Selle v. Gibb

Last updated

Selle v. Gibb
Seal of the United States Court of Appeals for the Seventh Circuit.svg
Court United States Court of Appeals for the Seventh Circuit
Full case nameRonald H. Selle v. Barry Gibb, Robin Gibb, and Maurice Gibb, A/K/A The Bee Gees, Brothers Gibb B.V., Phonodisc, Inc.(Polygram Distribution, Inc.,) and Paramount Pictures Corp.
Argued13 April 1984
Decided23 July 1984
Citation741 F.2d 896
Court membership
Judges sitting Wood and Cudahy, Circuit Judges, and Nichols, Senior Circuit Judge
Case opinions
The doctrine of striking similarities is not enough in the absence of proof of access. Evidence of access must extend beyond mere speculation.
Keywords
doctrine of striking similarities

Selle v. Gibb, 741 F.2d 896 (7th Cir. 1984) was a landmark ruling on the doctrine of striking similarities. The U.S. Court of Appeals for the Seventh Circuit ruled that while copying must be proved by access and substantial similarity, where evidence of access does not exist, striking similarities may raise an inference of copying by showing that the work could not have been the result of independent creation, coincidence, or common source. Striking similarity alone is not enough to infer access. The similarity must preclude independent creation in order to infer access. [1] [2] [3]

Contents

Background

In the fall of 1975, Ronald H. Selle (born August 7, 1946), a Hazel Crest, Illinois resident and at that time, a Chicago clothing salesman for Carson, Pierie and Scott and part-time musician, wrote a song called "Let it End." Selle holds a master's degree in Music Education from the University of Illinois. To support his wife Joanne and their daughter and two sons, he supplemented his income with a three-piece band that performed engagements around the Chicago area, worked as a church choir director, and occasionally wrote religious and secular music.

Selle claimed the melody for "Let it End" came to his mind while getting ready for work one morning. He wrote it down and developed it further while at work, then came home from work later that day, sitting at a piano and completing it by the end of the night. He was issued a copyright for the completed song on November 17, 1975, by the U.S. Copyright Office. Shortly afterwards, Selle and his fellow musicians recorded the song in a studio setting, with Selle singing the lyrics.

Within a year after recording the song (the recording was played at trial), Selle mailed it to fourteen music publishers. None of them responded, with all but three returning his material.

In May 1978, while working in his yard, Selle heard his teenaged next-door neighbor playing the Bee Gees song "How Deep Is Your Love" rather loudly on a cassette player and asked him what the song was, having heard it for the first time. Selle recognized the song as his melody but with different lyrics. After learning it was featured in the movie Saturday Night Fever , Selle examined the cassette jacket for the soundtrack, seeing that the songwriting credit was for the Bee Gees. Later, Selle went and saw the movie, where he again heard the song and recognized the melody as his own.

Selle filed suit in U.S. District Court for the Northern District of Illinois, accusing Barry, Robin & Maurice Gibb, their record label distributor Polygram, and Paramount Pictures of misappropriation and copyright infringement. [4]

District Court trial

Selle requested a jury trial, which began on February 20, 1983, in the U.S. District Court for Northern Illinois, the Honorable Judge George N. Leighton presiding. In opening statements Selle's attorney, Allen Engerman, established that Selle's case was based on the doctrine of striking similarities. [5] The Bee Gees' defense attorney established their case was based on lack of access and the fact that similarities alone, without proof of access, could not prove copying. The defense would show that any similarities were coincidental and were due to the limited note range in popular music and were not the result of copying. [6]

On direct examination, Selle testified as to how he wrote his song, made the demo tape and wrote the sheet music, copyrighted it, and then sent it off to fourteen music publishers. He explained that eleven publishers returned his materials unopened, while three publishers never replied. [7] As his evidence that the Bee Gees had infringed on his copyright, Selle offered two exhibits that showed a comparison of the eight opening and eight closing bars of his song,"Let it End," to the opening and closing bars for "How Deep Is Your Love." [8]

On cross-examination, the Bee Gees attorney, Robert Osterberg, presented Selle with several Bee Gees songs that predated his that also contained those same eight bars of melody, as well as the Beatles song, "From Me to You." Selle admitted that there were some similarities, primarily in melody rather than rhythm, between his song and "From Me To You" and the earlier Bee Gee compositions. [9] [10]

