Ronald G. Calhoun v. Lillenas Publishing

ment because there was insufficient evi- BIRCH, COX, Before CARNES and (1) dence to show that McGee had access Judges. Circuit song'“Before Eyes,” His and to Calhoun’s (2) “Emmanuel” strik- McGee’s chorus was PER CURIAM: Eyes.” ingly similar to “Before His We arises of a appeal This consolidated out judgment, AFFIRM the district court’s al- In putative copyright infringement action. upon beit another basis.2 We conclude action, pro se gravamen of which compels that the evidence the conclusion work, focuses of a musical upon ownership copyright that Calhoun’s claims should be appeals Ronald Calhoun the district court’s by McGee/Assigns’ barred claim inde- in grant summary judgment favor of pendent creation.3 Publishing Company, Nazarene Lillenas House, Music, Hill Publishing Beacon I. BACKGROUND Music, Crystal Faith Pilot Recordings, Sea song wrote the “Before His Calhoun Music, Music, Psalmsinger Point Zonder- an Eyes” 1969.4 He recorded album House, Mathias, van Har- Publishing John containing Eyes” “Before His on the Weathers, Char- dy and Ken Bible docketed as \ 1970, 01-11413, isma record label and it was sub- our case No. and The Southern Convention, Lifeway public Re- to the for sale Baptist sequently released granted plaintiff’s prima 1. The district court Calhoun’s motion claim extraneous to facie Rather, Publishing case). attempts dismiss Zondervan House from independent creation Additionally, granted the action. the court prove opposite pri- of the Calhoun’s permission Lillenas add C.A. Inc. as claim, i.e., copying mary by McGee. Keeler third-party defendant. Brass Co. v. Continental Brass 1988). Cir. may 2. We affirm the district court on differ- grounds judgment long ent as as "the entered publication 4.He of his musical distributed legal ground regardless any is correct work in 1970 and inserted and inscribed the addressed, grounds adopted rejected by or copyright publication notice to the distributed States, court.” Ochran v. United district Copyright in accordance with the Act of (11th Cir.2001) (citation 273 F.3d omitted). eventually registra- § 19. Calhoun filed for tion for his in "Before His emphasized should be It 3. Eyes” in 1990. (i.e., creation is not affirmative defense nals, contends that he did not records but Calhoun has no Calhoun and distribution. discover “Emmanuel” until from the royalties album. July pro filed a se On Calhoun received In March complaint composition clearance of his writer’s Georgia against District of the Southern licensing registered with

stamped la- publishing and record various houses In- Music agency Broadcast performance alleged that the chorus (“BMP). bels. cleared and an- BMI corporated was based on the chorus sec- forthcoming bul- the work their nounced Eyes,” of “Before His tion promoted and to stations. Calhoun letins marketed, pro- McGee/Assigns published, by means of this musical work performed moted, alleged infring- and distributed churches, concerts, performances ing permission. work without Calhoun’s However, the and on television radio. and complaint filed a on 30 second Calhoun has re- royalties amount of total against publishing various March to date-is ceived $11. houses, churches and Christian book McGee, then an associ- Robert In court consolidated stores. The district Temple Church5 King’s at The pastor ate actions, noting the claims were that both Seattle, the chorus Washington, wrote identical. appeared The first chorus “Emmanuel.” summary for McGee/Assigns moved 11 choruses entitled Cho- in collection of a indepen- judgment arguing that McGee King’s Temple, 1976 Book ruses From no reasonable ac- dently created and had in' their by the church I was used and Eyes” when he created to “Before His cess In services. C.A. worship They argued that further “Emmanuel.” in “Emmanuel” acquired Inc. the substantially not similar “Emmanuel” was compa- to dozens of song licensed the and Eyes” lyrics, “Before His because the to the proper copy- title to To ensure nies. two keys and of the progressions, cord “Emmanuel,” acquired Music C.A. right Additionally, were different. compositions who eye affidavits from witnesses several that McGee’s ac- McGee/Assigns asserted inde- they that watched McGee testified by three-year statute was barred tion R3-69-3. song. create the pendently doctrine of limitations the equitable and then, appeared in a “Emmanuel” has Since laches, delay filing suit. long to his due hym- of Christian denomination number nals, has been translated into dozens and that by asserting responded much of the foreign languages. For Eyes” His access to “Before McGee had 1990s, top concerts, it was in the 1980s and ranked at promoted it was because songs television, rated requested churches, radio stations. Licensing, a Further, works Copyright that the two he contended monitors and clearinghouse company delay similar and that strikingly were for licensing transactions without merit reports arguments and laches were in- alleged first music. he discovered because three-year within the fringement until Calhoun was From 1989 this action. filing of limitations for statute at a Methodist part-time organist United organist, played granted he The district court As Church. McGee/As- find- summary judgment signs’ three times a week and motion for rehearsals choir was insufficient evidence ing included “Em- that there hymnals from which played similarity. striking hym- both access using these show He admits manuel.” Beginnings Church. King's Temple is now the New 5. The Church Eyes,” and that “Emmanuel” is so alternatively did not con- fore His court The district limita- McGee/Assigns’ substantially Eyes” statute of similar to “Before His sider arguments. average lay recog- laches Cal- “an observer would tions, delay, and timely appeal judgment. having ap- been alleged copy nize the as houn filed work.”6 propriated original from the

