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Batiste v. Lewis

United States District Court, E.D. Louisiana

April 10, 2019

PAUL BATISTE d/b/a ARTANG PUBLISHING, LLC
v.
RYAN LEWIS, ET AL.

         SECTION “F”

          ORDER AND REASONS

          MARTIN L. C. FELDMAN, UNITED STATES DISTRICT JUDGE.

         Before the Court is the defendants' motion to exclude the report, opinions, and testimony of Archie K. Milton, a purported expert musicologist, from consideration on summary judgment or at trial. For the reasons that follow, the motion is GRANTED.

         Background

         A New Orleans jazz musician accuses an internationally famous hip-hop duo of copyright infringement of eleven original songs. This litigation followed.

         Paul Batiste is a member of The Batiste Brothers Band, a New Orleans jazz band founded in 1976. Batiste also owns Artang Publishing, LLC. Between 1997 and 2002, Batiste composed several original songs, entitled Hip Jazz, Kids, Starlite Pt. 1, World of Blues, Love Horizon, Tone Palette, My Bad, Salsa 4 Elise (Fur Elise), Drowning in My Blues, Sportsman's Paradise, and Move That Body. Batiste has registered each song with the United States Copyright Office.

         Ryan Lewis and Ben Haggerty form the hip-hop duo known as “Macklemore and Ryan Lewis.” The duo has achieved international stardom and is best known for the singles “Thrift Shop” and “Can't Hold Us, ” which were the most popular songs in the United States and Australia after their releases in 2012 and 2016.[1] The duo also received several Grammy awards, including those for best new artist, best album, and best rap performance.

         On May 1, 2017, Batiste[2] sued Ryan Lewis and Ben Haggerty, alleging they infringed on his copyrights by using unauthorized samples and by copying elements of eleven of his original songs in the composition of their songs Thrift Shop, Can't Hold Us, Need to Know, Same Love, and Neon Cathedral. Batiste also sued Andrew Joslyn and Allen Stone, who are credited with writing the hip-hop songs, as well as the publishing companies who own rights to the compositions, including Macklemore Publishing, Ryan Lewis Publishing, DB Joslyn Music, and Sticky Stones, LLC.

         The defendants moved to dismiss the complaint on September 11, 2017, but ultimately withdrew that motion after the plaintiff filed an amended complaint. The defendants then moved to dismiss the amended complaint on November 15, 2017, but again voluntarily dismissed it after the plaintiff was granted leave to file a second amended complaint on January 19, 2018. Thereafter, on February 20, 2018, the defendants moved to dismiss the second amended complaint. In its Order and Reasons dated May 17, 2018, this Court denied the defendants' motion to dismiss, holding that the plaintiff's complaint plausibly alleges the three requirements to a successful claim of copyright infringement: (1) a valid copyright; (2) factual copying (through allegations of striking similarity); and (3) substantial similarity.

         Six months later, on November 25, 2018, Batiste disclosed a 68-page report signed by Archie K. Milton, an alleged expert musicologist, in an effort to buttress his copyright infringement claims. The report purports to analyze elements of “copying” and “digital sampling” and to demonstrate similarities between the defendants' and the plaintiff's musical works through the use of various computer software programs.[3] Contending that the report was ghost-written by the plaintiff, the defendants now seek to exclude Milton's report, opinions, and testimony from consideration on summary judgment or at trial, pursuant to Rule 37 of the Federal Rules of Civil Procedure and Rule 702 of the Federal Rules of Evidence.

         I.

         A.

         Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure requires the disclosure of an expert witness's identity to be accompanied by a “written report - prepared and signed by the witness” that contains:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.

         Rule 37(c), in turn, vests the Court with authority to exclude expert testimony for violations of Rule 26(a), “unless the failure was substantially justified or is harmless.” Fed. R. Civ. Proc. 37(c)(1); see Honey-Love v. United States, 664 Fed.Appx. 358, 362 (5th Cir. 2016) (per curiam) (emphasizing that, “under Rule 37(c), the presumptive sanction for failing to disclose a testifying expert or supply a required expert report . . . is to exclude or limit the expert's testimony”).

         B.

         Federal Rule of Evidence 702 provides for the admission of expert testimony that will assist the trier of fact to understand the evidence or to determine a fact in issue. Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), district courts are tasked with making a preliminary assessment as to the reliability and relevance of proffered expert testimony. In fulfilling this “gatekeeping” function, the trial court must determine “whether the reasoning or methodology underlying the ...


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