Songs often share components that sound similar to one another, which frequently raises the question of whether copyright infringement has occurred. On March 10, 2022, the U.S. Court of Appeals for the Ninth Circuit held—in a precedential decision in Gray v. Hudson—that Katy Perry’s song “Dark Horse” did not infringe a Christian hip-hop artist’s “Joyful Noise” song because the musical components at issue were not protectable under copyright law. The Ninth Circuit held that the common musical notes in “Joyful Noise” lacked the originality required for copyright protection.

The long-running case began in 2014, when Christian hip-hop artist known as Flame (whose given name is Marcus Gray) filed suit against Katy Perry and other co-defendants, claiming that Perry’s “Dark Horse” contains a repeating instrumental figure—called an “ostinato” in musical terms—that copies a similar ostinato in his song “Joyful Noise.”

The “Dark Horse” ostinato consists of a pattern of notes, represented as 3-3-3-3-2-2-1-5, while the “Joyful Noise” ostinato consists of two slightly different patterns, represented as 3-3-3-3-2-2-2-1 and 3-3-3-3-2-2-2-6. Both ostinatos also have a uniform rhythm, with each note of equal duration in time. (In case it is of interest to music lovers, the Ninth Circuit’s opinion has a more detailed than usual breakdown of musical compositions).

Perry’s win, however, was not apparent right out of the gate. After a jury trial in 2019, a jury found defendants liable for copyright infringement and awarded $2.8 million in damages. But post-trial, the U.S. District Court for the Central District of California vacated the jury award and granted judgment as a matter of law to defendants. U.S. District Judge Christina A. Snyder reasoned that the elements comprising the ostinatos are not, either individually or as a combination, copyrightable original expression. Plaintiffs appealed.

A three-judge panel for the Ninth Circuit affirmed the district court judge’s decision. The Ninth Circuit’s opinion focused on whether the “Joyful Noise” ostinato qualifies as “original expression”—a statutory requirement to be protectable under U.S. copyright law. See 17 U.S.C. § 102(a). Reiterating longstanding principles of copyright law, the Ninth Circuit noted the “famously low bar for originality.” But this low threshold for copyrightability still “does require at least a modicum of creativity.” Copyright protection does not extend to “common or trite musical elements, or commonplace elements that are firmly rooted in the genre’s tradition.”

With this framework, the Ninth Circuit held that none of the alleged points of similarity between the two songs arises out of a protectible form of original expression. Without original expression, no element identified by Gray is individually copyrightable. For example, the Ninth Circuit found the use of eight-note sequences played in an even rhythm in both “Joyful Noise” and “Dark Horse” as “trite” musical choices outside the protection of copyright law. Similarly, the two songs’ “timbre” (or sound quality) from the use of synthesizers has long been commonplace in popular music. Their “melodic shape” (or the way the melody moves through musical space) simply reflect “rules of consonance common in popular music” and that use “standard tools to build and resolve dramatic tension.” The two songs’ “pitch sequence” are merely “basic musical building blocks” of a melody—and while a melody may be copyrightable, the abstract pitch sequence that is only a component of that melody is not. Further, the songs’ “textures” (or the way different musical elements are mixed together, such as parts played by different instruments) are too abstract of a similarity to be legally cognizable.

Therefore, the Ninth Circuit concluded that the two songs’ similar ostinatos result only from the use of commonplace, unoriginal musical principles, and thus could not be the basis for a copyright infringement claim.

In addition to finding no individual musical component of the “Joyful Noise” ostinato to be copyrightable, the Ninth Circuit similarly concluded that the ostinato—as a “combination of unprotectable elements”—was unprotectable. With “originality” again as the threshold question, the Ninth Circuit reiterated how a protectable combination can arise from an original “selection and arrangement” of unprotectable elements.

However, arrangements that are “practically inevitable” or in keeping with “an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course” lack the requisite creativity to be called “original” to garner copyright protection. So, the Ninth Circuit held that the “Joyful Noise” ostinato was a “conventional arrangement of musical building blocks,” amounting to nothing more than an unoriginal “two-note snippet of a descending minor scale.” And, given the limited number of expressive choices available to an eight-note sequence, the Ninth Circuit found that allowing such a copyright would amount to an “improper monopoly over two-note pitch sequences.”

In total, the Ninth Circuit concluded that the ostinatos at issue consisted entirely of commonplace musical elements, and that the similarities between them do not arise out of an original combination of these elements.

The Ninth Circuit has, in recent years, issued a number of music comparison cases, from Williams v. Gaye, affirming a finding of infringement of Marvin Gaye’s copyrights by Robin Thicke’s “Blurred Lines” to Skidmore v. Led Zeppelin, rejecting the inverse-ratio rule and finding that “Stairway to Heaven” was non-infringing.

The Ninth Circuit’s opinion in Gray v. Hudson continues this trend of significant music decisions. This time, the Ninth Circuit’s precedential decision reaffirmed many longstanding tenets of copyright law, particularly the “originality” requirement. In doing so, this case also raises important practical considerations. First, “originality” can serve as both a sword and shield in copyright infringement arguments. While Katy Perry comes out victorious as non-infringing in this case, the opinion simultaneously signals the weaknesses in the “Dark Horse” song’s copyright itself. If the ostinato in “Joyful Noise” is unprotectable, then the similar elements in the ostinato in “Dark Horse” could be unprotectable, too, thus opening the door to more songs using similar-sounding elements without running the risk of infringement.

Second, the procedural posture of this case highlights the fact that even relatively weak copyright claims could still reach a jury verdict. Indeed, in determining whether two works are “substantially similar,” a two-part test (including an “extrinsic” and “intrinsic” component) is commonly employed. On the one hand, the Ninth Circuit acknowledged the intrinsic test’s focus on the lay listener as trier of fact, such that a court must be “reluctant to reverse a jury’s finding that two works are intrinsically similar.” And on the other hand, the Ninth Circuit emphasized the extrinsic test’s objective nature that must be resolved as a matter of law, and how “judges retain an important gatekeeping role in applying the law.” Parties should keep in mind how the two sides of the test indicate the value placed in a jury hearing a copyright infringement claim, as well as the substantial costs that would accompany a jury trial.

Third, it will be interesting to watch going forward how the courts apply the principles of true originality to other artistic mediums—especially software, gaming code, or user interfaces. Will simple and trite coding techniques for a game suffer the same fate and lack the necessary originality to support an infringement claim? The Fenwick copyright litigation team continues to stay updated on recent developments on this growing issue.

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