Johnson v. Gordon

United States Court of Appeals
For the First Circuit

No. 04-2475

CALVIN R. JOHNSON,

Plaintiff, Appellant,

v.

ALLEN GORDON, JR., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]
[Hon. Robert B. Collings, U.S. Magistrate Judge]

Before

Selya, Lynch and Lipez,
Circuit Judges.

Burton A. Nadler, with whom Petrucelly & Nadler, P.C. was on
brief, for appellant.
Cynthia S. Arato, with whom Manatt, Phelps & Phillips, LLP was
on brief, for appellees.

May 31, 2005
 SELYA, Circuit Judge. Music is an international language

that has the capacity to bring together people from every corner of

the world. It is also an economic engine, capable of yielding

financial gain to those who own and control it. This appeal, which

involves a controversy over the authorship of a hit song, exposes

us to that coarser side of the music industry.

An allegation of plagiarism lies at the heart of this

matter: plaintiff-appellant Calvin R. Johnson claims that a bevy

of defendants unlawfully copied parts of his musical composition

"You're the One (For Me)" in order to produce a song entitled

"You're the One." After the defendants' song was recorded by the

popular singing trio Sisters With Voices (SWV), it shot to the top

of the charts.

The plaintiff subsequently commenced a copyright

infringement action. The district court rejected the plaintiff's

core contention of substantial similarity and granted summary

judgment for the defendants. The plaintiff appeals. Discerning

nothing off-key in the lower court's decision, we affirm.

I.

Background

We rehearse the background facts in the light most

generous to the party opposing summary judgment (here, the

plaintiff) and resolve all reasonable inferences in that party's

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favor. Int'l Ass'n of Machinists v. Winship Green Nursing Ctr.,

103 F.3d 196, 200 (1st Cir. 1996).

On March 11, 1999, the plaintiff filed a complaint in

federal district court against eighteen defendants, alleging in

substance that they had infringed the copyright of his musical

composition, "You're the One (For Me)," in violation of 17 U.S.C.

§ 501, and relatedly, that they had failed to credit him as an

author of a song released commercially by SWV entitled "You're the

One," in violation of the Lanham Act, 15 U.S.C. § 1125(a).1 For

purposes of this appeal, we take as true certain of the facts

alleged in the complaint (the parties having stipulated that those

allegations, though disputed in part by the defendants, may be

credited for the limited purpose of deciding the summary judgment

motion). These include the facts as to the origin of the

copyrighted work, i.e., that the plaintiff created the musical

composition "You're the One (For Me)" for a band called Special

Edition sometime between 1990 and 1992. They also include the

1
In enumerating the roster of defendants, the complaint
identifies Allen Gordon, Jr., Andrea Martin, Ivan Matias, Tamara
Johnson, and Cheryl Gamble as authors credited with composing
"You're the One"; SWV and Johnson, Gamble, and Leanne Lyons (who
collectively comprise SWV) as the ones responsible for the
commercial release of the song; Al's Street Music, Rondor Music
International, Inc., Sailandra Publishing, One Ole Ghetto Ho, WB
Music Corp., Wonder Woman Sings Publishing, and Warner-Chappell
Music, Ltd. as the publishers of the song and the registered owners
of copyrights for it; Gordon and Head Up Entertainment, Ltd. as the
song's producers; and BMG Music, Bertelsmann Music Group, Inc., and
Ariola Eurodisc, Inc. as the song's distributors.

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averment that, in 1994, the plaintiff met with Kenny Ortiz, a vice-

president of RCA Records (a division of BMG Music) to discuss the

possibility of signing Special Edition to a record deal. At that

meeting, the plaintiff gave Ortiz a videotape and audio demo tapes

of Special Edition performing "You're the One (For Me)."

Special Edition apparently was not the one for RCA and

the company never offered the group a recording contract. The

complaint further alleges, however, that unbeknownst to the

plaintiff, Ortiz gave the tapes of the plaintiff's song to SWV (a

vocal group under contract to RCA) and that SWV then reworked it

with the assistance of other defendants to create "You're the One."

It is not disputed that, in March of 1996, BMG released

SWV's recording of "You're the One" as a single. The song enjoyed

considerable commercial success, rocketing to the top of the

Billboard R&B singles chart. The next month, the song was released

as part of SWV's album "New Beginning," which became a gold record.

Dismayed by these developments, the plaintiff filed a

copyright application for "You're the One (For Me)" and deposited

a copy of the sheet music for the song with the United States

Copyright Office. The Copyright Office issued a copyright

registration for the musical composition to the plaintiff,

effective July 19, 1996. The plaintiff then informed BMG of his

belief that SWV's "You're the One" infringed his copyright in

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"You're the One (For Me)," and demanded royalties. BMG turned a

deaf ear to these overtures.

II.

