The Fifth Circuit Court of Appeal recently addressed a copyright infringement claim by local jazz musician Paul Batiste.  Batiste alleged that a hip-hop duo infringed his musical work.  However, the Court concluded that Batiste had failed to produce evidence for a reasonable jury to infer that the defendants had access to his music or to find a striking similarity between his songs and those of the defendants.

The infringement based on copying can be proven by actual evidence of copying or by showing the defendant had access to the work and substantial similarity.  Batiste tried to prove Defendants had access to his works asserting there has been widespread dissemination of his music and a chain of events link his music to the defendants.  To show widespread dissemination courts have concluded that the plaintiff must show that the works have enjoyed considerable success or publicity.  While Batiste claimed his work was sold nationwide, the records showed meager sales in only a handful of local stores.  Further, Batiste admitted his downloads and streams had been sparse.  These really did not begin until 2013 which was after the defendants had released all but one of the alleged infringing songs.  Additionally, the chain of events theory was not successful either.  Evidence that the defendants were near a store that sold Batiste’s records created only a bare possibility of access.  The court found no reasonable jury could find more than a bare possibility that the defendants had an opportunity to hear and copy Batiste’s.

The court further noted that Batiste offered no admissible evidence of similarities aside from audio recordings of the songs themselves.  The court stated that after carefully reviewing each of his songs and the defendants’ songs that allegedly infringed, the songs were in no way similar enough for a reasonable jury to find striking similarity.  Because Batiste could not show access or striking similarity, he cannot prove factual copying.

The Fifth Circuit further addressed the issue of attorney’s fees.  Section 505 of the Copyright Act provides that a district court may award reasonable attorneys fees to the prevailing party.  The court stated that given the objective unreasonableness of Batiste’s claims, his history of litigation misconduct and his pattern of filing overaggressive copyright actions, the district court did not abuse its discretion in awarding fees to the defendant under the Act.