Katy Perry’s defeat in infringement suit leaves industry lawyers looking to the 9th Circuit

A shrug of the shoulders has increasingly become an honest response to high profile clients seeking advice on music infringement claims, some attorneys say, and decisions like the one last week against Katy Perry are the reason why.

A federal jury ordered Perry and other defendants on Thursday to pay $2.78 million to a Missouri-based Christian rapper named Marcus Gray, who performed under the name FLAME. They'd earlier held the defendants liable for ripping off 16 seconds of music from Gray's 2009 track "Joyful Noise" for use in Perry's 2013 mega-hit, "Dark Horse."

Christine Lepera, a partner at Mitchell, Silberberg & Knupp LLP who led the defense effort, said in a statement Friday the writers of "Dark Horse" see the verdicts "as a travesty of justice." Marcus Gray v. Katy Perry, 15-CV05642 (C.D. Cal, filed July 24, 2015).

"There is no infringement. There was no access or substantial similarity," Lepera said. "The only thing in common is unprotectable expression -- evenly spaced "C" and "B" notes -- repeated. People, including musicologists from all over, are expressing their dismay over this."

By the time the two-week bifurcated trial reached its halfway mark, many attorneys were already drawing parallels between Perry's ill-fated defense and the lawsuit against Robin Thicke and Pharrell Williams for their song "Blurred Lines." Williams v. Gaye, 2018 DJDAR 2555 (9th Cir., March 21, 2018).

A jury ruled in 2016 in favor of the family of Marvin Gaye, who alleged Thicke and Williams' song contained musical elements stolen from Gaye's 1977 song "Got to Give It Up." Though the verdict turned heads, the "Blurred Lines" case ascended to the top tier of music law notoriety after the 9th U.S. Circuit Court of Appeals affirmed the decision on procedural grounds.

William Hochberg, a transactional entertainment partner and litigator at Greenberg, Glusker, Fields Claman & Machtinger LLP, said the Perry verdict builds on the "Blurred Lines" decision, and "it will pack a punch as a precedent" unless overturned.

"They found liability where many would argue the only thing FLAME brought to the party was a sequence of six even quarter notes that sound like a metronome to me, a banal building block of music that shouldn't be copyrightable by itself, in my opinion," Hochberg said. "I think her legal team did an excellent job, but it seemed to all go in juror one's ear and out juror nine's."

Howard King, an entertainment litigator and managing partner at King, Holmes, Paterno & Soriano LLP, said by failing to grant summary judgment dismissal of the case, punted an incredibly complex series of questions to a team of jurors likely not well-equipped for in-depth musical analysis.

That was similarly an issue in the "Blurred Lines" case, he said, in which he served as counsel to Thicke and Williams. When juries aren't able to properly analyze music independently, he said they invariably defer to whatever expert witness they find most convincing. Defense counsel in the Perry case took issue with references by the plaintiff to the defense's expert witnesses, who they called "hired guns," reminding the jury that the plaintiffs had presented expert witnesses of their own.

"It's impossible for a jury to understand issues like apportionment for a song that made $40 million -- it's deadly, it's accounting," King said. "There is no guidance. The judges have to be the gatekeepers in these music cases."

The 9th Circuit has an opportunity to address the uncertain landscape through another high profile music infringement case currently on its docket, said Robert Jacobs, leader of Manatt, Phelps & Phillips LLP's entertainment litigation practice.

The appellate court voted to rehear the appeal of a case against Led Zeppelin for alleged infringement in their song "Stairway to Heaven" in June, following a three-judge panel's reversal of the band's district court win in 2018.

"The appeals court has an opportunity in connection with their en banc hearing of the Led Zeppelin case to lay sound ground rules and make the 9th Circuit's law more sensible," Jacobs said.

Whether jurors should hear the songs at issue themselves or a protected-by-copyright musical composition as they do currently is a primary dispute in the Led Zeppelin case; that may be an issue the panel could address.

King said he's not exceedingly hopeful about the hearing, particularly as it was requested by both plaintiff and defendant. But he noted the order approving the en banc hearing was signed by 9th Circuit Judge Jacqueline Nguyen, whose dissent in the initial appeal of the Led Zeppelin case received effusive praise from industry-side litigators, leaving some room for optimism.

Neville Johnson, an entertainment litigator who regularly represents plaintiffs as a litigator at Johnson & Johnson APC, said for all the doomsaying sparked by recent verdicts, the sky still hasn't fallen. The Perry case seemed to be a straightforward copyright issue that "wouldn't change the landscape at all."

The potential for Perry to bring an indemnity claim struck Johnson as the most interesting aspect of the case, assuming she didn't add the allegedly infringing riff herself. A case he handled years ago with a similar result prompted a dispute between the credited songwriters on the infringing track as only one of them was responsible for adding the infringing music.

"Those people have an obligation to each other not to put in infringing material," Johnson said.

Though not directly addressing whether the defense would appeal the decision in her statement, Lepera said, "We will continue to fight at all appropriate levels to rectify the injustice."