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No Sliding Scale Test for Access To Copyright

By Stan Soocher
December 29, 2015

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

On appeal, Guzman argued in part that the district court should have used a sliding scale as the basis for what level of proof he needed for establishing access by the defendants. But the Fifth Circuit explained: 'This circuit has never expressly adopted the sliding scale analysis that Guzman advances on appeal, though we have previously noted that such an analysis finds support in other circuits. See, ' Jorgensen v. Epic/Sony Records, 351 F.3d 46 (2d Cir. 2003), for the proposition that '[t]here is an inverse relationship between access and ' similarity such that the stronger the proof of similarity, the less the proof of access is required'[].'

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