Jose O. GUZMAN, Plaintiff-Appellant v. HACIENDA RECORDS AND RECORDING STUDIO, INCORPORATED; Hacienda Records, L.P., also known as Hacienda Ranchito and/or Discos Ranchito; Latin American Entertainment, L.L.C.; Richard, also known as Rick G. Garcia; Roland Garcia, SR., Defendants-Appellees.
No. 15-40297.
United States Court of Appeals, Fifth Circuit.
Dec. 14, 2015.
808 F.3d 1031
We conclude that there is sufficient evidence in the record to support such a determination. For example, on August 4, 2010, two days before Mr. Hagen‘s fall, his primary physician documented that Mr. Hagen himself reported “feeling fatigue, having trouble eating, feeling dizzy, muscle pain, weakness in legs, [and that his] right and left leg[s] [were] swollen.” The physician also noted that Mr. Hagen‘s “breathing seem[ed] much worse,” that he “fe[lt] extremely tired,” that his “muscles [were] very weak,” and that he was experiencing “swelling of [his] legs.” The physician then created treatment plans for Mr. Hagen‘s diagnoses of edema, fatigue and malaise, weakness of muscles, hypokalemia, and COPD. Medical records from Mr. Hagen‘s hospital stay after his fall note that Mr. Hagen had recent complaints of lower extremity swelling, that as a result of his COPD, Mr. Hagen reported that he could not walk long distances, had a history of difficulty with falls, and felt he was severely limited, and that his level of functioning due to his COPD had been very poor. At least one account of Mr. Hagen‘s fall states that Mr. Hagen fell because he “was somewhat dazed after getting out of bed,” which is consistent with his reported fatigue and muscle weakness caused by his COPD. Additionally, there is no evidence in the administrative record that Mr. Hagen tripped over an object or slipped on a substance on the ground, which would be more consistent with an accident rather than a fall caused by illness.
We conclude that this evidence is sufficient to permit a reasonable mind to reach the conclusion that Mr. Hagen‘s fall was due to or contributed to by illness. Even accounting for Aetna‘s conflict of interest as both insurer and plan administrator, we hold that Aetna did not abuse its discretion in determining that Mr. Hagen‘s fall was not a covered “accident” under the terms of the Policy, negating recovery under the Policy. Thus, we need not reach the other arguments regarding the cause of death. Accordingly, Aetna‘s denial of Mrs. Hagen‘s claim was not an abuse of its discretion.
IV. Conclusion
Because we conclude that Aetna did not abuse its discretion in denying Mrs. Hagen‘s claim for benefits, we AFFIRM.
Before STEWART, Chief Judge, and CLEMENT and ELROD, Circuit Judges.
CARL E. STEWART, Chief Judge:
Corpus Christi, Texas, is the hub of Tejano music, a genre that particularly thrived from the 1970s through the 1990s. This case requires the court to flash back to that era and scrutinize two Tejano songs that were in the mix at the time: Triste Aventurera (”Triste“) and Cartas de Amor (”Cartas“). After hearing Cartas on the radio, Plaintiff-Appellant Jose Guzman (“Guzman“) filed suit against Defendant-Appellee Hacienda Records and Recording Studio, Inc., alleging, inter alia, that Hacienda‘s release of Cartas infringed upon his Triste copyright. After a hotly contested bench trial, the district court ruled in favor of Hacienda as to each of Guzman‘s claims. Because we conclude that the district court‘s findings were not clearly erroneous, we AFFIRM.
I.
Guzman wrote Triste in the early 1970s, influenced by the heartbreak of one of his companions. In the song, a woman sends a letter to her ex-lover in which she pleads with the man to take her back; the man rejects her pleas and tells her that she will be a sad adventurer for the rest of her life. Guzman filed the music and lyrics to Triste with the United States Copyright Office in 1974. The same year, Guzman‘s band, Los Duendes, recorded Triste on several 45-rpm records. At trial, Guzman proffered evidence tending to show that local radio stations regularly played Los Duendes’ recording of Triste from 1974 to approximately 1990 and that Los Duendes regularly performed Triste at Corpus Christi‘s music venues during the same time. Guzman proffered no evidence that Los Duendes’ recording of Triste enjoyed any record sales, received awards, charted on radio popularity charts, or generated royalty revenue.
