Page:Baxter v. MCA.pdf/4

424 Selle v. Gibb, 741 F.2d 896, 901 (7th Cir.1984); Shultz v. Holmes, 264 F.2d 942 (9th Cir.1959); Nimmer § 13.02[B] at 13–14 (1986). Baxter’s ownership of the copyright to Joy is undisputed, and defendants conceded access for the purpose of their summary judgment motion. Defendants further assumed for purposes of their motion that there was substantial similarity of ideas as between the two compositions. Therefore, the only question Baxter argues that he should also have been permitted to prove copyright infringement by way of expert testimony and analytic dissection which allegedly demonstrated the two works’ “striking similarity.” This contention misapprehends the nature of the “striking similarity” doctrine. Proof of striking similarity is an alternative means of proving “copying” where proof of access is absent. See Selle v. Gibb, 741 F.2d 896, 901 (7th Cir.1984); Nimmer § 13.02[B] at 13–14, 13–15 (1986). Yet here, access was conceded and is thus not in issue. It was thus unnecessary to consider the possibility that Theme from E.T. was the product of independent creation, coincidence, a prior common source, or any source other than copying. See id. Upon remand, however, Baxter’s expert testimony and analytic dissection offered as to “striking similarity” would certainly merit submission to a jury as to the substantial similarity of general ideas as between the two works. See Krofft, 562 F.2d at 1164.

Baxter further contends that judicial protection beyond the “lay audience” text is required for authors of works in technical fields such as music because an infringer can easily deceive the unsophisticated by immaterial variations in the copyrighted work. It is unnecessary to reach this issue, given our holding that the grant of summary judgment constituted reversible error. No compelling reason appears, however, to depart from the principles enunciated in Krofft, which reiterates that the test of substantial similarity depends upon the response of the ordinary lay listener. See Krofft, 562 F.2d at 1164. before us is whether the district court’s finding, based on its ear, that substantial similarity of expression was “totally lacking and could not be submitted to a jury,” can sustain a grant of summary judgment to the defendants.

Summary judgment cannot be granted if there exists a genuine dispute as to a material fact. Fed.R.Civ.P. 56(c). Rule 56 calls for the judge to determine whether there exists a genuine issue for trial not to weight the evidence himself and determine the truth of the matter. See Anderson v. Liberty Lobby, Inc., – U.S. —, 106 S.Ct. 2505, 2516, 91 L.Ed.2d 202 (1986). The nonmoving party must present evidence sufficient to require a jury or judge to resolve the parties’ differing versions of the truth at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968). Inferences to be drawn from facts contained in the moving party’s papers are to be viewed by the district court in the light most favorable to the non-moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Weighing evidence, determining credibility, and drawing inferences from facts remain jury functions which may not be undertaken by the trial judge. See Anderson, 106 S.Ct. at 2513.

Determinations of substantial similarity of expression are subtle and complex. The test to be applied has been labeled an “intrinsic” one by this Court in that it depends not upon external criteria, but instead upon the response of the ordinary reasonable person to the works. Krofft, 562 F.2d at 1164. “Analytic dissection” and expert testimony are not called for; the gauge of substantial similarity is the response of the ordinary lay hearer. Id., quoting Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir.1946), ''cert. denied'', 330 U.S. 851, 67 S.Ct. 1096, 91 L.Ed. 1294 (1947). Accordingly, in Krofft, this Court rejected extrinsic analysis of similarities and differences among characters in plaintiff’s television show and defendants’ TV commercials, in favor of asking whether the defendants’ works captured the total concept and feel of plaintiffs’ works. Krofft, 562 F.2d at 1167. See also Berkic, 761 F.2d at 1292; Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir.1984), ''cert. denied'', 470 U.S. 1052, 105 S.Ct. 1753, 84 L.Ed.2d 817 (1985); Overman v. Universal City Studios, Inc., 605 F.Supp. 350, 353 (C.D.Cal.1984), aff’d mem., 767 F.2d 933 (9th Cir. 1985).