"Dark Horse" No More: No Copyright Infringement for Katy Perry - Fordham Intellectual Property, Media & Entertainment Law Journal
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“Dark Horse” No More: No Copyright Infringement for Katy Perry

“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

  1. Ben Sisario, Katy Perry Prevails as Judge Erases ‘Dark Horse’ Decision, N.Y. Times (Mar. 17, 2020), https://www.nytimes.com/2020/03/17/arts/music/katy-perry-dark-horse.html [https://perma.cc/3Q5E-DJPA].

  2. Alexandra Deitz, Katy Perry Lost Her “Dark Horse” Copyright Lawsuit, But The Real Loser Is The Music Industry, Fordham Intell. Prop. Media & Ent. L.J.: Blog @ Fordham IPLJ (Sep. 27, 2019) http://www.fordhamiplj.org/2019/09/27/katy-perry-lost-her-dark-horse-copyright-lawsuit-but-the-real-loser-is-the-music-industry/ [https://perma.cc/S6W6-TTAH].

  3. Rebecca Tapscott, District Court Finds Katy Perry’s ‘Dark Horse’ Not Substantially Similar to ‘Joyful Noise’ Ostinato, IP Watchdog (Mar. 21, 2020), https://www.ipwatchdog.com/2020/03/21/district-court-katy-perrys-dark-horse-not-substantially-similar-joyful-noise/id=120058/ [https://perma.cc/D7XA-BPLP].

  4. Id.

  5. Sisario, supra note 1.

  6. Tapscott, supra note 3.

  7. Id.

  8. Id.

  9. Gene Maddaus, Katy Perry Wins Reversal of ‘Dark Horse’ Copyright Verdict, Variety (Mar. 17, 2020), https://variety.com/2020/music/news/katy-perry-dark-horse-reversal-1203537482/ [https://perma.cc/9ZAN-GPC6].

  10. Id.

  11. Id.

  12. Id.

  13. Sisario, supra note 1.

  14. Ben Sisario, The ‘Blurred Lines’ Case Scared Songwriters. But Its Time May Be Up, N.Y. Times (Mar. 24, 2020), https://www.nytimes.com/2020/03/24/arts/music/blurred-lines-led-zeppelin-copyright.html [https://perma.cc/DF8Y-KG39].

  15. Id.

  16. Id.

  17. Id.

  18. Id.

  19. Maddaus, supra note 9.

  20. Id.

Katherine Ballington

Katherine Ballington is a second-year J.D. candidate at Fordham University School of Law and the Managing Editor of Volume XXXI of the Fordham Intellectual Property, Media & Entertainment Law Journal. She holds a B.A. in American Government and a minor in French Language from the University of Virginia.