Identifying Popular Songs Does Not Require Expert Testimony

In plaintiff ASCAP's suit for copyright infringement of musical works, admitting testimony by the plaintiff's "independent investigator" who visited the defendant's establishment that eight songs he heard played at the facility were covered by plaintiff's copyright; the testimony was proper lay opinion testimony under FRE 701 because "[i]dentifying popular songs does not require 'scientific, technical, or other specialized knowledge'" of an expert's opinion testimony, in Range Road Music, Inc. v. East Coast Foods, Inc., __ F.3d __ (9th Cir. Feb. 16, 2012) (Nos. 10–55691, 10–55800)

Does the identification of an infringing song require the presentation of expert testimony? The Ninth Circuit recently examined a case in which the plaintiff alleged the defendants directly copied eight songs publicly played at the defendant's establishment. The circuit noted that identification of the songs that allegedly infringed could be done by a lay, rather than expert, witness.

In the case, plaintiff music companies were members of the American Society of Composers, Authors, and Publishers (ASCAP). They brought a copyright infringement claim regarding their musical compositions which were publicly performed at the defendant's west coast restaurant venue. Supporting this infringement claim was testimony by the plaintiff's investigator (Greene) who took :

notes of his visit [to defendant's establishment], and prepared a detailed investigative report indicating whether copyright infringement was occurring at the venue. Greene, who considers himself knowledgeable about every genre of music “except heavy metal and explicit rap,” had conducted over 300 investigations for ASCAP when he was retained for the [investigation of the defendant's venue].

Greene visited ... on May 30, 2008. During his visit, he surreptitiously noted the musical compositions performed by that night's live musical act, Azar Lawrence & the L.A. Legends, as well as songs played from a CD over the lounge's sound system. During the live performance, he was able to personally identify the jazz compositions “All or Nothing at All,” “It's Easy To Remember,” “My Favorite Things,” and “Be–Bop,” all popularly associated with John Coltrane. In several cases, the band leader announced the titles of the songs before playing them.
Range Road Music, __ F.3d at __.

In response to summary judgment proceeding in the case, the plaintiff presented as evidence of the alleged infringement investigator Greene's report and testimony at deposition. One objection of the defendant to this evidence was that the witness's "identification of copyrighted compositions performed" at the defendant's venue had been supplied almost entirely by Green's testimony as to eight infringing songs he heard publicly performed during his visit. Defendant argued the trial court's grant of summary judgment based in part on this evidence was erroneous as it was admitted testimony by a lay witness, when song identification should require testimony by experts.

The Ninth Circuit disagreed with this assessment of whether expert testimony was necessary for purposes of identification of songs:

The district court did not abuse its discretion by relying on Greene's report and declaration. Green's report and declaration contained his competent percipient witness testimony as a visitor to the [defendant's establishment]. Identifying popular songs does not require “scientific, technical, or other specialized knowledge.” On the contrary, identifying music is a reflexive daily process for millions of radio listeners, amateur karaoke singers, and fans of Name That Tune reruns. Moreover, many of Greene's identifications did not even require him to tax his memory: the live band announced the titles of several of the compositions they covered, and Greene transcribed other titles directly from a CD jewel case. Clearly, the district court correctly determined that Greene's evidence was admissible.
Range Road Music, __ F.3d at __ (citing FRE 701, FRE 702, FRE 702 ACN (“[T]he distinction between lay and expert witness testimony is that lay testimony results from a process of reasoning familiar in everyday life, while expert testimony results from a process of reasoning which can be mastered only by specialists in the field.”) (quotation marks and citations omitted)).

Range Road Music should not be stretched too far. While day-to-day popular song identification at a public performance might be done by lay witness based on common knowledge, the same is likely not true if the witness is asked to opine on whether there was a "substantial similarity" between an allegedly infringed work and the infringing work. See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000) (noting that in applying one test for copyright infringement - "the extrinsic test requires that the plaintiff identify concrete elements based on objective criteria. The extrinsic test often requires analytical dissection of a work and expert testimony.") (citations omitted)(emphasis added)).


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