Judge Reverses Infringement Verdict Against Katy Perry, But If You’re a Composer, Should You Be Happy About the Reason?

Stephen Carlisle April 9, 2020

On March 16, 2020, the trial judge in the Katy Perry Dark Horse case surprised a lot of people by outright reversing the jury’s finding of infringement and resulting award of damages. ¹ Many commentators felt the verdict was eroding the lines between what is slightly similar and what is substantially similar, creating (ahem) “blurred lines.”

This blog wrote about the verdict previously. ² Back then I wrote:

“…[O]ut of the 16 notes in each phrase, only three notes are different harmonically, and the rhythm of the notes is exactly the same. And in the third bar, while the final note in [Joyful Noise] is a minor 3^rd apart (A), and while in [Dark Horse] a minor 6^th apart in (F), in harmony terms, this is not a big difference. The 3^rd or the 6^th notes of a major scale are very similar in their harmonic effect and are considered “tonic substitutes.” ³

And summing up:

“The problem here is that the songs, when taken at their totality, are very different and not substantially similar. After all, [Joyful Noise] is a rap song, and [Dark Horse] is most certainly not a rap song.

Yet, countering that, is that the parts that are similar, are nearly identical. To a jury’s ears, this could easily tip the balance, much more so than the similarities that occur in the “Blurred Lines” case.” ⁴

In reversing the jury’s verdict, the Judge says that none of that matters. The reason is that the Judge rules that the four bar ostinato of Joyful Noise does not contain protectable expression. So even if copied, it could not support a finding of infringement.

“[T]he Court now turns to whether the musical elements that comprise the 8-note ostinato in ‘Joyful Noise’ are ‘numerous enough’ and ‘arranged’ in a sufficiently original manner to warrant copyright protection. (citation omitted) The Court concludes that they do not. Although Swirsky contemplates the possibility that an 8-note musical phrase may be entitled to copyright protection pursuant to Satava, the parties have not cited any authority (let alone binding authority) holding that an otherwise unprotected musical phrase, isolated from the rest of a musical composition, in fact warranted copyright protection.” ⁵

And this:

“It is undisputed in this case, even viewing the evidence in the light most favorable to plaintiffs, that the signature elements of the 8-note ostinato in ‘Joyful Noise’—the 3-3-3-3-2-2 pitch sequence, the resolution of that sequence with a 3-2-1-5 sequence, the even rhythm without syncopation, and its development across a sparse texture—is not a particularly unique or rare combination, even in its deployment as an ostinato:…” ⁶

“The other elements present in plaintiffs’ 8-note ostinato also do not bring the combination within the ambit of the copyright law’s protection. The placement of the ostinato within the composition’s verses does not make it so exceptionally original as to warrant protection…That the ostinato is phrased in minor scale also does not make the combination sufficiently original given the limited number of scales that exist.” ⁷

But this is not really the test for copyrightable protection, is it? The test is not whether someone came up with the same thing previously. The test is whether the musical phrase is original to you. As stated by the Supreme Court:

“Original, as the term is used in copyright means only that the work was independently created by the author (as opposed to copied from other works) and that it possesses at least some minimal degree of creativity.” ⁸

Nowhere in the Copyright Act does it say that a musical phrase must be “unique,” “rare” or “exceptionally original.”

So, if you’re a composer, reading those words might not make you feel so rosy about this decision.

Let’s take as an example, Usher’s Yeah!, my personal selection for worst popular song ever written. It has no chords, just a mind-numbing eight note ostinato that runs through the entire song. Further, amongst these eight notes, there are only three pitches, G, D and E. To create this, according to the sheet music, required the participation of 10 composers. ⁹

In case you’ve never heard it, or forgotten how it goes, here it is:

So how does this fare under the Court’s reasoning? The entire song rests on a bed of a ostinato of G-D,G-E…G-E,G-D, which runs for the entire song. Would the Court find that this ostinato sequence does not contain sufficient protectable expression, as it contains only three distinct pitches? Could it be copied out of the song by someone else and not be an infringement? It seems that this is the logical conclusion under this Court’s line of thinking.

Or for those of us old enough to remember the Bossa Nova craze of the 1960’s, you might remember a song called the One Note Samba composed by Antonio Carlos Jobim (English lyrics by Jon Hendricks) and performed by Stan Getz. True to its title, the first 30 notes of the song are all the same note, “F”. The next 15 notes are also all the same note, “B flat”, before returning to “F”. For the first 16 bars, there are only two notes played, “F” and “B flat”. Does this render the “One Note Samba” unprotectable? Perhaps not, as in order to maintain the interest of the listener, the note is played with a highly syncopated rhythm.

Perhaps the Court would have been better served to rule that the ostinato phrase in Joyful Noise was so simplistic as to make independent creation highly likely. For example, sing Three Blind Mice and you have one song. Sing the words “love…love…love” to those same three notes and you have The Beatles All You Need is Love. But the Court affirms both the jury’s finding of access and rejection of the defense of independent creation. This then requires the Court to declare that there is no protection for the copied portion.

Thus, it seems that the ostinato in Joyful Noise passes the test set out by the SCOTUS in Feist. Injecting the requirements of “unique,” “rare” or “exceptionally original,” as this Court does, pushes the test of copyrightability into uncharted waters that are not favorable to the composers who might sail on them.