II. DISCUSSION Artworks, Original Appalachian Inc. v. (11th Cir.1982) Loft, Toy grant a district court’s We review (citation omitted). novo, “Proof of access and judgment apply de summary court, similarity only pre- raises substantial as the district same standard may which be rebut- sumption copying inferences facts and reasonable review all nonmoving by [McGee/Assigns] ted with evidence of favorable to the light most Corp., Allison v. McGhan Med. creation.”7 Id. party. (11th Cir.1999). 1300, 1306 Summary McGee/Assigns assert While gen when “there is no

judgment proper substantially are simple two melodies ... material fact and uine issue as similar, similar, strikingly much less even moving judgment is entitled to a party comparison composi- a casual of the two 56(c). as a matter of law.” Fed.R.Civ.P. that the two compels tions conclusion compositions practically are identical. in proven Two elements must be number of musical Given the limited notes prima order to establish a for facie (as in opposed language), to words (1) copyright infringement: that Calhoun combination of those and their song. [He] basis for the did not indicate whether ed that Calhoun music, R3- hymnals.” lead sheets or in Washing- sheet students resided these seven Moreover, affi to provided during period McGee the time of 1972 116-21. ton taught them. Further- allegedly witnesses who corrobo when he davits of several more, any “Emman affidavits creation of Calhoun did not offer independent rate his to corroborate R3-69-2. of these seven individuals during a church service. uel” his mu- allegations they provided his to con- any did not offer evidence Calhoun public in the copied a common source copyrighted computer programs was de from actionable); domain, infringement”); Her- and not Bateman then there is no minimis Inc., Mnemonics, (11th Cir. 79 F.3d 1532 Jewelry Corp. Kalpakian, bert Rosenthal 1996). Cir.1971) expres- (copying of F.2d jew- "idea” of a was not barred where sion Corp. v. Franklin National Mint Wildlife pin "expression” of the eled bee and the Cir.1978) (3rd Exchange, Art 575 F.2d 62 Nimmer, inseparable); "idea” were (while paintings in the two of cardinals ideas ("if original aspect only § the 13.03[B][2][b] similar, expressions were were involved expression, then literal of a work lies in its not, thus, copyright infringement); see no verging very similarity, on the only a close Bros., Leigh v. Warner also identical, infring- will suffice to constitute (11th Cir.2000) (photographs of the ing copy.”). figure sculpture portraying the in the same alone, infringe- give pose, rise to same ment); did viewing or knowl- evidence of actual 11. Since Machinery v. Classic Concrete Inc. virtually copyrighted im- edge work Ornaments, Inc., (1st Cir. Lawn regard as a "rea- possible prove, we access Selle, 1988); (stating that 741 F.2d at 896 copyrighted opportunity view” the detail, sonable every may be "two works identical Entertainment, but, Herzog v. Castle Rock work. alleged infringer created the ac- if Cir.1999). independently were work or both works cused testimo- associated with the ed no evidence to refute McGee’s anyone McGee or sic to Nor did Calhoun Temple Church. King’s ny that he had “never seen nor heard to rebut affi- any evidence McGee’s proffer program Robbins Pres- television Warner stating that he cre- declarations davits or ents,’ pro- television ... never seen the ” any without sheet music ated “Emmanuel” Club,’ ‘The 700 nor had he “heard gram or lead sheets. McGee wrote Opry program the radio ‘The Grand Ole’ ” Tem- during King’s a church service at the Id. at 8-9. Gospel Hour.’ Seattle, Washington ple Church out, court the evi- points As the district eye witnesses who corroborate presence of support dence does not Calhoun’s song. creation of the McGee’s Eyes” that “Before His received wide- ¶ R3-69-2, 2. only re- spread publicity. Calhoun has argues also that McGee heard Calhoun in performing rights pub- ceived $11 radio, television, Eyes” His on the “Before lishing royalties Eyes.” for “Before His performed He “Be- performance. or at a Furthermore, Calhoun has no records of Eyes” His on television three times. fore any royalties received from the sale of his However, offered no admissible Calhoun Faith,” Through album “It’s Our on which performances evidence to show that these Eyes” appears. “Before His aired of Atlanta and Ports- were outside mouth, only Virginia.12 The evidence of- Finally, asserted that Calhoun McGee fered Calhoun was letter from the had work sent access because he Club, where producer The 700 Eyes” Compa- “Before His to Faith Music performed Eyes” “Before His on 6 Octo- ny, Publishing Company which Lillenas explained ber 1972. The letter purchased argued around 1975. Calhoun throughout The 700 was broadcast Club Lillenas, dealings that McGee had with South, but, notably, most the letter did alleged possession and that Lillenas’ of his not indicate that the show available in was song is sufficient to establish access. The any region of the Pacific part Northwest sup- district court found and the record country. ports that there was no connection be- addition, In contended that tween McGee and Lillenas. Calhoun did Eyes” performed “Before His was not offer evidence to rebut McGee’s concerts, churches, in promoted at to rec- any he statement that “never had relation- labels, radio, specifically ord and over the ship publishers” prior with music Radio, over The Opry Gospel Grand Ole Therefore, 1976. R3-116-13. Calhoun Nashville, syndicated which was from Ten- prove theory cannot access based on this only song nessee. evidence that his Thus, citing evidentiary either. no basis in Washington was accessible the state of acknowledging strong a and access was letter that provided a Calhoun from evidentiary unrefuted basis for McGee’s WSM, Operations manager the of the ra- creation, independent claim of the district dio station that broadcasts The Grand Ole entering court did not err in judgment Radio, Opry Gospel “Recep- that stated against Calhoun. state, Washington tion of in there- WSM fore, time, possible while from time to is III. CONCLUSION likely not to have occurred in the 1970s ap- These consolidated involve the anything cases resembling consistent basis.” Furthermore, provid- peal grant summary judgment R3-116-8. of a of deposition during 12. Calhoun stated in a that he did ates of the CBN network the time of performances. not know what television station affili- were his

