In July 2014, Marcus Gray, the rapper better known by his stage name “Flame” filed proceedings against Katy Perry. Gray alleged that Perry’s song Dark Horse infringed copyright in his original work, Joyful Noise. To many, it seemed like just another allegation against a famous artist, based on the vibe of a lesser known song.
Five years later, after numerous preliminary trials, a jury in Los Angeles found Perry to have infringed Gray’s copyright. The following week, the US District Court of Central District California awarded Gray $2.7 million USD ($4.22 million NZD) in damages.
Perry is likely to appeal, and so she should. The current outcome could set a troubling and uninspiring precedent for artists. Like most contemporary popular hip-hop songs, Gray’s Joyful Noise hooks the listener with a catchy beat, but can Gray really own a beat when it is arguably shared by thousands of other musical works? This article looks at the case from both a legal and musicological perspective, exploring why the songs sound similar, why some things in music should not be copyrightable, and what the case teaches us about expert musicological evidence.
The legal case
At the heart of the case is a short descending pattern known in music as an “ostinato”. In both Gray and Perry’s songs, a short ostinato is used repeatedly to form part of the musical bed known as the ‘beat’ of each song. Both ostinatos share the same descending shape, though Gray’s ostinato uses three notes, and Perry’s uses four. Gray claimed that Perry’s song Dark Horse copied the beat in Joyful Noise, which was published five years earlier. Gray claimed copyright in the musical composition containing all the musical content, rather than in the sound recording.
To prove copyright infringement, Gray had to establish two key components: that he owned the copyright in Joyful Noise; and that Perry copied protected elements of this work[KB3] . Because there was no direct evidence of copying, Gray had to show that Perry had access to Joyful Noise and that Dark Horse and Joyful Noise are “substantially similar”.
In Joyful Noise, the ostinato is heard from the very beginning as a continuous feature. Its prominence, regularity, and repeated nature establishes it as an important musical idea. This is significant for a rap song, which typically consists of the same musical content repeated throughout, creating a sonic “bed” on top of which the rap lyrics flow.
The ostinato is generally heard non-stop throughout the song, but with varying prominence. For example, it is modified slightly to give a short break of silence before the start of the first two choruses. As musical material gathers momentum throughout the song, other musical ideas become more prominent, and the ostinato retreats to the background. The unchanging nature of the ostinato reinforces the idea that it is core to the song’s musical material.
In brief, the ostinato contains the notes C, B, and A, and can be transcribed as:
Listen to Joyful Noise:
- 0.00 - 0.10’ ostinato in the introduction
- 0.24 - 1.24’ ostinato in verse one through to the beginning of chorus one. Listen out for the other elements that begin to build, and the break of silence before the chorus starts
In Dark Horse, two versions of a four-note ostinato are used. A condensed version with a faster rhythm is used in the introduction and choruses (Ostinato A), while a version with a walking-pace rhythm is used throughout the verses (Ostinato B). As with Joyful Noise, Ostinato A is heard right at the very start of the piece and introduces the musical content.
Both versions of the ostinato are heard interchangeably throughout Dark Horse. In the chorus, Ostinato A mirrors the shape of the tune sung by Perry. Fast and repetitive in nature, Ostinato A is played on a synthesizer, which increases in volume as each chorus reaches its peak. This creates a wall of sound and gives the choruses a jubilant, uplifting feel. In contrast, the rhythm of Ostinato B in the verses accompanies a more poetic and syllabic vocal line. The slower rhythm of the ostinato also makes the verses feel more punctuated and deliberate in feel to the chorus. Yet it is possible to see how the notes of both ostinatos are related. Ostinato B can be said to have been derived from the notes of Ostinato A.
In brief, the ostinatos contain the notes D-flat, C, B-flat, and F, and can be transcribed as:
Listen to Dark Horse:
- 0.00 - 0.18’ Ostinato A in the introduction
- 0.18’ - 0.48’ Ostinato B in verse one. Listen out for the slower rhythm compared to the introduction’s ostinato
- 0.48’ - 1.18’ Ostinato A in chorus one. Listen out for the ostinato as it slowly fades in and grows in volume
Both parties enlisted the expertise of musicologists, who provided lengthy analyses and varying interpretations of the songs.
