Baxter v. MCA, Inc.

• Citation: 812 F.2d 421,2 USPQ2d 1059
• Decision Date: 11 May 1987
• Docket Number: No. 84-6522,84-6522
• Parties: 1987 Copr.L.Dec. P 26,071, 2 U.S.P.Q.2d 1059 Leslie T. BAXTER, Plaintiff-Appellant, v. MCA, INC., a Delaware corporation; Universal City Studios, Inc., a Delaware corporation; Music Corporation of America, a California corporation; MCA Records, Inc., a California corporation; Merchandising Corporation of America, a California corporation; and John T. Williams, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 421

812 F.2d 421

1987 Copr.L.Dec. P 26,071, 2 U.S.P.Q.2d 1059

Leslie T. BAXTER, Plaintiff-Appellant, v. MCA, INC., a Delaware corporation; Universal City Studios,

Inc., a Delaware corporation; Music Corporation of America,

a California corporation; MCA Records, Inc., a California

corporation; Merchandising Corporation of America, a

California corporation; and John T. Williams, Defendants-Appellees.

No. 84-6522.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 9, 1985.

Decided March 5, 1987.

As Amended May 11, 1987.

John T. Blanchard, Los Angeles, Cal., for plaintiff-appellant.

Louis P. Petrich, Los Angeles, Cal., for defendants-appellees, MCA, et al.

Ronald S. Rosen, Los Angeles, Cal., for defendant-appellee, John T. Williams.

Appeal from the United States District Court for the Central District of California.

Before TANG, BOOCHEVER and KOZINSKI ^*, Circuit Judges.

TANG, Circuit Judge:

In this copyright infringement action, plaintiff-appellant Leslie T. Baxter appeals the district court's grant of summary judgment to John Williams and the other defendants-appellees. The district court granted defendants' motion based upon its determination that no substantial similarity of expression existed as between Baxter's copyrighted song Joy and the theme from the motion picture "E.T.: The Extra-Terrestrial" [hereinafter cited as Theme from E.T.]. We reverse the grant of summary judgment and remand for trial.

FACTS AND PROCEDURAL HISTORY

In 1953, Leslie Baxter composed a collection of seven songs intended to invoke or represent emotions. These songs were recorded and published by Capitol Records in 1954 on an album entitled The Passions. Joy, one of the compositions on that album, is the subject of this action. ¹ Baxter is the sole owner of all right, title and interest in the copyright to Joy.

Baxter and John Williams, a successful composer and conductor of music, have been personally acquainted for several decades. Williams had previously played the piano for Baxter at a number of recording sessions, and had knowledge of Joy. He participated as the pianist in the orchestra for a public performance of Joy in the Hollywood Bowl in the 1960s. In 1982, Williams composed Theme from E.T. for which he received an Academy Award for best original music. The other appellees utilized Theme from E.T. in the motion picture "E.T.: The Extra-Terrestrial," sound recordings and merchandising.

On November 2, 1983, Baxter filed a complaint for copyright infringement and demand for jury trial in district court. He alleged that Theme from E.T. was largely copied from his copyrighted song Joy. On September 17, 1984, defendants moved for summary judgment on the ground that, as a matter of law, Theme from E.T. was not substantially similar to protectible expression in Joy, and therefore did not infringe it. For the limited purpose of the summary judgment motion only, defendants conceded that: (1) Baxter owned a duly registered copyright in Joy; (2) Williams had "access" to Joy before the creation of Theme from E.T.; and (3) the "general ideas" in the subject songs were substantially similar.

Defendants attached to their motion papers the following items: (1) cassette tape recordings of Joy as it appeared on the album The Passions and the movie soundscore of Theme from E.T.; (2) the twenty-three page written instrumental sheet music of Joy that was copyrighted; and (3) the five page piano score of Theme from E.T. Baxter introduced into evidence expert testimony and five comparison tapes by Professor Harvey Bacal regarding the degree of similarity between the two compositions.

After reviewing the submitted evidence, the district court granted defendants' motion for summary judgment, stating:

This Court's "ear" is as lay as they come. The Court cannot hear any substantial similarity between defendant's expression of the idea and plaintiff's. Until Professor Bacal's tapes were listened to, the Court could not even tell what the complaint was about. Granted that Professor Bacal's comparison exposes a musical similarity in sequence of notes which would, perhaps, be obvious to experts, the similarity of expression (or impression as a whole) is totally lacking and could not be submitted to a jury.

Baxter timely appealed.

