LOSING FAITH IN INDUSTRIES OF THE CHURCH

Ronald G. Calhoun

Versus

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, Ken Bible, The Southern Baptist Convention, Lifeway Christian Resources, The Sunday School Board of the Southern Baptist Convention, Broadman & Holman, Baptist Book Stores, The United Methodist Publishing House, Cokesbury Stores, Christian License International (CCLI), Word Music, Nelson/Word Ministry Services, Maranatha Music, Integrity Music, Integrity Church Services, Music Services, Christian Artist Music (C.A. Music), Cam Floria, Jeffrey Buchan, and Bob McGee

Georgia composer and Church Music Director at the First Presbyterian Church in Hinesville, Georgia, Ronald G. Calhoun of Savannah, Georgia, believed on February 12, 2002 that he had won round two in the United States Court of Appeals for the Eleventh Circuit against who some have called the "ivory towers" of religious denominations and the publishing houses of the Southern Baptist, United Methodist, Nazarene and Word Music.

Before the Court were the arguments of "Strikingly Similar" and "Due Diligence." During the close of arguments, Judge Stanley F. Birch, Jr. announced to all those packed into the courtroom that the two musical works, in his opinion were the same song and if it were left up to him he would rule accordingly. At the close of oral arguments, as the packed court room exited the doors, Judge Birch leaned over the platform and spoke in a loud pronouncing voice, "I strongly suggest that the attorneys in this case get together and settle."

The copyright infringement case had been ongoing since 1997 and centers around the song "Emmanuel" which is claimed by the defendants to be one of the top ten commercially rated religious songs in the last decade.

What makes this case important to the small town composers in America is that Ronald G. Calhoun has represented himself without the benefit of a law education. The defendants teams of attorneys represent law firms of King & Spalding with offices in New York and Texas; Kilpatrick Stockton LLP with offices in Brussels, London, Stockholm and Washington, Massachusetts and North Carolina; Callaway Braun Riddle & Hughes of Savannah, Georgia; Buchsbaum and Lowe of Savannah, Georgia; Kent Worsham & Smart of Savannah, Georgia; Inglesby Falligant Horne Courington & Chisholm of Savannah, Georgia in addition to attorneys in Nashville. Since February 12, 2002 the law firm of Duane Morris with offices in New York, London, Chicago, Houston, Philadelphia, San Francisco, Boston, Washington, DC, Atlanta, Miami, Newark, Allentown, Wilmington, Cherry Hill, Harrisburg, Bangor, Princeton, Palm Beach and Westchester has been added for the defendants.

The song has been published in numerous publications including the hymn books of the United Methodist, the Southern Baptist, the Nazarene and Word Music, a nondenominational hymnal. The United Methodist boast of in excess of 4.5 million copies of their hymn book was sold as of October 31, 1999 with worldwide distributors in Canada, New Zealand, Ghana, Singapore, Australia, United Kingdom, Ireland, Europe, Indonesia, Korea, Hong Kong, South Africa, Zimbabwe and India. The Southern Baptist offer their hymn book for sale to 15.8 million members in more than 40,000 churches in the United States, Canada, Guam and the Caribbean and more than 4,000 foreign designated members in 129 nations of the world.

This is a case that shows that no one has sovereign immunity from copyright infringement. The hymn book is considered by some denominations as the second most holiest book in churches next to the Bible.

After round two and hearing what is taking place in the case, David R. Smith of the law firm of Brannen Searcy & Smith in Savannah stated, "It is rare that the little guy wins." One attorney referring to Mr. Calhoun representing himself, said, "It is amazing that one so grossly under represented won in the United States Court of Appeals against one so grossly overly represented." The Court that is next higher is the Supreme Court of The United States.

As I stood before three United States Government Federal Judges in the second highest Court in the country next to the Supreme Court and representing myself in a copyright infringement case, I could not help but think of all the years of my life up to that very moment. Every event began to unfold at the speed of light in my mind. Then it became very clear to me why I was standing before these Judges. It wasn’t me, it was every composer in every small town in America.

