By Alyssa Yoshino. On March 4, 2022, Sound and Color, LLC filed a lawsuit against Sam Smith, Normani, and various other recording and publishing companies alleging copyright infringement of the song “Dancing with Strangers,” formerly known as “Dancing with a Stranger,” written in 2015 by Jordan Vincent, Christopher Miranda, and Rosco Banlaoi. Vincent, Miranda, and Banlaoi are currently in the process of assigning their copyright in “Dancing with Strangers” to Sound and Color, LLC.  Plaintiffs allege that Sam Smith and Normani’s 2019 hit “Dancing with a Stranger” infringes the copyright to “Dancing with Strangers.” According to the Complaint, Smith and Normani’s “Dancing with a Stranger” is certified Platinum in over ten countries and was streamed over three billion times as of March 2021.

            The lawsuit was brought in the Central District of California. The Ninth Circuit applies the test articulated in Skidmore v. Led Zeppelin.^[1] Under Skidmore, Plaintiffs must show (1) Smith and Normani copied “Dancing with a Stranger,” and (2) Smith and Normani’s copying constitutes unlawful appropriation both extrinsically and intrinsically.^[2]

The Plaintiffs’ prima facie case that “Dancing with a Stranger” infringes

Plaintiff’s Evidence of Copying by Smith and Normani: Plaintiffs can show copying by submitting either direct evidence that the Defendants copied or circumstantial evidence of reasonable access and probative similarities.^[3] The complaint alleges that access can be proven in five ways: (1) the hooks and music videos are so strikingly similar that independent creation is unlikely, (2) Plaintiff’s song was widely distributed because it was “shopped,” pitched to music industry professionals, from 2015 to 2018 and subsequently accrued over 500,000 listens on SoundCloud and thousands of views on YouTube after its public release in 2016, (3) Defendants had access through Thrive Records because Thrive was interested in Plaintiff’s song in 2015 and  Thrive’s executives work with Normani, (4) Normani was given access to the song by Jared Cotter, a manager who has worked with Normani and oversaw the failed deal with Thrive in 2015, and (5) access is demonstrated by the similarities between Defendant and Plaintiff’s music videos. The Complaint sets forth the probative similarities within its discussion of access. 

Plaintiff’s Evidence of Unlawful Appropriation: The Plaintiff must show unlawful appropriation under both the extrinsic and intrinsic tests to prove infringement. ^[4] The extrinsic test under Skidmore compares the objective similarities of specific expressive elements; it allows for unprotectible elements to be filtered out of analysis.^[5] The intrinsic test under Skidmore assesses the similarity of expression between the works from the standpoint of the ordinary reasonable observer with no expert assistance.^[6]

            The Complaint does not separate the unlawful appropriation discussion into separate analyses for the extrinsic and intrinsic tests. Rather, the Complaint argues that the Defendant’s song is substantially similar to Plaintiff’s as discussed in an export report by Dr. Alexander Stewart. Dr. Stewart’s report sets forth six similarities between Plaintiff and Defendant’s songs:

1. Both works heavily utilize synthesized instruments and four-chord cycles of major and minor chords that result in some ambiguity as to the key,
2. The chord progressions are similar over a cycle of eight bars when Defendant’s song is transposed down one whole step,
3. The basic structure and timing of the intro, verses, and chorus is similar,
4. The melodies occur at a similar frequency throughout the hooks of both songs,
5. The signature phrase of “dancing with a stranger” share this identical lyrical phrase, have similar rhythms, and have a similar pitch sequences when Plaintiff’s song is slowed to the same tempo as the Defendant’s or transposed one whole step up, and
6. The signature phrase appears at the end of each four chord cycle within the hook of each song.

Extrinsic test

            Under the extrinsic test of the Ninth Circuit, alleged similarities that are not copyrightable on their own can be filtered out of infringement analysis. ^[7] Smith and Normani can argue that the similarities set forth in Dr. Stewart’s report are unprotectible. The general similarities in timing, key, and use of synthesized instruments are so commonly used in music that they will likely be filtered out of analysis. 

            Plaintiff’s expert, Dr. Stewart, argues that Smith and Normani’s song contains a similar chord progression cycle over eight bars when transposed to the same key as Plaintiff’s song. Plaintiff’s song contains a bVI-bVII-i-v-bVI-bVII-i-v progression while Smith and Normani’s song contains a bVI-bVII-i-III-bVI-v-i-III progression. The progressions are expressed as roman numerals as the songs are in different keys. Dr. Stewart argues that Smith and Normani’s progression established a strong sense of the tonic chord because of its melodic movement to the “i” chord. Additionally, both progressions share an identical bVI-bVII-i progression. Smith and Normani can possibly use Dr. Stewart’s analysis against the Plaintiff because bVI-bVII-I “is a common cadence in rock and popular music.” Under Batiste v. Najim, basic chord progressions that are common throughout a genre are unprotectible.^[8] Additionally, Smith and Normani can argue that melodic movement to the tonic chord is a common idea throughout music theory and thus is not protectible. 

            The third, fourth, and sixth similarities discussed by Dr. Stewart essentially all point to a similarity in the structure and timing of the songs. The basic structure of an intro, verse, chorus, verse, and chorus is so common throughout all songs that it will most likely be found to be unprotectible. The timing of these structural components is also common. Dr. Stewart’s report states that both songs feature thirty second intros, approximately thirty second first verses, and approximately thirty second choruses. This is common in numerous songs ranging from The Weeknd’s “Blinding Lights” to Maxine Nightingale’s “Right Back Where We Started From.”^[9] Plaintiff may have a stronger argument that the frequency of the signature phrase throughout the chorus is protectible. The phrase “dancing with a stranger” is repeated four times in each chorus of Plaintiff’s song. Smith and Normani can argue that repeating such signature phrase is common idea in songwriting. Maxine Nightingale’s “Right Back Where We Started From” repeats the phrase “we gotta get right back to where we started from” two times in each chorus.^[10] Rihanna’s “Umbrella” repeats the phrase “under my umbrella” five times in each chorus.^[11] Plaintiff could argue that the specific number of four repetitions of “dancing with a stranger” is original and thus protectible. However, Smith and Normani’s team may be able to demonstrate that repeating a signature phrase four times is common.

