Why does a judge toss an infringement case at the summary judgment stage?
I've been dismayed at the number of bad cases making it all the way to trial, and there are a number of high profile and very bad cases going on right now that I expect to get tossed, but I'm prepared to be disappointed.
I thought I'd take a really good look at a bad case that DID get tossed yesterday. Was it fair? Is it just? It is well reasoned? And most of all what does it portend?
Honestly I'd only expect an intellectual property lawyer or a musicology student to read this. It would be slightly more fun to head over to Musicologize and check out the original write-up. This is bound to be very musicologically and and while I'm not a lawyer, even legally pretty technical.
Oh and I'd invite other opinions. Feel free. Here goes:
This is the summary judgment that Sam Smith just got. He was sued last year over “Dancing With A Stranger,” a hit song featuring Normani. First, this comes as no surprise, directionally at least. I looked at the musicology involved right after this case was initiated and concluded that it had no merit and should not have been brought in the first place.
The two works are linked on that Musicologize page, and there's some analysis of the main musicological points. That was a musical opinion of course, merely tantamount to a legal position that is not mine to take.
Musicologists do not determine infringement which is a legal conclusion, but they do illuminate the matters of copying and substantial similarity so that a judge or jury can make a well-informed decision regarding the question of infringement. One challenge for the judge or jury though is that the expert testimony can be confusing. But as I consider this ruling, I already know Sam Smith should’ve won the case, so I'm moving onto whether the judge was well served and his reasoning solid enough that it can provide takeaways for the future.
Yesterday, he wrote his order and I’m going to sorta live blog it here as I read it. In other words, you're going through it with me, and getting my thoughts as they come to me.
Since this can't really help but be in the context of the positions I already hold, I’ll summarize them:
Only the six-syllable lyric “Dancing With A Stranger” and the music to which it is set are relevant. The two works are otherwise substantially dissimilar.
There are two different melodies to which the plaintiff sets that lyric and looking at the one slightly more favorable to the plaintiff, I found it shares only three of six pitches (‘notes’ more or less) with Sam Smith’s melody; it’s brief obviously, the melodies in both descend from the fifth degree of the scale to the first over the course of this phrase. The plaintiff’s employs all five sol-to-do scale tones, sol, fa, mi, re, and do in that scale order. The defendant’s melody happens to not use fa, skipping directly from sol to mi. Not a huge difference. But neither is the similarity striking or musicologically significant. It’s a short scale-wise descent from sol down to do, a very common melody.
The rhythmic values and placement of the notes that make up these two melodies are basically the same; the syllables line up with each other in musical time.
The accompanying harmonies are not similar.
The phrase “Dancing With A Stranger” is brief and common enough to be found in prior musical and literary works, not the least of which a Cyndi Lauper song of the same title.
And the lyric has a more clearly integrated and importantly different meaning in the story that Sam Smith’s song tells. His character is heartbroken and out dancing with someone who is not his love. Vincent’s character is going to die dancing with a stranger. Which is perhaps a sort of enduring despair and negativity story? At any rate it’s very different.
The phrase these two works share is neither lengthy nor novel, I certainly think of this as an example (I would say generously) where the doctrine of “thin copyright,” is relevant. Thin copyright says that in order to sustain the argument of substantial similarity, the elements would need to be essentially identical. And these are not identical, as I explained above.
Oh, by the way, it’s somewhat interesting and fun that the two attorneys primarily involved here are the same two who argued the Stairway To Heaven case, Peter Alexander and Francis Malofiy. I don’t think this has happened since then. I could be wrong.
So here we go, and remember that my primary interests are in whether or not the judge has the facts he needs to render his verdict, and how well he applies them. I already know how he rules, and I already agree with the outcome. But I want it nice.
A few quick highlights to open:
Judge agreed that of the two different expressions of this phrase in the plaintiff's work, we should look only at the more favorable expression of the plaintiff’s melody.
