The Benefit of the Independent Creation Rule

February 13, 2003

By HunterMaclean Attorneys, published on February 13, 2003, in Products Liability Publication

A recent Eleventh Circuit Court case reinforces the benefit of the independent creation rule for the music industry regarding copyright infringement. This copyright infringement case (Calhoun v. Lillenas Publishing, Civ. Nos. 01-11413, 01-11415, Eleventh Circuit 2002), involved allegations that in 1979, a songwriter, Robert McGee, essentially copied a song previously written by the Plaintiff, Ronald Calhoun. Mr. Calhoun’s song was registered with Broadcast Music, Incorporated (“BMI”) and released to the public for sale and distribution. Promotional efforts, however, resulted in only $11 in royalties.

Mr. Calhoun had to establish two elements to prove his case: 1) the existence of a valid copyright in his song, and 2) that original elements were actually copied from the copyrighted work. There was no dispute that a valid copyright existed. To prove the second element, Calhoun had to show both access to the infringed work and a substantial similarity between his work and that of McGee. In his defense, McGee asserted that he had no access to Calhoun’s work and that the two songs were not substantially similar.

The Court noted that although the works were “practically identical . . . identical expression does not necessarily constitute [copyright] infringement” – that is why courts require evidence of access to the previous song. McGee offered his own testimony that he had no access to Calhoun’s song and that he independently created his own work. McGee’s testimony, along with testimony of other chorus members who witnessed McGee composing the chorus, proved to be the pivotal pieces of evidence because the law shifts the burden to Calhoun to prove copying once McGee presented any evidence that he had no access to the work. Calhoun was unable to establish any link between his song and McGee. In short, the court concluded that McGee was entitled to judgment in his favor as a matter of law because of the unrefuted evidence establishing that his work was independently created.

What this means for the entertainment industry:

The theory of “independent creation” is a significant defense to a copyright infringement lawsuit. Federal Courts in Georgia recognize this defense, and more importantly, recognize that a simple, short composition might well be susceptible to original creation by more than one composer.

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