Batiste v. Lewis, et al

United States Court of Appeals
for the Fifth Circuit

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

Paul Batiste, doing business as Artang Publishing, L.L.C.,

Plaintiff—Appellant,

versus

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.

Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:17-CV-4435

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
United States Court of Appeals
Fifth Circuit
FILED
September 22, 2020

Lyle W. Cayce
Clerk
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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
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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

1
Batiste says “Thrift Shop” samples his songs “Hip Jazz,” “World of Blues,” and
“Kids”; “Can’t Hold Us” samples his songs “Starlite Pt. 1” and “Love Horizon”; “Same
Love” samples his songs “My Bad” and “Sportsman’s Paradise”; “Neon Cathedral”
samples his songs “Tone Palette,” “Salsa 4 Elise (Fur Elise),” and “Drowning in My
Blues”; and “Need to Know” samples his songs “Move That Body” and “Kids.”
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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
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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
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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 (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 F.3d 1335, 1340 (5th Cir. 1994). One such
statutory formality is registration. See 17 U.S.C. § 410(c). “A certificate of
registration, if timely obtained, is prima facie evidence both that a copyright
is valid and that the registrant owns the copyright.” Gen. Universal Sys., Inc.
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v. Lee, 379 F.3d 131, 141 (5th Cir. 2004) (per curiam). Batiste’s copyright
ownership isn’t challenged, at least not adequately,
2
so we focus on copying.
In this context, copying has two components: “factual” copying and
“actionable” copying. Id. at 141–42, 157. The plaintiff must first establish
factual copying, which requires proof that the defendant “actually used the
copyrighted material to create his own work.” Id. at 141 (quoting Eng’g
Dynamics, 26 F.3d at 1340). Absent direct evidence of copying, which is hard
to come by, a plaintiff can raise an inference of factual copying from
“(1) proof that the defendant had access to the copyrighted work prior to
creation of the infringing work and (2) probative similarity.” Positive Black
Talk Inc. v. Cash Money Recs., Inc., 394 F.3d 357, 368 (5th Cir. 2004) (quoting
Peel & Co. v. Rug Mkt., 238 F.3d 391, 394 (5th Cir. 2001)), abrogated on other
grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010). A plaintiff can
show probative similarity by pointing to “any similarities between the two
works,” even as to unprotectable elements, “that, in the normal course of
events, would not be expected to arise independently.” Id. at 370 & n.9.
A strong showing of probative similarity can make up for a lesser
showing of access. Id. at 371. In fact, a plaintiff may raise an inference of
factual copying without any proof of access if the works are “strikingly
similar.” Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 113 (5th Cir. 1978); see
also 4 Melville B. Nimmer & David Nimmer, Nimmer on
Copyright § 13.02[B] (rev. ed. 2020) [hereinafter Nimmer]. But the
reverse is not true. Even with “overwhelming proof of access,” a plaintiff

