- This episode of Legal Eagle is made possible by SkillShare. Learn to think like a lawyer
for free for two months by clicking the link in the description. Christian rapper Flame sued Katy Perry, claiming that this song (music of "Dark Horse" by Katy
Perry feat. Juicy J plays) copied this song. (music of "Joyful Noise" by Flame plays) A jury agreed and awarded
him 2.8 million dollars. (register cashing) But when a jury found that the writers of Katy Perry's 2013 hit
"Dark Horse" featuring Juicy J had copied part of a 2008
song called "Joyful Noise" by Christian rapper Flame,
it set off a major firework in the music industry. The jury ordered Perry and
the other writers to pay almost 2.8 million dollars
to Flame for copying a small part of his song. However, after Perry's
lawyers filed a motion to overturn the verdict,
the trial court decided it was time to hear it roar. See what I did there? In March, the court threw
out the jury's verdict, dismissing the case,
and believe it or not, Katy Perry was saved by none
other than Led Zeppelin. I am not kidding, that is
actually what happened. To understand how this case
would up being so controversial, we have to take a dive
into federal copyright law and music theory, so strap in. (rousing music) Hey Legal Eagles, it's
time to think like a lawyer because I'm just a California girl, no. No, no more Katy Perry
references, I'm sorry. The dispute over "Dark Horse" is not about the songs themselves, but about a short eight note
melody that Flame believes the "Dark Horse" writers copied from his song "Joyful Noise". And it's true, they both have
a similar musical component called an ostinato, and that's
actually sort of unusual for a copyright case. See, usually in lawsuits like this, you're comparing the entire song. For example, George Harrison
was successfully sued by The Chiffons over his
song "My Sweet Lord", which was suspiciously similar to The Chiffons' "He's So Fine". ("My Sweet Lord" by George Harrison plays) ("He's So Fine" by The Chiffons plays) Here, the songs are pretty different but the songs at issue do
have a similar component, their ostinatos. An ostinato is a short melody
or pattern, like an arpeggio, that is constantly repeated
throughout the song, usually in the same
part at the same pitch. However, proving copyright
infringement in music is complex, because there are only a
limited number of notes and arrangements available
to composers and musicians. If you listen to the radio
for 30 minutes today, for example, you will hear common themes repeated in many songs. And it's for this reason
that the individual elements of a song simply are not
protected by copyright, and that's why music industry
professionals were alarmed by the Perry verdict
for 2.8 million dollars. Many songs use the same
musical building blocks. If one musician can copyright
the underlying structure, it would radically change
the musical landscape and allow for musical monopolies. But I'm not an expert in music theory. If only I had some expert I could turn to to explain the musical concepts at issue. Wait a minute, I've got an idea. (amp clicking on) (headphones plugging in) (bass riff playing) (whooshing music) - Well it appears that
I have been summoned. So "Joyful Noise" and "Dark Horse" both employ similar ostinatos. An ostinato is a simple
repeated melodic fragment on top of which a song writer
or composer might write more prominent melodies. So it's kinda like the
backbone of a composition. Both songs' ostinatos are very similar, as the defense pointed out. They both are in minor keys,
they both have the same rhythm of eight evenly spaced quarter notes. They both start on the
third note or scale degree of the minor scale, repeat
that note four times, then descend down to the
second note of the minor scale and repeat that note twice. After this, "Dark
Horse"'s ostinato descends to the first scale degree, and then below to the fifth scale degree, and "Joyful Noise"'s
ostinato actually changes every other time. The first time it resolves
to the first scale degree, and the second time, you hear it resolve down to the sixth scale degree. (plays ostinato of
"Joyful Noise" on piano) (plays ostinato of "Dark Horse" on piano) So technically, they're different,
but they are very similar in the fact that they both are ostinatos, they're in minor keys,
they have the same rhythm, and they both start the same way with the same scale degrees. Now the problem that I have
with this is that these elements aren't remotely unique to
"Joyful Noise" or "Dark Horse". You can find any combination
of these elements in our shared musical
tradition quite easily. For example, eight quarter note ostinatos, like Pachabel's "Canon in D". Or for example, minor key ostinatos that start on the third
degree and descend down to the first degree, like
"Carol of the Bells", or of course, the bass line
to "Fancy" by Iggy Azalea. Or you could specific,
like eight note melodies in minor keys that start
on the third scale degree, repeat four times and then descend down to the second scale degree
and then repeat again, you can find that in Bach's
"Violin Sonata in F minor", the adagio movement. (plays adagio movement of
"Violin Sonata in F minor") (plays ostinato of "Joyful Noise") (plays ostinato of "Dark Horse") Now taken individually, these points of similarity are banal. They represent really fundamental
