2007 WL 120686 (S.D.N.Y. Jan. 16, 2007)
Comments by Charles Cronin
This dispute is another instance of the regrettable inefficiencies, and waste of public and private (Defendant’s) resources, resulting from U.S. courts’ over-accommodation of groundless infringement claims (often, as here, pursued by pro se litigants). Consider the Plaintiff’s “evidence” of infringement, which the court reviews thoroughly: (1) structural similarity based merely on the fact that both songs use 4- and 8-bar phrases in common time, and (2) melodic similarity, despite the fact that the Opinion carefully compares the sequences of pitches in the melodies of the two songs, demonstrating that they are utterly dissimilar.
And then, what to make of the Plaintiff’s aspersions cast at Lawrence Ferrara, the Defendant’s musical expert, arguing his report should be excluded from consideration “because there is no indication he is talented.” The Court diligently marshals evidence of Ferrara’s bona fides and experience in response to such “arguments”, but what a waste of time! Wouldn’t it be better, when approached with such insubstantial claims, courts referred plaintiffs to an organization like Volunteer Lawyers for the Arts, who might dissuade them from such quixotic and wasteful pursuits? Velez sought reconsideration of Judge Castel’s Order (below), which was denied in April 2007, concluding this unfortunate quarrel.
We haven’t yet been able to obtain a copy of a recording of the Plaintiff’s work, and would be grateful for any leads as to how we might do so.
Memorandum and Order of Judge Castel
Plaintiff Victor Velez, proceeding pro se, filed this action against Victor Manuelle and Sony Discos on January 18, 2005, and an amended complaint was filed on January 25, 2005. Plaintiff is a composer and copyright owner of a song entitled “Hasta Hoy,” which bears the alternative title of “Trate.” Defendant Victor Manuelle is a recording artist whose music is produced and distributed by Sony BMG Music Entertainment (U.S.Latin) LLC, the successor-in-interest to defendant Sony Discos. Plaintiff alleges that “Hasta Hoy” has been infringed by Manuelle’s composition “Tengo Ganas.” The amended complaint alleges that Manuelle has directly and willfully infringed Hasta Hoy, and that Sony Discos is contributorily liable for its role in the distribution of the infringing music. (Am.Compl.¶¶ 6, 7)
The discovery period is now closed, and defendants have jointly moved for summary judgment (Docket No. 58). Defendants have served plaintiff with the requisite Notice toPro Se Litigant Opposing Summary Judgment. Plaintiff has filed a “Motion for an Order to Deny Defense’s Request for Summary Judgment” (Docket No. 61)-which I will construe as part of plaintiff’s opposition to defendants’ summary judgment motion-and has also filed a cross-motion for summary judgment in his favor (Docket No. 64). Plaintiff has also moved in limine to exclude the report of defendants’ expert, Dr. Lawrence Ferrara (Docket Nos. 54, 57), as well as the deposition testimony of three of defendants’ fact witnesses, Emilio Estefan, Jr., Ricardo Alberto Gaitan, and Ricardo Alfredo Gaitan (Docket Nos. 51, 52).
In addressing defendants’ motion for summary judgment, I have considered only plaintiff’s version of the facts and such other facts as are not disputed by plaintiff. Where multiple inferences may be drawn from the facts, I have considered only the inference most favorable to plaintiff. For the reasons set forth below, defendants’ motion for summary judgment is granted, and plaintiff’s cross-motion for summary judgment is denied. Plaintiff’s motion to exclude Dr. Ferrara’s report is denied, and, as the deposition testimony of the three fact witnesses is not material to this motion, plaintiff’s motion to exclude their deposition testimony is denied as moot.
Plaintiff has been composing music for roughly twenty years, during which time he has registered several of his original compositions with the United States Copyright Office (“Copyright Office”). (Velez Dep. 24-25) One such song is “Hasta Hoy,” which plaintiff wrote in 1994 and registered under the title “Trate” with the Copyright Office on January 23, 1995, under Registration No. PAu-1-946-624. (Id. at 32; Pl.Ex. A) In that registration, plaintiff submitted Hasta Hoy’s written lyrics and an audio cassette containing an a cappella rendition of the song performed by plaintiff. (Velez Dep. Ex. 2; Pl.Ex. C) Plaintiff can neither read nor write music, and no sheet music of Hasta Hoy has ever been produced by plaintiff. (Velez Dep. 20-21; 64-65)
The record before the Court in connection with the various motions contains two recorded versions of Hasta Hoy. The first is the a cappella rendition of Hasta Hoy that plaintiff filed with the Copyright Office (the “deposit copy”). (Pl.Ex. C) The second version is a recorded version of Hasta Hoy with musical accompaniment that appears to have been performed by a band called Ochesta La Rosa. (Pl.Exs.G, S) Around the time when plaintiff originally wrote and copyrighted Hasta Hoy, he introduced the song to Orchesta La Rosa in an effort to convince the band to play his music. (Velez Dep. 48-50) This effort was successful, and Orchesta La Rosa incorporated Hasta Hoy into its repertoire. (Id.) Orchesta La Rosa was signed to a recording contract with Sonido Entertainment Group (“Sonido”), and Sonido contracted with plaintiff for the rights to Hasta Hoy in 1997. (Id.) While plaintiff has not been able to procure a copy of the agreement with Sonido, plaintiff testified at his deposition that he assigned all of his rights to Hasta Hoy to Sonido except for 50% of the profits generated within the United States Territories. (Id. at 41-45) Hasta Hoy, as recorded by Sonido, is, according to plaintiff, identical melodically to plaintiff’s original version of the song, and differs primarily in its arrangement. (Id. 53-54; Pl.Ex. H) The existence of the two versions is not material to the disposition of these motions, as plaintiff’s discussions of Hasta Hoy in his submissions to the Court focus on the deposit copy of the song, and make only passing references to the version performed by Orchesta La Rosa.
