Before WOOD and CUDAHY, Circuit Judges, and NICHOLS, Senior Circuit Judge.[n*]
CUDAHY, Circuit Judge.
[1] The plaintiff, Ronald H. Selle, brought a suit against three brothers, Maurice, Robin and Barry Gibb, known collectively as the popular signing group, the Bee Gees, alleging that the Bee Gees, in their hit tune, "How Deep Is Your Love," had infringed the copyright of his song, "Let It End." The jury returned a verdict in plaintiff's favor on the issue of liability in a bifurcated trial. The district court, Judge George N. Leighton, granted the defendants' motion for judgment notwithstanding the verdict and, in the alternative, for a new trial. Selle v. Gibb, 567 F.Supp. 1173 (N.D.Ill. 1983). We affirm the grant of the motion for judgment notwithstanding the verdict.
I[2] Selle composed his song, "Let It End," in one day in the fall of 1975 and obtained a copyright for it on November 17, 1975. He played his song with his small band two or three times in the Chicago area and sent a tape and lead sheet of the music to eleven music recording and publishing companies. Eight of the companies returned the materials to Selle; three did not respond. This was the extent of the public dissemination of Selle's song.[n1] Selle first became aware of the Bee Gees' song, "How Deep Is Your Love," in May 1978 and thought that he recognized the music as his own, although the lyrics were different. He also saw the movie, "Saturday Night Fever," the sound track of which features the song "How Deep Is Your Love," and again recognized the music. He subsequently sued the three Gibb brothers; Paramount Pictures Corporation, which made and distributed the movie; and Phonodisc, Inc., now known as Polygram Distribution, Inc., which made and distributed the cassette tape of "How Deep Is Your Love."
[3] The Bee Gees are internationally known performers and creators of popular music. They have composed more than 160 songs; their sheet music, records and tapes have been distributed worldwide, some of the albums selling more than 30 million copies. The Bee Gees, however, do not themselves read or write music. In composing a song, their practice was to tape a tune, which members of their staff would later transcribe and reduce to a form suitable for copyrighting, sale and performance by both the Bee Gees and others.
[4] In addition to their own testimony at trial, the Bee Gees presented testimony by their manager, Dick Ashby, and two musicians, Albhy Galuten and Blue Weaver, who were on the Bee Gees' staff at the time "How Deep Is Your Love" was composed. These witnesses described in detail how, in January 1977, the Bee Gees and several members of their staff went to a recording studio in the Chateau d'Herouville about 25 miles northwest of Paris. There the group composed at least six new songs and mixed a live album. Barry Gibb's testimony included a detailed explanation of a work tape which was introduced into evidence and played in court. This tape preserves the actual process of creation during which the brothers, and particularly Barry, created the tune of the accused song while Weaver, a keyboard player, played the tune which was hummed or sung by the brothers. Although the tape does not seem to preserve the very beginning of the process of creation, it does depict the process by which ideas, notes, lyrics and bits of the tune were gradually put together.
[5] Following completion of this work tape, a demo tape was made. The work tape, demo tape and a vocal-piano version taken from the demo tape are all in the key of E flat. Lead sheet music, dated March 6, 1977, is in the key of E. On March 7, 1977, a lead sheet of "How Deep Is Your Love" was filed for issuance of a United States copyright, and in November 1977, a piano-vocal arrangement was filed in the Copyright Office.
[6] The only expert witness to testify at trial was Arrand Parsons, a professor of music at Northwestern University who has had extensive professional experience primarily in classical music. He has been a program annotator for the Chicago Symphony Orchestra and the New Orleans Symphony Orchestra and has authored works about musical theory. Prior to this case, however, he had never made a comparative analysis of two popular songs. Dr. Parsons testified on the basis of several charts comparing the musical notes of each song and a comparative recording prepared under his direction.
[7] According to Dr. Parsons' testimony, the first eight bars of each song (Theme A) have twenty-four of thirty-four notes in plaintiff's composition and twenty-four of forty notes in defendants' composition which are identical in pitch and symmetrical position. Of thirty-five rhythmic impulses in plaintiff's composition and forty in defendants', thirty are identical. In the last four bars of both songs (Theme B), fourteen notes in each are identical in pitch, and eleven of the fourteen rhythmic impulses are identical. Both Theme A and Theme B appear in the same position in each song but with different intervening material.
[8] Dr. Parsons testified that, in his opinion, "the two songs had such striking similarities that they could not have been written independent of one another." Tr. 202. He also testified that he did not know of two songs by different composers "that contain as many striking similarities" as do the two songs at issue here. However, on several occasions, he declined to say that the similarities could only have resulted from copying.
[9] Following presentation of the case, the jury returned a verdict for the plaintiff on the issue of liability, the only question presented to the jury. Judge Leighton, however, granted the defendants' motion for judgment notwithstanding the verdict and, in the alternative, for a new trial. He relied primarily on the plaintiff's inability to demonstrate that the defendants had access to the plaintiff's song, without which a claim of copyright infringement could not prevail regardless how similar the two compositions are. Further, the plaintiff failed to contradict or refute the testimony of the defendants and their witnesses describing the independent creation process of "How Deep Is Your Love." Finally, Judge Leighton concluded that "the inferences on which plaintiff relies is not a logical, permissible deduction from proof of `striking similarity' or substantial similarity; it is `at war with the undisputed facts,' and it is inconsistent with the proof of nonaccess to plaintiff's song by the Bee Gees at the time in question." 567 F.Supp. at 1183 (citations omitted).
II
[10] Both we and the district court must be reluctant to remove an issue from the purview of the jury on either a directed verdict or a judgment notwithstanding the verdict. Nonetheless, we have a duty to determine whether there is sufficient evidence to support the position of the nonmoving party, in this case, the plaintiff. The standards applicable to a motion for judgment notwithstanding the verdict and to a directed verdict are, of course, the same. All the evidence, taken as a whole, must be viewed in the light most favorable to the nonmoving party. This evidence must provide a sufficient basis from which the jury could have reasonably reached a verdict without speculation or drawing unreasonable inferences which conflict with the undisputed facts. Brady v. Southern Railway, 320 U.S. 476, 480, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943); United States v. An Article of Device, 731 F.2d 1253, 1257 (7th Cir. 1984); Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir. 1980); Hohmann v. Packard Instrument Co., 471 F.2d 815, 819 (7th Cir. 1973).
[11] It is, of course, not relevant that, in this case, the trial court denied defendants' motion for a directed verdict and submitted the issue to the jury. It is generally more efficient to proceed in this fashion, so that, in the event the reviewing court reverses, the entire case will not have to be retried. Mattivi v. South African Marine Corp., 618 F.2d 163, 166 (2d Cir. 1980). Since we affirm the district court's grant of a judgment notwithstanding the verdict, it is not necessary to consider either the grant of the motion, in the alternative, for a new trial or the defendants' cross-appeal on the district court's denial of summary judgment. We note, however, that the cross-appeal with respect to the summary judgment motion is inappropriate and redundant since the issues it raised were incorporated in the motion for judgment notwithstanding the verdict. The cross-appeal may be little more than a device to win an opportunity to file the last brief or to argue the evidence of witnesses not presented at trial who furnished summary judgment affidavits - and is a procedure not to be encouraged.
III
[12] Selle's primary contention on this appeal is that the district court misunderstood the theory of proof of copyright infringement on which he based his claim. Under this theory, copyright infringement can be demonstrated when, even in the absence of any direct evidence of access, the two pieces in question are so strikingly similar that access can be inferred from such similarity alone. Selle argues that the testimony of his expert witness, Dr. Parsons, was sufficient evidence of such striking similarity that it was permissible for the jury, even in the absence of any other evidence concerning access, to infer that the Bee Gees had access to plaintiff's song and indeed copied it.
[13] In establishing a claim of copyright infringement of a musical composition, the plaintiff must prove (1) ownership of the copyright in the complaining work; (2) originality of the work; (3) copying of the work by the defendant, and (4) a substantial degree of similarity between the two works. See Sherman, Musical Copyright Infringement: The Requirement of Substantial Similarity. Copyright Law Symposium, Number 92, American Society of Composers, Authors and Publishers 81-82. Columbia University Press (1977) [hereinafter "Sherman, Musical Copyright Infringement"]. The only element which is at issue in this appeal is proof of copying; the first two elements are essentially conceded, while the fourth (substantial similarity) is, at least in these circumstances, closely related to the third element under plaintiff's theory of the case.
[14] Proof of copying is crucial to any claim of copyright infringement because no matter how similar the two works may be (even to the point of identity), if the defendant did not copy the accused work, there is no infringement. Arnstein v. Edward B. Marks Music Corp., 82 F.2d 275 (2d Cir.), motion to set aside decree denied, 86 F.2d 715 (2d Cir. 1936). However, because direct evidence of copying is rarely available, the plaintiff can rely upon circumstantial evidence to prove this essential element, and the most important component of this sort of circumstantial evidence is proof of access. See generally 3 Nimmer, Copyright § 13.02 at 13-9 (1983) [hereinafter "Nimmer, Copyright"]. The plaintiff may be able to introduce direct evidence of access when, for example, the work was sent directly to the defendant (whether a musician or a publishing company) or a close associate of the defendant. On the other hand, the plaintiff may be able to establish a reasonable possibility of access when, for example, the complaining work has been widely disseminated to the public. See, e.g., Abkco Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 998 (2d Cir. 1983) (finding of access based on wide dissemination); Sherman, Musical Copyright Infringement, at 82.
[15] If, however, the plaintiff does not have direct evidence of access, then an inference of access may still be established circumstantially by proof of similarity which is so striking that the possibilities of independent creation, coincidence and prior common source are, as a practical matter, precluded. If the plaintiff presents evidence of striking similarity sufficient to raise an inference of access, then copying is presumably proved simultaneously, although the fourth element (substantial similarity) still requires proof that the defendant copied a substantial amount of the complaining work. The theory which Selle attempts to apply to this case is based on proof of copying by circumstantial proof of access established by striking similarity between the two works.
[16] One difficulty with plaintiff's theory is that no matter how great the similarity between the two works, it is not their similarity per se which establishes access; rather, their similarity tends to prove access in light of the nature of the works, the particular musical genre involved and other circumstantial evidence of access. In other words, striking similarity is just one piece of circumstantial evidence tending to show access and must not be considered in isolation; it must be considered together with other types of circumstantial evidence relating to access.
[17] As a threshold matter, therefore, it would appear that there must be at least some other evidence which would establish a reasonable possibility that the complaining work was available to the alleged infringer. As noted, two works may be identical in every detail, but, if the alleged infringer created the accused work independently or both works were copied from a common source in the public domain, then there is no infringement. Therefore, if the plaintiff admits to having kept his or her creation under lock and key, it would seem logically impossible to infer access through striking similarity. Thus, although it has frequently been written that striking similarity alone can establish access, the decided cases suggest that this circumstance would be most unusual. The plaintiff must always present sufficient evidence to support a reasonable possibility of access because the jury cannot draw an inference of access based upon speculation and conjecture alone.
[18] For example, in Twentieth Century-Fox Film Corp. v. Dieckhaus, 153 F.2d 893 (8th Cir.), cert. denied, 329 U.S. 716, 67 S.Ct. 46, 91 L.Ed. 621 (1946), the court reversed a finding of infringement based solely on the similarities between plaintiff's book and defendant's film. The court stated that the plaintiff herself presented no evidence that the defendant had had access to her book, and the only people to whom the plaintiff had given a copy of her book testified that they had not given it to the defendant. While the court also concluded that the similarities between the book and the film were not that significant, the result turned on the fact that "[t]he oral and documentary evidence in the record . . . establishes the fact that the defendant had no access to plaintiff's book unless the law of plagiarism permits the court to draw an inference contrary to such proof from its finding of similarities on comparison of the book with the picture." Id. at 897. Thus, although proof of striking similarity may permit an inference of access, the plaintiff must still meet some minimum threshold of proof which demonstrates that the inference of access is reasonable.
