v.

LILLENAS PUBLISHING COMPANY, NAZARENE PUBLISHING HOUSE, BEACON HILL MUSIC, CRYSTAL SEA RECORDINGS, FAITH MUSIC, PILOT POINT MUSIC, PSALMSINGER MUSIC, JOHN MATHIAS, HARDY WEATHERS, KEN BIBLE
Defendants,

v.

C.A. MUSIC
Third-Party Defendant

v.

THE SOUTHERN BAPTIST CONVENTION LIFEWAY CHRISTIAN RESOURCES dba, LIFEWAY CHRISTIAN STORES, THE SUNDAY SCHOOL BOARD OF THE SOUTHERN BAPTIST CONVENTION, CONVENTION PRESS, BROADMAN & HOLMANK STORES, THE UNITED METHODIST PUBLISHING HOUSE, COKESBURY PUBLISHING, ABINGDON PRESS, COKESBURY STORES, CCLI (CHRISTIAN COPYRIGHT LICENSE INTERNATIONAL), WORD MUSIC, NELSON/WORD MINISTRY SERVICES, MARANATHA MUSIC, INTEGRITY MUSIC, INTEGRITY CHURCH SERVICES, MUSIC SERVICES, C.A. MUSIC aka CHRISTIAN ARTIST MUSIC, CAM FLORIA, JEFFREY BUCHAN, BOB McGEE
Defendants

        The plaintiff has alleged the "wrong committed" by the defendants, and has supported these allegations with facts and evidence. The actual controversy has been demonstrated. The Verified Complaint has been properly placed in this Court. Today, however, the defendants would have this Court to embrace and believe the notion that the plaintiff somehow relinquishes ownership and rights to his property because it was 24 years ago that harm began.
        The defendants would also have this Court to believe that the infringement was independently written and the infringer’s had absolutely no possible or reasonable access to plaintiff’s composition. Defendants, without convincing evidence, go as far as to allege a complete difference and absence of substitutability as between the two works.
        The defendants would also have this Court believe that they obtained and published this infringing work and never needed or was required to seek authorization of a Church, thus verifying their fraudulent determination.
        In short, defendants now seek to avoid one unavoidable conclusion: Both compositions, "Emmanuel" and the chorus section of "Before His Eyes," define themselves, their melody, their subject matter, their musical structure, their sameness, and both are of the same origin when compared. Understandably, defendants want the Court to ignore this fact, as well as the volumes of their own records documenting the intensity and determination to get what was not theirs to get.
        Now on the eve of the Court’s decision, defendants offer the bold conclusion that plaintiff has no standing to challenge C.A. Music’s copyright (see footnote 1) or to challenge any other defendant’s copyrights to publications that utilize the infringement of plaintiff’s work.
        Defendants ask the Court to overlook their own real, existing, and proven infringement and determination in favor of a highly speculative event -- even if all of plaintiff’s unsupported allegations are true, he would still not have standing to invalidate C.A. Music's copyright in the song "Emmanuel."(see footnote 2)
        Defendants urge this despite proof and sound testimony that they were never given any rights to the song "Emmanuel" from The King’s Temple Church which is now New Beginnings Church(see footnote 3) and not one defendant sought authorization from the Church.
        Even if the right had occured at some point, defendants fail and refuse to acknowledge that certain defendants were employees of the Church(see footnote 4) and produced a "Work Made For Hire" chorus book for the Church’s use during worship services. The fact that it included the alleged music of plaintiff in one of the eleven choruses does not in itself justify, beginning in 1983 to the present, the resulting acquisitions and uses by defendants at issue in these cases.
        For these and the other reasons that follow, defendants’ motion to dismiss and for summary judgment should be denied.

