IN THE UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

RONALD G. CALHOUN,

Plaintiff,

v.

NAZARENE PUBLISHING HOUSE,

Defendant,

(Renamed by Order dated October 19, 2000. R3-103-07.)

Case No. 01-11413-GG

RONALD G. CALHOUN,

Plaintiff,

v.

THE SOUTHERN BAPTIST CONVENTION LIFEWAY CHRISTIAN RESOURCES, et al

Case No. 01-11415-GG

Defendants,

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE ELEVENTH DISTRICT OF GEORGIA

SOUTHERN DIVISION

Honorable John F. Nangle, Presiding

Ronald G. Calhoun v. Lillenas Publishing Company

Dct No. 01-11413-GG

COMES NOW, RONALD G. CALHOUN, pro se, Plaintiff in this case and files this his Certificate of Interested Persons, and shows the Court of Appeals as follows:

The Honorable District Court Judge John F. Nangle,

presiding over this case.

The Plaintiff Ronald G. Calhoun.

The known defendants, attorneys, persons, associations of persons, firms, partnerships, or corporations that have an interest in this case or appeal, including subsidiaries, conglomerates, affiliates and parent corporations known by the Plaintiff Ronald G. Calhoun are:

A. Martin Kent, Esq., Attorney

Abingdon Press

Alan Stewart Lowe, Attorney

Baptist Book Stores

Bob McGee

Broadman & Holman

Bruce W. Baber, Attorney

Buchsbaum & Lowe

Cam Floria

Christian Copyright Licensing

C.A. Music aka Christian Artist Music

Cokesbury Publishing

Cokesbury Stores

Convention Press

Glenn M. Darbyshire, Attorney

Inglesby, Falligant, Horne, Courington & Chisholm

Jeffrey Buchan

John C. Herman, Attorney

Karsman, Brooks & Calloway

Kent, Thomas, Worsham & Smart

Kilpatrick Stockton

King & Spalding

Kran Riddle, Attorney

Lillenas Publishing Company

Nazarene Publishing House

R. Charles Henn, Jr.

The Southern Baptist Convention Lifeway Christian Resources

The Sunday School Board of the Southern Baptist Convention

The United Methodist Publishing House

Word Music Publishing

The instant case involves facts and definitions which are rather unique, concerns musical elements and terminology which are relevant to the issue of striking similarity and Plaintiff feels that oral arguments on this matter will be helpful to the Court, and, as such, requests the Court allow for oral arguments by the Plaintiff.

TABLE OF CASES..........................................5

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION..8

STATEMENT OF ISSUES PRESENTED FOR REVIEW................9

STATEMENT OF THE CASE..................................10

Course of Proceedings.............................11

Disposition of Case by District Court.............11

SUMMARY OF APPELLANT’S ARGUMENT........................11

Statement of Facts................................14

ARGUMENT...............................................18

3. In granting Summary Judgment in favor of the defendants was Ronald G. Calhoun appropriately deprived of a jury trial on the issue of Striking Similarity?.35

1. Objective Comparison as it relates to literal similarity.....................................52

CONCLUSION.............................................57

CERTIFICATE OF COMPLIANCE..............................59

TABLE OF CASES Page

Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970).......................38

Alexander v. Haley, 460 F.Supp. 40, 45 (S.D.N.Y. 1978)..................................................53

Anderson v. Bessemer City (1985) 470 U.S. 564, 84 LED 2d 518, 105 Sct 1504, 37 BNA FEP CAS 396, 36 CCH EPD ¶35058, 1FR SERV 3d 1..........................................43

Arnstein v. Porter, (1946) 154 F.2d, at 21, (2nd Cir)...................................................37

Arenas v. United States, 322 U.S. 419, 434, 64 S. Ct. 1090, 88 L.Ed. 1363..................................37

Associated Press v. United States, 326 U.S. 1, 6, 7, 65 S. Ct. 1416............................................37

Baker v. Stuart Broadcasting Co. (1977 CA8 Neb) 560 F2d 389, 15 BNA FEP Cas 394, 14 CCH EPD ¶7775, 49 ALR Fed 894)...................................................56

Baxter v. MCA, Inc., 812 F.2d 421, 424 (9th Cir., 1987)...............................................49,50

Cain v. Universal Pictures Co., Inc., 47 F. Supp. 1013 (S.D. Cal. 1942)................................................57

C.F. Miller v. Universal Studios, Inc., 650 F.2d 1365, 1374 (5th Cir. 1981)........................................41,46

Clemons v. Dougherty County, Georgia, 684 F2d 1365 (11th Cir. 1982)............................................38

Computer Associates International, Inc. v. Altai, Inc., 982 F.2d, 693 (2nd Cir., 1992, 706, 702.......51,52,55,57

Daubert v. Morrell Dow Pharmaceuticals, Inc. (1993, US) 125 L. Ed. 2d 469, 113 S. Ct. 2786, 27 USPQ2d 1200, CCH Prod Liab Rep ¶13494...................................47

Doehler Metal Furniture Co. v. United States, 2 Cir., 35.....................................................37

Dumas v. King, (1946 CA8, Ark) 157 F2d 463, 11 CCH LC ¶63378.................................................38

Gaste v. Kaiserman, 863 F.2d 1068 (2nd Cir. 1988).....54

Harrigan v. Freeman (1986, La App 1st Cir.) 498 So 2d 58,78 ALR 4th 601......................................24

Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).................................................39

Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971)...............................53

High Tymes Productions, Inc. v. PRN Productions, Inc., 1995 U.S. Dist. LEXIS 21906, 7 (S.D. Ohio, 1995).................................................49

Kotteakos v. United States (1946) 328 U.S. 750, 90 L. Ed. 1557, 66 S. Ct. 1239..................................38

Kepner-Tregoe, Inc. v. Carabio, 1979 U.S. Dist.8-9 (E.D. Mich. 1979)...........................................49

Kararos Compania Naviera S.A. v. Atlantica Export Corp (1978, CA2 NY) 588 F2d 1..............................56

Lotus Development Corporation v. Borland International, Inc., 799 F.Supp.353-54 (D. Mass.1992).................57

Morrison v. Washington County, Alabama, 700 F2d 678 (11th Cir. 1983)........................................35

Moore v. Columbia Pictures Industries, Inc., 972 F.2d 939, 942 (8th Cir. 1992)..............................49

MiTek Holdings, Inc. v. Arce Engineering Co., Inc., 89 F.3d, 11th Cir. Court of Appeals......................52

Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990)..................................................39

Pontier v. City of Clearwater, 881 F.Supp. 1565, 1568 M.D. Fla. 1995).......................................39

Rogers v. Kelly (1989 CA8 Ark) 866 F2d 997, reh ben (CA8) 1989 U.S. App LEXIS 4726..............................43

Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S. Ct. 724, 88 L.Ed. 967................................37

Smith v. Equitable Life Assur.Soc, (1980, CA10, Wyo) 614 F2d 720................................................38

Thrasher v. State Farm Fire & Cas. Co., 734 F2d 637, 638 (11th Cir. 1984) (per curiam).........................19

Tugwell v. A.F. Klaveness and Co., (1963 CA5 Tex.) 320 F2d 866, cert. den. 376 U.S. 951, 11 LED 2d 970, 84 sct. 967.....................................43

Tree Publishing Co., Inc. v. Warner Bros. Records, 785 F.Supp. 1272, 1275 (M.D. Tenn., 1992)..................52

United States v. Oliver (1990, CA8 Ark) 908 F2d 260..................................................46

U.S. v. Singer Manufacturing Co. (1963 374 U.S. 174, 10LED 2d 823, 83 SCT 1773, 137 USPQ 808................56

