Katy Perry vs. Marcus Gray: The Dark Horse Verdict and Appeal

The Katy Perry “Dark Horse” copyright case ended with Perry keeping her song and paying nothing. A federal jury in 2019 found that “Dark Horse” infringed the copyright of Marcus Gray’s 2008 track “Joyful Noise” and awarded $2.8 million in damages, but the trial judge threw the verdict out, and the Ninth Circuit Court of Appeals affirmed that reversal in March 2022. The courts concluded that the short repeating musical pattern at the center of the lawsuit was built from commonplace elements that copyright law does not protect.¹

Who Sued and What They Claimed

Marcus Gray, a Christian rapper who performs as Flame, released “Joyful Noise” in 2008 on his album Our World Redeemed. Perry released “Dark Horse” in 2013 on Prism, and it became one of the biggest pop singles of the year. In 2014, Gray and co-authors Emanuel Lambert and Chike Ojukwu filed suit in the Central District of California against Perry (whose legal name is Katheryn Hudson), producers Dr. Luke, Max Martin, and Cirkut, songwriter Sarah Hudson, rapper Juicy J, and Capitol Records.¹

Gray’s team argued that “Dark Horse” borrowed a distinctive repeating beat from “Joyful Noise” and that Perry’s collaborators had the opportunity to hear the earlier song. “Joyful Noise” never got major radio play, but it drew millions of views on YouTube and streams on Gray’s MySpace page, and the plaintiffs pointed to overlapping industry circles as evidence of access.¹

The Musical Pattern at the Center of the Case

The disputed element was an ostinato, a short musical phrase that repeats throughout a song. Both tracks featured eight-note ostinatos built on the minor scale, played by synthesizers and looping under the vocals for much of each song. The “Dark Horse” ostinato used the minor scale degrees 3-3-3-3-2-2-1-5. The “Joyful Noise” ostinato used two slightly different eight-note patterns, one corresponding to 3-3-3-3-2-2-2-1 and a variation. Both used a completely uniform rhythm, with every note the same duration, and both created a dark, brooding atmosphere through similar synth tones.¹

The plaintiffs’ expert musicologist, Dr. Decker, testified that the two ostinatos shared similarities in length, rhythm, melodic content, melodic shape, timbre, and placement within each mix. He acknowledged that no single similarity would have been enough on its own; his conclusion rested on the combination. Gray’s team argued that this specific arrangement of shared characteristics created something original and protectable. The defense countered that these were generic musical ingredients available to any songwriter.¹

The Jury Verdict and $2.8 Million Award

The case went to a bifurcated jury trial in the Central District of California from July 17 to August 1, 2019, with separate phases for liability and damages. The jury found Perry and the other defendants liable for copyright infringement and awarded $2.8 million.¹

The damages were apportioned among the defendants. Perry was personally responsible for roughly $550,000. Capitol Records was liable for approximately $1.2 million. The remaining balance was split among the other producers and songwriters. Under federal copyright law, a plaintiff must prove the defendant’s gross revenue, and the defendant then bears the burden of showing what portion of those profits came from factors other than the infringement.²

Why the Judge Threw Out the Verdict

The victory did not last. After the trial, the defendants moved for judgment as a matter of law, a procedural tool that lets a judge override a jury verdict when the evidence was legally insufficient to support it. U.S. District Judge Christina A. Snyder granted the motion and vacated the entire $2.8 million award.¹

Snyder’s reasoning had two layers. First, she concluded that none of the individual similarities Dr. Decker identified qualified as protectable original expression. A minor scale pattern, a uniform rhythm, and a particular synthesizer timbre are standard musical tools. Federal law protects “original works of authorship” but explicitly excludes ideas, procedures, and systems from protection, and elements that are commonplace within a genre cannot be monopolized by any single artist.³

Second, she found that the combination of those elements did not rise to the level of originality either. Even if it did, the resulting protection would be “thin,” meaning the plaintiff would have to show the two ostinatos were virtually identical. The objective differences between the two patterns prevented that finding.¹

Thin Copyright Protection Explained

When a work combines elements in a way that offers only a narrow range of creative expression, it receives thin copyright protection, and a plaintiff has to show the two works are virtually identical to prove infringement. Works with a broader range of creative choices get broader protection, where substantial similarity is enough. Snyder concluded that even if the “Joyful Noise” ostinato had some minimal protection, it would be thin at best.¹

The Ninth Circuit Affirms in 2022

Gray and his co-plaintiffs appealed. On March 10, 2022, a three-judge panel of Judges Clifton, Milan Smith, and Watford issued a unanimous opinion affirming the district court.¹

The appellate court walked through each shared musical characteristic and found them all commonplace. The minor scale itself is one of the most fundamental structures in Western music. The descending melodic shape within a minor scale is a pattern composers have used for centuries. A uniform rhythm where every note has the same duration is among the simplest rhythmic choices a musician can make. The court compared the twelve notes of the chromatic scale to an artist’s color palette and said rearranging those notes into simple sequences does not create something original enough for copyright protection.⁴

The panel also rejected the argument that combining these commonplace elements created something original. Where the individual ingredients are generic and the way they are combined is itself standard, the combination does not cross the originality threshold. Granting protection there, the court said, would expose artists to lawsuits whenever they used simple melodic patterns that have long been part of the shared musical vocabulary.¹

How This Compares to the Blurred Lines Case

The outcome stands in sharp contrast to Williams v. Gaye. In that case, a jury found that Robin Thicke and Pharrell Williams infringed the copyright of Marvin Gaye’s “Got to Give It Up” with their 2013 hit “Blurred Lines” and awarded the Gaye family over $5 million. The Ninth Circuit largely upheld that verdict on appeal. The decision alarmed much of the music industry because it appeared to extend copyright protection to a song’s overall groove or feel, rather than limiting it to specific notes and melodies.

The “Dark Horse” case followed a different path because the district judge and the Ninth Circuit were willing to scrutinize which musical elements actually deserve protection. Rather than deferring to the jury’s impression of similarity, the courts examined each claimed similarity against the originality requirement that copyright law demands. The result: Gray and his co-plaintiffs walked away with nothing after nearly a decade of litigation, and the ruling gave songwriters some reassurance that ordinary melodic building blocks cannot become the private property of whoever recorded them first.

1
Justia. Gray v. Hudson, No. 20-55401 (9th Cir. 2022)
2
United States Courts for the Ninth Circuit. Copyright – Damages – Defendant’s Profits
3
Office of the Law Revision Counsel. 17 USC 102 – Subject Matter of Copyright
4
United States Court of Appeals for the Ninth Circuit. Gray v. Hudson, No. 20-55401