Damsels in Distress: Copyright Woes of Perry and Polly

Abstract

On July 29, 2019 a jury in Los Angeles awarded Marcus Gray damages of nearly three million dollars pursuant to its verdict that Katy Perry’s hit “Dark Horse” infringed the copyright in Gray’s rap song 'Joyful Noise'. The verdict, which Perry has appealed, has generated considerable published opprobrium about its forebodings for songwriters, and more broadly the American popular music industry and consumers of its output. The recent disposition of the Perry dispute is not the first in which a court found liability based on allegations of copying a particular combination and arrangement of otherwise unprotectable elements in a musical work. Joseph Fishman traces the lineage of this basis to Austin v. Columbia Graphophone Co., a 1923 English case. This Article argues that Austin’s rationale for finding infringement betrays a misunderstanding of the interdependent, yet hierarchical, elements of music composition. The musical genres in Austin v. Columbia Graphophone are far removed from those in recent claims against Led Zeppelin, Katy Perry, et al. Austin, however, anticipates the very quandary that today bedevils courts adjudicating music infringement disputes that are based on allegations of similar arrangements of unprotectable expression. Recent cases in the United States have established that marginally original sculptural and visual works merit 'thin' protection, and that only virtually identical unauthorized copies may infringe them. This Article suggests that Austin might have been decided differently had the court applied this reasoning, and also recommends that courts in the United States should now extend this elevated threshold of infringement to music infringement cases in order to restore the damaged equipoise between owners of copyrighted musical works and musicians creating new ones.