        Summary judgment is not appropriate when there are genuine issues of material fact. The party(s) moving for summary judgment bears the burden of demonstrating there are no genuine issues of material fact. Roberts v. Browning, 610 F.2d. 528, 5131 (8th Cir. 1979).
        When the Court has opportunity of comparing two works in question, it has all data necessary to decide question of infringement, which it may do on motion where works are set forth in complaint. Park v. Warner Bros., (1934, DC NY) 8 F.Supp. 37; Rose v. Connelly, (1941, DC NY) 38 F.Supp. 54, 49 USPQ 140, 49 USPQ 497.
        Summary judgment should be cautiously invoked so that no person will be improperly deprived of a trial. Ripplemeyer v. Nat’l Grape Co-op Ass’n., 807 F.Supp. 1439, 1447 (W.D. Ark. 1992)
.         In fact the Court must view the evidence inferences in the nonmovant’s favor. Fisher v. NWA, Inc., 883 F.2d. 594, 598 (8th Cir. 1989).

        Submitted to the Court is a letter dated October 16, 2000 from Mr. Mark K. Williams, Organist-Choir Master at Christ Church in Savannah--the Mother Church of Georgia. His credentials are impeccable and he was not paid for his analysis. He has worked in four different Christian denominations in five different states: Washington, Texas, Virginia, Florida and Georgia. See attached Exhibit "A."
        Mr. Williams states: "I laughed with glee to hear the original to a song that I have sung so many times and heard congregation’s alter and simplify due to the soloistic vocal range of your original." Mr. Williams analysis continues to discuss the octave interval and thorough review of the two pieces. "It is quite evident to me upon first hearing your Chorus "Before His Eyes" that the well-known song "Emmanuel" came directly from your original melody and that "Emmanuel" is merely a ranged-down version of your melody making the octave pitch intervals into intervals of a fifth because they are easier for a congregation to sing. As I analyze the two melodies, I find no other significant differences between them--they are substantially the same melody.....Without a doubt, I find a substantial similarity between the Chorus "Emmanuel" and the Chorus to "Before His Eyes." Mr. Williams goes on to discuss the similar comparision of "My Country ‘tis of Thee" being lifted from our British ancestry from the original song "God Save the King" and how it relates to the issue in this case of substantial similarity.
        A glance at plaintiff’s music and the defendant’s arrangements would not show the unmistaken and strikingly defining octave interval element. There are in fact two obvious defining elements that connect the two the two pieces:

        1.  The first element (the octave leaps) were substituted with "easy to sing" melodic jumps.
        2.  The second element is the text syncopations within "Before His Eyes" were lifted directly into "Emmanuel" for no reason inherent in the text rhythms found within "Emmanuel."

A.        The first defining element

        Defendants declare: "Mr. Calhoun also pointed out that "Before His Eyes" contains a[n] unique element that differentiates the song from others -- an octave leap at the beginning of the chorus "Before His Eyes." (Calhoun at 103-04). This octave does not appear in "Emmanuel."(see footnote 5)
        "It differs only slightly from tune number two ("Before His Eyes"), which contains melodic leaps of an octave rather than a perfect fourth (found in tune number one ('Emmanuel")),...Indeed, untrained singers often mistakenly substitute one of these leaps for the other."(see footnote 6)

        The octave leap did indeed exist.

        The first lead sheet (see footnote 7) of "Emmanuel," as it appeared in 1976 in Choruses From The King’s Temple, 1976 Book 1, without a doubt show this striking characteristic.
        It was changed in the second lead sheet (see footnote 8) in March 1983, words and music by Jeff Buchan, copyrighted by C.A. Music in 1977.
        It appeared again in the third lead sheet (see footnote 9) in September 1983, now words and music by Bob McGee, copyrighted by C.A. Music in 1976. Added to this lead sheet is the section called: The Following Was Part of The Original Song.

        This revealed the striking similar characteristic of the octave interval.

B.        The second defining element

        "And like the melody and the syncopated rhythms within "My Country ‘tis of Thee," having been lifted right from [of] the original song "God Save The King," I believe that the same thing has occurred between "Emmanuel" and the original song "Before His Eyes." The text syncopations within the original "Before His Eyes" being lifted directly into "Emmanuel" but for no reason inherent in the text rhythms found within the Chorus "Emmanuel." See Mr. Williams letter, Exhibit "A," Page 2, last paragraph.

