Opposition Brief — Calhoun v. Lillenas Publishing

Supreme Court brief2003

Ask Donna

What actually matters in this document.

Text

a -

° - Fee liaaia:isininstniavien

No. 02-1426 / Suprema nS]

J Th j it LED

nN e j

Supreme Court of the Gnitpd SP rwe 2005

RONALD G. CALHOUN: SLERK

Petitioner,

VS.

LILLENAS PUBLISHING, et al.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

BRIEF IN OPPOSITION

DUANE Morris LLP

JOHN C. HERMAN

Counsel of Record

RYAN K. WALSH

1180 West Peachtree Street

Suite 700

Atlanta, Georgia 30309

(404) 253-6900 (telephone)

(404) 253-6901 (facsimile)

Attorneys for Respondents

C.A. Music, Inc., The United

Methodist Publishing House

and Word Music

ADOPTED BY:

CALLAWAY, BRAUN, RIDDLE & HUGHES, P.C.

R. KRANNERT RIDDLE

P.O. Box 9150

Savannah, Georgia 31412

(912) 238-2750

Attorney for Respondent

Lillenas Publishing

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Respondents submit that the following question

demonstrates the fundamental legal defect in Petitioner’s

suit:

When there is uncontradicted evidence in a

work was independently created, and the plain-

tiff has failed to introduce any plausible evidence

that the alleged infringer had a reasonable op-

portunity to view the allegedly infringed work

prior to the creation of the challenged work, is

the plaintiff automatically entitled to a jury trial

on the issue of copyright infringement solely be-

cause the works are very similar?

CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Respondents

C.A. Music, Inc., The United Methodist Publishing House

and Word Music (collectively “Respondents”) provide the

following full and complete list of all trial judges, attor-

neys, persons, associations of persons, firms, partnerships,

or corporations that have an interest in the outcome of this

case, including subsidiaries, conglomerates, affiliates, and

parent corporations, and other identifiable legal entities

related to the Respondents:

Baber, Bruce W.

Bates, Donald Alan

Blood-Dickman, Erica

Beacon Hill Music

Bible, Ken

Baptist Book Stores

Broadman & Holman

Buchan, Jeffrey

C.A. Music, Inc.

Calhoun, Ronald G.

Christian Copyright

License International

Cokesbury Stores

Crystal Sea Recordings

Duane Morris LLP

Faith Music

Floria, Cam

Gaylord Creative Group, Inc.

dba Word Music

Herman, John C.

Integrity Church Services

Integrity Music

King & Spalding

Lifeway Christian Resources

dba Lifeway Christian

Stores

Lillenas Publishing Company

McGee, Robert

McKay, John H.

Maranatha Music

Mathias, John

Music Services, Inc.

Nangle, The Honorable John F.

ill

CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLSOURE STATEMENT -—

Continued

Nazarene Publishing House

Nelson/Word Ministry

Services

Phillips, Lynda

Pilot Point Music

Psalmsinger Music

Richardson, James

The Southern Baptist

Convention

The Sunday School Board

of the Southern Baptist

Convention Press

The United Methodist

Church

The United Methodist

Publishing House

Tolliver, Beth

Walsh, Ryan K.

Weathers, Hardy

Williams, Mark A.