Watkins v. Scott Paper Co., (1976 CA5, Ala) 530 F2d 1159, 12BNA FEP Cas 1191, 11 CCH EPD ¶10880, cert den 429 U.S. 861; 50 LED 2d 139 97 SCT. 163, 13 BNA FEP Cas 963, 12 CCH EPD ¶LL207........................................42

Statutes Page

USCA Amen. 14.........................................36

USCA Consitution Amend. 7.............................37

28 USCA.....................................8,35,36,38,45

17 USCA following.................................8,36,57

Copyright Rules of Practice, Rule 1....................36

Federal Rules of Civil Procedure 26(a)(2)(B)........39,43

Local Rule 26.3(B)(6)...............................39,43

Federal Rules of Evidence 401..........................23

Fed. Rules Civ. Proc. Rule 38........................8,36

FRCP 52....................................23,38,43,44,56

FRCP 56..................................8,20,35,37,38,45

FRE 701.............................................44,45

Notes of Advisory Committee on 1985 Amendments to FRCP.23,44

30 Fed Rules Evid Serv 707............................46

23 ELR 20979...........................................47

37 Fed Rules Evid Serv 1...............................47

Law Reviews and Tests

Music Analysis and Music Perception Music Analysis, 1998, vol 17. No.1, Ian Cross..........................28

Jones on Evidence (6th Ed.) §§14:3 - 14:8..............44

Federal Rules of Evidence Digest, FindeX 701.1 - 701.40)................................................44

Jeffrey G. Sherman, Musical Copyright Infringement: The Requirement of Substantial Similarity, 22 A.S.C.A.P. Copyright Symposium 81, 104 (1977).....................50

3 Nimmer, §13.03(F)(3)(e), at 13-140 to 13-141 (footnote omitted)............................................50,52

106 Harv. L. Rev. 510, 514 (1992)......................53

This action was brought under the Federal Copyright Act of 1976, as amended, 17 USC §§ 101 et seq. This court has jurisdiction persuant to 1338(a) and 1338(b) of the Judical Code 28 USC §§1391(c), 1400(a), FRCP 56, 28 USC and persuant FRCP 38 and 39.

This case is now before the Eleventh Circuit Court of Appeals from a lower District Court summary judgment ruling on the issue of striking similariy of two musical compositions.

Notice of Appeal was made to the District Court on March 19, 2001 from a final order of the District Court for the Southern District of Georgia, Savannah, Georgia Division on February 20, 2001.

2. Did the District Court err in not considering the tape submitted as evidence which was requested by the Court?

3. In granting summary judgment in favor of the defendants was Ronald G. Calhoun appropriately deprived of a jury trial on the issue of Striking Similarity?

4. Did the District Court err in considering the statements in the report of Beth A. Tolliver unsubstantial as they apply to any material fact on the issue of strikingly similar?

5. Did the District Court err in applying the category of "expert" to all of plaintiff’s witnesses and did the District Court err in not accepting their testimony as substantial on the issue of striking similarity of literal elements?

6. Did the District Court err in not appointing an expert witness to testify to any facts of issue of striking similarity between the two compositions?

7. Was the methodology used by the Court correctly applied in its application of the abstraction-filtration-comparison test and did the Court’s application of this test appropriately consider all literal elements and realities important as they relate to the issue of striking similarity of these two musical compositions?

Ronald G. Calhoun filed Case Number 499-159 on July 19, 1999. The case was filed against Lillenas Publishing Company, Nazarene Publishing House, Beacon Hill Music, Crystal Sea Recordings, Faith Music, Pilot Point Music, Psalmsinger Music, Zondervan Publishing House, John Mathias, Hardy Weathers and Ken Bible.

Defendant’s filed a Third-Party Complaint against C.A. Music on March 16, 1999.

Ronald G. Calhoun filed Case Number 400-086 on March 30, 2000 against other publishers.

A Certificate of Counsel Related Case, pursuant to the Local Rules S.D. Ga. LR 3.1, was filed on July 19, 1999 and March 30, 2000. The two cases were not joined.

C.A. Music, the Third-Party Defendant in Case No. 499-159, filed Motion for Summary Judgment on June 30, 2000.

Case 499-159 was renamed "Calhoun I" by Order of the Court dated August 25, 2000.

Defendants filed Renewed Motion To Dismiss and For Summary Judgment on September 29, 2000.

Plaintiff filed Response To Renewed Motion To Dismiss and For Summary Judgment on October 19, 2000.

It was Ordered that the Clerk of this Court retitle Calhoun I as "Ronald G. Calhoun v. Nazarene Publishing House" on October 19, 2000. R3-103-7.

Case 400-086 was renamed "Calhoun II" by Order of the Court dated October 19, 2000. R3-103-7.

The Court finds that a brief on the issue of whether "Emmanuel" is strikingly similar to "Before His Eyes" would be helpful and sets the time frame for its submission by defendants and plaintiff in an Order dated November 3, 2000.

Brief of Plaintiff in Support of Striking Similarity was filed on November 16, 2000.

In an Order dated February 20, 2001, defendant’s Motion for Summary Judgment is granted.

The Court of Appeals is asked to review the District Court’s ruling on the issue of striking similarity between plaintiff’s composition entitled "Before His Eyes" and the worship chorus entitled "Emmanuel."

The District Court erred in its application of the abstraction-filtration-comparison test to these two compositions.

Plaintiff’s contentions, supported by multiple witnesses testimonies, is that literal copying of musical elements are obvious when comparing the two compositions.

The District Court sought the "filtering out" of unprotected elements. The application of the test, as applied by the District Court, was based on non-literal copying and not literal copying of elements. In this light, plaintiff’s evidence and corroborating testimony from multiple witnesses presented the District Court exactly what musical elements were literally copied.

The District Court seemed to begin its dissolving of the case from the position that no copying had occured. Once the Court set this premise in place, the resulting application of the filtration part of the test dictated the Court’s course and direction.

The District Court was given multiple witnesses testimonies in the form of reports, letters and affidavits concerning the similarity of the chorus section of Ronald G. Calhoun’s work entitled "Before His Eyes" and a worship chorus entitled "Emmanuel."

The Court was also given a measure by measure comparison of the two works that filtered out the literal proported copied elements along with a tape of the two works.

In its Order dated February 20, 2001, which grants defendant’s motion for summary judgment, the District Court concluded that a genuine issue of material fact did not exist on the issue of striking similarity.

In it’s conclusion, the Court erred in the factual dispute of "strikingly similar" elements and assessed the evidence in favor of the defendants, which resulted in denying Ronald G. Calhoun a trial by jury on this issue.

The District Court viewed the testimonies of plaintiff’s witnesses as unsubstantial and thus put a stop to the issue of striking similarity. The testimonies of plaintiff’s witnesses as to the similarity issue should be a resolve of the Trial Court and not the resolve of the District Court in Summary Judgment, simply based on the multiple important material facts of this issue that are triable by a jury.

The defendants have only come forward with one witness testimony on the issue of similarity that does claim, "though obviously similar in melody, rhythmic scheme and harmonic progression, none of these three elements is identical in the two pieces." R1-41-1. Plaintiff has come forward with multiple witnesses testimonies that contradict the opinion of the defendants one witness.

Ronald G. Calhoun also is most familiar with his composition and has presented opinion before the District Court that musically contradicts defendants witness testimony.

Religious music publisher Defendant C.A. Music, including Defendants Nazarene Publishing House, The Southern Baptist Convention Lifeway Christian Resources, The Sunday School Board of the Southern Baptist Convention, Convention Press, Broadman & Holman, Baptist Book Stores, The United Methodist Publishing House, Cokesbury Publishing, Abingdon Press, Cokesbury Stores, and Word Music are commercial publishers for profit who believe that the publications of the song "Emmanuel" do not infringe the chorus of Ronald G. Calhoun’s work entitled "Before His Eyes," that the two are not similar and that the melodies are entirely different. The defendants conclude "both [of] these pieces are in a style unsophisticated enough to be easily created wholly independently of the other." And, the District Court concludes those similarities to be "common to the genre or to church hymns in general."