In summary, Gray’s musicologist took a narrow approach that focused on the ostinatos themselves and three key musical elements: rhythm, pitch, and register of the ostinatos. He proposed that these particular elements made for substantial similarity between the songs.
Perry’s musicologist took a broader contextual approach, proposing that any similarities between Dark Horse and Joyful Noise are unremarkable. Any shared musical expressions are commonplace elements not copyrightable to begin with because they are part of the inventory of fundamental musical ideas. To illustrate this, Perry’s musicologist exhibited over thirty songs which were composed prior to Joyful Noise which shared similar elements with both songs. Perry’s expert also argued for a more holistic comparison of the songs’ elements, not just the ostinatos themselves.
Gray’s musicologist in reply claimed the song exhibits to be gross generalisations about the use of ostinato, and continued to draw arguments back to plain audible similarities of the specific ostinato figures of Joyful Noise and Dark Horse.
Why do some songs sound the same?
It is relatively common to encounter pop songs that sound similar, as illustrated by several high profile cases in recent years. Understanding the history of popular music helps us to appreciate why this might be. The rise of popular music appeared due to the development of recording technology, allowing everyday tunes to be recorded, and disrupting a long line of music tradition typically associated with the educated classes only. Recorded music allowed greater dissemination and access, opened up the possibility of commercialisation, and revolutionised the way music is consumed.
The popular music industry has therefore evolved out of a competitive commercial process: if songs are well-liked and sell well, these become the standard to which artists aspire. Over time, tried and tested formulae emerge, making standardisation a fundamental characteristic of popular music. The very essence of popular music is that it appeals to a mass audience because it follows conventions and standards that are familiar.
Standardisation is not just true of popular music, but of all types of music in order to distinguish stylistic references that make up genres. There are only so many palatable combinations of notes and compositional elements to draw on, meaning similarity is sometimes inevitable. These standardised patterns are what make our favourite songs so catchy and easy to sing along to, because our ears have become conditioned to prefer their form over others. Videos like 4 Chords and Pachelbel Rant have gone viral on the internet for their comedic presentations of songs that use the same chord pattern.
A fundamental consideration in any music copyright case should be whether such commonplace elements or “building blocks” are copyrightable, or core to the composition of all music. Without free existence of some elements, it would be impossible to create original expressions of sound that are formed through standardised combinations and layers.
The truth about the four-note ostinato
Even though Gray was successful in this case, it is questionable whether the short ostinato in question could, or should, be afforded copyright protection in its own right. As demonstrated by Perry’s expert, there are countless examples of other pieces of music from a broad variety of genres that could be interpreted as embodying the same ostinato. A three or four-note descending idea is a single building block that requires much more creative development in order to become a song.
Regrettably, although the jury were told that commonplace elements are unprotectable, they were not instructed to consider the ostinato in relation to the song as a whole or any broader context. Instead, they were directed to consider solely the ostinatos in and of themselves, allowing a commonplace element to become the focus. Once the jury were engaged in that comparison, a finding of substantial similarity was almost inevitable.
Trust me, I’m a musicologist
This case highlights the significant influence expert musicologists can have on proving substantial similarity, even in the absence of direct copying. Each side’s presentation of musicological evidence becomes the core of the case, with one inevitably pitted against the other. Yet, music is an interpretive art form, so it should be no surprise two parties could find such different approaches and interpret the ostinatos to fit their needs.
The diversity of expert opinions reminds us that, like any academic discipline, musicology has different schools of thought, methodology, and theoretical principles that may provide different frameworks for analysis, and reveal different interpretations. This was even pointed out by Gray’s musicologist, who argued that the traditional analysis undertaken by Perry’s expert is not conducive to understanding the hip-hop style of Joyful Noise.
For example, traditional analysis is geared towards “classical” music, which is linear in form and notation based. In contrast, hip-hop is cyclic, consisting of musical patterns that are repeated over and over, accompanying a flow of lyrics on top. Hip-hop, like most recorded popular music, also exists primarily in the abstract without standardised written representation. It relies on ideas like how a song “feels”, its aesthetic and atmosphere, colouring, and tone quality – characteristics that come across easily on recording technology but not necessarily on acoustic instruments or notation.
