Katy Perry Rides Off Into the Sunset on $2.8 Million “Dark Horse”

Steven T. Lowe

On March 10, 2022, a three-judge panel of the Ninth Circuit Court of Appeals affirmed the reversal of a jury verdict by a District Court Judge in a case regarding Katy Perry’s (“Perry”) megahit “Dark Horse.” Perry was sued by a songwriter, Marcus Gray (“Gray”), who claimed that Perry copied his song “Joyful Noise.” Originally, a properly instructed jury concluded that Katy Perry had, in fact, infringed upon “Joyful Noise” and awarded the songwriter $2.8 million. But then, the District Court Judge, Christina Snyder, overturned the jury’s verdict, even though there is no dispute that the jury had been properly instructed on the law.

At issue was a series of 8 notes known as an “ostinato.” An ostinato is a continually repeated musical phrase or rhythm. Gray argued that copyright law “most definitely” protects ostinatos and that the jurors were properly instructed on the law before issuing their unanimous decision. Author’s Note: What is most disturbing about both the lower court’s ruling overturning the jury verdict and the recent Ninth Circuit decision is that the lower court “carefully articulat[ed] the proper instructions for a jury in these cases.” Gray’s attorney stated that a “simple, original, and clearly distinctive eight-note melody” is certainly protectable, citing Beethoven’s “Symphony No. 5” among other songs.

The Ninth Circuit panel disagreed with Gray, finding that the ostinato is not “particularly unique or rare.” According to the panel, the ostinato consisted of “entirely commonplace musical elements” and the “manifestly conventional arrangement of musical building blocks” here was “unoriginal because it is really nothing more than a two-note snippet of a descending minor scale, with some notes repeated.”

At an oral argument on the matter in January 2022, Richard R. Clifton, one of the judges on the Ninth Circuit panel, stated that he was outside of his comfort zone in dealing with pop music. Clifton stated that he was much more familiar with classical and/or ‘60s music. Clifton went on to say that after first listening to the songs at issue in this case, it took “a while to figure out what the purported similarities were.” He went on to say, “[a]fter the first couple listens, I really had to focus to try and figure out, OK, what sort little segment matches in the same way?” Ultimately, despite the jury unanimously siding with Gray, the Ninth Circuit agreed with the lower court that the objective similarities between the two works were legally insufficient to constitute copyright infringement.

Author’s Note: In music copyright infringement cases, it is best if a layperson can easily hear the similarities.

Gray and the other plaintiffs are represented by Michael A. Kahn of Capes Sokol Goodman & Sarachan PC.

Perry is represented by Vincent H. Chieffo of Greenberg Traurig LLP.

Dr. Luke and other defendants are represented by Christine Lepera, Jeffrey M. Movit, Jacob D. Albertson, J. Matthew Williams, and Gabriella Nourafchan Ismaj of Mitchell Silberberg & Knupp LLP.

The case is Marcus Gray et al. v. Katheryn Hudson et al., case number 20-55401, in the U.S. Court of Appeals for the Ninth Circuit.

* Lowe & Associates (“The Firm”) is a boutique entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving copyright infringement, having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully handling many high-profile cases.

Find us at our website at www.LoweLaw.com.