2
The defendants contend, in a footnote, that Batiste hasn’t produced registration
certificates for all his works and that some of his certificates weren’t timely obtained.
“Arguments subordinated in a footnote are ‘insufficiently addressed in the body of the
brief,’ and thus are waived.” Arbuckle Mountain Ranch of Tex., Inc. v. Chesapeake Energy
Corp., 810 F.3d 335, 339 n.4 (5th Cir. 2016) (quoting Bridas S.A.P.I.C. v. Gov’t of Turkm.,
345 F.3d 347, 356 n.7 (5th Cir. 2003)).
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can’t establish factual copying “without some showing of probative
similarity.” Positive Black Talk, 394 F.3d at 371 n.10.
“Not all copying, however, is copyright infringement.” Feist, 499
U.S. at 361. If factual copying is proven, the plaintiff must then establish that
the copying is legally actionable by showing “that the allegedly infringing
work is substantially similar to protectable elements of the infringed work.”
Lee, 379 F.3d at 142. This usually requires a “side-by-side comparison” of
the works’ protectable elements “to determine whether a layman would view
the two works as ‘substantially similar.’” Nola Spice Designs, L.L.C. v.
Haydel Enters., Inc., 783 F.3d 527, 550 (5th Cir. 2015) (quoting Creations
Unlimited, Inc. v. McCain, 112 F.3d 814, 816 (5th Cir. 1997) (per curiam)).
Substantiality is measured by considering “the qualitative and quantitative
importance of the copied material to the plaintiff’s work as a whole.” Id. at
552 (citing Positive Black Talk, 394 F.3d at 373 n.12).
Altogether, a claim for copyright infringement has three elements:
“(1) ownership of a valid copyright; (2) factual copying; and (3) substantial
similarity.” Armour v. Knowles, 512 F.3d 147, 152 (5th Cir. 2007) (per
curiam). The district court homed in on the second element, factual copying.
To survive summary judgment on that element, Batiste had to raise a genuine
dispute as to either a combination of access and probative similarity or, absent
proof of access, striking similarity. See id. at 152 & n.3. The district court held
that Batiste failed to show that the defendants had access to his music or that
their songs were strikingly similar to his. Batiste challenges those
conclusions. He also argues that he need not show that the defendants’ songs
sound like his because any unauthorized sampling of a copyrighted sound
recording is infringement. We address each issue in turn.
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1.
To prove access, a plaintiff must show that “the person who created
the allegedly infringing work had a reasonable opportunity to view [or hear]
the copyrighted work.” Id. at 152–53 (quoting Peel, 238 F.3d at 394). A “bare
possibility” of access isn’t enough, nor is a theory of access “based on
speculation and conjecture.” Id. at 153 (quoting Peel, 238 F.3d at 394–95). To
withstand summary judgment, then, the plaintiff must present evidence that
is “significantly probative of a reasonable opportunity for access.” Id.
Batiste tries to prove access through “widespread dissemination” of
his music and a “chain of events” linking his music to the defendants. Other
courts have embraced these theories for proving access. See, e.g., Loomis v.
Cornish, 836 F.3d 991, 995 (9th Cir. 2016). We’ve never expressly adopted
either one. See Guzman v. Hacienda Recs. & Recording Studio, Inc., 808 F.3d
1031, 1037 n.5 (5th Cir. 2015). But we have found a work’s widespread
dissemination in a relevant market in which the defendant took part sufficient
to show a “reasonable opportunity for access.” See Peel, 238 F.3d at 395–97
(holding evidence that a rug wholesaler’s copyrighted rug design “was
widely disseminated among those involved in the United States rug trade”
was sufficient to raise a triable issue on whether the wholesaler’s competitor
had a reasonable opportunity to view the design).
The evidence required to show widespread dissemination will vary,
but courts typically consider “the degree of a work’s commercial success
and . . . its distribution through radio, television, and other relevant
mediums.” Loomis, 836 F.3d at 997. Simply put, the plaintiff must show that
the work has enjoyed considerable success or publicity. Compare ABKCO
Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 998 (2d Cir. 1983) (finding
widespread dissemination from evidence that the plaintiff’s song was the
most popular song in the United States and among the top hits in England),
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and Cholvin v. B. & F. Music Co., 253 F.2d 102, 103–04 (7th Cir. 1958) (finding
widespread dissemination from evidence that the plaintiffs sold more than
200,000 records and their song received nationwide airplay), with Art Attacks
Ink, LLC v. MGA Ent. Inc., 581 F.3d 1138, 1144 (9th Cir. 2009) (holding
evidence that the plaintiff sold 2,000 t-shirts per year and displayed its design
at county fairs and on the internet was insufficient to show widespread
dissemination). For musical works, plaintiffs often prove widespread
dissemination with evidence of frequent airplay, “record sales, awards,
billboard charts, or royalty revenues.” Guzman, 808 F.3d at 1038.
To support his widespread-dissemination theory, Batiste says that his
music has been broadcast on local radio stations; sold in record stores, on his
website, and at live shows; and digitally downloaded or streamed through
online services such as iTunes, Spotify, and YouTube. But the evidence tells
a different story. Although Batiste claims that his music was sold nationwide,
the record shows meager sales in only a handful of local stores. And he admits