In 2004, Manuelle released an album entitled “Travesia” on the Sony Discos record label, which featured two versions of a song entitled “Tengo Ganas”; one version is salsa, the other is a ballad. (Pl.Ex. M) While the two versions differ in their arrangement, the melodies of the songs are nearly identical, and plaintiff’s claims in this case relate to both songs. Plaintiff first heard Tengo Ganas in September 2004, and recognized the alleged similarities to Hasta Hoy three or four weeks later. (Velez Dep. 75; 79-80) Thereafter, plaintiff filed this action alleging that Manuelle “knowledgeably infringed plaintiff’s music and purposely changed the lyrics so as to conceal such infringement,” (Am.Compl.¶ 6), and that Sony Discos is “contributory liable” as it “approved and released production containing infringed and concealed music.” (Id. ¶ 7)
- Summary Judgment Standard
Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he or she is entitled to relief. A fact is material if it “might affect the outcome of the suit under the governing law….” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence on each material element must be sufficient to entitle the movant to relief in its favor as a matter of law. Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004).
When the moving party has met this initial burden and has asserted facts to demonstrate that the non-moving party’s claim cannot be sustained, the opposing party must “set forth specific facts showing that there is a genuine issue for trial,” and cannot rest on “mere allegations or denials” of the facts asserted by the movant. Fed.R.Civ.P. 56(e). In raising a triable issue of fact, the non-movant carries only “a limited burden of production,” but nevertheless “must ‘demonstrate more than some metaphysical doubt as to the material facts,’ and come forward with ‘specific facts showing that there is a genuine issue for trial.” ’ Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 84 (2d Cir.2004) (quoting Aslandis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993)).
An issue of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The Court must “view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.1995) (quotations and citations omitted); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In reviewing a motion for summary judgment, the court must scrutinize the record, and grant or deny summary judgment as the record warrants. Fed.R.Civ.P. 56(c). In the absence of any disputed material fact, summary judgment is appropriate. Id. Mere “conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment.” Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587));see also Anderson, 477 U.S. at 249-50 (noting that summary judgment should be granted if the evidence is “merely colorable” or “not significantly probative”).
- Admissibility of Defendants’ Expert Report
Before addressing the merits of the summary judgment motions, I will first turn to plaintiff’s motion to exclude the expert report of Lawrence Ferrara, Ph.D., (the “Ferrara Report”). In actuality, it is doubtful that the Ferrara Report itself, would be received into evidence, but I will consider whether opinion testimony by Dr. Ferrara consistent with the opinions expressed in the report would be admissible. See Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir.1997) (“Because the purpose of summary judgment is to weed out cases in which ‘there is no genuine issue as to any material fact and … the moving party is entitled to judgment as a matter of law,’ Fed.R.Civ.P. 56(c), it is appropriate for district courts to decide questions regarding admissibility of evidence on summary judgment.”). The Ferrara Report is the centerpiece of defendants’ motion for summary judgment, and offers a detailed discussion of the differences in structure, harmony, rhythm, and melody between Hasta Hoy and Tengo Ganas, and annexes as exhibits transcriptions of the two songs in musical notation, as well as an audio recording of Dr. Ferrara playing portions of the songs’ melodies on the piano. The report concludes that “ ‘Hasta Hoy’ and ‘Tengo Ganas’ are different in their entirety” and therefore are not “substantially similar in any way.” (Ferrara Report ¶¶ 49-50) I have reviewed the Ferrara Report, and I conclude that testimony consistent therewith would constitute admissible expert testimony.
