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In copyright infringement lawsuit brought by jazz musician Paul Batiste against Grammy-winning hip-hop duo Macklemore and Ryan Lewis, district court declines to consider defendants’ musicologist report on defendants’ motion to dismiss, and denies motion to dismiss, finding that Batiste had sufficiently pleaded facts satisfying elements of infringement claim, including striking similarity.

Paul Batiste, a New Orleans jazz musician, brought a copyright infringement suit against Grammy-winning hip-hop duo Macklemore and Ryan Lewis, along with their affiliated songwriters and publishing companies, alleging that the duo’s songs “Thrift Shop,” “Can’t Hold Us,” “Need to Know,” “Same Love,” and “Neon Cathedral” use unauthorized samples and copy elements of 11 of Batiste’s original songs. After Batiste filed a second amended complaint, defendants moved to dismiss Batiste’s suit for failure to state a claim. Finding that Batiste sufficiently pleaded the elements of a copyright infringement claim, the district court denied defendants’ motion.

Batiste’s second amended complaint alleges that Macklemore and Ryan Lewis’ hit song “Thrift Shop” copies the beat, drums, introduction, bass line and melody of his songs “Hip Jazz” and “World of Blues,” and that other of the hip-hop duo’s songs copy from Batiste’s works as well. In support of their motion to dismiss, defendants submitted recordings of all of Batiste’s and defendants’ songs at issue, as well as a report from an expert musicologist comparing the songs. Stating that, at the motion to dismiss stage, it had the authority to consider the pleadings and documents referred to in the complaint but not any affidavits or sworn declarations attached to a motion to dismiss, the district court determined that it would consider the recordings of the works, but not the expert’s report, as the latter was not referenced in the complaint.

The court examined whether Batiste’s second amended complaint met the pleading standard for each of the elements of copyright infringement in the Fifth Circuit: (1) ownership of a valid copyright; (2) factual copying (requiring a showing of either access and probative similarity between the works, or striking similarity); and (3) substantial similarity between the works. The court concluded that Batiste had sufficiently pleaded the first element, as he alleged that he owned the copyrights in the 11 songs at issue in the suit and he had provided copyright registration numbers for those works. As to the second element of Batiste’s claim, the district court determined that he had failed to allege any facts showing that defendants had access to his songs. Although Batiste’s complaint states that he recorded and released albums containing his songs and that he is a “major influence on the current New Orleans jazz scene,” the district court held that “the mere suspicion that the defendants could have found the music is insufficient.”

Even so, Batiste could satisfy the factual copying element of his copyright infringement claim by pleading striking similarity between his songs and those of Macklemore and Ryan Lewis. Under Fifth Circuit case law, striking similarity exists where plaintiff’s and defendants’ songs are so similar that the only explanation is that defendants copied plaintiff’s songs. Citing to Batiste’s allegations regarding which specific elements of his songs were copied, as well as the complaint’s reference to specific samples of Batiste’s works and the location of those samples in the Macklemore and Ryan Lewis songs, and accepting those allegations as true, the court held that Batiste had sufficiently pleaded that the works are strikingly similar. For those same reasons, the court found that Batiste had satisfied the third element, requiring a pleading of substantial similarity between the works — a lower standard than striking similarity.

Having found that Batiste sufficiently alleged that he had valid copyrights in his songs, that there was factual copying of his works due to the striking similarity between his songs and those of Macklemore and Ryan Lewis, and that the works were substantially similar, the district court denied defendants’ motion to dismiss Batiste’s copyright infringement claims.