Travel of the Case

After holding an initial scheduling conference, the

district judge limited first-stage discovery to the issue of

liability. On February 15, 2001, the parties designated

musicological experts who were expected to testify regarding

liability. They then exchanged expert reports. See Fed. R. Civ.

P. 26(a)(2).

In March of 2002, the district judge referred the case to

a magistrate judge. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P.

72(b). Over the course of the next year, the designated experts

(Kenrick John for the plaintiff and Dr. Lawrence Ferrara for the

defendants) were deposed. On May 19, 2003, the parties, in the

interest of narrowing the issues, submitted a stipulation of

undisputed facts. They also submitted as exhibits the plaintiff's

certificate of copyright, along with certain sheet music and

recordings. In the latter category, the plaintiff proffered the

sheet music for and a recording of the copyrighted composition

"You're the One (For Me)" — sometimes referred to as the "short

version" — as well as the sheet music for and a recording of an

unregistered variation of it (the "long version"). The defendants

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tendered copies of SWV's released version of "You're the One,"

published sheet music for that song, and a studio recording of it.

On July 3, 2003, the defendants moved for summary

judgment on both counts of the complaint. See Fed. R. Civ. P.

56(b). The plaintiff objected. On March 15, 2004, the magistrate

judge recommended the entry of summary judgment. Johnson v.

Gordon, No. 99-10534, slip op. at 30 (D. Mass. Mar. 15, 2004)

(unpublished).

In his report, the magistrate judge first determined that

the uncopyrighted long version of the plaintiff's composition

warranted copyright protection only to the extent that it

incorporated elements derived from the copyrighted short version.

Id. at 8-10. As a practical matter, this meant that the judge only

needed to probe for similarities between the short version and the

defendants' song. Id. at 10.

Having identified the works to be compared, the

magistrate judge noted that the plaintiff's expert had outlined

only three relevant points of ostensible similarity between the

plaintiff's copyrighted short version and "You're the One." See

id. at 16-17. Drilling down into the record, the magistrate judge

rejected all three proposed comparisons, concluding that these

elements were either dissimilar or too common to be treated as

protectable expression. See id. at 20-21, 24-26. Thus, the

copyright infringement claim failed.

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 With regard to the Lanham Act claim, the magistrate judge

concluded that 15 U.S.C. § 1125(a) does not safeguard authors from

false designation of the origin of their creative expressions. Id.

at 28-30 (citing Dastar Corp. v. Twentieth Century Fox Film Corp.,

539 U.S. 23, 37-38 (2003)). Consequently, the plaintiff could not

prevail on the Lanham Act count. Id. at 30.

The plaintiff filed objections to the portion of the

magistrate judge's report that recommended brevis disposition of

the copyright infringement claim. See Fed. R. Civ. P. 72(b). On

de novo review, the district judge adopted the findings and

conclusions contained in the report and entered summary judgment

for the defendants.2 This timely appeal brought the matter to us.

III.

Analysis

The plaintiff contests only the district court's entry of

summary judgment on the copyright infringement claim (the Lanham

Act claim is out of the case and we will not comment further on

it). In addressing his contentions, we limn the standard of

review; describe a legal framework for adjudicating copyright

infringement cases; consider whether identified similarities from

the plaintiff's (uncopyrighted) long version of the song are

2
For simplicity's sake, we do not hereinafter distinguish
between the two judicial officers, but, rather, take an
institutional view and refer to the determinations below as those
of the district court. See, e.g., United States v. Maldonado, 356
F.3d 130, 134 n.1 (1st Cir. 2004).

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entitled to protection; apply the law to the relevant undisputed

facts in order to determine whether the plaintiff can clear the

summary judgment hurdle; and, finally, sift through a mélange of

miscellaneous arguments.

A.

Standard of Review

We afford de novo review to the district court's grant of

summary judgment. Int'l Ass'n of Machinists, 103 F.3d at 200. The

office of summary judgment is "to pierce the pleadings and to

assess the proof in order to see whether there is a genuine need

for trial." Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.

1990) (quoting Fed. R. Civ. P. 56 advisory committee's note). In

carrying out this function, we must review the entire record "in

the light most hospitable to the party opposing summary judgment

(here, the plaintiff), indulging all reasonable inferences in that

party's favor." Euromodas, Inc. v. Zanella, Ltd., 368 F.3d 11, 17

(1st Cir. 2004). When the nonmovant bears the ultimate burden of

proof on a given issue, he must make a factual showing, by means of

competent and specific evidence, sufficient to establish the

essential elements of his claim. Mesnick v. Gen. Elec. Co., 950

F.2d 816, 822 (1st Cir. 1991); Garside, 895 F.2d at 48. Summary

judgment is appropriate as long as "the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

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any material fact and that the moving party is entitled to a

judgment as a matter of law." Fed. R. Civ. P. 56(c).

