Perry’s ‘Dark Horse’ bid ends with big win

With an assist from Led Zeppelin, Katy Perry won a photo finish win Tuesday in her dark horse bid to overturn an adverse infringement verdict.

U.S. District Judge Christina A. Snyder vacated the $2.78 million award issued to plaintiff Marcus Gray, a Christian rapper who claimed Perry's "Dark Horse" stole from his song "Joyful Noise," in a final ruling granting Perry's request for judgment as a matter of law. Negating a federal jury's August 2019 verdict, the court found Gray's case insufficient to satisfy extrinsic tests for substantial similarity.

Even viewed in a light most favorable to plaintiffs, Snyder wrote, the case failed because the signature elements of the 8-note ostinato allegedly lifted from "Joyful Noise" was not "a particularly unique or rare combination."

"The evidence submitted at trial does not support a legal conclusion that the two ostinatos are, objectively, substantially similar," Snyder wrote.

A 9th U.S. Circuit Court of Appeal opinion issued last week in a high profile infringement case over Led Zeppelin's "Stairway to Heaven" appears to have heavily influenced Snyder's decision. Snyder cites the case throughout in support of a lack of proven substantial similarity.

"It is not enough to assert 'a combination of unprotectable elements' without explaining how these elements are particularly selected and arranged," Snyder wrote.

Robert A. Jacobs, a Manatt, Phelps & Phillips LLP partner who formerly served as defense counsel in the case, said Tuesday the circuit court's recalibration of standards for substantial similarity came at a critical time.

"The Perry decision reflects a curtailing of what, previously, was pretty much an anything goes approach in terms of showing substantial similarity based on pre-existing elements," Jacobs said.

Jacobs, who leads Manatt's entertainment litigation practice, said he felt the decision also underscored the 9th Circuit's decision by limiting the relevance of other allegedly infringing elements found in Perry's track, which the plaintiffs argued proved substantial similarities between the tracks when considered in combination with the 8-note ostinato.

"When the overall differences are too significant, they're not going to give the weight to these discreet similarities," Jacobs said. "I take it that it's going to require more, though what that 'more' is remains to be determined."

Eric F. Kayira, a Missouri-based litigator for Kayira Law LLC and counsel for Gray, did not respond to requests for comment Tuesday.

Jacobs anticipated an appeal, but felt the ruling nonetheless showed how the Led Zeppelin case could be used as a workable template in music infringement cases.

"It's a pretty significant extension in the application of the reasoning from the Led Zeppelin case," Jacobs said. "The road ahead is going to determine the import and scope of that decision."

Kenneth D. Freundlich, a First Amendment litigator at Freundlich Law whose amicus brief was cited by the court multiple times in support of its decision, lauded Snyder for "fulfilling the proper judicial role in administering the extrinsic test."

"This is a welcome decision for music copyright defendants, especially those faced with a plaintiff's expert cherry picking unoriginal elements in a portion of an allegedly infringed song," Freundlich said.