But this story really begins in the 1940’s. Grandfather sat at the Primrose Church organ. As his feet pumped the air to the keys, the notes carried down the dirt road, across the fields and into the hearts of the congregation. Us kids would be playing outside, most of the time in trees, and when grandfather struck the notes on that old pump organ it sounded like thunder and the call to arms which invoked a yell from us kids. "Attack," we cried out as we ran into the church. We hurried as fast as our feet would carry us inside before we were called to "get into the church, now."

It stirred and still stirs imaginations in my mind as a young boy. I fantasize, even today, of a place called Primrose. Where the women were prayerful and right, the men were strong and thankful and the children were playfully perfect. And everyone attended a church for "righteous believers." It was before such a distinction and difference was placed on denominations and certainly before the onset of church politics and church industries which weren’t even conceived as being part of the church.

The Christian Copyright Licensing, Inc. ("CCLI") Internet bio states:

One religious publisher stated a song’s popularity this way in 2000: "The song (unnamed) has constantly been ranked in the top-twenty songs rated by Christian Copyright Licensing Inc. ("CCLI"), the company that monitors and reports licensing transactions for Christian hymns. The song (unnamed) appears in many hymnals of the major Christian denominations, including hymnals of the Baptist, Methodist and Nazarene religions. The song (unnamed) has been one of the singular most popular Christian hymns and is one of the most popular Gospel songs in major denominations in the past two decades."

Clearly, in the worship context, there has not been enough dialogue and study conducted by the Church in order to preserve and protect it’s "sacred right" of worship using music.

Healthy dialogue on this subject can help forge guidelines needed for the future. The "Fair Use" of copyrighted religious musical works, if studied sufficiently, may reveal exempted limitations found under 17 USC §107, dealing with Fair Use, and 17 USC §108, dealing with reproduction by libraries and archives. (Section 101, Title 17 of the United States Code, entitled "Copyrights.")

17 USC §110 (3) clearly states the exemption of certain performances and displays as thus: "The following are not infringements of copyright: (3) performances of a nondramatic literary or musical work or of a dramatic musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly."

We cannot escape the fact that the sacred parts of our lives are influenced by copyright laws, popular music rating systems, entertainment values and at times weak, fragile and even secular substitutions for worship. But, there are alternatives to this continued path of sacred commercialization. One such alternative may seem a simplistic solution: "What is done for the Church, in the name of the Church, belongs to the Church."

Wherefore, there is clearly a need to separate church music from commercialization by working within defined laws to cease the invasion of "materialistic secularization" upon the Church. This can be accomplished by: (1) conducting new dialogue and research on this subject, and; (2) the Church establish guidelines and policies with a goal of building a sacred music library owned, controlled and sanctioned by the Church or within each church.

On July 23, 2002 the decision of the United States Federal Court of Appeals for the Eleventh Circuit came down; "Calhoun’s claims of copyright infringement should be barred by McGee’s bona fide claim of independent creation." In other words, the Court concluded "there is no issue of material fact about McGee independently creating "Emmanuel." They went on to say, "even a casual comparison of the two compositions compels the conclusion that the two compositions are practically identical."

I failed to provide the Court with enough evidence to contradict the independent creation theory thus establishing the reasonable opportunity to view or hear the work at issue. I did not have knowledge or ability to conduct depositions, issue subpoena’s or provide the necessary research into the exposure of the music to the chorus section of "Before His Eyes."

