Selle v. Gibb
741 F.2d 896 (1984)
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Rule of Law:
To prove copyright infringement through circumstantial evidence, a plaintiff must establish that the defendant had access to the plaintiff's work. While access can be inferred from a 'striking similarity' between the works, the plaintiff must still present some evidence that creates more than a bare possibility of access and demonstrates that the similarity is so striking as to preclude the possibility of independent creation, coincidence, or common source.
Facts:
- In the fall of 1975, Ronald H. Selle composed the song 'Let It End' and secured a copyright for it.
- Selle performed the song with his band two or three times in the Chicago area.
- He also sent a tape and sheet music of the song to eleven music recording and publishing companies.
- Eight of the companies returned the materials, while three did not respond; this was the full extent of the song's public dissemination.
- In January 1977, the Gibb brothers (the Bee Gees) composed the song 'How Deep Is Your Love' at a recording studio in France.
- The Bee Gees and their staff provided detailed testimony and evidence, including work tapes, demonstrating their independent creation process.
- In May 1978, Selle heard 'How Deep Is Your Love' and believed its music was copied from his song.
- A music expert for Selle testified that the songs had 'striking similarities' and could not have been written independently, but he did not testify that copying was the only possible explanation.
Procedural Posture:
- Ronald H. Selle sued the Gibb brothers, Paramount Pictures Corp., and Phonodisc, Inc. in the U.S. District Court for the Northern District of Illinois for copyright infringement.
- The trial was bifurcated, with the issue of liability decided first.
- A jury returned a verdict in favor of the plaintiff, Selle, finding the defendants liable.
- The defendants filed a motion for judgment notwithstanding the verdict (JNOV) and, alternatively, for a new trial.
- The district court judge granted the defendants' motion for judgment notwithstanding the verdict.
- Selle, as the appellant, appealed the district court's grant of JNOV to the U.S. Court of Appeals for the Seventh Circuit.
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Issue:
Does a plaintiff establish a claim for copyright infringement by showing a 'striking similarity' between two musical compositions, when there is no direct evidence of access and only a speculative, bare possibility that the defendant could have encountered the plaintiff's work?
Opinions:
Majority - Cudahy, Circuit Judge
No. A plaintiff cannot establish a claim for copyright infringement based on striking similarity alone where there is no more than a bare possibility that the defendant had access to the plaintiff's work. To prove infringement, a plaintiff must show copying. While copying can be proven circumstantially through evidence of access and substantial similarity, a plaintiff who lacks direct proof of access cannot rely solely on the similarity of the works. Even a claim of 'striking similarity' requires some threshold of proof that the defendant had a reasonable possibility—not a bare, speculative one—of having access to the original work. Here, Selle's song had only de minimis public dissemination, which was insufficient to create a reasonable possibility that the Bee Gees, who were in France during the creation of their song, could have heard it. The court found that an inference of access would be 'at war with the undisputed facts,' which included the Bee Gees' uncontradicted and credible testimony about their independent creation process. Furthermore, the plaintiff failed to meet the legal standard for 'striking similarity,' which requires showing the similarities are so unique they can only be explained by copying, and not by coincidence, independent creation, or prior common source. The plaintiff's expert did not rule out these other possibilities, thus failing to meet this high burden of proof.
Analysis:
This case significantly clarifies the 'striking similarity' doctrine in copyright law, establishing that it is not a complete substitute for the access requirement. The court's holding prevents infringement claims from proceeding based on pure speculation, thereby protecting creators from lawsuits arising from coincidental similarities. It sets a high bar for what constitutes legally 'striking' similarity, requiring expert testimony that systematically rules out explanations other than copying. This decision makes it more difficult for plaintiffs with minimally disseminated works to succeed against famous artists by reinforcing that some plausible chain of access must be shown.
