District court grants defendants’ summary judgment motion in copyright infringement case alleging that The Black Eyed Peas’ song I Gotta Feeling infringed plaintiff’s song, holding that I Gotta Feeling was not substantially similar to the original version of plaintiff’s song, plaintiff’s registration of an alleged derivative version was invalid for failure to submit a bona fide deposit copy, and that dismissal was an appropriate sanction for plaintiff’s failure to preserve potentially relevant electronic evidence.
Plaintiff, Bryan Pringle, created the musical composition Take a Dive in 1998 and various derivative versions, including Take a Dive (Dance Version), which he claimed to have created in 1999 and stored as an NRG image file (essentially a series of files for each of the instruments in the composition). Plaintiff brought suit against defendants, members of the Black Eyed Peas, their producers, publishers and record company, for copyright infringement, alleging that the creators of the 2009 song I Gotta Feeling copied an eight-bar guitar twang sequence from Take a Dive (Dance Version) and protectable portions of the Take a Dive musical composition. Plaintiff registered a CD entitled Dead Beat Club: 1998, containing the original version of Take a Dive and other of his songs, and received a certificate of registration from the U.S. Copyright Office in 1998. In November 2010, after filing suit and after the release of I Gotta Feeling, plaintiff submitted an application for copyright registration for both the sound recording of Take a Dive (Dance Version) and the musical composition of the guitar twang sequence. The Copyright Office registered the copyright in the sound recording of the work, but denied registration for the composition, determining that the work did not contain enough original musical authorship to be copyrightable. Prior to filing suit, plaintiff provided defendants with a CD that contained the NRG image files of Take a Dive (Dance Version), which prompted defendants to raise issues about the creation date of that version of the song and to request preservation and production of the computer files related to the creation of the work, as well as the hard drives from plaintiff’s computer from 2009 to 2011. Plaintiff failed to produce the requested electronic evidence (aside from the CD containing the NRG files) for a variety of professed reasons, including that the original equipment used to make the recordings in 1998 and 1999 were stolen, the 2009 hard drive was replaced, the 2010 hard drive was destroyed, and the 2011 hard drive was malfunctioning and had to be replaced.
The court granted defendants’ motion for summary judgment. At the outset, the court noted some confusion in plaintiff’s motion papers as to which work or works he claimed defendants had infringed and determined that, because he presented evidence of copyright registration of only two works – Take a Drive and Take a Drive (Dance Version)—these were the only two works upon which his claims could be based. The court concluded that plaintiff’s registration of Take a Drive (Dance Version) was invalid, however, and he therefore lacked standing to sue for infringement of that work. The MP3 file he submitted with his registration application was neither the original work nor a copy created from the original work, but rather a file created from the separate sound files contained in the NRG file, which plaintiff described as “reconstruction” of the original rather than creating a bona fide copy, as required by the Copyright Act.
Acknowledging that plaintiff’s copyright in the original Take a Drive was undisputed, the court found that plaintiff provided no evidence in support of access or substantial similarity in protected expression. Plaintiff failed to provide any evidence that defendants had access to Take a Drive and the evidence that tracks from the CD Dead Beat Club: 1998 had been played on the radio lacked any specific mention of Take a Drive and was therefore insufficient to support a claim of access. The court also found that, even if his evidence showed “some modicum of access,” plaintiff failed to show any evidence of substantial similarity in protected elements of Take a Drive and I Gotta Feeling. While plaintiff’s expert provided significant detail alluding to the alleged striking similarity between I Gotta Feeling and Take a Drive (Dance Version), he provided little, if any, evidence from which a jury could reasonably conclude that The Black Eyed Peas’ song was substantially similar to the original Take a Drive and, in fact, undercut this conclusion by stating that the dance version contained a bass drum pattern that created a rhythmic feel that was much more similar to I Gotta Feeling than the original version.
The court also dismissed plaintiff’s complaint as a sanction for his willful spoliation of potentially relevant evidence, including his decision to destroy the computer hard drives from 2010 and 2011, which the court found he had a duty to preserve because they were potentially relevant to the litigation, given plaintiff’s claim that the computer and instruments used to create the 1999 Take a Drive (Dance Version) had been stolen and defendants’ suspicion that plaintiff created Take a Dive (Dance Version) after the release of I Gotta Feeling. The court found that destruction of the evidence had prejudiced defendants and that effective lesser sanctions were unavailable. Given that the balance of the factors – including the public’s interest in expeditious litigation and the court’s ability to manage its dockets – the court concluded that dismissal was warranted.