building blocks of music, even that specific sequence
of notes, of a third degree going to the second degree. - Thanks Adam, really appreciate it, and I promise only to summon you if it's a musical emergency. Definitely check out Adam's channel if you have any interest in music theory or bass guitar in general, it's amazing. And as Adam points out,
the eight note ostinato in "Dark Horse" sounds
a lot like the ostinato in "Joyful Noise", but that's
not the end of the analysis. There are lots of different ostinatos that sound similar to that. Just because something sounds similar doesn't necessarily mean that there was copyright infringement. The ostinatos at issue sound like a whole bunch of other songs. Are all of these other songs
infringing on each other? To understand the answer to that question, we have to take a deeper dive
into the songs themselves and into copyright law. To prove a claim of
copyright infringement, the copyright owner has
to prove two elements. First, the person has
to own a valid copyright and two, they have to show
that the protectable portions of the copyrighted work
have been infringed, and infringement is usually
defined as unlawful copying. Now while that sounds like a clear test, it's really just the tip of the iceberg. To prove unlawful copying,
you have to show that a person actually copied the work at issue, which usually requires proving
access, and it also requires proving substantial similarity, which is that the things that were copied give rise to the standard that we say that it was enough copying to constitute copyright infringement. Now, access and actual
copying are really important because technically, independent
creation is a defense to copyright infringement. If you happen to come up with
the exact same form of art, technically if you, say,
were on a uninhabited island in the South Pacific when
you created this thing, well then there was no way for you to have copied someone else. So not only does something have
to be substantially similar in terms of what is created,
but you also have to prove that someone had access to
the thing that was copied and that they actually
did do the copying itself. In most copyright cases, direct
evidence isn't available, so that's why creators rarely
have proof that the defendant actually listened to a song or
directly pilfered parts of it for their own use. Instead, plaintiffs rely often
on circumstantial evidence to make their case. Now that's just to prove that
copying of some form existed. But what about the test
for substantial similarity to prove that the things that were copied were copied in a way that gives rise to copyright infringement? Well, in determining whether two works are substantially similar, the courts use a two part analysis: an
objective extrinsic test and a subjective intrinsic test. Now, the subjective intrinsic
test is almost always a question for the jury,
it's something a court can't decide itself. It asks would a normal
person with no background in musicology or in whatever
kind of art in an issue here, would they feel that the
two works are similar enough that copying is actionable? But the extrinsic test
considers whether two works share a similarity of ideas and expression as measured by external
objective criteria. The extrinsic test requires
analytical dissection of a work and expert testimony,
and that dissection means that the court will break down the works into their constituent parts
and compare their elements. This is an analysis that the court, the judge in this particular case, can do. It's objective, it's based on the face of the works themselves. And when the court conducts this analysis, it's looking only at
the protected elements of a copyrighted work. It's always essential to distinguish between the protected
and unprotected material. For example, if something
is in the public domain, you can use it and you
can make a new work, but you only get protection
over the new protected elements, not the unprotected things
that are in the public domain. And this is where Flame ran
into trouble with the court. He was unable to show that
that one brief section of "Joyful Noise" was
sufficiently original in its protectable copyrightable parts, and not every part of Flame's
song was copyrightable. For a creative work to be
entitled to copyright protection, it must be an original work of authorship, and when the Supreme
Court defined originality, it set a pretty low bar. A work is original if it
is independently created, possessing at least some
minimal degree of creativity. And as I mentioned before, this
is a really interesting case because usually you're
dealing with the whole song or the whole book or the whole movie. Here, we're not talking about
both songs in their entirety but merely constituent parts,
and some musical elements are not protectable at all,
such as a chord progression or a recurring vocal phrase
or a syncopated rhythm, to name just a few
common elements of songs. As one court remarked,
"These are building blocks "which belong to the public domain "and cannot be appropriated
by any particular author." Because in Western music,
there's only so much stuff you can do within the key of the song. Musical emergency. (plays bass riff) (whooshing music) - You see, in Western
