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[DO NOT PUBLISH]
`
`IN THE UNITED STATES COURT OF APPEALS
`
` FOR THE ELEVENTH CIRCUIT
` ________________________
`
` No. 10-14710
` ________________________
`
` FILED
`U.S. COURT OF APPEALS
`ELEVENTH CIRCUIT
` FEBRUARY 8, 2012
`JOHN LEY
`CLERK
`
` D.C. Docket No. 1:08-cv-03386-TWT
`
`CHARLES WATT, d.b.a. Silverhawk Records,
`d.b.a. Bend Of The River Publishing,
`
`lllllllllllllllllllllllllllllllllll
`
`lPlaintiff - Counter Defendant-
`Appellant,
`
` versus
`
`DENNIS BUTLER, f.k.a. Mook B,
`LEFABIAN WILLIAMS, f.k.a. Fabo,
`CARLOS WALKER, f.k.a. Shawty Lo,
`ADRIAN PARKS, Individually and f.k.a. Stoner,
`a.k.a. Stuntman,
`d.b.a. D4L,
`TERIYAKIE NOCODEAN SMITH, et al.,
`
`llllllllllllllllllllllllllllllllllll
`
`Defendants - Counter Claimants-
`Appellees,
`
`ARTIST PUBLISHING GROUP, et al.,
`
`Defendants.
`
`

`
`________________________
`
` Appeal from the United States District Court
` for the Northern District of Georgia
` ________________________
`(February 8, 2012)
`
`Before TJOFLAT and CARNES, Circuit Judges, and MICKLE, District Judge.
`*
`
`MICKLE, District Judge:
`
`This is a copyright infringement case involving a repeating three-note riff,
`
`or ostinato, used in the 2004 rap song, “Betcha Can’t Do it Like Me” (“Betcha”)
`
`by the rap group D4L. Appellant Charles Watt claims that the riff was copied
`
`from the group Woodlawn Click’s 1995 rap song, “Come Up.” Watt owns the
`
`copyright to “Come Up” and he sued D4L along with others associated with
`
`“Betcha,” including Teriyakie Smith, who claims to have composed the music for
`
`“Betcha” in 2004 using three adjacent keys on his laptop keyboard and the “Fruity
`
`Loops” music production software.
`
`The district court found that Watt presented sufficient evidence to create a
`
`jury issue regarding (1) D4L’s access to “Come Up,” and (2) substantial similarity
`
`between the riffs used in D4L’s “Betcha” and Woodlawn Click’s “Come Up.” The
`
` Honorable Stephan P. Mickle, United States District Judge for the Northern
`*
`District of Florida, sitting by designation
`
`2
`
`

`
`district court found, however, that Watt failed to rebut Teriyakie Smith’s
`
`testimony that he independently created the riff, and granted summary judgment in
`
`D4L’s favor.
`
`We review the district court’s ruling de novo, applying the same summary
`
`judgment standard. Calhoun v. Lillenas Publ’g, 298 F.3d 1228, 1232 (11th Cir.
`
`2002). We examine the facts and the reasonable inferences drawn therefrom in the
`
`light most favorable to the nonmoving party to determine whether there is any
`
`genuine dispute of material fact for a jury to decide. Id. “We may affirm the
`
`district court on different grounds as long as ‘the judgment entered is correct on
`
`any legal ground regardless of the grounds addressed, adopted or rejected by the
`
`district court.’” Id. at 1230 n.2 (quoting Ochran v. United States, 273 F.3d 1315,
`
`1318 (11th Cir. 2001)). Because the evidence was not sufficient for Watt to
`
`sustain a genuine dispute that “Betcha” was copied from “Come Up,” we affirm.
`
`I.
`
`The gravamen of a copyright infringement suit is copying. The plaintiff
`
`must show that the defendant copied elements of an original work that is protected
`
`by the plaintiff’s valid copyright. Id. at 1232. Direct evidence of copying is rarely
`
`available, so the law provides a method of proving copying indirectly, which
`
`creates a presumption of copying that may be negated with evidence of
`
`3
`
`

