Selle V. Gibb
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''Selle v. Gibb'', 741 F.2d 896 (7th Cir. 1984) was a landmark ruling on the doctrine of striking similarities. The U.S. Court of Appeals for the Seventh Circuit ruled that while copying must be proved by access and substantial similarity, where evidence of access does not exist, striking similarities may raise an inference of copying by showing that the work could not have been the result of independent creation, coincidence, or common source. Striking similarity alone is not enough to infer access. The similarity must preclude independent creation in order to infer access.


Background

In the fall of 1975, Ronald H. Selle (born August 7, 1946), a Hazel Crest, Illinois resident and at that time, a Chicago clothing salesman for Carson, Pierie and Scott and part-time musician, wrote a song called "Let it End." Selle holds a master's degree in Music Education from the
University of Illinois The University of Illinois Urbana-Champaign (UIUC, U of I, Illinois, or University of Illinois) is a public university, public land-grant university, land-grant research university in the Champaign–Urbana metropolitan area, Illinois, United ...
. To support his wife Joanne and their daughter and two sons, he supplemented his income with a three-piece band that performed engagements around the Chicago area, worked as a church choir director, and occasionally wrote religious and secular music. Selle claimed the melody for "Let it End" came to his mind while getting ready for work one morning. He wrote it down and developed it further while at work, then came home from work later that day, sitting at a piano and completing it by the end of the night. He was issued a copyright for the completed song on November 17, 1975, by the U.S. Copyright Office. Shortly afterwards, Selle and his fellow musicians recorded the song in a studio setting, with Selle singing the lyrics. Within a year after recording the song (the recording was played at trial), Selle mailed it to fourteen music publishers. None of them responded, with all but three returning his material. In May 1978, while working in his yard, Selle heard his teenaged next-door neighbor playing the Bee Gees song " How Deep Is Your Love" rather loudly on a cassette player and asked him what the song was, having heard it for the first time. Selle recognized the song as his melody but with different lyrics. After learning it was featured in the movie ''
Saturday Night Fever ''Saturday Night Fever'' is a 1977 American Dance in film, dance Drama (film and television), drama film directed by John Badham and produced by Robert Stigwood. It stars John Travolta as Tony Manero, a young Italian Americans, Italian-America ...
'', Selle examined the cassette jacket for the soundtrack, seeing that the songwriting credit was for the Bee Gees. Later, Selle went and saw the movie, where he again heard the song and recognized the melody as his own. Selle filed suit in U.S. District Court for the Northern District of Illinois, accusing Barry, Robin & Maurice Gibb, their record label distributor Polygram, and
Paramount Pictures Paramount Pictures Corporation, commonly known as Paramount Pictures or simply Paramount, is an American film production company, production and Distribution (marketing), distribution company and the flagship namesake subsidiary of Paramount ...
of
misappropriation In law, misappropriation is the unauthorized use of another's name, likeness, identity, property, discoveries, inventions, etc. without that person's permission, resulting in harm to that person. Another use of the word refers to intentional a ...
and
copyright infringement Copyright infringement (at times referred to as piracy) is the use of Copyright#Scope, works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the c ...
.