In the precincts patrolled by Rule 56, these standards

govern trial and appellate courts alike. As an appellate tribunal,

however, we are "not bound by the lower court's rationale but may

affirm the entry of judgment on any independent ground rooted in

the record." Int'l Ass'n of Machinists, 103 F.3d at 200.

B.

The Legal Framework for Copyright Infringement

Copyright protection can subsist in an original musical

work, including any accompanying words, fixed in any tangible

medium of expression. 17 U.S.C. § 102(a). Subject to certain

exceptions and limitations (not relevant here), the owner of a

valid copyright in a musical work enjoys exclusive rights to

reproduce all or any part of the copyrighted work, prepare a work

derivative of it, distribute copies of it, perform or display it,

and authorize others to exercise any of these rights. Id. § 106.

One who violates any of these exclusive rights is an infringer of

the copyright, and the legal or beneficial owner of the copyright

(or of an exclusive right thereunder) may institute an action for

infringement against him. Id. § 501.

To establish copyright infringement under the Copyright

Act, "two elements must be proven: (1) ownership of a valid

copyright, and (2) copying of constituent elements of the work that

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are original." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499

U.S. 340, 361 (1991). The plaintiff bears the burden of proof as

to both elements. Grubb v. KMS Patriots, L.P., 88 F.3d 1, 3, 5

(1st Cir. 1996).

In this appeal, the plaintiff's ownership of a valid

copyright is not challenged, so the first element requires little

elaboration. It suffices to say that the plaintiff must show that

the work, viewed as a whole, is original, and that the applicable

statutory requirements ancillary to the issuance of a valid

copyright have been satisfied. Lotus Dev. Corp. v. Borland Int'l,

Inc., 49 F.3d 807, 813 (1st Cir. 1995). A certificate of copyright

constitutes prima facie evidence of ownership and originality of

the work as a whole. Milene Music, Inc. v. Gotauco, 551 F. Supp.

1288, 1293 (D.R.I. 1982). Upon the plaintiff's production of such

a certificate, the burden shifts to the defendant to demonstrate

some infirmity in the claimed copyright. CMM Cable Rep, Inc. v.

Ocean Coast Props., Inc., 97 F.3d 1504, 1513 (1st Cir. 1996).

The second of the Feist elements lies at the epicenter of

this appeal. Although that element typically turns on an

allegation of copying, it is important to note that copying does

not invariably constitute copyright infringement. Feist, 499 U.S.

at 361. Proof of wrongful copying is a two-step process. First,

the plaintiff must show that copying actually occurred. This

showing entails proof that, as a factual matter, the defendant

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copied the plaintiff's copyrighted material. Segrets, Inc. v.

Gillman Knitwear Co., 207 F.3d 56, 60 (1st Cir. 2000). Second, the

plaintiff must establish that the copying is actionable by

"prov[ing] that the copying of the copyrighted material was so

extensive that it rendered the infringing and copyrighted works

'substantially similar.'" Id.

The plaintiff may satisfy his first-step burden by either

direct or circumstantial evidence. Id. Plagiarists rarely work in

the open and direct proof of actual copying is seldom available.

To fill that void, the plaintiff may satisfy his obligation

indirectly by adducing evidence that the alleged infringer enjoyed

access to the copyrighted work and that a sufficient degree of

similarity exists between the copyrighted work and the allegedly

infringing work to give rise to an inference of actual copying.

See Lotus Dev., 49 F.3d at 813. We have referred to that degree of

similarity as "probative similarity." See, e.g., id. (admonishing

that "probative similarity" requires that the two works are "so

similar that the court may infer that there was factual copying").

This requirement of probative similarity is somewhat akin to, but

different than, the requirement of substantial similarity that

emerges at the second step in the progression. See 4 Melville B.

Nimmer & David Nimmer, Nimmer on Copyright § 13.03[A], at 13-33

(2004) [hereinafter Nimmer] ("Although the term 'substantial

similarity' often is invoked as a proxy to prove copying as a

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factual proposition, we have seen that the term 'probative

similarity' is to be preferred in that context and the question of

'substantially similarity' arises analytically only thereafter.").

The substantial similarity requirement focuses

holistically on the works in question and entails proof that the

copying was so extensive that it rendered the works so similar that

the later work represented a wrongful appropriation of expression.

See Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 33

(1st Cir. 2001); Segrets, 207 F.3d at 60. Summary judgment on this

issue is appropriate only when a rational factfinder, correctly

applying the pertinent legal standards, would be compelled to

conclude that no substantial similarity exists between the

copyrighted work and the allegedly infringing work. O'Neill v.

Dell Publ'g Co., 630 F.2d 685, 687 (1st Cir. 1980).

The "ordinary observer" test or, in a musical milieu, the

"ordinary listener" test, supplies a framework for gauging

substantial similarity. Under that metric, the defendant's work

will be said to be substantially similar to the copyrighted work if

an ordinary person of reasonable attentiveness would, upon

listening to both, conclude that the defendant unlawfully

appropriated the plaintiff's protectable expression. See Concrete

Mach. Co. v. Classic Lawn Ornaments, 843 F.2d 600, 607 (1st Cir.

