Court: Court of Appeals for the Sixth Circuit; May 17, 1999; Federal Appellate Court
Everett A. Ellis appeals a district court ruling against him in a copyright infringement case involving his song "Lay Me Out By the Jukebox When I Die" and Joe Diffie's song "Prop Me Up Beside the Jukebox (If I Die)." The district court found substantial similarity between the choruses of the two songs; however, it determined that Ellis did not demonstrate that the defendants had access to his song and that they provided evidence of independent creation of Diffie's song. Consequently, the court applied the law correctly and ruled in favor of the defendants. Ellis, a self-taught musician, claims to have written "Lay Me Out" in 1985, inspired by a family story. He recorded songs in Nashville in 1991, where he met Johnny Slate, who allegedly promised him a writing position but later denied hearing "Lay Me Out." After returning to West Virginia, Ellis discovered Diffie's song in 1993 and pursued legal action for what he believed to be plagiarism.
The district court's opinion details witness testimony from the trial, noting that Ellis's initial deposition and complaint did not mention "Aunt Belle," only referring to "Lay Me Out." During discovery, the defendants provided a recording of "Aunt Belle," which they argue influenced Ellis's narrative about reworking the song. Several witnesses, including John Paul Thompson, supported Ellis's account, while expert witnesses provided conflicting opinions on the similarities between "Lay Me Out" and "Prop Me Up." Notably, Ellis did not claim that "Aunt Belle" was sufficiently similar to "Prop Me Up" to support a copyright infringement allegation.
Defendant Rick Blaylock described the development of "Prop Me Up," outlining that he was referred to Slate in the early 1990s, who suggested he collaborate with staff writers on a song initially titled "Double Two-Steppin' Honkeytonk," inspired by the movie "Weekend at Bernie's." Blaylock stated that the final song bore little resemblance to his original concept. The staff writers provided detailed accounts of the songwriting process, including notes and a work tape, asserting that Slate had minimal involvement during its creation. Although Slate acknowledged the possibility of exposure to Ellis's work, he maintained he did not have a recording of "Lay Me Out."
Following a three-day trial, the district court dismissed the case against all defendants on December 8, 1997, prompting Ellis to appeal. The standard of review for the appeal is based on Federal Rule of Civil Procedure 52(a), which stipulates that findings of fact should not be overturned unless deemed "clearly erroneous," as defined in United States v. United States Gypsum Co.
To prove copyright infringement, a plaintiff must demonstrate ownership of a valid copyright and that the defendant copied original elements of the work. Ownership of the copyright for "Lay Me Out" is undisputed; thus, the focus is on whether copying occurred. Direct evidence of copying is rare, so plaintiffs often infer it by showing the defendant had access to the work and that substantial similarity exists between the two works. The district court applied the "ordinary observer" test and found the choruses of the two works to be substantially similar, noting shared ideas, phraseology, rhythms, chord progressions, and melodic contours, while other elements like structures, lyrics, and melodies were distinct.
However, the court determined that Ellis failed to prove that the defendant songwriters had access to "Lay Me Out." Access entails having heard or had a reasonable chance to hear the work, and while evidence of a third party's possession could establish access, mere speculation is insufficient. The court found no convincing evidence that the defendant had access to Ellis's song, as the inferences drawn from the evidence presented were deemed speculative. Consequently, the court's factual findings and credibility assessments were upheld, as they were not found to be clearly erroneous under the Gypsum standard, which requires a strong conviction of a mistake.
Stronger similarities between two works reduce the need for compelling proof of access in copyright infringement cases. In Repp v. Lloyd Webber, it was noted that if the works are strikingly similar, the access requirement is less stringent. Conversely, in Selle v. Gibb, it was established that outstanding similarities must rule out independent creation by the defendant. The district court, while not explicitly addressing this principle, found substantial similarities in the choruses of the songs but noted other differences, implying that the similarity did not diminish Ellis's burden to prove access. The primary issue identified was Ellis's failure to demonstrate that his song "Lay Me Out" was recorded for Slate and remained in his possession.
Additionally, an inference of copying can be countered by evidence of independent creation, as seen in both Repp and Intersong-USA. The district court determined that the evidence of independent creation for "Prop Me Up" by its songwriters was strong enough to refute any suggestion of plagiarism, a point Ellis did not contest at trial. Consequently, the court upheld the district court's conclusion that Ellis failed to prove copyright infringement by a preponderance of the evidence, affirming the dismissal of his claim.
The defendants included Joe Diffie, songwriters Blaylock, Phillips, and Perdew, and various music companies. The ordinary observer test assesses similarities based on overall impression without expert analysis, although it has been criticized for its formulaic nature. While some circuits have adopted a dual approach requiring both extrinsic and intrinsic tests, this circuit has not established a specific test for substantial similarity, and the case primarily hinges on the issue of access.
