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Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: Katy Perry is off the hook for a multimillion dollar

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Speaker 1: copyright infringement verdict. It's a victory not only for Perry,

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Speaker 1: but also for songwriters and the music industry. After a

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Speaker 1: trial last August, a jury awarded two point eight billion

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Speaker 1: dollars to Christian rapper Marcus Gray, known as Flame. They

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Speaker 1: found that Perry's hit song dark Horse let's ray You're

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Speaker 1: a going to come to me, but you better choose.

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Speaker 1: I'm keeping thing copied Gray song joyful Noise. Your boy's

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Speaker 1: been a Christian quite a few years. The victorian face

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Speaker 1: but failed in my fears and I heard a lot

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Speaker 1: of works that have tickled many years. But the judge

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Speaker 1: throughout the jury's verdict and found that Perry had not

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Speaker 1: ripped off Flames song. Joining me as intellectual property litigator

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Speaker 1: Terran Ross a partner with Captain uten Rosen Mint Terry.

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Speaker 1: Just last week we talked about the Ninth Circuits game

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Speaker 1: change of ruling in the Stairway to Heaven case, which

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Speaker 1: the judge cited in the Katie Perry case. Tell us

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Speaker 1: about the similarities, so June I don't think it's a

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Speaker 1: coincidence that the judge here came out with this decision

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Speaker 1: shortly after the led Zeppelin case. She cites to the

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Speaker 1: led Zeppelin decision by the Ninth Circuit repeatedly, and she

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Speaker 1: relies upon it for certain crucial elements of her legal

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Speaker 1: finding that allowed her to toss out the jury verdict

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Speaker 1: of copyright infringement. In particular, she points to the discussion

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Speaker 1: in the led Zeppelin case that merely asserting a handful

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Speaker 1: of unprotected musical elements, when combined together, are not necessarily copyrightable,

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Speaker 1: and that's essentially where she comes out here in this case.

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Speaker 1: She says, the underlying musical elements at issue, this O

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Speaker 1: stop CEO, is not individually protected, and you don't get

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Speaker 1: protection merely by saying you've combined it together with other

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Speaker 1: musical elements. So it's fascinating the way that the led

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Speaker 1: Zeppelin decision on the Ninth Circuit is already having an

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Speaker 1: impact on lower court legal decisions. Terry, for those of

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Speaker 1: us who do not know music as well as you do, explain,

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Speaker 1: was this a simple eight note pattern and is essentially

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Speaker 1: a rhythmic pattern that has repeated over and over again

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Speaker 1: in a musical composition. So it is an eight note pattern,

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Speaker 1: but it was not a single eight note pattern. There

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Speaker 1: were several patterns within it. Does this mean that you

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Speaker 1: can in fact copyright that kind of a pattern, but

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Speaker 1: it has to be unique. It is in theory after

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Speaker 1: but the led Zeppelin decision in this decision possible to

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Speaker 1: copyright such a musical pattern. However, what we're seeing here

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Speaker 1: is an evolution of copyright law. You can't be certain yet,

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Speaker 1: but it appears that copy right in musical compositions is

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Speaker 1: moving toward a more stringent standard that makes it more

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Speaker 1: difficult to claim copyright and even combinations of uncopyrightable musical elements.

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Speaker 1: Would that kind of standard be something completely new or

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Speaker 1: would that be going back in time to a standard

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Speaker 1: previously Well, this decision is really a primer on copyright

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Speaker 1: in music going back decades. The judge does a superb

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Speaker 1: job of working through the history of how on the

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Speaker 1: West Coast the Ninth Circuit has developed the law of

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Speaker 1: copyright with respect to musical compy musicians and asserts that

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Speaker 1: her decision is squarely within the mainstream of that law. Now,

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Speaker 1: when you stand back a distance and look at that

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Speaker 1: historical progressions, it's impossible not to see cycles. We see,

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Speaker 1: for example, a couple of years ago, with the Blurred

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Speaker 1: Lines case, the cycle moving in favor of finding copyright

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Speaker 1: protection for otherwise relatively common elements of musical work. We

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Speaker 1: now see that cycle moving in the opposite direction, almost

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Speaker 1: as if in reaction to the Blurred Lines decision. I

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Speaker 1: want to go back for a moment to put this

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Speaker 1: in context. The jury verdict in this Dark Horse case

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Speaker 1: really stunned the music industry. Explain why so. There was

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Speaker 1: a lot of criticism at the time that the judge

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Speaker 1: should not have allowed this case to go to the jury,

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Speaker 1: and that is because there's a two part test involved here.

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Speaker 1: There is a claim on behalf of this Christian rapper

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Speaker 1: Flame that the songs are substantially similar. In order to

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Speaker 1: prove his case, he has to show that Katy Perry

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Speaker 1: and the producers had access to his work, which the

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Speaker 1: court even here in this decision, has found that they

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Speaker 1: did have access because the song was widely played. But

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Speaker 1: he also has to show um that the works were

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Speaker 1: substantially similar using a two part test. On the one hand,

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Speaker 1: there's the extrinsic test. On the other hand, there's the

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Speaker 1: intrinsic test of substantial similarity. The extrinsic test is reserved

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Speaker 1: to the court, to the judge, it's not a jury finding,

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Speaker 1: and in that the judge has to say what is

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Speaker 1: claimed to have been infringed is in fact protectable copyright

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Speaker 1: at work. Then it gets passed to the jury under

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Speaker 1: the intrinsic test and make a subjective decision as to

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Speaker 1: whether or not those protected elements are seen in the

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Speaker 1: copied work and are substantially similar at the jury trial stage.

