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To prove that an alleged copyright infringer copied his work, a copyright holder can rely on circumstantial evidence that (1) the alleged infringer had access to the copyrighted work and (2) there is substantial similarity between the copyrighted work and the alleged infringer's work.
Lars Erickson, who lives in Omaha, Nebraska, composed the work Pi Symphony in 1992 and registered it with the U.S. Copyright Office. Pi Symphony is an orchestral piece with two movements that is inspired by the number pi. For the primary motif of Pi Symphony, Mr. Erickson assigned each number between 0 and 9 to musical notes, which he then played in the order of the digits of pi. Mr. Erickson has maintained a web site, www.pisymphony.com, that promotes this work. In May 2010, he posted to this website a YouTube video that includes a performance of Pi Symphony and a detailed description of how he developed it. In February 2011, Michael John Blake published a YouTube video of a musical work titled "What Pi Sounds Like." Like Mr. Erickson, Mr. Blake assigned a number to each note of a musical scale and then constructed a melody by playing the notes in the order of the digits of pi. "What Pi Sounds Like" is a short canon based on this melody. Mr. Blake, who lives in Portland, Oregon, offers copies of his work for sale online. Mr. Erickson claims that "What Pi Sounds Like" infringes on his work, Pi Symphony. He sued Mr. Blake in the District of Nebraska, asserting copyright infringement and unfair competition claims. In Nebraska, Mr. Blake moved to dismiss Mr. Erickson's complaint, arguing that the two musical works bear no similarity beyond the idea of putting the digits of pi to music. Mr. Blake further argued that the Federal Court in Nebraska lacked personal jurisdiction over him. Mr. Blake also asked, in the alternative, for the case to be transferred to the District of Oregon. The Federal Court in Nebraska agreed with Mr. Blake that it lacked personal jurisdiction over him and that venue in Nebraska was improper.
Was there sufficient evidence to show that Mr. Blake copied Mr. Erickson’s work?
While Mr. Erickson asserted facts that could establish that Mr. Blake had access to his copyrighted work, the complaint did not state a plausible claim that Mr. Erickson’s symphony and Mr. Blake’s symphony were substantially similar. Pi was a non-copyrightable fact, and the transcription of pi to music was a non-copyrightable idea. Any substantial similarity between the two works was based on non-protectable elements.