that his downloads and streams—which didn’t begin until 2013, after the
defendants had released all but one of the allegedly infringing songs—have
been “sparse.” All in all, dissemination of Batiste’s music was quite limited.
Batiste’s chain-of-events theory fares no better. He claims that
Macklemore and Lewis once performed in New Orleans at Siberia Bar, which
is “not too far” from a record store that sold his music. Evidence that the
defendants were near a store that sold Batiste’s records creates only a “bare
possibility” of access. See Loomis, 836 F.3d at 998 (holding evidence that the
defendants spent ten days in Santa Barbara “when the local music scene was
saturated” with the plaintiff’s award-winning song was insufficient to show
access); 4 Nimmer, supra, § 13.02[A] (explaining that “evidence showing
that [the defendant] was present in a room with 15,000 records, including one
containing the plaintiff’s song” was insufficient to show access (citing
Palmieri v. Estefan, 35 U.S.P.Q.2d 1382, 1383 (S.D.N.Y. 1995))).
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Macklemore and Lewis might have spent a night in New Orleans in
2011, but they testified that they didn’t visit any record stores in town. They
also said that neither of them had heard of Batiste or listened to his music
before this lawsuit. To find access on this theory, then, we would have to
assume that the defendants were lying. Yet Batiste offered no evidence to
dispute their testimony. See Guzman, 808 F.3d at 1039 n.9 (“Courts have
rejected efforts by plaintiffs to establish access in the face of . . . sworn
testimony [that the defendant has never heard of the plaintiff’s work] unless
there is probative evidence to the contrary.” (quoting Gal v. Viacom Int’l,
Inc., 518 F. Supp. 2d 526, 539 (S.D.N.Y. 2007))).
Finally, Batiste argues that access can be inferred because the
defendants have sampled other artists’ recordings and the Pro Tools session
used to create the allegedly infringing work “Thrift Shop” displays an error
message that says “audio files are missing.” From these facts, Batiste asks us
to presume that among the “missing” files are samples of his recordings.
We won’t jump to that conclusion. The defendants’ sampling of other
artists’ recordings hardly proves that they had access to Batiste’s works. See
Armour, 512 F.3d at 154 n.15 (finding evidence that the defendant settled a
copyright suit with a different artist was irrelevant). As for the Pro Tools
message about missing files, Lewis testified that this is a “common message”
that appears whenever files are moved across hard drives. It doesn’t mean
that those files are, in fact, missing. To infer access on this theory, we would
have to make several “leaps of logic” on the basis of little more than
“speculation and conjecture.” Id. at 155. And that’s something we can’t do.
See Ferguson, 584 F.2d at 113.
On the record before us, no reasonable jury could find more than a
bare possibility that the defendants had an opportunity to hear and copy
Batiste’s music. Thus, Batiste failed to create a genuine dispute on access.
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2.
Without proof of access, Batiste’s must show “striking similarity”
between the defendants’ songs and his. To meet that burden, he must point
to “similarities . . . that can only be explained by copying, rather than by
coincidence, independent creation, or prior common source.’” Guzman, 808
F.3d at 1039 (quoting Selle v. Gibb, 741 F.2d 896, 904 (7th Cir. 1984)).
Striking similarity isn’t “merely a function of the number of identical
notes” in two songs. Id. at 1040 (quoting Selle, 741 F.2d at 903). To be
“striking,” the similarities must “appear in a sufficiently unique or complex
context.” Id. at 1039 (quoting Selle, 741 F.2d at 904). Evidence of complexity
or uniqueness is crucial in cases involving popular music, because most songs
“are relatively short and tend to build on or repeat a basic theme.” Id.
(quoting Benson v. Coca-Cola Co., 795 F.2d 973, 975 n.2 (11th Cir. 1986) (per
curiam)). For example, even when two songs shared “virtually identical”
sixteen-word openings and similar melodies, rhythmic patterns, lyrical
themes, and instrumental accompaniment, we held that the songs weren’t
strikingly similar because “many other songs expressed the same phrases,
attitudes, and expressions,” and the similarities “were either common to
the . . . genre or common in other songs.” Id. at 1039–40.
Batiste doesn’t even try to meet the striking-similarity standard. He
argues instead that, considering his “overwhelming evidence of access,” the
district court erred by requiring him to show striking similarity. Given
Batiste’s refusal to offer any argument on striking similarity, either below or
on appeal, this issue is forfeited. See Adams v. Unione Mediterranea di Sicurta,
364 F.3d 646, 653 (5th Cir. 2004). Even if Batiste had preserved this issue,
though, he offered no admissible evidence of similarities aside from audio
recordings of the songs themselves. After carefully listening to each of
Batiste’s songs and the defendants’ song that allegedly infringes it, we
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conclude that the songs “are in no way similar enough” for a reasonable jury
to find striking similarity. Armour, 512 F.3d at 156 n.19. Because Batiste can’t
show access or striking similarity, he can’t prove factual copying.
3.
Before moving on, we address Batiste’s argument that his claims for
infringement of his sound recordings are subject to a different analysis than
those for infringement of his musical compositions. To establish
