MSK Wins Reversal of “Dark Horse” Copyright Verdict

Written by Christine Lepera, Jeffrey M. Movit and Gabriella Nourafchan

Last July, a team of MSK attorneys represented Defendants in a copyright infringement trial involving allegations that the ostinato (a musical phrase that repeats) in Katy Perry’s 2013 song “Dark Horse” infringed the ostinato in Plaintiffs’ Christian rap song entitled “Joyful Noise.”  After the jury returned a verdict in favor of Plaintiffs, MSK filed a motion seeking reversal, or in the alternative, a new trial.

This week, the Court granted MSK’s motion, overturned the jury verdict, and entered judgment in Defendants’ favor.  The Court found that Plaintiffs’ copyright claim failed because the ostinato in “Joyful Noise” was commonplace expression that no music creator can monopolize.  The Court also found that, since the “Joyful Noise” ostinato was, at best, a combination of these indisputably commonplace elements, the ostinato would be entitled to, at most, “thin” copyright protection, which requires “virtual identity” between the two phrases at issue in order for there to be infringement.  This is a significant win for the music industry and for music creators, and confirms that the “thin” copyright doctrine applies to musical works.

Additional coverage of the decision can be accessed here.

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