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Katy Perry Wins As Ninth Circuit Agrees $2.8 Million ‘Dark Horse’ Verdict ‘Unsupported’

Katy Perry won’t have to pony up any money in her “Dark Horse” copyright battle after a federal appeals court ruled that the $2.8 million jury verdict previously awarded to Christian rapper Flame was “unsupported.”

Thursday’s ruling from the Ninth Circuit Court of Appeals found Flame, whose legal name is Marcus Gray, was attempting to claim an “improper monopoly” over conventional “musical building blocks” when he first sued Perry in November 2016.

Gray had alleged Perry and her co-defendants, including Capitol Records, lifted a repeating instrumental phrase known as an ostinato from his 2009 song “Joyful Noise” and dropped it into the 2013 mega hit “Dark Horse,” featuring rapper Juicy J.

“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,” the new ruling reads.

“Allowing a copyright over this material would essentially amount to allowing an improper monopoly over two-note pitch sequences or even the minor scale itself, especially in light of the limited number of expressive choices available when it comes to an eight-note repeated musical figure,” the court says.

It was in July 2019 that a jury first returned the underlying verdict in favor of Flame and awarded him the $2.8 million in damages. Perry appealed the decision, and a federal district court judge vacated the verdict in March 2020.

Perry’s initial victory on appeal followed shortly after the Ninth Circuit upheld a 2016 decision that Led Zeppelin’s “Stairway to Heaven” did not infringe on the 1968 song “Taurus” from the band Spirit. In both cases, plaintiffs did not present direct evidence that the supposedly infringed works were copied, only that “access” was possible.

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