Batiste v. Lewis et al

Filing 140

ORDER AND REASONS: ORDERED that the plaintiff's 135 Motion for Leave to Supplement is DENIED, and the defendants' 105 Motion for Summary Judgment is GRANTED. Signed by Judge Martin L.C. Feldman on 4/23/19. (clc)

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 1 of 29

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

PAUL BATISTE d/b/a ARTANG
PUBLISHING, LLC

CIVIL ACTION

V.

NO. 17-4435

RYAN LEWIS, ET AL.

SECTION “F”
ORDER AND REASONS

Before

the

Court

is

the

defendants’

motion

for

summary

judgment and the plaintiff’s motion for leave to supplement his
opposition to the motion for summary judgment.

For the reasons

that follow, the plaintiff’s motion for leave to supplement is
DENIED, and the defendants’ motion for summary judgment is GRANTED.
Background
A New Orleans jazz musician accuses an internationally famous
hip-hop duo of copyright infringement of eleven original songs.
This litigation followed. 1
Paul Batiste is a member of The Batiste Brothers Band, a New
Orleans jazz band founded in 1976.
Publishing, LLC.

Batiste also owns Artang

Batiste alleges that, between 1978 and 2002, he

composed eleven original songs, entitled Hip Jazz, Kids, Starlite
Pt. 1, World of Blues, Love Horizon, Tone Palette, My Bad, Salsa

1

Insofar as Mr. Batiste has failed to submit any competent evidence
to controvert the material facts outlined in the defendants’
statement of undisputed facts, those facts are deemed admitted for
the purposes of the defendants’ motion. See Fed. R. Civ. P.
56(c)(1); see also Local Rule 56.2.
1

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 2 of 29

4 Elise (Fur Elise), Drowning in My Blues, Sportsman’s Paradise,
and Move That Body; he also claims that he registered each song
with the United States Copyright Office. 2

According to Batiste,

his songs have been broadcast on New Orleans radio stations,

2

Batiste has not produced deposit copies certified as such by the
Copyright Office for any of his works. Rather, he has submitted
copyright registration certificates for his songs as follows:
• (1) World of Blues (2000) - SR0000187088 (July 18, 2000;
words/music/sound recording)
• (2) Love Horizon (2000) - same as World of Blues
• (3) Drowning in my Blues (2000) - same as World of Blues
• (4) Tone Palette (2001) - PAu002628735 (Oct. 1, 2001;
performance/music/lyrics); R0000733288 (Oct. 10, 2013; sound
recording)
• (5) Salsa 4 Elise (Fur Elise) - same as Tone Palette
• (6) My Bad - same as Tone Palette
• (7) Hip Jazz (1997) - SRu000375811 (Sept. 4, 1997; basic
registration); SR787455 (July 16, 2016; sound recording/
music; “nature of authorship was not sufficiently explicit on
original application”)
• (8) Kids (1993) - PAu001817461 (Dec. 14, 1993 - words/music);
SRu0000793483 (Sept. 26, 2017 - sound recording)
• (9) Move that Body (1999) - SRu000409184 (Oct. 12, 1999;
words/ music); SRu786923 (June 10, 2016 - sound recording/
lyrics/music)
• (10) Sportsman’s Paradise (1999) - same as Move that Body
• (11) Starlite Pt. 1 (1978) - PAu0063512 (Nov. 16, 1978;
words/music); SR755905 (Oct. 3, 2014; sound recording)
o Mr. Batiste states in his sworn declaration that he
authored, recorded, and released “Starlite Pt. 1” in
1978, but the sound recording copyright registration he
produces for this work lists January 1, 1999 as the first
date of publication.
o Moreover, the defendants attach to their summary
judgment motion two letters from the U.S. Copyright
Office, dated May 29, 2014 and March 13, 2015, in which
Batiste was told that he could not register his copyright
in this sound recording because he had failed to publish
the work with a proper notice of copyright.
2

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 3 of 29

distributed to various disc jockeys, and sold in local and national
record stores, on his website, and at live shows.

He has also

sold his music through digital platforms, although he concedes
that his online sales have been “sparse.”
Ryan Lewis and Ben Haggerty form the hip-hop duo known as
“Macklemore and Ryan Lewis.”

The duo has achieved international

stardom and is best known for the singles “Thrift Shop” and “Can’t
Hold Us,” which were the most popular songs in the United States
and Australia after their releases in 2012 and 2016. 3

The duo also

received several Grammy awards, including those for best new
artist, best album, and best rap performance.
On May 1, 2017, Batiste 4 sued Ryan Lewis and Ben Haggerty,
alleging

they

infringed

on

his

sound

recordings

and

music

compositions by using unauthorized samples and by copying elements
of eleven of his original works in the composition of their songs
Thrift Shop, Can’t Hold Us, Need to Know, Same Love, and Neon
Cathedral. 5

He alleges infringement of various beats, hooks,

melodies, chords, and drums in his songs. Batiste also sued Andrew
Joslyn and Allen Stone, who are credited with writing contributions

3

“Thrift Shop” has garnered 1.1 billion views on YouTube.
The complaint styles the plaintiff as Paul Batiste, doing
business as Artang Publishing, LLC.
5 Thrift Shop, Neon Cathedral, Can’t Hold Us, and Same Love were
released together on an album entitled “The Heist” in October of
2012, while “Need to Know” was released in February of 2016 as
part of an album entitled “This Unruly Mess I’ve Made.”
4

