Court Erred in Finding No Similarity Based on Measure-by-Measure Comparison

摘要

A district court erred in finding no similarity be-tween the songs based on a measure-by-measure comparison, the U.S. Court of Appeals for the Ninth Circuit held July 12 (Swirsky v. Carey, 9th Cir., No. 03-55033, 7/12/04). Reversing and remanding the case, the court explained that under the district court's measure-by-measure approach, expert testimony would not be required because any person untrained in music can conclude that a half-note is not identical to an eighth note. While there may be some disagreement about the best way to analyze music for substantial similarity, no approach can completely divorce pitch sequence and rhythm from harmonic chord progression, the court added. It also disagreed with the district court's holding that the expert's methodology was flawed, and that his testimony related to intrinsic, not extrinsic similarity. Seth Swirsky and Warryn Campbell (collectively Swirsky) hold copyrights in the song, "One of Those Love Songs," which was recorded by the R&B group Xscape and released in May 1998. Mariah Carey's "Thank God I Found You" was composed by Carey, James Harris III, and Terry Lewis in 1999 and released on Carey's album "Rainbow" in November 1999.