IPSA Updates 8: Dark Horse emerges triumphant in legal battle over Copyright claim

IPSA Updates 8: Dark Horse emerges triumphant in legal battle over Copyright claim

Contributed by: Shaktivel ARUMUGAM of the IPSA Core Team

Edited by: Benjamin HO of the IPSA Core Team

Just last year, pop singer Katy Perry found herself in a lawsuit over her chart-topping single ‘Dark Horse’ released in 2013. The California Girls songstress was sued by Christian rapper Flame for plagiarising his song ‘Joyful Noise’ (released in 2008). At the first instance, a federal jury in the United States found Katy Perry and her collaborators liable for copyright infringement and awarded the plaintiff USD $2.8 million. The decision sent shockwaves across the American music industry due to its implications on the originality of music and artistic expression vis-à-vis copyright law. Fortunately for the songstress, the verdict was overturned upon appeal. This article will examine the decision of the appellate court by taking a closer look at the legal analysis and some musical theory in order to better understand the decision.  


It is important to highlight that Flame did not accuse Perry of copying the entire song; rather, he claimed that a specific section of Perry’s Dark Horse shared similarities with his Joyful Noise. From the outset, this is highly unusual as far as copyright infringement claims are concerned since most plagiarism claims allege the copying of an entire song.

More specifically, Flame was alleging that both songs share a similar musical component called an ostinato. For the uninitiated, an ostinato is a short melody or pattern that is persistently repeated throughout a song. The ostinato in question is a brief 8-note melody that can be prominently heard in the dance break of Dark Horse just before the second verse starts. It is also repeated throughout in the song’s background.

Flame claimed that the ostinatos in Dark Horse and Joyful Noise are similar insofar as they:

(a) both employ the use of the minor key;

(b) both have the same rhythm (8 quarter notes evenly spaced); and

(c) both make use of the same scale degree (3rd scale degree descending to the 2nd scale degree).

Musical experts will be quick to point that the biggest flaw in Flame’s case is that the claimed elements are not remotely unique, and have given rise to similar sounding ostinatos elsewhere¾ Bach’s Violin Sonata in F minor (Adagio) is one such  prominent example.

It is for this reason the initial verdict caused a stir amongst the American music industry since it implied that such a fundamental building blocks of music can be copyrighted and owned by a singular artist. At its most extreme, this decision can give rise to musical monopolies restricting the use of common melodies, greatly limiting musical creativity and expression. Taken in a different context, it would be akin to granting a copyright to widely used literary phrases such as ‘Once upon a time’.


Under American law, to prove a claim of copyright infringement, the plaintiff must satisfy two elements:

(1) The plaintiff must own a valid copyright over the work in question; and

(2) It must be shown that protected portions of the copyright work have been infringed.

In order for the second element i.e. copyright infringement of protected portions to be fulfilled, the plaintiff must prove that:

(1) the person had access to the work at issue (independent creation is a defence to copyright infringement); and

(2) the court makes a determination that the work is substantially similar.

In assessing the second stage of inquiry so, the court employs an objective extrinsic test (where similarity is measured by external criteria such as expert testimony and analytical dissection of the works) and a subjective test (would a normal person with no knowledge in musicology or art in issue be convinced that the two works are of sufficient similarity).

Notably, the second element also makes a distinction between protected and unprotected elements of the work in question: it is only considered to be copyright infringement if the protected elements of the work were copied. This means that the unprotected elements of the work such as those belonging to the public domain can be used by other artists without being liable to a lawsuit. Therefore, not every part of the song is protected by copyright. Generally, for a creative work to be copyrightable, it must be an original work of authorship. Accordingly, the threshold for originality is a low one only requiring the work to possess a minimal degree of creativity.

With the above in mind, it becomes easy to understand why Flame was unsuccessful upon appeal: he failed to show that the one brief section of Joyful Noise – the ostinato in question –  was adequately original in its protectable, copyrightable parts.


Generally, entire songs are copyrightable because they easily fulfil the originality requirement in the legal test for copyrights. However, its constituent parts such as a musical phrase or musical elements (chord progression, recurring vocal phrase etc.) are not protected at all. Indeed, these tend to form the backbone of Western music where they are used pervasively  and would therefore make little sense to deserve  copyright protection.

It is of course possible to string a series of unprotectable elements to form a larger protectable work. However, the artist only receives a thin copyright protection, meaning that the ‘top layer’ of the work receives protected and not its underlying unprotectible elements. Accordingly, it is an infringing copyright only if both works are virtually identical.

Returning to musical theory and the allegedly plagiarised ostinato, as an ostinato is essentially a sequence of notes arranged in a specific manner, Flame theoretically could have been granted thin copyright protection. However, as the signature elements of the ostinato are not sufficiently unique or rare to be considered original this was not granted. Further, even where the ostinatos may sound similar, that does not mean a whole lot musically. The ostinatos do not meet the high threshold of virtual identicality.

In fact, Katy Perry was saved by none other than Led Zeppelin. In its judgement, the court endorsed the opinions of the judges in a preceding high-profile case where Led Zeppelin’s ‘Stairway to Heaven’ was found to not have infringed on another band Spirit’s 1968 instrumental track ‘Taurus’. Here, it was observed that “copyright protection was never extended to protection of just a few notes. More specifically, a 4-note sequence common in the music field is not the copyrightable expression in a song.”

In conclusion, this exciting legal dispute reveals that musical artists have very little chance of success in claiming copyright infringement if they are only alleging that a specific section of the song (as opposed to the entire song) has been plagiarised. This is because it becomes extremely hard to prove originality. It is indeed fortunate that the court came to the most reasonable conclusion: one which encourages creativity and prevents the corporatisation of music itself. Katy Perry can proudly roar yet again for averting a hefty verdict.

Be your own judge! Decide if the court came to the right decision by listening to the ostinatos of Dark Horse (Katy Perry ft. Juicy J) and Joyful Noise (Flame), respectively at 01:18-01:25 and 00:01-00:06!



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