Richardson v. Kharbouch [INPLAY]

Comment by Charles Cronin

The Plaintiff’s work comprises a combination of different sounds heard in a repeating sequence over an underlying steady beat. It is akin to “music” heard in spas and yoga classes — assemblies of bird calls, tinkling bells, low-pitched drones, etc. — not meant to be listened to, but rather simply to establish a certain mood in the hearer. Accordingly, the Plaintiff’s claim depends largely on whether his work contains protectable original musical expression, and is not simply an assembly of un-protectable sounds. Assuming his choice and arrangement of these sounds evince at least a modicum of protectable original musical expression, it appears Defendant would be liable for infringement if he used in the background of his song a literal copy of this expression.

As courts have articulated in recent decisions in the claims against Katy Perry and Led Zeppelin, when a plaintiff’s infringement allegation is based on a claim to a particular choice and arrangement of otherwise unprotectable musical elements, his copyright protection is “thin”. Only works that are “virtually identical” to such thinly protected works could be considered infringing.

The Complaint (below) asserts Plaintiff registered his work as a Sound Recording (and apparently not ((also)) as Performing Arts work). Accordingly, although not expressly stated in the Complaint, the allegation might be interpreted as a claim of unauthorized sampling by the Defendants of Plaintiff’s protected recording. In either case, Defendants appear to have used a literal copy of the Plaintiff’s work and recording of it, and there are no apparent fair-use justifications for having done so.

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On March 30, 2023 U.S. District Judge Nancy Maldonado issued a memorandum opinion and order (below) denying Plaintiff’s motion for summary judgment, which was based on his claim that “a reasonable jury” would determine Defendant’s work infringed upon Plaintiff’s. Citing the well-known music infringement dispute from the 1980s, Selle v. Gibb, Maldonado identified a more stringent requirement to obtain summary judgment — “a very high bar that the plaintiff ultimately does not clear” — that no reasonable juror could attribute the similarities between the contested works to anything other than illicit copying.

Judge Maldonado also addresses the incongruity between Plaintiff’s sound recording copyright registration and his infringement allegations that implicate rights associated with a performing arts copyright, rather than the more limited rights for a sound recording.

Plaintiff found the District Court’s disposition of his claim disagreeable and, within a week or two of its publication, informed the Seventh Circuit of his intent to appeal it.

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Complaint: PDF

Defendant’s Answer to Complaint: PDF

U.S. District Court Order Denying Defendants’ Jurisdictional Challenge: PDF

U.S. District Court Memorandum Opinion & Order (March 30, 2023): PDF

Defendant’s Motion for Summary Judgment or Partial Summary Judgment: PDF

Plaintiff’s Response in Opposition to Defendant’s Motion: PDF

Defendants’ Reply: PDF

U.S. District Court Memorandum Opinion & Order (January 4, 2024): PDF