Swirsky

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 conclude 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 mechanical 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…