triable issues of fact Archives

Striking a chord: Ninth Circuit revives copyright suit over liturgical music

In a copyright case involving liturgical music, the US Court of Appeals for the Ninth Circuit affirmed in part, reversed in part, and remanded a district court summary judgment after finding triable issues of fact regarding access and similarity between two musical compositions. The Court upheld the exclusion of the plaintiff’s late-disclosed evidence on access. Ambrosetti v. Or. Cath. Press, et al., Case No. 24-2270 (9th Cir. Aug. 27, 2025) (Thomas, Smith, Rayes, JJ.)

Vincent Ambrosetti, a prolific composer of sacred music, alleged that Bernadette Farrell copied his 1980 composition “Emmanuel” when writing her 1993 hymn “Christ Be Our Light.” Both works are widely used in Catholic liturgy, and Farrell’s song has become a staple in worship settings around the globe. Ambrosetti claimed that Farrell had access to “Emmanuel” through her association with Oregon Catholic Press (OCP), which published her work and had received copies of Ambrosetti’s music in the 1980s. He also pointed to striking musical similarities between the two compositions.

The district court excluded key evidence (letters from OCP’s then-publisher Owen Alstott acknowledging receipt of Ambrosetti’s music) as a sanction for late disclosure and barred Ambrosetti from arguing that Farrell accessed “Emmanuel” through those letters. Without that theory of access, and finding no striking similarity, the district court granted summary judgment for OCP. Ambrosetti appealed.

The Ninth Circuit affirmed the exclusion of the letters, finding that the sanctions were not “claim dispositive” since Ambrosetti could still pursue other theories of access and striking similarity. However, the panel reversed the summary judgment ruling, concluding that triable issues of fact existed as to whether Farrell had access to “Emmanuel” based on her and Alstott’s attendance at music conventions where Ambrosetti performed.

The Ninth Circuit also found that there was a genuine issue of material fact as to whether “Emmanuel” and “Christ” were substantially similar. According to Ambrosetti’s expert, 23 similarities in pitch, rhythm, and melodic development supported a finding of substantial similarity, with the district court noting that while individual elements may not be protectable, the unique combination could be. In vacating the summary judgement, the Ninth Circuit noted that summary judgment is “not highly favored” in copyright cases involving musical works where the evidence relied on is primarily competing expert testimony.

The Ninth Circuit upheld the exclusion of Alstott’s letters as a discovery sanction but found a genuine issue of material fact on the issue of access remained, thus precluding summary judgement.

Sour Grapes: Attorney’s Oral Agreement Might Be Okay if Fair, Just, and Fully Advised

The US Court of Appeals for the Ninth Circuit found that a district court erred in declaring on summary judgment that an attorney had no ownership interest in a winery because the alleged agreement was made orally. The Ninth Circuit explained that there were triable issues of fact as to whether the attorney could rebut the presumption against oral agreements by showing that the transaction was fair and just and that the client was fully advised. Schrader Cellars, LLC v. Roach, Case Nos. 23-15862; -15990 (9th Cir. Feb. 21, 2025) (Smith, Bennett, Johnstone, JJ.)

Fred Schrader is the former owner of Schrader Cellars (Cellars). Robert Roach is a Texas attorney who claims to have entered into an oral agreement with Schrader regarding the creation of another company, RBS LLC, which Roach asserts has an ownership interest in Cellars. After Schrader sold Cellars in 2017, Roach sued Schrader in Texas state court, claiming that the sale was improper. In 2021, Cellars filed a lawsuit in the US District Court for the Northern District of California, seeking, among other things, a declaration that Roach did not have any ownership interest in Cellars. Roach asserted various counterclaims.

The district court granted summary judgment on Cellars’ request for declaratory relief and dismissed Roach’s counterclaims. The case proceeded to trial on Cellars’ remaining claim for breach of fiduciary duty. The district court instructed the jury that, as a matter of law, Roach had breached his fiduciary duties to Cellars, so the jury decided only the issue of harm. The jury found that Roach’s breach of fiduciary duty had harmed Cellars during the limitations period but did not award damages because of the “litigation privilege defense.” Roach appealed the summary judgment order.

The Ninth Circuit found that the district court erred in granting Cellars summary judgment. Roach argued that the district court erred in declaring that he had no ownership interest in Cellars via the purported RBS agreement. At summary judgment, Cellars argued that even if Roach’s version of the RBS oral agreement existed, Roach could not enforce it because it violated California Rules of Professional Responsibility, which require written advisories and disclosures. Relying on this provision, the district court concluded that even if an oral argument existed, it was unenforceable, and Roach therefore could not have any ownership interest in Cellars. The district court noted that although “[a]n attorney may rebut the presumption of undue influence by showing that ‘the dealing was fair and just,’ and ‘the client was fully advised[,]’ . . . Roach has made no such effort to rebut this presumption.”

The Ninth Circuit found that the district court erred because there were triable issues of fact concerning whether Roach rebutted the presumption regarding the alleged breach of his client duties. The Court explained that not only did Roach expressly argue fairness before the district court, but the basic facts of the case (when viewed in the light most favorable to Roach) demonstrated that the transaction was fair and just and that [...]

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