[19] The greatest difficulty perhaps arises when the plaintiff cannot demonstrate any direct link between the complaining work and the defendant but the work has been so widely disseminated that it is not unreasonable to infer that the defendant might have had access to it. In Cholvin v. B. & F. Music Co., 253 F.2d 102 (7th Cir. 1958), the plaintiffs' work had been distributed in 2000 professional copies of sheet music and four recordings, of which 200,000 records were sold, and it had been performed on several nationwide broadcasts. The court held that, in light of this circumstantial evidence, it was reasonable to infer, in combination with similarities between the two pieces, that there had been an infringement. In Abkco Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 997-99 (2d Cir. 1983), the court found that there had been a copyright infringement based on a theory of subconscious copying. The complaining work, "He's So Fine," had been the most popular song in the United States for five weeks and among the thirty top hits in England for seven weeks during the year in which George Harrison composed "My Sweet Lord," the infringing song. This evidence, in addition to Harrison's own admission that the two songs were "strikingly similar," supported the finding of infringement. On the other hand, in Jewel Music Publishing Co. v. Leo Feist, Inc., 62 F.Supp. 596, 598 (S.D.N.Y. 1945), almost 10,000 copies of the complaining song had been distributed or sold and the music had also been broadcast on national performances. The court still concluded that the showing of access was insufficient, in combination with the other evidence, to support a reasonable inference of access.
[20] The possibility of access in the present case is not as remote as that in Dieckhaus because neither side elicited testimony from the individuals (primarily employees of the publishing companies) to whom the plaintiff had distributed copies of his song. Such evidence might have conclusively disproved access. On the other hand, Selle's song certainly did not achieve the extent of public dissemination existing in Cholvin, Jewel Music Publishing Co., or Harrisongs Music, and there was also no evidence that any of the defendants or their associates were in Chicago on the two or three occasions when the plaintiff played his song publicly. It is not necessary for us, given the facts of this case, to determine the number of copies which must be publicly distributed to raise a reasonable inference of access. Nevertheless, in this case, the availability of Selle's song, as shown by the evidence, was virtually de minimis.
[21] In granting the defendants' motion for judgment notwithstanding the verdict, Judge Leighton relied primarily on the plaintiff's failure to adduce any evidence of access and stated that an inference of access may not be based on mere conjecture, speculation or a bare possibility of access. 567 F.Supp. at 1181. Thus, in Testa v. Janssen, 492 F.Supp. 198, 202-03 (W.D.Pa. 1980), the court stated that "[t]o support a finding of access, plaintiffs' evidence must extend beyond mere speculation or conjecture. And, while circumstantial evidence is sufficient to establish access, a defendant's opportunity to view the copyrighted work must exist by a reasonable possibility - not a bare possibility" (citation omitted). See also Ferguson v. National Broadcasting Co., 584 F.2d 111, 113 (5th Cir. 1978); Scott v. Paramount Pictures Corp., 449 F.Supp. 518, 520 (D.D.C. 1978), aff'd mem., 607 F.2d 494 (D.C.Cir. 1979), cert. denied, 449 U.S. 849, 101 S.Ct. 137, 66 L.Ed.2d 60 (1980).[n2]
[22] Judge Leighton thus based his decision on what he characterized as the plaintiff's inability to raise more than speculation that the Bee Gees had access to his song. The extensive testimony of the defendants and their witnesses describing the creation process went essentially uncontradicted, and there was no attempt even to impeach their credibility. Judge Leighton further relied on the principle that the testimony of credible witnesses concerning a matter within their knowledge cannot be rejected without some impeachment, contradiction or inconsistency with other evidence on the particular point at issue. Dieckhaus, supra, 153 F.2d at 899-900. See also Chesapeake and Ohio Railroad Co. v. Martin, 283 U.S. 209, 216, 51 S.Ct. 453, 456, 75 L.Ed. 983 (1931). Judge Leighton's conclusions that there was no more than a bare possibility that the defendants could have had access to Selle's song and that this was an insufficient basis from which the jury could have reasonably inferred the existence of access seem correct. The plaintiff has failed to meet even the minimum threshold of proof of the possibility of access and, as Judge Leighton has stated, an inference of access would thus seem to be "at war with the undisputed facts." 567 F.Supp. at 1183.
IV
[23] The grant of the motion for judgment notwithstanding the verdict might, if we were so minded, be affirmed on the basis of the preceding analysis of the plaintiff's inability to establish a reasonable inference of access. This decision is also supported by a more traditional analysis of proof of access based only on the proof of "striking similarity" between the two compositions. The plaintiff relies almost exclusively on the testimony of his expert witness, Dr. Parsons, that the two pieces were, in fact, "strikingly similar."[n3] Yet formulating a meaningful definition of "striking similarity" is no simple task, and the term is often used in a conclusory or circular fashion.
[24] Sherman defines "striking similarity" as a term of art signifying "that degree of similarity as will permit an inference of copying even in the absence of proof of access. . . ." Sherman, Musical Copyright Infringement, at 84 n. 15. Nimmer states that, absent proof of access, "the similarities must be so striking as to preclude the possibility that the defendant independently arrived at the same result." Nimmer, Copyright, at 13-14.[n4]
[25] "Striking similarity" is not merely a function of the number of identical notes that appear in both compositions. Cf. Wilkie v. Santly Brothers, Inc., 13 F.Supp. 136 (S.D.N.Y. 1935), aff'd, 91 F.2d 978 (2d Cir.), cert. denied, 302 U.S. 735, 58 S.Ct. 120, 82 L.Ed. 568 (1937), aff'd on reargument, 94 F.2d 1023 (2d Cir. 1938) (comparison of note structure demonstrates striking similarity), and Jewel Music Publishing Co. v. Leo Feist, Inc., 62 F.Supp. 596 (S.D.N.Y. 1945) (in light of plaintiff's inability to establish access, degree of similarity despite identity or near identity of several bars was not striking). An important factor in analyzing the degree of similarity of two compositions is the uniqueness of the sections which are asserted to be similar.
[26] If the complaining work contains an unexpected departure from the normal metric structure or if the complaining work includes what appears to be an error and the accused work repeats the unexpected element or the error, then it is more likely that there is some connection between the pieces. See, e.g., Nordstrom v. Radio Corporation of America, 251 F.Supp. 41, 42 (D.Colo. 1965). If the similar sections are particularly intricate, then again it would seem more likely that the compositions are related. Finally, some dissimilarities may be particularly suspicious. See, e.g., Meier Co. v. Albany Novelty Manufacturing Co., 236 F.2d 144, 146 (2d Cir. 1956) (inversion and substitution of certain words in a catalogue in a "crude effort to give the appearance of dissimilarity" are themselves evidence of copying); Blume v. Spear, 30 F. 629, 631 (S.D.N.Y. 1887) (variations in infringing song were placed so as to indicate deliberate copying); Sherman, Musical Copyright Infringement, at 84-88. While some of these concepts are borrowed from literary copyright analysis, they would seem equally applicable to an analysis of music.
[27] The judicially formulated definition of "striking similarity" states that "plaintiffs must demonstrate that `such similarities are of a kind that can only be explained by copying, rather than by coincidence, independent creation, or prior common source.'" Testa v. Janssen, 492 F.Supp. 198, 203 (W.D.Pa. 1980) (quoting Stratchborneo v. Arc Music Corp., 357 F.Supp. 1393, 1403 (S.D.N.Y. 1973)). See also Scott v. WKJG, Inc., 376 F.2d 467, 469 (7th Cir. 1967) (the similarities must be "so striking and of such nature as to preclude the possibility of coincidence, accident or independent creation."); Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946) (same); Scott v. Paramount Pictures Corp., 449 F.Supp. 518, 520 (D.D.C. 1978) (same). Sherman adds:
To prove that certain similarities are "striking," plaintiff must show that they are the sort of similarities that cannot satisfactorily be accounted for by a theory of coincidence, independent creation, prior common source, or any theory other than that of copying. Striking similarity is an extremely technical issue - one with which, understandably, experts are best equipped to deal.
[28] Sherman, Musical Copyright Infringement, at 96.
[29] Finally, the similarities should appear in a sufficiently unique or complex context as to make it unlikely that both pieces were copied from a prior common source, Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir.), cert. denied, 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392 (1936), or that the defendant was able to compose the accused work as a matter of independent creation, Nichols v. Universal Pictures Corp., 45 F.2d 119, 122 (2d Cir. 1930), cert. denied, 282 U.S. 902, 51 S.Ct. 216, 75 L.Ed. 795 (1931). See also Darrell v. Joe Morris Music Co., 113 F.2d 80 (2d Cir. 1940) ("simple, trite themes . . . are likely to recur spontaneously . . . and [only few] . . . suit the infantile demands of the popular ear"); Arnstein v. Edward B. Marks Music Corp., 82 F.2d 275, 277 (2d Cir. 1936). Cf. Abkco Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 998 (2d Cir. 1983) (finding of a "highly unique pattern" makes copying more likely). With these principles in mind, we turn now to an analysis of the evidence of "striking similarity" presented by the plaintiff.
[30] As noted, the plaintiff relies almost entirely on the testimony of his expert witness, Dr. Arrand Parsons. The defendants did not introduce any expert testimony, apparently because they did not think Parsons' testimony needed to be refuted. Defendants are perhaps to some degree correct in asserting that Parsons, although eminently qualified in the field of classical music theory, was not equally qualified to analyze popular music tunes. More significantly, however, although Parsons used the magic formula, "striking similarity," he only ruled out the possibility of independent creation; he did not state that the similarities could only be the result of copying. In order for proof of "striking similarity" to establish a reasonable inference of access, especially in a case such as this one in which the direct proof of access is so minimal, the plaintiff must show that the similarity is of a type which will preclude any explanation other than that of copying.
[31] In addition, to bolster the expert's conclusion that independent creation was not possible, there should be some testimony or other evidence of the relative complexity or uniqueness of the two compositions. Dr. Parsons' testimony did not refer to this aspect of the compositions and, in a field such as that of popular music in which all songs are relatively short and tend to build on or repeat a basic theme, such testimony would seem to be particularly necessary. We agree with the Sixth Circuit which explained that "we do not think the affidavit of [the expert witness], stating in conclusory terms that `it is extremely unlikely that one set [of architectural plans] could have been prepared without access to the other set,' can fill the gap which is created by the absence of any direct evidence of access." Scholz Homes, Inc. v. Maddox, 379 F.2d 84, 86 (6th Cir. 1967).
[32] To illustrate this deficiency more concretely, we refer to a cassette tape, Plaintiff's Exhibit 27, and the accompanying chart, Plaintiff's Exhibit 26. These exhibits were prepared by the defendants but introduced into evidence by the plaintiff. The tape has recorded on it segments of both themes from both the Selle and the Gibb songs interspersed with segments of other compositions as diverse as "Footsteps," "From Me To You" (a Lennon-McCartney piece), Beethoven's 5th Symphony, "Funny Talk," "Play Down," and "I'd Like To Leave If I May" (the last two being earlier compositions by Barry Gibb).[n5] There are at least superficial similarities among these segments, when played on the same musical instrument, and the plaintiff failed to elicit any testimony from his expert witness about this exhibit which compared the Selle and the Gibb songs to other pieces of contemporary, popular music. These circumstances indicate that the plaintiff failed to sustain his burden of proof on the issue of "striking similarity" in its legal sense - that is, similarity which reasonably precludes the possibility of any explanation other than that of copying.
