throbber
FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`Marcus Gray, PKA Flame;
`EMANUEL LAMBERT; CHIKE
`OJUKWU,
`
`Plaintiffs-Appellants,
`
` No. 20-55401
`
`D.C. No.
`2:15-cv-05642-
`CAS-JC
`
`
`OPINION
`
`
`
`v.
`
`
`KATHERYN ELIZABETH HUDSON,
`PKA Katy Perry; JORDAN HOUSTON,
`PKA Juicy J; LUKASZ GOTTWALD,
`PKA Dr. Luke; SARAH THERESA
`HUDSON; KARL MARTIN SANDBERG,
`PKA Max Martin; HENRY RUSSELL
`WALTER, PKA Cirkut; KASZ
`MONEY, INC.; CAPITOL RECORDS,
`LLC; WB MUSIC CORP.; KOBALT
`MUSIC PUBLISHING AMERICA, INC.,
`Defendants-Appellees.
`
`Appeal from the United States District Court
`for the Central District of California
`Christina A. Snyder, District Judge, Presiding
`
`Argued and Submitted January 11, 2022
`Pasadena, California
`
`Filed March 10, 2022
`
`
`

`

`GRAY V. HUDSON
`
`Before: RICHARD R. CLIFTON, MILAN D. SMITH,
`JR., and PAUL J. WATFORD, Circuit Judges.
`
`Opinion by Judge Milan D. Smith, Jr.
`
`
`SUMMARY*
`
`2
`
`
`
`
`
`Copyright
`
`
`The panel affirmed the district court’s order vacating a
`
`jury’s award of damages for copyright infringement and
`granting judgment as a matter of law to Katheryn Hudson
`(pka Katy Perry) and other defendants.
`
` Christian hip-hop artists Marcus Gray (pka Flame),
`Emanuel Lambert, and Chike Ojukwu claimed that an
`ostinato, or repeating instrumental figure, in Hudson’s song
`“Dark Horse” copied a similar ostinato in plaintiffs’ song
`“Joyful Noise.”
`
`The panel held that copyright law protects musical works
`
`only to the extent that they are “original works of
`authorship.” The panel concluded that the ostinatos at issue
`here consisted entirely of commonplace musical elements,
`and the similarities between them did not arise out of an
`original combination of these elements. Consequently, the
`jury’s verdict finding defendants liable for copyright
`infringement was unsupported by the evidence because
`plaintiffs failed to put forward legally sufficient evidence
`
`
`* This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`

`

`GRAY V. HUDSON
`
`
`
`that Joyful Noise and Dark Horse were extrinsically similar
`works with respect to any musical features protectible under
`copyright law.
`
`
`3
`
`
`COUNSEL
`
`
`Michael A. Kahn (argued), Capes Sokol, Clayton, Missouri,
`for Plaintiffs-Appellants.
`
`Vincent H. Chieffo (argued), Greenberg Traurig LLP,
`California, for Defendant-Appellee Katheryn Elizabeth
`Hudson.
`
`Christine Lepera (argued), Jeffrey M. Movit, Jacob D.
`Albertson, and J. Matthew Williams, Mitchell Silberberg &
`Knupp LLP, New York, New York; Aaron M. Wais and
`Gabriella A. Nourafchan, Mitchell Silberberg & Knupp
`LLP, Los Angeles, California; for Defendants-Appellants
`Lukasz Gottwald, Sarah Theresa Hudson, Karl Martin
`Sandberg, Henry Russell Walter, Kasz Money Inc., Capitol
`Records LLC, WB Music Corp., and Kobalt Music
`Publishing America Inc.
`
`John G. Snow, King Holmes Paterno & Soriano LLP, Los
`Angeles, California,
`for Defendant-Appellee
`Jordan
`Houston.
`
`Eugene Volokh, Los Angeles, California, for Amici Curiae
`Recording Industry Association of America Inc., and
`National Music Publishers’ Association.
`
`
`

