`
`IN THE UNITED STATES COURT OF APPEALS
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` FOR THE ELEVENTH CIRCUIT
` ________________________
`
` No. 10-14710
` ________________________
`
` FILED
`U.S. COURT OF APPEALS
`ELEVENTH CIRCUIT
` FEBRUARY 8, 2012
`JOHN LEY
`CLERK
`
` D.C. Docket No. 1:08-cv-03386-TWT
`
`CHARLES WATT, d.b.a. Silverhawk Records,
`d.b.a. Bend Of The River Publishing,
`
`lllllllllllllllllllllllllllllllllll
`
`lPlaintiff - Counter Defendant-
`Appellant,
`
` versus
`
`DENNIS BUTLER, f.k.a. Mook B,
`LEFABIAN WILLIAMS, f.k.a. Fabo,
`CARLOS WALKER, f.k.a. Shawty Lo,
`ADRIAN PARKS, Individually and f.k.a. Stoner,
`a.k.a. Stuntman,
`d.b.a. D4L,
`TERIYAKIE NOCODEAN SMITH, et al.,
`
`llllllllllllllllllllllllllllllllllll
`
`Defendants - Counter Claimants-
`Appellees,
`
`ARTIST PUBLISHING GROUP, et al.,
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`Defendants.
`
`
`
`________________________
`
` Appeal from the United States District Court
` for the Northern District of Georgia
` ________________________
`(February 8, 2012)
`
`Before TJOFLAT and CARNES, Circuit Judges, and MICKLE, District Judge.
`*
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`MICKLE, District Judge:
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`This is a copyright infringement case involving a repeating three-note riff,
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`or ostinato, used in the 2004 rap song, “Betcha Can’t Do it Like Me” (“Betcha”)
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`by the rap group D4L. Appellant Charles Watt claims that the riff was copied
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`from the group Woodlawn Click’s 1995 rap song, “Come Up.” Watt owns the
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`copyright to “Come Up” and he sued D4L along with others associated with
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`“Betcha,” including Teriyakie Smith, who claims to have composed the music for
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`“Betcha” in 2004 using three adjacent keys on his laptop keyboard and the “Fruity
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`Loops” music production software.
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`The district court found that Watt presented sufficient evidence to create a
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`jury issue regarding (1) D4L’s access to “Come Up,” and (2) substantial similarity
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`between the riffs used in D4L’s “Betcha” and Woodlawn Click’s “Come Up.” The
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` Honorable Stephan P. Mickle, United States District Judge for the Northern
`*
`District of Florida, sitting by designation
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`2
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`district court found, however, that Watt failed to rebut Teriyakie Smith’s
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`testimony that he independently created the riff, and granted summary judgment in
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`D4L’s favor.
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`We review the district court’s ruling de novo, applying the same summary
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`judgment standard. Calhoun v. Lillenas Publ’g, 298 F.3d 1228, 1232 (11th Cir.
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`2002). We examine the facts and the reasonable inferences drawn therefrom in the
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`light most favorable to the nonmoving party to determine whether there is any
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`genuine dispute of material fact for a jury to decide. Id. “We may affirm the
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`district court on different grounds as long as ‘the judgment entered is correct on
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`any legal ground regardless of the grounds addressed, adopted or rejected by the
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`district court.’” Id. at 1230 n.2 (quoting Ochran v. United States, 273 F.3d 1315,
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`1318 (11th Cir. 2001)). Because the evidence was not sufficient for Watt to
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`sustain a genuine dispute that “Betcha” was copied from “Come Up,” we affirm.
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`I.
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`The gravamen of a copyright infringement suit is copying. The plaintiff
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`must show that the defendant copied elements of an original work that is protected
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`by the plaintiff’s valid copyright. Id. at 1232. Direct evidence of copying is rarely
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`available, so the law provides a method of proving copying indirectly, which
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`creates a presumption of copying that may be negated with evidence of
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`3
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`independent creation. Id.; Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1249
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`(11th Cir. 1999).
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`A plaintiff can establish prima facie evidence of copying by showing (1)
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`that the defendant had access to the plaintiff’s work; that is, a reasonable
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`opportunity to come across the work, and (2) that there is a substantial similarity
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`between plaintiff’s and defendant’s work; that is, an average lay observer would
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`recognize defendant’s work as having been taken from plaintiff’s work. Calhoun,
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`298 F.3d at 1232, 1234 n.11. If the plaintiff is able to make the showing, then a
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`presumption of copying arises and the burden of production shifts to the
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`defendant. Id. at 1232; see also Keeler Brass Co. v. Cont’l Brass Co., 862 F.2d
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`1063, 1066-67 (4th Cir. 1988) (discussing presumptions and burdens in copyright
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`cases). A defendant can negate the presumption of copying by presenting
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`evidence that he independently created the work. Calhoun, 298 F.3d at 1232.
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`Once the defendant does so, the presumption is negated and the plaintiff has the
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`burden of proving that the defendant in fact copied his work. Id.
