Topics: Appellate Review

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UNITED STATES V. DUFFY, 454 F.2d 809 (5th Cir. 1972)
[Charge: transporting a motor vehicle in interstate commerce knowing it to have been stolen]
Both the local police officer and the F.B.I. agent testified that the trunk of the stolen car contained two suitcases. Found inside one of the suitcases, according to the witnesses, was a white shirt imprinted with a laundry mark reading “D‑U‑F”. The defendant objected to the admission of testimony about the shirt and asked that the government be required to produce the shirt.1 The trial judge overruled the objection and admitted the testimony. This ruling is assigned as error.

The appellant argues that the admission of the testimony violated the “Best Evidence Rule”. According to his conception of the “Rule”, the Government should have been required to produce the shirt itself rather than testimony about the shirt. This contention misses the import of the “Best Evidence Rule”.
... Although the phrase “Best Evidence Rule” is frequently used in general terms, the “Rule” itself is applicable only to the proof of the contents of a writing. [JB: this is a pre-FRE case. The FRE has expanded the “best evidence” rule to include more than just writings.]
When the disputed evidence, such as the shirt in this case, is an object bearing a mark or inscription, and is, therefore, a chattel and a writing, the trial judge has discretion to treat the evidence as a chattel or as a writing. … In the instant case, the trial judge was correct in allowing testimony about the shirt without requiring the production of the shirt. Because the writing involved in this case was simple, the inscription “D‑U‑F”, there was little danger that the witness would inaccurately remember the terms of the “writing”. Also, the terms of the “writing” were by no means central or critical to the case against Duffy. The crime charged was not possession of a certain article, where the failure to produce the article might prejudice the defense. The shirt was collateral evidence of the crime. Furthermore, it was only one piece of evidence in a substantial case against Duffy.

* * * Affirmed.

SEILER v. LUCASFILM 808 F.2d 1316 (1987)
FARRIS, Circuit Judge:
Lee Seiler, a graphic artist and creator of science fiction creatures, alleged copyright infringement by George Lucas and others who created and produced the science fiction movie “The Empire Strikes Back.” Seiler claimed that creatures known as “Imperial Walkers” which appeared in The Empire Strikes Back infringed Seiler's copyright on his own creatures called “Garthian Striders.” The Empire Strikes Back appeared in 1980; Seiler did not obtain his copyright until 1981.
Because Seiler wished to show blown‑up comparisons of his creatures and Lucas' Imperial Walkers to the jury at opening statement, the district judge held a pre‑trial evidentiary hearing. At the hearing, Seiler could produce no originals of his Garthian Striders nor any documentary evidence that they existed before The Empire Strikes Back appeared in 1980. The district judge, applying the best evidence rule, found that Seiler had lost or destroyed the originals in bad faith under Fed.R.Evid. 1004(1) and denied admissibility of any secondary evidence, even the copies that Seiler had deposited with the Copyright Office. With no admissible evidence, Seiler then lost at summary judgment.
Seiler contends that he created and published in 1976 and 1977 science fiction creatures called Garthian Striders. In 1980, George Lucas released The Empire Strikes Back, a motion picture that contains a battle sequence depicting giant machines called Imperial Walkers. In 1981 Seiler obtained a copyright on his Striders, depositing with the Copyright Office “reconstructions” of the originals as they had appeared in 1976 and 1977.
Seiler contends that Lucas' Walkers were copied from Seiler's Striders which were allegedly published in 1976 and 1977. Lucas responds that Seiler did not obtain his copyright until one year after the release of The Empire Strikes Back and that Seiler can produce no documents that antedate The Empire Strikes Back....
The best evidence rule embodied in Rules 1001‑1008 represented a codification of longstanding common law doctrine. Dating back to 1700, the rule requires not, as its common name implies, the best evidence in every case but rather the production of an original document instead of a copy. Many commentators refer to the rule not as the best evidence rule but as the original document rule.

We hold that Seiler's drawings were “writings” within the meaning of Rule 1001(1); they consist not of “letters, words, or numbers” but of “their equivalent.” To hold otherwise would frustrate the policies underlying the rule and introduce undesirable inconsistencies into the application of the rule....
The modern justification for the rule has expanded from prevention of fraud to a recognition that writings occupy a central position in the law. When the contents of a writing are at issue, oral testimony as to the terms of the writing is subject to a greater risk of error than oral testimony as to events or other situations. The human memory is not often capable of reciting the precise terms of a writing, and when the terms are in dispute only the writing itself, or a true copy, provides reliable evidence. To summarize then, we observe that the importance of the precise terms of writings in the world of legal relations, the fallibility of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplication are the concerns addressed by the best evidence rule....
Viewing the dispute in the context of the concerns underlying the best evidence rule, we conclude that the rule applies. McCormick summarizes the rule as follows: [I]n proving the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent. McCormick on Evidence s 230, at 704.
The contents of Seiler's work are at issue. There can be no proof of “substantial similarity” and thus of copyright infringement unless Seiler's works are juxtaposed with Lucas' and their contents compared. Since the contents are material and must be proved, Seiler must either produce the original or show that it is unavailable through no fault of his own. Rule 1004(1). This he could not do.
The facts of this case implicate the very concerns that justify the best evidence rule. Seiler alleges infringement by The Empire Strikes Back, but he can produce no documentary evidence of any originals existing before the release of the movie. His secondary evidence does not consist of true copies or exact duplicates but of “reconstructions” made after The Empire Strikes Back. In short, Seiler claims that the movie infringed his originals, yet he has no proof of those originals.
The dangers of fraud in this situation are clear. The rule would ensure that proof of the infringement claim consists of the works alleged to be infringed. Otherwise, “reconstructions” which might have no resemblance to the purported original would suffice as proof for infringement of the original. Furthermore, application of the rule here defers to the rule's special concern for the contents of writings. Seiler's claim depends on the content of the originals, and the rule would exclude reconstituted proof of the originals' content. Under the circumstances here, no “reconstruction” can substitute for the original.

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