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418 F.Supp.2d 369 (S.D. N.Y. 2005)---------- Related Case ----------Vargas v. Transeau (2007)
Comment After reading about disputes like this one wishes that the standard for obtaining summary judgment was less rigorous. The opinion implies that the defense did not specifically assert that the plaintiff copied an earlier source in creating "Bust Dat Groove" (if one can apply "creating" to assembling the blatantly derivative and minimal sounds of this recording) but rather that the musical material in question was not original (rather than the use of it) because it is found in numerous earlier works. The court raised the oft-mentioned theoretical possibility of having identical works simultaneously enjoying copyright protection as long as they originated from independent authors. The court also found that the defendants had not demonstrated that there was no material question as to whether plaintiffs simply used a commonplace rhythmic pattern that they had heard umpteen times before, and that this derivation would have to be established at trial. Mercifully, when Vargas pursued Transeau in an indepedent infringement claim on this matter, the same court, in 2007, granted Transeau's motion for summary judgement. In the latter opinion (text below) the court noted that the testimony of Vargas's own musical expert (asserting that Transeau made an "associated" and not a "direct" copy of "Bust dat Groove") ran counter to the foundation of Vargas's claim that Transeau digitally sampled Vargas's recording. As we all know, the creative quotient required to obtain a copyright registration for an original work is almost nil. Given that copyright protects only those portions of the work that are original to the author, however, works with minimal creativity ultimately should acquire similarly slight protection; the less the work is creative the weaker the right of the copyright holder to prevent others from creating works similar to his own derivative output. In other words, minimally creative works typically rely heavily -- if not exclusively -- on materials that are in the public domain or are scenes à faire. Apart from the plaintiff's purportedly original sound recording, in the present case the musical material in question comprises one-measure of a well-known rhythmic pattern that has been referred to recently as the "Amen break". (The notation below was derived from a transcription of the "Amen break" -- which consists of this measure repeated three times followed by a different final measure -- on the website of percussionist Joe Jahnigan who associates this rhythmic riff with "Amen Brother," a song recorded in the 1960's by a soul band called The Winstons.) 
Were The Winstons really the first to fix this rhythmic sequence, whether in a sound recording or through music notation? Even if they were, a determination that one measure alone, of a rhythmic riff, contains sufficient original material to be eligible for copyright protection as a musical work has the potential of fostering grotesque and overreaching claims that attempt to monopolize basic elements of music composition. This is why courts have, over the past century, focused almost exclusively on melodic similarity in music copyright infringement cases, and given little weight in determining similarities that support a claim of infringement, to harmonic or rhythmic resemblances between the works in dispute. [ Back to Top ]
Opinion by Judge William H. Pauley: Plaintiffs Ralph Vargas (“Vargas”) and Bland-Ricky Roberts (“Roberts”) (collectively, “Plaintiffs”) bring this copyright infringement action against Defendants Pfizer, Inc. (“Pfizer”), Publicis, Inc., Fluid Music, East West Communications, Inc. and Brian Transeau (collectively “Defendants”). In particular, Plaintiffs allege that Pfizer's national advertising campaign for its Celebrex product uses key musical themes from their musical composition and sound recording titled “Bust Dat Groove Without Ride” (“Bust Dat Groove”). Defendants move for summary judgment dismissing the action, arguing that Plaintiffs' musical composition 1 lacks the requisite originality for copyright protection.2 For the reasons set forth below, Defendants' summary judgment motion is denied. Vargas composed Bust Dat Groove in 1993 and registered the musical work for a copyright on January 27, 1995. (Plaintiffs' Statement of Facts Pursuant to Local Rule 56.1, dated July 22, 2005 (“Pl. 56.1 Stmt.”) 1, 2, 5; Defendants' Statement of