122 F. Supp. 3d 78
S.D.N.Y.2015Background
- Plaintiff New Old Music Group owns the musical-composition copyright in "Zimba Ku" (1975); plaintiff alleges the drum part (a repeated one-bar breakbeat) was copied in Jessie J’s "Price Tag" (2011).
- The dispute concerns only the drum set measure (bass drum, snare, hi-hat, and a snare "ghost/drag"); no significant melodic, harmonic, or lyrical similarities exist between the songs.
- Experts transcribed the one-measure drum patterns as virtually identical; defendants argue each constituent element is commonplace and prior art negates probative similarity.
- Plaintiff also offers expert audio/waveform evidence alleging direct sampling of the Zimba Ku drum part by Price Tag; defendants contest admissibility and sufficiency of that evidence.
- The district court limited the record to expert discovery for this motion; the court denied defendants’ summary-judgment motion, finding triable issues on actual copying and substantial similarity and permitting further fact/expert discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is evidence of actual copying | Similar, nearly identical one-measure drum transcription and sampling evidence support inference of copying | The drum elements are common, appear in prior art, and could arise independently | Denied SJ — triable issue: combination of elements not shown to be so commonplace as to preclude inference of copying |
| Whether plaintiff may rely on alleged sampling though it owns only the composition copyright | Sampling of the recording can demonstrate copying of the underlying composition; plaintiff need not own the sound-recording right to pursue composition-based claim | Plaintiff lacks the sound-recording copyright so sampling-based claims are irrelevant | Court: sampling can support a composition claim; evidence may proceed and be developed in discovery |
| Whether the drum part (one-bar breakbeat) is protectable/original | The breakbeat in combination has sufficient minimal creativity and selection/arrangement to be potentially protectable | Individual elements are unoriginal and scenes-a-faire; thus the drum bar is unprotectable as a matter of law | Denied SJ — originality is a fact issue; low creativity threshold and combination may be protectable |
| Whether similarities are "substantial" (improper appropriation) to support liability | The drum measure is quantitatively and qualitatively central to Zimba Ku and repeated extensively in Price Tag; lay listeners could find it pleasingly similar | Similarities concern non-protectable, commonplace elements; differences in instrumentation/tempo and other song parts defeat substantial similarity | Denied SJ — substantial-similarity is a jury question given triable factual disputes about protectable elements and listener perception |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard)
- Jorgensen v. Epic/Sony Records, 351 F.3d 46 (2d Cir. 2003) (actual copying requires access and probative similarities)
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (originality requirement; low creativity threshold)
- Swirsky v. Carey, 376 F.3d 841 (9th Cir. 2004) (music composition may include timbre, accents, feel in analysis)
- Gaste v. Kaiserman, 863 F.2d 1061 (2d Cir. 1988) (probative similarity must extend beyond trite/common themes)
- Repp v. Webber, 132 F.3d 882 (2d Cir. 1997) (ordinary-observer test for substantial similarity in music)
- TufAmerica, Inc. v. Diamond, 968 F. Supp. 2d 588 (S.D.N.Y. 2013) (distinguishing composition vs. sound recording; substantial-similarity guidance)