Gray v. Perry
Gray v. Perry
SUMMARY *
Copyright
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
GRAY V. HUDSON 3
COUNSEL
OPINION
BACKGROUND
I. Musical Background
2
Our discussion here is slightly oversimplified, as the minor scale
comes in three distinct forms. However, the differences between those
versions are not material to resolving this case. Likewise, we do not find
it necessary for present purposes to distinguish between the concept of a
“scale” and the related concept of a “mode,” which is also mentioned in
the parties’ briefing.
3
Specifically, the image corresponds to the natural minor scale in
the key of A, which uses only the white keys on a keyboard.
GRAY V. HUDSON 7
However, Dr. Decker also said that there was “no one single
. . . element” that caused him to believe the ostinatos at issue
were “substantially similar” when viewed “in isolation.”
Rather, while “[a]ny single one of those [elements] would
not have been enough,” it was “the combination of them”
that led Dr. Decker to conclude that Joyful Noise and Dark
Horse had substantially similar ostinatos. He also admitted
that the ostinatos were different in some respects, though he
clarified that he did not think this negated the similarities
between them.
4
Dr. Decker also testified that the ostinatos in Joyful Noise and Dark
Horse both used notes that were rhythmically “even in value.”
10 GRAY V. HUDSON
For each phase of the trial, the jury was instructed on the
law and given a special verdict form. Among other
conclusions, the jury found specifically that Dark Horse used
protected material from Joyful Noise, that the two songs
contained substantially similar copyrightable expression,
that defendants had a reasonable opportunity to hear Joyful
Noise before composing Dark Horse, and that plaintiffs were
entitled to 22.5% of defendants’ net profits from Dark Horse,
resulting in a total verdict of about $2.8 million in damages.
ANALYSIS
5
This case and others cited in this opinion with the same subsequent
procedural history indication were overruled by Skidmore only to the
extent they suggested that a weaker showing of substantial similarity is
required when a high degree of access to a copyrighted work has been
shown. See Skidmore, 952 F.3d at 1065–69 (calling this the “inverse-
ratio rule”). These cases otherwise remain binding on us.
GRAY V. HUDSON 15
6
Plaintiffs conceded this element was not individually protectible in
their district court briefing.
7
Dr. Decker explained that texture refers to the way different
musical elements—such as parts played by different instruments—are
mixed together. He commented that both Joyful Noise and Dark Horse
18 GRAY V. HUDSON
8
Available at https://www.copyright.gov/comp3/chap300/ch300-
copyrightable-authorship.pdf. Our court has drawn upon the
Compendium for guidance on what qualifies as copyrightable
expression. See Skidmore, 952 F.3d at 1070–71. The Supreme Court
20 GRAY V. HUDSON
has done the same. See Star Athletica, LLC v. Varsity Brands, Inc., 137
S. Ct. 1002, 1014 (2017).
GRAY V. HUDSON 21
copyright law. See Harper & Row, 471 U.S. at 556. In any
event, as the district court recognized, Dr. Decker’s
explanation that the two ostinatos moved “through musical
space” in similar ways simply reflects “rules of consonance
common in popular music.” Just as films often rely on tropes
to tell a compelling story, music uses standard tools to build
and resolve dramatic tension. In this vein, courts have
recognized that “while there are an enormous number of
possible permutations of the musical notes of the scale, only
a few are pleasing.” Darrell, 113 F.2d at 80; see also
Skidmore, 952 F.3d at 1079–80 (Watford, J., concurring)
(recognizing “the constraints of particular musical
conventions and styles”). This is also underscored by the
fact that uncontradicted evidence at trial showed that two
songs predating Joyful Noise—Merrily We Roll Along and
Jolly Old Saint Nicholas—used the same pitch sequence
(albeit in the “major” scale rather than the minor scale) and
melodic shape. Cf. Granite Music Corp. v. United Artists
Corp., 532 F.2d 718, 720 (9th Cir. 1976) (“Evidence of
similar musical phrases appearing in prior works . . .
demonstrates that the musical language was of such ordinary
and common occurrence that the probability of independent,
coincidental production was great.”).
whole is lacking in original expression. See 323 F.3d at 812 (“We do not
mean to suggest that [the artist] has added nothing copyrightable to his
GRAY V. HUDSON 25
CONCLUSION
AFFIRMED.