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25 Intell. Prop. & Tech. L. J. 195 (2020-2021)
Gray v. Perry - No. 2:15-CV-05642-CAS-JCx, 2020 WL 1275221 (C.D. Cal. Mar. 16, 2020)

handle is hein.journals/iprop25 and id is 207 raw text is: Gray v. Perry No. 2:15-CV-05642-CAS-JCx, 2020 WL 1275221 (C.D. Cal. Mar. 16, 2020) KIRKMAN RIDD* BACKGROUND Plaintiffs are songwriters Marcus Gray (P.K.A. Flame), Emanuel Lam- bert, and Chike Ojukwu (collectively Gray). Defendants are songwriter Katheryn Elizabeth Hudson (P.K.A. Katy Perry), her collaborators, the re- lated publishing companies, and Capitol Records LLC (collectively Perry).' In this action for copyright infringement, Gray claimed the song Joyful Noise, released by Flame, contains an ostinato (a short, repetitive musical phrase) that is protectable under copyright law, and that this ostinato was infringed upon by an ostinato in the verses of Perry's song Dark Horse.2 Both ostinatos are composed of eight evenly-spaced notes in a synthesized timbre with a descending melodic shape. Gray's song was widely dissemi- nated and nominated for a Grammy Award before Dark Horse was re- leased. Perry claimed that the ostinato at issue in Dark Horse was inde- pendently created, that the concept and feel of the two songs were not sub- stantially similar, and that Gray's ostinato did not warrant copyright protec- tion regardless of any alleged similarity between the two works. Gray presented an expert witness who testified to several similarities between the ostinatos but conceded that an eight-note ostinato such as Gray's consisted of musical elements that are commonly used in popular music. A jury found that Perry's ostinato was substantially similar to Gray's ostinato and that Perry had access to Gray's song, thus concluding that Perry infringed upon Gray's work. The jury returned verdicts finding Perry liable for copyright infringe- ment and awarded damages to Gray. Perry responded by filing a renewed motion for judgement as a matter of law, asserting that there was insufficient legal basis to support the jury's finding of copyright infringement. * Kirkman Ridd is a 2023J.D. candidate at the University of San Francisco School of Law. 1. Gray v. Perry, No. 2:15-CV-05642-CAS-JCx, 2020 WL 1275221 1, 3 (Mar. 16, 2020). 2. Dark Horse contains two ostinatos. The second in the song, the ostinato heard in the verses of the song, is at issue in this case. 195