Full opinion text
ORDER AND REASONS KURT D. ENGELHARDT, District Judge. Before the Court is the Defendants’ Motion to Dismiss (Rec. Doc. 58). Plaintiff has filed an opposition memoranda (Rec. Doc. 111), and the Defendants have filed a reply memoranda (Rec. Doc. 113). I. BACKGROUND: Plaintiff Paul Batiste, doing business as Artang Publishing LLC, is the founding member and owner of the Batiste Brothers Band, founded in New Orleans, Louisiana in 1976. Rec. Doc. 1 at 1. In this copyright infringement action, the plaintiff has sued dozens of defendants (including the Defendants. who are movants in the instant motion), alleging that 45 of his music compositions are infringed in 63 of the Defendants’ songs. Plaintiff has alleged infringement of various beats, lyrics, chords, melodies, chants, hooks, horns, and “gliss” within his songs. See Rec. Doc. 1. On December 13, 2013, Defendants filed the instant motion as a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rec. Doc. 58. Given that both parties submitted materials outside the pleadings, the Court gave notice pursuant to Rule 12(d) that it would treat the motion as one for summary judgment pursuant to Rule 56. See Rec. Doc. 116. II. APPLICABLE LAW: A. Summary Judgment under Rule 56: “The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “When a party seeks summary judgment pursuant to an affirmative defense, such as a statute of limitation, the movant must establish all of the elements of the defense.” Citigroup Inc. v. Federal Ins. Co., 649 F.3d 367, 371 (5th Cir.2011). “If the movant does so, the burden shifts to the nonmovant to provide specific facts showing the existence of a genuine issue for trial.” Id. “[Tjhere is no issue for trial unless there is sufficient evidence favoring the’nonmoving party for a jury to return a verdict for that party.” Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 234 (5th Cir.2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Although the Court must draw in favor of the nonmoving party all reasonable inferences that may be drawn from the evidence submitted, “a party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.’” Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 343 (5th Cir.2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)); Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir.2012). The substantive law will determine the materiality of facts, and “[o]nly disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment.” Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. B. Copyright Infringement: To establish a claim for copyright infringement, a plaintiff must show: (1) that he owns a valid copyright (which is not challenged in the instant motion), and (2) that the defendant copied constituent elements of the plaintiffs work that are original and copyrightable. Positive Black Talk, Inc. v. Cash Money Records, 394 F.3d 357, 367 (5th Cir.2004), abrogated on other grds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010); Engineering Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1340 (5th Cir.1994), supple- merited, 46 F.3d 408 (5th Cir.1995). “To establish actionable copying (ie. the second element), a plaintiff must prove: (1) factual copying and (2) substantial similarity.” Positive Black Talk, Inc., 394 F.3d at 367. This traditional two-step determination — known traditionally as the Amstein test — continues to be employed and has also evolved into more elaborate formulations, as discussed below. The Defendants have assumed for purposes of the instant motion that the element of factual copying can be met and ask the Court to dismiss the plaintiffs claims on grounds that the second element of copying — ie., the test for substantial similarity — cannot be met as a matter of law. Thus, the standards for proving the element of factual copying are not directly relevant to the task at hand. Nevertheless, because components of the factual copying inquiry are sometimes confused and conflated with those for determining substantial similarity (ie., the actionability of the copying), the Court will summarize the factual copying inquiry. Also, because copying is actionable only where the defendant has copied aspects of the plaintiffs work that are original and subject to copyright, the actionability inquiry (ie., substantial similarity) necessarily entails determination as to whether certain elements of the plaintiffs work are non-original or otherwise unprotectable. Therefore, the Court will also address briefly the requirements of originality and protectability as well. 1. Factual Copying — “Probative Similarity” In some cases, the plaintiff has direct evidence of copying. Indeed, it is not unusual for a defendant to admit copying a small element of the plaintiffs work and defend the suit solely on grounds that the copied element is unprotectable or that the portion copied was not substantial. Where copying is contested and direct evidence of copying is unavailable, “factual copying may be inferred from (1) proof that the defendant had access to the copyrighted work and (2) probative similarity.” Positive Black Talk, 394 F.3d at 368 (quoting Peel & Co. v. Rug Mkt., 238 F.3d 391, 394 (5th Cir.2001)). Although courts once used the term “substantial similarity” .to apply to both inquiries, the test for “probative similarity” differs in both purpose and substance from that for determining “substantial similarity” (ie. whether the copying is legally actionable). In determining probative similarity, the plaintiffs entire work is considered — “including both copyrightable and non-copyrightable parts”— and compared with the defendant’s work, “looking for any similarities between their constituent parts.” Positive Black Talk, 394 F.3d at 369-70. “[T]he fact that non-protectable elements were copied, although not a basis for liability, can be ■probative of whether protected elements were copied (ie., help establish probative similarity).” Id. (quoting O.P. Solutions, Inc. v. Intellectual Prop. Network, Ltd., 1999 WL 47191 *3 (S.D.N.Y.1999)). A finding of probative similarity may be supported by a finding of'“any similarities between the two works (whether substantial or not) that, in the normal course of events, would not be expected to arise independently in the two works and that therefore might suggest that the defendant copied part of the plaintiffs work.” Positive Black Talk, 394 F.3d at 370. 2. Originality and Protectability: “[T]he mere fact that [a plaintiffs works] are copyrighted does not mean that all aspects of those [works] are automatically protected.” Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527, 533 (5th Cir.1994). Although the work itself may be original and subject to copyright, it may contain constituent elements that are not subject to copyright because they are not original or because they are otherwise unprotectable, e.g., because they constitute a concept, method, or idea or fall under the doctrine of public domain or scenes a faire. In such a case, the copyright does not extend to the unprotectable element. With some caveat, similarity deriving from such unprotectable elements is not actionable. “The sine qua non of copyright is originality.” Feist Publications v. Rural Tel. Service, 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). Originality requires “that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal' degree of creativity.” Id. at 358, 111 S.Ct. 1282. Thus, “the copyright is limited to those aspects of the work — termed ‘expression’ — that display the stamp of the author’s originality.” Kepner-Tregoe, 12 F.3d at 533 (quoting Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985)). In other words, though the work may be original and copyrightable, the copyright does not extend to the non-original elements of the work, and the author has no right to prevent others from copying those elements that are not original. “Some material is unprotectible because it is in the public domain, which means that it is free for the taking and cannot be appropriated by a single author even though it is included in a copyrighted work.” Boisson v. Banian, Ltd., 273 F.3d 262, 268-69 (2nd Cir.2001) (quoting Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 710 (2nd Cir.1992) (internal quotations omitted)). “[A] work may be protected by copyright even though it is based on ... something already in the public domain if the author, through his skill and effort, has contributed a distinguishable variation from the older works.” Norma Ribbon & Trimming, Inc. v. Little, 51 F.3d 45, 47 (5th Cir.1995) (quoting Donald v. Zack Meyer’s T.V. Sales & Serv., 426 F.2d 1027, 1029 (5th Cir.1970), cert. denied, 400 U.S. 992, 91 S.Ct. 459, 27 L.Ed.2d 441 (1971)). However, such a “distinguishable variation” must be “substantial and not merely trivial.” Id. at 1080; see also Eng’g Dynamics, 26 F.3d at 1344 n. 11 (“More than trivial originality is necessary....”). Likewise, copyright protection does not extend to scenes a faire material contained within a work. Such material includes “expressions that are standard, stock or common to a particular subject matter or are dictated by external factors.” Eng’g Dynamics, 26 F.3d at 1344. Although it originally referred to “stock” characters or scenes for literary works and film (particular those with a historical setting), it has been extended “to exclude from protection ... those elements of a work that necessarily result from external factors inherent in the subject matter of the work.” Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366, 1375 (10th Cir.1997) ’ (citing Gates Rubber Co. v. Bando Chemical Industries, Ltd., 9 F.3d 823, 838 (10th Cir.1993)). For example, in the case of computer-related applications, these external factors may include “hardware standards and mechanical specifications, software standards and compatibility requirements, computer manufacturer design standards, industry programming practices, and practices and demands of the industry being serviced.” Id. at 1375 (citing Gates Rubber, 9 F.3d at 838; Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 709-10 (2nd Cir.1992)). Thus, elements that are customary to or dictated by the genre are not protected, as they are not original. In addition to questions of originality, protectability often entails the issue of abstraction. Copyright protection extends “only to a particular expression of an idea, and not to the idea itself.” Boisson, 273 F.3d at 268; see 17 U.S.C. § 102(b) (copyright protection for an original work does not extend to any idea, concept, or method, regardless of the form in which it might be embodied in the work). Thus, when an idea or concept “can be expressed in very few ways,” the idea and the expression are said to be “merged,” and the expression is deemed unprotectable. Kepner-Tregoe, 12 F.3d at 533. 3. Substantial Similarity— Determining Actionability: The “substantial similarity” inquiry determines whether factual copying is “quantitatively and qualitatively sufficient” to support liability. In other words, it tests whether the appropriation is “legally actionable.” Positive Black Talk, Inc., 394 F.3d at 368 n. 7. The test has its root in the second step of the Amstein test — i.e., whether “the copying (assuming it to be proved) went so far as to constitute improper appropriation.” 154 F.2d at 468. a. The “Laymen” or “Ordinary Observer” Approach: Amstein itself gave little guidance as to substance of the test, stating only that “the test is the response of the ordinary lay hearer” to the work and that as such, “ ‘dissection’ and expert .testimony are irrelevant.” Id. The question is simply whether the defendant took from the plaintiffs works “so much of what is pleasing to the ears of lay listeners” comprising “the audience for whom such popular music is composed” that it “wrongfully appropriated something which belongs to the plaintiff.” Id. at 473. Bosb-Amstein, the Second Circuit has added a little meat to the bones, stating that inquiry should be whether “the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960). This traditional “ordinary observer” test has evolved into several hybrids, the two most prominent variations being (1) the Ninth Circuit’s “extrinsic/intrinsic” test, and (2) the Second Circuit’s “abstraction-filtration-comparison” analysis. Although the Fifth Circuit has expressly adopted neither of these approaches outside of the computer software arena, aspects of both have permeated into this Circuit’s jurisprudence. Thus, both must be addressed. b. The Ninth Circuit’s “Extrinsic/Intrinsic ” Test: In Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., the Ninth Circuit split the substantial similarity inquiry into two distinct analyses: (1) one to assess whether there is substantial similarity “of the general ideas” (the extrinsic test), and (2) a second to assess “the expressions of those ideas” (the intrinsic test). Krofft, 562 F.2d at 1164. The first test is labeled “extrinsic” because it depends not on the individual response of the factfinder to the work, but on “spe-tifie criteria” which can be “listed and analyzed,” including “the type of artwork involved, the materials used, the subject matter, and the setting for the subject.” Id. As with Amstein’s test for inferring copying (now call “probative similarity”), “analytic dissection” and expert testimony are permitted in the extrinsic stage of the analysis. Id. The test for determining whether there is substantial similarity in expressions (as opposed to ideas) is called “intrinsic” because it “depend[s] on the response of the ordinary reasonable person” to the work. Id. The Kroffb court seemed loath to explain the standard further, emphasizing that it is a subjective one left to the “ordinary reasonable observer.” Id. at 1168. However, the Kroffb court was firm that analytic dissection of the work — i.e., assessing similarity between isolated elements of the works — is inappropriate at this stage. Id. at 1168. Despite prominent differences evident in analytic dissection, a “combination of many different elements” may be entitled to protection “because of its particular subjective quality.” Id. Moreover, while a similarity by itself may be trivial, a finding of substantial appropriation may nonetheless be appropriate due to the “over-all impact and effect.” Id. (quoting Malkin v. Dubinsky, 146 F.Supp. 111, 114 (S.D.N.Y.1956)). Indeed, the Ninth Circuit has held that a subjective impression of similarity between the works “considered as a whole” may support a finding of infringement even where that holistic impression of similarity derives from elements, that are themselves unproteetable. In Roth Greeting Cards v. United