Sound and Color, LLC v. Samuel Smith

Ninth Circuit reverses summary judgment in favor of pop singer Sam Smith in music copyright dispute, holding in unpublished opinion that hook in plaintiff’s song may be protectable as unique selection and arrangement of unprotectable elements and reasonable jury could conclude that hook in Smith’s 2019 hit “Dancing With a Stranger” shared substantially similar selection and arrangement of musical elements.

Plaintiff Sound and Color LLC, 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, brought a copyright infringement action against pop singer Sam Smith and others associated with Smith’s hit song “Dancing With a Stranger,” which he wrote and released with Normani (along with others) in 2019. Plaintiff claims that the chorus of defendants’ song infringed the lyrics “dancing with a stranger” and the melodic elements accompanying those lyrics found in the chorus of the earlier composition. On defendants’ motion for summary judgment, the district court found that no reasonable jury could find substantial similarity and ruled in favor of defendants. (Read our summary of the district court’s decision here.) 

In an unpublished opinion, the Ninth Circuit reversed the district court’s grant of summary judgment, concluding that Sound and Color’s selection-and-arrangement theory of copyright protection could support a finding of substantial similarity and that summary judgment was therefore inappropriate.

Under a selection-and-arrangement theory, protection may extend to a combination of individually unprotectable elements if their selection and arrangement reflect sufficient originality. The Ninth Circuit stated that this approach does not require filtering out unprotectable elements in the same way as other infringement tests, and it instead focuses on whether substantial amounts of the specific combination of unprotectable elements appear in both works. Sound and Color’s experts identified several shared musical elements, including the same lyrics, metric placement and melodic contour, that could lead a reasonable jury to find substantial similarity. Defendants did not show that this combination existed in the prior art.

The appellate court rejected defendants’ argument that Sound and Color’s hook was entitled only to "thin" copyright protection, which would require that the two works be virtually identical. Because the record demonstrated a wide range of creative choices in how the hook was composed, including differences in rhythms, pitch sequences and melodic contours across other works, the court held that the hook was eligible for broader protection. The court distinguished the case from Gray v. Hudson, where the work at issue involved a very simple and unoriginal ostinato (a repeating two-note snippet in a descending minor scale). 

The court emphasized that at the summary judgment stage, indicia of sufficient disagreement concerning substantial similarity preclude judgment as a matter of law. Because Sound and Color presented evidence from music experts supporting its claim of infringement, the issue must be decided by a jury. The case was reversed and remanded to the district court for further proceedings.

Summary prepared by Safia Gray Hussain and Erin Shields