BT: Case Summary

The Clinic represents Brian Transeau against claims of copyright infringement in the Vargas v. Pfizer litigation in the Southern District of New York (Case No. 04 CV 9772 (WHP)). Mr. Transeau is an accomplished musician and a pioneer of the trance music genre who is better known by his stage name, BT. This case centers around allegations by plaintiff Ralph Vargas and others that BT copied and digitally manipulated Vargas' musical creation, a drum track recording entitled “Bust Dat Groove,” in making a short drum loop entitled “Aparthenonia.” After hearing BT’s “Aparthenonia” played during a commercial for pharmaceutical giant Pfizer’s drug, Celebrex, Vargas brought suit against BT, Pfizer, the advertising agency that created the commercial, and the record label that originally released a collection of drumbeats by BT which included “Aparthenonia.”

Prior to the start of the Clinic’s representation, all the defendants moved for summary judgment on the issue of originality – contending that “Bust Dat Groove,” as a very simple sequence of drumbeats, lacked sufficient originality to be copyrightable under the Copyright Act of 1976. The district court ruled that plaintiffs survived summary judgment on this issue. Subsequently, Pfizer and the other defendants -- excluding BT -- settled.

Vargas’ “Bust Dat Groove” is a one-bar, looped drum pattern. Similarly, BT’s “Aparthenonia” is a two and one-quarter bar drum pattern that shares with “Bust Dat Groove” many basic drumbeat elements, such as of an eighth-note hi-hat, snare drum, and bass drum. Vargas alleges that BT sampled and digitally rearranged the drumbeats in “Bust Dat Groove” in order to create “Aparthenonia.” However, BT has proferred evidence that “Aparthenonia” was created independently, using drum machines and Propellerhead Reason software (and not by a human drummer, as with “Bust Dat Groove”). Yet Vargas maintains that “Aparthenonia” is so strikingly similar to “Bust Dat Groove” as to preclude any possibility of independent creation and to preclude the need to show that BT had access to Vargas’ work.

Discovery is complete, with both sides exchanging depositions and expert reports. In late September 2006, the Clinic moved for summary judgment again, this time on the issues of access and striking similarity. Trial is set for March 2007, and a ruling is due sometime before then.

The San Francisco office of Kirkland Ellis is co-counsel on this case.