1. CBN refused to provide affiliate stations on the West Coast specifically the Pacific Northwest that broadcast the 700 Club Program during the 1970’s.
2. CBN refused also to provide affiliate stations that broadcast the Warren Roberts Presents Program during the 1970’s on the West Coast and specifically the Pacific Northwest. Warren Roberts is still alive and resides somewhere in the Atlanta area.
3. I did not know how to subpoena the Stamps-Blackwood School of Music enrollment records for the period of 1972 – 1976 to locate students who were from the State of Washington, specifically Seattle. Although I provided a list of students I taught during this period I failed to try to locate them for affidavits. The school is still in existence and is directed by Ben Spear in Nashville, Tenn. J.D. Sumner who is deceased formerly directed it but his daughter Shirley was in charge of all the school records until sometime before his death.
4. Of those students who attended the school above during 1972 – 1976, I failed to research those who had any possible connection or knowledge of The Kings Temple Church where McGee is claimed to have independently composed "Emmanuel." And of those students, who may have had any knowledge of the music to the chorus of "Before His Eyes."
5. I did not have the knowledge to produce depositions of McGee’s witnesses who signed affidavits in 1982 of his composing "Emmanuel." Such depositions would have shed light on the actual process and if indeed it was spontaneous composing versus evolved development of use of the chorus in their services.
6. The evidence showed that Jeffrey Buchan and McGee were partners in crime, i.e. Buchan claiming to be the writer and actually published the work, then signing a transfer of assignment from The King’s Temple without church approval after being caught. He even stated in a letter that he hoped he was not punished for plagiarism. This letter never was submitted to the Court as evidence. I located Buchan and spoke with him over the telephone but when he realize what the case was about he refused further conversation. I am convinced that the Buchan testimony is a key testimony to discredit "independent creation."

I could not conclude to the end and pursue continuance of this case. The future welfare and benefits for every small town composer in America is at issue not just my music. If indeed McGee is allowed to stand on his position of independent creation then even the church music industry itself is at risk of demise and harm.

On July 22, 2002 attorney David R. Smiths’ (of the law firm of Brannen, Searcy & Smith in Savannah, Georgia), motion of for entry of appearance of counsel for Ronald G. Calhoun is GRANTED.

On August 12, 2002 PETITION FOR REHEARING was filed in the United States Federal Court of Appeals by David R. Smith and it read as follows:

NOW COMES the Appellant in this case [hereinafter, "Calhoun"], pursuant to FRAP 40, and moves this Court for panel rehearing, showing the following:

1) This Court erred in its application of the law governing copyright infringement by failing to consider the effect of the presumptions of access and copying created without other evidence by the striking similarity of the two works at issue in this case;

2) This Court erred in applying an incorrect, and unduly strict, burden of proof of access upon Calhoun in light of the striking similarity of the two works at issue in this case;

3) This Court erred in its consideration of the effect of the Defendant’s evidence of independent creation, given the striking similarity of the two works at issue;

4) This Court erred in its consideration of the facts of this case on the issue of access, as the record demonstrates that the purported author of the allegedly infringing work had the "reasonable possibility" of the availability of the earlier work for view required in cases of strikingly similar works;

5) This Court erred in its consideration of the evidence in this case on the issue of independent creation, as the record contains considerable evidence rebutting the Defendants’ proof which was not properly considered by this Court.

This Court has found that the two works at issue in this case are not just strikingly similar, but "practically identical." That finding creates a presumption of access and of no independent creation sufficient to create a prima facie case for the Plaintiff.

Where striking similarity exists, the showing of access required to create a jury issue on the question of copying is some minimal threshold of proof which demonstrates that the inference of access is reasonable. This Court imposed a much higher burden in its consideration of the evidence of access in this case, and overlooked evidence, and the significance of evidence, in the record on that issue.

Also, where striking similarity exists, a presumption of no independent creation is created, so that evidence on that issue from the defendant creates a question for the jury; it does not eliminate that fact issue. Here, the Court incorrectly found that the Defendants’ evidence of independent creation was unrebutted, and that the evidence entitled the Defendants to judgment as a matter of law. Actually, there is ample evidence in the record rebutting the Defendant’s unsupported and self-serving claim of independent creation, and that evidentiary dispute creates a question which must be answered by the finder of fact, not the Court.

