Swirsky wrote a song that was
a minor hit. Later, Carey wrote a similar-sounding song that also became
a hit. Swirsky sued for copyright infringement.
Swirsky admitted that most
of Carey's song was not similar to his song, but that the chorus was substantially
Swirsky had an expert
witness testify about the songs' similarities.
The Trial Court granted
summary judgment for Carey. Swirsky appealed.
The Trial Court found that
there was a two-part test to determining infringement, the extrinsic
test and the intrinsic test.
The Court found that Swirsky
had failed to present a triable issue on the first part, the extrinsic
Basically, the Court said
that they didn't think Swirsky's expert was good because he emphasized
the similar parts of the works and deemphasized the dissimilar parts.
The Appellate Court reversed
and remanded for trial.
The Appellate Court found
that there is a two-part analysis for infringement:
The extrinsic test considers whether two works share a
similarity of ideas and expressions as measured by external, objective
The intrinsic test which is a subjective comparison that focuses
on whether a reasonable audience would find the "total concept and
feel" of the works to be similar.
The Court found that in
order to be triable, there noted to be an "indicia of a sufficient
disagreement concerning the substantial similarities of the two
works." The Court found that Swirsky's expert adequately defined
the similarities, so the case should be heard by a jury.