Ronald H. Selle v. Barry Gibb, 741 F. 2d 896 (7th Cir. 1984).
Selle, the composer of “Let It End” (1975), sued the Bee Gees for copyright infringement of his song by Bee Gees’ song “How Deep Is Your Love.” Selle’s expert witness, Dr. Parsons, a professor of music at Northwestern University, testified at trial that the first eight bars of each song have 24 of 36 notes in Selle’s composition, and 24 of 40 notes in Bee Gees’ composition which are identical in pitch and symmetrical position; that of 35 rhythmic impulses in Selle’s composition and 40 in Bee Gees’, 30 are identical; and that in the last four bars of both songs, 14 notes in each are identical in pitch, and 11 of the 14 rhythmic impulses are identical. Dr. Parsons testified that, in his opinion, “the two songs had such striking similarities that they could not have been written independently of one another.” The jury returned a verdict for Selle, but the Judge granted Bee Gees’ motion for judgment notwithstanding the verdict. Simply, despite the jury verdict in favor of Selle, the Judge ruled in favor of Bee Gees, i.e., that the songs are not strikingly similar as to hold there was copyright infringement by one song of another. 7th Circuit affirmed. 7th Circuit relied on the fact that Bee Gees and its associates testified as to how the song was made independently and submitted the work tape which depicted the process by which ideas, notes, lyrics, and bits of the tune were gradually put together. Also, the court pointed out that none of the Bee Gees’ members were in Chicago when Selle performed the song in public 2 or 3 times in the Chicago area.
To prove copyright infringement, there must be copying, both copying in fact AND copying in law. Copying in fact refers to actual copying of a work, i.e., work is not created independently. Copying in law means copying copyrightable elements within the work. Copying copyrightable elements may constitute copyright infringement. Copying a not copyrightable element will not constitute copyright infringement.
Here, Selle failed to prove “copying in fact”, the actual copying. The best evidence of actual copying is to prove that the alleged infringer had access to the allegedly infringed work. But this can rarely be proved. Thus, courts have held that the similarities so extensive and striking, as to be highly unlikely to have been an accident of independent creations, in some cases, can be evidence of access (i.e., inferred access). Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946); Ty, Inc. v. GMA Accessories, Inc., 132 F. 3d 1167 (7th Cir. 1997); Ronald H. Selle v. Barry Gibb, 741 F. 2d 896 (7th Cir. 1984).
The court did not find the extensive and striking similarity between the two songs so as to infer access, in Selle.
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