[33] The plaintiff's expert witness does not seem to have addressed any issues relating to the possibility of prior common source in both widely disseminated popular songs and the defendants' own compositions. At oral argument, plaintiff's attorney stated that the burden of proving common source should be on the defendant; however, the burden of proving "striking similarity," which, by definition, includes taking steps to minimize the possibility of common source, is on the plaintiff. In essence, the plaintiff failed to prove to the requisite degree that the similarities identified by the expert witness - although perhaps "striking" in a non-legal sense - were of a type which would eliminate any explanation of coincidence, independent creation or common source, including, in this case, the possibility of common source in earlier compositions created by the Bee Gees themselves or by others. In sum, the evidence of striking similarity is not sufficiently compelling to make the case when the proof of access must otherwise depend largely upon speculation and conjecture.
[34] Therefore, because the plaintiff failed both to establish a basis from which the jury could reasonably infer that the Bee Gees had access to his song and to meet his burden of proving "striking similarity" between the two compositions, the grant by the district court of the defendants' motion for judgment notwithstanding the verdict is affirmed. Because of our doubts concerning the defendants' cross-appeal on the denial of the summary judgment, we order that, under Fed.R.App.P. 38, each party shall bear its own costs.
n* Honorable Philip Nichols, Jr., Senior Circuit Judge for the Federal Circuit, is sitting by designation.
1. For a fuller discussion of the facts as adduced at trial, see Selle v. Gibb, 567 F.Supp. 1173, 1175-78 (N.D.Ill. 1983).
2. In Scott, the court held that plaintiff's allegations of access were merely speculation when she could not show that she had knowledge that any of the defendants had access to her song, although she had performed her song in public on several occasions and once on television.
3. Plaintiff also relies on the fact that both songs were played on numerous occasions in open court for the jury to hear and on the deposition testimony of one of the Bee Gees, Maurice, who incorrectly identified Theme B of Selle's song as the Bee Gees' composition, "How Deep Is Your Love."
4. At oral argument, plaintiff's attorney analyzed the degree of similarity required to establish an inference of access as being in an inverse ratio to the quantum of direct evidence adduced to establish access. While we have found no authoritative support for this analysis, it seems appropriate. In this case, it would therefore appear that, because the plaintiff has introduced virtually no direct evidence of access, the degree of similarity required to establish copying in this case is considerable.
5. The plaintiff, on cross-examination, admitted that there were some similarities, primarily in melody rather than rhythm, between his song and various other popular tunes, including "From Me To You" and several earlier Bee Gee compositions. Tr. 87-93
SELLE V. GIBB AND THE
FORENSIC ANALYSIS OF PLAGIARISM
M. Fletcher Reynolds
Copyright 1993
Ronald H. Selle, an Illinois antique dealer with a master's degree in music education, composed popular and religious songs and played locally in a small band. One day in 1978 while Selle was working in his yard, a cassette player belonging to the teenager next door blared out what Selle recognized as the music to his song "Let It End." Since writing the song in 1975, Selle had sent the lead sheet and a home recording to fourteen publishers. Eleven publishers had returned the materials; three never responded. Selle filed suit against Barry Gibb, Robin Gibb, and Maurice Gibb (a/k/a the Bee Gees), Phonodisc, Inc. (a/k/a Polygram Distribution, Inc.), and Paramount Pictures, accusing them of misappropriating his music in the hit song "How Deep Is Your Love." The case was tried to a jury in 1983.[1]
Evidence of infringement was presented at trial by the plaintiff's expert witness, a music theorist who analyzed the two works to determine whether Selle's work had been copied by the Bee Gees. For reasons explained below, the defendants' experts did not testify, although they were present at trial and prepared to take the stand. The Selle case illustrates some of the pitfalls awaiting the music analyst who ventures into court and, on a more general level, the very real difficulties of analyzing music to determine authorship and presenting one's analysis in a form that lay persons can comprehend. A forensic analyst must never lose sight of the true issues to be addressed, both legal and musical. Yet a survey of plagiarism cases reveals that music experts have routinely failed to give adequate consideration to essential aspects of their task. The analysis introduced into evidence in the Selle case typifies the practices of many past and current expert witnesses--practices which often result in the introduction of insufficient or irrelevant evidence. Obviously, the lay trier of fact[2] who relies on such evidence may be led to reach an incorrect verdict.
A solution can only be achieved when lawyers and musicians better understand the demands of the other's discipline. Before discussing the Selle trial and the analytical evidence presented, the reader should know what must be proved to sustain a claim of plagiarism and what the expert witness's role is in presenting or refuting this proof.
Proof of Copyright Infringement
Copyright law grants an exclusive right to authors to control the copying and distribution of their work. It includes the exclusive right to produce the work in copies, to prepare derivative works, such as musical arrangements, to distribute copies to the public, and to perform the work publicly. The scope of copyright protection is limited to the author's original expression; it does not protect the more abstract idea that forms the basis of the work.[3] Further limiting protection, the "fair use" doctrine provides that the author's work may be reproduced for, among other purposes, criticism, scholarship, and news reporting.[4]
Some commentators refer to copyright as a monopoly, but copyright law does not grant a true monopoly. Unlike patent law, for example, a copyright does not protect the novel item; it merely protects the original author from having his work copied. In theory then, and perhaps only in theory, a composer may write a work identical in every way to another pre-existing work and enjoy the same copyright protections as the earlier composer. So long as the latter composer does not copy the earlier work, none of the first composer's exclusive rights are violated.
Infringement is simply any violation of the author's exclusive rights.[5] The Copyright Act provides no additional definition of "infringement." Thus, in a copyright infringement lawsuit, the court must determine (1) whether the first author holds a valid copyright, (2) whether that author's work is original, (3) whether the original work has been copied, and (4) whether the copying violates the author's exclusive rights or whether it is a fair use. Ronald Selle's claim against the Bee Gees was one of plagiarism--that the Bee Gees copied his work and passed it off as their own. Selle first presented evidence that he held the copyright in his own work "Let It End." The defense did not contest the existence of Selle's copyright. Thus the trial testimony focused on the remaining, contested legal issues: whether Selle's work was original; whether the Bee Gees copied Selle's work; and, if they did, whether that copying constituted a violation of Selle's exclusive rights.
Expert witnesses testify under special evidentiary rules. Most witnesses can testify only to facts of which they have personal knowledge. But the rules of evidence provide that a person with specialized knowledge or skill may give opinion testimony if it will be helpful to the trier of fact. (The judge sits as trier of fact when there is no jury. Parties will often demand juries in plagiarism cases, as was done in Selle, and for simplicity, this discussion will assume the trier of fact is a jury.) In complex or unfamiliar matters on which the jury has no base of knowledge, expert testimony can be decisive. Trial often becomes a "battle of the experts" where two authorities give opposing opinions. In such cases, the jury verdict may well turn on the relative credibility of the experts and the experts' ability to make their reasoning accessible to the layman.
The judge applies evidentiary rules to determine what evidence the jury may hear. Judges deal with cases of all kinds and hears expert testimony on a multitude of issues. Although the judge is usually a layman in the expert's field, he often knows something about the expert's methodology. A real estate appraisal or medical diagnosis, for example, must adhere to certain generally understood principles, and the judge can usually distinguish science from superstition and disallow useless or misleading testimony. In music plagiarism cases, however, even an otherwise well-educated judge usually has little understanding of what music theorists do, and he will find no legal authority to steer his evidentiary decisions in the right direction. Quite the contrary, the sparse legal writings on music are filled with truly astonishing misinformation.
To prove copying, the plaintiff must show "access" plus "substantial similarities."[6] Plagiarism is rarely witnessed, and so the requisite evidence of copying is necessarily circumstantial. Access may be reasonably easy to show where the original work has enjoyed popular success and exposure. The term "substantial similarity" is nowhere defined. The jury must determine whether the similarities are sufficient to warrant an inference of copying. Litigants commonly rely on the testimony of experts to help the jury assess the significance of similarities or differences. A second method of proof allows the jury to infer access where a qualified expert testifies that there are "striking similarities." The law defines striking similarity as that kind of similarity which can only be explained by copying rather than coincidence, independent creation, or common source.[7] Lay testimony is inadequate to show striking similarities.
Proof of copying alone is not sufficient. The plaintiff must also prove that the copying rises to the level of misappropriation. If the copying is a fair use, it is not a misappropriation. Nor is it a misappropriation to copy something other than the author's original expression. The defendant may claim that similarities arise because both he and the plaintiff copied from a common source. If so, then what was copied is not the plaintiff's original expression, and the plaintiff cannot complain. The prior common source defense offers many good arguments to defendants, especially in cases involving musical styles that employ standard formulae, and therefore, experts must consider not only similarities between the two works at issue but also similarities with prior art. The landmark case of Arnstein v. Porter, in which Cole Porter defended charges of plagiarism, phrased the misappropriation question as "whether defendant took from plaintiff's works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is composed, that defendant wrongfully appropriated something which belongs to plaintiff.[8] Thus stated, misappropriation addresses aesthetics, but it should also be understood to implicate issues of philosophy, economics, and public policy.
The Trial
The Selle case was heard before the Honorable George N. Leighton, United States District Judge for the Northern District of Illinois. Selle's counsel, Allen C. Engerman, outlined the plaintiff's case in his opening statement to the jury. Experts would testify to striking similarities between the two songs. Of thirty-four notes in the opening eight measures of "Let It End" and forty in the corresponding measures of "How Deep Is Your Love," twenty-four were identical in pitch and thirty-five were identical in rhythm.[9] Because no link was ever established between the Bee Gees and any of the publishers to whom Selle had sent his song, access could not be shown. Instead, the plaintiff would show striking similarities to rule out the possibility of independent creation.[10]
Robert Osterberg, representing the Bee Gees, countered. Copying was the key word, and similarities alone could not show copying. Copyright does not grant a monopoly on a particular musical expression; it only prevents another from copying that expression. Coincidental similarities, attributable to the limited number of notes in the vocabulary of popular music, provided no basis for legal redress.[11] Selle could not establish copying or any opportunity for the Bee Gees to have heard his song. Selle's song was never recorded or performed where the Bee Gees could have heard it, and the Bee Gees had a strict policy of not reviewing unsolicited material.[12] Furthermore, the two songs had little in common. Plaintiff's song, according to Osterberg, was predictable and amateurish--the Bee Gees', complex and sophisticated. "How Deep" reflected the musical genius of one of the most outstanding songwriting groups in popular music history.[13] "Let It End" met with universal rejection, "How Deep" with immediate and phenomenal success.[14]
Following opening statements, plaintiff began his case in chief. Direct examination of Selle placed the basic facts in evidence.[15] He explained to the jury how he wrote his song and the efforts he made to market it. On cross-examination, Osterberg confronted him with examples of prior art, works which predated both songs at issue. He pointed to similarities between the works at issue and other Bee Gees songs. Selle's song, Osterberg suggested, also resembled the Beatles' song "From Me to You." Were these similarities between prior art and your song, Osterberg asked Selle repeatedly after identifying each example, the result of coincidence?
