number eighteen dash five three zero five will you are dealing parker at all versus mervin winwood at all oral argument fifteen minutes per side mr cates for the appellants good  we have the pleasure of representing ms deni parker and ms rose banks is parker is a legend of stax records she is the song writer along with mr homer banks ms rose banks deceased husband of the song ain't that a lot of love the trial court granted the defendant's motion for summary judgment because it held that the only proof that the plaintiff submitted in this case was inadmissible hearsay  i will focus my remarks this morning on two independent reasons why that finding was in error the first reason is that there is the hearsay within hearsay issue in the said all you have or newspaper articles in newspaper articles or hearsay and therefore that is not enough did you argue with the ancient document we did we did it is the court does not clearly more than twenty years old believe in one nine hundred eighty eight it is when they were authenticated the age of the document well the they they are in a book that would that has a that has in the title were newspaper articles well they were it was originally a newspaper article that was then compiled into a book of a newspaper article that was in the interview about how this song was created considered unreliable how to now that it's over twenty years old how to become reliable well because the the the passage of time makes it the passage of time makes it reliable enough that the hearsay concerns are are overcome enough to where the jury can consider it closure but how do they get to be more reliable they were reliable well because if the statement in the newspaper two days ago the we don't know what the passage of time will reveal is is is history develops th is the future goes forward history changes as you learn more about it and the compilers of the rules have determined that twenty years it is enough to meet the threshold of reliability that is an issue that if it's not reliable what it's published in the passage of time makes it reliable the argument it's not your honor not to be true because it was in the  newspaper it's not reliable for the first twenty years but after twenty years it's true because it was in the newspaper twenty years ago i don't believe that's the case your honor i think what the rule is saying is that if it's more than twenty years old i s it has met the threshold to where you know it's not conclusive it doesn't wave every argument the defense wants to raise about why that statement shouldn't be  the the district court's opinion says we didn't submit any admissible evidence and under the ancient documents exception we did the the twenty year timeline the documents exception there are two levels of hearsay and if you look at it if you look at the statements we didn't use mr davis told this same story in two thousand twelve and there are two levels of hearsay there one level is spencer davis saying we copied this song in the second level is the author saying spencer davis told me he copied these these songs and if we tried to submit that document in two thousand from two thousand and twelve mr davis and mr wynn would could correctly say wait a minute i can't cross examine that witness but if we call that witness if we call the author of that two thousand and twelve article and sit to come to the stand and say spencer davis told me he copied this song then that's a statement of a party opponent in a different a different issue the damage in judge case about the concentration camp guard is effectively the same thing he's saying i can't cross examine you're submitting that some clerk seventy years ago wrote down that top is saying you told me these things and i can't i can't cross examine that person but they'd documents acception allows you over the threshold so ancient documents and that of the ancient the people who wrote it probably would not have had any motive to make it fall a false statement about that's the point of it is that it is removed from the people might been in two thousand and twelve it's closer to this controversy but but in one thousand nine hundred and three in a family bible something exactly exactly birth certificate marriage certificate a letter and i got married summary judgment is it's kind of well to pivot to my second point the part of the reason why it for the last twenty years people had been actively challenging this statement in this newspaper article then that that presents a different question but the opposite is true and pivoting to the adopted mission argument steve winwood opted mission just for the truth of everything on a web site i mean there's all sorts of stuff i websites and to think that the person that has the website is about him for the truth of everything i mean it's kind of a stretch as it is i think it is not unreasonable to expect  that that to treat differently someone's personal facebook page i'm going to post pictures of my grandchildren i'm going to pop off about the issues of the day that that that can be treated in a different way they post in infowars article that doesn't mean that they are accepting that is true but this is steve winwood dot com steve winwood dot com decides to put articles about steve winwood and they are self promotional mr winwood again back to judge donald's point has the ability to say hey this was just a web person i didn't read each of these things  a jury say i don't believe that you posted so promotional articles about about your history and these say that this song was copied things spencer davis it minutes we copy the protectable element of this song can it reasonable jury can the can the court say that a reasonable jury could not reach that conclusion i don't think they can you've got other evidence substantial similarity we have evidence of striking similarity even we haven't musicologist that says that in the end olds of popular music this baseline has been used twice analysis of the nerves so that he does analysis of the notes it is a it is a repetition of five notes at the same level and then one at the octave below at the risk of offending the chord it's  our responses they filed a motion to dismiss as well and that the motion to dismiss level for personal jurisdiction we had then gotten that in submitted it to the court as well  saying among the reasons that they directed their attention to the jurisdiction is here's an expert report that says that it's a strikingly similar zone to a tennessee ok so the on right buttons that you submitted was in connection with the motion to dismiss on personal jurisdiction but not in opposition to the summary judgment motion it was it was attached to our response to the motion to dismiss it was before the court before the court ruled on the issue for s answer my question