263 (1981); Fowler v. Rhode Island, 345 U.S. 67 (1953)). 9. Id. at 618. 10. Widmar, 454 U.S. at 271. 11. 964 F.2d at 621. Moore v. Columbia Pictures Industries, Inc., 972 F.2d 939, 941 (8th Cir. 1992). INTRODUCTION The plaintiff, Derrick D. Moore, a songwriter and musician, filed a copyright infringement suit against the defendants, Columbia Pictures Industries, Inc., a motion picture production company, MCA Records, Inc, a record production company, and Antonio Reid and Kenny Edmonds, two songwriters. The Eighth Circuit affirmed the district court's grant of the defen- dants' Motion for Summary Judgment, ruling that although the district court erred in finding that Moore's evidence was insufficient to show access to his copyrighted song, they were correct in finding that the plaintiff did not demonstrate substantial simi- larity between his work and that of the defendants. FACTS During March, April, and May of 1989, the plain- tiff, Moore, composed a song entitled She Can't Stand It. On March 22, 1989, Moore's agent, James Selmer, delivered the instrumental version of the uncompleted song to Cheryl Dickerson, MCA's Director of Artists and Repertoire. At that meeting, Dickerson said she liked the tape and wanted to keep it so that her supervisor, Louil Silas, could listen to it. Dickerson asked Selmer to send her the final version of the song, which he did on May 11, 1989. Neither Moore nor Selmer were ever contacted by Dickerson subsequent to that meeting. During February and March of 1989, defendant Reid claims to have created a rhythm tract for a song called On My Own. On March 21, 1989, he claims to have delivered this track to defendant Edmonds, who on March 22 (the same day Selmer met with Dickerson) began to create music to accompany Reid's rhythm tract. On March 23, defendants Reid and Edmonds composed lyrics for On My Own. On March 25, they had the completed song and trans- ferred it to a master tape. On March 31, Reid and Edmonds played On My Own over the phone to Silas, with whom they had worked in the past. In early April, Reid and Edmonds submitted a copy of their song to the producers of the movie Ghostbusters II, who eventually used it as the theme song for the movie in June of 1989 after chang- ing the title to On Our Own. The song was released as a single in late May of 1989. On June 6, 1989, the day Moore registered his song with the United Stated Copyright Office, he noti- fied Columbia Pictures Industries, Inc. (Columbia) that it was infringing on his copyright through the use of the song On Our Own, a charge which Columbia denied. On July 14, 1989, Moore brought an action against the defendants in the United States District Court for the District of Minnesota' alleging infringe- ment of his copyrighted song She Can't Stand It. LEGAL ANALYSIS Moore argued, first, that the district court erred in finding the evidence did not establish a reasonable possibility that defendants Reid and Edmonds had access to She Can't Stand It before they composed On My Own. Second, he claimed that the court erred in finding no substantial similarity between the two songs. In the Eighth Circuit, copyright infringement is established by demonstrating: 1) ownership of the copyright, and 2) copying by the defendant.' Ownership of the copyright by Moore was not in dis- pute in this case. Because the second element could not be proven directly, copying can be demonstrated by showing: 1) that the alleged infringer had access to the copyrighted work, and 2) that the works at issue are substantially similar.5 The court first addressed the issue of access. Access can be established by proving that the defen- dants had an opportunity to view or copy the plain- tiffs work. A bare possibility of access to the work is not enough; a reasonable possibility of access must exist.' A reasonable possibility of access can be demonstrated under the corporate receipt doctrine.6 This court, like other courts, recognizes that the cor- porate receipt doctrine can apply if there is a relation- ship between the intermediary and the alleged infringer, even if the alleged infringer is not an employee of the intermediary.7 Moore asserted that sufficient facts were presented to the district court to defeat the defendants' Motion for Summary Judgment on the basis of access. The appellate court agreed with Moore and con- cluded that there was a reasonable possibility that Reid and Edmonds heard She Can't Stand It before composing On My Own.8 Dickerson acquired a copy of She Can't Stand It on the same day that 36 Journal of Art & Entertainment Law

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