14 March 2022CopyrightAlex Baldwin

Katy Perry prevails in ‘Dark Horse’ copyright suit

Katy Perry will not need to pay $2.8 million to a rapper who accused her of copying a part of his song in her 2013 hit “Dark Horse”.

The US Court of Appeals for the Ninth Circuit issued a decision affirming a lower court’s ruling that vacated a jury award ordering the pop star to pay $2.8 million to Christian rapper Flame for repurposing an eight-note “ostinato”, or musical motif, on his track “Joyful Noise” for her hit single.

The jury for the US District Court for the Central District of California handed down a verdict in 2019 ordering Perry to pay $550,000, and her label Capitol Records to pay $1.29 million.

Following this verdict, Perry moved for a judgment as a matter of law (JMOL), while Flame requested a reward of prejudgment interest. After considering these two motions, the district court vacated the jury’s verdict, granted Perry her JMOL motion, and denied Flame’s motions as moot.

Flame then appealed against the decision to the Ninth Circuit, requesting that the JMOL be rescinded.

However, the appellate court found that Flame had failed to put forward legally sufficient evidence that “Joyful Noise” and “Dark Horse” were “extrinsically similar works” under any musical features protectable under copyright law.

‘Substantially similar’

In the appellate court’s analysis, judge Milan Smith considered whether a “reasonable jury” would have had a “legally sufficient evidentiary basis” to conclude that Perry infringed Flame’s copyrighted work.

According to his analysis, the burden was on Flame to demonstrate that Perry either had access to his work or that the ostinatos were “substantially similar”.

Flame argued that the appellate court was required to defer to the jury’s determination that the Joyful Noise and Dark Horse ostinatos are similar, but Smith noted that “even when jury's serve as the factfinders, judges retain an important gatekeeping role in applying the law”.

Smith applied an “extrinsic test” to determine whether the ostinatos were substantially similar. Here, he noted that copyright does not extend to “common or trite” musical elements, or commonplace elements “rooted in the genre's tradition”.

Flame’s expert testimony doubled down on the similarities between the two songs,  claiming that the rhythm, “melodic shape”, timbre, and length of each note, constituted “substantial similarity” between the two songs.

However, Smith found that each of these individual aspects were not fit for copyright protection. While Smith noted that several uncopyrightable musical elements could be protected in combination, he ruled that “Joyful Noise” lacked the “quantum of originality needed to merit copyright protection”.

Consequently, Smith affirmed the district court’s order vacating the jury award and granting a JMOL to Perry.

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More on this story

9 January 2020   The Christian rapper at the heart of the “Dark Horse” copyright clash is attempting to bar the submission of an amicus brief by a group of musicologists, which he claims is “unabashedly partisan” to Katy Perry’s arguments.
11 October 2019   Katy Perry has labelled a jury’s decision to find her liable for copyright infringement over her song “Dark Horse” and award a Christian rapper $2.7 million in damages as a “grave miscarriage of justice”.