`

`GRAY V. HUDSON
`
`4
`
`Anjani Mandavia and David L. Burg, Mandavia Ephraim &
`Burg LLP, Los Angeles, California, for Amicus Curiae
`Motion Picture Association Inc.
`
`Kenneth D. Freundlich, Freundlich Law, Encino, California,
`for Amicus Curiae Musicologists.
`
`Edwin F. McPherson, McPherson LLP, Los Angeles,
`California, for Amici Curiae 110 Individual Songwriters,
`Composers, Musicians, Producers, Music Publishers, and
`Other Music Industry Professionals; Nashville Songwriters
`Association International; and Music Artists Coalition.
`
`
`
`OPINION
`
`M. SMITH, Circuit Judge:
`
`Plaintiffs Marcus Gray (pka Flame), Emanuel Lambert,
`and Chike Ojukwu are Christian hip-hop artists who have
`sued Katheryn Hudson (pka Katy Perry), Capitol Records
`LLC, and
`several other defendants
`for copyright
`infringement. They claim that a repeating instrumental
`figure—in musical terms, an ostinato—in Hudson’s song
`“Dark Horse” copied a similar ostinato in plaintiffs’ song
`“Joyful Noise.” After a trial centering around the testimony
`of musical experts, a jury found defendants liable for
`copyright infringement and awarded $2.8 million in
`damages. The district court vacated the jury award and
`granted judgment as a matter of law to defendants,
`concluding principally that the evidence at trial was legally
`insufficient to show that the Joyful Noise ostinato was
`copyrightable original expression.
`
`

`

`
`
`
`GRAY V. HUDSON
`
`5
`
`We affirm. Copyright law protects “musical works”
`only to the extent that they are “original works of
`authorship.” 17 U.S.C. § 102(a). The trial record compels
`us to conclude that the ostinatos at issue here consist entirely
`of commonplace musical elements, and that the similarities
`between them do not arise out of an original combination of
`these elements. Consequently, the jury’s verdict finding
`defendants
`liable
`for
`copyright
`infringement was
`unsupported by the evidence.1
`
`BACKGROUND
`
`I. Musical Background
`
`We begin by briefly explaining some vocabulary that we
`rely on throughout this opinion. A musical scale is
`essentially a sequence of musical notes or tones ordered by
`pitch (i.e., how “low” or “high” each note is). To illustrate
`this concept, a standard piano or keyboard instrument has
`white and black keys organized in a twelve-key repeating
`pattern. If one starts with any key on the piano and plays
`twelve white and black keys in order from left to right, she
`will have played all the notes of the “chromatic” scale in
`ascending order. That ordered sequence of twelve notes—
`which repeats itself at higher and lower registers across the
`
`1 We accept the amicus briefs submitted by (1) the Recording
`Industry Association of America and the National Music Publishers’
`Association, (2) the Motion Picture Association, (3) a group of 110
`individual songwriters and other music industry professionals, along
`with Nashville Songwriters Association International and Music Arts
`Coalition, and (4) a group of musicologists. See Dkt. Nos. 51, 54, 56,
`58. We deny as moot defendants’ motion to strike material from
`plaintiffs’ opening brief, Dkt. No. 29, because we conclude that even if
`we were to consider the purportedly improper material, we would still
`decide this case in defendants’ favor for the same reasons given in this
`opinion.
`
`

`

`GRAY V. HUDSON
`
`6
`
`keyboard—can be thought of as the musical equivalent of an
`artist’s coloring palette, as one can rearrange these notes into
`more complex sequences and add rhythmic (i.e., durational)
`variety to create memorable tunes.
`
`In practice, many songs are based on scales that use only
`a smaller subset of the twelve notes in the chromatic scale.
`These scales have different names depending on which notes
`are chosen. The scale we are primarily concerned with today
`has seven notes and is called the “minor” scale.2
`
`As with other scales, the notes in the minor scale can be
`referred to with alphabetic names (A, B, C, etc.), but the
`parties have generally opted to refer to them with numerical
`degrees indicating each note’s ordered position in the scale.
`We agree that is the more convenient approach here. The
`image below, taken from the beginning of defendants’
`answering brief, illustrates how numerical scale degrees
`correspond to different keys on a piano in the minor scale3
`(the image begins with the third note of the scale on the far
`left rather than the first note—as discussed, the notes on a
`piano repeat themselves every twelve keys in different pitch
`registers):
`
`
`2 Our discussion here is slightly oversimplified, as the minor scale
`comes in three distinct forms. However, the differences between those
`versions are not material to resolving this case. Likewise, we do not find
`it necessary for present purposes to distinguish between the concept of a
`“scale” and the related concept of a “mode,” which is also mentioned in
`the parties’ briefing.
`
`3 Specifically, the image corresponds to the natural minor scale in
`the key of A, which uses only the white keys on a keyboard.
`
`

