Ronald H. SELLE, Plaintiff-Appellant, v. Barry GIBB, et al., Defendants-Appellants, and Ronald H. SELLE, Plaintiff-Appellee, Barry GIBB, et al., Defendants-Appellants. Nos. 83-2481, 83-2545. United States Court of Appeals, Seventh Circuit. Argued April 13, 1984. Decided July 23, 1984. CUDAHY, Circuit Judge. The plaintiff, Ronald H. Selle, brought a suit against three brothers, Maurice, Robin and Barry Gibb, known collectively as the popular singing group, the Bee Gees, alleg- ing that the Bee Gees, in their hit tune, "How Deep Is Your Love," had infringed the copyright of his song, "Let It End." The jury returned a verdict in plaintiff's favor on the issue of liability in a bifurcat- ed trial. The district court, Judge George N. Leighton, granted the defendants' mo- tion for judgment notwithstanding the ver- dict and, in the alternative, for a new trial. Selle v. Gibb, 567 F.Supp. 1173 (N.D.III. 1983). We affirm the grant of the motion for judgment notwithstanding the verdict. Selle composed his song, "Let It End," in one day in the fall of 1975 and obtained a copyright for it on November 17, 1975. He played his song with his small band two or three times in the Chicago area and sent a tape and lead sheet of the music to eleven music recording and publishing companies. Eight of the companies returned the mate- rials to Selle; three did not respond. This was the extent of the public dissemination of Selle's song.' Selle first became aware of the Bee Gees' song, "How Deep Is Your Love," in May 1978 and thought that he recognized the music as his own, although the lyrics were different. He also saw the movie, "Saturday Night, Fever," the sound track of which features the song: "How Deep Is Your Love," and again recognized the music. He subsequently sued the three- Gibb brothers; Paramount Pictures Corpo: ration, which made and distributed the movie; and Phonodise, Inc., now known as Polygram Distribution, Inc. which made, and distributed the cassette tape of "How Deep Is Your Love." The Bee Gees are internationally known: performers and creators of popular music. They have composed more than 160 songs; 1. For a fuller discussion of the facts as adduced at trial, see Selle v. Gibb, 567, F.Supp. 1173, 1176 78 (N.1111 1083). their sheet music, records and tapes have been distributed worldwide, some of the albums selling more than 30 million copies. The Bee Gees, however, do not themselves read or write music. In composing a song, their practice was to tape a tune, which members of their staff would later tran- scribe and reduce to a form suitable for copyrighting, sale and performance by both the Bee Gees and others. In addition to their own testimony at trial, the Bee Gees presented testimony by their manager, Dick Ashby, and two musi- cians, Albhy Galuten and Blue Weaver, who were on the Bee Gees' staff at the time "How Deep Is Your Love" was com- posed. These witnesses described in detail how, in January 1977, the Bee Gees and several members of their staff went to a recording studio in the Chateau d'Herou- ville about 25 miles northwest of Paris. There the group composed at least six new songs and mixed a live album. Barry Gibb's testimony included a detailed expla- nation of a work tape which was introduced into evidence and played in court. This tape preserves the actual process of cre- ation during which the brothers, and partic- ularly Barry, created the tune of the ac- cused song while Weaver, a keyboard play- er, played the tune which was hummed or sung by the brothers. Although the tape does not seem to preserve the very begin- ning of the process of creation, it does depict the process by which ideas, notes, lyrics and bits of the tune were gradually put together. Following completion of this work tape, a demo tape was made. The work tape, demo tape and a vocal-piano version taken from the demo tape are all in the key of E flat. Lead sheet music, dated March 6, 197d she to key ot Op l Your Love was filed for issuance of a United States copyright, and in November 1977, a piano- vocal arrangement was filed in the Copy- right Office. The only expert witness to testify at trial was Arrand Parsons, a professor of music at Northwestern University who has had extensive professional experience primarily in classical music. He has been a program annotator for the Chicago Symphony Or- chestra and the New Orleans Symphony Orchestra and has authored works about musical theory. Prior to this case, how- ever, he had never made a comparative analysis of two popular songs. Dr. Par- sons testified on