Court: Court of Appeals for the Second Circuit; December 29, 1997; Federal Appellate Court
Plaintiffs Ray Repp and K. R Music, Inc. appeal a summary judgment from the Southern District of New York that favored defendants Andrew Lloyd Webber and associated entities in a copyright infringement case. Repp, an established composer of liturgical music, claims that Lloyd Webber’s 'Phantom Song' copies his song 'Till You,' which he composed in 1978 and registered with the U.S. Copyright Office. Repp has a significant history in music, having published over one hundred twenty compositions and performed internationally, with 'Till You' included in various albums and hymnals. He asserts that approximately 25,000 copies of the sheet music were distributed and that he personally ordered 18,000 copies of the album 'Benedicamus.' Although he lacks comprehensive sales records, he has performed 'Till You' at over 200 concerts, estimating that more than one hundred thousand people have heard his work. Repp argues that Lloyd Webber had access to his music and may have copied it, whether intentionally or unintentionally. The court also addressed a cross-appeal where Lloyd Webber's counterclaims against Repp were dismissed after a non-jury trial. The appellate court reversed the summary judgment against Repp and K. R., while affirming the trial judgment that dismissed Lloyd Webber's counterclaims.
Andrew Lloyd Webber is a highly successful composer with over 300 published works, known for iconic musicals such as 'Joseph and the Amazing Technicolor Dreamcoat,' 'Jesus Christ Superstar,' 'Cats,' 'Evita,' 'Starlight Express,' 'Song and Dance,' 'Aspects of Love,' 'Sunset Boulevard,' and 'The Phantom of the Opera.' He completed the 'Phantom Song' in late 1984, which was recorded by Sarah Brightman and Steve Harley in 1985 and released as a single in January 1986. The musical 'Phantom of the Opera' premiered in London in 1986 and was registered with the U.S. Copyright Office in 1987, opening on Broadway in 1988.
'Joseph,' initially presented as a choral work in 1968, features the song 'Close Every Door,' which became a staple in later adaptations. Lloyd Webber and lyricist Tim Rice expanded 'Joseph' into a full-length musical after its initial success. In 1989, Lloyd Webber’s company, Really Useful Group, acquired all rights to 'Joseph' and its music, including 'Close Every Door,' which was also registered with the Copyright Office. The original 1969 album release by Decca Records included 'Close Every Door' as its first single, which achieved significant sales and radio play in the U.S.
Lloyd Webber claims that the extensive exposure of 'Close Every Door' and Repp’s interest in musical theater provide evidence of access, asserting that Repp’s work 'Till You' bears significant similarities to 'Close Every Door.' The defendants filed a summary judgment motion following the conclusion of fact and expert discovery, supported by a declaration from Lloyd Webber stating he began composing 'Phantom Song' in late 1983 at his home in England, with Brightman assisting in the development of the melody.
Lloyd Webber did not complete the 'Phantom Song' until 1984 due to other commitments. Ms. Brightman confirmed his account, stating that he asked her to sing as he played the music, modifying the melody and chords during the session. In September 1984, she accompanied him to a meeting with producer Michael Batt, leading to the recording of 'Phantom Song' at Air Studios in October 1984. Both Lloyd Webber and Brightman claimed they were unaware of Ray Repp and his music before the litigation. Lloyd Webber expressed a dislike for 'pop church music,' only engaging with 'the English Choral tradition.' Although Repp suggested a connection through Robert Velline, Velline had minimal interaction with Lloyd Webber, knowing him primarily through his brother and having received Repp’s album in 1979.
To support his motion for summary judgment, Lloyd Webber presented affidavits and a report from Dr. Lawrence Ferrara, a musicologist. Ferrara identified two phrases in 'Till You' and three in 'Phantom Song,' concluding that the third phrase of 'Phantom Song' was a variant of the first phrase. He traced the first phrase back to Lloyd Webber's earlier works and public domain pieces, while the second phrase was primarily derived from 'Close Every Door.' He noted greater similarity between 'Close Every Door' and 'Till You' than between 'Phantom Song' and 'Till You,' suggesting that any similarities arose from Lloyd Webber's independent creation.