Card Co., the court held that, although the text of the plaintiffs greeting cards (e.g., “I miss you already”) was not original enough to be protected and although the defendant’s card utilized different images (e.g., a forlorn man vs. a forlorn boy), the copying was actionable because “in total concept and feel” the cards were the same. 429 F.2d at 1110. The court found that “the combination of art work conveying a particular mood with a particular message” and “the arrangement of the words on the greeting card,” including the lettering, were substantially the same. Id. Within the Ninth Circuit, this “total concept and feel” test has been subsumed into the “intrinsic” portion of the test for substantial similarity. See, e.g., Shaw v. Lindheim, 809 F.Supp. 1393, 1402 (C.D.Cal.1992) (“The intrinsic test measures substantial similarity'of protectible expression based on the response of the ordinary reasonable person as to whether the defendants’ work captured the ‘total concept and feel’ of plaintiffs work....”); Samuelson, supra, at 1830. While the Ninth Circuit holds that a combination of unproteetable elements may sustain a finding of substantial similarity, this holding is not without limit. Satava v. Lowry, 323 F.3d 805, 811 (9th Cir.2003) (“It is true, of course, that a combination of unproteetable elements may qualify for copyright protection.... But it is not true that any combination of unproteetable elements automatically qualifies for copyright protection”). The Sata-va court stated the limiting principle for this doctrine thusly: “[A] combination of unproteetable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.” Id. (emphasis added). Thus, for a combination of similar unprotectable elements to be actionable: (1) the work must contain a sufficiently high number of similar elements; and (2) the selection and arrangement of the elements must be original. c. The Second Circuit’s “Abstractions” and “Filtration” Analyses: The Second Circuit’s “abstractions” and “filtration” analyses derive from Judge Learned Hand’s opinion in Nichols v. Universal Pictures. The Nichols court was faced with the question of similarity between the plaintiffs play and the defendant’s motion picture. There was no similarity between the text of the two works, the characters were quite different in their particulars, and even the details of the plots diverged. However, the two works shared a general theme or outline — “a quarrel between a Jewish and an Irish father, the marriage of their children, the birth of grandchildren and a reconciliation.” 45 F.2d at 122. The court acknowledged that, while ideas are not subject to copyright, neither can the copyright be “limited literally to the text, else a plagiarist would escape by immaterial variations.” Id. at 121. Thus, the problem for the Nichols court lay in where to draw the line “between expression and what is expressed.” Id. The court reasoned: “Upon any work ... a great number of patterns of increasing .generality will fit equally well, as more and more of the incident [ie., the detail] is left out .... but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas’-” Id. Using this framework, the court concluded that the works before it were similar only in them basic themes or outlines, and that the plaintiffs basic theme was “too generalized an abstraction from what she wrote.” Id. at 122. In other words, “[i]t was only part of her ideas” and “no more susceptible of copyright than the outline of Romeo and Juliet.” Id. In Computer Associates Int'l, Inc. v. Altai, the Second Circuit built upon Judge Hand’s “abstractions” analysis to create the “abstraction-filtration-comparison” test, which is now widely used to assess infringement of computer programs. The challenge for the Altai court was to formulate a structured approach for separating ideas, concepts, and processes in computer programming from their expression, as well as separating expression entitled to protection from that which is not, e.g., due to non-originality, scenes a faire, merger, or public domain. The resulting test is three-fold. First, the court should “break down the allegedly infringed program into its constituent structural parts.” Id. at 706. “Then, by examining each of these parts for such things as incorporated ideas, expression that is necessarily incidental to those ideas, and elements that are taken from the public domain, a court would then be able to sift out all non-protectable material.” Id. “Left with a kernel, or possible kernels, of creative expression after following this process of elimination, the court’s last step would be to compare this material with the structure of an allegedly infringing program .... [to] determine whether the protecta-ble elements of the programs at issue are substantially similar so as to warrant a finding of infringement.” Id. This final inquiry “focuses on whether the defendant copied any aspect of this protected expression, as well as an assessment of the copied portion’s relative importance with respect to the plaintiffs overall program.” Id. at 710. Under the traditional Amstein test and even in Nichols, the use of “dissection” or expert testimony was discouraged if not prohibited in the final “substantial similarity” inquiry, which was judged strictly from the perspective of the ordinary lay listener or observer. The Altai court, however, recognized that unlike film or music, the subject matter of computer programming is “somewhat impenetrable” and not readily comprehensible to the lay person, whether judge or jury. Id. at 713. Thus, in computer cases, the factfinder “need not be limited by the structures of his own lay perspective”, and the admissibility of expert testimony, even on the substantial similarity question, should be left to the trial judge’s discretion. Id. The Altai court emphasized, however, that “[i]n so holding, [it did] not intend to disturb the traditional role of lay observers in judging substantial similarity in copyright cases that involve the aesthetic arts, such as music, visual,works or literature.” Id. at 713-14. Although the Altai test, has not been extensively employed in its pure form outside the realm of computer programming and other highly technical subject matters, courts throughout the country have borrowed from its structure to add a threshold “filtering” step to the traditional lay “ordinary observer” test in cases 'where the plaintiffs work contains both protected and unprotectable elements. See, e.g., R. Ready Prods., Inc. v. Cantrell, 85 F.Supp.2d 672, 683 (S.D.Tex.2000). The Second Circuit refers to this filtering approach as a “ ‘more discerning’ ordinary observer” test. Hamil America Inc., v. GFI, 193 F.3d 92, 101 (2nd Cir.1999) (The “ ‘more discerning’ ordinary observer” standard “is applied when a work contains both protectible and unprotectible elements, and requires the court to eliminate the unprotectible elements from its consideration and to ask whether the protectible elements, standing alone, .are substantially similar.”), cert. denied, 528 U.S. 1160, 120 S.Ct. 1171, 145 L.Ed.2d 1080 (2000); Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 765-66 (2nd Cir.1991). The Sixth Circuit has incorporated this threshold “filtering” step into a structured two-tier analysis. “[1] first, the court must ‘identify[] which aspects of the artist’s work, if any, are protectible by copyright’ and, [2] second, ‘determin[e] whether the allegedly infringing work is substantially similar to the protectible elements of the artist’s work.’ ” Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 274 (6th Cir.2009) (quoting Kohus v. Mariol, 328 F.3d 848, 855 (6th Cir.2003)) (internal quotation and citation omitted). “To complete the first step, the court must ‘filter’ out elements of the work that are not original to the author[,].... [sjcenesa faire, the indispensable or standard aspects of a work, or those that ‘follow directly from unprotectable ideas’.... ” Id. (footnote omitted) (quoting Murray Hill Publ’ns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 318-19 (6th Cir.2004)). Other courts have simply applied the filter as a threshold matter or as an integral part of the substantial similarity inquiry itself. See, e.g. Mattel, Inc. v. MGA Entertainment, Inc., 616 F.3d 904, 916 (9th Cir.2010) (Kozinski, J.) (“The district court did err, however, in failing to filter out all the unprotectable elements of Bryant’s sketches. * * * Although substantial similarity was the appropriate standard, a finding of substantial similarity between two works can’t be based on similarities in unprotectable elements.”); R. Ready Prods., 85 F.Supp.2d at 683 (“In determining whether there is substantial similarity that will suffice for proof of infringement, the Court should first filter out all of those elements that are not protected under copyright laws.”); Churchill Livingstone, Inc. v. Williams & Wilkins, 949 F.Supp. 1045, 1050 (S.D.N.Y.1996) (“An elaborate abstraction-filtration-comparison for each and every element of an alleged infringement, which may be helpful to deal with a complex computer program when the claim is nonliteral similarity, may not be necessary in a straightforward textual copyright case. In a case such as this, simply examining the relevant parts of a copyrighted work will allow a court to apply settled'copyright principles and thereby filter out unprotected elements.”). Against this backdrop, the Eight Circuit stands out in expressly disallowing the filtering of unprotectable elements. In Taylor Corp. v. Four Seasons Greetings, LLC, in two consecutive opinions (Taylor I and Taylor II ), the Eight Circuit (which follows the Ninth Circuit’s “intrinsic/extrinsic” test), rejected the defendant’s argument that the district court should have analyzed the works more closely to determine whether the similarity between them derived solely from unprotectable elements. 315 F.3d at 1043, 403 F.3d at 966. The court found no error in the district court’s “total concept and feel” analysis and held that it is “improper to perform analytic dissection, or ‘filtering,’ when conducting the ‘intrinsic’ step.” 403 F.3d at 966. d. Reconciling “Filter” with “Total Concept and Feel” Given the apparent inconsistencies between a “filter” analysis and the Ninth Circuit’s “total concept and feel” approach, it is somewhat surprising that the Second Circuit, matrix of the “filter” approach (also known as the “more discerning” ordinary observer test), has also adopted the “total concept and feel” approach (though without the analytical structure of the extrinsic/intrinsic test), including holding that a combination of unprotectable elements can support a finding of substantial similarity. On their faces, these two approaches seem mutually exclusive, as the Eight Circuit has found. At a minimum, as other courts have recognized, reconciling the two “is not ... straightforward.” Mena v. Fox Entertainment Group, Inc., 2012 WL 4741389 *4 (S.D.N.Y.2012). It can be done, however. If the “total concept and feel” test is read with an eye toward Feist and the limiting principles enunciated in Satava, supra, it need not devolve into the “wholly amorphous” “abdication of analysis” it has been critically called. Moreover, when read in light of their specific facts, the cases in which courts have found substantial similarity based an original combination of unpro-tectable elements (which this Court will refer to as the “unique combination” cases) reveal that the two approaches can co-exist peacefully, even synergistieally. The “unique combination” cases out of the Second Circuit are particularly helpful to understanding how these two analyses can and should work together. One of the first' such cases was Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1004 (2nd Cir.1995), in which the defendant had made almost exact copies of the plaintiffs fall-theme sweaters. The defendant argued that the copying was not actionable because the elements copied were not pro-tectable — e.g., fall colors, images of squirrels and fall leaves. The Knitwaves court rejected this argument, finding it inconsistent with the Supreme Court’s decision in Feist. 71 F.3d at 1003. In Feist, the Supreme Court found that the plaintiffs telephone directory failed to meet the originality requirement because the “selection, coordination, and arrangement” of the -content (which itself consisted of unprotectable facts) was “devoid of even the slightest trace of creativity.” 499 U.S. at 362, 111 S.Ct. 1282. However, the Feist court’s analysis makes clear that a combination comprised entirely of unprotectable elements — even the white pages — can be subject to copyright provided the author’s “selection, coordination, and arrangement” of the elements are sufficiently creative and original. Id. (“The question that remains is whether [the plaintiff] selected, coordinated, or arranged these uncopyrightable facts in an original way.”). As the Knitwaves court explained: “What is protectible then is ‘the author’s original contributions,’ — the original way in which the author has ‘selected, coordinated, and arranged’ the elements of his or her work.” 71 F.3d at 1004 (quoting Feist, 499 U.S. at 358, 111 S.Ct. 1282). Therefore, the “more discerning” test (i.e., the “filter” analysis) does not require that the court “dissect [constituent elements] into their separate components, and compare only those elements which are in themselves copyrightable.” Id. at 1003 (emphasis). What role is left then for the “more discerning” or “filter” test? The court in Mena v. Fox Entertainment Group, Inc does an excellent job explaining the way the two tests should work together. There, the plaintiff argued that the court “should not engage in the filtration process that the discerning observer test seems to require and instead should be principally guided by comparing the contested work’s ‘total concept and overall feel’ with that of the allegedly infringing work.” 2012 WL 4741389 at *4 (quoting plaintiffs brief, internal quotation marks omitted). The defendant, on the other hand, urged the court to “confine its focus narrowly to the individual protectible elements of [the plaintiffs] work, ignoring those aspects of [his] work that are unprotectible in making the comparison.” 