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Katy Perry’s copyright win over ‘Dark Horse’ survives Ninth Circuit challenge

The appellate court affirmed a trial court's decision to upend a unanimous jury verdict in favor of Christian rapper Flame.

PASADENA, Calif. (CN) — Pop star Katy Perry beat the Ninth Circuit appeal of Christian rapper Flame who claimed Perry's 2013 hit "Dark Horse" was a ripoff of his song "Joyful Noise."

The Ninth Circuit panel on Thursday agreed with the trial judge who in 2019 vacated the $2.8 million jury award for Flame, real name Marcus Gray, because the so-called ostinato — a repeating musical figure — he accused Perry of infringing simply wasn't original enough to merit copyright protection.

"Copyright law protects musical works only to the extent that they are 'original works of authorship,'" U.S. Circuit Judge Milan Smith Jr., a George W. Bush appointee, wrote for the panel. "The ostinatos at issue here consisted entirely of commonplace musical elements, and the similarities between them did not arise out of an original combination of these elements."

The Ninth Circuit followed the pattern set by its 2020 en banc decision in a copyright lawsuit against Led Zeppelin over the opening chords of "Stairway to Heaven," where it set limits to the kind of claims that can be brought over similarities involving commonplace musical elements. That ruling was considered a big win for the music industry and major recording artists who increasingly are forced to defend lawsuits over minor similarities with preexisting works.

In the "Dark Horse" case, the appellate court found that the portions of the "Joyful Noise" ostinato that overlapped with that of Perry's song consisted of a "manifestly conventional arrangement of musical building blocks."

Michael Kahn, the attorney representing Flame, said the rapper and his co-writers are considering their options.

"After several prior decisions by the Ninth Circuit carefully articulating the proper instructions for a jury in these cases, we are disappointed by this rejection of an unanimous verdict by a properly instructed jury," Kahn said in an email. "And the notion that this simple, original, and clearly distinctive 8-note melody can’t be protected by copyright runs contrary to a series of simple and clearly distinctive 8-note opening melodies, including Dave Brubeck’s 'Take Five,' The Rolling Stones’ 'Satisfaction,' and, of course, the 8-note opening to Beethoven’s Fifth Symphony."

Flame claimed in his 2015 lawsuit that Perry copied the beat from “Joyful Noise” without permission and tarnished the work by adding images of witchcraft and paganism in the music video for “Dark Horse.” The artist and his co-creators said their song had 4 million views on YouTube, 1 million on MySpace and that it received both a Dove Award and a Grammy nomination.

Perry told the jury at the opening of the trial that she never had heard “Joyful Noise” and it never factored into the creative process for her hit song.

“My goal has always been to be a messenger of authenticity and to share that in three-minute songs,” said Perry, who was born Katheryn Elizabeth Hudson in Santa Barbara, California, to parents who were Pentecostal pastors.

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