## Facts

- Ray Repp, a composer of liturgical music, and his publisher K & R Music claimed Andrew Lloyd Webber and related entities infringed Repp’s copyrighted song “Till You” through a song from *The Phantom of the Opera*.
- Lloyd Webber and related rights holders counterclaimed that Repp’s “Till You” infringed Lloyd Webber’s earlier song “Close Every Door” from *Joseph and the Amazing Technicolor Dreamcoat*.
- The district court granted summary judgment to defendants on Repp’s infringement claim, concluding no reasonable factfinder could find unlawful copying.
- After a bench trial on the counterclaims, the district court entered judgment for Repp and K & R, dismissing the counterclaims.
- On appeal, Repp challenged the summary judgment ruling; defendants cross-appealed the post-trial dismissal of their counterclaims.
- Repp offered evidence of access based on dissemination and performance of his music, and expert musicological analysis identifying extensive similarities between the challenged works.
- Defendants offered expert analysis attributing similarities to common or public-domain musical elements and arguing Repp’s song derived from Lloyd Webber’s earlier work.
- The district court, at summary judgment, credited defendants’ expert analysis over Repp’s expert analysis when evaluating similarity.

## Issues

1. Whether summary judgment was proper on Repp’s infringement claim where access and competing expert analyses raised disputes about copying and substantial similarity of protectable expression.
2. Whether the district court clearly erred after a bench trial in finding that Repp’s “Till You” did not infringe Lloyd Webber’s “Close Every Door.”

## Decision

- The Second Circuit reversed the grant of summary judgment against Repp and remanded for further proceedings on Repp’s infringement claim.
- The court held that the record, viewed in Repp’s favor, could permit a reasonable factfinder to infer copying based on access and probative similarity.
- The court held that substantial similarity typically presents a fact question and that the district court improperly resolved disputes that should have been left to the factfinder.
- The Second Circuit affirmed the post-trial judgment dismissing Lloyd Webber’s counterclaims, concluding the district court’s findings were not clearly erroneous.

## Legal Principles

- Copyright infringement requires proof of (1) ownership of a valid copyright and (2) copying of original constituent elements, commonly shown through access and similarity, followed by substantial similarity of protectable expression.
- At summary judgment, courts must view evidence in the nonmovant’s favor and may not weigh credibility or choose between reasonably supported competing expert opinions.
- In music cases, expert testimony and analytic dissection are relevant to probative similarity and to identifying unprotectable elements, but unlawful appropriation ultimately turns on the ordinary observer standard.
- Arguments that similarities arise from common or public-domain musical materials may require filtering of unprotectable elements, but do not justify summary judgment where disputes remain about protectable selection, arrangement, or combination.
- After a bench trial, appellate review of factual findings is for clear error, with deference to the trial court’s evaluation of testimony and competing analyses.

## Conclusion

The Second Circuit held that summary judgment was inappropriate on Repp’s music-copyright claim because access evidence and dueling expert analyses created triable disputes over copying and substantial similarity, while affirming the post-trial rejection of Lloyd Webber’s counterclaims under deferential clear-error review.


Repp v. Webber, 132 F.3d 882 (2d Cir. 1997), cert. denied, 525 U.S. 815 (1998)