Benson v. Coca-Cola Co.

• Decision Date: 08 August 1986
• Docket Number: COCA-COLA,No. 85-5745,85-5745
• Citation: 795 F.2d 973
• Parties: , 1986 Copr.L.Dec. P 25,980 John J. BENSON, Plaintiff-Appellant, v. TheCOMPANY, Defendant-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 973

795 F.2d 973

230 U.S.P.Q. 592, 1986 Copr.L.Dec. P 25,980

John J. BENSON, Plaintiff-Appellant, v. The COCA-COLA COMPANY, Defendant-Appellee.

No. 85-5745.

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Aug. 8, 1986.

Joseph Zallen, Ft. Lauderdale, Fla., for plaintiff-appellant.

Phillip A. Allen, III, Mershon, Sawyer, Johnston, Dunwody & Cole, William J. Dunaj, Miami, Fla., Robert C. Osterberg, Abeles, Clark & Osterberg, New York City, for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY, JOHNSON and CLARK, Circuit Judges.

PER CURIAM:

Appellant-plaintiff John J. Benson appeals from the district court's grant of directed verdict for appellee-defendant Coca-Cola Company. Appellant, an amateur songwriter, alleged that appellee's commercial advertising had infringed his copyright of the song "Don't Cha Know." Appellant began composing the song in 1929, finished it in 1960 and obtained a copyright that year. For the next five to six years, appellant attempted to sell the song by sending it to several well-known entertainers and record companies. In 1971, appellant heard Coca-Cola commercials using the song "I'd Like to Buy the World a Coke." Appellant believed that the commercial employed the music of his copyrighted work but substituted different words. In November, 1983, appellant brought suit in federal court for copyright infringement.

An action for infringement requires proof that appellant owns a valid copyright and that appellee has copied the protected work. See Ferguson v. National Broadcasting Co., 584 F.2d 111 (5th Cir.1978). To establish copying, appellant must show that appellee had access to appellant's song, and that appellee's song is so substantially similar to appellant's that "an average lay observer would recognize the alleged copy as having been appropriated from the original work." Original Appalachian Artworks, Inc. v. Toy Loft, 684 F.2d 821, 829 (11th Cir.1982) (quoting Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1092 (2d Cir.1977)). Proof of access and similarity is not enough, however, to affirmatively establish infringement. These elements only raise a presumption of infringement which may be rebutted by proof of appellee's independent creation of the allegedly infringing song. See id.

The district court employed these legal standards and concluded that even if appellant possessed the copyright for "Don't Cha Know," ¹ he had failed to prove copying. Specifically, appellant had failed to prove appellee's access to his song. In addition, appellant had provided evidence of appellee's independent creation, thereby sabotaging his own case.

Our role in reviewing the district court's grant of directed verdict is quite limited. We may only reverse the order if we find "substantial evidence, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach differing conclusions, [specifically conclusions] opposing the motion for directed verdict." Worsham v. A.H. Robbins Co., 734 F.2d 676 (11th Cir.1984).

Appellant insists that we find such evidence relating to the issues of access and independent creation. He contends that appellee's principal songwriters had access because both traveled extensively in the United States at the same time appellant publicized his song through performances in various nightclubs, hotels and restaurants. One of appellee's writers also had been a record company executive during the time appellant had sent copies of his song to various music publishers and record companies. Appellant also contends that he negated the possibility of independent creation because appellee's songwriters could not agree on exactly, when, where and how they had written appellee's song.

After carefully reviewing the trial transcript, we find no substantial evidence producing a jury question on either issue. Appellant's evidence of publication concerned performance of his song primarily in Hollywood, Fort Lauderdale and Miami, Florida. Isolated performances also occurred at a New Jersey restaurant, a New York Catskill resort, and a restaurant in San Raphael, California. Appellant's wife testified that most of these performances occurred in the early 1960s. Appellant produced no evidence that appellee's songwriters visited any of the places of performance during the relevant time period. Although one of...