Selle v. Gibb

• Decision Date: 08 July 1983
• Docket Number: No. 78 C 3656.,78 C 3656.
• Parties: Ronald H. SELLE, Plaintiff, v. Barry GIBB, Robin Gibb, and Maurice Gibb, a/k/a the Bee Gees, Brothers Gibb B.V., Phonodisc, Inc. (now known as Polygram Distribution, Inc.,) and Paramount Pictures Corp., Defendants.
• Court: U.S. District Court — Northern District of Illinois

567 F. Supp. 1173

Ronald H. SELLE, Plaintiff, v. Barry GIBB, Robin Gibb, and Maurice Gibb, a/k/a the Bee Gees, Brothers Gibb B.V., Phonodisc, Inc. (now known as Polygram Distribution, Inc.,) and Paramount Pictures Corp., Defendants.

No. 78 C 3656.

United States District Court, N.D. Illinois, E.D.

July 8, 1983.

Allen C. Engerman, Engerman, Erlich, Jacobs & Berman, Ltd., Chicago, Ill., Jerrold Gold, Granett & Gold, P.C., New York City, for plaintiff.

Robert C. Osterberg, Abeles, Clark & Osterberg, New York City, Robert W. Bergstrom, Bergstrom, Davis & Teeple, Chicago, Ill., for defendants.

Memorandum

LEIGHTON, District Judge.

This is a suit brought under the federal copyright laws to recover for the alleged infringement of a musical copyright; jurisdiction is conferred on this court by 28 U.S.C. § 1338(a). The trial, as demanded by the plaintiff, has been with a jury which, after hearing evidence limited to the issue of liability, returned a verdict in his favor on the copyright infringement claim. Defendants now move for judgment notwithstanding the verdict, or in the alternative for a new trial; and in the event both motions are denied, for a section 1292(b) certificate authorizing an immediate appeal.

Several contentions are made in support of the motion for judgment non obstante, all of them attacking the evidentiary sufficiency of the verdict. One of these, as it has been met by the plaintiff, raises an issue which when resolved is dispositive, in this court at least, of the controversy between the parties. It is whether the verdict in plaintiff's favor can stand when there was no credible evidence before the jury that defendants ever had access to his musical composition, when defendants offered their uncontradicted and corroborated testimony of non-access, when defendants and others gave positive testimony that detailed the circumstances under which they independently created their song, and plaintiff's evidence supporting the theory that defendants copied his song consisted of a stereo tape recorded comparison of the two songs, comparative analytical graphs, charts and the testimony of an expert, uncontradicted by any other expert, that defendants' accused song is so strikingly similar to the plaintiff's as to preclude coincidence, independent creation, or prior source. The following are the facts which the jury must have found from the evidence it heard, and which give rise to this and the other issues.

I

The plaintiff in this case, Ronald H. Selle, lives in Hazelcrest, Illinois and is an antiques dealer, a part-time musician, a composer of popular songs and religious music. In the fall of 1975, he was a clothing salesman for Carson, Pirie, Scott in Chicago. One morning, as he was shaving, getting ready to go to work, a melody came to his mind; he reduced what had occurred to him to writing. While at work that day, he developed the melody further; and that night, at home, he sat at a piano and completed the song, adding chords to it. By the end of the night, Selle had the song written in notation; thus, its composition was completed within one day. After writing the music, during the following week, he composed the lyrics and reduced the song to its final form. No one assisted him either in composing the music, or in writing the words, or in phrasing the lyrics. He did not copy from any prior musical work or composition. He named his song "Let It End"; and after preparing a lead sheet, he obtained a copyright for it, issued to him by the Copyright Office on November 17, 1975.

At the time Selle composed this song, he had a small band of musicians with whom he played at local engagements. On two or three occasions the band performed "Let It End". Shortly after receiving the copyright, Selle invited his fellow musicians to a studio where the song was tape recorded, with Selle singing the words. Sometime thereafter, within a year or so, Selle caused eleven copies of the tapes and the lead sheet of the music to be sent to eleven music recording and publishing companies. Eight of these returned Selle's materials to him; three did not respond. Selle's song "Let It End" was never reproduced by any music company; it never was recorded by any recording company or artist; the lead sheet to "Let It End" was never published, purchased by or sold to anyone. The only time Selle's song was ever publicly performed was on the two or three occasions his own band played it at a local engagement in the Chicago area.

