Positive Black Talk Inc., Doing Business as Take Fo' Records, Doing Business as Take Fo' Publishing, Plaintiff-Counter v. Cash Money Records Inc., Cash Money Records Inc. Terius Gray, Also Known as Juvenile, Defendants-Counter Claimants-Appellees, and UMG Recordings Inc., Universal Records Inc. Merged Into UMG Recordings Inc. Universal Music and Video Distribution Corp. Positive Black Talk Inc., Doing Business as Take Fo' Records, Doing Business as Take Fo' Publishing v. Cash Money Records Inc., Cash Money Records Inc. UMG Recording Inc., Universal Records, Inc. Universal Music and Video Distribution Corp. Terius Gray, Also Known as Juvenile

This appeal arises out of a dispute concerning the popular rap song Back That Azz Up. Plaintiff-Appellant Positive Black Talk, Inc. filed this lawsuit against three defendants, alleging, inter alia, violations of the United States copyright laws. The defendants counterclaimed under the copyright laws, the Louisiana Unfair Trade Practices Act, and theories of negligent misrepresentation. After a jury trial, the district court entered judgment in accordance with the verdict in favor of the defendants on all of Positive Black Talk's claims, as well as on the defendants' non-copyright counterclaims. The district court awarded the defendants attorney's fees only in relation to the successful unfair trade practices counterclaim.

In this consolidated appeal, Positive Black Talk appeals the judgment of the district court on the grounds that the court erred in instructing the jury and in making several evidentiary rulings. The defendants appeal the district court's decision not to award them attorney's fees as the prevailing parties on Positive Black Talk's copyright infringement claim. We AFFIRM.

In 1997, two rap artists based in New Orleans, Louisiana — Terius Gray, professionally known as Juvenile ("Juvenile"), and Jerome Temple, professionally known as D.J. Jubilee ("Jubilee") — each recorded a song that included the poetic four-word phrase "back that ass up." Specifically, with respect to Jubilee, he recorded his song in November 1997 and entitled it Back That Ass Up. In the Spring of 1998, Positive Black Talk, Inc. ("PBT"), a recording company, released Jubilee's Back That Ass Up on the album TAKE IT TO THE ST. THOMAS. Jubilee subsequently performed the song at a number of live shows, including the New Orleans Jazzfest on April 26, 1998.

Turning to Juvenile, at some point during the fall of 1997, Juvenile recorded his song and entitled it Back That Azz Up. In May 1998, Cash Money Records, Inc. ("CMR"), the recording company that produced Juvenile's album 400 DEGREEZ, signed a national distribution contract with Universal Records. Consequently, 400 DEGREEZ, which contained Juvenile's song Back That Azz Up, was released in November 1998. 400 DEGREEZ quickly garnered national acclaim, selling over four million albums and grossing more than $40 million.

In 2000, Jubilee applied for and received a certificate of registration (Form PA) from the United States Copyright Office for the lyrics of Back That Ass Up. Jubilee also obtained a certificate of registration for the lyrics and music (Form SR) in the sound recording of the song. On February 15, 2002, PBT mailed a supplementary application for registration (containing an application, deposit, and fee) to the Copyright Office, stating that PBT should have been listed as the author and copyright claimant on Jubilee's prior PA registration (lyrics only). On the same day, PBT filed this lawsuit in the Eastern District of Louisiana, alleging copyright infringement and the violation of the Louisiana Unfair Trade Practices Act (LUPTA).1 On February 19, 2002, four days after the suit was filed, the Copyright Office received PBT's supplementary registration application.

In response, the defendants filed counterclaims, alleging copyright infringement, violation of LUPTA, and negligent misrepresentation. On February 11, 2003, the defendants filed a motion for summary judgment, in which they argued, inter alia, that the district court should dismiss PBT's lawsuit for lack of subject matter jurisdiction because PBT failed to comply with the statutory requirement that the Copyright Office receive the registration application before a plaintiff may file an infringement suit. The district court denied the motion, reasoning that the defect had been cured and that dismissing the case after a year of litigation, only to have PBT re-file the suit, would be a tremendous waste of judicial resources.

In May 2003, the case proceeded to a jury trial. Although the jury found that PBT proved by a preponderance of the evidence that it owned a copyright interest in the lyrics and music of Jubilee's song Back That Ass Up, it nevertheless found in favor of the defendants on PBT's copyright infringement claim. Specifically, the jury found that: (1) PBT failed to prove that Juvenile or CMR factually copied Back That Ass Up; (2) the defendants proved that CMR and Juvenile independently created Back That Azz Up; and (3) PBT failed to prove that Back That Azz Up is substantially similar to Back That Ass Up.2 The jury also decided against PBT on its non-copyright claim. In addition, the jury found in favor of the defendants on their LUPTA and negligent misrepresentation counterclaims. However, the jury found against the defendants on their copyright infringement counterclaim. Accordingly, the district court entered judgment in favor of the defendants. The court awarded the defendants attorney's fees in relation to their LUPTA counterclaim but not for their successful defense of PBT's copyright infringement claim.

PBT then filed a timely notice of appeal. PBT argues on appeal that the district court erroneously instructed the jury on relevant copyright laws and erred in making several evidentiary rulings.3 The defendants cross-appeal the district court's award of attorney's fees, contending that they are entitled to fees for prevailing against PBT on its copyright claim.4

The district court's subject matter jurisdiction was based on 28 U.S.C. §§ 1331 (federal question) and 1338 (copyright laws). That broad underlying jurisdiction was supplemented by the specific statutory provisions of the copyright laws. Specifically, 17 U.S.C. § 411(a) sets forth the jurisdictional prerequisite that "no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title." 17 U.S.C. § 411(a) (2000); see also Creations Unlimited, Inc. v. McCain, 112 F.3d 814, 816 (5th Cir.1997) (per curiam) ("registration with the copyright office is a jurisdictional prerequisite to filing a copyright infringement suit"). Although some circuits require that a plaintiff actually obtain a certificate from the Copyright Office before bringing suit, the Fifth Circuit requires only that the Copyright Office actually receive the application, deposit, and fee before a plaintiff files an infringement action. See Lakedreams v. Taylor, 932 F.2d 1103, 1108 (5th Cir.1991). Here, the defendants argue that PBT failed to comply with the statutory formality set forth in § 411 (and that the district court therefore lacked jurisdiction over PBT's copyright infringement claim) because PBT filed suit four days before the Copyright Office received its application, deposit, and fee (all of which PBT had mailed on the same day it filed suit).5

We hold, along with the other courts that have considered this matter, that the ultimate judgment is not rendered a nullity in this instance by the district court's refusal to dismiss PBT's suit for want of jurisdiction. Rather, we find that the jurisdictional defect was cured when the Copyright Office received PBT's application, deposit, and fee four days after PBT filed suit.

A number of other courts have found that a plaintiff who files a copyright infringement lawsuit before registering with the Copyright Office may cure the § 411 defect by subsequently amending or supplementing its complaint once it has registered the copyright. See, e.g., M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1488-89 (11th Cir.1990); J. Racenstein & Co., Inc. v. Wallace, 1997 WL 605107, *1-2 (S.D.N.Y. Oct.1, 1997) ("Where an action is commenced without registration being effected, the defect can be cured by subsequent registration, and an appropriate amendment to the complaint may be made to provide the necessary basis for subject matter jurisdiction."); ISC-Bunker Ramo Corp. v. Altech, Inc., 765 F.Supp. 1308, 1309 (N.D.Ill.1990); Haan Crafts Corp. v. Craft Masters, Inc., 683 F.Supp. 1234, 1242 (N.D.Ind.1988); Frankel v. Stein and Day, Inc., 470 F.Supp. 209, 212 (S.D.N.Y.1979). The notion that the supplemental pleading cures the technical defect, notwithstanding the clear language of § 411, is consistent with the principle that technicalities should not prevent litigants from having their cases heard on the merits.6 See 28 U.S.C. § 1653 (2000) (allowing defective allegations of jurisdiction to be amended in the trial or appellate courts); see also Haan Crafts Corp., 683 F.Supp. at 1242.

PBT did not amend its complaint in the court below. Nevertheless, the Supreme Court has held, albeit in a non-copyright case, that failure to amend a complaint in the district court is no bar to finding a jurisdictional defect cured. See Mathews v. Diaz, 426 U.S. 67, 73-76, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). In Diaz, the Supreme Court upheld subject matter jurisdiction over a case in which the plaintiff had not complied with a statutory formality requiring him to file an application with the Secretary of Health, Education, and Welfare before instituting a lawsuit. Id. The Diaz Court stated:

We have little difficulty with Espinosa's failure to file an application with the Secretary until after he was joined in the action. Although 42 U.S.C. § 405(g) establishes filing of an application as a nonwaivable condition of jurisdiction, Espinosa satisfied this condition while the case was pending in the District Court. A supplemental complaint in the District Court would have eliminated this jurisdictional issue; since the record discloses, both by affidavit and stipulation, that the jurisdictional condition was satisfied, it is not too late, even now, to supplement the complaint to allege this fact. Under these circumstances, we treat the pleadings as properly supplemented by the Secretary's stipulation that Espinosa had filed an application.

