CANBY, Circuit Judge.
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.
This case concerns the alleged similarity between the choruses of two popular and contemporary rhythm and blues ("R & B") songs: plaintiffs'"One of Those Love Songs" ("One") and Mariah Carey's "Thank God I Found You" ("Thank God"). One was jointly composed by plaintiffs Seth Swirsky and Warryn Campbell (collectively "Swirsky") in 1997. Pursuant to a licensing agreement, One was recorded
One and Thank God have generally dissimilar lyrics and verse melodies, but they share an allegedly similar chorus that Swirsky claims as an infringement of One's copyright.
We review de novo the district court's grant of summary judgment. See Smith v. Jackson, 84 F.3d 1213, 1218(9th Cir.1996). We may uphold the summary judgment only if we find that "no reasonable juror could find substantial similarity of ideas and expression [between One and Thank God], viewing the evidence in the light most favorable to the nonmoving party." Id. (quoting Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir.1994)); Narell v. Freeman, 872 F.2d 907, 909-910 (9th Cir.1989). If Swirsky presented "indicia of a sufficient disagreement concerning the substantial similarity of [the] two works," then the case must be submitted to a trier of fact. Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1472 (9th Cir.1992) (internal quotations and citation omitted).
To establish a successful copyright infringement claim, Swirsky must show that (1) he owns the copyright in One and (2) Carey copied protected elements of One. See Rice v. Fox Broad. Co., 330 F.3d 1170, 1174 (9th Cir.2003) (Rice I); Smith, 84 F.3d at 1218. For purposes of summary judgment, Carey conceded that Swirsky owns a valid copyright in One. The element of copying is rarely the subject of direct evidence; Swirsky may establish copying by showing that Carey had access to One and that Thank God was substantially similar to One in One's protected elements. See Smith, 84 F.3d at 1218; Metcalf v. Bochco, 294 F.3d 1069, 1072(9th Cir.2002). Where a high degree of access is shown, we require a lower standard of proof of substantial similarity. See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485(9th Cir.2000); Smith, 84 F.3d at 1218. For the purposes of summary judgment, Carey conceded that she had a high degree of access to One.
In determining whether two works are substantially similar, we employ a two-part analysis: an objective extrinsic test and a subjective intrinsic test. For the purposes of summary judgment, only the extrinsic test is important because the subjective question whether works are intrinsically similar must be left to the jury. See Rice I, 330 F.3d at 1174; Smith, 84 F.3d at 1218. If Swirsky cannot present evidence that would permit a trier of fact to find that he satisfied the extrinsic test, he necessarily loses on summary judgment because a "jury may not find substantial similarity without evidence on both the extrinsic and intrinsic tests." Rice I, 330 F.3d at 1174 (quoting Kouf, 16 F.3d at 1045).
The extrinsic test considers whether two works share a similarity of ideas and expression as measured by external, objective criteria.
The expert testimony on which Swirsky relied was that of Dr. Robert Walser, chair of the Musicology Department at the University of California at Los Angeles. On the basis of his aural assessment
Dr. Walser admitted that the lyrics and verse melodies of the two songs differed "clearly and significantly," but stated that the two songs' choruses shared a "basic shape and pitch emphasis" in their melodies, which were played over "highly similar basslines
Dr. Walser transcribed his aural impressions into a series of visual "transcriptions." Dr. Walser created a transcription of each chorus' pitch sequence, melody,
The district court found this evidence insufficient to survive a motion for summary judgment for four reasons. First, the district court found that Dr. Walser's expert methodology was flawed. Second, the district court, using its own analysis, found that no triable issue was raised as to the substantial similarity of measures two, three, six, seven, and eight of the two choruses. Third, the district court held that measures one and five of One were scenes a faire,
A. Dr. Walser's Methodology
There is nothing inherently unsound about Dr. Walser's musicological methodology in this case. The district court is correct that Dr. Walser's methodology is "selective," in as much as it discounts notes that he characterizes as "ornamental." Dr. Walser, however, explained
Similarly, Dr. Walser explained that some artists will ornament their notes in ways that others do not. Dr. Walser testified at deposition that both Carey and Xscape ornament their notes with "melismas" and "appoggiaturas," both of which are technical terms for moving up to the next note and then back again. Dr. Walser testified that he did not notate these ornaments in his transcriptions, or take them into account in his opinion, because he "took that to be a matter of the singer customizing the song and regarded those notes as not structural; they are ornamental." As we said in Newton v. Diamond, 349 F.3d 591 (2003), we can "consider only [the defendant's] appropriation of the song's compositional elements and must remove from consideration all the elements unique to [Plaintiff's] performance." Id. at 595. Dr. Walser's methodology sought to remove notes he perceived as performance-related.
