Nature of the Case
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Facts
P composed his song, 'Let It End,' in one day in the fall of 1975 and obtained a copyright for it on November 17, 1975. He played his song with his small band two or three times in the Chicago area and sent a tape and lead sheet of the music to eleven music recording and publishing companies. Eight of the companies returned the materials; three did not respond. This was the extent of the public dissemination of P's song. P heard D's song, 'How Deep Is Your Love,' in May 1978 and thought that he recognized the music as his own. P sued Ds for copyright infringement. Ds practice in composing a song was to tape a tune, which members of their staff would later transcribe and reduce to a form suitable for copyrighting, sale and performance by both the Bee Gees and others. Ds presented 3 witnesses who described in detail how, in January 1977, the Bee Gees and several members of their staff went to a recording studio in the Chateau d'Herouville about 25 miles northwest of Paris. There the group composed at least six new songs and mixed a live album. A work tape preserves the actual process of creation during which the brothers, and particularly Barry, created the tune of the accused song while Weaver, a keyboard player, played the tune which was hummed or sung by the brothers. Although the tape does not seem to preserve the very beginning of the process of creation, it does depict the process by which ideas, notes, lyrics and bits of the tune were gradually put together. The only expert witness to testify stated that the first eight bars of each song (Theme A) have twenty-four of thirty-four notes in P's composition and twenty-four of forty notes in Ds' composition which are identical in pitch and symmetrical position. Of thirty-five rhythmic impulses in P's composition and forty in Ds', thirty are identical. In the last four bars of both songs (Theme B), fourteen notes in each are identical in pitch, and eleven of the fourteen rhythmic impulses are identical. Both Theme A and Theme B appear in the same position in each song but with different intervening material. The expert opined that 'the two songs had such striking similarities that they could not have been written independent of one another.' The jury returned a verdict for the P on the issue of liability. The judge granted Ds' motion for judgment notwithstanding the verdict and, in the alternative, for a new trial. He relied primarily on P's inability to demonstrate that the defendants had access to P's song, without which a claim of copyright infringement could not prevail regardless how similar. P appealed.
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