Seth SWIRSKY, an Individual D/B/A Julian's Dad

SWIRSKY v. CAREY 841 Cite as 376 F.3d 841 (9th Cir. 2004) 2. Copyrights and Intellectual Property Seth SWIRSKY, an individual d/b/a O51 Julian’s Dad; Warryn Campbell, To establish successful copyright in- Plaintiffs–Appellants, fringement claim, plaintiff must show that v. (1) he owns copyright in work and (2) Mariah CAREY; James Harris, III; defendant copied protected elements of Terry Lewis; Flyte Time Productions, work. Inc., an entity of unknown designa- 3. Copyrights and Intellectual Property tion, e/s/a Flyte Tyme Tunes, Inc.; 83(3.1) ATV Songs LLC; Rye Songs; Colum- O bia Records; Sony Music Entertain- Copyright infringement plaintiff may ment, Inc.; EMI April Music, Defen- establish copying element of claim by dants–Appellees. showing that defendant had access to No. 03–55033. copyrighted work and that accused work is substantially similar to copyrighted work’s United States Court of Appeals, protected elements; moreover, where high Ninth Circuit. degree of access is shown, lower standard Argued and Submitted Feb. 3, 2004. of proof of substantial similarity is required. Filed July 12, 2004. As Amended on Denial of Rehearing 4. Copyrights and Intellectual Property Aug. 24, 2004. O53(1) Background: Owners of copyright in mu- In determining whether two works sical composition sued singer, record com- are substantially similar, as required to pany, and composers of allegedly similar show copyright infringement in absence of song for infringement. The United States direct evidence of copying, court employs District Court for the Central District of two-part analysis: objective extrinsic test California, Christina A. Snyder, J., 226 and subjective intrinsic test. F.Supp.2d 1224, granted summary judgment for defendants, and appeal was tak- 5. Copyrights and Intellectual Property en. O53(1), 83(3.1) Holdings: The Court of Appeals, Canby, ‘‘Extrinsic test’’ for substantial simi- Circuit Judge, held that: larity of copyrighted and allegedly infring- (1) proffered expert testimony was suffi- ing works, which considers whether works ciently objective to be considered in share similarity of ideas and expression as satisfaction of extrinsic test for sub- measured by external, objective criteria, stantial similarity, and requires analytical dissection of works and (2) fact issue existed as to whether assert- expert testimony. ed composition was sufficiently original See publication Words and Phras- to warrant copyright protection. es for other judicial constructions and definitions. Reversed and remanded. 6. Copyrights and Intellectual Property 1. Federal Courts O776 O4.5 District court’s grant of summary Idea by itself is not subject to copy- judgment is reviewed de novo. right protection; only expression of idea is. 842 376 FEDERAL REPORTER, 3d SERIES 7. Copyrights and Intellectual Property to first measure of folk song was insuffi- O83(6) cient to establish, as matter of law, that Expert’s methodology for comparing measure was uncopyrightable scene a copyrighted and allegedly infringing song faire; songs were written in different time was sufficiently objective to be considered signatures and genres and had different in satisfaction of extrinsic test for substan- chord progressions, and, in any event, any tial similarity; expert, properly discount- similarity between only two songs was in- ing ‘‘ornamental’’ notes, noted remarkable sufficient to show that measure was com- similarities in songs’ harmonies, rhythms monplace. and meters. 12. Copyrights and Intellectual Property 8. Copyrights and Intellectual Property O89(2) O66 Issue of material fact as to whether Objective analysis of copyrighted and differences between copyrighted rhythm allegedly infringing musical compositions, and blues song’s first measure and first under extrinsic test for substantial similar- measure of well known folk song were ity, does not mean simple comparison of merely trivial precluded summary judg- numerical representations of pitch se- ment that measure was insufficiently origi- quences and visual representations of nal to be protected from infringement. 