The defendants, as the proponents of the Ferrara Report, bear the initial burden of demonstrating the admissibility of the testimony. See Berk v. St. Vincent’s Hosp. & Med. Ctr., 380 F.Supp.2d 334, 349 (S.D.N.Y.2005). Expert testimony is primarily governed by Rule 702 of the Federal Rules of Evidence, which states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R.Evid. 702; see also Nimely v. City of New York, 414 F.3d 381, 395 (2d Cir.2005)(quoting same). While Rule 702 “embodies a liberal standard of admissibility for expert opinions,” the rule “[does] not represent an abdication of the screening function traditionally played by trial judges.” Nimely, 414 F.3d at 396. Therefore, the threshold question that a Court must answer in assessing the admissibility of expert testimony is whether the proffered expert is “qualified … by knowledge, skill, experience, training, or education.” See id .
Plaintiff has challenged the admissibility of testimony based upon the Ferrara Report on the grounds that Dr. Ferrara is not sufficiently qualified because “his entire elaborate resume did not include even as much as one hit song” (Velez Affirmation at 2, attached to Notice of Supplemental Motion to Exclude the Ferrara Report, Docket No. 57), and “[t]here is no indication that Mr. Ferrara is talented” (Pl. Sur-Reply Mem. in Support of Motion to Exclude the Ferrara Report, at 3). Dr. Ferrara’s curriculum vitae reveals that he has a B.A. in music, a M.M. in Piano/Music History, and a Ph.D. in Music Theory/Piano. (Ferrara Report Ex. E) He has been a professor of music at New York University in various capacities since 1979, has taught at both the undergraduate and graduate levels, and has been the Chair of the Department of Music and Performing Arts since 1995. (Id.) Dr. Ferrara has authored several books and articles on music and music theory, and presented articles, delivered addresses, and been a panelist member at many conferences in his field. (Id.) Dr. Ferrara has been credited and relied upon as an expert on several occasions in this Circuit and others. E.g. Repp & K & R Music, Inc. v. Webber,132 F.3d 882, 886 (2d Cir.1997); Johnson v. Gordon, 409 F.3d 12, 15-16 (1st Cir.2005);Tisi v. Patrick, 97 F.Supp.2d 539, 543-45 (S.D.N.Y.2000). Dr. Ferrara is eminently qualified by his knowledge, skill, experience, training, and education to render expert opinions on the musicological similarities and differences between Tengo Ganas and Hasta Hoy, and plaintiff’s objections to his qualifications in this case are without merit.
After assessing a proffered expert’s qualifications, the Court must next look to whether the proposed expert opinion is reliable. This inquiry is guided by the factors enumerated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The factors include “whether a theory or techinique had been or could be tested, whether it had been subjected to peer review, what its error rate was, and whether scientific standards existed to govern the theory or technique’s application or operation .”Nimely, 414 F.3d at 396. These considerations “do not constitute a ‘definitive checklist or test,” ’ Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999) (quoting Daubert, 509 U.S. at 593), and “the gatekeeping inquiry must be tied to the facts of a particular case.”Id. (internal quotations and citations omitted). Ultimately, “[d]istrict courts have broad discretion in determining how to ascertain whether proffered expert testimony is admissible.” Berk, 380 F.Supp.2d at 351 (citing Kumho Tire Co., 526 U.S. at 152 (“The trial court must have the same kind of latitude in deciding how to test an expert’s reliability … as it enjoys when it decides whether or not that expert’s relevant testimony is reliable.” (emphasis in original)).
The Ferrara Report is the product of reliable methods of musicological analysis that have been reliably applied to the songs at issue in this case. In 12 pages of analysis which will be discussed in greater detail below, the Ferrara Report explains that the constituent elements of all songs are “structure,” “harmony,” “rhythm,” “melody,” and “lyrics,” and the report goes on to carefully analyze the similarities and the differences between the two songs in terms of each component. Plaintiff does not contest the Ferrara Report’s use of this terminology, and admits that it is standard in the field. (Velez Aff. ¶¶ .22, .22(a),attached to Pl. Opp. to Defendant’s Motion for Summary Judgment, Docket No. 65) The report explains this technical terminology in a manner that is understandable to the lay listener, and uses the terms consistently throughout the report. This internally consistent and easily followed analysis leads to the report’s conclusion that the songs are dissimilar. Testimony consistent with the Ferrara Report is precisely the sort of testimony that Dr. Ferrara has rendered in the past in this and other courts, and it meets the reliability requirements for expert testimony under Rule 702.