Facts Pursuant to Local Rule 56.1, dated June 30, 2005, (“Def. 56.1 Stmt.”) 1, 2, 5.) The registration certificate describes Bust Dat Groove as “Music-Drum Rhythm/Drum Loops.” (Pl. 56.1 Stmt. 4; Def. 56.1 Stmt. 4.) Bust Dat Groove is a one-bar percussion pattern. (Pl. 56.1 Stmt. 8; Def. 56.1 Stmt. 8.) Percussion patterns are background rhythm that accompany pitched instruments supplying the melody and harmony in musical compositions. Percussion patterns are not played on their own and are rarely distributed as popular music. Although the Bust Dat Groove recording runs approximately one minute, it consists of an identical drum pattern looped twenty-seven times. (Pl. 56.1 Stmt. 8; Def. 56.1 Stmt. 8.) The composition contains a high-hat (cymbal), snare drum and bass drum as its basic elements. (Pl. 56.1 Stmt. 11. 3 ) Plaintiffs contend that the high-hat and snare drum elements are original, because Vargas used “creative choices in selecting and combining these musical elements in Bust Dat Groove.” (Pl. 56.1 Stmt. 13.) Finally, the bass drum element “consists of two basic three-note groups-one beginning with what is known as a pick-up note on the downbeat, the other containing a 'short-long-short' note figure.” (Pl. 56.1 Stmt. 18; Def. 56.1 Stmt. 18.) Plaintiffs' also allege copyright infringement of the sound recording of Bust Dat Groove, owned by Roberts. (Pl. 56.1 Stmt. 3; Def. 56.1 Stmt. 6.) Later, Roberts registered the sound recording in 1995. (Pl. 56.1 Stmt. 3, 6.) Plaintiffs contend that Bust Dat Groove's composition is original and sufficiently creative to deserve copyright protection. However, Defendants counter that the work is a basic percussion pattern that has existed in other musical works and instructional text books for decades.
Summary judgment is warranted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The materiality of disputed facts is determined by the governing substantive law, Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988), in this case the Copyright Act, Repp v. Webber, 132 F.3d 882, 890 (2d Cir.1997) . An issue of fact is “material” if it might “affect the outcome of the suit under the governing law [while] an issue of fact is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Shade v. Hous. Auth. of New Haven, 251 F.3d 307, 314 (2d Cir.2001). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir.1997). In determining whether there is a genuine issue as to any material fact, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. If the moving party meets its initial burden, the non-moving party must then come forward with “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(c); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 133 (2d Cir.2000). The non-moving party must “do more than simply show there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and “may not rely on conclusory allegations or unsubstantiated speculation,” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). “The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient.” Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. Instead, the non-movant must offer “concrete evidence from which a reasonable juror could return a verdict in his favor.” Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505. Where it is apparent that no rational finder of fact “could find in favor of the non-moving party because the evidence to support its case is so slight,” summary judgment should be granted. Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir.1994).
Defendants contend that Bust Dat Groove lacks originality because, as a “one-bar drum rhythm,” it is a common groove track whose elements are found in elementary drum instruction books and frequently used by musical artists. (Def. 56.1 Stmt. 9, 12.) For example, Defendants state that the tom-tom element (a “ruff”) of the composition is found in instructional books dating to the 1960's (Def. 56.1 Stmt. 13-16, 19-20), and that the combination of the tom-tom with the high-hat and snare drum patterns was well known at the time Vargas composed Bust Dat Groove (Def. 56.1 Stmt. 13, 17). Plaintiffs respond that Bust Dat Groove contains a rhythm whose composition is more than a basic percussion pattern or rhythmic bed. They contend that the composition was created independently by Vargas (Pl. 56.1 Stmt. 1, 8), and that the high hat and snare drum elements of the composition are original because of Vargas' creative choice in selecting and combining them. Finally, Plaintiffs dispute that Bust Dat Groove's