The defendants collected affidavits in 1983 from a few members of a congregation in Washington State who witnessed the words to "Emmanuel" being sung for the very first time. These affidavits were collected eight years after hearing these words in a worship service. Even though two church employees, at different times, have claimed to be the writer of the words and music, both of these church employees signed songwriter contracts with religious publishers and even went as far as to sign a Transfer of Assignment without church approval. There is a cloud of suspicion as to its rightful origin. No religious publisher sought information from the Church as to the validity of such transactions. The short chorus "Emmanuel" first appeared in a hand written chorus book of The Kings Temple Church, now New Beginnings Church, in the State of Washington in 1976. The Defendants are defending their rights to this chorus and the District Court summed up it’s belief by saying:

"[i]n truth the plaintiff fails to establish mimicry. A few notes do not a song make." R3-116-20.

The District Court has said that "the evidence presented clearly does not raise a question of fact as to whether the two compositions were strikingly similar as to preclude the possibility of independent creation." R3-116-21. Because of the evidence and testimony of witnesses presented to the District Court, Ronald G. Calhoun requests a trial by jury on the issue of striking similarity. The danger of loss in future religious copyrighted works of the public to commercial publishers, though the works be short or simple, should not be allowed even years beyond the life of the creators for the excuse to justify large amounts of money being spent developing a market for the copyrighted material simply to enrich the general public through access to creative works. (referenced in part to R3-108-9.)

"My Country ‘tis of Thee" is a short melody we Americans lifted from our British ancestry from the original song "God Save the King." It is the opinion of one of the witnesses of Ronald G. Calhoun that such is the case with the chorus section of "Before His Eyes" as it relates literally to the worship chorus "Emmanuel."

"Before His Eyes" was written in 1969, recorded on Ronald G. Calhoun’s album in 1970, promoted to other publishers in 1970, received a songwriters clearance with Broadcast Music, Inc. (BMI) in 1971 and shaped-note sheet music was published in 1971.

"Before His Eyes" was promoted and performed in concerts, in churches, to radio stations, and on the Christian Broadcast Network (CBN) (going into the west coast) in 1972.

Defendant Lillenas Publishing Company began production of a publication in 1983 that included the chorus "Emmanuel."

Lillenas Publishing Company acquired Faith Music Company around 1975 and plaintiff had submitted "Before His Eyes" to Faith Music Company in 1970.

Ronald G. Calhoun filed a copyright registration in 1990 for "Before His Eyes" without knowledge whatsoever of a worship chorus entitled "Emmanuel."

The music of the chorus "Emmanuel" is alleged to infringe the chorus section of the song "Before His Eyes."

The chorus "Emmanuel" was discovered in 1997 by Ronald G. Calhoun and corroborated by witnesses testimony.

The chorus "Emmanuel" first appeared in a collection of eleven choruses used in worship services of The King’s Temple Church in 1976 in the State of Washington. The collection entitled Choruses From The King’s Temple, 1976 Book I was used by the church in their worship services.

A church employee, Jeffrey Buchan, filed a copyright registration in Washington for the worship chorus book with The King’s Temple Church named as copyright claimant. Jeffrey Buchan signed a songwriter’s contract in March, 1983 with C.A. Music claiming to be the composer.

A church employee, Robert (Bob) McGee, signed another songwriter’s contract claiming to be the composer in September, 1983.

The King’s Temple Church, now New Beginnings Church, has found no authorization given to Jeffrey Buchan to make a Transfer of Assignment in the rights to "Emmanuel," which he signed in September, 1983.

Several witnesses corroborate that Robert (Bob) McGee created only the words to "Emmanuel" in 1975 and sang the chorus for the first time during The King’s Temple Family Camp at Mirror Lake Park in Federal Way, Washington.

Numerous publishers have published the chorus "Emmanuel." C.A. Music claims ownership to the copyright of "Emmanuel."

It is not the intent or desire of Ronald G. Calhoun to ask this Court of Appeals to serve in a fact finding function or capacity, but to review the testimony of his witnesses and supporting evidence as it applies to the District Court’s decision that "the evidence presented clearly does not raise a question of fact," R3-116-21, and "there is [not] sufficient evidence to go to the jury on the issue of striking similarity." R3-116-20.

The District Court, in principal, viewed Ronald G. Calhoun’s witnesses testimonies as unsubstantial although their testimony simply served to provide information as to material facts on the issue on striking similarity as it applies to literal copied elements after comparing the two musical compositions. The Court, inturn, accepted the one witness report of the Defendants, (without a measure to measure comparison), over the plaintiff’s multiple witnesses testimonies that contradicted defendants one witness report.

It is the defendants’ burden to show the absence of a disputed material fact. Thrasher v State Farm Fire & Cas. Co., 734 F2d 637, 638 (11th Cir. 1984) (per curiam).

Ronald G. Calhoun presented testimony that should have been considered as to material facts on the issue of literal coping of musical elements from his musical composition.

"I listened to ‘Before His Eyes,’ a composition of Ronald G. Calhoun, on Tuesday, July 4, 2000 for the very first time."

"Upon hearing his composition it was clear that the chorus to "Before His Eyes" was the same chords as the song ‘Emmanuel.’"

"It was clearly evident of the sameness of the two songs."

"It was clearly evident, upon my first hearing the composition ‘Before His Eyes’ that the chorus was of the same chordal relation as the song ‘Emmanuel.’"

"I listened to ‘Before His Eyes,’ a composition of Ronald G. Calhoun, on Wednesday, June 21, 2000 for the very first time."

"Upon hearing his composition it was clearly obvious that the chorus to ‘Before His Eyes’ was essentially the same as the song ‘Emmanuel’ and obviously of the very same origin."

"It was clearly evident, upon my first hearing the composition ‘Before His Eyes’ that the chorus was of the same chordal relation as the song ‘Emmanuel.’"

"From his playing the two compositions, ‘Emmanuel’ and his own work and hearing them together for the very first time, it was clearly evident to me of the closeness and the sameness of the two pieces."

"...after careful study of both pieces, I must admit that I am convinced that the two are too much alike for mere coincidence. My study found that all three of these (publications of "Emmanuel") were nearly identical (to "Before His Eyes") in chordal structure, key, and all other ways. In order to gauge how the untrained ear would hear the minor differences that exist in the two compositions. I played both for my Advanced Choral groups and these students could not discern any notable differences. The opening interval of your composition is an octave while the interval is a perfect 4th in the others, however, this minor difference does not change the character of the piece. The rhythmic aspects of the works are also so minor in differences that they are insignificant inasmuch, both are 16 measure selections beginning on the second beat, ending with a tie, beginning and ending in a partial measure. The melodic shape is nearly identical if illustrated ... I must deduce that ‘Emmanuel’ was created using the melody of ‘Before His Eyes’ while changing some chordal elements, even leaving intact your rhythmic elements, your melodic structures, and generally the mood of your composition."

Plaintiff made a statement during his deposition concerning the octave interval not being found in "Emmanuel." This was reversed through later discovery, after plaintiff’s deposition, and the defining octave interval (fingerprint) not found in the Tolliver Report was found during the discovery of the original lead sheet melody version of 1976, from which all other defendants’ arrangements are based.