infringement of his sound recordings, as opposed to their underlying
compositions, Batiste contends that he need only show that the defendants
sampled his songs—not that the songs “sound” similar.
True, sampling a recorded song implicates two distinct copyrights:
one in the sound recording and one in the underlying composition. See 17
U.S.C. § 102(a)(2), (7); VMG Salsoul, 824 F.3d at 877. The copyright of a
musical composition, which typically comprises sheet music and lyrics,
“protects the generic sound that would necessarily result from any
performance of the piece.” Newton v. Diamond, 204 F. Supp. 2d 1244, 1249
(C.D. Cal. 2002), aff’d, 388 F.3d 1189 (9th Cir. 2004). By contrast, the
copyright of a sound recording, which is the aggregation of sounds captured
in a recording of a particular performance, protects “the elements unique to
[that] performance,” Newton, 388 F.3d at 1193—that is, “how the musicians
played the notes,” VMG Salsoul, 824 F.3d at 879. But this distinction makes
no difference here.
Batiste relies on Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792
(6th Cir. 2005), which adopted a bright-line rule that any unauthorized
sampling of a sound recording, no matter how trivial, is infringement. Id. at
800–01. The Sixth Circuit focused on 17 U.S.C. § 114(b), which states that
the rights in a sound-recording copyright “do not extend to the making or
duplication of another sound recording that consists entirely of an
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independent fixation of other sounds, even though such sounds imitate or
simulate those in the copyrighted sound recording.” Id. at 800 (quoting 17
U.S.C. § 114(b)). In other words, § 114(b) “makes clear that statutory
protection for sound recordings extends only to the particular sounds of
which the recording consists” and won’t prevent “imitation of a recorded
performance,” even if “one performer deliberately sets out to simulate
another’s performance as exactly as possible.” H.R. Rep. No. 94-1476, at
106 (1976), as reprinted in 1976 U.S.C.C.A.N. 5659, 5721. Thus, an artist
infringes a copyrighted sound recording by sampling “all or any substantial
portion of the actual sounds” from that recording. Id.
Rather than interpret § 114(b) as a limitation on the copyright owner’s
rights, the Sixth Circuit found that it dispensed with the substantial-similarity
element for infringement of sound recordings. Bridgeport, 410 F.3d at 800–
01. Fixing on the word “entirely” in § 114(b), the court reasoned that if a new
recording is exempt from liability when no sounds are sampled (i.e., the new
recording “consists entirely of an independent fixation of other sounds”),
then a new recording constitutes infringement if any sounds are sampled. Id.
Bridgeport has been widely criticized. See, e.g., VMG Salsoul, 824 F.3d
at 880–87 (disagreeing with Bridgeport and creating a circuit split); Saregama
India Ltd. v. Mosley, 687 F. Supp. 2d 1325, 1341 (S.D. Fla. 2009) (“Section
114(b) does not seem to support the distinction between sound recordings
and all other forms of copyrightable work that the Bridgeport court
imposes.”), aff’d, 635 F.3d 1284 (11th Cir. 2011); 4 Nimmer, supra,
§ 13.03[A][2][b] (explaining that Bridgeport “rests on a logical fallacy” and
advising “courts not bound by that ruling” to consider whether “the sampled
portions are substantially similar to plaintiff’s work”). We need not decide
whether to adopt Bridgeport’s rule here, however, because that rule doesn’t
relieve plaintiffs of proving factual copying.
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In arguing that he need not show similarity to prove infringement of
his sound recordings, Batiste conflates probative similarity with substantial
similarity. Probative similarity raises an inference of factual copying;
substantial similarity “dictates whether the factual copying, once
established, is legally actionable.” Positive Black Talk, 394 F.3d at 370.
Bridgeport dealt only with the substantial-similarity element. 410 F.3d at 798.
Factual copying wasn’t at issue there—the defendants admitted to sampling
the plaintiff’s recording. Id. at 796.
Unlike the plaintiff in Bridgeport, Batiste didn’t get an admission from
the defendants that they sampled his recordings. Nor did he present evidence
to create a genuine dispute on that issue. Cf. VMG Salsoul, 824 F.3d at 877
(finding genuine dispute on factual copying when a witness testified that, in
his presence, the defendant “directed an engineer to introduce sounds from
[the plaintiff’s recording] into [the defendants’ recording],” and the plaintiff
submitted reports from experts who concluded that the defendants sampled
the plaintiff’s recording). So even if we were to follow Bridgeport, Batiste’s
claims would still fail on the factual-copying element.
In sum, because Batiste didn’t produce evidence for a reasonable jury
to infer that the defendants had access to his music or to find striking
similarities between his songs and those of the defendants, Batiste can’t
prove factual copying. Without proof that the defendants copied his works,
Batiste’s copyright claims fail. Thus, the district court correctly granted
summary judgment for the defendants.
III.
Now we turn to Batiste’s second appeal, which challenges the district
court’s judgment awarding attorneys’ fees and costs to the defendants. The
defendants moved for fees and costs under the Copyright Act, 17 U.S.C.
§ 505, and asked the court to hold Batiste’s attorney, DaShawn Hayes, jointly
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and severally liable for the fee award as a sanction under 28 U.S.C. § 1927.
