Three Boys Music Corp.

v Bolton

Issue:
-Whether the District Court’s verdict is supported by substantial evidence and whether
reasonable minds could find that D had a reasonable opportunity to have heard P’s song before
they created their own song

Procedural History:
-District Court denied Bolton’s motion for new trial and affirmed jury’s award of $5.4 million
finding there was copyright infringement
-Bolton appeals arguing that the District Court erred in finding that: sufficient evidence supported
the jury’s finding that the appellants had access to the Isley Brothers’ song, sufficient evidence
supported the jury’s finding that the songs were substantially similar, and subject matter
jurisdiction existed based on the Isley Brothers registering a complete copy of the song
-This Court affirms – Bolton loses.

Facts:
-Isley Brothers wrote and recorded the song “Love is a Wonderful Thing” and received a copyright
in 1964.
-United Artist released the song in 1966 on a single
-In 1991, the song was released on CD
-Bolton and Goldmark wrote a song with the same name and released it in 1990 on Bolton’s
album
-Bolton said he has heard the Isley Brothers’ music and was a fan

Analysis:
-Copyright P must prove: ownership of the copyright and infringement
-Proof of infringement includes: Proof of access (reasonable opportunity to view or reasonable
possibility to copy P’s work) and substantial similarity (inextricably linked)
-In determining proof of access the Court considered circumstantial evidence supporting that P’s
work was widely disseminated and therefore, because Bolton admittedly was a fan of the Isley
Brothers, the Court found proof of access
-In determining substantial similarity the Court uses a 2 part test: extrinsic and intrinsic
-Extrinsic evidence requires P to identify concrete elements based on objective criteria (such as
expert opinions)
-Intrinsic evidence is subjective and asks “whether the ordinary, reasonable person would find the
total concept and feel of the works to be substantially similar”
-The Court here found that the jury’s conclusion about access is supported by substantial
evidence: both songs shared the same title hook phrase, shifted cadence, instrumental figures,
verse/chorus relationship, and fade ending

Conclusion/Holding:
-Substantial evidence of copying based on access and substantial similarity was such that a

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reasonable juror could reject this defense
-Bolton infringed the copyright
-Must prove the work was widely distributed and Bolton had access and then get into substantial
similarity test (extrinsic/intrinsic) and let the reasonable person decide whether intrinsically there
is substantial similarity
-The District Court’s verdict for the P is affirmed.

Three Boys Music Corp. v. Michael Bolton

212 F.3d 477 (9th Cir. 2000)

 The Isley Brothers recorded a song. Many years later, Bolton recorded a similar-sounding
song. The Isley Brothers sued for copyright infringement.
o Bolton argued that he couldn't remember ever hearing the Isley Brothers song and
that he came up with his song all by himself (aka independent creation).
 The Trial Court found for the Isley Brothers. Bolton appealed.
 The Appellate Court affirmed.
o 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.
o The Court found there were two ways to establish access:
 A particular chain of events is established between the plaintiff's work and
the defendant's access to that work (like the defendant dealt with the same
publisher as the plaintiff), or
 The plaintiff's work was "widely disseminated."
o The Court found that these were very fact-dependent issues so they would trust the
jury's decision.
 The Court noted that they personally thought that the Isley's evidence that
the song had been widely disseminated was pretty weak.
 The Isley Brothers had provided testimony from dee-jays that they had
played the song on the radio in the city Bolton grew up in, and that
Bolton really liked music similar to the Isley Brothers.

Cavalier vs random house

Facts

Wanda and Christopher Cavalier (plaintiffs) wrote children’s stories about a character named
Nicky Moonbeam. The stories included a few books of several thousand words and a board book
for young children. In one illustration, a star is shown lounging on a cloud during the daytime. In
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another, a star is being polished by the main character. The board book included a night-light built
into the back cover, with a smiling moon surrounded by stars and a power switch to the lower
right. The general theme of the stories included traveling through the night sky and speaking with
the moon and stars. The Cavaliers submitted the stories and illustrations to Random House,
Incorporated (Random House) (defendant), but the submissions were rejected. Random House
later published two books, Good Night, Ernie and Good Night, Elmo (the Good Night books). The
books involved Ernie and Elmo traveling through the night sky accompanied by the moon. The
Good Night books included illustrations of stars lounging on clouds during the day and stars being
polished. The Good Night books also included a night-light depicting a smiling moon and a smiling
star, with rosy cheeks, surrounded by stars and a power switch to the lower right. Each book was
around 100 words long. The Cavaliers sued Random House, CTW Publishing Company, and the
Children's Television Workshop Inc. (defendants) for copyright infringement. The defendants filed
a motion for summary judgment. The district court granted the motion. The Cavaliers appealed
the decision.

