The verdict in the Dark Horse copyright infringement suit against Katy Perry – which would have seen her, Capitol Records and her collaborators liable for $2.8 million – was overturned in federal court in California on Tuesday (March 17) by Judge Christina A. Snyder.
In the latest of a run of good legal news for songwriters, Perry’s win follows Led Zeppelin’s huge Stairway to Heaven legal victory last week.
In July last year, a Los Angeles jury decided that Perry’s hit Dark Horse infringed the copyright of 2008’s Joyful Noise – a song by Christian rapper Flame (aka Marcus Gray), with Perry, Capitol Records and her collaborators ordered to pay a total of $2.8m.
Perry was ordered to pay $550,000 personally, with Capitol on the hook for nearly $1.3m. The New York Times reported that Dark Horse collaborators Max Martin owed $253,000, and that Dr. Luke owed $61,000 personally – while his company, Kasz Money Inc., would have been liable for $189,000.
In October, these defendants filed an appeal against the verdict, calling the decision “a grave miscarriage of justice”.
Perry, Capitol et al. asked for the judgment to be overturned due to “the legally unsupportable jury verdicts” in the cases. They argued that the original verdict was “widely recognized within the music industry — and beyond — as a grave miscarriage of justice”.
According to Snyder’s judgment, obtained by MBW and which you can read in full here: “[Because] the sole musical phrase that plaintiffs claim infringement upon is not protectable expression, the extrinsic test is not satisfied, and plaintiffs’ infringement claim – even with the evidence construed in plaintiffs’ favour – fails as a matter of law.”
That musical phrase is an eight part ostinato (a repeated melody or rhythm) that Gray’s musicologist Dr. Todd Decker argued contained “five or six” elements that were allegedly copied.
Said Decker: “The length of the of the ostinato is similar, eight notes. The rhythm of the obstinate is similar. The melodic content, the scale agrees present. The melodic shape so the – the way the melody moves through musical space.”
Added Decker: “Similar, the timbre or the quality and color of the sound is similar, and the use of the – the placement of this material, the ostinato, in the music space of the recording in the mix – that is also similar. So that’s five or six points of similarity between the the two ostinatos.”
Snyder said, however, that “the evidence in this case does not support a conclusion that the relevant ostinatos in Dark Horse and Joyful Noise are virtually identical”.
Added Snyder: “There are a number of undisputed objective distinctions that, as a matter of law, negate liability.
“Even if the 8-note ostinato were protected expression as a combination, defendants would still be entitled to judgment a matter of law since the evidence submitted at trial does not support a legal conclusion that the two ostinatos are, objectively, substantially similar.”
Flame aka Marcus Gray now has the option of appealing Judge Snyder’s overturning ruling at the 9th Circuit.Music Business Worldwide