The third and final question to be addressed by a district court in evaluating expert testimony considers whether the proposed testimony will “assist the trier of fact.” Nimely,414 F.3d at 397. In determining whether expert testimony is helpful to the trier of fact, the Court must be mindful that expert testimony is subject to not only Rule 702, but also Rule 403, and “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Fed.R.Evid. 403; see also Nimely, 414 F.3d at 397 (quoting same). Plaintiff has challenged the admissibility of testimony consistent with the Ferrara Report on the grounds that it is misleading and prejudical in several respects. Specifically, plaintiff claims that (1) the report is misleading because it refers to the fact that Hasta Hoy lacks an introduction while Tengo Ganas features an introduction (Velez Affirmation, at 1-2, attached to Notice of Motion to Exclude the Ferrara Report, Docket No. 54), (2) the report is misleading because in reducing the two songs to musical notation, “the melodic tune and it’s [sic] progression to which these notes harmonize is not presented in written (musical) form” (Id. at 2), and (3) the report is inaccurate and prejudicial because it states that the deposit copy of Hasta Hoy, as an a cappella performance, by definition lacks “harmony.” (Id. at 2-3) Plaintiff also offers the general critique that the Ferrara Report is a “sham” and “of poor character.” (Pl. Reply Mem. in Support of Motion to Exclude the Ferrara Report, at 1)
Notwithstanding plaintiff’s objections, expert testimony consistent with the Ferrara Report is likely to be of considerable assistance to the trier of fact, and is not misleading or prejudicial. I note that it has been suggested that expert testimony in a music plagiarism case such as this, which does not concern song lyrics but rather the underlying elements of melody, rhythm, harmony, and structure, may be necessary to resolve claims of copyright infringement. See Mowry v. Viacom, No. 03 Civ. 3090(AJP), 2005 WL 1793773 at *10 (S.D.N.Y. July 29, 2005) (Peck, Magistrate Judge) (“ ‘[W]hile expert testimony may be necessary to establish striking similarity in ‘technical’ areas, such as music, in many cases, the trier of fact is equipped to make this determination without expert assistance.” ‘ (quoting MELVILLE B. NIMMER & DAVID NIMMER, 4 NIMMER ON COPYRIGHT § 13.02[B] )). I need not decide whether experts are generally necessary to disentangle claims of music plagiarism, where, as here, the songs at issue do not sound obviously alike. Dr. Ferrara’s testimony would likely define the relevant musicological elements in the two compositions, Hasta Hoy and Tengo Ganas, and compare them in a cogent manner. At bottom, plaintiff’s dissatisfaction with the Ferrara Report reduces to his disagreements with the substance of Dr. Ferrara’s opinions, which is not a valid basis for excluding the report.
As the defendants have carried their burden of showing that testimony by Dr. Ferrara consistent with the Ferrara Report would be admissible, and plaintiff’s objections are without merit, plaintiff’s motion to exclude the Ferrara Report is denied, and the report is part of the evidentiary record on this motion.
- Overview of Copyright Law
To prevail on a claim of copyright infringement, a plaintiff must establish “(i) ownership of a valid copyright; and (ii) unauthorized copying of a copyrighted work.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003) (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991); Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc.,150 F.3d 132, 137 (2d Cir.1998)). For the purposes of this summary judgment motion, defendants concede plaintiff’s ownership of a valid copyright in Hasta Hoy, and challenge only the second element of plaintiff’s copyright claim. (Def. Summary Judgment Mem. 12 n. 8)
In order to satisfy the second element of the infringement claim and prove unauthorized copying, “a plaintiff must show both that his work was ‘actually copied’ and that the portion copied amounts to an ‘improper appropriation.” ’ Jorgensen, 351 F.3d at 51(quoting Castle Rock, 150 F.3d at 137). The first inquiry in the unauthorized copying analysis poses the purely factual question of whether the defendant “actually copied” plaintiff’s work, and can be proved by direct or indirect evidence. Id. (quoting Boisson v. Banian, Ltd., 273 F.3d 262, 267 (2d Cir.2001)). In cases lacking direct evidence of actual copying-such as this case-indirect evidence will suffice if the “person who composed defendant’s work had access to the copyrighted material, and … there are similarities between the two works that are probative of copying.” Id. (internal quotations and citations omitted). In other words, proof of access to the copyrighted work combined with the presence of similarities probative of copying are sufficient to permit a factfinder to draw the inference that the defendant “actually copied” from the plaintiff’s work. Similarities between works are “probative of copying” if the “similarities between the two works … would not be expected to arise if the works had been created independently.”Odegard, Inc. v. Costikyan Classic Carpets, Inc., 963 F.Supp. 1328, 1337 (S.D.N.Y.1997); see also Laureyssens v. Idea Group, Inc., 964 F.2d 131, 140 (2d Cir.1992) (“A common form of indirect proof of copying … is a showing of defendant’s opportunity to come into contact with plaintiff’s work and such similarities between the works which, under all the circumstances, make independent creation unlikely.” (internal quotations omitted)). The requirements of proof of access and the existence of probative similarities are inversely related in the sense that the greater the proof of access, the less striking the similarities must be in order for actual copying to be inferred. Jorgensen, 351 F.3d at 56.
