IV. We Find No Violation of Ferdinand's Right to Effective

THREE BOYS MUSIC CORP. v. BOLTON 477 Cite as 212 F.3d 477 (9th Cir. 2000) IV. of substantial similarity was not clearly erroneous; (3) defendants did not rebut We find no violation of Ferdinand’s right presumption of copying with evidence of to effective assistance of counsel or any violation of the Ex Post Facto Clause, and independent creation; (4) jury could find therefore Ferdinand’s § 2254 petition was that plaintiff deposited complete copy of properly denied. Accordingly, we affirm song with copyright office; (5) jury’s attri- the judgment of the district court. bution of profits was not clearly erroneous; (6) record company was not entitled to deduct its Net Operating Loss Carry-forward (NOL) in connection with award of , profits; and (7) defendants were not entitled to new trial. Affirmed. THREE BOYS MUSIC CORPORA- 1. Copyrights and Intellectual Property TION, Plaintiff–Appellee, O51 Copyright plaintiff must prove (1) v. ownership of the copyright; and (2) in- Michael BOLTON, individually and fringement, meaning that the defendant d/b/a Mr. Bolton’s Music, Inc.; An- copied protected elements of the plaintiff’s drew Goldmark; Non–Pareil Music, work. Inc.; Warner–Chappell Music Limit- 2. Copyrights and Intellectual Property ed; Warner–Tamerlane Publishing 83(3.1) Corp.; WB Music Corp.; and Sony O Music Entertainment, Inc., Defen- Absent direct evidence of copying, dants–Appellants. proof of copyright infringement involves fact-based showings that the defendant Nos. 97–55150, 97–55154 had access to the plaintiff’s work and that United States Court of Appeals, the two works are substantially similar. Ninth Circuit. 3. Federal Courts O763.1 Argued and Submitted Oct. 5, 1999 The standard for reviewing jury ver- dicts generally is whether they are sup- Filed May 9, 2000 ported by substantial evidence, that is, such relevant evidence as reasonable Copyright holder brought action minds might accept as adequate to support against coauthors of song entitled ‘‘Love is a conclusion. a Wonderful Thing,’’ as well as against 4. Federal Courts O844 coauthors’ record companies and music The credibility of witnesses is an issue publishing companies, alleging infringe- for the jury and is generally not subject to ment of plaintiff’s song of the same name. appellate review. The United States District Court for the Central District of California, Lourdes G. 5. Copyrights and Intellectual Property Baird, J., entered judgment upon $5.4 mil- O83(6) lion jury verdict for plaintiff, and defen- Jury finding that defendant coauthors dants appealed. The Court of Appeals, of accused song ‘‘Love is a Wonderful D.W. Nelson, Circuit Judge, held that: (1) Thing’’ had access to plaintiff’s copyrighted jury’s finding that defendant coauthors song of the same name was supported by had access to plaintiff’s work was sup- substantial evidence in plaintiff’s infringe- ported by substantial evidence; (2) finding ment action, including evidence that defen- 478 212 FEDERAL REPORTER, 3d SERIES dants were teenagers interested in plain- on objective criteria and often requires tiff’s style of music when plaintiff’s song analytical dissection of a work and expert was played on radio and television over 20 testimony, and, once the extrinsic test is years earlier, and that, while writing ac- satisfied, the factfinder applies the intrin- cused song, one coauthor believed he may sic test, which is subjective and asks have been copying someone else’s song. whether the ordinary, reasonable person would find the total concept and feel of the 6. Copyrights and Intellectual Property works to be substantially similar. O83(3.1) Proof of access to a copyrighted work, 11. Federal Courts O860 for purposes of infringement claim, re- Court of Appeals will not second- quires an opportunity to view or to copy guess the jury’s application of the intrinsic plaintiff’s work. test for proving substantial similarity be- 7. Copyrights and Intellectual Property tween a copyrighted work and an allegedly O83(3.1) infringing work, and Court will not reverse Circumstantial evidence of reasonable factual determinations regarding the ex- access to a copyrighted work is proven in trinsic test for substantial similarity absent one of two ways, for purposes of an in- a clearly erroneous application of the law. fringement action: (1) a particular chain of 12. Copyrights and Intellectual Property events is established between the plain- O83(3.1) tiff’s work and the defendant’s access to Jury may find a combination of unpro- that work, such as through dealings with a tectible elements to be protectible under publisher or record company, or (2) the the extrinsic test for proving substantial plaintiff’s work has been widely dissemi- similarity between a copyrighted work and nated. an allegedly infringing work because the 8. Copyrights and Intellectual Property over-all impact and effect indicate substan- O83(3.1) tial appropriation. Under ‘‘inverse ratio rule,’’ court re- 13. Copyrights