In a US copyright case, you usually do not have to prove they heard it. The element is called access, and it asks for something narrower: a reasonable opportunity to hear the song, before the accused song was written.
The Ninth Circuit's model jury instruction says it in one sentence:
"You may find that the defendant [name] had access to the plaintiff [name]'s work if [the defendant [name]] [whoever created the work owned by the defendant [name]] had a reasonable opportunity to [view] [read] [hear] [copy] the plaintiff [name]'s work before the defendant [name]'s work was created."
— Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit, Instruction 17.18, "Copyright Infringement—Copying—Access Defined" (revised September 2025)
Opportunity, not certainty. Before, not after. Those two distinctions carry almost the whole burden, and most of the cases that die on access die on one of them.
This article is about what courts actually accepted and refused. Every case below is quoted from the decision.
What does "access" mean, exactly?
Two courts state the test, and both are worth having in your head verbatim. (If the definition itself is what you came for rather than the evidence, the shorter answer is here: what is access in copyright law. This page is about what plaintiffs actually put in front of judges, and what happened to it.)
The Ninth Circuit, quoting Art Attacks Ink, LLC v. MGA Entertainment Inc., 581 F.3d 1138, 1143 (9th Cir. 2009):
"To prove access, a plaintiff must show a reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to view the protected work."
— quoted in Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016)
The Sixth Circuit's version, quoting Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir. 1999), as the district court set it out in Bowen v. Paisley:
"Access occurs when the defendant either hears or has 'a reasonable opportunity to hear the plaintiff['s] work and thus ha[s] the opportunity to copy.'"
And the limit, from the same passage:
"[A]ccess may not be inferred through mere speculation or conjecture."
Loomis, again quoting Art Attacks Ink, then sets out the two routes open to you when nobody will admit anything:
"Where there is no direct evidence of access, circumstantial evidence can be used to prove access either by (1) establishing a chain of events linking the plaintiff's work and the defendant's access, or (2) showing that the plaintiff's work has been widely disseminated."
Almost every musician reading this is on route one. Route two — wide dissemination — belongs to people whose songs were hits. Route one is a chain of events, and a chain is only as good as the link you can name.
The case every musician should read before sending anything
Loomis v. Cornish is the most useful decision in this whole area, because the fact everyone assumes is the hard one to establish was never in dispute — and the claim failed anyway.
Will Loomis composed and recorded "Bright Red Chords" with his band, Loomis and the Lust, in Santa Barbara in 2008. The song was the feature track of a 2009 album. The video for it won an MTVU "Best Freshman" video award, and the song was featured in Billboard. The band won an industry-sponsored "Artist on the Verge" award with a $25,000 prize.
In May 2010 an Artists and Repertoire representative at UMG Recordings, Sunny Elle Lee, emailed the band's administrative coordinator asking for a copy of the song. The court's finding on that is one sentence long:
"In May of 2010, Lee emailed Loomis's mother, Kristin Loomis, who acted as administrative coordinator for the band, to request a copy of Bright Red Chords. The band furnished Lee a copy of the song."
Delivery to a solicited A&R representative at a major label, accepted as fact, not in dispute. In June 2011 a five-person team wrote "Domino" for Jessie J. Loomis sued. And he lost on access:
"We disagree. On the record before us, there is no evidence of a nexus between Lee and the Domino songwriters that would be sufficient to raise a triable issue of access."
The rule the court applied, quoting Jorgensen v. Epic/Sony Records, 351 F.3d 46, 53 (2d Cir. 2003):
"Bare corporate receipt …, without any allegation of a nexus between the recipients and the alleged infringers, is insufficient to raise a triable issue of access."
Then the facts that finished it:
"Loomis did not dispute Defendants' statement that '[t]he five Domino Writers do not know, have never met, and have never received anything from Sunny Elle Lee.' He also did not dispute that 'Lee was not part of the work unit that created Domino.'"
The same opinion notes a Sixth Circuit case doing the identical thing — Jones v. Blige, 558 F.3d 485, 491–92 (6th Cir. 2009), described by the Loomis court as "affirming summary judgment for the defendant where plaintiff submitted her work to a senior vice president at Universal because there was no evidence that the vice president had any contact with anyone involved in the creation of the allegedly infringing work."