            Plaintiff’s fifth alleged similarity, stated in Dr. Stewart’s report, likely has the best chance of being established as protectible. While the lyrical phrase of “dancing with a stranger” is not protectible by copyright, the melodic and rhythmic components of the phrase may be.^[12] Plaintiff would have to show that the melody and rhythm are original. While Smith and Normani may be able to argue that this short, descending, syncopated phrase is unoriginal, it is unclear who would win this argument. Dr. Stewart’s report argues that Plaintiff’s use of the phrase “dancing with a stranger” distinguishable from prior art. Though the Complaint does not use this argument to bolster a protectability argument for the melody and rhythm of the signature phrase, Plaintiff could use this to argue that the use of the phrase is protectible.

            If Plaintiff can establish that some of the alleged similarities are protectible on their own, they must also be able to show substantial similarity to prove infringement under the extrinsic test. Assessing substantial similarity will likely depend on what gets filtered out of analysis. If the melody and rhythm of the signature phrase are the only alleged similarities found to be protectible, substantial similarity may not be found. Conversely, if more alleged similarities are found to be protectible, Plaintiff may be able to establish substantial similarity.

Intrinsic test

            The intrinsic test under Skidmore assesses the similarity of expression between the works from the standpoint of the ordinary reasonable observer with no expert assistance.^[13] Plaintiff must overcome both the extrinsic and intrinsic tests to establish infringement. If Plaintiff establishes substantial similarity under the extrinsic test, is unclear who will prevail for the intrinsic test. The vocal performance of the signature phrase is quite similar. Vincent, the artist on the Plaintiff side, and Smith sing “dancing with a stranger” sliding up to the first note and then use a similar vocal timbre in the phrase. This could be found to be similar by someone without musical experience as the result is a signature phrase with similar vocals.  

            Though both songs use synthesized instruments, an ordinary observer may not find them to sound similar. In addition to Plaintiff’s song being faster, there are songwriting elements that drive Plaintiff’s song to feel more upbeat. This could contribute to an ordinary reasonable observer perceiving the songs to sound different.

Smith and Normani’s possible fair use defense? 

If infringement is found, Smith and Normani can raise the fair use defense. Under § 107, four factors are considered in evaluating fair use: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work.^[14] No factor in the fair use analysis is dispositive.^[15]

            Post Campbell v. Acuff Rose Music, an analysis of the first factor includes asking if the use of the work was transformative.^[16] Under Campbell, transformative means the addition of something new, with a further purpose or different character, altering the first with new expression, meaning or message.^[17] Smith and Normani likely do not have a strong argument for transformative use unless they can demonstrate how they added to Plaintiff’s work with some different purpose or message.

            The second factor weighs in favor of Plaintiff because Smith and Normani’s “Dancing with a Stranger” is a musical work and close to the core of copyright. The third factor might weigh in favor of Plaintiff because, as Dr. Stewart’s report states, the similar signature phrase is repeated thirteen times across all of the choruses in Smith and Normani’s song and the chorus constitutes fifty-four percent of the song’s time. Additionally, the similar phrase is arguable the “heart” of the song as the signature phrase and the title of both songs. Finally, the fourth factor could go either way. Though Plaintiff can argue that the market value for their song was reduced because after Smith and Normani’s “Dancing with a Stranger” released, they lost out on potential licensing deals and royalties. Because listeners were looking for a popular song titled “Dancing with a Stranger” by Smith and Normani, Plaintiff’s song may have gotten fewer opportunities and attention. However, Smith and Normani can argue that because their song was titled the same, Plaintiff’s song may have gotten more attention, streams, and subsequently royalties. More information would be useful to assess transformative use and to conduct a market analysis. 

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Attorneys for Plaintiffs

Steven T. Lowe, Lowe & Associates, Beverly Hills, CA

Alfred (AJ) Fluehr, Media, PA

Attorneys for Defendants

Peter Anderson, DAVIS WRIGHT TREMAINE LLP

Sean M. Sullivan, DAVIS WRIGHT TREMAINE LLP

Eric H. Lamm, DAVIS WRIGHT TREMAINE LLP

^[1] See Skidmore v. Led Zeppelin, 905 F.3d 1116, 1125 (9th Cir. 2018).

^[2] See id.

^[3] See id.

^[4] See id.

^[5] See id.

^[6] See id. at 1136.

^[7] See id.

^[8] See Batiste v. Najim, 28 F.Supp. 3d 595, 615 (E.D. La. 2014).

^[9] See The Weeknd, Blinding Lights, Soundcloud (Nov. 29, 2019) https://soundcloud.com/theweeknd/blinding-lights; Maxine Nightingale, Right Back Where We Started From, Soundcloud (Oct. 30, 2014) ) https://soundcloud.com/maxine-nightingale/right-back-where-we-started-5.

^[10] See The Weeknd, supra note 9.

^[11] See Rihanna, Umbrella, Soundcloud (Jan. 1, 2007) https://soundcloud.com/rihanna/umbrella. 

^[12] 37 C.F.R. § 202.1(a).

^[13] See id. at 1136.

^[14] 17 U.S.C. § 107.

^[15] See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584.

^[16] See id. at 587.

^[17] See id. at 579.