The second inquiry in the “unauthorized copying” analysis looks to whether the actual copying that occurred amounted to an “improper appropriation.” The distinction between “actual copying” and “improper appropriation” reflects the fact that “not all copying results in copyright infringement….” Boisson, 273 F.3d at 268 (citing Feist Publ’ns, 499 U.S. at 361). Essentially, the “actual copying” question concerns whether the defendant copied the plaintiff’s work as a factual matter, and the “improper appropriation” analysis explores whether the copying that occurred was of such a nature that copyright infringement may have taken place as a matter of law. As a leading treatise on copyright law explains:
First, there is the factual question whether the defendant, in creating its work, used the plaintiff’s material as a model, template, or even inspiration. If the answer is ‘yes,’ then one can conclude, as a factual proposition, that copying may have occurred. But the question still remains whether such copying is actionable. In other words, that first answer does not vouchsafe resolution of the legal question whether such copying as took place gives rise to liability for infringement.
MELVILLE B. NIMMER & DAVID NIMMER, 4 NIMMER ON COPYRIGHT § 13.01[B] (2006) (internal citations omitted).
For a plaintiff to show that improper appropriation has occurred, the accused work must exhibit “substantial similarities” to the plaintiff’s work. Id. at 272. “Substantial similarity” must be “more than de minimis,” Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 131 (2d Cir.2003), and the similarities must be of such a nature that “ ‘the ordinary observer, unless set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.” ’ Boisson,273 F.3d at 272 (quoting Folio Impressions, Inc. v. Byer Cal., 937 F.2d 759, 765 (2d Cir.1991)). In the context of music plagiarism, the Second Circuit has described this ordinary observer test as requiring proof “that ‘defendant took from plaintiff’s works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such … music is composed, that defendant wrongfully appropriated something which belongs to the plaintiff.” ’ Repp & K & R Music, Inc. v. Webber, 132 F.3d 882, 889 (2d Cir.1997), cert. denied, 525 U.S. 815 (1998) (quoting Arnstein v. Porter, 154 F.2d 464, 473 (2d Cir.1946)) (alterations in original).
Under certain circumstances, when the works at issue contain considerable elements from the public domain that are unprotectible by copyright, the usual “ordinary observer” test becomes “more discerning,” and requires the Court to “attempt to extract the unprotectible elements from … consideration and ask whether the protectible elements, standing alone, are substantially similar.” Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir.1995) (emphasis in original); but see Boisson, 273 F.3d at 272(“[W]here the plaintiff’s work contains no material imported from the public domain, the ‘more discerning’ test is unnecessary.”). “Protectible elements” can consist of completely original elements devised by the copyright holder, as well as other “original contributions,” such as “the original way in which the author has ‘selected, coordinated, and arranged’ the elements of his or her work.” Knitwaves, 71 F.3d at 1004 (quoting Feist Publ’ns, 499 U.S. at 350, 358). In other words, unoriginal elements, combined in an original way, can constitute protectible elements of a copyrighted work.
Regardless of whether the traditional ordinary observer test or the “more discerning” test is used, the Second Circuit has instructed that the substantial similarity analysis is to be guided by reference to the works’ “total concept and feel.” See id. at 1003 (citing Eden Toys, Inc. v. Marshall Field & Co., 675 F.2d 498, 500 (2d Cir.1982)). As the Second Circuit has more recently explained:
Essentially, the total-concept-and-feel locution functions as a reminder that, while the infringement analysis must begin by dissecting the copyrighted work into its component parts in order to clarify precisely what is not original, infringement analysis is not simply a matter of ascertaining similarity between components viewed in isolation. For the defendant may infringe on the plaintiff’s work not only through literal copying of a portion of it, but also by parroting properties that are apparent only when numerous aesthetic decisions embodied in the plaintiff’s work of art-the excerpting, modifying, and arranging of public domain compositions, if any, together with the development and representation of wholly new motifs and the use of texture and color, etc.-are considered in relation to one another. The court, confronted with an allegedly infringing work, must analyze the two works closely to figure out in what respects, if any, they are similar, and then determine whether these similarities are due to protected aesthetic expressions original to the allegedly infringed work, or whether the similarity is to something in the original that is free for the taking.
Einstein Moomjy, 338 F.3d at 134-35 (internal citation omitted).
- Analysis of Plaintiff’s Infringement Claim
Defendants challenge plaintiff’s infringement claim on the grounds that plaintiff’s evidence is insufficient to support an inference that Manuelle “actually copied” Hasta Hoy, and that even if plaintiff’s evidence can meet that threshold, no reasonable jury could find that Tengo Ganas is substantially similar to Hasta Hoy, and so improper appropriation cannot be proven. I agree with defendants on both points. Plaintiff’s copyright infringement claim thus fails as a matter of law against both defendants, as the contribution claim againstSony Discos is derivative of the direct infringement claim against Manuelle.
- Actual Copying
As discussed above, in order for indirect evidence to permit an inference of “actual copying,” plaintiff must present evidence that Manuelle had access to Hasta Hoy and that Tengo Ganas possesses similarities to Hasta Hoy that are probative of copying. Defendants do not contest that Manuelle had access to Hasta Hoy, as plaintiff is in possession of a home video of Manuelle listening to Orchesta La Rosa’s rendition of the song. (Pl.Ex. S). Therefore, plaintiff’s burden to show probative similarities is at a minimum. In an attempt to carry his burden, plaintiff points to two alleged similarities between the compositions: the first concerns the structure of the two songs; the second relates to the songs’ melodies.
