“Dark Horse” No More: No Copyright Infringement for Katy Perry
In a surprising turn of events, a federal judge recently tossed out a $2.78 million verdict against Katy Perry.[1]
In July 2019, a federal jury found that Perry’s song “Dark Horse” infringed on the copyright of a Christian rap artist’s song “Joyful Noise.”[2] The lawsuit centered around a simple eight-note pattern called an ostinato.[3] Artist Flame, also known as Marcus Gray, argued that Perry’s “Dark Horse” borrowed the ostinato, a continually repeated musical rhythm, from his own song “Joyful Noise.”[4]
On March 17, Judge Christina A. Snyder issued a ruling vacating the jury’s verdict, removing copyright infringement liability for Katy Perry and her production team.[5] Perry asserted that Flame had not presented enough evidence showing “substantial similarity” between the musical notes at issue.[6] A “substantial similarity” analysis first raised the question of whether any elements that comprise “Joyful Noise” are entitled to copyright protection.[7] Judge Snyder determined that no elements, such as rhythm and pitch sequence, were individually protectable.[8] Judge Snyder went on to say that “a relatively common 8-note combination of unprotected elements that happens to be played in a timbre common to a particular genre of music cannot be so original as to warrant copyright protection.”[9]
Next, the court turned to whether the evidence from trial supported a finding that the two ostinatos were “substantially similar.”[10] To be “substantially similar,” the court noted that the elements of each ostinato must be “virtually identical.”[11] Judge Snyder concluded that even if Flame was entitled to copyright protection of “Joyful Noise,” there was no copyright infringement because the ostinatos are not “virtually identical.”[12]
Judge Snyder’s ruling came about a week after another closely followed copyright case involving Led Zeppelin’s song “Stairway to Heaven” was decided.[13] Zeppelin’s case also focused on whether similar simple musical patterns can be copyrighted.[14] As with Perry, Zeppelin prevailed at trial.[15]
Ed Sheeran, the next well-known artist facing a similar lawsuit, has been accused of copying musical patterns from Marvin Gaye’s “Let’s Get It On” for his song “Thinking Out Loud.”[16] If the defendant-friendly trend continues, it will be more difficult for plaintiffs to bring cases against well-known artists for simple combinations of musical elements.[17] Sam P. Israel, Carrie Underwood’s attorney, has noted that these decisions are “going to have a chilling effect on people who want to bring a complaint.”[18]
Christine Lepera, Perry’s lead attorney, stated, “This is an important victory for music creators and the music industry, recognizing that music building blocks cannot be monopolized.”[19] As she further said, “the creators of ‘Dark Horse’ stand vindicated.”[20]
Footnotes
