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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."