The judge overruled an objection by the defense that insisted unprotectable elements be filtered out of the musicological discussion. They would argue for example that since “Dancing With A Stranger” might be an unprotectable phrase, found in prior art, that it should disappear from the musicological analysis altogether. This, although it has strong precedent, has often, not always, struck me as a blunt anti-intellectual tactic. But here it fails here because of “selection and arrangement” which says that a sufficiently original “selection and arrangement” of individually unprotectable elements, might as a whole enjoy protection. As the judge rules, “That inquiry would be impossible if the court disposed of the unprotectable elements being arranged as a preliminary matter.” Interesting how these things evolve.
The court considered that the phrase Dancing With A Stranger has different contextual meaning in the two works. I thought that was meaningful, so I’m pleased.
The two sides argued about whether the songs are both in a minor key. (I’m reading the judgement as I go, and hoping not much is made of this. Plaintiffs song is in G minor. Defendants song could be viewed as being in either F minor or Ab major. I’m in the Ab major camp with the defendants. This is a minor point though.) The judge rules that in a tossup like this since F minor is most favorable to the plaintiff, that’s what he’s going with. I’m good with that. Except that he sounds as though he's done them a favor.
Here's how:
My analysis described melodies using do re mi’s.
The plaintiff’s six syllable melody was Sol Fa Fa Mi Re Do. (don’t anybody come at me; I know the last note lands on Re first and slides to Do. I do not care.)
And the defendants is Sol Mi Mi Re Re Do.
This Do-Re-Mi solfège system allows for analysis without regard to major or minor keys.
The judge relies instead on numerical values assigned to Do Re Mi Fa Sol as 1 2 3 4 5 in a major key but would be 3 4 5 6 7 in the minor key. While he says he’s viewing them both in minor keys, he bothers to qualify a melodic similarity as being reliant upon the assumption that Sam Smith’s song is in a minor key at all. But no, nothing so important hinges on that assumption. It does not meaningfully favor the plaintiff nor change the musicology. It’s mostly semantics. The idea that this was even in the judge’s head is slightly compromising.
Judge considers the arguments regarding the level of similarity between the two pitch sequences, and arrives at an accurate assessment. They’re a bit the same and a bit different and there is some subtlety involved.
Melodic contour… I remember saying something along the lines of, “They’re essentially the same, but it’s not musicologically significant because it’s so brief and basic, a scale-wise descent from Sol down to Do, although one (the plaintiff) employs Fa and the other skips over it.” So, yes quite the same, but not particularly significant musicologically. The judge here only states his understanding of this factor, and it’s accurate. So far, so good, he’s killing it.
Rhythmically the judge correctly notes that every syllable begins in the same rhythmic placement, and correctly that some of the durations are slightly different. I would hope that he will make little of that. The rhythms are quite the same. He seems to understand completely. Still killing it.
About the chord progressions, the plaintiffs made the argument that while the four chords in the respective choruses are not the same four chords in the same order, you can “rotate” one such that some do line up. Not super easy to explain but I'll try:
Here’s a hypothetical example of what this might’ve meant under the best of circumstances:
“Happy Birthday To You,” now in the public domain, begins in the key of C with pretty much this chord progression: C G G C C7 F Fm C G C
And the song by my pretend client who's suing Happy Birthday goes C G C C G G.
My client’s progression never appears in Happy Birthday.
But what if we were to, not “rearrange” exactly, but just “rotate” Happy Birthday such that we begin on its eighth chord, and then rotate back to the beginning of Happy Birthday, we’d get C G C and then circling back to the start we'd get C C G G, and that would look like our song. Would you consider that a “similarity” worth considering? Judge seems unimpressed.
The judge then adds… one is a hopscotch progression and the other isn’t. Yeah, he’s right, but let’s just say they’re different. I’m impressed but calling something a hopscotch progression is cutesy stuff akin to calling Don’t Stop Believin the Axis of Awesome progression. Chords have function, dissonance, resolution, cadence and so forth. These comprise the real reasons these two progressions aren’t the same and they cut through exotic rotation arguments.
