By Thomas Long, J.D.
Jazz musician Paul Batiste failed to produce evidence showing a "striking similarity" between his songs and the songs composed and recorded by the defendants, who allegedly used samples from and copied elements of 11 of Batiste’s songs.
New Orleans jazz musician Paul Batiste failed to present evidence that hip-hop duo Ryan Lewis and Ben Haggerty (known as "Macklemore and Ryan Lewis") "factually copied" elements of 11 of Batiste’s original musical compositions and sound recordings, the federal district court in New Orleans has determined. Because Batiste failed to produce admissible evidence regarding asserted similarities between his songs and the defendants’ songs, he could not demonstrate the required "striking similarity" to prove factual copying and could not go forward with copyright infringement claims against the duo (Batiste v. Lewis, April 23, 2019, Feldman, M.).
Batiste was a member of The Batiste Brothers Band, a New Orleans jazz band founded in 1976. Between 1997 and 2002, he composed the 11 original songs at issue in this case. Their titles were "Hip Jazz," "Kids," "Starlite Pt. 1," "World of Blues," "Love Horizon," "Tone Palette," "My Bad," "Salsa Elise (Fur Elise)," "Drowning in My Blues," "Sportsman’s Paradise," and "Move That Body." Batiste asserted that he registered each song with the U.S. Copyright Office. According to Batiste, Lewis and Haggerty used unauthorized samples from and copied elements of his works in the composition of their songs "Thrift Shop," "Can’t Hold Us," "Need to Know," "Same Love," and "Neon Cathedral." The accused songs allegedly infringed various beats, chords, and drums in Batiste’s songs. Batiste also named as defendants Andrew Joslyn and Allen Stone, who were credited with writing the hip hop songs, and the publishing companies that owned rights to the compositions, including Macklemore Publishing, Ryan Lewis Publishing, Macklemore LLC, DB Joslyn Music, and Stickystones Publishing.
On May 17, 2018, the court denied the defendants’ motion to dismiss Batiste’s second amended complaint, holding that it plausibly alleged copyright infringement. Thereafter, the defendants produced reports of three musicology experts: Brian Seeger, Lawrence Ferrara, and Paul Geluso. Batiste disclosed a report signed by Archie Milton, whom Batiste alleged to be an expert musicologist. The defendants contended that Batiste had ghostwritten Milton’s report and moved to exclude it and Milton’s testimony from consideration on summary judgment or at trial. The defendants also moved for summary judgment, arguing that Batiste could not prove copyright ownership, factual copying (through striking similarity, or through access and probative similarity), or substantial similarity. On April 10, 2019, the court granted the defendants’ motion to exclude Milton’s report and testimony in light of Milton’s deposition testimony that Batiste had conducted all of the analysis in the report and that Milton could not verify its accuracy. The court denied Batiste’s request for leave to supplement his opposition to the defendants’ motion for summary judgment by attaching the Milton report (restyled as his own) to his sworn declaration, holding that Batiste had not established his qualifications to serve as an expert witness and did not demonstrate good cause to justify amending the court’s scheduling order.
Batiste’s infringement assertions involved 12 pairings of his and the defendants’ songs. The defendants challenged Batiste’s ability to prove factual copying. The court had already ruled that Batiste had to demonstrate "striking similarity" in order to prove factual copying. Because he failed to produce evidence of disputed factual similarities between his songs and the defendants’ songs that were "sufficiently unique or complex so as to preclude all explanations other than copying," his infringement claims failed as a matter of law. Despite the court’s instruction that he must establish a factual dispute regarding striking similarity, Batiste unsuccessfully attempted to establish factual copying through evidence of access and probative similarity.
Access. Batiste failed to produce evidence that raised a question of fact as to whether the defendants had a reasonable opportunity to listen to Batiste’s songs before they creating the allegedly infringing works, the court decided. Lewis and Haggerty testified that they had never heard of Batiste prior to his filing suit against them. They also asserted that they had never heard any of Batiste’s music. The defendants’ expert musicologist, Brian Seeger, stated that Batiste’s works were "quite unknown in the local community of music fans and musicians" and that even in New Orleans, Batiste was "flying under the radar" of music connoisseurs. Batiste contended that his works were "widely disseminated" because they had been broadcast on New Orleans radio stations, distributed to disc jockeys, and sold in local and national record stores and elsewhere. Batiste also argued that Macklemore and Ryan Lewis had performed in New Orleans at a venue "not too far" from where Batiste’s music was sold. This purported evidence was not significantly probative of a reasonable opportunity for access, in the court’s view, but at best showed a "bare possibility of access." Therefore, the court held Batiste to the more exacting "striking similarity" standard to establish copying.
Striking similarity. Works are "strikingly similar" if the similarities can only be explained by copying, rather than by coincidence, independent creation, or prior common source. The similarities must appear in a "sufficiently unique or complex context," which the court explained is particularly important with respect to popular music, in which all songs are relatively short and tend to build on or repeat a common theme.
Sampling claims. With respect to his sampling claims, Batiste contended that the defendants copied his sound recordings and then manipulated them. In the court’s view, Batiste seemed to suggest that a lay listener would not be able to recognize the similarities in the works. Accordingly, he pointed to circumstantial evidence in an attempt to controvert Ryan Lewis’s sworn declaration testimony that the defendants’ songs all were independently created and recorded. First, Batiste pointed evidence that Lewis and Haggerty had sampled other sound recordings using a particular software tool, and that the software file for the recording session for the defendants’ song "Thrift Shop" displayed an error message that 178 audio files were missing. Lewis testified that this notification was a common message that appeared when files were moved across hard drives and did not indicate that files were actually missing. Batiste did not introduce any evidence to contradict this explanation or to otherwise support his assertion that files were missing. Moreover, the court said, the fact that the software files produced by the defendants contained other artists’ records was immaterial because it did not show that these artists’ songs were sampled or included in any Macklemore and Ryan Lewis songs. More importantly, Batiste presented no evidence that the defendants sampled any of his own works.
Song comparisons. In the absence of such evidence, the court listened to the songs and, aided by the guidance of the expert musicologists, concluded that Batiste failed to prove striking similarity as to any of the 12 song pairings. In some instances, the court discerned "faint similarity" between bass lines and other elements, the resemblance was not substantial or striking. Expert witness Lawrence Ferrara’s compositional analysis indicated that the songs’ beats and other features were markedly different, with only occasional commonplace or "generic" similarities. With respect to some of the pairings, Ferrara testified that the melodies were "vastly different." With respect to other pairings, another expert musicologist, Paul Geluso, testified that the defendants could not have sampled Batiste’s works because certain sounds featured in Batiste’s allegedly infringed songs were not present in the accused songs.
Accordingly, the court found that there were no material disputed issues of fact and granted summary judgment in favor of the defendants.
This case is No. 2:17-cv-04435-MLCF-KWR.
Attorneys: Dashawn Paul Hayes (Hayes Law Firm, PLC) for Paul Batiste d/b/a Artang Publishing LLC. Mary Ellen Roy (Phelps Dunbar, LLP) and Christian D. Carbone (Loeb & Loeb, LLP) for Ryan Lewis a/k/a Macklemore and Ryan Lewis.
Companies: Artang Publishing LLC
MainStory: TopStory Copyright LouisianaNews
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