                 United States Court of Appeals,

                          Fifth Circuit.

                          No. 95-20025.

              Scott W. SZABO, Plaintiff-Appellant,

                                v.

          King ERRISSON, et al., Defendants-Appellees.

                          Nov. 10, 1995.

Appeal from the United States District Court for the Southern
District of Texas.

Before REYNALDO G. GARZA, BARKSDALE and EMILIO M. GARZA, Circuit
Judges.

     EMILIO M. GARZA, Circuit Judge:

     Plaintiff Scott W. Szabo appeals the district court's grant of

the defendants' motion for summary judgment, and the court's denial

of his motion for partial summary judgment.    We reverse in part,

affirm in part, and remand for further proceedings.

                                I

     Szabo, a musician and songwriter, composed an original music

composition titled "Man v. Man."       Szabo then filed a single

copyright registration with the United States Copyright Office for

a collection of his songs titled "Scott Szabo's Songs of 1991."1

     1
      See 37 C.F.R. § 202.3(b)(3)(i)(B) (providing for copyrights
of unpublished works as a "collection"). A collection or
collective work is defined as "a work, such as a periodical
issue, anthology, or encyclopedia, in which a number of
contributions, constituting separate and independent works in
themselves, are assembled into a collective whole." 17 U.S.C. §
101. A collection is also a "compilation" for copyright
purposes. See id. ("A "compilation' is a work formed by the
collection and assembling of preexisting materials or of data
that are selected, coordinated, or arranged in such a way that
the resulting work as a whole constitutes an original work of

                                1
Although    "Man   v.   Man"    was   not    specifically     listed   on   the

registration, it was on the tape of "Scott Szabo's Songs of 1991"

that Szabo deposited with the Copyright Office pursuant to his

registration.

       A year later, King Errisson, a recording artist and musician,

recorded his version of "Man v. Man," which he titled "Man."

Errisson filed a copyright application for "Man," and the song was

then    manufactured    and    distributed     by   Ichiban    Records,     Inc.

("Ichiban").

       Szabo filed suit against defendants Errisson, Nassau Music,

Inc., d/b/a Erisong Records, d/b/a Koson's Music (collectively

referred to as "Errisson"), and Ichiban, asserting that Errisson

had infringed upon his copyright and that Ichiban was vicariously

liable for Errisson's acts.           Szabo moved for partial summary

judgment on the issue of liability, asserting that there was no

genuine issue of material fact because Errisson admitted that he



authorship. The term "compilation' includes collective works.");
Heyman v. Salle, 743 F.Supp. 190, 192 (S.D.N.Y.1989) ("Those
compilations which consist of contributions which themselves
constitute "works' capable of copyright are called collective
works.").

            Section 202.3(b)(3)(i)(B) also provides that multiple
       unpublished works will be considered a "collection" if:
       "(1) The elements are assembled in an orderly form; (2) the
       combined elements bear a single title identifying the
       collection as a whole; (3) the copyright claimant in all of
       the elements, and in the collection as a whole, is the same;
       and (4) all of the elements are by the same author." 37
       C.F.R. § 202.3(b)(3)(i)(B). "Scott Szabo's Songs of 1991"
       satisfies these requirements because it was assembled in an
       orderly form with a single title identifying the collection
       as a whole, and Szabo is the sole author and copyright
       claimant of the individual songs in the collection.

                                       2
had met Szabo, thus establishing that he had the opportunity to

copy Szabo's song, that his song, "Man," was a derivative of "Man

v. Man," and that the songs were substantially similar.                               The

district court denied Szabo's motion.

     Errisson and Ichiban then filed a motion for summary judgment,

contending that Szabo could not maintain a copyright infringement

suit because he had never copyrighted the specific song, "Man v.

Man." They asserted that Szabo had only copyrighted the collection

titled "Scott Szabo's Songs of 1991," and that the copyright did

not extend to "Man v. Man" because it was not specifically listed

on the copyright registration. The district court granted Errisson

and Ichiban's motion for summary judgment and dismissed the case

with prejudice.

                                           II

     Szabo appeals both the district court's grant of summary

judgment in Errisson and Ichiban's favor, and the court's denial of

his request for partial summary judgment on the issue of liability.

