CHAPTER 4

PRESENTATION OF EVIDENCE: EXEMPLARY CASES

Courts may decide infringement cases on many different factors; each case presents its own peculiar issues. Analysis of the music may predominate the inquiry, or the plaintiff may lose his case on a legal flaw. Infringement is difficult to prove. No one paradigm case can adequately explain the legal complexities involved. Lawyers will appreciate the legal intricacies, and musicians will understand how a jury of laymen would have difficulty with the abstract concepts of music analysis.

This chapter attempts to present some of those issues by describing three recent trials in some detail. The cases chosen do not perfectly represent the area of music litigation. Most infringement cases settle out of court, perhaps in recognition of how difficult they are to try. The cases presented in this chapter all involve jury trials, although many cases are tried to the court. Selle v. Gibb, despite the jury, was decided on purely legal grounds. Gaste v. Kaiserman turned almost exclusively on musical issues. Baxter v. MCA involved issues that highlight analytical problems in the Ninth Circuit's "total concept and feel" test. This chapter uses another case, Baron v. Leo Feist, Inc., to provide an historical context for musical analysis by expert witnesses.

This description will omit or seriously condense some aspects of the litigation. For example, it lies beyond the scope of this work to explain all the reasons why Baxter did not come to trial until five years after the lawsuit was filed. Also, some of the issues raised at trial or on appeal do not relate sufficiently to expert testimony. Selle and Gaste are presented roughly in chronological order. Chronology is sacrificed in Baxter because of lengthy testimony from four expert witnesses.

A few preliminaries will place the three exemplary cases in context. Music experts tend to be deposed late in the discovery process, closer to trial. In most cases, however, the hiring attorney will have consulted the expert closer to the filing of the suit. The expert often produces a pre-trial report, a musical analysis, on which he may be questioned at his deposition. He may also have the opportunity to read the opposing expert's pre-trial report, and he may be questioned on his reactions to that analysis as well. The expert's pre-trial report will form the basis of his testimony. For many experts, the analysis will be more detailed than the testimony; the expert cannot explain all aspects of a competent analysis on the witness stand. Some aspects of the presentation of expert testimony have evolved over the years, but many remain stubbornly resistant to change. A brief re-examination of a case described forty years ago will provide context.

Louis Nizer devoted a chapter of his book My Life in Court[1] to his successful prosecution of Maurice Baron's claim of infringement in Baron v. Leo Feist, Inc.[2] In 1906, calypso musician Lionel Belasco composed the song "L'Année passée," which told the story of a girl from a good family of Trinidad who ran away with a "ne'er-do-well" and eventually became a streetwalker. Although Belasco had not filed a copyright registration, trial testimony firmly established the date of composition; the story was based on a notorious local event, and Belasco had taught the song to several of his protégés soon after. Maurice Baron obtained Belasco's permission to publish "L'Année passée" in a 1943 collection of calypso music.[3]

The facts surrounding the creation of the accused work were rather obscure. Morey Amsterdam had performed for U.S. troops in Trinidad in 1943, during which time he said he heard a song called "Rum and Coca-Cola," whose tune resembled "It Ain't Gonna Rain No More." According to the defendant publishing company, Amsterdam wrote his own lyrics based loosely on what he heard, and Paul Baron (no relation to Maurice Baron), head of the music department of Columbia Broadcasting Company, composed music variously described as derived from the Trinidad tune heard by Amsterdam or from other calypso tunes known to Baron. The Leo Feist company recorded and published this American version of "Rum and Coca-Cola," whose ribald text satirized the relations between U.S. soldiers and native women.[4] It was an immediate commercial success.[5]

The plaintiff, publisher Maurice Baron, had no problem showing access. Songwriter Paul Baron had ordered copies of publisher Baron's collection of calypso music before "Rum and Coca-Cola" was recorded.[6] Further, Paul Baron's testimony on independent creation was not credible.[7] He first claimed that he wrote "Rum and Coca-Cola" before Amsterdam demonstrated the folk melody heard in Trinidad,[8] but Baron later admitted that Amsterdam's demonstration came first.

