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Katy Perry’s song-theft accuser presents key arguments to Ninth Circuit appeals court

By | Published on Thursday 15 October 2020

Katy Perry

The rapper who accused Katy Perry of ripping off his song ‘Joyful Noise’ on her hit ‘Dark Horse’ has submitted a new brief with the Ninth Circuit appeals court. He cites music by both Beethoven and the Rolling Stones in a bid to demonstrate that the musical segment shared by his song and Perry’s hit is substantial enough to be protected by copyright.

Marcus Gray actually convinced a jury in the Californian district court that ‘Dark Horse’ infringed ‘Joyful Noise’, with Perry and her collaborators ordered to pay Gray and his team $2.8 million in damages. But then the judge overseeing the case overturned the jury’s decision.

While the jury had concluded that Perry et al had lifted elements of ‘Joyful Noise’ without permission when writing ‘Dark Horse’, judge Christina Snyder said that the Gray team’s legal arguments nevertheless failed as a matter of law.

She wrote in March that “the uncontroverted evidence points to only one conclusion”, that being that the musical element shared between ‘Joyful Noise’ and ‘Dark Horse’ – a repeated eight-note melodic phrase – was not substantial enough to enjoy copyright protection.

In Gray’s new legal filing, he states: “The district court erroneously asserted that ‘a pitch sequence … is not entitled to copyright protection’. Perhaps the district court didn’t understand that a pitch sequence is the technical term for a sequence of musical notes, ie a melody. Copyright most definitely protects original melodies, and especially distinctive eight-note melodies that repeat throughout a song”.

Insisting that similar and indeed shorter melodic phrases have enjoyed copyright protection, Gray argues that “the music world is filled with examples of famous, distinctive and unquestionably original eight-note two-bar repeating melodies that are as simple, if not simpler, than the one at issue here”.

“One doesn’t need a PhD in musicology to understand that distinctive originality of the repeating two-bar guitar riff that opens and then repeats throughout the Rolling Stones song ‘(I Can’t Get No) Satisfaction’. Or, from an earlier era, the even simpler (yet unquestionably distinctive) eight-note motif that opens and repeats in Beethoven’s ‘Fifth Symphony'”.

Gray’s filing concludes: “In short, the district court’s erroneous statement of law that pitch sequence (ie a melody) ‘is not entitled to copyright protection’ … undermines its ruling”.

A response from the Perry side is now expected next month. Despite Gray’s arguments, Perry et al will be hoping that the recent resolution of the ‘Stairway To Heaven’ song-theft case, which likewise said that common musical elements employed in multiple songs cannot be protected by copyright, will help swing things in their favour.

It will be interesting to see what arguments they present and what the appeals court ultimately says.