Hacienda is a Tejano-based recording studio in Corpus Christi. Defendant Richard Garcia (“Garcia“) handles Hacienda‘s day-to-day activities, including licensing and producing records and managing Hacienda‘s “catalog of some thousand or so albums.” Sometime around 1990, a band known as the Hometown Boys1 recorded a number of songs at Hacienda, including Cartas.2 Hacienda did not select Cartas for the Hometown Boys to record, nor did it tell the band how to arrange or perform Cartas. Garcia completed the editing and mastering of the Hometown Boys’ recording of Cartas but did not alter the music, melody, or lyrics of the recording.
Cartas and Triste share similar themes and lyrics. Each song is about a man who spurns his ex-lover‘s written effort to rejuvenate a romance. Perhaps most notably, the opening lyrics of Cartas—“Yo tengo en mi poder unas cartas de amor que tu me las mandastes pidiendo compasion” (I have in my possession love letters that you have sent me asking me for compassion)—
Cartas was never a hit for the Hometown Boys or Hacienda. Cartas was not popular with the Hometown Boys’ fans; fans did not request it at performances; and it did not drive CD sales, sell as sheet music, or generate royalty revenue. At trial, Garcia went as far as to call the song “a complete flop.” Eventually, the Hometown Boys stopped playing Cartas because it was so unpopular.
Sometime in the 1990s, Guzman heard Cartas on the radio and surmised that it was his song Triste. Years later, he filed the instant lawsuit against Hacienda, alleging that Hacienda‘s release of Cartas violated his copyright to Triste and that Hacienda‘s false identification of Triste as Cartas on various music products violated the Digital Millennium Copyright Act (“DMCA“). Over the course of an ensuing three-day bench trial, Guzman sought to establish that Hacienda had access to Triste prior to releasing Cartas because Garcia was active in the Corpus Christi music scene during the time when Corpus Christi radio stations regularly played Triste and Los Duendes regularly performed the song. Guzman also sought to establish that Triste and Cartas were “strikingly similar” such that the only explanation for their commonalities was copying and argued that an inference of copying was appropriate under a novel sliding scale approach.
In its post-trial findings, the district court ruled in favor of Hacienda as to each of Guzman‘s claims. Relying on credibility determinations, unclear testimony, and a lack of corroborating evidence about the song‘s popularity, the court concluded that Guzman failed to carry his burden to show a necessary element of his copyright infringement claim: that someone at Hacienda had a reasonable possibility of access to Triste before releasing Cartas. See Guzman v. Hacienda Records and Recording Studio, Inc., No. 6-12-CV-42, 2014 WL 6982331, at *5-8 (S.D.Tex. Dec. 9, 2014) (Costa, J., sitting by designation). The court further concluded that musical differences between the songs, as well as a lack of uniqueness or complexity, fatally undercut Guzman‘s striking similarity argument and also declined to apply the novel sliding scale approach advanced by Guzman at trial. Finally, the court concluded that, in light of its access holding, Guzman failed to show the requisite intent “to induce, enable, facilitate, or conceal infringement“—necessary to support his separate claim under
Guzman timely appealed to this court. On appeal, Guzman makes three arguments: (1) that the district court erred in determining that evidence of Triste‘s radio play and live performances of the song was insufficient to establish that Garcia had access to Triste before Hacienda released Cartas; (2) that the district court erred in its striking similarity analysis by focusing on the songs in their entirety rather than the “virtually identical” opening lyrics of Triste and Cartas; and (3) that Triste and Cartas are sufficiently similar such that the district court should have relaxed Guzman‘s burden to show access under a “sliding scale” analysis. We address each argument in turn. First, however, we briefly pause to articulate the parameters of our standard of review for a bench trial, which is largely dispositive of Guzman‘s arguments.
“The standard of review for a bench trial is well established: findings of fact are reviewed for clear error and legal issues are reviewed de novo.” One Beacon Ins. Co. v. Crowley Marine Servs., Inc., 648 F.3d 258, 262 (5th Cir. 2011) (quotation marks and citation omitted); see also
The Supreme Court and this circuit have stressed certain principles governing the application of the clearly erroneous standard of review following a bench trial. See, e.g., Anderson v. City of Bessemer City, 470 U.S. 564, 573-75 (1985); In re Luhr Bros., Inc., 157 F.3d 333, 337-39 (5th Cir. 1998). A finding of the trial judge “is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson, 470 U.S. at 573 (internal quotation marks and citation omitted). This standard plainly does not entitle this court to reverse the findings of the trial judge simply because we are convinced that we would or could decide the case differently. Luhr Bros., 157 F.3d at 337. Indeed, the great deference owed to the trial judge‘s findings compels the conclusion that “[w]here there are two permissible views of the evidence, the factfinder‘s choice between them cannot be clearly erroneous.” Id. at 338 (alteration in original) (quoting Anderson, 470 U.S. at 574).