'Id. (quoting defendant’s brief, internal quotation marks omitted). As the Mena court, explained, “[n]either ... position accurately describes the state of the law.” Id. While a court’s analysis should begin with the “more discerning” test, by filtering out similarity based solely on unpro-tectable elements, the court should remain mindful that this “runs the risk of overlooking wholesale usurpation of [the] author’s expression.” Id. .at *5 (quoting Hoehling, 618 F.2d at 979-80). Thus, a “dissected” filtered analysis is not “independently sufficient.” Id. To determine if the author has created a unique combination of unprotectable elements, the court should also perform the “total concept and feel” analysis. Id. To guard against this latter analysis becoming “carte blanche to rest findings of infringement on vague or amorphous determinations,” the court should “take[] care to identify precisely the particular aesthetic decisions — original to the plaintiff and copied by the defendant — that might be thought to make the designs similar in the aggregate.” Id. at *6 (quoting Tufenkian, 338 F.3d at 134). In this way, the court can ensure that a finding of substantial similarity in such cases is based not on any similarity between the unprotectable elements themselves, but on a copying of the author’s unique selection and arrangement of those elements, which is creative and original. For the most part, the cases bear this out. Indeed, in nearly all the “unique combination” cases the reader can sense a strong conviction that the plaintiffs crea-five work was flagrantly pirated. In Roth ■ Greeting Cards — the source of the “total concept and feel” test — the defendant was shown to have a practice of acquiring the plaintiffs greeting cards at retail and gift shows, making minor changes, and then selling the copies under its own label. 429 F.2d at 1110-11. The messages in the cards were unprotectable short phrases. But the Ninth Circuit held that the “proper analysis of the problem requires that all elements of each card, including text, arrangement of text, art work, and association between art work and text, be considered as a whole.” Id. at 1109. Doing so, the court found the similarity between the cards to be “remarkable.” Id. at 1110. For example, one Roth card had on its front “a colored drawing of a cute moppet suppressing a smile and, on the inside, the words T wuv you.’ ” Id. The defendant’s corresponding card was “identical,” except for “minor variations in color and style.” Id. A Roth card with “I miss you already” on the front, depicted a forlorn, weeping boy with an inside message reading “And You Haven’t even Left.” Id. The defendant’s copy was identical, simply changing the drawing of the weeping boy to a drawing of a “forlorn and weeping man.” Id. Likewise, in Knitwaves (the case of the fall sweaters), the defendant’s sweaters not only “feature[d] the same two fall symbols ... leaves and squirrels” that the plaintiff used, they also (1) rendered the squirrel and leaf in a substantially similar way, (2) “employed them in virtually the same manner ... as felt appliques stitched to the sweaters’ surface,” (3) placed them “on strikingly similar backgrounds (‘shadow-striped’ for the Leaf Sweater, and four-paneled for the Squirrel Cardigan);” and (4) used “virtually the same color scheme.” 71 F.3d at 1004. Indeed, on the leaf sweater, the defendant even copied the plaintiffs “unusual manner of stitching the leaves to the sweater,” with the leaves stitched not “around their edges but rather along the veins of the leaves, leaving the edges unattached.” Id. at n. 4. The backgrounds were so similar, the court found that the defendant’s background had been obviously “lifted entirely” from the plaintiffs work. In short, the similarity was “overwhelming.” Id. at 1005. The defendant had not simply copied unprotectable constituent elements from the plaintiffs work, as the defendant contended; it had copied wholesale the plaintiffs unique selection and arrangements of those elements. e. The Fifth Circuit Jurisprudence: The district court in Positive Black Talk, after analyzing the state of the law, stated that it would “be forced to basically take a shot in the dark as to the law to be applied.” 2003 WL 1921999 (E.D.La. 1999). Although the Fifth Circuit’s subsequent opinion in that case provided some guidance, it is still difficult to articulate with certainty how the Fifth Circuit would analyze substantial similarity in a music copyright case. Part of the reason for this is that the court .in Positive Black Talk adhered tightly to a plain error analysis, the plaintiff having failed to object to specific jury instructions. 394 F.3d at 368-69. Thus, the court limited itself to discerning whether the district court had made an “obviously incorrect statement of law” and largely refrained from making affirmative pronouncements as to the standard the court would have applied de novo. One thing that can be said with certainty is that the Fifth Circuit has traditionally applied the “layman” or “ordinary listener”- test, which was articulated in Creations Unlimited: “To determine whether an instance of copying is legally actionable, a side-by-side comparison must be made between the original and the copy to determine whether a layman would view the two works as ‘substantially similar.’ ” Creations Unlimited, Inc. v. McCain, 112 F.3d 814, 816 (5th Cir.1997). This formulation was tacitly approved in Positive Black Talk, and both sides here agree that this is the basic applicable standard for determining substantial similarity. It also seems fairly clear that the Fifth Circuit would endorse the threshold use of a “filter” to exclude unprotectable elements from the substantial similarity analysis. The Circuit did so expressly in Kep-ner-Tregoe, stating: “To determine the scope of copyright protection in a close case, a court may have to filter out ideas, processes, facts, idea/expression mergers, and other unprotectable elements of plaintiffs copyrighted materials to ascertain whether the defendant infringed protecta-ble elements of those materials.” 12 F.3d at 533-34. The court stated further that if the defendant had copied only “unprotectable elements” of the plaintiffs work, it would be required to “reverse the district court’s judgment” finding infringement. Id. at 533. Although Kepner-Tregoe did not deal with music or any other artistic expression, the opinion contains nothing to suggest that the filtering of unprotectable elements should not be done in such cases. At least two other Sections of this Court have utilized a “filter” analysis in determining substantial similarity in a music copyright case. See Positive Black Talk, Inc. v. Cash Money Records, 2003 WL 1921999 *2 (E.D.La.2003) (“[Determination as to infringement of a copyright — the issue in this case — involves identification and isolation of the work’s unprotectible elements.... Such identification is necessary because a finding of infringement cannot be premised solely upon copying of non — protective elements of a musical composition.”); Landry v. Atlantic Recording Corp., 2007 WL 4302074 *4 (E.D.La.2007) (“Where there are both protective and unprotectible elements of a work, the court must attempt to extract the unprotectible elements from ... consideration and ask whether the protective elements standing alone are substantially similar.”) (quoting Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2nd Cir.1995)). Of course, Kepner-Tregoe must be read in light of the Supreme Court’s opinion in Feist. f. The Approach Employed Herein: In light of the foregoing, the substantial similarity inquiry employed herein shall be two-fold: a dissection and “filtering” of unprotectable constituent elements, as prescribed in Kepner-Tregoe, followed by a side-by-side comparison using the “layperson” standard articulated in Creations Unlimited., Given the plaintiffs allegation that the Defendants have infringed particular constituent elements of his songs {e.g., melody, hook, lyrics), it also seems clear that a side-by-side comparison of these individual elements is appropriate. In Positive Black Talk, the plaintiff argued that the district court erred in its jury instructions by suggesting that the jury was required “to compare the two works as a whole ” to determine whether there was “overall similarity” between the songs. 