Swirsky v. Carey - 376 F.3d 841 (9th Cir. 2004)

Rule:

Under copyright law, the extrinsic test considers whether two works share a similarity of ideas and expression as measured by external, objective criteria. The extrinsic test requires analytical dissection of a work and expert testimony. "Analytical dissection" requires breaking the works down into their constituent elements, and comparing those elements for proof of copying as measured by "substantial similarity." Because the requirement is one of substantial similarity to protected elements of the copyrighted work, it is essential to distinguish between the protected and unprotected material in a plaintiff's work.

Facts:

Plaintiff songwriters sued defendants, a singer and producers, alleging that defendants copied portions of their song. Defendants filed a motion for summary judgment, contending that the plaintiffs’ evidence failed to meet the threshold "extrinsic test" for substantial similarity of works. The district court granted defendants' motion for summary judgment and held that the songwriters' expert had failed to show by external, objective criteria that the two songs shared a similarity of ideas and expression.

Issue:

Did the plaintiffs’ evidence fail to meet the threshold "extrinsic test" for substantial similarity of works, thereby warranting the grant of summary judgment in favor of the defendants? 

Answer:

No.

Conclusion:

The court of appeals reversed the grant of summary judgment, holding that the songwriters' expert's evidence was sufficient 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. The district court erred in ruling portions of the songwriters' song to be unprotectable. The expert adequately explained his methodology and provided an indicium of a sufficient disagreement that concerned the substantial similarity of the two works such that the issue of substantial similarity of the two choruses should have been presented to a jury. The court rejected defendants' contention that the disputed measures were unoriginal or mere musical ideas.