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`In this case, both sides take issue with the district court’s summary
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`judgment ruling. The appellees (collectively “D4L”) argue that Watt did not
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`present a prima facie case of copying because Watt’s evidence of access and
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`substantial similarity was insufficient to sustain a genuine dispute. Watt, on the
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`4
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`other hand, argues that D4L’s evidence of independent creation was self-serving
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`and not sufficient to rebut the presumption of copying that arose from its prima
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`facie case. We find that Watt’s evidence of access was too speculative and
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`conjectural to make out a prima facie case. Furthermore, summary judgment was
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`appropriately granted against Watt because he could not sustain a genuine dispute
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`regarding copying.
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`II.
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`It is common in the rap industry for budding artists to distribute their music
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`by selling or giving away copies on the street. Watt claimed that between 1996
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`and 2005, he and others sold or gave away 12,000 to 15,000 compact discs
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`featuring Woodlawn Click’s “Come Up” throughout the Southeast United States,
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`including the Atlanta area where members of D4L and Teriyakie Smith are from.
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`“Come Up” was never commercially distributed.
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`During the 1995-1999 time period, Woodlawn Click performed “Come Up”
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`at least 50 times in venues in the Atlanta area, including popular nightclubs, music
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`festivals, and the Jack the Rapper Convention. A music video for “Come Up” was
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`broadcast on the television shows “Front Row Video” and “Comic Escape” in the
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`Atlanta area. A 41-second portion of “Come Up” was included in the film “Dirty
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`South,” which was never commercially released but premiered to an audience of
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`5
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`several hundred in Atlanta. Also, the soundtrack album for the film included
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`“Come Up,” although it had virtually no sales.
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`The members of D4L and Teriyakie Smith denied that they ever heard
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`“Come Up” or of the group Woodlawn Click. They never saw the television
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`programs where “Come Up” might have played. They did not see the movie
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`“Dirty South” or hear its soundtrack. Furthermore, Teriyakie Smith was born in
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`1985. During the 1995-1999 time period, he was only 10 to 14 years old. He was
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`too young to go to clubs where “Come Up” may have been performed.
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`To establish access, a plaintiff must have more than mere speculation and
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`conjecture. Herzog, 193 F.3d at 1250. There must be a reasonable possibility that
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`the defendant came across the plaintiff’s work. Id. Here, the chance that members
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`of D4L or Teriyakie Smith came across “Come Up” from a street copy is
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`exceedingly slim considering the population of the Southeastern United States,
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`where Watt says the song was handed out, compared to the number of copies
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`handed out during the nine year period between 1996 and 2005. The same can be
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`said for the performances of “Come Up” in the Atlanta area considering all the
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`other rap music performances taking place during the 1995-1999 time period
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`compared to the limited number of engagements that Woodlawn Click had.
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`Watt’s evidence of access depends largely on the assumption that members
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`6
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`of the Atlanta rap community share music among themselves and that the song
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`“Come Up” became popular and was widely shared for many years so as to
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`multiply its distribution. Otherwise, it would hardly be possible for members of
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`D4L, or Teriyakie Smith in particular, to have had access to “Come Up.” This
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`assumption is too conjectural and speculative to sustain a genuine dispute. There
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`is no evidence that “Come Up” ever caught on in popularity. To the contrary,
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`neither the song “Come Up” nor the group Woodlawn Click became a commercial
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`success.
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`III.
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`On the issue of substantial similarity, Watt was required to show that an
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`average lay observer would recognize “Betcha” as having been taken from “Come
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`Up.” Calhoun, 298 F.3d at 1232 (11th Cir. 2002). The two songs are both in the
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`rap genre. Yet, they do not sound alike upon casual listening. It is only when one
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`focuses on the riff that a similar repeating pattern can be heard underlying both
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`songs.
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`A riff can constitute a copyrightable element if it is original and important
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`to the overall impression of the work. D4L does not argue that the riff from
`1
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` See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 588-89, 114 S.Ct.
`1
`1164, 1169, 1176 (1994) (acknowledging that the opening bass riff and first words of Ray
`Orbison’s “Pretty Woman” could be characteristic features that go to the heart of the
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`7
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`“Come Up” is uncopyrightable. Instead they focus on other differences between
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`the songs to argue that the songs are not substantially similar. It is only the riff,
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`however, that Watt contends D4L copied.
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`Watt’s expert prepared a chart showing a visual comparison of the riffs
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`using cipher notation.
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`Come Up
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`|321--32|1---3-2-|321---32|1--1345-|
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`Betcha
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`|321--32|1--------|321---32|1---------|
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`The notation shows some transition notes marked in italicized print in “Come Up”
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`that are not included in “Betcha.” (Font altered from shaded to italicized). The
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`main notes and the rests between them, marked with dashes, are the same. Watt’s
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`expert concluded that other than the lack of the transitional notes, the pattern is
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`identical. Listening to the two songs confirms this. An average lay observer
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`would likely recognize the riffs as being the same.