Selle claimed the Bee Gees took two key sections of his work, the opening (theme A) and ending (theme B). He admitted that the middle section of "How Deep" was original. Both key sections involve a motive treated sequentially. Osterberg sought Selle's admission that sequential repetition entails only the mechanical transference of the motive up or down in pitch and, therefore, that each subsequent statement was not an independently significant creative act. Selle characterized sequential repetition as only one option of many. Theme A employed an ascending sequence while theme B's sequence descended.[16] That choice required a creative act. But Selle admitted, inaccurately, that a composer had only twelve options once the decision was made to treat the motive sequentially.[17]
Plaintiff's expert, Arrand Parsons, possessed impeccable credentials as a theorist and musicologist. He had taught at Northwestern University since 1946, chaired the music theory department for five years, and published writings on music analysis.[18] Although he had never made a comparative analysis of two popular songs prior to this case, he believed he was qualified to testify because he was first of all a life-long student and teacher of music theory, a discipline which involves analysis.[19] Questioned about his focus on more serious music, he replied that the analytical process would not vary if the music were pop, country, rock, or classical.[20]
Parsons began his direct testimony with a short lesson in music fundamentals. He then proceeded to explain how these two songs were so strikingly similar that they could not have been written independent of one another.[21] Each juror held his personal copy of Exhibits 18 [Figure 1] and 19 [Figure 2], printed cards with plastic mylar overlays. Theme A of each song was written on the card on a separate staff, one above the other. Exhibit 18 covered the first phrase and Exhibit 19 the second of what was identified as Theme A.
Where the pitches matched at or near the same rhythmic position, those notes appeared in red on the mylar overlay with red arrows drawn between them.[22] The arrows were numbered 1 through 24. Another copy of the exhibits was placed close to the courtroom piano so that Parsons could play and point without having to move. Parsons explained Exhibits 18 and 19, note by note.[23]
Exhibits 20 [Figure 3] and 21 [Figure 4] showed a rhythmic comparison of the same material. The corresponding ties at the end of measures 1, 3, 5, and 7 were displayed in turquoise.[24] Thirty red arrows appeared on the mylar overlays of Exhibits 20 and 21.[25]
The process was repeated for Theme B. The pitch comparison, Exhibit 23 [Figure 5], showed fourteen red arrows in four measures. The rhythms of Theme B [Figure 6] matched at eleven points.[26] At each juncture, Parsons testified that similarities were so striking and vivid that, based on his experience and background in music theory and analysis, independent creation was precluded.
Parsons noted additional similarities. Theme A occurs at the beginning of both songs, theme B at the very end.[27] Theme B is not related to theme A; as two independent musical thoughts or melodic thoughts, their composition would require two creative acts.[28] Based on a structural analysis of the two songs, coupled with his detailed analysis of the melodies of Themes A and B, Parsons believed and reiterated that the two songs could not have been created independently. He did not know of any two musical compositions by two different composers that contain as many striking similarities as exist between these two songs.[29] Plaintiff's counsel Engerman tendered the witness.
Osterberg began his cross-examination by questioning Parsons's choice of source material for his comparisons. Parsons had used the copyrighted lead sheet of "How Deep," but the Bee Gees do not read or write music. They claimed to have written "How Deep" through a process of trial and error while gathered at the piano with a cassette recorder. Osterberg characterized the work tape of that session as the best evidence of what the Bee Gees had written and how they wrote it. A transcriber committed the song to writing only after the composition process was completed and a demonstration tape made. Over objections, Osterberg tried to establish that Parsons had based his comparisons on secondary materials.[30]
Parsons had formalized his opinions after completing his analysis of the two songs a few years before trial. His pre-trial written report, which matched the conclusions stated in his direct testimony, had been made without ever examining other songs written by the Bee Gees.[31] Although Parsons claimed to have listened to some of the Bee Gees' music, Osterberg named eighteen of their albums, asking each time if Parsons had listened to that particular album. In each case, Parsons answered no.[32]
After Parsons reiterated that he had never before compared popular songs, he made a critical admission: he did not know whether or not there is a great deal of similarity between songs in the popular music field.[33] Although certainly qualified to analyze similarities, Parsons's answers raised a question as to whether he could judge how striking those similarities were. No fact witness would substitute for Parsons on this inquiry; only an expert can testify that similarities should be considered striking in the legal sense. For the plaintiff to prevail, Parsons needed to state that the similarities could result only from copying. If he could not judge the uniqueness of the similarities of the two works at issue compared to the many similarities commonly found in popular music, then he could not testify as to their significance. And if he had not familiarized himself with the relevant stylistic elements of popular music, he could not know which similarities were unique to the two songs at issue and which were merely idiomatic and unprotected.
Asked by Osterberg to define his use of the term "striking similarity," Parsons stated that it exists where pitches and rhythms coincide.[34] Osterberg continued:
Q . . . [Y]ou have used it several times during the course of your initial presentation. I would like to know whether that's the sole meaning you attribute to the phrase striking similarity.
x
A Those were the two points I used in my report because the question was one of melodic comparison. . . .
My assignment here was to compare the two melodies under consideration. That is what I did.[35]
Judge Leighton wanted more. At the end of cross-examination, he put the question to the witness himself. Was Parsons familiar with the expression "striking similarity" before he undertook the analysis of these two songs? Parsons responded that he was not previously aware of the legal implications, but he had used the term in his musical instructions.[36]
The judge's question was critical particularly in light of Parsons's hedging during Osterberg's questioning on the existence of copying. For example:
Q Is it your opinion, Mr. Parsons, that the only way the B Theme of "How Deep Is Your Love" could come about was as a result of copying Mr. Selle's song?
x
A I, I don't believe--put it positively. I believe that the Bee Gees' song, with these elements which we have described in common with the Selle song, I believe that the Bee Gees song could not have come into being with the--I must correct that. Because that is again dealing with a conjecture.
I believe that the elements, if I may just wipe that away and start again, because it's gotten twisted up.
I believe that the elements which are in common between the two songs in question are of such striking similarity that the second song could not have come into being without the first.
x
Q By that are you saying without reference to the first? Are you saying without reference to the first? I don't--can you explain what you mean by couldn't have come into being without the first?
x
A Could not have been composed without the first.
x
Q I am asking whether you are saying that it couldn't have been composed without seeing the first song, without referring to it, without copying it? What is your testimony?
x
A All of those things you described, copying, having seen it first, I have forgotten the others, I, I have no way, that is conjecture, I have no way of knowing whether it was seen, it was--I only know that the two songs have so much in common that it is--that the--that it precludes--this is too long. That the second song has so much in common, that is--let's get the names right. That the Bee Gees Brothers' song has so much in common with the Selle song that I cannot see, I cannot believe that they were created independent of one another.
x
Q Referring to your deposition, Mr. Parsons, page 89, commencing at line eight, I asked the following question: "Q. Do you think the only way it could have come was a result of being copied from Mr. Selle's song?" "A. I could not answer that because I wouldn't know," end quote, line 11. Is that still an accurate answer today?
x
A I, I would not know. Yes, I would answer it the same.
x
Q So you can't answer the question because you don't know?
x
A No.[37]
The legal test is precise. Because plaintiff could not show access, his case depended on showing striking similarities such that coincidence, independent creation, and common source were all precluded. Parsons seemed to be using the term "striking similarity" loosely and would not state unequivocally that the similarities could result only from copying. The question of striking similarity goes to the heart of the composition process; it asks how the defendant composer could achieve the result he did. In that sense the question is a purely musical one, and the court would have recognized Parsons as qualified to answer. However, without familiarity with the popular music field, that field's standards, and the differences of purpose between classical and popular composers, Parsons could not answer relevant questions concerning the musical style. He did not understand the aesthetic or economic motivations of popular composers. Osterberg exploited this lack of knowledge and cast doubt on whether Parsons knew the significance of the similarities he had found. When Parsons failed to state unequivocally that the similarities proved a composition process that relied on copying, his use of the term "striking similarity" became legally meaningless. Without expert testimony on this point, plaintiff could not meet his burden of proof. The judge commented to the attorneys in chambers prior to giving jury instructions that Parsons had not satisfactorily answered his question.
THE COURT: Since he isn't here let me tell you why I asked him. I wanted to know from him whether the expression "striking similarity" is found in the works of analysts of music--that's what I wanted to know--or in his vocabulary, as I suspect, is an expression that began with his work in this case. He told me, I thought, that the expression is found in the works of music analysis. That's what he said. I wasn't satisfied the way he answered my question, but I didn't want to pursue the matter further so I left it.
MR. OSTERBERG: I thought he said he had used it before, but then I had asked him to define what he meant by striking similarity. His definition does not correspond to the legal definition.[38]
Another of plaintiff's expert witnesses, Harold Gelman, waited to be called in from California. Plaintiff, however, elected to hold him in reserve for rebuttal and called only one more fact witness, Maurice Gibb. In his deposition, Gibb had been asked to identify a short excerpt prepared by one of plaintiff's experts. It was played again in court, and Gibb again identified the excerpt as coming from "How Deep Is Your Love." Engerman then read the stipulation into the record that the excerpt was "Let It End."[39] The press considered this a most dramatic event, and it was widely reported.[40] With a favorable impression left on the jury but no definitive testimony on striking similarity, plaintiff rested his case.
The defense concentrated on the work tape that purported to document the composition of "How Deep Is Your Love." The writing session took place in France at the Chateau D'Herouville in January 1977.[41] Barry Gibb was called to authenticate and explain the tape.[42] Albhy Galuten, the Bee Gees' record producer, testified that he was present at the composition session.[43] He had played piano and made minor suggestions.[44] Maurice and Robin Gibb corroborated this account of their song's creation.
Engerman tried to cross-examine Robin Gibb on discrepancies in the defendants' collective account of the tape's creation, but the judge disallowed it on the grounds that such questions went beyond the scope of direct examination.[45] The judge noted that the witness had only been asked whether he was a co-author and whether or not he ever heard about "Let It End" before he participated in the creation of "How Deep Is Your Love."[46] Engerman explained at side bar (out of the hearing of the jury) that, although it was admittedly a work tape, his purpose was to show that the tape might not be the product of the initial creative effort.[47] He argued that there was a question as to when the work tape was created. It might be a work tape merely to refine a song. Engerman wanted to show that the work tape might have been made after the Bee Gees' left the chateau and after the music was first submitted to the Copyright Office.[48] The judge sustained Osterberg's objections to this line of questioning.
The defense rested. In a surprise move the defendants elected to forego their experts. Osterberg had surmised from some of the judge's comments to the attorneys in chambers that the judge did not think Parsons's testimony established the requisite level of striking similarities.[49] If the defense put on its own experts, then the plaintiff could counter with rebuttal experts, and those experts might cure the defects in Parsons's testimony. Further, proceeding with the defense would raise issues of fact for the jury to decide; as it stood, one issue of law, the adequacy of Parsons's testimony on striking similarity, was overriding. Nevertheless, the judge refused a defense motion for a directed verdict.[50] Striking similarity, he said, was a question for the jury. However, he observed outside the presence of the jury that it was obvious to him that the first eight measures were not strikingly similar.[51]
Plaintiff could not at this point put Gelman, its second expert witness, on the stand to show striking similarities, because plaintiff had rested his case and there was no defense expert to rebut. Plaintiff's counsel considered presenting expert testimony to show that the work tape introduced by defendants did not represent the initial creative effort, but he apparently realized that such testimony would be ineffective. Composition is a mental process, and a recording provides poor evidence of the composer's thoughts. The jury probably viewed the tape with justifiable skepticism; the tape certainly did not disprove copying. But unreliable as that tape might be as evidence of independent creation, no expert was likely to prove that the Bee Gees had heard Selle's song prior to recording the session at the chateau or, better, that the session was a fraud. In the end, plaintiff never rebutted the work tape's feeble contribution to showing independent creation.