Cavalier v. Random House, Inc.

297 F.3d 915 (9th Cir. 2002)

 The Cavaliers wrote some children's books involving a talking moon. They tried to sell
these books to Random House, but no agreement was ever reached. A little while later,
Random House published different books with similar themes. The Cavaliers sued for
copyright infringement.
o The Cavaliers argued that Random House's new books were substantially similar to
their work.
 The Trial Court found for Random House. The Cavaliers appealed.
o The Trial Court found that many of the elements that the Cavaliers' claimed were
being infringed were just general ideas or stock characters, and those are not
protectable by copyright.
o The Court found that the copyrightable elements of the Cavaliers' work were not
substantially similar to Random House's work.
 The Appellate Court affirmed.
o The Appellate Court found that there is a two part analysis for infringement:
 The extrinsic test which is an objective comparison of specific expressive
elements, and
 The intrinsic test which is a subjective comparison that focuses on whether a
reasonable audience would find the "total concept and feel" of the works to
be similar.
o The Court looked at the fact of the case and concluded that neither the works as a
whole, nor specific elements of the works were substantially similar enough to rise
to the level of infringement.
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MGM studios vs Grokster

Brief Fact Summary. The defendant’s distributed free software that allowed private individuals to
share copyrighted electronic files without authorization. Some of those files shared are movies
and songs that MGM hold copyrights to.

Synopsis of Rule of Law. When a distributor takes affirmative steps to foster infringement through
the use of its product, the distributor will be liable for that infringement conducted by 3rd parties.

Facts.

Grokster, LTD and StreamCast Network distributed fee software that allowed the sharing of files
in a peer to peer network. This avoided the need for central servers and costly server storage and
works faster. Since files can go from computer to computer and not through the server it is safer
and cost efficient. This program was used by universities, government agencies, corporations,
libraries and then private users. Private users began sharing copyrighted music and video files
without authorization. Grokster used technology called FastTrack and Stream Cast used Gnutella.
The files shared do not go to a central location so Grokster and StreamCast did not know when
the files were being copied but if they had searched there software they would see the type of
files being shared. It was shown that StreamCast gave software called OpenNap labeled the best
alternative to Napster in the hopes to take all the Napster users that had to stop using that
software after Napster was sued. Grokster had a program called OpenNap that allowed users to
search for Napster files. Grokster and StreamCast received revenues from posting advertising all
over its program software. MGM was able to show that some 90 percent of the files being shared
where copyrighted files. Also there is no evidence that either company tried to filter or stop
copyright infringement. The district court granted summary judgment in favor of Grokster and
Stream Case because although users of the software did infringe MGM’s property there was no
proof there the distributors had actual knowledge of specific acts of infringement. MGM
appealed.

Issue. Whether a distributor of a product that is capable of lawful and unlawful use is liable for
copyright infringement by a 3rd party using that product.

Held. Yes. The appeals court stated that since these distributors did not have actual knowledge,
did not partake in, or monitor the file sharing they are not directly liable for the infringement.
However the court erred in finding they were not secondarily liable for the actions of the users of
its products. There is a balance between growing technologies and copyright protection, but to
not make distributors liable will make copyright protections meaningless. The lower court looked
to the commerce doctrine now codified which states that a product must be capable of
commercially significant noninfridging uses and if so, no secondary liability would follow. This
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court finds that interpretation too narrow. Here this court considers the doctrine of inducement
to also be relevant. When a distributor promotes using its device to infringe copyright material,
shown by affirmative steps to foster infringement this is inducement and the distributor will be
liable for 3rd party infringement. All the actions of the companies is enough to show a genuine
issue of material fact, thus the court reversed the summary judgment ruling and remanded the
case upon those findings.

Dissent. Justice Breyer states this case is no different from Sony where time-shifting was the main
purpose of users copying shows by VCRS (so they could watch later). The court did not find Sony
responsible there. Also there is such a major market for non-infringement uses for this software
that they shouldn’t be stopped from distributing the software. The standard in Sony should not
be adapted as we did it here to add inducement.

Discussion. When a distributor takes affirmative steps to foster infringement through the use of
its product, the distributor will be liable for that infringement.