Musicology Expert Not Allowed to Opine on the Songs' Success
Posted on August 21, 2026 by Shuva Guha Thakurta
This action concerns the copyright infringement of a musical property—composed of a musical composition and sound recording—created by four Grammy Award–winning artists (collectively, "Artists") after Kanye Omari West, a/k/a "Ye" ("West"), included the Artists' musical composition and sound recording MSD PT2 (the "Work") in his songs Hurricane and Moon, the two leading tracks of his recent album Donda.
Plaintiff asked the Court to exclude the opinions of Defendants' experts, Renee Howdeshell, Nathaniel Sloan, Cedar Boschan, and Ray Daniels, whereas Defendants filed motions in limine to exclude the testimony of Plaintiff's expert Joe Bennett and Plaintiff's rebuttal expert Judith G. Finell.
Accounting Expert Witnesses
Renee Katherine Howdeshell is a Certified Public Accountant who specializes in financial analysis and calculations involving disputes. She works with a broad range of firms and industries in both litigation and non-litigation settings.
Cedar M. Boschan is a forensic accountant with decades of specialized experience in IP and entertainment damages claims, litigation support, and other accounting, valuation, and economic expert consulting services to clients.
Music Industry Expert Witness
Ray Daniels has over two decades of experience in the commercial music industry, including A&R leadership, producer relations, and evaluation of creative contributions on major releases.
Musicology Expert Witnesses
Nathaniel Sloan, PhD holds a Doctor of Philosophy degree in Historical Musicology from Stanford University, and a Bachelor of Arts degree in Music Theory, Composition, and History from Brown University. He is the co-author of the book Switched on Pop: How Pop Music Works, and Why it Matters, published by Oxford University Press, and the author of multiple peer-reviewed articles exploring topics in 21st century popular music, 20th century jazz, and other related fields.
Judith Greenberg Finell is a musicologist and the president of Judith Finell Music Services Inc., a music consulting firm in New York and Los Angeles, founded 25 years ago in New York. Since then, she has served as a consultant and expert witness involving music copyright infringement, advised on artist career and project development, and a wide variety of music industry topics.
Dr. Joe Bennett has been analyzing and transcribing popular music for international publication since 1994. As a forensic musicologist, Bennett ’s past clients include Universal Music Publishing, Warner/Chappell Music Publishing, APG, 88Rising, DLMDD, JWT, BBH, Loeb & Loeb LLP, Simpson & Marwick LLP, Edwards Wildman Palmer LLP, Swan Turton LLP, and Weber Shandwick, as well as many individual songwriters, publishers, record labels and corporate clients.
Discussion by the Court
1. Plaintiff's Motion in Limine to Exclude Opinions of Renee Howdeshell
Plaintiff argued that Defendants failed to timely disclose Howdeshell's opinion and that the opinion relies on documents Defendants previously failed to produce.
Because Defendants should have provided Howdeshell's opinion under the initial expert deadline rather than the rebuttal deadline, the Court granted Plaintiff's first motion in limine. Plaintiff correctly identifies that the Copyright Act places the burden of proof on Defendants with respect to deductible expenses.
The Court required the parties to disclose affirmative expert opinions—that is, opinions supporting portions of the case about which a party has the burden of proof—by December 30, 2025. But Defendants provided Howdeshell's report on January 16, 2026, indicating that she was solely a rebuttal witness.
Defendants' disclosure of Howdeshell's report was untimely and prejudicial. The plain language of the Copyright Act places the burden of proof regarding deductible expenses on the Defendant; thus, an expert report regarding that information would not appropriately constitute rebuttal testimony. Despite Defendants' admonition to do so, the Court will not ignore the plain language of the statute or the Federal Rules.
Defendants' untimely disclosure left Plaintiff without the opportunity to rebut Howdeshell's opinion, which is highly prejudicial to Plaintiff's case. Accordingly, the Court granted Plaintiff's first motion in limine and excluded the testimony of Howdeshell.
2. Plaintiff's Motion in Limine to Exclude Opinions of Dr. Nathaniel Sloan
Plaintiff next asked the Court to exclude Nathaniel Sloan's opinions because his apportionment opinion relies on non-musical principles and assigns percentages and ranges in an unsupportable way.
