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Copyright infringement ruling strikes a chord

October 1, 2022
October / November 2022 IP Newsletter

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The music world is sitting up and taking note of another significant court ruling on the availability of copyright protection for elements of songs. The court’s decision emphasizes that common “building blocks” of music aren’t copyrightable.

Battle of the bands

The case involved the hit song “Dark Horse” by Katheryn Hudson, professionally known as Katy Perry. Three Christian hip-hop artists claimed that an ostinato, a repeating instrumental figure, in Perry’s song copied a similar ostinato in their song “Joyful Noise.”

Following a trial that focused on the testimony of musical experts, a jury found Perry and her co-defendants liable for copyright infringement. It awarded the plaintiffs $2.8 million in damages, but the court vacated that award.

The court granted judgment to the defendants “as a matter of law.” It found that the evidence at trial was legally insufficient to show that the “Joyful Noise” ostinato was copyrightable. The plaintiffs turned to the U.S. Court of Appeals for the Ninth Circuit for relief.

Pitch imperfect

According to the Ninth Circuit, in the absence of direct evidence of copying, the plaintiffs had to show that 1) the defendants had access to the work, and 2) the ostinatos were substantially similar. The court didn’t consider the access prong, though, because it concluded that the ostinatos weren’t substantially similar.

The court applied a two-part test with “extrinsic” and “intrinsic” components. The extrinsic test breaks the two works at issue down into their constituent elements for objective comparison. The intrinsic test evaluates the similarity from the perspective of “the ordinary reasonable observer,” with no expert assistance.

Courts are generally reluctant to reverse a jury’s finding that two works are intrinsically similar. However, the extrinsic test requires courts to ensure that any objective similarities are legally sufficient to serve as the basis of a copyright infringement claim. And, the appellate court found, they weren’t in this case.

That’s because nothing about the “Joyful Noise” ostinato qualified as original expression, as required to be protectable by copyright. Although the threshold for originality is, as the court noted, “famously low,” it does require “at least a modicum of creativity.” Copyright doesn’t extend to common or trite musical elements or commonplace elements firmly rooted in a genre’s tradition.

The court reviewed the individual musical elements in the plaintiff’s ostinato they’d identified as original and explained why those elements weren’t individually entitled to copyright protection, including the points that:

But the court’s finding that no individual component of the plaintiff’s ostinato was copyrightable wasn’t the end of its inquiry. It also considered whether the ostinato was protectable as a combination of unprotectable elements.

The appellate court determined that the ostinato was merely a “manifestly conventional arrangement of musical building blocks” and “nothing more than a two-note snippet of a descending minor scale, with some notes repeated.” To allow a copyright, the court reasoned, would essentially grant an improper monopoly over two-note pitch sequences or even the minor scale.

Closing note

While a victory in the end for Perry and her co-defendants, this case demonstrates the risk of defending a music-related copyright case in front of a jury. Perry ultimately prevailed at the appellate level, but only after spending much time and money. The result also means that it’s highly unlikely Perry could successfully argue that another song’s ostinato infringed hers.