This Court specifically found that the evidence demonstrates that the Calhoun’s song, "Before His Eyes," and the alleged infringing song, "Emmanuel," are not only strikingly similar, as Calhoun claims, but "practically identical." Calhoun vs. Lillenas, et al., p.9. This finding has significant importance to the consideration of all remaining issues in this appeal.

As this Court noted, in order to establish a prima facie claim for copyright infringement, Calhoun must show that McGee, the purported author of "Emmanuel," copied original elements of his work. Such copying can be shown by evidence that McGee had access to Calhoun’s work, and that McGee’s subsequent work is substantially similar to Calhoun’s original. However, where, as here, the two works at issue are strikingly similar, copying may be proved without a showing of access. Ferguson vs. National Broadcasting Co., Inc., 584 F. 2d 111, 113 (5^th Circuit, 1978). The basis for this rule is that, where works have "similarity which is so striking that the possibilities of independent creation, coincidence and prior common source are, as a practical matter, precluded", access may be presumed. See Selle vs. Gibb, 741 F. 2d 896, 901 (7^th Cir., 1984). As noted by the trial court, quoting from Hofman vs. Pressman Toy Corp., 790 F. Supp. 498, 509 (D. N.J., 1990), "Two works would have to be virtually identical to meet this standard." Here, the standard is met: As shown, this Court has found the two works to be "practically identical."

The cases cited above demonstrate a consideration apparently not recognized by this Court in its original order upholding the trial court’s summary judgment. Such a finding of striking similarity not only establishes proof of access, but also serves to rebut proof of independent creation. The very definition of "striking similarity" is that similarity which "precludes, as a practical matter," the reasonable possibility of independent creation. Selle vs. Gibb, supra; Repp & K&R Music, Inc. vs. Webber, 132 F. 3d 882 (2^nd Cir., 1998); Ferguson vs. N.B.C., supra.

Calhoun recognizes that actual copying of his work is an essential element of his claim of infringement. The cases above show that he can create (and has here created) a presumption of access and copying by his proof of striking similarity. The Defendants may still put forward their evidence of independent creation in an attempt to rebut this presumption. "The jury is only permitted to infer access from striking similarity; it need not do so." Gaste vs. Kaiserman, 863 F. 2d 1061, 1068 (2^nd Cir., 1989) (emphasis on original). Thus, the issues of access and independent creation were properly for the fact finder to decide, and not for decision as a matter of law by this court.

The Defendants did come forward with evidence of independent creation, and it was that evidence which this Court concluded eliminated any jury question on the issue of copying. That conclusion was incorrect. As shown above, where a plaintiff shows an alleged infringing work is strikingly similar to his own copyrighted work, a presumption of copying is raised. The defendant can create a fact issue on that question by introducing evidence of independent creation. Gaste vs. Kaiserman, supra. Where striking similarity is found, a defendant cannot remove the question of copying from the jury by a mere denial.

The case of Repp & K&R Music, Inc. vs. Webber, 132 F. 3d 882 (2^nd Cir., 1998) addressed this question directly. Defendant Andrew Lloyd Webber introduced affidavits from himself and his wife, stating that he wrote the challenged song in his home, with him playing the piano and her singing the melody. The 2^nd Circuit Court reversed the trial court’s summary judgment for Webber, holding that, where there is evidence that the challenged song is strikingly similar to the plaintiff’s work, such evidence by the defendant of independent creation creates a factual issue for determination by the fact finder, and not a matter of law for decision by the Court. The appellate court disagreed with the trial court’s apparent "opinion that some direct evidence was required to contradict [the defendant’s] version of the events surrounding the beginnings of the ... [s]ong." 132 F. 3d 882, 891 (2^nd Cir., 1998). The Circuit Court continued:

Here again, the district court erred by undertaking the resolution of a disputed issue of material fact... The plaintiffs here have established a prima facie case of access through striking similarity, which certainly includes the element of probative similarity. Whether the evidence of independent creation here is sufficient to rebut the prima facie case established in this action is a question for the fact finder, whatever the contours of the burden of establishing the defense. Id.

