Trovato v. Machado

District court dismisses songwriters’ copyright claims against Brazilian pop star Anitta and her label, holding plaintiffs failed to adequately allege access where Anitta was only 14 years old and living in Brazil when plaintiffs’ song was alleged to have been nationally distributed in U.S.

Plaintiffs, songwriters Giorgio Trovato and Guiseppe Di Caccamo Jr., wrote the song “Sácalo” in 2006. In 2007, the song was released by the group Erotico and, according to plaintiffs, nationally distributed. The song appeared exclusively in promotional compilations—collections of music provided to DJs, radio programs and others in the industry—and was allegedly “spun in dance clubs nationwide and heard by hundreds of thousands of listeners” as a result. Plaintiffs alleged that “Sácalo” was “widely circulated throughout the U.S. across major dance clubs, radio stations and mix show disc jockeys,” ultimately ending up as one of the “top dance songs of 2007.”

In 2023, Larissa De Macedo Machado, more popularly known as Brazilian pop star Anitta, released the song “Funk Rave” through a UMG label. “Funk Rave” was a success, accumulating more than 80 million listens on Spotify and winning Best Latin Video at the 2023 MTV Video Music Awards.

Believing that “Funk Rave” was copied from “Sácalo,” based on what plaintiffs characterized as similar melodic cadences, hooks and overall structures and overlapping lyrics, plaintiffs sued Anitta for direct copyright infringement and UMG for contributory and vicarious copyright infringement. UMG moved to dismiss plaintiffs’ second amended complaint, contending that Trovato had not sufficiently alleged access or substantial similarity. The district court agreed and dismissed the complaint with prejudice.

While plaintiffs had alleged that “Sácalo” received widespread dissemination through national distribution in 2007, the court held this allegation was insufficient because, at the time, Anitta was only 14 years old and living in Brazil. Relying on Watt v. Butler, in which the Eleventh Circuit affirmed a finding of no access where a defendant was in his early teens during the relevant period and thus “too young to go to clubs where [the work] may have been performed,” the court determined that plaintiffs’ access allegations were implausible. Although Watt was decided at the summary judgment stage, the court here opined that no further discovery could cure plaintiffs’ deficient allegations.

The court also rejected plaintiffs’ argument that the co-writers or producers of “Funk Rave,” including DJ and producer Diplo, may have heard “Sácalo” in 2007. Plaintiffs raised that theory for the first time in opposition to UMG’s motion, and there were no allegations in the complaint that Diplo was provided a copy of the promotional compilation with the song or attended a venue where the song was played during the relevant time frame. The court also held that the complaint failed to allege that “Sácalo” was ubiquitous in clubs and other venues. Without any allegations as to how Diplo supposedly heard “Sácalo” in the first place, let alone how Diplo shared the song with Anitta, the court found plaintiffs failed to allege access.

Recognizing that lack of access was fatal to the copyright claim, the court went on to explain that dismissal was also warranted for the independent reason that plaintiffs failed to allege substantial similarity. Despite prior warning by the court in connection with an earlier pleading, the second amended complaint still lacked any specific allegations about how the two works were similar beyond a conclusory assertion that there were similarities in the melodic cadence, hook, phrasing, structure and delivery. Moreover, plaintiffs failed to allege which of these elements were original to them and their song.

Given the lack of allegations sufficient to state a claim for direct copyright infringement, the court also dismissed plaintiffs’ claims for vicarious and contributory copyright infringement against UMG.

As the second amended complaint was plaintiffs’ third attempt to state a claim and had failed to include allegations sufficient to cure defects that the court had previously identified, the court dismissed the case with prejudice.

Summary prepared by Frank D’Angelo and Tyler Downing.