The Game, featuring Fifty Cent, released “How We Do” in 2005. Plaintiffs registered copyright for their song ‘Elevator” in 2002. Both songs are described as contemporary hip hop songs. Both songs’ choruses contain the phrase “this is how we do” four times, interspersed with other lines, set to a similar rhythm.

A copyright plaintiff must establish that defendant had access to plaintiff’s work, and that the works are substantially similar. On summary judgement, a claim of access must be supported with ‘significant affirmative and probative evidence’ showing that the ‘alleged infringer had a reasonable possibility – not simply a bare possibility – of hearing the prior work; access cannot be based on mere speculation or conjecture.’ “Access through third parties connected to both a plaintiff and a defendant may be sufficient to prove a defendant’s access to a plaintiff’s work.”

Here, one of the plaintiff’s knew a producer who knew the defendant writers. He ‘probably’ played and delivered copies of his song to the producer (producer was a customer at the Sam Ash store where plaintiff worked). The producer and the writers gave declarations that the producer didn’t ‘transmit’ the song to them (but apparently the declarations weren’t emphatic enough). Court held that material facts were in dispute as to access.

As to whether probative similarity could be used to establish access, the dueling music experts’ disagreements as to the uniqueness of the chorus were sufficient to defeat summary judgment for both sides.

As to substantial similarity, the ‘this is how we do’ phrase was prominent enough in both songs, such that a jury could conclude that the songs are substantially similar.

As to defendant’s allegations of independent creation, whether that in fact was the case ‘involves factual issues that are not susceptible of summary judgment.’

Parties’ motions for summary judgment denied.

decision lessem the game this is how we