granting of summary judgment in a copyright infringement case summary judgment granted in favor of the defendant mr lewis wrote a song entitled bright red cords copyright infringement the district court granted summary judgment and we're here challenging that decision the elements of the copyright infringement claim are proof that the plaintiff own the copyright which i think is  as in reality is under spewed in this case and then proof of infringement by the defendant that is that the plaintiffs work with copies because there is generally not direct proof available of infringement of copying copying tends to be shown by circumstantial evidence so let me ask this question the expert did upon that these were similar but he didn't say anything i can't answer the question and i apologize for that i'm not going to be for apologies i just want to clarify i don't i don't know the answer to the question and my assumption would be that if the expert that council in the district court would have been would have wanted to present evidence of striking similarity of the expert had that opinion that's your surprise from it because i guess one take on this is that you know you can argue that the issue of striking similarity would have been something that would have been if all you've got is proof that somebody at the corporation received a copy of the plaintiff work with the reason that that doesn't solve the doesn't satisfy the proof of access requirement is that if  could then the playing of could create the access without the defendant knowing anything about it but you flip that switch and turn into something completely different when a representative of the defendant corporation solicited the material it's not the new artist the they seek out music and they they work to promote the the success of the company the company's artists and music so they're there for function is look for new music and work with artists so that the new music has some relevance and some value to the corporation that that's what she does there isn't evidence in this case that ms levy had direct communication direct contact with any of the songwriters and there's evidence to the contrary the songwriters all denied in their in their statements that they knew her had contact with her but that misses the point the point is if there is a person who's got dealings with the infringer and dealings with the access to the material then then that's the path to access and what he brings dealings with the infringer well she there's no evidence she had any but she's a and then you don't have what you just told us you needed but i think i do particularly in the context of summary judgment to the one i have is ms lee is in people of the nature of person is that that might be enough so is there any evidence that any lee's regular routine or routine of when her position would be to work with people like the  testimony and that she wasn't on the team that created the song which based on the context of the evidence that means she wasn't one of the songwriters and he also said there wouldn't have been any reason for her to be in communication with the writers of the song or with ms cornish but there would be ample reason for her to pay for her to do what she did for her department one of the functions of that department is find new music not for the sake of finding new music find new music for universal and its and its talent so somebody in an r ms lee finds new music she flat out solicits this song with a very complimentary brief him a message saying i heard it i like it can you send it to me and tell me about your group and then not long afterwards a universal artist who according to evidence it isn't the case and according to the musically and the air in our department a universal my next access point which is where the hearsay starts to get into the picture would be mr hooper that's all yes could you get somebody t you would think so but but it isn't but it's but it's not in the record and that's a problem to the work around in this appeal however i think that it can do work around there's an awful lot of material in the record and it's not all hearsay so i've tried to call  from the record that that is not hearsay and that which could might be might might be marginally not hearsay and what i have from mr hooper is these are facts mr lewis is perfectly capable of test mr hooper was was a member of his band and performed bright red cords which was the band's most successful song on many occasions in two thousand and nine and two thousand and ten and two thousand and ten mr hooper told and the tour documentary i think of the title was part of me were produced and release the album first in two thousand i believe released in two thousand and eleven and two thousand and ten and then the documentary was of her year long two thousand and eleven tour and it was released in two thousand and twelve and from liner notes of mr moon was produced in evidence which have been considered admissible evidence of doctor dr luke and max martin and mr hooper were working on the album at that same studio during that same time in addition to that how it's used and i'm sorry how does he know that you know that because he's lbum is really the album is there's a boating connection to the album and that means there's a building connection to the dr luca max martin as well as hooper only that's correct your honor that the only evidence that there are in the studio at the same time is voting statement through through moments that the timing of these things happening the album is being made at a particular point time mr hooper left mr mrs bennett and joined miss perry's band soon and immediately afterward she left to join her band that happens at the same time the question is just is there a reasonable possibility that before domino