23 Oct joyful noise dark horse lawsuit
 Some of these included much older songs ;Mary Had a Little Lamb', "'Jolly Old St. Nicholas', and 'Merrily We Roll Along'.
Joyful Noise was extensively played on Christian Radio, and was nominated for the 40th GMA Dove Awards.  The court, ruling on whether Zeppelin's song "Stairway to Heaven" violated the copyright of the song "Taurus" by the band Spirit, had found that in case of “works where there is a narrow range of available creative choices”, the protection available was thin and only towards works ‘virtually identical’ to that of the plaintiff's. , The Plaintiff’s submitted, through their musicologist Todd Decker, that the songs shared "five or six points of similarity"; specifically, the ostinatos , which were either identical in both songs, or nearly similar in their phrase length, rhythm, pitch content, and timbre. , On July 29, 2019, a nine-person federal jury, consisting of six women and three men, found that Perry, Dr. Luke, Max Martin, Cirkut, Sarah Hudson, who only wrote the lyrics, and Juicy J, who only wrote the rap, were guilty of infringement, along with Capitol Records, Warner Bros. Music Publishing, Kobalt Publishing, and Kasz Money Inc.. , Marcus Gray filed a notice of appeal to the Ninth Circuit on April 13, 2020. , Perry's lawyers had referred to the Ninth Circuit's influential en banc opinion in favor of Led Zeppelin, as part of their appeal to Judge Snyder.
Marcus Gray et al. Motion for judgment as a matter of law , Following the Ninth Circuit's reasoning, the court said that the plaintiff's claim was based on minimally original musical expression that acquires only “thin” protection. , Adam Neely, a jazz musician in New York, highlighted the dangerous precedent of allowing exclusive rights over building blocks of musical compositions. had access to and copied the ostinato when composing "Dark Horse. " On March 16, 2020, Judge Christina A. Snyder ultimately found that Gray et al. Flame.  They also challenged the jury's decision on unrebutted and unimpeached evidence at trial demonstrating independent creation of Dark Horse.  The court held that a new trial would have been allowed, as the jury disregarded the weight of the evidence, highlighting that it was Katy Perry’s star power and Capitol’s marketing efforts, and not the similarity to plaintiffs’ ostinato, that made Dark Horse a commercial success. By clicking “I agree” below, you consent to the use by us and our third-party partners of cookies and data gathered from your use of our platforms. , The defendants had contended that Joyful Noise was a derivative work since the ostinato in it was originally part of a beat published earlier by Chike Ojukwu.  Weighing the evidence, the jury deducted only $6,669,699 of the $11,772,912 in claimed expenses from the total claimed profits, declining to deduct the $5,103,213, and the jury’s decision is supported by substantial evidence adduced at trial, and not otherwise contrary to law. Noting that elements in the Dark Horse ostinato needed to be “virtually identical” to the “Joyful Noise” ostinato in order to meet the “substantially similar” standard, the court referred to Dr. Decker's testimony.  The court commented that the jury’s damages award was not so clearly unsupported by substantial evidence as to warrant vacatur, and an award of “less than 100% of the profits but more than the percentage estimates of [defendant’s] experts does not represent clear error.”, To determine the defendants’ net profits, the Court instructed the jury to “deduct all appropriate expenses incurred by that defendant from that defendant’s gross revenue.” Appropriate expenses include “fixed overhead” costs, provided that the overhead “contributed” to the infringing good.  The focus of the similarity was a short descending pattern known in music as an "ostinato". , The plaintiffs disputed the motion based on lack of sufficient ground for a new trial since the clear weight of the evidence fully supported the jury's findings on liability.  The court, unconvinced by defendant's criticisms of Decker, relating to transcription of musical elements of the songs and abstraction of unprotectible elements of Joyful Noise prior to comparison, found a genuine issue of material fact as to substantial similarity between the two songs. , The defendants contended that the evidence presented did not support a finding that any defendants other than Walter (“Cirkut”) and Capitol Records were individually liable for the alleged infringement of Joyful Noise.  Gray et al. al, failed to satisfy the extrinsic test for substantial similarity.  The writers of Dark Horse said they never viewed Joyful Noise, nor had they heard of the plaintiffs previously.
Gray et al., finally submitted that the apportionment determination was fully supported by the evidence, and rather, the evidence actually demonstrated that the damages awarded were insufficient as the jury should not have deducted nearly $5 million in “royalty expenses” in calculating Capitol's profits. Plaintiffs argued that there was substantial similarity between the songs since Perry and her team had copied the main beat and instrumental line of Joyful Noise and the same featured in a substantial part of Dark Horse.  Christine Lepera, the lawyer for Katy Perry said that the chilling effect created by "the ‘Blurred Lines’ curse" in the music industry had been lifted with this verdict.
