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Ellis v. Diffie, __3rd__(6th Cir., 1999)
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| The court of appeals upheld a district court ruling that the
plaintiff failed to show that the defendant had access to copyrighted
material even though the choruses of the contested songs were
substantially similar to one another.
[The District Court] found that the choruses were substantially
similar. They contain a similar idea, and share some phraseology,
rhythms, chord progressions, and "melodic contours." He found
other aspects of the songs, including the structures, lyrics,
and melodies, to be distinct from one another...
The district court also found, however, that Ellis did not meet
his burden of proving that the defendant songwriters had access
to a recording of "Lay Me Out." Access is essentially "hearing
or having a reasonable opportunity to hear the plaintiff['s]
work and thus having the opportunity to copy."....
The real problem with Ellis's proof, from the district court's
perspective, was Ellis's inability to prove that "Lay Me Out"
was actually recorded for Slate and left in his possession at
all....
Finally, an inference of copying is rebuttable by evidence of
independent creation of the allegedly infringing work.... |
No. 98-5081
United States Court Of Appeals For The Sixth Circuit
May 17, 1999
Before JONES, SUHRHEINRICH, and MOORE, Circuit Judges
KAREN NELSON MOORE, Circuit Judge.
The plaintiff, Everett A. Ellis, appeals from the decision of
the district court, sitting as trier of fact, against him on
his copyright infringement claim. Ellis claims that the song
recorded by Joe Diffie entitled "Prop Me Up Beside the Jukebox (If I Die)" [hereinafter "Prop Me Up"] is copied in substantial part from
Ellis's song entitled "Lay Me Out By the Jukebox When I Die" [hereinafter "Lay Me Out"]. The district court found that although
the choruses of the songs were substantially similar to one another,
Ellis did not show that the defendants had "access" to his song;
moreover, the defendants presented evidence of independent creation
of "Prop Me Up." Because the district court applied the law correctly,
and its findings of fact are reversible only for clear error,
we AFFIRM the district court's decision for the defendants. [FOOTNOTE
1]
I
Everett "Allen" Ellis, a self-employed carpenter who taught himself
to read music and play guitar, has been writing songs since he
was a teenager. He claims that the song at issue, originally entitled "Aunt Belle,"
was written in 1985. The concept was derived from a story his mother told him about
his aunt: the aunt wished to be laid out by the jukebox in the
tavern that she owned (she resided in the back) when she died.
He claims to have played the song for friends and relatives many
times.
In late February 1991, Ellis and his cousin John Paul Thompson
went to Nashville in the hopes of recording some of Ellis's songs.
There they met defendant Johnny Slate, president of defendant
Affiliated Publisher's, Inc. Slate apparently liked some of Ellis's
songs and set him up in a make-shift studio to record. Ellis
and Slate disagree as to the promises that were made by Slate
at this time, but Ellis claims he was promised a staff writer
position, money for living expenses, and "single song" contracts,
although Slate denies making promises. Ellis recorded a number
of his songs in March and April of that year, one of which was
"Aunt Belle." Ellis claims that Slate made suggestions as to
how Ellis could re-work "Aunt Belle," and that Ellis spent about
a week making the changes. The end result, he claims, was "Lay
Me Out By the Jukebox When I Die." Slate denies ever hearing
the song "Lay Me Out" before the advent of this lawsuit.
In late April, Ellis was out of money and returned to West Virginia
to work. There was some testimony about a few communications
between Ellis and Slate (or Slate's daughter) after that time,
but they did not have extensive contact. In April 1993, Ellis
heard the Diffie song "Prop Me Up Beside the Jukebox (If I Die)"
and believed it to be his song. He eventually contacted an attorney
about the alleged plagiarism.
The district court opinion summarizes the testimony of the various
witnesses at trial. Ellis was confronted at trial with the fact
that his initial deposition and complaint never referred to "Aunt
Belle" at all, and mentioned only "Lay Me Out." Later, during
discovery, the defendants produced a work tape found in Slate's
possession that had a recording of "Aunt Belle." It is then,
defendants claim, that Ellis's story about reworking "Aunt Belle"
took shape. As to other witnesses, John Paul Thompson (the cousin
who traveled with Ellis to Nashville) corroborated Ellis's version
of events, as did a number of his friends and relatives who claimed
to have heard both versions of the song. There were dueling expert
witnesses who testified to the similarity or lack thereof between
"Lay Me Out" and "Prop Me Up." Ellis did not claim that "Aunt
Belle" was sufficiently similar to "Prop Me Up" to make out a
copyright infringement claim.
