In 2016, Christian rapper Marcus Gray (p.k.a FLAME) and his co-authors filed a lawsuit alleging that the song "Dark Horse" written by Katy Perry (and others) infringed upon the copyright in the plaintiffs' song "Joyful Noise." Following a trial in the summer of 2019, the jury returned a verdict in favor of the plaintiffs and awarded $2.8 million in damages (an event that surely left Perry wide awake at night.) The case boiled down to alleged similarities between an eight-note ostinato used in both songs. For those of you, like me, whose achievement in the musical arts falls short of the high standards you set for yourself in other spheres, an ostinato is a short musical phrase or rhythmic pattern repeated in a musical composition. After the verdict, a pride of artists, music lawyers and musicologists positively roared with indignation. The ostinato, they claimed, was too simple to be copyrightable. It was common, as demonstrated by prior art. It consisted of nothing more than basic musical building blocks that all composers use to construct their songs. And, they argued, the verdict was causing confusion and uncertainty among songwriters regarding their freedom to use generic musical conventions and ideas without fear of being sued. Roar, indeed. (An aside to all you cool cats and kittens about roaring: I appear to be in the minority, but I just don't buy that Carole Baskin killed her husband.)

Last month, the district court sided with everyone's teenage dream Katy Perry and her co-defendants, granting their post-judgment motion to set aside the verdict. The defendants raised several arguments on appeal. I will focus on one: the question of whether, as a matter of law, the elements from "Joyful Noise" that allegedly were copied by Perry were protectable under copyright.  

The Ninth Circuit uses a two-part extrinsic/intrinsic test to determine whether a defendant’s work is substantially similar to the plaintiff’s. (See this post for a fuller description of how infringement is proven in music cases.) The first (extrinsic) prong requires an objective comparison of the elements that are protectable under copyright law in the two works. Expert testimony from musicologists is permitted at this stage to help distinguish between protectable and unprotectable elements (such as ideas, public domain elements, and scenes a faire). In the second (intrinsic) prong, the fact finder engages in a subjective analysis and comparison of the protectable elements of the two works to examine similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance.

While, theoretically, musical notes can arranged in an infinite number of ways - one writer estimates that there are at least 82,500,000,000,000,000,000 melodies that are 10 notes long - what is pleasing to the human ear is much more limited. And within a particular genre - whether it be pop, swing, jazz, hip hop - convention restricts the composer's choices even further. As a result, courts recognize that common musical elements - such as chord progressions, tempos, hook phrases, and syncopation - are not individually protectable under copyright, either because they are not original or because they are "indispensable and naturally associated with the treatment of a given [musical] idea." As the Ninth Circuit said in the Stairway to Heaven case, "[t]hese building blocks belong in the public domain and cannot be exclusively appropriated by any particular author." That is not, however, where the analysis ends because courts also recognize that a collection of otherwise unprotected elements may be eligible for copyright protection "if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship." This is true across all creative genres. For example, a collagist can create a work of art that is protected by under copyright law by selecting and arranging, in an original way, public domain elements (e.g., ancient hieroglyphics, public domain photos, shapes, colors, words, etc.). (Here's a fun example of highly original (and copyright protected) collage portraits that artist Mark Walker makes from public domain banknotes.)

Accordingly, for the extrinsic prong of the analysis, this case boiled down to a battle of the musicologists on three questions: (1) whether any elements of the ostinato in "Joyful Noise" were individually protected under copyright law; (2) whether the selection and arrangement of the elements in the ostinato of "Joyful Noise" was sufficiently original to be protected under copyright law, and (3) whether the protectable elements of "Joyful Noise" (if any were identified) were objectively similar to the corresponding, and allegedly infringing, elements of "Dark Horse."  

The Individual Elements Were Not Protectable

At the outset, the court rejected, as a matter of law, that any of the elements in "Joyful Noise" cited by the plaintiffs were individually protectable under copyright law. The plaintiffs' expert testified at trial there were five or six protectable elements in the "Joyful Noise" ostinato. In its post-trial briefs, plaintiffs upped the number to the following nine separate elements:

1.  a melody built in the minor mode; 
2.  a phrase length of eight notes; 
3.  a pitch sequence beginning with `3, 3, 3, 3, 2, 2'; 
4.  a similar resolution to both phrases; 
5.  a rhythm of eighth notes; 
6.  a square and even rhythm; 
7.  the structural use of the phrase as an ostinato; 
8.  the timbre of the instrumentation; and 
9.  the notably empty and sparse texture of the compositions.