On the first point, plaintiff emphasizes the fact that the structures of both songs make use of musical phrases that consist of eight measures in their verses and choruses.5According to plaintiff, the first verse of Hasta Hoy consists of two eight-measure phrases, and is followed by a chorus consisting of two eight-measure phrases; plaintiff further states that the second verse of Hasta Hoy consists of three eight-measure phrases and is followed by a chorus which consists of three eight-measure phrases.6 (Pl.Exs.M, J) Defendants’ expert agrees with this description of Hasta Hoy’s structure. (Ferrara Report ¶¶ 10, 14) Plaintiff alleges that Manuelle’s plagiarism is especially striking in the first verse and chorus sections of Tengo Ganas, in which plaintiff claims the first 32 measures of Tengo Ganas are structurally identical to the first 32 measures of Hasta Hoy. (VelezDep. 94-96)
The Ferrara Report notes that the two versions of Tengo Ganas-Tengo Ganas Salsa and Tengo Ganas Ballad-are structurally different from both one another, and from Hasta Hoy. The Ferrara Report presents the structures of the two versions of Tengo Ganas in the following fashion:
|Time||Tengo Ganas Salsa||Time||Tengo Ganas Ballad|
|:00||Introduction (4½ measures)||:00||Introduction (4 measures)|
|:11||Verse 1 (8 + 8½ measures)||:12||Verse 1 (8 + 8 measures)|
|:55||Chorus (8 + 11½ measures)||1:00||Chorus (8 + 9 measures)|
|1:45||Verse 2 (8½ measures)||1:52||Verse 2 (8 measures)|
|2:07||Chorus (8 + 9½ measures)||2:15||Chorus (8 + 11 measures)|
|2:51||Vocal Improvisation (12||3:13||Chorus (8 + 13 measures)|
(Ferrara Report ¶¶ 10, 14) The Ferrara Report thus concludes that, structurally, Hasta Hoy shares only one verse in common with only one of the versions of Tengo Ganas. The remaining verses and choruses in both versions of Tengo Ganas are, according to the Ferrara Report, structurally different from Hasta Hoy.
Plaintiff does not deny the existence of these structural differences in the songs. (VelezAff. ¶¶ 13-23, attached to Pl. Mem. in Support of Plaintiff’s Motion for Summary Judgment) Rather, plaintiff seeks to minimize the significance of these differences. Plaintiff states that the extra measures in the Tengo Ganas choruses, and the additional half-measure in the first verse of Tengo Ganas Salsa, “are not major significant differences, but slight adjustments in the arrangements which do not in the slightest way change the overall structural pattern….” (Id. at ¶ 18) According to plaintiff, these extra measures in Tengo Ganas are used to provide instrumental introductions to the lyrics in the phrases, and that if one isolates the lyrics in both versions of Tengo Ganas, one would find that the lyrics in the first verse and chorus each occupy two eight-measure phrases, as in Hasta Hoy. (Id. at ¶ 17)
Viewed in the light most favorable to the plaintiff, the foregoing conceivably could establish that, while Tengo Ganas’s structure is not an exact copy of Hasta Hoy, it may be an inexact copy, and therefore present a potential probative similarity between the works. However, not all similarities are “probative similarities”; the similarities must be of such a nature that they would be unlikely to arise in works of independent creation. Laureyssens, 964 F.2d at 140. For example, the fact that two songs are similar in the sense that they both use 4/4 time-also called “common time” (Ferrara Report ¶ 25)-is not, without more, a probative similarity, because it is so commonplace that it is not unlikely to arise independently created works. See, e.g ., Gaste v. Kaiserman, 863 F.2d 1061, 1068-69 (2d Cir.1988) (noting that probative similarity “between pieces of popular music must extend beyond themes that could have been derived from a common source or themes that are so trite as to be likely to appear in many compositions”). The Ferrara Report makes the same observation with respect to the use of consecutive eight-measure phrases in the structure of a composition. In support of this position, the report annexes an exhibit which lists 60 popular songs in a variety of genres, written prior to 1995 when plaintiff copyrighted Hasta Hoy, that use two consecutive eight-measure phrases as a structural device. (Ferrara Report Ex. D) Several of the examples date as far back as the 1940’s and 1950’s. Dr. Ferrara concludes that the two eight-measure phrase structure is “one of the most commonplace structural ideas in Western music,” and that “dividing an individual Verse into two eight-measure phrases is analogous to the idea of dividing a dramatic play into three acts or a fourteen-line sonnet into an eight-line octet and a six-line sextet.” (Id. ¶ 20)
Plaintiff does not controvert defendants’ claim that the structural idea of two eight-measure phrases is commonplace and present in the examples annexed to the Ferrara Report. Thus, no genuine issue of material fact exists on whether the structural similarities are, by themselves, probative of copying-they are not. Instead of directly confronting defendants’ position on the frequent use of the eight-measure phrase structure, in opposing defendants’ evidence, plaintiff argues that Dr. Ferrara’s examples are inapposite because none of those songs possess the melodic similarities that allegedly exist between Hasta Hoy and Tengo Ganas. (Velez Aff. ¶ 32(a), attached to Pl. Opp. to Defendants’ Motion for Summary Judgment (“ ‘Realistically’ of the 60 songs submitted by Mr. Ferrara: Does ‘Beat It’ (By Michael Jackson), ‘Arthur’, ‘Owner Of a Lonely Heart’, ‘Candle In the Wind’, et cetera, et cetera, flow with the melodic tune of Hasta Hoy copied into Tengo Ganas? The answer is a definite no!”)) Therefore, plaintiff’s first asserted similarity, which concerns the structures of the songs, dovetails with, and is not distinct from, the second alleged similarity, which involves the songs’ melodies.
