## Facts

- Two New Orleans rap artists independently created songs in 1997 using the phrase “back that ass up” (spelled “azz” in one work).
- Jerome Temple (D.J. Jubilee), associated with Positive Black Talk, Inc. (PBT), recorded and released a song titled *Back That Ass Up* and performed it publicly in 1998.
- Terius Gray (Juvenile) recorded a song titled *Back That Azz Up*, later included on Juvenile’s nationally distributed album *400 Degreez* through Cash Money Records and Universal entities.
- PBT obtained copyright registrations for Jubilee’s lyrics and sound recording and later sought a supplementary registration to change listed authorship/claimant information.
- PBT sued, alleging Juvenile’s work infringed PBT’s copyright in Jubilee’s song; defendants denied infringement and counterclaimed under federal copyright law and Louisiana state law (including LUTPA and negligent misrepresentation).
- After trial, a jury found for defendants on all of PBT’s claims and for defendants on their non-copyright counterclaims; the district court awarded attorney’s fees only for the successful LUTPA counterclaim and denied fees under the Copyright Act.

## Issues

1. Whether the evidence supported the jury’s finding of no actionable copyright infringement, where the principal overlap was a short shared phrase.
2. Whether alleged errors in jury instructions and evidentiary rulings required a new trial on PBT’s claims.
3. Whether sufficient evidence supported the jury’s verdict for defendants on LUTPA and negligent misrepresentation counterclaims.
4. Whether the district court abused its discretion by denying defendants attorney’s fees under 17 U.S.C. § 505 despite defendants prevailing on the copyright claim.

## Decision

- The court affirmed the judgment in accordance with the jury’s verdict for defendants on all of PBT’s claims.
- The court affirmed the verdict for defendants on their non-copyright counterclaims, including LUTPA and negligent misrepresentation.
- The court held that the challenged jury instructions and evidentiary rulings, considered as a whole, did not warrant reversal or a new trial.
- The court affirmed the fee ruling: attorney’s fees were properly awarded only in relation to the LUTPA counterclaim, and the denial of fees under § 505 was not an abuse of discretion.

## Legal Principles

- Copyright protection for very short phrases is thin; an infringement claim resting largely on a brief shared textual hook faces a high burden to show copying of protected expression.
- Infringement requires substantial similarity in protected expression; comparison of the works and the weight of similarity evidence are typically jury questions, and appellate review is deferential when the verdict is supported by reasonable views of the evidence.
- Jury instructions are reviewed in context; reversal requires a showing that the charge, taken as a whole, failed to fairly present the issues or likely misled the jury.
- Evidentiary rulings are reviewed for abuse of discretion; reversal generally requires both error and prejudice.
- Attorney’s fees under 17 U.S.C. § 505 are discretionary; prevailing-party status does not create an entitlement, and a district court may deny fees where claims are not objectively unreasonable or wholly frivolous.

## Conclusion

The Fifth Circuit upheld a defense verdict rejecting a music copyright claim centered on a short shared phrase, sustained state-law liability findings against the plaintiff for unfair trade practices and negligent misrepresentation, and affirmed the district court’s discretionary refusal to award copyright attorney’s fees beyond fees tied to the LUTPA counterclaim.


Positive Black Talk, Inc. v. Cash Money Records, Inc., 394 F.3d 357 (5th Cir. 2004)