Gray v. Hudson — Copyright | Outside IP Counsel

The Ninth Circuit threw out a $2.8 million verdict against Katy Perry, holding that the short 'Dark Horse' ostinato consists of commonplace musical elements too unoriginal for copyright protection.

A jury once told Katy Perry she owed millions for an eight-note loop. An appeals court told her she owed nothing — because no one can own those eight notes. In Gray v. Hudson, 28 F.4th 87 (9th Cir., decided Mar. 10, 2022), the Ninth Circuit affirmed that Perry’s chart-topping “Dark Horse” did not infringe “Joyful Noise,” a song by Christian hip-hop artist Marcus Gray (known as Flame) and his collaborators. Writing for the panel, Judge Milan D. Smith Jr. held that the short ostinato — the repeating instrumental figure — at the center of the case was built entirely from commonplace musical elements that copyright does not protect. The decision wiped out a roughly $2.8 million jury verdict and became a leading modern statement on the limits of musical copyright.

At a glance

Case: Gray v. Hudson, No. 20-55401, 28 F.4th 87 (9th Cir. Mar. 10, 2022).
Court: U.S. Court of Appeals for the Ninth Circuit; opinion by Circuit Judge Milan D. Smith Jr.
Posture: Appeal from the Central District of California’s grant of judgment as a matter of law for defendants after a jury verdict; affirmed.
Holding: The “Joyful Noise” ostinato consists of commonplace, unprotectable musical building blocks, and the similarities to the “Dark Horse” ostinato do not arise from any original selection and arrangement; there was no copyrightable expression to infringe.
Significance: Reaffirmed the originality requirement in music cases and curbed infringement claims built on short, conventional note sequences.

The dispute began when Gray, Emanuel Lambert, and Chike Ojukwu sued, claiming that the looping synth figure in “Dark Horse” copied a similar repeating figure in their 2008 song “Joyful Noise.” In 2019, a Los Angeles jury agreed, found Perry and her collaborators (including producer Lukasz “Dr. Luke” Gottwald, credited in the litigation under the Hudson and related names) liable, and awarded the plaintiffs about $2.78 million. The trial judge, Christina A. Snyder, then granted the defendants’ motion for judgment as a matter of law, holding that the plaintiffs had failed as a matter of law to prove the copying of protectable expression. The plaintiffs appealed.

The originality requirement and “musical building blocks”

The panel grounded its analysis in copyright’s foundational principle: protection extends only to original works of authorship, and originality requires at least a “modicum of creativity.” The court acknowledged the “famously low bar” for originality but stressed that the bar is not nonexistent. Copyright, it explained, does not protect “common or trite musical elements, or commonplace elements that are firmly rooted in the genre’s tradition.” Basic scales, simple arpeggios, conventional rhythms, and short sequences of pitches are the shared vocabulary of all composers — building blocks that must remain free for everyone to use.

Examined against that standard, the overlapping portion of the two ostinatos fell apart as a basis for liability. The shared material amounted to a short pattern of pitches — the court described it as a “manifestly conventional arrangement of musical building blocks” — played in a minor scale. Protecting that sequence, Judge Smith warned, would “essentially amount to allowing an improper monopoly over two-note pitch sequences or even the minor scale itself.” Such monopolies over basic elements are precisely what the originality doctrine forbids, because they would let early composers fence off the raw materials of music.

Selection, arrangement, and the limits of “thin” protection

The plaintiffs’ strongest theory was not that any single element was original but that their particular combination of elements — pitch sequence, rhythm, texture, and the way the figure repeats — was an original selection and arrangement entitled to protection. Copyright can protect an original combination of otherwise unprotectable parts, but the protection is “thin,” meaning the works must be virtually identical to infringe, and the combination itself must reflect genuine creative choices.

The panel found the record did not support such a claim. The similarities between the two ostinatos, it held, did not arise out of an original combination of elements; the resemblances tracked commonplace conventions rather than any distinctive creative arrangement unique to “Joyful Noise.” The court also addressed the evidentiary weakness of the plaintiffs’ case on access and similarity, but its central move was doctrinal: where the only similarities lie in unprotectable building blocks and a conventional way of combining them, a verdict of infringement cannot stand as a matter of law. The trial judge had been right to take the question from the jury.

Part of a larger correction in the Ninth Circuit

Gray v. Hudson did not arrive in a vacuum. It followed the Ninth Circuit’s 2020 en banc decision in Skidmore v. Led Zeppelin, which had likewise emphasized originality, rejected the so-called “inverse-ratio rule,” and cautioned against letting infringement claims rest on common musical elements. Together the two decisions signaled a recalibration after a period — exemplified by the “Blurred Lines” verdict — in which musicians feared that juries were imposing liability for shared style, groove, or genre conventions rather than for actual copying of protected expression.

The practical message to songwriters and the recording industry was reassuring on one side and cautionary on the other. Composers retain wide freedom to use the standard vocabulary of their genre without fear that an earlier artist has locked it up. Plaintiffs, by contrast, must come forward with genuinely original expression — or a genuinely original selection and arrangement of elements — and cannot convert resemblance in commonplace material into a multimillion-dollar judgment. Courts, the decision confirms, will police that line through judgment as a matter of law when a verdict crosses it.

Open questions

Where exactly is the originality line? The court rejected protection for these building blocks, but how much creative combination is “enough” remains a fact-intensive judgment in each case.
How thin is “thin” protection? The virtually-identical standard for combinations of unprotectable elements still leaves room for argument about which combinations qualify.
Will juries or judges decide close cases? Gray shows judges willing to override verdicts on originality grounds, but the division of labor between jury and court in music cases continues to evolve.

Implications

Common musical elements stay free. Basic scales, short pitch sequences, and conventional rhythms are not protectable, so building songs from them does not infringe.
Originality has a floor. The bar is low but real; plaintiffs must identify a modicum of genuine creativity, not just any similarity.
Selection-and-arrangement claims need real creativity. Combining unprotectable parts earns only thin protection and requires near-identity plus distinctive creative choices.
Judges will police verdicts. Courts can and will grant judgment as a matter of law to vacate infringement awards built on unprotectable material.
A post-”Blurred Lines” correction. Alongside Skidmore, this case narrows the risk that musicians are liable for shared style rather than copied expression.

Frequently asked questions

What did Gray v. Hudson decide about Katy Perry’s Dark Horse? The Ninth Circuit held that the eight-note ostinato shared by “Dark Horse” and the plaintiffs’ “Joyful Noise” consisted of commonplace, unoriginal musical building blocks. Because those elements and their combination were not protectable, there was no copyright infringement, and the jury verdict was properly vacated.

How much money was the original jury award, and what happened to it? A 2019 jury awarded the plaintiffs about $2.8 million. The district court then granted judgment as a matter of law for the defendants, vacating the award, and the Ninth Circuit affirmed that vacatur in 2022.

What does this case mean for music copyright lawsuits? It reinforces that copyright does not protect common or trite musical building blocks like basic scales, simple pitch sequences, or conventional rhythms, even at the low bar for originality. Plaintiffs must show genuinely original expression or an original selection and arrangement of elements.