you did not submit that document in op position to the summary judgment motion that is correct all right don't aren't you required to submit your documents in opposition rather than have a judge look through the file as to what it might might have been filed in unrelated motion i'm out of time i can address that on which yes please i have two thoughts on that one thought is if that was at trial if all i had is the  musicologists expert i think i get to the jury but if that was the only thing i was relying on in summary judgment i think that would be a problem my second point is that this is not we're not asking the court to have independently pulled from the opposition to the motion for summary judgment i know you're out of time but i do want to talk about personal jurisdiction your argument here is that the defendant knew that the  song was going to be released in the united states and therefore there's personal jurisdiction in the state of tennessee is that your argument that is correct and that the u s did you argue that i mean to be released the united states doesn't mean it's released in every state in the united states i mean i could see that united states it might be new england might be midwest not necessarily tennessee just because it's released generally in the united states doesn't mean it's going to go to tennessee i mean did you hone in on tennessee that he knew that this song was going to be released in the in the state of tennessee and to do so allege in purposefully availed himself to the jurisdiction of tennessee and when they say we lack personal jurisdiction over mr mr mr wynn would you have to establish that you do have jurisdiction and all you had was that he knew it was generally going to be released to the united states that's correct i think that's enough i think i think it plus the fact that they knew that the song that they were taking it totally know the answer to that i know that the law changed relatively recently that where latches is no longer a defense the only limitation is that you only get the three years before you  sued to be able to go forward so there is no statue imitations there's not a statue limitations it's just that all you can get is the firing that's remarkable i mean in view of the policy reasons for statutes of limitations particularly and cobalt publishing with me as my partner rebecca showman please the court i'm going to get briefly to hear a story because i think it can be disposed of quickly but let me make very clear  the timeline which is undisputed and objective louis verifiable is an entire basis for judgment call oh to have granted summary judgment in his entire reason to affirm his decision dismissing those compliant and let me briefly cover the timeline so and we're talking about a so the plaintiffs october sixty six after the defendants had an opportunity to have heard and copied the song that's their theory the court ask are substantial similarity came up and let me digress briefly and be clear judge griffin you are absolutely correct the substantial similarity expert report was submitted not in opposition to the summary judgment but tangentially to the personal jurisdiction issue so it's not it was not before judge mccalla it did not rise to it was not even submitted to try to create a genuine issue of material fact so that's correct having said that october sixty six is when the plaintiff that's when the defendants had an opportunity to have heard is the court knows well substantial similarity required before there is liability for getting to the jury or getting beyond summary judgment in a copyright infringement case is evidence of copying copying is required all sorts of song sound alike that's independent creation so there is no evidence in this case of copying and that's because the timeline verifiably objectively and without dismiss is that mr mullins when you're talking about when you're talking about evidence a copying isn't that a fact question and so if it's a bad question you have to put some evidence in there and i know the president said that has to be possible but it know i'm sorry i thought that then started again so you didn't really interrupt go ahead or certainly there are certainly the father of the jury has to decide genuine issues of material th our point a judge mccallum agreed on the timeline is indisputable there is no genuine issue of material fact there is nothing for a reasonable jury to decide that's the tama let me let me tell you why that's seventy's he kept a diary of every month of his musical career and every year he retained his nineteen sixty six diary without dispute and that's in the record it shows that give you some love it was written on april five m six nineteen sixty six april six months before october when the plaintiff released his song in london england not only that morning when woods diaries shows  june ninth and ten and fourteen the this song was recorded in london england give it some love and was recorded were that of were that not enough to please the court the diary six he says was the recording still before october nineteenth sixty six when the player said you could have heard the song we found the tape box which includes the recorded master recording and pi studios wonder now owned by universal music of england we submitted the declaration of the custody of the vault of master recordings on that tape box and on the recording is the da recorded september twenty one nights and sixty six it's as if we had a videotape of the recording and we have objective leave verifiable indisputable not contradicted evidence of independent creation there is nothing for the jury to decide because the plan of didn't submit any facts gente that created a genuine issue of material fact so whether or not spencer davis statement by the way spencer davis is not of the photo he was never served this is right here so and it's a documentary not this is the triple hearsay problem the spencer davis statement is not those are equally dispositive and probative in this case because his objective was wrong we have objective and contradicted verifiable evidence that there is that clearly demonstrates and is not susceptible of any creation of genuine issue material five that jimmy some of them was written recorded and were recorded before october nine sixty six on the plane of service that's when my record was hirable let me also say there is no evidence on the record that the plaintiff ever had radio play for his soul he never toured there is absolutely no evidence to create a genuine issue that steve winwood and mervin winwood independently created and wrote jimmy some love and the facts  in dispute well gift given the objective evidence here which is objective a verifiable there can be no genuine issue and i would suggest have to have a reasonable juror to