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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA


YVETTE MARINE,
          Plaintiff,

v.

VIRGIN RECORDS AMERICA,
INC.,
          Defendant,


NO. CV 91-2158 AWT

JURY INSTRUCTIONS GIVEN

The instructions hereto are the instructions given to the jury on
this date. A copy of these instructions has been provided to the
jury.

 Dated: AUG 12 1993

 A. WALLACE TASH~~~IMA
 United States District Judge

 AWT - Revised 5/91

 GENERAL CIVIL INSTRUCTIONS

 Members of the Jury:

 Now that you have heard the evidence and the argument of
counsel, it becomes my duty to instruct you on the law that
applies to this case.

 1. Function of the Jury. It is now your duty to find the facts
from all the evidence in the case. You are the sole judges of
the facts. However, it is your duty to follow and to apply the
law as stated in these instructions, whether you agree with it
or not. You must follow all of the instructions and not single
out some and ignore others; they are all equally important.

 You must not be influenced by any personal likes or dislikes,
sympathy, prejudice or public opinion. You are to perform your
sworn duty without bias or prejudice for or against any party.
Remember that you took an oath promising to do so at the
beginning of the case.

 2. Judging Witnesses. In deciding what the facts are, you must
consider all the evidence. In doing this, you must decide which
testimony to believe and which testimony not to believe. You may
disbelieve all or any part of any witness testimony. In making
that decision, you may take into account a number of factors
including the following:

 1. Was the witness able to see, or hear, or know the things
about which that witness testified?

 2. How well was the witness able to recall and describe those
things?

 3. What was the witness's manner while testifying?

 4. Did the witness have an interest in the outcome of this case
or any bias or prejudice concerning any party or any matter
involved in the case?

 5. How reasonable was the witness's testimony considered in
light of all the evidence in the case?

 6. Was the witness's testimony contradicted by what the witness
has said or done at another time, or by the testimony of other
witnesses, or by other evidence.

 In deciding whether or not to believe a witness, keep in mind
that people sometimes forget things. You need to consider
therefore whether a contradiction is an innocent lapse of memory
or an intentional falsehood, and that may depend on whether it
has to do with an important fact or with only a small detail.

 The weight of the evidence presented by each side does not
necessarily depend on the number of witnesses testifying on one
side or the other. You must consider all of the evidence in the
case, and you may decide that the testimony of a smaller number
of witnesses on one side has greater weight than that of larger
number on the other.

 All of these are matters for you to consider in finding the
facts.

 INSTRUCTION NO. 3

 [Charts and Summaries Received in Evidence]

 Certain charts and summaries have been received into evidence to
illustrate facts brought out in the testimony of some witnesses.
Charts and summaries are only as good as the underlying evidence
that supports them. You should therefore given them only such
weight as you think the underlying evidence deserves.

 3A. Deposition for Impeachment. Prior to the trial, the
deposition was taken of a witness and part of it was read into
evidence. If, in said deposition, the witness made any
statements in conflict with his [or her] testimony in Court, you
may consider such conflicts and any explanations therefor in
determining his [or her] credibility as if the testimony in the
deposition had been given at trial.

 INSTRUCTION 4A

 A corporation under the law is a person, but it can only act
through its employees, agents, directors, or officers. The law
therefore holds a corporation responsible for the acts of its
employees, agents, directors, and officers, if but only if those
acts are authorized. An act is authorized if it is a part of the
ordinary course of employment of the person doing it. Whether a
particular act was authorized is question you must decide on the
evidence.

 The fact that defendant is a corporation should not affect your
decision. All persons are equal before the law, and
corporations, whether large or small, are entitled to the same
fair and conscientious consideration by you as any other person.

 4. Evidence in the Case. You are to decide the case solely on
the evidence received at the trial. The evidence consists of the
sworn testimony of all witnesses, all exhibits received in
evidence and all facts which have been agreed to or stipulated.

 Anything you may have seen or heard outside the courtroom is not
evidence.

 A question is never evidence except as it supplies meaning to
its answer.

 5. Statements of Counsel. Statements, questions and arguments of
counsel are not evidence, except for any statement of a
stipulation.

