Batiste v. Lewis et al

Filing 58

ORDER AND REASONS denying 46 Motion to Dismiss. Signed by Judge Martin L.C. Feldman on 5/17/2018. (clc)

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 to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6). For the following
reasons, the motion is DENIED.
Background
A New Orleans jazz musician accuses an internationally famous
hip-hop duo of copyright infringement of eleven original songs.
This litigation followed.
Paul Batiste is a member of The Batiste Brothers Band, a New
Orleans

jazz

band

founded

in

1976.

Batiste

also

owns

Artang

Publishing LLC. Beginning in 1997 through 2002, Batiste composed
several original songs, entitled Hip Jazz, Kids, Starlite Pt. 1,
World of Blues, Love Horizon, Tone Palette, My Bad, Salsa 4 Elise
(Fur Elise), Drowning in my Blues, Sportsman’s Paradise, and Move
That Body. Batiste has registered each song with the United States
Copyright Office.
Ryan Lewis and Ben Haggerty form the hip-hop duo known as
“Macklemore and Ryan Lewis.” The duo has achieved international

1

stardom, and is best known for their singles “Thrift Shop” and
“Can’t Hold Us,” which were both one of the most popular songs in
the United States and Australia after their releases in 2012 and
2016. 1 They also received several Grammy awards, including those
for best new artist, best album, and best rap performance for their
single, Thrift Shop.
On May 1, 2017, Batiste 2 sued Ryan Lewis and Ben Haggerty for
infringing on his copyrights by using unauthorized samples and
copying elements of the eleven original songs listed above in the
composition of their songs Thrift Shop, Can’t Hold Us, Need to
Know, Same Love, and Neon Cathedral. Batiste also sued Andrew
Joslyn and Allen Stone, who are credited with writing the hip hop
songs,

and

the

compositions,

publishing

including

companies

Macklemore

who

own

rights

Publishing,

Ryan

to

the

Lewis

Publishing, Macklemore LLC, DB Joslyn Music, and Stickystones
Publishing. 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. The defendants

1

“Thrift Shop” has garnered 1.1 billion views on YouTube.
The complaint styles the plaintiff as Paul Batiste doing business
as Artang Publishing.
2

2

filed this motion to dismiss the second amended complaint on
February 20, 2018.

I.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted. Such a motion is rarely
granted because it is viewed with disfavor. See Lowrey v. Tex. A
& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997)(quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure,
a pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief." Ashcroft v. Iqbal,
556 U.S. 662, 678-79 (2009)(citing Fed. R. Civ. P. 8). "[T]he
pleading standard Rule 8 announces does not require 'detailed
factual allegations,' but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation." Id. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accept[s]
all well-pleaded facts as true and view[s] all facts in the light
most favorable to the plaintiff.” See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee
v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
3

Cir.

2012)(en

banc)).

But,

in

deciding

whether

dismissal

is

warranted, the Court will not accept as true legal conclusions.
Id. at 502-03 (citing Iqbal, 556 U.S. at 678).
To survive dismissal, “‘a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal quotation
marks omitted). “Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if
doubtful

in

fact).”

Twombly,

550

U.S.

at

555

(citations

and

footnote omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable

inference

that

the

defendant

is

liable

for

the

misconduct alleged.” Iqbal, 556 U.S. at 678 (“The plausibility
standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.”). The Court’s task “is to determine whether the
plaintiff stated a legally cognizable claim that is plausible, not
to evaluate the plaintiff’s likelihood of success.” Thompson v.
City of Waco, Texas, 764 F.3d 500, 503 (5th Cir. 2014)(citation
omitted). This is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “Where a complaint pleads facts
4

that are merely consistent with a defendant’s liability, it stops
short

of

the

line

between

possibility

and

plausibility

of

entitlement to relief.” Id. at 678 (internal quotations omitted)
(citing Twombly, 550 U.S. at 557). “[A] plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’”, thus,
“requires

more

than

labels

and

conclusions,

and

a

formulaic

recitation of the elements of a cause of action will not do.”
Twombly,

550

U.S.

at

555

(alteration

in

original)

(citation

omitted).

II.
A.
The defendants submitted a report by expert musicologist Dr.
Lawrence Ferrera, the Director Emeritus of Music and the Performing
Arts at New York University, to compare the works of Batiste and
the defendants. They also submitted a disk containing copies of
audio recording of both the defendants’ and the plaintiff’s musical
works. As a preliminary matter, the Court must first determine if
it can consider these submissions at this stage of the case.
When reviewing a motion to dismiss, the Court is typically
confined to the pleadings. Scanlan v. Texas A&M University, 343
F.3d 533, 536 (5th Cir. 2003). Federal Rule of Civil Procedure
12(d) provides “[i]f, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to and not excluded by
5

the court, the motion must be treated as one for summary judgment
under Rule 56.” However, the Fifth Circuit has recognized an
exception. Id. The reviewing court may consider “documents that
are referred to in the plaintiff’s complaint and are central to
the plaintiff’s claim.” Id.; Collins v. Morgan Stanley Dean Witter,
224 F.3d 496, 498 (5th Cir. 2000). The Fifth Circuit has held that
when a district court considered an affidavit and sworn declaration
attached to the motion to dismiss, it “converted the motion to
dismiss

into

Prideco,

a

motion

L.P.,

625

for

summary

Fed.