Plaintiff Baron testified as an expert for his own case, and displayed the two songs side by side. For further visual impact, Baron made steel bars on which he hung steel notes. He moved notes of various colors from one song to the other to show the physical act of "substantial taking."[9] He introduced charts employing colored notes as well as solmization.[10] Graphs showed the melodic contour, its ascending and descending motions, in red and black lines.[11] The court overruled the defense attorney's objections that the charts did not reflect precise time values.[12] Of thirty-six notes, Baron showed thirty to be identical.[13] A second expert, composer Normand D. Lockwood of Columbia University, found comparable melodic similarities.[14] The harmonic progression had fourteen of sixteen chords in common.[15] Walter Merrick, a third expert and an authority on calypso, played a hybrid for the court, taking alternately two measures from one song and two from the other, thus demonstrating that they were interchangeable.[16]

At least two features argued strongly for copying. Lockwood noted a weak suspension (the rhythmic figure of short note tied to long) occurring regularly in measures 2, 4, 6, and 8 of both works. Although the weak suspension was a common figure in calypso music, placement at such regular intervals was unusual.[17] More telling, "L'Année passée" employed a chromatic chord to bring out the pathos of a particular textual statement. "Rum and Coca-Cola" duplicated the chord even though it did not belong in the calypso style and bore no relation to that song's lyrics.[18] Furthermore, both songs resolved the dissonant chord to C dominant 7, not the resolution one would normally expect.[19] These "common errors," what might be considered musical oddities or non-idiomatic writing, provided the trier of fact with key evidence‑-musical fingerprints.[20]

Nizer took some delight in describing his cross-examination of defendants' expert, Sigmund Spaeth. On direct examination, Spaeth had refused to discount rhythm and accent, an approach that allowed him to show that only twelve of thirty-eight notes were the same. He called this number of similar notes not substantial. But on cross-examination Nizer read from Spaeth's own books to impeach his testimony. Spaeth, widely known as the "tune detective," often did music analysis for audiences as a kind of vaudeville stunt. His book showed how "Yes We Have No Bananas" was derived from three other works, and Spaeth claimed he could similarly trace many musical origins. Moreover, he had labeled as flagrant plagiarism even similarities that did not match rhythmically. Nizer caught Spaeth following a loose standard in his books and a different, more rigorous standard in court.[21]

Although Spaeth and defense counsel Julian Abeles received bad reviews in Nizer's book, they set the standard for infringement litigation in numerous trials of the 1930s and 1940s.[22] Spaeth continued to serve as an expert witness in cases through the 1950s. Abeles's law partners inherited a preeminent position as specialists in music litigation. Their influence remains strong today.[23] Robert Osterberg of the New York firm Abeles, Clark, and Osterberg often represents one party or the other when infringement of a music copyright is alleged. Experts since Spaeth have adopted many of his methods. Although experts' methodologies differ, many common practices seem to have originated with Spaeth.

Preliminaries to Analysis

An expert must first address the question of which materials to compare. An attorney hiring an expert may dictate that the expert is to compare particular materials. The attorney may even minimize bias in the initial analysis by sending the expert two unidentified pieces of music with no indication of who his client might be or which is the accused work. The expert thus has little opportunity to tailor his analysis even subconsciously.[24] However, a blind analysis is not always possible; for example, one work may obviously predate the other, as where the expert is asked to compare a three-minute song to a sixty-second commercial. In such cases, the expert may infer which work was produced by the lawyer's client.[25] Steps taken to ensure or demonstrate a lack of bias in the analysis will likely prove beneficial at trial.

Any version of the accused work may infringe the original's copyright. What the defendant registered is largely immaterial. The relevant question is whether the defendant copied, and the expert should seek out the best evidence of copying, but only copying by the defendant. Testimony comparing versions of the music that might have been modified by non-parties to the litigation, such as transcriptions, performances, or arrangements, may be irrelevant or accorded less weight. Experts should strive to make comparisons using the version of plaintiff's work that is registered with the copyright office. Of course, because copyright attaches when the work is fixed in a tangible medium of expression, not upon registration, the plaintiff may hold rights in other, non-registered versions that need to be examined as well.