3

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 4 of 29

to some of the hip-hop songs, as well as the publishing companies
that

own

rights

to

the

compositions,

including

Macklemore

Publishing, LLC, Ryan Lewis Publishing, DB Joslyn Music, and Sticky
Stones, LLC. 6

6

The defendants maintain that they independently created the
allegedly infringing works through collaborations between Lewis
and Haggerty. For support, they submit the sworn declaration of
Ryan Lewis, in which he declares, under penalty of perjury:
3. Each of the Macklemore & Lewis Songs was independently
created and recorded by me and Ben Haggerty with some
additional contributors such as Andrew Joslyn and Allen
Stone.
I was directly involved with every audio
component of these recordings, and they do not include
any sound recordings created by Plaintiff Paul Batiste.
4. I understand that Mr. Batiste claims that Macklemore
& Lewis Songs sample sound recordings created by Mr.
Batiste. This is simply not true. Prior to this lawsuit
I had never even heard of Mr. Batiste, listened to any
of his music, or possessed any of his sound recordings.
As part of the discovery in this lawsuit, I, at the
direction of counsel, turned over all of the audio files
I had that documented the process of creating the
Macklemore & Lewis Songs. I can confirm that none of
Mr. Batiste’s sound recordings are contained in those
files or were sampled in the Macklemore & Lewis Songs.
During his deposition, Lewis added that he created the instrumental
component of each song, while Ben Haggerty wrote the lyrics and
verses. Lewis and Haggerty also testified during their depositions
that they had neither heard of Paul Batiste or Artang Publishing,
nor listened to any of Batiste’s music prior to this lawsuit.
Seeking to prove that the defendants did sample his sound
recordings, Mr. Batiste points to the following evidence: (1) Ryan
Lewis’s deposition testimony that he has sampled other songs to
create new musical compositions; and (2) the declaration of DaShawn
Hayes, Batiste’s counsel of record, in which Hayes states that the
Pro Tools session that was used to compose and record the allegedly
infringing work, “Thrift Shop,” contains “a plethora of sound
recordings of other artists,” including Jay-Z and Dr. Dre, and
displays an error message that 178 audio files are missing.
4

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 5 of 29

The defendants moved to dismiss the complaint on September
11, 2017, but ultimately withdrew that motion after the plaintiff
filed an amended complaint.

The defendants then moved to dismiss

the amended complaint on November 15, 2017, but again voluntarily
dismissed it after the plaintiff was granted leave to file a second
amended complaint on January 19, 2018.

Thereafter, on February

20, 2018, the defendants moved to dismiss the second amended
complaint.
denied

In its Order and Reasons dated May 17, 2018, this Court

the

defendants’

motion

to

dismiss,

holding

that

the

plaintiff’s second amended complaint plausibly alleges the three
requirements to a successful claim of copyright infringement: (1)
ownership of a valid copyright; (2) factual copying (through
allegations
probative

of

striking

similarity,

similarity,

because

the

rather

complaint

than

access

alleges

regarding access); and (3) substantial similarity.

no

and
facts

The Court

declined to engage in a side-by-side analysis of the works at the
pleading stage, noting that a decision on the merits based on the
Court’s judgment as to the songs’ similarities was inappropriate
at that time.
The defendants then produced reports of three musicology
experts, Brian Seeger, Mr. Lawrence Ferrara, and Paul Geluso, while
Batiste disclosed a report signed by Archie Milton, an alleged
expert musicologist.

Contending that the Milton Report was ghost-

written by the plaintiff, the defendants moved to exclude Milton’s
5

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 6 of 29

report and testimony from consideration on summary judgment or at
trial.

The defendants also moved for summary judgment, arguing

that the plaintiff’s copyright infringement claims fail as a matter
of law because he cannot prove copyright ownership, factual copying
(through striking similarity, or access and probative similarity),
or substantial similarity.
On April 10, 2019, the Court granted the defendants’ motion
to exclude the expert report and testimony of Archie Milton.
light

of

Milton’s

deposition

testimony

that

the

In

plaintiff

conducted all of the analysis in the report and that Milton could
not verify the accuracy of such work, the Court determined that
“Mr. Batiste’s involvement in the preparation of Milton’s report
exceed[ed] the permissible bounds of ‘editorial assistance.’”

One

week later, on the submission date of the defendants’ motion for
summary

judgment,

the

plaintiff

filed

a

motion

for

leave

to

supplement his opposition, in an attempt to resubmit the contents
of the Milton Report as an attachment to his own declaration.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
6

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 7 of 29

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A genuine

dispute of fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion.

See id.

In this regard,

the non-moving party must do more than simply deny the allegations
raised by the moving party.

See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).

Rather, he

must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.

Id.

Hearsay evidence and

unsworn documents that cannot be presented in a form that would be
admissible

in

evidence

opposing evidence.

at

trial

do

not

qualify

as

competent

Martin v. John W. Stone Oil Distrib., Inc.,

819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).
“[T]he

nonmoving

conclusory

party

allegations,

scintilla of evidence.”

cannot

defeat

unsubstantiated

summary

judgment

assertions,

or

with

only

a

Hathaway v. Bazany, 507 F.3d 312, 319

(5th Cir. 2007) (internal quotation marks and citation omitted).
Ultimately, “[i]f the evidence is merely colorable . . . or is not
significantly

probative,”

summary

judgment

is

appropriate.

Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are
improper as summary judgment evidence.”).
7

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 8 of 29

Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding
whether a fact issue exists, courts must view the facts and draw
reasonable inferences in the light most favorable to the nonmoving party.

Scott v. Harris, 550 U.S. 372, 378 (2007).

Although

the Court must “resolve factual controversies in favor of the
nonmoving party,” it must do so “only where there is an actual
controversy, that is, when both parties have submitted evidence of
contradictory facts.”

Antoine v. First Student, Inc., 713 F.3d

824, 830 (5th Cir. 2013) (internal quotation marks and citation
omitted)
In resolving a motion for summary judgment, the Court “may
only

consider

admissible

evidence.”

Coleman

v.

Pharmaceuticals, 540 F. App’x 302, 306 (5th Cir. 2013).

Jason
Federal

Rule of Evidence 56(c)(2) provides that “[a] party may object that
the material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.”
II.
The Court first considers the plaintiff’s motion for leave to
supplement

his

opposition

papers

by

attaching

to

his

sworn

declaration the contents of the Milton Report (restyled as his
own).

Batiste

submits

that

his

“supplemented

declaration”

illustrates how the defendants used musical software to sample and
8

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 9 of 29

copy his musical works and, therefore, will assist the Court in
analyzing
oppose

his

the

technical

request,

infringement

contending

claims.

that

Mr.

The

Batiste

defendants

has

neither

established his qualifications to serve as an expert witness, nor
demonstrated

good

scheduling order.

cause

to

justify

amending

this

Court’s

The Court agrees.
A.

Federal Rule of Evidence 701 provides that lay testimony may
not be “based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.”

In turn, Rule 702 permits

a witness to testify as an expert only where he has demonstrated
that he is “qualified as an expert by knowledge, skill, experience,
training or education” and that his testimony is reliable.

Fed.

R. Evid. 702; see also Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993).
Batiste’s proffered exhibit, through which he opines on the
similarity

of

various

song

pairings

using

computer-generated

visual representations of music, presupposes expert as opposed to
lay

testimony.

Mr.

Batiste

has

failed

to

establish

his

qualifications to serve as an expert witness in a case in which he
is the plaintiff.

Nor does his report pass muster under Daubert

because it is lacking in reliability.
interested.

It is simply patently self-

In this regard, Mr. Batiste cannot demonstrate that:

(1) the report “is based on sufficient facts or data;” (2) it “is
9

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 10 of 29

the product of reliable principles and methods;” or (3) he “has
reliably applied the principles and methods to the facts of the
case.”

See id.

Mr. Batiste’s report primarily consists of spectrogram and
waveform comparisons that depict fragments of matching graphic
representations

of

sound

between

his

songs

and

those

of

the

defendants; based on these overlapping segments, he concludes that
the defendants copied his works.

The reliability of Mr. Batiste’s

methodology is rejected by the defendants’ sound recording expert,
Paul Geluso, who explains that “it is possible for two random songs
to have musical events that, in a spectrogram comparison, can be
seen to visually align to a degree that [the plaintiff] would
declare indisputably ‘digitally sampled’ when no such digital
sampling occurred.” 7

Similarly, Dr. Lawrence Ferrara, one of the

defendants’ music composition experts, explains that “fragmentary
similarities between excerpts of the compositions at issue only
appear[ed]

after

misrepresentations

deeply
in

the

flawed

manipulations

transcriptions.”

(emphasis

and
added).

Because the plaintiff's self-interested report bears no indicia of
reliability, it cannot be said to pass muster under Daubert.

7

To illustrate Mr. Batiste’s flawed methodology, Geluso points to
a spectrogram comparison of the songs “Stayin Alive” by the Bee
Gees (1978) and “Back in Black” by AC/DC (1980), in which musical
building blocks of the songs visually align, even though the
digital sampling software referred to in the plaintiff’s report
did not exist at the time “Back in Black” was released.
10

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 11 of 29

B.
Evidentiary issues aside, Mr. Batiste’s attempt to supplement
his

opposition

amounts

scheduling order.

to

a

request

to

modify

this

Court’s

Federal Rule of Civil Procedure 15(a)(2) allows

a party to “amend its pleading only with the opposing party’s
written consent or the court’s leave” and instructs courts to
“freely give leave when justice so requires.”

However, Rule

16(b)(4) provides that a court’s scheduling order may be modified
“only for good cause and with the judge’s consent.”

Fed. R. Civ.

Proc. 16(b)(4).
When determining whether there is good cause under Rule 16,
courts consider four factors: “(1) the explanation for the failure
to timely [comply with the scheduling order]; (2) the importance
of the [modification]; (3) potential prejudice in allowing the
[modification]; and (4) the availability of a continuance to cure
such prejudice.”

