District court denies defendants’ motion for summary judgment, finding genuine issue of material fact exists as to whether Katy Perry hit song “Dark Horse” is substantially similar to plaintiffs’ song “Joyful Noise,” and whether defendants had access to plaintiffs’ work.

Plaintiffs Marcus Gray and other Christian rap/hip-hop artists, who created the song “Joyful Noise,” sued defendants Katy Perry, Juicy J. and others, writers of the hit pop song “Dark Horse,” for copyright infringement, asserting that defendants had copied elements of “Joyful Noise.” The court denied defendants’ motion for summary judgment.

Noting that where, as here, there is no direct evidence of actual copying, proof of infringement involves fact-based showings that the defendants had access to plaintiffs’ work and that the two works are substantially similar. The district found material issues of fact with respect to both of these elements.

Plaintiffs argued — and the court agreed — that based on the nearly 4 million views and plays of “Joyful Noise” on YouTube and Myspace, both readily accessible websites, and the success and popularity of “Joyful Noise” in the Christian hip-hop/rap industry, a reasonable jury could conclude that there is more than a “bare possibility” that defendants — who are experienced professional songwriters — had the opportunity to hear “Joyful Noise.”

The court rejected defendants’ argument that a showing of commercial exploitation is necessary to prove access, reasoning that “would make it permissible to infringe on a copyrighted work simply because it was never for sale” and plaintiffs “have demonstrated a triable issue of fact as to access because ‘Joyful Noise’ achieved critical success, including a Grammy nomination,” and was readily available and viewed millions of times on YouTube and Myspace. Acknowledging defendants’ arguments, the court concluded that “defendants’ concerns about the meaningfulness of the YouTube and Myspace view counts, the distinctiveness of the Christian music market, and the lack of commercial activity are questions of fact to be resolved by the jury.”

The court likewise rejected the argument that plaintiffs could not rebut defendants’ evidence of independent creation, noting that “the strength of defendants’ evidence concerning independent creation is a factual issue for the jury to determine at trial, and is not an issue suited for determination at [the summary judgment] stage.”

The court next considered whether the two works were substantially similar, applying the 9th Circuit’s two-part analysis consisting of an objective extrinsic test and a subjective intrinsic test. For the purposes of summary judgment, only the extrinsic test is important because the subjective question of whether works are intrinsically similar must be left to the jury.

The extrinsic test requires similarity in protected elements of the copyrighted work and the allegedly infringing work. Plaintiff must identify concrete elements based on objective criteria, and the test as applied to musical works often requires analytical dissection of a work and expert testimony. Plaintiffs, through the report of their musicology expert, asserted that “Dark Horse” clearly borrows a memorable and highly characteristic combination of discrete and specific musical elements heard in “Joyful Noise” and that “Joyful Noise” can be said to have provided essential and highly characteristic musical materials for “Dark Horse.” Defendants countered with their own musical expert, who concluded that “‘Dark Horse’ does not share any significant structural, harmonic, rhythmic, melodic, or lyrical similarities, individually or in combination, with ‘Joyful Noise.’” Acknowledging that while certain elements plaintiffs’ expert relied upon to support substantial similarity that may be individually unprotectable, the court reasoned that the 9th Circuit precedent is clear that the extrinsic test can be satisfied by showing copying of a “combination of unprotectable elements” and that plaintiffs’ expert identified particular features of the two works that, taken in combination, could support a reasonable jury’s finding of substantial similarity.