music, we have this thing called tonality, where all
of the notes of the scale have a specific function to play. They want to do certain things. So if you're writing
a song using tonality, which chances are, if
you're writing a pop song, it's gonna be tonal, there are
a very limited number of ways each note can plausibly
resolve to the next in a pleasing manner. And if you're writing a pop song, you want it to be pleasing in theory. So while yeah, the two
ostinatos are similar, musically, that doesn't mean a whole lot. - Yeah, and what's really interesting here is that we're dealing
with a small sub-component of a song, the ostinato. By way of analogy, imagine you have a copyright infringement
case with two novels. The whole work itself would be the novel. That novel is broken
up into sub-components, either sentences or words,
and those words themselves are broken up into letters. I'm not aware of any
particular copyright case that allows you to copyright
an individual word, it's just too small. But you can string a whole
bunch of letters together to form words, and string a
whole bunch of words together to form an entire novel,
and at some point, it has the creativity
necessary to be copyrightable. And a song is the same way. If you start with the whole song, that is made up of individual components, often musical phrases or
maybe it's a drum line versus the melody and the
vocal melody and the words, and those things are made up
often of individual notes, just like letters make
up an individual word. And I suppose it could
be theoretically possible to have a very small
number of notes to form a copyrightable work, but
you would imagine it would be very very difficult to have
an eight note musical phrase become a copyrightable thing itself. And in fact, the 9th Circuit has found that a four note melody
is not copyrightable. Here, we're dealing with eight notes. And obviously there's a spectrum. At some point, you go into
the hundreds or thousands of notes, and that becomes
an entire song itself. And here, although the jury
heard extensive testimony about the similarities
between "Joyful Noise" and "Dark Horse", the
plaintiff simply couldn't prove that the eight note
ostinato was original enough to receive copyright protection. "Expressions that are
standard, stock or common "to a particular subject matter or medium "are not protectable under copyright law" is what the judge found. Now, the plaintiff's expert
musicologist identified five distinct elements that
he thought were protectable, as they were used by "Joyful Noise". In the plaintiff's brief, they identified even more elements, a total
of nine, that they thought deserved copyright protection. And in response, Katy Perry
and the other defendants argued that it didn't matter
whether there were three or five or nine elements,
since none of them were protectable on their own. And in a way before Adam
Neely, the court also referred to other songs that featured
very very similar ostinatos, like "Merrily We Roll Along"
and "Jolly Ole Saint Nicholas" to explain that the particular ostinato was not copyrightable. But the court didn't stop there because there are circumstances where you can string together a series of unprotectable elements to form a larger protectable thing. I mean, that is what a novel is. Every individual word
is not copyrightable, but if you string enough of them together, then that does eventually
become copyrightable. So in theory, Flame could
have proven infringement of the ostinato if he was able
to show that the combination of unprotectable elements
are original enough in the way that they are arranged. And you can combine
non-copyrightable things together to get protection, but when you do that, you generally get what's called
thin copyright protection. If the underlying things
themselves are not copyrightable, then the only thing that
you get copyright over is the actual arrangement itself. And when you are dealing with
thin copyright protection and you claim that someone
has infringed the copyright on your selection, then
generally those two things have to be virtually identical, or there is no copyright infringement. And as the court found, "It
is undisputed in this case, "even viewing the evidence
in the light most favorable "to the plaintiffs, that
the signature elements "of the eight-note
ostinato in 'Joyful Noise' "is not a particularly
unique or rare combination "even in its deployment as an ostinato. "Prior compositions, including prior works "composed by the parties,
as well as what all agree "is a separate non-infringing ostinato "in 'Dark Horse', all
contain similar elements." Since the sole musical
phrase that Flame claimed was infringement was not
a protectable expression, the extrinsic test was not satisfied and therefore Flame's claim
failed as a matter of law. Whew, that was hard to say. Now, it's theoretically
possible to copyright a musical phrase, but it would need to be really really special. It is, as it should be,
really hard to copyright sub-components of songs,
because lots of people use the exact same thing
over and over again. We have a musical library that
is inherent to Western music. Imagine if someone tried to
copyright this drum rhythm. (drum rhythm plays) Or if someone tried to