musical composition exists in various musical recordings and instruction manuals. (Pl. 56.1 Stmt. 14-17, 19.) [1][2] Plaintiffs asserting copyright infringement must establish: “(1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). A certificate of registration from the United States Register of Copyrights constitutes prima facie evidence of the valid ownership of a copyright. See 17 U.S.C. § 410(c). Because Plaintiffs registered their musical composition, Defendants bear the burden of establishing lack of originality. See SHL Imaging, Inc. v. Artisan House, Inc., 117 F.Supp.2d 301, 305 (S.D.N.Y.2000). The requirements for originality are “modest.” See Weissmann v. Freeman, 868 F.2d 1313, 1321 (2d Cir.1989). “It is well established that the originality requirement for obtaining a copyright is an extremely low threshold, unlike the novelty requirement for securing a patent. Sufficient originality for copyright purposes amounts to little more than a prohibition of actual copying.” Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir.1988) (internal quotation omitted); see also Feist, 499 U.S. at 345, 111 S.Ct. 1282 (“Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.”). As the Supreme Court has explained: To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be. Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable. Feist, 499 U.S. at 345-46, 111 S.Ct. 1282; see also Gaste, 863 F.2d at 1066. Thus, the key question here is whether Bust Dat Groove's musical composition “possesses at least some minimal degree of creativity.” Typically, “[w]hen the originality of a copyrighted work is at issue, it becomes a question of fact for the jury to resolve.” Tin Pan Apple, Inc. v. Miller Brewing Co., Inc., No. 88 Civ. 4085(CSH), 1994 WL 62360, at (S.D.N.Y. Feb. 24, 1994). As another district court has noted: The parties have submitted reports of experts as well as musical and written renditions of the specific tones in the Vocal and Instrumental Phrases in support of their respective arguments regarding the originality of the Vocal Phrase. It would be improper for this Court, on a motion for summary judgment, to draw its own conclusions from this competing evidence regarding the originality of the Vocal Phrase. See Repp v. Webber, 132 F.3d 882 (2d Cir.1997). A reasonable factfinder, presented with these materials, could find either the presence or absence of the degree of originality required to confer copyrightability. Ulloa v. Universal Music & Video Distrib. Corp., 303 F.Supp.2d 409, 413-14 (S.D.N.Y.2004). [3][4] Defendants do not contend that Plaintiffs copied the disputed composition from another work, rather they argue that the abundance of similar compositions in other musical works demonstrates lack of originality. (Def. 56.1 Stmt. 20.) However, the presence of similar compositions or elements of the composition in other works is irrelevant in assessing originality. “Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.” Ulloa, 2004 WL 840279, at 1; see also Feist, 499 U.S. at 345, 111 S.Ct. 1282; Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir.1936) (“Borrowed the work must indeed not be, for a plagiarist is not himself pro tanto an 'author'; but if by some magic a man who had never known it were to compose anew Keats's Ode on a Grecian Urn, he would be an 'author,' and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats's.”). Here, there appears to be a genuine dispute of fact, because Defendants contend that the similarity between Bust Dat Groove's composition and other works shows lack of originality, while Plaintiffs counter that their work is not similar to other works and was independently created. See, e.g., BMS Entm't/Heat Music LLC v. Bridges, No. 04 Civ. 2584(PKC), 2005 WL 1593013, at (S.D.N.Y. July 7, 2005); Santrayll v. Burrell, No. 91 Civ. 3166(PKL), 1996 WL 134803, at 1-2 (S.D.N.Y. Mar. 25, 1996). Thus, on the present record, as a matter of law, this Court cannot rule that the composition of Bust Dat Groove lacks originality.
