Browne v. Donalds

District court denies cross-motions for summary judgment brought by music composers and producers against music publishers and Reggaeton artists, holding that genuine disputes of material fact preclude resolution of whether plaintiffs’ claimed drum pattern is sufficiently original and protectable under copyright law.

Music composer and producer Cleveland “Clevie” Browne and the estate of the late music composer and producer Wycliffe “Steely” Johnson own registered copyrights in the musical composition and sound recording of their 1989 song “Fish Market,” which was remade into several alternate versions, including “Dem Bow” and “Pounder (Dub Mix II),” by reggae and Reggaeton artists. Plaintiffs alleged that more than 100 music publishers and artists, including Drake, Bad Bunny and J Balvin, infringed the drum pattern of “Fish Market,” which plaintiffs describe as “a programmed kick, snare and hi-hat playing a one bar pattern; percussion instruments, including a tambourine playing through the entire bar, a synthesized ‘tom’ playing on beats one and three and timbales that play a roll at the end of every second bar and free improvisation over the pattern for the duration of the song; and a synthesized Bb (b-flat) bass note on beats one and three of each bar, which follows the aforementioned synthesized ‘tom’ pattern.” Plaintiffs brought multiple copyright infringement lawsuits, which were consolidated into one action. The court had previously denied defendants’ motions to dismiss plaintiffs’ direct infringement claims at an earlier stage of the litigation. (Read our summary of the prior decision here.)

Ruling on cross-motions for summary judgment and cross-Daubert motions, the court denied the majority of the motions to exclude expert testimony and denied both sides’ motions for partial summary judgment—concluding that the parties’ experts offered credible but conflicting accounts of which elements appear in the claimed works, how those elements operate musically, whether they are commonplace or original, and whether they amount to a protectable selection and arrangement. The court thus determined that resolving those genuinely disputed factual questions is a task for the jury rather than the court.

As to the cross-motions to exclude each other’s expert witnesses, both sides argued that the opposing experts applied an incorrect legal standard on originality, producing filtration analyses that were either unduly expansive or impermissibly narrow. The court rejected their arguments, explaining that the governing framework “incorporates multiple, related inquiries, including originality, filtration of unprotectable elements, and the role of prior material in assessing protectability,” such that an expert’s focus on one part of that inquiry over another does not strip the testimony of all relevance. The court held that these disputes “bear on the weight of the testimony, not its admissibility” and on that basis denied the Daubert motions directed at various experts. But there were exceptions.

First, the court excluded the rebuttal report of expert Paul Geluso, finding that it went beyond permissible rebuttal and was disclosed too late in the case. Rather than responding to a position actually taken by plaintiffs’ experts, Geluso’s report offered a separate, technical analysis of the audio files that raised a new affirmative theory that should have been disclosed earlier in the case.

Second, the court partially limited the testimonies of witnesses Browne and mixing engineer Lynford Marshall, holding that their firsthand knowledge of how “Fish Market” was created did not entitle them to offer expert opinion on originality or the absence of prior works. Their experience in reggae and dancehall music, the court found, informed their credibility as fact witnesses but was not a substitute for a reliable expert methodology, and no expert designation was needed for the court to consider what they personally knew about the copyrighted works.

Turning to the merits, the cross-motions for summary judgment addressed the threshold issue of whether plaintiffs’ asserted works, or portions thereof, possess sufficient originality and are protectable under copyright law. The court recognized that where a plaintiff asserts protection based on a selection-and-arrangement theory, “the inquiry focuses on whether the combination of elements—viewed as a whole—reflects sufficient originality to be protectable,” but that “[e]ven in that context … courts must still exclude unprotectable material before assessing whether the remaining selection and arrangement is original.”

Because the court found the parties’ experts largely admissible, the record was left with genuinely disputed facts about the identification, characterization and protectability of the “Fish Market” elements, disputes the court found “driven almost entirely by competing expert analyses.” Specifically, the record contained “competing, facially credible expert opinions regarding what elements exist in the [w]orks, how those elements function musically, whether they are commonplace or original, and whether they form a coherent and protectable selection and arrangement,” with each side’s experts offering a fundamentally different account of the same musical features. Because resolving those conflicts and weighing the evidence are jury rather than judicial functions, the court concluded that this case “‘boils down to a battle of the experts,’ and that battle must be resolved by the trier of fact, not the Court on summary judgment.”

Summary prepared by Safia Gray Hussain and Alexander Loh