`

`
`
`
`GRAY V. HUDSON
`
`7
`
`II. Factual Background
`
`In 2007, plaintiff Ojukwu recorded a simple tune using a
`free music website. He later sold it to plaintiff Gray, who
`used it as an ostinato (i.e., a repeating musical figure) for
`Joyful Noise. A recording of Joyful Noise first appeared in
`the album Our World Redeemed in 2008. While Joyful
`Noise did not achieve significant commercial success or
`playtime on the radio, it received millions of views on
`YouTube and Gray’s MySpace page. Our World Redeemed
`was also nominated for a Grammy award in the “Best Rock
`or Rap Gospel Album” category in 2009.
`
`Defendants created Dark Horse in 2013. Hudson’s trial
`testimony was that she met with two of her co-defendants at
`a recording studio and sampled several short musical
`fragments to consider using in a new song. The segment
`Hudson responded to most positively became the ostinato for
`Dark Horse. Dark Horse was first released on the album
`Prism along with several other tracks. It was a hit, resulting
`in a music video and a performance by Hudson at the Super
`Bowl halftime show in 2015.
`
`The following features of the two ostinatos are
`undisputed. Both ostinatos are based on the minor scale
`(although they are in different keys, meaning that they treat
`
`

`

`GRAY V. HUDSON
`
`8
`
`different notes—i.e., keys on a piano—as the first note of the
`scale). The Dark Horse ostinato is made up of eight notes
`(sixteen, when repeated) which correspond to the minor
`scale degrees 3-3-3-3-2-2-1-5, while the Joyful Noise
`ostinato is made up of two slightly different eight-note
`figures (sixteen notes when combined) that correspond to the
`minor scale degrees 3-3-3-3-2-2-2-1/6 (in other words, 3-3-
`3-3-2-2-2-1 for the first eight notes, and 3-3-3-3-2-2-2-6 for
`the second eight notes). So, while each eight-note pattern
`begins with 3-3-3-3-2-2, they differ in the last two notes.
`Leaving aside some stylistic embellishment in Joyful Noise
`(specifically, the use of portamento, or “sliding” between
`different notes), both ostinatos also rely on a completely
`uniform rhythm, meaning each note is of equal duration in
`time.
`
`III. Trial Proceedings
`
`Plaintiffs filed their operative complaint for copyright
`infringement against Hudson and her co-defendants in
`November 2016. The case proceeded to a bifurcated jury
`trial taking place from July 17, 2019, to August 1, 2019, with
`separate phases to determine liability and damages. Rather
`than putting forward direct evidence that defendants had
`copied elements of Joyful Noise, plaintiffs focused on
`circumstantial evidence that defendants had a reasonable
`opportunity to access Joyful Noise and that the ostinatos in
`both songs were substantially similar. For the latter point, in
`addition to testimony from Hudson and other witnesses, the
`liability phase of the trial turned largely on testimony by
`plaintiffs’ expert musicologist, Dr. Todd Decker.
`
`The heart of Dr. Decker’s testimony concerned which
`specific elements of the ostinatos in Dark Horse and Joyful
`Noise were similar. Dr. Decker testified that:
`
`

