KURT D. ENGELHARDT, District Judge.
Before the Court is the Defendants' Motion to Dismiss (Rec. Doc. 58). Plaintiff has filed an opposition memoranda (Rec. Doc. 111), and the Defendants have filed a reply memoranda (Rec. Doc. 113).
Plaintiff Paul Batiste, doing business as Artang Publishing LLC, is the founding member and owner of the Batiste Brothers Band, founded in New Orleans, Louisiana in 1976. Rec. Doc. 1 at 1. In this copyright infringement action, the plaintiff has sued dozens of defendants (including the Defendants
"The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "When a party seeks summary judgment pursuant to an affirmative defense, such as a statute of limitation, the movant must establish all of the elements of the defense." Citigroup Inc. v. Federal Ins. Co., 649 F.3d 367, 371 (5th Cir.2011). "If the movant does so, the burden shifts to the nonmovant to provide specific facts showing the existence of a genuine issue for trial." Id. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 234 (5th Cir.2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Although the Court must draw in favor of the nonmoving party all reasonable inferences that may be drawn from the evidence submitted, "a party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or `only a scintilla of evidence.'" Turner v. Baylor Richardson Medical Center; 476 F.3d 337, 343 (5th Cir.2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)); Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012). The substantive law will determine the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505.
To establish a claim for copyright infringement, a plaintiff must show: (1) that he owns a valid copyright (which is not challenged in the instant motion), and (2) that the defendant copied constituent elements of the plaintiff's work that are original and copyrightable. Positive Black Talk, Inc. v. Cash Money Records, 394 F.3d 357, 367 (5th Cir.2004), abrogated on other grds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010); Engineering Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1340 (5th Cir.1994), supplemented,
The Defendants have assumed for purposes of the instant motion that the element of factual copying can be met and ask the Court to dismiss the plaintiff's claims on grounds that the second element of copying — i.e., the test for substantial similarity — cannot be met as a matter of law. Thus, the standards for proving the element of factual copying are not directly relevant to the task at hand. Nevertheless, because components of the factual copying inquiry are sometimes confused and conflated with those for determining substantial similarity (i.e., the actionability of the copying), the Court will summarize the factual copying inquiry. Also, because copying is actionable only where the defendant has copied aspects of the plaintiff's work that are original and subject to copyright,
In some cases, the plaintiff has direct evidence of copying. Indeed, it is not unusual for a defendant to admit copying a small element of the plaintiff's work and defend the suit solely on grounds that the copied element is unprotectable or that the portion copied was not substantial. Where copying is contested and direct evidence of copying is unavailable, "factual copying may be inferred from (1) proof that the defendant had access to the copyrighted work and (2) probative similarity." Positive Black Talk, 394 F.3d at 368 (quoting Peel & Co. v. Rug Mkt, 238 F.3d 391, 394 (5th Cir.2001)). Although courts once used the term "substantial similarity" to apply to both inquiries, the test for "probative similarity" differs in both purpose and substance from that for determining "substantial similarity" (i.e. whether the copying is legally actionable). In determining probative similarity, the plaintiff's entire work is considered — "including both copyrightable and non-copyrightable parts" — and compared with the defendant's work, "looking for any similarities between their constituent parts." Positive Black Talk, 394 F.3d at 369-70. "[T]he fact that non-protectable elements were copied, although not a basis for liability, can be probative of whether protected elements were copied (i.e., help establish probative similarity)." Id. (quoting O.P. Solutions, Inc. v. Intellectual Prop. Network, Ltd., 1999 WL 47191 *3 (S.D.N.Y.1999)). A finding of probative similarity may be supported by a finding of "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 and that therefore might suggest that the defendant
"[T]he mere fact that [a plaintiff's works] are copyrighted does not mean that all aspects of those [works] are automatically protected." Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527, 533 (5th Cir.1994). Although the work itself may be original and subject to copyright, it may contain constituent elements that are not subject to copyright because they are not original or because they are otherwise unprotectable, e.g., because they constitute a concept, method, or idea or fall under the doctrine of public domain or scènes à faire. In such a case, the copyright does not extend to the unprotectable element. With some caveat,
"The sine qua non of copyright is originality." Feist Publications v. Rural Tel. Service, 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). Originality requires "that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity." Id. at 358, 111 S.Ct. 1282. Thus, "the copyright is limited to those aspects of the work — termed `expression' — that display the stamp of the author's originality." Kepner-Tregoe, 12 F.3d at 533 (quoting Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985)). In other words, though the work may be original and copyrightable, the copyright does not extend to the non-original elements of the work, and the author has no right to prevent others from copying those elements that are not original.
"Some material is unprotectible because it is in the public domain, which means that it is free for the taking and cannot be appropriated by a single author even though it is included in a copyrighted work." Boisson v. Banian, Ltd., 273 F.3d 262, 268-69 (2nd Cir.2001) (quoting Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 710 (2nd Cir.1992) (internal quotations omitted)). "[A] work may be protected by copyright even though it is based on ... something already in the public domain if the author, through his skill and effort, has contributed a distinguishable variation from the older works."
Likewise, copyright protection does not extend to scènes à faire
The "substantial similarity" inquiry determines whether factual copying is "quantitatively and qualitatively sufficient" to support liability.