Id. at 75, 96 S.Ct. 1883 (internal citations and footnotes omitted). Similarly, we consider PBT's noncompliance with § 411 to be cured, even though it did not file a supplemental complaint below.

Our conclusion that subject matter jurisdiction existed in this case is also consistent with the Supreme Court's decision in Caterpillar Inc. v. Lewis, 519 U.S. 61, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996). In Caterpillar, a unanimous Supreme Court held that a procedural-jurisdictional defect under 28 U.S.C. § 1441, which requires complete diversity at the time of removal, had been cured when the non-diverse party dropped out of the case after removal but before trial commenced. 519 U.S. at 73-75, 117 S.Ct. 467. The Court recognized that § 1441's requirement that complete diversity exist at the time of removal was not satisfied because the case was removed before the non-diverse party dropped out. However, the Court found that the § 1441 defect should be excused — even though the "statutory flaw ... remained in the unerasable history of the case" — because: (1) complete diversity jurisdiction ultimately existed before judgment and (2) the case had already proceeded to judgment, making "considerations of finality, efficiency, and economy ... overwhelming." Id.; see also Grupo Dataflux v. Atlas Global Group, 541 U.S. 567, 124 S.Ct. 1920, 1924-28, 158 L.Ed.2d 866 (2004) (reemphasizing that the Court's holding in Caterpillar pertained to curing a statutory procedural-jurisdictional defect under § 1441).

The Court's reasoning in Caterpillar applies to PBT's copyright infringement lawsuit because 28 U.S.C. § 1441 and 17 U.S.C. § 411 both have a substantive requirement as well as a timing requirement. Section 1441 substantively requires complete diversity, which must exist at the time of removal. In Caterpillar, although the substantive requirement of complete diversity was ultimately satisfied, the timing requirement was not. However, because of judicial economy and finality concerns, the Court excused the failure to comply with the timing element of the statute. Similar to the removal statute at issue in Caterpillar, § 411 has a substantive component and a timing component — it requires the filing of a registration application, which must occur prior to the institution of the suit. As in Caterpillar, the substantive requirement here was satisfied (because PBT filed a registration application, deposit, and fee), but the timing element was not (because the Copyright Office received the materials after PBT filed suit). Thus, Caterpillar suggests that because PBT satisfied the substantive requirement of § 411 before final judgment, "considerations of finality, efficiency, and economy" counsel us to disregard the technical defect in timing in this particular case. Caterpillar Inc., 519 U.S. at 75, 117 S.Ct. 467. Accordingly, the § 411 defect was cured, and subject matter jurisdiction existed.

To establish a claim for copyright infringement, a plaintiff must prove that: (1) he owns a valid copyright and (2) the defendant copied constituent elements of the plaintiff's work that are original. Gen. Universal Sys. v. Lee, 379 F.3d 131, 141 (5th Cir.2004); Szabo v. Errisson, 68 F.3d 940, 942 (5th Cir.1995) (citing Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 387 (5th Cir.1984)). To establish actionable copying (i.e., the second element), a plaintiff must prove: (1) factual copying and (2) substantial similarity. Bridgmon v. Array Sys. Corp., 325 F.3d 572, 576 (5th Cir.2003). Factual copying "can be proven by direct or circumstantial evidence." Id."As direct evidence of copying is rarely available, factual copying may be inferred from (1) proof that the defendant had access to the copyrighted work prior to creation of the infringing work and (2) probative similarity."7 Peel & Co. v. Rug Market, 238 F.3d 391, 394 (5th Cir.2001). If a plaintiff establishes an inference of factual copying (by showing access and probative similarity), the defendant can rebut that inference, and thus escape liability for infringement, if he can prove that he independently created the work. Id. at 398; Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1375 (5th Cir.1981). If a plaintiff has established factual copying (and the defendant does not establish independent creation), the plaintiff must also prove that the copyrighted work and the allegedly infringing work are substantially similar. Bridgmon, 325 F.3d at 577.

