or numbers” but of “their equivalent.” To hold otherwise would frustrate the policies underlying the rule and introduce undesirable inconsistencies into the application of the rule.
In the days before liberal rules of discovery and modern techniques of electronic copying, the rule guarded against incomplete or fraudulent proof. By requiring the possessor of the original to produce it, the rule prevented the introduction of altered copies and the withholding of originals. The purpose of the rule was thus long thought to be one of fraud prevention, but Wigmore pointed out that the rule operated even in cases where fraud was not at issue, such as where secondary evidence is not admitted even though its proponent acts in utmost good faith. Wigmore also noted that if prevention of fraud were the foundation of the rule, it should apply to objects as well as writings, which it does not. 4 Wigmore, Evidence § 1180 (Chadbourn rev. 1972).
The modern justification for the rule has expanded from prevention of fraud to a recognition that writings occupy a central position in the law. When the contents of a writing are at issue, oral testimony as to the terms of the writing is subject to a greater risk of error than oral testimony as to events or other situations. The human memory is not often capable of reciting the precise terms of a writing, and when the terms are in dispute only the writing itself, or a true copy, provides reliable evidence. To summarize then, we observe that the importance of the precise terms of writings in the world of legal relations, the fallibility of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplication are the concerns addressed by the best evidence rule. See 5 Louisell & Mueller, Federal Evidence, § 550 at 283; McCormick on Evidence (3d ed. 1984) § 231 at 704; Cleary & Strong, The Best Evidence Rule: An Evaluation in Context, 51 Iowa L.Rev. 825, 828 (1966).
Viewing the dispute in the context of the concerns underlying the best evidence rule, we conclude that the rule applies. McCormick summarizes the rule as follows:
[I]n proving the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent.
McCormick on Evidence § 230, at 704.
The contents of Seiler’s work are at issue. There can be no proof of “substantial similarity” and thus of copyright infringement unless Seiler’s works are juxtaposed with Lucas’ and their contents compared. Since the contents are material and must be proved, Seiler must either produce the original or show that it is unavailable through no fault of his own. Rule 1004(1). This he could not do.
The facts of this case implicate the very concerns that justify the best evidence rule. Seiler alleges infringement by The Empire Strikes Back, but he can produce no documentary evidence of any originals existing before the release of the movie. His secondary evidence does not consist of true copies or exact duplicates but of “reconstructions” made after The Empire Strikes Back. In short, Seiler claims that the movie infringed his originals, yet he has no proof of those originals.
The dangers of fraud in this situation are clear. The rule would ensure that proof of the infringement claim consists of the works alleged to be infringed. Otherwise, “reconstructions” which might have no resemblance to the purported original would suffice as proof for infringement of the original. Furthermore, application of the rule here defers to the rule’s special concern for the contents of writings. Seiler’s claim depends on the content of the originals, and the rule would exclude reconstituted proof of the originals’ content. Under the circumstances here, no “reconstruction” can substitute for the original.
Seiler argues that the best evidence rule does not apply to his work, in that it is artwork rather than “writings, recordings, or photographs.” He contends that the