17 notes, without regard to other elements of U.S.C.A. § 410(c). compositions such as chord progression, 13. Copyrights and Intellectual Property tempo, key, rhythm, and genre. O8 9. Copyrights and Intellectual Property Although single musical note is too O12(2) small a unit to attract copyright protection, Scenes a faire analysis in copyright arrangement of limited number of notes case requires court to examine whether can be protectable. similarities that plaintiff attributes to 14. Copyrights and Intellectual Property copying could actually be explained by O8 common-place presence of same or similar Seven-note melodic line in first mea- ‘‘motives’’ within relevant field. sure of song was not too short, as matter 10. Copyrights and Intellectual Property of law, to garner copyright protection. O12(2) 15. Federal Courts O823 Under ‘‘scenes a faire doctrine,’’ when District court’s decision to admit or certain commonplace expressions are in- exclude evidence is reviewed for abuse of dispensable and naturally associated with discretion. treatment of given idea, those expressions are treated like ideas and therefore not 16. Copyrights and Intellectual Property protected by copyright. O83(2) See publication Words and Phras- Evidence that singer/composer of al- es for other judicial constructions and definitions. legedly infringing song had melody in her head when she came to recording session 11. Copyrights and Intellectual Property was not necessarily probative of direct O83(6) copying, and thus its exclusion was not Evidence that first measure of copy- clearly erroneous; melody could easily righted rhythm and blues song was similar have been product of singer/composer’s SWIRSKY v. CAREY 843 Cite as 376 F.3d 841 (9th Cir. 2004) own creative processes, conscious or sub- Appeal from the United States District conscious. Court for the Central District of Califor- nia; Christina A. Snyder, District Judge, 17. Copyrights and Intellectual Property Presiding. D.C. No. CV–00–09926–CAS. O83(2) Complete transcriptions of copyright- Before CANBY, JR., NOONAN, and ed and allegedly infringing songs’ basslines THOMAS, Circuit Judges. were admissible as relevant to issue of CANBY, Circuit Judge. what basslines looked like before being The plaintiffs, Seth Swirsky and Warryn reduced to their essential elements by Campbell, brought this action in district plaintiff’s expert. court, alleging that a song produced by the 18. Evidence O318(1) defendants infringed the plaintiffs’ copyright in the song, ‘‘One of Those Love Complete transcriptions of copyright- Songs.’’ The defendants moved for sum- ed and allegedly infringing songs’ bass- mary judgment, contending that the plain- lines, proffered by defendant in response tiffs’ evidence failed to meet this circuit’s to plaintiff’s expert’s analysis of basslines’ threshold ‘‘extrinsic test’’ for substantial essential elements, were not hearsay; evi- similarity of works. The district court dence was not offered to prove truth of granted the motion, holding that the plain- matter asserted, but merely to show what tiffs’ expert had failed to show by external, basslines looked like before being reduced objective criteria that the two songs by expert. Fed.Rules Evid.Rule 801(c), 28 shared a similarity of ideas and expression. U.S.C.A. Plaintiffs appeal. We conclude that the 19. Evidence O373(1) plaintiffs’ expert’s evidence was sufficient to present a triable issue of the extrinsic Federal Civil Procedure O2545 similarity of the two songs, and that the Copyright infringement defendant sat- district court’s ruling to the contrary was isfied foundation and authentication re- based on too mechanical an application of quirements for admission, on motion for the extrinsic test to these musical composi- summary judgment, of complete transcriptions. We also conclude that the district tions of asserted and accused songs’ bass- court erred in ruling portions of plaintiffs’ lines by eliciting admission from plaintiff’s song to be unprotectable by copyright as a expert that transcriptions were accurate. matter of law. We accordingly reverse the Fed.Rules Evid.Rule 901(a), (b)(1), 28 summary judgment. U.S.C.A.; Fed.Rules Civ.Proc.Rule 56(e), 28 U.S.C.A. 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 Jonathan D. Freund (argued), Craig A. Songs’’ (‘‘One ’’) and Mariah Carey’s Huber, Freund & Brackey LLP, Beverly ‘‘Thank God I Found You’’ (‘‘Thank God ’’). Hills, CA, for the plaintiffs-appellants. One was jointly composed by plaintiffs Robert M. Dudnik, Mitchell, Silberberg Seth Swirsky and Warryn Campbell (col- & Knupp, LLP, Los Angeles, CA, for the lectively ‘‘Swirsky’’) in 1997. Pursuant to defendants-appellees. a licensing agreement, One was recorded 844 376 FEDERAL REPORTER, 3d SERIES by the musical group Xscape and released of ideas and expression [between One and in May 1998 on Xscape’s album ‘‘Traces of Thank God], viewing the evidence in the My Lipstick.’’ Thank God was composed light most favorable to the nonmoving par- by defendants Carey, James Harris III, ty.’’ Id. (quoting Kouf v. Walt Disney and Terry Lewis in 1999 and was released Pictures & Television, 16 F.3d 1042, 1045 on Carey’s album ‘‘Rainbow’’ in November (9th Cir.1994)); Narell v. Freeman, 872 1999. F.2d 907, 909–910 (9th Cir.1989). If Swir- One and Thank God have generally

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