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`independent creation. Id.; Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1249
`
`(11th Cir. 1999).
`
`A plaintiff can establish prima facie evidence of copying by showing (1)
`
`that the defendant had access to the plaintiff’s work; that is, a reasonable
`
`opportunity to come across the work, and (2) that there is a substantial similarity
`
`between plaintiff’s and defendant’s work; that is, an average lay observer would
`
`recognize defendant’s work as having been taken from plaintiff’s work. Calhoun,
`
`298 F.3d at 1232, 1234 n.11. If the plaintiff is able to make the showing, then a
`
`presumption of copying arises and the burden of production shifts to the
`
`defendant. Id. at 1232; see also Keeler Brass Co. v. Cont’l Brass Co., 862 F.2d
`
`1063, 1066-67 (4th Cir. 1988) (discussing presumptions and burdens in copyright
`
`cases). A defendant can negate the presumption of copying by presenting
`
`evidence that he independently created the work. Calhoun, 298 F.3d at 1232.
`
`Once the defendant does so, the presumption is negated and the plaintiff has the
`
`burden of proving that the defendant in fact copied his work. Id.
`
`In this case, both sides take issue with the district court’s summary
`
`judgment ruling. The appellees (collectively “D4L”) argue that Watt did not
`
`present a prima facie case of copying because Watt’s evidence of access and
`
`substantial similarity was insufficient to sustain a genuine dispute. Watt, on the
`
`4
`
`

`
`other hand, argues that D4L’s evidence of independent creation was self-serving
`
`and not sufficient to rebut the presumption of copying that arose from its prima
`
`facie case. We find that Watt’s evidence of access was too speculative and
`
`conjectural to make out a prima facie case. Furthermore, summary judgment was
`
`appropriately granted against Watt because he could not sustain a genuine dispute
`
`regarding copying.
`
`II.
`
`It is common in the rap industry for budding artists to distribute their music
`
`by selling or giving away copies on the street. Watt claimed that between 1996
`
`and 2005, he and others sold or gave away 12,000 to 15,000 compact discs
`
`featuring Woodlawn Click’s “Come Up” throughout the Southeast United States,
`
`including the Atlanta area where members of D4L and Teriyakie Smith are from.
`
`“Come Up” was never commercially distributed.
`
`During the 1995-1999 time period, Woodlawn Click performed “Come Up”
`
`at least 50 times in venues in the Atlanta area, including popular nightclubs, music
`
`festivals, and the Jack the Rapper Convention. A music video for “Come Up” was
`
`broadcast on the television shows “Front Row Video” and “Comic Escape” in the
`
`Atlanta area. A 41-second portion of “Come Up” was included in the film “Dirty
`
`South,” which was never commercially released but premiered to an audience of
`
`5
`
`

`
`several hundred in Atlanta. Also, the soundtrack album for the film included
`
`“Come Up,” although it had virtually no sales.
`
`The members of D4L and Teriyakie Smith denied that they ever heard
`
`“Come Up” or of the group Woodlawn Click. They never saw the television
`
`programs where “Come Up” might have played. They did not see the movie
`
`“Dirty South” or hear its soundtrack. Furthermore, Teriyakie Smith was born in
`
`1985. During the 1995-1999 time period, he was only 10 to 14 years old. He was
`
`too young to go to clubs where “Come Up” may have been performed.
`
`To establish access, a plaintiff must have more than mere speculation and
`
`conjecture. Herzog, 193 F.3d at 1250. There must be a reasonable possibility that
`
`the defendant came across the plaintiff’s work. Id. Here, the chance that members
`
`of D4L or Teriyakie Smith came across “Come Up” from a street copy is
`
`exceedingly slim considering the population of the Southeastern United States,
`
`where Watt says the song was handed out, compared to the number of copies
`
`handed out during the nine year period between 1996 and 2005. The same can be
`
`said for the performances of “Come Up” in the Atlanta area considering all the
`
`other rap music performances taking place during the 1995-1999 time period
`
`compared to the limited number of engagements that Woodlawn Click had.
`
`Watt’s evidence of access depends largely on the assumption that members
`
`6
`
`