 6. Stipulation. A stipulation is an agreed statement of facts
between the attorneys, and you must accept such facts as being
conclusively proved.

 7. Objections. When the Court has sustained an objection to a
question, you must not speculate as to what the answer might
have been or the reason for the objection.

 If any testimony was stricken by the Court or you have been
instructed to disregard it, it is not evidence and must not be
considered.

 8. Opinion of the Court. Do not assume that I hold any opinion
on any matter in this case- You are at liberty to disregard all
comments of the Court, except my instructions of the law.

 INSTRUCTION NO. 11

 FAILURE TO PRODUCE AVAILABLE EVIDENCE

 If a party fails to produce evidence which is under his control
and reasonably available to him, then you may infer that the
evidence is unfavorable to the party who could have produced it
and did not.

 INSTRUCTION NO. 12

 WILFUL SUPPRESSION OF EVIDENCE

 If you find that a party wilfully suppressed evidence in order
to prevent its being presented in this trial, you may consider
that fact in determining what inferences to draw from the
evidence.

 16. Direct or Circumstantial Evidence. There are two kinds of
evidence from which you may find the truth of the facts of a
case. One is direct evidence -- such as the testimony evidence
or of an eyewitness. The other is circumstantial indirect
evidence -- the proof of a chain of facts from which you could
find that another fact exists, even though it has not been
proven by direct evidence. You should consider both kinds of
evidence. It is for you to decide how much weight to give to any
evidence.

 17. Inferences. You are not limited in your consideration of the
evidence to the bare words of the witnesses. You are authorized
to draw such inferences as are justified in the light of your
experience as reasonable persons. An inference is a deduction or
conclusion which reason and common sense lead one to draw from
proved facts.

 18. Expert Testimony. You have heard testimony from person(s)
referred to as expert(s). A person who by education or
experience has gained special knowledge in a field may give his
[or her] opinion on matters in that field and may also state
their reasons for the opinion.

 Such testimony should be judged just like any other testimony.
You may accept it or reject it, and give it as much weight as
you think it deserves, considering the witness' education and
experience, the reasons given for the opinion, and all other
evidence in the case.

 25. Burden of Proof - Preponderance of the Evidence. In a civil
case such as this the plaintiff has the burden of proving the
case by what is called the "preponderance of the evidence." That
means that the plaintiff has to produce evidence which,
considered in the light of all the facts, leads you to believe
that what the plaintiff claims is more likely true than not
true. To state it differently, if you were to put plaintiff's
and defendant's evidence on opposite sides of the scales,
plaintiff would have to make the scales tip slightly in
plaintiff's favor. If plaintiff fails to meet this burden, the
verdict must be for defendant.

 On the other hand, the defendant has the burden of proving by a
preponderance of the evidence any affirmative defenses asserted
by defendant.

 Therefore, when I say in these instructions that a party must
"prove" or "show" or "establish," or that the jury may "find,"
mean that the proposition must be proven by a preponderance of
all of the evidence in the case.

 INSTRUCTION NO. 28

 [Separate Analysis of Each Sound Recording]

 In analyzing the various claims and defenses asserted in this
action, each of the sound recordings at issue, that is, the four
sound recordings known as I Need You, Opposites Attract,
Knocked Out and State of Attraction, along with the album sound
recording, Forever Your Girl, shall be considered separately,
unless I instruct you otherwise .

 INSTRUCTION NO. 31

 Parties' Contentions (First Two Claims)

 Plaintiff Yvette Marine (called "Marine") contends that she
recorded lead vocal performances on two sound recordings known as
I Need You and Opposites Attract; that her lead vocals on those
two sound recordings were mixed together with those of another
performer, Paula Abdul; that defendant Virgin Records America,
Inc. (called "Virgin") utilized Marine's vocals on copies of
these recordings sold to consumers throughout the world; that
Virgin caused the credits for I Need You and Opposites Attract
to identify only Paula Abdul as the lead vocalist, and that
Virgin's credits for I Need You and Opposites Attract were
false, deceptive or at least likely to confuse the public by
inaccurately stating that Marine's only contributions to them
were background vocals.

 Virgin, on the other hand, denies that Marine's vocal
performances on these two recordings constituted a "lead" vocal,
and that its credits correctly identified all "lead" vocalists.

