Marcus Gray et al. v. Katy Perry et al. was a copyright infringement lawsuit against Katheryn Elizabeth Hudson ("Katy Perry"), Jordan Houston ("Juicy J"), Lukasz Gottwald ("Dr. Luke"), Karl Martin Sandberg ("Max Martin"), Henry Russell Walter ("Cirkut"), Capitol Records and others, in which the plaintiffs Marcus Gray ("Flame"), Emanuel Lambert ("Da' T.R.U.T.H.") and Chike Ojukwu alleged that Perry's song "Dark Horse" infringed their exclusive rights in their song "Joyful Noise" pursuant to 17 U.S.C § 106..
The focus of the similarity was a short descending pattern known in music as an "ostinato".Gray v. Perry, No. 2:15-cv-05642 (C.D. Cal.), Wais Declaration in Support of Motion for Summary Judgment, Exhibit 3 Expert Report of Todd Decker (April 6, 2017) In both songs, a short ostinato is used repeatedly to form part of the beat of each song and both ostinatos share similar descending shapes. Gray et al. claimed that the instrumental beat of the ostinato in "Joyful Noise" was protectable original expression and that Perry et al. had access to and copied the ostinato when composing "Dark Horse."
On March 16, 2020, Judge Christina A. Snyder ultimately found that Gray et al. had failed to satisfy the extrinsic test for substantial similarity, overturning a previous jury verdict which had sided with the plaintiffs. Snyder's ruling was affirmed on appeal.
Background "Joyful Noise" was released in 2008 as a part of the album Our World: Redeemed which debuted at No. 5 on the Billboard Top Gospel Chart in 2008 and was nominated for a Grammy Award for Best Rock or Rap Gospel Album. "Joyful Noise" was extensively played on Christian Radio, and was nominated for the 40th GMA Dove Awards. The track itself peaked at Position 9 on the Billboard Gospel Digital Song Sales chart in 2011, following which, its music video versions were released garnering more than 4 million views at the time of the suit and around 10 million till date.
In September 2013, Capitol Records released the "Dark Horse" song as a promotional single from Perry's album, entitled Prism. By January 2014, it had reached Number 1 on the Billboard 100 chart, where it remained for weeks.
In both songs, a short ostinato is used repeatedly to form part of the "beat" of each song and both ostinatos share the same descending shape, though the ostinato of "Joyful Noise" uses three notes, while that of "Dark Horse" uses four.
The defendants alleged that public distribution of CDs of Prism, duplication and uploading of digital versions of defendants' song on websites for purchase, as well as public performance of the song at various concerts and events by the plaintiff violated their copyright in "Joyful Noise". In addition, Capitol Records prepared the music video of defendants' song and arranged for its commercial syndication and publication on YouTube and other commercial sites.
The defendants emphasized that unauthorized copying, distribution, and public performance of "Joyful Noise" caused them damage and irreparable harm, and requested permanent injunctive relief since the defendants failed to cease infringing activities despite notice of infringement.Gray v. Perry, No. 2:15 CV-05642 CAS JC (C.D. Cal.), Complaint (July 1, 2014) They also asserted reputational harm for "Joyful Noise" being falsely associated with anti-Christian witchcraft, paganism, black magic, and Illuminati imagery evoked by the "Dark Horse" song. Apart from equitable relief, the defendants sought monetary damages, defendant's profits, interest, costs and reasonable attorney's fees, and requested a jury trial.
Summary judgment In August 2018, U.S. District Judge Christina A. Snyder denied the defendants’ motion for summary judgment, finding existence of genuine issues of material facts as to questions of defendant's access to the plaintiff's song, and substantial similarity between the "Dark Horse" and "Joyful Noise".
Access The defendants asserted that there was a high burden to show widespread dissemination and popularity, which had not been met. In response, the plaintiffs pointed to evidence showing that prior to the creation of "Dark Horse", videos of "Joyful Noise" had amassed nearly four million online views on YouTube and Myspace, and enjoyed popularity and acclaim in the Christian music industry.Gray v. Perry, No. 2:15-cv-05642 (C.D. Cal.), Memorandum in Opposition to Notice of Motion and Motion for Summary Judgment (July 16, 2018) The writers of "Dark Horse" said they never viewed "Joyful Noise", nor had they heard of the plaintiffs previously. The defendants averred lack of commercial success,Loomis v. Cornish, 2013 U.S. Dist. LEXIS 162607, at *41 (C.D. Cal. November 13, 2013), affirmed, and urged the court to discount the importance of online views on mentioned platforms since they don't show the actual number of unique human views.Gray v. Perry, No. 2:15-cv-05642 (C.D. Cal.), Defendant's Memorandum in Support of Motion for Summary Judgment (June 25, 2018).
