425
We do not suggest that our ears are any more sophisticated than those of the district court. Nevertheless, based on our review of the record, we are persuaded that reasonable minds could differ as to whether Joy and Theme from E.T. are substantially similar. As in Twentieth Century-Fox, we do not suggest that the works are, in fact, substantially similar. We only state that reasonable minds could differ as to the issue and thus that summary judgment was improper. See Twentieth Century-Fox, 715 F.2d at 1329.
We finally address defendants’ contention that any similarity between the works can be reduced to a six-note sequence which is not protectible expression under the copyright laws. We disagree.
Even were we to accept arguendo defendants’ argument over Baxter’s response that it is not a six-note sequence but the entire work whose similarity is at issue, this argument ignores the fundamental notion that no bright line rule exists as to what quantum of similarity is permitted before crossing into the realm of substantial similarity. See generally 3 M. Nimmer, Nimmer on Copyright § 13.03[A][2] (1986). Here, the ear of the court must yield to the ears of jurors. See Roy Export Co. Establishment v. CBS, 503 F.Supp. 1137, 1145 (S.D.N.Y.1980), aff’d, 672 F.2d 1095 (2d Cir.1982), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982). Even if a copied portion be relatively small in proportion to the entire work, if qualitatively important, the finder of fact may properly find substantial similarity. See Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir.1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1054, 59 L.Ed.2d 94 (1978); Universal Pictures v. Harold Lloyd, 162 F.2d 354 (9th Cir.1947); Heim v. Universal Pictures Co., 154 F.2d 480, 488 (single brief phrase so idiosyncratic as to preclude coincidence might suffice to show copying) (dictum); Fred Fisher, Inc. v. Dillingham, 298 F. 145 (S.D.N.Y.1924) (L. Hand, J.) (eight note “ostinato” held to infringe copyright in song). See also Meeropol v. Nizer, 560 F.2d 1061 (2d Cir.1977) (words copied amounted to less than one percent of defendant’s entire work; fair use), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1977); Robertson v. Batten, Barton, Durstine & Osborne, Inc., 146 F.Supp. 795, 798 (S.D.Cal.1956) (portions of song used constituted element upon which popular appeal and hence commercial success depended; fair use). See generally Nimmer § 13.03[A][2] at 13–36, and citations therein (notion that copying of three bars from musical work can never constitute infringement is without foundation). Certainly, evidence that the sequence in question is found in other works would be admissible to rebut an inference of copying; such evidence demonstrates that the sequence is so common that the probability of independent, coincidental creation was high. Granite Music Corp. v. United Artists Corp., 532 F.2d 718, 720 (9th Cir.1976).
But we do not understand Baxter’s claim to center solely on one six-note sequence. The jury upon remand may, of course, determine that any similarity is confined to the sequence, and that the similarity is insubstantial.
- CONCLUSION
Based upon our review of the record, we cannot say that Joy and Theme from E.T. are so dissimilar that reasonable minds could not differ as to a lack of substantial similarity between them. Therefore, the district court erred in granting defendants’ motion for summary judgment.
Reversed and remanded for proceedings not inconsistent with this opinion.