The last quote is from his list of other musical elements that I guess the judge feels are worthy of passing concern and consideration, or maybe it's just everything of note that was raised. “When JV’s hook is tempo and pitched matched, and played over SS’s hook, the two compositions sound virtually identical.” No, they don’t. That's cringe. I don’t need to run the experiment. I can do that manipulation in my head. This is just a reminder of the challenges juries and judges face and how much we ask of them.
All of the foregoing is from the judge regurgitating the “facts” of the case. Now we move to the judgement itself.
I'm not a lawyer, but pretty sure summary judgment generally relies on there being no issues as to material facts. If the judge finds that the defense in this case has demonstrated that none of the claims of the case create genuine issues of material fact, he can toss it. Mere disagreement by the parties won’t keep things rolling. If one side says, “Dancing With A Stranger” is a phrase protectable by copyright, and the judge can say, “No it isn’t, and we’re done here.”
Often, courts consider copying first and then unlawful appropriation. It's an unusual consequence of some bifurcation along the way that this summary judgment considered “unlawful appropriation” and not whether Smith copied Vincent. Everything is sorta interrelated in the real world, but in the litigation world, this one at least, we have this narrow focus of the defense’s motion to dismiss. “Unlawful appropriation” itself is a term that involves the observations of both experts and laypersons, where a forensic musicologist like me provides an analytical account of degree of similarity and originality but then infringement also requires that a layperson would recognize two works as similar. Only the expert part (extrinsic similarity) matters here in a motion to dismiss. If the case survived, which this didn’t, the jury would rule on the “intrinsic similarity” question.
This is where things get interesting not just for this case, but for all cases. The extrinsic test – the part where I’m asked to weigh in on the existence of the similarities, and the originality and protectability of the similar elements – is important because you can’t find substantial similarity based on elements that are unprotectable. If you can’t protect the phrase “Dancing With A Stranger” because it’s too common and not original to you, then it’s not a good basis for your infringement claim. As we said earlier, courts ask that it be filtered out of the discussion.
HOWEVER… SELECTION AND ARRANGMENT
We now have in seemingly every music copyright case the concept of “selection and arrangement,” which I believe sprung from a case involving a couple of artists who produced jellyfish sculptures. One produced a jellyfish sculpture in a glass case, and sued another who followed suit, making jellyfish in glass cases. They looked plenty alike, but jellyfish look like jellyfish and glass jars look like glass jars. The court said something like, “Nope, you don’t own jellyfish, nor glass cases, so you can’t stop him from making them.” But it pointed out something like, "if there were enough things you involved here that you can't own, but you used them an original way, and he used them in the same way, we might’ve seen things your way. Or as they actually put it, and has become familiar in copyright law, “a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”
I should cite that. I think it's Satava?
Now every time a defendant says, “wait, did you filter out everything in your client’s song that isn’t protectable so that we're discussing only what’s left?” the plaintiff says, “even if it turns out that some elements of our song aren’t protectable on their own, we still have an original selection and arrangement of those elements, so we live on.”
Here, the plaintiff claimed that the selection and arrangement of lyrics, pitch sequence, melodic contour, metric placement of syllables, rhythm, feel and structure are protectable and that Sam Smith’s version has a similar selection and arrangement.
Is “selection and arrangement” just semantics? I am forever trying to arrive at salient undeniable wisdom on that question. I have not gotten there yet. So far, I’ve arrived only at sometimes it is, sometimes it’s not.
Much ado about nothing.
This decision went as a lot of them seem to do; a lot of lead up and thoughtful discussion, followed by the reveal of one simple but critical decision that renders all else moot.
The simple decision that renders all else moot is...
