We recently wrote about Led Zeppelin’s victory at the Ninth Circuit in the dispute over “Stairway to Heaven.” Although just a few weeks old, the decision has already been applied in a music case to find non-infringement, this time leading to victory for Katie Perry.
Plaintiff Marcus Gray (p/k/a “Flame”), a Christian rapper, along with his co-creators, claimed that Kerry Perry’s “Dark Horse” infringed his song “Joyful Noise.” After a trial in July of 2019, a jury found in favor of the plaintiffs and awarded almost $2.8 million in damages. Perry (along with her label, co-writers, and other defendants) then filed a motion for judgment as a matter of law.
WORD OF THE DAY: OS-TI-NA-TO /ästɘ’ nädö/ – a continually repeated musical phrase or rhythm.
The alleged similarity came down to an 8-note ostinato (you can watch an outdated analysis of the two songs here). Plaintiff argued that there were nine elements of similarity between the two ostinatos: (i) the use of a minor scale; (ii) a phrase length of 8 notes; (iii) a pitch sequence beginning with 3, 3, 3, 3, 2, 2; (iv) a similar resolution; (v) the use of 8th notes; (vi) a square and even rhythm; (vii) the use of an ostinato; (viii) the timbre of the instrumentation, and (ix) the “notably empty and sparse texture of the compositions.”
Although defendants argued that there were only 5 similar elements, the court concluded that, regardless of whether there were 5 or 9 elements, “the uncontroverted evidence points to only one conclusion: that none of these individual elements are independently protectable.” The court walked through each of the identified elements and cited either cases or the plaintiffs’ own expert testimony that each of these were unprotectable or commonplace.
Of course, the plaintiffs also claimed that it wasn’t just the similarity of the individual elements, but rather their “selection and arrangement” that was protectable. The court found that it was not, but even if it were, the defendants would be entitled to judgment as a matter of law because the two sequences were not substantially similar, citing the recent Led Zeppelin decision that “the combination of unprotectable elements in defendants’ allegedly-infringing ostinato ‘would necessarily have to be ‘virtually identical’ . . . in order to be substantially similar.’” Led Zeppelin at 48 n. 13. There were enough dissimilarities between the two ostinatos that they could not be said to be virtually identical.
The plaintiff argued that the case brought by the estate of Marvin Gaye over the song “Blurred Lines” – Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018) – foreclosed application of the “virtually identical” standard to music cases. The Perry court noted that “if anything, Williams stands for the proposition that the ‘thin’ copyright protection doctrine, as applied to musical compositions, ordinarily will not apply to musical works as a whole,” and suggested that the ruling in Williams may not “survive[s] the en banc decision in Led Zeppelin.” The court also suggested that Williams v. Gaye might have had a different outcome if the defendants had made a motion for judgment as a matter of law after trial.
Ultimately, the court concluded that the elements of similarity between the two songs were neither “numerous enough” nor “arranged in a sufficiently original manner” to be entitled to copyright protection, that the plaintiff’s ostinato “is not a particularly unique or rare combination, even in its deployment as an ostinato” and that the pitch sequence could be found in the children’s songs “Merrily We Roll Along” and “Jolly Old St. Nicholas,” among others.
This decision, coming on the heels of the Led Zeppelin decision, is seen by many as a welcome return from cases like Williams v. Gaye that many thought were extending copyright protection to so-called “building blocks” of music that are commonly used by many artists in a way that would stifle creativity.
Author: Jenifer deWolf Paine
The opinions expressed are those of the authors on the date noted above and do not necessarily reflect the views of Fish & Richardson P.C., any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes only and is not intended to be and should not be taken as legal advice. No attorney-client relationship is formed.
Jenifer deWolf Paine is Of Counsel in Fish & Richardson’s New York office. Jenifer is a highly experienced intellectual property attorney serving as business and legal advisor to clients in a wide variety of industries on all aspects of trademark, brand protection, copyright, rights of privacy and publicity matters, intellectual property...