A group of musicologists who filed an amicus brief opined that these nine at most represented five different elements. And the defendants argued that whether these elements are five, six, or nine in number, none of them individually could be accorded copyright protection as a matter of law. Which expert should you believe? ("My head gets so confused, hard to obey!") 

The court agreed with Perry, holding that the plaintiff had not met the burden of proving that any of these elements were individually protectable. ("California girls, they're undeniable.") First, the plaintiffs' own expert did not testify that any individual element was protectable; on the contrary, his testimony, taken as a whole, indicated that (in his words) "[a]ny single one of those [elements] would not have been enough," and that it was "the combination of them" that supported his conclusion that the works were substantially similar. Second, the plaintiffs' musicologist admitted at trial that many of the elements were not original to the plaintiff. Finally, the court concluded, based on its own analysis, that the elements were "precisely the kinds of commonplace elements that courts have routinely denied copyright protection, at least standing alone, as a matter of law."

The Selection and Arrangement of Elements Was Not Protectable

Next, the court turned to the question of whether the selection and arrangements of the cited elements in "Joyful Noise" was sufficiently original to warrant protection. The court distilled three principles from its review of the limited, and somewhat confusing, precedent. First, the court noted that "even a very short musical phrase containing some mix of musical elements may be entitled to protection if that mix is sufficiently original." Second, the court observed that in prior cases where a combination of otherwise unprotectable elements was found to be protected under copyright, "the protected combination concerned a mix of compositional elements present across a compositional work as a whole, not within a single portion of that composition." Finally, the court concluded from its survey of prior cases that "the number of elements comprising a given combination does not strictly determine its protectability in the aggregate, and supplies a less material consideration than the overall combination's originality."

With these observations in mind, the court concluded that the musical elements in the ostinato in "Joyful Noise" were neither numerous enough nor arranged in a sufficiently original manner to warrant copyright protection. The court began by noting the parties had not cited any binding authority to support that an otherwise unprotected musical phrase,"isolated from the rest of a musical composition, in fact warranted copyright protection." Next, the court determined that the signature elements of the ostinato in "Joyful Noise" (i.e., its "bedrock") - which the court identified as (1) the 3-3­-3-3-2-2 pitch sequence, (2) the resolution of that sequence, (3) the even rhythm without syncopation, and (4) its development across a sparse texture - did not constitute "a particularly unique or rare combination, even in its deployment as an ostinato." In support, the court cited prior art, including prior songs composed by the parties, as well as separate non-infringing ostinatos in "Dark Horse," with similar elements. Finally, the court found that the other elements cited by the plaintiff - such as the placement of the ostinato within the composition, phrasing the ostinato in a minor scale, and the "pingy synthesizer sound" - were insufficient to bring the combination within the ambit of the protection of copyright law. In the court's words: "[a] relatively common 8-note combination of unprotected elements that happens to be played in a timbre common to a particular genre of music cannot be so original as to warrant copyright protection." ("Boom, boom, boom / Even brighter than the moon, moon, moon.") 

There Was No Objective Similarity Between the Ostinatos

Finally, the court found that even if it had found that the ostinato in "Dark Horse" enjoyed protection as a "selection and arrangement" copyright, the evidence submitted at trial did not support the conclusion that the two ostinatos were, objectively, substantially similar. The court noted that "because the range of protectable expression in an 8-note pop music ostinato comprised of individually unoriginal elements is narrow, the combination of unprotectable elements in defendants' allegedly-infringing ostinato would necessarily have to be `virtually identical' to their counterparts in the plaintiffs' ostinato in order to be substantially similar" (internal quotations omitted). The "virtual identical" standard was not met here because of the presence of a number of objective distinctions, including (1) the pitches on the seventh and eighth beats of the "Joyful Noise" ostinato are different from the pitches on the corresponding beats of the "Dark Horse" ostinato, (2) the ostinato in "Joyful Noise" contains at least six instances of portamento (i.e. a slide between musical notes) not present in "Dark Horse," and (3) the compositions for each ostinato use different keys, tempos, harmonies, and rhythms. When considered together, these objective distinctions were "substantial enough as to preclude a determination of virtual identity."

Gray v. Perry, No. 2:15-CV-05642-CAS-JCx (C.D. Cal. March 16, 2020)