1988); Educ. Testing Servs. v. Katzman, 793 F.2d 533, 541 (3d Cir.

1986). Works can be substantially similar despite the presence of

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disparities. The key is whether "the ordinary observer, unless he

set out to detect the disparities, would be disposed to overlook

them, and regard [the works'] aesthetic appeal as the same." Peter

Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d

Cir. 1960).

The requirement of originality cuts across both of these

similarity criteria. The resemblances relied upon as a basis for

finding probative similarity must refer to "constituent elements of

the [copyrighted] work that are original." Feist, 499 U.S. at 361.

Thus, in examining whether actual copying has occurred, a court

must engage in dissection of the copyrighted work by separating its

original, protected expressive elements from those aspects that are

not copyrightable because they represent unprotected ideas or

unoriginal expressions. See Concrete Mach., 843 F.2d at 608.

To the extent that the copyrighted work and the allegedly

infringing work exhibit probative similarities from which actual

copying might be inferred, the ensuing analysis must address the

question of substantial similarity (and, thus, determine whether

wrongful appropriation occurred). While a finding of substantial

similarity vel non derives from an examination of the juxtaposed

works as a whole, that examination must focus on "what aspects of

the plaintiff's work are protectible under copyright laws and

whether whatever copying took place appropriated those [protected]

elements." Matthews v. Freedman, 157 F.3d 25, 27 (1st Cir. 1998).

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After all, "[t]he mere fact that a work is copyrighted does not

mean that every element of the work may be protected. Originality

remains the sine qua non of copyright . . . ." Feist, 499 U.S.

at 348.

This makes perfect sense: copyright law protects

original expressions of ideas but it does not safeguard either the

ideas themselves or banal expressions of them. See id. at 345-51.

Thus, in assessing whether substantial similarity exists, an

overall impression of similarity may not be enough. See Matthews,

157 F.3d at 27. If such an impression flows from similarities as

to elements that are not themselves copyrightable, it will not

satisfy the predicate requirement of originality necessary to

ground a finding of actionable copying. See id.; see also Concrete

Mach., 843 F.2d at 608-09.

C.

The Long and the Short of It

We turn now to the case at hand. As is often true in

musical copyright actions, each side relied heavily on its own

expert. Since the district court decided this case on summary

judgment, we leave to one side the relative qualifications of the

two experts and, consistent with our obligation to take the summary

judgment record in the light most flattering to the nonmovant,

Euromodas, 368 F.3d at 17, concentrate principally on the views

articulated by the plaintiff's chosen expert, Kenrick John.

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 In the expert report submitted to buttress the claim of

copyright infringement, Mr. John noted seven similarities between

the disputed songs. Of these, four relied on a comparison between

his transcriptions of the unregistered long version of the

plaintiff's song and SWV's recording of the defendants' song.

While the defendants do not contest the validity of the plaintiff's

copyright registration for the short version (at least at the

summary judgment stage), they asseverate that the plaintiff cannot,

as a matter of law, stretch the carapace of that ownership to

garner copyright protection for elements unique to the

(unregistered) long version.

The plaintiff demurs. Relying on G. Ricordi & Co. v.

Paramount Pictures, 189 F.2d 469 (2d Cir. 1951), he contends that

the long version, although unregistered, nevertheless enjoys

limited copyright protection because significant portions of it are

derived from the registered short version. That limited

protection, however, does not extend as far as the plaintiff

suggests.

Since the Copyright Act of 1976 took effect, registration

is no longer a statutory prerequisite to copyright protection. See

17 U.S.C. § 408(a). Withal, registration is a precondition for

bringing a copyright infringement suit. See id. § 411(a). It is

also a condition precedent for obtaining certain remedies, such as

statutory damages and attorneys' fees. See id. § 412.

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 Ricordi was a pre-1976 case, but its central holding

survives the enactment of the Copyright Act of 1976: a valid,

enforceable copyright on an underlying work extends to protect

those elements of a new work that are derived directly from the

underlying work. See Ricordi, 189 F.2d at 472.

In Ricordi, the court determined that upon the expiration

of the copyright of a play, the owner of a copyright for an

underlying novel was entitled to continuing copyright protection of

those materials in the play that derived directly from the novel,

but not of any elements idiosyncratic to the play. See id. Citing

Ricordi, we have held that under the current permissive-

registration regime, a plaintiff may bring a suit for unauthorized

distribution of an unregistered derivative work as long as the suit

is based on elements "borrowed" from a registered underlying work

and not on elements original to the derivative work. See Gamma

Audio & Video, Inc. v. Ean-Chea, 11 F.3d 1106, 1112 (1st Cir.