Jerrold Gold, plaintiff's co-counsel, summed up the case for the jury. Parsons had testified to striking similarities and the defense had presented nothing to refute his conclusions.[52] Defendants' evidence of independent creation was inconsistent and inconclusive.[53] Those in the entertainment world hear many songs; the Bee Gees might have copied Selle's subconsciously.[54]
Osterberg in his summation reminded the jury that Parsons used a definition of striking similarity at odds with the legal definition. Parsons would not rule out the possibilities of independent creation, coincidence, and common source.[55] Although skilled in the analysis of classical music, Parsons clearly knew little about popular music. Because of this critical gap in his knowledge, he could not judge the significance of the similarities. Therefore, when Parsons said he did not know of any two musical compositions by two different composers that contain as many striking similarities as exist between these two songs, he drew a conclusion beyond his expertise. Osterberg implored the jury to substitute their own superior knowledge of popular music for the opinions of Parsons.[56]
Engerman, in rebuttal, completed plaintiff's summation on a more personal note. Even though the defense experts were seated at counsel's table and introduced to the jury at the start of trial, Parsons was the only expert to testify. His testimony had been eloquent and beyond impeachment. A professional such as Parsons relies on his reputation and would not sell his opinion for an expert witness's fee. His conclusions were dictated by the evidence. When the red arrows connecting similar notes were counted up, how could the songs be characterized as other than strikingly similar?[57]
The judge read the jury instructions and sequestered the jury at the end of the day. They deliberated for most of the next day, and at 3:30 p.m. returned a verdict for the plaintiff. "How Deep Is Your Love," they said, infringed Selle's song.
The jury decision did not finally resolve the matter. Judge Leighton nullified the jury verdict, granting the defense motion for a judgment notwithstanding the verdict (j.n.o.v). The judge's written opinion explains his reasons. A judgment notwithstanding the verdict is nothing more than a directed verdict granted after the jury has brought in its verdict.[58] To satisfy the criteria for a j.n.o.v. the judge must view all evidence in the light most favorable to the nonmoving party, here the plaintiff. The judge must find that, even with all justifiable inferences, the evidence simply cannot support the jury's decision.[59] It is immaterial that at the close of evidence the court, knowing no more then than now, denied the motion for a directed verdict and sent the case to the jury.[60]
The judge explained that the plaintiff never rebutted defendants' evidence of independent creation, the testimony of witnesses present at the composition of "How Deep Is Your Love" buttressed by the recording of the composition process. Although an inference of copying might be justified had plaintiff shown striking similarities, that inference here would be at war with the undisputed testimony of independent creation. Inference alone cannot outweigh actual testimony; therefore, the inference could not stand. The result was that some evidence of independent creation, albeit weak, for the defendants trumped no evidence to support the plaintiff's claim. Without at least an inference of copying, there can be no copyright claim regardless of the similarities. Thus, the verdict could not stand as a matter of law.[61]
Selle appealed, claiming the district court misunderstood his theory of proof.[62] The U.S. Court of Appeals for the Seventh Circuit began its analysis by stating that copying must be proved. Although direct evidence of copying is often lacking, circumstantial evidence of access and substantial similarities are sufficient. Where there is no evidence of access, striking similarities may raise a permissible inference of copying by showing that independent creation, coincidence, or common source are, as a practical matter, precluded.[63] Striking similarity per se, however, does not suffice. It provides only one piece of circumstantial evidence tending to showing access. It must be viewed with other evidence. For example, if the plaintiff admitted to keeping his work under lock and key, striking similarity could not allow the jury to infer access.[64]
In this case, the possibility that the Bee Gees had access to Selle's song was de minimis.[65] Evidence of access must extend beyond mere speculation.[66] Plaintiff relied on Parsons, who ruled out independent creation but did not state that the similarities could result only from copying.[67] Parsons had not addressed the possibility of a prior common source. Although the burden of showing a common source normally rests with the defendant, a plaintiff attempting to show striking similarity must bear the burden of showing no prior common source.[68]
The Court of Appeals affirmed Judge Leighton's judgment. Parsons had shown striking similarities in a non-legal sense only. Plaintiff had failed to provide a sufficient basis for the jury to infer that the Bee Gees had access to Selle's song.[69] Those not familiar with the law may find this result remarkable, but part of the trial judge's role is to guard against excesses of the jury. Here, the jury apparently believed that similarities alone could support an infringement claim. They cannot. No evidence had been put before them that the Bee Gees could have had access to Selle's song or that the similarities were so striking that they could result only from copying. The final outcome did not rest on a legal technicality. Rather, the missing evidence addresses the core of substantive copyright law, which holds that copyright does not grant a monopoly on particular expression; it protects the author only against copying. Plaintiff had not met his burden of proof. One can only speculate as to why Judge Leighton allowed the question to go to the jury rather than granting a directed verdict at the close of evidence.
Current Approaches to Expert Testimony
The Selle case was a landmark ruling on the doctrine of striking similarities, and it has been the subject of much legal writing. It is easy to criticize Parsons's testimony as legally inadequate, a fault attributable largely to the attorney who failed to prepare him. But Parsons's analysis is also musically inadequate. Unfortunately, it is typical of what one finds in plagiarism cases and might even be characterized as conventional. (Of course, some currently active expert witnesses do competent work, and criticism here is directed towards predominant but not universal practices.) Parsons can be faulted for taking a myopic view toward his task. He did not gather sufficient musical evidence to support his conclusions. Perhaps he did not understand his role sufficiently, and this too reflects poorly on the lawyer who called him to the stand without adequate preparation.
The expert witness has a responsibility to know his craft. Assuming that Parsons was a competent theorist, it is difficult to understand why he did not bring the full weight of his knowledge to bear on his analysis. He chose instead to present a facile and superficial account of similarities. His testimony is typical of plagiarism analyses in its reliance on counting identical notes. Because the outcome at trial will be determined by people without musical training, it is tempting to base the analysis on statistics rather than music theory. Lay jurors will find statistics an appealing substitute for aesthetics and music analysis. No doubt, the real difficulties of explaining theoretical principles to the uninitiated drive many experts to simplify their analyses, but they should not jettison their craft entirely. An expert can tailor his presentation of the evidence to suit the jury's level of understanding without basing his analysis on false principles. Yet typically, experts exclude essential musical factors from their analyses wholesale. They rarely discuss tonal function, or indeed any musical function, and consequently all musical events tend to be set out chronologically and accorded equal weight. Further, musical parameters are simplistically defined for the jury. For example, experts often define melody merely as a succession of pitches. This, of course, ignores all non-adjacent relationships, which is another common failing of courtroom analyses, and misleads the jury concerning very fundamental musical principles.
These predominant approaches to proving substantial similarities lead to the same unacceptable result: the analysis has the effect of replacing the listening process. In many cases, one can only conclude that this was the affirmative intent of the party presenting the analysis. But the only permissible purpose of an expert witness is to help the trier of fact. In a music plagiarism case, the trier of fact must judge musical similarities, which necessarily exist in sound and not on the printed page. Therefore, any analysis that does not help the trier of fact to listen should not be admitted under the rules of evidence. The fact that some percentage of notes corresponds is misleading. Its relevance is outweighed by its prejudicial effect, and the judge should disallow such testimony.[70] Unfortunately, a judge does not know that this kind of note counting will not pass for serious analysis among music theorists. The judge infers, because neither side informs him otherwise, that this is what music theorists do.
Here, musicians are at fault. The profession generally is not aware of what passes for music theory in court. Yet purported music experts have presented this superficial note-counting in lieu of analysis since the reported cases began describing their testimony. The courts have rightly concluded that this form of analysis, the only form known to the judiciary, has nothing to do with how music sounds and that it constitutes unreliable proof of copying. Of course, the court understands the problem only partially. Like many critics of music theory, the court seems to perceive listening and analysis as two unrelated activities. The court's only exposure to music theory, the testimony of experts, supports this perception. The court has drawn from this evidence the inevitable conclusion that theorists discover those aspects of music that cannot be heard and that lay people can be counted on to do the rest. Perhaps reflecting this belief, the court has established the "ordinary listener" test in part to deal with perceived inadequacies of music theory. Under this test, experts may analyze the music to show the existence or non-existence of copying, but they are precluded from testifying on the ultimate issue of misappropriation--whether the offending work has stolen the essence of the copied work. Instead, the jury assumes the role of "the reasonable man," as it does in many areas of law, to determine whether the copying is sufficiently serious to warrant legal remedies. By excluding expert testimony on this issue, the court ensures that these ordinary listeners do not have their aesthetic perceptions tainted by intellectual concerns, and that they reach their ultimate conclusion based on the music and not on the analysis. Indeed, on the ultimate issue, the court admonishes jurors to listen as they normally would, with untutored ears. Although the court's concerns may be grounded on a flawed understanding of music analysis, it has wisely devised ultimate tests of infringement that require jurors simply to listen, thus blunting the impact of improper analysis.
Why have experts favored this note-counting that masquerades as analysis when such superficial techniques can be readily rebutted by competent musicians? Perhaps it remains the analytical method of choice in court because it cannot be readily attacked by lawyers. Presently, writings on music plagiarism support a highly circumscribed view of music. Much of the misinformation can be traced to a legal treatise on music copyrights by Alfred Shafter written in the 1930s.[71] Shafter apparently had no musical training, evidenced by his thesis that music has only thirteen [sic] notes and that all pleasing combinations of these notes have long since been exhausted. He argued essentially, although not explicitly, that music is an inexpressive art with a stunted vocabulary. In Shafter's view, composers must inevitably engage in plagiarism and then devise clever ways to disguise their thefts. Shafter's treatise is replete with references to cunning plagiarists:
Clever infringers attempt to deceive composers by alterations and changes in their musical ideas, these disguises taking form, as the English Act says, of "colourable imitations." Colorable is another word for "camouflaged"; and a musical idea so treated is just as much an infringement as one taken openly. The difficulty of proving the theft does not lessen the liability of the thief. . . .
Much has been made of the fact that Brahms took the melody of the Westminster Chimes as the theme for his famous horn motif in his First Symphony. . . .
Olin Downes says that what Brahms changed is not the notes, but their rhythm. In the case of a copyrighted composition this change might be the colorable variation mentioned; but in the instance of music in the common domain, the copy is permissible. What is important in this respect is the fact that one may copy a melody by changing the rhythm--and still be infringing.[72]
Sigmund Spaeth provided another strong influence on the methodology of expert testimony. At about the same time as Shafter and in much the same vein, Spaeth dubbed himself the "tune detective" and performed music analysis for audiences as a kind of vaudeville stunt. He found plagiarism rampant. Spaeth appeared frequently as an expert witness in the 1930s, 40s, and 50s, and his brand of analysis seems to have set the standard for succeeding generations of experts.[73]
Shafter, and apparently Spaeth, believed that the value of experts lay in their ability to ferret out the devious ways in which composers disguised their thefts.[74] Never mind the ordinary listener, who may be fooled by the fact that the defendant's work sounds different than plaintiff's. This school of commentators seems to find composers at once too lazy to be original and yet masters of creative deception.[75] Music to them is not only an inexpressive art, but a devious one as well. Schenker, responding to earlier advocates of such views, railed against this naïve approach to music:
It can only be regarded as a ridiculous attempt at debasement and disparagement of the diminutions of the masters when a certain literature busies itself with finding "wandering melodies" in the foreground, maintaining that similarities exist where they do not, with drawing lines of historical connection in every direction, where none in fact exist, or with pointing out plagiarisms where none are to be found. The employment of comparable superficial methods in language and literature would call forth general laughter and head-shaking over the deplorable intellectual state of any such writers and teachers.[76]
Whatever credence one gives to Schenker's unapologetic opinions, he is surely correct in this instance insofar at it has relevance to the law. Shafter's theory of music does not comport with the experiences of listeners, regardless of their taste or training in music, and should be discarded on that ground alone. The public most conspicuously disavows the notion that musical expression has been exhausted most every time it purchases a new recording. A more astute legal commentator recently took aim at those who delight in discovering rampant plagiarism:
These self-styled music critics seem to envision a world full of composers endeavouring mightily to conceal acts of plagiarism, even going so far as to change all the notes.[77]
Shafter's unfortunate treatise and works perpetuating his views continue to thrive in legal scholarship because of the absence of scholarly criticism. Musicians have not bothered to rebut Shafter, probably because they have either not read his treatise or not considered it worthy of comment. But the simplicity of Shafter's misconceptions appeals to litigants, many of whom have no motivation to prove Shafter wrong. The litigants' only goal, quite understandably, is to win the trial. The pressure, then, is for the expert witness to omit the difficult and more relevant aspects of analysis, to emphasize "notes," and to quantify the shared vocabulary of "notes." The jury will grasp this watered down analysis, and the judge will admit it into evidence. In these circumstances, there seems little incentive to do more.
