Court in California Forgets about the Doctrine of Scènes à Faire in Copyright Law and finds Copyright in a Musical “Function.” 

In a bizarre case alleging copyright infringement by a pop-star, Marcus Gray et al v. Katy Perry et al, 2:15-cv-05642-CAS-JC, (C.D.C.A.) a federal court jury found that Katy Perry’s song, “Dark Horse,” infringed the plaintiff’s rap song, “Joyful Noise.”  The basis of infringement was not similarity in lyrics nor her sung melody, nor was it the sampling of a sound recording without a license. Rather, the complaint was that a very simplistic and not particularly clever string melody in the background track of the rap record (the “ostinato” in the complaint) sufficiently similar (but not identical to) another simplistic and not particularly clever string melody in the Katy Perry track. Plaintiff argued that the string melodies fulfilled the same “important structural function.” I don’t normally take a side here, but what seems to be lost in the noise is that these simplistic string melody “ostinatos” are commonplace on hundreds, if not thousands of hip-hop tracks for the same “important structural function.”  Besides, a “function” is not copyrightable. In other contexts, commonplace similarities are considered “scènes à faire” and an unlikely basis for finding copyright infringement on its own, for example, a pirate with a patch on his eye and a parrot on his shoulder in a pirate movie.  It seems that this principle was overlooked in this case.  We expect on appeal the 9th Circuit will have to confront the question of how commonly used individual features of pop music can be individually copyrighted.  Artists hope that this may portend the end of the “Blurred Lines” of cases that have found copyright in things like groove and feel of a song. In any case, what happened to the word “original” in the statute §101?  I’ll wager a bet that Marcus Grey got his “wee wee wee wee” idea we’ve heard a million times before from some record made by Dr. Dre.