Interestingly, in the case cited by this Court in its opinion in this case for the proposition that McGee’s evidence of independent creation put the burden on Calhoun to prove copying in fact, Miller vs. Universal Studios, 650 F. 2d 1365 (5^th Cir., 1981), the 5^th Circuit Court found a fact question on the issue of independent creation, and the jury resolved it in favor of the plaintiff. The defendant did meet the plaintiff’s prima facie case of copying with evidence of independent creation, but that evidence simply presented an issue for the fact finder to decide. The plaintiff does retain the burden of proof on those issues, but the determination of whether that burden has been met is for the fact finder, and not the court. See Keeler Brass Co. vs. Continental Brass Co., 862 F. 2d 1063 (4^th Cir., 1988), where the 4^th Circuit Court dealt directly with the effect of a defendant introducing evidence of independent creation after a plaintiff has made a prima facie case of infringement. Citing an 11^th Circuit case, that Court held that, where such evidence is introduced, the plaintiff has the burden of proof to show copying by the defendant, but the question of whether he has met that burden is for the finder of fact. Id., p 1066.

It should be noted that the cases relied upon by this Court and by the trial court to find that a defendant’s evidence of independent creation removes the issue of copying from the jury are all cases where the courts rejected the argument that the works were strikingly similar. See, e.g., Benson vs. Coca-Cola Company, 795 F. 2d 973 (11^th Cir., 1986); Ferguson vs. National Broadcasting Company, Inc., 584 F. 2d 111 (5^th Cir., 1978). A finding of striking similarity, as here, starts from the proposition that the similarity of the works is so striking as to preclude, as a practical matter, the reasonable possibility that the second work was created without reliance on the first. As shown in Repp vs. Webber, supra, in that instance, a defendant’s evidence of independent creation simply raises a question for the fact finder to decide.

This Court and the trial court devoted much attention to a discussion of the evidence of McGee’s access to Calhoun’s work prior to the purported creation of "Emmanuel." As shown, access is presumed, without any evidence, where, as here, the two works involved are strikingly similar. See., e.g., Ferguson vs. National Broadcasting Co., Inc., 584 F. 2d 111 (5^th Cir., 1978); Gaste vs. Kaiserman, 863 F. 2d 1061 (2^nd Cir., 1989). This Court’s consideration of the evidence of access was appropriate, but its standard of review of that evidence was not. The case of Selle vs. Gibb, 741 F. 2d 896 (7^th Cir., 1984) provides a clear explanation of why evidence of access is significant even in a case where striking similarity is found. The Court recognized that a showing of striking similarity allows a presumption of access without other evidence. However, it also recognized the possibility, however unlikely, of independent creation of the same work by two artists. These two factors would allow an artist to create and copyright a work, place it under lock and key without display to anyone, and then prove copying by someone on the other side of the country who managed to create something strikingly similar. Such a result would create a presumption which is directly contradicted by all of the evidence in the case. The 7^th Circuit addressed that unacceptable result by requiring that, in addition to a showing of striking similarity, "there must be at least some other evidence which would establish a reasonable possibility that the complaining work was available to the alleged infringer." Id., p. 901. The 7^th Circuit Court continued, "Thus, although proof of striking similarity may permit an inference of access, the plaintiff must still meet some minimal threshold of proof which demonstrates that the inference of access is reasonable." Id., at 902.

This Court’s consideration of the evidence of access was appropriate, but, given the striking similarity between the two works in this case, it set much too high a burden for Calhoun on this issue. Access is not an element of Calhoun’s case which he must satisfy to establish a prima facie case. Access is presumed from the striking similarity of the infringing work. Rather, Calhoun need only show sufficient evidence on that issue "to meet some minimal threshold of proof which demonstrates that the inference of access is reasonable." Id. A "possibility" that the work was "available" is sufficient to justify the inference.