"After examining the two melodies you requested me to analyze, I find that they are, despite minor differences, unmistakably of the same origin. The first tune is McGEE (No. 204 in The United Methodist Hymnal, 1989 ("Emmanuel")). It differs only slightly from tune number two ("Before His Eyes"), which contains melodic leaps of an octave rather than a perfect fourth (found in tune number one), thus retaining consonant intervallic relationships which fail to alter the basic compositional structure or contour. Indeed, untrained singers often mistakenly substitute one of these leaps for the other. Slight differences in melodic material in bar seven and minor rhythmic differences in the next to the last bar are inconsequential and do not negate the pervasive sameness. These two melodies are unquestionably the same."

The McKay analysis of the two works referenced the difference of the "melodic leaps of an octave." This observation of the two works was made before plaintiff found the original lead sheet melody version of 1976 during discovery, which clearly showed the octave interval (fingerprint).

"As a composer, arranger, and Christian Minister of Music, I found it most interesting to play your composition ‘Before His Eyes.’ ...I’ve had to "range-down" several songs over the years that were originally songs written for soloists so that my congregations could sing them within their limited vocal range. ...It is quite evident to me upon first hearing your Chorus ‘Before His Eyes’ that ... ‘Emmanuel’ came directly from your original melody and that ‘Emmanuel’ is merely a ranged-down version of your melody making the octave pitch intervals into intervals of a fifth because they are easier for a congregation to sing. As I analyze the two melodies, I find no other significant differences between them - they are substantially the same melody. ...The melody is singularly unique and particularly beautiful, and I believe that is why the melody has stood the test of time and been so popular... Even more interesting to me in my analysis of the two songs is the relationship between the melody and how they are married to the words of a particular song. ... And like the melody and the syncopated rhythms within ‘My Country ‘tis of Thee,’ having been lifted right from of the original song ‘God Save the King,’ I believe that the same thing has occurred between ‘Emmanuel’ and ...’Before His Eyes.’ The text syncopations within...’Before His Eyes’ being lifted into ‘Emmanuel’ but for no reason inherent in the text rhythms found within the Chorus ‘Emmanuel.’ ...Without a doubt, I find a substantial similarity between the Chorus ‘Emmanuel’ and the Chorus to ‘Before His Eyes.’"

"The amendment establishes once and for all that the trial court and not the appellate tribunal should be the finder of facts even if based solely on documentary evidence." Notes of Advisory Committee on 1985 Amendments to Federal Rules of Civil Procedure, FRCP 52.

"Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Federal Rules of Evidence 401.

Ronald G. Calhoun presented evidence to the District Court showing that "Emmanuel" is "rhythm to "rhythm," "note to note," and "measure to measure" strikingly similar to the chorus section of "Before His Eyes." R3-110-9. Furthermore, it does not evade competition in any aspect of the legal test of evaluation of similarities - in melody, rhythm, harmony, placement of notes within bars, other units of measure such as meter and tempo, uniqueness or repetition. R3-110-10.

"Proof by a proponderance of the evidence exists when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Harrigan v. Freeman (1986, La App 1st Cir.) 498 So 2d 58, 78 ALR 4th 601.

A. "As an initial matter, the lyrics are completely different. "Before His Eyes" is also considerably longer than "Emmanuel." R3-116-19.

The District Court failed to consider the chorus section only of "Before His Eyes" and the comparison to the words of "Emmanuel." While they are different words, they are equally literal in text rhythm and syncopation.

"Even more interesting to me in my analysis of the two songs is the relationship between the melody and how they are married to the words of a particular song. ... And like the melody and the syncopated rhythms within ‘My Country ‘tis of Thee,’ having been lifted right from of the original song ‘God Save the King,’ I believe that the same thing has occurred between ‘Emmanuel’ and ...’Before His Eyes.’ The text syncopations within...’Before His Eyes’ being lifted into ‘Emmanuel’ but for no reason inherent in the text rhythms found within the Chorus ‘Emmanuel.’

"When the syllabic position of the words to "Emmanuel" is compared to the words in the Chorus of "Before His Eyes," it reveals, without fail, they are identical." R3-110-14.

B. "Before His Eyes" is in the key of F, while "Emmanuel" is in the key of C flat." R3-116-19.

The District Court failed to consider the intervallic literal relationship of the two works when transposed into the same key.

"It is quite evident to me upon first hearing your Chorus ‘Before His Eyes’ that ... ‘Emmanuel’ came directly from your original melody and that ‘Emmanuel’ is merely a ranged-down version of your melody making the octave pitch intervals into intervals of a fifth because they are easier for a congregation to sing."

Plaintiff’s testimony of "Before His Eyes" being in the key of F was presented to the District Court. R3-80-3 at Exhibit "B."

No evidence was introduced to the District Court of "Emmanuel" being in the key of C flat. Plaintiff opposed this claim to the Court. R3-83-13.

Plaintiff presented evidence that informed the Court that the first lead sheet of ‘Emmanuel’ in 1976 and the earliest defendants publication was in the key of C and not C flat. When transposed into the same key, the evidence showed the literal sameness of the two compositions.

"The first three measures of "Emmanuel" from a 1980 publication (see Exhibit "B") and the 1976 lead sheet (see Exhibit "A") are compared with the Chorus section of "Before His Eyes," transposed into the same key of C as "Emmanuel" appeared." R3-110-13.

C. "At least 10 out of 32 notes in the melody line are different." R3-116-19.

The District Court failed to consider whether the information the Court was given was correct and, rather, to accept defendants’ single witness testimony without consideration of plaintiff’s testimony to the contrary.

"It was clearly evident of the sameness of the two songs."

"Upon hearing his composition it was clearly obvious that the chorus to ‘Before His Eyes’ was essentially the same as the song ‘Emmanuel’ and obviously of the very same origin."

"From his playing the two compositions, ‘Emmanuel’ and his own work and hearing them together for the very first time, it was clearly evident to me of the closeness and the sameness of the two pieces."

"The melodic shape is nearly identical if illustrated."

"After examining the two melodies you requested me to analyze, I find that they are, despite minor differences, unmistakably of the same origin. Slight differences in melodic material in bar seven and minor rhythmic differences in the next to the last bar are inconsequential and do not negate the pervasive sameness."

"As I analyze the two melodies, I find no other significant differences between them - they are substantially the same melody."

"The Chorus "Emmanuel" and the Chorus of the song "Before His Eyes" each have 40 notes placed in 17 bars of music. See Exhibit "C," Part I and Exhibit "D," Part I. Of those 40 notes, 32 are identical in pitch and symmetrical position. The remaining 8 notes are in identical symmetrical position but are harmonic intervallic variations of one another. They are easily substituted for the notes in Before His Eyes. See Exhibit "D," Part II." R3-110-110.

D. "Considering that there are only seven melody notes from which to choose in a chorus, some similarity is practically inevitable." R3-116-19.

From this conclusion, the District Court failed to see the virtually infinite possibilities in the structure of musical compositions. This is normally understood when there is a misunderstanding of elements such as accidentals, intervallic relationships, harmonic progressions and the like.

The District Court’s assumption is an inconclusive conclusion. A common set of assumptions or beliefs seem to run through such statements.

"I fear that these inconclusive conclusions may seem highly expedient in that they wriggle out of any obligation to provide answers and throw the onus of considering the issues raised in this paper back on to music analysts. However, from a scientific perspective, this seems a wholly acceptable outcome; after all, as Einstein put it (quoted in Feyerabend,1981, p 83) "The external conditions which are set for [the scientist]...do not permit him to let himself be too much restricted, in the construction of his conceptual world, by the adherence to an epistemological system. He therefore must appear to the systematic epistemologist as a type of unscrupulous opportunist..." Music Analysis and Music Perception Music Analysis, 1998, vol 17. No.1, Ian Cross.