 Marine contends that she sustained damages because she was not
credited as one of the lead vocalists on I Need You and
Opposites Attract.

 Virgin, on the other hand, contends that since Marine was only
one of the background vocalists on I Need You and Opposites
Attract, she did not sustain any damages by virtue of Virgin's
credits for these two recordings.

 INSTRUCTION NO. 32

 There is no claim being made that Marine was improperly credited
on the recordings Knocked Out and State of Attraction.

 INSTRUCTION NO. 33

 Marine's first claim is that Virgin violated 43(a) of the
Lanham Act, which prohibits the use of any false designation of
origin on goods sold in interstate commerce. In order to prove
this claim, Marine must establish each of the following:

 First, that Marine's vocal contribution to I Need You and
Opposites Attract constituted a "lead" or "co-lead"
contribution.

 Second, that Virgin did not give Marine credit for her vocal
contribution.

 Third that Marine was injured by Virgin's actions.

 INSTRUCTION NO. 34

 Marine also claims that the actions of Virgin in crediting
only--one vocalist, namely, Paula Abdul, for I Need You and
Opposites Attract constitutes "unfair competition" under
California law.

 Liability for unfair competition is very similar to that for
violation of 43(a) of the Lanham Act in that unfair competition
involves mislabeling or failure to credit a person for their
efforts or contributions to a product (such as a sound
recording) when those of others are credited as if they were the
sole contributors.

 One form of unfair competition is called "reverse passing off."
This occurs when the efforts or contributions of one person are
labeled as the efforts of another. This is what Marine contends
Virgin did with respect to the packaging credits for Need You
and Opposites Attract.

 Accordingly, in order for you to determine whether Virgin
committed unfair competition with its packaging credits for I
Need You and Opposites Attract, you must decide whether Virgin
diverted credit for Marine's vocal performances to another
vocalist.

 INSTRUCTION NO. 35

 Virgin has raised the affirmative defense of "estoppel" to
Marine's claims under the Lanham Act and the California unfair
competition law. To the extent that Virgin proves this defense,
Virgin would not be liable for any conduct to which the defense
applies.

 INSTRUCTION NO. 36

 UNFAIR COMPETITION - DEFENSES - ESTOPPEL

 "Estoppel" means that MARINE cannot now complain of a condition
that she knew about and went along with, where VIRGIN was not
aware that she disagreed with it, and had reason to expect that
MARINE would tell them if she disapproved. MARINE's silence
alone will not create an estoppel; for estoppel to arise,
silence must occur under such circumstances that it would be
reasonable for VIRGIN to rely on her silence.

 INSTRUCTION NO. 37

 To establish the defense of estoppel, Virgin must prove each of
the following elements:

 1. Marine knew of the facts which constitute the basis of her
claims under the Lanham Act and the California unfair
competition law.

 2. Virgin did not know that Marine objected to the manner in
which the Forever Your Girl album was packaged and the manner in
which credits were given on said album.

 3. Virgin was justified in believing that Marine's failure meant
that Marine did not object.

 4. Virgin relied upon Marine's failure to object in continuing
to market the Forever Your Girl album in the manner in which it
was marketed.

 If you find that Virgin has established this defense, your
verdict should be for Virgin on the Lanham Act and state unfair
competition claims.

 INSTRUCTION NO. 38

 ACTS AND OMISSIONS BY AGENTS OR REPRESENTATIVES

 One is the agent of another person or company (called the
"principal"), if, at a given time, he or she is authorized to
act for or in place of such person or company. Accordingly, any
act or omission of any of MARINE's agents was the act or
omission of MARINE. Similarly, any act or omission of any of
VIRGIN's agents was the act or omission of VIRGIN.

 INSTRUCTION NO. 41

 [Damages for Violation of 43(a)]

 The Lanham Act provides two forms of damages or monetary
recovery to which Marine is entitled if she shows that Virgin
violated section 43(a). They are:

 (1) Any actual damages or lost profits which Marine sustained as
the result of Virgin's improper failure to credit her vocal
contributions, or,

 (2) Virgin's profits from the sale of the sound recordings which
bear the improper packaging credits.