As shown, virtually every copyright decision dealt with by the parties, the trial court and this Court in this appeal has recited the rule that a showing of striking similarity alone, without other evidence, can satisfy a plaintiff’s requirement for proof of access. Obviously, if the scrutiny given to evidence of access is the same even where a showing of striking similarity is made, all of that language in all of those cases is completely meaningless. Clearly, the proof of access required after a showing of striking similarity is only that "minimum threshold of proof" described in Selle vs. Gibb, supra.

This Court has noted that the standard of proof required to show access is not high even where striking similarity is not shown, and access is a required element of the plaintiff’s prima facie case:

Just as it is virtually impossible to offer direct proof of copying, so is it often impossible for a plaintiff to offer direct evidence that defendant actually viewed or had knowledge of plaintiff's work... This circuit regards a "reasonable opportunity to view" as access. Herzog vs. Castle Rock Entertainment, 193 F. 3d 1241, 1249 (11th Cir., 1999)

Thus, even without a showing of striking similarity, a plaintiff need not produce direct evidence of his work in a defendant’s hand to prove access. A "reasonable opportunity to view" is sufficient. Where, as here, striking similarity has been found, the "minimal threshold of proof" required is far less even than that. Under that standard, the evidence in this case is more than sufficient to raise a jury question.

The evidence in this case demonstrates that Calhoun wrote "Before His Eyes" in 1969, and recorded it on an album in 1970. At that time, Calhoun was an active Christian artist who toured and performed at religious gatherings, churches and meetings on a regular basis. "Before His Eyes" was Calhoun’s best original song, and was performed by him at virtually all of his shows. He performed the song at least some 60 times in live concert performances. He sold some 1200 copies of his album containing the song at these shows. He sold copies of the sheet music to the song at the shows. He gave copies of the music to other soloists he worked with at such shows and programs. He also, as noted by the Court, performed the song several times on T.V. and radio on gospel and Christian broadcasting programs, including from the Grand Ol’ Opry gospel show out of Nashville. He also distributed copies of the sheet music and tapes of his song at the Wyman Theater, home of the Grand Ol’ Opry, in Nashville. All of these performances, sales and distributions were during the years immediately prior to the alleged creation of "Emmanuel."

It must also be remembered that all of these performances, and all of these sales, and broadcasts of all the T.V. and radio performances, were directed to Christian music audiences - that relatively small segment of the population which follows and consumes that genre of music and entertainment.

Calhoun was also teaching music to students from all over the country, including Washington, and using his song and its sheet music as a teaching tool.

At the same time Calhoun was so aggressively marketing his work, McGee was the associate pastor at a "musical church" (as it is described by all of the witnesses offering statements for McGee), where the leaders and members of the congregation would sing "original songs," rather than traditional hymns, at the church services. Thus, at the time Calhoun was performing his song for fans of original Christian music, McGee was working in a church with several hundreds of these very people, singing non-traditional songs. Obviously, McGee had a "reasonable opportunity" to hear Calhoun’s song, either directly or from the many original Christian music devotees by whom he was surrounded every day. This evidence is more than sufficient to satisfy the required "minimal threshold of proof" to make the access suggested by the similarity of the works reasonable.

The proof of access apparently sought by this Court is greater than that required under Herzog vs. Castle Rock Entertainment, supra, and far greater than what is required after a showing of striking similarity. As shown, the reason for any evidence of access after a showing of striking similarity is simply to avoid establishing a presumption of evidence which conflicts with all of the evidence in the case. Here, there is sufficient evidence, however minimal, to support the presumption created by the striking similarity of the works.

The question is not whether Calhoun’s evidence of access and copying is persuasive or compelling. The question is whether it is sufficient to allow the presumption of access to go to the jury, with all of the evidence, to decide the issue. By considering the evidence of access under much too harsh a standard, this Court has removed a contested issue of fact from the fact finder.

