Batiste v. Lewis

• Decision Date: 22 September 2020
• Docket Number: No. 19-30400 consolidated with No. 19-30889,19-30400 consolidated with No. 19-30889
• Citation: 976 F.3d 493
• Parties: Paul BATISTE, doing business as Artang Publishing, L.L.C., Plaintiff—Appellant, v. Ryan LEWIS, also known as Macklemore Lewis; Ben Haggerty, also known as Macklemore, also known as Macklemore and Ryan Lewis; Macklemore Publishing; Ryan Lewis Publishing; Macklemore, L.L.C., doing business as Macklemore Publishing; Andrew Joslyn; Allen Stone; Andrew Joslyn Music, L.L.C., doing business as DB Joslyn Music; Stickystones Publishing, Defendants—Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

976 F.3d 493

Paul BATISTE, doing business as Artang Publishing, L.L.C., Plaintiff—Appellant,

v.Ryan LEWIS, also known as Macklemore Lewis; Ben Haggerty, also known as Macklemore, also known as Macklemore and Ryan Lewis; Macklemore Publishing; Ryan Lewis Publishing; Macklemore, L.L.C., doing business as Macklemore Publishing; Andrew Joslyn; Allen Stone; Andrew Joslyn Music, L.L.C., doing business as DB Joslyn Music; Stickystones Publishing, Defendants—Appellees.

No. 19-30400 consolidated with No. 19-30889

United States Court of Appeals, Fifth Circuit.

FILED September 22, 2020

DaShawn Paul Hayes, Esq., New Orleans, LA, for Plaintiff—Appellant.

Barry I. Slotnick, Christian D. Carbone, Loeb & Loeb, New York, NY, Mary Ellen Roy, Dan Brian Zimmerman, Phelps Dunbar, L.L.P., New Orleans, LA, for Defendants—Appellees.

Before Clement, Southwick, and Higginson, Circuit Judges.

Edith Brown Clement, Circuit Judge:

A local jazz musician, Paul Batiste, sued an internationally famous hip-hop duo for copyright infringement. He says the group digitally sampled his songs. Finding no evidence of copying, the district court granted summary judgment for the defendants and then ordered both Batiste and his attorney to pay the defendants’ attorneys’ fees. Batiste appealed. We lack jurisdiction to review the fee award against Batiste's attorney but otherwise AFFIRM the district court's judgments.

I.

Ben Haggerty, better known as "Macklemore," and Ryan Lewis form the world-famous hip-hop duo Macklemore & Ryan Lewis. The two released their first album, The Heist , in 2012, followed by This Unruly Mess I've Made a few years later. Their debut album was a tremendous success, earning the duo four Grammy Awards and producing two number-one hits on the Billboard Hot 100. The group's breakout single, "Thrift Shop," went on to reach diamond status, signifying more than ten million sales in the United States alone, and its music video has gained over 1.4 billion views on YouTube.

Macklemore and Lewis's rise to fame drew the attention of Paul Batiste, a self-proclaimed "legendary" jazz musician in New Orleans. Long before Macklemore met Lewis, Batiste was writing and recording his own original music. He distributed his music to local radio stations, disc jockeys, and record stores, and his band played at nightclubs in the area. Batiste doesn't have any Grammys, platinum records, or number-one hits, but he says some of the most popular recording artists have copied his music. Which brings us to this lawsuit.

Batiste sued Macklemore and Lewis for copyright infringement, claiming that the duo copied eleven of his songs. His allegations focus on the practice of "digital sampling," which involves copying sounds from an existing recording and incorporating them, with or without alteration, into a new one. See VMG Salsoul, LLC v. Ciccone , 824 F.3d 871, 875 (9th Cir. 2016). Batiste contends that the defendants sampled brief snippets of his copyrighted sound recordings in five of their songs: "Thrift Shop," "Can't Hold Us," "Same Love," "Neon Cathedral," and "Need to Know."¹

At the close of discovery, the defendants moved for summary judgment. They also moved to exclude the report of Archie Milton, Batiste's expert musicologist, because Milton's deposition revealed that his report was ghost-written by Batiste. Indeed, when pressed, Milton admitted that Batiste conducted the analysis in the report and that he couldn't verify the accuracy of Batiste's work because he didn't have access to the computer software that Batiste used to assess whether sampling occurred. For these reasons, the district court excluded Milton's report.

After the district court threw out Milton's report, Batiste tried to sidestep the district court's order by resubmitting the report in his own name. To that end, he moved for leave to file a supplemental declaration in opposition to summary judgment. Batiste's supplemental declaration included the contents of Milton's excluded report, which he restyled as his own. Finding the restyled report both unreliable and untimely, the district court denied Batiste's motion. The court then granted summary judgment and dismissed Batiste's claims.