The district court granted the motion and awarded the defendants
$125,427.81 “to be paid by Plaintiff Paul Batiste and his counsel.” Batiste
contends that the district court erred not only in awarding fees to the
defendants under the Copyright Act but also in holding his attorney jointly
and severally liable for the fee award.
A.
We first address the district court’s award of fees under the Copyright
Act. We review an award of attorneys’ fees under the Copyright Act for abuse
of discretion. Hunn v. Dan Wilson Homes, Inc., 789 F.3d 573, 588 (5th Cir.
2015). Whether the district court applied an incorrect legal standard in
awarding fees is a question of law reviewed de novo. Compaq Comput. Corp.
v. Ergonome Inc., 387 F.3d 403, 411 (5th Cir. 2004).
Under § 505 of the Copyright Act, a district court may award
reasonable attorneys’ fees and costs to the prevailing party. See 17 U.S.C.
§ 505. That statute “‘clearly connotes discretion’ and eschews any ‘precise
rule or formula’ for awarding fees.” Kirtsaeng v. John Wiley & Sons, Inc., 136
S. Ct. 1979, 1985 (2016) (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 533–
34 (1994)). In exercising this discretion, courts must make a “particularized,
case-by-case assessment” and “may not treat prevailing plaintiffs and
prevailing defendants any differently.” Id. The Supreme Court has listed
“several nonexclusive factors” for courts to consider: “frivolousness,
motivation, objective unreasonableness[,] and the need in particular
circumstances to advance considerations of compensation and deterrence.”
Id. (alteration in original) (quoting Fogerty, 510 U.S. at 534 n.19).
In deciding whether to award fees, courts “should give substantial
weight to the objective reasonableness of the losing party’s position.” Id. at
1983. But reasonableness is “only an important factor in assessing fee
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applications—not the controlling one.” Id. at 1988. Courts have discretion to
award fees “even when the losing party advanced a reasonable claim or
defense.” Id. at 1983. For instance, a court may award fees “because of a
party’s litigation misconduct,” regardless of “the reasonableness of his
claims or defenses,” or “to deter repeated instances of copyright
infringement or overaggressive assertions of copyright claims, again even if
the losing position was reasonable.” Id. at 1988–89.
Batiste doesn’t challenge the amount of fees awarded but rather the
decision to award fees in the first place. He argues that the district court erred
because it awarded fees without any evidence that his claims were
“frivolous” or “brought in bad faith.” In Fogerty, however, the Supreme
Court rejected the practice of requiring a “showing of bad faith or
frivolousness” before prevailing defendants could recover fees. 510 U.S. at
521 n.6, 533–34. So even if Batiste’s suit wasn’t frivolous or brought in bad
faith, the district court still had discretion to award fees to the defendants.
We find no abuse of discretion here. The district court properly
considered the objective unreasonableness of Batiste’s claims as well as other
relevant factors, such how Batiste litigated this action. Indeed, the magistrate
judge’s report, which the district court adopted, detailed many instances of
litigation misconduct, including Batiste’s submission of a ghost-written
expert report, which the court considered fraudulent; his attempt to resubmit
the excluded report in his own name; his practice of repeatedly amending his
complaint to assert additional claims of infringement in response to the
defendants’ motions to dismiss; his many discovery abuses; and his disregard
for the court’s pretrial orders.
The district court also had discretion to award fees “to deter
[Batiste’s] overaggressive assertions of copyright claims.” Kirtsaeng, 136 S.
Ct. at 1989. Batiste has filed at least five other copyright actions. And not long
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before he filed this one, he pressed forward with similarly weak claims, which
prompted a warning from the district court. In Batiste v. Najm, 28 F. Supp.
3d 595 (E.D. La. 2014), Batiste sued dozens of defendants, claiming that
sixty-three of their songs infringed forty-five of his. Id. at 597–98. Just as he
did here, Batiste relied on an expert report signed by Milton,
3
which
addressed allegations of sampling. Id. at 625. The court cautioned Batiste that
there was “serious concern of a good faith factual basis” for his sampling
claims. Id. at 625–26. But Batiste ignored that warning. See Batiste v. Najm,
No. 13-5463, 2015 WL 12559872, at *2 (E.D. La. Apr. 23, 2015). In the end,
the district court dismissed all but three claims. Najm, 28 F. Supp. 3d at 626.
In doing so, the court chided Batiste for “loading his complaint with over a
hundred claims that had no realistic chance of success.” Id.
Undeterred by the ruling in Najm, Batiste took aim at new targets,
Macklemore and Lewis. But it’s the same old song: his claims had no realistic
chance of success. Given the objective unreasonableness of Batiste’s claims,
his history of litigation misconduct, and his pattern of filing overaggressive
copyright actions, the district court didn’t abuse its discretion in awarding
fees to the defendants under the Copyright Act.
B.
Finally, Batiste challenges the district court’s decision to hold his
attorney, Hayes, jointly and severally liable for the fee award as a sanction.
Batiste argues that the court didn’t make the findings required for imposing
sanctions against Hayes under 28 U.S.C. § 1927. That may be true, but we
lack jurisdiction to review this issue because Hayes didn’t appeal.

