E.D. La. (filed 2017)
“Hip Jazz” Audio Recording
“World of Blues” Audio Recording
“Salsa 4 Elise” Audio Recording
“I Got the Rhythm on” Audio Recording
Ben Haggerty (“Macklemore”)
“Thrift Shop” Audio Recording
“Neon Cathedral” Audio Recording
Comment by Niall Fordyce
Third time’s a charm? On May 17, 2018, Hon. Martin Feldman denied Defendants Ryan Lewis, et al.’s (“Defendants”) Federal Rules of Civil Procedure, Rule 12(b)(6) Motion to Dismiss Plaintiff Paul Batiste’s (“Plaintiff”) Second Amended Complaint in the matter of Paul Batiste v. Ryan Lewis, et al., Case 2:17-cv-04435-MLCF-KWR.
After the initial complaint, an amended complaint, and now, the second amended complaint, it appears that Plaintiff has alleged facts sufficient for his lawsuit alleging various copyright infringements by Defendants in their works “Thrift Shop,” “Can’t Hold Us,” “Need to Know,” “Same Love,” and “Neon Cathedral” to move forward.
After filing his initial complaint, a puzzling mishmash of vague allegations, Plaintiff has had a couple more bites at the apple, and has introduced lots of additional details to his infringement claims. While Plaintiff’s Second Amended Complaint undoubtedly contains a considerably more detail than his earlier attempts, it remains a somewhat odd and confusing collection of still puzzling allegations when viewed from both a legal and musical perspective.
For instance, in describing the alleged violations in Defendants’ work “Thrift Shop,” Plaintiff repeatedly refers to “samples,” but it is not clear what Plaintiff means. The “distinct saxophone of ‘Thrift Shop’ that is [sic] begins at 0:21:000 is digitally sampled from World of Blues at 0:16:231 where the lyrics are ‘the blues is what you make it.’” Does Plaintiff actually mean that Defendants have misappropriated part of the musical composition around the melody in Plaintiff’s work? Does Plaintiff mean that Defendants actually sampled the vocal line from the original sound recording and transmogrified it into the saxophone ostinato in “Thrift Shop”? Is Plaintiff claiming to have some sort of copyright in a generic blues melody that loosely outlines a descending arpeggio?
Plaintiff’s claims of infringement in his brief melodic snippet (“I’m in a world of blues”) by Defendants at “I’ll wear your granddad’s clothes” near the end of “Thrift Shop” fares no better. Even if Plaintiff has some sort of copyright interest in this brief snippet, which is unlikely, Defendants’ outlining the root minor triad in comparison with Plaintiff emphasizing the “blue” note between the minor and major third scale degree is altogether dissimilar, both melodically and harmonically.
Plaintiff goes on: “The hi-hat swing of 0:33:864 of ‘Hip Jazz’ is sample [sic] to create the introduction of ‘Thrift Shop.’ Essentially, the strong accent on the last beat of the four-count measure in ‘Hip Jazz’ is digitally sampled.” Is the hi-hat sampled or not? How is something “essentially” sampled? Is Plaintiff claiming copyright in hi-hat swing, or hitting on twos and fours?? If Plaintiff is claiming actual sampling, as in taking excerpts from Plaintiff’s sound recordings and reusing and recasting them, he may be able to prove up his case, but at this point, it is not clear quite what Plaintiff is claiming. And either way, Plaintiff has no copyright in a swung hi-hat.
The claims regarding Defendants’ work “Neon Cathedral” are no less odd. Neon Cathedral “samples” the melody of “Salsa 4 Elise (Fur Elise)”? Where? How? Plaintiff references the “hook” of “Salsa 4 Elise (Fur Elise).” Would this be the melody composed by Beethoven in Bagatelle / Albumblatt No. 25, or part of Plaintiff’s guitar noodling? “[T]he chords of ‘Neon Cathedral’ at 1:57:247 is [sic] a sample of Fur Elise at 1:34:181.” First, what does Plaintiff mean by “sample,” and second, no, they are not. The harmony in both works moves from tonic to dominant to submediant, but there is simply no copyright protection available in such a generic chord sequence. Plaintiff does not point out that the two chord progressions then move in markedly dissimilar directions.
The foregoing are just a few examples of peculiarities with Plaintiff’s Second Amended Complaint. Notwithstanding what appear to be various nomenclature issues and other shortcomings in Plaintiff’s pleading, the standard for Plaintiff’s lawsuit to survive Defendants’ challenge at this point is not high, and the court’s ruling denying Defendants’ motion demonstrates as much.