 They argued that commonplace elements are not copyrightable to begin with because they are part of the inventory of fundamental musical ideas. The defendants alleged that public distribution of CDs of Prism, duplication and uploading of digital versions of defendants’ song on websites for purchase, as well as public performance of the song at various concerts and events by the plaintiff violated their copyright in Joyful Noise. had failed to satisfy the extrinsic test for substantial similarity, overturning a previous jury verdict which had sided with the plaintiffs.. , In October 2019, the defendants filed an appeal against the jury verdict calling the decision “a grave miscarriage of justice”.  Todd Decker rebutted by stating that the examples were gross generalizations about the use of ostinato, and he continued to draw arguments to plain audible similarities of the common ostinato in both songs. The defendants averred lack of commercial success, and urged the court to discount the importance of online views on mentioned platforms since they don't show the actual number of unique human views. This page was last edited on 23 October 2020, at 21:46.  Evidence established that the infringing ostinato in Dark Horse plays across 45% of the composition, based on which plaintiffs requested 45% of defendants’ aggregated profits, of which the jury evidently decided to divide plaintiffs’ requested amount in half based on evidence presented.  They made reference to Rule 59 and the remittitur standard reiterating that the court has the discretion to grant a new trial “if the verdict appears ... to be against the weight of the evidence,”  and only if of the firm conviction that a mistake has been committed. But Its Time May Be Up".
, The court concluded that, even if the 8-note ostinato in Joyful Noise was protected, the evidence submitted did not support a legal conclusion that the two ostinatos were, objectively, substantially similar, lest being “virtually identical.”, The court pointed out that the question was not of “proven access based on preponderance of evidence but whether reasonable minds could find that defendants had a reasonable opportunity to have heard Plaintiff’s song before they created their own song.” The court believed that the question must be deferred to jury’s determination of reasonableness and held that the evidence presented by plaintiffs at trial was sufficient to support the jury’s finding as to access, although the court might have found otherwise. The defendants had testified that they had never heard Joyful Noise, or of the plaintiffs, before the lawsuit. , In both songs, a short ostinato is used repeatedly to form part of the ‘beat’ of each song and both ostinatos share the same descending shape, though the ostinato of Joyful Noise uses three notes, while that of Dark Horse uses four.. , Acknowledging that certain elements plaintiffs’ expert relied upon to support substantial similarity may be individually unprotectable, the court reasoned that Decker's expert testimony involved identification of particular features, which in combination, could support a jury's finding of substantial similarity. , Reiterating the opinion of the Ninth Circuit that, “in copyright infringement cases, any member of the distribution chain of allegedly infringing products can be jointly and severally liable for the alleged misconduct”, The court said that each of the defendants named could be liable for infringement based on their role in the “distribution chain”.
 The motion for a new trial highlighted that Plaintiffs’ counsel and witnesses, Dr. Todd Decker, engaged in misconduct by perversely influencing the jury though his improper and highly prejudicial testimony. 5 on the Billboard Top Gospel Chart in 2008 and was nominated for a Grammy Award for Best Rock or Rap Gospel Album. However, since the defendants were entitled to judgment as a matter of law, defendants’ motion for a new trial was denied as moot.  Ferrera also argued for a more holistic comparison of the songs’ elements, not just the ostinatos themselves. , The defendants attempted to convince the judge otherwise through the report of their own expert, arguing that the two songs shared no significant similarities beyond generic elements. , The plaintiffs argued that proper application of the extrinsic test to the facts and evidence submitted must reasonably lead to a clear finding of substantial similarity emphasizing that the Ninth Circuit accords protection to a wide range of musical elements taken alone or in combination. - Law360", https://en.wikipedia.org/w/index.php?title=Gray_v._Perry&oldid=985088351, United States District Court for the Central District of California cases, Creative Commons Attribution-ShareAlike License, August 13, 2018 (summary judgment denied).  Perry's musicologist, Lawrence Ferrera, exhibited over thirty songs composed prior to Joyful Noise which shared similar elements with both songs.
First, the key or scale in which a melody is composed is not protectable as a matter of law. In addition, Capitol Records prepared the music video of defendants’ song and arranged for its commercial syndication and publication on YouTube and other commercial sites.
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