Delivery to someone is not access by the people who matter. That is the lesson, and it is not a technicality. A record that says "I sent my song to a major label" is a record of the thing Loomis had.
The court's closing paragraph is worth reading slowly if you are currently sitting on a suspicion and no documents:
"Plaintiff's arguments in this case tell a story that, if adequately substantiated, might have survived summary judgment. The problem is that it was not supported by potentially admissible evidence. At bottom, the record consists primarily of Loomis's speculations of access unsupported by personal knowledge."
Loomis also ran the second route, wide dissemination, and it failed on numbers. He documented 46 sales of the recording. On the "market saturation" variant — the argument that two of the Domino writers were in Santa Barbara for ten days while the local scene was full of his song — the court held they "were not participating in the relevant market," because "[t]heir production responsibilities had nothing to do with listening to local radio, reading local press, or scouting local bands."
Can a date make real evidence worthless?
Yes, and Bowen v. Paisley is the demonstration.
Amy Elizabeth Connor Bowen, writing in Nashville as Lizza Connor, wrote a song called "Remind Me" between the autumn of 2007 and March 2008, and registered it effective 3 September 2008. In February 2011 Brad Paisley, Kelley Lovelace and Chris DuBois wrote a song also called "Remind Me," recorded as a duet with Carrie Underwood.
Bowen's documentary record was close to everything a proof-of-creation product could hope to produce: a dated writing period, a professionally produced demo, a lyric sheet, a registration, and a song plugger pitching the work around Nashville for ten months. She also sang the song for Lovelace in person at a songwriting workshop on 3 March 2008.
Among her access evidence was an email chain that had an actual recording of her song attached to it. Her brief called it "perhaps the most compelling point of access." The court, Judge Aleta A. Trauger, M.D. Tennessee, 25 August 2016:
"…she fails to acknowledge that this communication took place in October 2011, well after both the creation and public release of the Paisley Work. The email exchange therefore could not establish access for purposes of copyright infringement."
Real evidence. Uncontested. Containing the work itself. Worth nothing, because of a date.
Two things belong alongside it.
First, Bowen did not lose on access. The March 2008 workshop carried her past it: "For purposes of the Motion for Summary Judgment, the plaintiff has adequately raised a disputed issue of fact as to access." What killed her case was substantial similarity — the only thing the two songs literally shared was the phrase "remind me," and "the court finds that no reasonable juror could conclude, based on the undisputed evidence, that the songs overall, or the 'hook' phrases specifically, are substantially similar."
Second, the ten months of pitching produced nothing usable. The court recorded that Bowen "has no personal knowledge or information from a third party establishing that Creagh, Blackman, Rymer, Alexander, or any publisher pitched the Bowen Work to anyone, played the Bowen Work for any defendant, or played the Bowen Work or gave it to any person who had a connection with any defendant." The intermediary she was relying on "affirmatively testified that she had not heard Bowen's work or pitched it to anyone."
Ten months of a professional pitching your song around a small town, and at the end of it there was nothing anyone could put in front of a judge. That is what an undocumented chain of events looks like from the inside.
Does posting the song online count?
The Ninth Circuit answered this in May 2025, in a published opinion, and the answer is mostly no.
Woodland v. Hill, 136 F.4th 1199 (9th Cir. 2025), is about photographs rather than music — Rodney Woodland sued the recording artist Lil Nas X over Instagram posts — but the access analysis is general Ninth Circuit copyright law, and the court names Spotify and YouTube alongside Instagram. Judge Lee, for the panel:
"The mere fact that Woodland posted his photos on his Instagram page — without more — falls short of plausibly alleging that Hill had 'access' to and saw Woodland's photographs."
The court took the modern argument seriously and then drew the line:
"To sum up, social media and other digital-sharing platforms could make it easier for plaintiffs to show that defendants had access to their materials — but only if they can show that the defendants had a reasonable chance of seeing their work under that platform's algorithm or content-sharing policy. That is a big 'if' — and, as explained below, Woodland has fallen short here."
What was missing was specific:
"we can say that Woodland has not sufficiently pleaded that Hill had access to his Instagram photos, given that he does not plausibly allege that Hill followed, liked, or otherwise interacted with posts or accounts connected to or similar to Woodland."
