Before TANG and CYNTHIA HOLCOMB HALL, Circuit Judges, and SHUBB, District Judge.*

MEMORANDUM**

Martin Allen Fine appeals the district court's grant of summary judgment to defendants in this copyright infringement action. We affirm.

Fine argues on appeal that the district court erred when it found that his composition was published before January 1, 1978, and had therefore entered the public domain. This is a theory different than that which Fine relied upon below. Indeed, in Fine's complaint he alleged that he published the composition before January 1, 1978.

We will generally not reach an issue raised for the first time on appeal. United States v. Rubalcaba, 811 F.2d 491, 493 (9th Cir.), cert. denied, 484 U.S. 832 (1987). We have discretion to reach the issue if the record is sufficiently developed and the opposing party will suffer no prejudice. Id. We decline to reach this issue because Fine has presented no legitimate reason why he did not present this theory to the district court. We will not permit litigants to change their positions on appeal. Defendants may well have developed the record below differently had Fine argued this theory before the district court. Accordingly, the judgment below is AFFIRMED.

* Honorable William B. Shubb, United States District Judge for the Eastern District of California, sitting by designation

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3