On March 10, 2022 the U.S. Court of Appeals for the Ninth Circuit affirmed a District Court's vacatur of a jury verdict in Gray v. Hudson, 28 F.4th 87 (9th Cir. 2022), to rule that a repeating eight-note instrumental pattern in Katy Perry's 2013 hit "Dark Horse" did not infringe two similar patterns in plaintiff's 2008 composition titled "Joyful Noise." The decision articulates the current state of Ninth Circuit law regarding the threshold of protectable originality in music infringement cases, and because so many music cases are brought in the Ninth Circuit the ruling will likely be significant to music litigators nationwide.

Background

In 2007, plaintiff Chike Ojukwu composed a simple melody using a free music website, and sold it to plaintiff Marcus Gray, who used Ojukwu's melody as a repeating instrumental figure, or "ostinato," in a 2008 recording of Joyful Noise. The Gray work was released on a 2008 album that drew millions of views on Myspace and YouTube, and was nominated in 2009 for a Grammy award for "Best Rock or Rap Gospel Album." Defendants, including Katheryn Hudson p/k/a Katy Perry (collectively, Perry), created the allegedly infringing work in 2013 after a meeting in which they reviewed "several short musical fragments to consider using in a new song." The Perry work was extremely successful and resulted in a popular music video and a Super Bowl halftime performance for Perry.

Plaintiffs (collectively, Gray) brought suit in November 2016 and proceeded to a biufurcated jury trial in 2019. With respect to liability, plaintiffs lacked direct evidence that Perry had copied from the Gray work, but relied on circumstantial evidence that Perry had a reasonable opportunity to have heard the work, coupled with the alleged substantial similarity of the ostinatos in the two songs. The latter point was addressed primarily through expert testimony, with Gray's expert opining that "no one single … element" of similarity was substantial in isolation, but taken together the ostinatos were substantially similar. Perry's expert disagreed, pointing to the use of different ending notes by the parties' respective patterns, and to the existence of similar overall patterns in several well-known songs including "Merrily We Roll Along" and "Jolly Old Saint Nicholas."