CITE:  F. Supp.2d 983
CMON:  June 1999
PLAIN: ZZ TOP, et al.
DEFND: Chrysler Corporation 
COURT: United States District Court for the Western District of Washington 
DATE:  June 22, 1999
  Plaintiffs' motion for partial summary judgment GRANTED.
  A musical riff is an idea.  Reducing riff chords to single notes for
  comparing two riffs is inadequate.

JUDGE: LASNIK, District Judge
  Robert S. Lasnik, United States District Judge.

This matter comes before the Court on plaintiffs' Motion for Partial
Summary Judgment of Liability for Copyright Infringement. Summary judgment
is warranted only if, viewing the evidence in the light most favorable
to plaintiffs, there is no genuine issue of material fact. If, on the
record taken as a whole, a rational trier of fact could not find in
favor of the party opposing the motion, summary judgment should be
granted. {n1}
To prevail on their claim of copyright infringement, plaintiffs must
establish (1) ownership of the copyright to the infringed work and (2)
copying by defendant. Plaintiffs assert, without contradiction, that
defendant Chrysler Corporation copied and used parts of plaintiffs' song,
La Grange, as the soundtrack to its promotional video for the new Plymouth
Prowler and as background music when the Prowler was introduced at a press
event in January 1996. Defendant has conceded that it copied La Grange,
but challenges the originality and copyrightability of La Grange.
Defendant asserts that the guitar riff in La Grange is substantially
similar to that used in earlier musical compositions, such as John Lee
Hooker's Boogie Chillen and Norman Greenbaum's Spirit in the Sky. Because
originality "is the indispensable prerequisite for copyrightability", {n2}
defendant argues that the lack of originality in La Grange's riff
invalidates the song's copyright. Defendant overstates the originality
requirement, however:
    The prerequisites for copyright registration are minimal. The work
    offered for registration need not be new, but only original, i.e.,
    the product of the registrant. . . "Original in reference to a
    copyright work means that the particular work owes its origin to
    the author. No large measure of novelty is required. . . . All that
    is needed to satisfy both the Constitution and the statute is that
    the author contributed something more than a merely trivial
    variation, something recognizably his own. Originality in this
    context means little more than a prohibition of actual copying."
Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp.,
562 F.2d 1157, 1163 n.5 (9th Cir. 1977) (quoting Alfred Bell & Co. v.
Catalda Fine Arts, 191 F.2d 99, 102-03 (2d Cir. 1951)) (citations and
quotations omitted).
Defendant bears the burden of showing that the infringed work was not
original {n3} and has offered the declaration and expert report of a
musicologist, Robert Walser, {n4} in support of its position.  Walser
concludes that "La Grange is not original and is, in fact, strikingly
similar to earlier compositions by other artists".  Walser Decl. at 2.
His originality analysis is based almost exclusively on the similarities
between one part of La Grange, namely its guitar riff, and prior art.
Walser Report at 2. Walser has made no attempt to characterize or
otherwise identify and compare the non-riff elements of La Grange with
prior works. In fact, Walser admits that the improvised guitar solo and
vocals contained in La Grange are original, substantial, and important
to the overall impression of the song. Walser Tr. at 177-80. Such original
contributions are, as a matter of law, copyrightable. {n5}
Defendant argues that, even if some parts of La Grange are original and,
therefore, copyrightable, the song's guitar riff is not. Since a substantial
portion of plaintiffs' damage claim apparently turns on the copyrightability
of the riff, defendant and its expert emphasize the prior uses of the riff
in similar music and argue that a jury question exists regarding the
originality of that riff. Walser Tr. at 177-78; Walser Report at 2.
As part of his analysis, Walser compares the notes of the La Grange riff
with the riffs of seven other songs, noting certain similarities in their
pitch and rhythm. Walser Decl., Exhibit B. As charted on Exhibit B, the
La Grange riff is virtually identical to the riff used by Norman Greenbaum
in Spirit in the Sky, and Walser argues that Greenbaum's song is the "most
pertinent example" of a prior use of the riff. Walser Decl., Exhibit A. {n6}
Walser has admitted, however, that he changed the written music by reducing
intervals, or power chords, to single notes. Walser Tr. at 27-28. While the
reduced version of the riff may, as Walser maintains, be an appropriate
representation of "how the music actually sounds" or is "perceived", it is
not an accurate representation of the written notes that are subject to
copyright protection.  Walser Tr. at 146. Defendant has not, therefore,
objectively analyzed the various riffs to show that the "idea" and objective
characteristics of La Grange's guitar riff are not original. {n7} Rather,
defendant has used seemingly objective criteria -- musical notes -- to
represent what is fundamentally Walser's subjective perception of ZZ Top's
expression of the riff.
In addition, the Court finds that, as a matter of law, the manner in which
ZZ Top and Norman Greenbaum expressed the common idea of a riff in La Grange
and Spirit in the Sky is not substantially similar. The Court recognizes
that the intrinsic test's subjective inquiry is generally left to the jury,
{n8} but where, as here, no reasonable person could confuse the two riffs,
even if they were exposed to only six or eight seconds of each, judgment
as a matter of law is appropriate. Thus, defendant has failed to raise a
genuine issue of material fact regarding the objective or subjective
similarities between the copyrighted song and prior works. Defendant's
challenge to the validity of plaintiffs' copyright must fail.
La Grange, including its guitar riff, is the product of ZZ Top, which
"contributed something more than a merely trivial variation, something
recognizably [its] own", to the common idea of a guitar riff.  {n9}
Defendant has not raised a genuine issue of material fact about the
song's originality or copyrightability, in whole or in part. Thus,
plaintiffs' motion for partial summary judgment is GRANTED and defendant
is liable for infringing plaintiff's valid copyright. Damages for such
infringement shall be determined at trial.


{n1}  See, e.g., West v. State Farm Fire and Cas. Co., 868 F.2d 348, 350
(9th Cir. 1989); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574,
587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
{n2}  See, e.g., North Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031,
1033 (9th Cir. 1992).

{n3}  See, e.g., North Coast, 972 F.2d at 1033-34.
{n4}  Plaintiffs argue that Walser's declaration should be stricken because
he is not an expert in the blues-rock genre and because his opinion lacks
foundation. Plaintiffs' criticisms go more to the weight to be given Walser's
opinions than to their admissibility. As stated at oral argument, the Court
will not, at this juncture, strike the declaration.
{n5}  See Sid & Marty Krofft Television Prod., 562 F.2d at 1163 n.5; North
Coast, 972 F.2d at 1033 ("The test for substantial similarity is whether
the difference between the copyrighted work and the preexisting work is
{n6}  Although neither party presented a recording of Spirit in the Sky,
the Court is familiar with, and takes judicial notice of, the song.

{n7}  Sid & Marty Krofft Television Prod., 562 F.2d at 1164.
{n8}  See Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996) ("For summary
judgment, only the extrinsic [objective] test is relevant . . . . If
[defendant] satisfies the extrinsic test, the intrinsic test's subjective
inquiry must be left to the jury and summary judgment must be denied.").

{n9}  Sid & Marty Krofft Television Prod., 562 F.2d at 1163 n.5.