Summary
The Ninth Circuit affirmed the exclusion of late-disclosed evidence and the related theory of access as a discovery sanction in Vincent Ambrosetti’s copyright infringement action against Bernadette Farrell and Oregon Catholic Press. The court held that the sanctions were not claim dispositive and that exclusion was permissible under Federal Rule of Civil Procedure 37(c)(1). The court nevertheless reversed summary judgment for defendants, holding that triable issues remained regarding access and substantial or striking similarity, and remanded the case.
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Practice areas
Questions Presented
- Whether exclusion of Ambrosetti's late-disclosed letters and the related access theory constituted claim-dispositive discovery sanctions requiring an express consideration of willfulness, fault, bad faith, and lesser sanctions.
- Whether the district court abused its discretion in excluding the letters and related access theory under Federal Rule of Civil Procedure 37(c)(1).
- Whether genuine issues of material fact existed as to Farrell's access to 'Emmanuel' under chain-of-events and widespread-dissemination theories.
- Whether genuine issues of material fact existed as to substantial similarity under the extrinsic test.
- Whether genuine issues of material fact existed as to striking similarity.
Holdings
- The exclusion of the late-disclosed letters and the related theory of access was not claim dispositive because Ambrosetti could still proceed on other access theories and on striking similarity.
- The district court did not abuse its discretion by excluding the letters and the related theory of access because Ambrosetti failed to show that his failure to disclose was substantially justified or harmless.
- Genuine issues of material fact existed as to whether Farrell had a reasonable possibility of accessing 'Emmanuel' before composing 'Christ Be Our Light' under both chain-of-events and widespread-dissemination theories.
- Summary judgment was improper because genuine issues of material fact existed as to whether 'Emmanuel' and 'Christ Be Our Light' were substantially similar under the extrinsic test.
- Summary judgment was improper because genuine issues of material fact existed as to whether the works were strikingly similar.
Key quotations
“Rather, a sanction is claim dispositive only where it is “fatal” to the claim.” (11)
“Taken together, those facts are sufficient, viewing the evidence in the light most favorable to Ambrosetti, to demonstrate a “reasonable” possibility that Farrell could have accessed “Emmanuel” before composing “Christ” rather than a “bare” possibility that she could have done so.” (15)
“We cannot separate out each piece of glass within the kaleidoscope of an overall work: rather, we must view the work as the sum of all the relevant elements together.” (23)
“Here, a reasonable juror could conclude that the differences between “Christ” and “Emmanuel” mean that each composer created their work independently; he or she could also conclude that Farrell subtly but intentionally altered “Emmanuel.” That determination is for the trier of fact to make.” (27)
Factual background
Vincent Ambrosetti wrote and owns the copyright in the 1980 liturgical song 'Emmanuel,' which he published, recorded, and performed extensively. Bernadette Farrell composed 'Christ Be Our Light' in 1993, and Oregon Catholic Press published it. Ambrosetti presented or sent copies of 'Emmanuel' to OCP publisher Owen Alstott and asserted that Farrell could have encountered the song through shared attendance at National Association of Pastoral Music conventions or through its dissemination within the liturgical music community. Ambrosetti also presented expert musicological evidence identifying numerous similarities between the two works.
Procedural history
Ambrosetti sued Farrell and Oregon Catholic Press for allegedly copying his copyrighted song 'Emmanuel' in Farrell's composition 'Christ Be Our Light.' The action was filed in the Northern District of Indiana and transferred to the District of Oregon. The magistrate judge recommended excluding two late-disclosed letters and the related access theory and granting summary judgment; the district court adopted the exclusion rulings, found no genuine dispute as to the remaining access and striking-similarity theories, and entered summary judgment for defendants. The Ninth Circuit affirmed the evidentiary sanctions, reversed the grant of summary judgment, and remanded.
Remand instructions
Remanded for proceedings consistent with the opinion, including further proceedings on the copyright claim notwithstanding the exclusion of the late-disclosed letters and related access theory. Each side shall bear its own costs on appeal.