| Word Music

TABLE OF CONTENTS

Page

STATEMENT OF THE CASE...................ccesccessseeeeees 1

I. COURSE OF THE PROCEEDINGB............... 1

TY. STATEMENT Ge BIT sec cccnescivesanvssossesesscee 1

A, DE cincdisciccmiotnninnnnes 1

B. The Eleventh Circuit Opinion ................. 3

DTI, witctisicvavinssintnaieaamasiiinisipiinipinadciacsmnnind 4

I. THE ELEVENTH CIRCUIT CORRECTLY

AFFIRMED THE DISTRICT COURT'S DECI-

SION TO GRANT DEFENDANTS’ MOTION

FOR SUMMARY JUDGMENT....................00065 4

Be. CE Binet etiticicadicenioinn 4

1. The General Elements of Copyright In-

I ici cccinseciavadlinssaiinnmmmtinnene 4

The Doctrine of “Striking Similarity’ ..... 5

The Siringent Standard for the In-

fringement of Musical Works................ 6

B. Regardless of the Song’s Similarity, the

Plaintiff's Copyright Claim Still Fails as a

IE 08 ID vciccneniniitanawanneveninishiiiinniiitianss 7

C. Calhoun’s Claim Fails as a Matter of Law

Because Calhoun Could Not Prove a Rea-

sonable Possibility of Access...................++ 10

OCA IET oscnstencsrnsencvenccssieninnianenennsbueanaminenbensiien 16

TABLE OF AUTHORITIES

Page

CASES

Baxter v. MCA, Inc., 812 F.2d 421 (9th Cir. 1987)............. 12

Benson v. Coca-Cola Co., 795 F.2d 973 (11th Cir.

IO ivissarintituntinnadilalaanninsattiniauininnadiaadimaea passim

Bouchat v. Baltimore Ravens, Inc., 241 F.3d 350

CREE SIR PE seinsidereerniciadistenilanccisniicteimemaraiies 10, 11, 12

Calhoun v. Lillenas Publ’g, 298 F.3d 1228 (11th Cir.

PIED ic ssishsbiidinsemppctinrinintbibebeasinlauaedicudaceascaue 1, 2, 3, 18, 15

Calhoun v. Nazarene Publ’g House, Case No. CV

Le Ty SW Fi iwictiictin ontiiindceseesnsecterncmsetaiareeens 1,2

Ellis v. Diffie, 177 F.3d 503 (6th Cir. 1999) ....... ee 6

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S.

B40 (1991).........srerserssersssrsscerescossserersesscscscerscecssessscereer ly LL

Ferguson v. National Broadcast Co., 584 F.2d 111

GIN RE SE waisainensonscknunisnsaichaiicnineblisinevee aeainaasanaal 5, 8, 14

Gaste v. Kaiserman, 863 F.2d 1061 (2d Cir. 1988).....6, 7, 11

Girl Friends Prods., Inc. v. ABC, Inc., No. 99 Civ.

1541, 2000 U.S. App. LEXIS 14931 (S.D.N.Y.

Sept. 30, 2000), aff’d, No. 00-9466, 2001 U.S.

App. LEXIS 21851 (2d Cir. Oct. 11, 2001)... 7

Herzog v. Castle Rock Entm’t, 193 F.3d 1241 (11th

GA I svat ceiscintintenhedaaecslenescatbeeinalaaaiaane deli uactaiaaisceteaeeals 5, 10

McRae v. Smith, 968 F. Supp. 559 (D. Colo. 1997).......... 5, 6

Miller v. Universal Studios, Inc., 650 F.2d 1365 (5th

RE ae LE SER MEELIS TOD 8

Peel & Co. v. Rug Market, 238 F.3d 391 (5th Cir.

ae ivinissinnncconsepsinin Sa baoltacsalacasednesdlan’osxaiehibimaind boner aedsscetinishebaiies 9