PBT argues that the district court erred in instructing the jury with respect to probative similarity, substantial similarity, and independent creation. Where the challenging party failed to preserve the error with proper objections, we review the district court's jury instructions only for plain error. Russell v. Plano Bank & Trust, 130 F.3d 715, 719-21 (5th Cir.1997). The defendants argue that PBT did not preserve any alleged error because PBT did not make specific, on-the-record objections to the instructions in question. PBT counters that it made general objections to the instructions on the record, and that it made more specific objections off the record during a conference in chambers.

We agree with the defendants that PBT failed to preserve the error with respect to the jury instructions. See Fed.R.Civ.P. 51(c)(1) ("A party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds of the objection."). First, PBT's on-the-record objections pertained only to the instructions as a whole, rather than indicating specific objections, and therefore failed to comply with Rule 51. See Russell, 130 F.3d at 719-20 ("We have repeatedly held that a general objection to the district court's jury instructions is insufficient to satisfy Rule 51."). Second, PBT's off-the-record objections, regardless of how specific, cannot satisfy Rule 51's requirements. See id. at 720 n. 2 ("Obviously, we cannot consider off-the-record objections to jury instructions not subsequently made part of the record...." (quoting King v. Ford Motor Co., 597 F.2d 436, 440 n. 3 (5th Cir.1979))). Thus, PBT did not preserve the error, and we review the jury instructions for plain error.

For PBT to prevail under the plain error standard, it must show "that the instructions made an obviously incorrect statement of law that was `probably responsible for an incorrect verdict, leading to substantial injustice.'" Hernandez v. Crawford Bldg. Material, 321 F.3d 528, 531 (5th Cir.2003) (quoting Tompkins v. Cyr, 202 F.3d 770, 784 (5th Cir.2000)). Moreover, "[i]n reviewing jury instructions for plain error, we are exceedingly deferential to the trial court." Tompkins, 202 F.3d at 784.

PBT first argues that the district court erroneously instructed the jury with respect to the definition of "probative similarity." The court instructed that: "Probative similarity means that the songs, when compared as a whole, demonstrate that Juvenile or CMR appropriated Jubilee's song." PBT avers that this definition is misleading because, by including the phrase "when compared as a whole," it suggests that the jury, when deciding whether factual copying occurred, must look to see whether Back That Ass Up, as a whole, is sufficiently similar to Back That Azz Up, as a whole. As PBT points out, however, probative similarity requires only that certain parts of the two works are similar, such that the jury may infer factual copying in light of the defendant's access to the plaintiff's work. Regardless, PBT's claim fails for at least three reasons.

First, we cannot say that the jury instruction on probative similarity is "an obviously incorrect statement of law." Hernandez, 321 F.3d at 531. The definition of probative similarity in the jury instruction is taken directly from a Fifth Circuit case. See Peel & Co., 238 F.3d at 397 ("The second step in deciding whether Peel has raised a genuine issue of material fact regarding factual copying ... requires determining whether the rugs, when compared as a whole, are adequately similar to establish appropriation." (emphasis added)). Accordingly, PBT did not show plain error because the definition of probative similarity was not "obviously incorrect." Hernandez, 321 F.3d at 531.

We note that the district court's reliance on Peel to define probative similarity is understandable given that other Fifth Circuit opinions offer little additional guidance on the question. Peel is undoubtedly correct inasmuch as it instructs that the ultimate issue with respect to probative similarity is whether the similarities between the two works suggest that the later-created work was factually copied. Peel should not be read to suggest that a jury may draw an inference of factual copying only if the whole of the defendant's work largely replicates the whole of the allegedly-copied work.8 Rather, the "when compared as a whole" language in Peel regarding probative similarity means that the jury must consider the whole of the first work (including both copyrightable and non-copyrightable parts) and the whole of the second work and then compare the two works, looking for any similarities between their constituent parts. This reading of Peel is not inconsistent with any Fifth Circuit precedent and is consistent with other courts' conceptualizations of probative similarity. See, e.g., Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 832 n.7 (10th Cir.1993); O.P. Solutions, Inc. v. Intellectual Prop. Network, Ltd., No. 96 Civ. 7952, 1999 WL 47191, at *3 (S.D.N.Y. Feb. 2, 1999).9