Arnstein itself gave little guidance as to substance of the test, stating only that "the test is the response of the ordinary lay hearer" to the work and that as such, "`dissection' and expert testimony are irrelevant." Id. The question is simply whether the defendant took from the plaintiff's works "so much of what is pleasing to the ears of lay listeners" comprising "the audience for whom such popular music is composed" that it "wrongfully appropriated something which belongs to the plaintiff." Id. at 473. Post-Arnstein, the Second Circuit has added a little meat to the bones, stating that inquiry should be whether "the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same." Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960). This traditional "ordinary observer" test has evolved into several hybrids, the two most prominent variations being (1) the Ninth Circuit's "extrinsic/intrinsic" test, and (2) the Second Circuit's "abstraction-filtration-comparison" analysis. Although the Fifth Circuit has expressly adopted neither of these approaches outside of the computer software arena, aspects of both have permeated into this Circuit's jurisprudence. Thus, both must be addressed.
In Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp.,
The test for determining whether there is substantial similarity in expressions (as opposed to ideas) is called "intrinsic" because it "depend[s] on the response of the ordinary reasonable person" to the work. Id. The Krofft court seemed loath to explain the standard further, emphasizing that it is a subjective one left to the "ordinary reasonable observer." Id. at 1168. However, the Krofft court was firm that analytic dissection of the work — i.e., assessing similarity between isolated elements of the works — is inappropriate at this stage. Id. at 1168. Despite prominent differences evident in analytic dissection, a "combination of many different elements" may be entitled to protection "because of its particular subjective quality." Id. Moreover, while a similarity by itself may be trivial, a finding of substantial appropriation may nonetheless be appropriate due to the "over-all impact and effect." Id. (quoting Malkin v. Dubinsky, 146 F.Supp. 111, 114 (S.D.N.Y.1956)).
Indeed, the Ninth Circuit has held that a subjective impression of similarity between the works "considered as a whole" may support a finding of infringement even where that holistic impression of similarity derives from elements that are themselves unprotectable. In Roth Greeting Cards v. United Card Co.,
While the Ninth Circuit holds that a combination of unprotectable elements may sustain a finding of substantial similarity, this holding is not without limit. Satava v. Lowry, 323 F.3d 805, 811 (9th Cir.2003) ("It is true, of course, that a combination of unprotectable elements may qualify for copyright protection.... But it is not true that any combination of unprotectable elements automatically qualifies for copyright protection"). The Satava court stated the limiting principle for this doctrine thusly: "[A] combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their
The Second Circuit's "abstractions" and "filtration" analyses derive from Judge Learned Hand's opinion in Nichols v. Universal Pictures.
In Computer Associates Int'l, Inc. v. Altai,
Under the traditional Arnstein test and even in Nichols, the use of "dissection" or expert testimony was discouraged if not prohibited in the final "substantial similarity" inquiry, which was judged strictly from the perspective of the ordinary lay listener or observer. The Altai court, however, recognized that unlike film or music, the subject matter of computer programming is "somewhat impenetrable" and not readily comprehensible to the lay person, whether judge or jury. Id. at 713. Thus, in computer cases, the factfinder "need not be limited by the structures of his own lay perspective" and the admissibility of expert testimony, even on the substantial similarity question, should be left to the trial judge's discretion. Id. The Altai court emphasized, however, that "[i]n so holding, [it did] not intend to disturb the traditional role of lay observers in judging substantial similarity in copyright cases that involve the aesthetic arts, such as music, visual works or literature." Id. at 713-14.
Although the Altai test has not been extensively employed in its pure form outside the realm of computer programming and other highly technical subject matters,
The Sixth Circuit has incorporated this threshold "filtering" step into a structured two-tier analysis. "[1] first, the court must `identify[] which aspects of the artist's work, if any, are protectible by copyright' and, [2] second, `determin[e] whether the allegedly infringing work is substantially similar to the protectible elements of the artist's work.'" Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 274 (6th Cir.2009) (quoting Kohus v. Mariol, 328 F.3d 848, 855 (6th Cir.2003)) (internal quotation and citation omitted). "To complete the first step, the court must `filter' out elements of the work that are not original to the author[,].... [s]cènesà faire, the indispensable or standard aspects of a work, or those that `follow directly from unprotectable ideas'...." Id. (footnote omitted) (quoting Murray Hill Publ'ns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 318-19 (6th Cir. 2004)).
Other courts have simply applied the filter as a threshold matter or as an integral part of the substantial similarity inquiry itself. See, e.g. Mattel, Inc. v. MGA Entertainment, Inc., 616 F.3d 904, 916 (9th Cir.2010) (Kozinski, J.) ("The district court did err, however, in failing to filter out all the unprotectable elements of
Against this backdrop, the Eight Circuit stands out in expressly disallowing the filtering of unprotectable elements. In Taylor Corp. v. Four Seasons Greetings, LLC, in two consecutive opinions (Taylor I and Taylor II),
Given the apparent inconsistencies between a "filter" analysis and the Ninth Circuit's "total concept and feel" approach, it is somewhat surprising that the Second Circuit, matrix of the "filter" approach (also known as the "more discerning" ordinary observer test), has also adopted the "total concept and feel" approach (though without the analytical structure of the extrinsic/intrinsic test), including holding that a combination of unprotectable elements can support a finding of substantial similarity. On their faces, these two approaches seem mutually exclusive, as the Eight Circuit has found.
The "unique combination" cases out of the Second Circuit are particularly helpful to understanding how these two analyses can and should work together. One of the first such cases was Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1004 (2nd Cir.1995), in which the defendant had made almost exact copies of the plaintiff's fall-theme sweaters. The defendant argued that the copying was not actionable because the elements copied were not protectable — e.g., fall colors, images of squirrels and fall leaves. The Knitwaves court rejected this argument, finding it inconsistent with the Supreme Court's decision in Feist.