Selle offered an expert witness, Arrand Parsons. Parsons had a background in classical music. However, under cross-examination, Parsons admitted that he did not know whether or not there is a great deal of similarity between songs in the popular music genre. He could not testify that the similarities between "Let it End," and "How Deep is Your Love," could only have been caused by copying and not by independent creation or coincidence or prior common source. [11]

The Bee Gees entered a work tape and lead sheet and a finished demo tape into evidence. Barry Gibb and the Bee Gees' keyboard player, Blue Weaver, as well as manager Dick Ashby, and record producer, Albhy Galuten, gave testimony on the process the Bee Gees used to come up with "How Deep is Your Love." Barry Gibb explained that he and his brothers could not read or write music, but employed others skilled for this purpose. Thus, they worked out songs using a piano and a process of trial and error as they did in creating "How Deep is Your Love." Their staff then translated the draft to musical notes. Maurice and Robin Gibb corroborated their testimony. They also testified that the brothers and their staff had gone to the Château d'Hérouville, a recording studio in France, in January 1977. There, they had composed six songs, using their usual process, for the soundtrack to Saturday Night Fever, as well as mixed a live album. Selle did not challenge their testimony, nor the evidence the Bee Gees offered. The defense rested after this testimony and did not call their expert witnesses to the stand. [12]

The trial lasted four days. On the fifth day, the jury returned a verdict for the plaintiff. The jury foreman, Earl Wiler later explained that the Bee Gees had not offered any evidence or testimony to counter the plaintiff's expert witness, Arrand Parsons. Another juror said that, "If we made a mistake, they can afford it." [13]

The Bee Gees attorney immediately moved for a judgment notwithstanding the verdict, arguing that Selle had not met his burden of proof. On April 22, 1983, Judge Leighton granted the motion. [14] In reviewing the record, Judge Leighton wrote in his decision, "the verdict in favor of the plaintiff was against the manifest weight of the evidence and its return by the jury represents a miscarriage of justice." [15]

Appeals Court findings

Selle appealed Judge Leighton's ruling to the Seventh Circuit Court of Appeals. He claimed that the District Court had misunderstood his theory of proof which was that striking similarities alone were enough to infer access and offered supporting case law. [16] The case was argued April 13, 1984 and the decision rendered July 23, 1984.

In affirming Judge Leighton's ruling, Judge Richard Dickson Cudahy wrote in the opinion that while, "It is often written that striking similarities 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." Cudahy cited 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). He concluded that ". . .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 Court said, "Selle did not establish a basis from which the jury could reasonably infer that the Bee Gees had access to his song and to meet the burden of proving "striking similarity" between the two compositions." Because Selle could not do this, the Court affirmed the district court's ruling overturning the jury verdict. [17]

See also

Related Research Articles

In United States federal law, the Daubert standard is a rule of evidence regarding the admissibility of expert witness testimony. A party may raise a Daubert motion, a special motion in limine raised before or during trial, to exclude the presentation of unqualified evidence to the jury. The Daubert trilogy are the three United States Supreme Court cases that articulated the Daubert standard:

<i>In re Aimster Copyright Litigation</i>

In re Aimster Copyright Litigation, 334 F.3d 643, was a case in which the United States Court of Appeals for the Seventh Circuit addressed copyright infringement claims brought against Aimster, concluding that a preliminary injunction against the file-sharing service was appropriate because the copyright owners were likely to prevail on their claims of contributory infringement, and that the services could have non-infringing users was insufficient reason to reverse the district court's decision. The appellate court also noted that the defendant could have limited the quantity of the infringements if it had eliminated an encryption system feature, and if it had monitored the use of its systems. This made it so that the defense did not fall within the safe harbor of 17 U.S.C. § 512(i). and could not be used as an excuse to not know about the infringement. In addition, the court decided that the harm done to the plaintiff was irreparable and outweighed any harm to the defendant created by the injunction.

<i>Berlin v. E.C. Publications, Inc.</i> Casos Legales America

Berlin v. E.C. Publications, Inc., 329 F.2d 541, was an important United States copyright law case decided by the United States Court of Appeals for the Second Circuit in 1964 involving the right to parody a well-known melody.

<i>Falsus in uno, falsus in omnibus</i> Lati maxim

Falsus in uno, falsus in omnibus is a Latin maxim meaning "false in one thing, false in everything". At common law, it is the legal principle that a witness who falsely testifies about one matter is not credible to testify about any matter. While many common law jurisdictions reject categorical application of the rule, the doctrine survives in some American courts.