[5] Plaintiffs also claim copyright infringement of their sound recording rights in Bust Dat Groove. Plaintiffs, however, did not attach a certificate of registration for the underlying sound recording. Under 17 U.S.C. § 410(c), a certificate of registration creates a prima facie presumption of valid ownership of copyright. Because Plaintiffs did not attach such a certificate for the sound recording of Bust Dat Groove, Defendants assert that Plaintiffs' sound recording claims are deficient and should be dismissed. See, e.g., DiMaggio v. Int'l Sports Ltd., No. 97 Civ. 7767(HB), 1998 WL 549690, at 2 (S.D.N.Y. Aug. 31, 1998); Kelly v. L.L. Cool J, 145 F.R.D. 32, 36 (S.D.N.Y.1992). Defendants' motion is granted. Accordingly, Plaintiffs seek leave to amend. Leave to amend a pleading shall be “freely given when justice so requires,” Fed. R. Civ. 15(a), and should not be denied unless (1) the motion is filed after undue delay, (2) the movant acts in bad faith, (3) granting leave to amend would prejudice the adverse party or (4) the amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The decision to grant or deny leave to amend is within the district court's discretion. Foman, 371 U.S. at 182, 83 S.Ct. 227; accord United States v. Cont'l Ill. Nat'l Bank & Trust Co. of Chicago, 889 F.2d 1248, 1254 (2d Cir.1989). [6] Here, attaching the certificate of registration for the sound recording to the Complaint is neither surprising nor prejudicial to the Defendants. (Transcript of Oral Argument, dated Aug. 12, 2005 at 10-13.) Therefore, this Court grants Plaintiffs leave to attach the certificate of registration to their Complaint with respect to their copyright infringement claims based on the sound recording of Bust Dat Groove. Plaintiffs must file their Amended Complaint within ten (10) business days of the date of this Memorandum and Order. CONCLUSION For the foregoing reasons, Defendants' motion for summary judgment is denied. Plaintiffs are granted leave to amend their Complaint to perfect their claim of copyright infringement based on the sound recording rights to Bust Dat Groove. Plaintiffs must file their Amended Complaint within ten (10) business days of the date of this Memorandum and Order. _________ Footnotes: [ Back to Top ] Vargas v. Transeau 5/15/2007 NYLJ 27 (col. 1)Opinion Ralph Vargas ('Vargas') and Bland-Ricky Roberts ('Roberts') (collectively, the 'Plaintiffs') bring this copyright infringement action against East West Communications, Inc. ('East West') and Brian Transeau ('Transeau ') (collectively, the 'Defendants').1 Plaintiffs allege that Defendants' sound recording titled 'Aparthenonia' is a copy of Plaintiffs' musical composition and recording titled 'Bust Dat Groove Without Ride' ('BDG '). Defendants move for summary judgment, contending that Plaintiffs cannot demonstrate that Transeau had access to BDG. For the reasons set forth below, Defendants' motion is granted. BACKGROUND The Facts underlying this action are set forth in this Court's Memorandum and Order dated October 26, 2005, familiarity with which is assumed. See Vargas v. Pfizer, Inc., 418 F. Supp. 2d 369 (S.D.N.Y. 2005) . Additionally, the following background is relevant to Defendants' motion. Roberts is the owner of the copyright to a sound recording titled 'Funky Drummer Vol. II' ('FD II'), of which BDG is part. (Second Amended Complaint, dated Nov. 8, 2005 ('Compl.') Exs. B-C.) BDG is a live drumming performance by Vargas comprising one measure of percussion music looped 27 times. Vargas, 418 F. Supp. 2d at 370. The composition utilizes a high-hat cymbal, snare drum, bass drum and 'ghost notes.'2 (Declaration of Paul A. Chin, dated Oct. 12, 2006 ('Chin Decl.') Ex. 3: Declaration of Matthew Ritter, dated July 19, 2005 ('Ritter Decl.') ¶ ¶ 5, 19; Defendants' Statement Pursuant to Rule 56.1, dated Sept. 25, 2006 ('Def. 56.1 Stmt.') ¶ 27.) In 1994, up to 4,000 copies of FD II were purportedly manufactured as vinyl long play records and distributed to retail record stores. (Plaintiffs' Statement Pursuant to Rule 56.1, dated Oct. 12, 2006 ('Pl. 56.1 Stmt.') ¶ ¶ 18- 19, 21, 26; Def. 56.1 Stmt. ¶ 26.) There is no evidence regarding retail sales of FD II, but any such sales would have occurred between January and April 1994. (Pl. 56.1 Stmt. ¶ ¶ 15, 20-21; Def. 56.1 Stmt. ¶ ¶ 15, 20-21.) The only known copy of FD II is owned by Vargas. (Def. 56.1 Stmt. ¶ 16.) Transeau is a musician who performs a variety of genres, including 'break beat,' 'trance,' 'house' and 'hip-hop.' (Chin Decl. Ex. 6: Transcript of Deposition of Brian Transeau, dated Aug. 16, 2006 ('Transeau Tr.') at 77-80.) 