In order to avoid confusion, a district court should explain that the purpose of the probative similarity inquiry is to determine whether factual copying may be inferred and that this inquiry is not the same as the question of substantial similarity, which dictates whether the factual copying, once established, is legally actionable. See Eng'g Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1340 & n. 4 (5th Cir.1994) (adopting the term "probative similarity") (citing Alan Latman, "Probative Similarity" as Proof of Copying: Toward Dispelling Some Myths in Copyright Infringement, 90 COLUM. L. REV. 1187 (1990)); see also Bridgmon, 325 F.3d at 576 & n. 7, 577 (noting that "probative" and "substantial" similarity are analytically distinct concepts). Along these lines, a jury may find that two works are probatively similar if it finds any similarities between the two works (whether substantial or not) that, in the normal course of events, would not be expected to arise independently in the two works and that therefore might suggest that the defendant copied part of the plaintiff's work. See Ringgold v. Black Entm't Television, Inc., 126 F.3d 70, 75 (2d Cir.1997) ("[P]robative similarity [] requires only the fact that the infringing work copies something from the copyrighted work; ... substantial similarity[] requires that the copying is quantitatively and qualitatively sufficient to support the legal conclusion that infringement (actionable copying) has occurred."); 4 NIMMER § 13.01[B], at 13-12 ("[W]hen the question is copying as a factual matter, then similarities that, in the normal course of events, would not be expected to arise independently in the two works are probative of defendant's having copied as a factual matter from plaintiff's work."); Latman, 90 COLUM. L. REV. at 1214 (noting that probative similarities are "such similarities between the works which, under all the circumstances, make independent creation unlikely [;][s]uch similarities may or may not be substantial.... Rather, they are offered as probative of the act of copying....").

The second reason PBT's claim — that the language "when compared as a whole" in the instruction on probative similarity constituted reversible error — fails is because the district court offered guidance to the jury that a finding of factual copying only requires similarity between portions of the plaintiff's work, not overall similarity. For example, when the court first introduced the element of factual copying (about ten sentences before giving the instruction defining probative similarity), the court stated, "[t]he first question, factual copying, asks whether Juvenile and CMR actually copied constituent elements of D.J. Jubilee's song in Juvenile's song Back That Ass Up." (emphasis added). The court also instructed the jury that: "If you conclude that factual copying did occur, that is that Juvenile/CMR copied parts of Jubilee's song Back That Ass Up, [the defendants may still prevail if they demonstrate independent creation]." (emphasis added). Given these instructions, we cannot agree that the definition of probative similarity of which PBT complains was misleading in this particular instance.

Third, the jury's findings on independent creation and substantial similarity negate any reasonable possibility that the probative similarity instruction was "probably responsible for an incorrect verdict." Tompkins, 202 F.3d at 784 (citing ARA Auto. Group v. Cent. Garage, Inc., 124 F.3d 720, 730 (5th Cir.1997)). Even if the jury misunderstood its task in evaluating probative similarity as a result of the instruction, it found that Juvenile independently created Back That Azz Up and that the two songs are not substantially similar. Those findings prevent PBT from recovering, regardless of the extent to which it proved factual copying occurred.

2. Inverse Relationship Between Access and Probative Similarity

PBT also complains that it requested an instruction on the inverse relationship between the degree of access an alleged infringer had to the original work and the degree of similarity needed to show that copying actually occurred. Specifically, PBT asked that the jury be instructed that "PBT does not have to show as much similarity when a high degree of access is shown." The defendants counter that this inverse-relationship doctrine is not the law in the Fifth Circuit. PBT's argument fails for several reasons.

The defendants are correct that this circuit has not expressly adopted the principle that there is an inverse relationship between the requisite proof of access and similarity, and there is no need to do so here. However, this doctrine finds support in other circuits. See, e.g., Swirsky v. Carey, 376 F.3d 841, 844-45 (9th Cir.2004) ("Where a high degree of access is shown, we require a lower standard of proof of [probative] similarity."); Jorgensen v. Epic/Sony Records, 351 F.3d 46, 56 (2d Cir.2003) ("There is an inverse relationship between access and probative similarity such that the stronger the proof of similarity, the less the proof of access is required." (internal quotation marks omitted)); Tienshan v. C.C.A. Int'l (N.J.), Inc., 895 F.Supp. 651, 656 (S.D.N.Y.1995) (noting: "given that access has been conceded, the level of probative similarity necessary to show physical copying is diminished"); see also 4 NIMMER § 13.03[D], at 13-79 ("[T]he stronger the proof of similarity, the less the proof of access that is required."). Thus, other courts have held that a plaintiff who shows a high degree of similarity may satisfy the factual copying requirement with a lesser showing of access,10 and, conversely, a plaintiff who shows a greater degree of access may satisfy the factual copying element with a lesser degree of probative similarity.11

Regardless, the fact that this circuit has not explicitly adopted this doctrine means that the district court did not wrongly decline to give the jury instruction, and PBT's argument therefore fails. Finally, as we noted in the discussion of the definition of probative similarity, any error with respect to factual copying is rendered harmless by the jury's finding on substantial similarity, such that we cannot say that it was probably responsible for an incorrect verdict.

