Overman v. Loesser’s Empirical Analysis

Citation profile

49 federal appellate · 1 district ·

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 62 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “The burden of proof, i. e., the risk of non-persuasion, remains on the plaintiff throughout the presentation of the case, unless it is declared to be elsewhere by statute or practice. In a suit for copyright infringement the plaintiff must prove that his copyrighted composition has been copied by the defendant, that is, he has the burden of establishing the requisites of the case. The plaintiff may, however, create an inference of copying by establishing access to the allegedly infringed work by the defendant and similarity or identity between disputed works. But, although there is evidence in the case from which an inference of copying could be drawn, the defendant may rebut it by proof of his prior composition. Since proof of prior composition requires an affirmative offering of evidence by the defendant, there occurs what may be referred to as a shift in the duty of 'going forward'. As Wigmore expresses it (IX Wigmore 2487, p. 280), when 'the proponent has been able * * * to adduce evidence which if believed would make it beyond reason to repudiate the proponent's claim * * * unless the opponent now offers evidence against the claim and thus changes the situation, the (trier of facts) should not be allowed to render a verdict against reason,' i. e., against the evidence. And the stronger the prima facie case established by the plaintiff, the correspondingly more persuasive must the evidence be in rebuttal.”

   2 later decisions quote this exact passage · from the majority
   e.g. Marinelarena v. Barr · Granite Music Corp. v. United Artists Corp.

2. “. . . (T)he evidence of access by the defendant to plaintiff's ideas coupled with the subsequent release by defendant of a product bearing noteworthy similarity to plaintiff's ideas, should be considered as strong and persuasive evidence of copying which requires the defendant to counter with strong convincing and persuasive evidence to the contrary to refute the inference of copying. Mere denial without substantial support would not ordinarily be thought sufficient by the trier of fact.”

   2 later decisions quote this exact passage · from the majority
   e.g. Granite Music Corp. v. United Artists Corp. · John L. Perry Studio, Inc. v. Wernick

3. “the proponent has been able * * * to adduce evidence which if believed would make it beyond reason to repudiate the proponent's claim * * * unless the opponent now offers evidence against the claim and thus changes the situation, the (trier of facts) should not be allowed to render a verdict against reason,”

   1 later decision quote this exact passage · from the majority
   e.g. John L. Perry Studio, Inc. v. Wernick