'Aparthenonia,' a song Transeau composed in the year 2000, utilizes between one bar and two and one-quarter bars of drum music looped for nine seconds. (Def. 56.1 Stmt. ¶ 10; Pl. 56.1 Stmt. ¶ 10.) Like BDG, Aparthenonia is composed of a high-hat, snare drum, bass drum and ghost notes. (Ritter Decl. ¶ ¶ 5, 11-17.) Aparthenonia was included in a commercial jingle for the drug Celebrex, as well as Transeau's album titled 'Breakz from the Nu Skool,' which was manufactured, distributed, sold and licensed by East West. (Chin Decl. Ex. 8 ¶ 1.) Transeau contends that he created Aparthenonia on his tour bus using a laptop computer and music-generation software called Propellerhead Reason ('Reason'). (Def. 56.1 Stmt. ¶ ¶ 4-8.) Breakz from the Nu Skool contains 403 separate beats that Transeau contends he created on Reason. (Transeau Tr. at 150.) Plaintiffs allege that Transeau created Aparthenonia by 'sampling,' i.e. physically copying, and then digitally manipulating BDG. (Pl. 56.1 Stmt. ¶ 3.) On September 25, 2006, Defendants moved for summary judgment on the issue of access. This Court heard oral argument on the motion on November 3, 2006. During the argument, the Court observed that Transeau had not recreated Aparthenonia for purposes of this litigation to support his argument that independent creation was possible. (Transcript of Proceedings, dated Nov. 3, 2006 ('Tr.') at 6-10.) On the Court's request, Transeau submitted such a re-creation ('New Aparthenonia') on December 1, 2006. (See Supplemental Declaration of Julie A. Ahrens, dated Dec. 1, 2006 ('Supp. Ahrens Decl. ').) Plaintiffs' counsel objected to the submission (Tr. at 10),3 and on November 9, 2006, Plaintiffs moved for reconsideration of the Court's request for New Aparthenonia. The Court denied Plaintiffs' motion on December 15, 2006. DISCUSSION
Summary judgment is warranted 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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) ; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) ; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) . The materiality of disputed Facts is determined by the governing substantive law, Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988) , in this case the Copyright Act, Repp v. Webber, 132 F.3d 882, 890 (2d Cir. 1997) . An issue of fact is 'material' if it might 'affect the outcome of the suit under the governing law [while] an issue of fact is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party. ' Shade v. Hous. Auth. of New Haven, 251 F.3d 307, 314 (2d Cir. 2001) . The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970) ; Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir. 1997) . In determining whether there is a genuine issue as to any material fact, '[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.' Liberty Lobby, 477 U.S. at 255. If the moving party meets its initial burden, the non-moving party must then come forward with 'specific Facts showing that there is a genuine issue for trial.' Fed. R. Civ. P. 56(c) ; Carlton v. Mystic Transp., Inc., 202 F.3d 129, 133 (2d Cir. 2000) . The non-moving party must 'do more than simply show there is some metaphysical doubt as to the material Facts,' Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) , and 'may not rely on conclusory allegations or unsubstantiated speculation,' Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) . 'The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient. ' Liberty Lobby, 477 U.S. at 248. Instead, the non-movant must offer 'concrete evidence from which a reasonable juror could return a verdict in his favor.' Liberty Lobby, 477 U.S. at 252. Where it is apparent that no rational finder of fact 'could find in favor of the non-moving party because the evidence to support its case is so slight,' summary judgment should be granted. Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994).
A plaintiff asserting copyright infringement must establish: '(1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original.' Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) . The Second Circuit has held:
Plaintiffs concede that access has not been proven and, therefore, rely solely on the contention that BDG and Aparthenonia are strikingly similar. (Pl. 56.1 Stmt. ¶ 22.) 