Szabo contends (1) that Errisson and Ichiban's motion for summary

judgment    should    have    been    denied         because     "Man     v.   Man"    is

copyrighted as part of the "collection" copyrighted as "Scott

Szabo's Songs of 1991," and (2) that he is entitled to partial

summary    judgment    on    the   issue        of   liability     because     Errisson

admitted that he had access to "Man v. Man," that "Man" is a

derivative    of     "Man    v.    Man,"       and    that   the    two    works      are

substantially similar.

     We review a district court's grant or denial of summary


                                           3
judgment de novo.      Matagorda County v. Russell Law, 19 F.3d 215,

217 (5th Cir.1994);     United States v. First City Capital Corp., 53

F.3d 112, 115 (5th Cir.1995).     "Summary judgment is appropriate if

the record discloses "that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law.' "       Matagorda County, 19 F.3d at 217 (quoting

FED.R.CIV.P. 56(c)).     We must review the record to ensure that no

genuine issue of material fact remains, drawing all inferences in

the favor of the nonmoving party.       Id. (quoting Reid v. State Farm

Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir.1986)).           "If the

record taken as a whole cannot lead a rational trier of fact to

find for the non-moving party, there is no genuine issue for

trial."     Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538

(1986)).

                                    A

         To establish a claim for copyright infringement, a plaintiff

must prove (1) that he owns a valid copyright and (2) that the

alleged infringer copies his copyrighted material.2       Apple Barrel

Productions, Inc. v. Beard, 730 F.2d 384, 387 (5th Cir.1984).         The

first issue before us is whether a copyright of a "collection" of

individual songs, whose titles are not individually listed on the

copyright     registration,   extends   copyright   protection   to   the

     2
      "Copyright ownership is shown by proof of originality and
copyrightability in the work as a whole and by compliance with
applicable statutory formalities." Engineering Dynamics, Inc. v.
Structural Software, Inc., 26 F.3d 1335, 1340 (5th Cir.1994)
(citation omitted).

                                    4
collection as a whole and to the individual songs, or just to the

collection as a whole.    The district court held that because the

individual songs were not specifically listed on the copyright

registration, the copyright only protected the collection as a

whole and granted summary judgment against Szabo. We disagree, and

hold that a copyright of a collection of unpublished works protects

the individual works that are copyrightable,3 regardless of whether

they are individually listed on the copyright certificate.

     The language of the Copyright Act, the regulations issued

pursuant to it, and a circular published by the Copyright Office

are instructive, though not definitive, in answering this issue of

first impression.   Section 202.3(b)(3)(i)(B) of Title 37 provides

that multiple unpublished works may be registered as a collection

if the works meet certain requirements.4    This section provides

that "[r]egistration of an unpublished "collection' extends to each

copyrightable element in the collection."      Section 103 of the

Copyright Act provides that "[t]he copyright in a compilation or

derivative work extends only to the material contributed by the

author of such work." (emphasis added). Circular 56, published by

the Copyright Office to explain the process for registering sound


     3
      Section 102 of the Copyright Act provides that copyright
protection is available for "original works of authorship"
including literary, musical, dramatic and other types of works.
17 U.S.C. § 102(a). However one cannot copyright an "idea,
procedure, process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such work."
Id. § 102(b).
     4
      See supra note 1.

                                 5
recordings,    provides        that    "[a]lthough         registration     for    an

unpublished    collection       covers       all    the    selections,     only   the

collection    title     will    appear       in     the   catalog   of    copyright

registrations;      the individual titles are not indexed."                    These

sections make it clear that the copyright of a collection can

protect the individual components of the collection.                     But they do

not answer the question of whether the individual components must

be specifically listed on the copyright registration to qualify for

such protection.

     The cases addressing this issue hold that when one copyrights

a collection, the copyright extends to each individual work in the

collection even though the names of each work are not expressly

listed in the copyright registration.                     One district court was

presented a fact situation almost identical to this case.                         See

Sylvestre v. Oswald, 1993 WL 179101 (S.D.N.Y. May 18, 1993).                      In

Sylvestre, the plaintiffs had a copyright for a collection of songs

titled "Cherry Bomb." They brought a copyright infringement action

alleging that the defendants had infringed their copyright on

"Heaven,"    one   of   the    songs   in     the    "Cherry   Bomb"     collection.