`

`
`
`
`GRAY V. HUDSON
`
`9
`
`The length of [each] ostinato is similar, eight
`notes. The rhythm of the ostinato is similar.
`The melodic content, the scale degrees
`present. The melodic shape so the—the way
`the melody moves through musical space.
`Similar, the [timbre] or the quality and color
`of the sound is similar, and the use of the—
`the placement of this material, this ostinato,
`in the musical space of the recording in the
`mix[,] that is also similar. So that’s five or
`six points of similarity between the two
`ostinatos.[4]
`
`However, Dr. Decker also said that there was “no one single
`. . . element” that caused him to believe the ostinatos at issue
`were “substantially similar” when viewed “in isolation.”
`Rather, while “[a]ny single one of those [elements] would
`not have been enough,” it was “the combination of them”
`that led Dr. Decker to conclude that Joyful Noise and Dark
`Horse had substantially similar ostinatos. He also admitted
`that the ostinatos were different in some respects, though he
`clarified that he did not think this negated the similarities
`between them.
`
`The jury also heard testimony from defendants’ expert,
`Dr. Lawrence Ferrara, who disagreed with Dr. Decker’s
`assessment that the ostinatos were substantially similar. He
`noted the use of different scale degrees at the end of each
`ostinato, pointing out that Dark Horse has a “leap” from 1 to
`5 while Joyful Noise uses “step-wise” motion from 2 to 1 at
`the corresponding point in time. In addition, Dr. Ferrara
`explained that two well-known songs—“Jolly Old Saint
`
`4 Dr. Decker also testified that the ostinatos in Joyful Noise and Dark
`Horse both used notes that were rhythmically “even in value.”
`
`

`

`GRAY V. HUDSON
`
`10
`
`Nicholas” and “Merrily We Roll Along” (which, as Dr.
`Ferrara noted, has the same tune as “Mary Had a Little
`Lamb”)—also use the 3-3-3-3-2-2 pitch sequence that the
`Dark Horse and Joyful Noise ostinatos share (or a similar 3-
`3-3-2-2 sequence for Merrily We Roll Along, with the third
`3 doubled in duration). This testimony was not refuted
`(though Dr. Decker dismissed its importance to the
`similarity inquiry), nor was Dr. Ferrara’s testimony that
`three other pieces of music predating Joyful Noise also used
`pitch progressions proceeding from 3 to 2 to 1 played in an
`even rhythm: “Love Me Or Hate Me” (which was composed
`by defendant Lukasz Gottwald, pka Dr. Luke), “Brainchild,”
`and “Choosing Life.”
`
`For each phase of the trial, the jury was instructed on the
`law and given a special verdict form. Among other
`conclusions, the jury found specifically that Dark Horse used
`protected material from Joyful Noise, that the two songs
`contained substantially similar copyrightable expression,
`that defendants had a reasonable opportunity to hear Joyful
`Noise before composing Dark Horse, and that plaintiffs were
`entitled to 22.5% of defendants’ net profits from Dark Horse,
`resulting in a total verdict of about $2.8 million in damages.
`
`IV.
`
`Post-Trial Motions
`
`After the trial, defendants moved for judgment as a
`matter of law (JMOL) or, alternatively, for a new trial
`pursuant to Federal Rule of Civil Procedure 50(b). Plaintiffs
`also moved for an award of prejudgment interest. The
`district court considered these motions simultaneously.
`
`The district court vacated the jury’s verdict and granted
`defendants’ JMOL motion. It denied the parties’ remaining
`motions as moot, but conditionally granted a new trial and
`denied prejudgment interest in the alternative. See Fed. R.
`
`