1235 storm,” if neces- enticing, I think it not that there court held district the which upon to address an alternative sary, basis to show evidence was insufficient judgment could the district which court’s to “Be- similar strikingly was delay. be sustained —unreasonable therefore, Eyes,” His fore delay may bar a unreasonable Whether copyright infringement. claim for had no copyright infringement1 where claim issue genuine no conclude that there is We delay filing suit there is considerable independent- McGee fact about of material independent claim of cre- a bona Therefore, we “Emmanuel.” creating ly fide impres- globally exists is one first ation the district judgment the AFFIRM I per- and merits am sion examination. court, claims that Calhoun’s and conclude tolling2 may just suaded that as equitable barred infringement should be copyright tardy infringement ac- save an otherwise independent bona claim by McGee’s fide tion, such delay unreasonable should bar creation. action where bona an fide BIRCH, Judge, specially presented.3 Circuit creation claim is concurring: challenging I author conclude Moreover, 'delay in asser- the conflu- unreasonably

I because must concur. as to the other author’s “perfect copyright tion of in this case present of facts ence Heretofore, to that taken Second Circuit frequently consid closest courts have (2d where, Levy, 57 n. 8 initiating as is Merchant v. 92 F.3d delay action ered an (a Cir.1996) co-authorship injunctive has been case where laches typical, preliminary relief addressed, a-delay Essentially, unreasonable bar was im- requested. where was not but occurred, Moreover, delay have concluded need to posed). has courts avoids the this delay suggestive of a lack of applying such embrace one side or the other See, e.g., Richard Feiner irreparable harm. laches defense. Co., Co., v. Turner Entertainment Inc. and MGM/UA, split appro on whether it is The circuits are Cir.1996); (2nd Tom 98 F.3d 33 priate to consider a laches defense where Associates, Doherty Inc. Saban Entertain v. brought within the stat action is (2d 1995); Forry, Inc. v. 27 Cir. ment 60 F.3d utory three-year period of limitations. See Cir.1988); Inc., Neundorfer, 259 837 F.2d (2d Williams, F.2d 1048 Stone v. 970 Chapal/Zenray, Jewelry Inc. v. Markowitz 1992) (where uncertainty surrounded Cir. Inc., (S.D.N.Y.1997); v. F.Supp. 404 Fritz 95, family, the author’s relative's status Little, Inc., F.Supp. D. Arthur applied to defeat of limitations was not statute (D.Mass.1996). co-ownership of an au years accruing more than three thor's relative Williams, (2d F.2d 1043 v. 2. See Stone lawsuit); Lyons Partnership Mor v. before Meirick, 1992); Taylor Cir. Costumes, Inc., ris (7th Cir.1983); Paperbacks, Prather Neva Cir.2001) (“in with connection (5th Cir.1971); 3 Nimmer claims, powers principles dic separation of 12.05[B], § adopted equitable rule tate that an timeliness brought that are by courts cannot bar claims applying a laches I am 3. I stress that here prescribed of statute legislatively within the infringement Rather 1 analysis an action. to limitations”); Danjaq Sony Corpora LLC v. essentially a de- analyze unique case as this Cir.2001) ("If tion, 942, a F.3d 263 954 action, judgment focusing on a mu- claratory delay, the from the defendant can show harm composition composer in that the first sical circumstances, extraordinary may, in court to the second claims to be identical time laches, though the defeat the claim based of composer's bona claim score when a fide peri cases, analogous limitations is within claim is The creation asserted. omitted). od”) (citation Perhaps the Court's existing, to this unusual closest heretofore Corp. v. Passenger opinion in Nat’l Railroad co-aufhorship putative claims involve of case 2077, 2061, Morgan,-U.S.-, 122 S.Ct. declara- seeks a where one of co-authors (2002) clarify issue. will 106 ownership. my approach is 153 L.Ed.2d of sole Thus tion

