Gray v. Perry: The Pendulum Swings on Copyright Infringement Verdict against Katy Perry

By Scott J. Sholder

Following hot on the heels of the Ninth Circuit’s en banc decision clearing Led Zeppelin of copyright infringement allegations relating to the classic “Stairway to Heaven” (which we reported here), a California federal judge last week overturned a jury’s finding of copyright infringement against Katy Perry regarding the pop hit “Dark Horse.”  Songwriters still nervous in a post-“Blurred Lines” world will likely take solace in two decisions that – while in many ways different from Pharrell Williams’ and Robin Thicke’s case – solidify certain aspects of copyright law that may help musicians rest and write a bit easier.

The genesis of the “Dark Horse” case is not unlike any other you-copied-my-song litigation.  Plaintiffs, successful songwriters and musicians in their own right, sued pop star Katy Perry, several other songwriters, and the record labels and publishers behind “Dark Horse,” claiming that an eight-note ostinato – a “short musical phrase or rhythmic pattern repeated in a musical composition” – in “Dark Horse” was substantially similar to one in plaintiffs’ song “Joyful Noise.”  The alleged similarity between musical phrases as opposed to full musical compositions makes the “Dark Horse” case more like “Stairway to Heaven” than “Blurred Lines,” which dealt with infringement of an entire song.  This distinction informed the court’s legal analysis as well, as discussed further below.

After a two-week trial in the summer of 2019, a jury found the defendants liable for copyright infringement and awarded plaintiffs $2.8 million in damages, and the defendants moved for judgment as a matter of law (or for a new trial).  Courts will grant motions for judgment as a matter of law when there are no genuine factual disputes and “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.”  The court found these standards to be satisfied.

The court primarily addressed the evidence presented in support of the jury’s finding that the defendants’ ostinato was “substantially similar” to that of plaintiffs.  As we discussed in connection with the “Stairway to Heaven” case [here], courts in the Ninth Circuit apply a two-step test to determine whether two works are substantially similar.  Part one, the “extrinsic” test, sets forth a question of law for the court (often aided by experts) whether protected elements of the plaintiff’s work are objectively similar to corresponding elements of the defendants’ work.  Part two, the “intrinsic” test, asks the jury to decide whether an ordinary reasonable person would find that the “total concept and feel” of the works was substantially similar.  The court spent most of its analysis on part one.

As a threshold matter, the court explained that, where the work at issue consists of a combination of unprotected elements, an enforceable right in that combination only exists if the “elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”  This nuance is particularly relevant in music cases; citing “Stairway to Heaven,” the court explained that where “there is a narrow range of available creative choices” (such as notes in a scale or pleasing combinations of sounds) copyright protection is “thin” and to infringe, the allegedly infringing copy must be virtually identical.  The difference between this case and the “Blurred Lines” case, according to the court, is that the “thin copyright” doctrine typically will not apply to entire musical works (as opposed to constituent elements).  Citing its obligation to balance the First Amendment against the Copyright Act, the court also noted that the inherent nature of music as an art form was to borrow and build upon what had previously been created given that “many if not most of the elements that appear in popular music are not individually protectable.” 

With this backdrop, the court first analyzed the constituent elements of plaintiffs’ ostinato, including the key, phrase length, pitch sequence, rhythm “shape,” and musical texture.  Finding these elements to be individually common or even ubiquitous in pop music, the court held that “the uncontroverted evidence points to only one conclusion: that none of these individual elements are independently protectable.”  This conclusion was supported by testimony from the plaintiff’s own expert musicologist.

The same conclusion was apparent when analyzing the elements taken together as combined: their selection, arrangement, and coordination was not original enough to warrant protection as an original work of authorship.  The court held that the ostinato in “Joyful Noise” did not contain enough musical elements arranged in a “sufficiently original manner to warrant copyright protection.”  While it is possible that a musical phrase as short as eight notes could be protected, the court noted the dearth of on-point cases where “an otherwise unprotected musical phrase, isolated from the rest of the musical composition, in fact warranted copyright protection.”  The court explained that it was undisputed in light of the evidence at trial that “the signature elements of the 8-note ostinato in ‘Joyful Noise’” including its pitch sequence and rhythm, were “not a particularly unique or rare combination,” and that prior works composed by the parties and many others contained similar elements.  The ostinato’s musical timbre, its “pingy synthesizer sound,”’ and its use of minor key did not tip the scales.

The court accordingly held that the ostinato did not constitute protectable expression and therefore the extrinsic test (step one) failed, entitling the defendants to judgment as a matter of law notwithstanding the jury verdict to the contrary.  Although arguably not strictly necessary in light of this threshold ruling, the court went on to explain that, even if the plaintiffs’ ostinato was protectable, the defendants’ ostinato was not substantially similar.  Owing to the “thin” nature of the protection that would have been afforded to the plaintiff’s composition had it been deemed copyrightable, the degree of similarity would have had to have been “virtually identical” for a finding of infringement, and the evidence did not support such a conclusion given “a number of undisputed objective distinctions,” as corroborated by plaintiffs’ own musicologist.

Interestingly, despite the court’s conclusion that defendants were entitled to judgment as a matter of law on the extrinsic test (arguably obviating the need to address the intrinsic test), the court proceeded to opine on the jury’s finding of intrinsic similarity.  Because the intrinsic test is fact-sensitive and a question solely for the jury, the court held that, despite the court’s reversal on extrinsic liability, a reasonable jury could have found that the “total concept and feel” of the two ostinatos were “intrinsically” similar.  This of course did not change the outcome of the decision.

The court also found that there had been enough evidence to support the jury’s conclusion that the plaintiffs had accessed the defendants’ song.  Citing “Stairway to Heaven,” the court noted that reasonable minds could find that defendants “had a reasonable opportunity to [hear] plaintiff’s work” particularly in light of the current ubiquity of musical content and ready access to digital media online.  In such circumstances access could be established “by a trivial showing that the work is available on demand,” and “Joyful Noise” had garnered more than 6 million plays online, hundreds of concert performances, and a Grammy nomination.  But again, this did not change the result.

The “Dark Horse” case follows in the footsteps of “Stairway to Heaven” in establishing stricter boundaries around what musical elements are protectable but indirectly diminishing the importance of access in light of digital media and technological advancements.  As the decision is applicable to song elements like ostinatos, and arguably by analogy guitar riffs or solos, basslines, synthesizer accompaniments and the like – as opposed to entire compositions – it will likely cabin future claims concerning these discrete musical structures and reduce the likelihood that a songwriter or performer will be hit with a multi-million-dollar jury verdict for creating a single song element.  Decisions like “Dark Horse” and “Stairway to Heaven” will likely provide some comfort to musicians in being able to rely on those who came before them in writing their parts, but at the same time the decisions leave undisturbed the lessons from “Blurred Lines” when it comes to similarity of musical compositions in the aggregate whether one agrees with the outcome of that case or not.