394 F.3d at 373-74 (emphasis added). The court found that by instructing the jury to compare the expressions in the two works “that are shared,” the district court had “correctly indicate[d] that the jury should compare the parts of the two songs that are similar in determining substantial similarity.” Id. at 374 (emphasis added). Thus, a finding of substantial similarity may be based on a similarity between constituent elements, even where the songs “as a whole” are overall dissimilar. Upon a finding of such similarity between constituent elements, the importance of the similar element(s) would then be assessed both quantitatively and qualitatively to determine whether the similarity qualifies as “substantial” and, thus, is actionable. Id. at 373 & n. 12. What is less clear is the extent to which the Ninth Circuit’s “total concept and feel” analysis should play a role in this Court’s analysis. The district court in Positive Black Talk used the Ninth Circuit’s “extrinsic/intrinsic” test, and even instructed the jury that the test was whether the intended audience would find the “total concept and feel” of the two songs to be substantially similar. 394 F.3d at 373. On review, the Fifth Circuit found no plain error in the jury instruction and stated that the “test articulated in Creations Unlimited is similar to the Ninth Circuit’s intrinsic test, which ... asks whether the ordinary reasonable person would find the total concept and feel of the works to be substantially similar.” 394 F.3d at 374 n. 13 (emphasis added) (quotations omitted). This of course raises the “unique combination” question. The question is more than academic in this case, for as to several songs the plaintiffs allegations of infringement are based: (1) on similarity as to a single element (e.g., beat), which the Court has found to be unprotectable, (2) on similarity between multiple elements, all of which the Court has found to be unprotectable, or (3) ón similarity between multiple elements, certain of which are protected and certain of which are unprotectable. Where the alleged infringement is based solely on the alleged copying of a single unprotectable element, it seems clear that a finding of substantial similarity would be directly contrary to the Fifth Circuit’s holding in Kepner-Tregoe. See 12 F.3d at 533 (a conclusion that the defendant “only copied unprotectable elements” of the plaintiffs work would mandate reversal of district court’s judgment finding infringement). Thus, where the plaintiff has claimed- infringement of a particular song based solely on the copying of a single unprotectable element, the Court has found the claim to be non-actionable as a threshold matter. In all other cases, including claims based upon alleged similarity as to two unpro-tectable elements, the Court has performed a side-by-side comparison of the allegedly infringed and infringing songs. Where the individual elements are themselves protectable, the Court has evaluated the songs both (1) for similarity between the elements alleged in the complaint to be similar (as described in Positive Black Talk) and (2) for similarity as to a combination of elements and/or as to the work as a whole, including assessing whether particular parts of the songs might be similar due a combination of elements, even though the works taken as a whole are dissimilar. Where one or more of the alleged elements is unprotectable, the Court has considered the unprotectable elements) only in evaluating the works for similarity as to a combination of elements and/or as to the work as a whole and only to the extent that such element(s) contribute to an overall unique “selection, coordination, and arrangement” of elements that might itself be original. In short, the Court has evaluated the song pairs under every possible analysis set forth above. With the exception of three claims, the Court was unable to find substantial similarity utilizing any test. These three exceptions are: (1) “Move That Body” (allegedly infringed by Nelly’s “Move That Body”); (2) “I Like Your Way” (allegedly infringed by T-Pain’s “Put It Down”); and (3) “Blues Man” (allegedly infringed by T-Pain’s “Reggae Night”). As to “Move That Body” (versus Nelly’s “Move That Body”) and “I Like Your Way” (versus T-Pain’s “Put It Down”), the Court’s conclusion is that a reasonable juror could find substantial similarity under any of the tests above. The only claim for which the tests produce an inconsistent finding is that of “Blues Man” (allegedly infringed by T-Pain’s “Reggae Night”). As will be explained below, the “total concept and feel” of “Blues Man” and “Reggae Night” are not at all similar. However, a reasonable juror might be able to find a substantial similarity under a “dissection” approach. Thus, given the implication in Positive Black Talk that substantial similarity necessitates only that parts of a work be similar (provided the similar parts are sufficiently qualitatively and/or quantitatively important), the Court will nonetheless deny summary judgment at this juncture as to the “Blues Man” claim, as well. To summarize, with the exception of claims based solely on a single unprotecta-ble element (which the Court has found to be non-actionable as a threshold matter), the Court has conducted a side-by-side listening comparison of each of the plaintiffs songs and the song that allegedly infringes it. In doing so, the Court compared each pair of songs (the allegedly infringed song vs. the allegedly infringing song) by assessing both (1) whether there is similarity between any protectable element allegedly infringed' and the element of the Defendant’s song that allegedly infringed it; and (2) whether there is any similarity between the “total concept and feel” of the plaintiffs song (or part thereof) and the “total concept and feel” of the allegedly infringing song, including any similarity that might be enhanced or derived from an unprotectable element. These approaches produced identical results except as to “Blues Man” (allegedly infringed by T-Pain’s “Reggae Night”), which discrepancy the Court resolved in the plaintiffs favor. III. ANALYSIS. The Court will address first the “filter” analysis wherein the Court determined certain constituent elements to be unpro-tectable and found to be non-actionable those alleged infringements which were based solely on alleged similarity in a single unprotectable element. Thereafter, the Court will explain the side-by-side comparison of the songs that remained. A. Filter Analysis: In his complaint, as to each of his 45 songs, the plaintiff specifies the constituent musical elements within the song that he claims have been infringed by one or more of the Defendants’ songs. These musical elements include beat, lyrics, chords, melody, chant, “hook,” . horns, and “gliss.” Both melody and hook are protected in all circumstances herein. Beat, chords, chant, horns, and “gliss,” as used in the plaintiffs works, are not protectable, as discussed below. Lyrics generally are protected, but not those at issue here. 1. Lyrics: Unprotectable Words and Short Phrases Lyrics are protected by copyright as a “literary work” — an expression “in words.” See 17 U.S.C. § 101. However, single “[w]ords and short phrases such as names, titles, and slogans,” are not protected. 