TABLE OF AUTHORITIES — Continued

. Page

Proctor & Gamble Co. v. Colgate-Palmolive Co., 199

Fe. 26 Ge Cl OE enrittanimniinnnumanes 7

Selle v. Gibb, 741 F.2d 896 (7th Cir. 1984)................ passim

Simmons v. Western Publ’g Co., 834 F. Supp. 393

CRE RA, MIE sxicdcenrisaniieeciiceccineaueiansuasemalammanininessapainioie 7

Takeall v. Pepsico, Inc., 29 USPQ.2d 1913 (4th

CAD BIE svunrthescititinnemmieniebanseiaiaena 12, 13

Tisi v. Patrick, 97 F. Supp. 2d 539 (S.D.N.Y. 2000)............ 6

OTHER AUTHORITIES

MELVILLE B. NIMMER AND DAVID NIMMER, NIMMER

CT COMTI & Fa abit ia tericincnirdesintiescaiinstvinns 7

MELVILLE B. NIMMER AND DAVID NIMMER, NIMMER

CF GOP TRIES F Fe tts inte vditiiininiadininetbsinnnnions 14

Tn ee ee TT

STATEMENT OF THE CASE

I. COURSE OF THE PROCEEDINGS

This case involves a claim of copyright infringement

asserted by the plaintiff, Ronald G. Calhoun, twenty-three

years after the allegedly infringing song was created and

released to the public. Calhoun’s Petition for a Writ of

Certiorari (the “Petition”) asks whether the Eleventh

Circuit Court of Appeals correctly affirmed the district

court’s dismissal of Robert G. Calhoun’s claim for copy-

right infringement at the summary judgment stage.

Calhoun v. Lillenas Publ’g, 298 F.3d 1228 (11th Cir. 2002)

(Petitioner’s Appendix (“Pet. App.”) 1). Following the close

of discovery, the district court issued a thorough 22-page

order granting Respondents’ motion for summary judg-

ment, finding no copyright infringement as a matter of

law. Calhoun v. Nazarene Publ’g House, Case No. CV 499-

159 (N.D. Ga. 2001) (Pet. App. 2). The Eleventh Circuit

affirmed the district court’s order based on both (1) the

absence of any evidentiary basis that the author of the

allegedly infringing song had access to Calhoun’s song

“Before His Eyes”; and (2) the strong and unrefuted

evidence that Bob McGee independently created the song

“Emmanuel.”

II. STATEMENT OF FACTS

A. Background

A ininister named Bob McGee created the song “Em-

manuel” in 1976 during a church service at The King’s

Temple Church in Seattle, Washington in the presence of

several independent witnesses. These witnesses corrobo-

rated McGee’s independent creation of the song during the

service and the fact that McGee did so without any sheet

music, documents, or recordings of any kind. The song

“Emmanuel” has been one of the most popular hymns in

major Christian denominations throughout the past two

decades. Calhoun, 298 F.3d 1228 (Pet. App. 1 at 5-6). In

1983, C.A. Music, Inc. (“C.A. Music”) acquired the rights to

“Emmanuel.”

The Petitioner, Ronald Calhoun wrote the song “Be-

fore His Eyes” in 1969 while living in Georgia. This song

appeared on a vanity album for which Mr. Calhoun paid

Charisma Records over $2,000 to record and ship him

copies in 1971. He has no records of any royalties received

from his efforts to sell this album and has only received a

total of $11 for all of his song publishing and performing

rights royalties in his entire musical career. Calhoun, 298

F.3d 1228 (Pet. App. 1 at 4-5). The Eleventh Circuit, like

the district court, found that “the evidence does not sup-

port Calhoun’s claim that ‘Before His Eyes’ received

widespread publicity.” Jd. at 13.

The district court and the Eleventh Circuit found that

Bob McGee, when he wrote “Emmanuel” in 1976, had no

actual access or reasonable opportunity to view Appellant’s

song “Before His Eyes.” Calhoun, 298 F.3d 1228 (Pet. App.

1 at 13); Calhoun, Case No. CV 499-159 (Pet. App. 2 at 15).

This finding is well supported in the record. So, too, is the

finding that “Emmanuel” was independently created.

At the time that Bob McGee independently created

the song “Emmanuel” in Seattle, Washington, the song

“Before His Eyes” had probably not made it out of the

Southeastern United States, and certainly not to the

Pacific Northwest. McGee wrote “Emmanuel” without ever

having seen or heard of Mr. Calhoun or his song “Before

His Eyes.”

B. The Eleventh Circuit Opinion

With respect to the songs “Emmanuel” and “Before

His Eyes,” the Eleventh Circuit did not make a legal

finding of “striking similarity,” which is a legal term of art.

Instead, the Eleventh Circuit held that the songs were

“practically identical.” Calhoun, 298 F.3d 1228 (Pet. App. 1

at 9). Although this distinction may seem trivial, the

difference in phrasing is significant, as a legal finding of

“striking similarity” has a specific meaning in copyright

jurisprudence that was clearly not reached by the Elev-

enth Circuit’s holding. Indeed, the Eleventh Circuit’s

finding of independent creation implicitly demonstrates

that the works are not “strikingly similar.”

