Stanford Center for Internet and Society

Plaintiff Ralph Vargas, a drummer in New York City, and his producer, Bland Ricky Roberts, claim that Brain Transeau’s (“BT”) drumbeat “Aparthenonia,” which appeared in the jingle of a Celebrex commercial, is a sample of a basic, two-second drum loop they recorded and released on a vinyl album that they allegedly sold to small New York City record shops for a few months in 1994. Plaintiffs sued BT, his distribution company, East West Communications, Inc., and those responsible for making the commercial -- Fluid Music, Publicis, Inc. and Pfizer Inc. (the manufacturer of Celebrex) -- claiming more than $10 million in damages for the alleged copyright infringement. Plaintiffs’ case is based entirely on a passing similarity between two rudimentary drumbeats that are variations on well-known drum rhythms made famous decades ago by James Brown and other rhythm and blues musicians, and which frequently appear in rap, hip-hop and other forms of popular music. Plaintiffs’ claimed copyright in these stock musical elements threatens musicians’ creative freedom and ability to build on existing works to create new works. We represent BT in his defense of these allegations.