Swirsky v. Carey

Seth Swirsky and Warryn Campbell (plaintiffs) composed "One of Those Love Songs" (One), recorded by Xscape and released in 1998; Mariah Carey, James Harris III, and Terry Lewis (defendants) later composed and released "Thank God I Found You" (Thank God) in 1999. The plaintiffs sued for copyright infringement of the chorus only, presenting musicology expert Dr. Robert Walser, who concluded the choruses were substantially similar based on melody, bass lines, chord changes, tempo, and style, supported by a detailed measure-by-measure technical analysis, though he acknowledged one measure of One more closely resembled a different, older song than it did Thank God. The defendants moved for summary judgment, arguing the plaintiffs failed to raise a triable issue under the extrinsic test, and the district court agreed, prompting the plaintiffs' appeal.