District Court trial

Selle requested a jury trial, which began on February 20, 1983, in the U.S. District Court for Northern Illinois, the Honorable Judge George N. Leighton presiding. In opening statements Selle's attorney, Allen Engerman, established that Selle's case was based on the doctrine of striking similarities. The
Bee Gees The Bee Gees were a musical group formed in 1958 by brothers Barry Gibb, Barry, Robin Gibb, Robin, and Maurice Gibb. The trio was especially successful in popular music in the late 1960s and early 1970s, and later as prominent performers in ...
' defense attorney established their case was based on lack of access and the fact that similarities alone, without proof of access, could not prove copying. The defense would show that any similarities were coincidental and were due to the limited note range in
popular music Popular music is music with wide appeal that is typically distributed to large audiences through the music industry. These forms and styles can be enjoyed and performed by people with little or no musical training.Popular Music. (2015). ''Fun ...
and were not the result of copying. On
direct examination The direct examination or examination-in-chief is one stage in the process of adducing evidence from witnesses in a court of law. Direct examination is the questioning of a witness by the lawyer/side/party that called such witness in a trial. ...
, Selle testified as to how he wrote his song, made the demo tape and wrote the sheet music, copyrighted it, and then sent it off to fourteen music publishers. He explained that eleven publishers returned his materials unopened, while three publishers never replied. As his evidence that the Bee Gees had infringed on his copyright, Selle offered two exhibits that showed a comparison of the eight opening and eight closing bars of his song,"Let it End," to the opening and closing bars for " How Deep Is Your Love." On
cross-examination In law, cross-examination is the interrogation of a witness by one's opponent. It is preceded by direct examination (known as examination-in-chief in Law of the Republic of Ireland, Ireland, the Law of the United Kingdom, United Kingdom, Austra ...
, the Bee Gees attorney, Robert Osterberg, presented Selle with several Bee Gees songs that predated his that also contained those same eight bars of
melody A melody (), also tune, voice, or line, is a linear succession of musical tones that the listener perceives as a single entity. In its most literal sense, a melody is a combination of Pitch (music), pitch and rhythm, while more figurativel ...
, as well as the
Beatles The Beatles were an English Rock music, rock band formed in Liverpool in 1960. The core lineup of the band comprised John Lennon, Paul McCartney, George Harrison and Ringo Starr. They are widely regarded as the Cultural impact of the Beatle ...
song, "
From Me to You "From Me to You" is a song by the English rock band the Beatles that was released in April 1963 as their third single. It was written by John Lennon and Paul McCartney. The song was the Beatles' first number 1 hit on what became the UK Singles ...
." Selle admitted that there were some similarities, primarily in melody rather than rhythm, between his song and "From Me To You" and the earlier Bee Gee compositions. Selle offered an expert witness, Arrand Parsons. Parsons had a background in
classical music Classical music generally refers to the art music of the Western world, considered to be #Relationship to other music traditions, distinct from Western folk music or popular music traditions. It is sometimes distinguished as Western classical mu ...
. However, under cross-examination, Parsons admitted that he did not know whether or not there is a great deal of similarity between songs in the popular music genre. He could not testify that the similarities between "Let it End," and "How Deep is Your Love," could only have been caused by copying and not by independent creation or coincidence or prior common source. The Bee Gees entered a work tape and lead sheet and a finished demo tape into evidence.
Barry Gibb Sir Barry Alan Crompton Gibb (born 1 September 1946) is a British musician, singer, songwriter and record producer. Along with his younger fraternal twin brothers, Robin Gibb, Robin and Maurice Gibb, Maurice, he rose to global fame as a member ...
and the Bee Gees' keyboard player,
Blue Weaver Derek John "Blue" Weaver (born 11 March 1947) is a Welsh rock keyboardist, session musician, songwriter and record producer. Career Weaver's career as a musician began as a co-founding member of 1960s Welsh rock band Amen Corner and its succ ...
, as well as manager Dick Ashby, and record producer,
Albhy Galuten Albhy Galuten (born Alan Bruce Galuten; December 27, 1947) is an American technology executive and futurist, Grammy Award-winning record producer, composer, musician, orchestrator and conductor. Career Musical career Galuten attended Berkle ...
, gave testimony on the process the Bee Gees used to come up with "How Deep is Your Love." Barry Gibb explained that he and his brothers could not read or write music, but employed others skilled for this purpose. Thus, they worked out songs using a piano and a process of trial and error as they did in creating "How Deep is Your Love." Their staff then translated the draft to musical notes. Maurice and
Robin Gibb Robin Hugh Gibb (22 December 1949 – 20 May 2012) was a British singer and songwriter. He gained global fame as a member of the Bee Gees with elder brother Barry and fraternal twin brother Maurice. Robin Gibb also had his own successfu ...
corroborated their testimony. They also testified that the brothers and their staff had gone to the Château d'Hérouville, a recording studio in France, in January 1977. There, they had composed six songs, using their usual process, for the soundtrack to
Saturday Night Fever ''Saturday Night Fever'' is a 1977 American Dance in film, dance Drama (film and television), drama film directed by John Badham and produced by Robert Stigwood. It stars John Travolta as Tony Manero, a young Italian Americans, Italian-America ...
, as well as mixed a live album. Selle did not challenge their testimony, nor the evidence the Bee Gees offered. The defense rested after this testimony and did not call their expert witnesses to the stand. The trial lasted four days. On the fifth day, the jury returned a verdict for the plaintiff. The jury foreman, Earl Wiler later explained that the Bee Gees had not offered any evidence or testimony to counter the plaintiff's expert witness, Arrand Parsons. Another juror said that, "If we made a mistake, they can afford it." The Bee Gees attorney immediately moved for a
judgment notwithstanding the verdict In the United States, Judgment notwithstanding the verdict, also called judgment ''non obstante veredicto'', or JNOV, is a type of judgment as a matter of law that is sometimes rendered at the conclusion of a jury trial. In American state courts ...
, arguing that Selle had not met his burden of proof. On April 22, 1983, Judge Leighton granted the motion. In reviewing the record, Judge Leighton wrote in his decision, "the verdict in favor of the plaintiff was against the manifest weight of the evidence and its return by the jury represents a
miscarriage of justice A miscarriage of justice occurs when an unfair outcome occurs in a criminal or civil proceeding, such as the conviction and punishment of a person for a crime they did not commit. Miscarriages are also known as wrongful convictions. Innocent ...
."


Appeals Court findings

Selle appealed Judge Leighton's ruling to the Seventh Circuit Court of Appeals. He claimed that the District Court had misunderstood his theory of proof which was that striking similarities alone were enough to infer access and offered supporting case law. The case was argued April 13, 1984 and the decision rendered July 23, 1984. In affirming Judge Leighton's ruling, Judge Richard Dickson Cudahy wrote in the opinion that while, "It is often written that striking similarities alone can establish access, the decided cases suggest that this circumstance would be most unusual. The plaintiff must always present sufficient evidence to support a reasonable possibility of access because the jury cannot draw an inference of access based upon speculation and conjecture alone." Cudahy cited ''Twentieth Century-Fox Film Corp. v. Dieckhaus'', 153 F.2d 893 (8th Cir.), cert. denied, 329 U.S. 716, 67 S. Ct. 46, 91 L.Ed. 621 (1946). He concluded that ". . .although proof of striking similarity may permit an inference of access, the plaintiff must still meet some minimum threshold of proof which demonstrates that the inference of access is reasonable." The Court said, "Selle did not establish a basis from which the jury could reasonably infer that the Bee Gees had access to his song and to meet the burden of proving "striking similarity" between the two compositions." Because Selle could not do this, the Court affirmed the district court's ruling overturning the jury verdict.


See also

*
Copyright law of the United States The copyright law of the United States grants monopoly protection for "original works of authorship". With the stated purpose to promote art and culture, copyright law assigns a set of exclusive rights to authors: to make and sell copies of the ...
* Bee Gees discography


References


External links


United States Court of Appeals for the Seventh Circuit

Recent opinions from FindLaw

Official wiki of the United States Court of Appeals for the Seventh Circuit
— Launched April 18, 2007
The Seventh Circuit Review
{{Copyright law by country United States copyright case law United States Court of Appeals for the Seventh Circuit cases 1984 in United States case law Bee Gees United States District Court for the Northern District of Illinois cases