Judge Christina A. Snyder of the California Central District Court has thrown out the jury’s verdict in a $2.8 million copyright infringement case against Katy Perry. Previously, plaintiff Marcus Gray, known professionally as “Flame,” alleged that Katy Perry et al.’s 8-note ostinato from her song “Dark Horse” infringes on the composition and 8-note ostinato of his song “Joyful Noise.” Plaintiffs claim that this is a “protectable original expression.” The jury previously found Katy Perry guilty of infringement, awarded $2.8 million in damages to Gray and entered judgment in favor of Plaintiffs.
Judge Snyder, upon consideration of the defendant’s motion for judgment as a matter of law filed in October, found that defendants could not be held liable, as there was nothing subject to copyright protection and thus nothing to infringe upon. According to the judge, “the jury’s verdict is against the clear weight of the evidence.”
The recent Ninth Circuit decision favoring Led Zeppelin’s song “Stairway to Heaven” was instructive to Judge Snyder’s consideration of the jury verdict. “A collection of otherwise unprotected elements may be found eligible for copyright protection under the extrinsic test…For a plaintiff that seeks to apply this theory of protection to ‘works where there is a narrow range of available creative choices, the defendant’s work would necessarily have to be ‘virtually identical’ to the plaintiff’s work in order to be substantially similar.’”
The plaintiffs’ musicologist Dr. Todd Decker argued there were several protectable elements in the ostinato. For example, “[t]he length of the ostinato is similar, eight notes. The rhythm of the ostinato is similar. The melodic content, the scale degrees present. The melodic shape so the – the way the melody moves through musical space.” Additionally, he stated that the timbre and the use and placement of the ostinato within the work is similar and recounted 9 similar elements: “(1) a melody built in the minor mode; (2) a phrase length of eight notes; (3) a pitch sequence beginning with ‘3, 3, 3, 3, 2, 2’; (4) a similar resolution to both phrases; (5) a rhythm of eighth notes; (6) a square and even rhythm; (7) the structural use of the phrase as an ostinato; (8) the timbre of the instrumentation; and (9) the notable empty and sparse texture of the compositions.”
The court, however, agreed with the defendants “that the uncontroverted evidence points to only one conclusion: that none of these individual elements are independently protectable.” The court finds that the ostinato and the pitch sequence are commonplace elements and thus unprotectable. The defendants won their motion for judgment as a matter of law because