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 The United States Court of Appeals for the Seventh Circuit (in case citations, 7th Cir.) is the U.S. federal court with appellate jurisdiction over the courts in the following districts: * Central District of Illinois * Northern District of Ill ...
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 Hazel Crest is a village in Cook County, Illinois, United States. The population was 13,382 at the 2020 census. History Hazel Crest was first settled in 1870 in a farming community known as South Harvey. An enterprising newspaper editor named ...
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 (U of I, Illinois, University of Illinois, or UIUC) is a public land-grant research university in Illinois in the twin cities of Champaign and Urbana. It is the flagship institution of the University ...
. 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 a total of 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 How Deep Is Your Love or How Deep Is Your Love? may refer to: * How Deep Is Your Love (Bee Gees song), "How Deep Is Your Love" (Bee Gees song), 1977, covered by Take That * "How Deep Is Your Love" (Keith Sweat song), 1987 * 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 drama film directed by John Badham and produced by Robert Stigwood. It stars John Travolta as Tony Manero, a young Italian-American man from the Brooklyn borough of New York. Manero spends his ...
'', 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 The United States District Court for the Northern District of Illinois (in case citations, N.D. Ill.) is the federal trial-level court with jurisdiction over the northern counties of Illinois. Appeals from the Northern District of Illinois ar ...
, accusing Barry, Robin & Maurice Gibb, their record label distributor Polygram, and
Paramount Pictures Paramount Pictures Corporation is an American film and television production company, production and Distribution (marketing), distribution company and the main namesake division of Paramount Global (formerly ViacomCBS). It is the fifth-oldes ...
of misappropriation and
copyright infringement Copyright infringement (at times referred to as piracy) is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, s ...
.


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 George Neves Leighton (born George Neves Leitão; October 22, 1912 – June 6, 2018) was an American judge who served as a United States district judge of the United States District Court for the Northern District of Illinois. He was known for ta ...
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, Robin, and Maurice Gibb. The trio were especially successful in popular music in the late 1960s and early 1970s, and later as prominent performers in the disco music era 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 How Deep Is Your Love or How Deep Is Your Love? may refer to: * How Deep Is Your Love (Bee Gees song), "How Deep Is Your Love" (Bee Gees song), 1977, covered by Take That * "How Deep Is Your Love" (Keith Sweat song), 1987 * How Deep Is Your Love ( ...
." On cross-examination, 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 (from Greek language, Greek μελῳδία, ''melōidía'', "singing, chanting"), also tune, voice or line, is a Linearity#Music, linear succession of musical tones that the listener perceives as a single entity. In its most liter ...
, as well as the
Beatles The Beatles were an English rock band, formed in Liverpool in 1960, that comprised John Lennon, Paul McCartney, George Harrison and Ringo Starr. They are regarded as the most influential band of all time and were integral to the developme ...
song, " From Me to You." 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 distinct from Western folk music or popular music traditions. It is sometimes distinguished as Western classical music, as the term "classical music" also ...
. 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 and the Bee Gees' keyboard player, Blue Weaver, as well as manager Dick Ashby, and record producer, Albhy Galuten, 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 worldwide fame as a member of the Bee Gees pop group with elder brother Barry and fraternal twin brother Maurice. Robin Gibb also had his o ...
corroborated their testimony. They also testified that the brothers and their staff had gone to the
Château d'Hérouville The Château d'Hérouville is a French 18th century château located in the village of Hérouville, in the Val d'Oise département of France, near Paris. The château was built in 1740 by "Gaudot", an architect of the school of Rome, from the re ...
, 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 drama film directed by John Badham and produced by Robert Stigwood. It stars John Travolta as Tony Manero, a young Italian-American man from the Brooklyn borough of New York. Manero spends his ...
, 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, 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."


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 Richard Dickson Cudahy (February 2, 1926 – September 22, 2015) was an American business executive, law professor, and United States circuit judge of the United States Court of Appeals for the Seventh Circuit. Education and career Born in Milwa ...
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." Justice 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 * 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