and Intellectual Property quires a lower standard of proof of sub- 83(6) stantial similarity on a copyright infringe- O ment claim when a high degree of access is Jury finding that defendant coauthors’ shown. accused song ‘‘Love is a Wonderful Thing’’ See publication Words and Phras- was substantially similar to plaintiff’s copy- es for other judicial constructions righted song of the same name was not and definitions. clearly erroneous, in light of testimony of 9. Copyrights and Intellectual Property plaintiff’s expert musicologist that the O83(3.1) songs shared combination of five unprotec- In the absence of any proof of access tible elements, including the title hook to a copyrighted work, a plaintiff can still phrase, shifted cadence, instrumental fig- make out a case of infringement by show- ures, verse/chorus relationship, and fade ing that the works were strikingly similar. ending. 10. Copyrights and Intellectual Property 14. Copyrights and Intellectual Property O83(3.1) O83(1) Proof of the substantial similarity of a By establishing reasonable access and copyrighted work and an allegedly infring- substantial similarity, a copyright plaintiff ing work is satisfied by a two-part test of creates a presumption of copying, and the extrinsic similarity and intrinsic similarity: burden shifts to the defendant to rebut the extrinsic test initially requires that the that presumption through proof of inde- plaintiff identify concrete elements based pendent creation. THREE BOYS MUSIC CORP. v. BOLTON 479 Cite as 212 F.3d 477 (9th Cir. 2000) 15. Copyrights and Intellectual Property 19. Copyrights and Intellectual Property O83(6) O87(1) Defendant coauthors of song ‘‘Love is In establishing an infringer’s profits, a Wonderful Thing’’ did not establish, as the copyright owner is required to present matter of law, independent creation of proof only of the infringer’s gross revenue, song, and thus did not rebut presumption and the infringer is required to prove his of copying established by evidence of ac- or her deductible expenses and the ele- cess and substantial similarity to plaintiff’s ments of profit attributable to factors oth- copyrighted work of the same name; de- er than the copyrighted work. 17 fendants’ work tape revealed evidence that U.S.C.A. § 504(b). one coauthor believed he may have been copying someone else’s song, defendants’ 20. Copyrights and Intellectual Property history of songwriting did not relate to O87(2) case at hand, and contributions to song Record company was not entitled to allegedly made by defendants’ arranger deduction of its Net Operating Loss Car- were described by defense expert as ‘‘very ry-forward (NOL) in connection with common.’’ award of profits for copyright infringe- 16. Copyrights and Intellectual Property ment, even if individual writers of accused O50.10 song were permitted to deduct income taxes and management fees that they paid Alleged differences between sheet mu- relating to song; company had never actu- sic deposited with the copyright office and ally paid income taxes on its infringing recorded version of copyrighted song did profits, but claimed it offset nearly $1.7 not preclude jury’s finding that complete million in taxes on the infringing profits copy was deposited, as required by statute, against its parent company’s NOL. 17 as there was no intent to defraud and U.S.C.A. § 504(b). prejudice, and any inaccuracies in the de- posit copy were minor and did not bar 21. Federal Courts O825.1 copyright holder’s infringement action against writers of accused song. The district court’s denial of a motion for a new trial is reviewed for an abuse of 17. Copyrights and Intellectual Property discretion, and the abuse of discretion O75 standard applies particularly when the dis- Absent intent to defraud and preju- trict court’s denial is based on the motion’s dice, inaccuracies in copyright registra- untimeliness. Fed.Rules Civ.Proc.Rule tions do not bar actions for infringement. 60(b), 28 U.S.C.A. 18. Copyrights and Intellectual Property 22. Federal Civil Procedure O2351, 2353 O87(1) Defendants in copyright infringement Jury’s attribution of profits in copy- action were not entitled to new trial based right infringement action brought by hold- on alleged discovery of new evidence that er of copyright in song ‘‘Love is a Wonder- another musical group claimed authorship ful Thing’’ against defendant writers of of copyrighted song that was subject of song of same name, finding that 28% of plaintiff’s infringement suit, as evidence, if profits from album on which song was true, at most went to weight and credibili- included were derived from that song, and ty of the evidence before the jury, and, that 66% of song’s profits resulted from although defendants knew about new evi- infringing elements, was not clearly erro- dence before deadline for post-trial mo- neous, despite defendant’s evidence that tions, they did not immediately notify the attribution percentages were lower.

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