        This finding of inherent text rhythms combined with the octave interval in the original lead sheets of the defendants, evidence copying of the music to the chorus of "Before His Eyes."

C.        Obvious Conclusion

        The chorus of the song "Before His Eyes" is more than "substantially similar." Several affidavits by witnesses corroborate they are the same, the same chordal structure, and the same origin. These testimonies come from a cross section of musicians who were not paid for their testimony: Baptist, Episcopal, Methodist, Presbyterian and Georgia Music Educator.(see footnote 10)

        Plaintiff and defendant Lillenas Publishing Company,(see footnote 11) both knew a third party who had a copy of plaintiff’s song and was thoroughly acquainted with the contents of plaintiff’s song.
        Defendants have stated that plaintiff does not identify any students from the State of Washington that he taught from 1972 to 1976. They are:

        1.  Cheryl Daugherty, 743 South East Sumner St., Camas, Washington 98607
        2.  Vickie Gilliam, 4235 North East 113th, Seattle, Washington 98125
        3.  Betty Halverson, 4022 East Hartson, Spokane, Washington 99202
        4.  Bonnie Knapper, 4620 North 30, Tacoma, Washington 98407
        5.  Leah G. Stetson, 108 Costley Lane, Box 385, Asotin, Washington 99402
        6.  Ron Gregg, 1331 N.E. 4th Ave., Camas, Washington 98607
        7.  Stan Daugherty, 743 South East Sumner St., Camas, Washington 98607

        In addition, "Before His Eyes" was 1) recorded on album in 1970; 2) registered with Broadcast Music Association (BMI) in 1970 and later with (SESAC); 3) promoted to other publishers; 4) distributed and promoted in concerts at schools and auditoriums; 5) distributed and promoted to Churches; 6) distributed and played on television and radio stations; 7) promoted and performed on the Christian Broadcast Network (CBN) going to California and the west coast in 1972 and 1975; 8) promoted and distributed at the Stamps-Blackwood School of Gospel Music held at Murray State University, Murray, Kentucky from 1972 to 1976; and, 9) promoted and performed over the Grand Ole Opry Gospel Radio broadcast(see footnote 12) heard on every continent in the 1970’s.

        Defendants state: "Bob McGee, the author of the song "Emmanuel," plainly had no access to plaintiff’s song "Before His Eyes."(see footnote 13) The Grand Ole Opry Gospel Radio Broadcast is only one of several accessible times this defendant and others could have had access to plaintiff’s song.

        WSM Radio, who carried the Grand Ole Opry Gospel Program in the 1970’s, has stated they had received letters from virtually every continent in the world as to receiving the radio broadcast.

        "Skywave radio transmissions (the term which characterizes the AM signals that bounce off the ionosphere at night, often traveling great distances) are dependent on a variety of factors, including distance, the weather, the state of the earth’s electromagnetic field, etc. The greater the distance from the radio station’s antenna, the more inconsistently they are received. While WSM’s signal has been heard on every continent, the primary area in which its skywave signal has been reliably received has historically been within 1,000 to 1,500 miles of Nashville. Reception of WSM in Washington State,therefore, while possible from time to time, is not likely to have occurred in the 1970’s on anything resembling a consistent basis."

        See attached Exhibit "B," Ltr dated September 28, 2000, WSM Radio.

        There was opportunity for reasonable access to "Before His Eyes."

