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«IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 15-40297 United States Court of Appeals Fifth Circuit FILED JOSE O. GUZMAN, December ...»

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Case: 15-40297 Document: 00513306956 Page: 1 Date Filed: 12/14/2015



No. 15-40297 United States Court of Appeals

Fifth Circuit


JOSE O. GUZMAN, December 14, 2015

Lyle W. Cayce

Plaintiff - Appellant Clerk



HACINDA RECORDS, L.P., also known as Hacienda Ranchito and/or Discos Ranchito; LATIN AMERICAN ENTERTAINMENT, L.L.C.; RICHARD, also known as Rick G. Garcia; ROLAND GARCIA, SR., Defendants - Appellees Appeal from the United States District Court for the Southern District of Texas Before STEWART, Chief Judge, and CLEMENT and ELROD, Circuit Judges.

CARL E. STEWART, Chief Judge:

Corpus Christi, Texas, is the hub of Tejano music, a genre that particularly thrived from the 1970s through the 1990s. This case requires the court to flash back to that era and scrutinize two Tejano songs that were in the mix at the time: Triste Aventurera (“Triste”) and Cartas de Amor (“Cartas”).

After hearing Cartas on the radio, Plaintiff-Appellant Jose Guzman (“Guzman”) filed suit against Defendant-Appellee Hacienda Records and Recording Studio, Inc., alleging, inter alia, that Hacienda’s release of Cartas infringed upon his Triste copyright. After a hotly contested bench trial, the Case: 15-40297 Document: 00513306956 Page: 2 Date Filed: 12/14/2015 No. 15-40297 district court ruled in favor of Hacienda as to each of Guzman’s claims.

Because we conclude that the district court’s findings were not clearly erroneous, we AFFIRM.


Guzman wrote Triste in the early 1970s, influenced by the heartbreak of one of his companions. In the song, a woman sends a letter to her ex-lover in which she pleads with the man to take her back; the man rejects her pleas and tells her that she will be a sad adventurer for the rest of her life. Guzman filed the music and lyrics to Triste with the United States Copyright Office in 1974.

The same year, Guzman’s band, Los Duendes, recorded Triste on several 45- rpm records. At trial, Guzman proffered evidence tending to show that local radio stations regularly played Los Duendes’ recording of Triste from 1974 to approximately 1990 and that Los Duendes regularly performed Triste at Corpus Christi’s music venues during the same time. Guzman proffered no evidence that Los Duendes’ recording of Triste enjoyed any record sales, received awards, charted on radio popularity charts, or generated royalty revenue.

Hacienda is a Tejano-based recording studio in Corpus Christi.

Defendant Richard Garcia (“Garcia”) handles Hacienda’s day-to-day activities, including licensing and producing records and managing Hacienda’s “catalog of some thousand or so albums.” Sometime around 1990, a band known as the Hometown Boys 1 recorded a number of songs at Hacienda, including Cartas. 2

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name “El Grupo Internacional de Ricky y Jose Martinez.” 2 Although the song was recorded by the Hometown Boys at Hacienda, the trial evidence reflected that Cartas was actually written by Reynaldo Peña Ortiz, a songwriter who obtained a copyright registration for Cartas in 1990. Oddly enough, Guzman made no effort at trial to show that Ortiz, the writer of the allegedly infringing work, had access to 2 Case: 15-40297 Document: 00513306956 Page: 3 Date Filed: 12/14/2015 No. 15-40297 Hacienda did not select Cartas for the Hometown Boys to record, nor did it tell the band how to arrange or perform Cartas. Garcia completed the editing and mastering of the Hometown Boys’ recording of Cartas but did not alter the music, melody, or lyrics of the recording.

Cartas and Triste share similar themes and lyrics. Each song is about a man who spurns his ex-lover’s written effort to rejuvenate a romance. Perhaps most notably, the opening lyrics of Cartas—“Yo tengo en mi poder unas cartas de amor que tu me las mandastes pidiendo compasion” (I have in my possession love letters that you have sent me asking me for compassion)—match the opening lyrics of Triste—“Yo tengo en mi poder una carta de amor que tu me la mandaste pidiendo compasion” (I have in my possession a love letter that you have sent me asking for compassion)—with the exception of some plural words.

