Bit Parts

The U.S. Court of Appeals for the Eleventh Circuit found that the testimony of defendant Teriyakie Smith ' writer of the rap song “Betcha Can't Do it Like Me,” recorded by co-defendants rap group D4L ' established independent creation of the composition, thereby defeating a copyright infringement claim by the owner of the rap song “Come Up,” recorded by Woodlawn Click. Watt v. Butler, 10-14710. The suit was filed over a three-note riff. Plaintiff Charles Watt contended that he sold or gave away up to 15,000 CDs of Woodlawn Click's recording in the southeastern United States. In an unpublished opinion, the Eleventh Circuit observed Watt's “evidence of access [that] depends largely on the assumption that members of the Atlanta rap community share music among themselves and that the song 'Come Up' became popular and was widely shared for many years” was too speculative to establish either D4L or Smith had access to “Come Up.” However, the appeals court did agree with the Northern District of Georgia federal court that “Watt could show that 'Come Up' and 'Betcha' were substantially similar because the riff, which is a copyrightable element, is the same in both songs.” The appeals court then considered Smith's testimony “that he wrote the music for 'Betcha,' and specifically the riff, in 2004 using three adjacent keys on his laptop keyboard and the 'Fruity Loops' music production software.” The appeals court decided that Smith's testimony, “though not corroborated by documentary evidence or by a disinterested third-party, was plausible. ' As a result, even if Watt had made out a prima facie case based on a showing of access and substantial similarity, the evidence of independent creation would have negated the presumption of copying that arose from Watt's prima facie case.”