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United States Court of Appeals for the Ninth Circuit
January 11, 2022, Argued and Submitted, Pasadena, California; March 10, 2022, Filed
M. SMITH, Circuit Judge:
Plaintiffs Marcus Gray (pka Flame), Emanuel Lambert, and Chike Ojukwu are Christian hip-hop artists who have sued Katheryn Hudson (pka Katy Perry), Capitol Records LLC, and several other defendants for copyright infringement. They claim that a repeating instrumental figure—in musical terms, an ostinato—in Hudson's song "Dark Horse" copied a similar ostinato in plaintiffs' song "Joyful Noise." After a trial centering around the testimony of musical experts, a jury found defendants liable for copyright infringement and awarded $2.8 million in damages. The district court vacated the jury award and granted judgment as a matter of law to defendants, concluding principally that the evidence at trial was legally insufficient to show that the Joyful Noise ostinato [*4] was copyrightable original expression.
] We affirm. Copyright law protects "musical works" only to the extent that they are "original works of authorship." 17 U.S.C. § 102(a). The trial record compels us to conclude that the ostinatos at issue here consist entirely of commonplace musical elements, and that the similarities between them do not arise out of an original combination of these elements. Consequently, the jury's verdict finding defendants liable for copyright infringement was unsupported by the evidence.2
I. Musical Background
We begin by briefly explaining some vocabulary that we rely on throughout this opinion. A musical scale is essentially a sequence of musical notes or tones ordered by pitch (i.e., how "low" or "high" each note is). To illustrate this concept, a standard piano or keyboard instrument has white and black keys organized in a twelve-key repeating pattern. If one starts with any key on the piano and plays twelve white and black keys in order from left to right, she will have played all the notes of the "chromatic" scale in ascending order. That ordered sequence of twelve notes—which repeats itself at higher and lower registers across the keyboard—can be thought of as [*5] the musical equivalent of an artist's coloring palette, as one can rearrange these notes into more complex sequences and add rhythmic (i.e., durational) variety to create memorable tunes.
In practice, many songs are based on scales that use only a smaller subset of the twelve notes in the chromatic scale. These scales have different names depending on which notes are chosen. The scale we are primarily concerned with today has seven notes and is called the "minor" scale.3
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
2022 U.S. App. LEXIS 6229 *; 28 F.4th 87
Marcus Gray, PKA Flame; EMANUEL LAMBERT; CHIKE OJUKWU, Plaintiffs-Appellants, v. KATHERYN ELIZABETH HUDSON, PKA Katy Perry; JORDAN HOUSTON, PKA Juicy J; LUKASZ GOTTWALD, PKA Dr. Luke; SARAH THERESA HUDSON; KARL MARTIN SANDBERG, PKA Max Martin; HENRY RUSSELL WALTER, PKA Cirkut; KASZ MONEY, INC.; CAPITOL RECORDS, LLC; WB MUSIC CORP.; KOBALT MUSIC PUBLISHING AMERICA, INC., Defendants-Appellees.
Prior History: [*1] Appeal from the United States District Court for the Central District of California. D.C. No. 2:15-cv-05642-CAS-JC. Christina A. Snyder, District Judge, Presiding.
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Copyright Law, Statutory Copyright & Fixation, Protected Subject Matter, Architectural Works, Subject Matter, Original Works of Authorship, Scope of Protection, Scope of Copyright Protection, Collective & Derivative Works, Civil Procedure, Appeals, Standards of Review, De Novo Review, Civil Infringement Actions, Summary Judgment, Burdens of Proof, Judicial Review, Standards for Granting Summary Judgment, Copying by Defendants, Substantial Similarity, Extrinsic Tests, Elements, Ownership, Originality Requirement, Quantum of Originality, Intrinsic Tests, Ordinary Observer Test, Limited Protection for Factual Works, Literal Forms of Expression, Trials, Jury Trials, Province of Court & Jury, Constitutional Copyright Protections, Copyright Clause, Presumptions, Originality, Originality Requirement, Governments, Courts, Authority to Adjudicate, Judgments, Entitlement as Matter of Law