Did Katy Perry win the Dark Horse copyright case?

Yes. In Gray v. Perry, 28 F.4th 87 (9th Cir. 2022), the Ninth Circuit affirmed judgment in favor of Katy Perry. A jury had found infringement, but the district court granted judgment as a matter of law for the defendants, and the Ninth Circuit affirmed. The court held that the 8-note descending ostinato at issue was a commonplace musical building block not protectable by copyright.

What is an ostinato and can it be protected by copyright?

An ostinato is a repeating musical figure used to provide rhythmic or harmonic continuity. Gray v. Perry held that a simple descending minor scale pattern used as an ostinato is compositional vocabulary — a building block available to all composers — and not protectable expression under copyright. Similarity in such an element cannot support an infringement claim.

What is the scènes à faire doctrine in music copyright?

The scènes à faire doctrine removes from copyright protection those elements that are standard or inevitable in a given context. In music, it applies to common scales, basic rhythmic patterns, standard chord progressions, and familiar melodic shapes. Gray v. Perry applied it to hold that a simple descending ostinato was the kind of compositional vocabulary that must remain available to all composers.

Why did the jury verdict in Dark Horse get reversed?

The jury in Gray v. Perry returned a verdict for the plaintiff, but the district court granted judgment as a matter of law because the similarity the jury found was entirely in unprotectable elements — a simple descending ostinato that is commonplace musical vocabulary. The Ninth Circuit affirmed. Copyright law requires filtering out common elements before comparing protected expression; after filtration, nothing protectable remained.

How does Gray v. Perry differ from Williams v. Gaye?

Both cases produced jury verdicts for plaintiffs. Williams v. Gaye (895 F.3d 1106) affirmed the verdict, finding a protectable selection and arrangement of multiple musical elements in the deposit. Gray v. Perry (28 F.4th 87) reversed the verdict, finding that the entire claim rested on a single commonplace ostinato that was filtered out as unprotectable. The difference is what remained after filtering.

Gray v. Perry (Dark Horse) Musicologize

Katy Perry won. The Ninth Circuit affirmed judgment in her favor. The 8-note descending ostinato in “Dark Horse” does not infringe the copyright in “Joyful Noise.” A jury had found otherwise. The court corrected the jury.

The case is a useful counterweight to Williams v. Gaye. Both cases produced jury verdicts for the plaintiff. Only one of those verdicts survived.

What an ostinato is and why it matters

The musical claim in Gray v. Perry is a claim about an ostinato. An ostinato is a repeating musical figure, a device that provides rhythmic, harmonic, or melodic continuity beneath a song’s surface. The specific ostinato at issue in this case is an 8-note pattern that descends through a minor scale.

That description is more precise than it sounds, and the precision is the problem for the plaintiff. When you strip the ostinato down to what it actually is, as a musical structure rather than as a produced sound in context, what remains is a descending scale fragment used as a looping background device. There is no unusual interval. There is no distinctive contour. It descends. It repeats.

That pattern appears in music across centuries. It is a compositional building block, part of the alphabet of harmonic writing. Any composer can write it. Any producer can deploy it. No one owns it.

The scènes à faire doctrine in music

The court applied the scènes à faire doctrine. In copyright law, scènes à faire refers to elements that are so standard, so stock, so fundamental to a genre or form that they must be available to all creators. The doctrine originated in literary and dramatic copyright — the idea that certain scenes are inevitable in a given narrative context and therefore cannot be owned — but it applies to music as well.

In musical terms, scènes à faire protects the vocabulary. Common scales, basic rhythmic patterns, standard chord progressions, familiar melodic shapes — these are the raw material of composition. Granting copyright protection over them would not reward creativity; it would tax every composer who uses the language at all. The Ninth Circuit correctly refused to permit that outcome.

The specific finding here is that a simple descending minor scale used as a repeating figure is compositional vocabulary, not protectable expression. The court had the correct analysis. Once you filter out that element, as the filtration step requires, there is no protected expression left to compare. The similarity exists entirely in the unprotectable zone.

Why the jury got it wrong and why the court corrected it

This is worth understanding because it speaks to a recurring problem in music copyright litigation.

A jury of lay listeners hears both songs in full. They hear the produced recordings: the bass, the percussion, the vocals, the effects, the arrangement. In that full sonic context, the ostinato in “Joyful Noise” and the ostinato in “Dark Horse” feel similar. The sound of both productions, taken as a whole, has a certain textural resemblance at the moments when the ostinato runs. The jury responded to that resemblance and found infringement.

The legal standard required something different. The jury was supposed to compare the protectable expression in the registered compositions, filtered of all common elements, and ask whether the specific selection and arrangement of protected material in one work appears in the other. At that level of analysis, there is nothing to find. The ostinato is common. Strip it away and the compositions differ.

What the jury’s verdict illustrates is the gap between aural impression and analytical comparison. That gap is exactly where forensic musicology does its work. The expert who can translate a complex produced recording into its compositional skeleton, identify which elements are protectable and which are not, and present that analysis clearly enough for a lay jury to follow it, is the expert who helps the court reach the right result. In Gray v. Perry, the correct result was reached — but only after the district court and the Ninth Circuit overrode the jury.

The contrast with Williams v. Gaye

Both cases involved jury verdicts for the plaintiff. Both cases involved claims of similarity in specific musical elements. Both were decided in the Ninth Circuit. The verdicts diverged.

Williams v. Gaye affirmed the jury. Gray v. Perry reversed it. The relevant difference is not the identity of the parties. The relevant difference is what the court found protectable after filtering.

In Williams v. Gaye, the jury found similarity in melody, bass line, hooks, and structural arrangement. The court, applying selection and arrangement doctrine, found that the specific combination of those elements in the “Got to Give It Up” deposit could attract protection even though individual elements were common. The analysis turned on whether a distinctive combination existed.

In Gray v. Perry, the claim reduced to a single device: the ostinato. There was no complex combination to protect. There was one common musical figure, deployed in a similar way. After filtering, nothing remained. That is the difference.

The lesson for anyone evaluating a music copyright claim: similarity in a single common musical device is almost never enough. The question is whether the specific combination of protected elements in the deposit has been reproduced. A claim built on one unprotectable figure will not survive filtration.

The musical analysis is mine. Legal advice is your attorney’s.