No. 2:15-cv-05642 (C.D. Cal. March 16, 2020); No. 20-55401 (9th Cir., March 10, 2022)
Marcus Gray, Chike Ojukwu, Emanuel Lambert
Comment by Charles Cronin
According to Lauren Berg’s report for Law 360, on the jury trial held in Los Angeles late July 2019, Todd Decker, the plaintiff’s expert witness, claimed that in determining musical similarity between two works, “[t]he most important tool is listening.” His statement is utterly wrong. Copyright academic and musician, Jamie Lund, has established through empirical study that most people find musical works to be similar based not on shared primary musical elements like melody, harmony, and rhythm, but rather on secondary or sonic elements like volume, timbre, instrumentation, and style. Such elements, even combined in a distinctive manner, do not constitute protectable musical expression.
There is nothing original or protectable about the musical expression at issue: a few rhythmically monotonous scalar descending notes, repeated ad nauseam. Accordingly, Decker focuses on alleged similarity of sounds. According to Berg:
“The phrases also have a similar timbre — or distinctive quality of sound — using synthesized sounds to create a “pingy,” artificial sound in the beat, Decker explained… Even the texture of the sound in the phrases, such as the number of instruments being used, is unusually “empty,” Decker said, with both introducing their beats in isolation (my emphasis). Copyright protects sounds — when they comprise an independently protectable sound recording of a musical work, whether protected or in the public domain.
Until judges recognize and curb this perfidious — or perhaps merely witless — conflating of sound and music by “expert” musicologists playing to the sympathies of bewildered jurors, we can expect a continuing blitz of meritless claims like this one, and the deleterious constraints and ambiguities they impose on popular musicians and the American music industry.
This dispute also raises the question of the significance of access in determining copyright infringement. Of course the defendants had access to the plaintiffs’ song. Today the recordings of even the most obscure performers are universally available on the Internet. Now that everyone has access to everything, access should no longer have any relevance for evaluating infringement claims involving popular music.
Finally, what to make of the plaintiffs’ claim that Perry’s song “tarnished” the devoutly religious message of theirs, with its “witchcraft, paganism, black magic, and illuminati imagery.” Presumably they’re referring not to the music or words of Perry’s song, which are entirely innocuous, but rather to the hodgepodge of pseudo-Egyptian settings, props, costumes, and horseplay deployed in the video recording of Perry’s performance – readily available without charge on the Internet…
The 2017 Opinion (below) by Judge Snyder of the District Court, Central District of California, was issued in connection with an imaginative move by Perry’s lawyers to have the court establish that Perry’s live performances of “Dark Horse” could not have infringed “Joyful Noise” because the blanket ASCAP performance license for these performances included “Joyful Noise”.
On July 29, 2019 a jury in Los Angeles found Perry, et al. liable for infringement. One can only hope on appeal “Dark Horse” Perry stifles whatever “Joyful Noise” this verdict may have elicited from the Plaintiffs.
Adam Neely, a jazz musician in New York, provides a superb denunciation of the verdict, and the expert who advised the jury, in this YouTube video.
On March 16, 2020 Judge Snyder granted Katy Perry’s Motion for Judgement as a Matter of Law, overturning the jury verdict finding her liable for infringement. As demonstrated in the Blurred Lines appeal, courts are, often regrettably, reluctant to overturn jury verdicts. Fortunately for Katy Perry, however, only weeks before Snyder ruled on Perry’s appeal, the 9th Circuit issued an influential en banc opinion in favor of Led Zeppelin, in a factually similar dispute. Following the 9th Circuit’s reasoning, Snyder ruled that Plaintiff’s claim was based on minimally original musical expression that acquires only “thin” protection. The allegedly similar expression in Katy Perry’s song would have to be “virtually identical” to the Plaintiff’s to support a colorable claim of infringement.
Needless to say, the Plaintiff appealed the District Court’s decision, filing a brief (below) at the Ninth Circuit on October 13, 2020. The highly aggrieved Appellant faults US District Judge Christina Snyder for having taken cognizance of the musicologists’ amicus brief submitted on behalf of Katy Perry. Appellant particularly objects to the musicologists having used authoritative databases of melodies to determine that the pitch sequence that the plaintiff claims Perry infringed can be found in thousands of earlier works. His brief also goes on at length about the incriminating similarity of “tambor” between the contested works (he must have meant “timbre”) an embarrassing malapropism that a spell-check should have averted.
On 11 January 2022, the Ninth Circuit heard oral arguments on the appeal, an audio/video recording of which one can access here. On 10 March 2022 the 9th Circuit published an opinion (below) by Judge Milan Smith, affirming the District Court’s overturning the jury verdict against Perry. It briefly addresses, and dismisses, the Plaintiff’s concern about Judge Snyder’s reference to the musicologists’ amicus brief mention of the many instances of “prior art” that can be found in databases of existing musical works. Because Defendants did not air that observation on appeal, the Plaintiff’s reference to it was irrelevant to the appeal court’s disposition of the case.
Opinion by Judge Christina Snyder: PDF
Defendant’s Motion for Judgment as a Matter of Law: PDF
Defendant’s Supporting Memorandum for her Motion for Judgment as a Matter of Law: PDF
Judge Christina Snyder Granting Defendant’s Motion for Judgment as a Matter of Law: PDF
Plaintiff’s [Appellants] Appeal Brief: PDF
9th Circuit Opinion by Judge Milan Smith: PDF