Dark Horse Comes in Just at the Wire! A Music Copyright Analysis

The ink on the Skidmore v. Led Zeppelin decision has not even dried yet, and it has already produced its first legal victor.

On March 16, 2020, the United States District Court for the Central District of California granted judgment in Gray v. Perry against Marcus Gray (a.k.a. Flame), dismissing his claim against Katy Perry for copyright infringement of his song Joyful Noise (about a million YouTube views) by Katy Perry’s smash hit Dark Horse (2.7 billion views on the official channel). The decision overturns a jury judgment that Dark Horse did infringe Joyful Noise, awarding Flame $2.8 million in damages. The Court held that the jury’s decision could not be based in law, particularly in light of the Skidmore decision.

Comparison of Joyful Noise and Dark Horse

Flame, a Christian rap artist, released the song Joyful Noise in 2008, which enjoyed moderate success in the Christian music scene. Katy Perry released Dark Horse in 2013, and the song became an instant hit. Aside from the limited success that Joyful Noise attained, there was no evidence that Katy Perry or Dark Horse’s other songwriters or producers were familiar with Joyful Noise.

The alleged copyright infringement in Gray v. Perry focused on the similar eight note ostinato—a repeated musical phrase—used throughout the two songs:

Aside from these sixteen notes, the songs are objectively different. They are different in style (Joyful Noise is a Christian rap song, Dark Horse is a pop song), harmony (Dark Horse has chord progressions, while Joyful Noise does not have any discernable harmony), melody (Dark Horse has a clear pop melody, while Joyful Noise only has a rap), lyrics and themes. Flame’s entire claim is limited to this musical phrase.

Flame’s claim for copyright infringement was based on the “selection and arrangement” of six elements: same number of notes, same eighth note rhythm, same melodic shape and resolution (i.e. the 3-2-1-5 resolution), same pitch sequence for the first six notes (3-3-3-3-2-2 of their respective keys), same timbre (“pingy synthesizer sound”) and same placement of the ostinato in the sound recording. Flame conceded that none of the elements on their own would be protectable, but argued that in combination there would be copyright protection.

Impact of Skidmore’s Stairway to Heaven Decision

The recent Skidmore decision, which held Stairway to Heaven did not infringe Spirit’s Taurus, established that a copyright infringement claim cannot be based on pointing to similar elements that are common in music. Stairway to Heaven and Taurus shared the same key, a similar arpeggio line, a similar eighth note rhythm, a similar chord progression and a similar minor chromatic line. The Ninth Circuit held that these similarities were not enough to give rise to a copyright infringement claim.

The Skidmore decision made the Joyful Noise claim difficult to sustain. Taurus and Stairway to Heaven had far more elements in common than Joyful Noise and Dark Horse. In Skidmore, it was possible to pick out a section of both songs that had several elements in common simultaneously. Yet, the Ninth Circuit held that where four bars are similar based almost entirely on common musical element, it likely will not be enough to establish a passage with strong copyright protection. Flame can only point to eight notes in the background of Dark Horse that need to be isolated, and the passage is not even identical to the passage in Joyful Noise.

However, in this case, the Court went further than Skidmore: an isolated musical phrase of unprotectable elements is likely not important enough to warrant copyright protection. None of the asserted elements were particularly original: the 3-3-3-3-2-2 pitch sequence is used in the Christmas carol Jolly Old St. Nicholas, the 3-2-1-5 resolution is a natural resolution, a pingy synthesizer is common in pop music (and likely not appropriate to consider in a composition rather than sound recording comparison) and an even eighth note rhythm is very common. Nor is the combination original either, as these elements were used in this combination in an ostinato in the 2006 song Love Me or Hate Me by Lady Sovereign.

Further, the Court considered the final two note difference in the two ostinatos to be different enough that there would not be copyright infringement even if the combination of elements in the Joyful Noise ostinato was subject to copyright protection.

Skidmore and Gray may represent a turning point in non-literal copyright infringement claims. The courts are demanding more than claims based on short isolated passages with cherry-picked common musical elements. The courts appear to be paying as much attention to the alleged similarities as what is not similar. Copyright holders will need to establish why what was allegedly copied goes to the heart of the work.