        Plaintiff did not hesitate in filing these cases. Witnesses corroborate that after plaintiff discovered the infringement in 1997, he disclosed his findings.(see footnote 14)
        Plaintiff never played or listened to "Emmanuel" prior to discovering the infringement in 1997. In addition to the witnesses who testify to plaintiff’s knowledge of the infringement, a Declaration by Mr. Lloyd Dan Archer ("Archer Decl.") is attached. Mr. Archer was the music director during the time plaintiff was part-time organist at Christ United Methodist Church. The Archer Decl.6 states that Mr. Archer can never recall plaintiff ever playing that song in any service. This is not the only testimony that corroborates this fact. The Archer Decl.5 testifies to the fact that it was around the summer of 1997 when plaintiff discussed with him that he had discovered the infringement in the United Methodist Hymnal. See Archer Decl. attached Exhibit "C."

A.        According to defendants, the plaintiff’s copyright infringement claims are without merit and should be dismissed, which is not the case here. To suggest that these claims are legally deficient, as the plaintiff has shown otherwise, is to strain and speculate wildly in the face of evidence to the contrary. Defendant’s mischaracterize the copyright infringement laws that protect and nourish the creative works of an individual. It is a matter of present fact and conclusion that the chorus of the song "Before His Eyes" is the music to "Emmanuel."
B.        According to defendants, plaintiff’s unfair competition claims are without merit. This also is not the case here. Today, defendants seek to flood the market to include all forms of infringing products that utilize plaintiff’s music. Tapes, CD’s, hymnals, books of all types (instrumental, choruses, i.e.), midi recordings, hymnal midi libraries are targeted and sold in Georgia and throughout the world in stores, through mail order and over the internet that utilize plaintiff’s music. C.A. Music alone has disclosed to plaintiff of receiving more than $300,000.00 between 1995 through 1998 in connection with this music involving over 170 publications.
C.        According to defendants, plaintiff’s deceptive trade practices are without merit. Again, not the case here. The evidence submitted by the defendants cannot sustain judgment to their favor on this matter. Plaintiff has shown by facts and evidence that the defendants deceptive trade practices have harmed the plaintiff and support equitable protection provided by Lanham Trade-Mark Act.
D.        According to defendants, plaintiff’s tolling the statute of limitations is frivolous and should be dismissed. This is not the case. Simply because the infringement began 24 years ago does not barr plaintiff’s claims. The act of infringement is a continuing infringement and will be for many, many years to come. Defendants would have this Court believe that it is unreasonable to think a church musician would not know of the existence of "Emmanuel." The evidence shows that this song was not popular or well-known in every Church including where plaintiff was a part-time organist. (See footnote 15) See Archer Decl. 3, 6, 7.
E.        The defendants argument that the unauthorized license claim is a response to defense several defendants may raise does not evidence their not contacting The King’s Temple Church for permission but rather accepted what was obvious misappropriation and handling of any rights to "Emmanuel." Unauthorization to any rights in "Emmanuel" started the chain of events that followed.
        These chain of events clearly show the determination of all defendants and somehow in their minds justified their actions. The facts are:
        1.   The King's Temple Church copyrighted in 1976 a chorus book that included "Emmanuel," the infringed work of author Calhoun.
        2.  Seven years later, Jeff Buchan, in March 1983, signed a songwriters contract with Cam Floria and C.A. Music as composer of "Emmanuel."
        3.  C.A. Music has claimed publisher copyrights to "Emmanuel" on documents reflecting 1976, 1977 and 1980.
        4.  Bob McGee, in September 1983, signed a second songwriters contract with C.A. Music as composer of "Emmanuel."
        Now,
        5.  The defendants would have this Court believe, there is no dispute that Bob McGee wrote the song "Emmanuel" and that copyright ownership vested in Mr. McGee in 1976.(see footnote 16) But the evidence shows that Bob McGee created a chorus in August 1975 and the words were "Emmanuel, Emmanuel, His name is called "Emmanuel." (see footnote 17) This event amounts to merely repeating "public domain" words found in Matthew 1:23.
        And then,
        6.  C.A. Music obtained an unauthorized transfer of assignment from The King’s Temple signed by Jeff Buchan in September 1983. If number 5 in the above statement is correct, then a transfer of assignment was not needed.
        And,
        7.  Defendants in these cases never: 1) researched the Library of Congress Office of Copyright concerning "Emmanuel"; 2) requested or reviewed any documents relating to the work; 3) reviewed the transfer of assignment; and, 4) contacted the Church to verify any authorization. There was absolutely no verification done by any defendant concerning this work and the evidence shows they never had permission to use the music.
    The facts show that two Church employees, at two separate times, claimed ownership (resulting in publications showing them at different times as composer) of "Emmanuel." Then one of those Church employees issued, without Church authorization, the rights of "Emmanuel" to C. A. Music. If indeed, the ownership was vested in Bob McGee, there was no need to make a transfer of assignment. If appropriately researched by any of these defendants, any one of these facts should have raised questions about the validity of transactions consummated.
        These unique transactions show they had an unauthorized license, are not legally binding and are issues in the plaintiff’s cases.
F.        According to defendants, plaintiff’s work made for hire claim is frivolous and should be dismissed. This also is not the case here. If this cause of action was not supported then Jeff Buchan and Bob McGee would have registered copyright in their names and not in the name of the Church. In fact there is no record of any of these defendants, including C.A. Music, making any registration in their names in the Office of Copyright to "Emmanuel." See attached Exhibit "D." It was not out-of-the-question for the defendants to have found this information. However, time and again their names appear as owner of the infringed material -- at times, it’s Bob McGee and at others it will be Jeffrey Buchan.
G.        According to defendants, plaintiff’s fraud and deceit claims are without merit. This also is not the case. There is no justification to the means and ends of the determination of these defendants to get what was not theirs to get. Defendants simply needed to show any permission from The King’s Temple Church. They cannot. Defendants simply needed to show any research on their behalf. They cannot. Plaintiff believes they by-passed getting the Church approval intentionally in 1983 to the present. The result of this action, even though they went as far as to obtaining affidavits of Church members in 1983 to the August 1975 event of hearing "Emmanuel” for the first time, has caused injury to public interests and violates public and private confidence.
H.        Defendants would have the Court believe that no damages have been caused and want to simply dismiss the cases. Plaintiff understands why the defendants want these cases dismissed. They raise the matter of relief and say that plaintiff has not requested relief. Any relief on plaintiff’s behalf would task the Court with an insurmountable task. Unless the Court finds otherwise, injunction could not possibly be carried out based on the volume of infringing products and would not be in the best interest of thousands and most likely millions of people who use the infringing publications. Although, an alternative to injunction is available within the power of the Court.