Moreover, and of particular relevance here, the clearly erroneous standard of review following a bench trial requires even “greater deference to the trial court‘s findings when they are based upon determinations of credibility.” Id.; see also
III.
With our standard of review in mind, we turn to Guzman‘s arguments on appeal.
A.
Guzman‘s first two arguments on appeal each speak to the “access” element of his copyright infringement claim. Guzman first argues that the district court erred in
1.
To prevail on his copyright infringement claim, Guzman bore the burden at trial to prove that: (1) he owns a valid copyright; and (2) Hacienda copied constituent elements of Triste that are original. See, e.g., Positive Black Talk Inc. v. Cash Money Records Inc., 394 F.3d 357, 367 (5th Cir. 2004), abrogated on other grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010). To establish the copying element, Guzman was required to show two things: factual copying and substantial similarity. See id. As is pertinent here, “factual copying may be inferred from (1) proof that the defendant had access to the copyrighted work prior to creation of the infringing work and (2) probative similarity.” Id. at 368 (quotation marks and citation omitted). To establish “access,” Guzman was required to prove that Garcia, on behalf of Hacienda, had “a reasonable opportunity to view” Triste before releasing Cartas.4 Armour v. Knowles, 512 F.3d 147, 152-53 (5th Cir. 2007) (quoting Peel & Co., Inc. v. Rug Market, 238 F.3d 391, 394 (5th Cir. 2001)). A bare possibility of access is insufficient, just as Guzman‘s access showing cannot be “based on speculation or conjecture.” Id. at 153 (quoting Peel, 238 F.3d at 394-95).
Guzman contends that the district court erred in finding no reasonable possibility of access because Garcia had “thousands” of opportunities to hear Triste on Corpus Christi‘s radio stations and at Los Duendes’ live performances of the song at Corpus Christi‘s music venues.5 In support, Guzman merely recites evidence fully
As to radio play, Guzman contends that the district court erred in finding that Garcia had no reasonable possibility of access to Triste in light of his trial evidence that Triste was played “thousands” of times on Corpus Christi radio stations from 1974 through 1990. At trial, no witness gave clear testimony as to the frequency or time period during which Triste was played on the radio—Guzman himself testified inconsistently in his deposition and at trial, and no other witness recalled with any certainty when or how frequently Triste was played. Moreover, Guzman introduced no independent evidence, e.g., evidence of record sales, awards, billboard charts, or royalty revenues, to corroborate his testimony that Triste was popular enough to receive airplay beyond the first few years after it was released or that calls into question the district court‘s determination that Triste was infrequently played.6 Under these circumstances, we have no reason to conclude that the district court‘s finding that the chances were purely speculative that Garcia heard Triste before Hacienda released Cartas was clearly erroneous.
Similarly, Guzman contends that the district court erred in finding that his evidence of Los Duendes’ live performances of Triste from 1974 through 1990 in Corpus Christi, coupled with Garcia‘s admission at trial that he attended Corpus Christi‘s music venues on a monthly basis during the same time period, was insufficient to show a reasonable possibility of access.7 In finding this evidence insufficient to show access, the district court specifically acknowledged the trial evidence that Guzman highlights on appeal: testimony by Guzman and Abel Sanchez, a Los Duendes band member, that Triste was popular and performed throughout the 1970s, 80s, and 90s. However, Guzman fails to account for the district court‘s rejection of that testimony based on credibility—at trial, Guzman hesitated and provided conflicting answers when questioned as to the time when Los Duendes regularly performed Triste,8 and Sanchez could not testify with certainty as to the dates Triste was popular and performed. The district court instead credited the testimony of
The district court‘s rejection of Guzman‘s live-performance evidence was infused with credibility determinations that are entitled to great deference on appeal, as only the trial judge was positioned to observe the demeanor of Guzman and Sanchez and to adjudge the veracity of their testimony. See Anderson, 470 U.S. at 575-76; Estate of Lisle, 541 F.3d at 601. Because of this deference, and because Guzman has pointed to no evidence that calls the district court‘s credibility determinations into question, we cannot overturn the court‘s live-performance-access finding as clearly erroneous.
2.
