United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN, UNITED STATES DISTRICT JUDGE
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.
Orleans jazz musician accuses an internationally famous
hip-hop duo of copyright infringement of eleven original
songs. This litigation followed.
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. 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.”
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. The duo also received several Grammy
awards, including those for best new artist, best album, and
best rap performance.
1, 2017, Batiste 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. 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,
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
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.
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.
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).
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.”).
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
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.”
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.
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).
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.
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.” 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
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).
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).
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.
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
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.
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.
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.
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)).
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).
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).
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 ...