the basis of several charts comparing the musical notes of each song and a comparative recording prepared un- der his direction. According to Dr. Parsons' testimony, the first eight bars of each song (Theme A) have twenty-four of thirty-four notes in plaintiff's composition and twenty-four of forty notes in defendants' composition which are identical in pitch and symmetri- cal position. Of thirty-five rhythmic impul- ses in plaintiff's composition and forty in defendants. , thirty are identical. In the last four bars of both songs (Theme B), fourteen notes in each are identical in pitch, and eleven of the fourteen rhythmic impul- ses are identical. Both Theme A and Theme B appear in the same position in each song but with different intervening material. Dr. Parsons testified that, in his opinion, "the two songs had such striking similari- ties that they could not have been written independent of one another." Tr. 202. He also testified that he did not know of two songs by different composers "that contain as many striking similarities" as do the two songs at issue here. However, on several occasions, he declined to say that the simi- larities could only have resulted from copy- ing. Following presentation of the case, the jury returned a verdict for the plaintiff on the issue of liability, the only question presented to the jury. Judge Leighton, however, granted the defendants' motion for judgment notwithstanding the verdict and, in the alternative, for a new trial. He relied primarily on the plaintiff's inability to demonstrate that the defendants had access to the plaintiff's song, without which a claim of copyright, infringement could not prevail regardless how similar the two compositions are. Further, the plaintiff failed to contradict or refute the testimony of the defendants and their wit- nesses describing the independent creation process of "How Deep Is Your Love." Fi- nally, Judge Leighton concluded that "the inferences on which plaintiff relies is not a logical, permissible deduction from proof of 'striking similarity' or substantial similari- ty; it is 'at war with the undisputed facts,' and it is inconsistent with the proof of nonaccess to plaintiff's song by the Bee Gees at the time in question." 567 F.Supp. at 1183 (citations omitted). Both we and the district court must be reluctant to remove an issue from the purview of the jury on either a directed verdict or a judgment notwithstanding the verdict. Nonetheless, we have a duty to determine whether there is sufficient evi- dence to support the position of the non- moving party, in this case, the plaintiff. The standards applicable to a motion for judgment notwithstanding the verdict and to a directed verdict are, of course, the same. All the evidence, taken as a whole, must be viewed in the light most favorable to the nonmoving party. This evidence must provide a sufficient basis from which the jury could have reasonably reached a verdict without speculation or drawing un- reasonable inferences which conflict with the undisputed facts. Brady v. Southern Railway, 320 U.S. 476, 480, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943); United States v. An Article of Device, 731 F.2d 1253, 1257 (7th Cir.1984); Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980); Hohmann v. Pack- ard Instrument Co., 471 F.2d 815, 819 (7th Cir. 1973). . It is, of course, not relevant that, in this case, the trial court denied defendants' motion for a directed verdict and submitted the issue to the jury. It is generally more- efficient to proceed in this fashion, so that, in the event the reviewing court reverses, the entire case will not have to be retried. Mattivi v. South African Marine Corp., 618 F.2d 163, 166 (2d Cir.1980). Since we affirm the district court's grant of a judg. ment notwithstanding the verdict, it is not necessary to consider either the grant of the motion, in the alternative, for a new trial or the defendants' cross-appeal on the district court's denial of summary judg- ment. We note, however, that the cross. appeal with respect to the summary judg- ment motion is inappropriate and redun- dant since the issues it raised were incorpo- rated in the motion for judgment notwith- standing. the verdict. The cross-appeal may be little more than a device to win an opportunity to file the last brief or to argue the evidence of witnesses not presented at trial who furnished summary judgment af- fidavits-and is a.procedure not to be en- couraged. Selle's primary contention on this appeal is that the district court misunderstood