<span class="mw-page-title-main">How Deep Is Your Love (Bee Gees song)</span> 1977 single by Bee Gees

"How Deep Is Your Love" is a pop ballad written and recorded by the Bee Gees in 1977 and released as a single in September of that year. It was ultimately used as part of the soundtrack to the film Saturday Night Fever. It was a number-three hit in the United Kingdom and Australia. In the United States, it topped the Billboard Hot 100 on 25 December 1977 and stayed in the Top 10 for 17 weeks. It spent six weeks atop the US adult contemporary chart. It is listed at No. 27 on Billboard's All Time Top 100. Alongside "Stayin' Alive" and "Night Fever", it is one of the group's three tracks on the list. The song was covered by Take That for their 1996 Greatest Hits album, reaching No. 1 on the UK Singles Chart for three weeks.

Dennis Jacobs is a senior United States circuit judge of the United States Court of Appeals for the Second Circuit.

Capitol Records, Inc. v. Thomas-Rasset was the first file-sharing copyright infringement lawsuit in the United States brought by major record labels to be tried before a jury. The defendant, Jammie Thomas-Rasset, was found liable to the plaintiff record company for making 24 songs available to the public for free on the Kazaa file sharing service and ordered to pay $220,000.

United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966), was a case in which the Supreme Court of the United States held that in order for a United States district court to have pendent jurisdiction over a state-law cause of action, state and federal claims must arise from the same "common nucleus of operative fact" and the plaintiff must expect to try them all at once. This case was decided before the existence of the current supplemental jurisdiction statute, 28 U.S.C. § 1367.

Music plagiarism is the use or close imitation of another author's music while representing it as one's own original work. Plagiarism in music now occurs in two contexts—with a musical idea or sampling. For a legal history of the latter see sampling.

<span class="mw-page-title-main">Substantial similarity</span> Standard in US copyright law

Substantial similarity, in US copyright law, is the standard used to determine whether a defendant has infringed the reproduction right of a copyright. The standard arises out of the recognition that the exclusive right to make copies of a work would be meaningless if copyright infringement were limited to making only exact and complete reproductions of a work. Many courts also use "substantial similarity" in place of "probative" or "striking similarity" to describe the level of similarity necessary to prove that copying has occurred. A number of tests have been devised by courts to determine substantial similarity. They may rely on expert or lay observation or both and may subjectively judge the feel of a work or critically analyze its elements.

Disparate treatment is one kind of unlawful discrimination in US labor law. In the United States, it means unequal behavior toward someone because of a protected characteristic under Title VII of the United States Civil Rights Act. This contrasts with disparate impact, where an employer applies a neutral rule that treats everyone equally in form, but has a disadvantageous effect on some people of a protected characteristic compared to others.

In the case of Sony BMG Music Entertainment et al. v. Tenenbaum, record label Sony BMG, along with Warner Bros. Records, Atlantic Records, Arista Records, and UMG Recordings, accused Joel Tenenbaum of illegally downloading and sharing files in violation of U.S. copyright law. It was only the second file-sharing case to go to verdict in the Recording Industry Association of America's (RIAA) anti-downloading litigation campaign. After the judge entered a finding of liability, a jury assessed damages of $675,000, which the judge reduced to $67,500 on constitutional grounds, rather than through remittitur.

Playboy Enterprises, Inc. v. Starware Publishing Corp. 900 F.Supp. 433 was a case heard before the United States District Court for the Southern District of Florida in May 1995. The case revolved around the subject of copyright infringement and exclusive rights in copyrighted works. Plaintiff Playboy Enterprises filed a motion for partial summary judgment of liability of copyright infringement against defendant Starware Publishing Corporation. Specifically, Playboy Enterprises ("PEI") argued that Starware's distribution of 53 of Playboy's images, taken from an online bulletin board, and then sold on a CD-ROM, infringed upon PEI's copyrights. The case affirmed that it was copyright infringement, granting Playboy Enterprises the partial summary judgment. Most importantly, the case established that "The copyright owner need not prove knowledge or intent on the part of the defendant to establish liability for direct copyright infringement."

<i>Roth Greeting Cards v. United Card Co.</i>

Roth Greeting Cards v. United Card Co., 429 F.2d 1106, was a Ninth Circuit case involving the copyright of greeting cards that introduced the "total concept and feel" standard for determining substantial similarity. Courts used this test in later cases such as Reyher v. Children's Television Workshop (1976).

