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Fifth Circuit's Decision in Sampling Case Considers Automatic Liability Controversy
The U.S. Court of Appeals for the Fifth Circuit ruled in favor of internationally successful hip-hop duo Macklemore & Ryan Lewis in a music sampling suit brought against them by New Orleans jazz musician Paul Batiste. Batiste v. Lewis, 19-30400 (5th Cir. 2020). The decision is notable for the Fifth Circuit's use of the "widespread dissemination" and "chain of events" tests to determine whether the defendants had access to Batiste's works, neither which approach it said it had previously expressly adopted. In the opinion, the 5th Circuit also weighed in on the controversial Sixth Circuit opinion in Bridgeport Music Inc. v. Dimension Films, 383 F.3d 390 (6th Cir. 2004), which held that any sampling — even if digitally altered — from a pre-existing sound recording is automatic copyright infringement.
Batiste filed the copyright infringement complaint against Macklemore & Lewis over the alleged unauthorized sampling of 11 of Batiste's works in five of the defendants' recordings, including their debut hit "Thrift Shop," which sold over 10 million copies in the United States and has attracted more than 1.4 billion YouTube views. The U.S. District Court for the Eastern District of Louisiana granted summary judgment for the defendants.
Affirming, the Fifth Circuit first denied Batiste's bid to "to allow him to resubmit [his proffered musicologist Archie] Milton's excluded expert report as his own." It turned out, the appeals court noted, "when pressed, Milton admitted that Batiste conducted the analysis in the report and that he couldn't verify the accuracy of Batiste's work because he didn't have access to the computer software that Batiste used to assess whether sampling occurred." The appeals court decided Batiste failed to show "good cause" under the scheduling orders factors of Rule 16(b) of the Federal Rules of Civil Procedure, including because "allowing Batiste to submit the report after the discovery deadline would have prejudiced the defendants, who would need to redepose Batiste about his qualifications and methodology."
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