French Montana and the Scope of Copyright Protection for Sound Recordings vs. Compositions

You have to tip your hi-hat to Eddie Lee Richardson, a/k/a Hotwire the Producer, a/k/a the plaintiff in this case. When he was 16 years old, Richardson created “*Hood* Pushin’ Weight” (“HPW”), a mostly instrumental recording that he describes as a “unique fixation of a series of sounds consisting of a snare, 808, high hat, rim shot, cymbal, low brass, piano bells, tubular bells, kick drum, strings, soft leads, hard leads, and orchestra hits.” (Listen here.) About six months after Richardson uploaded HPW to Soundclick.com, French Montana released his single, “Ain’t Worried About Nothin’" ("AWAN") (Listen here.) To my untrained ears, the underlying beats of AWAN have more than a passing similarity to HPW, but is it infringement? Richardson thought so, and he took action.

The day after hearing AWAN for the first time, the precocious teen filed for a copyright registration (by himself, without a lawyer). The registration he obtained, however, covered the sound recording for HPW, not the underlying composition. The two are separate works under copyright law: the composition (called a “musical work” in the Copyright Act) refers to a song's lyrics, melodies, and arrangements, and a sound recording is the “material object” (i.e., the vinyl record, CD or digital file) in which a particular performance of a composition is embodied. (See 17. U.S.C. § 101.)

We don't know why Richardson didn't register the copyright in HPW's underlying composition. It could have been an honest mistake (which is understandable given his youth and the complexities of music copyright law, see this post). Another possibility is that he couldn't claim authorship because someone else (a friend in his algebra class?) wrote it. Perhaps he wasn't confident that his assembly of common musical elements to form HPW was sufficiently original to qualify for copyright protection. I doubt it was the latter, since his expert was prepared to testify that the underlying melody of French Montana's AWAN was “shockingly" (not just substantially) similar to HPW's. Moreover, there was a reasonable chance that the court would have left it to a jury to determine whether Richardson's selection and arrangement of common musical elements was sufficiently original to be protectable. (See Gray v Perry, covered in this post). Ultimately, the copyright in the HPW composition might have been on the “thin” side (see this post), but thin is better than nothing. 

Whatever the reason, Richardson's decision to register only the sound recording created a problem for him. The scope of protection for sound recordings under U.S. copyright law is narrower in important respects than that afforded to compositions. Subject to some exceptions (including compulsory licensing under § 115), the owner of the copyright in a composition has the exclusive right to reproduce, distribute and create derivative versions of the composition. By contrast, the Copyright Act imposes significant limitations on the exclusive rights afforded to owners of sound recordings, including:

• The right of reproduction in a sound recording is limited to the right to duplicate the sounds in a form “that directly or indirectly recapture[s] the actual sounds fixed in the recording”;
• The right to prepare derivative works based upon a sound recording is limited to works “in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality"; and
• The “exclusive rights of the owner of copyright in a sound recording ... do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.” 

(Quaoting 17 U.S.C. § 114(b), with emphasis added.)

Why the different treatment? A sound recordings is a vessel into which are poured at least one separately copyrighted work (i.e., the composition) and other uncopyrightable elements (e.g., the stylings of a vocalist's performance of the song). After those are removed, there's not much left, from a copyright perspective, over which to claim ownership beyond the specific recording itself. Consider this example: Lady Gaga recorded (as a duet with the late, great Tony Bennet)  “I've Got You Under My Skin." If, in her rendition, Gaga copied the phrasing from Frank Sinatra's 1956 recording of the song, should she have had to seek clearance from the owner of the Sinatra sound recording? As a matter of policy, and to avoid chaos, Congress answered this question in the negative. For this reason, infringement of a sound recording is limited to actual copying of the recording itself. 

Thus. Richardson could succeed with his copyright claim only if he could prove that French Montana copied or duplicated Richardson's actual recording of HPW. If French Montana instead created a new recording that simulated (even precisely to the note) Richardson's recording of HPW, Richardson's infringement claim would fail. What proof could Richardson offer that French Montana copied his actual recording? As summarized by the court:

“Richardson does not cite to any testimony from AWAN’s producers or creators as to how they created the music for the song, nor does he point to any expert opinion testimony suggesting that sampling had occurred. Instead, Richardson relies solely on his own observations that he can hear the same series of sounds present in AWAN that are present in HPW, specifically the arrangement of the snare, 808, high hat, rim shot, cymbal, low brass, piano bells, tubular bells, kick drum, strings, soft leads, hard leads, and orchestra hits. Richardson then suggests that “any jury” would be able to hear the same thing, that is, they would hear that the same sounds of HPW are “sampled” in AWAN. Richardson concludes by asserting, with no citation to any evidence in the record, that digital sampling of sounds from prior recordings frequently happens in the hip-hop and rap industry.” (Cleaned up.)

The court did not think, however, that this was enough:

"Richardson’s argument in opposition to summary judgment thus essentially boils down to the contention that a jury could find that unlawful sampling—i.e., copying in fact of his protected sound recording—occurred here, because (1) sampling is common in the industry, and (2) HPW and AWAN sound alike.But, based on the record before it, the Court finds that these facts, even if undisputed, are not sufficient to create a triable issue of fact that AWAN actually duplicates or samples the recording of HPW." (Cleaned up.)

The court ended its opinion by expressing its “great sympathy for Richardson’s situation" and noting that “if it is any consolation, imitation is the sincerest form of flattery, and the Court hopes that Richardson will not be deterred in his musical endeavors, now armed with a better understanding of copyright law.”

I agree and hope this kid wins a Grammy someday.

Richardson v. Kharbouch, No. 19 CV 02321, 2024 WL 50374 (N.D. Ill. Jan. 4, 2023)