the theory of proof of copyright infringement on which he based his claim. Under this theory, copyright infringement can be dem- onstrated when, even in the absence of any direct evidence of access, the two pieces in question are so strikingly similar that ac- cess can be inferred from such similarity alone. Selle argues that the testimony of his expert witness, Dr. Parsons, was suffi- cient evidence of such striking similarity that it was permissible for the jury, even in the absence of any other evidence concern: ing access, to infer that the Bee Gees had access to plaintiff's song and indeed copied it. In establishing a claim of copyright infringement of a musical composition, the plaintiff must prove (1) ownership of the copyright in the complaining. work; originality of the work; (3) copying of the work by the defendant, and (4) a substan- tial degree of similarity between the two works. See Sherman, Musical Copyright Infringement: The Requirement of Sub- stantial Similarity. Copyright Law Sym- posium, Number 92, American Society of Composers, Authors and Publishers 81-82. Columbia University Press (1977) [herein- after "Sherman, Musical Copyright In- fringement "]. The only element which is at issue in this appeal is proof of copying; the first two elements are essentially con- ceded, while the fourth (substantial similar- ity) is, at least in these circumstances, closely related to the third element under plaintiff's theory of the case. Proof of copying is crucial to any claim of copyright infringement be- cause no matter how similar the two works may be (even to the point of identity), if the defendant did not copy the accused work, there is no infringement. Arnstein v. Ed- ward B. Marks Music Corp., 82 F.2d 275 (2d Cir.), motion to set aside decree de- nied, 86 F.2d 715 (2d Cir. 1936). However, because direct evidence of copying is rarely available, the plaintiff can rely upon cir- cumstantial evidence to prove this essential element, and the most important compo- nent of this sort of circumstantial evidence is proof of access. See generally 8 Nim- mer, Copyright § 13.02 at 13-9 (1983) [hereinafter "Nimmer, Copyright "]. The plaintiff may be able to introduce direct evidence of access when, for example, the work was sent directly to the defendant (whether a musician or a publishing compa- ny) or a close associate of the defendant. On the other hand, the plaintiff may be able to establish a reasonable possibility of access when, for example, the complaining work has been widely disseminated to the public. See, e.g., Abkco Music, Inc. v. Har- risongs Music, Ltd., 722 F.2d 988, 998 (2d Cir. 1983) (finding of access based on wide dissemination); Sherman, Musical Copy- right Infringement, at 82. If, however, the plaintiff does not have direct evidence of access, then an inference of access may still be established circumstantially by proof of similarity which is so striking that the possibilities of independent creation, coincidence and prior common source are, as a practical matter, precluded. If the plaintiff presents evi- dence of striking similarity sufficient to raise an inference of access, then copying is presumably proved simultaneously, al- though the fourth element (substantial sim- ilarity) still requires proof that the defend- ant copied a substantial amount of the com- plaining work. The theory which Selle at- tempts to apply to this case is based on proof of copying by circumstantial proof of access established by striking similarity be- tween the two works. One difficulty with plaintiff's theory is that no matter how great the similarity between the two works, it is not their simi- larity per se which establishes. access; rather, their similarity tends to prove ac- cess in light of the nature of the works, the particular musical genre involved and other circumstantial evidence of access. In other words, striking similarity is just one piece of circumstantial evidence tending to show access and must not be considered in isola- tion; it must be considered together with other types of circumstantial evidence re- lating to access.As a threshold matter, therefore, it would appear that there must be at least some other evidence which would establish a reasonable possibility that the complain- ing work was available to the alleged in- fringer. As noted, two works may be iden- tical in every detail, but, if the alleged infringer created the accused work inde- pendently or both works were copied from a common source in the publie domain, then there is no infringement. Therefore, if