Arnold Horschack was an aspiring songwriter. He spent many hours alone in his mother’s basement with an Apple computer that he used as a multi-track recorder. Over many months, he composed a song that he was sure would be a hit – “Welcome Back Cartman.” The song was intended as an ode to Eric Cartman, a cartoon character from the TV show “South Park.” Horschack kept the song on his computer, which was password protected with NSA-level encryption algorithms. (Not even Jack Bauer could crack the encryption.) Horschack had never played the song for anyone and had no plans to do so until it was “Oooh! Oooh! Perfect!” Therefore, Horschack never worked on the song unless he was absolutely certain that nobody was in or around the house.
Vinnie Barbarino was a pool boy and maintenance man who cleaned the house owned by Horschack’s mother. Vinnie had access to all parts of the house.
One day, Horschack was listening to the radio when he heard a new song called “Welcome Back Hartford,” by Vinnie Barbarino. The song was somewhat similar to Horschack’s song but not identical. The lyrics were slightly different and Barbarino had a long a capella introduction that Horschack found to be “lame-o.” Whereas Horschack’s song was written as a polka, Barbarino’s song was a heavy metal ballad with a slightly different chord structure and melody. The song was a number 1 hit for weeks.
Horschack filed a lawsuit against Barbarino alleging copyright infringement. Barbarino answered, denying the material allegations, and discovery ensued. After discovery closed, Barbarino filed a motion for summary judgment. In his motion, Barbarino admitted that Horsch ack had a valid copyright and that there were “substantial similarities” between the two songs, but denied that he had copied Horschack’s song. He included an affidavit where he admitted to being the cleaning person for Horschack’s mother’s house but denied ever having heard Horschack’s song, denied copying it, and stated that because Horschack’s computer was password-protected, there was no way Barbarino could access the song. Barbarino’s motion papers further included copies of Horschack’s depositions admitting that Horschack had never played the song for anyone, kept his computer password protected, and never worked on the song unless he was certain that nobody was in or around the house. Horschack responded in opposition, including an affidavit in which he stated that he always left the password for his computer sitting on the desk next to his computer and that he thought that Barbarino’s singing and a capella introduction were “shameful.”
You are law clerk to the District Court judge. Make a recommendation to the judge, analyzing whether Barbarino’s motion for summary judgment should be granted. In so doing, consider the applicable law regarding proof of copyright infringement:
To establish copyright infringement, two elements must be proven: ownership of a valid copyright, and copying of elements of the work that are original. Regarding the second element – copying – direct evidence is rarely available. In the absence of direct evidence, copying may still be established by showing (1) the substantial similarity of original material in the two works, and (2) that the defendant had access to the copyrighted work.