Transcription Techniques

Written music both distorts and reduces; it inadequately represents the experience of music. Presumptions rooted in culture and style often control what aspects of the music are represented in writing.[26] Consequently, the expert should be wary of relying on a writing provided to him for his comparison and be aware of the strengths and weaknesses of whatever writing he uses in his comparisons.

One expert has testified that making his own transcriptions as a matter of course affords several benefits.[27] Analysts generally compare writings, but infringement may lie in a performance made subsequent to the writing. Thus, the expert may miss critical infringing elements by relying on a writing that predates the performance. Furthermore, the expert can always testify as to the authenticity of his own transcription in court and can better defend its accuracy. Expert testimony does not serve the client's purpose if the expert disavows the writing as not his own when it is subject to attack on cross-examination. Finally, by transcribing both works himself, the expert removes stylistic differences in notation.

Transposition of the works to a common key facilitates comparison and is seldom criticized in court. The gestalt psychologist Christian von Ehrenfels established in 1890 that melody is recognizable without regard to key.[28] Although courts apparently have not cited this authority, the expert could easily cite numerous infringement cases in which transposition to a common key was not only allowed but even recognized as essential to comparative analysis.[29]

Transposition of equivalent meters should receive the same treatment but does not. Groupings of pulse in music can be represented by more than one mathematical formula, which is the essence of metric notation. The difference between duple and triple groupings must be acknowledged, but it does not preclude comparison. Some meters are mathematically equivalent, such as 4/4 and 2/2. Although these meters may suggest certain styles and be associated with specific musical traditions, they are too closely related for counsel to raise a meaningful objection to one being transcribed to the other.

Experts themselves have resisted questions predicated on metric alterations and refused to acknowledge strong similarities between certain meters.[30] Harold Barlow took a particularly obstinate stand on the difference between the meters 4/4 and 2/2 while testifying in Ensign Music Corp. v. Avis, Inc.[31] He maintained that he had not transposed a song from 4/4 to 2/2. The registered version was written in 4/4, but Barlow insisted it was performed in 2/2 and that his transcription, made from the performance, had not transposed the meter.[32]

Methods of Presentation

Visual formats can be crucial in explaining technical matters to a lay jury. Some techniques used by Nizer in Baron have been superseded; no other use of steel notes has been found. But colored graphs and charts remain popular devices. The duplication of pitches at equivalent or near-equivalent rhythmic positions, the mainstay of Spaeth's demonstrations, continues to be the predominant focus of infringement analyses. This requires a side-by-side comparison conducive to drawing connecting arrows between notes. Music is most often reduced to the melody, sometimes with chord symbols indicated in lead-sheet fashion.[33] A two-staff system, one work on each, allows the measures to be aligned and similarities highlighted.

Earl Spielman, a frequent expert witness, has further refined this technique in what he calls "chromatranscriptions."[34] By assigning a different color to each pitch and plotting the colors on a horizontal time line, the superimposition of one work over the other clearly shows the temporal coincidence of common pitches. These transcriptions are no less valid than common notation. In fact, the technique tends to depict temporal aspects more accurately than common notation. Most important, chromatranscriptions are easier for the layman to read and more clearly focus on their limited purpose‑-showing similarities. Chromatranscriptions work equally well for showing harmonic progression and might be applied to other parameters as well.

Experts have also represented melodic contour in graphic form and asserted it to be a critical feature. Whatever the potential relevance of this technique, some contour graphs better represent the music than others. A graph in which the expert plots each pitch at its point of attack and then draws connecting lines distorts both duration and motion; it implies continuous glissandi.[35] Horizontal bar graphs generally provide a more accurate picture but, perhaps, with less visual impact.[36] Where general contour alone appears without an accurate plotting of pitch, the graph lacks foundation and its use at trial might be disallowed as being more prejudicial than relevant.[37]

Attorneys frequently ask experts to perform their examples for the court. Electronic keyboards, more portable than pianos, have recently gained favor. Unfortunately, the transcript made of the court's proceedings cannot capture these performances. Clues to what happened may appear in the court record, but as often the record merely states "witness played" or "witness sang." In at least one instance, an appellate court has refused to act on an appellant's assertion of error, noting the lack of an adequate trial record to review.[38] Some attorneys therefore prefer to use pre-recorded examples wherever possible to incorporate the musical recordings themselves into the court record.