Woodland's twelve posts had between eight and seventy-five likes each. The panel also quoted Skidmore v. Led Zeppelin, 952 F.3d 1051, 1068 (9th Cir. 2020) (en banc), on where the doctrine is heading: in a "digitally interconnected world" of online platforms "the concept of 'access' is increasingly diluted."
The older authority points the same way. Art Attacks Ink held that publishing designs to a standalone website was not wide dissemination, and the Comment to the Ninth Circuit's instruction 17.18 records the point flatly: "The mere presence of the plaintiff's work on a website is insufficient to establish widespread dissemination." The Comment cites Art Attacks Ink, 581 F.3d at 1145, for it. (The Comment is the committee's commentary on the instruction, not the instruction read to jurors.)
Uploading a song is not the same as delivering it to a person. A distribution platform gives you reach. A named recipient gives you a link in a chain.
What have courts actually credited, and what have they thrown out?
We read every US music copyright decision we could find from 2015 to 2026 — 197 decisions, 108 of them merits rulings across 82 disputes, screened independently by two coders (κ = 0.8297, n = 203, 95% CI 0.7502–0.9010). Here is the pattern on access, with the cases named.
From the in-scope music decisions. Every row below is one of the 108 merits rulings inside that set.
| What the plaintiff offered | What the court did with it |
|---|---|
| Singing the song in person to one of the defendants at a songwriting workshop, on a dated day (Bowen) | Enough to raise a disputed issue of fact on access, even though the defendant did not recall it |
| A copy of the song furnished to a major-label A&R representative who had asked for it (Loomis) | Accepted as fact — and insufficient, with no nexus to the writers of the accused song |
| An email containing the actual recording, dated after the accused song's release (Bowen) | "could not establish access for purposes of copyright infringement" |
| Ten months of a song plugger pitching the work around Nashville (Bowen) | No evidence it reached any defendant; the intermediary testified she had never heard or pitched it |
| 46 documented sales, an MTVU award, a Billboard feature, a retail sampler CD (Loomis) | Not wide dissemination |
| Two of the accused writers recording in the same town during local saturation (Loomis) | They "were not participating in the relevant market" |
| Uploading the song to a music distribution platform (Perfvwaybelayouix v. Graham-Drake) | Not enough: the plaintiff "does not cite facts to support a reasonable possibility that Defendants had the opportunity to hear it" |
| A Pro Tools session file displaying an error message that "178 audio files are missing" (Batiste v. Lewis, E.D. La. 2019 — the "178" figure is the district court's; the Fifth Circuit records the message without a number) | The Fifth Circuit: a "common message" that appears when files move between hard drives, and "[i]t doesn't mean that those files are, in fact, missing" |
Outside the in-scope set, and quoted because the reasoning is the same. We are precise about this because the discipline is the point.
| What the plaintiff offered | What the court did with it | Why it sits outside |
|---|---|---|
| Posting on a social platform, twelve posts, 8–75 likes each (Woodland v. Hill) | "without more — falls short" | We read it and it is one of the 197, but our screen excluded it from the 108 merits rulings because it is a photographs case, not a music case. The access analysis is general Ninth Circuit copyright law |
| A work submitted to a senior vice president at Universal (Jones v. Blige, as described in Loomis) | Summary judgment for the defendant: no evidence the executive had contact with anyone who created the accused work | Decided in 2009, before our 2015 window opens. It reaches us through the Loomis court's own description of it — and through Bowen, which cites it too |
Read down those right-hand columns and one thing separates the first row from the rest: a named human being, at a specific time, in the same room as the work.
And one absence, in the same dataset. Not one of those 197 decisions discussed a blockchain record, a cryptographic timestamp, or a trusted timestamping service. Nor are we aware of a reported US music copyright decision assessing a delivery record produced by a service of this kind. That is not evidence a court would accept such a record, and not evidence a court would reject one. No court in that set was asked. The full analysis is here: what 197 court decisions say about blockchain timestamps and song ownership.
What happens to musicians who represent themselves?
We identified every in-scope decision in which the plaintiff or appellant had no lawyer. There were twelve. All twelve lost.
