Music Experts Allowed to Opine on Prior Art

This copyright-infringement action concerns whether two songs, identically titled and composed three years apart, are so strikingly similar that the later composition cannot reasonably be attributed to independent and original creation.

In February or March 2015, Jordan Vincent, Christopher Miranda and Rosco Banlao wrote the song Dancing with a Stranger (also known as Dancing With Strangers) ("JV"). On August 7, 2018, Samuel Smith, James Napier, Tor Hermansen and Mikkel Eriksen wrote another song also titled Dancing with a Stranger ("SS").

Plaintiff retained Dr. Alexander Stewart ("Dr. Stewart"), a professor of music, to examine and compare JV and SS and to conduct a preliminary search for earlier compositions containing similar expression (also known as "prior art").

Defendants retained experts, Dr. Lawrence Ferrara, a musicologist and full-time Professor of Music at New York University's Steinhardt School; and Dr. Ronald Sadoff ("Dr. Sadoff"), a Professor of Music at New York University's Steinhardt School.

Music Expert Witnesses

Dr. Lawrence Ferrara is a musicologist and a Full Professor of Music and the Director Emeritus of all studies in Music and the Performing Arts in New York University’s Steinhardt School.

Want to know more about the challenges Lawrence Ferrara has faced? Get the full details with our Challenge Study report.

Dr. Ronald H. Sadoff is the Associate Professor of Music and Director of the program in “Screen Scoring” in the Department of Music and the Performing Arts Professions in the Steinhardt School at New York University. He composed the score for John Canemaker’s Oscar-winning film, The Moon and the Son: An Imagined Conversation.

Get the full story on challenges to Ronald Sadoff’s expert opinions and testimony with an in-depth Challenge Study.

Alexander Stewart, Ph.D. is an experienced musicologist, researcher, and consultant in music copyright. He has worked on hundreds of matters involving musical authorship, including some that have resulted in groundbreaking and landmark court decisions.

Stewart is the professor of music, the director of the Jazz Studies Program, and former director of Latin American and Caribbean Studies at the University of Vermont.

Gain a comprehensive understanding of Alexander Stewart’s qualifications and casework history with his Expert Witness Profile report.

Discussion by the Court

Plaintiff sought to exclude the testimony and opinions of Drs. Lawrence Ferrara and Ronald Sadoff on extrinsic and striking similarity and prior art under FRE 702(c)-(d).

Plaintiff broadly asserted that Ferrara and Sadoff used "improper methodology in violation of . . . 702(c-d)." That blanket assertion is not enough to warrant excluding Defendants' expert evidence. An objection must state the specific grounds on which it rests as to each particular item of evidence. The Court cannot assess a methodological challenge that is never applied to any particular opinion that Plaintiff identifies. The Court therefore overruled Plaintiff's blanket objections.

Defendants, for their part, sought to exclude portions of Stewart's declaration under FRE 702(b) or (c). They did not, however, explain why Stewart's testimony is not "based on sufficient facts or data," or is not based on "reliable principles and methods."

Defendants' blanket evidentiary objections, untethered to any specific portion of Stewart's declaration, identify nothing for the Court to rule on.

Held

The Court overruled the objections of both parties and admitted the testimony of Lawrence Ferrara, Ronald Sadoff and Alexander Stewart.

Key Takeaway

The boilerplate, generalized objections are inadequate and tantamount to making no objection at all.

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