To a certain extent, Dr. Walser's methodology does concentrate on how the two choruses sound to his expert ears, which led the district court to conclude that his testimony related to intrinsic and not extrinsic similarity. We do not agree, however, that Dr. Walser's testimony was an intrinsic rather than extrinsic analysis. He was not testifying, as the intrinsic test would require, as to whether subjectively the "ordinary, reasonable person would find the total concept and feel of the [two choruses] to be substantially similar." Three Boys, 212 F.3d at 485(quoting Pasillas v. McDonald's Corp., 927 F.2d 440, 442 (9th Cir.1991)). Instead, he was stating that, although the two choruses are not exactly identical on paper, when examined in the structural context of harmony, rhythm, and meter, they are remarkably similar. We, therefore, cannot accept the district court's conclusion that Dr. Walser did not "adequately explain, based on objective criteria, why [his] particular subset of notes is more important, or more appropriately analyzed, than the other notes present in the songs." The district court erred in completely discounting Dr. Walser's expert opinion.
B. The District Court's Measure-by-Measure Analysis
The district court also erred by basing its comparison of the two choruses almost entirely on a measure-by-measure comparison of melodic note sequences from the full transcriptions of the choruses.
Furthermore, to disregard chord progression, key, tempo, rhythm, and genre is to ignore the fact that a substantial similarity can be found in a combination of elements, even if those elements are individually unprotected. See Satava v. Lowry, 323 F.3d 805, 811 (9th Cir.2003); Apple Computer, 35 F.3d at 1445. Thus, although chord progressions may not be individually protected, if in combination with rhythm and pitch sequence, they show the chorus of Thank God to be substantially similar to the chorus of One, infringement can be found. See Three Boys, 212 F.3d at 485; Satava, 323 F.3d at 811.
We recognize the difficulties faced by the district court in this case. We have referred to "the turbid waters of the `extrinsic test' for substantial similarity under the Copyright Act." Metcalf, 294 F.3d at 1071. The application of the extrinsic test, which assesses substantial similarity of ideas and expression, to musical compositions is a somewhat unnatural task, guided by relatively little precedent. Music is an art form that "produces sounds and expresses moods," Debra Presti Brent, The Successful Musical Copyright Infringement Suit: The Impossible Dream, 7 U. Miami Ent. & Sports. L.Rev. 229, 244 (1990), but it does not necessarily communicate separately identifiable ideas. The extrinsic test provides an awkward framework to apply to copyrighted works like music or art objects, which lack distinct elements of idea and expression. Nevertheless, the test is our law and we must apply it. See Smith, 84 F.3d at 1218. The extrinsic test does serve the purpose of permitting summary judgment in clear cases of non-infringement, and it informs
In analyzing musical compositions under the extrinsic test, we have never announced a uniform set of factors to be used. We will not do so now. Music, like software programs and art objects, is not capable of ready classification into only five or six constituent elements; music is comprised of a large array of elements, some combination of which is protectable by copyright.
There is no one magical combination of these factors that will automatically substantiate a musical infringement suit; each allegation of infringement will be unique. So long as the plaintiff can demonstrate, through expert testimony that addresses some or all of these elements and supports its employment of them, that the similarity was "substantial" and to "protected elements" of the copyrighted work, the extrinsic test is satisfied. Swirsky has met that standard here.
C. Scenes a Faire Analysis
The district court erred in finding the first and fifth measures of One to
The evidence does not support the district court's ruling that the first measure of One is a scene a faire as a matter of law. The songs One and Jolly Good are not in the same relevant "field" of music; One is in the hip-hop/R & B genre and Jolly Good is in the folk music genre. Thus, comparing the first measure of One' s chorus to the first measure of Jolly Good does not tell the court whether the first measure of One' s chorus is an indispensable idea within the field of hip-hop/R & B. Further, even if One and Jolly Good were in the same genre of music, a musical measure cannot be "common-place" by definition if it is shared by only two songs.
