Ninth Circuit Pours out Katy Perry Dark Horse Copyright Infringement Lawsuit Based on the Law Despite a Jury Finding of Infringement on the Facts
Joyful Noise’s pitch progression 3-3-3-3-2-2 played in a completely flat rhythm is not copyright eligible subject matter.
The musical composition of Joyful Noise and Dark Horse may be the same but that musical composition is in the public domain. It is not copyrightable.
Key takeaways
1. The Dark Horse decision is a reminder just how difficult it is proving copyright infringement.
2. The Ninth Circuit poured out Dark Horse based on the law despite a jury finding of infringement on the facts.
3. Be sure to include a sound recording copyright in your lawsuit, if you have one, which was not done here, otherwise the court will consider only the musical composition copyright as the court did here.
4. There can be no copyright on building blocks of music.
5. The pitch progression 3-3-3-3-2-2 played in a completely flat rhythm of the ostinato of Joyful Noise lacks “the quantum of originality needed to merit copyright protection.”
6. A two-note snippet of a descending minor scale, with some notes repeated, is not copyright-eligible material.
7. Similar sounding of two works is irrelevant where, as here, plaintiffs sued on a musical composition and not a sound recording.
8. Don’t think that Dark Horse gives wide latitude to copying musical arrangements that appear to be commonplace since even a slight level of creative variation may be protectable.
On March 10, 2022, the Court of Appeals for the Ninth Circuit in Dark Horse (i.e., Gray v. Perry) affirmed the district court’s order vacating the jury award and granting Judgment as a Matter of Law (JMOL) to defendants. The Ninth Circuit held that plaintiffs failed to put forward legally sufficient evidence that Joyful Noise and Dark Horse are extrinsically similar works with respect to any musical features protectable under copyright law.
The Dark Horse decision is a reminder just how difficult it is proving copyright infringement. In Dark Horse, a jury at the trial level found Dark Horse to infringe. Once a jury has spoken, courts are very reluctant to overturn their verdict. And still, overturning that jury verdict is exactly what the Ninth Circuit did in Dark Horse. The Ninth Circuit found that the “reasonable jury” had no “legally sufficient evidentiary basis” to conclude that defendants engaged in copyright infringement because the musical composition of Joyful Noise is not copyright-eligible material. Fed. R. Civ. P. 50(a)(1). Simply put, the Ninth Circuit found no “legally sufficient evidentiary basis” for the jury verdict because where, as here, there was no copyright of Joyful Noise to infringe, it does not matter whether the ostinatos in Joyful Noise and Dark Horse are “substantially similar” as a matter of law. The Ninth Circuit poured out the Dark Horse lawsuit based on the law that there is no copyright to infringe despite a jury finding of infringement on the facts that the musical composition found in Joyful Noise and Dark Horse are substantially the same.
To reach this holding, the court explained that to establish substantial similarity for copyright infringement there must be a showing of substantial similarity under an objective comparison of specific expressive elements (known as the “extrinsic” components test). There must also be a showing of substantial similarity based on a subjective comparison of the works that focuses on whether the ordinary, reasonable audience would find the works substantially similar in the total concept and feel of the works (known as the “intrinsic” components test.) The intrinsic test is “uniquely suited for determination by the trier of fact.” So the Ninth Circuit was reluctant to overturn the jury verdict on the intrinsic test. However, the jury verdict was not supportable under the extrinsic test, the court explained, because the ostinatos in Joyful Noise are not material eligible for copyright protectable and so there was no copyright of Joyful Noise to infringe. Thus, it did not matter whether the ostinatos in Joyful Noise and Dark Horse are “substantially similar,” as a matter of law.
