EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, February 17, 2012

Chicken And Waffles And Opinions?: 9th Circuit Oddly Cites To Rule 701 In ASCAP Copyright Action Against Roscoe's Parent Company

Federal Rule of Evidence 701 provides that

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

So, under Rule 701, can a lay witness identify certain songs that he heard in a restaurant? According to the recent opinion of the Ninth Circuit in Range Road Music, Inc. v. East Coast Foods, Inc., 2012 WL 502510 (9th Cir. 2012), the answer is "yes."

In East Coast Foods, shortly after East Coast Foods, inc. opened up a Roscoe's House of Chicken and Waffles in Long Beach, the the American Society of Composers, Authors, and Publishers (ASCAP)

contacted East Coast to offer it a license to perform music by ASCAP members at the restaurant and lounge. East Coast did not purchase a license, and between 2001 and 2007 East Coast ignored repeated requests from ASCAP to pay licensing fees. In 2008, ASCAP engaged an independent investigator, Scott Greene, to visit the Long Beach Roscoe's, make notes of his visit, and prepare a detailed investigative report indicating whether copyright infringement was occurring at the venue. Greene, who considers himself knowledgeable about every genre of music "except heavy metal and explicit rap," had conducted over 300 investigations for ASCAP when he was retained for the Roscoe's job.

Greene visited Roscoe's on May 30, 2008. During his visit, he surreptitiously noted the musical compositions performed by that night's live musical act, Azar Lawrence & the L.A. Legends, as well as songs played from a CD over the lounge's sound system. During the live performance, he was able to personally identify the jazz compositions "All or Nothing at All," "It's Easy To Remember," "My Favorite Things," and "Be–Bop," all popularly associated with John Coltrane. In several cases, the band leader announced the titles of the songs before playing them. Greene also identified four songs by the jazz-fusion group Hiroshima that played on the venue's CD player: "Bop–Hop," "Once Before I Sleep," "One Fine Day," and "Only Love." He did not personally recognize the Hiroshima songs, but he approached the CD player and transcribed the titles directly from the CD jewel case as the songs played.

ASCAP thereafter brought an action raising eight counts of copyright infringement against East Coast, and the district court granted ASCAP summary judgment on all eight counts. Thereafter, East Coast appealed, claiming, inter alia, that the district court erred in admitting Greene's report as well as a declaration that he completed. The Ninth Circuit, however, found that

The district court did not abuse its discretion by relying on Greene's report and declaration. Green's report and declaration contained his competent percipient witness testimony as a visitor to the Long Beach Roscoe's. Fed.R.Evid. 701. Identifying popular songs does not require "scientific, technical, or other specialized knowledge." Fed.R.Evid. 702. On the contrary, identifying music is a reflexive daily process for millions of radio listeners, amateur karaoke singers, and fans of Name That Tune reruns. See Fed.R.Evid. 701 advisory committee's note ("[T]he distinction between lay and expert witness testimony is that lay testimony results from a process of reasoning familiar in everyday life, while expert testimony results from a process of reasoning which can be mastered only by specialists in the field.") (quotation marks and citations omitted). Moreover, many of Greene's identifications did not even require him to tax his memory: the live band announced the titles of several of the compositions they covered, and Greene transcribed other titles directly from a CD jewel case. Clearly, the district court correctly determined that Greene's evidence was admissible.

I agree with the court's conclusion that Greene's report and declaration were admissible, but I don't see why the court even had to find that Rule 701 was satisfied because it sees clear that Greene was offering facts, not opinions. Let's say that Greene testified that Roscoe's had a TV that was showing the movie "Titanic." Or let's say that Greene testified that Roscoe's had Salvador Dali's "The Persistence of Memory" hanging on the wall. Or let's say that Greene testified that Roscoe's had copies of the book "The Phantom Tollbooth" on their tables. In any of these cases, it would be clear that he was offering fact testimony rather than opinion testimony. So, when Greene's report and declaration stated that he heard songs such as "Be–Bop," why did the court even need to mention Rule 701, which covers opinions?



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