Joyful Noise and Dark Horse: Dissecting an Ostinato

The Ninth Circuit Court of Appeals Rules for Katy Perry and Overturns a Unanimous Jury Verdict

Hello Friends and Peers - 

Before we dive into today’s update, you should know that Substack now has an iOS app which will organize your subscriptions into a very sleek and clean interface if you prefer to read this content that way.  You can now read Tuk's Copyright Law Reporter in the new Substack app for iPhone.

With the app, you’ll have a dedicated Inbox for my Substack and any others you subscribe to. New posts will never get lost in your email filters, or stuck in spam. Longer posts will never cut-off by your email app. Comments and rich media will all work seamlessly. Overall, it’s a big upgrade to the reading experience.

The Substack app is currently available for iOS. If you don’t have an Apple device, you can join the Android waitlist here.

---

Now then, let us consider yesterday’s Ninth Circuit Court of Appeals ruling in the matter of Marcus Gray, et al. v. Katheryn Elizabeth Hudson, et al., Docket No. 20-55401, in which Ms. Hudson (a/k/a Katy Perry) prevails on an appeal. 

CASE BACKGROUND: 

Plaintiffs Marcus Gray (pka Flame), Emanuel Lambert, and Chike Ojukwu are Christian hip-hop artists who have sued Katheryn Hudson (pka Katy Perry), Capitol Records LLC, and several other defendants for copyright infringement. They claim that a repeating instrumental figure—in musical terms, an ostinato—in Hudson’s song “Dark Horse” copied a similar ostinato in plaintiffs’ song “Joyful Noise.” After a trial centering around the testimony of musical experts, a jury found defendants liable for copyright infringement and awarded $2.8 million in damages. The district court vacated the jury award and granted judgment as a matter of law to defendants, concluding principally that the evidence at trial was legally insufficient to show that the Joyful Noise ostinato was copyrightable original expression.

Opinion at 4. 

ISSUE: Did the ostinato in Dark Horse infringe on an ostinato that appeared in Joyful Noise?

WHAT IS AN OSTINATO, ANYWAY?

An understanding of musical concepts, songwriting and performance is essential to understanding copyright law and infringement cases.  The key issue in Gray v. Hudson is the alleged similarity of the ostinatos that appear in each song. Was there substantial similarity that would rise to the level of a legally cognizable copyright infringement claim? And what is an ostinato, anyway?  Consider: 

Ostinato [lt. obstinate]. A short musical pattern that is repeated persistently throughout a performance or composition or a section of one. Repetition of this type is found in the music of cultures throughout the world and is especially characteristic of the music of Africa, where its presence in much folk and popular music elsewhere (e.g. *rock) and in some 20th century western art music… Although any musical element may figure as an ostinato, the most memorable patterns result when it is a melody, a chord progression, a rhythm, or some combination of these. The effectiveness of the ostinato derives from the cumulative impact of the repetitions, especially when they occur at the same pitch, although in some pieces, the ostinato statements are widely separated and may begin at different pitch levels. Melodic-harmonic ostinatos were most prevalent in the Baroque period, while melodic-rhythmic ostinatos appear most often in the 20th century.

-The Harvard Dictionary of Music at 624 (Fourth Edition).

Everybody got that?  Good. 

DISCUSSION: 

The track Joyful Noise was released in 2008.  That track incorporated an ostinato which was written by Plaintiff Chike Ojukwu, who sold that ostinato to Plaintiff Gray.  Not at all an unusual transaction between beat maker and song writer. 

Dark Horse was written in 2013.  It was a huge commercial success, and was performed by Katy Perry at the Super Bowl in 2015. 

Based on the Court’s opinion, it does not appear that the Plaintiffs submitted any direct evidence that would support the allegation that the Defendants copied the Joyful Noise ostinato.  Rather, the Plaintiffs made a circumstantial case supported by their expert witness, a musicologist. 

Of course, the Plaintiffs’ expert argued that the ostinatos were substantially similar. The Defendants’ expert argued there was no similarity.  No surprises here. 

The jury, however, found the jury found that Dark Horse used protected material from Joyful Noise, that the two songs contained substantially similar copyrightable expression, that defendants had a reasonable opportunity to hear Joyful Noise before composing Dark Horse. The jury awarded the plaintiffs 22.5% of defendants’ net profits from Dark Horse, resulting in a total verdict of about $2.8 million in damages.

Hearing both of these ostinatos side by side is illuminating.  This video does a decent job:

After the jury verdict, the Defendants filed a motion for a judgment as a matter of law or in the alternative a new trial.  The District Court granted the motion, in so doing ruling that none of the individual points of similarity the Plaintiffs’ expert identified between Dark Horse and Joyful Noise constituted copyrightable original expression.  If there is no copyrightable original expression, there can be no copyright infringement. 

The Ninth Circuit affirmed the District Court’s ruling.  One of the first points of the Ninth Circuit’s analysis is as follows: 

Copyright protection extends only to works that contain original expression. 17 U.S.C. § 102(a); Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). “Original, as the term is used in copyright, means only that the work was independently created by the author . . . and that it possesses at least some minimal degree of creativity.” Feist, 499 U.S. at 345. “To establish [copyright] infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Id. at 361 (emphasis added).

Opinion at 12.

The Court continued that because the Plaintiffs did not present any direct evidence that the Defendants copied the Plaintiffs’ work, the Plaintiffs were “required to show that (1) defendants had ‘access’ to their work and (2) the ostinatos in Joyful Noise and Dark Horse ‘are substantially similar.’” Id. (citations omitted). 

Key Concept: Substantial Similarity

There is a two part test in the federal courts for what constitutes substantial similarity for the purposes of establishing copyright infringement: 1) an extrinsic test and 2) an  intrinsic test. 

“The extrinsic test considers whether two works share a similarity of ideas and expression as measured by external, objective criteria. The extrinsic test requires . . . breaking the works down into their constituent elements, and comparing those elements for proof of copying as measured by substantial similarity. Because the requirement is one of substantial similarity to protected elements of the copyrighted work, it is essential to distinguish between the protected and unprotected material in a plaintiff’s work.” Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004) (cleaned up); accord Skidmore, 952 F.3d at 1064. The intrinsic test focuses on “similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance.” Apple, 35 F.3d at 1442.

The Plaintiffs’ expert testified that the length and rhythm of both ostinatos were similar, as were the melodic shape and timbre of synthesizer that created both.  The Ninth Circuit correctly noted that “our precedents and other persuasive decisions make clear that no element identified by plaintiffs or Dr. Decker is individually copyrightable.” Id. at 17. 

You cannot copyright the minor scale - no one owns the A minor scale. Likewise, you cannot copyright timbre - that squealing guitar feedback at the beginning of Jimi Hendrix’s Foxy Lady has been replicated on other recordings over and over. You cannot copyright a chord progression - hundreds of songs utilize a I-IV-V progression (the chord progression at the beginning of The Kingsmen’s Louie, Louie). The court relied heavily on the Copyright Office Compendium for support for these principles. 

The Ninth Circuit found that the extrinsic test was not met in the District Court trial, and that substantial similarity could not legally be established.  Game over. 

It remains to be seen whether or not the Plaintiffs will file a motion for reconsideration.  This will be a case to watch. 

Thanks for reading!  Please send to a colleague who may be interested.