Gray v. Perry

District court vacates $2.8 million jury award against Katy Perry for copyright infringement and grants judgment in favor of defendants, finding eight-note ostinato not copyrightable and no extrinsic substantial similarity existed between plaintiffs’ song “Joyful Noise” and Perry’s “Dark Horse.”

Musicians Katy Perry and Juicy J, along with their producers and record labels, were sued for copyright infringement over the use of an eight-note ostinato in their hit song “Dark Horse.” Plaintiffs Marcus Grey and other Christian hip-hop artists claimed that the use of the ostinato in “Dark Horse” infringed on their song “Joyful Noise.” After a two-week jury trial, plaintiffs were awarded damages of $2.8 million. Perry and her co-defendants moved for judgment as a matter of law or, in the alternative, a new trial. The district court granted the motion for judgment as a matter of law and vacated the jury award against defendants.

Defendants moved for judgment as a matter of law on several different grounds: The ostinato was not protectable, the ostinatos were not substantially similar under either the extrinsic or intrinsic test, and lack of access. Under the Ninth Circuit’s extrinsic test, which can be decided as a matter of law, the court identifies parts of the work in question that are protected and determines whether the protected parts are objectively similar to the infringing work. Only if the extrinsic test is satisfied does the court move to the intrinsic test, which asks whether a reasonable person would find the two works to be substantially similar.  

The bulk of the court’s opinion here concerned the extrinsic test. First, the court considered whether each element of the ostinato is protectable. Noting that there is a limited universe of notes and chords that exist within popular music, and so the bar for copyright infringement is higher than with other forms of media, and that common chord progressions, chants and tempos are not entitled to copyright protection, the court concluded that the ostinato was not protectable. Plaintiffs alleged that there were nine elements of the ostinato, including the rhythm, pitch and melody, that were protectable, but the court found that none of them individually was protectable. Instead, plaintiffs’ own expert witness tacitly acknowledged that each of the nine elements was “commonplace” or otherwise not original or unique, and the court found ample case law that other courts refused to find these elements to be protectable.  

Plaintiffs could still prove that the work is protectable if they could prove an original arrangement of the otherwise common elements, however. While prior case law surrounding this test is murky and at times may seem contradictory, the court ultimately found that the signature elements of the ostinato at issue here are not unique or particularly rare and can be found not only in other works but elsewhere in “Dark Horse” (which plaintiffs did not contend was infringing). The court therefore concluded that the extrinsic test has not been met and that the ostinato at issue here was not sufficiently original to afford copyright protection.

Even assuming this protection could be extended, the court also found that there was no substantial similarity between the two ostinatos. Because the range of protectable expression in a short, eight-note ostinato comprising unprotectable elements is narrow, substantial similarity could be found only if the two works were virtually identical. The court found that no such similarity existed here, because even as plaintiffs’ expert admitted, there were substantial enough differences between the two ostinatos.  

Despite granting defendants judgment as a matter of law, the court also entertained defendants’ other arguments and affirmative defenses (on the intrinsic test, access, independent creation, plaintiffs’ failure to establish that the ostinato was a joint work, liability of individual defendants, apportionment of damages, deduction of overhead) but rejected them all. On these arguments, the court found that the jury’s decisions were supported by substantial evidence, and therefore it would not disturb the jury’s verdict. Nevertheless, the court held that a new trial on the damages would have been warranted, as the jury disregarded the weight of the evidence suggesting that it was Katy Perry’s star power, and not the similarity to plaintiffs’ work, that made “Dark Horse” a smash hit. However, in light of its granting defendants judgment as a matter of law, the court held that this point was moot.  

Summary prepared by Linna Chen and Alex Inman