Musicians have a large stake in elevating this process. Any composer, whether cast as plaintiff or defendant, potentially faces unfounded claims or defenses, based on this pseudo analysis, that could divest him of his property rights. It is up to the music profession to develop accepted guidelines of forensic analysis so that competent expert witnesses can defend their methodologies and so that judges can distinguish the theorist from the charlatan.
Guidelines for Forensic Analysis
It lies beyond the scope of this article to set out a full regimen for the forensic analysis of plagiarism. That task has been undertaken elsewhere.[78] But this discussion must at least set forth reasonable indicia of a competent forensic analysis, more for the benefit of the court and parties who seek introduce such evidence than for music analysts, who may be presumed to understand the necessity of the approach set forth here. The criteria are derived primarily on musical grounds, but certain aspects of law argue for the inclusion of some techniques and a very cautious approach to others.
As a general proposition, analysis that explains the processes of composition and perception should be considered legally relevant while anecdotal and purely statistical data should not. The court should be presented with an analysis that employs a variety of analytical techniques, each confirming the others. An analyst who uses only one method of comparison presents a one-dimensional account of the music and might easily create a false impression for the trier of fact. Of course, some comparisons will yield more information than others, depending on the nature of the works analyzed. In a non-adversarial setting, opposing experts might agree on which methods would provide the greatest insight, but in court agreements on such fundamental issues are rare. The plaintiff points out similarities and the defendant stresses dissimilarities. Each chooses the comparisons that argue best for his position; each tends to present half of the picture. This is how the American judicial system works, and it would be pointless to argue here that the system should be changed. Music theory can function well within the current framework, provided that the trier of fact sees the whole picture. The system tends to fail when both sides present less than half or when one side presents something that does not belong in the picture. As the situation now stands, the court does not know what the total picture looks like. It can neither rule out extraneous evidence nor criticize an incomplete presentation.
A valid forensic analysis should begin with a thorough, discrete analysis of each work at issue without any attempt to compare the two. This requirement is fundamental. Music is comprised of relationships, and each aspect of the music must be examined in the context of the work in which it appears. Analysis necessarily entails segmentations and reductions. The process of segmentation and reduction provides the greatest opportunity to skew the analysis in the direction of the desired result, and improper segmentation supports some of the most egregious examples of poor courtroom analysis. Segmentations of each work, therefore, should be made with reference to criteria dictated by that individual work. The analyst should attempt to compare only segments that have relevance within the work from which they are extracted. Where the analyst allows the criteria of one work determine the segmentations of the other, he begins to examine something other than the music.
The analysis of each individual work should include a thorough delineation of that work's thematic vocabulary and formal structure. The expert should explore all functional relationships, including harmony and rhythm in isolation. Perhaps most critical, a hierarchical analysis of each work must be completed. The expert will find virtually no precedent for the admission of this evidence, and the lawyer seeking to introduce it can expect heated objections and a skeptical judge. But the law cries out for the information it presents. Among its many benefits, it separates idea from expression and originality from common musical function. When the judge comprehends the import of hierarchies in music, many of the problems outlined above will be near a solution. If a jury can be taught to hear middleground features, it will achieve the means to determine which similarities are substantial.
With a discrete analysis of each work in hand, the expert can begin the process of comparing one work to the other. Comparison will be limited to those segmentations and reductions already determined to be relevant. Traditionally though, experts have begun to compare works without prior analysis; they have confined their review to temporal comparisons of isolated phenomena and visual criteria, "where pitches and rhythms coincide," as Parsons testified. That process is haphazard and its results indefensible. Any child who has learned to read music can identify corresponding notes and connect them with arrows.
Assessing Similarities
A more comprehensive analytical approach should provide the means of separating meaningless correspondence of surface features from similarities with musical significance. Surface features will always contain coincidental similarities. If, in addition to sharing these surface features, two works assign the same function to those features, then the similarities begin to be perceptible. If the functional similarities also appear in similar context, episodic similarities may be apparent. Finally, if all of these similarities are strung together in a sustained and concerted fashion, then the lay listener may recognize the sounds of one work as derived from another.
Given the complex nature of music, similarities that lack complexity and depth should not earn the label "substantial."[79] The law must look to the nature of the art it examines in these cases and determine legal significance based on musical significance. Music does not exist in a set of pitches or static values, and an analysis of similar notes does not reveal the important relationships that control perception. Musical perception is a complex process; it deserves to be considered an intelligent process rather than a purely reflexive one. The lay ear processes the same data and connects the same relationships as that of the expert, but the lay listener generally does not understand the nature of the process or possess the means to articulate the experience. The expert witness should illuminate the process of listening for the lay trier of fact, and jurors should be encouraged to combine, rather than separate, the power of their ears and minds.
The principal attribute of similarities that deserve to be considered substantial is that they should be perceptible simultaneously by the ear and mind.[80] Arnstein v. Porter established a bifurcated approach. The expert could provide opinion testimony on the issue of copying, and the jury would have to determine misappropriation based on their own untutored perceptions. Bifurcation of this process by the court may have served a useful, analytical purpose; but like all analytical segmentations, the sum of the segments does not provide a complete answer.[81] The trier of fact must assimilate the data before making a final evaluation, but the courts' seriatim treatment of their bifurcated tests has hindered assimilation. The law has not successfully combined parts into a meaningful whole.[82]
In addition to the general proviso that substantial similarities must be simultaneously perceptible to the ear and mind, three separate and specific guidelines for determining substantial similarity are suggested to guide the court and expert witnesses. In order to reach a conclusion that substantial similarities exist, the trier of fact should find all three of the following conditions to be met:
(1) Plaintiff should be required in a hierarchical analysis to show similarities in the middleground. Function and context can best be determined at this level. The middleground accounts for larger-scale and more distant relationships that control how musical details are heard. Middleground aspects also guide the discovery of greater abstractions than foreground materials. Music cannot be substantially similar in foreground features alone, because similarities confined to foreground features are likely to be the result of idiomatic figurations or pure coincidence.[83] If only minor changes have been made to disguise an act of plagiarism, similarity of middleground will remain intact and support the plaintiff's argument.
(2) Plaintiff should be required to show similarities in the foreground. Because the middleground tends to reflect more abstract elements, similarities confined to the middleground may be unprotectable. Stylistic formulae, key relationships, rules of counterpoint and harmony, as well as other middleground aspects all possess a greater likelihood of similarity. The critical question for the trier of fact is whether the defendant realized, elaborated, or prolonged middleground similarities using the same foreground materials as the plaintiff. Only the foreground contains elements specific enough to corroborate middleground similarities and support a claim of infringement.
(3) Plaintiff should be required to show a nexus between specific foreground and middleground similarities. The random cumulation of disparate elements, some taken from foreground and some from middleground, does not suggest copying. Isolated and episodic similarities, no matter the quantity, do not support a claim of plagiarism any more than the use in prose of a similar vocabulary. Only the relationship between foreground and middleground similarities tends to show copying as opposed to coincidence. The nexus ties similarity of surface to similarity of function--the same means of expression employed to express the same thing.
Proof of striking similarities presents a particularly difficult problem. What degree of similarity disproves coincidence? Are any features of popular music so striking that their duplication could only be the result of copying? It seems that something more than an isolated figure or "common error" is needed for the expert to conclude, absent evidence of access, that the defendant copied. Rather, some quantity as well as quality of similarity must be present. The striking similarity doctrine poses great potential for abuse and it should be reserved for the most egregious takings. The expert should be reluctant to testify to striking similarities, particularly when dealing with popular music, without virtual and uninterrupted replication of a substantial portion of the work.
The Selle case illustrates the dangers inherent in the doctrine of striking similarities. Parsons went too far, drawing the conclusion of striking similarities on insufficient evidence, and could not adequately defend his position when faced with its implications on cross-examination. Of course he did not know with certainty whether the Bee Gees had copied Selle's song. Independent creation was not precluded. Although the songs exhibited real similarities, those similarities were not so striking that access could be inferred.
Conclusion
Music theorists called as expert witnesses must re-examine their role. To be helpful to the trier of fact they must teach the jury to listen to the music instead of scrutinizing the score for statistical anecdotes. In short, they should practice their craft first and worry about how to make it understandable second.
The judicial system that has abetted the problem will improve only when judges learn the nature of acceptable music analysis. Individual experts hired to advocate one party's position cannot assume the role of neutral educator to the court. The profession as a whole should add to its agenda the discussion and further study of courtroom analyses, and it should speak to the court regarding the qualification of experts and the indicia of relevant testimony. The profession's adoption of standards for forensic analysis will place a powerful tool in the hands of the more worthy party. It will not guarantee accurate results, but it will help to expose the true plagiarist, facilitate reasonable settlements, and seriously impede the prosecution of frivolous claims.
This endeavor by the profession would also redound to its own benefit in many ways. Having original compositions protected by a rational application of law is the obvious, direct benefit. In addition, however, the development of music forensics opens new avenues of inquiry. Explaining music and analysis in the rigorous and critical legal environment can only enhance our own understanding and appreciation of what we as music theorists do. The expert witness's role is, in the end, a profound pedagogical challenge, and what we learn in presenting music to the jury, a very receptive but untrained audience, may teach us to communicate more precisely and effectively with each other..
The court upheld the district court's judgement notwithstanding the verdict, that found defendant not liable for copyright infringement, despite a jury verdict to that effect. The plaintiff, the court found, did not establish a basis from which the jury could reasonably infer that defendant had access to his number.
The plaintiff made much of the fact that Maurice Gibb identified plaintiff's song as his own "How Deep is Your Love" when it was played for him at trial. Of course what Gibb heard at trial was not his performance of the Bee Gee's song, nor a performance of plaintiff's work, but rather the musical skeleton of plaintiff's song. His error confirms the obvious melodic similarities between the works but nothing as to his access to plaintiff's song.
This opinion suggests that no degree of musical similarity can overcome evidence of access as feeble as that presented in this case. Other courts and writers on copyright have criticized this view as potentially overly restrictive of the plaintiff's interests. What do you think?