In so finding, the Ninth Circuit first distinguished between “protected and unprotected material in the plaintiff’s work. The court observed that while “[T]he requisite level of creativity deserving of a copyright is extremely low; even a slight amount will suffice” (Feist, 499 U.S. at 345). That said, the court went on to explain that “[e]ven in the face of this low threshold, copyright does require at least a modicum of creativity and does not protect every aspect of a work; ideas, concepts, and common elements are excluded.” The court explained that copyright does not extend to “common or trite musical elements, or commonplace elements that are firmly rooted in the genre’s tradition. These building blocks belong in the public domain and cannot be exclusively appropriated by any particular author.” Skidmore, 952 F.3d at 1069
Once making the distinction between protected and unprotected material, the court went on to explain that copyright protection in Joyful Noise exists, if at all, in the combination of elements since even plaintiff’s expert Dr. Decker candidly testified that “[a]ny single one of those [elements] would not have been enough” for him to conclude that substantial similarity existed, and that only “the combination” of those elements led him to this conclusion.
As to the combination of elements, the court observed that Joyful Noise and Dark Horse both make use of “sequence[s] of eight notes” played in an even rhythm which is a “trite” musical choice outside the protection of copyright law. The court explained that similarity in textures is far too abstract to be copyrightable. Nor did similar timbre of the ostinatos (e.g., sound quality, use of artificial sounds in a high register and pingy) help plaintiffs since plaintiffs sued for infringement of their musical composition copyright in Joyful Noise. Plaintiffs did not sue under any copyright for sound recordings. Sound recordings and musical compositions are separate works with their own copyrights, the court observed.
The court was not persuaded by plaintiff’s argument that pitch sequence utilized by the Joyful Noise ostinato is copyrightable, or by Dr. Decker’s related comments that the two ostinatos use similar “scale degrees” and have the same “melodic content [and] shape.” As to the pitch sequence, the court explained, while an eight-note melody may be copyrightable, the abstract eight-note pitch sequence that is a component of the melody is not. As to the ostinatos’ “melodic shape,” the court went on to state that Joyful Noise and Dark Horse contain similar arrangements of basic musical features. Both employ the pitch progression 3-3-3-3-2-2 played in a completely flat rhythm. This combination is not unlike the pitch progression found in two well-known songs — “Jolly Old Saint Nicholas” and “Merrily We Roll Along” which plaintiff’s expert Dr. Decker testified had the same tune as “Mary Had a Little Lamb.” This combination is not original since it is really nothing more than a two-note snippet of a descending minor scale, with some notes repeated. Op. 23.
The underpinning for the Ninth Circuit’s decision is that “[a]llowing a copyright over this material would essentially amount to allowing an improper monopoly over two-note pitch sequences or even the minor scale itself, especially in light of the limited number of expressive choices available when it comes to an eight-note repeated musical figure.” Op. 24. In short, the musical composition copyright of Joyful Noise is on building blocks of music. Plaintiffs cannot copyright building blocks of music and so the Joyful Noise ostinato lacks “the quantum of originality needed to merit copyright protection.”
We previously wrote about two notable copyright court cases handed down in March 2020 involving major music artists, Katy Perry and Led Zeppelin. Along with the court decision involving the estate of Marvin Gaye and the Robin Thicke-Pharrell Williams duo handed down in March 2018. While these decisions may have been lacking in guidance, the Ninth Circuit in Katy Perry has now provided artists with some guidance on what arrangements may be copied without copyright infringement.
Clearly, the commonplace individual elements in an arrangement are not protectable. The Ninth Circuit also makes clear that an abstract eight-note pitch sequences that are a component of a melody is not copyrightable. Nor, as explained by the court, is the “melodic shape” of ostinatos’ with similar arrangements of basic musical features mainly in both employing a pitch progression like 3-3-3-3-2-2 played in a completely flat rhythm. This combination is unoriginal because it is really nothing more than a two-note snippet of a descending minor scale, with some notes repeated. Op. 23.
For background on Katy Perry, Zeppelin, and Blurred Lines see: Katy Perry, Zeppelin, and Blurred Lines.
For copyright holders, the takeaway from the Dark Horse, Zeppelin, and Blurred Lines decisions is this: to prevail on a copyright claim, it is not enough to assert “a ‘combination of unprotectable elements’ without explaining how these elements are particularly selected and arranged in an original manner.
For artists, the take-away is this: don’t think that Dark Horse gives wide latitude to copying musical arrangements that appear to be commonplace since even a slight level of creative variation may be protectable.