18 March 2020CopyrightEdward Pearcey

Katy Perry victorious as judge overturns $3m ‘Dark Horse’ copyright award

Katy Perry’s song “Dark Horse” did not infringe the copyright of “Joyful Noise”, a song by Christian rapper Flame, according to a US District Court of California ruling, overturning a previous jury verdict against the pop star.

In a ruling on Monday, March 16, the court found that an eight-note ostinato (a phrase that persistently repeats in the same musical voice, frequently in the same pitch), which the rapper’s lawyers had argued in a previous case was taken from his song, is not original enough to warrant copyright protection.

Flame appeared in the court documents under his real name of Marcus Tyrone Gray.

In the summer of 2019, a jury at the US District Court for the Central District of California concluded that “Dark Horse” had indeed copied elements of Flame’s 2008 song, and awarded the rapper almost $3 million in damages.

Perry responded by claiming that she had suffered a “grave miscarriage of justice” and that “no reasonable” jury could have found in Gray’s favour. She and her team at that time promised to launch an appeal.

In Monday’s ruling, Perry was vindicated, as presiding judge Christina A Snyder, wrote:  “It is undisputed in this case, even viewing the evidence in the light most favourable to the plaintiffs, that the signature elements of the eight-note ostinato in ‘Joyful Noise’... is not a particularly unique or rare combination.”

She added that a relatively “common eight-note combination of unprotected elements that happens to be played in a timbre common to a particular genre of music can’t be so original as to warrant copyright protection”. Timbre is the quality and tone of a sound that makes it unique.

The court granted Perry’s motion for judgment as a matter of law and vacated the jury’s previous verdicts as to liability and damages. A motion for a new trial argued by Perry, and the plaintiffs’ motion for prejudgment interest, were denied as moot.

Flame is still able to appeal Snyder’s ruling to the 9th Circuit, should he wish to do so.

Earlier in March, the US Court of Appeals for the Ninth Circuit also determined that Led Zeppelin did not steal the opening riff in "Stairway To Heaven", the band’s most famous song, following the rejection of a long-standing copyright lawsuit.

Led Zeppelin originally faced court action in 2016, accused of copying parts of "Taurus", a song by US pop band Spirit, written and released in 1968, three years before "Stairway To Heaven".

According to the appeal court ruling, the “composition of 'Stairway To Heaven' has a different ascending line that is played concurrently with the descending chromatic line, and a distinct sequence of pitches in the arpeggios, which are not present in 'Taurus’,” it added.

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