The Eleventh Circuit also held that:

Given the limited number of musical notes (as

opposed to words in a language), the combination

of those notes and their phrasing, it is not sur-

prising that a simple composition of a short

length might well be susceptible to original crea-

tion by more than one composer.

Id. The Eleventh Circuit further emphasized that this

statement is particularly true with respect to certain

genres of music, like church music, and that the work at

issue here was just a basic melody without lyrics, har-

monic background, or accompaniment. Jd. at 9 n.8. As a

result, the Eleventh Circuit held that the alleged similar-

ity between the songs did not necessarily evidence copying

by McGee.

acne on

ARGUMENT

I. THE ELEVENTH CIRCUIT CORRECTLY AF-

FIRMED THE DISTRICT COURT’S DECISION

TO GRANT DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT.

The Court should deny Calhoun’s Petition because it

is based on a contortion of copyright law and factual

assertions contradicted by the record. First, the uncontra-

dicted evidence of McGee’s independent creation of the

song “Emmanuel” is easily sufficient to negate Calhoun’s

claim of copyright infringement as a matter of law, regard-

less of any alleged similarities between the songs. Second,

Calhoun has failed to introduce any plausible evidence

that McGee had access to “Before His Eyes” prior to the

creation of “Emmanuel” in 1976, so Calhoun cannot meet

any reasonable standard of access. Accordingly, the Elev-

enth Circuit’s decision to affirm the district court’s decision

was appropriate in light of the general principles of

A. Copyright Law

1. The General Elements of Copyright In-

fringement

To prove a claim of copyright infringement, a plaintiff |

must show that he has ownership of a valid copyright in a |

work and that the defendant copied the “constituent

elements of the copyrighted work that are original.” Feist

Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361

(1991). Where, as here, the plaintiff has no evidence of

actual copying, he must instead show that his copyrighted

work is substantially similar to the defendant’s alleged

infringing work and that defendant had access to plaintiff’s

= * elie =

copyrighted work. Herzog v. Castle Rock Entm’t, 193 F.3d

1241, 1248 (llth Cir. 1999). If a plaintiff cannot show

actual access to the copyrighted work, a plaintiff can

instead demonstrate that the defendant had a “‘reason-

able opportunity to view’” the copyrighted work to consti-

tute access. Id. at 1249 (citation omitted).

2. The Doctrine Of “Striking Similarity”

If a plaintiff cannot show actual access or a reasonable

opportunity to view the copyrighted work, courts have

permitted a plaintiff to create an inference of copying and

access circumstantially by showing that the two works are

“so strikingly similar as to preclude the possibility of

independent creation.” Ferguson v. National Broadcast

Co., 584 F.2d 111, 113 (5th Cir. 1978). The Eleventh Circuit

has described striking similarity as “when the similarity is

so great it precludes the possibility of coincidence,

independent creation or common source.” Benson v.

Coca-Cola Co., 795 F.2d 973, 975 n.2 (11th Cir. 1986)

(emphasis added); see also Herzog, 193 F.3d at 1248-49

(describing striking similarity). Since the striking similar-

ity test is an evidentiary short-cut to show copying, courts

have held that the striking similarity test is a stringent

requirement. See, e.g., McRae v. Smith, 968 F. Supp. 559,

567 (D. Colo. 1997) (court analyzes doctrine of striking

similarity in the context of an infringement claim based on

country music songs).

3. The Stringent Standard For The In-

fringement Of Musical Works

scrutinized by courts than standard copyright infringement

Reo. CE ee MOR TO a ce i: aan

cases, especially when they involve simple songs in popu-

lar styles. The Second Circuit has noted that a court must

be “mindful of the limited number of notes and chords

available to composers and the resulting fact that common

themes frequently reappear in various compositions.”

Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2d Cir. 1988).

