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Ninth Circuit:
Katy Perry’s ‘Dark Horse’ Did Not Contain Stolen Elements
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed an order vacating a jury’s award of $2.8 million against pop singer Katy Perry, Capitol records and others over the 2013 hit song “Dark Horse,” declaring that the elements that three Christian hip-hop artists claimed infringed on their property are not protectible.
Plaintiffs Marcus Gray (known professionally as “Flame”), Emanuel Lambert, and Chike Ojukwu maintained that an “ostinato”—a continually repeated short melodic phrase—in “Dark Horse” was ripped off from an ostinato in their song, “Joyful Noise,” created in 2007 and published in 2008. Perry, who real name is Katheryn Elizabeth Hudson, insisted that when she wrote “Dark Horse” in 2013, she had never heard the song “Joyful Noise.”
She and two co-defendants met at a recording studio one day, she explained, tried out various musical fragments, and the one she like best became the eight-note ostinato for “Dark Horse.”
That song was included with others in an album; it was a hit; a “Dark Horse” video was produced which had 4 million views on YouTube, and Perry performed the song at the 2015 Super Bowl halftime show.
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Singer Katy Perry is seen in the 2014 video, “Dark Horse.” The Ninth U.S. Circuit Court of Appeals yesterday affirmed a District Court determination that elements in the featured song, “Dark Horse,” were not protectible. |
District Court Decision
In granting judgment for the defendants as a matter of law, District Court Judge Christina A. Snyder of the Central District of California considered “whether the musical elements that comprise the 8-note ostinato in ‘Joyful Noise’ are ‘numerous enough’ and ‘arranged’ in a sufficiently original manner to warrant copyright protection,” and concluded “that they do not.”
She also said:
“The evidence in this case does not support a conclusion that the relevant ostinatos in ‘Dark Horse’ and ‘Joyful Noise’ are virtually identical. There are a number of undisputed objective distinctions that, as a matter of law, negate liability.”
In yesterday’s opinion affirming the judgment, Circuit Judge Milan D. Smith Jr. declared: “Copyright law protects ‘musical works’ only to the extent that they are ‘original works of authorship.’…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.”
Record Shows
He said the record shows that “no single point of similarity between Joyful Noise and Dark Horse arises out of a protectible form of expression.”
Each song was copyrightable, Smith specified, but no individual element is protectible.
The judge acknowledged that “the fact that the ostinatos here are only eight notes long does not foreclose the possibility of a protected arrangement of commonplace musical elements,” but said that the level of originality that would justify protection of eight notes was absent.
The case is Gray v. Hudson, 20-55401.
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