'Striking similarity exists when two works are so nearly alike that the only reasonable explanation for such a great degree of similarity is that the later...was copied from the first.' Jorgensen v. Careers BMG Music Publ'g, No. 01 Civ. 357 (LAP), 2002 WL 1492123, at *5 (S.D.N.Y. July 11, 2002) (quoting Cox v. Abrams, No. 93 Civ. 6899 (RJW), 1997 WL 251532, at *5 (S.D.N.Y. May 14, 1997) ). The court's task 'is to apply logic and experience to determine if copying is the only realistic basis for the similarities at hand. ' Mowry v. Viacom Int'l, Inc., No. 03 Civ. 3090 (AJP), 2005 WL 1793773, at * 10 (S.D.N.Y. July 29, 2005) (quoting 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.02[B]). '[T]o establish 'striking similarity,' a plaintiff must come forward with 'specific evidence.'' Jorgensen, 2002 WL 1492123, at *5 (quoting McRae v. Smith, 968 F. Supp. 559, 567 (D. Colo. 1997) ). Although the striking similarity test is 'applied with particular stringency in cases...involving popular music,' Tisi v. Patrick, 97 F. Supp. 2d 539, 548 (S.D.N.Y. 2000) , striking similarity is a question of fact to be left to the jury where reasonable minds could differ, see Repp, 132 F.3d at 890-91; Gaste, 863 F.2d at 1068-69. To rebut Plaintiffs' contention of striking similarity, Defendants offer the testimony of Dr. Richard Boulanger, a Professor of Music Synthesis at Berklee College of Music. Boulanger compared BDG and Aparthenonia using Fast Fourier Transform ('FFT') spectral analysis, which Plaintiffs concede is an appropriate method for determining whether Aparthenonia is a digitally edited copy of BDG. (Declaration of Christopher W. Keegan, dated Sept. 25, 2006 ('Keegan Decl.') Ex. N: Expert Report of Richard Boulanger, dated Jan. 31, 2006 ('Boulanger Report') at 2-3; Pl. 56.1 Stmt. ¶ 29.) FFT converts sounds into a 'frequency-domain representation,' i.e., a visual display of the sound's 'unique timbre, spectrum [and] color.' (Boulanger Report at 2.) An FFT analysis 'separate[s] out all the components in a complex sound and show[s] how they evolve in time and contribute to make up the sound that we identify as unique.' (Boulanger Report at 2.) FFT analysis can reveal the characteristics of sounds with much greater precision than the unaided ear. (Pl. 56.1 Stmt. ¶ 30; Def. 56.1 Stmt. ¶ 30.) Comparing the FFT representations of BDG and Aparthenonia, Boulanger concluded that 'the audio source material used in Aparthenonia is unique and original, and is not at all based on or copied or derived from [BDG].' (Boulanger Report at 61.) Plaintiffs' FFT expert, Dr. Stephen Smith, confirmed that Aparthenonia was not digitally copied from BDG. (Keegan Decl. Ex. M: Expert Report of Steven W. Smith, dated Mar. 11, 2006 ('Smith Report') at 4-5.) Smith identified two categories of 'copying' that may be observed in an FFT analysis: 'direct' and 'associated.' (Smith Report at 4.) 'Direct copies' occur when a sound is copied electronically. (Smith Report at 4.) An FFT analysis of direct copies will involve 'an identical match in both waveform and frequency spectra [with] [t]he only difference [resulting] from whatever degradation is introduced by the copying procedure.' (Smith Report at 4.) Thus, direct copies are identical sounds with slight variations arising from the copying process itself. 'Associated copies' are recorded sounds that are not 'exactly alike,' but are 'very similar to each other in both waveform and frequency spectra.' (Smith Report at 4.) The example of an associated copy provided by Smith is the same drummer striking the same drum twice. (Smith Report at 4.) Thus, an associated 'copy' is not actually a copy, but rather an independently created sound that is similar to the first sound. Crucially, Smith found associated copies but no direct copies in comparing BDG to Aparthenonia. (Smith Report at 4-5; Keegan Decl. Ex. L: Transcript of Deposition of Steven Smith, dated Aug. 15, 2006 ('Smith Tr.') at 174.) Smith's expert testimony therefore undermines Plaintiffs' theory of the case, which is that Transeau digitally copied BDG.4 Plaintiffs also proffer the opinion of a purported percussion expert, Matthew Ritter, who contends (without reliance on a waveform or spectral analysis) that 'Aparthenonia is a digitally edited version of [BDG].' (Ritter Decl. ¶ 16.) Yet Ritter equivocates as to the precise level of similarity between the two songs. At one point in his declaration, Ritter suggests that the drum sounds in Aparthenonia and BDG are 'identical.' (Ritter Decl. ¶ 12; see also Chin Decl. Ex. 12: Transcript of Deposition of Matthew Ritter, dated Aug. 10, 2006 ('Ritter Tr.') at 59.) Leaving aside that this opinion directly contradicts Smith's conclusions, Ritter backpeddles later in his declaration, asserting only that 'Aparthenonia is significantly similar, if not identical, to BDG. ' (Ritter Decl. ¶ 32.) Ritter also waffled about the level of similarity between the two works at his deposition. (Keegan Decl. Ex. U: Transcript of Deposition of Matthew Ritter, dated Aug. 10, 2006, at 131-38.) The threshold required to establish striking similarity is 'stringent,' and it requires more than a showing of 