French Montana's hit song, “Ain't Worried About Nothin',” graced the Billboard Hot 100 in 2013; over a decade later, its spirit and sentiment prove more relevant than ever.

In a recent ruling out of the United States District Court, Northern District of Illinois, Richardson v. Kharbouch (January 4, 2024), French Montana (Karim Kharbouch) emerged “technically” victorious against copyright infringement allegations brought by young music producer Hotwire the Producer (Eddie Lee Richardson).

Kharbouch’s success hinged, in part, on the nuanced distinctions between copyright protection for a musical composition and those for a sound recording. It also did not help Richardson that his case was hindered by his limited effort in conducting discovery in support of his claim.

In this article, we consider the rights that copyright holders wield in musical compositions versus sound recordings, while emphasizing the crucial role of comprehensive legal representation and thorough investigation in substantiating one’s claim.

Background

The dispute centered around Kharbouch’s “Ain't Worried About Nothin’” (AWAN) and Richardson's original music recording “Hood Pushin’ Weight” (HPW).

In 2012, Richardson, then only sixteen years old, wrote HPW and published it to SoundClick.com, an online audio distribution and music sharing website that allows its users to upload, promote, and share audio.

Roughly six months later, Kharbouch released AWAN, which proved to be immensely popular, reaching the Billboard charts and inspiring collaborations with some of the music industry's biggest names, including Lil Wayne, Puff Daddy, Wiz Khalifa, Miley Cyrus, and The Game. The official music video has since accumulated over 99 million views on YouTube.

When Richardson first heard AWAN around May of 2013, he immediately contacted Kharbouch on Twitter and demanded that Kharbouch provide credit to Richardson. Kharbouch redirected Richardson to Rico Love, the driving force behind the music, according to Kharbouch, and one of three alleged producers who created AWAN, clarifying that Kharbouch’s role was limited to providing vocals for the track. Conversations between Richardson and Rico Love did not make it to the court record.

Eventually, in 2019, Richardson initiated a copyright infringement suit against Kharbouch, notably excluding any other publishing company or alleged producer of AWAN, such as Rico Love.

In its recent decision, the court sought to unpack an aspect of the record that was underdeveloped, whether Richardson could pursue his claim for copyright infringement against Kharbouch at all, given that Richardson's copyright in HPW was for a “sound recording” only.

Musical Compositions Versus Sound Recordings

For any piece of music, there are two potential copyrighted works: the sound recording and the underlying musical composition.

The musical composition generally refers to the composition itself, meaning melody, harmony, and lyrics, or the “sheet music” of the work, while the sound recording is the actual physical and specific recording of a particular performance of a musical work.

Under Section 106 of the Copyright Act, the owner of a copyright generally has exclusive rights to reproduce and distribute the copyrighted work, prepare derivative works, and in the case of musical works, perform the work publicly. Section 114 of the Copyright Act, however, limits these rights for the owner of a sound recording copyright.

As the court explained:

While the owner of a musical composition copyright has the exclusive right to public performance of the work by any means, the sound recording owner only has the exclusive right to perform the copyrighted work publicly by means of a digital audio transmission. The rights in sound recordings are limited to direct duplication of the actual sounds affixed in the recording, even though such sounds imitate or simulate those in the copyrighted sound recording . . . The rights in a sound recording, unlike a musical composition, do not extend to “sound-alike” works that merely imitate, but do not directly duplicate, the recording itself.

This limitation means that plaintiffs in sound recording cases are more constrained in how they can establish copyright in their copyright claim. The mere imitation of a recording would not constitute copyright infringement, even if the alleged copier “deliberately sets out to simulate another's performance as exactly as possible . . .  This means the world at large is free to imitate or simulate the creative work fixed in a recording so long as an actual copy of the sound recording itself is not made.”

So, to establish actual copying of a sound recording to support a copyright infringement claim, a plaintiff must proffer evidence supporting the reasonable inference that the exact sounds in the copyrighted recording were physically duplicated.

The Court’s Decision

Richardson only registered HPW as a sound recording. Why? We do not know. That created a problem for him. Throughout its opinion, the court sympathizes with Richardson, citing the difficulties in finding a lawyer when at a young age, the inherent costs in litigation, and “hope[d] that Richardson will not be deterred in his musical endeavors, now armed with a better understanding of copyright law.”

Notwithstanding its sympathy, the court explained that Richardson failed to come forward with any evidence demonstrating that AWAN copied or duplicated the actual recording of HPW. Richardson's evidence was limited to his personal affirmation as to the facts of the case in which he explained that AWAN copies HPW by using the same melody or certain musical “motifs,” but Richardson's sound recording registration does not cover the underlying melody of HWP.

Richardson did not cite to any testimony from AWAN's producers or creators as to how they created the music for the song, nor did he point to any expert opinion testimony suggesting that copying or sampling had occurred.

In fact, Richardson did not involve Rico Love in the litigation at all, neither to take a deposition, nor more surprisingly, to name him as a defendant. Kharbouch deposed Richardson, but Richardson waived deposing Kharbouch, or any other witness for that matter.

The court went so far as to mention that to the untrained ear, the underlying music in AWAN sounds similar to the music in HPW. (To one of the authors, they sound quite identical.) But regardless of how obvious it may seem, without admissible evidence, no reasonable jury could answer the question of whether Kharbouch or Rico Love copied and sampled HPW on AWAN, or whether they created a perfect imitation on their own.

Unless a work is registered as a musical composition, any artist is technically free to intentionally create a piece of music that imitates and simulates the sounds in the recording of another. “Regardless of how good the imitation is, or how similar the songs sound to the untrained ear, Richardson cannot establish copyright infringement unless there is also evidence that the sound recording of HPW itself was actually duplicated.”

The court had no choice but to conclude that Kharbouch was entitled to judgment as a matter of law.

Conclusion

The Richardson v. Kharbouch decision should serve as a valuable lesson for aspiring music industry artists and all those who seek to safeguard their creative endeavors.

Choosing the appropriate copyright registration is crucial. While a copyright holder enjoys exclusive rights to reproduce, distribute, and perform a musical composition, the scope of protection narrows significantly when dealing with sound recordings. In this context, exact imitation is fair play.

Richardson's case also faced a great setback due to the lack of evidence for his claim, i.e., the omission of crucial defendants and witnesses.

Infringement claims require comprehensive and supported legal presentation, which may include depositions and expert opinions when looking to effectively assert their rights. And yes, federal court litigation is expensive; but producing an evidentiary record is crucial to having a chance of prevailing