Ellis V. Diffie

The plaintiff, Everett A. Ellis, appeals from the decision of the district court, sitting as trier of fact, against him on his copyright infringement claim. Ellis claims that the song recorded by Joe Diffie entitled "Prop Me Up Beside the Jukebox (If I Die)" [hereinafter "Prop Me Up"] is copied in substantial part from Ellis's song entitled "Lay Me Out By the Jukebox When I Die" [hereinafter "Lay Me Out"]. The district court found that although the choruses of the songs were substantially similar to one another, Ellis did not show that the defendants had "access" to his song; moreover, the defendants presented evidence of independent creation of "Prop Me Up." Because the district court applied the law correctly, and its findings of fact are reversible only for clear error, we AFFIRM the district court's decision for the defendants. *fn1