Perfvwaybelayouix v. Graham-Drake, No. 22-cv-1019 (D.D.C. 1 December 2022), Judge Colleen Kollar-Kotelly, is the clearest of them on access. Quoting Buchanan v. Sony Music Entertainment:
"Access generally means that an infringer had a reasonable opportunity to hear the plaintiff's work and, thus, had the opportunity to copy" it.
And the limits, quoted in the same passage:
"It is well established that the mere fact that [plaintiff's] work was posted on the internet… is insufficient by itself to demonstrate wide dissemination."
"access may not be inferred through mere speculation or conjecture" and "the plaintiff must allege… circumstances that suggest a reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to view the protected work."
The plaintiff had uploaded his song "Reach for the Skies" to a distribution platform, and argued that this gave the defendants their opportunity. The court:
"the Court finds that Plaintiff fails to allege facts showing that Defendants had access to his song 'Reach for the Skies' because he does not cite facts to support a reasonable possibility that Defendants had the opportunity to hear it. This failing alone would be sufficient to grant Defendants' Motion to Dismiss."
Not similarity. Not registration. Not the merits. The case ended at the question of who could have heard it, before anyone listened to either song.
Two caveats belong with this. It is a count of what we read, hand-identified by one reader, not a win rate — claims that settle or are abandoned produce no written decision and are invisible in a set like ours. And a written merits decision exists mostly because somebody filed a dispositive motion, which makes this an unusual slice of what happens to copyright claims generally.
What does a useful delivery record actually contain?
This is Loomis turned into instructions. Three things, and the second and third matter more than the first.
1. Who received it — by name and role, not a company inbox.
demos@ is bare corporate receipt with a nicer interface. The record that helps you names a person, says what they do, says who they work with, and says how you got the introduction. Write that down at the time. Nothing captures it automatically, because it is not in the file transfer — it is in your head, and it will not still be there in four years.
2. What came back — including a rejection.
A reply is the recipient confirming receipt in their own words. A rejection is better than silence and often better than a polite yes, because it is dated, specific and written by them. Keep it. Keep the thread it sits in.
3. Whether they were anywhere near the writers.
This is the question Loomis lost on and the one almost nobody records. When you send a song to an A&R representative, a producer, a manager or a publisher, note what they are working on and who they are working with. If you learn later that the person you sent it to moved to the team that made the accused record, that fact is worth more than the delivery itself — and you will only know it if you wrote down where they were when they got it.
Then the mechanics, which are simpler:
- Send it before the other song exists, or the date does what it did in Bowen. Instruction 17.18 puts the sequencing into the instruction itself: a reasonable opportunity "before the defendant [name]'s work was created."
- Send from an account you will still control in five years.
- Send each revision as a separate send, so "which version did they have" has an answer.
- Keep the original file, not only the record of it.
- Register the work with the U.S. Copyright Office. Circular 1: "Before an infringement suit may be filed in court, registration (or refusal) is necessary for U.S. works." And: "When registration is made prior to infringement or within three months after publication of a work, a copyright owner is eligible for statutory damages, attorneys' fees, and costs." A delivery record does not touch either sentence.
The one-page checklist
- Registered with the U.S. Copyright Office, on the form that matches the claim
- Song dated and archived before it left your machine
- Sent to a named individual, not a role address
- Their name, job title, company and how you met them, written down that week
- What they were working on at the time, and who with
- The reply kept — including a no
- Each revision sent separately, so versions are distinguishable
- Sent from an account you will still control years from now
- Everything held somewhere you can produce it in ten minutes
Nine items. Eight of them cost nothing and need no product. The one that costs money is the registration, and it is also the only one that decides whether you can file a suit at all. If you only ever do one of the other eight, do the third.
If the worst has already happened, the order of operations changes and it is a different page: someone stole my song — what can I actually do about it. And for how access sits alongside the other two things you have to establish, see how to prove someone stole your song: creation proof, access proof and similarity.
Where SendSecure fits
SendSecure records who you sent a music file to, when it was delivered, and when their copy was opened. One record per recipient, with the file version, written on the day of the send.
That is a good fit for exactly one part of the problem above, and it is worth being precise about which part.
It answers the sequencing question well. Bowen's email failed because of its date, and instruction 17.18 asks for an opportunity that arose "before the defendant [name]'s work was created." A record written at the moment of sending is the one thing that cannot be assembled after a dispute begins — and unlike a sent folder you have to go excavating in years later, it stays retrievable and per-recipient.
