Lorente-Garcia v. Giraldo-Navarro et al. was a case in the Southern District of Florida concerning two songs: 1998’s “Algo Diferente,” and 2021’s “Don’t Be Shy.” The composer of the earlier song filed suit against the singers of the new song, alleging copyright infringement. Unfortunately, plaintiff relied on a so-called “expert witness” who had been a player in the music industry but lacked any musicology training or expertise.
The defendants brought a motion for summary judgment and a motion to exclude the plaintiff’s expert on two grounds: 1) his testimony was inadequate and thus could not be used to demonstrate substantial similarity, and 2) the plaintiff failed to sufficiently allege that defendants had access to her song.
The plaintiff hired an expert witness named Richie Viera, whose resume included a tenure as a vice president at Capitol Records and a handful of prior expert-witness gigs. Viera’s 123-page report did not employ the traditional means of comparing music in a copyright infringement case, like making an original transcription and comparing the melody, rhythm, and chord structure. Instead, Viera relied on the plaintiff’s transcriptions, opined that to his “ears” the songs had substantial similarity, and made the legal conclusion that the plaintiff’s work had been infringed.
The court rejected this argument for several reasons, the first one being Viera’s lack of sufficient expertise. The court noted that expertise can be attained through experience rather than formal schooling, but such an expert would have to demonstrate how their experience is relevant to the case in question. Viera didn’t have any formal music education and lacked knowledge of basic musical terms at deposition, going so far as to say such definitions were not his concern. Rather, his expertise was in the business side of the music industry.
The court was likewise unimpressed by Viera’s report, expressing dissatisfaction with the fact that Viera hadn’t performed an original transcription of the two tunes in his report. Because this was far outside the accepted means of comparing music in the scientific community, the court employed the Daubert test to decide how much weight to give to Viera’s analysis.
Daubert v. Merrell Dow Pharmaceuticals was a decision from 1993 that is used to determine the qualifications necessary for a proposed expert’s testimony to be considered. One of the prongs of the test is whether the expert’s methodology is accepted by peers and can be reproduced. Viera did not say how he reached his conclusions in a way that any other expert could reproduce. In fact, he answered questions about his methodology by saying, “I hold an instinct, something that was granted to me by God. I have a unique perception, something that perhaps very few people in the music industry have.” (The implication being that his Only Other Peer was too busy to testify.)
As part of the Daubert analysis, the court also needed to determine whether Viera’s opinion would assist a jury or other fact finder in reaching a decision. Because Viera’s methodology — listening to a song and giving an opinion — was something the fact finder could do for itself, the court determined that his testimony would not benefit a jury or judge.
As a matter of summary judgment, the plaintiff also hadn’t shown sufficient access to his song by the defendants. There had been about 2,800 Spotify downloads of the plaintiff’s song, which did not demonstrate anything but passive access to it. Further, there was no indication that the defendants had ever been at any concert or other event at which the plaintiff had performed.
The court granted the motion for summary judgement and the motion to exclude Viera’s testimony, and the case was dismissed.
The moral of this case is two-fold: Don’t choose for your expert witness a person who seems impressive but lacks the traditional indicators of being an expert in the relevant subject matter. Even though Viera had testified in other lawsuits, those other lawsuits were all related to one another and they were about the value of the music, not a copyright analysis like what was required in this case.