Because Sloan's opinions are not the product of reliable principles and methods, the Court must exclude them. He has prepared two other expert witness reports previously, both for Defendants' counsel. Much of Sloan's report focuses on apportioning the factors that contributed to the success of Hurricane and Moon, and Sloan ultimately apportioned success as follows: celebrity and branding (25-30%), marketing and promotion (20-25%), lyrical content (15-20%), vocal character (10-15%), production and arrangement (10-15%), and compositional elements (5-10%). He offered no formula or detailed explanation as to how he decided on those figures. Without more, the Court cannot deem Sloan's apportionment analysis reliable. As Plaintiff identifies, Sloan failed to explain how he calculated those ranges, provided little by way of replicability, and offered no peer-reviewed methodology.
Despite Defendants' contention otherwise, the issue is not just that Sloan lacks a mathematical formula—it is that his conclusion that "celebrity, branding, promotion, lyrics, vocals, production, and arrangement were more significant than compositional elements in driving the songs' success," is based on only his say-so. An expert "cannot issue an expert opinion simply on his own ipse dixit," even if he is generally qualified.
3. Plaintiff's Motion in Limine to Exclude Opinions of Cedar Boschan
Plaintiff argued that Boschan's opinion contravenes controlling law and concerns only the composition of MSD PT2, which is no longer at issue in the case.
Because Boschan's opinion centers on the composition of MSD PT2 rather than the sound recording, the Court must exclude her opinion. She explains that "while the complaint I cited in the 'Documents Relied Upon' section alleges infringement of a sound recording, we understand from Defendant's [sic] counsel that the parties and experts acknowledge that the Plaintiff's infringement claim is now solely for the alleged infringement of a musical work (the 'Work'), not the infringement of the recordings." Though Defendants pluck various references to recordings from Boschan's report out of context, the Court cannot ignore her report relied on the idea that infringement of the sound recordings was not at issue. Perhaps her interpretation of Defendants' counsel's guidance was incorrect, but that does not correct the confusion that would result from a jury hearing conclusions stemming from a faulty premise.
4. Plaintiff's Motion in Limine to Exclude Opinions of Ray Daniels
Plaintiff argued that Daniels never listened to MSD PT2 or reviewed any relevant reports regarding MSD PT2. Because Daniels' opinion lacks a sufficient basis, the Court must exclude it.
Plaintiff highlights that despite Daniels submitting his initial report on December 30, 2025, he had not listened to MSD PT2 until a few days before his deposition on February 25, 2026. Daniels' report referred to MSD PT2 as a "loop-based contribution" or "loop," implying that he was familiar with the contents of MSD PT2. Daniels defines a "looper" as one who "typically supplies short, reusable sampled loops or musical fragments that are distributed broadly to multiple producers." Daniels goes on to note that "loop-based contributors provide musical ideas or fragments that require substantial additional creative, technical, and financial work to become a finished record." It is unclear how Daniels could confidently conclude that MSD PT2 was only a musical "fragment" when he had yet to hear the recording at all. And the Court finds especially disconcerting that he failed to identify that he had yet to listen to MSD PT2 when outlining "materials not yet reviewed," instead leaving it to the Court's imagination that the "audiovisual materials" referenced in "materials reviewed" would include the sound recording central to the case. Because the distinction between "producers" and "loopers" stands at the core of Daniels' report, none of his opinions is based on sufficient facts or data. That limitation includes Daniels' rebuttal opinion, which claims to rebut Plaintiff's expert as to the appropriate clearance process without having reviewed the same recording at issue.
Defendants argued that because they did not offer Daniels as a "technical musicologist," his opinion remains reliable. And they stated that because Daniels listened to MSD PT2 before his deposition, the Court should view his previous failure to review the sample as an issue only of credibility. But Defendants failed to recognize that his expert reports are untethered to the case at hand since they lack familiarity with the sample central to the dispute. That shortcoming precluded the Court from allowing a jury to hear his testimony.
5. Defendants' Motion in Limine to Exclude Testimony of Joe Bennett
Defendants asserted that Bennett provides composition-based opinions, legal conclusions masquerading as expert opinions, and opinions that are unreliable or irrelevant, and that some of Bennett's opinions were untimely.
