IP Law Daily Dismissal of infringement suit against hip-hop duo warranted for lack of ‘factual copying’
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Wednesday, September 23, 2020

Dismissal of infringement suit against hip-hop duo warranted for lack of ‘factual copying’

By Robert B. Barnett Jr., J.D.

The Fifth Circuit upheld the dismissal of a music copyright infringement suit in the absence of evidence that the alleged infringers had access to the protected songs.

After a New Orleans federal court dismissed a jazz artist’s copyright infringement suit against the hip-hop duo Ryan Lewis and Ben Haggerty (known as "Macklemore and Ryan Lewis") and assessed fees and costs against both the jazz artist and his attorney, the U.S. Court of Appeals of New Orleans has affirmed the decision, ruling that the jazz artist failed to establish "factual copying" because he failed to produce evidence that the hip-hop duo had access to this music or that striking similarities existed between the pieces of music. The appellate court also upheld the imposition of fees against the artist, noting many instances of litigation misconduct, including submission of a fraudulent ghost-written expert report. The Fifth Circuit lacked jurisdiction, however, to consider the merits of whether the attorney could be held jointly liable because the attorney did not participate in the appeal (Batiste v. Lewis, September 22, 2020, Clement, E.).

Background. Ben Haggerty and Ryan Lewis perform professionally as the hip-hop duo Macklemore & Ryan Lewis. They have achieved significant worldwide success and fame. Paul Batiste, a New Orleans jazz musician, sued the duo, alleging that they infringed copyrights in his music by "digital sampling," which involves copying sounds from one recording into a new recording. The duo contended that they had never heard of Batiste or his music prior to recording their songs.

The jazz artist submitted a report from an expert musicologist named Archie Milton. The court agreed to exclude the report after discovering that it was actually ghost-written by the jazz artist himself. The court then refused the jazz artist’s request for leave to submit the report in his own name because the discovery deadline had lapsed. In the absence of the report, the court granted summary judgment to the duo. The court also granted their request to impose more than $125,000 in fees and costs jointly on both the jazz artist and his attorney. The jazz artist appealed both the summary judgment decision and the fee award.

Expert report. The Fifth Circuit began by affirming the lower court’s decision to deny the jazz artist leave to submit the report in his name. The lower courts have broad discretion to enforce deadlines on their scheduling orders. Because the jazz artist never provided any good cause for why the deadline should have been extended to allow him to file the report in his own name, the lower court acted within that broad discretion in denying the request for leave.

Access. A copyright infringement claim requires a showing of factual copying and substantial similarity. The lower court had concluded that the jazz artist failed to show that the duo had access to his music or that the songs were strikingly similar. The appellate court rejected the jazz artist’s assertion that the duo had access because of the wide dissemination of his music. While agreeing that wide dissemination can provide access, the appellate court took issue with the assertion that the jazz artist’s music was widely disseminated. The evidence showed meager sales at a few local stores. The fact that the duo had once performed for one night at a bar in New Orleans did not mean that they had access to the jazz artist’s music. They testified that they did not visit any record stores in New Orleans or listen to any of the jazz artist’s music before recording their songs. As a result, the appellate agreed with the lower court had the jazz artist failed to create genuine issues on access.

Striking similarity. The appellate court also agreed with the lower court that the jazz artist failed to establish striking similarity. Rather than argue striking similarity, the jazz artist fatally focused on evidence of access. As a result, the appellate court concluded that the issue of striking similarity had been forfeited. The jazz artist cited a case where the plaintiff succeeded in an infringement claim, but that case did not involve factual copying and the defendants admitted that they sampled the plaintiff’s recordings. In this case, on the other hand, the duo made no such concession, and the jazz artist offered no evidence to establish factual copying. Thus, because the jazz artist failed to establish factual copying, the lower court correctly granted summary judgment to the duo.

Fee award. The fee award under the Copyright Act depends in large part on the objective reasonableness of the losing party’s position. Even where a losing party advances a reasonable claim, however, the court has the right to award fees, such as in cases of litigation misconduct. The jazz artist argued that the award was not merited because no showing had been made of a "frivolous" claim "brought in bad faith." The Supreme Court, however, has rejected the requirement that bad faith or frivolousness be shown (Fogerty v. Fantasy, Inc., 510 U.S. 517, 521 (1994)). As a result, the Fifth Circuit concluded that the lower court properly considered objectiveness of the claims as well as other relevant factors, including how the jazz artist litigated the suit. Numerous factors were cited, including, most prominently, the submission of the ghost-written expert’s report. In addition, the court had the right to issue the fees in order to deter the jazz artist’s "overaggressive assertions of copyright claims." He had filed at least five other copyright infringement suits, including a suit in which he alleged that dozens of defendants had infringed 45 of his songs in 63 of their songs. He had been warned by other courts for pursuing baseless claims. For all of those reasons, imposing the fees was determined to have been within the lower court’s rights.

Attorney sanctions. The Fifth Circuit, however, declined to consider the issue of whether the lower court had the right to impose fees on the attorney jointly because he did not appeal the decision or otherwise participate in the appeal. As a result, the court lacked jurisdiction over that issue, and it could not consider it, even though the jazz artist had raised in his appeal.

The Fifth Circuit, therefore, affirmed the lower court’s ruling.

This case is Nos. 19-30400 and 19-30889.

Attorneys: Dashawn Paul Hayes (Hayes Law Firm, PLC) for Paul Batiste d/b/a Artang Publishing LLC. Barry I. Slotnick (Loeb & Loeb LLP) for Ryan Lewis a/k/a Macklemore Lewis, Macklemore Publishing, Ryan Lewis Publishing and Macklemore, L.L.C. d/b/a Macklemore Publishing.

Companies: Artang Publishing LLC; Macklemore Publishing; Ryan Lewis Publishing; Macklemore, L.L.C. d/b/a Macklemore Publishing

MainStory: TopStory Copyright GCNNews LouisianaNews MississippiNews TexasNews

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