Plaintiff’s evidence on the melodic similarities consists of his submitted recordings of Tengo Ganas and Hasta Hoy (Pl.Exs. C, E, H, G, M, S), and his conclusory assertion that the songs “flow in accord with the same melodic tune.” (Velez Dep. 101) Plaintiff has not explained what precisely this means. The evidence presented by the defendants in support of their motion consists of the analysis in the Ferrara Report, which provides an explanation of the meaning and operation of “melodies” from a musicological standpoint. The report explains that the melody of a song “consists primarily of pitch and rhythm. Pitch is the specific high or low placement of a musical sound, often within a musical scale.” (Ferrara Report ¶ 7) The sequence of pitches in a line of music provides the musical sounds that one sings or hums. (Id.) The Ferrara Report explains that “[s]imilarities in the pitches of melodies will manifest in their sequences,” and that each pitch-and hence each pitch sequence-can be transposed in scale degrees corresponding to the numbers one through seven. (Ferrara Report ¶ 32)
The Ferrara Report transcribes the pitch sequences from the melodies in the verses and choruses of Hasta Hoy and Tengo Ganas. As both versions of Tengo Ganas are melodically identical, they are not treated separately. The Ferrara Report renders the first four measures in the verses of Hasta Hoy and Tengo Ganas in scale degrees as follows (“/” indicates the end of a measure):
Hasta Hoy: 1 5 3 1 2 3/ 1 5 1 5 1 5/ 7 4 2 7 1 2/ 7 4 7 4
Tengo Ganas: 5/ 5 1 1 2 2 3 6/ 6 1 1 2 4 3 3/ 1 7 7 5 1 7 4/ 2 6 6 5
(Ferrara Report ¶ 32) The second four measures in the verses of Hasta Hoy are represented as follows:
Hasta Hoy: 6 3 1 6 7 1/ 6 3 6 3 2/5
Tengo Ganas: 7 6 6 5 6 5 1 2/ 2 3 3/ 4 3 2 1 4 3 2 1/ 1 2 # 7
(Ferrara Report ¶ 34) In the chorus to both songs, the melody changes and a new series of pitch sequences is introduced. The first four measures of the chorus are transposed as:
Hasta Hoy: 3 2/ 1/ 3 2 3 2 3 5 # 6 5/ # 6 4 3 2 7 1/ 3 2 3 2 3 5 3 3 2/ 3
Tengo Ganas: 1 1/ 1 2 2 3 3 4 4 5/ 7 6 6 7 7/ 7 1 1 2 2 3 4 5/ 6 5 5 6 6/
(Ferrara Report ¶ 37) The second four choral measures are rendered as:
Hasta Hoy: 3 2 3 2 3/ 5 2 2 3 5 1 2/ 5/ 5 4 5 4 5 4 4 3 2/ 3
Tengo Ganas: 6 7 1 1 1 3 5 6 5/ 4 4 2 3/ 4 3 2 3 4 4 4 6 7 6 6/ 5 5/
(Id. at ¶ 39) The pitch sequences from both the verse and chorus melodies, as transcribed in the Ferrara Report, reveal stark differences between the melodies of Tengo Ganas and Hasta Hoy. The presence of the differences reflected in the pitch sequences is corroborated and amplified by Audio Exhibit 1 to the Ferrara Report, which features Dr. Ferrara playing each of the transcribed melodies on the piano. (Id. Audio Ex. 1, Tracks 4-7)
The Court need not refer to defendants’ expert to locate the audible differences between the songs’ melodies. These differences are apparent in every single version of the songs, whether submitted by plaintiff or by defendants. By contrast, even viewing the evidence in the light most favorable to plaintiff, there are simply no audible similarities in the melodies. Plaintiff’s conclusory assertion that the songs “flow in accord with the same melodic tune” fails to furnish a sufficient evidentiary basis to withstand defendant’s motion, and so there is no genuine issue of fact requiring trial on the existence of probative similarities between the songs’ melodies.