The court here found that the selection and arrangements were not substantially the same, and therefore spared itself the question of whether the selection and arrangement in the plaintiff’s song satisfied the “elements numerous and original enough to be protectable” criteria from the jellyfish thing.
First, the court looked at the claimed individual elements, and agreed each are unprotectable.
Dancing With A Stranger, is unprotectable because it appears in umpteen prior art examples.
The pitch sequence, is unprotectable because eight pitches in a sequence is too brief and vague. In other words: it seems a pitch sequence needs to be a helluva pitch sequence.
The court declined to decide whether melodic contour, groove, feel and structure are protectable elements, because the plaintiffs made no claim that they are and the court’s decision was unnecessary.
“Rhythm … is not protectable.” (citing Morill and Smith V Jackson)
Nor are chord progressions protectable.” (citing Gray and Swirsky)
The judge then went back and explained that since the elements are themselves not protectable, the plaintiff therefore relies on selection and arrangement. Also that he seems set to a standard that sounds a lot like “thin copyright.” The selection and arrangement must be the ‘particular or same” combination of unprotectable elements. And the court finds that it isn’t.
Here is where I hope this will be the most interesting; the expressed reasoning. Again there's vanishingly little question in my mind that the judge here arrives at the correct decision. But I can already tell I’m going to be sympathizing with the plaintiff here and there.
One by one how it's going:
The unprotectable phrase Dancing With A Stranger is in different contexts (as Musicologize pointed out initially) So they’re used dissimilarly.
The keys of the two songs are different.
Me now: Sure, it doesn’t matter whether we view Sam Smiths as being in Fm or Ab major, both of which are defensible views, neither of those are G minor, and that’s quite definitely the key of the plaintiff’s song.
The pitch sequences are different.
Me again: Pitch sequence differs from melody in that it has no rhythmic component. It’s just the series of the notes’ pitches. And the pitch sequences are not the same though I agree with the plaintiffs that they’re similar. The judge is not seemingly concerned with similar.
“…despite Dr. Stewart’s bald assertion that the pitch sequences in the Melodic Phrases are “very close to being the same,” the Court finds that the pitch sequences “are not identical twins or even sisters under the skin” but rather “something more akin to that of second cousins, twice removed.” Johnson, 409 F.3d at 22 (finding that the pitch sequences 5, 5, 4, 3, 7, 1 and 5, 5, 4, 3, 2, 1 and their accompanying notes contained “differences” including that some notes in the sequences “do not coincide”).”
But hey here we have a relative similarity judgment. Honestly, I’d have to look up what “second cousins, twice removed” means; I can never keep that stuff straight in my head. But these pitch sequences are not very different, and the case law used here, Johnson, 409 F.3d at 22 is a truism, the helpfulness of which I find dubious. A pitch sequence of 5, 5, 4, 3, 7, 1 and another of 5, 5, 4, 3, 2, 1 “coincide” very often. It’s true of course that they contain a difference, as do the pitch sequences of the two “Dancing With A Stranger’s,” and if that’s all that matters, let’s leave it at that. If we’re going to differentiate between “sisters under the skin,” and “distant cousins,” and degree matters, then I don’t love this reasoning. No big. It's been going fine.
Moving on, but not far… still on the pitch sequence, another interesting quote:
"Just because a reasonable juror might not be able to hear the passing 6 notes in the JV Melodic Phrase does not mean they are not present."
Unless we’re getting into a “tree falls in the forest” type of thought experiment, this is obviously true. But my question is, “since you know the pitch sequences have different numerical or solfege data values, are you completely disinterested in an expert telling you that 7 and 2 are not as different as you might think? Do you not care a whit at this stage?
“Professor Bricklin cannot erase the objective fact that the JV Melodic Phrase has two passing 6 notes while the SS Melodic Phrase, at most, contains one passing 6 note by simply noting that a jury performing the intrinsic test might not notice the 6s in JV.”