 In determining what Virgin's profits are, Marine has the burden
of producing evidence of Virgin's income from the sale of the
sound recordings, and Virgin then has the burden of proving any
deductible expenses., and of proving what proportion, if any, of
its total profits were the result of the efforts of persons
other than Marine, including Paula Abdul.

 With respect to income from the sale of the album Forever Your
Girl, Marine must prove what proportion, if any, of the total
income from that album is attributable to the songs in issue.

 INSTRUCTION NO. 42

 [Damages for Unfair Competition]

 Marine may recover two similar forms of damages if she shows
that Virgin committed unfair competition. They are:

 (1) Any losses she sustained which were legally caused by
Virgin's actions; in this context, "legal cause" means that
Virgin's acts of unfair competition were a substantial factor in
bringing about Marine's loss or harm, and,

 (2) Virgin's profits.

 In determining Virgin's profits, Marine has the burden of
producing evidence of Virgin's income and Virgin then has the
burden of proving any deductible expenses. in accordance with
the instruction I have just given you.

    INSTRUCTION NO. 43

  As just stated, Marine seeks an award of Virgin's profits
from its sales of the sound recordings and of the album
containing those sound recordings. Before Marine may recover
Virgin's profits under the Lanham Act, she must prove that
Virgin willfully violated the Act.

  An act is done "willfully" if it is done knowingly,
deliberately and intentionally (done "on purpose"), and not
accidentally or carelessly or unintentionally.

 INSTRUCTION NO. 44

 Before Marine may recover Virgin's profits under the California
unfair competition law, she must prove that Virgin' unfair
competition was willful, that is, that Virgin intentionally and
deliberately passed off Marine's lead vocal contribution to the
sound recordings in issue as being those solely of Paula Abdul.

 INSTRUCTION NO. 45

 Virgin claims that even if Marine has proven her Lanham Act or
unfair competition claims, she is not entitled to any monetary
recovery because she did not mitigate her damages.

 An individual damaged by the wrongful acts of another has duty
to use reasonable care and diligence to avoid loss and to
minimize her damages.

 In order to prove its defense of failure to mitigate damages,
Virgin must establish that there were reasonable measures that
Marine could have taken which would have avoided or minimized
her damages and that she failed to take such measures.

 If you find that Marine failed to exercise reasonable diligence
and reasonable care to take measures which would have prevented
or minimized her damages, then you are to reduce her Lanham Act
or unfair competition damage award to the extent that she could
have mitigated her losses.

 INSTRUCTION NO. 46

 SPECULATIVE DAMAGES

 You are not permitted to award any speculative damages, which
means compensation for future loss or harm which, although
possible, is conjectural or not reasonably certain. However, if
you determine that either party is entitled to recover, you
should compensate that party for loss or harm which is
reasonably certain to be suffered by that party in the future as
a proximate result of the injury in question.

 INSTRUCTION NO. 47

 The fact that I have instructed you on damages should not be
taken as any indication of the court as to what the jury's
verdict should be on the issue of liability.

 It is the jury's function to decide the issue of liability. have
instructed you on the proper measure of damages for your
guidance only in the event that you decide that the plaintiff is
entitled to recover.

 INSTRUCTION NO. 51

 [The Parties' Contentions (Fourth Count)]

 Marine claims that she, along with Paula Abdul and the record
producers, are the creators and authors of the sound recordings
known as I Need You, Opposites Attract, Knocked Out, State of
Attraction and Forever Your Girl, and as such, Marine is one of
the co-owners of the copyrights in these sound recordings.
Marine also contends that she was self-employed and not an
employee of anyone else when she made her vocal contributions to
the sound recordings.

 Virgin, on the other hand, contends (1 ) that Marine was an
employee working in the course of her employment with Virgin
and/or the producers when she made her vocal contributions to I
Need You, Opposites Attract, Knocked Out and State of Attraction
and, therefore, Virgin is the sole owner of the copyrights in
these sound recordings; and, (2) that even if Marine was not so
employed, she does not meet the requirements for joint
authorship and, therefore, cannot be a co-owner of the
copyrights in these sound recordings.

