Fanning the FLAME: Katy Perry Wins Multi-Million Dollar Copyright Infringement Appeal

I knew you were

You were gonna come to me

And here you are

But you better choose carefully

'Cause I, I'm capable of anything

Of anything and everything

?

Make me your Aphrodite

Make me your one and only

But don't make me your enemy

your enemy, your enemy

Songwriters: Henry Russell Walter / Jordan Houston / Katy Perry / Lukasz Gottwald / Martin Max / Sarah Hudson; Dark Horse lyrics ? BMG Rights Management, Kobalt Music Publishing Ltd., O/B/O Capasso, Warner Chappell Music, Inc

In 2013, Katy Perry’s label, Capitol Records, released her now-famous song Dark Horse.?The song topped the Billboard 100 Chart and featured rapper Juicy J.?Christian rapper FLAME (aka Marcus Gray) noticed some similarities between Dark Horse and his 2008 release, Joyful Noise, specifically a series of repeating beats called an ostinato.

Listen to Katy Perry’s song Dark Horse here: https://youtu.be/0KSOMA3QBU0

Listen to FLAME’s song Joyful Noise here: https://www.youtube.com/watch?v=MllhC0qyEjY

Gray, along with co-plaintiffs Emanuel Lambert and Chike Ojukwu, filed a lawsuit against Perry, Juicy J. and a number of other defendants, alleging that Perry had access to and copied the Joyful Noise ostinato when composing Dark Horse, thus infringing on their copyright in the song.?The jury came to a decision in 2019, initially in favor of Gray, finding that there was substantial similarity between the songs.?Though Perry’s attorney argued that the ostinato was made merely of “building blocks of music” that shouldn’t be copyrightable, the jury was not convinced.?

Perry’s attorneys filed a motion for judgment as a matter of law, asking the judge to reconsider and overrule the jury’s verdict on the basis that there was no sufficient evidentiary basis supporting the findings.?In her analysis, the judge utilized a two-part legal test to determine extrinsic and intrinsic similarity.?The extrinsic similarity test considers whether two works share a similarity of ideas and expression as measured by external, objective criteria. The extrinsic test requires breaking the works down into their constituent elements, and comparing those elements for proof of copying as measured by substantial similarity. ?Because the requirement is one of substantial similarity to protected elements of the copyrighted work, it is essential to distinguish between the protected and unprotected material in a plaintiff's work. ?Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004). The intrinsic test, on the other hand, focuses on the similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance. ?Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir. 1994).

The judge found that the plaintiffs failed to satisfy the extrinsic test for substantial similarity and granted the motion for judgment as a matter of law, vacating the jury’s verdict.?The judge further determined that the ostinato in Gray’s song was not “particularly unique or rare,” and therefore not eligible for copyright protection.?Gray appealed the decision, and the 9th Circuit appellate court issued their decision earlier this month.

The 9th Circuit affirmed the lower court’s decision to vacate the jury’s verdict.?Although Gray argued on appeal that copyright law “definitely” protects ostinatos, originality is one of the cornerstones of copyright protection, and the panel of judges ruled that the eight-note patterns in each did not stem from an original combination of elements.?Instead, the panel determined that the ostinato consisted of a “conventional arrangement of musical building blocks” that was “nothing more than a two-note snippet of a descending minor scale.”

Katy Perry now walks away without having to pay the $2.78 million in damages the original jury verdict awarded to Gray and an affirmed decision that there is nothing infringing (or original) about Dark Horse’s ostinato.

Author: Reed Fryar, Associate?