Case 2:15-cv-05642-CAS-JC Document 527 Filed 03/16/20 Page 1 of 32 Page ID #:11230
`Case 2:15-cv-05642-CAS-JC Document 527 Filed 03/16/20 Page 1 of 32 Page ID #:11230
`
`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA
`
`*AIVIENDED
`
`Case No.
`
`2:15-CV-05642-CAS-JCX
`
`Date March 16, 2020
`
`CIVIL MINUTES — GENERAL
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`‘0’
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`JS-6
`
`Title
`
`GRAY; ET AL. V. PERRY; ET AL.
`
`Present: The Honorable
`
`CHRISTINA A. SNYDER
`
`Catherine Jeang
`
`Deputy Clerk
`
`Chia Mei Jui
`
`Court Reporter / Recorder
`
`N/A
`
`Tape No.
`
`Attorneys Present for Plaintiffs:
`Michael Kahn (By Telephone)
`
`Attorneys Present for Defendants:
`Jeffrey MOYit
`Aaron Wals
`
`*Attomey Present for Amici Musicologist:
`*Kenneth Freundlich (By Telephone)
`
`Christine Lepera
`Gabriela Nourafchan
`V1ncent Chleffo
`
`Proceedings:
`
`DEFENDANTS’ RENEWED MOTION FOR JUDGMENT AS A
`MATTER OF LAW, OR ALTERNATIVELY FOR A NEW TRIAL
`(ECF No. 483, filed October 9, 2019; ECF No. 435, filed July 25,
`2019; and ECF No. 459, filed July 31, 2019)
`
`PLAINTIFFS’ MOTION FOR AN AWARD OF PREJUDGMENT
`
`INTEREST (ECF No. 488, filed October 10, 2019)
`
`I.
`
`INTRODUCTION & BACKGROUND
`
`This copyright infringement action concerns the allegation that an 8-note ostinato1
`from defendants’ song “Dark Horse” infi'inges upon the plaintiffs’ copyright in the musical
`composition of the 8-note ostinato in their song “Joyful Noise.” Following a jury trial, the
`jury found for the plaintiffs, awarded damages, and the Court entered judgment. Now
`before the Court are defendants’ renewed motions for judgment as a matter of law, or in
`the alternative for a new trial, as well as plaintiffs’ motion for prejudgment interest on its
`damages award.
`
`1 An ostinato is a short musical phrase or rhythmic pattern repeated in a musical
`composition. & “Ostinato,” Encyclopaedia Brittanica (15th ed. 2013).
`
`CV-549 (01/18)
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`CIVIL RHNUTES - GENERAL
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`Case 2:15-cv-05642-CAS-JC Document 527 Filed 03/16/20 Page 2 of 32 Page ID #:11231
`Case 2:15-cv-05642-CAS-JC Document 527 Filed 03/16/20 Page 2 of 32 Page ID #:11231
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
`
`*AIVIENDED
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`Case No.
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`2:15-CV-05642-CAS-JCX
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`Date March 16, 2020
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`CIVIL MINUTES — GENERAL
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`Title
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`GRAY; ET AL. V. PERRY; ET AL.
`
`Plaintiffs Marcus Gray (P.K.A. Flame), Emanuel Lambert, and Chike Ojukwu filed
`the operative third amended complaint on November 1, 2016, naming defendants Katheryn
`Elizabeth Hudson (P.K.A. Katy Perry), Jordan Houston (P.K.A. Juicy J), Lukasz Gottwald
`(P.K.A. Dr. Luke), Sarah Theresa Hudson, Karl Martin Sandberg (P.K.A. Max Martin),
`Henry Russell Walter (P.K.A. Cirkut), Kasz Money Inc., Capitol Records LLC, Kitty Purry
`Inc., UMG Recordings Inc., Universal Music Group Inc., WB Music Corp., BMG Rights
`Management a]S) LLC, and Kobalt Music Publishing America, Inc. E ECF No. 172
`(“TAC”)- In substance, plaintiffs claim that the instrumental beat of the ostinato in “Joyful
`Noise” is protectable original expression, and that the defendants had access to and copied
`that protectable original expression when they composed an allegedly infringing ostinato
`for their song “Dark Horse.”