Cartas was never a hit for the Hometown Boys or Hacienda. Cartas was not popular with the Hometown Boys’ fans; fans did not request it at performances; and it did not drive CD sales, sell as sheet music, or generate royalty revenue. At trial, Garcia went as far as to call the song “a complete flop.” Eventually, the Hometown Boys stopped playing Cartas because it was so unpopular.

Sometime in the 1990s, Guzman heard Cartas on the radio and surmised that it was his song Triste. Years later, he filed the instant lawsuit against Hacienda, alleging that Hacienda’s release of Cartas violated his copyright to Triste and that Hacienda’s false identification of Triste as Cartas on various music products violated the Digital Millennium Copyright Act (“DMCA”). Over

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No. 15-40297 the course of an ensuing three-day bench trial, Guzman sought to establish that Hacienda had access to Triste prior to releasing Cartas because Garcia was active in the Corpus Christi music scene during the time when Corpus Christi radio stations regularly played Triste and Los Duendes regularly performed the song. Guzman also sought to establish that Triste and Cartas were “strikingly similar” such that the only explanation for their commonalities was copying and argued that an inference of copying was appropriate under a novel sliding scale approach.

In its post-trial findings, the district court ruled in favor of Hacienda as to each of Guzman’s claims. Relying on credibility determinations, unclear testimony, and a lack of corroborating evidence about the song’s popularity, the court concluded that Guzman failed to carry his burden to show a necessary element of his copyright infringement claim: that someone at Hacienda had a reasonable possibility of access to Triste before releasing Cartas. See Guzman v. Hacienda Records and Recording Studio, Inc., No. 6-12-CV-42, 2014 WL 6982331, at *5–8 (S.D. Tex. Dec. 9, 2014) (Costa, J., sitting by designation).

The court further concluded that musical differences between the songs, as well as a lack of uniqueness or complexity, fatally undercut Guzman’s striking similarity argument and also declined to apply the novel sliding scale approach advanced by Guzman at trial. Finally, the court concluded that, in light of its access holding, Guzman failed to show the requisite intent—“to induce, enable, facilitate, or conceal infringement”—necessary to support his separate claim under § 1202(a) of the DMCA. 3 See 17 U.S.C. § 1202(a).

Section 1202(a) of the DMCA provides that “[n]o person shall knowingly and with 3

the intent to induce, enable, facilitate, or conceal infringement—(1) provide copyright management information that is false, or (2) distribute or import for distribution copyright management information that is false.” 17 U.S.C. § 1202(a).

4 Case: 15-40297 Document: 00513306956 Page: 5 Date Filed: 12/14/2015 No. 15-40297 Guzman timely appealed to this court. On appeal, Guzman makes three arguments: (1) that the district court erred in determining that evidence of Triste’s radio play and live performances of the song was insufficient to establish that Garcia had access to Triste before Hacienda released Cartas; (2) that the district court erred in its striking similarity analysis by focusing on the songs in their entirety rather than the “virtually identical” opening lyrics of Triste and Cartas; and (3) that Triste and Cartas are sufficiently similar such that the district court should have relaxed Guzman’s burden to show access under a “sliding scale” analysis. We address each argument in turn. First, however, we briefly pause to articulate the parameters of our standard of review for a bench trial, which is largely dispositive of Guzman’s arguments.


“The standard of review for a bench trial is well established: findings of fact are reviewed for clear error and legal issues are reviewed de novo.” One Beacon Ins. Co. v. Crowley Marine Servs., Inc., 648 F.3d 258, 262 (5th Cir. 2011) (quotation marks and citation omitted); see also Fed. R. Civ. P. 52(a)(6) (stating that, following a bench trial, “[f]indings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous”). In this circuit, “copyright issues of access... are findings of fact and are consequently reviewed under the clearly erroneous standard.” Kepner-Tregoe, Inc. v.

Leadership Software, Inc., 12 F.3d 527, 532–33 (5th Cir. 1994) (emphasis omitted).

