John T. Blanchard, Los Angeles, Cal., for plaintiff-appellant.
Louis P. Petrich, Los Angeles, Cal., for defendants-appellees, MCA, et al.
Ronald S. Rosen, Los Angeles, Cal., for defendant-appellee, John T. Williams.
Before TANG, BOOCHEVER and KOZINSKI[* 1], Circuit Judges.
TANG, Circuit Judge:
In this copyright infringement action, plaintiff-appellant Leslie T. Baxter appeals the district court’s grant of summary judgment to John Williams and the other defendants-appellees. The district court granted defendants’ motion based upon its determination that no substantial similarity existed as between Baxter’s copyrighted song Joy and the theme from the motion picture “E.T.: The Extra-Terrestrial” [hereinafter cited as Theme from E.T.]. We reverse the grant of summary judgment and remand for trial.
- FACTS AND PROCEDURAL HISTORY
In 1953, Leslie Baxter composed a collection of seven songs intended to invoke or represent emotions. These songs were recorded and published by Capital Records in 1954 on an album entitled The Passions. Joy, one of the compositions on that album, is the subject of this action.[1] Baxter is the sole owner of all right, title and interest in the copyright to Joy.
Baxter and John Williams, a successful composer and conductor of music, have been personally acquainted for several decades. Williams had previously played the piano for Baxter at a number of recording sessions, and had knowledge of Joy. He participated as the pianist in the orchestra for a public performance of Joy in the Hollywood Bowl in the 1960s. In 1982, Williams composed Theme from E.T. for which he received an Academy Award for best original music. The other appellees utilized Theme from E.T. in the motion picture “E.T.: The Extra-Terrestrial,” sounds recordings and merchandising.
- ↑ *Judge Duniway, since deceased, was a member of the panel that originally heard oral argument in this case. Judge Kozinski was chosen by lot to replace Judge Duniway on the panel, and has had the benefit of listening to the tapes of oral argument, as well as reading the briefs and reviewing the record and exhibits in his consideration of the case.
- ↑ Since Joy was published and fixed in a sound recording prior to February 15, 1972, it was not eligible for copyright protection. Baxter’s claim rests on Joy as registered sheet music which was copyrighted on February 8, 1954 and renewed on August 20, 1982.