3
Milton’s report in Najm is very similar to the ghost-written report that the district
court excluded. In fact, Milton purportedly prepared his report in Najm using the same
computer software programs that he admitted not having access to here.
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Under Rule 3 of the Federal Rules of Appellate Procedure, a notice of
appeal must “specify the party or parties taking the appeal by naming each
one in the caption or body of the notice.” Fed. R. App. P. 3(c)(1)(A). This
requirement is jurisdictional. McCardell v. U.S. Dep’t of Hous. & Urb. Dev.,
794 F.3d 510, 515 (5th Cir. 2015). We liberally construe Rule 3, however, and
won’t dismiss an appeal for “failure to name a party whose intent to appeal
is otherwise clear from the notice.” Kinsley v. Lakeview Reg’l Med. Ctr. LLC,
570 F.3d 586, 589 (5th Cir. 2009) (quoting Fed. R. App. P. 3(c)(4)).
The question, then, is whether the unnamed party’s intent to appeal
is “objectively clear” from the notice. Fed. R. App. P. 3(c) advisory
committee’s note to 1993 amendment. For example, in Garcia v. Wash, 20
F.3d 608 (5th Cir. 1994) (per curiam), an attorney’s intent to appeal was clear
from the notice because the judgment at issue ordered sanctions solely
against the attorney. Id. at 610. For that reason, there was no confusion as to
whether the attorney, his client, or both were appealing. Id.
But the same is not true for a judgment that orders both an attorney
and his client to pay fees. In Payne v. University of Southern Mississippi, 681 F.
App’x 384 (5th Cir. 2017) (unpublished),
4
we lacked jurisdiction to review a
judgment ordering an attorney to pay fees under 28 U.S.C. § 1927 because
the attorney wasn’t named in the notice and the orders being appealed

