No Sliding Scale Test for Access To Copyright

On appeal, Guzman argued in part that the district court should have used a sliding scale as the basis for what level of proof he needed for establishing access by the defendants. But the Fifth Circuit explained: '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, ' Jorgensen v. Epic/Sony Records, 351 F.3d 46 (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'[].'

The appeals court didn't believe that Guzman's case was a suitable one for embracing the sliding scale test. 'There is no indication that the court failed to consider any relevant testimony or evidence in concluding that the chances were 'purely speculative' that [Hacienda producer/administrator Rick] Garcia or anyone at Hacienda heard 'Triste' on the radio,' the appeals court noted, 'and the court's credibility determinations made en route to rejecting Guzman's live-performance evidence are virtually unassailable on appeal.'

Stan Soocher is Editor-in-Chief of Entertainment Law & Finance. His new book is Baby You're a Rich Man: Suing the Beatles for Fun & Profit (ForeEdge/University Press of New England). For more, visit www.stansoocher.com.