Many of the defendants testified in detail as to the development
of "Prop Me Up." Defendant Rick Blaylock was referred to Slate
in late 1991 or early 1992, and Slate suggested that he work
with some of the staff writers to rework a song entitled "Double
Two-Steppin' Honkeytonk." The song had a line about being propped
up against a jukebox once dead, and Blaylock claims the idea
was inspired by a movie favorite of his, "Weekend at Bernie's."
The movie's premise is that Bernie has died but his corpse is
dressed up and brought to parties as if he were still alive.
Blaylock worked with staff writers Perdew and Phillips to develop
the song, and he testified that not much remained to his original
when they were done, other than the concept. All three writers
testified about the progression of the song's development during
four work sessions. They produced written notes and a work tape
of some of the sessions, and discussed the reasons for having
chosen certain lines or turns of phrase. All claimed that Slate
had little or no contact with the writers during creation of
the song. Slate admitted that his office door was usually unlocked
and also that he could have played some of Ellis's songs for
Perdew and Phillips at some time, but again, Slate claims he
had no recording of "Lay Me Out."
The district court presided over the three-day trial, and issued
his Order and Memorandum Opinion on December 8, 1997. The case
was dismissed against all defendants, and it is from this dismissal
that Ellis appeals.
II
The standard of review, as both parties agree, is that stated
in Federal Rule of Civil Procedure 52(a), which reads in part:
Effect. In all actions tried upon the facts without a jury or
with an advisory jury, the court shall find the facts specially
and state separately its conclusions of law thereon, and judgment
shall be entered pursuant to Rule 58 . . . . Requests for findings
are not necessary for purposes of review. Findings of fact, whether
based on oral or documentary evidence, shall not be set aside
unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge of the credibility of
the witnesses.
"Clear error" is defined most famously in United States v. United
States Gypsum Co., 333 U.S. 364 (1948): "A finding is 'clearly
erroneous' when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed." Id. at
395.
To establish copyright infringement, a plaintiff must show: "(1)
ownership of a valid copyright, and (2) copying of constituent
elements of the work that are original." See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S.
340, 361 (1991); High-Tech Video Prods., Inc. v. Capital Cities/ABC,
Inc., 58 F.3d 1093, 1095 (6th Cir. 1995). Because Ellis's ownership
of a copyright to "Lay Me Out" is not disputed, the sole question is whether it was copied. Direct evidence of
copying is rare, so frequently the plaintiff will attempt to
establish an inference of copying by showing (1) access to the
allegedly-infringed work by the defendant(s) and (2) a substantial
similarity between the two works at issue. See Robert R. Jones Assocs., Inc. v. Nino Homes, 858 F.2d 274,
276-77 (6th Cir. 1988); Wickham v. Knoxville Int'l Energy Exposition,
Inc., 739 F.2d 1094, 1097 (6th Cir. 1984); see also 4 Melville
B. Nimmer & David Nimmer, Nimmer on Copyright, § 13.02[B] (revised
1998).
The district court first analyzed whether the works were substantially
similar, using the "ordinary observer" test, which is the traditional
standard of copyright infringement. See Black v. Gosdin, 740
F. Supp. 1288, 1292 (M.D. Tenn. 1990); Flag Fables, Inc. v. Jean
Ann's Country Flags & Crafts, Inc., 730 F. Supp. 1165, 1172 (D.
Mass. 1989). [FOOTNOTE 2] He found that the choruses were substantially similar. They contain a similar idea, and share some phraseology, rhythms,
chord progressions, and "melodic contours." He found other aspects
of the songs, including the structures, lyrics, and melodies,
to be distinct from one another. See J.A. at 40 (D. Ct. Op. at 20). Neither party contests the
factual finding of substantial similarity on appeal.
The district court also found, however, that Ellis did not meet
his burden of proving that the defendant songwriters had access
to a recording of "Lay Me Out." Access is essentially "hearing
or having a reasonable opportunity to hear the plaintiff['s]
work and thus having the opportunity to copy." Tree Publ'g Co. v. Warner Bros. Records, 785 F. Supp. 1272, 1274
(M.D. Tenn. 1991); see also 4 Nimmer § 13.02[A]. Although "evidence that a third party with whom both the plaintiff
and defendant were concurrently dealing had possession of plaintiff's
work is sufficient to establish access by the defendant," "[a]ccess
may not be inferred through mere speculation or conjecture." 4 Nimmer § 13.02[A] (citations omitted). In this case, the district court was not persuaded that Slate
ever had a copy of Ellis's song "Lay Me Out." At trial, Ellis
presented some evidence from which a trier of fact could draw
the conclusion that the defendant songwriters had access to his
work through Slate, but it required a somewhat speculative inferential
chain, which the district court did not find convincing based
on his evaluation of the evidence and witness testimony before
him. Moreover, access to Ellis's work is not the same as access
to the song "Lay Me Out." Paying due deference to the district court's factual determinations
and credibility judgments, we conclude that the district court
did not clearly err. The Gypsum standard requires a "definite
and firm conviction that a mistake has been committed," and we
have no such conviction here. Gypsum, 333 U.S. at 295.