What role is left then for the "more discerning" or "filter" test? The court in Mena v. Fox Entertainment Group, Inc.
While a court's analysis should begin with the "more discerning" test, by filtering out similarity based solely on unprotectable elements, the court should remain mindful that this "runs the risk of overlooking wholesale usurpation of [the] author's expression." Id. at *5 (quoting Hoehling, 618 F.2d at 979-80). Thus, a "dissected" filtered analysis is not "independently sufficient." Id. To determine if the author has created a unique combination of unprotectable elements, the court should also perform the "total concept and feel" analysis. Id. To guard against this latter analysis becoming "carte blanche to rest findings of infringement on vague or amorphous determinations," the court should "take[] care to identify precisely the particular aesthetic decisions — original to the plaintiff and copied by the defendant — that might be thought to make the designs similar in the aggregate." Id. at *6 (quoting Tufenkian, 338 F.3d at 134). In this way, the court can ensure that a finding of substantial similarity in such cases is based not on any similarity between the unprotectable elements themselves, but on a copying of the author's unique selection and arrangement of those elements, which is creative and original.
For the most part, the cases bear this out. Indeed, in nearly all the "unique combination" cases the reader can sense a strong conviction that the plaintiff's creative work was flagrantly pirated.
Likewise, in Knitwaves (the case of the fall sweaters), the defendant's sweaters not only "feature[d] the same two fall symbols... leaves and squirrels" that the plaintiff used, they also (1) rendered the squirrel and leaf in a substantially similar way, (2) "employed them in virtually the same manner... as felt appliques stitched to the
The district court in Positive Black Talk, after analyzing the state of the law, stated that it would "be forced to basically take a shot in the dark as to the law to be applied." 2003 WL 1921999 (E.D.La. 1999). Although the Fifth Circuit's subsequent opinion in that case provided some guidance,
One thing that can be said with certainty is that the Fifth Circuit has traditionally applied the "layman" or "ordinary listener" test, which was articulated in Creations Unlimited: "To determine 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.'" Creations Unlimited, Inc. v. McCain, 112 F.3d 814, 816 (5th Cir.1997). This formulation was tacitly approved in Positive Black Talk, and both sides here agree that this is the basic applicable standard for determining substantial similarity.
It also seems fairly clear that the Fifth Circuit would endorse the threshold use of a "filter" to exclude unprotectable elements from the substantial similarity analysis. The Circuit did so expressly in Kepner-Tregoe,
Although Kepner-Tregoe did not deal with music or any other artistic expression, the opinion contains nothing to suggest that the filtering of unprotectable elements should not be done in such cases. At least two other Sections of this Court have utilized a "filter" analysis in determining substantial similarity in a music copyright case. See Positive Black Talk, Inc. v. Cash Money Records, 2003 WL 1921999 *2 (E.D.La.2003) ("[D]etermination as to infringement of a copyright — the issue in this case — involves identification and isolation of the work's unprotectible elements.... Such identification is necessary because a finding of infringement cannot be premised solely upon copying of non — protectible elements of a musical composition."); Landry v. Atlantic Recording Corp., 2007 WL 4302074 *4 (E.D.La.2007) ("Where there are both protectible and unprotectible elements of a work, the court must attempt to extract the unprotectible elements from ... consideration and ask whether the protectible elements standing alone are substantially similar.") (quoting Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2nd Cir. 1995)). Of course, Kepner-Tregoe must be read in light of the Supreme Court's opinion in Feist.
In light of the foregoing, the substantial similarity inquiry employed herein shall be two-fold: a dissection and "filtering" of unprotectable constituent elements, as prescribed in Kepner-Tregoe,
The question is more than academic in this case, for as to several songs the plaintiff's allegations of infringement are based: (1) on similarity as to a single element (e.g., beat), which the Court has found to be unprotectable, (2) on similarity between multiple elements, all of which the Court has found to be unprotectable, or (3) on similarity between multiple elements, certain of which are protected and certain of which are unprotectable. Where the alleged infringement is based solely on the alleged copying of a single unprotectable element, it seems clear that a finding of substantial similarity would be directly contrary to the Fifth Circuit's holding in Kepner-Tregoe. See 12 F.3d at 533 (a conclusion that the defendant "only copied unprotectable elements" of the plaintiff's work would mandate reversal of district court's judgment finding infringement).
Where the individual elements are themselves protectable, the Court has evaluated the songs both (1) for similarity between the elements alleged in the complaint to be similar (as described in Positive Black Talk) and (2) for similarity as to a combination of elements and/or as to the work as a whole, including assessing whether particular parts of the songs might be similar due a combination of elements, even though the works taken as a whole are dissimilar. Where one or more of the alleged elements is unprotectable, the Court has considered the unprotectable element(s) only in evaluating the works for similarity as to a combination of elements and/or as to the work as a whole and only to the extent that such element(s) contribute to an overall unique "selection, coordination, and arrangement" of elements that might itself be original.
