We successfully defended Grammy-nominated American music producer, composer, and songwriter, Brain Transeau’s (better known by his stage name, BT), against spurious copyright infringement claims.
Plaintiff Ralph Vargas, a drummer in New York City, and his producer, Bland Ricky Roberts, claimed 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 was 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 threatened musicians’ creative freedom and ability to build on existing works to create new works.
We represented BT in his defense of these allegations. On May 9, 2007, the district court granted summary judgment for BT and dismissed the case in its entirety. BT was vindicated again in November 2009 when the Second Circuit affirmed the district court’s dismissal of the case on summary judgment and an award of $175,000 in attorneys' fees.