At this stage, the Court will not exclude Bennett's opinions. Regarding Defendants' first argument, Plaintiff "agrees that Bennett's opinion will be limited to the sound recording of MSD PT2." Thus, those opinions are not at issue. To the extent that Defendants believe that Plaintiff will still attempt to raise Bennett's opinions regarding the composition of MSD PT2, they may raise those objections in context at trial. The same is true of Defendants' second argument regarding Bennett's opinions being legal conclusions. The Court, having reviewed the relevant portions of Bennett's report regarding the MSD PT2 sound recording, found no basis to exclude his opinions.
Defendants also contended that Bennett's apportionment and settlement opinions are inadmissible. Regarding relevance, the Court reiterates that it will not allow any party or expert to confuse the jury by conflating compositional issues with sound recording issues. But Defendants go further, contesting Bennett's methodology. Despite Defendants' assertions otherwise, Bennett's reports include detailed methodology regarding his apportionment calculations. He utilized two different methods to calculate apportionment to "cross-check" his determinations, and his analysis is readily replicable. His references to other cases in his rebuttal report buttress the foundation on which his opinions rely, and the jury will understand that those songs are not at issue in this case, but merely the basis for Bennett's conclusions.
Lastly, Bennett's declaration was neither untimely nor prejudicial. The declaration that Bennett submitted in support of Plaintiff's opposition to summary judgment responded to the declaration of Sloan that Defendants submitted in support of their motion for summary judgment. It is unclear what Defendants expected when they submitted Sloan's declaration, especially given that Sloan noted that his declaration was distinct from his rebuttal report. Nor did Bennett's declaration deviate from the contents of his initial and rebuttal expert reports, and Rule 26 remains in force to limit Bennett's testimony at trial to the scope of those reports.
6. Defendants' Motion in Limine to Exclude Testimony of Judith Finell
Defendants argued that Plaintiff failed to make Finell available for a deposition, creating incurable prejudice to Defendants.
The parties submit very different accounts of relevant facts. Defendants detail that on January 28, 2026, they served Finell with a First Amended Notice of Deposition setting her testimony for February 9, 2026. Though Defendants' counsel and a court reporter appeared for the deposition, neither Plaintiff's counsel nor Finell appeared. Plaintiff explained that it contacted Finell on January 28, 2026, but learned that she was no longer available for February 9. Plaintiff informed Defendants of the need to reschedule Finell to February 13, but Defendants never responded.
Only Plaintiff submits evidence of the parties' correspondence. That evidence shows that Plaintiff's counsel emailed Defendants' counsel on January 30, 2026, stating that Finell was available only on February 13. Plaintiff's counsel followed up later that day, identifying that Finell was holding February 13 open for her deposition. On February 2, 2026, Plaintiff's counsel followed up again stating that Finell was not available on February 9. Based on this evidence, it is unclear why Defendants expected Finell to appear on February 9. Nor can the Court say that Plaintiff withheld Finell from providing deposition testimony. The inability to take Finell's deposition highlights a breakdown in the meet-and-confer activities of counsel, about which the Court has already admonished Defendants.
Held
The Court granted Plaintiff's first motion in limine and excluded the testimony of Renee Howdeshell.
The Court granted Plaintiff's second motion in limine and excluded the testimony of Dr. Nathaniel Sloan.
The Court granted Plaintiff's third motion in limine and excluded the testimony of Cedar Boschan.
The Court granted Plaintiff's fifth motion in limine and excluded the testimony of Ray Daniels.
The Court denied Defendants' second motion in limine to exclude some of Joe Bennett's opinions.
The Court denied Defendants' final motion in limine is to exclude the testimony of Plaintiff's rebuttal expert Judith Finell.
Key Takeaway
It is where expert opinion is 'connected to existing data only by the ipse dixit of the expert' that there may be 'too great an analytical gap between the data and the opinion preferred' to support inclusion of the testimony.
Case Details:
Case Caption: | Artist Revenue Advocates, LLC V. Kanye Omari West |
|---|---|
Docket Number: | 2:24cv6018 |
Court Name: | United States District Court, California Central |
Order Date: | April 01, 2026 |