4
Although not binding, Payne is “highly persuasive” because it addressed the same
situation that we confront here. United States v. Pino Gonzalez, 636 F.3d 157, 160 (5th Cir.
2011). Payne is also consistent with many other circuits that have considered this issue. See,
e.g., King v. Burr, 757 F. App’x 178, 180 (3d Cir. 2018) (unpublished) (lacking jurisdiction
to consider sanctions against attorney because notice of appeal didn’t name attorney as
party or otherwise reveal attorney’s intent to appeal); Reed v. Great Lakes Cos., 330 F.3d
931, 933 (7th Cir. 2003) (same); Bogle v. Orange Cnty. Bd. of Cnty. Comm’rs, 162 F.3d 653,
660–61 (11th Cir. 1998) (same); Maerki v. Wilson, 128 F.3d 1005, 1006–08 (6th Cir. 1997)
(same); Agee v. Paramount Commc’ns, Inc., 114 F.3d 395, 399–400 (2d Cir. 1997) (same).
Thus, the clear weight of authority shows that Payne is correct.
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awarded fees against both the attorney and his client. Id. at 387. As a result,
there was no sign that the attorney was also appealing those orders rather
than merely representing his client. Id.
The notice of appeal here is fatally deficient. It lists only Batiste as the
party appealing; it doesn’t mention Hayes in the caption or body. And just as
in Payne, Hayes’s intent to appeal isn’t clear from the notice because the
judgment being appealed ordered both Hayes and Batiste to pay fees.
Nothing in the notice suggests that Hayes intended to take part as an
appellant rather than as Batiste’s attorney. As a result, we lack jurisdiction to
review the sanction against Hayes.
Because we lack jurisdiction over that issue, reciting the instances of
Hayes’s misconduct wouldn’t serve much purpose. Still, we’re troubled
that, in addition to his other lapses, Hayes signed and filed a summary-
judgment opposition that relied on a report he either knew or, had he
conducted a reasonable inquiry, likely should have known was prepared
entirely by Batiste rather than the expert who signed it. Even after the expert
admitted that Batiste did all the work and that he didn’t have access to the
necessary software, Hayes still insisted that the expert prepared the report.
Providing vigorous representation is one thing; making false or misleading
statements to a court is another. While we express no opinion as to whether
Hayes’s behavior was sanctionable, we take this opportunity to remind Hayes
of his ethical and professional obligations as a lawyer and advise him to take
those obligations seriously. We certainly do.
IV.
In conclusion, we lack jurisdiction to review the fee award against
Hayes, but the district court’s judgments are otherwise AFFIRMED.
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