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Batiste v. Lewis

United States District Court, E.D. Louisiana

April 24, 2019


         SECTION “F”



         Before the Court is the defendants' motion for summary judgment and the plaintiff's motion for leave to supplement his opposition to the motion for summary judgment. For the reasons that follow, the plaintiff's motion for leave to supplement is DENIED, and the defendants' motion for summary judgment is GRANTED.


         A New Orleans jazz musician accuses an internationally famous hip-hop duo of copyright infringement of eleven original songs. This litigation followed.[1]

         Paul Batiste is a member of The Batiste Brothers Band, a New Orleans jazz band founded in 1976. Batiste also owns Artang Publishing, LLC. Batiste alleges that, between 1978 and 2002, he composed eleven 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; he also claims that he registered each song with the United States Copyright Office.[2] According to Batiste, his songs have been broadcast on New Orleans radio stations, distributed to various disc jockeys, and sold in local and national record stores, on his website, and at live shows. He has also sold his music through digital platforms, although he concedes that his online sales have been “sparse.”

         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.[3] The duo also received several Grammy awards, including those for best new artist, best album, and best rap performance.

         On May 1, 2017, Batiste[4] sued Ryan Lewis and Ben Haggerty, alleging they infringed on his sound recordings and music compositions by using unauthorized samples and by copying elements of eleven of his original works in the composition of their songs Thrift Shop, Can't Hold Us, Need to Know, Same Love, and Neon Cathedral.[5] He alleges infringement of various beats, hooks, melodies, chords, and drums in his songs. Batiste also sued Andrew Joslyn and Allen Stone, who are credited with writing contributions to some of the hip-hop songs, as well as the publishing companies that own rights to the compositions, including Macklemore Publishing, LLC, Ryan Lewis Publishing, DB Joslyn Music, and Sticky Stones, LLC.[6]

         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 second amended complaint plausibly alleges the three requirements to a successful claim of copyright infringement: (1) ownership of a valid copyright; (2) factual copying (through allegations of striking similarity, rather than access and probative similarity, because the complaint alleges no facts regarding access); and (3) substantial similarity. The Court declined to engage in a side-by-side analysis of the works at the pleading stage, noting that a decision on the merits based on the Court's judgment as to the songs' similarities was inappropriate at that time.

         The defendants then produced reports of three musicology experts, Brian Seeger, Mr. Lawrence Ferrara, and Paul Geluso, while Batiste disclosed a report signed by Archie Milton, an alleged expert musicologist. Contending that the Milton Report was ghostwritten by the plaintiff, the defendants moved to exclude Milton's report and testimony from consideration on summary judgment or at trial. The defendants also moved for summary judgment, arguing that the plaintiff's copyright infringement claims fail as a matter of law because he cannot prove copyright ownership, factual copying (through striking similarity, or access and probative similarity), or substantial similarity.

         On April 10, 2019, the Court granted the defendants' motion to exclude the expert report and testimony of Archie Milton. In light of Milton's deposition testimony that the plaintiff conducted all of the analysis in the report and that Milton could not verify the accuracy of such work, the Court determined that “Mr. Batiste's involvement in the preparation of Milton's report exceed[ed] the permissible bounds of ‘editorial assistance.'” One week later, on the submission date of the defendants' motion for summary judgment, the plaintiff filed a motion for leave to supplement his opposition, in an attempt to resubmit the contents of the Milton Report as an attachment to his own declaration.


         Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. No. genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine dispute of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed.R.Civ.P. 56(c)(2). “[T]he nonmoving party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (internal quotation marks and citation omitted). Ultimately, “[i]f the evidence is merely colorable . . . or is not significantly probative, ” summary judgment is appropriate. Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are improper as summary judgment evidence.”).

         Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding whether a fact issue exists, courts must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Although the Court must “resolve factual controversies in favor of the nonmoving party, ” it must do so “only where there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013) (internal quotation marks and citation omitted)

         In resolving a motion for summary judgment, the Court “may only consider admissible evidence.” Coleman v. Jason Pharmaceuticals, 540 Fed.Appx. 302, 306 (5th Cir. 2013). Federal Rule of Evidence 56(c)(2) provides that “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”


         The Court first considers the plaintiff's motion for leave to supplement his opposition papers by attaching to his sworn declaration the contents of the Milton Report (restyled as his own). Batiste submits that his “supplemented declaration” illustrates how the defendants used musical software to sample and copy his musical works and, therefore, will assist the Court in analyzing his technical infringement claims. The defendants oppose the request, contending that Mr. Batiste has neither established his qualifications to serve as an expert witness, nor demonstrated good cause to justify amending this Court's scheduling order. The Court agrees.