copyright this lick. (musical lick plays on
various instruments) (whooshing music) Sorry man, false alarm. Sorry about that. Now, Flame's expert musicologist
pointed to nine elements that he claimed, when taken
together, made an otherwise non-copyrightable set
of notes copyrightable. He pointed to a melody
built in the minor mode, a phrase length of eight
notes, a pitch sequence beginning with three, three,
three, three, two, two, a similar resolution to both phrases, a rhythm of eighth notes,
a square and even rhythm, the structural use of the
phrase as an ostinato, the timbre of the instrumentation and the notably empty and sparse texture of the compositions. The thing is, none of
these things by themselves are copyrightable, and even when you use all of them together, it doesn't turn an otherwise non-copyrightable thing into a copyrightable phrase. If the sheet music isn't copyrightable, you can't get protection by playing that same thing on a synthesizer. It's theoretically
possible to get a copyright over the selection of
unprotected elements, but you have to show a ton of creativity and more than what Flame has alleged here. It would be much easier
to do if he was claiming that the entire song
violated the copyright, rather than just this really small part that is otherwise similar. Now, the court went on to
note that even if the ostinato was creative enough to
be considered protectable under copyright, it wasn't
substantially similar to the "Dark Horse" ostinato. In other words, there
was no actionable copying or copyright infringement. A selection of a song is only
infringed if the two works substantially share the same combination of protectable elements. And remember, the actual
notes themselves in this case were not protectable. And this is where Led
Zeppelin saved Katy Perry. Yes, seriously. - Does anybody remember laughter? - See, in this case,
the protectable elements would be so narrow that a combination of protectable elements
between the two songs would need to be virtually
identical, and the court held that Flame was unable to satisfy this test for substantial similarity. In making this decision,
the judge referred to another huge copyright case that the 9th Circuit
Court of Appeals decided just a couple of weeks ago. There, the 9th Circuit
upheld the 2016 decision that Led Zeppelin's "Stairway
to Heaven" did not infringe on the band Spirit's 1968
instrumental track, "Taurus". Now, these two songs are much much closer than "Dark Horse" and "Joyful Noise". Here's Led Zeppelin's
unbelievably famous intro to "Stairway to Heaven". (intro of "Stairway to Heaven" plays) And here's Taurus' song "Spirit". (music of "Taurus" plays) Now, to my ear, those songs,
and here we're talking about the whole songs in general, sound much much more similar than "Dark Horse" does to "Joyful Noise". And the 9th Circuit agreed. It held, "We have never
extended copyright protection "to just a few notes. "Instead, we have held
that a four-note sequence "in the music field is
not the copyrightable "expression in a song." And in Led Zeppelin, in order to prove copyright infringement,
the two works at issue would need to virtually identical. The court found that "Stairway
to Heaven" and "Spirit" were not virtually identical, just as the court did in Katy Perry. Now, the Led Zeppelin
case had mainly to do with whether a defendant's
access to a song can be used to prove copyright
infringement or plagiarism. The 9th Circuit actually
reversed a precedent called the Inverse Ratio Rule
that had lasted for 45 years and this is an issue I
have actually litigated and that particular rule deserved to die. See, the Inverse Ratio Rule
lent that the more access that was shown between the
alleged copyright infringer and the original copyrighted work, the less substantial
similarity was required to establish infringement. That enabled plaintiffs to allege copying if they could show that the defendant had likely heard the song. And between Led Zeppelin and Taurus, well they toured together in the 60s, so there was almost no doubt that Jimmy Page had heard Taurus' song. But the thing is, that
probably shouldn't matter. Just because someone might
have heard or had access to a song or other
creative work, doesn't mean that we should change the
standard required to show that two things are similar. The more access doesn't
mean the less similarity that you have to prove. That unfairly burdens songs that simply got a lot of radio airtime. The music industry has actually
been critical of this rule for decades, especially since
it was not used by courts outside of the 9th Circuit. One of the reasons the music
industry hated this rule was because access was
so much easier to prove in the age of digital streaming. Everyone pretty much has
access to any other song, and in fact, Adam Neely did another video talking about a group of
people who tried to copyright every conceivable melody
that could possibly exist in the world, and they
sort of recognized though that not everyone has
access to this hard drive of songs that they created,
so it might not actually solve the issue that they're dealing with. Definitely check out that video. But after the Led Zeppelin
decision, to the extent that the Inverse Ratio Rule ever existed, which is sort of an open question, at least in the 9th Circuit, that rule has been completely abolished. And as in the Led Zeppelin