The Eleventh Circuit has indicated that the required

degree of similarity may be higher in cases involving

popular music as compared to other artistic works. See

Benson, 795 F.2d at 975 n.2 (“striking similarity should

address the uniqueness or complexity of the protected

work as it bears on the likelihood of copying. ... This is

particularly important with respect to popular music, ‘in

which all songs are relatively short and tend to build on or

repeat a basic theme.’”) (citation omitted).

——»

—

In applying the stringent requirement of striking

similarity, numerous courts have rejected striking similar-

ity claims in the song infringement context. Benson, 795

F.2d at 975 n.2; Ellis v. Diffie, 177 F.3d 503, 507 (6th Cir.

1999) (upholding district court’s finding of no infringement

because differences between songs implicitly precluded

striking similarity despite the fact that the choruses of

songs were substantially similar); Selle v. Gibb, 741 F.2d

896, 903-06 (7th Cir. 1984) (rejecting claim of striking

similarity because plaintiff could not show similarity that |

reasonably precludes possibility of explanation other than |

copying due, in part, to relatively basic subject matter of "

pop song); Tisi v. Patrick, 97 F. Supp. 2d 539, 548 (S.D.N_Y.

2000) (in granting summary judgment to defendant l

finding no substantial or striking similarity between songs

at issue, court held that “striking similarity test ... is

applied with particular stringency in cases ... involving

popular music”); McRae, 968 F. Supp. at 567 (in granting

summary judgment, court found no striking similarity

between two country songs when commonplace elements

in country music genre were filtered out of comparison).

B. Regardless Of The Songs’ Similarity, The

Plaintiff’s Copyright Claim Still Fails As A

Matter Of Law.

Even assuming the songs at issue in this case are

“strikingly similar” — which they are not — the Eleventh

Circuit’s holding in this case was correct and adheres to

the general principles of copyright law. In copyright cases,

proof of actual copying is extremely rare. MELVILLE B.

NIMMER AND DAVID NIMMER, NIMMER ON COPYRIGHT

§ 12.11[D]. As a result, courts have dJeveloped an eviden-

tiary short-cut that allows copyright plaintiffs to create an

inference of copying by establishing two elements: (1) that

the works at issue are substantially similar, and (2) that

the alleged infringer had access to the plaintiff’s work. Id.

Where the works at issue are found to be “strikingly

similar,” the court may infer access from “striking similar-

ity.” Gaste, 863 F.2d at. 1068.

Even if the plaintiff establishes an inference of copy-

ing, however, a copyright defendant may negate any claim

of infringement by proving that the allegedly infringing

work was independently created. Benson, 795 F.2d at 975;

Proctor & Gamble Co. v. Colgate-Palmolive Co., 199 F.3d

74, 77-78 (2d Cir. 1999); Girl Friends Prods., Inc. v. ABC,

Inc., No. 99 Civ. 1541, 2000 U.S. Dist. LEXIS 14931

(S.D.N.Y. Sept. 30, 2000), aff’d, No. 00-9466, 2001 US.

App. LEXIS 21851 (2d Cir. Oct. 11, 2001); Simmons uv.

Western Publ’g Co., 834 F. Supp. 393, 396 (N.D. Ga. 1993)

(“Uncontradicted evidence of independent creation ne-

gates a claim of infringement.”) (emphasis added). Once

the defendant submits evidence of independent creation,

the plaintiff has the burden of proving that the defendant

actually copied the plaintiff’s work. Miller v. Universal

Studios, Inc., 650 F.2d 1865, 1375 (5th Cir. 1981).

In the present case, C.A. Music’s uncontradicted

evidence of independent creation fully negates Calhoun’s

fact. As noted by the district court and the Eleventh

Circuit, C.A. Music has introduced a significant amount of

evidence demonstrating McGee’s independent creation of

the song “Emmanuel.” For example, C.A. Music submitted

an affidavit from McGee in which McGee testified under

oath that he created the song “Emmanuel” in 1976 during

a church service at The King’s Temple Church in Seattle,

Washington. C.A. Music has also introduced affidavits

from individuals who witnessed McGee’s creation of

“Emmanuel” in 1976 and corroborated McGee’s story.

