John L. Perry Studio, Inc., John L. Perry, Plaintiffs-appellants, v. Marvin Wernick, Marvin Wernick Co., Theodore Williams, Starcrest of California, Ruth Sloan Co., Inc.,defendants-appellees, 597 F.2d 1308 (9th Cir. 1979)

Appellants, John L. Perry and John L. Perry Studio, Inc., appeal from a judgment of the District Court following a trial without jury, which held that the manufacture and distribution by the appellees of certain seagull sculptures did not infringe upon appellants' copyrighted seagull creations nor constitute unfair competition with the appellants. We affirm.

Both the copyrighted Perry sculptures¹  and the alleged infringing sculptures, created by Williams, one of the appellees, depict seagulls in various postures of flight, mounted by wire to pieces of driftwood or rock. Both are molded of a similar white plastic material and are of approximately the same size and shape. It is unchallenged that the copyrighted sculptures were created and distributed prior in time to the creation and distribution of the accused birds. Considerable evidence, however, was presented to the trial court that indicated that a progenitor of the accused birds, also made by Williams, existed for some time before Perry created his seagulls.

The ultimate legal conclusion of the District Court, that appellees had not infringed upon the Perry copyright, was based upon the court's factual finding that the Williams sculptures had been independently created.²  We do not accept appellants' argument that the District Court placed an impossible burden upon them to disprove appellees' contention that there had been an independent creation of the Williams seagulls. Our examination of the record convinces us that the District Court correctly shifted the burden of persuasion to the alleged infringers, requiring them to show that the Williams seagulls were independently created once the appellants had successfully established a Prima facie case of infringement. Granite Music Corp. v. United Artists Corp., 532 F.2d 718, 721 (9th Cir. 1976) ("If a plaintiff offers proof that the defendant had 'access' to his work and that the two works are substantially similar, then a presumption of copying by the defendant arises.").

Appellants erroneously characterize the foregoing burden of persuasion, the burden required to rebut the presumption of copying, as one of going forward with "clear and convincing" or "strong, convincing and persuasive evidence". The appellants base their argument upon dictum contained in Overman v. Loesser, 205 F.2d 521 (9th Cir. 1953), Cert. denied, 346 U.S. 910, 74 S. Ct. 241, 98 L. Ed. 407 (1953). This same contention by the appellants was expressly rejected by our court in Granite Music Corp. v. United Artists Corp., supra. There we characterized a similar argument based upon the Overman dictum as "an erroneous statement of law" and a "faulty interpretation". Id. at 722. We held that the "strong, convincing and persuasive evidence" standard suggested in the Overman dictum was an erroneous injection of a patent law axiom into copyright cases. Id. at 723. We did, however, quote with approval the following language from Overman :

Since proof of prior composition (or here, independent creation) requires an affirmative offering of evidence by the defendant, there occurs what may be referred to as a shift in the duty of "going forward". As Wigmore expresses it (IX Wigmore 2487, p. 280), when "the proponent has been able * * * to adduce evidence which if believed would make it beyond reason to repudiate the proponent's claim * * * unless the opponent now offers evidence against the claim and thus changes the situation, the (trier of facts) should not be allowed to render a verdict against reason," i. e., against the evidence. And the stronger the prima facie case established by the plaintiff, the correspondingly more persuasive must the evidence be in rebuttal.

Overman, supra, 205 F.2d at 523-24, quoted in Granite Music Corp. v. United Artists Corp., supra, 532 F.2d at 723.

We then held:

We believe the above statement . . . to be the holding of the Overman case as to the burden of proof, and the language relied on by the defendants to be only dictum. In Overman the plaintiff prevailed and the decision on appeal sustained the finding that the defendant did not copy from plaintiff's song. Thus the evidence presented by the defendant Was more persuasive and overcame the inference of copying.

The language of the opinion that the burden is on the alleged infringer to answer with "strong, convincing and persuasive evidence" to refute the inference of copying has not worked its way into copyright law.

Id. at 723-24 (emphasis added).

As to appellants' contention that the District Court's findings of fact in support of its conclusion that Williams independently created his seagulls were "clearly erroneous", we do not agree. The trial court's determinations were based upon an evaluation of conflicting testimony presented not only by the interested parties, but also by disinterested expert witnesses as well. The learned trial judge also had the opportunity to examine, at first hand, the various sculptures introduced as exhibits and several wax molds of the type used to make the sculptures. After carefully weighing this evidence and the credibility of the witnesses, the District Court entered judgment for the appellees. Finding no reason to disturb that judgment, we consider ourselves without appropriate power to do so.

We likewise find appellants' argument challenging the sufficiency of the evidence on the unfair competition claim to be without merit.

AFFIRMED.