The lawsuit claiming Sam Smith and Normani’s multi-platinum dance hit “Dancing With A Stranger” stole its hook from a 2015 song by the same name is heading to trial after a federal judge in Los Angeles rejected the musical duo’s latest bid to toss the case.
In a 27-page ruling issued Wednesday and obtained by Rolling Stone, U.S. District Judge Wesley L. Hsu denied a motion by Smith and Normani that sought to end the case in their favor based on the evidence developed since the case was first filed in March 2022.
“Plaintiffs have sufficiently introduced an issue of material fact regarding striking similarity and independent creation which precludes a finding of no copyright infringement on summary judgment,” Judge Hsu wrote. The ruling was in keeping with a tentative position he outlined during oral arguments at a hearing on Sept. 11.
The long-running lawsuit was filed four years ago, got dismissed the following year, and was later revived on appeal. In July, lawyers for Smith and Normani again asked the court to throw out the case, arguing that experts for the plaintiff songwriters Jordan Vincent, Christopher Miranda, and Rosco Banlao had failed to show the “striking similarity” needed to keep the claims alive. Judge Hsu disagreed.
“Here, defendants would have the court compare pitch sequences alone, then rhythm alone, then metric placement alone, then contour alone. Disassemble any two works enough, and neither would resemble anything,” he wrote.
Hsu said there was no “well-defined standard” for determining when similarities in the selection and arrangement of musical elements become “striking.” But he said the Ninth Circuit, the federal appeals court that oversees California, has made clear that “analyzing each element in isolation is improper.”
The judge also found a “dispute of material fact” over the defendants’ claim that the plaintiffs’ 2015 song, “Dancing With a Stranger,” incorporated unauthorized samples from two other copyrighted works and therefore was not entitled to protection. The judge said Smith, Normani, and the other defendants had failed to establish that the plaintiffs’ song was derived from those alleged unauthorized samples.
Meanwhile, the defendants’ claims that they created their 2019 song independently, without any access to the plaintiffs’ song, didn’t matter at this stage of the case, the judge found.
“Evidence of independent creation is insufficient to justify summary judgment, as it must be weighed against plaintiff’s prima facie case of copying,” the judge wrote. “The court finds the question of independent creation should be left for the jury to decide.”
The lead lawyer for Smith, Normani and the other defendants, including Universal Music Group, did not immediately respond to a request for comment from Rolling Stone.
“The three songwriters who are Sound and Color [the group behind the 2015 song] are gratified that the District Court has recognized that a jury should decide the musicological issues in this case to determine whether Sam Smith and defendants stole ‘Dancing With A Stranger,’ one of the biggest hits in 2019,” plaintiffs’ lawyer Alfred J. Fluehr with the firm Francis Alexander said in a statement to Rolling Stone. “Previously in the case, the Ninth Circuit came to the same conclusion … We look forward to our day in court.”
At the hearing two weeks ago, Peter Anderson, a lawyer for the defendants, argued that the lawsuit suffered from a fatal flaw because the plaintiffs’ 2015 song incorporated unauthorized samples from “The Ha Dance,” by Masters at Work, and “Think (About It),” by Lyn Collins. Copyright protection, he argued, does not extend to portions of a work that unlawfully incorporate preexisting copyrighted material.
“The two samples run throughout the plaintiff’s work. Specifically, those two samples run throughout the hook, which is the only alleged similarity,” Anderson said. “Plaintiff’s counsel says they’re virtually imperceptible. Well, that means they’re perceptible.”
Fluehr responded that the dispute ultimately turned on “a musicological dispute, [and] that’s for a jury.” Judge Hsu highlighted that argument.
“What they’re arguing here is that the protectable hook is not itself a sample,” the judge said on Sept. 11. He took the matter under submission at the end of the 45-minute hearing.
Questions about earlier musical works have loomed over the case throughout the years-long litigation. Before either song at the center of the dispute was released, Cyndi Lauper recorded a 1989 song titled “Dancing With A Stranger.” The Eurobeat artist Regina also released “Dancing With an Angel” in 1997, which lawyers for Smith and Normani have said contains a descending melodic phrase similar to the passages now at issue.
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