THREE BOYS MUSIC CORPORATION v.
212 F.3d 477 (9
D.W. NELSON, Circuit Judge:
In 1994, a jury found that Michael Bolton's 1991 pop hit, "Love Is a Wonderful Thing," in-
fringed on the copyright of a 1964 Isley Brothers' song of the same name. The district court denied
Bolton's motion for a new trial and affirmed the jury's award of $ 5.4 million.
Bolton, his co-author, Andrew Goldmark, and their record companies ("Sony Music") appeal,
arguing that the district court erred in finding that: (1) sufficient evidence supported the jury's find-
ing that the appellants had access to the Isley Brothers' song; (2) sufficient evidence supported the
jury's finding that the songs were substantially similar; (3) subject matter jurisdiction existed based
on the Isley Brothers registering a complete copy of the song; (4) sufficient evidence supported the
jury's attribution of profits to the infringing elements of the song; (5) Sony Music could not deduct
its tax liability; and (6) the appellants' motion for a new trial based on newly discovered evidence
The Isley Brothers, one of this country's most well-known rhythm and blues groups, have been
inducted into the Rock and Roll Hall of Fame. They helped define the soul sound of the 1960s with
songs such as "Shout," "Twist and Shout," and "This Old Heart of Mine," and they mastered the
funky beats of the 1970s with songs such as "Who's That Lady," "Fight the Power," and "It's Your
Thing." In 1964, the Isley Brothers wrote and recorded "Love is a Wonderful Thing" for United
Artists. The Isley Brothers received a copyright for "Love is a Wonderful Thing" from the Register
of Copyrights on February 6, 1964. The following year, they switched to the famous Motown label
and had three top-100 hits including "This Old Heart of Mine."
Hoping to benefit from the Isley Brothers' Motown success, United Artists released "Love is a
Wonderful Thing" in 1966. The song was not released on an album, only on a 45-record as a single.
Several industry publications predicted that "Love is a Wonderful Thing" would be a hit - "Cash
Box" on August 27, 1966, "Gavin Report" on August 26, 1966, and "Billboard" on September 10,
1966. On September 17, 1966, Billboard listed "Love is a Wonderful Thing" at number 110 in a
chart titled "Bubbling Under the Hot 100." The song was never listed on any other Top 100 charts.
In 1991, the Isley Brothers' "Love is a Wonderful Thing" was released
on compact disc.
Michael Bolton is a singer/songwriter who gained popularity in the late 1980s and early 1990s
by reviving the soul sound of the 1960s. Bolton has orchestrated this
soul-music revival in part by
covering old songs such as Percy Sledge's "When a Man Love a Woman" and Otis Redding's "(Sit-
tin' on the) Dock of the Bay." Bolton also has written his own hit songs. In early 1990, Bolton and
Goldmark wrote a song called "Love Is a Wonderful Thing." Bolton released it as a single in April