Three Boys Music Corp. v. Bolton

Court of Appeals for the Ninth Circuit
212 F.3d 477 (2000)

ELI5:

Rule of Law:

A jury's verdict of copyright infringement can be sustained based on circumstantial evidence that establishes a 'reasonable possibility' of access, even if attenuated, combined with a finding of substantial similarity. An appellate court will not substitute its own judgment for the jury's credibility determinations and factual findings in such cases.

Facts:

In 1964, the Isley Brothers wrote, recorded, and copyrighted the song 'Love is a Wonderful Thing'.
In 1966, the song was released as a single, received airplay on radio and television in various regions, and was listed for one week at number 110 on Billboard's 'Bubbling Under the Hot 100' chart.
At that time, Michael Bolton and Andrew Goldmark were teenagers in Connecticut who were avid listeners of rhythm and blues music, the genre of the Isley Brothers' song.
Bolton was a self-professed fan of the Isley Brothers and, upon meeting Ronald Isley years later, stated he had 'all his stuff'.
In 1990, Bolton and Goldmark co-wrote a song, also titled 'Love Is a Wonderful Thing,' which became a major hit in 1991.
During a work-tape recording session for their song, Bolton asked Goldmark if the melody they were creating was Marvin Gaye's 'Some Kind of Wonderful,' suggesting he thought it might be similar to another artist's work.

Procedural Posture:

Three Boys Music Corporation, on behalf of the Isley Brothers, filed a copyright infringement action against Michael Bolton, Andrew Goldmark, and Sony Music in the U.S. District Court.
The parties agreed to a trifurcated trial (three phases: liability, profit allocation, and damages).
In the first phase, the jury found that the appellants had infringed the Isley Brothers' copyright.
In the second phase, the jury determined that the infringing song accounted for 28% of the album's profits and that 66% of the song's profits were from the infringing elements.
The district court denied the appellants' motions for judgment as a matter of law and for a new trial.
The district court also denied a second, untimely motion for a new trial based on newly discovered evidence.
After the third phase on damages calculation, the district court entered a final judgment of approximately $5.4 million against the appellants.
The appellants (Bolton, Goldmark, and Sony Music) appealed the judgment to the U.S. Court of Appeals for the Ninth Circuit.

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Issue:

Is there sufficient evidence to support a jury's verdict of copyright infringement where access is based on a circumstantial theory of widespread dissemination and subconscious copying from twenty-five years prior, and the works share a combination of unprotectable musical elements?

Opinions:

Majority - D.W. Nelson

Yes, there is sufficient evidence to support the jury's verdict. A jury's finding of copyright infringement is entitled to substantial deference and will be affirmed if supported by substantial evidence. Although the evidence of access was circumstantial and attenuated, the combination of Bolton's and Goldmark's immersion in rhythm and blues music as teenagers, testimony of the song's radio and television dissemination in their region, Bolton's professed admiration for the Isley Brothers, and his own on-tape comment about potentially copying another artist created a 'reasonable possibility'—not a 'bare possibility'—of access. The jury was entitled to believe this evidence and infer subconscious copying. Similarly, the jury's finding of substantial similarity, based on expert testimony identifying a unique combination of five otherwise unprotectable musical elements, was a factual determination that the court will not disturb. The burden then shifted to the defendants to prove independent creation, and a reasonable juror could reject their defense.

Analysis:

This case solidifies the principle of judicial deference to jury verdicts in fact-intensive copyright infringement lawsuits, particularly regarding circumstantial evidence of access. It affirms that a 'reasonable possibility' of access can be established through a collection of indirect evidence, even when the original work had limited commercial success and the alleged copying occurred subconsciously decades later. The decision lowers the practical threshold for plaintiffs to get to a jury on an access claim, reinforcing the power of the 'subconscious copying' doctrine. Consequently, it signals that defendants face a high bar in overturning an adverse jury verdict on appeal if there is any plausible, albeit weak, chain of evidence supporting access.

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