DISCUSSION

After the defendants stipulated to the plaintiff's ownership of the copyright and access to his work, the district court ruled as a matter of law that there was no substantial similarity between the two works. That holding is subject to our de novo review. Berkic v. Crichton, 761 F.2d 1289, 1292 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 85, 88 L.Ed.2d 69 (1985). We review the evidence and the inferences therefrom in the light most favorable to the nonmoving party, and determine whether there exists any genuine issue of material fact and the moving party is entitled to judgment as a matter of law. RFD Publications, Inc. v. Oregonian Pub. Co., 749 F.2d 1327, 1328 (9th Cir.1984) accord Twentieth Century Fox Film Corp. v. MCA, 715 F.2d 1327, 1328 (9th Cir.1983). The district court's grant of summary judgment to the defendants must be affirmed if reasonable minds could not differ as to the presence or absence of substantial similarity of expression. See v. Durang, 711 F.2d 141 (9th Cir.1983). See also Twentieth Century-Fox, 715 F.2d at 1329.

To establish a successful claim for copyright infringement, the plaintiff must prove (1) ownership of the copyright, and (2) "copying" of protectible expression by the defendant. See Sid & Marty Krofft Television Productions, Inc., v. McDonald's Corp., 562 F.2d 1157, 1162 (9th Cir.1977) (citing Reyher v. Children's Television Workshop, 533 F.2d 87, 90 (2d Cir.1976), cert. denied, 429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.1975), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975); 2 M. Nimmer, Nimmer on Copyright Sec. 141 at 610-611 (1979) [hereinafter cited as "Nimmer"]. Because direct evidence of copying is rarely available, a plaintiff may establish copying by circumstantial evidence of: (1) defendant's access to the copyrighted work prior to the creation of defendant's work, and (2) substantial similarity of both general ideas and expression between the copyrighted work and the defendant's work. See Krofft, 562 F.2d at 1162. Absent evidence of access, a "striking similarity" between the works may give rise to a permissible inference of copying. See Summary judgment cannot be granted if there exists a genuine dispute as to a material fact. Fed.R.Civ.P. 56(c). Rule 56 calls for the judge to determine whether there exists a genuine issue for trial, not to weigh the evidence himself and determine the truth of the matter. See Anderson v. Liberty Lobby, Inc., --- U.S. ----, 106 S.Ct. 2505, 2516, 91 L.Ed.2d 202 (1986). The nonmoving party must present evidence sufficient to require a jury or judge to resolve the parties' differing versions of the truth at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968). Inferences to be drawn from facts contained in the moving party's papers are to be viewed by the district court in the light most favorable to the non-moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Weighing evidence, determining credibility, and drawing inferences from facts remain jury functions which may not be undertaken by the trial judge. See Anderson, 106 S.Ct. at 2513.

Selle v. Gibb, 741 F.2d 896, 901 (7th Cir.1984); Shultz v. Holmes, 264 F.2d 942 (9th Cir.1959); Nimmer Sec. 13.02[B] at 13-14 (1986). Baxter's ownership of the copyright to Joy is undisputed, and defendants conceded access for the purpose of their summary judgment motion. Defendants further assumed for purposes of their motion that there was substantial similarity of ideas as between the two compositions. Therefore, the only question ² before us is whether the district court's finding, based on its ear, that substantial similarity of expression was "totally lacking and could not be submitted to a jury," can sustain a grant of summary judgment to the defendants.

Determinations of substantial similarity of expression are subtle and complex. The test to be applied has been labeled an "intrinsic" one by this Court in that it depends not upon external criteria, but instead upon the response of the ordinary reasonable person to the works. Krofft, 562 F.2d at 1164. "Analytic dissection" and expert testimony are not called for; the gauge of substantial similarity is the response of the ordinary lay hearer. Id., quoting Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir.1946), cert. denied, 330 U.S. 851, 67 S.Ct. 1096, 91 L.Ed. 1294 (1947). Accordingly, in Krofft, this Court rejected extrinsic analysis of similarities and differences among characters in plaintiff's television show and defendants' TV commercials, in favor of asking whether the defendants' works captured the total concept and feel of plaintiffs' works. Krofft, 562 F.2d at 1167. See also Berkic, 761 F.2d at 1292; Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir.1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1753, 84 L.Ed.2d 817 (1985); Overman v. Universal City Studios, Inc., 605 F.Supp. 350, 353 (C.D.Cal.1984), aff'd mem., 767 F.2d 933 (9th Cir.1985).

We do not suggest that our ears are any more sophisticated than those of the district court. Nevertheless, based on our review of the record, we are persuaded that reasonable minds could differ as to whether Joy and Theme from E.T. are substantially similar. As in Twentieth Century-Fox, we do not suggest that the works are, in fact, substantially similar. We only state that reasonable minds could differ as to the issue and thus that summary judgment was improper. See Twentieth Century-Fox, 715 F.2d at 1329.

We finally address defendants'...