Ray Repp & K & R Music, Inc. v. Webber
132 F.3d 882 (1997)
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Rule of Law:
In a copyright infringement case, a plaintiff can defeat a defendant's motion for summary judgment by presenting credible expert testimony that two works are so 'strikingly similar' as to preclude the possibility of independent creation, thereby creating a triable issue of fact regarding access.
Facts:
- Ray Repp, a composer of liturgical music, wrote and copyrighted the song 'Till You' in 1978.
- Since 1978, 'Till You' was distributed on albums, cassettes, and in sheet music, with Repp ordering at least 18,000 album copies for sale or distribution.
- Repp performed 'Till You' in over two hundred concerts in the United States and abroad to an estimated audience of over 100,000 people.
- Andrew Lloyd Webber, a highly successful composer, composed 'Phantom Song' in late 1984 for his musical 'The Phantom of the Opera'.
- Lloyd Webber stated that he and Sarah Brightman created the melody for 'Phantom Song' at his home in England in 1983 and that he had never heard of Repp or his music.
- In 1968, Lloyd Webber composed the song 'Close Every Door' for his musical 'Joseph and the Amazing Technicolor Dreamcoat,' which was released on an album in 1969.
Procedural Posture:
- Ray Repp and K & R Music, Inc. sued Andrew Lloyd Webber and his licensees in the U.S. District Court for the Southern District of New York for copyright infringement.
- Lloyd Webber counterclaimed, alleging Repp's song infringed on one of his earlier works.
- The defendants moved for summary judgment on Repp's claim.
- The district court granted summary judgment for the defendants, dismissing Repp's infringement claim.
- Following a separate bench trial on the counterclaims, the district court entered judgment for Repp, dismissing the defendants' counterclaims.
- Repp (as appellant) appealed the grant of summary judgment against him to the U.S. Court of Appeals for the Second Circuit.
- Lloyd Webber (as cross-appellant) appealed the judgment dismissing his counterclaims.
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Issue:
Does a copyright infringement claim survive summary judgment when, despite a lack of direct proof of access, the plaintiff presents expert testimony asserting that the two works are so 'strikingly similar' that they could not have been created independently?
Opinions:
Majority - Miner, Circuit Judge
Yes. A copyright infringement claim survives summary judgment where a plaintiff provides sufficient expert testimony to create a genuine issue of material fact as to whether the works are strikingly similar. The court reasoned that to prove infringement, a plaintiff must demonstrate copying, which can be shown indirectly through access and probative similarity. Critically, if two works are so strikingly similar as to preclude the possibility of independent creation, access may be inferred without direct proof. Here, Repp presented testimony from two highly qualified musicology experts who concluded that 'Phantom Song' and 'Till You' were strikingly similar and that independent creation was precluded. The district court erred by resolving this factual dispute on its own—weighing the competing expert testimonies and conducting its own 'aural examination'—rather than identifying it as a genuine issue of material fact for a jury. The court's role on summary judgment is issue identification, not issue resolution, and the conflicting expert opinions created a triable issue that a reasonable jury could resolve in the plaintiff's favor.
Analysis:
This decision reinforces the high bar for granting summary judgment in copyright cases involving disputed expert testimony. It affirms that the question of 'striking similarity' is a factual one for the jury, not a legal one for a judge to decide pre-trial, especially when faced with conflicting expert reports. The ruling is significant for plaintiffs who may have a strong case for similarity but lack direct evidence of access, preventing their claims from being dismissed prematurely. It solidifies the principle that a credible claim of striking similarity is sufficient to create an inference of access and defeat a summary judgment motion.