`
`The Court held a jury trial from July 17, 2019, through August 1, 2019. The jury
`entered verdicts finding defendants liable to plaintiffs for copyright infringement, and
`awarding plaintiffs $2.8 million in damages. The Court entered judgment in favor of
`plaintiffs on September 11, 2019. & ECF No. 473. Defendants filed the instant renewed
`motions for judgment as a matter of law, or in the alternative for a new trial, on October 9,
`2019. & ECF No. 485 (“JMOL”). Plaintiffs filed an opposition on November 20, 2019.
`& ECF No. 499 (“JMOL Opp.”). Defendants filed a reply on December 27, 2019. ECF
`No- 508 (“JMOL Reply”).
`In addition to these submissions from the parties, a group of
`musicologists submitted an amicus brief in support of defendants’ motion for renewed
`judgment as a matter of law, or in the alternative a new trial, on January 9, 2020. & ECF
`No- 514 (“Am. Br.”).
`
`Plaintiffs, meanwhile, filed a motion for an award of prejudgment interest on
`October 10, 2019. E ECF No. 488 (“MPJI”). Defendant Katy Perry filed an opposition
`on November 20, 2019. & ECF No. 498 (“Perry MPJI Opp.”). Perry also joined in the
`opposition filed by the balance of the defendants, which was filed on the same day- &
`ECF No. 499 (“MPH Opp”). Plaintiffs filed a reply on December 27, 2019. E ECF No.
`505 (“MPH Reply”).
`
`Having reviewed the trial record, the parties’ submissions, and the submissions from
`amici, the Court finds and concludes as follows.
`
`CV-549 (01/18)
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`CIVIL RHNUTES - GENERAL
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
`
`*AIVIENDED
`
`Case No.
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`2:15-CV-05642-CAS-JCX
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`Date March 16, 2020
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`CIVIL MINUTES — GENERAL
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`GRAY; ET AL. V. PERRY; ET AL.
`
`H.
`
`LEGAL STANDARDS
`
`A.
`
`Judgment as a Matter of Law
`
`Judgment as a matter of law is appropriate when “a party has been fully heard on an
`issue during a jury trial and the court finds that a reasonable jury would not have a legally
`sufficient evidentiary basis to find for the party on that issue[.]” Fed. R. Civ. P.
`
`50(a)(1); see also Reeves v. Sanderson Plumbing ProductsI Inc., 530 US. 133, 149 (2000).
`If the court does not grant a motion for judgment as a matter of law pursuant to Rule 50(a),
`a party may file a renewed motion for judgment as a matter of law after the trial. & Fed.
`R- Civ. P. 50(b). It is well-settled that the standard for judgment as a matter of law is the
`
`same as the standard for summary judgment. Reeves, 530 US. at 150 (citing Anderson v.
`Libefl Lobby, Inc., 447 US. 242, 250—52 (1986)). The prior denial of summary judgment
`does not preclude a district court from later granting judgment as a matter of law pursuant
`to Rule 50 because the latter tests the sufficiency of the evidence actually presented at trial.
`
`E Lies V. Farrell Lines Inc., 641 F.2d 765, 772 (9th Cir. 1981) (explaining that, after
`trial, a court may have “a better basis on which to determine the existence of material
`issues,” including that there was never a true issue of fact at all).
`
`Judgment as a matter of law is accordingly appropriate where “there is no genuine
`dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
`Fed. R. Civ. P. 56(a). The moving party bears the initial burden of identifying relevant
`portions of the trial record that demonstrate the absence of a fact or facts necessary for one
`or more essential elements of each claim upon which the moving party seeks
`judgment. E Celotex Corp. V. Catrett, 477 US. 317, 323 (1986).