`

`11
`
`GRAY V. HUDSON
`
`
`
`Civ. P. 50(c) (allowing this procedure). As relevant here, the
`district court’s 32-page decision rejected all of defendants’
`challenges to the jury verdict except their argument that the
`ostinatos were not substantially similar. Citing Dr. Decker’s
`testimony, the district court reasoned that none of the
`individual points of similarity the expert identified between
`Dark Horse and Joyful Noise constituted copyrightable
`original expression. The district court also did not believe
`that the combination of these elements constituted original
`expression. Alternatively, the district court concluded that
`this combination merited no more than a “thin” copyright,
`which is infringed only by “virtually identical” works. The
`district court determined that there were enough objective
`distinctions between the ostinatos such that they were not
`virtually identical.
`
`Plaintiffs timely appealed. We review de novo the
`district court’s grant of JMOL. Zamalloa v. Hart, 31 F.3d
`911, 913 (9th Cir. 1994).
`
`ANALYSIS
`
`The operative question is whether a “reasonable jury”
`would have had “a legally sufficient evidentiary basis” to
`conclude that defendants engaged in copyright infringement.
`Fed. R. Civ. P. 50(a)(1). The applicable standards are
`essentially “the same” as those for a summary judgment
`motion, Reeves v. Sanderson Plumbing Prods., Inc., 530
`U.S. 133, 150 (2000) (quoting Anderson v. Liberty Lobby,
`Inc., 477 U.S. 242, 251 (1986)), meaning that we “must draw
`all reasonable inferences” in plaintiffs’ favor, id. Along
`these lines, we “must disregard all evidence favorable to
`[defendants] that the jury is not required to believe,” but we
`should also “give credence to . . . evidence supporting
`[defendants] that is uncontradicted and unimpeached, at least
`
`

`

`GRAY V. HUDSON
`
`12
`
`to the extent that that evidence comes from disinterested
`witnesses.” Id. at 151 (cleaned up).
`
`Copyright protection extends only to works that contain
`original expression. 17 U.S.C. § 102(a); Feist Publ’ns, Inc.
`v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). “Original,
`as the term is used in copyright, means only that the work
`was independently created by the author . . . and that it
`possesses at least some minimal degree of creativity.” Feist,
`499 U.S. at 345. “To establish [copyright] infringement, two
`elements must be proven: (1) ownership of a valid copyright,
`and (2) copying of constituent elements of the work that are
`original.” Id. at 361 (emphasis added).
`
`We agree with the district court that plaintiffs failed to
`establish copying of any original—and, consequently,
`protected—elements of Joyful Noise. For that reason, we
`affirm its decision to vacate the jury award and grant JMOL
`to defendants. We need not reach any other issue in this
`case.
`
`I. Legal Framework for Copyright Infringement
`
`Because plaintiffs did not present any direct evidence
`that defendants copied Joyful Noise’s ostinato, they were
`required to show that (1) defendants had “access” to their
`work and (2) the ostinatos in Joyful Noise and Dark Horse
`“are substantially similar.” L.A. Printex Indus., Inc. v.
`Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012),
`abrogated on other grounds as recognized by Unicolors, Inc.
`v. H&M Hennes & Mauritz, L.P., 959 F.3d 1194, 1198 (9th
`Cir. 2020); see also Apple Computer, Inc. v. Microsoft
`Corp., 35 F.3d 1435, 1442 (9th Cir. 1994) (copying may be
`shown through “circumstantial evidence of access and
`substantial similarity”). We need not address the access
`prong because we may resolve this case based on the
`
`

`

`13
`
`GRAY V. HUDSON
`
`
`
`“substantially similar” prong. For that requirement, we have
`“traditionally determined whether copying sufficient to
`constitute infringement has taken place under a two-part test
`having ‘extrinsic’ and ‘intrinsic’ components.” Apple, 35
`F.3d at 1442. “Both tests must be satisfied for the works to
`be deemed substantially similar.” Skidmore as Tr. for Randy
`Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051, 1064 (9th
`Cir. 2020) (en banc).
`
`“The extrinsic test considers whether two works share a
`similarity of ideas and expression as measured by external,
`objective criteria. The extrinsic test requires . . . breaking
`the works down into their constituent elements, and
`comparing those elements for proof of copying as measured
`by substantial similarity. Because the requirement is one of
`substantial similarity
`to protected elements of
`the
`copyrighted work, it is essential to distinguish between the
`protected and unprotected material in a plaintiff’s work.”
`Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004) (cleaned
`up); accord Skidmore, 952 F.3d at 1064. The intrinsic test
`focuses on “similarity of expression from the standpoint of
`the ordinary reasonable observer, with no expert assistance.”
`Apple, 35 F.3d at 1442.
`
`At oral argument and in their briefing, plaintiffs argued
`that we are required to defer to the jury’s determination that
`the Joyful Noise and Dark Horse ostinatos are substantially
`similar. But even when juries serve as the factfinders, judges
`retain an important gatekeeping role in applying the law. To
`be sure, the intrinsic test for substantial similarity is
`“uniquely suited for determination by the trier of fact”
`because of its focus on the lay listener, and so “this court
`must be reluctant to reverse” a jury’s finding that two works
`are intrinsically similar. Sid & Marty Krofft Television
`Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1166 (9th
`
`

