A three-judge panel for the U.S. 9th Circuit Court of Appeals ruled unanimously to dismiss a $2.8 million copyright verdict against Katy Perry, Capitol Records and co-defendants by a lower court for allegedly copying a beat from a Christian rap song.
Perry’s 2013 hit song “Dark Horse” featuring Juicy J had been accused of copying part of beat used in the 2008 song “Joyful Noise” by the Christian rapper Flame featuring Lecrae.
Last week, the 9th Circuit upheld the federal court’s determination, contending that the similar music notes between the two songs lacked enough originality to qualify for copyright protection.
“The district court vacated the jury award and granted judgment as a matter of law to defendants, concluding principally that the evidence at trial was legally insufficient to show that the Joyful Noise ostinato was copyrightable original expression,” the 9th Circuit’s March 10 opinion authored by Judge Milan D. Smith reads.
“We affirm. Copyright law protects ‘musical works’ only to the extent that they are ‘original works of authorship,’” the George W. Bush appointee continued. “The trial record compels us to conclude that the ostinatos at issue here consist entirely of commonplace musical elements, and that the similarities between them do not arise out of an original combination of these elements. Consequently, the jury’s verdict finding defendants liable for copyright infringement was unsupported by the evidence.”
The court reasoned that a portion of the songs that overlap “consists of a manifestly conventional arrangement of musical building blocks” and contended that allowing copyright protection of such material could create an “improper monopoly over two-note pitch sequences or even the minor scale itself.”
The ruling comes amid years of litigation between Gray and Perry. Gray and his legal team will consider their options for appeal.
“Dark Horse” was a very successful song in 2014, spending 57 weeks on the Billboard Hot 100 and four weeks at No. 1.
In response to the ruling, Gray’s attorney Michael A. Kahn told Billboard: “[t]he notion that this simple, original, and clearly distinctive 8-note melody can’t be protected by copyright runs contrary to a series of simple and clearly distinctive 8-note opening melodies, including Dave Brubeck’s ‘Take Five,’ The Rolling Stones’ ‘Satisfaction,’ and, of course, the 8-note opening to Beethoven’s 5th Symphony. We are considering our options.”
Perry’s Capitol Records label representative, Christine Lepera, said her client was “very pleased” with a ruling that “recognized the importance of a court’s gate keeping function in determining whether the claimed musical similarities in a case — alone or in combination — rise to the level of copyrightable expression.”
Gray’s initial argument was that his song’s success in the niche Christian market went on to have massive success, and the defendants may have gotten wind of it at the Grammy Awards or seen it on YouTube or other social media platforms where the song has been streamed millions of times.
Todd Decker, a musicologist, broke down the underlying beat in both songs during the trial in 2019.
Decker testified that the ostinatos (short melodic phrase repeated throughout a composition) share “five or six points of similarity,” including pitch, rhythm, texture, pattern of repetition, melodic shape and timbre, or “the quality and color of a sound,” as reported by Billboard at the time.
Neither Perry nor Gray have publicly addressed the final ruling.