The district court also erred in finding the fifth measure of One to be a scene a faire as a matter of law. Carey introduced no independent evidence showing that measure five of One was more similar to Jolly Good than Thank God; she relied exclusively on Dr. Walser's opinion that measure five was "almost identical" to measure one of One. As we have already pointed out, on summary judgment, "almost identical" and "identical" are not equivalents, especially in light of Dr. Walser's transcriptions showing that measure five of One is different in pitch sequence from measure one of One. It is inappropriate to grant summary judgment on the basis of scenes a faire without independent evidence, unless the allegation of scenes a faire is uncontested. See Smith, 84 F.3d at 1220. It was contested here.
Other Claims of Lack of Copyright Protection
Because we may affirm the grant of summary judgment on any basis supported
In this circuit, the definition of originality is broad, and originality means "little more than a prohibition of actual copying." Three Boys, 212 F.3d at 489(quoting North Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1033(9th Cir.1992)). All that is needed to satisfy originality is for the author to contribute "something more than a `merely trivial' variation." Id.; see also ETS-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1073 (9th Cir.2000)(referring to "the low threshold for originality under the Copyright Act"). Carey argues that the first measure of One's chorus is not original because it is "substantially similar" to the first measure of Jolly Good.
Although the first measure of One' s chorus and the first measure of Jolly Good may share the same pitch sequence, they are not identical in meter, tempo, or key. There is, therefore, a triable issue whether there are more than "merely trivial" differences between the two works. Carey's contention that the first measure of Swirsky's chorus is not original as a matter of law fails.
Carey next argues that the first measure of One is a mere "musical idea," not protectable under the Copyright Act. Carey relies on Dr. Walser's testimony that the first measure of One was a "short musical idea." Carey's reasoning is fallacious for a number of reasons, the most basic being that a musicologist is not an expert on what the term "idea" means under the copyright laws. Labeling something as a "musical idea" does not necessarily bear on whether it is also an "idea" under the copyright laws and unprotectable for that reason.
No federal court has stated that a musical motive is not protectable because it is an idea. Nor does the "musical idea" of the first measure of Swirsky's chorus lack protection because of its brevity. Although it is true that a single musical note would be too small a unit to attract copyright protection (one would not want to give the first author a monopoly over the note of B-flat for example), an arrangement of a limited number of notes can garner copyright protection. See Elsmere Music, Inc. v. Nat'l Broad. Co., 482 F.Supp. 741, 744 (S.D.N.Y.1980) (finding that four notes were substantial enough to be protected by copyright); Santrayll v.
Swirsky challenges two evidentiary rulings of the district court, which we address because the issues may arise again in further proceedings on remand. We review for abuse of discretion the district court's decision to admit or exclude evidence. See Los Angeles News Serv. v. Tullo, 973 F.2d 791, 800 (9th Cir.1992).
A. The Work Session Tape
The district court did not abuse its discretion in refusing to admit a tape of Carey's "work session" that Swirsky offered as evidence of direct copying. Although there is no explicit ruling by the district court on Swirsky's offer to introduce the tape other than a passing reference in the minute order denying Swirsky's motion for reconsideration, that omission is not in and of itself an abuse of discretion. See GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1209-1210 (9th Cir.2000) (stating that a district court's silence in regard to a ruling is not abuse of discretion if the record supports the court's decision).
The work session tape that Swirsky sought to introduce demonstrated only that Carey came into the studio with the melody to the chorus of Thank God in her head. The fact that a composer or singer has a melody in her head does not necessarily demonstrate direct copying; the melody could easily be the product of her own creative processes, conscious or subconscious. It was thus not a clear error of judgment for the district court to refuse to admit the work session tape.
B. The Bassline Transcriptions
The district court did not abuse its discretion in admitting defense expert Anthony Ricigliano's bassline transcriptions of One and Thank God. Swirsky objected to the admission of Ricigliano's transcriptions on the grounds of lack of personal knowledge or foundation, hearsay, lack of authentication, and relevance. Ricigliano's transcriptions, however, appear to have been admitted for the limited purpose of showing what the two choruses' basslines "looked like" before being reduced by Dr. Walser.
We conclude that Swirsky's expert adequately explained his methodology and provided "indicia of a sufficient disagreement concerning the substantial similarity of two works" so that the issue of the substantial similarity of the two choruses should have been presented to a jury. Brown Bag, 960 F.2d at 1472 (internal quotations and citation omitted). We further conclude that the district court erred in ruling as a matter of law that measures one and five of One were scenes a faire. Finally, we reject Carey's contention that these measures were unprotectable as a matter of law on the grounds that they were unoriginal or mere musical ideas. We therefore reverse the summary judgment and remand this case to the district court for further proceedings consistent with this opinion.