`

`GRAY V. HUDSON
`
`14
`
`Cir. 1977), overruled on other grounds by Skidmore, 952
`F.3d 1051;5 accord Three Boys Music Corp. v. Bolton, 212
`F.3d 477, 485 (9th Cir. 2000), overruled on other grounds
`by Skidmore, 952 F.3d 1051 (quoting same, and adding, “We
`will not second-guess the jury’s application of the intrinsic
`test.”). Crucially, however, the extrinsic test is objective and
`is often resolved as a matter of law. See Benay v. Warner
`Bros. Ent., 607 F.3d 620, 624 (9th Cir. 2010), overruled on
`other grounds by Skidmore, 952 F.3d 1051 (noting summary
`judgment is often granted on this issue). So, while we must
`refrain from usurping the jury’s traditional role of evaluating
`witness credibility and weighing the evidence, the extrinsic
`test requires us as a court to ensure that whatever objective
`similarities the evidence establishes between two works are
`legally sufficient to serve as the basis of a copyright
`infringement claim regardless of the jury’s views.
`
`II. Protected Elements Contained in Joyful Noise
`
`Because the extrinsic test for substantial similarity
`requires us
`to distinguish between “protected and
`unprotected material in a plaintiff’s work,” Swirsky, 376
`F.3d at 845, the threshold issue is what—if anything—about
`the Joyful Noise ostinato qualifies as original expression that
`can serve as the basis for a copyright infringement claim.
`See Feist, 499 U.S. at 361 (infringement requires “copying
`of constituent elements of [a] work that are original”);
`Skidmore, 952 F.3d at 1070 (substantial similarity test
`
`
`5 This case and others cited in this opinion with the same subsequent
`procedural history indication were overruled by Skidmore only to the
`extent they suggested that a weaker showing of substantial similarity is
`required when a high degree of access to a copyrighted work has been
`shown. See Skidmore, 952 F.3d at 1065–69 (calling this the “inverse-
`ratio rule”). These cases otherwise remain binding on us.
`
`

`

`GRAY V. HUDSON
`
`
`
`focuses on “the protectible elements, standing alone, . . . and
`disregard[s] the non-protectible elements” (cleaned up)).
`
`15
`
`“Although copyright protects only original expression, it
`is not difficult to meet the famously low bar for originality.”
`Skidmore, 952 F.3d at 1069. “[T]he requisite level of
`creativity is extremely low; even a slight amount will suffice.
`The vast majority of works make the grade quite easily, as
`they possess some creative spark, no matter how crude,
`humble or obvious it might be.” Feist, 499 U.S. at 345
`(citation and internal quotation marks omitted).
`
`But “[e]ven in the face of this low threshold, copyright
`does require at least a modicum of creativity and does not
`protect every aspect of a work; ideas, concepts, and common
`elements are excluded. Nor does copyright extend to
`common or trite musical elements, or commonplace
`elements that are firmly rooted in the genre’s tradition. These
`building blocks belong in the public domain and cannot be
`exclusively appropriated by any particular author.”
`Skidmore, 952 F.3d at 1069 (cleaned up); see also Swirsky,
`376 F.3d at 850 (“Under the scenes a faire doctrine, when
`certain commonplace expressions are indispensable and
`naturally associated with the treatment of a given idea, those
`expressions are treated like ideas and therefore not protected
`by copyright.”).
`
`The trial record here requires us to conclude that no
`single point of similarity between Joyful Noise and Dark
`Horse arises out of a protectible form of expression. For this
`issue, it is arguably sufficient that plaintiffs’ expert
`musicologist, Dr. Decker, candidly testified that “[a]ny
`single one of those [elements] would not have been enough”
`for him to conclude that substantial similarity existed, and
`that only “the combination” of those elements led him to this
`conclusion. Nonetheless, Dr. Decker testified as an expert
`
`

