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Swirsky v. Carey

United States Court of Appeals for the Ninth Circuit

February 3, 2004, Argued and Submitted, Pasadena, California ; July 12, 2004, Filed

No. 03-55033

Opinion

 [*843]  AMENDED OPINION 

CANBY, Circuit Judge:

The plaintiffs, Seth Swirsky and Warryn Campbell, brought this action in district court, alleging that a song produced by the defendants infringed the plaintiffs' copyright in the song, "One of Those Love Songs." The defendants moved for summary judgment, contending that the plaintiffs' evidence failed to meet this circuit's threshold "extrinsic test" for substantial similarity of works. The district court granted the motion, holding that the plaintiffs' expert had failed to show by external, objective criteria that the two songs shared a similarity of ideas and expression. Plaintiffs appeal. We conclude that the plaintiffs' expert's evidence was sufficient [**2]  to present a triable issue of the extrinsic similarity of the two songs, and that the district court's ruling to the contrary was based on too mechanical an application of the extrinsic test to these musical compositions. We also conclude that the district court erred in ruling portions of plaintiffs' song to be unprotectable by copyright as a matter of law. We accordingly reverse the summary judgment.

Factual Background

This case concerns the alleged similarity between the choruses of two popular and contemporary rhythm and blues ("R&B") songs: plaintiffs' "One of Those Love Songs" ("One") and Mariah Carey's "Thank God I Found You" ("Thank God"). One was jointly composed by plaintiffs Seth Swirsky and Warryn Campbell (collectively "Swirsky") in 1997. Pursuant to a licensing agreement, One was recorded  [*844]  by the musical group Xscape and released in May 1998 on Xscape's album "Traces of My Lipstick." Thank God was composed by defendants Carey, James Harris III, and Terry Lewis in 1999 and was released on Carey's album "Rainbow" in November 1999.

One and Thank God have generally dissimilar lyrics and verse melodies, but they share an allegedly similar [**3]  chorus that Swirsky claims as an infringement of One's copyright. 1 [**4]  Swirsky filed this action in district court against Carey, Harris, Lewis, and a number of music companies that had financial interests in Thank God (collectively "Carey") for copyright infringement and related claims. 2 The defendants moved for summary judgment, contending that Swirsky had failed to present a triable issue on the required first, or "extrinsic," part of our circuit's two-part test for the establishment of substantial similarity necessary to sustain a claim of copyright infringement. The defendants also contended that portions of One were not protectable by copyright. The district court agreed with both contentions and granted summary judgment to Carey. Swirsky moved for reconsideration, which the district court denied. This appeal followed.

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376 F.3d 841 *; 2004 U.S. App. LEXIS 14251 **; Copy. L. Rep. (CCH) P28,852; 64 Fed. R. Evid. Serv. (Callaghan) 1002

SETH SWIRSKY, an individual d/b/a JULIAN'S DAD; WARRYN CAMPBELL, Plaintiffs-Appellants, v. MARIAH CAREY; JAMES HARRIS, III; TERRY LEWIS; FLYTE TIME PRODUCTIONS, INC., an entity of unknown designation, e/s/a Flyte Tyme Tunes, Inc.; ATV SONGS LLC; RYE SONGS; COLUMBIA RECORDS; SONY MUSIC ENTERTAINMENT, INC.; EMI APRIL MUSIC, Defendants-Appellees.

Subsequent History: As Amended August 24, 2004.

Amended by, Rehearing denied by Swirsky v. Carey, 2004 U.S. App. LEXIS 17969 (9th Cir. Cal., Aug. 24, 2004)

Prior History:  [**1]  Appeal from the United States District Court for the Central District of California. D.C. No. CV-00-09926-CAS. Christina A. Snyder, District Judge, Presiding.

Swirsky v. Carey, 226 F. Supp. 2d 1224, 2002 U.S. Dist. LEXIS 20399 (C.D. Cal., Aug. 27, 2002)

Disposition: Reversed and remanded.

CORE TERMS

substantially similar, district court, song, musical, extrinsic, chorus, pitch, choruses, summary judgment, transcriptions, measures, rhythm, basslines, similarity, sequence, matter of law, scenes, infringement, copying, chord, unprotectable, methodology, progression, lyrics, tempo, analyzing, ornament, plaintiffs', comparing, intrinsic

Civil Procedure, Appeals, Summary Judgment Review, Standards of Review, Copyright Law, Copying by Defendants, Substantial Similarity, General Overview, Summary Judgment, Entitlement as Matter of Law, Standards of Review, De Novo Review, Copyright Infringement Actions, Civil Infringement Actions, Judicial Review, Standards for Granting Summary Judgment, Burdens of Proof, Elements, Copying by Defendants, Ownership, Presumptions, Scope of Copyright Protection, Ownership Interests, Judgments, Evidentiary Considerations, Extrinsic Tests, Intrinsic Tests, Subject Matter, Protected Subject Matter, Limited Protection for Ideas, Statutory Copyright & Fixation, Literary Works, Scope of Protection, Musical Works, Governments, Courts, Judicial Precedent, Musical Arrangements, Formalities, Validity of Copyright, Validity of Facts, Deposit & Registration Requirements, Registration, Registration Certificates, Originality Requirement, Abuse of Discretion, Evidence, Admissibility, Procedural Matters, Rulings on Evidence, Relief From Judgments, Altering & Amending Judgments