`
`If the moving party meets its initial burden, the opposing party must then set out
`specific facts on which a reasonable jury could have relied in order to reach the verdict that
`
`the motion challenges. Anderson 477 US. at 250. In light of the facts presented by the
`nonmoving party, along with any undisputed facts, the Court must then decide whether the
`
`moving party is entitled to judgment as a matter of law. & T.W. Elec- Serv. Inc- V. Pac.
`Elec. Contractors Ass’n, 809 F.2d 626, 631 n. 3 (9th Cir. 1987). The Court must “View the
`trial evidence in the light most favorable to the non-moving party, and if conflicting
`inferences may be drawn from the facts presented at trial, the case must go to the jury-”
`Reed v. Lieurance, 863 F-3d 1196, 1204 (9th Cir. 2017) (internal marks and citations
`omitted).
`
`CV-549 (01/18)
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`CIVIL RHNUTES - GENERAL
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
`
`*AlVlENDED
`
`Case No.
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`2:15-CV-05642-CAS-JCx
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`Date March 16, 2020
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`CIVIL MINUTES — GENERAL
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`GRAY; ET AL. V. PERRY; ET AL.
`
`In entertaining a motion for judgment as a matter of law, the court should review all
`
`of the evidence in the record. Reeves, 530 US. at 150. In so doing, however, the Court
`must draw all reasonable inferences in favor of the nonmoving party, and it may not make
`credibility determinations or weigh the evidence.
`I_d. (citations omitted).
`“Credibility
`determinations, the weighing of the evidence, and the drawing of legitimate inferences
`from the facts are jury functions, not those of a judge.” Anderson, 447 US. at 255. Thus,
`although the Court should review the record as a whole, it must disregard all evidence
`
`favorable to the moving party that the jury is not required to believe. Reeves, 530 US. at
`151 (citing 9B C. Wright & A. Miller, Federal Practice and Procedure, § 2529 (3d ed.
`2019)).
`In other words, the Court should give credence to the evidence favoring the
`nonmovant as well as that “evidence supporting the moving party that is uncontradicted
`and unimpeached, at least to the extent that that evidence comes from disinterested
`
`witnesses.” Reeves, 530 US. at 151 (citing Wright & Miller, m, § 2529).
`
`B. Motion for a New Trial
`
`A court may grant a new trial if the jury’s verdict is against the clear weight of the
`evidence. Landes Const. Co., Inc. v. Royal Bank of Can., 833 F.2d 1365, 1371 (9th Cir.
`1987). In considering such a Federal Rule of Civil Procedure 59 motion, unlike a motion
`for judgment as a matter of law, the court may “weigh the evidence and assess the
`credibility of witnesses, and need not view the evidence from the perspective most
`favorable to the prevailing party.” I_d. at 1371—72 (citing l l C. Wright & A. Miller, Federal
`Practice and Procedure, § 2806, at 48—49 (1973) (“If, having given full respect to the jury’s
`findings, the judge on the entire evidence is left with the definite and firm conviction that
`a mistake has been committed, it is to be expected that he will grant a new trial.”)).
`
`.
`.
`Additionally, if the Court “determines that the damages award is excessive, it .
`may grant defendant’s motion for a new trial or deny the motion conditional upon the
`prevailing party accepting a remittitur.” Fenner v. Dependable Trucking Co., 716 F.2d 598,
`603 (9th Cir. 1983). The district court may grant a new trial even though substantial
`evidence supports the jury’s verdict. E Oltz v. St. Peter’s Comm. Hosp, 861 F.2d 1440,
`1452 (9th Cir. 1988).
`
`C.
`
`Prejudgment Interest
`
`“Prejudgment interest is available under the Copyright Act” in the discretion of the
`district court in situations of “undisputed copyright infringement” to “discourage needless
`delay and compensate the copyright holder for the first time it is deprived of lost profits or
`
`CV-549 (01/18)
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`CIVIL RHNUTES - GENERAL
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`Case 2:15-cv-05642-CAS-JC Document 527 Filed 03/16/20 Page 5 of 32 Page ID #:11234
`Case 2:15-cv-05642-CAS-JC Document 527 Filed 03/16/20 Page 5 of 32 Page ID #:11234
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`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA
`
`*AIVIENDED
`
`Case No.
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`2:15-CV-05642-CAS-JCx
`
`Date March 16, 2020
`
`CIVIL MINUTES — GENERAL
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`‘0’
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`JS-6
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`Title
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`GRAY; ET AL. V. PERRY; ET AL.
`
`license fees.” Polar Bear Productions, Inc. v. Timex Cog}, 384 F.3d 700, 716 & n. 12, 718
`(9th Cir. 2004). Unlike claims for prejudgment interest that arise under many state laws,
`“federal law does not require the denial of prejudgment interest just because [a] claim was
`not ‘liquidated.”’ Golden State Transit Corp. V. Cifl of Los Angeles, 773 F. Supp. 204, 212
`(CD. Cal. 1991). “Federal courts clearly have the latitude to award prejudgment interest in
`cases arising under the patent, copyright, antitrust
`laws, and tax laws” where the
`“claims are .
`.
`. not liquidated.” I_d.
`
`In “vigorously contested” cases, however, a district court may properly decline to
`impose prejudgment interest. Societe Civile Succession Guino v. Renoir, 305 F. App’x
`334, 339 (9th Cir- 2008) (denying prejudgment interest because infringement was not
`“undisputed”). If prejudgment interest is granted, it should be awarded as “an element of
`
`compensation, [and] not [as] a penalty.” Oracle USA Inc. V. Rimini St.
`Inc., 879 F.3d
`948, 964 (9th Cir. 2018) (quoting Barnard v. Theobald, 721 F.3d 1069, 1078 (9th Cir.
`2013)).
`
`III.
`
`JUDGMENT AS A MATTER OF LAW, OR FOR A NEW TRIAL
`
`To prove copyright infringement, a plaintiff must establish (1) “ownership of a valid
`copyright,” and (2) “copying of constituent elements of the work that are original.” Feist
`Publications Inc. v. Rural Tel. Serv. Co., 499 US. 340, 361 (1991).
`
`The sole issue at trial concerned the second element: whether defendants’ “Ostinato
`
`2” in “Dark Horse” infringed upon plaintiffs’ ostinato in “Joyful Noise” by copying
`constituent elements of plaintiffs’ ostinato that are original. & ECF No. 486 (“Trial Tr.”)
`at 1349:24—1350-3. This kind of copying can be proven either (a) with direct evidence that
`the defendant actually copied the work, or (b) by showing that the defendant (i) had access
`
`to the work and (ii) that the works are “substantially similar.” L.A. Printex Indus. Inc. v.
`Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012). The plaintiffs only assert copying
`pursuant to the latter method of proof: substantial similarity and access. & Trial Tr. at
`1163:21-1164-20.
`
`Substantial similarity is determined by “a two-part test of extrinsic similarity and
`intrinsic similarity.” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000).
`The extrinsic test raises a question of law that “may often be decided as a matter of law”
`by the court- & Benay v. Warner Bros. Entrn’t, 607 F.3d 620, 624 (9th Cir. 2010); g,
`Morrill v. Stefani, 338 F. Supp. 3d 1051, 1058 (CD. Cal. 2018) (“A plaintiff who cannot
`satisfy the extrinsic test necessarily cannot prevail on a copyright claim as a matter of law.”)
`
`CV-549 (01/18)
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`CIVIL RHNUTES - GENERAL
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`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA
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`*AIVIENDED
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`Case No.
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`2:15-CV-05642-CAS-JCx
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`Date March 16, 2020
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`CIVIL MINUTES — GENERAL
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`GRAY; ET AL. V. PERRY; ET AL.
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`(citing FQQ Films, Inc. V. Time Warner Entm’t Co.I LP, 462 F.3d 1072, 1077 (9th Cir.
`2006)). The extrinsic test “requires that the plaintiff identify concrete elements based on
`objective criteria” that the works are similar. Three Boys Music, 212 F.3d at 485. There
`are two steps to the analysis: the Court (1) identifies the protected elements of the plaintiff‘ 5
`work, and then (2) determines whether the protected elements are objectively similar to the
`
`corresponding elements of the allegedly infringing work. Q Malibu Textiles Inc. V.
`
`Label Lane Int’l Inc., 922 F.3d 946, 952-53 (9th Cir. 2019). A collection of otherwise
`unprotected elements may be found eligible for copyright protection under the extrinsic
`test, but “only if those elements are numerous enough and their selection and arrangement
`
`original enough that their combination constitutes an original work of authorship.” Satava
`V. Low, 323 F.3d 805, 811 (9th Cir. 2003). For a plaintiff that seeks to apply this theory
`of protection to “works where there is a narrow range of available creative choices, the
`defendant’s work would necessarily have to be ‘virtually identical’ to the plaintiff 5 work
`in order to be substantially similar.” Skidmore V. Led Zeppelin, No. 16-56057, slip op. at
`
`48 n. 13 (9th Cir. March 9, 2020) (en banc) (citing Satava, 323 F-3d at 811 and adding that
`the Ninth Circuit has “at times described this result as the work having a ‘thin’ copyright”).
`Infringement claims involving a combination of individually unprotected musical elements
`are subject to this analysis.
`I_d.2 Only after “the extrinsic test is satisfied” does a
`
`2 Plaintiffs argue that Williams v. Gaye, 895 F. 3d 1106 (9th Cir. 2018), foreclosed
`the application of the “virtually identical” standard to musical copyright cases- & Opp.
`at 5-6. Although the Court had accepted this argument in its summary judgment order, fl
`ECF No. 299 (“MSJ Order”) at 10 n.6, the Court later reconsidered this ruling and
`instructed the jury to apply the “virtually identical” standard if it found only thin protection.
`& Jury Instruction No. 34 (“[W]hen a work embodies only the minimum level of
`creativity necessary for copyright, it is said to have ‘thin’ copyright protection. A thin
`copyright only protects against Virtually identical copying”). No party objected to this
`instruction. E Trial Tr. at 1095: 1-3 (“THE COURT: I’m going to leave the thin copyright
`protection language in. But does that take care of this? MR. MOVIT: Your Honor, we
`were unclear whether Your Honor has ruled on [a different instruction, a conversation
`about which followed].”). In View of the en banc opinion in Led Zeppelin, cited above, the
`Court concludes that this instruction correctly states the applicable law. See Led Zeppelin,
`
`No. 16-56057, slip op. at 48 n. 13; see also Q at 54-56 (Watford, J., concurring)
`(distinguishing Williams on this basis, opining that the works at issue would need to be
`“Virtually identical” to be substantially similar, and finding no infringement as a matter of
`law pursuant to that test).
`
`CV-549 (01/18)
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`CIVIL RHNUTES - GENERAL
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
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`*AIVIENDED
`
`Case No.
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`2:15-CV-05642-CAS-JCx
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`Date March 16, 2020
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`CIVIL MINUTES — GENERAL
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`GRAY; ET AL. V. PERRY; ET AL.
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`
`“factfmder”—in this case, the jury—reach and “appl[y] the intrinsic test.” Malibu Textiles
`922 F-3d at 952-53. This test raises a question of fact that “asks ‘whether the ordinary,
`reasonable person would find the total concept and feel of the works to be substantially
`similar.’” I_d. (quoting Pasillas v. McDonald’s Cogp., 927 F.2d 440, 442 (9th Cir. 1991)
`(internal quotations omitted))-
`
`A plaintiff that proves substantial similarity must still prove access. “Proof of access
`requires an opportunity to View or to copy plaintiffs work.” Loomis V. Cornish, 836 F.3d
`991, 995 (9th Cir. 2016) (citation omitted). “To prove access, a plaintiff must show a
`
`Other factors corroborate this conclusion. First, in Swirsg v. Carey, 376 F.3d 841
`(9th Cir. 2004)—a musical composition copyright case—the Ninth Circuit held that
`“substantial similarity can be found in a combination of elements, even if those elements
`
`are individually unprotected.”
`I_d. at 848 (citing Satava, 323 F.3d at 811 and Apple
`Computer, Inc. v. Microsoft Corp, 35 F.3d 1435, 1445 (9th Cir. 1994)). Satava and Apple
`Computer announced the Ninth Circuit’s thin copyright doctrine and concomitant
`“Virtually identical” standard. By citing those cases in a musical composition case, the
`Swirsky court indicated that the standard applies in the musical context.
`
`Second, while Williams elaborated on a limitation of the Swirsl_(y holding, it did not
`expressly overrule it. The Williams court extensively relied on Swirsg to hold that “the
`Gayes’ copyright is not limited to only thin copyright protection, and the Gayes need not
`prove Virtual identity to substantiate their infringement action.” Williams, 895 F.3d at
`1120. But “the Gayes’ copyright” at issue concerned the elements comprising the entire
`musical composition for the song “Got To Give It Up,” not a specific phrase of that
`composition. The Williams court explained that its holding was based on the undisputed
`fact that all music is “comprised of a large array of elements, some combination of which
`is protectable by copyright,” and that a broader rule—one that reduced all music to a
`combination unprotectable elements subject only to thin protection—might prevent any
`musical compositions from receiving the full benefit of the copyright law- E i at 1120
`(quoting Swirsg, 376 F.3d at 849). If anything, Williams stands for the proposition that
`the “thin” copyright protection doctrine, as applied to musical compositions, ordinarily will
`not apply to musical works as a whole. & Led Zeppelin, No. 16-56057, slip op. at 54-56
`(Watford, J., concurring) (suggesting that interpretation). To the extent that proposition
`even survives the en banc decision in Led Zeppelin, that rule, as explained below, would
`have no application to this case.
`
`CV-549 (01/18)
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`CIVIL RHNUTES - GENERAL
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`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA
`
`*AlVlENDED
`
`Case No.
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`2:15-CV-05642-CAS-JCx
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`Date March 16, 2020
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`GRAY; ET AL. V. PERRY; ET AL.
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`reasonable possibility, not merely a bare possibility, that an alleged infringer had the
`
`chance to view the protected work.” Art Attacks Ink LLC v. MGA Entm’t Inc-, 581 F.3d
`
`1138, 1143 (9th Cir. 2009); see also 4 Nimmer on Copm'ght § 13.02[A] (2019) (stating
`same). “Where there is no direct evidence of access, circumstantial evidence can be used
`to prove access either by (1) establishing a chain of events linking the plaintiff' 5 work and
`the defendant’s access, or (2) showing that
`the plaintiffs work has been widely
`disseminated.” I_d. Plaintiffs argue only the latter “circumstantial” type of access. E
`Trial Tr. at 1164:7-14-
`
`Defendants move for judgment as a matter of law at every step of this copying
`analysis. & JMOL at 15-40.
`In addition, defendants contend that they are entitled to
`judgment as a matter of law on a series of other defenses and damages issues. I_d. at 40-50.
`At a minimum, defendants argue that the Court should exercise its discretion to weigh the
`evidence and order a new trial pursuant to Federal Rule of Civil Procedure 59. Ld. at 50-
`59. The Court addresses each of these arguments in turn.
`
`A.
`
`Copying
`
`Plaintiffs’ theory of copying requires them to prove substantial similarity and access.
`Aeropostale, 676 F.3d at 846. Defendants argue that plaintiffs failed to present evidence
`that a reasonable jury could have relied upon to find either. E JMOL at 15-40
`
`1.
`
`Substantial Similarity
`
`First, defendants argue that plaintiffs failed to establish substantial similarity. They
`advance arguments under both the extrinsic test, which presents questions of law to be
`resolved by the Court, as well as the intrinsic test, which presents a question of fact that
`here requires the Court to determine whether the jury’s verdict was supported by sufficient
`
`evidence. Williams, 895 F.3d at 1119 (citing Benay, 607 F.3d at 624); see also Reeves,
`530 US. at 150.
`
`a. Extrinsic Test
`
`The extrinsic test requires the Court to determine whether any elements of the
`ostinato in “Joyful Noise” are protected and objectively similar to corresponding and
`allegedly infringing elements of “Dark Horse.” E Smith v. Jackson, 84 F.3d 1213, 1218
`(9th Cir. 1996) (explaining in a case involving a musical composition copyright that the
`“extrinsic test asks whether two works share a similarity of ideas and expression based on
`
`CV-549 (01/18)
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`CIVIL RHNUTES - GENERAL
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`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA
`
`*AIVIENDED
`
`Case No.
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`2:15-CV-05642-CAS-JCX
`
`Date March 16, 2020
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`CIVIL MINUTES — GENERAL
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`‘0’
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`JS-6
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`Title
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`GRAY; ET AL. V. PERRY; ET AL.
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`external, objective criteria”). This test is critical because “copyright law does not forbid
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`all copying,” only the “illicit copying” of protected works. Rentmeester v- Nike Inc., 883
`F.3d 1 l 1 1, 1 1 17 (9th Cir. 2018) (affirming dismissal of copyright claim as a matter of law).
`Ifplaintiffs cannot satisfy the extrinsic test, for any reason, the inquiry ends and defendants
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`will be entitled to judgment as a matter of law. Stefani, 338 F. Supp. 3d at 1058.
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`The initial query is whether any elements of the ostinato in “Joyful Noise” are
`individually protected, and if not, whether the unprotectable elements that make up the
`ostinato, taken in combination, are nevertheless entitled to copyright protection. Swirsg
`v. Carey, 376 F.3d 841, 848 (9th Cir. 2004) (citing Satava, 323 F.3d at 811-12).
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`i.
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`Individually Protectable Elements
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`Although there is generally a low bar for originality in copyright, fl Swirsg, 376
`F.3d at 851, given the “limited number of notes and chords available to composers,” and
`because “common themes frequently reappear
`in various compositions,” Gaste V.
`Kaiserman, 863 F.2d 1061, 1068 (2d Cir. 1988) (citation omitted), many if not most of the
`elements that appear in popular music are not individually protectable. E 1 Nimmer on
`Copflight § 2.05 (2019) (“In the field of popular songs, many, if not most, compositions
`bear some similarity to prior songs”). Music, perhaps more than any other work of art,
`“borrows, and must necessarily borrow, and use much which was well known and used
`before.” Campbell v. Acuff-Rose Music, Inc., 510 US. 569, 575 (1994) (quoting Emerson
`v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845) (Story, 1.)). For this reason, courts in
`musical copyright cases have a significant obligation to strike a “balance between the First
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`Amendment and the Copyright Act”
`to “encourage [] others to build freely upon the ideas
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`and information conveyed by a work,” and at the same time motivate creative activity, Feist
`Publications, 499 US. at 349-50—by carefully limiting the scope of copyright protection
`to truly original expression only- Bikram’s Yoga Coll- of India, L.P. v. Evolation Yoga,
`LLC, 803 F.3d 1032, 1037 (9th Cir. 2015) (internal citation omitted).
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`,
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`such as the “use of a long-short-long
`Musical elements that are “common or trite’
`rhythm,” “chord progressions,” certain “tempos,” a “recurring vocal phrase,” repeating
`“hook phrases,” the alternating “emphasis of strong and weak beats,” “syncopation,” the
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`use of “tritones,” or the use of “basic musical devices in different manners,” Stefani 338
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`F. Supp. 3d at 1060 (citing cases)—are, accordingly, not protectable. Jackson, 84 F.3d at
`1216 n.3; see also Swirsfl, 376 F.3d at 850 (stating that “when certain commonplace
`expressions are indispensable and naturally associated with the treatment of a given idea,
`those expressions are treated like ideas and therefore not protected by copyright”). Nor are
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`CV-549 (01/18)
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`CIVIL RHNUTES - GENERAL
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