A federal judge said Monday that Post Malone’s last-ditch effort to have the authorship battle over his chart-topping megahit “Circles” dismissed ahead of a trial next month “doesn’t work for me.”
Though U.S. District Judge Otis D. Wright, II, declined to rule from the bench on Malone’s dismissal motion after an afternoon hearing on the matter, the federal judge made it clear he was still anticipating a May 17 trial.
In his courtroom in downtown Los Angeles, Judge Wright said he was perplexed by the argument that Malone and producer Frank Dukes earned joint authorship credit on “Circles,” but Canadian songwriter and plaintiff Tyler Armes did not, after the three musicians collaborated on a rough mix of the multiplatinum song during a jam session in August 2018. According to Malone, only he and Dukes shared veto control during the overnight session.
“You don’t become a joint author unless you control the supervision,” Malone’s lawyer Christine Lepera argued Monday, claiming Armes only offered “suggestions” in the room and never had a say over what ended up in the final product.
“I don’t understand that concept,” Judge Wright said, referring to authorship flowing from veto power. “Did Dukes control anything other than the manipulation and operation of the laptop?” he asked.
“Yes, he controlled everything that was decided to be recorded by Mr. Malone and [he] finished the session in collaboration and control with Mr. Malone,” Lepera said.
“So, he then had the ability to simply say that none of this is going to be recorded?” the judge asked.
“Well, yes, with Mr. Malone’s consent,” Lepera responded.
“Well, then he’s not in control,” Judge Wright argued. “If you’re in control, you have veto power.”
Judge Wright did not rule on the motion for summary judgment from the bench, instead saying it was “submitted” pending his final ruling. He further said he saw “a fundamental difference in what the facts are” and signaled he believes the case should go before a jury. To that end, he asked Armes’ lawyer Allison Hart to file paperwork by early next week explaining why her client would prefer a jury trial after Malone’s camp asked for a bench trial.
In her filing opposing the motion for summary judgment, Hart argued that Armes exercised sufficient “control” over the song’s composition when he contributed “indispensable elements” to the bass line, guitar melody and chord progression. She said it was Armes who wrote the part in “Circles” where the F major chord changes to an F minor chord.
Armes has claimed he was “sitting next to [Post], verbally singing the second half of the melody and cadence out loud, giving Post direction as to exactly which notes to play.” He said the trio mutually agreed the song sounded better stripped down to just bass, guitar and drums — what he called “a totally new sound and style for Post.” Armes claimed his input also included the suggestion that the vocals and guitar “should have a large amount of reverb on them.”
Armes first sued Malone for credit in April 2020 in California. The same day, Malone sued Armes in New York. The suits were consolidated in Los Angeles. The court previously dismissed Armes’ claim for authorship of the “Circles” recording, leaving only authorship of the composition still at issue.
Malone, whose legal name is Austin Richard Post, filed his pending motion for summary judgment in February, asking the court to dismiss Armes’ lawsuit with prejudice, meaning forever.
He argued Armes failed to show he contributed anything “original” to the Grammy-nominated song. Post admitted Armes “was present for one early session” but argued Armes offered only “an admittedly extremely commonplace guitar chord progression,” known as 1-4-5 or C-F-G, and possibly a non-recorded “fragment of a guitar melody that Armes claims he sung to Post.”
Post’s paperwork included a copy of Armes’ deposition in which he described the 1-4-5 chord progression as “extremely” common. “Armes admitted that his contributions did not even rise to the level of originality, which is also required in addition to the fixation requirement. He either conceded that his ideas were commonplace musical devices or failed to meet his burden to demonstrate any originality otherwise. Armes thus cannot even establish the threshold requirement that he made a copyrightable contribution,” the filing said.
Armes has alleged he was backstage at a Black Label Society show in Toronto on Aug. 7, 2018, when Post’s manager, Dre London, invited him back to a music studio to “write music” with Post and Dukes. Armes told the court that Post appeared excited by the prospect and exclaimed to him, “Awesome, man, let’s write a tune. Awesome, fuck yeah.” He said the resulting session lasted for six hours and ended with the parties celebrating their creation.
Armes told the court that he memorialized the session by making a voice recording on his phone in which Dukes purportedly plays back the final “Circles” version from the session, Post calls the song “super special,” and Dukes exclaims, “It’s so fucking good! It’s a whole new sound man.”
Armes said Dre later posted a snippet of “Circles” on Instagram, prompting Armes to reach out with his initial request for credit. London allegedly replied several days later, saying, “Just showed Posty the message. He said he remembers. U played a tune on the bass then he played more after it.”
According to Armes, he was offered a five percent cut of the publishing royalties on “Circles” but tried to negotiate a larger share before the offer was revoked.
“We believe that the motion for summary judgment is a desperate attempt by Post Malone and Frank Dukes to try to avoid a trial in this action. We are confident that we will prevail in defeating the motion and look forward to going before a jury,” Armes’ lawyer Allison Hart previously told Rolling Stone.