To summarize, with the exception of claims based solely on a single unprotectable element (which the Court has found to be non-actionable as a threshold matter), the Court has conducted a side-by-side listening comparison of each of the plaintiff's songs and the song that allegedly infringes it. In doing so, the Court compared each pair of songs (the allegedly infringed song vs. the allegedly infringing song) by assessing both (1) whether there is similarity between any protectable element allegedly infringed and the element of the Defendant's song that allegedly infringed it; and (2) whether there is any similarity between the "total concept and feel" of the plaintiff's song (or part thereof) and the "total concept and feel" of the allegedly infringing song, including any similarity that might be enhanced or derived from an unprotectable element. These approaches produced identical results except as to "Blues Man" (allegedly infringed by T-Pain's "Reggae Night"), which discrepancy the Court resolved in the plaintiff's favor.
The Court will address first the "filter" analysis wherein the Court determined certain constituent elements to be unprotectable and found to be non-actionable those alleged infringements which were based solely on alleged similarity in a single unprotectable element. Thereafter, the Court will explain the side-by-side comparison of the songs that remained.
In his complaint, as to each of his 45 songs, the plaintiff specifies the constituent musical elements within the song that he claims have been infringed by one or more of the Defendants' songs. These musical elements include beat, lyrics, chords, melody, chant, "hook," horns, and "gliss." Both melody and hook
Lyrics are protected by copyright as a "literary work" — an expression "in words." See 17 U.S.C. § 101. However, single "[w]ords and short phrases such as names, titles, and slogans," are not protected. 37 C.F.R. § 202.1(a). In addition, common expressions and phrases are not entitled to protection for they do not satisfy the originality requirement. See, e.g., Emanation Inc. v. Zomba Recording Inc., 72 Fed. Appx. 187, 190 (5th Cir.2003) (finding that common Cajun phrases "`We Gon Pass a Good Time, Yeah, Cher' and `You Gotta Suck Da Head of Dem Der Crawfish' do not satisfy the originality requirement"); Johnson v. Gordon, 409 F.3d 12, 23-24 (1st Cir.2005) (lyric "You're the one for me" found to be "too trite to warrant copyright protection"); Prunte v. Universal Music Group, Inc., 699 F.Supp.2d 15, 26 (D.D.C. 2010) (use of short phrase "so high" and use of touching the sky as a metaphor for being high found to be too clichéd to support a finding of actionable copyright infringement); Jean v. Bug Music Inc., 2002 WL 287786 *6 (S.D.N.Y.2002) ("[A] reasonable jury could only conclude that the lyrical excerpt `clap your hands' is not afforded copyright protection because the excerpt is a common phrase.").
The plaintiff does not specify in his complaint which lyrics he contends are infringed or the lyrics of the Defendant's songs that are infringing. In opposition to the instant motion, the plaintiff submitted the report of Archie K. Milton, which contains cryptic references to lyrics, most of which do not even specify the song from which they are extracted. The defendant's expert, Lawrence Ferrara, Ph.D., is more helpful, as Dr. Ferrara extracted any lyrics from the allegedly infringed and infringing songs that were even arguably similar. The chart below compares the Defendant's lyrics for which there can be found even a remote similarity to the plaintiff's lyrics.
Defendant's Plaintiff's Lyrics Song Song Complaint: Specifies no similar lyrics. "Freeze" "Freeze" II's Expert: "Now Freeze" in both songs. by T-Pain Δ's Expert: T-Pain's song uses only the word "Freeze" without "Now."[To the Court's ear, T-Pain's song does include the word "Now."] Complaint: Specifies no similar lyrics. "Freeze" by T-Pain "Dancin' II's Expert: "Dancin' Shoes" in both songs. Shoes" Δ's Expert: "Girl I want to battle, meet me downstairs...Bring your dancin' shoes and something to tie your hair"vs. "Get ready, I've got my dancin' shoes on" Complaint: Specifies no similar lyrics. "All I Do Is "Sportsman's II's Expert: "Win win win no matter what"vs. "Win win win at all cost" Win" Paradise" Δ's Expert: "All I Do is win win win no matter what"vs. "Win, win, win by DJ Khaled at all cost" Complaint: Specifies no similar lyrics. "All I Do Is "Move That II's Expert: (1) "Got money on my mind and I can never get enough"vs. Win" Body" Got music on my brain and I can't get enough;" (2) "And every time I by DJ Khaled step into the building"vs. "And every time I step into the house;" (3) "Everybody hands go up"vs. "Everybody come along;" (4) "And they stay there"vs. "And let it go" Δ's Expert: (1) "Floss `em up; toss `em up; hard away; boss `em up; pardon me; I'm bossin' up; pressure up..."vs. "Fire it up; give it up; blow it up; suck it up; pump it up; wind it up; buck it up;" (2) "And if you're goin' n' put your hands in the air; make `em stay there"vs. "Raise your hand in the air; jump up and down like you just don't care." "Overtime" by "Overtime" Complaint: Specifies no similar lyrics. Ace Hood II's Expert: Word "overtime" in both songs. Δ's Expert: "It's do or die; Gotta put it overtime; `Cause it's now or never; I'm gonna put it on the line; I gotta win so I'm gon grind; Put it overtime, overtime, ... (overtime); `Cause I got money on my mind; give me every penny, every dime ...."vs. "... Overtime, over you; It's all right, day and night; `Cause when I get through I'll be loving you" "Blame It" "Do It Right Complaint: Specifies no similar lyrics. by Now" II's Expert: "The time has come to make it happen is the lyric." [sic] Jamie Foxx Δ's Expert: Finds no similar lyrics. Complaint: Specifies no similar lyrics. "I'm Sprung" "Drowning In II's Expert: Mentions no similar lyrics. by T-Pain My Blues" Δ's Expert: Finds no similar lyrics. "Dancin' Complaint: Specifies no similar lyrics. "Low" Shoes" II's Expert: Mentions no similar lyrics. Δ's Expert: Finds no similar lyrics. "What's "Can't Get Complaint: Specifies no similar lyrics. Wrong" by You Off My II's Expert: Mentions no similar lyrics. Jennifer Mind" Δ's Expert: Finds no similar lyrics. Hudson Complaint: Specifies no similar lyrics. "Good Life" II's Expert: Both reference popular cities. by Kayne "Spice" Δ's Expert: "It feel like Atlanta; It feel like LA; It feel like Miami; It feel West like NY"vs. "LA is the spice of life; New York is the Spice of Life."