1993). Put another way, elements distinct to an unregistered work

cannot draw protection from a registered work even though the

latter may contain the seminal idea that inspired both works. See

2 Nimmer § 7.16[B][2][b].

As applied here, the Ricordi doctrine extends copyright

protection to those elements of the plaintiff's long version that

are derived directly from the registered short version, but not to

those elements contained exclusively in the unregistered long

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version. The four elements identified by Mr. John and listed in

points three through six of his report appear solely in the long

version. The plaintiff does not offer any argument that the

elements appearing solely in the long version are somehow still

derived from the elements appearing in both versions.3 For that

reason, those new elements cannot form the basis for a charge of

unlawful copying and, accordingly, drop out of the infringement

equation.

D.

Copyright Infringement Analysis

In this case, there is no dispute about the plaintiff's

ownership of a valid copyright for the short version of his song

(at least at the summary judgment stage). Thus, we jump directly

to the question of whether the plaintiff has made a factual showing

sufficient to establish a genuine issue as to the two elements

underpinning Feist's copying requirement: actual copying and

actionable copying. Because the plaintiff has not proffered direct

evidence of actual copying, he must support that element by

indirect evidence demonstrating access and probative similarity.

The determination made in Part II(C) renders his burden of

establishing both probative similarity (for purposes of supporting

3
To be sure, the plaintiff does argue that the district court
erred by ruling that the long version is "not derivative" of the
short version, but that argument mischaracterizes the district
court's ukase.

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an inference of actual copying) and substantial similarity (for

purposes of the actionable copying element) dependent on three

purported similarities (points one, two, and seven in Mr. John's

report) and a free-floating assertion of lyrical similarity. We

undertake a point-by-point analysis.

1. Point One. Mr. John's report took the position that

the melody supporting the lyric "You're the One for Me" in bars 1

and 2 of the defendants' ballad is a melodic variation of the

melody underlying the same lyric in bars 16 and 17 of the

plaintiff's short version. The report singles out two known

compositional methodologies — "inversion" and "retrograde" — that

a composer might use to vary a particular melody and asserts that

the melody in bars 1 and 2 of the defendants' song represents those

"two very common variations" of the plaintiff's melody for bars 16

and 17 of the short version.4

Here, as elsewhere, the witness's bald conclusion must be

read in light of his explanatory testimony. See Euromodas, 368

F.3d at 19 (viewing deponent's statements "as a whole" for purposes

of summary judgment). During his deposition, Mr. John revealed

that it was necessary to apply a series of other alterations to the

4
Relying on a standard musicological dictionary, Mr. John
defines melodic inversion as "a procedure in which each ascending
interval of an entire melody is changed into its opposite
descending interval and vice versa." He defines retrograde as "a
term indicating reverse or backward motion, e.g., beginning with
the last note of the melody and ending with the first."

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plaintiff's melody, beyond the mechanisms of inversion and

retrograde, in order to arrive at a melody that bore any

resemblance to bars 1 and 2 of the defendants' song. He also

admitted that even in this contrived format, the plaintiff's two-

bar melody still did not yield a close match to the defendants'

two-bar melody.

A look at the techniques employed by Mr. John in his

herculean effort to assimilate the two melodies makes manifest the

absence of any meaningful degree of similarity. The witness first

transposed bars 16 and 17 of the plaintiff's composition into D

flat (the key of the defendants' song).5 He then altered the

melody by raising it a perfect fifth (moving each note seven half-

steps up the musical scale). At that point, he applied the known

formula for inversion, but altered the rhythm to match that of the

defendants' song. And, finally, he added an A flat note to the

altered, inverted version of the plaintiff's bars 16 and 17. These

machinations yielded two bars with the following notes and pitches:

A flat, A flat, G, F, C tied, D flat

5, 5, 4, 3, 7, 1

5
Courts sometimes have recognized transposition of one song to
the key of another as a valid tool in effecting comparisons. See,
e.g., Nom Music, Inc. v. Kaslin, 227 F. Supp. 922, 927 (S.D.N.Y.
1964). The case at bar does not involve a straight transposition,
but, rather, the use of transposition as one of several steps in a
long, drawn-out series. The totality finds no support in the case
law as a basis for deeming two compositions similar.

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Mr. John likened this finessed result to bars 1 and 2 of the

defendants' song, which used the following notes and pitches:

A flat, A flat, G, F, E flat tied, D flat

5, 5, 4, 3, 2, 1

This outcome does little to advance the plaintiff's

cause. Mr. John acknowledged that, even after undergoing the

manipulations described above, bars 16 and 17 of the plaintiff's

song still differed from the bars 1 and 2 of the defendants' song

with respect to the fifth note and the melodic contour (the

arrangement of pitches). As to the latter, he conceded that the

plaintiff's altered two-bar melody descends from 5 to 3, rises up

to 7, and then descends back to 3, whereas the defendants' two-bar

melody continually descends from 5 to 1. He also conceded that the

melodic contour employed by the defendants — the descending scale

of 5, 4, 3, 2, 1 — was a "very common" melodic pattern that appears

in such hoary songs as "Row, Row, Row Your Boat" (specifically, the

melody that accompanies the lyric "life is but a dream").

