There has been a spate of copyright infringement lawsuits filed against major artists in the last few years.  This no doubt was inspired by a California jury’s 2015 award of over $5 million (plus running royalties) against Pharrell Williams and Robin Thicke for infringing the copyright in Marvin Gaye’s 1977 hit song Got to Give it Up.  Recently, however, three major artists have claimed victories in copyright infringement lawsuits targeting their songs.  See here and here. Here’s another.  

In 2016, hip-hop artist Marcus Gray (pka Flame) and others sued Katheryn Hudson (pka Katy Perry) and others over Perry’s song Dark Horse, claiming it was too similar to plaintiffs’ song Joyful Noise.  The claimed similarity concerned both songs’ use of an ostinato– a short, melodic phrase that is repeated and sometimes transposed (think the bass line to Queen’s Another One Bites the Dust).  The songs are in different keys, but each one featured minor key eight-note ostinatos, in which the first six notes shared the same respective scale positions.  (That is, these six notes were identical once transposed to the same key).  Both songs also used an identical rhythm, but which was absolutely basic. During the familiar “battle -of-the-experts” at trial, plaintiffs’ musicologist noted these similarities and others, while defendants’ expert testified to their differences, e.g., that the last two notes of the respective ostinatos were meaningfully different. 

The jury ruled for the plaintiffs.  The district court, however, threw out the the verdict– a rare move– and the Ninth Circuit affirmed.  

Why?  Because “[c]opyright protection extends only to works that contain original expression.”  Thus in evaluating whether a defendant’s work is “substantially similar” to the plaintiff’s, that analysis is limited to the protected– i.e., original– elements of the plaintiff’s work.  Here, the common six-note sequence “consists of a manifestly conventional arrangement of musical building blocks.”  Had the plaintiffs done something truly original with those building blocks, the ostinato would have been protectible.  But instead, their work was “unoriginal because it is really nothing more than a two-note snippet of a descending minor scale, with some notes repeated.”  And to allow them own that would allow them to own the minor scale.  Can’t have that.