         Federal Rule of Evidence 701 provides that lay testimony may not be “based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” In turn, Rule 702 permits a witness to testify as an expert only where he has demonstrated that he is “qualified as an expert by knowledge, skill, experience, training or education” and that his testimony is reliable. Fed.R.Evid. 702; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

         Batiste's proffered exhibit, through which he opines on the similarity of various song pairings using computer-generated visual representations of music, presupposes expert as opposed to lay testimony. Mr. Batiste has failed to establish his qualifications to serve as an expert witness in a case in which he is the plaintiff. Nor does his report pass muster under Daubert because it is lacking in reliability. It is simply patently self-interested. In this regard, Mr. Batiste cannot demonstrate that: (1) the report “is based on sufficient facts or data;” (2) it “is the product of reliable principles and methods;” or (3) he “has reliably applied the principles and methods to the facts of the case.” See id.

         Mr. Batiste's report primarily consists of spectrogram and waveform comparisons that depict fragments of matching graphic representations of sound between his songs and those of the defendants; based on these overlapping segments, he concludes that the defendants copied his works. The reliability of Mr. Batiste's methodology is rejected by the defendants' sound recording expert, Paul Geluso, who explains that “it is possible for two random songs to have musical events that, in a spectrogram comparison, can be seen to visually align to a degree that [the plaintiff] would declare indisputably ‘digitally sampled' when no such digital sampling occurred.”[7] Similarly, Dr. Lawrence Ferrara, one of the defendants' music composition experts, explains that “fragmentary similarities between excerpts of the compositions at issue only appear[ed] after deeply flawed manipulations and misrepresentations in the transcriptions.” (emphasis added). Because the plaintiff's self-interested report bears no indicia of reliability, it cannot be said to pass muster under Daubert.


         Evidentiary issues aside, Mr. Batiste's attempt to supplement his opposition amounts to a request to modify this Court's scheduling order. Federal Rule of Civil Procedure 15(a)(2) allows a party to “amend its pleading only with the opposing party's written consent or the court's leave” and instructs courts to “freely give leave when justice so requires.” However, Rule 16(b)(4) provides that a court's scheduling order may be modified “only for good cause and with the judge's consent.” Fed. R. Civ. Proc. 16(b)(4).

         When determining whether there is good cause under Rule 16, courts consider four factors: “(1) the explanation for the failure to timely [comply with the scheduling order]; (2) the importance of the [modification]; (3) potential prejudice in allowing the [modification]; and (4) the availability of a continuance to cure such prejudice.” Squyres v. Heico Companies, L.L.C., 782 F.3d 224, 237 (5th Cir. 2015) (quoting Meaux Surface Productions, Inc. v. Fogleman, 607 F.3d 161, 167 (5th Cir. 2010)) (alterations in original).

         This Court's scheduling order provides:

Written reports of experts, as defined by Federal Rules of Civil Procedure 26(a)(2)(B), who may be witnesses for Plaintiff fully setting forth all matters about which they will testify and the basis therefor shall be obtained and delivered to counsel for Defendant as soon as possible, but in no event later than January 24, 2019.
. . .
The Court will not permit any witness, expert or fact, to testify or any exhibits to be used unless there has been compliance with this Order as it pertains to the witness and/or exhibits, without an order to do so issued on motion for good cause shown.

         Although Mr. Batiste invokes Rule 15's lenient standard, it is Rule 16's “good cause” standard that governs his last-minute request to submit his own self-interested musicology report to bolster his copyright infringement claims. After submitting an expert report in the name of Archie Milton, Mr. Batiste now declares, under penalty of perjury, that he “personally conducted an analysis of [his] musical works and those of the defendants that form[] the basis of this lawsuit and discovered several acts of sampling and copying;” he then seeks to attach the Milton Report (restyled as his own) to his supplemental declaration. Although Mr. Batiste asserts that the report will assist the Court in analyzing his technical infringement claims, he fails to the persuade the Court that his efforts to circumvent its ruling amount to “good cause.”[8]


         The plaintiff claims that five of the defendants' songs - “Thrift Shop, ” “Neon Cathedral, ” “Can't Hold Us, ” “Need to Know, ” and “Same Love” - infringe the musical compositions and sound recordings of eleven of his original works, for a total of twelve pairs of allegedly infringing and infringed songs.