In comparing the retrograde variation of the plaintiff's

bars 16 and 17 to defendants' bars 1 and 2, Mr. John again altered

the rhythm to match the defendants' song and added an A flat note.

Yet, even with the benefit of these emendations, differences

persisted between the retrograde version of the defendant's two-bar

melody and its proposed counterpart. For example, the third notes

of the sequences do not coincide.

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 Bare conclusions seldom are entitled to weight in the

summary judgment calculus. Grant's Dairy—Maine, LLC v. Comm'r of

Me. Dep't of Agric., Food & Rural Res., 232 F.3d 8, 23 (1st Cir.

2000). Here, Mr. John's deposition testimony totally undermined

his stated conclusion that the defendants' two-bar melody was a

melodic variation derived from the plaintiff's song. Taking his

testimony at face value, the defendants' bars 1 and 2 do not

represent either a simple inversion or retrograde of the

plaintiff's bars 16 and 17, but, rather, a complicated mélange of

techniques. Those two-bar segments are not identical twins or even

sisters under the skin; their relationship is something more akin

to that of second cousins, twice removed.

Relationship does not necessarily breed similarity, and

the plaintiff has offered no support for the proposition that

musically related but distinct melodic fragments may give rise to

an inference of actual copying. There is no facial similarity

between the melodies of the relevant segments as they are written.

The most that can be said is that the two segments bear some

relation to one another within a finite world of melodies. Given

the limited musical vocabulary available to composers, this is far

from enough to support an inference of actual copying. See Gaste

v. Kaiserman, 863 F.2d 1061, 1068 (2d Cir. 1988) (noting that, in

assessing evidence of actual copying, a court must be "mindful of

the limited number of notes and chords available to composers and

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the resulting fact that common themes frequently reappear in

various compositions, especially in popular music"); Selle v. Gibb,

741 F.2d 896, 905 (7th Cir. 1984) (finding that "in a field such as

that of popular music in which all songs are relatively short and

tend to build on or repeat a basic theme," testimony concerning the

relative complexity or uniqueness of two compositions "seem[s] to

be particularly necessary" to establish the inference of copying).

We add, moreover, that the occurrence of five of the six

pitches of the defendants' melody in the public domain reinforces

the view that whatever resemblance might exist between the

plaintiff's and the defendants' two-bar melodies is legally

insignificant. The fact that the sequence of the latter five

pitches of the defendants' 5, 5, 4, 3, 2, 1 melodic contour is

common and readily available in the public domain — the "Row, Row,

Row Your Boat" example is persuasive on this point — argues

convincingly against any inference that the defendants relied upon

the plaintiff's work to generate it. See, e.g., Gaste, 863 F.2d at

1068-69; Granite Music Corp. v. United Artists Corp., 532 F.2d 718,

720 (9th Cir. 1976); Arnstein v. Edward B. Marks Music Corp., 82

F.2d 275, 277 (2d Cir. 1936); see also II Paul Goldstein, Copyright

§ 8.3.1, at 8:48 (2d ed. 2005 Supp.) (explaining that the

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availability of the allegedly infringing musical segment in the

public domain rebuts the inference of copying).6

The upshot is that we, like the district court, find this

so-called "similarity" too attenuated to be deemed probative for

purposes of supporting an evidentiary inference of actual copying.

Thus, point one does nothing to fuel the plaintiff's appeal. See

Lotus Dev., 49 F.3d at 813 (finding of probative similarity

requires that copyrighted work and allegedly infringing work are so

similar that factual copying can be inferred).

2. Point Two. In his report, Mr. John observed that the

harmony of bars 1 and 2 of the defendants' song is the same harmony

that accompanies bars 17 and 18 of the plaintiff's short version.

Once again, his deposition testimony sheds light on the conclusory

statement contained in his report. In that testimony, Mr. John

identified this similarity as a III, II harmonic progression — a

type of progression from a mediant chord to a supertonic chord,

6
If more were needed — and we do not think that it is — it is
undisputed that the two musical segments, as written, do not sound
alike and would not sound alike to an ordinary listener (indeed,
Mr. John admitted as much). Thus, putting aside the bizarre
peregrinations that are required to get from point A to point B in
Mr. John's similarity analysis, the only conclusion available from
the fact that the defendants' melody does not bear any audible
likeness to its distant relation is that this proposed resemblance
contributes nothing to a finding of substantial similarity between
the two works. See Repp v. Webber, 132 F.3d 882, 889 (2d Cir.
1997) (explaining that to prove substantial similarity in a case
charging musical plagiarism, the plaintiff is constrained to show
that the defendant appropriated musical elements detectable by the
ear of the lay listener); see also Concrete Mach., 843 F.2d at 607.