Some case law indicates that the stronger the similarity between
the two works in question, the less compelling the proof of access
needs to be. See generally 4 Nimmer § 13.02[B]; see also, e.g., Repp v. Lloyd
Webber, 858 F. Supp. 1292, 1303 (S.D.N.Y. 1994) ("where the copyrighted
work and the infringing work are 'strikingly similar,' the test
for proof of access is less rigorous"), rev'd on other grounds,
132 F.3d 882 (2d Cir. 1997); Selle v. Gibb, 741 F.2d 896, 903
(7th Cir. 1984) ("absent proof of access, the similarities must
be so striking as to preclude the possibility that the defendant
independently arrived at the same result" (internal quotation
omitted)). Although the district court did not explicitly analyze
the case this way, its finding that the choruses alone have substantial
similarities, coupled with its footnote about the other differences
between the songs, can be read to reject implicitly an argument
that the similarity is striking enough to minimize the need for
Ellis to show access. The real problem with Ellis's proof, from the district court's
perspective, was Ellis's inability to prove that "Lay Me Out"
was actually recorded for Slate and left in his possession at
all.
Finally, an inference of copying is rebuttable by evidence of
independent creation of the allegedly infringing work. See Repp, 858 F. Supp. at 1303; Intersong-USA v. CBS, Inc., 757
F. Supp. 274, 282 (S.D.N.Y. 1991). The district court found that the detailed and specific evidence
of independent creation of "Prop Me Up" by its songwriters overcame
any implicit suggestion of plagiarism developed by Ellis's proof.
Ellis did not impeach the evidence of independent creation at
trial. There is no reason for this court to dispute the district
court's conclusion that Ellis did not prove copyright infringement
by a preponderance of the evidence, and as the trier of fact,
the district court's views are entitled to deference. The findings
were not clear error. Taking the evidence as a whole, there is
no basis for a "definite and firm conviction that a mistake has
been committed."
III
For the foregoing reasons, we AFFIRM the decision of the district
court to dismiss Ellis's claim of copyright infringement of his
song "Lay Me Out By the Jukebox When I Die."
FN1 The defendants are Joe Diffie, the recording artist of the allegedly
infringing song; Blaylock, Phillips, and Perdew, the writers;
Sony Music and Epic Records (the unit of Sony that distributed
the song); Johnny Slate Productions; and several other named
corporations and unnamed individuals.
FN2 The ordinary observer test requires the trier of fact to gauge
the similarities of the two works solely on the basis of his
"net impression" and without relying on expert analysis or dissection.
4 Nimmer § 13.03[E][2]. Also called the "audience" test, this
approach has been criticized by at least one treatise-writer
as formulaic, riddled with exceptions, increasingly less useful
with the higher-technology works that are coming to dominate
copyright law, and on questionable doctrinal footing. Id. § 13.03[E][1][b].
Nonetheless, it is and has been for decades the most common approach
to copyright cases, and "until the Supreme Court validates or
negates the audience test, the copyright bar will be left in
suspense as to its ultimate validity." Id. § 13.03[E][1].
A few courts have modified the test, perhaps in an attempt to
accommodate some of its difficulties. Certain circuits require
a plaintiff to meet both an "extrinsic" test, which allows for
expert testimony dissecting the works and determining whether
they contain similar ideas subject to copyright protection, and
an "intrinsic" test, which is essentially the "ordinary observer"
test, described above. The intrinsic test is usually undertaken
without the benefit of experts. See Towler v. Sayles, 76 F.3d
579, 583-84 (4th Cir. 1996); Kamar Int'l, Inc. v. Russ Berrie
& Co., 657 F.2d 1059, 1062-63 (9th Cir. 1981).
This circuit has not adopted a specific test for determining
substantial similarity in copyright infringement cases, and this
case is not an opportunity to do so. The parties do not dispute
(and therefore do not brief) the trial court's approach to and
finding of substantial similarity because the case turns on "access."