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Speaker 1: To judge allowed both of those elements, the extrinsic and

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Speaker 1: intrinsic objective similarity test to go to the jury. And

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Speaker 1: now she has essentially gone back and taken away from

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Speaker 1: the plaintiff the findings with respect to the extrinsic substantial

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Speaker 1: similarity ty test, saying that she is the judge is

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Speaker 1: entitled to decide that these musical elements are not protectable

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Speaker 1: under copyright law in the first place, and therefore to

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Speaker 1: eliminate the jury verdict. Now, some might ask why did

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Speaker 1: she even let this go to the jury if she

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Speaker 1: was going to make that kind of a determination, Because

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Speaker 1: it's really unusual, isn't it For a judge to decide

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Speaker 1: to throw out a jury verdict. It is absolutely unusual

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Speaker 1: and it is a challenging standard to meet under the

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Speaker 1: law to throw out a jury very on a post

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Speaker 1: trial motion. I have seen this done by judges, not

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Speaker 1: just in music cases involving copyright, but also in patent cases.

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Speaker 1: There is a tendency amongst trial judges who are not

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Speaker 1: comfortable with making a decision pre trial on a complex

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Speaker 1: fact pattern such as music, and so instead what they

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Speaker 1: do is they let the jury decide, and in the

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Speaker 1: back of their mind, quite frankly, they are hoping that

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Speaker 1: the jury will do something that eliminates their need to

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Speaker 1: ever consider the extrinsic test. So if the jury here

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Speaker 1: had come back with a vertical favor of Katy Perry, say,

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Speaker 1: we just don't see the substantial similarity here, then the

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Speaker 1: judge would have had a much easier decision to make,

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Speaker 1: and indeed wouldn't have had to have considered the elements

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Speaker 1: that did here in this decision. So it's almost as

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Speaker 1: if they're asking, in part for an advisory decision from

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Speaker 1: the jury and sort of postponing the day of reckoning

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Speaker 1: in which they have to actually make a call on

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Speaker 1: this very very tough test as to whether or not

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Speaker 1: the actual elements are protected. Now, I'm gonna ask you

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Speaker 1: to speculate a little here. A judge in New York

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Speaker 1: put off another high profile copyright case over Edge Shearon's

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Speaker 1: thinking out loud until the steroid to having decision came in.

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Speaker 1: Is the judge likely to make some kind of decision

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Speaker 1: before trial in that case because of these decisions that

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Speaker 1: we've been talking about. So the really difficult issue that

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Speaker 1: the judge faced in the edge Shearing case was related

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Speaker 1: to whether or not certain part portions of the music

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Speaker 1: as recorded could be played to the jury at trial.

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Speaker 1: And the led Zeppelin case upheld a decision by the

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Speaker 1: trial judge to not allow the recordings to be played.

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Speaker 1: They allowed an expert to come in and simply play

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Speaker 1: the notes. And I think that's what and as a speculation,

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Speaker 1: I think that's what the judge in the Edge Shearing

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Speaker 1: case was looking for help and guidance on. So we'll

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Speaker 1: have to wait now and see whether the judge in

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Speaker 1: that case allows recordings to be played for the jury

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Speaker 1: or not. But clearly that judge was looking for some

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Speaker 1: guidance from the Ninth Circuit in the led Zeppelin case.

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Speaker 1: Just explain for those who don't remember the history of

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Speaker 1: the led Zeppelin case why the music itself wasn't played

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Speaker 1: in that trial. So, in that case it involved two songs,

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Speaker 1: a copyright at work and then the actual Stairway to

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Speaker 1: Heaven song that was accused of infringement, both of which

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Speaker 1: were recorded and released to the public prior to nine

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Speaker 1: seventy two v. Two is a key year because that

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Speaker 1: was believed it or not, the first time in the

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Speaker 1: history of the United States that recorded music was copyrightable.

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Speaker 1: Prior to that time, sheet music could be copyrighted, but

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Speaker 1: not hoarded music, and so in the led Zeppelin case,

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Speaker 1: the copyrighted issue was only on sheet music and not

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Speaker 1: on the actual recordings. And that's in large part why

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Speaker 1: the Ninth Circuit in the led Zeppelin decision said that

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Speaker 1: the judge at the lower court was correct not to

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Speaker 1: allow the recordings to be played because it might confuse

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Speaker 1: the jury because the recordings were not the actual copyrights

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Speaker 1: that I were accused of being infringed. Thanks so much, Terry,

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Speaker 1: fascinating as always, that's Terence ross A partner Captain Uten Rosenmand,

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Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

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Speaker 1: subscribe and listen to the show on Apple podcast, SoundCloud,

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Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg