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Selle v. Gibb - 741 F.2d 896 (7th Cir. 1984)


In establishing a claim of copyright infringement of a musical composition, the plaintiff must prove (1) ownership of the copyright in the complaining work; (2) originality of the work; (3) copying of the work by the defendant, and (4) a substantial degree of similarity between the two works.

Proof of copying is crucial to any claim of copyright infringement because no matter how similar the two works may be (even to the point of identity), if the defendant did not copy the accused work, there is no infringement. However, because direct evidence of copying is rarely available, the plaintiff can rely upon circumstantial evidence to prove this essential element, and the most important component of this sort of circumstantial evidence is proof of access. 

The judicially formulated definition of "striking similarity" states that plaintiffs must demonstrate that such similarities are of a kind that can only be explained by copying, rather than by coincidence, independent creation, or prior common source. To prove that certain similarities are "striking," plaintiff must show that they are the sort of similarities that cannot satisfactorily be accounted for by a theory of coincidence, independent creation, prior common source, or any theory other than that of copying. Striking similarity is an extremely technical issue -- one with which, understandably, experts are best equipped to deal. Finally, the similarities should appear in a sufficiently unique or complex context as to make it unlikely that both pieces were copied from a prior common source or that the defendant was able to compose the accused work as a matter of independent creation. Finding a highly unique pattern makes copying more likely.


Ronald Selle composed the song “Let It End” and obtained a copyright for it. He played his song two or three times in the Chicago area and sent a tape and lead sheet of the music to eleven music recording and publishing companies. After hearing “How Deep is Your Love,” he recognized the music as his own, although the lyrics were different. He sued Maurice, Robin, and Barry Gibb, collectively known as the Bee Gees, alleging copyright infringement.

During trial, it was revealed that Bee Gees do not themselves read or write music. In composing a song, their practice was to tape a tune, which their staff would later transcribe to a form suitable for copyright, sale, and performance by Bee Gees. Testimonies were presented to recount how the Bee Gees and their staff composed six new songs while in Paris. A tape that preserved the actual process of composition, excluding the very beginning of the process, was introduced into evidence and played in court. Selle presented Arrand Parsons, a music professor at Northwestern University with a professional experience in classical music, as an expert witness. By comparing the notes, pitch, and rhythmic impulses of the two songs, he was of the opinion that they could not have been written independent of one another. He declined, however, to say that similarities could only have resulted from copying. The jury returned a verdict for Selle on the issue of liability. Judge Leighton, however, granted Gibbs’ motion for judgment NOV or, in the alternative, for a new trial. Judge Leighton relied on Selle’s inability to demonstrate that Gibbs had access to his song. Absent such access, claim of copyright infringement could not prevail regardless of the similarities.

Selle appealed arguing that the District Court misunderstood the theory of proof of copyright infringement, which provides that access can be inferred when two songs are so strikingly similar.


Was the district court’s grant of motion for judgment correct despite the jury’s verdict for Selle?




The Court ruled that Selle failed to establish that the Gibbs' had direct access to his work or that the public dissemination of his work was of such a scale that the Gibbs would have gained access to it. Furthermore, the testimony of Parsons was insufficient to prove that the two songs had striking similarity. Parsons ruled out the possibility of independent creation; but, he was unable to testify as to the relative complexity or uniqueness of the two compositions. The Court referred to a tape where segments of Selle’s and Gibbs’ songs were recorded and interspersed with segments of compositions ranging from classical to contemporary. There were superficial similarities which Parsons failed to explain; therefore, Selle failed to sustain the burden of proving that there was striking similarity.

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