1236 17 judicial infringement. to a of U.S.C. he seeks have where work 507(b). challenged author’s Accordingly, § one basis for de- determination so Failing creation.4 to do delay in fil- originality termining whether Calhoun’s injustice a manifest constitute would ing three-year suit was reasonable is the challenged unjust denial of the potentially 507(b). § statute limitations constitutionally guaranteed copy- author’s period delay ranges any- Calhoun’s (albeit later) work. original in his right years, from from the time that where 23 lawsuit is that gravamen The of Calhoun’s 1976, “Emmanuel” was written to 13 in “Emmanuel” be- ownership he claims it was licensed to years, from the time prac- the melodies are he contends cause churches around the world in 1984. Dur- claim I conclude that this tically identical. legal took no action ing this time Calhoun following therefrom logically and all those putative or for the stop to seek redress barred, including any infringe- should be calculation, infringement. By any this de- is not approach ment claims. Such an lay Freedom enough. is more than See precedent logic.5 without or Savings Way, and Loan Ass’n. v. (11th Cir.1985) (five years fn. 8 Delay 1. Period of delay filing infringement trademark suit The statute of limitations for sufficient); Studiengesellschaft considered triggered by claims is viola- Co., v. Eastman Kohle mbH Kodak is, tions, infringements. actual Cir.1980) (delay pre- F.2d period may triggered be when a limitations sumed unreasonable when exceeded the or, plaintiff knows in the exercise of rea- statutory six-year period). Applying the diligence, sonable should have known benchmark, three-year it is clear that Cal- infringement. about U.S.C. delay plainly houn’s of over a decade con- 507(b). § appropri- look to the One should significant delay. stitutes a guide ate of limitations a statute as delay determine whether the was reason- 2. Delay Inexcusable Indus., able. Kason 120 F.3d at Next, delay the cause of the should be Copyright 1203. The Act sets forth a three-year statute of limitations for claims examined to determine whether Calhoun’s (9th Cir.1996) "original,” (barring 4. A work is accord- "a therefore copyright protection, independently ed it if declaratory judgment co-ownership and the possesses created the author and some claim”); ancillary relief to such New Era degree creativity. minimal 17 U.S.C. Henry Publications Int’l v. Holt & seq. § 101 et (2d Cir.1989) (laches 584-85 barred plaintiff enjoining publication from of au- See, Merchant, ("[w]e e.g., 92 F.3d at 56 biography plaintiff delayed thor's when had plaintiffs claiming hold that to be co-authors "unreasonabl[y] inexcusabl[y]" filing years are time-barred three after accrual of suit.); Baptiste, Fort Knox Inc. v. 47 F. seeking their claim from a declaration of (S.D.N.Y.1999); Supp 2d 483-84 3 Nim- copyright co-ownership rights and remedies 12.05[C], ("If §mer n. A cannot be heard declaration.”); that would flow from such a belatedly he co-authored a work LLC, Danjaq (upholding 263 F.3d at 954 years ago, Bwith which would result in A pre- application district court’s of laches to owning copyright, then all the 50% plaintiff pursuing copyright vent from in- belatedly more so C must be barred from fringement plaintiff claims when filed suit "at claiming solely that she authored a work on twenty-one years likely, least more thir- —and claiming authorship D which has been credit ty-six years” having knowledge after of the Weiss, claims); years, owning potential Margo for 20 which would result in C v. 213 F.3d 55, (2nd Cir.2000); Shanahan, copyright”). 60-61 v. of Zuill the 100%