 INSTRUCTION NO. 52

 [Subject Matter of Copyright Protection; Sound Recordings]

 The United States Copyright Act, Section 102,  provides
that:

 "Copyright protection subsists . . . in original works of
authorship fixed in any tangible medium of expression, now known
or later developed .... Works of authorship include ... sound
recordings. . . "

 As defined in the Copyright Act, sound recordings are the works
which contain the sounds that you hear when, for example, you
play or listen to phonorecords, audio cassettes and record
albums.

 INSTRUCTION NO. 53

 The Copyright Act states that "copyright in a work protected
under this title vests initially in the author or authors of the
work. The authors of a joint work are co-owners of the copyright
in the work."

 "Authors," within the meaning of the Copyright Act, are those
who contribute "copyrightable expression" to a tangible work of
authorship, such as a sound recording.

 Copyrightable expression in a sound recording includes the
performers' creative expression and the contribution of the
producers in capturing and processing of the sounds.

 INSTRUCTION NO. 54

 ["Works Made for Hire"]

 The Copyright Act defines a "work made for hire" as:

 "a work prepared by an employee within the scope of his or her
employment."

 In order to determine whether Marine's vocal contributions to I
Need You, Opposites Attract, Knocked Out and State of Attraction
were "works made for hire" within the meaning of the Copyright
Act, you must determine whether Marine was an employee acting
within the scope of her employment at the time the recordings
were made.

 INSTRUCTION NO. 55

 WORK FOR HIRE - AUTHOR

 When the work is made "for hire", the employer or other person
for whom the work was prepared is the author, and thus the
owner, of the copyright in the work. An "employee" is not the
copyright owner.

 INSTRUCTION NO. 56

 Marine has the burden of showing that she was not an employee of
Virgin or any of the sound recordings' producers, working within
the course and scope of such employment when she rendered her
vocal contributions to I Need You, Opposites Attract, Knocked
Out and/or State of Attraction.

 In determining whether a hired party is an employee, you must
consider the hiring party's right to control the manner and
means by which the product is accomplished. Among other factors
relevant to this inquiry are:

 (a) The skill required;

 (b) The source of the instrumentalities and tools;

 (c) The location of the work;

 (d) The duration of the relationship between the parties;

 (e) Whether the hiring party has the right to assign additional
projects to the hired party;

 (f) The extent of the hired party's discretion over when and how
long to work;

 (g) The method of payment;

 (h) The hired party's role in hiring and paying assistants;

 (i) Whether the work is part of the regular business of the
hiring party;

 (j) Whether the hiring party is in business;

 (k) The provision of employee benefits; and

 (l) The tax treatment of the hired party.

 INSTRUCTION NO. 57

 The burden of proof as to Virgin's sole ownership of the
copyright for the Forever Your Girl sound recording rests with
Virgin. However, Virgin's certificate of copyright registration
for that recording is what is called "prima facie evidence" of
its sole ownership of the copyright in that album, including the
facts stated in the certificate.

 In other words, Virgin's certificate establishes a presumption
of its sole ownership of the copyright. However, if you find
that Marine has produced evidence which, in your mind, rebuts
the statements in Virgin's copyright certificate, Virgin cannot
rely on the presumption alone to prove its sole ownership.
Rather, in such event, you must then determine whether Virgin
has carried its burden of proving its sole ownership of the
copyright in each of the individual sound recordings at issue
here, namely Opposites Attract, I Need You, Knocked Out and
State of Attraction, and in the album Forever Your Girl.

 INSTRUCTION NO. 58

 [Joint Works of Authorship]

 The Copyright Act defines a "joint work of authorship" as a work
prepared by two or more authors with the intention that their
contributions be merged into inseparable or interdependent parts
of a unitary whole.

 The essence of joint authorship is a joint laboring in
furtherance of preconcerted common design. This does not mean,
however, that joint authors must work in physical proximity or
in concert. Nor is an express "collaboration agreement"
necessary to create a joint-author relationship.

 Moreover, the respective contributions of joint authors need not
be equal either quantitatively or qualitatively. It is
sufficient if each author contributes more than minimal amount
of creative work to the joint work.