E. "Before His Eyes" contains an unique octave leap in the chorus, which does not appear in "Emmanuel." Calhoun Dep. at 103-04." R3-116-19.

The District Court did seek a literal sameness when considering this element.

It is here the District Court disclaimed a literal "fingerprint" that strikingly connects these two compositions. This material fact on the issue of striking similarity along with the other literal fingerprints, should be examined before a jury to determine if such evidence is important in comparing the two compositions.

The statement by Ronald G. Calhoun in his deposition was made before discovery of the original 1976 lead sheet and was immediately brought to the attention of the District Court. R3-69-103.

"I laughed with glee to hear the original to a song I have sung so many times and heard congregation’s alter and simplify due to the soloistic vocal range of your original. ... I have always thought that octave interval you wrote at the beginning of the Chorus to be more for a solo voice than for the local congregation to be capable of navigating. In Seattle, after a couple of years, we eventually narrowed that interval from an octave in its original down to a fifth so that more of our congregation could sing it. ...‘Emmanuel’ is merely a ranged-down version of your melody making the octave pitch intervals into intervals of a fifth because they are easier for a congregation to sing."

"It differs only slightly from tune number two ("Before His Eyes"), which contains melodic leaps of an octave rather than a perfect fourth (found in tune number one), thus retaining consonant intervallic relationships which fail to alter the basic compositional structure or contour. Indeed, untrained singers often mistakenly substitute one of these leaps for the other."

"The opening interval of your composition is an octave while the interval is a perfect 4th in the others, however, this minor difference does not change the character of the piece."

"The first lead sheet of "Emmanuel," as it appeared in 1976 in Choruses From The King’s Temple, 1976 Book 1, without a doubt shows this striking characteristic. (See Exhibit "A")

This first element was changed in the second lead sheet in March 1983, but was reflected even earlier, around 1980, in the claimed composer Jeffrey Buchan’s publication. (see Exhibit "B") It appeared again in the third lead sheet in September 1983." (See also Exhibit "C," at Note, Part I and Exhibit "A.") R3-110-15.

F. "In this case, plaintiff has not provided such evidence of similarities of an unusual musical fingerprint that is not common to other songs." R3-116-20.

Now the District Court reverts back to a non-literal application of the abstraction-filtration-comparison test and setting its premise of evaluation of the evidence as musical elements "common to other songs," leaving nothing, in the Courts opinion, as protectable.

"My study found that all three of these (publications of "Emmanuel") were nearly identical (to "Before His Eyes") in chordal structure, key, and all other ways. ... The rhythmic aspects of the works are also so minor in differences that they are insignificant"

"...thus retaining consonant intervallic relationships which fail to alter the basic compositional structure or contour. ... Slight differences in melodic material in bar seven and minor rhythmic differences in the next to the last bar are inconsequential and do not negate the pervasive sameness. These two melodies are unquestionably the same."

"As I analyze the two melodies, I find no other significant differences between them. ... And like the melody and the syncopated rhythms within ‘My Country ‘tis of Thee,’ having been lifted right from of the original song ‘God Save the King,’ I believe that the same thing has occurred between ‘Emmanuel’and ...’Before His Eyes.’ The text syncopations within...’Before His Eyes’ being lifted into ‘Emmanuel’ but for no reason inherent in the text rhythms found within the Chorus ‘Emmanuel.’"

"Theme A and Theme B of "Emmanuel" begin with the octave interval at Theme A and the implied octave interval at Theme B in the same identical location as Theme A and Theme B of "Before His Eyes." See Exhibit "C," Part I." R3-110-16.

B. Text syncopation

"Good musical composition practice strives to marry the text of a song to its melody following the natural flows, rhythms, and meaning within the words. In the case of Emmanuel, if one speaks the words, then a natural straight speech rhythm to the text is natural; "Emmanuel, Emmanuel, His name is called (pause), Emmanuel. God with us, ! Revealed in us. His name is called (pause) "Emmanuel." If, however, one speaks the words to the Chorus of "Before His Eyes," there is a natural syllabic stress syncopation in the reading of the text between the syllables "-fore" and "His"; (e.g. "Be-fore His Eyes" and again in the words "to Cal-va-ry", and again in the words "the world to save.") these syncopations are carried through the melody as a logical compositional device.

And like the melody and the syncopated rhythms within "My Country ‘tis of Thee," having been lifted right from the original song "God Save the King," that same lifting has occurred between "Emmanuel" and "Before His Eyes." The text syncopations within "Before His Eyes" were lifted into "Emmanuel," for no reason inherent in the text rhythms found within the Chorus Emmanuel." R3-110-16.

C. Unique rhythm

"In "Emmanuel" there are 7 of 17 total bars that have an obvious identifying (dotted-quarter note followed by an eighth note) syncopated rhythm. "Emmanuel" uses these obvious identifying rhythms located in the same identical measures and identical symmetrical position as in the Chorus of "Before His Eyes."

16 of 17 bars are identical rhythms in amazingly the same identical locations. See Exhibit "E," Part I." R3-110-11.

D. Harmony

"Emmanuel" strikingly duplicates exactly 13 chords that exist in the Chorus of "Before His Eyes."

These 13 chords are strikingly located in the same measures and at the same location in each measure.

If, however, the relative and easily substituted harmonic 6 remaining chords were removed, no chord remains in "Emmanuel." R3-110-12.

G. "Further, plaintiff has not provided this Court with evidence of a measure by measure similarity aside from the similarities common to the genre or to church hymns in general." R3-116-20 and R2-84-20.

Plaintiff did set out a "measure to measure comparison" of these two works that clearly showed the filtering out of literal same elements in each composition. See Exhibits "C," "D," "E,"and "F," Brief of Plaintiff on Striking Similarity, R3-110-10,11,12.

Ronald G. Calhoun submitted, at the request of the District Court and as stipulated in Order dated January 22, 2001, R3-113-2, a standard cassette tape with "Emmanuel" and "Before His Eyes" recorded on it. R3-114-2. (Plaintiff will submit the tape to this Court if requested).

"Order of Songs on the tape are announced by number only.

1. "Before His Eyes" - original key of "F" played from sheet music, 1971.

2. "Emmanuel" - originally from first lead sheet, 1976.

3. "Emmanuel" - first known defendants publication arrangement, 1980.

4. "Before His Eyes" - transposed to same key of "Emmanuel." R3-114-2.

The District Court failed to consider this evidence and made no reference to this evidence in it’s Judgment.

Based on the District Court’s premise of filtering out elements "common" to church hymns in general, it is clear why this error occured. If then there is nothing protectable that is "common" in musical compositions, then literal elements are insignificant, thus rendering a tape of the two works of no benefit to the District Court.

Evidence on the issue of strikingly similar in the form of conflicting testimony, as to similarity, is sufficient for submission to jury. The District Court said:

"The Court concludes that there is insufficient evidence that could, if believed by the jury establish such striking similarity that access could be inferred..." R3-116-20.

"An Order granting Summary Judgment must be independently reviewed by this court." Morrison v Washington County, Alabama, 700 F2d 678 (11th Cir. 1983).

Whether the lower Court, under Summary Judgment rule, properly deprived plaintiff of a trial on the issue of striking similarity depends on whether there was the slightest doubt about the facts. FRCP, Rule 56; 28 USCA following sec 723(c); Copyright Rules of Practice, Rule 1; 17 USCA following sec. 25.

Ronald G. Calhoun’s demand for jury trial, on legal issues as preserved by Federal Rules of Civil Procedure 38, albeit in the Complaint of July 19, 1999 and again in the Complaint of March 30, 2000, R1-1-33, gave defendants notice that plaintiff sought trial by jury on all issues so triable presented in the pleadings and plaintiff did not waive his right to a jury trial on the issue of striking similarity. Fed. Rules Civ. Proc. Rule 38(c); 28 USCA.

