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Keywords

plaintiffdefendantappealtestimonysummary judgmentcopyrightlease
plaintiffdefendantappealtestimonysummary judgmentcopyright

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Swirsky v. Carey, 376 F.3d 841, 2004 Copr.L.Dec. P 28,852, 71 U.S.P.Q.2d 1491, 64 Fed. R. Evid. Serv. 1002, 04 Cal. Daily Op. Serv. 6178, 2004 Daily Journal D.A.R. 8401

Facts

Seth Swirsky and Warryn Campbell, the plaintiffs, claimed that their song 'One of Those Love Songs,' recorded by Xscape in 1998, was infringed by Mariah Carey's song 'Thank God I Found You,' released in 1999. The plaintiffs argued that the choruses of both songs were similar, despite the overall dissimilarity in lyrics and melodies. The defendants moved for summary judgment, asserting that the plaintiffs failed to demonstrate substantial similarity under the extrinsic test, which the district court accepted, leading to the plaintiffs' appeal.

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.”

Issue

Did the district court err in granting summary judgment for the defendants by ruling that the plaintiffs' evidence failed to meet the extrinsic test for substantial similarity in their copyright infringement claim?

Did the district court err in granting summary judgment for the defendants by ruling that the plaintiffs' evidence failed to meet the extrinsic test for substantial similarity in their copyright infringement claim?

Rule

To establish a copyright infringement claim, a plaintiff must show ownership of a valid copyright and that the defendant copied protected elements of the work. The extrinsic test for substantial similarity requires an objective analysis of the works to determine if they share similarities in ideas and expression.

To establish a successful copyright infringement claim, Swirsky must show that (1) he owns the copyright in One and (2) Carey copied protected elements of One.

Analysis

The Court of Appeals found that the district court applied the extrinsic test too mechanically and failed to adequately consider the expert testimony provided by Dr. Robert Walser, which indicated that the choruses of the two songs shared significant similarities in melody and structure. The court emphasized that the extrinsic test should not solely rely on a measure-by-measure comparison but should consider the overall context of the music, including harmony, rhythm, and other elements.

We conclude that the plaintiffs' 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.

Conclusion

The Court of Appeals reversed the district court's summary judgment and remanded the case for further proceedings, concluding that there was sufficient evidence to create a triable issue regarding the substantial similarity of the two songs.

We therefore reverse the summary judgment and remand this case to the district court for further proceedings consistent with this opinion.

Who won?

The plaintiffs, Seth Swirsky and Warryn Campbell, prevailed in the appeal because the Court of Appeals found that their expert testimony was sufficient to raise a triable issue regarding substantial similarity.

The Court of Appeals, Canby, Circuit Judge, held that: 1 proffered expert testimony was sufficiently objective to be considered in satisfaction of extrinsic test for substantial similarity, and 2 fact issue existed as to whether asserted composition was sufficiently original to warrant copyright protection.

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