1237 infringing song prior to allegedly of the was excusable. delay filing in suit lengthy an exercised examples [H]ad [Calhoun] 1997.... Kason, Some F.3d at 1204. 120 in he would have learned of diligence, of frequently viewed iota delay, of permissible earlier.” R3- among infringement oth tolling, possible the equitable .of context the (1) the in agree. need for I Given the evidence the 108 at 8. include: er circuits juror have through the admin no could remedies this record reasonable of exhaustion v. American exercised dili- that Calhoun process, Couveau concluded istrative Airlines, Inc., 1083-84 copyright. his With gence protecting (2) Cir.2000); respon- time to determine additional come copyright rights concomitant in proposed sibilities, of the as- scope including responsibility the the whether litiga cost of justify the fringement timely will in a manner after rights those sert Int’l, tion, Corp. Moreover, v. Borland Dev. Lotus in the diligence. exercise (D.Mass.1993), F.Supp. that the two argued court Calhoun district (1st 49 F.3d 807 grounds, other strikingly rev’d similar compositions were (3) Cir.1995); for additional (as and the need lyrics), compel- thus melody opposed to infringe extent of the evaluate the time to infringe- putative ling recognition ment, v. R.L. Chaides Aukerman Co. A.C. time that had length ment. Given (Fed.Cir. Co., Constr. “Em- dissemination of passed, the wide 1992). manuel,” experience and his substantial music, church Cal- involvement with and suit, delay filing Cal- his explain

To “Emmanu- about should have known houn that he unaware claims that was houn therefore, filing suit el,” delay and McGee/Asignees “Emmanuel” existed. inexcusable. inexcusable was delay was contend known about should have because Prejudice well be- alleged claim “dis- he to have informing the date claims the decision fore The final factor infringing putatively delay is whether covered” unreasonable by bar to the due composition, similar strikingly prejudiced McGee/Assigns have been throughout of “Emmanuel” delay. similar contexts popularity In Calhoun’s ap- has past variety two decades. of factors recognized a have courts major (1) in a number of peared important prejudice: constitute and has been hymnals (2) died; denominational the memories have witnesses lan- foreign (3) into dozens of dulled; translated relevant have been witnesses ranked consistently been It has guages. or are miss- destroyed been have records twenty requested top (4) monetary invest- the loss of ing; and a choir as both songs. Calhoun worked pre- have been likely which would ments almost ten organist director Kodak Eastman by earlier suit. vented suit, regularly filing years prior to Jackson F.2d at 1326. See hymnals that contained songs from played (9th Cir.1994); Axton, Byron 25 F.3d 884 Furthermore, “Emmanuel.” chorus Motors General Chevrolet Motor Div. himself, Calhoun, publica- over listed (S.D.N.Y.1995). Corp. 1996 WL Cf. in addi- included “Emmanuel” tions America, Corporation v. Radio Hoste submitted publications list of 20 tion to the Cir.1981). ad- discovery. during by McGee/Assignees may song “Emmanuel” that the mits R1^L3; R2-47, 48. today itas widespread as have become As objected sooner. had he McGee/As- “it court found difficult district out, Music has C.A. since signs point not have notice did [Calhoun] believe that “Emmanuel” to hundreds of licen- licensed

sees, up assigns whom make 28 of assigns have invested

this case. McGee’s money

a amount of time and substantial licensing relying validity copyright. Accordingly, of its able to

McGee/Assigns are demonstrate showing they suffered

prejudice by have, they would not

consequences promptly. acted

had Calhoun analysis foregoing

While the is not re-

quired dispute, for a resolution this my may rumination be useful to

perhaps intriguing copy- confronted with this

those

right scenario the future. 2000, INC.,

UTILITY AUTOMATION

Plaintiff-Counter-Defendant-

Appellant,

CHOCTAWHATCHEE ELECTRIC CO-

OPERATIVE, INC., corporation, Services, Inc., corporation,

Cheleo

Defendants-Counter-Claimants-Ap-

pellees,

Geographic Services, Inc., Information corporation,

an Alabama Movant-

Appellee, Gipson, Defendant-Appellee,

Tom Engineers,

Patterson & Dewar corporation, Defendant.

