On April 29, 2025, the Ninth Circuit Court of Appeals revived the copyright infringement case filed by Sound and Color, LLC against Sam Smith, Normani, and related parties (collectively, “Defendants”) concerning the hit song "Dancing with a Stranger" by reversing the District Court’s granting of summary judgment in favor of Defendants. In making its decision, the Ninth Circuit affirmed the importance of the jury’s role in assessing substantial similarity.
Sound and Color initiated a copyright infringement case against Defendants based on its allegation that the chorus of Smith and Normani's "Dancing with a Stranger" infringes upon its 2015 song with the same title. The sole issue presented for summary judgment was whether the “hook” (also known as the chorus) in Sound and Color’s song is substantially similar to the hook in Defendants’ song. The District Court used the three-step analysis of the extrinsic test: (1) the plaintiff identifies similarities between the copyrighted work and accused work; (2) the Court disregards any of those similarities that are based on unprotectable material or authorized use; and (3) the Court must determine the scope of protection, either broad or thin, to which the remainder is entitled as a whole. The District Court concluded that there was no substantial similarity between the two songs’ choruses and held that the musical elements, such as pitch sequences and chord progressions, did not constitute a protectable arrangement.
In reversing the District Court’s decision, the Ninth Circuit noted that Sound and Color asserted a selection-and-arrangement theory of infringement. The selection-and-arrangement theory extends copyright protection to a combination of unprotectable elements if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship. A selection-and-arrangement copyright is infringed when the works share, in substantial amounts, the same combination of unprotectable elements.
The Ninth Circuit highlighted the fact that Sound and Color’s experts opined that the chorus of the two songs share the same combination of several musical elements, while Defendants emphasized some variations in the pitch sequences and chord progressions. In reversing the granting of summary judgment, the Ninth Circuit explained that the objective analysis of music under the extrinsic test does not permit a Court to simply compare the representations of pitch sequences and the visual representations of notes to determine that the two choruses are not substantially similar. The Ninth Circuit ultimately held that when there is sufficient disagreement concerning the substantial similarity of two works, the case must be submitted to a trier of fact.
KEY TAKEAWAYS:
- This decision underscores the importance of the selection-and-arrangement theory in copyright law, particularly in cases involving musical compositions. It highlights that even if individual elements are not copyrightable alone, their unique combination can warrant protection.
- Copyright holders should be cautious about moving for summary judgment on the issue of substantial similarity. If there is credible expert analysis suggesting similarity, the issue likely belongs before a jury. This can be encouraging for plaintiffs with strong but nuanced claims.