Having analyzed these, as well as conducting its own scrutiny of the songs purportedly containing infringed or infringing lyrics, the Court concludes that none the allegedly infringed lyrics is entitled to copyright protection. As can be seen from
Five of the claimed infringements are based on allege similarity as to lyrics only. These are: (1) "Overtime" by Ace Hood vs. plaintiff's "Overtime;" (2) "All I do Is Win" by DJ Khaled vs. plaintiff's "Move That Body;" (3) "All I do Is Win" by DJ Khaled vs. plaintiff's "Sportsman's Paradise;" (4) "Good Life" by Kanye West vs. plaintiff's "Spice;" and (5) "Freeze" by T-Pain vs. plaintiff's "Dancing Shoes." These are dismissed as part of the "filtering" analysis, for the alleged similarity is based solely on a single unprotectable element. Where the plaintiff has alleged similarity as to lyrics in addition to other elements, the Court has included lyrics as part of the side-by-side comparison discussed below, to determine whether the lyrics, while unprotectable themselves, might contribute to an overall impression of similarity.
The Plaintiff has alleged that the defendants have infringed the "chords" and "beat" in dozens of his songs. However, the basic harmonic and rhythmic building blocks of music, especially popular music, have long been treated by courts as well-worn, unoriginal elements that are not entitled to copyright protection. Moreover, the basic beats and chord progressions used in the plaintiff's songs are customary throughout the funk and R & B genres, making them unprotectable scènes à faire, as explained below.
As recognized long ago in Northern Music Corp. v. King Record Distributing Co.,
As with chord progressions, there are only a limited number of tempos, and "these appear to have been long since exhausted." Northern Music, 105 F.Supp. at 400. Thus, "originality of rhythm is a rarity, if not an impossibility." Id. Accordingly, as with chords, courts have been consistent in finding rhythm to be unprotectable. See, e.g., Currin v. Arista Records, Inc. 724 F.Supp.2d 286, 294 (D.Conn. 2010) (basic 4/4 rhythm is "commonplace"); Velez v. Sony Discos, 2007 WL 120686 *12 (S.D.N.Y.2007) (finding "common time rhythm" used in both songs to be unprotectable scènes à faire); Tisi, 97 F.Supp.2d at 544 (guitar rhythm and "basic percussion rhythm" found to be "extremely common in the pop rock genre"); McRae, 968 F.Supp. at 566 (two-step rhythm found to be "similar to many other country songs" and thus "non protectable"); Intersong, 757 F.Supp. at 282 ("recurring eighth note rhythm" found to be unprotectable scènes à faire). While it is possible that rhythm might be expressed in an original and innovative way, there is nothing in this record to suggest that the plaintiff's use of rhythm is anything but customary to the genre. Thus, like chords, it is an unprotectable element.
Twenty-two (22) of the claimed infringements are based upon alleged similarity as to "chords" alone:
"Chords Only" Claims
Artist Defendant's Song Plaintiff's Song
1 Ace Hood Body 2 Body Runnin' Away
2 Ace Hood ErryThang Runnin' Away
3 Akon 69 Can't Get You Out Of My Mind
4 Akon Holla Holla It's All About The Family
5 DJ Khaled All I Do Is Win Louisiana
6 DJ Khaled No New Friends Can't Get You Out Of My Mind
7 Jaime Foxx Blame It Nothin' But The Funk
8 Spice
9 Lonely Island I * * * *ed My Aunt Runnin' Away
10 Rick Ross Aston Martin Music Romantic Sequence 11 Rick Ross B.M.F. Fur Elise 12 Rick Ross The Boss Ring Me 13 Tay Dizm Beam Me Up Party Down 14 T-Pain Can't Believe It Slow and Easy 15 T-Pain Church Fur Elise 16 T-Pain Freeze Hooked On You 17 T-Pain I'm Sprung Can't Get You Out Of My Mind 18 T-Pain Put It Down Can't Get You Out Of My Mind 19 T-Pain Regular Girl Nothin' But The Funk 20 T-Pain Save You Can't Get You Out Of My Mind 21 T-Pain Show U How Still (Singing the Blues) 22 T-Pain/Lil Wane Bang Bang Pow Pow It's All About The Family
Twenty-nine (29) of the claimed infringements are based upon alleged similarity as to "beat" alone:
"Beat Only" Claims
Artists Song Title Plaintiff's Song
1 Ace Hood Overtime I Got The Rhythm On
2 Ace Hood Body 2 Body Bam There You Have It
3 Akon 69 Drowning In My Blues