According to all of the affidavits, at the time McGee

created the song, he had no sheet music, hymnals, records,

tapes, versions or lead sheets of any other songs that he

used to assist him. In addition, McGee also testified that,

prior to this lawsuit, he had never heard of Calhoun or the

song “Before His Eyes.”

Calhoun has offered no evidence whatsoever to rebut _

this testimony. Instead, Calhoun now argues that the

testimony from McGee and other individuals from The

King’s Temple Church lacks credibility and that it is

unlikely that McGee could have created the song in the

manner described in the affidavits.

Yet such conclusions are not probative evidence in a

summary judgment proceeding. See Ferguson, 584 F.2d at

113 (rejecting argument that it was unlikely that defendant —

could have come up with allegedly infringing song without

having access to plaintiff’s work). Moreover, on summary

judgment, the court must give credence to the evidence

supporting the moving party that is uncontradicted and

unimpeached. Peel & Co. v. Rug Market, 238 F.3d 391, 394

(5th Cir. 2001). Indeed, “[t]he testimony of credible wit-

nesses concerning a matter within their knowledge cannot

be rejected without some impeachment, contradiction, or

inconsistency with other evidence on the particular point

at issue.” Selle, 741 F.2d at 903.

Calhoun had ample opportunity during discovery in

this case to obtain and introduce evidence that would

serve to either contradict the testimony in the affidavits

from The King’s Temple Church or impeach the affiants

themselves. Nonetheless, Calhoun did not introduce a

single piece of evidence or testimony to contradict or

impeach the evidence of independent creation. Calhoun’s

eleventh hour attempts to challenge the evidence of

independent creation amount to nothing more than specu-

lation and conjecture as to the inspiration behind McGee’s

creation-of the song “Emmanuel.” Such challenges are not

only procedurally improper, see Peel & Co. v. Rug Market,

238 F.3d 391, 394 (5th Cir. 2001), but they clearly do not

constitute a sufficient evidentiary basis to rebut McGee’s

evidence of independent creation. See Benson, 795 F.2d at

975.

In light of C.A. Music’s uncontradicted evidence of

independent creation, the Eleventh Circuit’s affirmance of

the district court’s decision in this case was justified.

C. Calhoun’s Claim Fails As A Matter Of Law

Because Calhoun Could Not Prove A Rea-

sonable Possibility Of Access.

Calhoun cannot satisfy the elements necessary to

create an indirect inference of copying. In order to create

such an inference, a plaintiff must demonstrate that the

alleged infringer had at least a reasonable opportunity to

view the allegedly infringed work. Herzog, 193 F.3d at

1249. Bare speculation regarding possible access is not

sufficient to meet the access requirement. Id. at 1250; see

also Selle, 741 F.2d at 901; Bouchat v. Baltimore Ravens,

Inc., 241 F.3d 350, 356 (4th Cir. 2000).

In the present case, both the Eleventh Circuit and the

district court found that Calhoun had failed to introduce

any evidence that McGee had a reasonable opportunity to

see or hear “Before His Eyes” prior to 1976. This finding is

well supported by the record, which demonstrates that

“Before His Eyes” received very little public exposure.

Calhoun has absolutely no evidence that his song was ever

played or broadcast in the Pacific Northwest between 1969

and 1976. Id. At the time that McGee independently

created the song “Emmanuel” at The King’s Temple

Church in Seattle, the song “Before His Eyes” had proba-

bly not made it out of the Southeastern United States, and

certainly not to the Pacific Northwest. In the absence of a

reasonable possibility of access, Calhoun’s claims fail as a

matter of law.

Calhoun argues that this Court should endorse a

sliding scale test that would allow for a lesser showing of

access when the works at issue are extremely similar.

Calhoun further argues that the works at issue here are

very similar and that he has submitted sufficient evidence

to meet this lessened standard for access.

ici ial ati k

The Eleventh Circuit, however, has never utilized such a

sliding scale test in copyright cases. In fact, a sliding scale

approach may not be compatible with this Court’s ruling in

Feist, which limits actionable similarities to original,

protectable elements. Feist, 499 U.S. at 361.

