Three Boys Music Corporation v. Michael Bolton

A copyright plaintiff may prove access circumstantially by showing either a chain of events connecting the work to the defendant or widespread dissemination of the work. Access must be a reasonable possibility of hearing or seeing the work, rather than mere speculation or a bare possibility.

The Isley Brothers offered evidence that the 1964 song was played on radio and television programs in markets relevant to Bolton and Goldmark, that both were teenagers deeply interested in rhythm and blues when the song was released, and that Bolton later described himself as an extensive collector and admirer of Isley Brothers music.

The evidence also permitted an inference of subconscious copying. On a work tape, Bolton asked whether the song he and Goldmark were writing might be a Marvin Gaye song, suggesting that he thought the musical material may have originated with another artist even if he could not identify the source correctly.

The defendants countered with testimony from music-industry witnesses who had never heard the Isley Brothers' song, television listings suggesting the cited program did not air in Connecticut, and evidence that many other songs shared the same title. But appellate review asks whether substantial evidence could support the verdict, not whether the appellate court would have reached the same conclusion. The jury was entitled to credit the plaintiffs' evidence.

In the Ninth Circuit, substantial similarity has an extrinsic and an intrinsic component. The extrinsic inquiry identifies objectively comparable elements, often through expert analysis; the intrinsic inquiry asks whether an ordinary reasonable person would find the works' total concept and feel substantially similar. The intrinsic inquiry is particularly committed to the jury.

The Isley Brothers' musicologist identified five shared elements: the title-hook phrase, including its lyric, rhythm, and pitch; a shifted cadence; instrumental figures; the verse-chorus relationship; and the fade ending. Even if the individual elements were unprotectable, the jury could find infringement in their particular combination and overall effect.

The defendants' expert acknowledged similarities between the songs and did not locate the identified combination in the prior art. The opposing experts presented a classic factual dispute for the jury, not a basis for appellate reweighing of testimony.

Access plus substantial similarity creates a presumption of copying, which the defendant may rebut with proof of independent creation. The jury heard the defendants' work tape, their songwriting history, and testimony about arranger Walter Afanasieff's contributions. It could reasonably conclude that this evidence did not establish independent creation, particularly because the work tape itself supported the possibility of subconscious borrowing.

The court also clarified the inverse-ratio rule: strong proof of access permits a lesser showing of substantial similarity. The rule does not mean that weak proof of access affirmatively requires a heightened showing of similarity. The court held only that the evidence in this record was sufficient for the jury's verdict.

Under the 1909 Copyright Act, a copyright owner was required to deposit a complete copy of the work. But Ninth Circuit precedent treats the completeness requirement broadly: inaccuracies in a registration generally do not bar an infringement action absent an intent to defraud and resulting prejudice.

Bolton and Goldmark argued that the sheet-music deposit differed from the recorded version and omitted many features on which the infringement claim rested. The Isley Brothers' expert testified, however, that the deposit copy contained the essential elements, including the title hook, chorus, and pitches, and demonstrated the deposit copy for the jury.

The court deferred to the jury's acceptance of that testimony. Any discrepancies were minor, and nothing suggested fraud or prejudice. The registration therefore supported the action.

Under 17 U.S.C. § 504(b), the copyright owner need prove the infringer's gross revenue. The infringer then bears the burden of proving deductible expenses and the portion of profits attributable to factors other than the copyrighted material.

Sony Music argued that the song generated only 5 to 10 percent of the album's profits and that the infringing features produced only 10 to 15 percent of the song's profits. The plaintiffs challenged the credibility of Sony's expert and introduced evidence that Bolton's song was the album's lead single, was released shortly before the album, and received active promotional support from Bolton.

The jury found that the song accounted for 28 percent of album profits and that infringing elements accounted for 66 percent of the song's profits. Because Sony bore the burden of proving the contrary allocation, and the jury was free to disbelieve its experts, the result was not clearly erroneous.

The court adopted the approach allowing nonwillful infringers to deduct income taxes actually paid in connection with infringing profits. That approach prevents a damages award from exceeding the profits the individual infringer actually retained after paying taxes.

Bolton and Goldmark had actually paid income taxes and management fees related to the infringing song, so the district court properly treated those outlays as deductible expenses. The court distinguished those concrete expenditures from Sony Music's claimed tax benefit.

Sony Music had not paid income taxes on the relevant profits. Instead, it offset a claimed tax amount through its parent company's net operating loss carry-forward. No authority treated such an unrealized or noncash tax offset as a deductible expense under § 504(b), and the district court reasonably refused the deduction.

Bolton and Goldmark learned of the Turkcords' authorship claim before the deadline for post-trial motions but waited until fourteen days after that deadline to file an additional new-trial motion. A district court has broad discretion to deny an untimely Rule 60(b) request.

The Turkcords' claim was also weak and largely impeaching. They had known of the song's 1991 rerelease but asserted their claim only after learning of the verdict, and their account conflicted with the evidence presented at trial. Thus, at most, the evidence affected the weight and credibility of prior testimony.

Moreover, the registered copyright was prima facie evidence of validity. Even accepting the Turkcords' claim, the Isley Brothers contributed original material to the recorded work. Because originality requires only a nontrivial contribution rather than complete authorship of every feature, the new allegations did not undermine the plaintiffs' ownership sufficiently to warrant a new trial.