This Court decided this case on its finding that McGee’s evidence of independent creation eliminated any question for the jury on that issue. As shown above, the opinions of this Court and the trial court cite no cases where, as here, a showing of striking similarity was made, but the issue of independent creation was decided against the plaintiff as a matter of law based upon the defendant’s claim of independent creation. As also shown, the case of Repp vs. Webber, 132 F. 3d 882 (2^nd Cir., 1998) expressly held that such testimony by a defendant leaves the question for the fact finder, and not the court. The record of this case demonstrates amply that here, too, the question of independent creation is one which should be answered by the fact finder and not this Court or the trial court.

As shown, by definition, a finding of striking similarity establishes that two works are so similar as to preclude the reasonable possibility of independent creation. That finding has been made here. The Defendants may rebut that presumption with evidence of McGee’s alleged independent creation, but the question of whether they have done so successfully is for the fact finder, and not the court.

There is considerable other evidence in the record of this case raising questions about the credibility of the Defendants’ independent creation evidence. McGee’s affidavit in this case states that "Emmanuel" simply burst from his lips, full-blown, in church one Sunday, with no writing, practice or construction at all. R. 3-69-2. Thus, no one saw him write it; they simply heard him sing it. The only evidence that he created it is his own self-serving testimony. The Court in Repp vs. Webber, supra, noted the inherent credibility problems with this kind of evidence, and found a jury question on the issue of independent creation.

The very fact that "Emmanuel" popped out of McGee without any process of construction makes it much more likely that he was repeating, consciously or not, a melody he had already heard, rather than composing a new work. Many cases have noted the relevance of the creative process, and the length of time it took, in evaluating evidence of independent creation. See, e.g., Three Boys Music Corp. vs. Bolton, 212 F. 3d 477 (9^th Cir., 2000); Miller vs. Universal Studios, 650 F. 2d 1365 (5^th Cir., 1981); Selle vs. Gibb, 741 F. 2d 896 (7^th Cir., 1984); Herzog vs. Castle Rock Entertainment, 193 F. 3d 1241 (11^th Cir., 1999).

McGee’s lack of sophistication as a musician and songwriter also casts doubt upon his claim to have spontaneously burst forth independently with a song written seven years earlier. His statement establishes that he had to get the church music director to write down "Emmanuel" after he sang it, and that he, himself lacked even the ability to transpose the song to another key. Courts considering the question of independent creation have considered the creative capability of the defendant as a relevant factor. See Selle vs. Gibbs, supra. (Bee Gees had composed over 160 songs); Ferguson vs. National Broadcasting Co., supra, (John Williams had previously composed many important film scores and won an Academy Award); Herzog vs. Castle Rock Entertainment, supra, (John Sayles was critically acclaimed screenwriter and director, with an Academy Award nomination). The evidence in this case suggests it would be quite remarkable for the untrained McGee to instantly compose a now-popular melody, which had already been written by Calhoun years before.

This Court and the trial court stressed the fact that McGee burst forth with "Emmanuel" without any lead sheets or sheet music. The lack of written music that Sunday morning is not evidence of independent creation. McGee could as easily have sung "Happy Birthday," or "Jesus Loves Me," without sheet music, but he certainly did not write those songs. A melody, once heard, can be carried in one’s head and reproduced later, with or without written notes. For this reason, the statements of other church members who saw McGee sing the song add nothing to his own self-serving statements.

The record also shows some conflict over who claims to have written "Emmanuel." Despite McGee’s claim that he wrote this song spontaneously, in the presence of Jeff Buchan, the record contains a contract signed by Buchan in which he warrants that "Emmanuel" is his sole, exclusive and original work.

As noted before, the timing of the alleged creation of "Emmanuel" also makes the possibility of independent creation less likely. Calhoun was actively promoting "Before His Eyes" to audiences interested in original Christian music during the several years immediately prior to McGee’s alleged creation. McGee is among those people most likely to have heard "Before His Eyes," given his profession and his employment in a "music church," and "Emmanuel" was first sung by him at the time he would have been most likely to have heard it.

