IP Law Daily, COPYRIGHT—9th Cir.: Claim against Sam Smith and Normani over 2019 hit will go forward, (Apr 30, 2025)

By Matthew Hersh, J.D.

A jury will have to decide whether Dancing With a Stranger borrowed too much from a 2015 song.

A Los Angeles federal district court erred when it dismissed a copyright infringement claim over a 2019 pop hit on grounds of lack of extrinsic substantial similarity, the U.S. Court of Appeals for the Ninth Circuit has held. The court, in an unpublished decision, found that a reasonable jury could find that the two songs were substantially similar and that the original copyright, while resting solely on a claim of selection and arrangement of elements within the musical work, was not entitled to merely “thin” protection (Sound and Color, LLC v. Smith, No. 23-2680 (9th Cir. Apr. 29, 2025)).

The work at the heart of the lawsuit is Dancing With a Stranger, the chart-topping 2019 pop song by English singer Sam Smith and American performer Normani Kordei Hamilton (known eponymously as Normani). The lawsuit was brought by Sound and Color LLC, the owner of a 2015 song of the song name that was written by singer/songwriter Jordan Vincent and Christopher Miranda of the production duo SKX. Sound and Color, claiming in that the 2019 version is “strikingly similar” to the original, sued Smith and Normani as well as a wide range of collaborators, publishers, and record labels associated with the smash hit.

The district court granted summary judgment to the defendants, leading to this appeal.

Substantial similarity. The court of appeals, in an unpublished decision, reversed the district court’s holding. The only question presented in the summary judgment motion before the district court was whether the selection and arrangement of elements in the “hook” in Sam Smith’s version, under the objective “extrinsic” test of the Ninth Circuit, was substantially similar to the selection and arrangement of elements in the hook of the 2015 work. The district court held that Sound and Color could not satisfy the extrinsic test as a matter of law and therefore granted summary judgment. The court of appeals disagreed.

The court of appeals reversed because it found that a reasonable jury could find that the hooks shared the same combination of unprotectable elements in substantial amounts. As Sound and Color’s experts opined, the court noted, “the hooks share the same combination of several musical elements, including the same lyrics, the same metric placement of the beginning of each syllable, and the same downward melodic contour that starts at pitch 7 and ends at pitch 3.” Moreover, the court noted, the defendants’ experts did not identify any hook in the prior art that shares that same melodic contour with those starting and ending pitches. To be sure, the court noted, the defendants identified some differences between the hooks, such as certain variations in the pitch sequences and chord progressions. But so long as the plaintiff has presented “indicia of a sufficient disagreement concerning the substantial similarity of the two works,” the court noted, them “the case must be submitted to a trier of fact.” That was the case here.

Nor could the district court’s grant of summary judgment be affirmed on the alternative ground that Sound and Color’s hook was only entitled to thin copyright protection. To be sure, the court noted, selection and arrangement claims are sometimes given only thin protection—but that was not the case here. Indeed, the defendants’ own exhibits worked against them in this case. Those exhibits contained forty-three audio excerpts of songs with similar lyrics but differences in rhythm, pitch sequence, and melodic contour—thus illustrating “the wide range of possible expression and broad creative choices” involved in crafting a hook.” Broad copyright protection was therefore appropriate here, the court concluded.

The Case is No. 23-2680.

Judge: Boggs, D.

Attorneys: Alfred Joseph Fluehr (Francis Alexander, LLC) for Sound and Color, LLC. Peter J. Anderson (Davis Wright Tremaine, LLP) for Samuel Smith.

Companies: Sound and Color, LLC

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