The Aftershock of Skidmore v. Led Zeppelin: The “Dark Horse” case

There is already an extremely slim chance that any copyright infringement case against the Hollywood power structure ever makes it to trial; even if this occurs and you miraculously win your case against the finest lawyers that the entertainment industry can buy, judges can and will exercise their right to overturn your hard-earned verdict. That is what happened on March 17, 2020 in the “Dark Horse” case. We also saw a version of this occur on March 9, 2020, in the case of Skidmore v. Led Zeppelin. In the Skidmore case, nine Justices in the Ninth Circuit Court of Appeals (with two dissenting), overturned a previous panel of three Justices in the same court, who had reversed the plaintiff’s unfair loss at trial. While the Skidmore v. Led Zeppelin decision is highly flawed in this author’s opinion (see, Lowe & Associates, P.C. blog dated March 12, 2020), the recent decision in the Dark Horse case is equally, if not more, flawed than Skidmore.

In Gray et al. v. Perry et al., 2:15-cv-05642, (C.D. Cal. March 17, 2020), California federal Judge Christina A. Snyder tossed out a jury verdict of $2.8 million that the plaintiff had obtained at trial based upon the infringement of the plaintiff’s song by Katy Perry’s song “Dark Horse.” Overturning the verdict against the mega pop star and her producers and record company, the Judge independently determined that the “ostinato” that Perry allegedly copied was “not a particularly unique or rare combination.” However, it is this author’s strong opinion that this analysis runs afoul of years and years of copyright precedent, and which purports to create a new standard for copyright infringement. The Court is imposing a requirement that the stolen portion of the work be “unique or rare[,]” but this has never been the law. The law established in Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991), is only that the copied portion have “originality.” Originality requires only a minimal modicum of creativity, essentially requiring that it not be copied from another work. There is no requirement that it be rare or unique.

The Gray opinion is also flawed because as long as the jury instructions were correct, which these were (i.e., nobody challenged the jury instructions), judges are not musical experts, and thus, they should not be supplanting their factual decision for the one made by the jury. In her decision, U.S. District Judge Christina A. Snyder on multiple occasions specifically cites to and references the Skidmore decision including the phrase “building blocks belong in the public domain.” However, there is no discussion as to how or why this Judge believes that the copied portion was a basic building block of music. Judge Snyder doubles down on her imposition  of a new standard by stating that the same series of notes has often appeared in other songs and “[p]rior compositions, including prior works composed by the parties, as well as … a separate non-infringing ostinato in ‘Dark Horse,’ all contain similar elements[.]” But “prior art” is only relevant in copyright law to the issue of originality and at no point was the originality of the copied portion ever questioned. We know from Feist and Skidmore that the combination of “unoriginal” elements can in fact be protected by copyright.

Plaintiff creators have again been deprived of a fair shake. By imposing new obstacles to recovery which do not currently appear in the law, the Judge in the Dark Horse case has stricken yet another blow against creators, confirming Justice William A. Fletcher’s statement in Petrella v. Metro-Goldwyn-Mayer, Inc., 695 F.3d 946 (9th Cir. 2012) that the Ninth Circuit is “hostile” to creators.

The Dark Horse decision evidences just the beginning of the negative reverberations that the Skidmore decision will have on creators who attempt to protect their works against theft. On March 24, 2020, the judge in a New York case called Griffin et al. v. Sheeran et al., 1:17-cv-05221, (S.D.N.Y), a case by Marvin Gaye’s estate against Ed Sheeran over his song “Thinking Out Loud”, decided a “motion in limine” to not allow the jury to listen to the actual song that was released to the public, instead limiting the jury to hearing only the notes contained on the sheet music that was deposited with the Copyright Office in 1973. Judge Louis L. Stanton specifically quoted Skidmore stating “the scope of the copyright is limited by the deposit copy.” Judge Stanton decided that the sound recording to Marvin Gaye’s “Let’s Get It On” is inadmissible because it may “confuse the jury into thinking it represents what is protected by copyright[,]” and, further determined, incorrectly, that the elements that Gaye contributed “percussion/drums, bass-guitar, guitars, Gaye’s vocal performances, horns, flutes, etc.” are not protected by copyright. Be sure to be on the lookout for my next article regarding the Ed Sheeran case.

Gray et al. Plaintiffs are represented by Michael A. Kahn and Jonathan S. Jones of Capes Sokol Goodman & Sarachan PC and Eric F. Kayira of Kayira Law LLC.

Katy Perry et al. Defendants are represented by Christine Lepera, Jeffrey M. Movit, Jacob D. Albertson, Aaron M. Wais and Gabriella A. Nourafchan of Mitchell Silberberg & Knupp LLP and Vincent H. Chieffo and Alana Srour of Greenberg Traurig LLP.

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