Unpublished Disposition, 907 F.2d 154 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 907 F.2d 154 (9th Cir. 1988)

No. 88-6660.

United States Court of Appeals, Ninth Circuit.

Before JAMES R. BROWNING and PREGERSON, Circuit Judges, and WILLIAM H. ORRICK,*  District Judge.


Baxter brought suit against defendants for copyright infringement. The district court granted summary judgment for defendants MCA and Merchandising Corporation of America because Baxter did not present facts to support his theories they were vicariously or indirectly liable for the other defendants' alleged infringement. At trial against the remaining defendants, a jury decided the portion of Baxter's song that was substantially similar to the allegedly infringing song was not original material protected by copyright. We affirm.

The district court declined to give Baxter's proposed jury instruction to the effect that copyright registration created a presumption of originality. See 17 U.S.C. § 410(c) (copyright registration is prima facie evidence of validity of copyright). Before charging the jury, the court asked counsel several times if they had any objections to the instructions the court intended to give. Baxter's counsel did not object. Baxter cannot raise the issue on appeal. See Brett v. Hotel, Motel, Restaurant, Construction Camp Employees & Bartenders Union, 828 F.2d 1409, 1414 & n. 7 (9th Cir. 1987); Fed. R. Civ. P. 51.

Baxter argues the jury's verdict that Joy's B Theme was not protectible is not supported by sufficient evidence. Since Baxter did not move for a directed verdict at the close of evidence, we examine the record only to determine whether "there is such plain error on the face of the record that failure to review would result in a manifest miscarriage of justice." Williams v. Hughes Helicopters, Inc., 806 F.2d 1387, 1391-92 (9th Cir. 1986) (internal quotation omitted); accord Herrington v. County of Sonoma, 834 F.2d 1488, 1500 & n. 11 (9th Cir. 1988). Our inquiry is "limited to whether there was any evidence to support the jury's verdict, irrespective of its sufficiency." Herrington, 834 F.2d at 1500 (internal quotation omitted).

Baxter did not argue the Theme from E.T. was substantially similar to all of Joy's B Theme; he argued a "small but qualitatively important portion" of the B Theme was taken. In support of this argument, Baxter played fragments of the two compositions, in varying lengths, to the jury. In special verdict form, the jury was asked "Is the expression of the musical idea and the music from 'E.T.' substantially similar as defined in the instructions to a qualitatively important music expression in 'Joy'?"1  RT 8/31/88 at 80-81. The jury answered "yes," but did not identify which portions of the compositions were substantially similar.

The jury could have found the B Theme fragment was not protectible if it found any of the following: (1) the fragment is not original; (2) it is a mere idea; (3) it is trite or commonplace; or (4) it is too short. Experts for defendants testified that the fragments of Joy's B Theme played to the jury by Baxter were commonplace. Viewing the evidence in the light most favorable to appellees, we must assume the jury found the Theme from E.T. substantially similar to one of these fragments of the B Theme. This evidence supports a finding Baxter's work was not protectible by copyright.

Because we uphold the jury verdict for defendants, we do not reach the issue whether summary judgment for MCA and Merchandising Corporation of America was proper.



The Honorable William H. Orrick, District Judge, United States District Court for the Northern District of California, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


The instructions stated that to show the two works were substantially similar, "it must be shown that a portion of 'E.T.' theme is virtually identical to a portion of 'Joy,' and that the portion of 'Joy' which is virtually identical--if you find that it is--is a significant part of the entire 'Joy' composition." RT 8/31/88 at 33