`

`GRAY V. HUDSON
`
`16
`
`musicologist, not as an expert on copyright law. For that
`reason, we provide a brief overview of the individual
`musical elements identified by plaintiffs as original, and
`explain why those elements are not individually entitled to
`copyright protection. We address whether copyright law
`protects the combination of these unprotectible elements in
`the next section.
`
`To reiterate, Dr. Decker drew attention to the following
`musical elements in support of his opinion that the Joyful
`Noise and Dark Horse ostinatos are substantially similar:
`
`The length of [each] ostinato is similar, eight
`notes. The rhythm of the ostinato is similar.
`The melodic content, the scale degrees
`present. The melodic shape so the—the way
`the melody moves through musical space.
`Similar, the [timbre] or the quality and color
`of the sound is similar, and the use of the—
`the placement of this material, this ostinato,
`in the musical space of the recording in the
`mix[,] that is also similar. So that’s five or
`six points of similarity between the two
`ostinatos.
`
`Though it used slightly different terminology, plaintiffs’
`opening brief focused on essentially the same musical
`elements, adding that both ostinatos were based on the minor
`scale.
`
`The evidence at trial was legally insufficient to establish
`that these musical elements are individually copyrightable.
`We note that Dr. Decker himself acknowledged that many of
`these elements are commonplace in the musical world, even
`if some aspects of the Joyful Noise and Dark Horse ostinatos
`were unusual for their respective genres. For example, apart
`
`

`

`17
`
`GRAY V. HUDSON
`
`
`
`from conceding that “there are many” songs “predating the
`creation of Joyful Noise that have ostinatos,” Dr. Decker
`explained that it is “characteristic” for musical phrases
`playing a role similar to the ostinatos at issue here “to last
`for eight beats.” And while Dr. Decker opined that it is
`uncommon to use completely even rhythms in popular
`music, he also testified that the use of such a rhythm in Joyful
`Noise and Dark Horse was a “relatively simple rhythmic
`choice” that “no composer’s entitled to monopolize.”6
`Plaintiffs adduced no evidence at trial contradicting their
`own expert’s testimony suggesting that these shared
`elements of the two ostinatos are merely common musical
`“building blocks” belonging to the public domain. See
`Skidmore, 952 F.3d at 1069; Swirsky, 376 F.3d at 850.
`
`Even leaving aside these admissions, our precedents and
`other persuasive decisions make clear that no element
`identified by plaintiffs or Dr. Decker is individually
`copyrightable. Plainly, no person may copyright the minor
`scale, as such scales are common musical building blocks
`belonging to the public. See Skidmore, 952 F.3d at 1070–
`71. The fact that Joyful Noise and Dark Horse both make
`use of “sequence[s] of eight notes” played in an even rhythm
`is a similarly “trite” musical choice outside the protection of
`copyright law. Darrell v. Joe Morris Music Co., 113 F.2d
`80, 80 (2d Cir. 1940) (per curiam). Along somewhat
`different lines, the fact that Joyful Noise and Dark Horse
`arguably have similar textures7 is far too abstract of a
`
`
`6 Plaintiffs conceded this element was not individually protectible in
`their district court briefing.
`
`7 Dr. Decker explained that texture refers to the way different
`musical elements—such as parts played by different instruments—are
`mixed together. He commented that both Joyful Noise and Dark Horse
`
`
`

