On March 10, 2022, the Court of Appeals for the Ninth Circuit held in Gray v. Hudson,[1] that an eight-note ostinato allegedly copied by defendants lacked originality to warrant copyright protection, affirming a district court ruling.
Plaintiffs Marcus Gray (aka Flame), Emanuel Lambert, and Chilke Ojukwu form the three-member Christian hip-hop group known as Joyful Noise. They alleged defendant, among others, Katheryn Hudson (aka Katy Perry) copied a repeating eight-note ostinato found in Joyful Noise’s 2008 album for Perry’s 2013 song “Dark Horse.” The plaintiffs sued defendants for copyright infringement and a jury found for the plaintiffs, awarding $2.8 million in damages. However, the district court vacated the jury award and granted defendants’ motion for judgment as a matter of law holding that the evidence presented at trial was insufficient to show the Joyful Noise ostinato as an original copyrightable expression.
Both the Joyful Noise and Dark Horse ostinatos are founded in the minor scale and each contains an eight-note sequence. The Dark Horse ostinato contains eight notes (or 16 notes, when repeated), corresponding to the minor scale degrees 3-3-3-3-2-2-1-5. The Joyful Noise ostinato contains two different eight-notes corresponding to 3-3-3-3-2-2-2-1/6; the last 2-1 notes are played in the first eight notes, and the last 2-6 notes are played in the second eight notes.
The 9th Circuit panel was composed of Judges Milan Smith, Richard Clifton, and Paul Watford, with Judge Smith writing for an unanimous court. The panel agreed with the district court, holding that the Joyful Noise ostinato lacked originality, and therefore, copyright protection. The panel, however, did not rule on the district court’s alternative holding that the Joyful Noise ostinato was a product of the “thin” copyright protection doctrine and as such was only afforded protection under copyright right law through “virtually identical” infringement.[2]
Copyright law protects original, creative works of authorship fixed in a tangible medium of expression.[3] Even before there is a substantial similarity analysis, the 9th Circuit determines whether a copyright is entitled to “broad” or “thin” protection.[4]
Originality is the primary issue in thin copyright cases. The originality requirement is usually a low bar to meet. However, as Judge Smith noted:
Even in the face of this low threshold, copyright does require at least a modicum of creativity and does not protect every aspect of a work; ideas, concepts, and common elements are excluded. Nor does copyright extend to common or trite musical elements, or commonplace elements that are firmly rooted in the genre’s traditions. These building blocks belong in the public domain and cannot be exclusively appropriated by any particular author.[5]
This paragraph is consistent with the scènes à faire doctrine in copyright law which does not extend copyright protection to merely commonplace or background ideas.[6] For musical works, minor scales, according to the 9th Circuit, are merely common building blocks for musical compositions that lacked the requisite originality for copyright protection.
The court made extensive critiques of the testifying experts at trial, even noting that both experts testified as to the similarity of the same eight-note sequence as an evenly played rhythm was only a trite musical composition lacking originality. Judge Smith was more pointed with the plaintiff’s expert, when he testified that there was similarity between the Joyful Noise and Dark Horse ostinatos, in which both were created by use of synthesizers, had similar timbres, and maintained high registers. Judge Milan flatly noted:
A copyright to a musical work does not give one the right to assert ownership over the sound of a synthesizer any more than the sound of a trombone or a banjo. In fact, he noted that the use of synthesizers has been used to accompany vocal performances throughout the history of pop music.[7]
Further, Judge Smith noted there was a difference between a “melody” and a “pitch sequence.” A melody is a series of sequences rhythmically organized to create an aesthetic whole song, while a “pitch sequence” is more an abstraction of chord progressions. A melody is afforded copyright protection due to the originality required for its creation; a pitch sequence is but a small part of a melody, just like an ostinato. Judge Smith even noted the U.S. Copyright Office’s compendium of practices notes an “abstract eight-note pitch sequence that is a component of a melody is not [protected by copyright].”[8] Then, “chord progressions are not individually protected because they are basic musical building blocks.”[9] Since chord progressions are just a combination of pitch sequences playing simultaneously, the pitch sequences forming the chord progressions cannot be protected by copyright, either.
The Joyful Noise and Dark Horse ostinatos are similar in that both employ the progression 3-3-3-3-2-2 in flat rhythms. This by itself lack any originality since the sequence is just a two-note chord in descending minor scale, with occasional repeating notes. Granting copyright protection over this two-note sequence would establish an unholy monopoly over this two-note pitch sequence. This would be the opposite policy of enhancing creative endeavors, preempting an entire field of musical artists from using this same two-note sequence. Judge Smith even noted that the two earlier songs – “Merrily We Roll Along” and “Jolly Old Saint Nicholas” – both utilize the same pitch sequence as the Joyful Noise pitch sequence, making plaintiffs’s song an ostinato copycat of these older songs.
Further, this case differs from another musical copyright infringement case, Williams v. Gaye,[10] in which the Estate of Marvin Gaye sued Pharrell Williams and Robin Thicke, among others, for copyright infringement of several melodic phrases, including the distinctive melisma. The 9th Circuit, in a split decision, held there was substantial similarity between Gaye’s “Got to Give it Up” and Thicke’s “Blurred Lines” songs. Judge Smith, coincidentally, authored the majority opinion in that case. Our discussion of the 9th Circuit’s opinion on the blog appears here. The Gray case is distinguished from Williams in that the alleged infringement focused on musical elements throughout the entire song “Got to Give it Up,” as opposed to the Joyful Noise ostinato which is a limited melodic phrase at the beginning of the song and selected intervals throughout the song. Under the Williams rule, the ”thin” copyright protection doctrine, then, as applied to musical compositions, would not apply to the whole work. The “thin” copyright protection doctrine is a limited doctrine in only the 9th Circuit; to date, it has not been adopted in any other federal circuit.
For more information on copyright law, please contact Yonaxis I.P. Law Group.
[1] ___F.4th___ (9th Cir. 2022), aff’g Gray v. Perry, Case No. 2:15-CV-05642-CAS-JC (C.D. Cal. Mar. 16, 2020).
[2] See Gray, slip op. at 11; see also Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1445 (9th Cir. 1994), Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003) (both cases first enunciated the 9th Circuit’s “thin” copyright doctrine and “virtually identical” standard for infringement in musical composition cases).
[3] See 17 U.S.C. §102(a); Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).
[4] See Desire, LLC v. Manna Textiles, Inc., 986 F.3d 1253, 1260 (9th Cir. 2021).
[5] See Gray, slip op. at 15; see also Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051, 1069 (9th Cir. 2020) (en banc).
[6] See Joshua Ets-Hokin v. Skyy Spirits Inc., 225 F.3d 1068 (9th Cir. 2000)
[7] See Batiste v. Najm, 28 F. Supp. 3d 595, 623 (E.D. La. 2014).
[8] U.S. Copyright Office, Compendium of U.S. Copyright Office Practices, §313.4(C) (3d ed.2021).
[9] See Swirsky v. Carey, 376 F.3d 841, 848 (9th Cir. 2004).
[10] See 895 F.3d 1106 (9th Cir. 2018).