Striking similarity and experts are, for me, a toxic combination. Striking similarity is the last refuge of delusional plaintiffs who have failed to meet the pitiably low standard of showing a reasonable opportunity of access: experts are the vehicle used to help such plaintiffs survive a summary judgment motion and get to a jury. Not all experts are, as one circuit judge described them to me “paid liars;” some attempt to preserve their integrity while pushing as far as they can for their client. When they do so, however, it is unlikely they are of any use to their client, who needs them to opine against the facts. That’s what happened in an outstanding opinion by Judge William Pauley, Vargas v. Transeau, 2007 WL 1346618 (S.D.N.Y. May 9, 2007).
Here are the facts, paraphrased from the court’s opinion. Plaintiffs Ralph Vargas and Bland-Ricky Roberts alleged that Defendants' sound recording titled “Aparthenonia” was a copy of Plaintiffs' musical composition and recording titled “Bust Dat Groove Without Ride” (“BDG”). BDG is a live drumming performance by Vargas comprising one measure of percussion music looped 27 times. The composition utilizes a high-hat cymbal, snare drum, bass drum and “ghost notes.” According to Plaintiffs, a ghost note is a unique percussion sound with characteristics of both a tom-tom drum and a snare drum.
“Aparthenonia,” a song Transeau composed in the year 2000, utilizes between one bar and two and one-quarter bars of drum music looped for nine seconds. (Like BDG, Aparthenonia is composed of a high-hat, snare drum, bass drum and ghost notes. Aparthenonia was included in a commercial jingle for the drug Celebrex, as well as Transeau's album titled “Breakz from the Nu Skool,” which was manufactured, distributed, sold and licensed by defendant East West. Transeau contends that he created Aparthenonia on his tour bus using a laptop computer and music-generation software called Propellerhead Reason (“Reason”) Breakz from the Nu Skool contains 403 separate beats that Transeau contends he created on Reason. Plaintiffs conceded that access has not been proven and, therefore, relied solely on the contention that BDG and Aparthenonia are strikingly similar.
And that’s where the experts were trotted out. As discussed by Judge Pauley. First came defendant’s expert, who attempted to show independent creation:
Defendants offer the testimony of Dr. Richard Boulanger, a Professor of Music Synthesis at Berklee College of Music. Boulanger compared BDG and Aparthenonia using Fast Fourier Transform (“FFT”) spectral analysis, which Plaintiffs concede is an appropriate method for determining whether Aparthenonia is a digitally edited copy of BDG. FFT converts sounds into a “frequency-domain representation,” i.e., a visual display of the sound's “unique timbre, spectrum [and] color.” An FFT analysis “separate[s] out all the components in a complex sound and show[s] how they evolve in time and contribute to make up the sound that we identify as unique.”FFT analysis can reveal the characteristics of sounds with much greater precision than the unaided ear.Comparing the FFT representations of BDG and Aparthenonia, Boulanger concluded that “the audio source material used in Aparthenonia is unique and original, and is not at all based on or copied or derived from [BDG].”
Then came plaintiff’s experts, who either did not support plaintiffs or contradicted each other:
Plaintiffs' FFT expert, Dr. Stephen Smith, confirmed that Aparthenonia was not digitally copied from BDG.Smith identified two categories of “copying” that may be observed in an FFT analysis: “direct” and “associated .” “Direct copies” occur when a sound is copied electronically. An FFT analysis of direct copies will involve “an identical match in both waveform and frequency spectra [with] [t]he only difference [resulting] from whatever degradation is introduced by the copying procedure.” Thus, direct copies are identical sounds with slight variations arising from the copying process itself. “Associated copies” are recorded sounds that are not “exactly alike,” but are “very similar to each other in both waveform and frequency spectra.” The example of an associated copy provided by Smith is the same drummer striking the same drum twice. Thus, an associated “copy” is not actually a copy, but rather an independently created sound that is similar to the first sound. Crucially, Smith found associated copies but no direct copies in comparing BDG to Aparthenonia. Smith's expert testimony therefore undermines Plaintiffs' theory of the case, which is that Transeau digitally copied BDG.
Plaintiffs also proffer the opinion of a purported percussion expert, Matthew Ritter, who contends (without reliance on a waveform or spectral analysis) that “Aparthenonia is a digitally edited version of [BDG].” Yet Ritter equivocates as to the precise level of similarity between the two songs. At one point in his declaration, Ritter suggests that the drum sounds in Aparthenonia and BDG are “identical.” (Leaving aside that this opinion directly contradicts Smith's conclusions, Ritter backpeddles later in his declaration, asserting only that “Aparthenonia is significantly similar, if not identical, to BDG.” Ritter also waffled about the level of similarity between the two works at his deposition.
After noting that the standard for striking similarity is stringent and that the evidence must preclude independent creation, Judge Pauley noted that plaintiffs’ witnesses hadn’t ruled out independent creation, whereas defendant’s had established it. Here is the money quote:
Plaintiffs' case on summary judgment boils down to the contention that summary judgment may be avoided by producing any expert witness who testifies that one sound was sampled from another, regardless of how conclusory the statement may be and regardless of whether it contradicts the testimony of Plaintiffs' other witnesses. That is not the law.