37 C.F.R. § 202.1(a). In addition, common expressions and phrases are not entitled to protection for they do not satisfy the originality requirement. See, e.g., Emanation Inc. v. Zomba Recording Inc., 72 Fed.Appx. 187, 190 (5th Cir.2003) (finding that common Cajun phrases “ “We Gon Pass a Good Time, Yeah, Cher’ and You Gotta Suck Da Head of Dem Der Crawfish’ do not satisfy the originality requirement”); Johnson v. Gordon, 409 F.3d 12, 23-24 (1st Cir.2005) (lyric “You’re the one for me” found to be “too trite to warrant copyright protection”); Prunte v. Universal Music Group, Inc., 699 F.Supp.2d 15, 26 (D.D.C. 2010) (use of short phrase “so high” and use of touching the sky as a metaphor for being high found to be too clichéd to support a finding of actionable copyright infringement); Jean v. Bug Music Inc., 2002 WL 287786 *6 (S.D.N.Y.2002) (“[A] reasonable jury could only conclude that the lyrical excerpt ‘clap your hands’ is not afforded copyright protection because the excerpt is a common phrase.”). The plaintiff does not specify in his complaint which lyrics he contends are infringed or the lyrics of the Defendant’s songs that are infringing. In opposition to the instant motion, the plaintiff submitted the report of Archie K. Milton, which contains cryptic references to lyrics, most of which do not even specify the song from which they are extracted. The defendant’s expert, Lawrence Ferrara, Ph.D., is more helpful, as Dr. Ferrara extracted any lyrics from the allegedly infringed and infringing songs that were even arguably similar. The chart below compares the Defendant’s lyrics for which there can be found even a remote similarity to the plaintiffs lyrics. Having analyzed these, as well as conducting its own scrutiny of the songs purportedly containing infringed or infringing lyrics, the Court concludes that none the allegedly infringed lyrics is entitled to copyright protection. As can be seen from the chart, most of the allegedly infringed lyrics amount to one word or a very short phrase (e.g., “Now freeze,” “Overtime,” “Dancin’ shoes,” “LA,” “New York”). These are not entitled to protection. See 37 C.F.R. § 202.1(a). Even those that consist of more than two words (e.g., “I can’t get enough,” “Win, win, win, at all cost,” “raise your hands in the air”) are common, everyday expressions, which do not satisfy the originality requirement. Moreover, many of the allegedly infringing lyrics referenced by Mr. Milton bear no similarity to the plaintiffs lyrics. Compare, e.g., “All I Do Is Win” with “Sportsman’s Paradise.” Five of the claimed infringements are based on allege similarity as to lyrics only. These are: (1) “Overtime” by Ace Hood vs. plaintiffs “Overtime;” (2) “All I do Is Win” by DJ Khaled vs. plaintiffs “Move That Body;” (3) “All I do Is Win” by DJ Khaled vs. plaintiffs “Sportsman’s Paradise;” (4) “Good Life” by Kanye West vs. plaintiffs “Spice;” and (5) “Freeze” by T-Pain vs. plaintiffs “Dancing Shoes.” These are dismissed as part of the “filtering” analysis, for the alleged similarity is based solely on a single unprotectable element. Where the plaintiff has alleged similarity as to lyrics in addition to other elements, the Court has included lyrics as part of the side-by-side comparison discussed below, to determine whether the lyrics, while unprotectable themselves, might contribute to an overall impression of similarity. 2. Scenes a Faire: Unoriginal “Chords” and “Beat” The Plaintiff has alleged that the defendants have infringed the “chords” and “beat” in dozens of his songs. However, the basic harmonic and rhythmic building blocks of music, especially popular music, have long been treated by courts as well-worn, unoriginal elements that are not entitled to copyright protection. Moreover, the basic beats and chord progressions used in the plaintiffs songs are customary throughout the funk and R & B genres, making them unprotectable scenes á faire, as explained below. As recognized long ago in Northern Music Corp. v. King Record Distributing Co., harmony “is achieved according to rules which have been known for many years.” 105 F.Supp. at 400. “Being in the public domain for so long,” it will rarely, if ever be “itself ... the subject of copyright.” Id. Not surprisingly, courts have been consistent in holding that the basic chord progressions so ubiquitous in popular music are unoriginal and, thus, únpro-tectable. See, e.g., Johnson v. Gordon, 409 F.3d 12, 23 (1st Cir.2005) (finding III, II chord progression to be a “stereotypical building block of music composition” and thus “unprotectable”); Tisi v. Patrick, 97 F.Supp.2d 539, 544 (S.D.N.Y.2000) (basic chord progression found to be “so common to rock and pop genres (indeed, to every type of Western music)” that it did not support finding of infringement); McRae v. Smith, 968 F.Supp. 559, 566-67 (D.Colo. 1997) (finding “chord progression and rhythmic feel” to be “used in thousands of other songs” and thus “non protectable”); Jarvis v. A&M Records, 827 F.Supp. 282, 291 (D.N.J.1993) (“Easily arrived at phrases and chord progressions are usually non copyrightable... ”); Intersong-USA v. CBS, Inc., 757 F.Supp. 274, 282 (S.D.N.Y.1991) (harmonic progression found to be unprotectable scenes a faire); cf. Swirsky v. Carey, 376 F.3d 841, 848 (9th Cir.2004) (finding that “although chord progressions may not be individually protected,” they could combine with rhythm and pitch to support a finding of infringement). While it is theoretically possible that a common chord progression could be “exploited in an original (and thus, protectable) manner,” it would be a rare occurrence. Certainly, there is nothing in this record to suggest that the plaintiff exploited chord progressions in an original way not customary to the genre. As with chord progressions, there are only a limited number of tempos, and “these appear to have been long since exhausted.” Northern Music, 105 F.Supp. at 400. Thus, “originality of rhythm is a rarity, if not an impossibility.” Id. Accordingly, as with chords, courts have been consistent in finding rhythm to be unprotectable. See, e.g., Currin v. Arista Records, Inc. 724 F.Supp.2d 286, 294 (D.Conn.2010) (basic 4/4 rhythm is “commonplace”); Velez v. Sony Discos, 2007 WL 120686 *12 (S.D.N.Y.2007) (finding “common time rhythm” used in both songs to be unpro-tectable scenes a faire); Tisi, 97 F.Supp.2d at 544 (guitar rhythm and “basic percussion rhythm” found to be “extremely common in the pop rock genre”); McRae, 968 F.Supp. at 566 (two-step rhythm found to be “similar to many other-country songs” and thus “non protecta-ble”); Intersong, 757 F.Supp. at 282 (“recurring eighth note rhythm” found to be unprotectable scenes a, faire). While it is possible that rhythm might be expressed