(Photo by Jason Merritt/Getty)
Last summer, we wrote about yet another post-Blurred Lines decision, showing that any two random songs that sounded kinda a little similar, might be ripe for a court to find infringing. In this case, it was a Katy Perry song, Dark Horse, that was found to infringe on a little known artist named “Flame,” who had a song called “Joyful Noise.” As we noted at the time, the similarities between the song were simply basic and fundamental building blocks of music. As that article points out:
The issue isn’t that “Joyful Noise” or “Dark Horse” are particularly original: both fuse generic elements of pop, trap and EDM—a style that’s come to define the sound of the 2010s. Though in different keys and tempos, both songs feature a descending minor-key progression with evenly spaced B and C notes.
This four-note progression is as basic as the major-scale power-chord riffs in punk, and Perry’s supporters argue that standard songwriting tropes like these should stay in the public domain. Indeed, well-known works like the Stranger Things theme song and LL Cool J’s “Doin’ It (Remix)” use descending minor-scale loops similar to those in “Dark Horse” and “Joyful Noise.”
But, when a bunch of non-musicologist jurors say “hey, that sounds kinda similar,” it seemed to be game over for Perry. Except… sanity may have finally prevailed. Months later, after Katy Perry asked the judge to overrule the jury as a matter of law (as opposed to a matter of fact, which is what the jury decides), the judge in the case has now thrown out the jury verdict, and properly noted that the similarities are not subject to copyright protection in the first place. Somewhat incredibly, it was the plaintiff’s own expert witness who appeared to hand the judge all the evidence that was needed in comparing the two works:
The Court agrees that the uncontroverted evidence points to only one conclusion: that none of these individual elements are independently protectable. It is plaintiffs’ burden to establish the protected elements of their allegedly infringed work… Dr. Decker did not provide testimony that each of the elements he identified are individually original. To the contrary, he testified that “[n]o one single . . . element” caused him to determine that the works contained protected features that were substantially similar…. Any single one of those [elements] would not have been enough,” he conceded, “[i]t’s the combination of them” that supported his conclusion….
Plaintiffs contend that, notwithstanding what Dr. Decker said, he did not expressly concede “that each individual element was unremarkable or commonplace.”… The clear–indeed only–implication of Dr. Decker’s testimony is that, if the two ostinatos are similar at all, it is reasonable only as a result of the arrangement of elements within those ostinatos, not any similarities between the individual elements themselves (which “would not have been enough”). Plaintiff’s burden to present evidence that establishes protectability of each individual element is not met when their own expert provides testimony that assumes the opposite.
Further, Dr. Decker conceded, in substance, that several of the allegedly original individual elements of the plaintiffs’ ostinato are not original: (1) with respect to the phrase lenght of eight notes, Dr. Decker testified that it is “characteristic for a phrase like this [ostinato] to last for eight beats,” … (2) with respect to the beginning of the pitch sequence of “3, 3, 3, 3, 2, 2,” Dr. Decker testified that a repeating scale degree of “3” that later resolves is a technique used for “building up tension that wants to be released” and that, when such tension is released in a song with “strong beat” like “Joyful Noise” it is “released to 2,”… (3) with respect to the way the “Joyful Noise” ostinato resolves from 3 to 2 to 1, Dr. Decker testified that “scale degrees have tendencies” in popular music such that, to make a pleasant consonant sound, “3 wants to go down to 2” and “2 desperately wants to go to 1” because “1 is our home note,” which indicates that the way the ostinato resolves is not so much original as necessary… (4) with respect to the “Joyful Noise” ostinato’s “square and even rhythm,” Dr. Decker testified that this is a “relatively simple rhythmic choice” and agreed that “no composer [is] entitled to monopolize the rhytm of eight even quarter notes,” … (5) with respect to the ostinato’s pingy synthesized timbre, Dr. Decker testified that it is essentially common since it would be “very difficult to monopolize,” … and (6) with respect to the deployment of these phrases as an ostinato (as opposed to some other musical device), Dr. Decker testified that ostinatos are commonly-used musical devices in “countless” musical compositions.
I think those paragraphs are slamming the lid shut on Dr. Decker’s career as an expert witness on the plaintiff side of these cases… though they might open up opportunities on the defense side.
The judge also cites the very recent Stairway to Heaven ruling, saying that the 9th Circuit has now established that when we’re talking about such obvious things, similarity is not enough — the songs need to be “virtually identical.”
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 to be substantially similar.” (Skidmore v. Led Zeppelin)
And here, the court says, the songs are not virtually identical, and once again the Plaintiff’s own expert helped make that clear:
The evidence in this case does not support a conclusion that the relevant ostinatos in “Dark Horse” and “Joyful Noise” are virtually identical. There are a number of undisputed objective distinctions that, as a matter of law, negate liability. First, Dr. Decker testified that the pitches on the seventh and eighth beats of the “Joyful Noise” ostinato are different from the pitches on the corresponding beats of the “Dark Horse” ostinato: in “joyful Noise,” the pitch sequence on these beats resolves up from B-A/F, while in “Dark Horse,” the pitch sequence on these beats resolves down from A-E…. Plaintiffs characterize this testimony as signaling a similarity in how the songs resolve, and point to Dr. Decker’s testimony that both ostinatos “share[e] similar musical strategies for how to end.” … But that conclusion is contrary to law: the question is whether the identified and allegedly protected concrete elements of the “Joyful Noise” ostinato are, in their combined form, objectively similar in articulable ways to corresponding concrete elements in the “Dark Horse” ostinato, not whether the ostinatos reflect common “strategies.”… Moreover, the fact that the two 8-note ostinatos resolve using two different pitches despite a tendency to resolve within only a narrow range of pitches… (Dr. Decker conceded that “scale degrees have tendencies” to resolve in a particular manner), indicates an objective distinction rather than similarity. Second, the composition for the ostinato in “Joyful Noise” contains at least six instances of portamento (i.e. a slide between musical notes) not present in “Dark Horse.”… Dr. Decker testified that he does not “hear” these differences “as signicant,” … but that opinion is legally irrelevant. Dr. Decker acknowledged that the presence of slides in the composition of “Joyful Noise” is “a difference” between the compositions…. And third, Dr. Decker acknowledged that the compositions for the ostinatos use different keys, tempos, harmonies, and rhythms.
I don’t think this will stop these kinds of cases from being brought — and this one may still be appealed. But, between the ruling in the Stairway to Heaven case, and now the judge ruling on this issue as a matter of law, it might bring some modicum of sanity back to the world of music copyright.
Surprise: Judge Throws Out Jury’s Awful Copyright Infringement Decision Over Katy Perry Song
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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).
Jordan Rothman is a partner of 
