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No Sliding Scale Test for Access To Copyright
The U.S. Court of Appeals for the Fifth Circuit declined to adopt a 'sliding scale' test for determining whether one song was strikingly similar to the other in a copyright infringement suit. Guzman v. Hacienda Records and Recording Studio Inc., 15-40297.
Tejano songwriter Jose Guzman claimed the Tejano song 'Cartas de Amor,' recorded at the Corpus Christi, TX-based Hacienda and released on the studio's label, infringed on the copyright in Guzman's song 'Triste Aventurera.' After a trial, the U.S. District Court for the Southern District of Texas ruled Guzman failed to show that the defendants had a reasonable probability of access to his song. The district court also decided there was no 'striking similarity' between the two songs in dispute. (A finding of striking similarity can eliminate a plaintiff's burden of showing access.)
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.'
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