The remaining elements of the songs also fail to furnish any probative similarities between Tengo Ganas and Hasta Hoy on which a reasonable jury might infer that Manuelle actually copied from Hasta Hoy. While both songs are, in terms of their rhythm, written in “common time,” as previously discussed, this is not a probative similarity. Neither party has presented any evidence of probative similarities in the songs’ lyrics or harmonies. Thus, plaintiff has failed to meet his burden on summary judgment to come forward with sufficient evidence of probative similarities to show any genuine issue of material fact requiring trial. Since existence of probative similarities is required in order to permit an inference of actual copying, plaintiff’s copyright claim cannot be sustained.
- Substantial Similarity
Even if the scant similarities apparent from the record were sufficient to enable a reasonable jury to infer that Manuelle actually copied Hasta Hoy in creating Tengo Ganas, the record cannot support a finding that such copying amounted to an “improper appropriation.” As discussed above, in order for plaintiff to show improper appropriation, he must demonstrate that the songs are substantially similar, which requires proof “that ‘defendant took from plaintiff’s works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom … such music is composed, that defendant wrongfully appropriated something which belongs to the plaintiff.” ’ Repp & K & R Music, Inc. v. Webber, 132 F.3d 882, 889 (2d Cir.1997), cert. denied, 525 U.S. 815 (1998) (quoting Arnstein v. Porter, 154 F.2d 464, 473 (2d Cir.1946)) (alterations in original). The similarities must be “more than de minimis.” Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 131 (2d Cir.2003). While this analysis begins with a consideration of the components of the songs viewed in isolation, the Court must also consider whether the “total concept and feel” of the works exhibit substantial similarities. See id. at 134-35; Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1004 (2d Cir.1995).
First, assuming arguendo that a factfinder could infer that the structure of Tengo Ganas was actually copied from Hasta Hoy, the uncontroverted evidence on the record shows that the use of the eight-measure phrase, and even the use of consecutive eight-measure phrases, in the structure of a song was not original to Hasta Hoy. To the contrary, it has been a widely used structural device for over 50 years. (Ferrara Report Ex. D) Therefore, the use of this structural element is not protectible, and cannot form the only basis for establishing substantial similarity in the pieces of music. See Intersong-USA v. CBS, Inc., 757 F.Supp. 274, 282 (S.D.N.Y.1991) (holding that “common elements [that] are found in many other well-known songs … are unoriginal and constitute ‘scenes a faire’ or ordinary, unprotectible expression”).8 The same is true of the use of the common time rhythm in both songs. On the record before the Court, the other musical elements of melody, harmony, and lyrics fail to reveal any similarities whatsoever. Plaintiff’s conclusory assertion that the songs “flow in accord with the same melodic tune” is not sufficient, without any evidentiary support and where it is not corroborated by listening to the music, to enable a jury to conclude that those elements exhibit substantial similarities. Therefore, a reasonable juror could not conclude that Manuelle appropriated the expression in Hasta Hoy that was original to plaintiff.
Second, moving beyond the isolated elements and viewing the two works in their entirety-that is, assessing the “total concept and feel” of the works-Tengo Ganas is not substantially similar to Hasta Hoy. The uses and combinations of the structural and rhythmic devices alleged by plaintiff are de minimis aspects of the works from the standpoint of a reasonable, ordinary observer, and do not constitute “so much of what is pleasing to the ear to lay listeners” in either song. Repp & K & R Music, 132 F.3d at 473. Simply put, Hasta Hoy and Tengo Ganas are two starkly different pieces of music, and plaintiff has failed to meet his burden of production to show a reasonable jury could conclude otherwise. Therefore, plaintiff cannot demonstrate improper appropriation by Manuelle, and his infringement claim must be dismissed. As the evidence is insufficient to raise a genuine issue of fact on infringement, the claim for contribution against SonyDiscos must also fail. See Faulkner v. Nat’l Geographic Enterps., Inc., 409 F.3d 26, 40 (2d Cir.), cert. denied, __ U.S. __, 126 S.Ct. 833 (2005).
For the foregoing reasons,
(1) Defendants’ motion for summary judgment (Docket No. 58) is granted in its entirety;
(2) Plaintiff’s “Motion to Deny the Defense’s Request for Summary Judgment” (Docket No. 61) is construed as part of plaintiff’s opposition to defendants’ motion for summary judgment, and plaintiff’s cross-motion for summary judgment (Docket No. 64) is denied;
(3) Plaintiff’s motion and supplemental motion in limine to exclude the Ferrara Report (Docket Nos. 54, 57) are denied; and
(4) Plaintiff’s motion and supplemental motion in limine to exclude the testimony of defendants’ fact witnesses (Docket Nos. 51, 52) are denied as moot.
The Clerk shall enter judgment for defendants.