Last July, a jury ruled that Katy Perry and her co-writers had plagiarized the Christian rap song Joyful Noise by Marcus “Flame” Gray in Perry’s creation of the 2013 hit Dark Horse; Perry was ordered to pay a $2.8 million penalty. The jury verdict was met with wide criticism; one songwriter emphasized that despite the similarities, no one person should be able to own the musical elements as they represent “fundamental aspects of pop music”.[1]The New York Times framed the debate centered around verdicts like the one reached as a “penalty for making use of generic musical elements, like a song’s beats and feel”.[2] Perry and the Dark Horsecreative team appealed the ruling, and on March 17, 2020, the Central District of California overturned the jury verdict, relying on the Ninth Circuit’s en banc Led Zeppelin decision.

Proof of copyright infringement requires the plaintiff to show: (1) that they own a valid copyright; and (2) that defendant copied protected aspects of the work. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). The second prong of the infringement analysis contains two separate components: “copying” and “unlawful appropriation.” In order to show unlawful appropriation, the plaintiff must show that the works share substantial similarities. Only substantial similarity in protectable expression may constitute actionable copying that results in infringement liability; “it is essential to distinguish between the protected and unprotected material in a plaintiff’s work.” Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004).

While recognizing that the original selection and arrangement of unprotected elements can be protectable, the Ninth Circuit, in Skidmore v. Led Zeppelin, 952 F.3d 1051, 1079 (9th Cir. 2020), cautioned that a protectable selection and arrangement of musical elements requires more than just picking and choosing a number of unprotectable elements shared by two works that are otherwise dissimilar. The Central District of California ruled that “the signature elements of the 8-note ostinato in Joyful Noise [were] not a particularly unique or rare combination” and that, applying Led Zeppelin, “it is not enough to assert a combination of unprotectable elements without explaining how the elements are particularly selected and arranged”.

Often, where plaintiffs are relying on short phrases and other musical building blocks as the alleged similarities between the works at issue, they attempt to argue that the selection and arrangement of those elements are protectable and have been unlawfully copied. But in certain genres of music, there exists a finite range of available creative choices. In those scenarios, the defendant’s work would have to be “virtually identical” to the plaintiff’s work in order to be substantially similar. Because “the range of protectable expression” in a pop music ostinato comprised of individually unoriginal elements is finite, the combination of unprotectable elements in defendant’s allegedly-infringing ostinato would necessarily have to be “virtually identical” to their counterparts in the plaintiffs’ ostinato in order to be substantially similar. The objective distinctions between Joyful Noiseand Dark Horse were clear enough to preclude a finding of the works being virtually identical. Further, the Central District of California cited to the Led Zeppelin decision concerning originality and the protectability of common elements found in music, noting that “building blocks belong in the public domain”.

While Gray still has an opportunity to appeal, it is hard to imagine that the Ninth Circuit will overrule the Central District of California’s findings, as the analysis provided in Led Zeppelin (on which they relied) has already become exceedingly influential.

In fact, the Southern District of New York has adopted the reasoning of Led Zeppelin, at least in part, in a case where pop star Ed Sheeran is alleged to have copied Marvin Gaye’s Let’s Get It On. In that case, Griffin v. Sheeran, 2020 U.S. Dist. LEXIS 52908 (S.D.N.Y. 2020), the court relied on Led Zeppelin in determining that the scope of Gaye’s copyright is limited to what is contained in the deposit copy and has undergone the copyright process; the elements of the sound recordings not included in the deposit copy are thus inadmissible. Time will tell if the Second Circuit will further adopt the reasoning laid out in Led Zeppelin, but it is already obvious that Led Zeppelin will be influential in shaping musical copyright litigation moving forward.

• [1] See https://www.vox.com/culture/2019/7/30/20747100/katy-perry-dark-horse-joyful-noise-copyright-2-8-million

• [2] See https://www.nytimes.com/2019/07/29/arts/music/katy-perry-dark-horse-copyright.html