Appx.

judgment.”
690,

Gamel

693

v.

Grant

(5th

Cir.

2015)(unpublished). Because both Batiste’s and Macklemore and Ryan
Lewis’s songs comprise the sole issues in this case, and because
they were referred to in the plaintiff’s several complaints, the
Court can consider their recordings. Mr. Ferrara’s report was
created by the defendants in response to the complaint; it was not
referenced

in

the

complaint.

Accordingly,

the

Court

cannot

consider the report without converting this motion to dismiss into
a motion for summary judgment. The Court need not reach that
result.

B.
“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
6

Cir.

2007).

“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). A jury could
find that two works have probative 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, it can 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 Fed. Appx. 821, 824 (5th Cir. 2017).
7

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 content,” particularly with popular music. 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.”
Id. (quoting Armour, 512 F.3d at 147). For example, the Fifth
Circuit has held that two songs were not strikingly similar when
the opening sixteen words of both songs were identical, but other
components of the composition, like the melody, tempo, and chord
structures, were different. Id.
A plaintiff satisfies the third requirement of copyright
infringement, substantial similarity, if it can prove that a layman
would “detect ‘piracy without any aid or suggestion or critical
analysis by others.’” Peel, 238 F.3d at 398 (quoting Harold Lloyd
Corp. v. Witwer, 65 F.2d 1, 18 (9th Cir. 1933)). The works must be
so similar that “[t]he reaction of the public to the matter [is]
spontaneous and immediate.” Id. (internal citations omitted).

C.
8

The Court must determine whether Batiste’s complaint, taken
as true, plausibly alleges the three requirements to a successful
claim for all of the works he alleges were infringed: (1) valid
copyright; (2) factual copying (which requires a showing of either
(a) access and probative similarity or (b) striking similarity);
and (3) substantial similarity. Batiste alleges that he owns a
valid copyright for the eleven songs he claims the defendants
unlawfully used, and provides a registration number for each one.
He satisfies the first element.
The plaintiff does not allege sufficient facts to show factual
copying. First, the plaintiff fails to allege access; the complaint
does not contain a single reference as to how the defendants
accessed his compositions. In his papers, the plaintiff does not
directly address his failure to allege access, but does vaguely
contend that access should be “inferred” because it is “presumed”
that the defendants committed copyright infringement. But the
Court’s presumption that the alleged facts are true at the pleading
stage does not excuse the plaintiff from alleging facts for every
required element. Although he does state that his songs were
recorded and released on albums between 1999 and 2002 and that he
is a “major influence on the current New Orleans jazz scene and
has enjoyed immense success and recognition,” the mere suspicion
that the defendants could have found the music is insufficient.
The plaintiff is required to allege facts that the defendants had
9

a “reasonable opportunity” to view the work. After three tries, he
fails.
Because

the

plaintiff

has

not

pled

sufficient

facts

to

establish access, the plaintiff must show that the works are
strikingly similar. This standard requires Batiste to have pled
that his eleven songs are so similar to the defendants’ five songs
that the only explanation is that the defendants copied Batiste’s
work. He meets his burden. He alleges that the defendants willfully
copied

several

protectable

elements

of

his

copyrights.

Specifically, he alleges that Thrift Shop misappropriated the
beat, drums, introduction, and bass line of Hip Jazz and the
distinctive

melody

of

World

of

Blues.

He

alleges

that

Neon

Cathedral misappropriates the hook, melody, and chords of Tone
Palette, and that Can’t Hold Us copies the beat and bass line of
Starlite Pt. 1. Batiste repeats these allegations for each of his
original works. Taken as true, Batiste pleads that the defendants
unlawfully copied large portions of his compositions. If proven,
Batiste would meet his burden to show striking similarity.
Finally, Batiste must plead that his works are “substantially
similar” to the defendants. He meets his burden for the reasons
discussed above. See Vallery v. American Girl Dolls, Civ. No. 135066, 2015 WL 1539243, *3 (E.D. La. Apr. 6, 2015)(“The test for
striking similarity is stringent and imposes a much high standard
than

that

for

substantial

similarity.”)(internal
10

quotations

omitted). Additionally, in his complaint, Batiste cites precisely
which elements of his song were sampled, and where the sampled
portions appear in the defendants’ songs.
The defendants ask the Court to engage in a side-by-side
analysis, comparing the musical elements of Batiste’s works to the
defendants’ songs to determine whether Batiste has stated a claim.
The Court declines. At the pleading stage, the Court is limited to
the

facts

alleged

in

the

complaint;

it

is

not

acting

as

a

factfinder. A decision on the merits based on the Court’s judgment
of the similarity of the songs is inappropriate at this stage of
the proceedings. Batiste meets his burden to allege copyright
infringement.
Accordingly, IT IS ORDERED: that the defendants’ motion to
dismiss is DENIED.

New Orleans, Louisiana, May 17, 2018

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

11