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Katy Perry Gets Appeal Win in ‘Dark Horse’ Copyright Case (1)

March 10, 2022, 5:26 PMUpdated: March 10, 2022, 7:06 PM

Katy Perry prevailed again over a lawsuit alleging copyright infringement in her song “Dark Horse,” after the Ninth Circuit said Thursday that a trial judge was right to set aside a jury verdict against the pop singer.

A three-judge panel ruled that the authors of the Christian hip-hop song “Joyful Noise” failed to provide legally sufficient evidence that Perry’s song was “extrinsically similar” to theirs with respect to musical features that are copyright protectable.

The ruling affirmed the decision by the U.S. District Court for the Central District of California to vacate the jury’s decision to award the plaintiffs $2.8 million in damages.

At issue in the case was whether Marcus Gray, who goes by the stage name Flame, could show Perry copied a repeating instrumental figure called an ostinato.

The appeals court, affirming Judge Christina Snyder’s 2020 judgment as a matter of law for Perry, found the allegedly copied ostinato “consist entirely of commonplace musical elements” and didn’t meet the threshold of originality needed for copyright protection.

Gray’s expert witness, musicologist Todd Decker, suggested in testimony that the shared elements of the two songs were “common musical building blocks belonging to the public domain,” the appeals court said.

The court found that many of the musical elements where Decker found similarities—timbre, pitch sequence, and melodic shape—were too abstract to be protected.

The combination of those unprotected elements also “lacks the quantum of originality needed to merit copyright protection,” the court said.

Gray, who is from Missouri, sued Perry in 2014 and the case was later moved to California. The jury found Perry liable for infringement in 2019, after Snyder rejected her motion for a pretrial win.

Gray was represented by Capes, Sokol, Goodman & Sarachan PC. Perry was represented by Greenberg Traurig LLP.

The case is Gray v. Hudson, 9th Cir., No. 20-55401, 3/10/22.

(Updated with additional information throughout. )

To contact the reporter on this story: Isaiah Poritz in Washington at iporitz@bloombergindustry.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com