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commonly inserted in popular and jazz music to "create a sense of

instability . . . with the hope of resolving at some point." Mr.

John agreed that this progression can be found in thousands of

songs.

The plaintiff has not presented any evidence

contradicting his own expert's assessment of the ubiquity of the

III, II harmonic progression. Virtually by definition, expressions

that are common are also unoriginal. See, e.g., Yankee Candle, 259

F.3d at 35; see also Feist, 499 U.S. at 345 (noting that although

originality does not require novelty, it does demand that an

expression exhibit "at least some minimal degree of creativity").

So it is here: this harmonic progression, which is a stereotypical

building block of musical composition, lacks originality.

Accordingly, it is unprotectable. See Matthews, 157 F.3d at 27

(noting that unoriginal expressions are not copyrightable); see

also Tisi v. Patrick, 97 F. Supp. 2d 539, 544 (S.D.N.Y. 2000)

(finding the I, IV harmonic progression not protectable due to its

commonality); Intersong-USA v. CBS, Inc., 757 F. Supp. 274, 282

(S.D.N.Y. 1991) (finding a certain harmonic progression

unprotectable because it appears in many songs); see generally N.

Music Corp. v. King Record Distrib. Co., 105 F. Supp. 393, 400

(S.D.N.Y. 1952) (observing that harmony "is achieved according to

rules which have been known for many years" and that "[b]eing in

the public domain for so long," it cannot itself be the subject of

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copyright); 1 Nimmer § 2.05[D], at 2-57, 2-58 & n.39 (explaining

that harmony is seldom protectable because in most cases, it is

simply driven by the melody and therefore is unoriginal).

The plaintiff makes a desultory effort to parry this

thrust by asserting that although the progression itself is common,

it might be considered original depending on the manner of its

exploitation. This assertion lacks force. While there may be some

circumstances in which a common harmonic progression could be

exploited in an original (and, thus, protectable) manner, see Tempo

Music, Inc. v. Famous Music Corp., 838 F. Supp. 162, 168-69

(S.D.N.Y. 1993) (recognizing this possibility); cf. Yankee Candle,

259 F.3d at 34 (recognizing that a host of unprotectable elements

expressed in a unique way might qualify for copyright protection),

the songs at issue here use the III, II harmony in two completely

different ways, neither of which is unique. In the short version

of the plaintiff's tune, the progression resolves, ultimately

coming to a resting point, in Mr. John's words, for the purpose of

giving the listener "a sense of comfort." The defendants' song

employs an unresolved III, II harmonic progression, a form that Mr.

John stated was adopted to "create a forward potential" so that the

"listener is sort of always on edge."7 Mr. John testified that

both methods of expressing a III, II harmonic progression —

7
This is not merely a technical distinction. Even the
plaintiff's expert concedes that the resolved and unresolved III,
II progressions sound different to the ordinary listener.

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resolved and unresolved — are employed in thousands of songs.

Thus, even if the manner of exploiting a harmonic progression can

be independently protectable, the plaintiff's use of a resolved

III, II progression is not probative of actual copying because that

progression is neither original nor reproduced in the defendants'

song.

3. Point Seven. In his report, Mr. John maintained that

the melody of bars 17-20 of the defendants' song resembled bars 41-

44 of the plaintiff's short version. Even then, he dubbed this

resemblance a "coincident." During Mr. John's deposition, it

became apparent that the three-note repetition of the E flat that

appeared in these segments (albeit in different places within each

song's structure) was, indeed, simply a coincidence. Aside from

that three-note segment, the notes and the pitches in the two four-

bar sets were wholly dissimilar.

It would serve no useful purpose to flog this moribund

mare. Mr. John's deposition testimony made it transparently clear

that his initial characterization of this phenomenon as a

similarity was, at best, an exaggeration. There is nothing in this

point that lends support to an inference of actual copying. See

Cottrill v. Spears, No. CIV. A. 02-3646, 2003 WL 21223846, at *9

(E.D.Pa. May 22, 2003) (finding that the repetition of a particular

note three times in the verses of the plaintiffs' and the

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defendants' songs was trivial and did not constitute striking

similarity for purposes of showing actual copying).

4. The Lyric "You're the One for Me." In his

unrelenting effort to establish actionable copying, the plaintiff

clings to the one undeniable similarity between the two songs: the

use of the phrase "You're the One for Me" in the title and lyrics

of each song. While this usage is similar, it is also common. The

record reflects, as does the United States Copyright Office's

Registered Works Database, that hundreds of composers have

registered songs capturing the same sentiment in the same verbiage.

It is thus readily apparent that this lyric is too trite to warrant

copyright protection. See CMM Cable Rep, 97 F.3d at 1519 (noting

that clichéd language and expressions that convey ideas generally

expressed in a limited number of stereotypical ways are outside the

scope of copyright protection).