Erase? I can certainly take out my expert’s gummy eraser and perhaps not obliterate it entirely but leave it appropriately more faint. If that’s irrelevant, fine. And perhaps that's the point. These are trifles. We're looking for sameness.
There are (referring to melodic contour) objective differences in the shape of the melody in each song.
Again degrees of similarity seem treated as irrelevant. As I've said, the plaintiffs are correct that the contours are similar, for what it’s worth. Again, both melodies descend from sol down to do, although one (Smith) gets there via a leap from sol to mi thereby skipping over fa. The other (the plaintiff’s) touches all five, sol, fa, mi, re and do. So they are not “the same” but plaintiff’s “nearly identical,” claim, while exaggerated, is not ridiculous. The point appears more to be that we don’t care. Sameness is the bar.
Next we look at metric placement which is where in time the musical events occur. It is rhythm somewhat net of duration, if that helps. The ruling acknowledges that there are a “good deal of similarities,” but I’d say he understates it. I'll try to explain:
If I taught a class of first graders to perform (speaking, not singing) the line “Dancing With A Stranger” in the correct rhythm, their performances of these two songs should sound identical. The syllables occur, or at least instantiate at identical times. But that’s a real world illustration. In the litigation world we can go back and forth at length about how the first syllable in the word “stranger,” “strange” is set in Smith’s version to two eighth notes (to express that there’s a change in pitch over the course of singing “strange” and that it occurs in a certain rhythm) and the second syllable “ger” is similarly set to two eighth notes in the plaintiff’s version. I can hear the first graders now: “Mr. Brian, didn’t you say we did it right?”
The next rationale: “Other courts in this district have rejected selection and arrangement claims where metric placement differed in the two songs, as here. See, e.g., Morrill, 338 F. Supp. 3d at 1059 (rejecting a selection and arrangement theory where the metric placement of the words “light-ah” and “fi-ah” differed in two songs, appearing on beats 3 and 4 in one song, but appearing only on beat 4 in the other).”
Is that as here? There, in Gwen Stefani and Mr. Morrill’s songs, “light-ah” and “fi-ah” appear initially on different beats. Like my imagined first graders’ performance, there isn’t even pitch in the Morrill’s work. That funk metal song’s lyric is spoken. And I’m struck by the meaning of “appear?” While the first “dance” syllable of “danc-ing” and the first “strange” syllable of “strang-er” are indeed sung across two pitches, they can be said to “appear” (as in “from a state of not yet having appeared”) at exactly the same time, just like every other pitch in this phrase.
Oh boy, here comes chord progressions.
Chord progressions here aren’t remotely the same. Recall though that the plaintiff put forth the observation that they could be shown to be somewhat more similar if you rotated one of the progressions instead of lining them up as they actually appear in the two works.
Here, the judge sums it up nicely:
“Whether an altered version of the JV Melodic Phrase is similar to the SS Melodic Phrase is irrelevant to the question of whether the unaltered JV Melodic Phrase is similar to the SS Melodic Phrase.”
Ouch. But yes, it is indeed irrelevant.
And we're done.
Let’s return to how "selection and arrangement" works. It considers that elements that are unprotectable individually might be numerous enough and their selection and arrangement original enough that their combination is original and protectable. But how much originality it needs to possess brings to that concept of “thin copyright.” This is the lens through which this decision has the most continuity although “thin copyright” is not directly mentioned in the reasoning.
In general, the bar for "selection and arrangement" itself is not different; it’s still about substantial similarity. You are not facing a higher standard of similarity by virtue of claiming the infringement of your selection and arrangement.
But substantial similarity is subject to thin copyright where the originality of the selection and arrangement of the relevant elements, is not especially strong. Thin copyright then expects that the two works need to be virtually identical.
Deficient on both numerosity and originality, I certainly think this was the correct decision. Let's see if any of this gets mentioned in the Steely and Clevie cases.
And lately I’ve been critical of the courts for letting too many weak cases go before juries, so ostensibly I should be pleased this got tossed.