A federal judge suggested Friday that he will reject Sam Smith and Normani’s latest effort to end a copyright lawsuit alleging their multi-platinum dance hit “Dancing With a Stranger” borrowed its hook from a 2015 song of the same name.
The case was filed in 2022, dismissed the following year and revived on appeal. In July, lawyers for Smith and Normani sought summary judgment to eliminate the claims brought by songwriter Jordan Vincent.
Speaking from the bench Friday, U.S. District Judge Wesley L. Hsu said his tentative ruling would deny the motion for summary judgment.
“I reject the defendants’ attempt to categorically exclude the testimony of the two experts from the plaintiff,” Hsu 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.”
Hsu noted that Vincent’s burden increased after withdrawing his argument that the creators of Smith and Normani’s song had access to his 2015 track through widespread distribution. Vincent must now prove that the songs are “strikingly similar,” rather than merely substantially similar. Even under that higher standard, however, the judge said the claims appear strong enough to be considered by a jury.
“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,” 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 he described as commonplace.
Anderson, who works at Davis Wright Tremaine, also argued that the case has a fundamental flaw because Vincent’s 2015 song incorporated unauthorized samples from two earlier works: “The Ha Dance” by Masters at Work and “Think (About It)” by Lyn Collins. He contended that copyright protection does not 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 said. “Plaintiff’s counsel says they’re virtually imperceptible. Well, that means they’re perceptible.”
Alfred J. Fluehr, Vincent’s lawyer, told the judge during his response that he agreed with the court’s tentative view. “This is a musicological dispute. That’s for a jury,” he said.
Hsu appeared to agree, stating, “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 said he would issue a written ruling later.
Throughout the yearslong dispute, evidence of prior art has been a central issue. Before either disputed song was released, Cyndi Lauper recorded her 1989 song “Dancing With a Stranger.” Eurobeat artist Regina also released the 1997 song “Dancing With an Angel,” whose lawyers for Smith and Normani say contains a descending melodic phrase similar to those in the songs at the center of the case.