“I feel glorious, glorious,” Macklemore is saying. On Tuesday, April 23, a Louisiana federal judge in the Fifth Circuit dismissed a 2017 lawsuit claiming that Macklemore and Ryan Lewis unlawfully sampled Paul Batiste’s sound recordings. Batiste, a New Orleans jazz musician and member of The Batiste Brothers Band, alleged that Macklemore and Lewis’ songs, “Thrift Shop,” “Can’t Hold Us,” “Need to Know,” “Same Love,” and “Neon Cathedral” infringed eleven of Batiste’s original works. But Batiste’s allegations weren’t sufficient to make out a claim for copyright infringement, which requires a showing of (1) ownership of a valid copyright; (2) factual copying; and (3) substantial similarity. Because direct evidence of copying is rare, plaintiffs typically use circumstantial evidence to show factual copying, which can include proof of access to the allegedly infringed work, or, evidence of a striking similarity between the works. Here, the court ruled that Batiste had to demonstrate “striking similarity” in order to prove factual copying because he “failed to plead any facts concerning access.”
In granting defendants’ motion for summary judgment and dismissing the lawsuit, Judge Martin L.C. Feldman noted that the plaintiff failed to “produce for this record disputed factual similarities between his songs and those of the defendants.” In fact, the judge admonished the plaintiff for “ignor[ing] the defendants’ contention (and this Court’s instruction) that he must establish a factual dispute regarding striking similarity.” Despite that, the court still considered whether Batiste presented evidence raising a question of fact as to the issue of access – in other words, whether defendants had a “reasonable opportunity” to view the copyrighted works before creating their own works. The duo alleged that not only was there no evidence that they had access to any of the songs at the time their songs were written, but that they had neither heard of Batiste or his publishing company, nor listened to any of his music. Plaintiff’s attempt to refute these assertions fell short. The fact that Batiste’s musical works may have been “widely disseminated” (endorsed by plaintiff’s own declaration) and that the defendants performed in New Orleans “not too far” from a store in which Batiste’s records were sold “creates at best a hope for a ‘bare possibility of access,’” the court said.
According to Batiste’s counsel, we might be seeing an appeal in the near future, but for now, Batiste “Can’t Hold” the duo back.