Play It Again, U.S. Court Tells L.A. Judge in Copyright Suit Over Song

A Los Angeles federal judge who conceded that he has an amateur’s ear for music has been told by the U.S. 9th Circuit Court of Appeals that he should let a jury decide whether the theme from the movie “E.T: The Extra-Terrestrial” was taken from a 1954 song called “Joy.”

U.S. District Judge Harry L. Hupp had dismissed a copyright infringement suit brought in 1984 by musician Les Baxter, the composer of “Joy.” Baxter claimed that composer John Williams, who won an Academy Award for best original music for “E.T.,” had copied the work from him.

In dismissing the case after listening to both musical works, Hupp declared, “This court’s ear is as lay as they come.” But he added that he could not hear “any substantial similarity between” the two compositions.

A three-judge panel of the 9th Circuit reached a different decision after listening to the same music, however, and on Thursday ordered Hupp to reconsider the case. Judge Thomas Tang of Phoenix, joined by Judges Alex Kozinski and Robert Boochever of Pasadena, phrased their decision delicately.

“We do not suggest that our ears are any more sophisticated than those of the District Court,” Tang wrote. “Nevertheless, based on our review of the record, we are persuaded that reasonable minds could differ as to whether ‘Joy’ and ‘Theme From E.T.’ are substantially similar.”