Opinion by Judge Cudahy
The plaintiff, Ronald H. Selle, brought a suit against three brothers, Maurice, Robin and Barry Gibb, known collectively as the popular singing group, the Bee Gees, alleging that the Bee Gees, in their hit tune, "How Deep Is Your Love," had infringed the copyright of his song, "Let It End." The jury returned a verdict in plaintiff's favor on the issue of liability in a bifurcated trial. The district court, Judge George N. Leighton, granted the defendants' motion for judgment notwithstanding the verdict and, in the alternative, for a new trial. Selle v. Gibb, 567 F. Supp. 1173 (N.D. Ill. 1983). We affirm the grant of the motion for judgment notwithstanding the verdict.
I
Selle composed his song, "Let It End," in one day in the fall of 1975 and obtained a copyright for it on November 17, 1975. He played his song with his small band two or three times in the Chicago area and sent a tape and lead sheet of the music to eleven music recording and publishing companies. Eight of the companies returned the materials to Selle; three did not respond. This was the extent of the public dissemination of Selle's song.1 Selle first became aware of the Bee Gees' song, "How Deep Is Your Love," in May 1978 and thought that he recognized the music as his own, although the lyrics were different. He also saw the movie, "Saturday Night Fever," the sound track of which features the song "How Deep Is Your Love," and again recognized the music. He subsequently sued the three Gibb brothers; Paramount Pictures Corporation, which made and distributed the movie; and Phonodisc, Inc., now known as Polygram Distribution, Inc., which made and distributed the cassette tape of "How Deep Is Your Love."
The Bee Gees are internationally known performers and creators of popular music. They have composed more than 160 songs; their sheet music, records and tapes have been distributed worldwide, some of the albums selling more than 30 million copies. The Bee Gees, however, do not themselves read or write music. In composing a song, their practice was to tape a tune, which members of their staff would later transcribe and reduce to a form suitable for copyrighting, sale and performance by both the Bee Gees and others.
In addition to their own testimony at trial, the Bee Gees presented testimony by their manager, Dick Ashby, and two musicians, Albhy Galuten and Blue Weaver, who were on the Bee Gees' staff at the time "How Deep Is Your Love" was composed. These witnesses described in detail how, in January 1977, the Bee Gees and several members of their staff went to a recording studio in the Chateau d'Herouville about 25 miles northwest of Paris. There the group composed at least six new songs and mixed a live album. Barry Gibb's testimony included a detailed explanation of a work tape which was introduced into evidence and played in court. This tape preserves the actual process of creation during which the brothers, and particularly Barry, created the tune of the accused song while Weaver, a keyboard player, played the tune which was hummed or sung by the brothers. Although the tape does not seem to preserve the very beginning of the process of creation, it does depict the process by which ideas, notes, lyrics and bits of the tune were gradually put together.
Following completion of this work tape, a demo tape was made. The work tape, demo tape and a vocal-piano version taken from the demo tape are all in the key of E flat. Lead sheet music, dated March 6, 1977, is in the key of E. On March 7, 1977, a lead sheet of "How Deep Is Your Love" was filed for issuance of a United States copyright, and in November 1977, a piano-vocal arrangement was filed in the Copyright Office.
The only expert witness to testify at trial was Arrand Parsons, a professor of music at Northwestern University who has had extensive professional experience primarily in classical music. He has been a program annotator for the Chicago Symphony Orchestra and the New Orleans Symphony Orchestra and has authored works about musical theory. Prior to this case, however, he had never made a comparative analysis of two popular songs. Dr. Parsons testified on the basis of several charts comparing the musical notes of each song and a comparative recording prepared under his direction.
According to Dr. Parsons' testimony, the first eight bars of each song (Theme A) have twenty-four of thirty-four notes in plaintiff's composition and twenty-four of forty notes in defendants' composition which are identical in pitch and symmetrical position. Of thirty-five rhythmic impulses in plaintiff's composition and forty in defendants', thirty are identical. In the last four bars of both songs (Theme B), fourteen notes in each are identical in pitch, and eleven of the fourteen rhythmic impulses are identical. Both Theme A and Theme B appear in the same position in each song but with different intervening material.
Dr. Parsons testified that, in his opinion, "the two songs had such striking similarities that they could not have been written independent of one another." Tr. 202. He also testified that he did not know of two songs by different composers "that contain as many striking similarities" as do the two songs at issue here. However, on several occasions, he declined to say that the similarities could only have resulted from copying.
Following presentation of the case, the jury returned a verdict for the plaintiff on the issue of liability, the only question presented to the jury. Judge Leighton, however, granted the defendants' motion for judgment notwithstanding the verdict and, in the alternative, for a new trial. He relied primarily on the plaintiff's inability to demonstrate that the defendants had access to the plaintiff's song, without which a claim of copyright infringement could not prevail regardless how similar the two compositions are. Further, the plaintiff failed to contradict or refute the testimony of the defendants and their witnesses describing the independent creation process of "How Deep Is Your Love." Finally, Judge Leighton concluded that "the inferences on which plaintiff relies is not a logical, permissible deduction from proof of 'striking similarity' or substantial similarity; it is 'at war with the undisputed facts,' and it is inconsistent with the proof of nonaccess to plaintiff's song by the Bee Gees at the time in question." 567 F. Supp. at 1183 (citations omitted).
II
Both we and the district court must be reluctant to remove an issue from the purview of the jury on either a directed verdict or a judgment notwithstanding the verdict. Nonetheless, we have a duty to determine whether there is sufficient evidence to support the position of the nonmoving party, in this case, the plaintiff. The standards applicable to a motion for judgment notwithstanding the verdict and to a directed verdict are, of course, the same. All the evidence, taken as a whole, must be viewed in the light most favorable to the nonmoving party. This evidence must provide a sufficient basis from which the jury could have reasonably reached a verdict without speculation or drawing unreasonable inferences which conflict with the undisputed facts. Brady v. Southern Railway, 320 U.S. 476, 480, 88 L. Ed. 239, 64 S. Ct. 232 (1943); United States v. An Article of Device, 731 F.2d 1253, 1257 (7th Cir. 1984); Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir. 1980); Hohmann v. Packard Instrument Co., 471 F.2d 815, 819 (7th Cir. 1973).
It is, of course, not relevant that, in this case, the trial court denied defendants' motion for a directed verdict and submitted the issue to the jury. It is generally more efficient to proceed in this fashion, so that, in the event the reviewing court reverses, the entire case will not have to be retried. Mattivi v. South African Marine Corp., 618 F.2d 163, 166 (2d Cir. 1980). Since we affirm the district court's grant of a judgment notwithstanding the verdict, it is not necessary to consider either the grant of the motion, in the alternative, for a new trial or the defendants' cross-appeal on the district court's denial of summary judgment. We note, however, that the cross-appeal with respect to the summary judgment motion is inappropriate and redundant since the issues it raised were incorporated in the motion for judgment notwithstanding the verdict. The cross-appeal may be little more than a device to win an opportunity to file the last brief or to argue the evidence of witnesses not presented at trial who furnished summary judgment affidavits -- and is a procedure not to be encouraged.
III
Selle's primary contention on this appeal is that the district court misunderstood the theory of proof of copyright infringement on which he based his claim. Under this theory, copyright infringement can be demonstrated when, even in the absence of any direct evidence of access, the two pieces in question are so strikingly similar that access can be inferred from such similarity alone. Selle argues that the testimony of his expert witness, Dr. Parsons, was sufficient evidence of such striking similarity that it was permissible for the jury, even in the absence of any other evidence concerning access, to infer that the Bee Gees had access to plaintiff's song and indeed copied it.
In establishing a claim of copyright infringement of a musical composition, the plaintiff must prove (1) ownership of the copyright in the complaining work; (2) originality of the work; (3) copying of the work by the defendant, and (4) a substantial degree of similarity between the two works. See Sherman, Musical Copyright Infringement: The Requirement of Substantial Similarity. Copyright Law Symposium, Number 92, American Society of Composers, Authors and Publishers 81-82. Columbia University Press (1977) [hereinafter "Sherman, Musical Copyright Infringement"]. The only element which is at issue in this appeal is proof of copying; the first two elements are essentially conceded, while the fourth (substantial similarity) is, at least in these circumstances, closely related to the third element under plaintiff's theory of the case.
Proof of copying is crucial to any claim of copyright infringement because no matter how similar the two works may be (even to the point of identity), if the defendant did not copy the accused work, there is no infringement. Arnstein v. Edward B. Marks Music Corp., 82 F.2d 275 (2d Cir.), motion to set aside decree denied, 86 F.2d 715 (2d Cir. 1936). However, because direct evidence of copying is rarely available, the plaintiff can rely upon circumstantial evidence to prove this essential element, and the most important component of this sort of circumstantial evidence is proof of access. See generally 3 Nimmer, Copyright § 13.02 at 13-9 (1983) [hereinafter "Nimmer, Copyright"]. The plaintiff may be able to introduce direct evidence of access when, for example, the work was sent directly to the defendant (whether a musician or a publishing company) or a close associate of the defendant. On the other hand, the plaintiff may be able to establish a reasonable possibility of access when, for example, the complaining work has been widely disseminated to the public. See, e.g., Abkco Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 998 (2d Cir. 1983) (finding of access based on wide dissemination); Sherman, Musical Copyright Infringement, at 82.
If, however, the plaintiff does not have direct evidence of access, then an inference of access may still be established circumstantially by proof of similarity which is so striking that the possibilities of independent creation, coincidence and prior common source are, as a practical matter precluded. If the plaintiff presents evidence of striking similarity sufficient to raise an inference of access, then copying is presumably proved simultaneously, although the fourth element (substantial similarity) still requires proof that the defendant copied a substantial amount of the complaining work. The theory which Selle attempts to apply to this case is based on proof of copying by circumstantial proof of access established by striking similarity between the two works.
One difficulty with plaintiff's theory is that no matter how great the similarity between the two works, it is not their similarity per se which establishes access; rather, their similarity tends to prove access in light of the nature of the works, the particular musical genre involved and other circumstantial evidence of access. In other words, striking similarity is just one piece of circumstantial evidence tending to show access and must not be considered in isolation; it must be considered together with other types of circumstantial evidence relating to access.
As a threshold matter, therefore, it would appear that there must be at least some other evidence which would establish a reasonable possibility that the complaining work was available to the alleged infringer. As noted, two works may be identical in every detail, but, if the alleged infringer created the accused work independently or both works were copied from a common source in the public domain, then there is no infringement. Therefore, if the plaintiff admits to having kept his or her creation under lock and key, it would seem logically impossible to infer access through striking similarity. Thus, although it has frequently been written that striking similarity alone can establish access, the decided cases suggest that this circumstance would be most unusual. The plaintiff must always present sufficient evidence to support a reasonable possibility of access because the jury cannot draw an inference of access based upon speculation and conjecture alone.
For example, in Twentieth Century-Fox Film Corp. v. Dieckhaus, 153 F.2d 893 (8th Cir.), cert. denied, 329 U.S. 716, 91 L. Ed. 621, 67 S. Ct. 46, 71 U.S.P.Q. (BNA) 328 (1946), the court reversed a finding of infringement based solely on the similarities between plaintiff's book and defendant's film. The court stated that the plaintiff herself presented no evidence that the defendant had had access to her book, and the only people to whom the plaintiff had given a copy of her book testified that they had not given it to the defendant. While the court also concluded that the similarities between the book and the film were not that significant, the result turned on the fact that "[t]he oral and documentary evidence in the record . . . establishes the fact that the defendant had no access to plaintiff's book unless the law of plagiarism permits the court to draw an inference contrary to such proof from its finding of similarities on comparison of the book with the picture." Id. at 897. Thus, although proof of striking similarity may permit an inference of access, the plaintiff must still meet some minimum threshold of proof which demonstrates that the inference of access is reasonable.
