Elizabeth S. Lachman
PUTTING THE "DARK HORSE" BACK IN THE BARN: NINTH CIRCUIT CONFIRMS A DISTRICT COURT’S GATEKEEPING ROLE IN COPYRIGHT CASES
On March 10, 2022, the Ninth Circuit upheld a District Court’s vacatur of a jury verdict which found that pop music star Katy Perry’s 2013 hit "Dark Horse" infringed the copyright of "Joyful Noise," a Christian hip hop recording released in 2008 by Flame.1 The unanimous jury verdict, which awarded plaintiffs $2.8 million in damages, found that an eight-note ostinato in "Dark Horse"âan ostinato is a repeating musical phraseâis substantially similar to the ostinato that plays throughout "Joyful Noise" and that defendants had a reasonable opportunity to hear "Joyful Noise" before composing "Dark Horse."2 Occurring in the Summer of 2019, the 12-day jury trial focused heavily on expert testimony by musicologists on both sides. After the unanimous jury verdict, defendants renewed their Rule 50 motion for judgment as a matter of law, arguing, among other things, thatâas a matter of lawâthe "Joyful Noise" ostinato was comprised of commonplace musical building blocks and thus was not original and not protectable under copyright law, and that no reasonable jury could have found otherwise. The District Court, methodically conducting the ostensibly objective extrinsic analysis required in all copying cases, agreed and vacated the jury verdict.3 In the end, the Ninth Circuit affirmed. So, how did an issue that could have been decided as a matter of law instead wind its way through more than five years of litigation and a 12-day jury trial leading to a nearly $3 million unanimous jury verdict, and, no doubt, multiples of that in attorney’s fees? The case is not so much a cautionary tale as it is a representative example of how copyright cases in general, and music copyright cases specifically, are particularly susceptible to escaping early adjudication and becoming long and expensive despite their ability to be dismissed as a matter of law on the basis of ostensibly objective criteria.
First, let’s break down the District Court opinion granting defendants’ Rule 50 motion. In a thoughtful and meticulous 32-page opinion, California Central District Court Judge Christina Snyder methodically performed the substantial similarity analysis, which is comprised of "a two-part test of extrinsic similarity and intrinsic similarity."4 Critically, "[t]he extrinsic test raises a question of law that ‘may often be decided as a matter of law’ by the court."5 It is an ostensibly