called Imperial Walkers. In 1981 Seiler obtained a copyright on his Striders, depositing with the Copyright Office “reconstructions” of the originals as they had appeared in 1976 and 1977.
Seiler contends that Lucas’ Walkers were copied from Seiler’s Striders which were allegedly published in 1976 and 1977. Lucas responds that Seiler did not obtain his copyright until one year after the release of The Empire Strikes Back and that Seiler can produce no documents that antedate The Empire Strikes Back.
Because Seiler proposed to exhibit his Striders in a blow-up comparison to Lucas’ Walkers at opening statement, the district judge held an evidentiary hearing on the admissibility of the “reconstructions” of Seiler’s Striders. Applying the “best evidence rule,” Fed.R.Evid. 1001–1008, the district court found at the end of a seven-day hearing that Seiler lost or destroyed the originals in bad faith under Rule 1004(1) and that consequently no secondary evidence, such as the post-Empire Strikes Back reconstructions, was admissible. In its opinion the court found specifically that Seiler testified falsely, purposefully destroyed or withheld in bad faith the originals, and fabricated and misrepresented the nature of his reconstructions. The district court granted summary judgment to Lucas after the evidentiary hearing.
On appeal, Seiler contends 1) that the best evidence rule does not apply to his works, 2) that if the best evidence rule does apply, Rule 1008 requires a jury determination of the existence and authenticity of his originals, and 3) that 17 U.S.C. § 410(c) of the copyright laws overrides the Federal Rules of Evidence and mandates admission of his secondary evidence.
The appeal was timely; this court has jurisdiction under 28 U.S.C. § 1291. Review of summary judgment is de novo. Ashton v. Gory, 780 F.2d 816, 818 (9th Cir.1986). The issues presented are questions of law, reviewable de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.1984) (en banc).
DISCUSSION
1. Application of the best evidence rule.
The best evidence rule embodied in Rules 1001–1008 represented a codification of longstanding common law doctrine. Dating back to 1700, the rule requires not, as its common name implies, the best evidence in every case but rather the production of an original document instead of a copy. Many commentators refer to the rule not as the best evidence rule but as the original document rule.
Rule 1002 states: “To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.” Writings and recordings are defined in Rule 1001 as “letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.”
The Advisory Committee Note supplies the following gloss:
Traditionally the rule requiring the original centered upon accumulations of data and expressions affecting legal relations set forth in words and figures. This meant that the rule was one essentially related to writings. Present day techniques have expanded methods of storing data, yet the essential form which the information ultimately assumes for usable purposes is words and figures. Hence the considerations underlying the rule dictate its expansion to include computers, photographic systems, and other modern developments.
Some treatises, whose approach seems more historical than rigorously analytic, opine without support from any cases that the rule is limited to words and figures. 5 Weinstein’s Evidence (1988), ¶ 1001(1) [01] at 1001–11; 5 Louisell & Mueller, § 550 at 285.
We hold that Seiler’s drawings were “writings” within the meaning of Rule 1001(1); they consist not of “letters, words,