4 Akon Holla Holla Drowning In My Blues
5 DJ Khaled All I Do Is Win Ring Me
6 DJ Khaled I Wish You Would Bam There You Have It
7 DJ Khaled No New Friends Bam There You Have It
8 DJ Khaled Take It To The Head Drowning In My Blues
9 DJ Khaled Welcome To My Hood It's On (The Jam Is On)
10 E40 U and Dat Spice
11 Jennifer Hudson What's Wrong I Like Your Way
12 Kanye West Good Life Hip Jazz
13 Nelly Move That Body Love Fest
14 Pitbull Hey Baby Starlite
15 Rick Ross All The Money In The Drowning In My Blues
World
16 Rick Ross Aston Martin Music Bam There You Have It
17 Rick Ross B.M.F. My Bad
18 Rick Ross The Boss Drowning In My Blues
19 T-Pain 5 O' Clock Drowning In My Blues
20 T-Pain Buy You A Drank Drowning In My Blues
21 T-Pain Church Space Station
22 T-Pain Freeze Sportsman's Paradise
23 T-Pain Nuthin' Kids
24 T-Pain Rap Song Bam There You Have It
25 T-Pain Reggae Night Bam There You Have It
26 T-Pain Regular Girl Runnin' Away
27 T-Pain Show U How Hooked On You
28 T-Pain Take Your Shirt Off Bam There You Have It
29 T-Pain/Lil Wane Bang Bang Pow Pow Oh Carnival
All of these claims ("chords only" claims and "beat only" claims) are dismissed herein as part of the Court's "filter" analysis, for the alleged similarity is based solely on a single unprotectable element. Where the plaintiff has alleged similarity as to "chords" or "beat" in addition to similarity as to other elements (including where "chord" and "beat" are the only two elements alleged to be similar), the Court has included chord and beat as part of its side-by-side comparison to determine whether they might contribute to holistic impression of similarity.
The only alleged similarity between T-Pain's "Freeze" and the plaintiff's "When She Smiles" is in the "gliss" (glissando).
Finally, in claiming infringement of "Sportman's Paradise" by Chris Brown's "Kiss, Kiss," the sole similarity alleged is in "chant." As described by the defendant's expert, the chants in these two songs feature a "shouted lyric that starts with an `ah' on the second half of beat 3 that swoops up, and is followed by an accented word on the next downbeat."
For all claimed infringements as to which the plaintiff alleged similarity as to melody, hook, or a combination of elements, the Court performed a side-by-side comparison to determine whether an ordinary reasonable listener would find the works (or parts thereof) to be substantially similar. The Court listened for similarities
Side-by-Side Comparison — No Similarities Found
Artists Song Title Plaintiff's Song Claim
1 Ace Hood Overtime Sudden Death Melody
2 Ace Hood Cash Flow Blues Man Beat
3 Blues Man Hook
4 Ace Hood Can't Stop Sportsman's Paradise Chords
5 Sportsman's Paradise Beat
6 Sportsman's Paradise Melody
7 Ace Hood Stressin' Romantic Sequence Chords
8 Romantic Sequence Beat
9 Ace Hood Top of the World Louisiana Chords
10 Louisiana Beat
11 Akon 69 Download My Love Hook
12 Akon Holla Holla My Bad Hook
13 Baby Bash Cyclone It's On (The Jam Is On) Melody
14 It's On (The Jam Is On) Beat
15 It's On (The Jam Is On) Hook
16 Chris Brown Kiss Kiss It's On (The Jam Is On) Beat
17 It's On (The Jam Is On) Melody
18 Ciara Go Girl Space Station Chords
19 Space Station Beat
20 Space Station Melody
21 DJ Khaled All I Do Is Win I Got the Rhythm On Melody
22 Still (Singing the Blues) Melody
23 DJ Khaled I'm So Hood It's On (The Jam Is On) Beat
24 It's On (The Jam Is On) Melody
25 DJ Khaled I Wish You Would Still (Singing the Blues) Chords
26 Still (Singing the Blues) Hook
27 DJ Khaled No New Friends It's All About the Family Hook
28 DJ Khaled Out Here Grindin Space Station Beat
29 Space Station Melody
30 Still (Singing the Blues) Hook
31 DJ Khaled Take It to the Head Never Leave You Baby Chords
32 Never Leave You Baby Hook
33 DJ Khaled We Taking Over' Move That Body Beat
