IP Law Daily, COPYRIGHT—N.D. Ill.: French connection: aspiring producer can’t bridge the gaps in lawsuit against popular rapper, (Mar 31, 2023)

By Matthew Hersh, J.D.

A young producer who claimed that French Montana stole his riffs was not entitled to summary judgment.

A chart-topping song from a popular rapper was not so strikingly similar to an earlier song from an aspiring musical producer that a court could deprive the jury of a chance to decide the issue for itself, the federal court for Chicago has held. The court, in denying a motion for summary judgment by the young producer who brought the claim, also expressed open frustration over the inadequate briefing by both parties in a case that required resolution of a wide array of factual issues in light of several distinct aspects of the Copyright Act (Richardson v. Kharbouch, March 30, 2023, Maldonado, N.).

The central figure in the lawsuit is French Montana, a Moroccan-born rapper and longtime collaborator with music industry stalwarts such as Puff Daddy, Rick Ross, and Akon, among others. (The rapper, born originally as Karim Kharbouch, adopted his stage name as a nod to his French language proficiency and to Al Pacino’s character in Scarface.) The rapper’s first solo single, Ain't Worried About Nothin proved “immensely popular” after its 2013 release, according to the version of the facts accepted by the court, reaching number ten on the Billboard charts and inspiring collaborations with even more of the music industry’s biggest names such as Lil Wayne, Wiz Khalifa, Miley Cyrus and The Game.

The song’s popularity also drew attention of a less positive sort, in the form of a copyright infringement lawsuit by Eddie Lee Richardson. The 2019 lawsuit contended that Ain’t Nothing ripped off seven “musical motives”—essentially short musical themes—of a 2012 work that the aspiring producer had created when he was a tender sixteen years old. The aspiring producer sought summary judgment on his claim, leading to this lawsuit.

Form of registration. Before turning to the merits, the court paused first to emphasize that it wasn’t clear whether the young producer had established one of the core prerequisites for his lawsuit—proper registration of the work at issue. By way of background, there are two different rights to music, one in the form of the words and music and another in the form of the sound recording in which those words and music are embedded. (Think of a cover of an song by another artist: one musical composition, two different sound recordings.) Although the record was far from clear at the present stage, the young producer appeared to be resting his central claim on Montana’s use of the producer’s musical themes in his own independent sound recording (a claim of infringement based on the words and music) rather than his sampling of the producer’s own recording (which would be an infringement of the sound recording rights).

But this caused a problem, the court said, because it wasn’t clear from the record whether the young producer had registered his words and music or his sound recording. This was one of the many points on which the court noted shortcomings in the briefing by both parties to the lawsuit. The record appeared to indicate that the producer had registered his work only as a sound recording, thus limiting him to claims involving that form only. But the record was unclear and Montana had raised the argument for the first time only in a reply brief, which precluded further consideration of the argument. The dispute would have to wait another day.

Form of alleged sound recording infringement. The record was unclear in another way, a clearly frustrated judge observed. If in fact the young producer was claiming the infringement of his sound recording and not merely his underlying words and music, he would have to prove that the infringement was by digital means and not over-the-air radio. Here we encounter two other aspects of the Copyright Act. Under the statute of limitations for copyright infringement claims, a lawsuit must be filed within three years of the time it accrues. Because the producer waited six years to file the lawsuit (four years after he turned of age), he could sue only for acts of infringement taking place since 2016. But that meant, the producer acknowledged, that he could sue only for Montana’s continued performances of the sound recordings. Yet the Copyright Act posed another hurdle: a copyright owner’s exclusive rights to sound recording extends only to digital performances (think YouTube or Pandora) and not, say, traditional over-the-air radio. Which formed the gravamen of the young producer’s lawsuit? The record again was not clear.

Striking similarity. But these were not the only issues the court deferred to later proceedings. The young producer sought summary judgment on his claim for copyright infringement. Setting aside the problems already noted, here the producer faced yet one more obstacle: his inability to muster evidence that Montana and his team was reasonably likely to have ever heard (or in the parlance of the caselaw, had access to) the original recording. Thus, at this stage of the proceedings, the producer could prove infringement only if he could show that the two songs were so strikingly similar that the only plausible explanation any jury could reach was that Montana had heard and copied the original. But the producer’s expert evidence fell short of this standard.

The court took two steps to reach this conclusion. At the outset, the court acknowledged, the songs did sound similar “to the Court’s untrained ear,” perhaps even more so than in the most important Seventh Circuit precedent—a landmark case involving disco masters The Bee Gees—where striking similarity had been raised. But there was a critical point missing in the producer’s expert proof: evidence about how the complexity of the allegedly purloined musical themes “and the frequency with which those motives appear in other popular hip-hop songs in the public domain.” After all, if they were commonplace musical themes, that would undercut the claim that Montana got them from the young producer as opposed to some other source. At the end of the day, a jury would have to decide.

The Case is No. 1:19-cv-02321.

Attorneys: Tyiase Hasan (Law Office of Tyiase H. Hasan) for Eddie Lee Richardson, a/k/a Hotwire the Producer. Dariush Ghaffar Adli (Adli Law Group PC) for Karim Kharbouch, a/k/a French Montana.

Cases: Copyright TechnologyInternet IllinoisNews