Ronald G. Calhoun gave additional notice of demand to defendants for a trial on all issues so triable presented in the pleadings by answering "No" to questions pertaining to case management as referred to non-binding mediation, arbitration, or a Magistrate Judge by completion of the "Notice of Case Management Procedures" (Litigants’ Bill of Rights), S.D. Ga. Local Rule 3.3, albeit in July 19, 1999, and again on March 30, 2000. R2-2-2.

There are provisions in the United States Constitution providing for trial by jury in the Federal Courts and the Fourteenth Amendment provides for due process of law. USCA Amen. 14.

The Seventh Amendment preserves the right to trial by jury in suits in which the legal rights are to be determined, in contrast to those in which equitable rights and remedies are involved. USCA Consitution Amend. 7.

Factors considered when examining whether a particular issue gives rise to a jury trial under Seventh Amendment are: the customary manner of trying such a cause; the kind of remedy sought; and abilities and limitations of a jury in deciding the issue.

1. Customary manner of trying such a case.

"Expert testimony of musicians may also be received, but it will in no way be controlling on the issue of [illicit] copying, and should be utilized only to assist in determining the reactions of lay auditors." Arnstein v. Porter, (1946) 154 F.2d, at 21, (2nd Cir), Before L. Hand, Clark and Frank.

Frank, Circuit Judge:

"The principal question on this appeal is whether the lower court, under Rule 56, properly deprived plaintiff of a trial on the issue of striking similarity. The answer depends on whether "there is the slightest doubt as to the facts." Doehler Metal Furniture Co. v United States, 2 Cir., 35; Sartor v Arkansas Natural Gas Corp., 321 U.S. 620, 64 S. Ct. 724, 88 L.Ed. 967; Arenas v United States, 322 U.S. 419, 434, 64 S. Ct. 1090, 88 L.Ed. 1363; Associated Press v United States, 326 U.S. 1, 6, 7, 65 S. Ct. 1416.

"It is the test of a trial court to assess the weight and value to be given the evidence." Dumas v. King, (1946 CA8, Ark) 157 F2d 463, 11 CCH LC ¶63378; Smith v. Equitable Life Assur.Soc, (1980, CA10, Wyo) 614 F2d 720.

In reviewing a Motion for Summary Judgment on the issue of strikingly similar, all reasonable doubts about facts should be resolved in favor of nonmovant, and if reasonable minds might differ on inferences arising from undisputed facts, then court should deny Summary Judgment on this issue. FRCP 56(e); 28 USCA.

"The party seeking summary judgment bears the burden of demonstrating that no genuine dispute exists as to any material fact in the case." Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970); Clemons v Dougherty County, Georgia, 684 F2d 1365 (11th Cir. 1982).

"If an error is of such a character that its natural effect is to prejudice a litigant’s substantial rights, the burden of sustaining the verdict is on the appellee." Kotteakos v United States (1946) 328 U.S. 750, 90 L. Ed. 1557, 66 S. Ct. 1239.

2. Technical v. Substantial Errors.

Facts in Federal Court should be reviewed by the Court of Appeals, pursuant to FRCP 52(a) and the Court should not engage in the de novo standard of review which is set aside for questions of law.

Now before the Court of Appeals is Ronald G. Calhoun’s Pray as pro se ignorance for testimony format of the "Beth A. Tolliver Report."

Albeit that Ronald G. Calhoun called the report of Ms. Tolliver an "expert witness report," which was not of the obvious format as required by the District Court local rules, it should not have hindered the Court’s consideration of the testimony.

"[c]ourts do and should show a leniency to pro se litigants not enjoyed by those with the benefits of a legal education. See, e.g., Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). Yet even in the case of pro se litigants this leniency does not give a court license to serve as de facto counsel for a party, see Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991), or to rewrite an otherwise deficient pleading in order to sustain an action, see Pontier v. City of Clearwater, 881 F.Supp. 1565, 1568 (M.D. Fla. 1995)." R3-103-2.

The District Court stated:

"First, Ms. Tolliver did not sign the report...Second, the report does not include her qualifications nor a list of publications. Third, it does not reveal whether she was to receive compensation or in what amount. Lastly, the report does not indicate the other cases in which she has testified at trial or by deposition. Therefore, because this report fails to comply with Local Rule 26.3(B)(6) and Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure this Court cannot consider it as expert testimony." R3-116-18.

The report given by Ms. Tolliver was signed on the second page of the school letterhead. It was not a separate "correspondence" as of the conclusion of the District Court.

Ms. Tolliver was given the sheet music to "Before His Eyes" published in 1971, and presented to the District Court as evidence. She was also given publications found of Lillenas Publishing Company.

The District Court by its review of this testimony as unsubstantial, be it opinion, expert or lay, erred in denying Ronald G. Calhoun his rights to a jury trial on the issue of facts testified thereto.

Simply because the District Court erred in not recognizing the Beth A. Tolliver testimony as unsubstantial doesn’t mean this testimony should not be acceptable. Every bit of testimony of Ronald G. Calhoun’s witnesses should be admissible as it applies to the literal elements that are the same in both musical compositions. Simply because of the fact that he has Prayed pro se ignorance before this Court of Appeals to the expert witness format, he should not be denied admissibility of such testimony be it opinion, expert or lay witness testimony in a jury trial on the issue of striking similarity.

Beth A. Tolliver was given the same written material as provided to the District Court and she scrutinized this material. This Court of Appeals should allow, and properly review, the written material and tape that was also provided to the District Court. This Court of Appeals can see, by the evidence of these witnesses letters, affidavits or reports, that the witnesses knew what they were reviewing and the District Court regarded their review of the compositions as unsubstantial.

"The witnesses were in a special position of having experienced the [two musical works] and having first-hand knowledge of how they felt before and after seeing the two works." C.F. Miller v. Universal Studios, Inc., 650 F.2d 1365, 1371 (5th Cir. 1981)

Comes Ronald G. Calhoun, now before this Court of Appeals, to Pray this Courts review of this evidence in the proper application of the abstraction-filtration-comparison test as it applies to literal componants of the two musical compositions and allow these witnesses testimonies to be considered.

"These testimonies come from a cross section of musicians who were not paid for their testimony: Baptist, Episcopal, Methodist, Presbyterian and Georgia Music Educator." R3-104-8.

Ronald G. Calhoun’s witnesses reviewed the written material and listened to the two works. They projected their credibility and abilities in listening and examining the music. Their testimony, be it of opinion, expert or lay testimony should be allowed and a trial by jury on this issue be had.

This Court of Appeals is listening to the same music that these people listened to, viewing the same written material, and these witnesses testimony as to their opinion, is based the same things.

Plaintiff did provide the District Court with mutiple witnesses although he failed to comply with the District Court expert witness format.

"Where the District Court’s action in cutting off testimony on a key issue deprives it opportunity to be persuaded to one parties view of the facts, its findings are entitled to less weight than they would be had the testimony only been allowed." Watkins v. Scott Paper Co., (1976 CA5, Ala) 530 F2d 1159, 12BNA FEP Cas 1191, 11 CCH EPD ¶10880, cert den 429 U.S. 861; 50 LED 2d 139 97 SCT. 163, 13 BNA FEP Cas 963, 12 CCH EPD ¶LL207.

"While plaintiff repeatedly refers to the testimony of his "experts," he only attempted to comply with either Local Rule 26.3(B)(6) or Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure with Ms. Beth Tolliver." R3-116-18.