`

`GRAY V. HUDSON
`
`18
`
`similarity to be legally cognizable. See Harper & Row
`Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985)
`(explaining that copyright law protects expression, not
`ideas); cf. Morrill v. Stefani, 338 F. Supp. 3d 1051, 1060
`(C.D. Cal. 2018) (“the use of a long-short-long rhythm is too
`general to be protectable”).
`
`Dr. Decker’s remark that the ostinatos have a similar
`timbre also does not help plaintiffs. Dr. Decker explained
`that timbre is a way of describing a sound’s quality: for
`example, a clarinet and a piano playing the same notes will
`sound noticeably different. Dr. Decker testified that the
`synthesizers used to play the Joyful Noise and Dark Horse
`ostinatos have similar timbres because they both use sounds
`that are “artificial,” are in a “high” register, and seem
`“pingy,” among other similar descriptors. But a copyright to
`a musical work does not give one the right to assert
`ownership over the sound of a synthesizer any more than the
`sound of a trombone or a banjo.
`
`For one, plaintiffs have sued only for infringement of
`their copyright in Joyful Noise as a musical composition. In
`contrast, the choice of a particular instrument (whether
`acoustic or electronic) to play a tune relates to the
`performance or recording of a work, which are protected by
`distinct copyrights. See, e.g., Williams v. Gaye, 895 F.3d
`1106, 1121 (9th Cir. 2018) (“It is well settled that sound
`recordings and musical compositions are separate works
`with their own distinct copyrights.” (cleaned up)); Newton v.
`Diamond, 204 F. Supp. 2d 1244, 1258 (C.D. Cal. 2002),
`aff’d, 388 F.3d 1189 (9th Cir. 2004) (distinguishing between
`“elements protected by [the plaintiff’s] copyright over the
`
`have relatively “empty” textures, with the ostinatos beginning “in
`relative isolation.”
`
`

`

`GRAY V. HUDSON
`
`
`
`musical composition” at issue and “those attributable to his
`performance of the piece or the sound recording”).
`
`19
`
`More generally, the use of synthesizers to accompany
`vocal performers has long been commonplace in popular
`music. See, e.g., Batiste v. Najm, 28 F. Supp. 3d 595, 623
`(E.D. La. 2014). Along these lines, Dr. Decker conceded
`that timbre “is one of the very difficult things to
`monopolize.”
`
`That leaves us with plaintiffs’ contention that the pitch
`sequence utilized by
`the Joyful Noise ostinato
`is
`copyrightable, and with Dr. Decker’s related comments that
`the two ostinatos use similar “scale degrees” and have the
`same “melodic content [and] shape.” At this point, it is
`necessary to distinguish between an abstract sequence of
`pitches and a melody (or, more colloquially, a tune). Though
`the concepts are sometimes equated, creating a melody
`involves more than writing down a sequence of pitches; at a
`minimum, that sequence must also be “rhythmically
`organized” so as to form an “esthetic whole.” Melody,
`Webster’s Third New International Dictionary (2002); cf.
`Swirsky, 376 F.3d at 848 (distinguishing between non-
`copyrightable “chord progressions” standing alone and a
`copyrightable “chorus,” which involves these progressions
`“in combination with rhythm and pitch sequence[s]”).
`While an eight-note melody may be copyrightable, the
`abstract eight-note pitch sequence that is a component of the
`melody is not. See U.S. Copyright Office, Compendium of
`U.S. Copyright Office Practices § 313.4(C) (3d ed. 2021)8
`
`8 Available at https://www.copyright.gov/comp3/chap300/ch300-
`copyrightable-authorship.pdf.
` Our court has drawn upon
`the
`Compendium for guidance on what qualifies as copyrightable
`expression. See Skidmore, 952 F.3d at 1070–71. The Supreme Court
`
`
`

`

`GRAY V. HUDSON
`
`20
`
`(citing 37 C.F.R. § 202.1(a)) (advising that “short musical
`phrases consisting of only a few musical notes standing
`alone are not copyrightable . . . even if the phrase is novel or
`distinctive,” and giving an eight-note pitch sequence as an
`example).
`
`We note that this conclusion is consistent with the rule
`that “chord progressions may not be individually protected”
`because they are basic musical building blocks. Swirsky,
`376 F.3d at 848. Chords are ultimately just a combination
`of pitches played simultaneously, Skidmore, 952 F.3d at
`1070, so a chord progression itself consists of multiple pitch
`sequences playing out at the same time. If the chord
`progression cannot be protected, the individual pitch
`sequences forming the progression cannot be either.
`
`Turning finally to the ostinatos’ “melodic shape,” Dr.
`Decker described this as “the way the melody moves through
`musical space.” He

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