In a copyright infringement action, the Second Circuit affirms summary judgment for defendants because plaintiffs’ expert reports and testimony asserting striking similarity were both internally and externally inconsistent and were insufficient to create a genuine issue of fact. The court also affirms the award of attorneys’ fees for defendants, holding that the trial court did not abuse its discretion in finding plaintiffs’ claims were objectively unreasonable even though such claims survived defendants’ first motion for summary judgment.Plaintiff Bland-Ricky Roberts owns the copyright in a sound recording of a live drumming performance containing a segment called Bust Dat Groove Without Ride. Plaintiffs claimed that defendants digitally sampled, i.e., physically copied and then digitally manipulated, the sound recording and used it in their recording Aparthenonia.
In opposition to defendants’ motion for summary judgment, plaintiffs provided reports and testimony of three experts to establish that Aparthenonia and Bust Dat Groove were strikingly similar. The district court determined that this evidence was insufficient to create a genuine issue of fact, explaining that the expert reports and testimony were both internally and externally inconsistent, and granted summary judgment to defendants.
On appeal, plaintiffs contended that the district court’s treatment of their expert evidence was improper at the summary judgment stage. The Second Circuit disagreed. “Although plaintiffs are correct that the district court must view the facts and evidence in the light most favorable to them at summary judgment and ‘must be wary of granting summary judgment when conflicting expert reports are presented,’ plaintiffs cannot avoid summary judgment simply by submitting any expert evidence, particularly where that evidence is both internally and externally inconsistent” (citations omitted).
Furthermore, defendants provided evidence of independent creation and the court reasoned that a “plaintiff has not proved striking similarity sufficient to sustain a finding of copying if the evidence as a whole does not preclude any reasonable possibility of independent creation.” Although plaintiffs submitted an affidavit in opposition to that evidence, mere assertions, according to the court, are insufficient to satisfy their burden at summary judgment. The court also rejected plaintiffs’ argument the district court lacked the authority to consider defendants’ supplemental affidavits regarding independent creation as “without merit.”
The court also affirmed the award of attorneys’ fees to defendants in the amount of $175,000. According to the court, “[i]n evaluating whether an award of attorneys’ fees is warranted in a copyright infringement case, this Court places great emphasis on whether a plaintiff’s claims were objectively reasonable.” Plaintiffs asserted that it would be hard if not impossible to consider their claims objectively unreasonable because (1) the court had to ask for more evidence from defendants before granting summary judgment, (2) plaintiffs had prevailed on defendants’ first summary judgment motion, (3) plaintiffs successfully settled with three of the five defendants, and (4) plaintiffs “initially survived” defendants’ second motion for summary judgment. However, according to the court, none of these arguments demonstrated that the district court abused its discretion in finding that the claims were objectively unreasonable. The court also found that the district court did not err as to the amount of the award (which plaintiffs claimed would cause their financial ruin) and that the district court had carefully considered plaintiffs’ financial situation in awarding attorneys’ fees.