be able to rule that way based upon the evidence to actually submit it to the jury summary judgment so if a read if it's not evidence that a reasonable juror could rely upon it's not enough to get past summer precisely your honor and briefly on the issue of personal jurisdiction above which the agreement in london england beyond that he and he never came to united states to tour he quit the band before that ever to or came to the united states he never came to the united states in any way connected to the song he quit as an artist in that same sixty seven his declarations make clear he's never been to the united states to a city ever for any reason he's been to the us sporadically in his later career but nothing to do with this song or this but miss career as an artist mr belin let me interrupt you and just as you talk about his connection a lack of connection to the u s but under the purpose i don't think there's a even a serious contention that there is general jurisdiction over mr winwood which leaves us with a special or specific to wrist action and that's where one has to determine did he purposefully avail himself of the forum to assume that's i think what the the court is asking about the bridgeport case which is cited on our brief but it's very clear and that's why i mentioned that mr button would so either recording agreement in a publishing agreement with a british company in britain sixty six i'm sorry fifty plus years ago and he hasn't even been to the us and thirteen years so yeah and you know when i think about the  not sure that mr cates disagrees with me on that because he said in response to judge griffin's question that the the connection to tennessee was his allegation of an alleged copying of a tennessee finish my trying to float so fuck you for reminding me the bridge for case we cited even if it did that's not enough first for an individual who enters into a contract in england and the company his sonnes with might exploit distribution is actually the contract is not in the record so and the plight of made absolutely no factual showing of personal jurisdiction it's not in the record i can answer the question but it's not in the record of the contre did not anticipate that he signed with the english company didn't anticipated global exploitation of the song now that continent might have constructed with another company to distribute the song in the us later but that's not enough under the bridge for cares for there to be personal jurisdiction over murder and when would who wrote a song sixty six years ago and never did anything to exploit it in the the song from a tennesseean i guess well there's not even that i would guess and there is no allegation and the only affirmative mention of tennessee isn't mervyn wood's deposition or his declaration where he says i've never been there i haven't stopped to see if this is by the same for copyrights or the difference of well there's got to be some action whether it's a copyright or a car or anything else to purposefully of little oneself of something internal suited here if there is a car wreck in michigan i don't think that there is anything to provide personal jurisdiction over a defendant  unless they knowingly put something in the chain of commerce that richest m c that's not this case mr mervyn would didn't knowingly put anything in the chain of commerce and under the bridge po your honor for independent creation to be a silver bullet it has to be impossible years ago i was an associate for mr bowen and we had a case the fogarty verse in g m case that  before this court where we had evidence that the created the part of the song that we created existed several months before the plaintiff had sent the demo tape that he was it was copyrighted in april of one thousand nine hundred sixty six it existed the unstated presumption that the defendants would are asking you to accept is that the only way they could have heard the song was written was after it was released in england and that is not consistent with either spencer davis's statement that yes we did hear it and it's not consistent with what we know about music history the history of the british invasion is british teenagers listening to imported american or in the records and then presenting a fresher face so to speak on those to the american public they unless they can say the arguments that mr bowen has said that spencer that it is just impossible and it couldn't have happened is it is one theory and it's a defense that might carry the day but an equally reasonable inference that a jury could prove is that spencer davis was right and they did on it is that correct that it was released in america it was given to various people it is my recollection always us well is this in the record i mean we can we can find out the right i just thought maybe i'd get a quick answer here but released in america it could have been heard i think the theory of theory is that you know that could have been important to england and then he heard it you know from the release of america so there is absolutely no evidence in the record of any of i was just speculation and yes there is no there is no evidence the record was released that it was ever on the radio that he the pla if you may sit down but thank you thank you judge oh you have a question but i was saying that in reviewing the record though it seems that there is information in the record that says that the end that a lot of love failed in topping the charts and in order paid to fail in topping the charts there had to be some dissemination and a metric used to determine whether we did or did not and so that respond to mr bowen's statement that this is all speculation about being released in america that the teenagers could have heard it and therefore reported it in england and that this is this is a matter is that not in the record therefore we can't consider it so that your argument that made a lot of sense to me just really isn't on the record so can you respond to that well the complaint alleges that the song was written in one thousand nine hundred five in copyright sixty six and then it is we're forgetting that that one of the three people that have knowledge of this said yes i did hear it  that that that i submit should be enough to have a jury consider this all right anything else i we spent a lot of time you want you want to wrap up and i'm satisfied the more questions i know but i just want to make a statement here judge griffin in this wonderful courtroom i'm not so here the sun is now coming into the sky so while these attorneys are shifting i'm going to have the technician come in and change the direction of the camera someone step up you know for the questions our case will be submitted and i think we will take a ten minute recess before we call them excuse cases submitted