“The jury as fact finder only reaches the question of intrinsic similarity after it has been established that the defendant’s work is extrinsically substantially similar to the plaintiff’s protectable expression,” reads the brief, written by attorney Kenneth D. Freundlich at Freundlich Law. “If a jury finds that there is no extrinsic similarity, as it should have here, it may not evaluate the works for intrinsic similarity. Jurors aurally perceive music differently and, where there is no objective similarity between two pieces of music, their intrinsic evaluations, produce uneven and unpredictable results.”
Thursday's brief follows two previous motions filed by Perry's lawyers pleading with Judge Christina A. Snyder to either overturn the verdict or order a new trial in the case.
Musicologists behind the brief claim that the extrinsic test failed because the eight-note ostinato at issue in the case -- contained in the 2008 rap single “Joyful Noise” by Christian rapper Flame (a.k.a. Marcus Gray), who first sued Perry in July 2014 -- is made up of unprotectable musical “building blocks." They further allege that the sequence of pitches comprising the ostinato -- i.e. how the building blocks work in combination -- is “trite” and not deserving of copyright protection.
Later in the brief, the musicologists claim that after inputting the “Joyful Noise” ostinato into musical search engine Themefinder.org, they found six musical works containing the same ostinato in the same key and 26 in “transposed versions that preserve the shape/sequence.” Additionally, after inputting it into the similar RISM database, they found over 2,000 song matches in all keys, most from the 18th and 19th centuries.
“If the Court were to allow this verdict to stand, it will only worsen the rampant confusion and uncertainty about the application of current copyright jurisprudence to musical works,” Freundlich's brief continues. “This confusion and uncertainty, in turn, is inhibiting the work of songwriters and the American music industry at large, whose vigorous output of innovative expression has always depended upon access to, and unchecked use of, generic musical conventions and ideas.”
In the wake of last year’s verdict, some legal experts who spoke with Billboard said that the jury’s decision indeed opened up more artists to copyright suits in the future.
“To imply that this commonality has any relevance to the issue of copying is akin to suggesting that the fact that two books are written in the same language bears on the question whether one is a copy of the other,” the brief concludes.
In a statement emailed to Billboard, Michael Kahn -- senior counsel at Capes Sokol and lawyer for Gray and his co-plaintiffs Chike Ojukwu and Emanuel Lambert -- says he has "identified various flaws" in the defense's post-verdict arguments, including that they "essentially ignore" the testimony of the plaintiffs' expert witness Todd Decker, musicologist and chair of the Music Department at Washington University in St. Louis, who "testified in detail at the trial regarding the extrinsic test."
In addition to Perry and Dr. Luke, also found liable by the jury in last summer's verdict were Karl Martin Sandberg (Max Martin), Sarah Hudson, Jordan Houston (Juicy J) Henry Walter (Cirkut) and several companies -- namely Capitol Records, Kobalt Music Publishing, Warner Bros. Music Corp. and Dr. Luke’s Kasz Money, Inc.