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2004 Swirsky Abridged

2004 Swirsky Abridged - SETH SWIRSKY v MARIAH CAREY 376...

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1 SETH SWIRSKY v. MARIAH CAREY 376 F.3d 841 (9 th Cir. 2004) CANBY, Circuit Judge: 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." The defendants moved for summary judgment, contending that the plaintiffs' evidence failed to meet this circuit's threshold "extrinsic test" for substantial similarity of works. The district court granted the motion, holding that the plaintiffs' expert had failed to show by external, objective criteria that the two songs shared a similarity of ideas and expression. Plaintiffs appeal. We con- clude 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 me- chanical an application of the extrinsic test to these musical compositions. We also conclude that the district court erred in ruling portions of plaintiffs' song to be unprotectable by copyright as a matter of law. We accordingly reverse the summary judgment. Factual Background This case concerns the alleged similarity between the choruses of two popular and contemporary rhythm and blues ("R&B") songs: plaintiffs' "One of Those Love Songs" (" One ") and Mariah Carey's "Thank God I Found You" (" Thank God"). One was jointly composed by plaintiffs Seth Swirsky and Warryn Campbell (collectively "Swirsky") in 1997. Pursuant to a licensing agreement, One was recorded [*844] by the musical group Xscape and released in May 1998 on Xscape's al- bum "Traces of My Lipstick." Thank God was composed by defendants Carey, James Harris III, and Terry Lewis in 1999 and was released on Carey's album "Rainbow" in November 1999. One and Thank God have generally dissimilar lyrics and verse melodies, but they share an al- legedly similar chorus that Swirsky claims as an infringement of One's copyright. 1 Swirsky filed this action in district court against Carey, Harris, Lewis, and a number of music companies that had financial interests in Thank God (collectively "Carey") for copyright infringement and related claims. The defendants moved for summary judgment, contending that Swirsky had failed to pre- sent a triable issue on the required first, or "extrinsic," part of our circuit's two-part test for the es- tablishment of substantial similarity necessary to sustain a claim of copyright infringement. The de- fendants also contended that portions of One were not protectable by copyright. The district court agreed with both contentions and granted summary judgment to Carey. Swirsky moved for recon- sideration, which the district court denied. This appeal followed. Substantial Similarity We review de novo the district court's grant of summary judgment. See Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996) . We may uphold the summary judgment only if we find that "no reasonable juror could find substantial similarity of ideas and expression [between One and Thank 1 Swirsky also claims that the piano introduction to
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