Copyright law protects only original authorship. A group of Christian hip-hop artists sued pop star Katy Perry, claiming one of her songs infringed on their copyright. They were awarded a multi-million dollar judgment. Perry appealed. The district court found no original elements or arrangement in the hip-hop song, and the Ninth Circuit agreed.

In a unanimous opinion by a three-judge panel, written by Circuit Judge Milan Dale Smith Jr., the Ninth Circuit affirmed the order to vacate the judgment of the U.S. District Court for the Central District of California on March 10. It found that the hip-hop song was made up of “commonplace musical elements” that were not arranged in an original way.

Plaintiff-appellants are Marcus Gray (professionally known as (PKA) Flame), Emanuel Lambert, and Chike Ojukwu. They sued Katheryn Hudson (PKA Katy Perry), Capitol Records and several others for copyright infringement in 2016, claiming that Perry’s 2013 song Dark Horse contained an “ostinato” that was identical to one used in their song Joyful Noise. An ostinato is defined as “a continually repeated musical phrase or rhythm.”

Several music experts testified at the trial, and a jury awarded the hip-hop artists $2.8 million in damages. Perry then moved for a Judgment as a Matter of Law (JMOL). The district court found the jury award to be based on evidence that was “legally insufficient as a matter of law,” since it lacked “copyrightable original expression,” and that the combination of notes “merited no more than a ‘thin’ copyright,” that does not meet the requirement of being a ‘virtually identical work.” The Ninth Circuit reviewed the JMOL and agreed.

Smith’s opinion began with a brief lesson in musical vocabulary that is needed to explain the ruling. In it, he compared a piano scale of twelve notes to an artist’s palette, explaining that both have elements that can be arranged in a variety of ways. He said there are seven relevant notes in this case and they are called a “minor scale.”

He then applied the music lesson to the facts. In 2007, Ojukwa used a music website to record a tune. He sold it to Flame, who then used it as an ostinato for Joyful Noise that became part of the Our World Redeemed album, released in 2008.

Perry recorded her Prism album, which contained Dark Horse, in 2013. It was a smash hit, leading to a music video and a Super Bowl half-time show appearance in 2015. She testified that she sampled several “short musical fragments” when she was preparing to record her new song. When her ostinato selection was compared to the one composed by Ojukwa and used by Flame, only the first six notes of the eight-note ostinato were identical, as were their rhythms, meaning each note was held for the same time.

The Circuit Judge’s opinion said that the trial court’s ruling “turned largely on testimony” by expert musicologist Dr. Todd Decker. Decker explained why he believed the combination of the elements made the two ostinatos “substantially similar.” Perry’s expert witness disagreed by explaining that Perry’s ostinatos were separated by leaps, while the hip-hop group took “step-wise motions.”

The jury in the bifurcated trial, which separately decided liability and damages, found that Dark Horse did use protected material and that plaintiffs were thus entitled to 22.5% of the profits, or $2.8 million.

Smith’s analysis followed the recap of the facts. He began with the “operative question: whether a ‘reasonable jury’ would have had a legally sufficient evidentiary basis” to find copyright infringement.” Legal precedent followed, noting that two elements are needed for a successful infringement case: ownership of a copyright and copying the original elements.

In addition, when plaintiffs fail to present “direct evidence” of copying, they must show that the defendant had “access” to the material. Even though Perry testified she had never heard Joyful Noise, the court said it was not necessary to establish access because the two songs did not satisfy the “substantially similar” requirement.

He explained that even though the jury found adequate similarity, “judges retain an important gatekeeping role in applying the law.” He went on to say that copyright does not extend to trite or commonplace musical elements. He then turned to Dr. Decker’s expert conclusion, while noting that he was “a musicologist not an expert on copyright law.” He stressed that Decker’s own admissions as well as precedents failed to show any individual copyrightable elements in Joyful Noise.

Smith concluded that the eight-note sequences, timbres, and “trite rhythms” in Joyful Noise were “outside the protection of copyright law and the “textures” of the two songs were “far too abstract to be legally cognizable.” He also explained that melodies or tunes are more deserving of copyrights than the similar pitch sequences at issue here. He cited precedent that concluded, “the chord progressions may not be individually protected” because they are basic musical building blocks.” He added that the ostinato in question “consists of a manifestly conventional arrangement of musical building blocks.” In addition, both musical “textures” and “shapes” are “nothing more than an abstraction outside the protection of copyright law.”

Back in 2016, Deana Sumanac-Johnson, a reporter for CBS News, wrote an article entitled, “You stole my song! Four historical examples of music plagiarism.” In it, she says “Lawsuits over music plagiarism seem to be especially common these days, likely because the digital availability of music makes it easier for artists to have access to millions of other people’s tracks.”

She says Johnny Cash, George Harrison, Led Zeppelin and Radiohead were all sued for copyright infringement. Cash settled out of court for $75,000, after admitting he had heard Folsom Prison Blues on the radio. Harrison said he might have “subconsciously plagiarized” He’s So Fine by the Chiffons when he wrote My Sweet Lord. It cost him $1,599,987. He later said he “wasn’t consciously aware of the similarity when I wrote the song. But once it started to get a lot of airplay, people started talking about it, and it was then I thought, “Why didn’t I realize? It would have been very easy to change a note here or there and not affect the feeling of the record.”

Digital music, as the CBS reporter noted, is everywhere, as are the subconscious minds of composers, all of whom should read this opinion so they can better understand the legal sufficiency requirements of copyright law.