Selle was a small-time
musician who wrote a song and sent some demo tapes to various record
label, but none of them offered to distribute his music. Later, a band
called the Bee Gees recorded a very similar-sounding song. Selle sued for
copyright infringement.
The Bee Gees argued that
they never even heard Selle's song and they came up with his song all by
themselves (aka independent creation).
The Trial Court found for the
Bee Gees. Selle appealed.
The Appellate Court affirmed.
The Appellate Court found
that there are two elements to establishing infringement:
There must be evidence that
the defendant had access to the
copyrighted work.
There must be evidence that
the works are substantially similar.
Selle was unable to show any
evidence that the Bee Gees ever had access to his song. The best he could show was an expert witness who
said that the songs we so strikingly similar that there was no way they could have been
written independent of each other. However, the Court found that wasn't
enough.
The Court noted that if two
works are so similar as to make
it highly probable that the later one is a copy of the earlier one, the
issue of access need not
be addressed since if the later work was a copy its creator must have
had access to the original.
Basically, this case said that
if two works are almost identical, then there is no requirement that the
copyright owner establish access.
