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Decision of Note: <b>Court Criticizes 'Mechanical' Use Of Extrinsic Test</b>
The U.S. Court of Appeals for the Ninth Circuit held that the district court erred in a “too mechanical” use of the “extrinsic” test by determining whether two song choruses were substantially similar through a measure-by-measure comparison of the melodies. Swirsky v. Carey, 03-55033.
To determine substantial similarity, the Ninth Circuit uses both an extrinsic test based on external, objective criteria and a subjective, layperson “intrinsic” test. The plaintiffs filed suit alleging that the song “Thank God I Love You,” co-written by Mariah Carey, infringed on the plaintiffs' “One of Those Love Songs,” recorded by the group “Xscape.” The district court granted summary judgment in favor of the defendants.
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