## Facts

- Louis Gaste composed “Pour Toi” in 1956 for a French film and registered sheet music in the U.S. Copyright Office in 1957.
- The song and film achieved limited commercial success and were relatively obscure.
- In 1973–74, Morris Kaiserman (known professionally as Morris Albert) wrote and recorded “Feelings,” which became an international hit; Fermata International Melodies, Inc. acted as publisher.
- Gaste alleged that “Feelings” copied the melody of “Pour Toi.”
- To show access, Gaste presented evidence that a recording of his work had been sent in the 1950s to Fermata’s owner, Enrique Lebendiger, who later became connected to Kaiserman as publisher.
- A musicology expert testified that the measures of “Feelings” corresponded throughout to “Pour Toi” and identified a distinctive “evaded resolution” occurring in both works at the same structural point.
- On damages, the parties disputed how much of the song’s value was attributable to music versus lyrics; evidence included industry splits ranging from 50/50 to as low as 15% for lyrics and commercial success of a French version of “Feelings” with different lyrics.

## Issues

1. Whether Gaste’s registered musical composition was invalid or in the public domain due to alleged defects in copyright notice associated with the film in which it first appeared.
2. Whether the evidence of access and similarity was legally sufficient to support a finding that “Feelings” copied “Pour Toi.”
3. Whether the jury was improperly instructed on inferring copying from striking similarity and on the proof required for access.
4. Whether the profits award should have been reduced to account for non-infringing elements (e.g., lyrics and other contributions) and deductible expenses.

## Decision

- The Second Circuit affirmed the judgment for Gaste and the denial of defendants’ motions for judgment notwithstanding the verdict and for a new trial.
- The court held the copyright registration created a presumption of validity that defendants did not rebut.
- The court concluded the jury could reasonably find access through Lebendiger as an intermediary, even though the chain of events was attenuated.
- The court held the expert testimony regarding extensive correspondence and a distinctive “fingerprint” supported a finding of substantial (and potentially striking) similarity sufficient to infer copying.
- The court found no reversible error in the jury instructions when reviewed as a whole.
- The court upheld the jury’s apportionment of profits largely to the infringing music because defendants did not meet their burden to show greater attribution to non-infringing factors; it left intact the district court’s reduction excluding certain foreign-performance profits from Kaiserman’s liability and the permanent injunction.

## Legal Principles

- A certificate of registration creates a rebuttable presumption of copyright validity; the challenger bears the burden of rebuttal with competent evidence.
- Copying may be proven circumstantially by showing access and substantial similarity; access may be inferred through third parties connected to both plaintiff and defendant.
- Striking similarity, including distinctive shared musical features, can support an inference of copying even when direct evidence of access is limited.
- For recovery of infringer’s profits, once the copyright owner shows gross revenues reasonably related to infringement, the burden shifts to the infringer to prove deductible expenses and the portion of profits attributable to non-infringing elements; failure to do so permits the factfinder to allocate most profits to the infringement.

## Conclusion

The Second Circuit upheld a jury verdict that “Feelings” infringed “Pour Toi,” finding sufficient evidence of access through an intermediary and strong expert-supported similarity, and it affirmed a profits award largely attributable to the infringing music because defendants failed to prove a greater apportionment to non-infringing contributions.


Gaste v. Kaiserman, 863 F.2d 1061 (2d Cir. 1988)