More importantly, even if a minimal standard for

access is appropriate, Calhoun still must present some

plausible evidence showing that McGee might have had

access to “Before His Eyes” before the creation of “Em-

manuel.” Calhoun cites the Seventh Circuit’s Selle case as

the basis for a sliding scale test, but the appellate court in

that case held:

Thus, although it has frequently been written

that striking similarity alone can establish ac-

cess, the decided cases suggest that this circum-

stance would be most unusual. The plaintiff

must always present sufficient evidence to

support a reasonable possibility of access

because the jury cannot draw an inference

of access based upon speculation and con-

jecture alone.

741 F.2d at 901 (emphasis added). While “striking similar-

ity alone can raise an inference of copying, that inference

must be reasonable in light of all the evidence.”

Bouchat, 241 F.3d at 356 (emphasis added); Gaste, 863

F.2d at 1068 (Where the works at issue are found to be

“strikingly similar,” the court may infer access from

“striking similarity,” but it need not do so). “It is clear that

a showing of striking similarity does not per se relieve the

plaintiff of his burden of establishing access.”’ Bouchat,

241 F.3d at 356.

The Sixth Circuit faced a similar factual situation in

Takeall v. Pepsico, Inc., 29 U.S.P.Q.2d 1913 (4th Cir.

1993).’ In that case, the plaintiff entertainer alleged to

have utilized a phrase in his ventriloquist act later

adopted by Pepsi in a nationwide marketing campaign.

Like Calhoun, Takeall’s act received limited public expo-

sure. Id. at 1914. Nonetheless, Takeall argued (as has

Calhoun) that the two works at issue were “strikingly

similar,” so a lower standard of proof of access was re-

quired. Id. at 1915.

The Fourth Circuit assumed the works were “strik-

ingly similar,” but still rejected the plaintiff’s argument.

The appellate court held that, even where works are

“strikingly similar,” it does not per se eliminate the need

for evidence of some reasonable possibility of access. Jd. at

1916. The court further held that the limited public

* There are federal circuit cases that hold that proving “striking

similarity” between the works removes the requirement of also proving

access. See Baxter v. MCA, Inc., 812 F.2d 421, 423 n.2 (9th Cir. 1987).

Yet the songs at issue here are not strikingly similar. Moreover, even if

the songs are strikingly similar, the uncontradicted evidence of

_independent creation negates any inference of copying created by a

finding of striking similarity. (See Section I (B), supra).

* Calhoun claims in his Petition that “there appear to be no cases

from other circuits where, as here, a showing of striking similarity was

made, but the issue of independent creation was decided against the

plaintiff as a matter of law based upon the defendant’s claim of

independent creation.” This is false. First, there was no finding of

“striking similarity” in this case, as shown above. Second, the Tukeall

case presents just such a situation. Indeed, the Fourth Circuit rejected

the exact same argument made here by Calhoun.

dissemination of the work — which appears to be more

widespread than the distribution of Calhoun’s work in this

case’ — was insufficient to form the basis for an inference

of access.‘ Id. at 1916-17. In the present case, the absence

of any probative evidence that there was a reasonable

possibility that McGee had access to “Before His Eyes”

prior to 1976 warranted the dismissal of Calhoun’s claim

at summary judgment.

Calhoun has also argued that he did not need to prove

access because the Eleventh Circuit found that the songs

at issue are “strikingly similar.” This argument also fails

because the Eleventh Circuit never made a legal finding of

“striking similarity” in this case. Instead, the appellate

court found that the two songs are “practically identical.”

Calhoun, 298 F.3d 1228 (Pet. App. 1 at 9). While seemingly

trivial, this distinction is critical because a finding of

* In fact, Takeall’s act seems to have received greater public

exposure than Calhoun’s, as Takeall traveled to different areas of the

country to perform.