The Distirct Court’s conclusion that the "plaintiff repeatedly refers to the testimony of his ‘experts’" is not supported in the record. Even if plaintiff had referred to the testimony of his witnesses as "expert," the testimony should be acceptable in a jury trial as it relates to literal elements that are the same in both compositions.

"Accordingly, this Court will not consider the statements of plaintiff’s other witness as expert testimony." R3-116-18.

"Appellant Court must determine whether the assertive erroneous evidentiary ruling was really harmful to the appellant." Tugwell v. A.F. Klaveness and Co., (1963 CA5 Tex.) 320 F2d 866, cert. den. 376 U.S. 951, 11 LED 2d 970, 84 sct. 967.

"The clearly erroneous standard applies even when the District Court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts." Anderson v. Bessemer City (1985) 470 U.S. 564, 84 LED 2d 518, 105 Sct 1504, 37 BNA FEP CAS 396, 36 CCH EPD ¶35058, 1FR SERV 3d 1; Rogers v. Kelly (1989 CA8 Ark) 866 F2d 997, reh ben (CA8) 1989 U.S. app LEXIS 4726.

The 1985 Amendment to FRCP 52(a) establishes once and for all that the Trial Court, and not the appellate tribunal, should be the finder of facts even if based solely on documentary evidence. The allowance of findings of fact based solely on documentary evidence is based on the public interest in the stability of judicial economy by recognizing that the trial court, not the Appellate Court, should be the trier of facts. Notes of Advisory Committee on 1985 Amendments to Federal Rules of Civil Procedure 52.

A decision to restrict the admission of testimony, be it opinion, expert or lay, should be at the discresion of the Trial Court and not the District Court at Summary Judgment stage.

"The witness’s testimony or evidence in the form of opinion or inferences was (1) rationally based on the occupation and training of the witness; (2) helpful to a clear determination of a fact in issue." Jones on Evidence (6th Ed.) §§14:3 - 14:8; Federal Rules of Evidence Digest, FindeX 701.1 - 701.40)

The primary purpose of FRE 701 is to allow nonexpert witnesses to give opinion testimony based on their playing or analysing the two musical compositions.

This is consistent with the "collective facts" doctrine, by which a witness is allowed to deliver a shorthand rendition of his knowledge of the [issue] to which he is testifying.

(1) The opinion is based on personally observed facts;

(2) The witness cannot verbalize all the primary data the witness observed;

(3) The opinion is the type of inference that lay persons commonly and reasonably draw;

(4) There is a rational connection between the opinion and the facts upon which it is based;

(5) The opinion is helpful in understanding the testimony or determining a fact in issue.

Fed R. Evid 701 is designed specifically to allow lay witnesses to testify in a conclusory fashion under certain circumstances. The rule states:

"If the witness is not testifying as an expert, his testimony in the form of opinion or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue."

The rule authorizing Summary Judgment was not designed to foreclose plaintiff’s priviledge of examining defendant’s witnesses or defendant’s priviledge of examining plaintiff’s witnesses at a trial. FRCP, Rule 56; 28 USCA following section 723(c).

"The plaintiff author in this case was in a unique position of being intimately familiar with the allegedly infringed work." C.F. Miller v. Universal Studios, Inc., 650 F.2d 1365, 1374 (5th Cir. 1981) (Author permitted to testify as a lay witness regarding similarities between his book and a movie).

"While the ordinary rule confines the testimony of a lay witness to concrete facts within his knowledge or observation, the court may rightly exercise a certain amount of latitute in permitting a witness to state his conclusions based upon common knowledge or experience." United States v Oliver (1990, CA8 Ark) 908 F2d 260; 30 Fed Rules Evid Serv 707.

The District Court, at its discretion, could have called upon it’s own expert but chose not to utilize such a witness. Use of such a witness may have helped inform the Court in a clearer understanding of musical elements and any literal implications when comparing two musical compositions. In view of the evidence before the District Court, the use of it’s own expert would have helped in the fact finding process on the issue presented before it on striking similarity.

Although, as the District Court insisted on the application of the filtering out of unprotected material, thus in the District Court’s opinion, that these compositions are common to the genre of church hymns in general, then clearly this premise would negate such a witness being helpful to the Court.

"The United States Supreme Court has recently reminded district judges that when necessary they may themselves seek expert assistance by the "gatekeeper" functions by resorting to FRE 706." Daubert v Morrell Dow Pharmaceuticals, Inc. (1993, US) 125 L. Ed. 2d 469, 113 S. Ct. 2786, 27 USPQ2d 1200, CCH Prod Liab Rep ¶13494, 37 Fed Rules Evid Serv 1, 23 ELR 20979.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine any fact in issue, a witness as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The District Court’s application of the 2nd Circuit abstraction-filtration-comparison test, focused primarily on the filtration aspect of the test. The Court sought filtering of unprotectable elements. The Court concluded that church hymns were confined to constraints on the range of notes and chords available and the range of expression available to composers. Thus, such a conclusion of common composing techniques to a genre, as the Court applied it to church hymns in general, or, simply that there are a limited number of possible expressions in this genre, is a conclusion not based on fact, negates any literal sameness and leaves nothing to compare. A jury is capable of examining such techniques as applied to this genre, or church hymns in general, and how it applies to the material facts on the issue of striking similarity of the literal same elements in these two compositions.

"Even if this Court were to consider statements of plaintiff’s witnesses as expert testimony, plaintiff would still fail to prove that the two works are strikingly similar. First, all of these individuals fail to filter out the unprotectable components of the songs from the original expression that is protectable..." R3-116-19.

The average observer standard, or "audience test" is the prevailing means of evaluating substantial similarity between two musical works. Kepner-Tregoe, Inc. v Carabio, 1979 U.S. Dist.8-9 (E.D. Mich. 1979).

"This test is applied in musical infringement cases." High Tymes Productions, Inc. v PRN Productions, Inc., 1995 U.S. Dist. LEXIS 21906, 7 (S.D. Ohio, 1995); Baxter v MCA, Inc., 812 F.2d 421, 424 (9th Cir., 1987).

"The audience test typically has two steps. First, the objective similarities between the two works, then the qualitively significant similarities." Moore v Columbia Pictures Industries, Inc., 972 F.2d 939, 942 (8th Cir. 1992).

"Because different levels of literal similarity are required in different cases, most courts have taken a qualitative approach to substantial similarity." See Jeffrey G. Sherman, Musical Copyright Infringement: The Requirement of Substantial Similarity, 22 A.S.C.A.P. Copyright Symposium 81, 104 (1977).

"A musicological conclusion of substantial similarity can warrant a jury trial." Baxter v MCA, Inc., 812 F.2d 421, 424 (9th Cir. 1987).

If the plaintiff created the efficient structure, then that efficient structure should have been afforded protection because it was original expression.

"if ... those elements of the plaintiff’s program that have won widespread acceptance derive from none of those external factors but rather originate in the plaintiff’s creative [programming] talents, then the mere fact that they have gained currency in the marketplace does not thereby render them into unprotected "standards." See 3 Nimmer, §13.03(F)(3)(e), at 13-140 to 13-141 (footnote omitted).

The District Court’s application of the 2nd Circuit abstraction-filtration-comparison test seemed to focus primarily on the filtration aspect of the test and summarized, seemingly, to a defining of church hymns confined to constraints on the range of notes and chords available and the range of expression available to composers. The Court seemed to conclude that, in such a common genre of composing techniques as applied to church hymns, there are a limited number of possible expressions and conclusive results available in this genre. R3-116-20.

The methodology used should reflect the combined result and realities encountered in creating musical compositions. Copyright protection grants the appropriate protection to those combined results and realities; any methodology inturn must be able to afford that protection, not lip service.

"First, all of these individuals fail to filter out the unprotectable components of the songs from the original expression that is protectable..."