 INSTRUCTION NO. 59

 [Joint Authors]

 In order to establish that she a joint author of the I Need You,
Opposites Attract, Knocked Out, State of Attraction and/or the
Forever Your Girl album sound recordings, Marine must show the
following:

 (1) That she contributed copyrightable material (i.e., an
individual creative effort, such as a recorded vocal
performance) to the claimed joint work;

 (2) That her vocal contributions were "fixed" (i.e., embodied in
a record or audio tape) by or under her authority (i.e., with
her authorization or permission);

 (3) That her vocal contributions to each of the sound recordings
were more than merely minimal relative to those of the other
individual authors of the sound recordings, namely, Abdul and
the producers; and,

 (4) That she and the producers intended that their respective
contributions, along with Abdul's, be merged, combined or
absorbed into an integrated work at the time each of the sound
recordings was created .

 In determining whether Marine has established that her vocal
contributions to the sound recordings were sufficient to qualify
her as a joint author, or, on the other hand, as Virgin
contends, are only "de minimus," you are to assess the relative
contribution of Marine's vocals, as compared to the contribution
of other vocalists.

 You need not decide the issue of joint authorship if you find
that Marine was an employee of Virgin,or others who assigned
their interests to Virgin, in accordance with the earlier
instruction.

 INSTRUCTION NO. 60

 [Joint Author's Right to an Accounting]

 Each co-owner of a copyright has a right to exploit the work
freely, independently of the other owners. However, each joint
author also has an obligation to account to his or her co-owners
for their share of any income derived from their joint work.

 Unless there is an express agreement signed by the authors of a
joint work to apportion income from the work, it is divided
equally among the authors, even if their contributions to the
joint work were not equal.

 In addition, if you find that Abdul and/or the producers
assigned or sold their copyright interests in the sound
recordings to Virgin, then Virgin is obligated to account to
Marine for her share, if any, of any income earned from the
exploitation of the sound recording copyrights, commencing on
the date Virgin acquired its interest in the copyrights.

 91. Jury's Recollection Controls. If any reference by the Court
or by counsel to matters of evidence does not coincide with your
own recollection, it is your recollection which should control
during your deliberations.

 92. Individual Opinion. The verdict must represent the
considered judgment of each juror and each juror must agree to
it. In other words, your verdict must be unanimous. It is your
duty to consult with one another, and to deliberate with a view
to reaching an agreement, if you can do so without violence to
individual judgment.

 Each of you must decide the case for yourself, but you should do
so only after you have considered all of the evidence, discussed
it fully with the other jurors and listened to the views of your
fellow jurors.

 In the course of your deliberations, do not hesitate to
reexamine your own views, and change your opinion, if the
discussion convinces you that you should. But do not surrender
your honest conviction as to the weight or effect of evidence or
come to a decision simply because other jurors think it is right
or simply to reach a verdict.

 Remember that you are not partisans. You are the impartial
judges of the facts. Your sole interest is to ascertain the
truth from the evidence in the case.

 93. Communications Between Court and Jury. If it becomes
necessary to communicate with the Court, you may send a note by
a bailiff, signed by any member of the jury. You should never
attempt to communicate by any means other than a signed writing.
The Court will communicate with you on any matter concerning the
case only in writing, or here in open court.

 You will note from the oath about to be taken by the bailiffs
that they are forbidden to communicate with any member of the
jury on any subject touching the merits of the case.

 You are never to reveal -- not even to the Court -- how the jury
stands, numerically or otherwise, [on any question submitted to
you] until after you have reached your verdict.

 94. Verdict - Jury's Responsibility. It is proper to add the
caution that nothing said in these instructions - nothing in any
form of verdict prepared for your convenience - is to suggest or
convey in any way or manner any intimation as to what verdict I
think you should find. What the verdict shall be is sole and
exclusive duty and responsibility of the jury.

 95. Foreperson; Returning Verdict. Upon retiring to the Jury
Room, you will select one of your number to act as your
foreperson. That person will preside over your deliberations,
and will speak for you in Court.

 A form of verdict has been prepared for your use. This form will
be sent into the Jury Room, at which time you will commence your
deliberations. When you have reached your verdict, you will have
your foreperson fill in, date and sign the form to state the
verdict upon which you unanimously agree, and then return with
it to the courtroom.