Although "Heaven" was not specifically listed on the plaintiff's

copyright registration, it was on the "Cherry Bomb" tape that the

plaintiffs deposited with their application for registration.                     Id.

at *1.   The defendants argued that the copyright for "Cherry Bomb"

did not protect "Heaven," since "Heaven" was not specifically

listed on the copyright registration. The district court held that

the title "Cherry Bomb" extended registration to "Heaven" because


                                         6
"Heaven" was part of a collection of unpublished works.                         Id. at *2.

The   district      court     found   that        the    plaintiffs       had    met    the

requirements in § 202.3(b)(3)(i)(B) of Title 37 for registering

unpublished works as a collection and in light of the "lenient

nature      of    the      registration         requirements,"         concluded        that

registering       the   collection        was     sufficient      to     copyright      the

individual songs as well as the collection as a whole.                          Id.

      In    a    similar    case,   the    Third        Circuit   held    that     if   the

individual items contributed by the author of a collection or

compilation       are   copyrightable,          then     the   registration       of    the

compilation or collection also protects the individual items.                           See

Educational Testing Services v. Katzman, 793 F.2d 533, 539 (3d

Cir.1986).       Educational Testing Services ("ETS") is the author and

administrator of testing programs such as the Scholastic Aptitude

Test.      ETS registers its tests for copyright under "secure test"

registration which "suspends the requirement to deposit copies of

the work, and requires instead that registrants of secure tests

need only deposit a sufficient portion or a description of the test

sufficient to identify it."                Id. at 538 (citing 37 C.F.R. §

202.20(c)(2)(vi)).           Under this procedure, the Copyright Office

examined the tests and then returned them to ETS, leaving only the

front and back covers of the tests on deposit.                          Citing section

103(b) of the Copyright Act,5 the court found that the statute is


      5
      Section 103(b) of the Copyright Act states that "[t]he
copyright in a compilation or derivative work extends only to the
material contributed by the author of such work." 17 U.S.C. §
103(b).

                                            7
premised on the idea that "the copyright in a compilation extends

to the constituent material contributed by the author"; therefore,

ETS's individual questions, of which the tests were comprised, were

protected by the copyright of the tests.     Id. at 539.   The fact

that the individual test questions were neither listed on the

copyright registration nor on permanent deposit with the Copyright

Office did not affect their copyright status.

     Applying the holding of Educational Testing Services, another

court has held that photographs in a copyrighted book which were

taken by the author of the book were protected as an original work

contributed by the author and part of a copyrighted work.       See

Heyman v. Salle, 743 F.Supp. 190, 193 (S.D.N.Y.1989).

     In light of the statutory language and the preceding cases, we

hold that the individual songs included in the collection "Scott

Szabo's Songs of 1991" are protected by the copyright of the

collection as a whole.    It is irrelevant to its copyright status

that "Man v. Man" was not specifically listed on the copyright

registration for "Scott Szabo's Songs of 1991."    Because we have

concluded that "Man v. Man" was copyrighted, Errisson and Ichiban

are not entitled to judgment as a matter of law.     Therefore, we

reverse the district court's grant of summary judgment in their

favor.

                                  B

         Szabo further claims he is entitled to partial summary

judgment on Errisson and Ichiban's liability for copying his

copyrighted material.    To prove actionable copying, the plaintiff


                                  8
first must establish that the "alleged infringer actually used the

copyrighted    material   to    create    his   own   work."    Engineering

Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1340

(5th Cir.1994).   This aspect of copying, known as factual copying,

can usually be inferred from proof that the alleged infringer had

access to the copyrighted material and that the two works are

probatively similar.      Id.    Second, the plaintiff must establish

actionable copying, that is the substantial similarity of two

works.    Id. at 1340-41.

         Errisson's affidavit in opposition to Szabo's motion for

partial summary judgment admits that he had met Szabo and that he

had created his own version of "Man v. Man."                   However, the

affidavit also states that Szabo told Errisson that he would not

have recognized Errisson's song titled "Man" as being derivative of

his song "Man v. Man" had he not known that it was.             Drawing the

inferences in the light most favorable to the non-moving party, we

find that a genuine issue of material fact remains as to whether

"Man v. Man" and "Man" are substantially similar works. Therefore,

we affirm the denial of Szabo's motion for partial summary judgment

and remand for further proceedings.

                                    III

     For the foregoing reasons, we REVERSE in part, AFFIRM in part,

and REMAND for further proceedings.




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