        Just last week in a Savannah, Georgia Church, a book of psalms, choruses and hymns was compiled. The Church paid CCLI a fee to include "Emmanuel" in the chorus book. Jeff Buchan is shown as the composer and C.A. Music is claiming copyright in 1980. See attached Exhibit "E."
        Defendants state clearly: "Plaintiff mistakenly assumes that Jeff Buchan claimed some ownership in "Emmanuel" separate and apart from the compilation of The King’s Temple songbook compilation. He did not."(see footnote 18)
        "Since 1976, no one has previously objected to Bob McGee’s ownership of the song -- not the King’s Temple Church, nor Jeffrey Buchan."
        Whatever transactions the defendants have conducted, is to this day, in October, 2000, proof of business being conducted in Georgia and evidence of continuing infringement that will continue many, many years in the future.
        To impound, confiscate, destroy or to cause injunction on these publications would not be in the best interest of the Church and populous around the world that use these publications. Plaintiff only seeks relief as the Court deems just.
        WHEREFORE now before the Court is Brief of Plaintiff in Reponse to Renewed Motion to Dismiss and for Summary Judgment and request the Court deny defendants motion, in its entirety, award plaintiff costs and representation fees, and grant plaintiff such other and further relief that the Court deems just and proper.

        This 19th day of October, 2000.

RONALD G. CALHOUN, pro se
P.O. Box 2674
Tybee Island, Georgia 31328
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