LegalEagle: How Led Zeppelin Saved Katy Perry and Extinguished Flame


Dec 11, 2018
Katy Perry lost $2.8 million copyright judgment, but then she didn’t...

A California federal judge on Tuesday tossed out a jury verdict that Katy Perry's 2013 song "Dark Horse" infringed an earlier Christian rap song, ruling that the tracks share only common musical elements that cannot be protected by copyright law.
Overturning a July verdict against the pop star, the judge ruled that the "ostinato" that Perry allegedly copied from a song called "Joyful Noise" was too basic for any one artist to monopolize.
"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' [are] not a particularly unique or rare combination," U.S. District Judge Christina A. Snyder wrote.
"The other elements present in plaintiff's 8-note ostinato also do not bring the combination within the ambit of copyright law's protection," the judge wrote.
Notably, Judge Snyder on multiple occasions cited last week's decision by the Ninth Circuit on "Stairway To Heaven," including one portion that said musical "building blocks belong in the public domain."
The ruling went against a hip-hop artist named Flame, who sued Perry in 2014 on the accusation that she had lifted material from "Joyful Noise" when she wrote "Dark Horse," a 2013 song on her album Prism. In July, a California federal judge agreed, later ordering Perry to pay $2.8 million in damages.
Following the decision undoing that verdict, an attorney for Flame — legal name Marcus Gray — vowed to appeal the outcome.
"Back last summer when the jurors returned a unanimous verdict of infringement, I cautioned my clients that we had only finished Round 11 of a 15-round match and that the next round would take place in the court of appeals," Michael A. Kahn, attorney for Flame, told Law360. "We believe the jury was right and will do our best to restore their verdict on appeal."
An attorney for Perry and other defendants did not return a request for comment.
In post-trial motions that led to Tuesday's ruling, Perry argued that the ostinato featured in both "Dark Horse" and "Joyful Noise" was a "commonplace expression" that "no creator can monopolize."