in an original and innovative way, there is nothing in this record to suggest that the plaintiffs use of rhythm is anything but customary to the genre. Thus, like chords, it is an unprotectable element. Twenty-two (22) of the claimed infringements are based upon alleged similarity as to “chords” alone: _“Chords Only” Claims_ _Artist_Defendant’s Song_Plaintiff’s Song 1 Ace Hood_Body 2 Body_ Runniri Away_ 2 Ace Hood_ErrvThang_Runniri Away_ 3 Akon_69_Can’t Get You Out Of My Mind 4 Akon_Holla Holla _It’s All About The Family 5 DJ Khaled_All I Do Is Win_Louisiana_ 6 D J Khaled_No New Friends_Can’t Get You Out Of Mv Mind 7 Jaime Foxx_Blame It_Nothin’ But The Funk_ 8_Spice_ 9 Lonely Island I * * * *ed My Aunt Runniri Away 10 Rick Ross_Aston Martin Music_Romantic Sequence_ 11 Rick Ross_B.M.F._Fur Elise_ 12 Rick Ross_The Boss_Ring -Me_ 13 Tay Dizm_Beam Me Up_Party Down_ 14 T-Pain_Can’t Believe It_Slow and Easy_ 15 T-Pain_Church_ Fur Elise_ 16 T-Pain_Freeze_'_- Hooked On You_ 17 T-Pain_I’m Sprung_Can’t Get You Out Of My Mind 18 T-Pain_Put It Down_Can’t Get You Out Of My Mind 19 T-Pain_Regular Girl_Nothin’ But The Funk_ 20 T-Pain_Save You_Can’t Get You Out Of My Mind 21 T-Pain_Show U How_Still (Singing the Blues)_ 22 T-Pain/Lil Wane_Bang Bang Pow Pow_It’s All About The Family Twenty-nine (29) of the claimed infringements are based upon alleged similarity as to “beat” alone: “Beat Only” Claims Artists Song Title Plaintiffs Song 1 Ace Hood Overtime I Got The Rhythm On 2 Ace Hood Body 2 Body Bam There You Have It 3 Akon Drowning In My Blues 4 Akon Holla Holla Drowning In My Blues 5 DJ Khaled All I Do Is Win Ring Me 6 DJ Khaled I Wish You Would Bam There, You Have It 7 DJ Khaled No New Friends Bam There You Have It 8 DJ Khaled Take It To The Head Drowning In My Blues 9 DJ Khaled Welcome To My Hood It’s On (The Jam Is On) 10 E40 U and Pat Spice 11 Jennifer Hudson What’s Wrong I Like Your Way 12 Kanye West Good Life Hip Jazz 13 Nelly Move That Body Love Fest 14 Pitbull Hey Baby Starlite 15 Rick Ross All The Money In The World Drowning In My Blues 16 Rick Ross Aston Martin Music Bam There You Have It 17 Rick Ross B.M.F. My Bad 18 Rick Ross The Boss Drowning In My Blues 19 T-Pain 5 O’ Clock Drowning In My Blues 20 T-Pain Buy You A Drank Drowning In My Blues 21 T-Pain Church Space Station 22 T-Pain Freeze Sportsman’s Paradise 23 T-Pain Nuthin’ Kids 24T-Pain Rap Song Bam There You Have It 25T-Pain Reggae Night Bam There You Have It 26T-Pain Regular Girl Runnin’ Away 27T-Pain Show U How Hooked On You 28 T-Pain Take Your Shirt Off Bam There You Have It 29 T-Pain/Lil Wane_Bang-Bang Pow Pow Oh Carnival All of these claims (“chords only” claims and “beat only” claims) are dismissed herein as part of the Court’s “filter” analysis, for the alleged similarity is based solely on a single unprotectable element. Where the plaintiff has alleged similarity as to “chords” or “beat” in addition to similarity as to other elements (including where “chord” and “beat” are the only two elements alleged to be similar), the Court has included chord and beat as part of its side-by-side comparison to determine whether they might contribute to holistic impression of similarity. 3. Other Basic Musical Elements Not Original to the Plaintiff The only alleged similarity between T-Pain’s “Freeze” and the plaintiffs “When She Smiles” is in the “gliss” (glissando). Likewise, one of the alleged similarities between Lonely Island’s “I * * * *ed My Aunt” - and the plaintiffs “Goin See the Man” is in the use of “horns.” Both the use of horns and the use of glissando are common, centuries-old musical practices. See Ferrara Reports (Rec. Doc. 58-4 at 58 of 191; Rec. Doc. 113-2 at 19 of 20). Obviously, neither is original to the plaintiff. Nor are they used in an uncommon or original way. While either of these devices might combine with other elements {e.g., melody) to establish infringement, standing alone they cannot sustain a finding of substantial similarity. As gliss is the only alleged similarity between T-Pain’s “Freeze” and “When She Smiles,” this claim is dismissed as a threshold matter. Finally, in claiming infringement of “Sportman’s Paradise” by Chris Brown’s “Kiss, Kiss,” the sole similarity alleged is in “chant.” As described by the defendant’s expert, the chants in these two songs feature a “shouted lyric that starts with an ‘ah’ on the second half of beat 3 that swoops up, and is followed by an accented word on the next downbeat.” Rec. Doc. 58-4 at 86. As Dr. Ferrara explains, this precise type of chant — “using the word ‘Ah’ that swoops up, and then follows with an accented word on the next downbeat”- — “dates back to at least to the 1960’s,” as evidenced by at least three recorded instances of its usage that predate the plaintiffs, which was authored in 1999. Id. at 86-87. Because the sole alleged similarity between these songs is this unoriginal element, this claim, too, will be dismissed as a threshold matter. B. Side-by-Side Comparison: For all claimed infringements as to • which the plaintiff alleged similarity as to melody, hook, or a combination of elements, the Court performed a side-by-side comparison to determine whether an ordinary reasonable listener would find the works (or parts thereof) to be substantially similar. The Court listened for similarities in “dissected” elements and also for similarity as to combinations of elements and in the works as a whole. Because of the sheer number of claims and because the Court made every conceivable effort to give the plaintiffs claims the benefit of the doubt, the process was a long and tedious one. Despite the care with which the Court undertook its task, in the overwhelming majority of claims, it found no similarity at all. The chart below lists those claims as to which the Court was unable to find even a slight similarity. Side-by-Side Comparison — No Similarities Pound Artists Song Title Plaintiffs Song Claim 1 Ace Hood Overtime Sudden Death Melody 2 Ace Hood Cash Plow Blues Man Beat 3 Blues Man Hook 4 Ace Hood Can’t Stop Sportsman’s Paradise Chords 5 Sportsman’s Paradise Beat .6 Sportsman’s Paradise Melody 7 Ace Hood Stressin’ Romantic Sequence Chords 8-Romantic Sequence Beat 9 Ace Hood Top of the World Louisiana Chords 10 Louisiana Beat 11 Akon 69 Download My Love Hook 12 Akon Holla Holla My Bad Hook 13 Baby Bash Cyclone It’s On (The Jam Is On) Melody 14 It’s On (The Jam Is On) Beat 15 It’s On (The Jam Is On) Hook 16 Chris Brown Kiss Kiss It’s On (The Jam Is On) Beat 17 It’s On (The Jam Is On) Melody 18 Ciara Go Girl Space Station Chords 19 Space Station Beat 20 Space Station Melody 21 D J Khaled All I Do Is Win I Got the Rhythm On Melody 22 Still (Singing the Blues) Melody 23~ D J Khaled I’m So Hood It’s On (The Jam Is On) Beat 24 It’s On (The Jam Is On) Melody 25~ D J Khaled I Wish You Would Still (Singing the Blues) Chords 26 Still (Singing the Blues) Hook 27 D J Khaled No New Friends It’s All About the Family Hook 28~ DJ Khaled Out Here Grindin Space Station Beat 29 Space Station Melody 30 Still (Singing the Blues) Hook 31 D J Khaled Take It to the Head Never Leave You Baby Chords 32 Never Leave You Baby Hook 33-D J Khaled We Taking Over’ Move That Body Beat 34 Move That Body Hook 35 Still (Singing the Blues) Melody 36 DJKhaled Welcome To My Hood Ring Me Hook 37 ■ E40 U and Dat It’s On (The Jam Is On) Melody 38