A federal appeals court has revived a copyright infringement lawsuit against Sam Smith and Normani that claimed their multiplatinum hit “Dancing with a Stranger” ripped off a 2015 song of an identical name.
A three-judge panel of the 9th U.S. Circuit Court of Appeals on Tuesday reversed a lower court’s dismissal of the case, finding that a jury could find that the hooks of the two songs are substantially similar. A California federal judge will reconsider the issue.
The reversal reinforces the appeals courts’ position in recent years warning against the early dismissal of copyright infringement lawsuits over creative works that’s emboldened creators and holders of rights to sue for idea theft. Since 2020, orders in lawsuits implicating Servant, The Shape of Water and the first Pirates of the Caribbean have been overturned.
Sound and Color, which holds the copyright to “Dancing with Strangers” from Jordan Vincent and music duo SKX, filed the lawsuit in 2022. It alleged that the title, lyrics, melody and overall production of the song from Smith and Normani copied elements of its track.
While the tempo of Smith’s tune is noticeably slower, the lawsuit claimed that the keys of the songs match when his track is slowed down. It said that the underlying compositions of the tunes are nearly identical, with their hooks sharing the same phrase arranged with the same titles and lyrics.
A California federal court judge in 2023 dismissed the case, finding that the songs aren’t substantially similar to one another and that the phrase “dancing with a stranger” isn’t protected by copyright law.
In Tuesday’s order, the appeals court said that the case should’ve gone to a jury. It stressed that there’s no well-defined standard for assessing when similarities in the selection and arrangement of songs become substantial enough to constitute infringement.
“As Sound and Color’s experts opined, 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,” the order stated. “Defendants’ experts do not identify any hook in the prior art that shares that same melodic contour with those starting and ending pitches.”
Lawyers for Smith pointed to variations in the pitch sequences and court progressions. They also argued that the hook to Vincent’s song is only entitled to thin copyright protection.
“We disagree,” wrote the justices, who noted that that standard only applies to works in which there’s a narrow range of available creative choices. “Defendants’ exhibit containing forty-three audio excerpts of songs with similar lyrics but differences in rhythm, pitch sequence, and melodic contour illustrates the ‘wide range of possible expression and broad creative choices’ involved in crafting a hook and thereby shows that broad copyright protection is appropriate.”
The 9th Circuit’s order comes amid a string of wins by artists against songwriters who have sued for copyright infringement. Ed Sheeran has prevailed in two lawsuits that went to juries over “Shape of You” and “Thinking Out Loud.”