Clearly, this evidence is sufficient to raise a fact issue for the jury on the Defendants’ claim of independent creation. The burden will remain on Calhoun to overcome the evidence of spontaneous creation, but the fact finder in this case should hear all of the evidence and make that decision.

It has been shown that, where, as here, an allegedly infringing work is strikingly similar to the plaintiff’s original, a presumption is created that the defendant had access to the plaintiff’s work, and that the subsequent work was not independently created. While a plaintiff in such a case must still meet some minimal threshold of proof to demonstrate that the inference of access is reasonable, the proof required is much less than that required where there is no such striking similarity, and no presumption of access. Here, the evidence clearly demonstrates that the Plaintiff’s work was aggressively marketed to an audience of fans and patrons of original Christian music, a group in which the alleged infringer was heavily involved. This proof of the availability of the earlier work for possible review, directly or indirectly, by the Defendants satisfies the minimal threshold of proof required where the similarity is striking.

It has also been shown that, where striking similarity is found, a defendant’s evidence on the issue of independent creation does not eliminate that issue from the jury’s consideration, given the presumption created by such similarity. Further, it has been shown that the record of this case demonstrates major problems with the credibility of the Defendants’ evidence of independent creation, providing ample basis for a jury to decide that issue in the Plaintiff’s favor.

Accordingly, this Court erred in finding no issue of material fact for consideration by a jury in this case on the question of Defendants’ independent creation of the alleged infringing work. Thus, this Court should reconsider its opinion, and reverse the trial court’s grant of summary judgment to the Defendants.

Respectfully submitted, this 12^th day of August, 2002.

BRANNEN, SEARCY & SMITH

DAVID R. SMITH

Georgia Bar No. 55587

Attorney for Appellant/Petitioner

For going on five years now the governing boards of The Southern Baptist, The United Methodist, The Nazarene and Word Music have been silent; not one word, not one letter, you’d think that they had dropped off the face of the earth. I’m sure they consider this a matter for the Courts. After all, one should not place high commercial credence in hymns and music of the church. [sic]

I want to thank my wife Toni for her love and unending support. And Trinity and Zion our children for standing by me during these turbulent and stressful years. Thank you also to all of our family especially Linda and Ellen and friends. Thank you to my mother who passed on during the course of this case and encouraged me on her death bed to continue with the case.

Thank you to all the musicians who have rallied to my side.

I want to thank First Presbyterian Church of Hinesville, Georgia and Dr. Thomas Mueller, Pastor and Christ Episcopal Church, Savannah, Georgia and Rev. Marcus B. Robertson, Rector for their encouragement and spiritual strength.

Georgia High School Association State Music Literary Judge Six Years; Christ United Methodist Church Dedicated Service Award; Northside High School 29 Year Service Award; Georgia Governors Honors; Life Chiropractic College; Outstanding American In The South; Who’s Who In Georgia; Georgia Music Educators Association; Macon Jaycees; Georgia Golden Olympics; Gospel Music Association; Murray State University; Eagle & God and Country; Society of Distinguished American High School Students National Award for Honorary Service; National Black History; US Air Force Europe Sports & Recreation Society; Armed Forces Europe General Curtis E. LeMay; National Hispanic Heritage; Air Force Meritorious Morale, Welfare & Recreation; Civilian Air Force Notable Achievement MWR Division; Air Force Logistics Command Headquarters; European Recreation Society; Civilian Guest Speaker on Performing Arts Programs at US Armed Forces Recreation Directors World Conference; Houston County Georgia Drug and Alcohol Council (HODAC), volunteer; Macon July 4th Celebration, volunteer; Monroe County Arts Alliance, Board Member; Forsyth Little Theater, volunteer; Forsyth Care Cottage, volunteer; Macon Presidential Committee, volunteer; Georgia Golden Olympics Committee, Board Member; Macon Cherry Blossom Festival, volunteer; Black History Month Committee, Board Member; National Hispanic Heritage Committee, Board Member
First Writing August 15, 2002

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