After prevailing on summary judgment, the defendants sought to recover some of their attorneys’ fees from Batiste under the Copyright Act, 17 U.S.C. § 505. They also moved for sanctions against Batiste's attorney, DaShawn Hayes. The district court granted their motion, awarded them $125,427.81 in fees and costs, and held Batiste and Hayes jointly and severally liable for the award. Batiste separately appealed the summary judgment and fee award. We consolidated the two appeals.

II.

In the first appeal, Batiste challenges the district court's decisions denying him leave to supplement his summary-judgment opposition with his restyled expert report and granting summary judgment for the defendants. Our review involves two levels of inquiry. "First, we review the district court's evidentiary rulings for abuse of discretion." Ratliff v. Aransas County , 948 F.3d 281, 286 (5th Cir. 2020). Then, with the record defined, we review the court's grant of summary judgment de novo. Id.

Summary judgment is proper when there's "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rogers v. Bromac Title Servs., L.L.C. , 755 F.3d 347, 350 (5th Cir. 2014) (quoting FED. R. CIV. P. 56(a) ). We construe all facts and inferences in the light most favorable to the nonmovant, but the nonmovant can't defeat summary judgment with conclusory allegations, unsupported assertions, or only a scintilla of evidence. Id.

A.

We begin by reviewing the district court's decision to deny Batiste's motion for leave to supplement his summary-judgment opposition with his restyled expert report. The district court denied Batiste's motion because Batiste didn't disclose himself as an expert witness or produce a report within the scheduling order's deadlines.

Rule 16(b) of the Federal Rules of Civil Procedure gives district courts broad discretion in enforcing the deadlines in their scheduling orders. Geiserman v. MacDonald , 893 F.2d 787, 790 (5th Cir. 1990). "We will not lightly disturb a court's enforcement of those deadlines." Id. at 792. Under Rule 16(b)(4), a scheduling order may be changed only for "good cause." FED. R. CIV. P. 16(b)(4). In determining whether a district court's decision to exclude evidence as a means of enforcing its scheduling order was an abuse of discretion, we consider four factors: "(1) the explanation for the failure to timely [comply with the scheduling order]; (2) the importance of the [evidence]; (3) potential prejudice in allowing the [evidence]; and (4) the availability of a continuance to cure such prejudice." Squyres v. Heico Cos. , 782 F.3d 224, 237 (5th Cir. 2015) (first alteration in original) (quoting Meaux Surface Prot., Inc. v. Fogleman , 607 F.3d 161, 167 (5th Cir. 2010) ).

Batiste doesn't even address, much less satisfy, Rule 16(b)(4) ’s good-cause standard, and the four factors weigh against him. First, he offers no explanation for his failure to timely designate himself as an expert or submit the report in his own name. See Shepherd ex rel. Estate of Shepherd v. City of Shreveport , 920 F.3d 278, 287–88 (5th Cir. 2019) (affirming denial of leave to supplement report attached to summary-judgment opposition because the plaintiff offered no explanation for failing to include the supplemental materials with her original opposition). Second, even if Batiste's expert testimony was important to his case, the importance of that evidence "underscores the need for [Batiste] to have timely designated [himself as an] expert witness" and can't "singularly override" the district court's enforcement of its scheduling order. Geiserman , 893 F.2d at 792. Third, allowing Batiste to submit the report after the discovery deadline would have prejudiced the defendants, who would need to redepose Batiste about his qualifications and methodology. See id. at 791–92. Fourth, although the district court could have granted a continuance, reopened discovery, and allowed another round of pretrial motions, doing so would have disrupted the trial date, which was less than a month away. See id.

Ignoring Rule 16(b)(4), Batiste argues that it was an abuse of discretion for the district court to deny him leave to supplement his opposition because courts should "freely" grant leave under Rule 15(a). See FED. R. CIV. P. 15(a)(2). But Rule 15(a) ’s lenient standard applies only to "pleadings." See id. The term "pleading" in Rule 15(a) "must be interpreted in conjunction with Rule 7(a), which enumerates the pleadings permitted in federal practice." Albany Ins. Co. v. Almacenadora Somex, S.A. , 5 F.3d 907, 910 (5th Cir. 1993) (quoting 6 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1475 (2d ed. 1990) ). A declaration filed in opposition to a motion for summary judgment isn't a "pleading." See id. at 910–11. So Rule 15(a) doesn't apply.

Batiste didn't show good cause for changing the scheduling order to allow him to resubmit Milton's excluded expert report as his own. Thus, the district court acted well within its discretion in denying Batiste's motion for leave to supplement his summary-judgment opposition.

B.

Next, we turn to the district court's grant of summary judgment for the defendants. The court held that Batiste presented insufficient evidence to create a genuine dispute as to whether the defendants actually copied his music. We agree.

To prove copyright infringement, a plaintiff must show "ownership of a valid copyright" and "copying" by the defendant. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co. , 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). "Copyright ownership is shown by proof of originality and copyrightability in the work as a whole and by compliance with applicable statutory formalities." Eng'g Dynamics, Inc. v. Structural Software, Inc. , 26...