In response, plaintiffs submitted analyses from Professors H. Wiley Hitchcock and James Mack. Professor Hitchcock provided a detailed thirty-five-page analysis, claiming that 'Phantom Song' is based on 'Till You.' He found the rhythmic and metrical characteristics of both pieces identical, despite differences in harmonic modes, and emphasized that the melody was the most critical aspect of their comparison.
Hitchcock analyzed the melodies of "Till You" and "Phantom Song," concluding that their similarities are substantial enough to suggest that "Phantom Song" is based on "Till You." Professor Mack, who has extensive experience in music composition and performance, supported Hitchcock's findings, noting even greater harmonic similarities and emphasizing the importance of aural impressions in commercial music. He concluded that the similarities between the two songs are so pronounced that they preclude the possibility of independent creation.
The district court, in granting summary judgment to the defendants, concurred with their argument that plaintiffs could not prove Lloyd Webber had access to "Till You" prior to composing "Phantom Song." The court found insufficient evidence to establish a chain of events suggesting Lloyd Webber had exposure to Repp's song, citing Lloyd Webber's categorical denial of any access and the lack of a connection between him and Robert Velline that would imply access. Additionally, the court noted deficiencies in the plaintiffs' evidence regarding the distribution of "Till You," highlighting the absence of documentation on the number of copies distributed, specifics of the album's distribution, and the failure to show that "Till You" was distinctly advertised. Despite Lloyd Webber's interest in church music, there was no proof that he had attended performances of Repp's work.
The district court found that the plaintiffs did not demonstrate sufficient similarity between 'Till You' and 'Phantom Song' to infer copying without direct proof of access. The court noted that, despite some shared notes, the songs differed significantly in tempo, style, harmony, key, and mode, as acknowledged by the plaintiffs' expert, Prof. Hitchcock. Consequently, the court accepted the defense of independent creation, supporting the declarations of Lloyd Webber and Brightman regarding the creation of 'Phantom Song' in 1983 and its further development in 1984, with no evidence from the plaintiffs contradicting this. The court dismissed the plaintiffs' state claims of unfair competition and deceptive trade practices due to lack of jurisdiction and complete diversity of citizenship, a decision the plaintiffs did not contest.
In regard to the counterclaims, the district court denied a motion to dismiss, suggesting a reasonable jury could find that Repp had access to 'Close Every Door' due to its public dissemination. There was also a factual dispute regarding the substantial similarity of the works. During the trial, Lloyd Webber testified he had not heard 'Till You' before filing the counterclaim, which was based on Professor Ferrara's analysis. Ferrara identified twelve shared melodic pitches, with nine in identical sequence, noting structural similarities in the songs. Repp testified he did not copy 'Close Every Door' and perceived no similarity between the two pieces, having first heard it during a live performance in 1982. Supporting Repp, Professor Mack emphasized the distinct dissimilarity of the songs, highlighting differences in meter, mode (major vs. minor), and rhythm.
Mack conducted an analysis of harmony, melody, mode, meter, and rhythm, concluding that Repp did not copy from the song "Close Every Door." The district court, in dismissing Lloyd Webber's counterclaims, provided detailed findings of fact and legal conclusions, specifically rejecting claims of Repp's access to the song. The court accepted Repp’s testimony that he first encountered "Close Every Door" in 1982 during a performance of "Joseph," noting that the show's commercial success did not peak until after 1980, two years post-creation of Repp’s work "Till You." The court found insufficient evidence of sales and distribution prior to 1980 to imply access. On the matter of substantial similarity, the district court credited Mack's expert analysis, determining that Lloyd Webber failed to prove copying. The opinion highlighted deficiencies in Lloyd Webber's evidence and reiterated that a valid copyright infringement claim requires proof of unauthorized copying, either directly or indirectly, through access and similarity. If striking similarities exist, access might be inferred, and independent creation can serve as a defense to rebut infringement claims.