No. 01-16265.

United Appeals, States Court of

Eleventh Circuit.

July notes a valid in “Before His owns . phrasing, surprising simple it is not that a (2) Eyes,” copied that McGee “constit composition length might of a short well be work copyrighted uent elements of susceptible original by creation more Publications, Feist original.” that are However, Co., composer.8 than one 340, Rural Tel. 499 Inc. v. Serv. U.S. of copyright, expression realm identical 111 113 L.Ed.2d 358 S.Ct. (1991). necessarily copying, infringe- To does constitute establish Calhoun paintings must show that McGee had access to “Be- ment.9 Just as two of the same (2nd Cir.1997) plaintiff (song 6. Where a cannot demonstrate access "Till You” did not in- nonetheless, may, copying by fringe copyright song Every he establish "Close Patrick, Door”); demonstrating original F.Supp.2d that his work and the Tisi v. (S.D.N.Y.2000) (1) putative infringing strikingly (composer work are simi- failed to show Entertainment, Herzog performer lar. See v. Castle Rock had access to "Sell Your Soul” (11th Cir.1999); (2) necessary "striking similarity” 193 F.3d Benson be- Co., (11th Coca-Cola 795 F.2d 975 n. tween "Sell Your Soul” and “Take Pic- Cir.1986) (en banc)-, ture”). Ferguson v. National Co., (5th Broadcasting Cir. particularly genres 8. 1978). This is true in certain of phrasing present. music where familiar copy- 7. Music is often the milieu in which the genre only Here the is church music. We are right concepts “strikingly of similar” and "in- dealing melody lyrics awith basic or —-not dependent creation” have been involved. See background accompaniment— harmonic or Gibb, (7th 1984) Selle v. 741 F.2d 896 Cir. here, only melody a short is at issue. (plaintiff group failed to show that musical plaintiffs song Bee Gees had access to "Let It 9. We have cautioned trial courts in this cir- they composed Deep swayed by End” before "How Is cuit "not to be the fact that two Benson, Love”); (song embody Your 795 F.2d at 975 works similar or even identical Buy Toy Loft, "I'd Like to the World a Coke” was an ideas.” 684 F.2d at 829 n. 11. See independent infringe Holdings, Engineering creation and did not also MiTek Inc. v. Arce Inc., Know”); 1996) song Repp Company, of "Don't Cha 89 F.3d 1548 Cir. Webber, (competitor’s copying protectable & K & R Inc. v. F.3d 882 of elements Therefore, identical, testimony. tradict McGee’s may appear nature subject in concluding court was correct district indepen- may be of origins paintings’ two testimony constitutes un- that “McGee’s creation.10 dent evidence of cre- independent contradicted any claim fully negate can McGee ation, fully any claim of negates which he prove if can he R3-116-22. infringement.” Ben “Emmanuel.” created independently Furthermore, the district court found 973, 975 son v. Cocar-Cola independently that “Emmanuel” was cre- (en banc) Cir.1986) (“testimony [of because he had no access ated McGee song] consti infringing allegedly writers of opportunity11 to view “Be- or reasonable indepen evidence tutes uncontradicted Eyes.” provides Calhoun three fore His creation, any claim fully negating dent attempt theories to to establish McGee had evi offers Once McGee infringement”). First, Eyes.” access to view “Before His creation, Calhoun dence of taught that he students alleges that McGee proving has the burden Washington while he was from the state of Eyes.” Miller copied fact “Before His Stamps-Blackwood instructor at Studios, City Universal Gospel Kentucky, Music in School (5th Cir.1981). 1365,1375 procured students and made his these out, points the district court As available to McGee. R3-116-6. music he “inde affidavit that McGee stated names and ad- provided seven during [a] ‘Emmanuel’ created pendently of students from the state dresses May [He] or church service June in the Washington taught that he summers as a any pre-existing material did not use The district court not- from 1972 to 1976. did not use

Case Details

Case Name: Ronald G. Calhoun v. Lillenas Publishing

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jul 23, 2002

Citation: 298 F.3d 1228

Docket Number: 01-11413, 01-11415

Court Abbreviation: 11th Cir.