Squyres v. Heico Companies, L.L.C., 782 F.3d

224, 237 (5th Cir. 2015) (quoting Meaux Surface Productions, Inc.
v. Fogleman, 607 F.3d 161, 167 (5th Cir. 2010)) (alterations in
original).
This Court’s scheduling order provides:
Written reports of experts, as defined by Federal Rules
of Civil Procedure 26(a)(2)(B), who may be witnesses for
Plaintiff fully setting forth all matters about which
they will testify and the basis therefor shall be
obtained and delivered to counsel for Defendant as soon
as possible, but in no event later than January 24, 2019.

11

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 12 of 29

. . .
The Court will not permit any witness, expert or fact,
to testify or any exhibits to be used unless there has
been compliance with this Order as it pertains to the
witness and/or exhibits, without an order to do so issued
on motion for good cause shown.
Although Mr. Batiste invokes Rule 15’s lenient standard, it is
Rule 16’s “good cause” standard that governs his last-minute
request to submit his own self-interested musicology report to
bolster his copyright infringement claims.

After submitting an

expert report in the name of Archie Milton, Mr. Batiste now
declares, under penalty of perjury, that he “personally conducted
an analysis of [his] musical works and those of the defendants
that form[] the basis of this lawsuit and discovered several acts
of sampling and copying;” he then seeks to attach the Milton Report
(restyled as his own) to his supplemental declaration.

Although

Mr. Batiste asserts that the report will assist the Court in
analyzing his technical infringement claims, he fails to the
persuade the Court that his efforts to circumvent its ruling amount
to “good cause.” 8
III.
The plaintiff claims that five of the defendants’ songs –
“Thrift Shop,” “Neon Cathedral,” “Can’t Hold Us,” “Need to Know,”
and “Same Love” – infringe the musical compositions and sound

8

Plaintiff’s third effort to favorably restyle and divert the
essentials of his case.
12

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 13 of 29

recordings of eleven of his original works, for a total of twelve
pairs of allegedly infringing and infringed songs.
A.
“To prove copyright infringement, a plaintiff must establish
(1) ownership of a valid copyright; (2) factual copying; and (3)
substantial similarity.”

Armour v. Knowles, 512 F.3d 147, 152

(5th Cir. 2007) (per curiam).

“Factual copying can be proved by

direct or circumstantial evidence.”

Positive Black Talk Inc. v.

Cash Money Records, Inc., 394 F.3d 357, 368 (5th Cir. 2004)
(internal quotations omitted).

Because direct evidence is often

difficult to provide, “[f]actual copying may be inferred from (1)
proof that the defendant had access to the copyrighted work prior
to creation of the infringing work and (2) probative similarity.”
Id.
“To establish access, a plaintiff must prove that ‘the person
who

created

the

allegedly

infringing

work

had

a

reasonable

opportunity to view the copyrighted work’ before creating the
infringing work.”

Armour, 512 F.3d at 152-53 (quoting Peel & Co

v. The Rug Market, 238 F.3d 391, 394 (5th Cir. 2001)).

“A bare

possibility of access is insufficient.” Guzman v. Hacienda Records
and Recording Studio, Inc., 808 F.3d 1031, 1037 (5th Cir. 2015).
Stated

differently,

an

“access

speculation or conjecture.’”
152-53).

A

jury

could

find

showing

cannot

‘be

based

on

Id. (quoting Armour, 512 F.3d at
that
13

two

works

have

probative

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 14 of 29

similarity if “it finds any similarities between the two works
(whether substantial or not) that, in the normal course of events,
would not be expected to arise independently in the two works.”
Positive Black Talk, 394 F.3d at 370.
However, if a plaintiff cannot prove access, he may still
prove factual copying “by showing such a ‘striking similarity’
between the two works that the similarity could only be explained
by actual copying.”

Armour, 512 F.3d at 152 n.3; Vallery v.

American Girl, L.L.C., 697 F. App’x 821, 824 (5th Cir. 2017).

Two

works are “strikingly similar” if the plaintiff demonstrates “that
the alleged ‘similarities are of a kind that can only be explained
by copying, rather than by coincidence, independent creation, or
prior common source.’”

Guzman, 808 F.3d at 1039 (quoting Selle v.

Gibb, 741 F.2d 896, 904 (7th Cir. 1984)).
“Even
actionable.”

if

copying

is

established,

it

must

be

legally

Vallery v. Am. Girl, L.L.C., 697 F. App’x 821, 824

(5th Cir. 2017) (per curiam).

In determining “whether an instance

of copying is legally actionable, a side-by-side comparison must
be made between the original and the copy to determine whether a
layman would view the two works as ‘substantially similar.’”

Id.

(quoting Creations Unlimited, Inc. v. McCain, 112 F.3d 814, 816
(5th Cir. 1997)).

To satisfy the substantial similarity test, the

plaintiff must prove that a layman would “detect ‘piracy without
any aid or suggestion or critical analysis by others.’”
14

Peel, 238

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 15 of 29

F.3d at 398 (quoting Harold Lloyd Corp. v. Witwer, 65 F.2d 1, 18
(9th Cir. 1933)).
reaction

of

immediate.”

the

The works must be so similar that “[t]he
public

to

the

matter

[is]

Id. (internal citations omitted).

spontaneous

and

A determination

that no substantial similarity exists as a matter of law is
“appropriate if the court can conclude, after viewing the evidence
and drawing inferences in a manner most favorable to the nonmoving
party, that no reasonable juror could find substantial similarity
of ideas and expression.”

