Thursday, May 19, 2016
Copyright & Music: Proving Infringement With Indirect Evidence
In Guzman v. Hacienda Records and Recording Studio, Inc., -- F.3d --- (December 14, 2015), the U.S. Court of Appeals for the Fifth Circuit had the opportunity to listen to some Tejano music.
Guzman, the writer of the music and lyrics of Triste Aventurera sued the Hometown Boys for Cartas de Amor. Guzman's song had exactly the same theme: a woman pleading with her ex-lover to take her back, and the exact same opening lyrics.
Both bands were from Corpus Christi, Texas, the home of Tejano. Guzman had played Triste in the 1970's in clubs and claimed that Triste had been on the radio, but the testimony was inconsistent. The trial court concluded that Guzman had failed to prove that the Hometown Boys had access to Triste.
Copyright infringement plaintiffs rarely have "direct" evidence of copying. That is, a plaintiff can rarely find a witness who actually saw the copying occur, for example. Thus copyright law permits plaintiffs to prove copyright infringement through indirect evidence. To prove copyright infringement, Guzman bore the burden of showing 1. access to his copyrighted song and 2. probative similarity of the allegedly infringing work. Alternatively, where the copyrighted works are strikingly similar, a court may dispense with the requirement that a plaintiff prove access.
The Fifth Circuit held that the expert testimony at trial as to the differences in the two works supported the trial judge's finding that the works were not strikingly similar. Additionally, the Court found that credibility determinations by the trial judge were important to the determination that Guzman had not demonstrated that the Hometown Boys had access to his song.
In my book Copyright Litigation Handbook (Thomson Reuters West 2015-2016), I discuss how to gather evidence to prepare for a copyright litigation and some of the ways that access may be shown.
To read the Fifth Circuit's full opinion, go here.
Copyright law, fine art and navigating the courts. Attorney and AuthorCopyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
Labels: copyright infringement, copyright law, music law, probative similarity, proof of access, striking similarity
Partner in law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2018-2019). The New York Law Journal called it "an indispensable guide". Board of Directors of the Fordham Law Alumni Association, former General Counsel & Director Federal Bar Association, FBA Chair of the Circuit VPs, ViP for Second Circuit. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.