## Facts

- Seth Swirsky and Warryn Campbell composed “One of Those Love Songs” in 1997; it was recorded by Xscape and released in 1998.
- Mariah Carey, James Harris III, and Terry Lewis composed “Thank God I Found You” in 1999; it was released on Carey’s album *Rainbow* in 1999.
- Plaintiffs alleged that defendants copied protectable musical expression from the chorus of “One of Those Love Songs” for the chorus of “Thank God I Found You,” while acknowledging that lyrics and verse melodies were generally dissimilar.
- Plaintiffs relied on expert testimony that dissected the choruses into musical components (including pitch sequence, rhythm, harmony, meter, and structure), discounted ornamental notes, and identified similarities in core musical features.
- Defendants moved for summary judgment, arguing plaintiffs failed the Ninth Circuit’s extrinsic test for substantial similarity and that the asserted similarities were unprotectable musical material.
- The district court granted summary judgment for defendants and denied reconsideration, concluding plaintiffs’ expert was insufficiently “objective” and that the relevant musical material was unprotectable as a matter of law.

## Issues

1. Whether plaintiffs’ expert testimony identified sufficiently objective, concrete musical elements to satisfy the extrinsic test for substantial similarity at summary judgment.
2. Whether musical elements treated as individually unprotectable can, in combination, constitute protectable expression such that summary judgment on protectability was improper.

## Decision

- The Ninth Circuit reversed the summary judgment and remanded.
- The court held plaintiffs’ expert methodology was sufficiently objective to be considered under the extrinsic test and created a triable issue on substantial similarity between the choruses.
- The court held there was at least a fact question whether plaintiffs’ work contained protectable originality in the combination of musical elements the district court treated as unprotectable in isolation.
- The court ruled the district court applied the extrinsic test too mechanically by effectively weighing the expert analysis and drawing inferences against the nonmoving party at the summary judgment stage.
- The intrinsic test (ordinary reasonable listener reaction) remained for trial.

## Legal Principles

- Copyright infringement requires proof of ownership and copying of protected elements; absent direct evidence, copying may be shown through access and substantial similarity.
- The Ninth Circuit’s substantial similarity analysis uses an objective extrinsic test (analytical dissection and expert testimony directed to concrete expressive elements) and a subjective intrinsic test (ordinary listener response), with the intrinsic test typically for the jury.
- Expert testimony satisfies the extrinsic test when it identifies specific musical elements using external, objective criteria; the extrinsic test does not require a particular musicological theory or mathematical precision.
- Although individual musical building blocks (e.g., common chord progressions, brief motifs, basic rhythmic patterns) may be unprotectable, protectable expression may exist in the original selection and arrangement of such elements in combination.
- At summary judgment, courts must view the evidence in the light most favorable to the nonmoving party and may not resolve genuine factual disputes about similarity or originality.

## Conclusion

The Ninth Circuit held that structured expert analysis of concrete musical elements can satisfy the extrinsic test and that originality may lie in the combined selection and arrangement of otherwise unprotectable musical components, requiring a jury to resolve substantial similarity and protectability in this music copyright dispute.


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