Gen. Universal Sys., Inc. v. Lee, 379

F.3d 131, 142 (5th Cir. 2004).
To prove infringement of the copyright in a sound recording,
also known as “sampling,” a plaintiff must prove that his recording
was physically reproduced.

Newton v. Diamond, 388 F.3d 1189, 1192

(9th Cir. 2004). With respect to a claim of unauthorized sampling,
merely sounding like the plaintiff’s recording is not sufficient.
Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 800-01
(6th

Cir.

2005).

Thus,

summary

judgment

is

warranted

on

a

“sampling” claim if “a general audience would not recognize” that
a portion of the allegedly infringing work “originate[d]” from the
allegedly infringed work. See VMG Salsoul, Ltd. Liab. Co. v.
Ciccone, 824 F.3d 871, 874 (9th Cir. 2016).
Finally, summary judgment is appropriate for any type of
copyright infringement claim where a plaintiff fails to prove
copyright ownership through proper registration of his copyright.
15

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 16 of 29

See Geoscan, Inc. of Tex. v. Geotrace Techs., Inc., 226 F.3d 387,
392 (5th Cir. 2000).
B.
The defendants first challenge Mr. Batiste’s ability to prove
factual copying.

Notably, this Court has already ruled that Mr.

Batiste must demonstrate “striking similarity” in order to prove
factual copying. 9 Because he has failed to produce for this record
disputed factual similarities between his songs and those of the
defendants that “are sufficiently unique or complex so as to
preclude all explanations other than copying,” the defendants
contend that the plaintiff’s copyright infringement claims fail as
a matter of law.

See Guzman, 808 F.3d at 1039-40.

In his

opposition papers, Mr. Batiste ignores the defendants’ contention
(and this Court’s instruction) that he must establish a factual
dispute

regarding

striking

similarity,

and

he

attempts

to

establish factual copying through evidence of access and probative
similarity.
i.
Notwithstanding

the

plaintiff’s

obstinance,

the

Court

considers whether he has presented evidence that raises a question
of fact as to the issue of access – that is, whether the defendants

9

In denying the defendants’ motion to dismiss, this Court held
that the plaintiff’s second amended complaint failed to plead any
facts
concerning
access
but
plausibly
alleged
“striking
similarity.” See Order and Reasons dtd. 5/17/18.
16

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 17 of 29

had a “reasonable opportunity to view the copyrighted work[s]
before creating the infringing work[s].”

See Armour, 512 F.3d at

152-53 (internal citations omitted).
The defendants submit that there is no evidence that they had
access to any of Batiste’s songs at the time the Macklemore and
Lewis songs were written.

Ryan Lewis and Ben Haggerty have

testified that, prior to this lawsuit, they had neither heard of
Paul Batiste or Artang Publishing, nor listened to any of Batiste’s
music. Moreover, expert musicologist Brian Seeger, a tenured music
professor

at

the

University

of

New

Orleans

who

“spend[s]

a

considerable amount of [his] time staying abreast of [] local music
luminaries,” insists that Mr. Batiste’s “creative works are quite
unknown in the local community of music fans and musicians” and
“even in New Orleans, Mr. Batiste is flying under the radar of
even the most informed music connoisseurs.”
In an attempt to create a fact question as to the issue of
access, Mr. Batiste contends that the defendants had a “reasonable
opportunity to view his songs” because his musical works were
“widely disseminated.”

Pointing to his own sworn declaration for

support, Batiste submits that his songs have been broadcast on New
Orleans radio stations, distributed to various disc jockeys, and
sold in local and national record stores, on his website, at lives
shows, and through digital platforms.

According to Batiste, the

fact that Macklemore and Ryan Lewis performed in New Orleans,
17

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 18 of 29

Louisiana on December 12, 2011 at a venue located “not too far”
from where his music was being sold also supports an inference
that they had a reasonable opportunity to view his music before
releasing their album entitled “The Heist” during the fall of 2012.
“Taking the access and summary judgment standards together,
a plaintiff can survive summary judgment only if his evidence is
significantly probative of a reasonable opportunity for access.”
Armour, 512 F.3d at 153.
[Batiste]

has

produced

Thus, “[t]he question here is whether
more

than

speculation

regarding access by [the defendants].”
this record, he has not done so.

and

conjecture

Peel, 238 F.3d at 396.

On

First, that Macklemore and Ryan

Lewis performed in New Orleans “not too far” from a store in which
Mr. Batiste’s records are sold creates at best a hope for a “bare
possibility of access.”

See Guzman, 808 F.3d at 1037.

With

respect to his dissemination theory, Batiste declares that his
songs

have

been

distributed

nationally

but

submits

materials

reflecting no more than a handful of sales at two record stores
located in Louisiana, and he concedes that his online sales have
been “sparse.” 10 He also presents no evidence of “awards, billboard

10

Batiste testified during his deposition as follows concerning
his online sales:
Q. [T]o define universe a little more, we're talking
about iTunes and Spotify. Is there anything else that
Defendant's 21 encompasses, other than those two
services?
A. Um — it would be, um — more than that. It may be a
dozen. But still, revenues were sparse at best.
18

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 19 of 29

charts, or royalty revenues” that would implicate a factual dispute
that the defendants had heard his songs before releasing their
own.