'substantial' similarity. Jorgensen, 2002 WL 1492123, at *5 (plaintiff failed to show striking similarity where his expert 'conclude[d] that the songs at issue [were] only 'substantially similar' and not 'strikingly similar''); see also Glover v. Austin, 447 F. Supp. 2d 357, 363 (S.D.N.Y. 2006) ('Plaintiff's expert...opines merely that 'within a reasonable degree of probability, whichever song was created first, the second song was created with reference to and influenced by the first.' This opinion falls well short of the requisite demonstration that 'Unpretty' is 'so strikingly similar' to 'Make Up Your Mind' as to preclude the possibility of independent creation and to allow access to be inferred without direct proof. '); 3 Patry on Copyright § 9.43 ('[U]nless a [plaintiff's expert] report scrupulously follows decisional law and states: (a) the works are strikingly similar; and (b) independent creation is precluded, the report is worthless. ') The testimony of an expert who equivocates on the level of similarity between two works need not be credited by the Court in resolving a motion for summary judgment. See Jorgensen, 351 F.3d at 56 n.9 (rejecting plaintiffs expert's statement that two songs are 'strikingly similar' when the expert had previously claimed that defendant's song was only a 'subtle infringement'). In any event, at Ritter's deposition he was unable to completely rule out the possibility that Aparthenonia had been created independently using Reason. (Ritter Tr. at 77.) To show a striking similarity, Plaintiffs must demonstrate that there is no possibility of independent creation. See Gaste, 863 F.2d at 1068 ('A plaintiff has not proved striking similarity sufficient to sustain a finding of copying if the evidence as a whole does not preclude any reasonable possibility of independent creation.'); 3 Patry on Copyright § 9.47 (noting that in the Second Circuit, 'striking similarity plus no reasonable possibility of independent creation must be proven by plaintiff'). In an attempt to explain the differences between BDG and Aparthenonia, Plaintiffs proffer a purported sound engineer and sampling expert, Ivan A. Rodriguez, who asserts that Transeau created Aparthenonia by importing drum beats from BDG onto Reason. (Chin Decl. Ex. 9: Declaration of Ivan A. Rodriguez, dated Jul. 20, 2005 ('Rodriguez Decl.') ¶ 5.) Conceding that the sounds contained on the two works are not identical, Rodriguez attributes the differences to 'digital signal processing (or enhancements, reverb equalizing, dynamics, mix-down, mastering, etc.)' performed by Transeau. (Rodriguez Decl. ¶ 15.) Yet Rodriguez fails to substantiate his opinion that Transeau manipulated BDG using these tools. He offers no explanation for what the tools are; provides no significant detail regarding how they alter sound; and provides no demonstration of how a sound from BDG would be manipulated to achieve one of the sounds in Aparthenonia. Rodriguez provides only conclusory assertions, which are insufficient to defeat a motion for summary judgment. Jorgensen, 351 F.3d at 56 n.9 (holding that expert's conclusory opinion of 'striking similarity' insufficient to defeat a motion for summary judgment); see also British Telecomms. PLC v. Prodigy Commc'ns Corp., 217 F. Supp. 2d 399, 417 (S.D.N.Y. 2002) (holding that expert's conclusory statement did not create genuine issue of material fact to preclude summary judgment); Pretesting Co. v. Arbitron Co., No. 93 Civ. 6031 (CBM), 1996 WL 480899, at *5 (S.D.N.Y. Aug. 23, 1996) (same). Additionally, like Ritter, Rodriguez conceded at his deposition that he could not rule out the possibility of independent creation. (Chin Decl. Ex. 10: Transcript of Deposition of Ivan A. Rodriguez, dated Aug. 9 2006 ('Rodriguez Tr.') at 196.) Repp v. Webber, cited by Plaintiffs, is distinguishable for these reasons. Repp, 132 F.3d 882. The plaintiff in Repp alleged that there were striking similarities between his work and the defendant's. Repp, 132 F.3d at 889-91. The District Court granted summary judgment to the defendant on the ground that no reasonable jury could find a striking similarity. Repp, 132 F.3d at 887. The Court of Appeals reversed, noting that the plaintiff had proffered expert testimony regarding the alleged striking similarities. Repp, 132 F.3d at 890-91. However, the expert testimony in Repp was: (1) internally consistent; (2) properly supported by detailed musicological analysis; and (3) directly supportive of the plaintiff's theory of the case. Plaintiffs here proffer