34 Move That Body Hook 35 Still (Singing the Blues) Melody 36 DJ Khaled Welcome To My Hood Ring Me Hook 37 E40 U and Dat It's On (The Jam Is On) Melody 38 Flo-Rida Low Dancin' Shoes Chords 39 Dancin' Shoes Beat 40 Dancin' Shoes Lyrics 41 Dancin' Shoes Melody 42 Jaime Foxx Blame It Do It Right Now Melody 43 Do It Right Now Lyrics 44 My Bad Melody 45 Runnin' Away Melody 46 Jennifer Hudson What's Wrong Can't Get You Off My Mind Melody 47 Can't Get You Off My Mind Lyrics 48 Jesse McCartney Body Language Drowning in My Blues Beat 49 Drowning in My Blues Melody 50 Kanye West Good Life Can't Get You Off My Mind Chords 51 Can't Get You Off My Mind Melody 52 Lil Kim Download Can't Get You Off My Mind Chords 53 Can't Get You Off My Mind Beat 54 Can't Get You Off My Mind Melody 55 Download My Love Melody 56 Lil Mama Shawty Get Loose Space Station Melody 57 Space Station Chords 58 Space Station Beat 59 Lonely Island I * * * *ed My Aunt Goin' See The Man Beat 60 Goin' See The Man Horn 61 Pitbull Hey Baby Love Horizon Melody 62 Pitbull Shake Seniora Tropical Blue Chords 63 Tropical Blue Beat 64 I'll Be There Melody 65 Rick Ross All the Money in the Never Leave You Baby Chords World 66 Never Leave You Baby Hook 67 Rick Ross The Boss Still (Singing the Blues) Hook 68 Snoop Dog Boom Bam There You Have It Beat 69 Bam There You Have It Melody 70 Sportsman's Paradise Melody
71 Tay Dizm Beam Me Up Starlite Beat 72 Starlite Hook 73 Starlite Melody 74 T-Pain 5 O'Clock Just You And I Chords 75 Just You And I Melody 76 T-Pain Best Love Song Overtime Chords 77 Overtime Beat 78 Do It Right Now Melody 79 T-Pain Booty Wurk Space Station Beat 80 Space Station Melody 81 T-Pain Buy You a Drank I'll Be There Chords 82 I'll Be There Melody 83 T-Pain Can't Believe It Hooked On You Melody 84 Hooked On You Beat 85 T-Pain Church Sportsman's Paradise Hook 86 T-Pain Freeze Freeze Melody 87 Freeze Lyrics 88 It's All About the Family Melody 89 T-Pain Freaknik is Back Fur Elise Chords 90 Fur Elise Beat 91 T-Pain I'm Sprung Drowning in My Blues Beat 92 Drowning in My Blues Lyrics 93 T-Pain Karaoke Ring Me Chords 94 Ring Me Beat 95 Ring Me Melody 96 T-Pain Nuthin' It's On (The Jam Is On) Melody 97 T-Pain Rap Song Runnin' Away Chords 98 Runnin' Away Melody 99 T-Pain Reality Show Hooked On You Melody 100 Can't Get You Off My Mind Beat 101 Can't Get You Off My Mind Chords 102 It's All About the Family Melody 103 T-Pain Regular Girl My Bad Hook 104 T-Pain Save You Runnin' Away Melody 105 Runnin' Away Beat 106 T-Pain Sho-Time Can't Get You Off My Mind Beat 107 Can't Get You Off My Mind Melody 108 T-Pain Show U How Can't Get You Off My Mind Melody 109 T-Pain Take Your Shirt Off Move That Body Melody
110 T-Pain Turn All The Lights On Starlite Melody 111 Starlite Beat 112 Starlite Hook 113 T-Pain You Got Me Can't Get You Off My Mind Melody 114 Can't Get You Off My Mind Beat 115 T-Pain/Lil Wayne Bang Bang Pow Pow Nothin' But the Funk Hook 116 Travie McCoy Billionaire Download My Love Chords 117 Download My Love Melody 118 Louisiana Melody 119 Reggae Music Beat 120 Reggae Music Chords 121 Still (Singing the Blues) Melody 122 Young Cash Freeze Bam There You Have It Chords 123 Bam There You Have It Beat 124 Freeze Hook
The most that can be said with respect to these claims in terms of similarity is that the plaintiff's songs and the allegedly infringing songs can all be categorized as popular music and, thus, share the same basic (usually danceable) beat ubiquitous in popular music and occasionally share one of the basic chord progressions common to all popular music genres. That is where the similarity ends. The "total concept and feel" of the plaintiff's songs are dramatically different from the songs that allegedly infringe them. The Defendant's songs are rap and/or hip-hop. The plaintiff's songs range from classic rhythm and blues, to disco, to the classic New Orleans funk style that can be heard at venues throughout this city on any given evening. A few of the plaintiff's songs have a popular jazz style reminiscent of that which was popular in the late 1960s and early 1970s. Virtually everything about these song pairs is different: the genre, the themes, the melodies, the harmonies, the lyrics, the vocals, and the instrumentation. Indeed, it is difficult to overstate how different they sound to the lay ear. Moreover, this lay perception of lack of similarity is supported by the detailed and methodical musicological analysis of the defendant's expert, Dr. Ferrara. See Rec. Docs. 58-4, 113-2. No reasonable juror could find substantial similarity as to any of these claims.
