Sound and Color LLC v. Samuel Smith

District court denies defendants’ motion for summary judgment in music copyright infringement suit, holding that plaintiff’s expert testimony creates genuine issue of material fact as to whether hooks of two songs composed three years apart are strikingly similar and that defendants failed to demonstrate that plaintiff’s unauthorized sampling of two other copyrighted works strips allegedly infringed hook of copyright protection.

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, Christopher Miranda and Rosco Banlao, 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.

Plaintiff filed this action on March 4, 2022. In September 2023, the district court granted defendants’ first motion for summary judgment, finding a lack of substantial similarity. (Read our summary of the district court’s decision granting summary judgment here.) The Ninth Circuit reversed and remanded, concluding in an unpublished opinion that plaintiff’s selection-and-arrangement theory of copyright protection could support a finding of substantial similarity. (Read our summary of the Ninth Circuit’s reversal and remand here.) In May 2026, plaintiff agreed to withdraw all its access theories—including claims of access through wide dissemination, a chain of intermediary individuals, companies or events, or similarities between the music videos—leaving striking similarity as the sole basis to establish copying.

Defendants moved for summary judgment on two grounds. First, they argued that no reasonable jury could find the songs’ hooks strikingly similar. Second, they asserted that the allegedly infringed portion of plaintiff’s hook lies outside the scope of copyright protection because the hook incorporates unauthorized samples from two other copyrighted songs. The court denied defendants’ motion for summary judgment on both grounds.

First, on the striking similarity question, the court applied the Ninth Circuit’s two-part analysis consisting of the extrinsic test and the intrinsic test. Under the extrinsic test, courts must evaluate objective similarities between both protectable and unprotectable elements. The court applied the extrinsic test to striking similarity and refused to compare pitch, rhythm, metric placement and contour in isolation, explaining that a work must be viewed as “the sum of all the relevant elements together.”

The court found that the testimony of plaintiff’s musicologist was sufficient to create a genuine dispute of material fact as to the extrinsic test. The expert opined that the hooks shared a similar pitch sequence, the same melodic contour, perfectly aligned metric placement of lyrical syllables and virtually identical rhythmic configuration displaced by only a half beat. He addressed the admitted pitch differences, explaining that the differing tones were “momentary passing tones” that are “definitionally not significant.” He further concluded that it is “highly unlikely that the similarity in the creative selection and arranging of these elements is coincidental.” The court rejected defendants’ argument that this language fell short of the striking similarity standard, noting that the Ninth Circuit itself has employed the phrase “highly unlikely” in assessing striking similarity. Because the court found that the musicologist’s testimony alone was sufficient to demonstrate a genuine issue of fact, it did not need to reach the intrinsic test.

The court noted that a showing of striking similarity creates a presumption of copying, which defendants may rebut by showing the similarities resulted from coincidence, independent creation or “a prior common source.” The court found that both sides presented competing expert evidence on this question and concluded that the issue should be left for the jury.

Second, on the unauthorized sampling defense, defendants argued that plaintiff’s hook falls outside the scope of copyright protection because it pervasively incorporates unauthorized samples: a one-measure vocal sample from “The Ha Dance” by Masters at Work and a two-measure portion of “Think (About It)” by Lyn Collins, both of which play continuously throughout nearly all of the song. The court held that unauthorized sampling does not necessarily strip a work of copyright protection. Rather, the dispositive question is whether the copying goes to “trivial or substantial elements,” measured by considering “the qualitative and quantitative significance of the copied portion in relation to the [original] work as a whole.” The court found that defendants failed to submit any evidence addressing whether the samples constituted trivial or substantial elements of the original songs. Finally, having listened to the sampled songs and plaintiff’s song, the court independently found that reasonable jurors could conclude that the samples were de minimis, noting that they were “difficult to identify or even hear” due to their low volume relative to the main melodic and vocal components of plaintiff’s song.

Summary prepared by Frank D’Angelo and Chloe Gordils