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IP/Entertainment Case Law Updates

Gray v. Perry

Ninth Circuit affirms judgment as matter of law in favor of Katy Perry, finding that similarities between plaintiffs’ song “Joyful Noise” and Perry’s hit song “Dark Horse” were commonplace musical elements lacking in sufficient originality to warrant copyright protection, and overturning $2.8 million jury award.

Christian hip-hop artists Marcus Gray (publicly known as Flame), Emanuel Lambert and Chike Ojukwu filed a copyright suit in November 2016 against Katy Perry, Juicy J, and other songwriters, producers and music companies, alleging that Perry’s hit song “Dark Horse” infringed plaintiffs’ musical composition “Joyful Noise.” Specifically, plaintiffs claimed that defendants copied a repeating eight-note musical phrase, or ostinato, from “Joyful Noise” and used a similar ostinato in “Dark Horse.” Following a trial in the summer of 2019, a jury found defendants liable for copyright infringement and awarded plaintiffs $2.8 million in damages. The district court vacated the jury award, however, and granted defendants judgment as a matter of law, finding that plaintiffs had not presented sufficient evidence at trial to show that the “Joyful Noise” ostinato is sufficiently original to warrant copyright protection. (Read our summary of the district court’s decision here.) Plaintiffs appealed that ruling to the Ninth Circuit, a panel of which reviewed the matter de novo and affirmed the grant of judgment as a matter of law in favor of defendants.

Much of the Ninth Circuit’s review of the record involved the testimony of the parties’ expert musicologists concerning the two ostinatos. It was undisputed that both ostinatos contain similar elements, specifically that they both are in a minor key, both consist of an eight-note pattern starting with minor scale degrees 3-3-3-3-2-2—though the ostinatos differ in the final two notes of the eight-note pattern—and both phrases have a uniform rhythm, with each note being of equal duration. Plaintiffs’ musicologist testified to these and other similarities, opining that the two ostinatos are similar in (1) length, with both consisting of eight notes; (2) rhythm; (3) melodic content, as exhibited by the similar scale degrees used; (4) melodic shape, or “the way the melody moves through musical space”; (5) timbre, meaning the “quality and color of the sound”; and (6) the placement of the ostinatos in the musical space of the recording. Plaintiffs’ expert acknowledged, however, that none of these elements in isolation would lead him to conclude that the ostinatos were substantially similar, but rather that it was the combination of the elements that led to his opinion that the works were substantially similar.

The Ninth Circuit’s analysis focused on whether the two musical phrases are “substantially similar,” noting that both the “extrinsic” and “intrinsic” tests must be satisfied. The intrinsic test focuses on “similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance,” and is left to the jury. The extrinsic test, however, requires an objective comparison of the constituent—and copyright protectable—elements of the two works, and is often resolved as a matter of law. 

Applying the extrinsic test, the Ninth Circuit stated that, as a threshold matter, it must determine what, if anything, from the “Joyful Noise” ostinato qualifies as original expression that can serve as the basis for an infringement claim. While noting that the originality bar for copyright protection is famously low, the court stated that copyright protection does not extend to ideas, concepts, or trite or commonplace musical elements, as these building blocks cannot be monopolized by a single author. With that, the Ninth Circuit concluded that none of the alleged points of similarity between the two ostinatos arose out of a protectable form of expression. The court explained that the shared uses of a minor scale and an eight-note sequence are trite and common musical building blocks not subject to copyright protection. The court rejected plaintiffs’ argument that the two ostinatos share a similar “texture”—or how different musical elements or instrumentation are mixed together—finding that concept to be too abstract to warrant copyright protection. The court also rejected plaintiffs’ argument that the two ostinatos share a similar timbre, or quality of the sound, because plaintiffs claimed infringement of their musical composition, not of any particular sound recording. 

The Ninth Circuit also addressed plaintiffs’ argument that the two ostinatos contained similar pitch sequences. The court first distinguished between an eight-note melody, which involves some amount of rhythmic coordination, and an eight-note pitch sequence. Citing to guidelines from the U.S. Copyright Office and the principle that chord progressions alone are not protectable, the court concluded that the ostinatos’ pitch sequences cannot be protected. 

Finally, the Ninth Circuit addressed the alleged similarity of the “melodic shape” of the two ostinatos, or, as described by plaintiffs’ expert, “the way the melody moves through musical space,” such as the way repeated pitches in both ostinatos created tension that was released upon moving to a different pitch. The court explained that such melodic shape is often the result of “rules of consonance common in popular music” and that courts have recognized that only a few possible permutations of musical notes are pleasing to the ear. It therefore concluded that the melodic shape of the ostinatos results from “commonplace, unoriginal musical principles” and is not protectable.

The court also analyzed whether these elements in combination could form the basis for copyrightable expression. Pointing to examples such as maps or the alphabetical arrangement of phone numbers in a phonebook, the Ninth Circuit stated that some compilations and arrangements are “utterly conventional” and “practically inevitable,” lacking in the originality required for copyright protection. The court concluded that the “Joyful Noise” ostinato “consists of a manifestly conventional arrangement of musical building blocks” and that finding such arrangement copyrightable would improperly grant a monopoly over two-note pitch sequences “or even the minor scale itself, especially in light of the limited number of expressive choices available when it comes to an eight-note repeated musical figure.”

After finding that neither the allegedly similar elements between the two ostinatos nor the combination of those elements merited copyright protection, the Ninth Circuit concluded that plaintiffs could not, as a matter of law, satisfy the extrinsic test to show substantial similarity between “Dark Horse” and “Joyful Noise,” and it affirmed the district court’s order granting judgment as a matter of law in favor of defendants.

Summary prepared by Tal Dickstein and Kyle Petersen 

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