Appeals Court Upholds Copyright Ruling for Tim McGraw

Plaintiff James Martinez claimed that in 1996 he wrote a song he called “Anytime, Anywhere, Amanda.” He registered his copyright in the work in December of that year.

Martinez alleged that country star Tim McGraw’s 1997 hit song “Everywhere” was copied from Martinez’s song, in violation of his copyright.

McGraw contended that “Everywhere” was original and was created by songwriters Craig Wiseman and Mike Reid.

Copyright Infringement

To succeed in an action for copyright infringement, a plaintiff must show:

• Ownership of the allegedly infringed work, and
• That the defendant copied the work.

If there’s no direct evidence of copying, then a plaintiff can establish an inference of copying by showing:

• The defendant had access to the allegedly infringed work, and
• The so-called copy and the original work are “substantially similar.”

In the case of music, “access” means hearing, or having a reasonable opportunity to hear, the plaintiff’s work.

As the trial court noted,

Although evidence that a third party with whom both the plaintiff and the defendant were concurrently dealing had possession of the plaintiff’s work is sufficient to establish access by the defendant, access may not be inferred through mere speculation or conjecture. A mere assertion of access, unaccompanied by probative evidence, is inadequate.

Nor is a bare possibility of access sufficient; a plaintiff must establish that the defendant had a reasonable possibility to hear the plaintiff’s work. A lesser showing of access will suffice where the works are “strikingly similar,” strongly suggesting that copying occurred.

Was there access?

Martinez admitted that his song was never published, played on the radio, or publicly performed outside of south Texas. He claimed that McGraw had “access” to his song due to the following:

• Martinez asked Susan Tomac, the mother of “Miss Texas” Amanda Little (for whom the song was written) to take and promote his song in Nashville in August or September of 1996.
• Tomac allegedly gave a copy of the song, on cassette tape, to a photographer and a dressmaker.
• The dressmaker was “close to” the wife of country artist Lee Greenwood.
• The photographer “could have” given the tape to McGraw’s hairdresser.
• Another country artist (not named in the lawsuit) allegedly copied another song on the tape, and she and McGraw recorded at the same studio.

Greenwood denied receiving the tape, and the trial court noted that there was no evidence that the photographer (dead by the time of trial) ever gave the tape to anyone.

The trial court concluded that Martinez’s claim of access was based on “speculation and conjecture.” The trial court also found that there was no competent evidence that the two songs were “strikingly similar.”

The court of appeals agreed, finding that “hypothetical transmittals fail to support a reasonable inference that any defendant or associate of any defendants received a copy” of the tape.

Although songwriters and performers often claim that someone “stole” their song, this case illustrates that it takes a lot more than a mere possibility of theft to make a case for copyright infringement.