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Substantial Similarity

Illustrates the "substantial similarity" doctrine from U.S. copyright law, using a set of case summaries.

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


Plaintiffs, Seth Swirsky and Warryn Campbell, wrote and licensed to release a rhythm and blues (R&B) song entitled “One of Those Love Songs” in 1997. Mariah Carey's “Thank God I Found You” was composed, recorded, and released in 1999. Swirsky and Campbell brought suit, alleging that Mariah Carey's song infringed their copyright in “One of Those Love Songs” because its chorus was substantially similar. Defendants filed a motion for summary judgment. For purpose of the motion, defendants conceded access and plaintiffs’ ownership of valid copyright, but not substantial similarity.     

In their summary judgment motion, the defendants asserted that plaintiffs failed to meet the extrinsic test for substantial similarity and that plaintiffs’ song contained unprotectable elements. The district court agreed, granting the defendants’ motion for summary judgment. The plaintiffs’ motion to reconsider was denied, and the plaintiffs appealed.

Court’s Analysis

The Ninth Circuit court concluded that the motion for summary judgment ought to have been denied. The case was sent back to district court for trial.

The court noted that the standard of proof for substantial similarity was lower for the plaintiffs in this case, because the defendants conceded that they had access to the plaintiffs’ song.

The court looked at the evidence provided by the plaintiffs to determine if a reasonable jury could find that the songs were extrinsically similar. According to the court, the plaintiffs’ expert, Dr. Walser, testified that

[T]he lyrics and verse melodies of the two songs differed “clearly and significantly,” but stated that the

two songs' choruses shared a “basic shape and pitch emphasis” in their melodies, which were played over “highly similar basslines and chord changes, at very nearly the same tempo and in the same generic style[;]” . . . the two songs' choruses were both sung in B-flat[;] . . . and the choruses . . . shared a similar structure in that measures five through seven of each chorus were “almost exactly” the same as the first three measures of each chorus.

Dr. Walser also noted some differences between the choruses but concluded that the songs were very similar to each other. Dr. Walser wrote down his “aural impression” of the songs. He “did not include any baseline notes or pitches he found to be ‘ornamented’ in his transcriptions.”     

The court found that the district court erred in three aspects of its analysis. First, the district court was wrong to conclude Dr. Walser’s testimony was only relevant to the question of intrinsic similarity. According to the court, Dr. Walser's testimony could prove extrinsic similarity, because he relied on objective criteria in reaching his conclusions.

Second, the district court was wrong to study the songs by comparing the “numerical representations of pitch sequences and the visual representations of notes.” The district court left out important elements from its analysis, such as the “harmonic chord progression, tempo, and key” of the songs. The court further noted that all elements of the song must be examined. Sometimes a combination of unprotectable elements is protectable. For example, “although chord progressions may not be individually protected, if in combination with rhythm and pitch sequence, they show the [chorus of the defendants’ song to be similar to the plaintiffs’], infringement can be found.”

Third, the district court was wrong to decide that the first and fifth measures of plaintiffs’ chorus were unprotectable as scènes à faire. Dr. Walser admitted that the first measure of plaintiffs’ chorus was more similar to "For He's a Jolly Good Fellow" than to the defendants’ song. However, the court noted that "For He's a Jolly Good Fellow" was a folk song. By contrast, the songs at issue in this case were both R&B. Even if the court were to assume that the expressions in the first measure were too common to be protectable in folk songs, that would not mean that the expressions were sufficiently common in R&B. The court also observed that "For He's a Jolly Good Fellow" and plaintiffs’ song had “different time signatures” and “chord progressions.” The evidence only showed that there were two songs sharing the same expressions as defendants’ song. The court noted that it was not enough to show the expressions were commonplace in music. With regard to the fifth measure, the district court erred in deciding that the fifth measure, too, only had unprotectable commonplace expressions, solely based on Dr. Walser saying that the first measure was “almost identical” to the fifth measure. The court cautioned that “on summary judgment, ‘almost identical’ and ‘identical’ are not equivalents, especially [when the expert also showed] that measure five [was] different in pitch sequence from measure one.”

Defendants also argued that the first measure of plaintiffs’ chorus lacked originality. Plaintiffs’ song was presumed to be original because they registered the song with the copyright office. The court noted that the threshold for originality was low; plaintiffs only needed to add something nontrivial to their song. Since the first measure of plaintiffs’ chorus and "For He's a Jolly Good Fellow" differed “in meter, tempo, [and] key,” that was enough to create a triable issue of fact on originality. The court also rejected defendants’ argument that the seven notes in the first measure were an unprotectable idea.

Works at Issue

One of Those Love Songs

Mariah Carey's Thank God I Found You