A federal appeals court on Thursday (March 10) refused to reinstate a $2.8 million copyright infringement verdict against Katy Perry over her 2013 chart-topper “Dark Horse,” ruling that the two songs share only basic musical “building blocks.”
A rapper named Marcus Gray sued Perry in 2014 over accusations that she ripped off his song “Joyful Noise,” and jurors later awarded him the big verdict. But a judge overturned that verdict in 2020 on the grounds that the “ostinato” Perry allegedly copied was too simple for copyright protection.
By a 3-to-0 vote, the U.S. Court of Appeals for the Ninth Circuit upheld that decision on Thursday, saying a decision against Perry would have dangerous consequences for future creativity.
“The portion of the ‘Joyful Noise’ ostinato that overlaps with the ‘Dark Horse’ ostinato consists of a manifestly conventional arrangement of musical building blocks,” the appeals court wrote. “Allowing a copyright over this material would essentially amount to allowing an improper monopoly over two-note pitch sequences or even the minor scale itself.”
Barring an unlikely trip to the U.S. Supreme Court, the ruling is the end of the road for Gray’s claims against Perry, ending years of litigation over “Dark Horse,” which spent 57 weeks on the Billboard Hot 100, including four weeks at No. 1 in early 2014.
Gray, who uses the stage name Flame, sued Perry and others in July 2014, claiming she had lifted a key “ostinato” — a short series of notes that’s repeated throughout a song — from his “Joyful Noise” and used it prominently in “Dark Horse.” And the case initially went well, resulting in a $2.8 million jury verdict against Perry in July 2019.
But then came an influential ruling on “Stairway to Heaven,” which imposed key new limits on how copyrights cover basic aspects of music. After that decision, the judge overseeing Perry’s case overturned the verdict. Gray appealed that ruling to the Ninth Circuit, setting the stage for Thursday’s decision.
In its decision, the appeals said it was clear that material Perry allegedly copied was too commonplace to be copyrighted. The court said it was “really nothing more than a two-note snippet of a descending minor scale, with some notes repeated. The court noted that same sequence appears in “Merrily We Roll Along” and “Jolly Old Saint Nicholas,” and said they must be free for future songwriters to use.
“Just as films often rely on tropes to tell a compelling story, music uses standard tools to build and resolve dramatic tension,” the court wrote.
Much like the ruling on “Stairway To Heaven,” the decision for Perry will likely be seen by legal experts as a counterbalance to an earlier decision over Robin Thicke’s “Blurred Lines,” which was criticized at the time for expanding the scope of copyright protection for music to more basic elements. The decision is likely to be heavily-cited in future copyright cases over music.
Following Thursday’s decision, Gray’s attorney Michael A. Kahn told Billboard, “The notion that this simple, original, and clearly distinctive 8-note melody can’t be protected by copyright runs contrary to a series of simple and clearly distinctive 8-note opening melodies, including Dave Brubeck’s ‘Take Five,’ The Rolling Stones’ ‘Satisfaction,’ and, of course, the 8-note opening to Beethoven’s 5th Symphony. We are considering our options.”
Christine Lepera, an attorney who represented Perry’s label Capitol Records, said she and her client were “very pleased” with a ruling that “recognized the importance of a court’s gate keeping function in determining whether the claimed musical similarities in a case — alone or in combination — rise to the level of copyrightable expression.”
Attorneys for Perry herself did not return a request for comment.