Depositions, taken during pre-trial discovery, are now often recorded on videotape. In addition, some federal courtrooms have installed equipment to videotape their proceedings and to supplement the written record. The nature of music infringement cases suggests that a party should request a taped record where possible. Most lawyers probably are not sufficiently knowledgeable about music to make an immediate verbal objection on the court record to inaccuracies in musical evidence. Because a timely objection is necessary to exclude evidence at trial, some undetermined amount of misinformation and prejudicial evidence probably has been placed before triers of fact and entered the court record in a form that does not reflect the error. No doubt the value of musical demonstrations has outweighed the dangers of prejudice and silent records, but it should be unnecessary to balance those factors with the technology currently available.

Exemplary Cases

The three cases that follow are relatively complete examples of infringement litigation. Legal strategies, analytical techniques, and the relative importance between musical and legal issues vary in these cases. The testimony of all expert witnesses in these cases is discussed; the testimony of various fact witnesses has been omitted. Legal issues affecting the expert testimony are explained where necessary. Actual trial exhibits, where available and relevant, are reproduced in the appendices. Although the trials are presented with a minimum of commentary, many of the musical and legal issues raised at trial will be re-examined in subsequent chapters.

Selle v. Gibb

Ronald H. Selle, an Illinois antique dealer with a master's degree in music education, composed popular and religious songs and played locally in a small band. One day in 1978 while Selle was working in his yard, a cassette player belonging to the teenager next door blared out what Selle recognized as the music to his song "Let It End." Since writing the song in 1975, Selle had sent the lead sheet and a home recording to fourteen publishers.[39] Eleven publishers had returned the materials; three never responded.[40] Selle instituted an action against Barry Gibb, Robin Gibb, and Maurice Gibb (a/k/a the Bee Gees), Phonodisc, Inc. (a/k/a Polygram Distribution, Inc.), and Paramount Pictures, accusing them of misappropriating his music in the hit song "How Deep Is Your Love." The case was tried to a jury in 1983.[41]

Selle's counsel, Allen C. Engerman, outlined the plaintiff's case in his opening statement. Experts would testify to striking similarities between the two songs. Of thirty-four notes in the opening eight measures of "Let It End" and forty in the corresponding measures of "How Deep Is Your Love," twenty-four were identical in pitch and thirty-five were identical in rhythm.[42] Because no link was ever established between the Bee Gees and any of the publishers to whom Selle had sent his song, access could not be shown. Instead, the plaintiff would show striking similarities to rule out the possibility of independent creation.[43]

Robert Osterberg, representing the Bee Gees, countered. Copying was the key word, and similarities alone could not show copying. Copyright does not grant a monopoly on a particular musical expression; it only prevents another from copying that expression. Coincidental similarities, attributable to the limited number of notes in the vocabulary of popular music, provided no basis for legal redress.[44] Selle could not establish copying or any opportunity for the Bee Gees to have heard his song. Selle's song was never recorded or performed where the Bee Gees could have heard it, and the Bee Gees had a strict policy of not reviewing unsolicited material.[45] Furthermore, the two songs had little in common. Plaintiff's song, according to Osterberg, was predictable and amateurish‑-the Bee Gees', complex and sophisticated. "How Deep" reflected the musical genius of one of the most outstanding songwriting groups in popular music history.[46] "Let It End" met with universal rejection, "How Deep" with immediate and phenomenal success.[47]

Direct examination of Selle placed the basic facts in evidence.[48] He explained to the jury how he wrote his song and the efforts he made to market it. On cross-examination, Osterberg confronted him with examples of prior art, works which predated both songs at issue.[49] He pointed to similarities between the works at issue and other Bee Gees songs. Selle's song, Osterberg suggested, resembled the Beatles' song "From Me to You." Were these similarities between prior art and your song, Osterberg asked Selle repeatedly after identifying each example, the result of coincidence?

