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Ninth Circuit Revives Copyright Claim Against Sam Smith
Opinion Says District Court Judge Was Too Quick to Dismiss Similarities Between Songs, Finding That Plaintiffs Had Shown Sufficient Overlap to Defeat Summary Judgment
By a MetNews Staff Writer
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SAM SMITH, NORMANI singers |
The Ninth U.S. Circuit Court of Appeals yesterday resurrected a copyright infringement claim filed by a limited liability company owned by a trio of songwriters who accuse pop stars Sam Smith and Normani of stealing their music for the hit “Dancing With a Stranger,” finding that a District Court judge erred in granting summary judgment in favor of the singers.
Pursuant to a stipulation by the parties, the only issue presented for summary judgment was whether the “hook”—or the pop version of a chorus—in the plaintiff’s song is substantially similar to that of the defendants’ hit single.
In a memorandum opinion, signed by Circuit Judges Michelle T. Friedland, Daniel A. Bress, and Senior Circuit Judge Danny J. Boggs of the Sixth U.S. Circuit Court of Appeals, sitting by designation, the court found that Judge Wesley L. Hsu of the Central District of California improperly held that the plaintiffs could not satisfy the extrinsic test as a matter of law. Hsu relied on “objective differences in the shape of the melody in each song” and, in part, on musical graphing of the melodies.
Saying that under the plaintiff’s assertion of a selection-and-arrangement theory of infringement, they need only show that the two works share, in substantial amounts, the same combination of elements such that an ordinary observer would be disposed to overlook any differences, the Ninth Circuit looked to the similarities rather than the technical distinguishing factors and found them sufficient to justify reversing the judgment in the defendants’ favor.
2015 Song
The dispute arose after songwriters Jordan Vincent and Christopher Miranda co-wrote a song titled “Dancing with a Stranger” in 2015. The musical expression is owned by Sound and Color LLC, in which Vincent, Miranda, and Rosco Banlaoi are members.
Vincent, Miranda, and Banlaoi say that they shopped the song around the music industry before posting it to the online sharing platform SoundCloud in January 2016 where it garnered over 500,000 plays.
In 2022, Sound and Color filed a complaint against Smith and Normani Kordei Hamilton (who is professionally known only as “Normani”), among others, arguing that the duo copied the company’s song to create a hit by the same title, which was released in 2019 and achieved “platinum” status in the U.S. and other countries.
In the operative complaint, the plaintiff alleges:
“The hook/chorus in both songs—the most significant part and artistic aspect of these works—contains the lyrics ‘dancing with a stranger’ being sung over a nearly identical melody and musical composition. In both songs, the title, hook, chorus, lyrics, and musical composition are all the same—and are repeated throughout the song giving both songs their identities.”
Hsu granted the defendants’ motion for summary judgment in September 2023, saying that “there are objective differences in the shape of the melody in each song” and noting technical, musical differences between them.
He discounted the plaintiff’s expert testimony that the “feel and groove” of the two songs are the same, a conclusion reached by comparing them after altering the tempo, pitch, vocals, and drums of the Smith and Normani song to match the Sound and Color version. Hsu said the comparison “recast[s] the copyrighted work as containing a different combination of unprotectable elements than it actually contains” and concluded:
“[T]he [defendant’s] Melodic Phrase is not substantially similar to the [plaintiff’s] Melodic Phrase as a matter of law, despite Plaintiff’s experts’ conclusory statements to the contrary. A selection and arrangement copyright is only available if the otherwise unprotectable elements are ‘numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship’….”
Substantially Similar
The Ninth Circuit applies a two-part analysis to determine whether an allegedly infringing work is substantially similar to the plaintiff’s copyrighted work, such that it amounts to an “unlawful appropriation.” The works are analyzed under an extrinsic prong, which may involve expert testimony as to parallels between the two expressions, and an intrinsic test, which involves examining the works from the standpoint of an ordinary, reasonable observer.
Friedland, Bress, and Boggs explained that the extrinsic test serves the purpose of permitting summary judgment in clear cases of non-infringement and typically requires a filtering out of any unprotectable material and determining whether the scope of protection is “broad” or “thin.”
However, the jurists opined:
“[H]ere, Sound and Color asserts a selection-and-arrangement theory of infringement. Under that theory, copyright protection is extended to ‘a combination of unprotectable elements…if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.’ ”
Noting that the defendants do not argue that the selection and arrangement in Sound and Color’s hook does not amount to an unique work but instead argue that the songs are sufficiently different, the judges said “[w]e likewise do not reach” the issue of originality and turned to a comparison of the two musical expressions. They reasoned:
“Here, a reasonable jury could find that the hooks share the same combination of unprotectable elements in substantial amounts. As Sound and Color’s experts opined, the hooks share the same combination of several musical elements, including the same lyrics, the same ‘metric placement’ of the beginning of each syllable, and the same downward ‘melodic contour’…Sound and Color’s experts testified that the hooks also share various other similarities such as a four-on-the-floor bass-drum pattern with syncopated hi-hats.”
Some Variations
The panel continued:
“Defendants emphasize some variations in the pitch sequences and chord progressions. But ‘[o]bjective analysis of music under the extrinsic test cannot mean that a court may simply compare the numerical representations of pitch sequences and the visual representations of notes to determine that two choruses are not substantially similar,’ because ‘[u]nder that approach, expert testimony would not be required at all.’ ”
The judges declared that, at summary judgment, so long as the plaintiff presents some indicia of substantial similarity, the case must be submitted to a trier of fact, a threshold they concluded had been met.
The defendants argue that Hsu’s grant of summary judgment can be affirmed on the alternative ground that the plaintiff’s hook is only entitled to “thin” copyright protection.
Unpersuaded, the judges remarked that such “thin” protection applies where there is a narrow range of creative choices available, a circumstance they found inapplicable to the song at issue. They said:
“Defendants’ exhibit containing forty-three audio excerpts of songs with similar lyrics but differences in rhythm, pitch sequence, and melodic contour illustrates the ‘wide range of possible expression and broad creative choices’ involved in crafting a hook and thereby shows that broad copyright protection is appropriate.”
The case is Sound and Color LLC v. Smith, 23-2680.
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