The greatest difficulty perhaps arises when the plaintiff cannot demonstrate any direct link between the complaining work and the defendant but the work has been so widely disseminated that it is not unreasonable to infer that the defendant might have had access to it. In Cholvin v. B. & F. Music Co., 253 F.2d 102 (7th Cir. 1958), the plaintiffs' work had been distributed in 2000 professional copies of sheet music and four recordings, of which 200,000 records were sold, and it had been performed on several nationwide broadcasts. The court held that, in light of this circumstantial evidence, it was reasonable to infer, in combination with similarities between the two pieces, that there had been an infringement. In Abkco Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 997-99 (2d Cir. 1983), the court found that there had been a copyright infringement based on a theory of subconscious copying. The complaining work, "He's So Fine," had been the most popular song in the United States for five weeks and among the thirty top hits in England for seven weeks during the year in which George Harrison composed "My Sweet Lord," the infringing song. This evidence, in addition to Harrison's own admission that the two songs were "strikingly similar," supported the finding of infringement. On the other hand, in Jewel Music Publishing Co. v. Leo Feist, Inc., 62 F. Supp. 596, 598 (S.D.N.Y. 1945), almost 10,000 copies of the complaining song had been distributed or sold and the music had also been broadcast on national performances. The court still concluded that the showing of access was insufficient, in combination with the other evidence, to support a reasonable inference of access.
The possibility of access in the present case is not as remote as that in Dieckhaus because neither side elicited testimony from the individuals (primarily employees of the publishing companies) to whom the plaintiff had distributed copies of his song. Such evidence might have conclusively disproved access. On the other hand, Selle's song certainly did not achieve the extent of public dissemination existing in Cholvin, Jewel Music Publishing Co., or Harrisongs Music, and there was also no evidence that any of the defendants or their associates were in Chicago on the two or three occasions when the plaintiff played his song publicly. It is not necessary for us, given the facts of this case, to determine the number of copies which must be publicly distributed to raise a reasonable inference of access. Nevertheless, in this case, the availability of Selle's song, as shown by the evidence, was virtually de minimis.
In granting the defendants' motion for judgment notwithstanding the verdict, Judge Leighton relied primarily on the plaintiff's failure to adduce any evidence of access and stated that an inference of access may not be based on mere conjecture, speculation or a bare possibility of access. 567 F. Supp. at 1181. Thus, in Testa v. Janssen, 492 F. Supp. 198, 202-03 (W.D. Pa. 1980), the court stated that "to support a finding of access, plaintiffs' evidence must extend beyond mere speculation or conjecture. And, while circumstantial evidence is sufficient to establish access, a defendant's opportunity to view the copyrighted work must exist by a reasonable possibility -- not a bare possibility" (citation omitted). See also Ferguson v. National Broadcasting Co., 584 F.2d 111, 113 (5th Cir. 1978); Scott v. Paramount Pictures Corp., 449 F. Supp. 518, 520 (D.D.C. 1978), aff'd mem., 607 F.2d 494 (D.C. Cir. 1979), cert. denied, 449 U.S. 849, 66 L. Ed. 2d 60, 101 S. Ct. 137 (1980).2
Judge Leighton thus based his decision on what he characterized as the plaintiff's inability to raise more than speculation that the Bee Gees had access to his song. The extensive testimony of the defendants and their witnesses describing the creation process went essentially uncontradicted, and there was no attempt even to impeach their credibility. Judge Leighton further relied on the principle that the testimony of credible witnesses concerning a matter within their knowledge cannot be rejected without some impeachment, contradiction or inconsistency with other evidence on the particular point at issue. Dieckhaus, supra, 153 F.2d at 899-900. See also Chesapeake and Ohio Railroad Co. v. Martin, 283 U.S. 209, 216, 51 S. Ct. 453, 75 L. Ed. 2d 983 (1931). Judge Leighton's conclusions that there was no more than a bare possibility that the defendants could have had access to Selle's song and that this was an insufficient basis from which the jury could have reasonably inferred the existence of access seem correct. The plaintiff has failed to meet even the minimum threshold of proof of the possibility of access and, as Judge Leighton has stated, an inference of access would thus seem to be "at war with the undisputed facts." 567 F. Supp. at 1183.
IV
The grant of the motion for judgment notwithstanding the verdict might, if we were so minded, be affirmed on the basis of the preceding analysis of the plaintiff's inability to establish a reasonable inference of access. This decision is also supported by a more traditional analysis of proof of access based only on the proof of "striking similarity" between the two compositions. The plaintiff relies almost exclusively on the testimony of his expert witness, Dr. Parsons, that the two pieces were, in fact, "strikingly similar."3 Yet formulating a meaningful definition of "striking similarity" is no simple task, and the term is often used in a conclusory or circular fashion.
Sherman defines "striking similarity" as a term of art signifying "that degree of similarity as will permit an inference of copying even in the absence of proof of access. . . ." Sherman, Musical Copyright Infringement, at 84 n.15. Nimmer states that, absent proof of access, "the similarities must be so striking as to preclude the possibility that the defendant independently arrived at the same result." Nimmer, Copyright, at 13-14.4
"Striking similarity" is not merely a function of the number of identical notes that appear in both compositions. Cf. Wilkie v. Santly Brothers, Inc., 13 F. Supp. 136 (S.D.N.Y. 1935), aff'd, 91 F.2d 978 (2d Cir.), cert. denied, 302 U.S. 735, 82 L. Ed. 568, 58 S. Ct. 120 (1937), aff'd on reargument, 94 F.2d 1023 (2d Cir. 1938) (comparison of note structure demonstrates striking similarity), and Jewel Music Publishing Co. v. Leo Feist, Inc., 62 F. Supp. 596 (S.D.N.Y. 1945) (in light of plaintiff's inability to establish access, degree of similarity despite identity or near identity of several bars was not striking). An important factor in analyzing the degree of similarity of two compositions is the uniqueness of the sections which are asserted to be similar.
If the complaining work contains an unexpected departure from the normal metric structure or if the complaining work includes what appears to be an error and the accused work repeats the unexpected element or the error, then it is more likely that there is some connection between the pieces. See, e.g., Nordstrom v. Radio Corporation of America, 251 F. Supp. 41, 42 (D. Colo. 1965). If the similar sections are particularly intricate, then again it would seem more likely that the compositions are related. Finally, some dissimilarities may be particularly suspicious. See, e.g., Meier Co. v. Albany Novelty Manufacturing Co., 236 F.2d 144, 146 (2d Cir. 1956) (inversion and substitution of certain words in a catalogue in a "crude effort to give the appearance of dissimilarity" are themselves evidence of copying); Blume v. Spear, 30 F. 629, 631 (S.D.N.Y. 1887) (variations in infringing song were placed so as to indicate deliberate copying); Sherman, Musical Copyright Infringement, at 84-88. While some of these concepts are borrowed from literary copyright analysis, they would seem equally applicable to an analysis of music.
The judicially formulated definition of "striking similarity" states that "plaintiffs must demonstrate that 'such similarities are of a kind that can only be explained by copying, rather than by coincidence, independent creation, or prior common source.'" Testa v. Janssen, 492 F. Supp. 198, 203 (W.D. Pa. 1980) (quoting Stratchborneo v. Arc Music Corp., 357 F. Supp. 1393, 1403 (S.D.N.Y. 1973)). See also Scott v. WKJG, Inc., 376 F.2d 467, 469 (7th Cir. 1967) (the similarities must be "so striking and of such nature as to preclude the possibility of coincidence, accident or independent creation."); Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946) (same); Scott v. Paramount Pictures Corp., 449 F. Supp. 518, 520 (D.D.C. 1978) (same). Sherman adds:
To prove that certain similarities are "striking," plaintiff must show that they are the sort of similarities that cannot satisfactorily be accounted for by a theory of coincidence, independent creation, prior common source, or any theory other than that of copying. Striking similarity is an extremely technical issue -- one with which, understandably, experts are best equipped to deal.
Sherman, Musical Copyright Infringement, at 96.
Finally, the similarities should appear in a sufficiently unique or complex context as to make it unlikely that both pieces were copied from a prior common source, Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir.), cert. denied, 298 U.S. 669, 80 L. Ed. 1392, 56 S. Ct. 835 (1936), or that the defendant was able to compose the accused work as a matter of independent creation, Nichols v. Universal Pictures Corp., 45 F.2d 119, 122 (2d Cir. 1930), cert. denied, 282 U.S. 902, 75 L. Ed. 795, 51 S. Ct. 216 (1931). See also Darrell v. Joe Morris Music Co., 113 F.2d 80 (2d Cir. 1940) ("simple, trite themes . . . are likely to recur spontaneously . . . and [only few] . . . suit the infantile demands of the popular ear"); Arnstein v. Edward B. Marks Music Corp., 82 F.2d 275, 277 (2d Cir. 1936). Cf. Abkco Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 998 (2d Cir. 1983) (finding of a "highly unique pattern" makes copying more likely). With these principles in mind, we turn now to an analysis of the evidence of "striking similarity" presented by the plaintiff.
As noted, the plaintiff relies almost entirely on the testimony of his expert witness, Dr. Arrand Parsons. The defendants did not introduce any expert testimony, apparently because they did not think Parsons' testimony needed to be refuted. Defendants are perhaps to some degree correct in asserting that Parsons, although eminently qualified in the field of classical music theory, was not equally qualified to analyze popular music tunes. More significantly, however, although Parsons used the magic formula, "striking similarity," he only ruled out the possibility of independent creation; he did not state that the similarities could only be the result of copying. In order for proof of "striking similarity" to establish a reasonable inference of access, especially in a case such as this one in which the direct proof of access is so minimal, the plaintiff must show that the similarity is of a type which will preclude any explanation other than that of copying.
In addition, to bolster the expert's conclusion that independent creation was not possible, there should be some testimony or other evidence of the relative complexity or uniqueness of the two compositions. Dr. Parsons' testimony did not refer to this aspect of the compositions and, in a field such as that of popular music in which all songs are relatively short and tend to build on or repeat a basic theme, such testimony would seem to be particularly necessary. We agree with the Sixth Circuit which explained that "we do not think the affidavit of [the expert witness], stating in conclusory terms that 'it is extremely unlikely that one set [of architectural plans] could have been prepared without access to the other set,' can fill the gap which is created by the absence of any direct evidence of access." Scholz Homes, Inc. v. Maddox, 379 F.2d 84, 86 (6th Cir. 1967).
To illustrate this deficiency more concretely, we refer to a cassette tape, Plaintiff's Exhibit 27, and the accompanying chart, Plaintiff's Exhibit 26. These exhibits were prepared by the defendants but introduced into evidence by the plaintiff. The tape has recorded on it segments of both themes from both the Selle and the Gibb songs interspersed with segments of other compositions as diverse as "Footsteps," "From Me To You" (a Lennon-McCartney piece), Beethoven's 5th Symphony, "Funny Talk," "Play Down," and "I'd Like To Leave If I May" (the last two being earlier compositions by Barry Gibb).5 There are at least superficial similarities among these segments, when played on the same musical instrument, and the plaintiff failed to elicit any testimony from his expert witness about this exhibit which compared the Selle and the Gibb songs to other pieces of contemporary, popular music. These circumstances indicate that the plaintiff failed to sustain his burden of proof on the issue of "striking similarity" in its legal sense -- that is, similarity which reasonably precludes the possibility of any explanation other than that of copying.
The plaintiff's expert witness does not seem to have addressed any issues relating to the possibility of prior common source in both widely disseminated popular songs and the defendants' own compositions. At oral argument, plaintiff's attorney stated that the burden of proving common source should b