The court disagreed with the defendants, holding that the plaintiffs only needed to show a reasonable possibility of access to the protected work for showing a genuine issue for trial,. and found such possibility to exist due to widespread dissemination of "Joyful Noise". While the court agreed that mere posting of a video on online platforms was insufficient to show access, it sided with the plaintiffs, reasoning that, although the plaintiffs had not shown evidence of commercial success, they had demonstrated a triable issue of fact as to access because "Joyful Noise" achieved critical success, including a Grammy nomination, and was readily available and viewed millions of times on YouTube and Myspace.
The court likewise rejected the argument pertaining to unsatisfactory rebuttal of the defendants' evidence of independent creation, noting that "the strength of defendants' evidence for independent creation is a factual issue for the jury to determine at trial, and is not an issue suited for determination at [the summary judgment] stage."
Substantial similarity The court mentioned that for the purposes of summary judgment, only the extrinsic test was important because the subjective question of intrinsic similarity must be left to the jury.
The plaintiffs submitted, through their musicologist Todd Decker, that the songs shared "five or six points of similarity"; specifically, the ostinatos, which were either identical in both songs, or nearly similar in their phrase length, rhythm, pitch content, and timbre.
The defendants attempted to convince the judge otherwise through the report of their own expert, arguing that the two songs shared no significant similarities beyond generic elements. They argued that commonplace elements are not copyrightable to begin with because they are part of the inventory of fundamental musical ideas.Gray v. Perry, No. 2:15-cv-05642 (C.D. Cal.), Wais Declaration in Support of Motion for Summary Judgment, Exhibit 4 Expert Report of Lawrence Ferrera (May 5, 2017) Perry's musicologist, Lawrence Ferrera, exhibited over thirty songs composed prior to "Joyful Noise" which shared similar elements with both songs. Some of these included much older songs; "Mary Had a Little Lamb", "Jolly Old Saint Nicholas", and "Merrily We Roll Along". Ferrera also argued for a more holistic comparison of the songs' elements, not just the ostinatos themselves. Todd Decker rebutted by stating that the examples were gross generalizations about the use of ostinato, and he continued to draw arguments to plain audible similarities of the common ostinato in both songs.Gray v. Perry, Wais Declaration in Support of Motion for Summary Judgment, Exhibit 8 Response of Todd Dekker to Expert Report of Lawrence Ferrara (June 9, 2017).
Acknowledging that certain elements plaintiffs' expert relied upon to support substantial similarity may be individually unprotectable, the court reasoned that Decker's expert testimony involved identification of particular features, which in combination, could support a jury's finding of substantial similarity. The court, unconvinced by defendant's criticisms of Decker, relating to transcription of musical elements of the songs and abstraction of unprotectible elements of "Joyful Noise" prior to comparison, found a genuine issue of material fact as to substantial similarity between the two songs.
Jury trial On July 29, 2019, a nine-person federal jury, consisting of six women and three men, found that Perry, Dr. Luke, Max Martin, Cirkut, Sarah Hudson, who only wrote the lyrics, and Juicy J, who only wrote the rap, were guilty of infringement, along with Capitol Records, Warner Bros. Music Publishing, Kobalt Publishing, and Kasz Money Inc.
The defendants had testified that they had never heard "Joyful Noise", or of the plaintiffs, before the lawsuit. The plaintiffs responded that the song was widely distributed, with millions of plays on YouTube and Spotify, and reminded the jury that Perry, herself began her career from the Christian Music World. Jurors agreed, finding that the song was distributed widely enough that there was a reasonable chance that the "Dark Horse" writers had heard it.
Plaintiffs argued that there was substantial similarity between the songs since Perry and her team had copied the main beat and instrumental line of "Joyful Noise" and the same featured in a substantial part of "Dark Horse". Perry's attorney, Christine Lepera said during closing arguments of the trial that, "they're trying to own basic building blocks of music, the alphabet of music that should be available to everyone." The jury disagreed, finding that the bumping beat and riff at the heart of "Joyful Noise" were original enough to be copyrighted, handing the victory over to the plaintiffs.
Upon jury's finding of infringement, the plaintiffs asked for damages amounting to $20 million contending that "Dark Horse" was responsible for $31 million coming in to Capitol Records, counting all profits from album and live DVD on which it appeared. Capitol Records disputed that accounting for costs, their profits from the song itself, were only $650,000 and the defense lawyers argued that $360,000 was a reasonable figure for damages. The jury found that 22.5 percent of the profits from "Dark Horse" were attributable to parts of "Joyful Noise".Gray v. Perry, No. 2:15-cv-05642 (C.D. Cal.), Special Jury Verdict (August 1, 2019) On August 1, the jury decided that awarded the plaintiffs $2.78 million in damages, of which Perry herself was ordered to pay $550,000.
Motion for judgment as a matter of law In October 2019, the defendants filed an appeal against the jury verdict calling the decision "a grave miscarriage of justice".
Defendants' contentions