The Supreme Court and this circuit have stressed certain principles governing the application of the clearly erroneous standard of review following a bench trial. See, e.g., Anderson v. City of Bessemer City, 470 U.S. 564, 573– 75 (1985); In re Luhr Bros., Inc., 157 F.3d 333, 337–39 (5th Cir. 1998). A finding of the trial judge “is clearly erroneous when although there is evidence 5 Case: 15-40297 Document: 00513306956 Page: 6 Date Filed: 12/14/2015 No. 15-40297 to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson, 470 U.S.

at 573 (internal quotation marks and citation omitted). This standard plainly does not entitle this court to reverse the findings of the trial judge simply because we are convinced that we would or could decide the case differently.

Luhr Bros., 157 F.3d at 337. Indeed, the great deference owed to the trial judge’s findings compels the conclusion that “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. at 338 (alteration in original) (quoting Anderson, 470 U.S. at 574).

Moreover, and of particular relevance here, the clearly erroneous standard of review following a bench trial requires even “greater deference to the trial court’s findings when they are based upon determinations of credibility.” Id.; see also Fed. R. Civ. P. 52(a)(6) (stating that, following a bench trial, “the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility”). As the Supreme Court unequivocally stated in Anderson, “when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” 470 U.S. at 575. The “trial judge’s credibility determinations are due this extra deference because only [he] can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.” Estate of Lisle v. Comm’r, 541 F.3d 595, 601 (5th Cir. 2008) (quoting Anderson, 470 U.S. at 575).

6 Case: 15-40297 Document: 00513306956 Page: 7 Date Filed: 12/14/2015

No. 15-40297 III.

With our standard of review in mind, we turn to Guzman’s arguments on appeal.


Guzman’s first two arguments on appeal each speak to the “access” element of his copyright infringement claim. Guzman first argues that the district court erred in determining that evidence of Triste’s radio play and live performances in Corpus Christi, coupled with evidence of Garcia’s immersion in the Corpus Christi music market, was insufficient to establish that Garcia had access to Triste before Hacienda released Cartas. Alternatively, Guzman argues that the court erred in determining that Triste and Cartas were not strikingly similar, which would have obviated Guzman’s burden to show any access. We disagree with each argument.


To prevail on his copyright infringement claim, Guzman bore the burden at trial to prove that: (1) he owns a valid copyright; and (2) Hacienda copied constituent elements of Triste that are original. See, e.g., Positive Black Talk Inc. v. Cash Money Records Inc., 394 F.3d 357, 367 (5th Cir. 2004), abrogated on other grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010). To

establish the copying element, Guzman was required to show two things:

factual copying and substantial similarity. As is pertinent here, See id.

“factual copying may be inferred from (1) proof that the defendant had access to the copyrighted work prior to creation of the infringing work and (2) probative similarity.” Id. at 368 (quotation marks and citation omitted). To establish “access,” Guzman was required to prove that Garcia, on behalf of Hacienda, had “a reasonable opportunity to view” Triste before releasing

7 Case: 15-40297 Document: 00513306956 Page: 8 Date Filed: 12/14/2015

No. 15-40297 Cartas. 4 Armour v. Knowles, 512 F.3d 147, 152–53 (5th Cir. 2007) (quoting Peel & Co., Inc. v. Rug Market, 238 F.3d 391, 394 (5th Cir. 2001)). A bare possibility of access is insufficient, just as Guzman’s access showing cannot be “based on speculation or conjecture.” Id. at 153 (quoting Peel, 238 F.3d at 394– 95).

Guzman contends that the district court erred in finding no reasonable possibility of access because Garcia had “thousands” of opportunities to hear Triste on Corpus Christi’s radio stations and at Los Duendes’ live performances of the song at Corpus Christi’s music venues. 5 In support, Guzman merely recites evidence fully presented at trial and thoroughly analyzed by the district court through the lens of inconsistent and unclear trial testimony and several resulting credibility determinations. Under these circumstances, we have

In his brief, Guzman argues that the applicable access standard is a “mere 4

possibility,” and thus the district court erred by applying a “reasonable possibility” standard.

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