## Facts

- Ronald H. Selle, an Illinois musician and composer, wrote “Let It End” in 1975 and obtained a federal copyright registration.
- Selle performed the song a few times locally in the Chicago area and sent a tape and lead sheet to eleven music publishers/record companies; most returned the materials and the rest did not respond.
- “Let It End” was never commercially released, and no publisher expressed interest.
- In 1978, Selle heard the Bee Gees’ “How Deep Is Your Love” and concluded that the music copied his composition, though the lyrics differed.
- The Bee Gees and related business entities, along with a distributor and a film company, were sued for copyright infringement.
- Defendants presented detailed evidence of independent creation, including testimony describing the song’s composition during a January 1977 studio session near Paris and a “work tape” capturing the creation process.
- Selle relied heavily on musicological expert testimony asserting the songs were “strikingly similar” such that coincidence, independent creation, or a common source was implausible.

## Issues

1. Whether “striking similarity,” without credible evidence of defendants’ access to plaintiff’s work, can support a finding of copying.
2. Whether the district court properly granted judgment notwithstanding the verdict (JNOV) after a jury found infringement, based on insufficiency of evidence of access.

## Decision

- The Seventh Circuit affirmed the district court’s JNOV for defendants.
- The court held that Selle failed, as a matter of law, to prove defendants had access to “Let It End.”
- The court ruled that similarity evidence could not sustain the verdict because Selle’s access theory rested on speculation, and the asserted similarities did not eliminate independent creation, coincidence, or common musical sources.
- The court did not reach the district court’s conditional alternative ruling granting a new trial.

## Legal Principles

- Copyright infringement requires proof of copying, commonly shown by (1) defendants’ access to plaintiff’s work and (2) substantial similarity of protected expression.
- Evidence of access must be more than conjecture; a chain of dissemination must be supported by concrete links connecting the plaintiff’s work to the defendant.
- “Striking similarity” may, in limited circumstances, support an inference of copying when direct access proof is lacking, but only if the similarities are so unusual that they preclude independent creation, coincidence, or a common source.
- Where defendants present specific, corroborated evidence of independent creation, similarity evidence is less likely to justify an inference of copying.
- JNOV is proper when, even viewing the evidence favorably to the verdict winner, no reasonable jury could find the essential elements (including access) on the record.

## Conclusion

The Seventh Circuit affirmed judgment for the defendants because the plaintiff’s dissemination evidence did not credibly show access, and the claimed “striking similarity” did not, on this record, exclude independent creation or coincidence sufficient to sustain a copying inference.


Selle v. Gibb, 741 F.2d 896 (7th Cir. 1984)