Selle claimed the Bee Gees took two key sections of his work, the opening (theme A) and ending (theme B). He admitted that the middle section of "How Deep" was original. Both key sections involve a motive treated sequentially.[50] Osterberg sought to establish that sequential repetition entails only the mechanical transference of the motive up or down in pitch and, therefore, that each subsequent statement was not an independently significant creative act. Selle characterized sequential repetition as only one option of many. Theme A (opening eight measures of plaintiff's song) employed an ascending sequence while theme B's sequence (last four measures of plaintiff's song) descended.[51] That choice required a creative act. But Selle admitted, inaccurately, that a composer had only twelve options once the decision was made to treat the motive sequentially.[52]

Direct Examination of Plaintiff's Expert

Plaintiff's expert, Arrand Parsons, possessed impeccable credentials as a theorist and musicologist. He had taught at Northwestern University since 1946, chaired the music theory department for five years, and published writings on music analysis.[53] Although he had never made a comparative analysis of two popular songs prior to this case, he believed he was qualified to testify because he was first of all a life-long student and teacher of music theory, a discipline which involves analysis.[54] The analytical process would not vary if the music were pop, country, rock, or classical.[55] Parsons began his direct testimony with a short lesson in music fundamentals. He then proceeded to explain how these two songs were so strikingly similar that they could not have been written independent of one another.[56]

Each juror held his personal copy of Exhibits 18 and 19, a printed card with a plastic mylar overlay.[57] Theme A of each song was written on the card on a separate staff, one above the other. Exhibit 18 covered the first phrase and Exhibit 19 the second. Where the pitches matched at or near the same rhythmic position, those notes appeared in red on the mylar overlay with red arrows drawn between them.[58] The arrows were numbered 1 through 24. Another copy of the exhibits was placed close to the courtroom piano so that Parsons could play and point without having to move. Parsons explained Exhibits 18 and 19, note by note.[59] Exhibits 20 and 21 made a rhythmic comparison of the same material.[60] The corresponding ties at the end of measures 1, 3, 5, and 7 were displayed in turquoise.[61] Thirty red arrows appeared on the mylar overlays of Exhibits 20 and 21.[62] The process was repeated for Theme B. The pitch comparison, Exhibit 23, showed fourteen red arrows in four measures.[63] The rhythmic comparison of Theme B matched at eleven points.[64] At each juncture, Parsons testified that similarities were so striking and vivid that, based on his experience and background in music theory and analysis, independent creation was precluded.

Other similarities appear. Theme A occurs at the beginning of both songs, theme B at the very end.[65] Theme B is not related to theme A; as two independent musical thoughts or melodic thoughts, they would require two creative acts.[66] Based on a structural analysis of the two songs, coupled with his detailed analysis of the melodies of Themes A and B, Parsons believed and reiterated that the two songs could not have been independently created. He did not know of any two musical compositions by two different composers that contain as many striking similarities as exist between these two songs.[67] Plaintiff's counsel Engerman tendered the witness.

The transcript suggests that Parsons was lucid and to the point. Going through each exhibit note by note may be somewhat dry, but a transcript fails to convey the witness's animation and the impact of musical examples. Parsons played the piano, sang a little, and played tapes as he pointed to the similarities on the charts. In all, he gave what seems a credible performance.

Cross-Examination of Plaintiff's Expert

Osterberg began his cross by questioning Parsons's choice of source material for his comparisons. Parsons had used the copyrighted lead sheet of "How Deep," but the Bee Gees do not read or write music. They claimed to have written "How Deep" through a process of trial and error while gathered at the piano with a cassette recorder.[68] A transcriber committed the song to writing only after the composition process was completed and a demo tape made. Over objections, Osterberg tried to establish that Parsons had based his comparisons on secondary materials.[69]

Parsons had formalized his opinions after completing his analysis of the two songs a few years before trial. His report, which matched the conclusions stated in his direct testimony, had been made without ever examining other songs written by the Bee Gees.[70] Although Parsons claimed to have listened to some of the Bee Gees' music, Osterberg named eighteen of their albums, asking each time if Parsons had listened to that particular album. In each case, Parsons answered no.[71]

