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Katy Perry Wins Appeal in “Dark Horse” Case over Copyrightability of “Musical Building Blocks”

"Allowing a copyright over this material would essentially amount to allowing an improper monopoly over two-note pitch sequences or even the minor scale itself"

katy perry copyright dark horse flame joyful noise
Katy Perry’s “Dark Horse” video
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    The similarities between the eight-note sequences are undeniable. But on Thursday, a prominent federal appeals court ruled that Katy Perry’s 2013 hit “Dark Horse” did not infringe on the copyright of Christian rapper Flame’s “Joyful Noise,” writing that, “Allowing a copyright over this material would essentially amount to allowing an improper monopoly” over basic “musical building blocks.”

    The question has been litigated repeatedly, ever since Flame (born Marcus Gray) first sued Perry in 2014. In 2019, a jury sided with “Joyful Noise,” and Perry and her co-defendants Dr. Luke and Capitol Records were ordered to pay a $2.8 million penalty. Perry took her cause to a higher court, winning her appeal in 2020. Now, the U.S. Court of Appeals for the Ninth Circuit has declined to reinstate the $2.8 million penalty, and unless the Supreme Court decides to hear the case (unlikely), there will be no more chances to flog this “Dark Horse.”

    In a 3-0 decision, the Ninth Circuit wrote, “The portion of the ‘Joyful Noise’ ostinato [repeated musical phrase] that overlaps with the ‘Dark Horse’ ostinato consists of a manifestly conventional arrangement of musical building blocks.” The ruling added, “Because the use of similar pitch sequences in the ‘Joyful Noise’ and ‘Dark Horse’ ostinatos results only from the use of commonplace, unoriginal musical principles, it cannot be the basis for a copyright infringement claim on its own.”

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    Because the Ninth Circuit has jurisdiction over much of the western United States, including California, it is one of the country’s most influential courts for entertainment and copyright law. “I think anybody who has a claim pending against them will want their case to consider this language, especially in California federal courts,” Kevin Casini, a member of the Recording Academy who teaches courses on copyright law at Quinnipiac University School of Law, told Consequence. “The Ninth Circuit deals with a lot of this and their opinions are widely respected.”

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