Proof of access requires “an opportunity to view or to copy plaintiff’s work.” Sid and Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1172 (9th Cir. 1977). This is often described as providing a “reasonable opportunity” or “reasonable possibility” of viewing the plaintiff’s work. 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, § 13.02[A], at 13-19 (1999); Jason v. Fonda, 526 F. Supp. 774, 775 (C.D. Cal. 1981), aff’d, 698 F.2d 966 (9th Cir. 1983). We have defined reasonable access as “more than a ‘bare possibility.’” Jason, 698 F.2d at 967. Nimmer has elaborated on our definition: “Of course, reasonable opportunity as [**9] here used, does not encompass any bare possibility in the sense that anything is possible. Access may not be inferred through mere speculation or conjecture. There must be a reasonable possibility of viewing the plaintiff’s work - not a bare possibility.” 4 Nimmer, § 13.02[A], at 13-19. “At times, distinguishing a ‘bare’ possibility from a ‘reasonable’ possibility will present a close question.” Id. at 13-20.
Circumstantial evidence of reasonable access is proven in one of two ways: (1) a particular chain of events is established between the plaintiff’s work and the defendant’s access to that work (such as through dealings with a publisher or record company), or (2) the plaintiff’s work has been widely disseminated. See 4 Nimmer, § 13.02[A], at 13-20-13-21; 2 Paul Goldstein, Copyright: Principles, Law, and Practice § 8.3.1.1., at 90-91 (1989). Goldstein remarks that in music cases the “typically more successful route to proving access requires the plaintiff to show that its work was widely disseminated through sales of sheet music, records, and radio performances.” 2 Goldstein, § 8.3.1.1, at 91. Nimmer, however, cautioned that “concrete cases will pose difficult [**10] judgments as to where along the access spectrum a given exploitation falls.” 4 Nimmer, § 13.02[A], at 13-22.
Proof of widespread dissemination is sometimes accompanied by a theory that copyright infringement of a popular song was subconscious. Subconscious copying has been accepted since Learned Hand embraced it in a 1924 music infringement case: “Everything registers somewhere in our memories, and no one can tell what [*483] may evoke it . . . . Once it appears that another has in fact used the copyright as the source of this production, he has invaded the author’s rights. It is no excuse that in so doing his memory has played him a trick.” Fred Fisher, Inc. v. Dillingham, 298 F. 145, 147-48 (S.D.N.Y. 1924). In Fred Fisher, Judge Hand found that the similarities between the songs “amounted to identity” and that the infringement had occurred “probably unconsciously, what he had certainly often heard only a short time before.” Id. at 147.
In modern cases, however, the theory of subconscious copying has been applied to songs that are more remote in time. ABKCO Music, Inc v. Harrisongs Music, Ltd., 722 F.2d 988 (2d Cir. 1983) is the [**11] most prominent example. In ABKCO, the Second Circuit affirmed a jury’s verdict that former Beatle George Harrison, in writing the song “My Sweet Lord,” subconsciously copied The Chiffons’ “He’s So Fine,” which was released six years earlier. See id. at 997, 999. Harrison admitted hearing “He’s So Fine” in 1963, when it was number one on the Billboard charts in the United States for five weeks and one of the top 30 hits in England for seven weeks. See id. at 998. The court found: “the evidence, standing alone, ‘by no means compels the conclusion that there was access . . . it does not compel the conclusion that there was not.’” Id. (quoting Heim v. Universal Pictures Co., 154 F.2d 480, 487 (2d Cir. 1946)). In ABKCO, however, the court found that “the similarity was so striking and where access was found, the remoteness of that access provides no basis for reversal.” Id. Furthermore, “the mere lapse of a considerable period of time between the moment of access and the creation of defendant’s work does not preclude a finding of copying.” 4 Nimmer, § 13.02[A], at 13-20 (citing ABKCO, 722 F.2d at 997-98). [**12]
But once you step out of the house, you’d have to account for songs the kid across the street plays with his garage band, world music that the New Agers next door listen to, movie soundtracks. . . so you’d have a fundamental incompleteness to manage. I’m not sure how you’d account for that.