PBT also argues that the district court erred in instructing the jury as to the defendant's burden of proof in establishing independent creation. Specifically, PBT argues that the court instructed the jury that it must find independent creation by a preponderance of the evidence, whereas the allegedly correct burden of proof is clear and convincing evidence. On the issue of independent creation, the court charged the jury:

If you conclude that factual copying did occur, that is that Juvenile/CMR copied parts of Jubilee's song Back That Ass Up, the defendants may still rebut PBT's claims that Juvenile copied D.J. Jubilee's song by introducing evidence that Juvenile or CMR independently created Juvenile's song. If defendants offer evidence of independent creation, PBT has the burden of proving that the defendants in fact copied the protected material.

This instruction is silent as to whether the burden of proof must be met by a preponderance of the evidence or by clear and convincing evidence. However, the special verdict form asked: "Has CMR/Juvenile proved by a preponderance of the evidence that CMR/Juvenile independently created the song Back That Azz Up?"

The jury instruction on independent creation did not constitute plain error. First, it cannot be considered an obviously incorrect statement of the law. PBT points to no Fifth Circuit opinion, and in fact none exists, stating that a defendant must prove independent creation by clear and convincing evidence. The only circuit opinion PBT cites is Overman v. Loesser, 205 F.2d 521 (9th Cir.1953). The Ninth Circuit, however, has expressly rejected an interpretation of Overman that would require independent creation to be proven by clear and convincing evidence. Granite Music Corp. v. United Artists Corp., 532 F.2d 718, 723-24 (9th Cir.1976). A defendant need only prove independent creation by a preponderance of the evidence to rebut the presumption of factual copying that arises from a plaintiff's evidence of access and probative similarity. See id. Thus, there was no legal error.

Moreover, the district court's instruction on independent creation did not likely result in an incorrect verdict because a defendant need only prove independent creation if the plaintiff successfully establishes factual copying. Here, the jury determined that Juvenile did not factually copy Jubilee's song when it found that the two songs were not probatively similar. In addition, the jury's finding on substantial similarity also would have precluded PBT from recovering regardless of the jury's finding on independent creation. Thus, PBT's argument fails under the plain error standard.

PBT's last complaint regarding jury instructions relates to the district court's instruction on the definition of "substantially similar." The jury was instructed that:

Two works are substantially similar if the expression of ideas in the plaintiff's copyrighted work and the expression of ideas in the defendant's work that are shared are substantially similar. The test for expression of ideas is whether the intended audience would find the total concept and feel of the two songs to be substantially similar.

PBT complains that this instruction inadequately explains to the jury the meaning of substantial similarity and is merely tautological, essentially stating nothing more than that two works are substantially similar if they are substantially similar. Furthermore, PBT argues that the instruction erroneously misleads the jury to conclude that they must determine whether the whole of the two works are substantially similar. Substantial similarity, PBT asserts, necessitates only that parts of the songs are similar and that the similar parts are qualitatively so important that the copying should be legally actionable.12

Addressing PBT's latter argument first, we note that the jury instruction, carefully parsed, did not unfairly suggest that the jury must compare the two works as a whole to determine if there is overall similarity between the two songs. The instruction states that the "[t]wo works are substantially similar if the expression of ideas in the plaintiff's copyrighted work and the expression of ideas in the defendant's work that are shared are substantially similar." (emphasis added). The phrase "that are shared" correctly indicates that the jury should compare the parts of the two songs that are similar in determining substantial similarity. We note that the instruction given tracks the language suggested in Fifth Circuit opinions. See Creations Unlimited, Inc., 112 F.3d at 816; see also Bridgmon, 325 F.3d at 576. In Creations Unlimited, we stated: "To determine whether an instance of copying is legally actionable, a side-by-side comparison must be made between the original and the copy to determine whether a layman would view the two works as `substantially similar.'"13 112 F.3d at 816. Thus, whether two works are substantially similar is a question for the jury itself to determine by examining the actual works in question. See id. Here, the jury heard the two songs and made a determination that they were not substantially similar. Given the parallel between the jury instructions and the language in these cases, the jury instruction was not error.