Guzman, 808 F.3d at 1038; see also Arnett v. Jackson, No.

5:16-CV-872-D, 2017 U.S. Dist. LEXIS 128672, at *6 (W.D. N.C. Aug.
14, 2017).
ii.
Because

Mr.

Batiste

has

presented

no

evidence

that

is

“significantly probative of a reasonable opportunity for access,”
to

establish

demonstrate

that
that

the
his

“strikingly similar.”

defendants
works

and

copied

those

of

his
the

songs,

he

defendants

must
are

See Armour, 512 F.3d at 153.
a.

Two

works

are

“strikingly

similar”

if

the

plaintiff

demonstrates “that the alleged ‘similarities are of a kind that
can only be explained by copying, rather than by coincidence,
independent creation, or prior common source.’”

Guzman, 808 F.3d

at 1039 (quoting Selle v. Gibb, 741 F.2d 896, 904 (7th Cir. 1984)).
The similarities in the work must “‘appear in a sufficiently unique
or complex context,’ which is of particular importance ‘with

Q. And I know I'm approaching being tedious now, but I'm
also not very smart so.
This Balance History, this
statement, there's no other revenue that you're aware of
that you are receiving from online distribution of your
works.
. . .
A. Only TuneCore.
19

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 20 of 29

respect to popular music, in which all songs are relatively short
and tend to build on or repeat a basic theme.’”

Id. (quoting

Benson v. Coco-Cola Co., 795 F.2d 973, 975 n.2 (11th Cir. 1986)).
This “stringent” standard requires that the works be so similar
that “the similarity could only be explained by actual copying.”
Armour, 512 F.3d at 152 n.3.

Indeed, the Fifth Circuit has held

that two songs were not strikingly similar when the opening sixteen
words of each song were identical, but other components of the
composition, like the melody, tempo, and chord structures, were
different.

Guzman, 808 F.3d at 1039-40.

Moreover, “[t]he test

for ‘striking similarity’ . . . imposes a ‘much higher standard’
than that for ‘substantial similarity,’” which is used to prove
that an instance of copying is actionable.

Vallery v. Am. Girl

Dolls, No. 13-5066, 2015 U.S. Dist. LEXIS 44709, at *6 (E.D. La.
Apr. 6, 2015) (Knowles, J.), aff’d 697 F. App’x 821 (5th Cir. 2017)
(quoting Guzman v. Hacienda Records & Recording Studio, Inc., No.
6-12-CV-42, 2014 U.S. Dist. LEXIS 169746, at *4-5 (S.D. Tex. Dec.
9, 2014)).
b.
With respect to his sampling claims, Mr. Batiste contends
that

the

defendants

manipulated them.

copied

his

sound

recordings

and

then

In so arguing, he appears to suggest that a lay

listener would not be able to recognize the similarities in the
works.

Accordingly, he points to circumstantial evidence in an
20

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 21 of 29

attempt to controvert Ryan Lewis’s sworn declaration testimony
that “[e]ach of the Macklemore & Lewis Songs was independently
created and recorded by [Lewis] and Ben Haggerty,” that “they do
not

include

any

sound

recordings

created

by

Plaintiff

Paul

Batiste,” and that “none of Mr. Batiste’s sound recordings are
contained in [the audio files . . . that documented the process of
creating the Macklemore & Lewis Songs] or were sampled in the
Macklemore & Lewis Songs.”
Mr. Batiste first points to evidence that the defendants have
sampled other sound recordings to create new musical compositions.
During

his

deposition,

Ryan

Lewis

testified

that

he

defines

sampling as “taking a very small or larger piece of [a] song and
incorporating it into a new production” and that he has used this
tool to record some of his songs:
Q: Have you ever independently found a song that you
decided you would sample to make a beat?
A: Yes.
. . .
Q: Can’t Hold Us?
A: I think there’s a percussion sample in that song.
Q: Okay.
And what is the source of that percussion
sample?
A: It is from an old band from the British Invasion.
It’s blended with other parts of the drums.
I don’t
recall.
Q: Did you receive any sort of licensing clearance from
them to incorporate that into Can’t Hold Us?
A: I don’t recall. That’s probably a good question for
my manager.
Pointing to the sworn declaration of his counsel of record,
DaShawn Hayes, for support, Batiste next submits that the Pro Tools
21

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 22 of 29

session

that

was

used

to

compose

and

record

the

allegedly

infringing work, “Thrift Shop,” contains “a plethora of sound
recordings of other artists, including but not limited to Jay-Z
and Dr. Dre,” and displays an error message that 178 audio files
are missing.
of

the

Mr. Hayes also attaches to his declaration an image

notification,

which

states

that

“178

audio

files

are

missing” and asks whether the user would like to, among other
options, “manually” or “automatically” “find & relink.”
In

response,

the

defendants

produce

evidence

that

the

“missing files” notification is a “common message” that appears
when Pro Tools files are moved across hard drives and does not
indicate that files are actually “missing.”
notification

during

his

deposition,

When asked about this

Mr.

