A federal judge signaled Friday he would deny the latest bid by Sam Smith and Normani to vanquish the copyright lawsuit claiming their multi-platinum dance hit “Dancing With a Stranger” stole its hook from a 2015 song by the same name.
The long-running lawsuit was first filed in 2022, dismissed a year later, and then revived on appeal. In July, lawyers for Smith and Normani filed a new motion for summary judgment seeking to toss the copyright claims from songwriter Jordan Vincent.
Speaking from the bench Friday, U.S. District Court Judge Wesley L. Hsu said his tentative ruling was to deny the motion for summary judgment.
“I reject the defendants’ attempt to categorically exclude the testimony of the two experts from the plaintiff,” he said. “While I don’t agree with the conclusions of the experts, that is not a decision for me. The only decision for me is whether they have some foundation for those opinions, and I believe that they do.”
He noted that Vincent now faces a higher burden because he withdrew his theory that the creators of the Sam Smith and Normani song had access to his 2015 song through widespread dissemination. And as a result, he said, Vincent must now show that the two songs are not merely substantially similar, but “strikingly similar.” But either way, the claims appear strong enough to go to a jury, he said.
“Even though it’s a higher standard, and the jury should be instructed accordingly, I don’t find a basis for me to find, as a matter of law, that copying didn’t occur,” Judge Hsu said.
Peter Anderson, a lawyer for Smith and Normani, argued that the proper test was whether it was “virtually impossible that the works could have been independently created.” He said the plaintiffs could not meet that standard based on four or five alleged similarities involving musical elements that he described as “commonplace in the musical world.”
“Plaintiffs’ argument is like saying it’s virtually impossible that the works could have been independently created,” Anderson said.
Anderson, a lawyer at Davis Wright Tremaine, also argued the lawsuit suffered from another fatal defect because Vincent’s 2015 song incorporated unauthorized samples from two earlier works, “The Ha Dance,” from Masters at Work, and “Think (About It),” from Lyn Collins. He argued copyright protection doesn’t 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 argued. “Plaintiff’s counsel says they’re virtually imperceptible. Well, that means they’re perceptible.”
When it was his turn to respond, Vincent’s lawyer, Alfred J. Fluehr, told the judge he agreed with the court’s tentative view. “This is a musicological dispute. That’s for a jury,” he said.
Judge Hsu appeared to agree, saying, “What they’re arguing here is that the protectable hook is not itself a sample.” He ended the 45-minute hearing by taking the matter under submission and saying he would issue a written ruling later.
Throughout the yearslong legal battle, the question of prior art has loomed large. Before either of the songs at the center of the lawsuit was released, Cyndi Lauper recorded her 1989 song titled “Dancing With a Stranger.” The Eurobeat artist Regina also released a 1997 song, “Dancing With an Angel,” that lawyers for Smith and Normani said contains a descending melodic phrase similar to those in the songs now at issue.