5. Da Capo. To recapitulate, we have examined the three

points of alleged musical similarity and the common lyric. Based

on that appraisal, we conclude, without serious question, that the

plaintiff has failed to identify a degree of similarity sufficient

to give rise to an inference that actual copying occurred.

Consequently, the plaintiff cannot, as a matter of law, establish

the actual copying element requisite to his copyright infringement

claim.

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 E.

Miscellaneous Assignments of Error

The plaintiff makes three last-ditch arguments in an

effort to discredit the district court's decision. None of them

warrant extended discussion.

1. Hyper-dissection. The plaintiff, in effect, accuses

the district court of overlooking the forest for the trees: he

charges that the court did not see the overall similarity between

his song and the defendants' song because it analyzed fragments of

the two and ignored similarities that were recognizable only within

a wider context.

This is a peculiar argument because dissection of a work

to determine whether its constituent elements are original is

recognized as a valid investigative technique in copyright cases.

See id. at 1514 (calling dissection "a key tenet of copyright

law"). In all events, the district court properly applied the

dissection technique here: it analyzed the alleged similarities as

they were presented by the plaintiff's expert, without further

fragmentation, and took them in the light most favorable to the

plaintiff. No more was exigible.

At the possible expense of carting coal to Newcastle, we

add that this is not a case in which a court failed to link

allegedly infringing components together and inspect each work as

a coherent whole. The problem here is that the components

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themselves are so dissimilar that they cannot sensibly be

agglomerated in such a way as to conjure up an overall (legally

significant) resemblance. See Aliotti v. R. Dakin & Co., 831 F.2d

898, 901 (9th Cir. 1987) (explaining that "[a]lthough even

unprotectable material should be considered when determining if

there is substantial similarity of expression, no substantial

similarity may be found . . . where analytic dissection

demonstrates that all similarities in expression arise from the use

of common ideas" (internal citation omitted)).

2. Sampling. Relying on his own expert's deposition

testimony that he heard "sampling" in the defendants' song, the

plaintiff posits that it was error for the district court not to

account for this sampling in its copyright infringement analysis.

We do not agree.

"Sampling" is a term used to describe "the incorporation

of a short segment of a musical recording into a new musical

recording." Newton v. Diamond, 388 F.3d 1189, 1190 (9th Cir.

2004). In this case, the district court declined to consider Mr.

John's testimony anent sampling because the witness admitted that

he lacked a proper foundation on which to make the assessment. For

example, he had not performed a technical analysis of the type used

by musicologists to detect samples in sound recordings; he had not

noted the existence of sampling in his report; and he could not

-29-
point to the sheet music corresponding to the relevant sound

recordings to indicate where sampling might have occurred.

A nisi prius court need not give weight to opinion

evidence that is unsupported by an adequate foundation. See Coyne

v. Taber Partners I, 53 F.3d 454, 461 n.7 (1st Cir. 1995) (noting

that a district court has discretion to exclude from its summary

judgment analysis any expert testimony that rests on a speculative

foundation); Quinones-Pacheco v. Am. Airlines, Inc., 979 F.2d 1, 6

(1st Cir. 1992) (explaining that trial courts enjoy wide latitude

with respect to the exclusion of expert testimony for lack of

foundation). Given the porous nature of the foundation that

undergirded Mr. John's casual references to sampling, the district

court's refusal to credit those references was amply justified. To

hold otherwise would be tantamount to requiring trial courts to

indulge in speculation and surmise.8 See In re Colonial Mortg.

Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003) (explaining that a

court is not bound to credit "bald assertions, unsupportable

conclusions, and opprobrious epithets woven into the fabric of the

8
We note, moreover, that the plaintiff never obtained a valid
copyright for the sound recording of the short version of his song.
Consequently, it is doubtful that he is entitled to any protection
against sampling. See Newton v. Diamond, 204 F. Supp. 2d 1244,
1248-49 (C.D.Cal. 2002) (explaining that "[s]ound recordings and
their underlying musical compositions are separate works with their
own distinct copyrights"), aff'd, 388 F.3d 1189 (9th Cir. 2004);
see also 17 U.S.C. § 102(a)(2), (7).

-30-
complaint" (internal quotation marks omitted)); Medina-Munoz v.

R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (similar).

3. Failure to Listen. The plaintiff takes umbrage at

the fact that neither the district judge nor the magistrate judge

explicitly stated that he had listened to the two songs. This

argument is hopeless. The plaintiff has cited no authority for the

proposition that the court was required to listen to the music and,

at any rate, there is no evidence that the court failed to do so.

IV.

Finale

We need go no further. Discerning no similarities upon

which the plaintiff might build a plausible inference of actual

copying, we conclude that his copyright infringement claim fails as

a matter of law. It follows that the district court, which granted

summary judgment for the defendants, called the proper tune.

Affirmed.

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