As to a small number of claims, the Court was able to detect some very slight similarity in an element shared between the plaintiff's song and the allegedly infringing song. These pairs are listed in the following chart:
Side-by-Side Comparison — Only Slight Similarities Found
Δ's Song at Similar Element II's Song at Similar Element
Ace Hood "Overtime" 0:13 Low background melody "Sudden Death" 0:00 Synthesizer melody in
in combination with combination with
drumbeats drumbeats
Baby Bash "Cyclone" 0:13 Scratching oscillating "It's On (The Jam Is 0:12 Background synthesizer motif On)" guitarmelody Lil Mama "Shawty Get 0:03 Beeping (whistlelike) "Space Station" 0:16 Melodic synthesizer Loose" "hook" in the "hook" background Snoop Dog "Boom" 0:00 Beeping high-pitch melodic "Sportsman's Paradise" 0:20 Piano-like synthesizer synthesizer "hook" background melody T-Pain "Can't Believe 0:13 High-pitch bell-like "Hooked On You" 0:17 High-pitch synthesizer It" synthesizer tones melody T-Pain "Church" 0:12 Repeating fast guitar "Sportsman's Paradise" 0:20 Guitar background T-Pain "Freeze" 0:03 Scratching synthesizer "Freeze" 0:05 Background guitar melody melody 0:08 Scratching synthesizer "It's All About The 0:06 Synthesizer background " melody Family" harmonies T-Pain "Rap Song" 0:13 Jingling piano-tone "Runnin' Away" 0:00 Synthesizer melody sequence T-Pain "Reality Show" 0:07 Short piano melody "Hooked On You" 0:17 Wind instrument's melody 0:02 Jingling element of the "Can't Get You Off My 0:00 Low-pitch electronic "hook" Mind" melody T-Pain "Reality Show" 0:03 Guitar element of the "It's All About The 0:00 Element of the "hook" Family" synthesizer "hook" T-Pain "Save You" 0:20 Synthesizer low-pitch "Runnin' Away" 0:00 Synthesizer (or sounds key-board) melody T-Pain "Sho-Time" 0:01 Bell-like high-pitch melody "Can't Get You Off My 0:14 Guitar background Mind" melody T-Pain "Turn All The 0:01 Low scratching electronic "Starlite" 0:10 Low pulsing synthesizer Lights On" "hook" background
Using a "dissection" analysis and relying heavily on the export reports, the Court was able to hear faint similarities in certain of the specific elements (melody or hook) alleged to be similar with respect to these claims. On closer listening, however, the melodies and hooks in question prove to be quite different. Thus, the similarity is very slight — certainly not substantial, even when the somewhat similar element is isolated.
Thus, as to all of the claims in these two charts, the Court finds that no reasonable juror could find substantial similarity — as to the constituent elements stated in the complaint, as to any combination of those elements, as to the songs taken as a whole, or as to any part(s) thereof. As to these claims, the Defendants are entitled to judgment as a matter of law.
Dr. Ferrara concluded that the similarity between Nelly's "Move That Body" and the plaintiff's "Move That Body" is limited to the use of the same title phrase "Move That Body," which is repeated in the hook lyrics of both songs. See Rec. Doc. 58-4 at 24-26. Dr. Ferrara found the melodies to be very different. Id. at 25. However, Dr. Ferrara's scoring of the two melodies compares the vocals of Nelly's chorus to the vocals of the plaintiff's chorus. The melody that is shared in the two songs, however, is not carried by the vocals in the plaintiff's song. While it is carried by both synthesizer and vocals in Nelly's song, it is carried in the plaintiff's song largely by the synthesizer "hook," which weaves throughout the entirety of the plaintiff's song. The vocals in the plaintiff's song carry a very different and much less catchy melody. The melodic "hook" in the plaintiff's song seems to be carried by the synthesizer and, to lay ears, it sounds quite similar to the melodic hook in Nelly's song.
While the similarities between "I Like Your Way" and T-Pain's "Put It Down" are not as striking as those between the two "Move That Body" songs, they are likewise substantial. Dr. Ferrara concluded that there is no similarity between the beat and melody in "I Like Your Way" and those in T-Pain's "Put It Down." See Rec. Doc. 58-4 at 115-16. The Court, however, finds a similarity between the melody (carried by the vocals) in the chorus of both songs.
The only claim as to which the Court is uncertain is that of "Blues Man" (allegedly infringed by T-Pain's "Reggae Night"). "Reggae Night" is a dialogue or skit involving two women outside a night club with music playing in the background. The court does detect similarity between the background music in "Reggae Night," which is a minor element of the recording, and Plaintiff's "Blues Man." The "total concept and feel" of "Blues Man" versus that of "Reggae Night" is completely different. Indeed, "Reggae Night" is not a song at all. Dr. Ferrara opines that the
Thus, based on the record as it currently stands, drawing all reasonable inferences therefrom in the plaintiff's favor, the Court is unable to conclude at this time that no reasonable juror could find a substantial similarity between "Blues Man" and "Reggae Night" using a "dissection" approach. Accordingly, in light of the suggestion in Positive Black Talk that substantial similarity necessitates only that parts of a work be similar (provided the similar parts are sufficiently qualitatively and/or quantitatively important), the Court will deny summary judgment at this juncture as to this claim. This holding is without prejudice to the defendant's right to re-urge a more targeted motion for summary judgment on the issue of substantial similarity directed to this claim alone.
The plaintiff's expert, Archie Milton, makes several allegations of digital "sampling" throughout his report. See Rec. Doc. 111-2. He bases these allegations on results he claims to have obtained from a computer software called "Melodyne." Id. at 3. The defendant's sampling expert, Paul Geluso, raises serious questions concerning Mr. Milton's methodology. See Rec. Doc. 113-3. The Court need not address these questions today, however, for the plaintiff has made no allegations in his complaint that would give rise to a claim of digital sampling. For example, he has made no allegations that any copyright in sound recording has been infringed. Rather, his allegations are limited to alleged infringements of copyrights in his music compositions. This, of course, raises the specter of an amending complaint. The Court will shortly issue a scheduling order with pretrial deadlines, including a deadline for amending pleadings. However, the Court strongly cautions the plaintiff that he should consider very carefully any decision to add sampling claims. First, while the Sixth Circuit has applied a different standard to digital sampling (i.e., where sounds from the plaintiff's sound recording are not imitated, but rather are literally lifted from the recording and incorporated into the defendant's recording),
Second, aside from possible impediments in the law, there is the serious concern of a good faith factual basis. While the plaintiff is certainly entitled to bring his bona fide grievances to this Court, he is not entitled to throw everything he has against the proverbial wall to see what might adhere.
Accordingly;