`
`of the Atlanta rap community share music among themselves and that the song
`
`“Come Up” became popular and was widely shared for many years so as to
`
`multiply its distribution. Otherwise, it would hardly be possible for members of
`
`D4L, or Teriyakie Smith in particular, to have had access to “Come Up.” This
`
`assumption is too conjectural and speculative to sustain a genuine dispute. There
`
`is no evidence that “Come Up” ever caught on in popularity. To the contrary,
`
`neither the song “Come Up” nor the group Woodlawn Click became a commercial
`
`success.
`
`III.
`
`On the issue of substantial similarity, Watt was required to show that an
`
`average lay observer would recognize “Betcha” as having been taken from “Come
`
`Up.” Calhoun, 298 F.3d at 1232 (11th Cir. 2002). The two songs are both in the
`
`rap genre. Yet, they do not sound alike upon casual listening. It is only when one
`
`focuses on the riff that a similar repeating pattern can be heard underlying both
`
`songs.
`
`A riff can constitute a copyrightable element if it is original and important
`
`to the overall impression of the work. D4L does not argue that the riff from
`1
`
` See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 588-89, 114 S.Ct.
`1
`1164, 1169, 1176 (1994) (acknowledging that the opening bass riff and first words of Ray
`Orbison’s “Pretty Woman” could be characteristic features that go to the heart of the
`
`7
`
`

`
`“Come Up” is uncopyrightable. Instead they focus on other differences between
`
`the songs to argue that the songs are not substantially similar. It is only the riff,
`
`however, that Watt contends D4L copied.
`
`Watt’s expert prepared a chart showing a visual comparison of the riffs
`
`using cipher notation.
`
`Come Up
`
`|321--32|1---3-2-|321---32|1--1345-|
`
`Betcha
`
`|321--32|1--------|321---32|1---------|
`
`The notation shows some transition notes marked in italicized print in “Come Up”
`
`that are not included in “Betcha.” (Font altered from shaded to italicized). The
`
`main notes and the rests between them, marked with dashes, are the same. Watt’s
`
`expert concluded that other than the lack of the transitional notes, the pattern is
`
`identical. Listening to the two songs confirms this. An average lay observer
`
`would likely recognize the riffs as being the same.
`
`As for differences in the use of the riff, the riff in “Betcha” is prominent. In
`
`fact, there is little else to the song aside from the riff and the vocals. A listener can
`
`easily identify the riff, which is repeated throughout the song. Likewise in “Come
`
`work and 2 Live Crew’s use of these features would constitute a violation of the
`copyright act if not for fair use parody); Fred Fisher, Inc. v. Dillingham, 298 F.145, 147
`(D.C.N.Y. 1924) (Learned Hand, J.) (“[P]largarism of any substantial component part,
`either in melody or accompaniment, would be the proper subject of such a [copyright]
`suit as this.”).
`
`8
`
`

