New Old Music Group sued Lukasz Gottwald (Dr. Luke) and others for copyright infringement of the song “Zimba Ku,” written by New Old’s president Lenny Lee Goldsmith and recorded by the band Black Heat in 1975. At issue was defendants’ alleged use of the “Zimba Ku” “breakbeat” (a portion of a composition containing primarily a percussive instrumental segment) in the 2011 song “Price Tag” recorded by artist Jessie J. Defendants moved for summary judgment on the issue of unlawful copying and did not dispute, for purposes of the motion, that plaintiff owned a valid copyright in the musical composition of “Zimba Ku” or that defendants had access to “Zimba Ku” when creating “Price Tag.”
The district court held that a reasonable jury could find that the two elements of unlawful copying – actual copying and improper appropriation – were met. First, the district court rejected defendants’ argument that the elements of the drum part in “Zimba Ku” were so commonplace that use of those elements could not be probative of actual copying. Although defendants’ experts cited numerous songs written before “Price Tag” or “Zimba Ku” that contain the same percussive elements – namely, (1) 16 consecutive 16th notes on the hi-hat cymbal; (2) a bass drum pattern consisting of two eighth notes on the first beat of the measure, followed by three syncopated notes on beats two and three; (3) snare drum attacks on beats two and three; and (4) a “buzz” on the snare drum at the end of the measure – the district court determined that none of the cited songs combined these elements in the same way that “Zimba Ku” and “Price Tag” did. Therefore, the court could not conclude as a matter of law that the “Zimba Ku” drum part was so commonplace and trite that copying could not be inferred.
The district court also found that evidence that defendants had sampled (i.e., incorporated the sound recording of “Zimba Ku” into “Price Tag”) could further support actual copying. According to the court, defendants’ sampling, if proven, would support a claim of infringement of plaintiff’s composition copyright, even though plaintiff does not own the copyright in the sound recording of “Zimba Ku.”
Turning to the second element of unlawful copying – improper appropriation – the court found that defendants failed to show that the similarities between the two drum parts included only non-copyrightable (and thus nonactionable) elements. First, the “Zimba Ku” drum part was arguably protectable as an original and creative work, since defendants did not show that the drum part in its totality existed in any prior art, and defendants conceded, for the purposes of the motion, that the “Zimba Ku” drum part was independently created. Second, the compositions arguably shared “substantial similarities” given the nearly synchronized rhythm of the two drum parts, the repetition of the two drum parts throughout both compositions, and the reasonable description of the breakbeat as the “driving groove” or “backbone” of “Zimba Ku.” The district court therefore denied defendants’ motion for summary judgment, as it could not conclude as a matter of law that no reasonable jury could find that the similarities are not “substantial” enough to make any actual copying illegal.