Sound and Color v. Sam Smith

Applying Ninth Circuit’s extrinsic test, district court grants summary judgment to defendants in copyright infringement suit over chorus in defendants’ hit song “Dancing with a Stranger,” finding a lack of substantial similarity to chorus in plaintiff’s composition “Dancing with Strangers.”

Plaintiff is the owner of the copyright to the 2015 song “Dancing with Strangers” (also known as “Dancing with a Stranger”) composed by Jordan Vincent and Christopher Miranda. In 2019, Sam Smith and Normani (along with others) wrote and released their hit song “Dancing with a Stranger.” Plaintiff brought this action for copyright infringement, claiming that the lyrics and other elements in the chorus of defendants’ song infringed the lyrics and other musical elements found in the chorus of their earlier composition. Specifically, both the Vincent/Miranda and Smith/Normani compositions have a hook that contains the lyrics “dancing with a stranger,” variations of which appear 16 times in plaintiff’s song and 12 times in defendants’ song. Plaintiff’s claim was limited to the lyrics “dancing with a stranger” and other musical elements (or “melodic phrases”) accompanying these lyrics in the parties’ respective works. 

After the court bifurcated the case, defendants moved for summary judgment solely on the issue of substantial similarity. The court applied the Ninth Circuit’s extrinsic test, which requires the trier of fact to determine whether any of the allegedly similar features are protected by copyright. Applying this test, and relying on the expert reports and testimony of numerous experts, the court dissected the two compositions to assess the claimed similarities with respect to various musical elements in the melodic phrases at issue, including their lyrics, key, pitch sequence, melodic contour, rhythmic and metric placement, and chord progressions. Plaintiff did not claim that any of these individual musical elements are protected by copyright, instead advancing the theory that the selection and arrangement of these otherwise unprotected elements in its melodic phrase were protectable and substantially similar to those of the melodic phrase used in defendants’ work.

The court agreed, as a preliminary matter, that none of the individual musical elements at issue were protectable in their own right. The phrase “dancing with a stranger” was deemed unprotectable based on prior art showing it has been used in a variety of musical works in the past, including in choruses. The court held other musical elements, including, for example, pitch sequences, rhythm and chord progressions, not to be protectable as part of the “building blocks” for music generally that belong in the public domain. 

Nonetheless, assessing each element in turn under plaintiff’s selection and arrangement theory, the court held that the elements in defendants’ melodic phrase “do not share in substantial amounts, the ‘particular,’ i.e., the ‘same,’ combination of unprotectable elements” as plaintiff’s composition. Although both works contained the lyrics “dancing with a stranger,” the narrative context in each was distinct. The pitch sequences, melodic contours, metric placements and chord progressions all shared certain similarities but, the court explained, the differences in each of these elements in the parties’ respective works overcame the claimed similarities. The court further rejected plaintiff’s experts’ attempts to alter the parties’ respective melodic phrases to illustrate similarities, explaining that to permit “copyright plaintiffs to prevail on musical selection and arrangement claims by rotating chords, recalibrating the tempo, and altering the pitch of a defendant’s song so that it sounds more similar to the plaintiffs’ would lead courts to deem substantially similar two vastly dissimilar musical compositions for sharing some of the same notes or words,” contrary to Ninth Circuit precedent. 

Accordingly, the court held that the melodic phrases found in the choruses of the parties’ works are not substantially similar under the extrinsic test and granted summary judgment in defendants’ favor.

Summary prepared by Jordan Meddy and Wook Hwang