Judgement against singer for copyright infringement vacated as a matter of law. GRAY v. PERRY

A copyright is a set of exclusive rights granted to the creator of a new work of expression. When a creator fixes a work in a tangible medium they are automatically granted a copyright to the work. The creator can strengthen the rights associated with the copyright in the United States by registering the work with the United States Copyright Office, but registration is not a condition precedent to the grant of a copyright. The owner of a copyright is granted the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original, if someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement. A copyright owner can combat copyright infringement by requesting an injunction from a court and damages can be awarded to a copyright owner that successfully demonstrates copyright infringement.

The purpose of copyright law is to promote the progress of useful arts and science by protecting the exclusive right of creators to benefit from their works. Works protected by copyright include, books, maps, movies and music. Inspiration for a new work is frequently drawn from an earlier work. Therefore copyright law will excuse a certain amount of borrowing from earlier works. When a significant portion of a new work borrows from an old work, the concept of fair use is relevant. When a trivial portion of an old work appears in a new work, the concept of De Minimis Use becomes relevant. However if the portion of the copyrighted work that was allegedly infringed is not protectable because it is not original, then copyright infringement has not occurred.

To prove copyright infringement, a plaintiff must establish (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. This kind of copying can be proven either with direct evidence that the defendant actually copied the work, or by showing that the defendant had access to the work and (ii) that the works are substantially similar.

Although there is generally a low bar for originality in copyright, musicians can only use a limited number of notes and chords to make pleasant music and common themes frequently reappear in various compositions, therefore many if not most of the elements that appear in popular music are not individually protectable.

Courts in musical copyright cases have a significant obligation to strike a balance between creative freedom and the Copyright Act to encourage artists to build freely upon the ideas and information conveyed by a work. At the same time courts must motivate creative activity, by carefully limiting the scope of copyright protection to truly original expression only. If two different works share the same elements, but those elements are not original, then a defendant is not liable for copyright infringement.

MARCUS GRAY v. KATY PERRY, 2:15-cv-05642 (C.D.CA 2015) is a case that illustrates two different musical works that were found to be substantially similar but copyright infringement did not occur. The plaintiff in this case, Marcus Gray, wrote a song entitled Joyful Noise. The plaintiff claimed that Katy Perry’s song Dark Horse infringed on it because the two songs shared nine similar sequences of musical notes. The jury in the trial sided with the plaintiff and awarded a judgement of $2.8 million for copyright infringement.

The defendant motioned for judgement as a matter of law on a number of points, the primary point being the series of notes allegedly copied were not original enough to qualify for copyright protection. The judge in the case found, as a matter of law, that copyright infringement had not occurred and vacated the jury’s verdict.

The judge did not contradict the jury’s factual findings that the two songs sounded similar. But the judge did find that the elements that the two songs shared were not original enough to qualify for copyright protection. The judge noted that the plaintiff’s expert witness showed that the plaintiff’s song and the defendant’s song shared nine different musical elements, however the expert witness failed to explain how those elements were original enough to qualify for copyright protection. Because the elements were not original, the judge found that as a matter of law the plaintiff failed to prove copyright infringement had occurred.

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