was released a year later that minute mr hooper showed that music to these people who are all gathered for the same purpose which is pop music in a studio where the recording happens and where hooper is and it's and it's not as neat as as you'd like it to be but but there is a lot of evidence there and i'm hoping to reserve my last six seconds for a bottle so this make this a lot different than the traditional pool but you see cases it doesn't your honor particularly given the size of the company that the universal music group has approximately twenty six hundred employees in north america alone  gather up all it wants i think there's a lot of stuff in the record so we're stuck here universal is certainly larger than a lot of companies and most companies in the music business but what but at some point people talk to each months of the sky every the try to pay trace a path by which the song could have traveled from ms lee to the domino writers given that her job had nothing to do with them and given that it was understated that they didn't know her never met prove that there was some reasonable possibility that she did when you're talking about a corporation of this size with this many artists he couldn't trace any path from what she did what the plan is effectively arguing here is that every artist sang to universal sh be charged with access to the entire solicited record collection of every a in our representative and we respectfully submit that that is too low a burden that is not a reasonable possibility of access if there's no past but by wh evidence that mr hooper has ever been in the same room with ever spoke to ever matt ever had any dealings with any of the five writers of domino so so in terms of a timeline here i there's no admissible evidence other than that i reg chords and domino these these claimed similarities and this was again established at the musicologist deposition before the site right now given that the plaintiff's experts fail to explain what it is that right played this pov of the lowry that when there is a combination of commonplace elements and these elements are all admitted to be commonplace that it's incumbent upon the expert to explain why this combination rises to the level of the original expression and the and with respect to if i may turn back to ms lee and that in that theory the the six circuit looked at a very very similar set of facts in the jones v blige case and in that case the sixth circuit found that there was no reasonable possibility of access here again there isn't there is an allegation there is actually a sworn testimony of the song had been solicited by a in our representative but here similarly no path could be traced at the end of discovery between that representative and the artists who made the song agreements to place the song in various retail outlets however no contracts for any such licensing agreements were ever produced you don't question whether or not the video was played  believes there's no admissible evidence of that your honor the young wives and his testimony admissible evidence i mean you don't need a contract to prove that something happened if the person who experienced the thing happening that's  foundation that anyone in the record went to these stores and watch the song being played certainly not at all the branches throughout the country that they're claiming so they haven't produced any contracts for these licensing agreements instead they just have assertions which are obviously based upon the evidence well they felt if these they could have produced the contracts memorializing these things or say did not do their honor that's correct there's no contract to produce for a no there was a contract and could it be they just asked for what we want to play your music give us permission we'll play it  contracts but the contracts with that's correct so there's no admissible evidence of any licensing deals for the song well again that's not quite true she says there's a licensing deal that's evidence under the best i would respectfully submit that that district court properly exercised its discretion in recognizing that there was no you know on the evidentiary issue that there was no admissible evidence of any of these alleged licensing deals given the fact that there was just testimony there is no evidence the record as to how these reports were made who made them how can what methodology was used to make them and then and that's really telling given that when the gentleman that she hired mr particularly given that even if there were these commercial placements under the arctic tax case it says that just not enough to get your book out there has to be out there in a way that people would notice people would pay attention to there's no evidence no record that even if for the sake of argument this all was place in some retail outlets what time of day it was played how loud it was played and even that people would actually pay attention to it because in the art tax case similarly they allegedly infringed works of visual works replace that fair is attended by millions of people but the ninth circuit held that there was no evidence that people would have paid attention to it but it's something that is if you could buy that with all the cool bits and pieces you might say right we're actively involved in songwriting for the teenage dream album those two people are close to that could very well and it's at least a reasonable inference in for inference that when these people get together work together to create pop music but a guy who just left correct your honor and it could have been presented more neatly and should have been presented more neatly probably should've been presented more neatly in this court but the but the but the evidence is there and that that's the path for mr hooper