Infringement being 'subconscious' or 'innocent' does not diminish liability, though it may influence remedies, as established in ABKCO Music, Inc. v. Harrisongs Music, Ltd. Summary judgment is reviewed de novo, applying the same standard as the district court, which requires that no genuine issue of material fact exists for judgment to be warranted under Fed. R. Civ. P. 56(c). The mere presence of factual disputes does not defeat a properly supported motion; rather, there must be no genuine issue of material fact. The non-moving party must provide more than speculative doubts about material facts, and conclusory allegations are insufficient to create a genuine issue. A genuine dispute exists only if the evidence could reasonably lead a jury to favor the non-moving party, and factual materiality is determined based on applicable substantive law. In copyright infringement cases, the plaintiffs (the non-moving parties) bear the burden of proof. Defendants can meet their burden under Rule 56 by demonstrating a lack of evidence supporting an essential element of the plaintiffs' case. The court’s role in summary judgment is to identify genuine issues of material fact, not to resolve them, and it must assume the truth of the non-movant’s evidence. The district court was found to have erred by attempting to resolve material factual issues rather than identifying them for trial, and the defendants did not show the absence of evidence to support the plaintiffs’ claim, allowing for the possibility that a reasonable fact-finder could rule in favor of the plaintiffs.
The district court found that the plaintiffs could not demonstrate that Lloyd Webber had access to the song 'Till You' before composing 'Phantom Song.' The court dismissed the possibility of access through intermediary Robert Velline, citing uncertainties in his testimony and his denial of distributing Repp’s music. It also rejected the assertion of access based on the wide distribution of 'Till You,' stating that the plaintiffs’ evidence amounted to mere speculation. The court noted that while K. R. may have advertised Repp’s music, there was no indication that 'Till You' was specifically promoted.
In evaluating access, the court considered the advertisement and performance of 'Till You' in a specialized religious market but concluded that Lloyd Webber's interest in liturgical music did not imply he encountered Repp’s song or the Benedicamus recording during the relevant period. Despite the lack of direct evidence of access, the district court acknowledged that 'Phantom Song' bears striking similarities to 'Till You,' which could allow for an inference of access based on this similarity, as supported by legal precedents.
However, the court erred in dismissing the testimonies of expert musicologists Professors Hitchcock and Mack, who asserted that the similarities indicated 'Phantom Song' was based on 'Till You.' The district court's reliance on its own aural examination and the defendants’ expert testimony, while overlooking the plaintiffs’ compelling expert opinions, constituted a misjudgment regarding the factual determination of striking similarity. The existence of conflicting evidence on this matter meant that access, a critical element of the plaintiffs' case, could not be deemed unsupported. Lastly, the district court ruled that even if access and similarity were established, the plaintiffs failed to counter the defendants' claims of independent creation, accepting declarations from Lloyd Webber and Brightman about the song's creation process without requiring further evidence to challenge their account.
Plaintiffs reference a copyright text asserting skepticism towards independent creation claims, which defendants counter by arguing the comment is irrelevant to their evidence of independent creation. The district court accepted the testimony of interested witnesses regarding separate creation, but Professor Mack found the music pieces too similar to allow for independent creation. The court's error lies in resolving this disputed material fact. Independent creation is an affirmative defense that can counter a prima facie case of infringement, which the plaintiffs established through striking similarity. The sufficiency of independent creation evidence to rebut the plaintiffs' case is a matter for the factfinder.
The appellate court affirms the trial court's findings, noting that it reviews factual determinations for clear error and gives deference to the trial court's credibility assessments. The district court's thorough evaluation of evidence during a five-day trial led to a sound legal application, with no errors found in its findings or trial conduct. The district court accepted Repp's testimony regarding access to "Close Every Door," which occurred only after the creation of "Till You," and established that "Joseph" did not achieve commercial success until after 1980, indicating insufficient access. Expert testimony confirmed "Till You" was not copied from "Close Every Door." Consequently, the appellate court reverses the summary judgment dismissing plaintiffs' copyright infringement claims, remanding for further proceedings, while affirming the dismissal of defendants' counterclaims. The court clarifies terminology in copyright law, distinguishing between "probative similarity" for initial proof of copying and "substantial similarity" to establish unlawful copying.