Without an understanding of musical composition or analysis methodology, and without all of the above context, it is easy to see how a judge or jury might be led astray. Accordingly, while expert musicological evidence is a useful tool to illustrate an abstract art form, it is ultimately just an interpretation, and should not be a means to an end in a trial without context.
Rethinking copyright trials
Gray was effectively afforded copyright protection over a commonplace building block in the form of a descending three-note idea. If this type of decision becomes a precedent or trend, barriers will start to appear for other compositional combinations made up of commonplace elements, which would undoubtedly have detrimental consequences in terms of what material is left for composers.
The keystone for a strong foundation in music copyright cases is identifying the protectable expression at stake, followed by an acceptable scope of analysis for the similarity comparison. Musicologists play a critical role in uncovering the pieces of the puzzle, but their evidence should not be used to break songs down into meaningless components. Unless the plaintiff can prove ownership of a single element that is fundamentally distinctive in its own right, a holistic approach should always be taken. This would ensure that compositions are viewed in context and in light of all relevant elements, so that music copyright cases can find harmony between musicianship and the law.
 Musicology is the analysis and research-based study of music from historical, social, theoretical and philosophical perspectives.
 Gray v Perry, 2:15 CV-05642 CAS JCx (CD Cal), Wais Declaration in Support of Motion for Summary Judgment, Exhibit 3 Expert Report of Todd Decker (6 April 2017) at 19: reference is made to the Oxford Companion to Music, 2002 definition of an ostinato: “An ostinato is ‘a fairly short, melodic, rhythmic, or chordal pattern repeated continuously throughout a piece or section’.”
 Gray v Perry, above n 2, Jury Instructions (25 July 2019) at instruction No. 26.
 Swirsky v Carey 376 F 3d 841, 844 (9th Cir 2004).
 Three Boys Music Corp v Bolton 212 F 3d 477, 481 (9th Cir 2000).
 Gray v Perry, above n 2, Wais Declaration in Support of Motion for Summary Judgment, Exhibit 3 Expert Report of Todd Decker (6 April 2017).
 Gray v Perry, above n 2, Wais Declaration in Support of Motion for Summary Judgment, Exhibit 4 Expert Report of Lawrence Ferrara (5 May 2017).
 Gray v Perry, above n 2, Wais Declaration in Support of Motion for Summary Judgment, Exhibit 4 Expert Report of Lawrence Ferrara (5 May 2017).
 Gray v Perry, above n 2, Wais Declaration in Support of Motion for Summary Judgment, Exhibit 8 Response of Todd Dekker to Expert Report of Lawrence Ferrara (9 June 2017).
 Williams v Bridgeport Music Inc 2:13 CV-06004 JAK AGR (CD Cal), better known as the Pharrell Williams and Robin Thicke case; Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd  FCA 29, better known as the Kookaburra case; and New Zealand’s own Eight Mile Style, LLC v New Zealand National Party  NZHC 2603, better known as the Eminem case.
 Gray v Perry, above n 2, Jury Instruction No. 34: The jury were instructed that: “The plaintiffs contend that the instrumental beat of the ostinato in ‘Joyful Noise’ is protectable expression. The defendants contend that any similarities between the instrumental beat of the ostinato in ‘Joyful Noise’ and ostinato #2 in ‘Dark Horse’ comprise solely of non-original and unprotectable commonplace expression”. Although this hints at unprotectable commonplace elements, it does not give the jury context for considering the pieces as a whole and still directs their attention to solely the ostinato in itself.
 Gray v Perry, above n 2, Wais Declaration in Support of Motion for Summary Judgment, Exhibit 8 Response of Todd Dekker to Expert Report of Lawrence Ferrara (9 June 2017) at 166. Reference is made to: Kyle Adams “The Musical Analysis of Hip-Hop” in Justin A. Williams (ed) The Cambridge Companion to Hip-Hop (Cambridge University Press, 2015) 118.
 The term ‘classical’ is used in this article as a broad umbrella term to describe all music written from the seventeenth century through to the twentieth century, and music written after the turn of the century that continued to follow in that tradition. In other words, any music that is not generally seen as mainstream, recorded popular music. Accordingly, the term ‘popular’ is used as a broad umbrella term to describe music that does not fall into the ‘classical’ category. These terms are fluid and only used as broad descriptors, not defining categories.
 All music transcriptions are by the author.