Lewis

testified

as

follows:
Q: Is your testimony that when you switch sessions from
hard drive to hard drive you will get the error message
of audio files are missing?
A: My testimony is that that’s a standard message, and
yes, that it is common. If you move the location of the
audio files that it’s looking for, then you have to allow
it to find the new location. That’s what automatically
find and relink means. In terms of Thrift Shop or any of
these sessions, they’re several years old.
I’ve had
multiple different hard drives and multiple different
computers that I’ve worked on in that time span.
Notably, the plaintiff has introduced no evidence disputing Mr.
Lewis’s

explanation

supporting

his

of

this

assertion

Pro

that

22

Tools

files

message
are

or

missing

otherwise
from

the

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 23 of 29

defendants’ Pro Tools session.

Moreover, that the files produced

by the defendants contain other artists’ sound recordings is
immaterial.

Batiste argues that the presence of these files shows

that the defendants sample other artists’ works, but he presents
no evidence that these artists’ songs were sampled or are contained
within any of the Macklemore and Ryan Lewis Songs.
More importantly, he has presented no probative evidence that
the defendants have sampled any of his own works.

In the absence

of any evidence of sampling, the Court has no option but to listen
to

the

works

themselves

to

determine

whether

the

defendants

reproduced the plaintiffs’ sound recordings.
c.
After

performing

a

listening

comparison

of

each

of

Mr.

Batiste’s songs and the work that allegedly infringes it, and aided
by the guidance of the defendants’ expert musicologists, 11 the
Court finds that the plaintiff has failed to demonstrate “striking
similarity” or any instances of sampling with respect to the twelve
song pairings identified in his complaint.

11

The defendants have retained (1) expert musicologist Dr.
Lawrence Ferrara of New York University to compare the plaintiff’s
and the defendants’ musical compositions and evaluate the
plaintiff’s claims of similarity; (2) expert sound and recording
engineer Paul Geluso, also of New York University, to analyze the
plaintiff’s
claims
of
digital
sampling;
and
(3)
expert
musicologist Brian Seeger of the University of New Orleans to offer
additional analysis on the plaintiff’s claims of compositional
similarity and digital sampling.
23

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 24 of 29

(1)

“Thrift Shop” vs. Batiste’s “Hip Jazz”

The plaintiff claims that “Thrift Shop” infringes the beat,
drums, introduction, and bass line of “Hip Jazz.”

Although the

Court was able to hear a faint similarity in the bass and beats
used in these works, the resemblance was neither substantial, nor
striking. This finding is supported by Dr. Ferrara’s compositional
analysis, in which he explains that the beats and drums of the two
songs

are

markedly

different,

with

only

occasional

generic

similarities, and that the bass lines are only similar with respect
to the use of a steady eighth note, which is commonly used. Insofar
as Mr. Batiste claims that “Thrift Shop” samples the bass line of
“Hip Jazz,” Mr. Geluso and Mr. Seeger both conclude that sampling
is impossible here because the bass line in “Hip Jazz” is not
played in isolation.
(2)

“Thrift Shop” vs. Batiste’s “World of Blues”

Mr. Batiste also alleges that “Thrift Shop” infringes the
hook and melody of “World of Blues” to create its “distinctive
saxophone melody.”

With respect to this pairing, the Court was

unable to identify any similarity whatsoever.

Although Batiste

claims that the saxophone part of “Thrift Shop” was sampled, the
Court did not hear anything that sounded like a saxophone in “World
of Blues.”

Moreover, to the extent Mr. Batiste claims that the

defendants copied the hook of “World of Blues” to create the hook
of “Thrift Shop” that sings “I’ll wear your granddad’s clothes,”
24

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 25 of 29

Mr. Seeger has concluded that “there is nothing in World of Blues
at the cited time that [he] would consider a hook.”
(3)

“Thrift Shop” vs. Batiste’s “Kids”

Batiste next claims that “Thrift Shop” infringes the 808 bass
kick of “Kids” to create its distinctive kick melody.

Although

the Court was able to recognize a kick-drum sound in both songs,
it also noticed that the melodies and harmonies of the works are
completely and strikingly different.

The Court’s finding that

these works are not strikingly similar is further supported by Mr.
Seeger’s insight that the “808 kick” is a universally available
sound.

Moreover, with respect to Batiste’s claim of sampling, Mr.

Geluso

explains

that

the

808

kick-drum

accompanied by other instrumentation.

sound

in

“Kids”

is

Because the kick-drum sound

in “Thrift Shop” is free of other sounds, Geluso concludes that
“Kids” could not have been sampled.
(4)

“Neon Cathedral” vs. Batiste’s “Tone Palette”

Mr. Batiste alleges that “Neon Cathedral” infringes the hook,
melody, and chords of “Tone Palette.”

To the Court’s ear, these

songs are not similar in any respect.

This finding is supported

by Dr. Ferrara’s compositional analysis, which reveals that the
melodies are “very different.”

Although Ferrara does identify

similarities within the chord progressions, he notes that the chord
progression used in “Tone Palette” is commonplace; he explains

25

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 26 of 29

that it is associated with flamenco music and found in many popular
songs.
(5)

“Neon

Cathedral”

vs.

Batiste’s

“Salsa

4

Elise

(Fur

Elise)”
Batiste next claims that “Neon Cathedral” infringes the hook,
melody, and chords of “Salsa 4 Elise (Fur Elise)” to create its
distinctive melody.

With respect to this song pairing, the Court

does notice a slight similarity in their melodies.