Having failed to show that the district court‘s access finding was clearly erroneous, Guzman alternatively argues that the district court erred in finding that Triste and Cartas were not strikingly similar such that no access showing was required. This circuit has held that “a plaintiff may establish factual copying without any proof of access when the similarity between plaintiff‘s and defendant‘s works is sufficiently striking such that the trier of fact may be permitted to infer copying on that basis alone.” Positive Black Talk, 394 F.3d at 371 n. 10 (internal quotation marks and citation omitted). In order to show that two songs are strikingly similar, a plaintiff must demonstrate that the alleged “similarities are of a kind that can only be explained by copying, rather than by coincidence, independent creation, or prior common source.” Selle v. Gibb, 741 F.2d 896, 904 (7th Cir. 1984) (quotation marks and citation omitted), cited favorably in Armour, 512 F.3d at 152 n. 3. This requires that the “similarities ... appear in a sufficiently unique or complex context,” see id., which is of particular importance “with respect to popular music, ‘in which all songs are relatively short and tend to build on or repeat a basic theme.‘” Benson v. Coca-Cola Co., 795 F.2d 973, 975 n. 2 (11th Cir. 1986) (per curiam) (quoting Selle, 741 F.2d at 905).
Guzman‘s sole striking similarity argument on appeal is that the district court erred by focusing on Triste and Cartas in their entirety rather than on their “virtually identical” opening lyrics. This argument fails for several reasons. Contrary to Guzman‘s assertions, the mere fact that the opening lyrics of Triste and Cartas (sixteen words in total) are nearly
At trial, both parties’ experts agreed that the opening lyrics of Triste and Cartas, though nearly identical, are set to different music in each song, and Hacienda‘s expert testified that many other songs expressed the same phrases, attitudes, and expressions encompassed in the opening lyrics, i.e., “yo tengo mi poder” (I have in my possession); “love letter compassion;” “love letter forgiveness;” and “[y]ou‘re coming back begging, and you had your chance. How does it feel to be on the other side?” Moreover, in a broader sense, each expert agreed that the alleged compositional similarities running between the songs in their entirety, i.e., their melodies, rhythmic patterns, lyrical themes, and instrumental accompaniment, were either common to the Tejano genre or common in other songs. Cf. Watt v. Butler, 744 F.Supp.2d 1315, 1324 (N.D.Ga. 2010) (noting that the fact that two songs were from the same genre could “require[] that the Plaintiff offer more evidence of striking similarity“). Finally, each expert identified a number of differences in the music—e.g., melodic contour, filler music, key, tempo, length, and chord structures—and lyrics of the two songs. Absent evidence of uniqueness or complexity, and in light of the expert testimony at trial describing differences in the lyrics and music of the songs, the district court‘s finding that Cartas and Triste are not strikingly similar was not clearly erroneous.
B.
In his third argument, Guzman contends that the district court erred in declining to apply a novel “sliding scale” analysis that would have lowered his access burden.10 This circuit has never expressly adopted the sliding scale analysis that Guzman advances on appeal, though we have previously noted that such an analysis finds support in other circuits. See Positive Black Talk, 394 F.3d at 371-72 (citing Jorgensen v. Epic/Sony Records, 351 F.3d 46, 56 (2d Cir. 2003), for the proposition that “[t]here is an inverse relationship between access and ... similarity such that the stronger the proof of similarity, the less the proof of access is required“). Similar to the situation in Positive Black Talk, we are not convinced that the circumstances of this case provide an appropriate occasion to adopt the sliding scale analysis as the law of this circuit.
C.
On appeal, Guzman advances no legal argument in support of his separate DMCA claim, instead challenging only the district court‘s access finding and requesting a remand. Guzman‘s failure to brief and argue his DMCA claim before this court constitutes waiver of that claim on appeal. See, e.g., Raj v. La. State Univ., 714 F.3d 322, 327 (5th Cir. 2013). In any event, because we affirm the district court‘s access finding, and absent any legal argument from Guzman on the issue, we affirm the district court‘s judgment in favor of Hacienda as to Guzman‘s claim under
IV.
Guzman had a full opportunity to present his case to the district court, including evidence of Triste‘s popularity and circulation in Corpus Christi. The district court rejected that evidence based, in large part, on credibility determinations and a lack of clear trial testimony. We decline to second-guess the district court under the clearly erroneous standard of review, and we decline to establish a new sliding scale standard for showing access in copyright cases. Accordingly, we AFFIRM.
Kevan BRUMFIELD, Petitioner-Appellee v. Burl CAIN, WARDEN, Louisiana State Penitentiary, Respondent-Appellant.
No. 12-30256.
United States Court of Appeals, Fifth Circuit.
Dec. 16, 2015.