Browne v. Donalds

District court grants defendant’s motion for reconsideration and vacates portion of its prior summary judgment order denying defendants’ motion, holding that plaintiffs cannot proceed on selection and arrangement theory where they have not identified any single copyrighted work containing the allegedly protectable selection and arrangement.

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 a hundred 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, hi-hat, tambourine, synthesized tom, timbales, and synthesized bass 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.)

The parties then cross-moved moved for partial summary judgment, and the court denied both sides’ motions, holding that genuine disputes of material fact preclude resolution of whether the “Fish Market” elements (i.e., plaintiffs’ claimed drum pattern) are sufficiently original and protectable under copyright law, including whether the “Fish Market” elements amount to a protectable selection and arrangement. (Read our summary of the prior decision here.)

Defendant Rimas Music LLC then sought reconsideration of the summary judgment ruling, arguing that plaintiffs have not alleged a protectable selection and arrangement because the asserted combination does not exist in any one single copyrighted work owned by plaintiffs in the first place. The court granted reconsideration and vacated the portion of its prior order denying defendants’ partial motion for summary judgment on plaintiffs’ asserted selection and arrangement theory.

The court first noted that reconsideration is an “extraordinary remedy, to be used sparingly,” and may not be used to reargue the motion; a motion for reconsideration must be based on a material difference in fact or law, new material facts or a change in law, or a manifest failure to consider material facts presented to the court.

The court then agreed with defendants that plaintiffs have not clearly identified what copyrighted work contains the allegedly protectable selection and arrangement they seek to enforce. The court found the Ninth Circuit’s decision in Skidmore ex rel. Randy Craig Wolfe Trust v. Led Zeppelin particularly instructive.

In Skidmore, the Ninth Circuit rejected the plaintiff’s attempt to characterize several disparate similarities as a protectable “combination” where those similarities were merely “random similarities scattered throughout the works.” The Ninth Circuit emphasized that presenting a combination of unprotectable elements without explaining how those elements are particularly selected and arranged “amounts to nothing more than trying to copyright commonplace elements.” The court concluded that Skidmore “makes clear that a plaintiff cannot establish a selection and arrangement copyright merely by identifying individual elements that appear in different places and then aggregating those elements into a purported combination.” The court noted that this conclusion is also consistent with the structure of the Copyright Act.

Applying these principles, the court recognized that the “Fish Market” elements—containing “an original combination of rhythmic and instrumental elements, including a programmed kick, snare, hi-hat, tambourine, synthesized tom, timbales, and synthesized bass pattern”—were depicted by plaintiffs via a two-bar transcription. But the court found that the record did not establish that this two-bar transcription existed in any one of plaintiffs’ copyrighted works, and plaintiffs did not identify where the precise claimed selection and arrangement exists within a copyrighted work.

The court held that before a jury may determine whether a selection and arrangement is original, the court must first determine “what work defines the scope of the asserted copyright” in the first place—and that determination is one of law. Absent identification of that work, the court cannot carry out any protectability and infringement analyses. Because plaintiffs failed to point to a single copyrighted work that embodies the alleged protectable selection and arrangement, they could not proceed on their current theory as a matter of law.

Summary prepared by David Grossman and Alexander Loh