Les Baxter v. John Williams Lawsuit Recap

by Lukas Kendall

We recently printed a letter asking about a lawsuit that happened a while back involving Les Baxter and John Williams over the theme to E.T.

Reader Robert Delaney was helpful enough to pull the court data as to exactly what happened. However, he accessed them through the Lexis-Nexis database which is a copyrighted presentation of the public records, so I'm not at liberty to reprint the full legal document here.

However, longtime FSM columnist Mike Murray is acquainted with these records due to his profession and was kind enough to provide a summary. The following then is MY interpretation of Mike's summary of the court history, as well as Robert Delaney's email to me of what he read. (In other words, in this column about plagiarizing, I'm plagiarizing our trusted correspondents below!)

1) November 2, 1983: Les Baxter sued John Williams, claiming that the theme to E.T. was plagiarized from a selection of Baxter's "Passions" 10-inch LP, "Joy," which dates from 1954 (released on Capitol Records). In addition to Williams, identified as "John T. Williams," MCA, Inc., Universal City Studios, Inc, Music Corporation of America, MCA Records, Inc., and Merchandising Corporation of America were named as defendants.

Williams did concede that he was familiar with "Joy" and had performed it in concert. However, in 1984 the judge ruled that to the layman, "Joy" and E.T. were not substantially similar, and it was not necessary to submit the case to a jury trial.

2) 1985: Baxter appealed, saying that in a technical field like music, laymen may not know what to listen for and that he should be allowed to have experts point out to a jury where the similarities are. This appellate court agreed that the lower Federal District court was in error when it granted summary judgment dismissing Baxter's copyright infringement suit against Williams etc as a matter of law. The appellate court reversed the District court and remanded the case back for a jury trial. That was a 1987 decision.

3) 1987: Williams and other defendants appealed that decision to the US Supreme Court which denied certiori (i.e. refused to hear it) (Williams v.Baxter, 484 US 954 {1987)).

4) The case proceeded to jury trial after which the jury found that the portion of Baxyer's song that was substantially similar to Williams' E.T. Theme was not original material protected by copyright.

5) 1990: That jury verdict was appealed and affirmed by the Ninth Circuit (Federal) Court of appeals with a citation of Baxter v. MCA, INC et al, 907 F.2d 154.

In other words, Williams "walked."

But wait, that's not all...!

Reader Thomas Morrow was kind enough to send the FSM office a tape of the Baxter composition, an interesting seven-movement piece broken down as "Despair," "Ecstasy," "Hate," "Lust," "Terror," "Jealousy" and "Joy."

So, what's the deal? I can understand how Baxter must have freaked when he heard E.T. because there is a melodic gesture in Williams's theme that is also found in "Joy." If you think of the theme from E.T. (the most famous theme, the flying music), it's the part where, after the first two notes outline a fifth, the melody descends: da-da-da-da-DA-da. (In the Baxter, this motive is preceded by an upward motion of a fourth, so the contour is the same, but the pitches are different.) Baxter probably also went bananas because "Joy" has a "big finish" where the motive that's similar to E.T. is slowed down and orchestrated in a way similar to E.T.'s "big finish."

Anyway, MY opinion, and solely my opinion, based on judging the two pieces of music, is that the judicial system came up with the correct verdict in siding with Williams. It's a coincidence. I understand that Williams was very convincing to the jury when he described the rather scientific method in which he came up with the E.T. theme (it cannily outlines a sensation of flight). I also understand he played piano on "Joy" in concert in the '60s, but what did he do, sit there and think, aha! I'll copy Les Baxter!

There's been a lot of film music which truly is plagiarized of copyrighted material but this isn't it. In E.T. alone, there's more of an argument to be made for similarity between one of the action sequences and a Howard Hanson symphony. But "Joy" is a zany, short, '50s, almost bachelor pad piece for female voice and jazzy orchestra and E.T. is a film score reflecting the emotional bond and journey of a boy and an alien. They happen to share around six notes of a melodic line (most of it step-wise motion -- in other words, part of a scale), and some coincidences of orchestration and variation. That's it. It's too bad that this probably disturbed Les Baxter to no end and that a lot of time and money was spent litigating... but that's life.

Disclaimer: I am not an attorney. This column is not meant to be a definitive record or interpretation of a legal proceeding. If anybody identifies anything as incorrect in the above, please contact:

MailBag@filmscoremonthly.com