April 12, 2022
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Katy Perry’s 2013 hit, “Dark Horse”, caught the world’s attention, but perhaps no one more so than Marcus Gray, a Christian hip-hop artist who goes by the stage name Flame.
Gray originally brought an action in 2014, claiming an eight-note riff in “Dark Horse” plagiarized his song “Joyful Noise”. The case was first heard by a jury in 2019, which ruled in favour of Gray and awarded him damages of $2.8 million. The decision was subsequently overturned by the U.S. District Court for the Central District of California.
More recently, a decision from the U.S. Court of Appeals for the Ninth Circuit denied Gray’s claim once more. In reaching its conclusion, the Court focused on originality as the threshold. Among other things, the repeating instrumental eight-note (ostinato) in question was held to not to be a form of original expression because it was merely a basic rearrangement of common notes. As U.S. copyright law requires “original expression” to be protectable, Gray’s song failed to qualify. The Court also expressed that granting the protection which Gray sought would likely have a chilling effect on creativity and musical expression.
Many other prominent artists are also in the midst of litigation regarding the originality of their music. This decision is likely to be of importance to them, and to the many future copyright claims likely to arise in the musical arena.
Authors: Em Windrim and Awale Deria
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