case with Katy Perry, when you filter out the
unprotected elements of the songs at issue, there just isn't much left, and there certainly
isn't enough to justify copyright infringement. Now, those astute Legal Eagles out there are probably wondering, "How come this case turned out different "than the Marvin Gaye
'Blurred Lines' case?" Well, that is a really interesting
quirk of procedural law because Katy Perry also
lost a jury verdict, but then was able to overturn it. What happened with Robin
Thicke and "Blurred Lines"? Well now, it's of course
possible that Katy Perry may in fact lose her case
on appeal, but I think that's probably really unlikely. See, copyright issues are complicated and they are often decided as
a matter of law by the court. Factual disputes, such as who was lying and who was telling the
truth, are decided by a jury. But issues of law can
be decided by a judge and generally, if you
can, you want you case to be decided by a judge quickly,
before it gets to a jury, because a jury can do anything. Who knows? Now, in certain cases, you
can ask the judge to decide in your favor as a matter of
law before it gets to trial. Here, Katy Perry's lawyers
made a motion for judgment as a matter of law before
it got to the jury. The judge denied the motion,
and the case went to trial, where the jury found it in favor of Flame and awarded him 2.8 million dollars. But under the Federal Rules
of Civil Procedure, Rule 50, if you made a motion before the trial, then you can make a
renewed motion afterwards, but you have to make that initial motion, and that's what happened here. Katy Perry made the motion, it was denied. The Led Zeppelin case
came out in the interim, they refiled after the jury
verdict, and then the judge, looking at the Led Zeppelin case said, "Okay this is on point", and
decided in Katy Perry's favor and basically overturned
the decision of the jury. Court basically said, "No
reasonable jury could have found "in favor of the
plaintiff", which is funny because all 12 jurors did find
in favor of the plaintiff, but that's neither here nor there. Now, if a party fails
to make a Rule 50 motion at the close of evidence,
that party waives its right to challenge the
sufficiency of the evidence of the verdict later on. This can be a very serious
mistake and to prove that, all you have to do is ask Robin Thicke and Pharrell's lawyers,
because they did not make a Rule 50 motion for
judgment as a matter of law. And so, after the jury found against them for millions of dollars, they weren't able to make a renewed motion afterwards, and it's entirely possible
that had they done that, the court would have sided with them because a lot of people, a
lot of musicologists believe that the "Blurred Lines"
lawsuit was incorrectly decided. So the bottom line is that copyright law is complicated and it's hard. Both the Led Zeppelin
and Katy Perry decisions are examples of courts pushing back against the "Blurred
Lines" verdict, and I think it's gonna be a lot harder to
prove copyright infringement in the 9th Circuit, for better or worse. People borrow from predecessors
works and create new ones, especially in the music
world, and we all share this common vocabulary. But at the end of the day, not all copying is copyright infringement, just like not everything
that glitters is gold. - Does anybody remember laughter? - Now whether you're on the
side of Katy Perry or Flame, you can see how both of them
used similar building blocks to make their world famous
songs, because making music is actually surprisingly easy. If, for any reason, you're
spending some extra time at home and want to learn how
to make your own music, I highly recommend Mike
Boyd's SkillShare class, Guitar Fundamentals: Learn
Quick with Mike Boyd. In his class, Mike Boyd
walks you through the basics of learning to play the
guitar, starting simply with the anatomy of the
guitar and leading all the way up to playing your first two songs. Honestly, you probably don't
even need much of a lesson to be able to play the
ostinato from "Dark Horse". But even if you've never picked
up a guitar in your life, Learn Quick's Mike Boyd will
show you what you need to know. It's a great way to learn a new skill. Or if you wanna learn another
skill, you can check out Mike's other SkillShare class, How to Learn: Strategies
for Starting, Practicing and Mastering the Skills
You've Always Wanted, which helps anyone learn something new, reduce their likelihood of
quitting a new challenge or get good at something faster. And now is a great time for
people to stave off boredom by learning new skills. SkillShare is an online learning community that has tens of thousands
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SkillShare when you click on the link below. Plus, it really helps out this channel, so just click on the
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all free for two months. So improve yourself now while
you finally have the time. Do you agree with my analysis? Leave your objections in the comments and check out this playlist
over here where I talk about all kinds of
copyright related things. So click on this playlist,
and I'll see you in court.
That was beautiful