"Plaintiff has not come forward with specific evidence that, filtering out the common and nonprotectable elements of the songs..." R3-116-19.

The District Court would eviscerate the composition, leaving virtually nothing protected by the copyright.

The abstraction-filtration-comparison test set out by the Second Circuit in Computer Associates International, Inc. v Altai, Inc., 982 F.2d, 693 (2nd Cir., 1992, was formulated "to determine whether the nonliteral elements of two or more computer programs are substantially similar." Id at 706.

The Altai case was concerned with the nonliteral copying of the structure of a computer program. In other words, there was no verbatim copying of the source or object code (which would be literal copying of a literal element), but rather, there was allogations of nonliteral elements, namely parameter lists, macros, and general flow charts. Id at 702.

The District Court failed to do an objective or qualitative comparison of literal copying of literal elements in the two works.

"It is very important to differentiate between both literal and nonliteral copying, as well as between literal and nonliteral. MiTek Holdings, Inc. v Arce Engineering Co., Inc., 89 F.3d, 11th Cir. Court of Appeals.

1. Objective Comparison as it relates to literal similarity.

"This step looks for "fragmented literal similarity" or pieces of each work that are identical." Tree Publishing Co., Inc. v Warner Bros. Records, 785 F.Supp. 1272, 1275 (M.D. Tenn., 1992), citing Nimmer on Copyright, §13.03 (A)(2).

The entire step of filtration is composed of several Copyright doctrines that are used to filter out protectable material: merger, scenes a faire and external factors, and public domain elements.

"The doctrine of merger denies copyright protection to an expression if there is only one way or a very limited number of ways to express an idea." Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971).

Herein lies the bulk of the District Court’s error in its conclusions as it relates to composing church hymns in general.

Elements "which are as a practical matter indispensible, or at least standard, in the treatment of a given topic." Alexander v. Haley, 460 F.Supp. 40, 45 (S.D.N.Y. 1978).

There is an argument that overuse of the merger and scenes a faire doctrines leaves little protectable expression behind. (Recent Case, 106 Harv. L. Rev. 510, 514 (1992) ("[L]iberal use of the merger and scenes a faire doctrines ... is problematic because a programmer ... starts out with a finite number of choices.")

"When determining whether two works are strikingly similar, the Second Circuit stated that: ‘[i]n assessing this evidence, we are mindful of the limited notes and chords available to composers and the resulting fact that common themes frequently appear in various compositions, especially in popular music.’" Gaste v. Kaiserman, 863 F.2d 1068 (2nd Cir. 1988) R3-116-17.

Whether the Court compares particular bars, note structure, melody or some other aspect of the works depends on what is alleged to be infringing.

When the Court sought the filtering of elements essential to the whole creation, it sought elements to virtually destroy the structural elements essential to the musical compositions. On the other hand, had the District Court sought filtering of the same literal elements in the two works then it would not have sought to distroy the compositions but rather sustain their creative results.

The structural elements in musical works that must be viewed literally and not filtered out simply because every composer uses them, thus making them common, are rhythm, meter, notes, chords, melody, measures, and harmony. While these componants are noncopyrightable individual elements, the placement, structure, intervallic and harmonic relation can be infinitely creative combinations resulting not only in common created musical results but new created musical results yet to be seen and heard.

The comparison step embodies the substantial similarity inquiry because this is when the two works are actually compared to determine if the Defendant has copied any protectable expression and the extent and importance of what was copied. It is this element that Ronald G. Calhoun’s witnesses gave testimony.

The District Court failed to apply the comparison aspect of the test and concentrated only on the filtration part of the test. The Court then appled those results to defining a minimal set of parameters for composers to work within.

In the Altai test that concentrated on nonliteral copying of the structure of a computer program, this final step of the test, the Court compared what is left of the Plaintiff’s computer program after the first two steps of the tests, which resulted in "a core of protectable material," and then compared that material to the Defendant’s program to determine if protectable expression has been copied.

The District Court seemed to confuse nonliteral copying of elements left after the filtration part of the test, versus the literal copying of literal elements before such an application of filtering is done.

If there is no dispute over the facts, a determination of whether the District Court applied the proper standard is a question of law and an Appellant Court may exercise independent judgment and enter its own conclusions of law.

When an issue or claim is properly before the Court, the Court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.

"The application of a legal standard to the facts is not a "finding of fact" within the meaning of FRCP 52(a). (Kararos Compania Naviera S.A. v. Atlantica Export Corp (1978, CA2 NY) 588 F2d 1) and thus the Court of Appeals may review such a legal conclusion without the constraint of the clearly erroneous standard and may make its own independent determination with regard to it." (Supreme Court - U.S. v. Singer Manufacturing Co. (1963 374 U.S. 174, 10LED 2d 823, 83 SCT 1773, 137 USPQ 808; 8th Cir - Baker v. Stuart Broadcasting Co. (1977 CA8 Neb) 560 F2d 389, 15 BNA FEP Cas 394, 14 CCH EPD ¶7775, 49 ALR Fed 894).

The criterion on issue of strikingly similar is an analytic and other comparison of the respective musical compositions as they appear on paper and in the judgment of trained musicians.

"In assaying the two works in copyright infringement case to determine existence of similarities, court must avoid the analysis of experts who by reducing incidents to abstractions can find the similar in the wholly dissimilar, but the test applied must be based on impression of similarity which the two works carry to the ordinary reader and observer." (Copyright Act §1 et seq, 17 USCA §1 et seq; quoting Cain v. Universal Pictures Co., Inc., 47 F. Supp. 1013 (S.D. Cal. 1942)

The District Court erred in its application of the abstration-filtration-comparison test to these two musical compositions.

"...it would have been simpler to apply the entire Altai test instead of using pieces and creating the remainder." Lotus Development Corporation v. Borland International, Inc., 799 F.Supp.353-54 (D. Mass.1992).

Simply because the two compositions were in different keys or there was no filtering of "common" elements, or there were minor altered differences does not give rise to support the District Court’s methodology as applied on the evidence and material facts presented by the plaintiff on the issue of the striking similarity between the two works.

The District Court sought to "filter out" unprotected material common to the genre, or church hymns in general and thus formed its opinion without considering the individual factors of musical elements that make up a musical composition and were literally the same elements in these two compositions.

If all copyright infringement cases start with this premise, as did the District Court, then there would be nothing left of any musical creation to protect.

Whether or not the Court had enough substantial facts presented before it as enough to carry the issue of striking similarity to a jury trial is at the heart of Plaintiff’s appeal. Furthermore, the rights to a trial by jury are provided an individual under the Constitution of the United States. Ronald G. Calhoun, at all stages of the Court process has stated to the Court that he wishes his issues to be tried by a jury.

A Court should not place too great an emphasis on the quantity of the copying, but should instead concentrate on the importance of what was copied. For example, that the chorus section of the "Before His Eyes" composition contains "distinctive features or makes the composition especially creative or desirable," then "a finding of striking similarity would be appropriate." There is no white line test to be applied to determine what is and what is not important, as compositions differ greatly. Such a determination must be made on a case by case basis.

The Appellant Court is asked to review Plaintiff’s evidence and exclude any reasonable doubt as to the evidence resulting in a material fact that should be tried by a jury.

COMES NOW, RONALD G. CALHOUN, pro se, Plaintiff and submits this, his Certifcate of Compliance of this, his Brief format which consist of 10,828 words and includes the required sections according to the Federal Court of Appeal Procedure as outlined by the United States Court of Appeals Eleventh Circuit.

Ronald G. Calhoun, pro se Plaintiff, respectfully submits this Brief of Appellant to the Eleventh Circuit Court of Appeals this April 30, 2001.