Richardson v. Kharbouch was a case we wrote about in February of 2024 that hinged on the difference between copyright in a composition and copyright in a sound recording.
The case involved an ambitious, teen hip-hop artist known as Hotwire the Producer (Eddie Richardson), who crafted a unique beat that he later identified in the chart-topping song “Ain’t Worried About Nothin’” (“AWAN”) by artist French Montana (Karim Kharbouch).
The day after Richardson heard AWAN, he registered the sound recording of his beat, but not the underlying musical composition, before filing suit against Kharbouch for infringement under the Copyright Act in the Northern District of Illinois. After exchanging in discovery, including the depositions of expert witnesses, Kharbouch brought a motion for summary judgment.
The district court found that because Richardson’s original work had only been registered as a sound recording, it could only prevent a third party from directly copying the recording of the work, or as the court said, the “digital elements” of the recording. If Richardson had registered the underlying composition, the district court said, the striking similarity between the two works would be sufficient to bring an infringement claim. As such, Kharbouch’s motion for dismissal on summary judgment was granted. Additionally, the district court awarded to defendant Kharbouch his costs, but not statutory attorney’s fees, because it found Richardson’s claim was not frivolous.
Richardson appealed to the Seventh Circuit, claiming the district court erred by failing to admit his unopposed factual allegations. Kharbouch counter-appealed, seeking the attorney’s fees denied to him by the district court.
When considering the reason for the appeal, the Seventh Circuit cited Rule 56.1, which governs the admission of undisputed facts. That rule requires each party to respond to each alleged fact made by the other side at the risk of it being admitted should they not. In this case, neither side responded to the other’s statements. So the appellate court essentially delivered “a pox on both your houses,” and declined to admit Richardson’s undisputed statements, saying it would not hold one side responsible for breaching the rule but not the other.
In reviewing Richardson’s claim of infringement as a matter of first impression, the Seventh Circuit looked to other circuits for guidance. The Ninth Circuit had held “[a] new recording that mimics the copyrighted recording is not an infringement, even if the mimicking is very well done, so long as there was no actual copying.” The Fifth Circuit held that plaintiffs with a sound recording copyright must “show that the defendants sampled his songs—not that the songs ‘sound’ similar.” And the Sixth Circuit found the Copyright Act’s definition of “sound recording” leaves “the world at large … free to imitate or simulate the creative work fixed in the recording so long as an actual copy of the sound recording itself is not made.”
During discovery, Richardson had offered the testimony of a producer in the music industry who opined that the songs were very, very similar, but did not offer any evidence going to the heart of the issue: whether the actual recording had been copied or “sampled.” Consistent with the other circuits’ decisions – and despite the fact that a listener might agree that the songs sounded very, very similar – the Seventh Circuit held that because Richardson had failed to provide any proof of actual, digital copying, his claim for infringement of his sound recording failed.
The appellate court affirmed the district court’s ruling in favor of summary judgment against Richardson. It also affirmed denial of attorney’s fees for defendant Kharbouch, reasoning that Richardson had failed to appreciate the technical differences between a sound recording and a music composition copyright, making him wrong but not frivolous.
Richardson was only 16 years old when he encountered success in the form of being copied by a more successful artist. When he learned of the infringing conduct of French Montana he did what he thought was right, which was to file (by himself, without an attorney) for registration of the sound recording. If he had the know-how or resources to obtain a copyright attorney, he might have had an enforceable copyright infringement claim, and enjoyed a substantial portion of the song’s success.
