On March 10, 2022, the 9th Circuit Court of Appeals upheld a ruling in favor of Katy Perry that overturned a $2.78 million judgment against the iconic pop star. The dispute stems from an 8-note pattern, known in the music world as an “ostinato,” that was featured in Perry’s 2013 hit “Dark Horse.”
Christian rapper Marcus Gray, who goes by the stage name “Flame,” first sued Perry and Capitol Records in 2014 arguing that the 8-note melody was substantially similar to his song “Joyful Noise,” thereby infringing his copyright.
Perry told a Los Angeles jury that she had never heard of the song before writing her hit. But the jury nonetheless found in favor of Gray in 2019. The U.S. District Court for the Central District of California overruled the verdict a year later, ruling that the ostinato Perry allegedly copied lacked the “quantum of originality” required to warrant copyright protection.
Gray appealed the decision in October 2020. But the 9th Circuit upheld the District Court’s ruling, finding that “the portion of the ‘Joyful Noise’ ostinato that overlaps with the ‘Dark Horse’ ostinato consists of a manifestly conventional arrangement of musical building blocks.”
The judge stated that “Copyright law protects ‘musical works’ only to the extent that they are ‘original works of authorship’.” The judge further reasoned that “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 9th Circuit agreed with the District Court’s conclusion that the overlapping portions of the songs “consists of a manifestly conventional arrangement of musical building blocks,” and believed that “allowing a copyright over this material would essentially amount to allowing an improper monopoly over two-note pitch sequences or even the minor scale itself, especially in light of the limited number of expressive choices available when it comes to an eight-note repeated musical figure.”
Perry is apparently satisfied with the ruling, yelling to her Las Vegas crowd a warning to would-be litigants – “So just be sure before you take me to court, ’cause I’m a Scorpio b####!”
Fellow mega-star Ed Sheeran finds himself subject to a similar copyright suit before a British court for allegedly copying the hook for his hit “Shape of You” from musicians Sami Chokri and Ross O’Donoghue. It will be interesting to see whether The London High Court reaches a similar conclusion across the pond.
If you are an artist and need legal assistance, contact The Myers Law Group to have a copyright attorney guide you through the copyright process whether it be an initial application or enforcement of rights.