It answers the "who" question in part. It names the individual and shows the file reaching them. That is the first link in a chain of events. It is not the whole chain.
It does not answer the Loomis question at all, and nothing can. Whether that person was connected to the writers of the accused song is a fact about the world, not a fact about a file transfer. That link is one you build by writing things down. The record captures the send; you capture the context.
And an open event is a file being fetched. It is not a person hearing a song. We write opened, never heard or listened, because only one of those is in the log. A delivery record does not establish that a recipient listened, understood, remembered or copied anything, and it does not establish that anyone else at their organisation ever saw the file. It does not even establish that the named recipient was the person who opened it — the record shows their copy being fetched, and no software can see who was at the keyboard.
Access itself is a finding a court makes on the whole record. A delivery record is one piece of evidence a court may weigh toward it. It is not the finding, we do not describe it as court-ready, and admissibility is a ruling a judge makes about a specific exhibit in a specific case after both sides have argued about it. Nobody sells that in advance, including us.
Honest comparison: an email you still have is already a delivery record, and a good one — it carries the recipient's own words, which is something a log never will. What SendSecure adds is the per-recipient open event and a record you do not have to reconstruct from a mailbox. If you only ever keep one of the two, keep the email. Full details of what the record contains and what it does not establish are on the SendSecure page.
The short version
Access does not mean they heard it. It means they had a reasonable opportunity to, before they wrote theirs.
Loomis delivered his song to a major-label A&R representative who had asked for it, the court accepted that this happened, and he lost because nothing connected her to the five people who wrote the accused song. Bowen had an email with her own recording attached, and it was worthless because it was dated October 2011. Woodland posted his work publicly and the Ninth Circuit said posting it, "without more," falls short. A self-represented plaintiff uploaded his song to a distribution platform and the court held that failing "alone would be sufficient" to end the case.
What those four have in common is not bad luck. It is that a work leaving your hands is not the same event as a particular person having a chance to hear it, and only the second one is what a court is asking about.
So keep the record. Then keep the part no record can capture: who they were, what they said back, and who they were standing next to.
Last updated: 13 August 2026.
Legal disclaimer
This article is informational and is not legal advice. It quotes court decisions and official guidance; it does not tell you how any of them apply to your situation, and no reader should act on it without consulting a qualified attorney in the relevant jurisdiction. Copyright law differs by country and changes over time. SongSecure is not a law firm. No record, timestamp or certificate, from SongSecure or anyone else, guarantees any legal outcome.
Sources
Primary authority. Loomis v. Cornish, 836 F.3d 991 (9th Cir. 2016) · Woodland v. Hill, 136 F.4th 1199 (9th Cir. 2025) · Art Attacks Ink, LLC v. MGA Entertainment Inc., 581 F.3d 1138 (9th Cir. 2009) · Jorgensen v. Epic/Sony Records, 351 F.3d 46 (2d Cir. 2003) · Jones v. Blige, 558 F.3d 485 (6th Cir. 2009) · Ellis v. Diffie, 177 F.3d 503 (6th Cir. 1999) · Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc) · Bowen v. Paisley, No. 3:13-cv-0414 (M.D. Tenn. 25 August 2016) (Trauger, J.) · Perfvwaybelayouix v. Graham-Drake, No. 22-cv-1019 (D.D.C. 1 December 2022) · Batiste v. Lewis, 976 F.3d 493 (5th Cir. 2020), and the underlying summary-judgment order, Batiste v. Lewis, No. 2:17-cv-04435 (E.D. La. 23 April 2019), from which the "178 audio files" figure is taken · 17 U.S.C. §§ 411(a), 412.
Official guidance. Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit, Instruction 17.18, "Copyright Infringement—Copying—Access Defined" (revised September 2025), and the Committee's Comment to it · U.S. Copyright Office, Copyright Basics (Circular 1).
Data. SongSecure frozen decision universe, 2015–2026: 203 records covering 197 distinct decisions, 108 in-scope merits decisions across 82 disputes, two independent coders, κ = 0.8297 (95% CI 0.7502–0.9010), measuring the inclusion screen and not any outcome variable. The self-represented-plaintiff count was hand-identified by a single reader and is a count of what we read, not a win rate.