At the outset of its order denying Defendants’ Rule 12(b)(6) Motion to Dismiss, the court had to address a slightly unusual issue – along with their motion to dismiss, Defendants submitted their expert’s report / musical analysis of the musical works in question here, along with recordings of the works in question. A Rule 12(b)(6) motion to dismiss typically only allows the court to consider the pleadings in making its determination whether to dismiss the matter. However, under Federal Rules of Civil Procedure, Rule 12(d), the court may consider documents outside the pleadings (here, Defendants’ expert report), but in so doing, the motion to dismiss would be treated as a FRCP Rule 56 motion for summary judgment. It is not clear from the court’s opinion whether Defendants countenanced this possibility when submitting their 12(b)(6) motion. Regardless, the court did not take the summary judgment route, instead relying on 5th Circuit case law allowing the court to consider documents referred to in Plaintiffs’ complaint that are “central to the plaintiff’s claims.” Scanlan v. Texas A&M University, 343 F.3d 533, 536 (5th Cir. 2003).
In so ruling, the court allowed sound recordings of the various musical works in question as part of its analysis of Defendants’ motion, but did not consider Defendants’ expert analysis. At a minimum, the court’s decision not to treat defendants’ 12(b)(6) motion as a motion for summary judgment will prevent additional procedural issues arising when Defendants move for summary judgment under FRCP Rule 56, as they surely will should this case not otherwise settle or be dismissed.
The court then turned to the substantive merits of Defendants’ motion to dismiss. When considering a Rule 12(b)(6) motion, the court must consider whether a plaintiff’s complaint, taken as true, plausibly alleges the elements necessary to establish a successful claim. However, although dismissal at the pleading stage is strongly disfavored, the factual allegations must rise above the level of speculative; proper pleading sufficient to survive a 12(b)(6) motion requires more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (citing Fed. R. Civ. P. 8).
Here, the court addressed whether Plaintiff’s complaint, taken as true, plausibly alleged the three requirements to a successful claim for all the works Plaintiff claims were infringed: 1) valid copyright; 2) factual copying through either access and probative similarity or striking similarity; and 3) substantial similarity. The court was able to dispose of the first element quickly, noting that Plaintiff has provided a copyright registration number for each of his works he claims has been infringed.
As to the second element, factual copying, the court pointed out that Plaintiff has not alleged sufficient facts to show access and probative similarity. Plaintiff’s Second Amended Complaint does nothing more than infer and suggest that Defendants had access to Plaintiff’s works. As noted, mere suspicion that Defendants could have found Plaintiff’s music is not sufficient, even at the pleading stage. Plaintiff must allege facts to show Defendants had a “reasonable opportunity” to view the work(s). Considering that Plaintiff has now amended his original complaint twice, the court correctly ruled that after three tries, Plaintiff has failed to establish access on the part of Defendants. (As an aside, note that the only version of “Hip Jazz” by Batiste apparently available on YouTube was not uploaded until several days after Plaintiff filed his initial lawsuit. Odd…)
The court then addressed whether having failed to show access, Plaintiff has sufficiently pled that the works in question are strikingly similar. This does not concern an actual substantive musical analysis, but instead, an analysis as to whether the words of Plaintiff’s Second Amended Complaint, when taken as true, are sufficient to meet the standard to show that Plaintiff’s works are so similar to Defendant’s alleged infringing works that the only explanation is direct copying by Defendants of Plaintiff’s works.
To quote the court:
“[Plaintiff} meets his burden. He alleges that the defendants willfully copied several protectable elements of his copyrights. Specifically, he alleges that Thrift Shop misappropriated the beat, drums, introduction, and bass line of Hip Jazz and the distinctive melody of World of Blues. He alleges that Neon Cathedral misappropriates the hook, melody, and chords of Tone Palette, and that Can’t Hold Us copies the beat and bass line of Starlite Pt. 1. Batiste repeats these allegations for each of his original works. Taken as true, Batiste pleads that the defendants unlawfully copied large portions of his compositions. If proven, Batiste would meet his burden to show striking similarity.”
Again, note that the court’s conclusion does not weigh in as to whether the works are actually strikingly similar either factually or as a matter of law. The court is doing nothing more than determining whether Plaintiff has met the basic pleading requirements for the lawsuit to more forward. In fact, in the final full paragraph of the order, the court specifically states that “at the pleading stage, the Court is limited to the facts alleged in the complaint; it is not acting as a fact finder… [Plaintiff] meets his burden to allege copyright infringement.” Court’s Order, p. 11, emphasis added.
As for the third factor, substantial similarity, the court made clear that considering Plaintiff’s Second Amended Complaint meets the stringent standard for striking similarity, it also meets the lower standard for substantial similarity. The court also pointed out that Plaintiff’s complaint cites the elements he claims were sampled, and where the sampled portions appear in Defendants’ works.
So Plaintiff overcame Defendants’ challenge, and lives to fight on. But based on what has been revealed in the matter thus far, Plaintiff has a hard road to hoe in making a viable case. Surviving a Rule 12(b)(6) motion to dismiss is not hard, and should be no cause for celebration for Plaintiff. Perhaps there is more to this lawsuit than currently meets the eye, but at least one thing is for certain: the legal bills will continue to mount. Stay tuned…
Second Amended Complaint: (PDF)
District Court Order: (PDF)