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`As for differences in the use of the riff, the riff in “Betcha” is prominent. In
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`fact, there is little else to the song aside from the riff and the vocals. A listener can
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`easily identify the riff, which is repeated throughout the song. Likewise in “Come
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`work and 2 Live Crew’s use of these features would constitute a violation of the
`copyright act if not for fair use parody); Fred Fisher, Inc. v. Dillingham, 298 F.145, 147
`(D.C.N.Y. 1924) (Learned Hand, J.) (“[P]largarism of any substantial component part,
`either in melody or accompaniment, would be the proper subject of such a [copyright]
`suit as this.”).
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`8
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`Up” a listener can hear the riff prominently at the beginning of the song. The riff
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`falls into the background when the vocals and another melody are added, making
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`it difficult to hear at times. The riff, though, is arguably a substantial component
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`of “Come Up” that is repeated throughout the song.
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`The district court concluded that Watt could show that “Come Up” and
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`“Betcha” were substantially similar because the riff, which is a copyrightable
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`element, is the same in both songs. We agree. The main portion of the riff, which
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`is a copyrightable feature, sounds the same in both songs and is repeated
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`throughout both songs.
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`III.
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`The evidence of independent creation comes from Teriyakie Smith’s
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`testimony that he wrote the music for “Betcha,” and specifically the riff, in 2004
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`using three adjacent keys on his laptop keyboard and the “Fruity Loops” music
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`production software. The district court accepted this testimony and found that it
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`rebutted the presumption of copying that arose from Watt’s prima facie case. 2
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` Watt argues that the district court treated the evidence of independent creation
`2
`as an affirmative defense. He is not correct. Negation of a presumption is different
`from an affirmative defense. See Calhoun, 298 F.3d at 1230 n.3 (“It should be
`emphasized that independent creation is not an affirmative defense (i.e. a claim
`extraneous to the plaintiff’s prima facie case). Rather, independent creation attempts to
`prove the opposite of the Calhoun’s primary claim, i.e., copying by McGee. Keeler Brass
`Co. v. Cont’l Brass Co., 862 F.2d 1063, 1066 (4th Cir. 1988)”).
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`9
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`Proof of access and substantial similarity give rise to a presumption of
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`copying that is fully negated when uncontradicted testimony of independent
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`creation is produced. Calhoun, 298 F.3d at 1233. The testimony of Teriyakie
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`Smith, though not corroborated by documentary evidence or by a disinterested
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`third-party, was plausible. We agree with the district court’s determination that
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`the evidence met the burden of production. As a result, even if Watt had made out
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`a prima facie case based on a showing of access and substantial similarity, the
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`evidence of independent creation would have negated the presumption of copying
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`that arose from Watt’s prima facie case.
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`IV.
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`As we have already mentioned, Watt failed to create a genuine issue of fact
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`about access. Watt also argued, however, that “Betcha” and “Come Up” are
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`strikingly similar. Striking similarity evidence is generally considered to be a
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`substitute for access. Herzog, 193 F.3d at 1248. The district court considered
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`Watt’s argument about striking similarity and found that it did not rebut the
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`defendants’ uncontradicted evidence of independent creation.
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`When a plaintiff in a copyright action cannot demonstrate access, “he may,
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`nonetheless, establish copying by demonstrating that his original work and the
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`putative infringing work are strikingly similar.” Corwin v. Walt Disney, 475 F.3d
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`10
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`1239, 1253 (11th Cir. 2007). Strikingly similar means that “the proof of similarity
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`in appearance is ‘so striking that the possibilities of independent creation,
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`coincidence and prior common source are, as a practical matter, precluded.’” Id.
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`(quoting Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 1984)).
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`The district court reviewed Watt’s evidence of striking similarity not as a
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`substitute for evidence of access, which it found Watt had established, but as a
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`rebuttal to Teriyakie Smith’s testimony of independent creation and in determining
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`whether Watt could meet his ultimate burden of persuasion. Whichever way the
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`evidence is treated, Watt cannot show striking similarity.
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`A plaintiff claiming striking similarity must present evidence that the
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`similarities between the two works are unique or complex. Selle v. Gibb, 741 F.2d
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`896, 904 (7th Cir. 1984). This requirement is “particularly important with respect
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`to popular music, ‘in which all songs are relatively short and tend to build on or
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`repeat a basic theme.’” Benson v. Coca-Cola Co., 795 F.2d 973, 975 n.2 (11th Cir.
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`1986) (quoting Selle, 741 F.2d at 905).
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`In this case, the riff is not so complex or unique so as to preclude the
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`possibility of independent creation, despite Watt’s expert’s conclusion. Indeed,
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`the simplicity of the riff is what makes Teriyakie Smith’s testimony of
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`independent creation plausible.
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`11
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`V.
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`In conclusion, we find that the district court did not err when it granted
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`summary judgment against Watt on his copyright claim. Watt did not create a
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`genuine issue of material fact about access. Watt did not contradict Teriyakie
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`Smith’s testimony of independent creation. Overall, Watt was unable to sustain a
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`genuine issue of copying.
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`AFFIRMED.
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`12