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On November 2, 1983, Baxter filed a complaint for copyright infringement and demand for jury trial in district court. He alleged that Theme from E.T. was largely copied from his copyrighted song Joy. On September 17, 1984, defendants moved for summary judgment on the ground that, as a matter of law, Theme from E.T. was not substantially similar to protectible expression in Joy, and therefore did not infringe it. For the limited purpose of the summary judgment motion only, defendants conceded that: (1) Baxter owned a duly registered copyright in Joy; (2) Williams had “access” to Joy before the creation of Theme from E.T.; and (3) the “general ideas” in the subject songs were substantially similar.
Defendants attached to their motion papers the following items: (1) cassette tape recordings of Joy as it appeared on the album The Passions and the movie soundscore of Theme from E.T.; (2) the twenty-three page written instrumental sheet music of Joy that was copyrighted; and (3) the five page piano score of Theme from E.T. Baxter introduced into evidence expert testimony and five comparison tapes by Professor Harvey Bacal regarding the degree of similarity between the two compositions.
After reviewing the submitted evidence, the district court granted defendants’ motion for summary judgment, stating:
This Court’s “ear” is as lay as they come. The Court cannot hear any substantial similarity between defendant’s expression of the idea and plaintiff’s. Until Professor Bacal’s tapes were listened to, the Court could not even tell what the complaint was about. Granted that Professor Bacal’s comparison exposes a musical similarity in sequence of notes which would, perhaps, be obvious to experts, the similarity of expression (or impression as a whole) is totally lacking and could not be submitted to a jury.
Baxter timely appealed.
- DISCUSSION
After the defendants stipulated to the plaintiff’s ownership of the copyright and access to his work, the district court ruled as a matter of law that there was no substantial similarity of expression between the two works. That holding is subject to our de novo review. Berkic v. Crichton, 761 F.2d 1289, 1292 (9th Cir.1985), cert. denied, – U.S. —, 106 S.Ct. 85, 88 L.Ed.2d 69 (1985). We review the evidence and the inferences therefrom in the light most favorable to the nonmoving party, and determine whether there exists any genuine issue of material fact and the moving party is entitled to judgment as a matter of law. RFD Publications, Inc. v. Oregonian Pub. Co., 739 F.2d 1327, 1328 (9th Cir.1984) accord Twentieth Century Fox Film Corp. v. MCA, 715 F.2d 1327, 1328 (9th Cir.1983). The district court’s grant of summary judgment to the defendants must be affirmed if reasonable minds could not differ as to the presence or absence of substantial similarity of expression. See v. Durang, 711 F.2d 141 (9th Cir.1988). See also Twentieth Century-Fox, 715 F.2d at 1329.
To establish a successful claim for copyright infringement, the plaintiff must prove (1) ownership of the copyright, and (2) “copying” of protectible expression by the defendant. See Sid & Marty Krofft Television Productions, Inc., v. McDonald’s Corp., 562 F.2d 1157, 1162 (9th Cir.1977) (citing Reyher v. Children’s Television Workshop, 533 F.2d 87, 90 (2d Cir.1976), cert. denied, 429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.1975), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975); 2 M. Nimmer, Nimmer on Copyright § 141 at 610–611 (1979) [hereinafter cited as “Nimmer”]). Because direct evidence of copying is rarely available, a plaintiff may establish copying by circumstantial evidence of: (1) defendant’s access to the copyrighted work prior to the creation of defendant’s work, and (2) substantial similarity of both general ideas and expression between the copyrighted work and the defendant’s work. See Krofft, 562 F.2d at 1162. Absent evidence of access, a “striking similarity” between the works may give rise to a permissible inference of copying. See