the plaintiff admits to having kept his or her creation under lock and key, it would seem logically impossible to infer access through striking similarity. Thus, although it has frequently been written that striking simi- larity alone can establish access, the decid- ed cases suggest that this circumstance would be most unusual. The plaintiff must always present sufficient evidence to sup- port a reasonable possibility of access be- cause the jury cannot draw an inference of access based upon speculation and conjec- ture alone. For example, in 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), the court reversed a finding of infringement based solely on the similarities between plaintiff's book and de- fendant's film. The court stated that the plaintiff herself presented no evidence that the defendant had had access to her book, and the only people to whom the plaintiff had given a copy of her book testified that they had not given it to the defendant. While the court also concluded that the similarities between the book and the film were not that significant, the result turned on the fact that "[t]he oral and documenta- ry evidence in the record ... establishes the fact that the defendant had no access to plaintiff's book unless the law of plagia- rism permits the court to draw an inference contrary to such proof from its finding of similarities on comparison of the book with the picture." Id. at 897. Thus, 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 greatest difficulty perhaps arises when the plaintiff cannot demonstrate any direct link between the complaining work and the defendant but the work has been so widely disseminated that it is not unrea- sonable to infer that the defendant might have had access to it. In Cholvin v. B. & F. Music Co., 258 F.2d 102 (7th Cir.1958), the plaintiffs' work had been distributed in 2000 professional copies of sheet music and four recordings, of which 200,000 records were sold, and it had been performed on several nationwide broadcasts. The court held that, in light of this circumstantial evidence, it was reasonable to infer, in com- bination with similarities between the two pieces, that there had been an infringe- ment. In Abkco Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 997-99 (2d Cir. 1983), the court found that there had been a copyright infringement based on a theory of subconscious copying. The complaining work, "He's So Fine," had been the most popular song in the United States for five weeks and among the thirty top hits in England for seven weeks during the year in which George Harrison composed "My Sweet Lord," the infringing song. This evidence, in addition to Harrison's own ad- mission that the two songs were "striking- ly similar," supported the finding of in- fringement. On the other hand, in Jewel Music Publishing Co. v. Leo Feist, Inc., 62 F.Supp. 596, 598 (S.D.N.Y.1945), almost 10,- 000 copies of the complaining song had been distributed or sold and the music had also been broadcast on national perform- ances. The court still concluded that the showing of access was insufficient, in com• bination with the other evidence, to support a reasonable inference of access. The possibility of access in the present case is not as remote as that in Dieckhaus because neither side elicited testimony from the individuals (primarily employees of the publishing companies) to whom the plaintiff had distributed copies of his song. Such evidence might have conclusively dis- proved access.. On the other hand, Selle's song certainly did not achieve the extent of public dissemination existing in Cholvin, Jewel Music Publishing Co., or Harri- songs Music, and there was also no evi- dence that any of the defendants or their associates were in Chicago on the two or three occasions when the plaintiff played his song publicly. It is not necessary for us, given the facts of this case, to deter- mine the number of copies which must be publicly distributed to raise a reasonable inference of access. Nevertheless, in this case, the availability of Selle's song, as shown by the evidence, was virtually de minimis. . In granting the defendants' motion for judgment notwithstanding the verdict; Judge Leighton relied primarily on the plaintiff's failure to adduce any evidence of access and stated that an inference of ac cess may not be based on mere conjecture, speculation or a bare possibility of access. 