After Parsons reiterated that he had never before compared popular songs, he made a critical admission: he did not know whether or not there is a great deal of similarity between songs in the pop music field.[72] Although certainly qualified to analyze similarities, Parsons's answers raised a question on whether he could judge how striking those similarities were. No other witness would substitute for Parsons on this inquiry; only an expert can testify that similarities should be considered striking in the legal sense. For the plaintiff to prevail, Parsons needed to state that the similarities could result only from copying. If he could not judge the uniqueness of the similarities of the two works at issue compared to the many similarities commonly found in popular music, then he could not testify as to their significance. If he had not taken the time to familiarize himself with the relevant stylistic elements of popular music, he could not know which similarities were unique to the two songs at issue and which were merely idiomatic and unprotected.

Asked to define his use of the term "striking similarity," Parsons stated that it exists where pitches and rhythms coincide.[73] Osterberg continued:

Q . . . [Y]ou have used it several times during the course of your initial presentation. I would like to know whether that's the sole meaning you attribute to the phrase striking similarity.

A Those were the two points I used in my report because the question was one of melodic comparison. . . .

My assignment here was to compare the two melodies under consideration. That is what I did.[74]

Judge Leighton wanted more. At the end of cross-examination, he put the question to the witness himself. Was Parsons familiar with the expression "striking similarity" before he undertook the analysis of these two songs? Parsons responded that he was not previously aware of the legal implications, but he had used the term in his musical instructions.[75]

The judge's question was critical particularly in light of Parsons's hedging during Osterberg's questioning on the existence of copying. For example:

Q Is it your opinion, Mr. Parsons, that the only way the B Theme of "How Deep Is Your Love" could come about was as a result of copying Mr. Selle's song?

A I, I don't believe‑-put it positively. I believe that the Bee Gees' song, with these elements which we have described in common with the Selle song, I believe that the Bee Gees song could not have come into being with the‑-I must correct that. Because that is again dealing with a conjecture.

I believe that the elements, if I may just wipe that away and start again, because it's gotten twisted up.

I believe that the elements which are in common between the two songs in question are of such striking similarity that the second song could not have come into being without the first.

Q By that are you saying without reference to the first? Are you saying without reference to the first? I don't‑-can you explain what you mean by couldn't have come into being with the first?

A Could not have been composed without the first.

Q I am asking whether you are saying that it couldn't have been composed without seeing the first song, without referring to it, without copying it? What is your testimony?

A All of those things you described, copying, having seen it first, I have forgotten the others, I, I have no way, that is conjecture, I have no way of knowing whether it was seen, it was‑-I only know that the two songs have so much in common that it is‑-that the‑-that it precludes‑-this is too long. That the second song has so much in common, that is‑-let's get the names right. That the Bee Gees Brothers' song has so much in common with the Selle song that I cannot see, I cannot believe that they were created independent of one another.

Q Referring to your deposition, Mr. Parsons, page 89, commencing at line eight, I asked you the following question: "Q. Do you think the only way it could have come was a result of being copied from Mr. Selle's song?" "A. I could not answer that because I wouldn't know," end quote, line 11. Is that still an accurate answer today?

A I, I would not know. Yes, I would answer it the same.

Q So you can't answer the question because you don't know?

A No.[76]

Because plaintiff could not show access, his case depended on showing striking similarities such that coincidence, independent creation, and common source were all precluded. Parsons seemed to be using the term "striking similarity" loosely and would not state unequivocally that the similarities could result only from copying. The question of striking similarity goes to the heart of the composition process. In that sense the question is a purely musical one, and the court would have recognized Parsons as qualified to answer. However, without familiarity with the pop music field, that field's standards, and the differences of purpose between classical and pop composers, Parsons could not answer relevant questions on stylistic and economic considerations. Osterberg exploited this lack of knowledge and cast doubt on whether Parsons knew the significance of the similarities he had found. When Parsons failed to state unequivocally that the similarities proved a composition process that relied on copying, his use of the term "striking similarity" became legally meaningless. Without expert testimony on this point, plaintiff could not meet his burden of proof. The judge commented to the attorneys in chambers prior to giving jury instructions that Parsons had not satisfactorily answered his question.