One day, in May 1978, Selle was working in the yard of his home when he heard a teenager next door playing a stereo cassette rather loudly. Selle thought it was his song "Let It End" that he heard playing, except there "were different words to it and it was a different rendition." When Selle asked the teenager, he was told the song that had attracted his attention was "How Deep Is Your Love", soundtrack music from the well known movie, a box office hit, "Saturday Night Fever." Later, he examined the jacket or container of the cassette and noticed that credit for creating the music he thought was his was claimed by the Bee Gees. A short time afterwards, Selle saw "Saturday Night Fever"; again he heard portions of music he thought was his song "Let It End", but without his lyrics. Paramount Pictures Corporation made and distributed the movie; the other corporate defendant, Phonodisc, Inc., now known as Polygram Distribution, Inc., made and distributed the cassette tape of "How Deep Is Your Love", the accused song.

The Bee Gees are three brothers, Maurice, Robin, and Barry Gibb, who began as a group in 1955 and have become internationally known as musical artists, originators and singers of popular songs. Although they do not read or write music, they have composed more than 160 songs which because of their unique singing and playing style have become popular through public performances, in the sale and distribution of music sheets, cassette tapes, records, and albums, some of which have sold in excess of 30 million copies. Most of the albums and other musical products of their singing style have been distributed worldwide.

The Bee Gees have performed concerts throughout the United States and in many foreign countries. They have received awards nationally and internationally in recognition of their talent as artists and for the quality of the music they have created and played. Throughout their career of more than 25 years, no one, before this suit was filed, has ever accused them, any one of them, or anyone associated with them, of having appropriated, copied, or plagiarized anyone else's song or composition. And because they do not write music, the Bee Gees employ others who do. When they conceive a song, they use a tape recorder; and after they have put a song on tape, members of their staff prepare from it scores and reduce the composition to a form that can be duplicated for sale, used in obtaining a copyright, and performed publicly by the Bee Gees and others.

In January 1977, the Bee Gees, their wives, and certain members of their staff, together with representatives of music publishing companies, went to a recording studio located in the Chateau d'Herouville near Pontoise, a remote village in France about 25 miles northwest of Paris. They were there "to mix a live album and to write a few songs." Among those with them were Albhy Galuten, Carl Richardson, Derek Blue Weaver, Dennis Brian, Allen Candle, Bee Gees manager Dick Ashby, and Tom Kennedy. The Bee Gees did the album; and they composed six or more new songs. Barry Gibb has described, under oath, the recording session in the French chateau; in most details of his testimony, he has been supported by the testimony of his brothers, Dick Ashby, Albhy Galuten, and Blue Weaver.

Weaver, at the time of the recording session, was employed by the Bee Gees as a musician, a keyboard player, and at times, in production. Late one afternoon in January 1977, just before dinner at the chateau, he was seated at a piano when, he has told the jury, Barry Gibb said to him, "Play me a beautiful chord." Weaver claims, under oath, that he thought "It was our intention to write a ballad." He has sworn that he and Barry Gibb began to throw, back and forth, ideas about a song, with him playing a few chords. He has testified that Barry "would say, `What was that you just played' and I would play it again. He Barry Gibb would say — he would sing a melody note, and I would try and find a corresponding chord to that, until he said, `Yes, that's a nice one. We will use that.'" In this way, Weaver has said, without anyone in this trial contradicting him, the song "How Deep Is Your Love" was created. Everyone connected with the defendants in this case has sworn, and no contradictory testimony has been offered, that at no time before this musical creation did either Weaver or any of the Bee Gees have access to plaintiff's song "Let It End." The work tape that Weaver and Barry Gibb used to record the initial creation of the accused song has been admitted in evidence. Barry Gibb has testified to the circumstances under which the work tape was made, how his brothers later joined in finishing the accused song; and Weaver has explained how he found the tape among cassettes he took to London with him early in February 1977 from the recording session at the chateau. By listening to the tape, one can actually hear the voices of Blue Weaver and Barry Gibb; one is admitted into the creative process by which the accused song, according to defendants, was composed.

After completing the accused tape, the Bee Gees, through their staff, caused to be made what in the jargon of their profession is called "a demo tape". This tape, although containing a rendition of "How Deep Is Your Love", has different notes and a melody different from a March 6, 1977 lead sheet of the same song. The demo tape is in the key of E flat, as is the work tape; the lead sheet is in the key of E. A...