Bit Parts

Los Angeles Federal Judge Tosses Out Jury's Infringement Verdict Against Katy Perry in "Dark Horse" Song Case

A federal district judge for the Central District of California tossed out a jury's copyright infringement verdict against Katy Perry and her co-defendants in a lawsuit over Perry's hit "Dark Horse." Gray v. Perry, 2:15-CV-05642. In July 2019, a Los Angeles federal jury issued a $2.78 million liability finding that "Dark Horse" infringed on the plaintiffs' song "Joyful Noise." On October 25, Perry and her record label, music publishing and songwriting co-defendants filed a motion for a judgment in their favor as a matter of law or for a new trial. The motion argued that the plaintiffs failed to prove the defendants had access to "Joyful Noise" or that the songs in dispute were substantially similar. In ruling on the motion, District Judge Christina A. Snyder found as to whether the defendants had access to "Joyful Noise": "Plaintiffs presented evidence at trial that 'Joyful Noise' was played more than 6 million times on YouTube and MySpace, that 'Joyful Noise' was nominated for a Grammy, that 'Joyful Noise' was performed at hundreds of concerts across the country, and that 'Joyful Noise' ranked highly on the Billboard charts for popular music. A reasonable jury could have concluded from this evidence that the relevant defendants who composed the allegedly infringing ostinato in 'Dark Horse' had a reasonable opportunity to have encountered 'Joyful Noise.'" But granting judgment as a matter of law in favor of the Perry defendants, Judge Snyder then found on the issue of whether "Dark Horse" was substantially similar to "Joyful Noise": "[T]he Court cannot conclude, pursuant to the extrinsic test, [which uses objective criteria,] that any of the allegedly original individual elements of the 'Joyful Noise' ostinato [a brief musical phrase at the heart of the infringement action that plaintiff Marcus Gray licensed from beat-maker, co-plaintiff Chike Ojukwu] are independently protectable as a matter of law." Next, Judge Snyder considered nevertheless "whether the musical elements that comprise the 8-note ostinato in 'Joyful Noise' are 'numerous enough' and 'arranged' in a sufficiently original manner to warrant copyright protection." On this, she concluded: "It is undisputed in this case, even viewing the evidence in the light most favorable to plaintiffs, that the signature elements of the 8-note ostinato in 'Joyful Noise' the 3-3-3-3-2-2 pitch sequence, the resolution of that sequence with a 3-2-1-5 sequence, the even rhythm without syncopation, and its development across a sparse texture is not a particularly unique or rare combination, even in its deployment as an ostinato: prior compositions, including prior works composed by the parties, as well as what all agree is a separate non-infringing ostinato in 'Dark Horse,' all contain similar elements." Judge Snyder went on to find that, even if the combination of unprotectable elements in the "Joyful Noise" ostinato was copyright protectable: "The evidence in this case does not support a conclusion that the relevant ostinatos in 'Dark Horse' and 'Joyful Noise' are virtually identical [as required for courts such as the Central District of California that reside within the Ninth Circuit in analyzing a protectable segment of unprotectable elements]. There are a number of undisputed objective distinctions that, as a matter of law, negate liability."

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Sales Agreement for Film Assets of Distributor in Bankruptcy Doesn't Affect Separate Lender for One of Debtor's Movies

The U.S. Bankruptcy Court for the District of Delaware ruled that a bank lender's rights weren't affected by the sale of assets of an independent film distributor in bankruptcy. In re Open Road Films LLC, 18-12012. Bank Leumi had advanced funds to produce the movie City of Lies. Under the Notice of Assignment (NOA) for the film, distribution licensee Entertainment One UK Ltd. was required to pay Bank Leumi the minimum license guarantee. In the bankruptcy proceeding, Judge Laurie Selber Silverstein approved the sale of most of Open Road's assets to OR Acquisition Co. LLC but decided the sale didn't affect Bank Leumi's rights. After a group of Open Road distribution licensees objected on the ground that the minimum guarantee for City of Lies should be paid to OR Acquisition, Judge Silverstein noted in a clarification order: "The Sale Order [for the OR Acquisition purchase] does not specifically address what happens in this scenario — when an Assumed Contract covers both Purchased Titles and non-Purchased Titles." Judge Silverstein then explained: "As Bank Leumi observes, … the Sale Order is designed to ensure that parties do not interfere with Purchaser's use and enjoyment of the Purchased Assets based on claims against Debtors. In this context, [the Sale Order] provides that Notices of Assignment that direct proceeds of 'Purchased Assets' to an account at Bank of America [the administrative agent for a group of secured lenders that loaned Open Roads $90 million] or to another party shall be inoperative and ineffective." The district judge added that the Sale Order's provision setting forth OR Acquisitions film-proceeds rights "appears directly aimed at the Agent [i.e., Bank of America]. It certainly does not name Bank Leumi."

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Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and Professor of Music & Entertainment Studies at the University of Colorado's Denver Campus. For more information: http://www.stansoocher.com.