* In his effort to demonstrate that McGee had access to “Before His

Eyes” — which received extremely little public exposure — Calhoun

consistently emphasizes that McGee, as a preacher in a “musical

church,” was among the most likely people to be exposed to Calhoun’s

music. Such statements constitute both speculation and hypocrisy.

Calhoun began serving as the organist of a Methodist church in 1989.

Since that time, Calhoun’s Methodist church used a hymnal that

contained the song “Emmanuel,” one of the most popular gospel hymns

during the relevant period. Nonetheless, in order to circumvent the

tained that he neither heard nor saw the song “Emmanuel” until 1997.

As the district court pointed out, if Calhoun had used “an iota of

diligence” he would have encountered the song “Emmanuel” long

before. Calhoun’s attempt to argue now that McGee's position in a

“musical church” somehow demonstrates that McGee had access to

“Before His Eyes” should therefore be ignored.

“striking similarity” can create an inference that McGee

had access to “Before His Eyes,” which Calhoun cannot

establish through the evidence in the record.’

Moreover, the remainder of the Eleventh Circuit’s

opinion demonstrates that no finding of “striking similar-

ity” can be inferred from the use of the phrase “practically

identical.” For instance, in order for two works to be

“strikingly similar” in the context of a copyright infringe-

ment analysis, the works must be “so strikingly similar as

to preclude the possibility of independent creation.”

Ferguson, 584 F.2d at 113; see also Benson, 795 F.2d at 975

n.2. As one copyright treatise explained,

[E]ven when similarity is verbatim, it may not

constitute “striking similarity” if what is common

to both works is commonplace, or at least some-

times found in other works. In such circum-

stances, the similarity between the two works

may be explained by a common source, or even

by coincidental similarity.

MELVILLE B. NIMMER AND DAVID NIMMER, NIMMER ON

“Emmanuel” was independently created as a matter of

law, implicitly rejecting any finding of “striking similarity.”

In the Benson case, the plaintiff songwriter also tried

to avoid the necessary showing of access by arguing that

the songs were strikingly similar. 795 F.2d at 974-75. The

* As the Seventh Circuit pointed out, the term “strikingly similar”

is often used in a conclusory or circular fashion, so it can be difficult to

propound a meaningful definition of the term. See Selle, 741 F.2d at

903.

plaintiff relied on an expert who had testified that “the

works were so similar that the average listener would

believe them the same.” Jd. at 975 n.2. The court rejected

the plaintiff’s argument that no proof of access was

necessary, stating that “[the expert’s] opinion does not

address the crucial element of ‘striking similarity’: that

the only possible explanation is copying.” Id.; see also

Selle, 741 F.2d at 904 (rejecting “striking similarity”

argument where plaintiff’s expert, while using the magic

words “striking similarity,” only ruled out the possibility of

independent creation without affirmatively saying that

similarities could only be the result of copying).

Likewise, the Eleventh Circuit in this case never

found that the only explanation for the songs’ similarities

was copying by McGee. Indeed, the Eleventh Circuit found

that the uncontradicted evidence in the record demon-

strated that McGee had not copied the work as a matter of

law, but had instead independently created “Emmanuel.”

Further, the Eleventh Circuit, like the appellate court in

Benson, found that, given the simple nature of the work,

“it is not surprising that a simple composition of a short

length might well be susceptible to original creation by

more than one composer.” Calhoun, 298 F.3d 1228 (Pet.

App. 1 at 9); see also Benson, 795 F.2d at 975 n.2; Selle,

741 F.2d at 904 (holding that “striking similarity” doctrine

should be limited to works involving sufficiently unique or

complex subject matter).

Because McGee did not have a reasonable opportunity

to see or hear “Before His Eyes” prior to 1976, Calhoun’s

songs at issue are not strikingly similar, and the Eleventh

Circuit made no such finding. Accordingly, the Eleventh

Circuit’s affirmance of the district court’s decision was

correct.

CONCLUSION

WHEREFORE, because the courts below have prop-

erly interpreted and applied the principles of copyright

law, Respondents respectfully request that the Court deny

the Petition for Writ of Certiorari.

Respectfully submitted,