Richardson vs. Kharbouch, brought in the Northern District of Illinois, was an infringement case that illustrated the dangers of doing copyright work on a shoestring.
The plaintiff, Eddie Lee Richardson, also known as Hotwire the Producer, sued Karim Kharbouch, also known as French Montana. According to plaintiff/Richardson/Hotwire, he came up with a song when he was just 16 called “*Hood* Pushin’ Weight” (“HPW”) and posted it on the music-sharing website SoundCloud.
A few months later, Richardson caught wind of another song called “Ain’t Worried About Nothin’” (“AWAN”) — which he claimed sounded substantially similar to the melody of HPW. This new track was produced by an older and more renowned rap artist called French Montana. Richardson reached out to defendant/Kharbouch/Montana, and the performer denied any knowledge of where the music came from, recommending instead that Richardson reach out to his producers.
The plaintiff did not speak with those producers, and instead rushed to file for copyright registration in the sound recording of his work (a Form SR). But, critically, he did not also register the copyright in the underlying composition (on form PA, for a work of the Performing Arts).
Richardson proceeded to bring a complaint against Kharbouch for copyright infringement. After the time for discovery had passed, defendant brought a motion for summary judgment, arguing that he was entitled to dismissal because there was no evidence that the defendant had infringed on plaintiff’s sound recording (for example, by sampling the sounds of the plaintiff’s work). Although plaintiff said that the melodies and the concepts and the choice of sounds and percussion instruments were substantially similar, Karbouch persuasively argued that that was irrelevant in terms of enforcing the copyright in a sound recording. In other words, the arrangement of all the elements of HPW would have mattered only in connection with enforcing a composition copyright — the type of copyright that Richardson had not registered.
The court reluctantly agreed with Karbouch: It was very clear there is only a limited scope of rights that are enforceable with a sound recording. Moreover, plaintiff did not take the depositions of any of the producers, so there was no direct evidence as to whether they recorded or produced the song by incorporating Richardson’s recording.
In fact, it appeared that Richardson had no evidence of actual copying at all, and could not demonstrate the sounds in the released recording of Mr. Kharbouch’s AWAN were copied/sampled from plaintiff’s work, HPW. So, rather than seeking damages based on the income from sales of the song’s downloads, Richardson sought damages from Kharbouch’s performances of the song.
The court criticized the foundation of Richardson’s complaint, which relied on the existence of “common knowledge” that rap artists routinely sample music from other artists and that Karbouch “must have” used his recording to support his rapping at concerts. The court said common knowledge is not evidence. There was no evidence of sampling or other infringement of the sound recording at live performances due to the same problem: the plaintiff effectively waived the right to demonstrate that the defendant sampled his music by choosing not to take the depositions of the producers of AWAN, or to find out what background music was used for the defendant’s live shows.
Apparently the judge saw some merit to the claims of infringement, because she took the time to say that a jury might be able to listen to this and say it’s awfully similar, but that was not enough to survive summary judgment. She further noted with some compassion that this might not be a fair result: “The court notes this is a technical win for Kharbouch based on the factual and legal record before the court, which he should not claim as a substantive victory.”
She closed by saying how she hopes this does not dissuade the plaintiff from continuing in his musical endeavors, which he started, apparently very successfully, at only 16 years old. She said the mistake he made in registering his song was understandable, but she still had to dismiss the case as a matter of summary judgment.
The takeaway is two-pronged:
1. Register the copyright in both the composition and the sound recording.
Every musical copyright case should be supported by registering both the composition and the sound recording. Maybe the plaintiff in this case didn’t understand that the composition does not have to be written out. He could have filed the recording with the filing of his application to secure his rights in the composition. Then the melody, not written down but in recorded form, would be preserved and protectable.
2. Be ready to spend enough money to develop the factual record.
The defense may have denied that they sampled, but a good lawyer — or at least, one with a reasonable budget — would have gone on to ask, “How did you go about making this?” Defendant would have needed a plausible explanation of how these sounds came out sounding exactly like Richardson’s sound recording. That, at least, would make a factual question that could go to a jury. But apparently, Hotwire did not have or provide the litigation budget necessary to take the producer’s depositions. Yes, litigation can be expensive, but you need to invest in developing a factual record if you want to have a chance at winning.