`
`Up” a listener can hear the riff prominently at the beginning of the song. The riff
`
`falls into the background when the vocals and another melody are added, making
`
`it difficult to hear at times. The riff, though, is arguably a substantial component
`
`of “Come Up” that is repeated throughout the song.
`
`The district court concluded that Watt could show that “Come Up” and
`
`“Betcha” were substantially similar because the riff, which is a copyrightable
`
`element, is the same in both songs. We agree. The main portion of the riff, which
`
`is a copyrightable feature, sounds the same in both songs and is repeated
`
`throughout both songs.
`
`III.
`
`The evidence of independent creation comes from Teriyakie Smith’s
`
`testimony that he wrote the music for “Betcha,” and specifically the riff, in 2004
`
`using three adjacent keys on his laptop keyboard and the “Fruity Loops” music
`
`production software. The district court accepted this testimony and found that it
`
`rebutted the presumption of copying that arose from Watt’s prima facie case. 2
`
` Watt argues that the district court treated the evidence of independent creation
`2
`as an affirmative defense. He is not correct. Negation of a presumption is different
`from an affirmative defense. See Calhoun, 298 F.3d at 1230 n.3 (“It should be
`emphasized that independent creation is not an affirmative defense (i.e. a claim
`extraneous to the plaintiff’s prima facie case). Rather, independent creation attempts to
`prove the opposite of the Calhoun’s primary claim, i.e., copying by McGee. Keeler Brass
`Co. v. Cont’l Brass Co., 862 F.2d 1063, 1066 (4th Cir. 1988)”).
`
`9
`
`

`
`Proof of access and substantial similarity give rise to a presumption of
`
`copying that is fully negated when uncontradicted testimony of independent
`
`creation is produced. Calhoun, 298 F.3d at 1233. The testimony of Teriyakie
`
`Smith, though not corroborated by documentary evidence or by a disinterested
`
`third-party, was plausible. We agree with the district court’s determination that
`
`the evidence met the burden of production. As a result, even if Watt had made out
`
`a prima facie case based on a showing of access and substantial similarity, the
`
`evidence of independent creation would have negated the presumption of copying
`
`that arose from Watt’s prima facie case.
`
`IV.
`
`As we have already mentioned, Watt failed to create a genuine issue of fact
`
`about access. Watt also argued, however, that “Betcha” and “Come Up” are
`
`strikingly similar. Striking similarity evidence is generally considered to be a
`
`substitute for access. Herzog, 193 F.3d at 1248. The district court considered
`
`Watt’s argument about striking similarity and found that it did not rebut the
`
`defendants’ uncontradicted evidence of independent creation.
`
`When a plaintiff in a copyright action cannot demonstrate access, “he may,
`
`nonetheless, establish copying by demonstrating that his original work and the
`
`putative infringing work are strikingly similar.” Corwin v. Walt Disney, 475 F.3d
`
`10
`
`

`
`1239, 1253 (11th Cir. 2007). Strikingly similar means that “the proof of similarity
`
`in appearance is ‘so striking that the possibilities of independent creation,
`
`coincidence and prior common source are, as a practical matter, precluded.’” Id.
`
`(quoting Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 1984)).
`
`The district court reviewed Watt’s evidence of striking similarity not as a
`
`substitute for evidence of access, which it found Watt had established, but as a
`
`rebuttal to Teriyakie Smith’s testimony of independent creation and in determining
`
`whether Watt could meet his ultimate burden of persuasion. Whichever way the
`
`evidence is treated, Watt cannot show striking similarity.
`
`
`
`A plaintiff claiming striking similarity must present evidence that the
`
`similarities between the two works are unique or complex. Selle v. Gibb, 741 F.2d
`
`896, 904 (7th Cir. 1984). This requirement is “particularly important with respect
`
`to popular music, ‘in which all songs are relatively short and tend to build on or
`
`repeat a basic theme.’” Benson v. Coca-Cola Co., 795 F.2d 973, 975 n.2 (11th Cir.
`
`1986) (quoting Selle, 741 F.2d at 905).
`
`In this case, the riff is not so complex or unique so as to preclude the
`
`possibility of independent creation, despite Watt’s expert’s conclusion. Indeed,
`
`the simplicity of the riff is what makes Teriyakie Smith’s testimony of
`
`independent creation plausible.
`
`11
`
`

`
`V.
`
`In conclusion, we find that the district court did not err when it granted
`
`summary judgment against Watt on his copyright claim. Watt did not create a
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`genuine issue of material fact about access. Watt did not contradict Teriyakie
`
`Smith’s testimony of independent creation. Overall, Watt was unable to sustain a
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`genuine issue of copying.
`
`AFFIRMED.
`
`12

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