District Court Finds Katy Perry’s ‘Dark Horse’ Not Substantially Similar to ‘Joyful Noise’ Ostinato

By Rebecca Tapscott
March 21, 2020

“The musical elements of the ostinato in ‘Joyful Noise’ were not ‘numerous enough and arranged in a sufficiently original manner to warrant copyright protection.’ Further, the signature elements of ‘Joyful Noise’ did not make up a ‘particularly unique or rare combination, even in its deployment as an ostinato.’”

The U.S. District Court for the Central District of California on Monday granted Katy Perry’s motion for judgment as a matter of law (JMOL) and vacated the jury’s verdicts regarding liability and damages. In particular, the court found that the plaintiffs did not satisfy the extrinsic test, whereby the court determined whether any elements of plaintiffs’ eight-note ostinato (defined as “a continually repeated musical phrase or rhythm”) from the song “Joyful Noise” were protected and objectively similar to the allegedly infringing eight-note ostinato from Perry’s song “Dark Horse” (hear a comparison here).

Jury Trial

Katy Perry copyright - https://depositphotos.com/15011303/stock-photo-katy-perry.htmlPlaintiffs Marcus Gray, Emanuel Lambert, and Chike Ojukwu (collectively, “Flame”) filed a copyright infringement action against Katy Perry, and others, (collectively, “Perry”) claiming that the instrumental beat of the ostinato in “Joyful Noise” was protectable original expression and that Perry had access to and copied the ostinato when composing the ostinato for “Dark Horse.” Following a jury trial held in July and August of 2019, the jury entered verdicts finding Perry liable for copyright infringement and awarded Flame $2.8 million dollars in damages. The court entered judgment in favor of Flame in September 2019 and Perry filed a renewed motion for JMOL, or for a new trial, in October 2019. A group of musicologists also submitted an amicus brief in support of Perry’s motion.

Flame Failed the Extrinsic Test for Substantial Similarity

In the motion for JMOL, Perry asserted that Flame failed to present evidence that showed either access to “Joyful Noise” or substantial similarity. The court first addressed the issue of substantial similarity, noting that it is determined by a two-part test including extrinsic and intrinsic similarity.

The extrinsic test, which presented a question of law for the court, raised the question of whether any individual or combination of elements that made up “Joyful Noise” were entitled to copyright protection. The court determined that none of the elements, such as phase length, pitch sequence, and rhythm, as set forth by Flame’s own musicologist, constituted individually protectable elements. The court further noted that the musical elements of the ostinato in “Joyful Noise” were not “numerous enough and arranged in a sufficiently original manner to warrant copyright protection.”  Further, the signature elements of “Joyful Noise” did not make up a “particularly unique or rare combination, even in its deployment as an ostinato.”  Thus, the court concluded that neither the individual nor combination of elements of Flame’s ostinato were entitled to copyright protection under the extrinsic test, and Perry was entitled to JMOL on Flame’s infringement claim.

Next, the court considered whether the evidence submitted at trial supported a conclusion that the two ostinatos were substantially similar. Noting that elements in the “Dark Horse” ostinato needed to be “virtually identical” to the “Joyful Noise” ostinato in order to meet the “substantially similar” standard, the court referred to testimony of Flame’s musicologist. The testimony set forth that there were differences in the pitches of the ostinatos, and they used different “keys, tempos, harmonies, and rhythms.” The court concluded that, even if the “Joyful Noise” combination was entitled to copyright protection, Perry would still be entitled to JMOL because the ostinatos are not “virtually identical.”

The Intrinsic Test and the Question of Access

The court also considered Perry’s motion for JMOL on substantial similarity pursuant to the intrinsic test, which examined whether an ordinary, reasonable person would consider the total concept and feel of “Joyful Noise” and “Dark Horse” to be substantially similar. Although the court concluded that Flame’s ostinato is neither protected nor virtually identical to Perry’s ostinato, “a reasonable jury could nevertheless conclude that the ‘concept and feel’ of the two ostinatos are ‘intrinsically’ similar.”  Thus, although moot, the intrinsic test was met.

With respect to the question of whether Perry had access to “Joyful Noise”, the court considered evidence submitted by the plaintiffs that “Joyful Noise” was played millions of times on YouTube and Myspace, was nominated for a Grammy, and was performed at hundreds of concerts. The court noted that a reasonable jury could have concluded from the evidence that Perry had a “reasonable opportunity to have encountered ‘Joyful Noise’”. Nevertheless, because Flame failed to satisfy the extrinsic test for substantial similarity, the court granted Perry’s motion for JMOL and vacated the jury’s verdicts with respect to liability and damages.

The Right Move

Owen Sloane, partner at Eisner, LLP, said “it is very satisfying that the courts seem to be moving away from the decisions of the last few years in which copyright protection was extended to what traditionally the copyright bar would have considered not protectable.” He added:

“This expansion of what is considered protectable has wreaked havoc in the music business. In music, there are a limited number of notes a composer can work with and inspiration always comes to a creative person from things that have gone before. If we do not hold to a strict standard of what constitutes unlawful copying, creativity will be adversely affected. No one should have a monopoly on genre, feel, or arrangements of a few notes that are commonly used or are otherwise not original.”

Image Source: Deposit Photos
Photography ID: 15011303
Copyright: s_bukley 

The Author

Rebecca Tapscott

Rebecca Tapscott is an intellectual property attorney who has joined IPWatchdog as our Staff Writer. She received her Bachelor of Science degree in chemistry from the University of Central Florida and received her Juris Doctorate in 2002 from the George Mason School of Law in Arlington, VA.

Prior to joining IPWatchdog, Rebecca has worked as a senior associate attorney for the Bilicki Law Firm and Diederiks & Whitelaw, PLC. Her practice has involved intellectual property litigation, the preparation and prosecution of patent applications in the chemical, mechanical arts, and electrical arts, strategic alliance and development agreements, and trademark prosecution and opposition matters. In addition, she is admitted to the Virginia State Bar and is a registered patent attorney with the United States Patent and Trademark Office. She is also a member of the American Bar Association and the American Intellectual Property Law Association.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

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