But because

“Salsa 4 Elise” is Batiste’s rendition of Beethoven’s “Fur Elise,”
this similarity is certainty not “of a kind that can only be
explained by copying, rather than by coincidence, independent
creation, or prior common source.”

See Guzman, 808 F.3d at 1039

(internal citations omitted) (emphasis added).

That hardly rises

to a dispute of material fact.
(6)

“Neon Cathedral” vs. Batiste’s “Drowning in My Blues”

Batiste
“drums”

of

recognize

also

claims

“Drowning
a

similar

completely different.

in
drum

that
My

“Neon

Blues.”

rhythm,

Cathedral”
Although

these

works

infringes
the
are

Court

the
did

otherwise

Moreover, Dr. Ferrara explains that the

drum rhythms found in these two songs is also present in John
Cougar Mellencamp’s “Jack and Diane,” which predates “Drowning in
My Blues.”

Based on the foregoing, the Court finds that these

works are not strikingly similar.

26

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 27 of 29

(7)

“Can’t Hold Us” vs. Batiste’s “Starlite Pt. 1”

The plaintiff next alleges that “Can’t Hold Us” infringes the
drums and bass line of “Starlite Pt. 1.”

The Court was unable to

hear any similarity with respect to the drums, bass line, or
overall feel of these songs.
Ferrara’s

compositional

This finding is supported by Dr.

analysis,

which

also

similarities between the drums and bass lines.

revealed

no

To the extent

Batiste claims that “Can’t Hold Us” sampled “Starlite Pt. 1,” Mr.
Geluso and Mr. Seeger both agree that sampling is not possible
here because “Starlite Pt. 1” contains instruments and sounds that
are not present in “Can’t Hold Us.”
(8)

“Can’t Hold Us” vs. Batiste’s “Love Horizon”

Batiste also claims that “Can’t Hold Us” infringes the melody
of “Love Horizon.”

Once again, the Court was unable to identify

any similarity between these works with respect to melody or
overall feel.

Notably, “Can’t Hold Us” is an upbeat party song,

while “Love Horizon” is a slow-paced jazz work that features piano
and guitar sounds.

Dr. Ferrara confirms that the melodies are

“vastly different.”
(9)

“Need to Know” vs. Batiste’s “Move That Body”

Mr. Batiste next places “Need to Know” at issue, claiming
that this work infringes and digitally samples the chords of “Move
That Body.”

To the Court’s ear, the chord of “Move That Body” (at

1:56) does sound somewhat similar to the chord of “Need to Know”
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Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 28 of 29

(at 0:00), but the overall harmonies, rhythms, melodies, and lyrics
of the two works are different.

Moreover, Mr. Geluso and Mr.

Seeger explain that no sampling has occurred because any digital
sample of the chords from “Move That Body” would necessarily
include drum sounds, which are absent from “Need to Know.”
(10) “Need to Know” vs. Batiste’s “Kids”
Batiste also claims that “Need to Know” infringes the melody
and beat of “Kids.”

With respect to these song pairings, the Court

was unable to identify any similarity whatsoever.

The melodies

and rhythms are completely different, and the overall feels of the
songs have nothing in common.

Once again, Mr. Geluso suggests

that “Need to Know” could not have sampled the beat of “Kids”
because the defendants’ work does not contain the “scratching,
bass

kick

drum,

snare

drum,

hi-hats,

or

synth

brass”

sounds

featured in the plaintiff’s song.
(11) “Same Love” vs. Batiste’s “My Bad”
Mr. Batiste next alleges that “Same Love” infringes the chord,
hook, and verse of “My Bad.”

To the Court’s ear, there is a minor

similarity between the melodies of “My Bad” (at 0:44) and “Same
Love” at (1:41). According to Dr. Ferrara, the songs share similar
pitch

sequences

durations

at

differ.

these
The

time

positions,

defendants’

expert

but

their

rhythmic

musicologists

also

explain that Batiste’s claims of sampling are impossible with
respect to this sound pairing.
28

Case 2:17-cv-04435-MLCF-KWR Document 140 Filed 04/23/19 Page 29 of 29

(12) “Same Love” vs. Batiste’s “Sportsman’s Paradise”
Finally, Batiste alleges that the defendants misappropriated
the melody of “Sportsman’s Paradise” to create the “beats/drums”
and the “guitar melody” of “Same Love” and that they digitally
sampled the “beat and bass” and “introduction” of his song.

With

respect to the beats and drum bass of the two songs, the Court was
unable to hear any similarities.

Mr. Ferrara confirms in his

report that the kick drum rhythms and the bass in these works are
“very different;” in “Same Love,” the bass is almost non-existent,
and there are no repeated sixteenth rhythms in hi-hat cymbal.

In

addition, neither the Court, nor Mr. Seeger, could identify any
guitar melody in “Same Love.”
In light of this Court’s determination that the plaintiff has
presented no probative evidence to demonstrate that the defendants
“factually

copied”

any

of

his

musical

compositions

or

sound

recordings, the Court finds no material disputed issues of fact,
and summary relief is appropriate on the record before the Court.
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the plaintiff’s motion for leave to supplement is DENIED, and the
defendants’ motion for summary judgment is GRANTED.
New Orleans, Louisiana, April 23, 2019

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
29