King Record Distributing Co., 105 F. Supp. 393 (S.D.N.Y. 1952); Fuld v. National Broadcasting Co., 390 F. Supp. 877 (S.D.N.Y. 1975); Costello v. Loew's, Inc., 159 F. Supp. 782 (D.D.C. 1958). A general allegation of access, as made by the plaintiff, is insufficient. Both Gibson and Baskin deny prior knowledge of plaintiff or her version of the song. Plaintiff could not state or show that she had knowledge that Gibson and Baskin were aware of her composition. Her speculations and inferences as to access are insufficient to meet defendants' summary judgment challenge.
A copyright is not violated because a second work is similar when the two works stem from a common source. Infringement requires striking similarities of a kind that can result only from copying, rather than by coincidence, common source derivation or independent creation. Stratchborneo v. ARC Music Corp., 357 F. Supp. 1393, 1403 (S.D.N.Y. 1973). The undisputed facts point to independent development of the two songs and the exhibits show a basic rather than a striking similarity.
The plaintiff Scott permitted an unrestricted use and a publication of her song, coupled with the execution of a release. This resulted in a forfeiture of her common law copyright. Hirshon v. United Artists Corp., 100 U.S. App. D.C. 217, 243 F.2d 640 (1957); 1 Nimmer, Copyright § 41 at 183-89 (1975).
The plaintiff relies heavily upon Arnstein v. Porter, 154 F.2d 464 (2nd Cir. 1946) and its holding that summary judgment in a copyright infringement proceeding is inappropriate when there is an issue of witness credibility as to access and when there is the "slightest doubt" as to the facts. Such reliance, however, is misplaced; Arnstein has lost its vitality by subsequent rulings. See Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317, 1319 (2nd Cir. 1975); Dressler v. Sandpiper, 331 F.2d 130, 132 (2nd Cir. 1964). The plaintiff Scott has the burden of showing that Gibson and Baskin had access to her song. The depositions and relevant affidavits submitted, however, merely assert a claim of access. Lacking is significant, affirmative and probative evidence to support that claim.
Gibson and Baskin are indispensable parties to this litigation. They collaborated and developed the song, later assigning their interests. Equally important is the fact that the validity of their copyright is at issue. Should this matter proceed to trial an adverse judgment against the present defendants would certainly affect their interests. See First Financial Marketing Services Group, Inc. v. Field Promotions, Inc., 286 F. Supp. 295, 298 (S.D.N.Y. 1968); Charron v. Meaux, 60 F.R.D. 619 (S.D.N.Y. 1973).
On basis of the foregoing, it is this 27th day of April, 1978,
ORDERED that the motions of the defendants for summary judgment and to dismiss for failure to join indispensable parties are granted; and it is
FURTHER ORDERED that the Complaint of Esther Mae Scott be, and it is, dismissed.
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