         “To prove copyright infringement, a plaintiff must establish (1) ownership of a valid copyright; (2) factual copying; and (3) substantial similarity.” Armour v. Knowles, 512 F.3d 147, 152 (5th Cir. 2007) (per curiam). “Factual copying can be proved by direct or circumstantial evidence.” Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 368 (5th Cir. 2004) (internal quotations omitted). Because direct evidence is often difficult to provide, “[f]actual copying may be inferred from (1) proof that the defendant had access to the copyrighted work prior to creation of the infringing work and (2) probative similarity.” Id.

         “To establish access, a plaintiff must prove that ‘the person who created the allegedly infringing work had a reasonable opportunity to view the copyrighted work' before creating the infringing work.” Armour, 512 F.3d at 152-53 (quoting Peel & Co v. The Rug Market, 238 F.3d 391, 394 (5th Cir. 2001)). “A bare possibility of access is insufficient.” Guzman v. Hacienda Records and Recording Studio, Inc., 808 F.3d 1031, 1037 (5th Cir. 2015). Stated differently, an “access showing cannot ‘be based on speculation or conjecture.'” Id. (quoting Armour, 512 F.3d at 152-53). A jury could find that two works have probative similarity if “it finds any similarities between the two works (whether substantial or not) that, in the normal course of events, would not be expected to arise independently in the two works.” Positive Black Talk, 394 F.3d at 370.

         However, if a plaintiff cannot prove access, he may still prove factual copying “by showing such a ‘striking similarity' between the two works that the similarity could only be explained by actual copying.” Armour, 512 F.3d at 152 n.3; Vallery v. American Girl, L.L.C., 697 Fed.Appx. 821, 824 (5th Cir. 2017). Two works are “strikingly similar” if the plaintiff demonstrates “that the alleged ‘similarities are of a kind that can only be explained by copying, rather than by coincidence, independent creation, or prior common source.'” Guzman, 808 F.3d at 1039 (quoting Selle v. Gibb, 741 F.2d 896, 904 (7th Cir. 1984)).

         “Even if copying is established, it must be legally actionable.” Vallery v. Am. Girl, L.L.C., 697 Fed.Appx. 821, 824 (5th Cir. 2017) (per curiam). In determining “whether an instance of copying is legally actionable, a side-by-side comparison must be made between the original and the copy to determine whether a layman would view the two works as ‘substantially similar.'” Id. (quoting Creations Unlimited, Inc. v. McCain, 112 F.3d 814, 816 (5th Cir. 1997)). To satisfy the substantial similarity test, the plaintiff must prove that a layman would “detect ‘piracy without any aid or suggestion or critical analysis by others.'” Peel, 238 F.3d at 398 (quoting Harold Lloyd Corp. v. Witwer, 65 F.2d 1, 18 (9th Cir. 1933)). The works must be so similar that “[t]he reaction of the public to the matter [is] spontaneous and immediate.” Id. (internal citations omitted). A determination that no substantial similarity exists as a matter of law is “appropriate if the court can conclude, after viewing the evidence and drawing inferences in a manner most favorable to the nonmoving party, that no reasonable juror could find substantial similarity of ideas and expression.” Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 142 (5th Cir. 2004).

         To prove infringement of the copyright in a sound recording, also known as “sampling, ” a plaintiff must prove that his recording was physically reproduced. Newton v. Diamond, 388 F.3d 1189, 1192 (9th Cir. 2004). With respect to a claim of unauthorized sampling, merely sounding like the plaintiff's recording is not sufficient. Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 800-01 (6th Cir. 2005). Thus, summary judgment is warranted on a “sampling” claim if “a general audience would not recognize” that a portion of the allegedly infringing work “originate[d]” from the allegedly infringed work. See VMG Salsoul, Ltd. Liab. Co. v. Ciccone, 824 F.3d 871, 874 (9th Cir. 2016).

         Finally, summary judgment is appropriate for any type of copyright infringement claim where a plaintiff fails to prove copyright ownership through proper registration of his copyright. See Geoscan, Inc. of ...

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