<i>Warner Bros. Inc. v. American Broadcasting Companies, Inc.</i> American legal case

Warner Bros. Inc. v. American Broadcasting Companies, Inc., 720 F.2d 231, the case of Superman v. The Greatest American Hero, is the third case in a Second Circuit trilogy of 20th century copyright infringement cases in which the proprietors of Superman copyrights sued other companies for publishing fictional exploits of a cape-wearing superhero. Although the plaintiffs were successful in the first two cases, Superman v. Wonderman and Superman v. Captain Marvel, they were completely unsuccessful in Superman v. The Greatest American Hero. The court held that "as a matter of law. .. 'The Greatest American Hero' is not sufficiently similar to the fictional character Superman, the hero of comic books, television, and more recently films, so that claims of copyright infringement and unfair competition may be dismissed without consideration by a jury."

Arnstein v. Porter, 154 F.2d 464 is a case in the law of copyright in the United States which set a precedent for determining substantial similarity for copyright infringement.

VMG Salsoul v Ciccone 824 F.3d 871 is a court case that has played an important role in redefining the legal status of sampling in music under American copyright law. The case involved a claim of copyright infringement brought forth against the pop star Madonna, for sampling the horns from an early 1980s song "Ooh I Love It " by the Salsoul Orchestra in her international hit song "Vogue". Such sampling was done without a license, or compensation to VMG Salsoul, LLC, which was the copyright holder of "Love Break" and therefore brought suit claiming infringement and damages. The Ninth Circuit was to rule upon a contentious issue in the music industry at large, i.e. whether the de minimis defense is applicable against a claim of copyright infringement in the case of sound recording, with special regard to the practice of sampling.

Pharrell Williams et al. v Bridgeport Music et al., No. 15-56880 is a United States Court of Appeals for the Ninth Circuit case concerning copyright infringement of sound recording. In August 2013, Pharrell Williams, Robin Thicke and Clifford Joseph Harris filed a complaint for declaratory relief against the members of Marvin Gaye's family and Bridgeport Music in the United States District Court for the Central District of California, alleging that the song "Blurred Lines" did not infringe the copyright of defendants in "Got to Give It Up" and "Sexy Ways" respectively.

Marcus Gray et al. v. Katy Perry et al. was a copyright infringement lawsuit against Katheryn Elizabeth Hudson, Jordan Houston, Lukasz Gottwald, Karl Martin Sandberg, Henry Russell Walter ("Cirkut"), Capitol Records and others, in which the plaintiffs Marcus Gray ("Flame"), Emanuel Lambert and Chike Ojukwu alleged that Perry's song "Dark Horse" infringed their exclusive rights in their song "Joyful Noise" pursuant to 17 U.S.C § 106.

References

  1. "Selle V. Gibb" and the Forensic Analysis of PlagiarismM. Fletcher ReynoldsCollege Music SymposiumVol. 32, (1992), pp. 55-78Published by: College Music Society
  2. "741 F.2d 896: Ronald H. Selle, Plaintiff-appellant, v. Barry Gibb, et al., Defendants-appellants, Andronald H. Selle, Plaintiff-appellee, v. Barry Gibb, et al., Defendants-appellants :: US Court of Appeals Cases :: Justia". Law.justia.com. Retrieved March 13, 2013.
  3. Selle v. Gibb, 567 F. Supp. 1173, 1179 (N.D. Ill. 1983)
  4. Selle v. Gibb, 567 F. Supp. 1173, 1179 (N.D. Ill. 1983), aff'd, 741 F.2d 896, (7th Cir. 1984)
  5. Id. at 6-8
  6. Id. at 9
  7. Id. at 21-36
  8. Id. at 21-26
  9. Id. at 87-93
  10. Id. at 109-12
  11. Id. at 199.
  12. Id. at 254-62
  13. Hector Cook, Melinda Bilyeu, Andrew Mon Hughes, The Bee Gees: Tales of the Brothers Gibb (New York: Omnibus Press, 2003), 378.
  14. 741 F.2nd. at 905
  15. Id. at 1182-1184
  16. Selle v. gibb, 741 F.2nd 896,900 (7th Cir. 1984).
  17. "Music Copyright Infringement Resource - Sponsored By USC Gould School of Law". Mcir.usc.edu. Retrieved March 13, 2013.