Swirsky v. Carey

Copyright infringement requires ownership of a valid copyright and copying of protected elements. Because direct proof of copying is uncommon, copying may be inferred from access plus substantial similarity. Carey conceded a high degree of access, which correspondingly lowered Swirsky’s burden to show substantial similarity.

At summary judgment, the court considers only the objective, extrinsic part of the Ninth Circuit’s substantial-similarity test; the subjective, intrinsic comparison of the works’ overall concept and feel belongs to the jury. Summary judgment is improper if the plaintiff supplies evidence from which a reasonable factfinder could find similarity in protected expression.

Dr. Walser did more than state a subjective reaction to the songs. He identified similarities in the choruses’ melodic shape and pitch emphasis, basslines, chord changes, tempo, key, generic R&B style, and repeated structural pattern. He also explained why stressed notes and basic rhythmic and bass patterns, rather than ornamental vocal or instrumental variations, were musically significant.

The district court improperly treated Walser’s omission of ornamental notes as a methodological defect. Walser explained that the omitted melismas, appoggiaturas, and similar embellishments were performance-related rather than structural features of the composition. His approach was therefore an objectively explained musicological analysis, not merely an intrinsic assessment of how the songs felt to a listener.

The district court also erred by comparing the songs almost exclusively measure by measure through written pitch sequences. Musical pitch and rhythm cannot sensibly be separated from harmony, chord progression, key, tempo, meter, and other context that determines how notes are perceived. A comparison that ignores those relationships is incomplete and can distort the music.

No fixed checklist governs the extrinsic test for musical works. A protectable similarity may arise from a combination of elements—including melody, harmony, rhythm, pitch, tempo, phrasing, structure, chord progressions, lyrics, basslines, and instrumentation—even where individual components would not independently receive protection. Walser’s supported comparison of several such elements supplied enough evidence for a jury.

Scenes a faire are commonplace expressions that are indispensable to, or naturally associated with, a particular idea in the relevant field. They receive no copyright protection because they are treated like unprotectable ideas. The doctrine requires evidence that the allegedly copied feature is standard within the pertinent field, not merely evidence that it appears somewhere else.

The district court relied on asserted similarities between the first measure of “One” and the folk song “For He’s a Jolly Good Fellow.” But “One” was contemporary R&B or hip-hop, while the cited song was folk music. A comparison across those different genres did not show that the measure was commonplace or necessary in the relevant R&B field.

Moreover, the record reflected differences in time signature and chord progression between the songs. Nor can a measure be deemed commonplace as a matter of law merely because it is shared by two songs. The evidence therefore could not support the district court’s scenes-a-faire ruling on the first measure.

The fifth measure could not be excluded merely because Walser called it “almost identical” to the first measure. “Almost identical” is not identical, particularly at summary judgment, and Carey supplied no independent evidence that the fifth measure was a standard musical element. The scenes-a-faire question remained disputed.

Because Swirsky held a timely copyright registration, he was entitled to a presumption that “One” was original. Originality has a low threshold: the author need contribute only more than a merely trivial variation, and originality generally means no more than the absence of actual copying.

Even if the first measure shared a pitch sequence with “For He’s a Jolly Good Fellow,” the works differed in meter, tempo, and key. Those differences created a factual question whether Swirsky’s measure contained more than a trivial original variation, so Carey could not establish lack of originality as a matter of law.

Calling a phrase a “musical idea” does not resolve whether it is an unprotectable idea under copyright law. A musicologist’s use of that descriptive term does not define the legal idea-expression distinction. Further, an arrangement of a limited number of notes may be protected; the seven-note melodic line here was not too brief for copyright protection as a matter of law.

Swirsky offered a recording of Carey’s studio work session to show that she entered the studio already possessing the melody of “Thank God.” The court could reasonably conclude that this fact did not prove copying of Swirsky’s work, because the melody could have resulted from Carey’s own conscious or subconscious creative process.

Although the district court did not make an extensive express ruling on the tape, its refusal to admit it was not a clear error of judgment. The appellate court therefore upheld the exclusion.

Ricigliano’s transcriptions showed the bassline notes that Walser had omitted as ornamental in making his reductions. That evidence was relevant to assessing whether Walser’s analytical comparison of the songs was complete and reliable; it was not admitted as the district court’s direct comparison of the two choruses.

The transcriptions were not hearsay because they were offered to display the full basslines rather than to prove the truth of an asserted fact. They also presented no authentication or foundation problem because Walser, Swirsky’s own expert, acknowledged that Ricigliano’s transcriptions were accurate.