Swirsky v. Carey

376 F.3d 841 (9th Cir. 2004)

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Nature of the Case

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Facts

'One of Those Love Songs” (One) was jointly composed by Ps in 1997. One was recorded by the musical group Xscape and released in May 1998 on Xscape's album 'Traces of My Lipstick.' 'Thank God I Found You' (Thank God) was composed by Ds in 1999 and was released on D's album 'Rainbow' in November 1999. One and Thank God share an allegedly similar chorus that Ps claim is an infringement of One's copyright. P sued Ds. Ds moved for summary judgment, contending that Ps had failed to present a triable issue on the required first, or 'extrinsic,' part of our circuit's two-part test for the establishment of substantial similarity necessary to sustain a claim of copyright infringement. Ds contend that portions of One were not protectable by copyright. The district court agreed and granted summary judgment to Ds. Ps moved for reconsideration, which the district court denied. Ps appealed.