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Katy Perry's 'Dark Horse' Is Hers

By Steven Ellison, Esq. on March 16, 2022 4:04 PM

3.2 billion views.

That's how many views Katy Perry's 2014 Billboard hit, "Dark Horse," has received to date on YouTube. And now it's fair to say it is, in fact, her hit.

On March 10, Perry won her appeal of a long-running copyright infringement lawsuit, which means that she and her record label won't have to pay a $2.8 million jury award relating to "Dark Horse."

Gray v. Hudson (Perry)

Christian rappers Marcus Gray ("Flame"), Emmanuel Lambert, and Chike Ojukwu filed their lawsuit in 2014, alleging that Perry stole an ostinato (a short, repeated musical phrase) from their 2008 song "Joyful Noise" and used it in "Dark Horse." A jury found in favor of the rappers, but the trial court overturned that award.

The rappers appealed, seeking to reinstate the jury award. The U.S. Court of Appeals for the Ninth Circuit ruled that Perry and her record label did not have to pay any damages.

The court compared the two ostinatos. Each eight-note pattern begins with the same first six notes, differing only in the last two notes. Each eight-note pattern is repeated. Each has the same rhythm.

The jury concluded that the ostinatos sounded the same and found for the rappers. But the Ninth Circuit judges disagreed.

To understand its decision, you need to get into the weeds of copyright law a little.

A copyright is a form of legal protection for original works of authorship that are in a fixed form, such as paintings, photographs, movies, and songs. A copyright gives the owner the exclusive right to reproduce, publish, or sell the work. The primary goal of copyright law is to protect the time, effort, and creativity of the work's creator.

Reproducing a substantial portion of a copyrighted work without the copyright owner's permission is considered "infringement." Generally, infringing someone's copyright is a violation of federal law.

'Joyful Noise'

For "Joyful Noise" to be copyrighted in the first place, it has to be an original work. And absent proof of actual copying (of which there was no evidence in the case), the rappers would need to show two things to prove that "Dark Horse" infringed on "Joyful Noise":

  • Perry and her label had "access" to “Joyful Noise" (which they did)
  • The ostinatos in "Joyful Noise" and "Dark Horse" are "substantially similar."

So the argument, as it went, was over whether the works were "substantially similar."

'Substantial Similarity'

Now, a little further into the weeds.

You might think that simply sounding the same would make two works "substantially similar." But under copyright law, it's not enough.

As noted, the work must be original. It can be original in two different ways. If each component part is original, then the work can be copyrighted. If the component parts are not original, the work can still be copyrighted if the combination of the unprotectable components is itself original.

The court of appeals found neither to be true. It rejected the argument that the pitch sequence of "Joyful Noise" was original. Instead, it found that the sequences in "Joyful Noise" and "Dark Horse" resulted from "commonplace, unoriginal" musical principles.

Nor did the court believe that the combination of pitches, taken together, was original. It acknowledged that the two ostinatos had the same note pattern and rhythm, but it found that they were both largely based on a descending minor scale. Scales are commonplace, unprotectable building blocks of music.

Will There Be an Appeal?

So where does this leave the three rappers? They have the right to ask the U.S. Supreme Court to review the Ninth Circuit's decision. But the Supreme Court agrees to hear only 100-150 appellate cases out of more than 7,000 applications each year. Although the lawyers for the rappers are no doubt exploring all available legal options, chances are good that the court of appeal's decision will be stand.

And Katy Perry can likely expect many, many more views of "Dark Horse" on YouTube.

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