567. F.Supp. at 1181. Thus, in Testa v. Janssen, 492 F.Supp. 198, 202-08 (W.D.Pa. 1980), the court stated that "[to support a finding of access, plaintiffs' evidence must extend beyond mere speculation or conjec- ture. And, while circumstantial evidence is sufficient to establish access, a defendant's opportunity to view the copyrighted work must exist by a reasonable possibility-not a bare possibility" (citation omitted).: See also Ferguson v. National Broadcasting Co., 584 F.2d 111, 113 (5th Cir.1978): Scott v. Paramount Pictures Corp., 449 F.Supp. 518, 520 (D.D.C.1978), affd mem., 607 F.2d 494 (D.C.Cir.1979), cert. denied, 449 U.S. 849, 101 S.Ct. 137, 66 L.Ed.2d 60 (1980).? Judge Leighton thus based his de- cision on what he characterized as the plaintiff's inability to raise more than spec- ulation that the Bee Gees had access to his song- The extensive testimony of the de- fendants and their witnesses describing the creation process went essentially uncontra- dicted, and there was no attempt even to impeach their credibility. Judge Leighton further relied on the principle that the tes- timony of credible witnesses concerning a matter within their knowledge cannot be rejected without some impeachment, con- tradiction or inconsistency with other evi- dence on the particular point at issue. Di- eckhaus, supra, 153 F.2d at 899-900. See also Chesapeake and Ohio Railroad Co. v. Martin, 283 U.S. 209, 216, 51 S.Ct. 453, 456, 75 L.Ed. 983 (1931). Judge Leighton's conclusions that there was no more than a bare possibility that the defendants could have had access to Selle's song and that this was an insufficient basis from which the jury could have reasonably inferred the existence of access seem correct. The plaintiff has failed to meet even the mini- mum threshold of proof of the possibility of access and, as Judge Leighton has stat- ed, an inference of access would thus seem to be "at war with the undisputed facts." 567 F.Supp. at 1183. IV The grant of the motion for judgment notwithstanding the verdict might, if we 2. In Scott, the court held that plaintiff's allega- tions of access were merely speculation when she could not show that she had knowledge that any of the defendants had access to her song. although she had performed her song in public on several occasions and once on television. 3. Plaintiff also relies on the fact that both songs were played on numerous occasions in open court for the jury to hear and on the deposition testimony of onc of the Bee Gees, Maurice, who incorrectly identified Theme B of Selle's song as the Bee Gees' composition, "How Deep Is Your Love." were so minded, be affirmed on the basis of the preceding analysis of the plaintiff's ina- bility to establish a reasonable inference of access. This decision is also supported by a more traditional analysis of proof of ac- cess based only on the proof of "striking similarity" between the two compositions. The plaintiff relies almost exclusively on the testimony of his expert witness, Dr. Parsons, that the two pieces were, in fact, "strikingly similar." Yet formulating a meaningful definition of "striking similari- ty" is no simple task, and the term is often used in a conclusory or circular fashion. Sherman defines "striking similarity" as a term of art signifying "that degree of similarity as will permit an inference of copying even in the absence of proof of access..." Sherman, Musical Copyright Infringement, at 84 n. 15. Nimmer states that, absent proof of access, "the similari- ties must be so striking as to preclude the possibility that the defendant independent- ly arrived at the same. result." Nimmer, Copyright, at 13-14.' "Striking similarity' is not merely a function of the number of identi- cal notes that appear in both compositions. Cf. Wilkie v. Santly Brothers, Inc., 13 F.Supp. 136 (S.D.N.Y.1935), aff d, 91 F.2d 978 (2d Cir.), cert. denied, 302 U.S. 735, 58 S.Ct. 120, 82 L.Ed. 568 (1937), afrd on reargument, 94 F.2d 1023 (2d Cir.1938) (comparison of note structure demonstrates striking similarity), and Jewel Music Pub- lishing Co. v. Leo Feist, Inc., 62 F.Supp. 596 (S.D.N.Y.1945) (in light of plaintiff's inability to establish access, degree of simi- 4. At oral argument, plaintiff's attorney analyzed the degree of similarity required to establish an inference of access as being in an inverse ratio to the quantum of direct evidence adduced to establish access. While we have found no au- thoritative support for this analysis, it seems appropriate. In this case, it would therefore appear that, because the plaintiff has introduced virtually no direct evidence of access, the degree of similarity required to establish copying in this case is considerable.