THE COURT: Since he isn't here let me tell you why I asked him. I wanted to know from him whether the expression "striking similarity" is found in the works of analysts of music‑-that's what I wanted to know‑-or in his vocabulary, as I suspect, is an expression that began with his work in this case. He told me, I thought, that the expression is found in the works of music analysis. That's what he said. I wasn't satisfied the way he answered my question, but I didn't want to pursue the matter further so I left it.

MR. OSTERBERG: I thought he said he had used it before, but then I had asked him to define what he meant by striking similarity. His definition does not correspond to the legal definition.[77]

Another expert witness, Harold Gelman, waited to be called in from California. Plaintiff, however, elected to hold him in reserve for rebuttal and called only one more witness, Maurice Gibb. In his deposition, Gibb had been asked to identify a short excerpt prepared by one of plaintiff's experts. It was played again in court, and Gibb again identified the excerpt as from "How Deep Is Your Love." Engerman then read the stipulation into the record that the excerpt was "Let It End."[78] The press considered this a most dramatic event, and it was widely reported.[79] With a favorable impression left on the jury but no definitive testimony on striking similarity, plaintiff rested his case.

Evidence of Independent Creation

The defense concentrated on the work tape that purported to document the composition of "How Deep Is Your Love." The writing session took place in France at the Chateau D'Herouville in January 1977.[80] Barry Gibb was called to authenticate and explain the tape.[81] Albhy Galuten, the Bee Gees' record producer, testified that he was present at the composition session.[82] He had played piano and made minor suggestions.[83] Maurice and Robin Gibb corroborated this account of their song's creation.

Engerman tried to cross-examine Robin Gibb on discrepancies in the defendants' collective account of the tape's creation, but the judge disallowed it on the grounds that such questions went beyond the scope of direct examination.[84] The judge noted that the witness had only been asked whether he was a co-author and whether or not he ever heard about "Let It End" before he participated in the creation of "How Deep Is Your Love."[85] Engerman explained at side bar[86] that, although it was admittedly a work tape, his purpose was to show that the tape might not be the product of the initial creative effort.[87] He argued that there was a question as to when the work tape was created. It might be a work tape merely to refine a song. Engerman wanted to show that the work tape might have been made after the Bee Gees' left the chateau and after the music was first submitted to the Copyright Office.[88] The judge did not change his ruling.

The defense rested. In a surprise move the defense elected to forego their experts. Osterberg had surmised from some of the judge's comments to the attorneys in chambers that the judge did not think Parsons's testimony established the requisite level of striking similarities.[89] If the defense put on its own experts, then the plaintiff could counter with rebuttal experts. Proceeding with the defense would raise issues of fact for the jury to decide; as it stood, one issue of law, striking similarity, was overriding. Nevertheless, the judge refused a defense motion for a directed verdict for the defendant as a matter of law. Striking similarity, he said, was a question for the jury. However, he observed outside the presence of the jury that it was obvious to him that the first eight measures were not strikingly similar.[90]

Plaintiff could not at this point put Gelman on the stand to show striking similarities, because plaintiff had rested his case and there was no defense expert to rebut. Plaintiff considered presenting expert testimony to show that the work tape introduced by defendants did not represent the initial creative effort but apparently realized that such testimony would be ineffective. Composition is a mental process, and the work tape could not prove the composers' mental processes. The jury probably viewed the tape with justifiable skepticism. Unreliable as that tape might be, an expert's assertion that he can prove the tape a fraud would be still more fantastic. In the end, plaintiff never rebutted the work tape's feeble contribution to showing independent creation.

Jury Verdict

Jerrold Gold, plaintiff's co-counsel, summed up the case for the jury. Parsons testified to striking similarities and the defense had presented nothing to refute his conclusions.[91] Defendants' evidence of independent creation was inconsistent and inconclusive.[92] Those in the entertainment world hear many songs; the Bee Gees might have copied Selle's subconsciously.[93]

Osterberg then began his summation. He reminded the jury that Parsons used a definition of striking similarity at odds with the legal definition. Parsons would not rule out the possibilities of independent creation, coincidence, and common source.[94]