no such testimony. Defendants bolster their argument that striking similarity is lacking with evidence of independent creation. First, they offer testimonial evidence that Transeau independently composed Aparthenonia on his tourbus in 2000 or 2001 using Reason. (Def. 56.1 Stmt. ¶ ¶ 2, 4-5, 7-8.) Additionally, Boulanger conducted an FFT analysis of Aparthenonia and New Aparthenonia, concluding that they are 'virtually identical.' (Supplemental Declaration of Richard Boulanger, dated Dec. 1, 2006 ('Supp. Boulanger Decl.') ¶ 8.) There is undisputed evidence that the minor differences between Aparthenonia and New Aparthenonia were unavoidable because of the nature of the Reason software. Transeau videotaped the session in which New Aparthenonia was made. (Supp. Ahrens Decl. Ex. AA.) The videotape demonstrates that Transeau took stock drum sounds from Reason's sound library and performed numerous adjustments to them using virtual levers and dials present in other software. The levers and dials, which are manipulated using a computer mouse, do not readily permit the type of precision required to create an exact replica. Thus, Boulanger testified that 'it is essentially impossible to create two separate audio tracks that would produce perfectly matching waveform and spectral data unless they were digitally copied.'5 (Supp. Boulanger Decl. ¶ 7.) Regardless, even Smith's explanation of 'direct copies' in an FFT analysis would anticipate minor differences between the original version of Aparthenonia and Transeau's independent creation.6 (See Smith Report at 4.) Plaintiffs' case on summary judgment boils down to the contention that summary judgment may be avoided by producing any expert witness who testifies that one sound was sampled from another, regardless of how conclusory the statement may be and regardless of whether it contradicts the testimony of Plaintiffs' other witnesses. That is not the law. 'Although plaintiff[s'] expert opines that the songs are strikingly similar, an issue of fact cannot be created by merely reciting the magic words 'strikingly similar' and 'no possibility of independent creation.'' Tisi, 97 F. Supp. 2d at 549; see also Mowry, 2005 WL 1793773, at *10 n.15; Jorgensen, 2002 WL 1492123, at *5; Cox, 1997 WL 251532, at *5-7. Plaintiffs here have not established striking similarity, and their witnesses expressly admit to the possibility of independent creation. Under these circumstances, summary judgment is appropriate. CONCLUSION For the foregoing reasons, Defendants' motion for summary judgment is granted and this action is dismissed. The Clerk of the Court is directed to mark this case closed. _________ Footnotes: 1 On February 10, 2006, Plaintiffs voluntarily dismissed their claims against Publicis, Inc., Pfizer, Inc. and Alanda Music, Ltd. 2 According to Plaintiffs, a ghost note is a unique percussion sound with characteristics of both a tom-tom drum and a snare drum. (Ritter Decl. ¶ 6.) 3 The Court overruled this objection because, inter alia, Plaintiffs themselves asserted that 'BT has not demonstrated...that the drum sounds he extracted from Reason are the same as, or similar to, the drum sounds embodied in Aparthenonia.' (Pl. 56.1 Stmt. ¶ 9.) 4 At his deposition, Smith testified that he found only associated copies because he 'didn't specifically look for direct copies.' (Smith Tr. at 174.) While Plaintiffs attempt to discount Smith's conclusions based on this testimony, it is Plaintiffs' burden to provide 'specific evidence' from which a jury could find striking similarity. Jorgensen, 2002 WL 1492123, at *5. Given Plaintiffs' claim that Aparthenonia was digitally copied from BDG, counsel for Defendants requested during Smith's deposition that he conduct a follow-up search for direct copies. (Smith Tr. at 180-81.) Smith was non-committal, claiming that he 'd[id] not have a great deal of time that [he could] spend on the case.' (Smith Tr. at 181.) There is no evidence that Smith re-examined the data in search of the direct copies. 5 Paul A. Chin, counsel for Plaintiffs, submitted a declaration dated January 23, 2007 in response to Transeau's submission of New Aparthenonia. Defendants moved to strike this declaration under Fed. R. Civ. P. 56(e) . Because the declaration attaches no evidence specifically refuting the above-described points, Defendants' motion is denied as moot. 6 Plaintiffs submitted no FFT analysis or testimony from Smith regarding New Aparthenonia. [ Back to Top ] |
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