Our Way-Too-Early Hot Take About the “Dark Horse” Jury Verdict

There was shock and indignation at the July 29 jury verdict that a song called “Dark Horse” infringed a rap song1Always described as a “Christian” rap song, but I’m unclear what the religion has to do with the legal or even cultural analysis. called “Joyful Noise.” The trial leading to the verdict lasted a week, but few of us actually attended the trial. Thus, much of the commentary focused naturally on why there even was a trial or why we even have juries for legal issues that are clearly far and above mortal ken.

It’s far too early to analyze the case because we’re not quite sure what the verdict will eventually be. The defendants will shortly be filing post-trial motions to reverse the jury’s verdict or to demand a new trial. Such motions are rarely granted, of course, but these might stand a chance.

Also, the case wasn’t as extensively covered as “Blurred Lines.” Everyone was in the courtroom, it seems, for Katy Perry’s testimony, but she wasn’t that important a witness. Dr. Luke and Cirkut were much more important witnesses because they collaborated on the “beat” that was at issue. They were the ones who would need to convince the jury that they honestly never heard “Joyful Noise.” I haven’t been able to find a good report on how their testimony went.

I love this, and so should you.

“Katy Perry: Dark Horse Single Cover” by Yao Xiao is licensed under CC BY-NC 4.0

All the same, I’ve been fairly outspoken about tamping down the sky-is-falling hot takes from the “Blurred Lines” case. I’ve only blogged directly about that case four times directly, and several more times indirectly (usually in connection with the Led Zeppelin/“Stairway to Heaven” case)! So, even as we wait for the post-trial motions to marinate, I think it might be worth comparing this case to the “Blurred Lines” to see if my views potentially need revising.

Access in a Vacuum

My main point in my “Blurred Lines” posts was the case was an outlier, and it was an outlier because the proof of access was overwhelming. Under the traditional analysis, to prove copyright infringement, you had to prove that the defendant had access to the underlying work and that the two works are substantially similar. Further, the more access you had, the less similarity you needed, and vice-versa. I’ve blogged elsewhere that this is a terrible test for infringement. And it’s thankfully a test that’s giving way to the correct test, but that was the law at the time of “Blurred Lines.”

In the “Dark Horse” case, however, the proof of access was thin. It wasn’t non-existent, but it was attenuated. The plaintiffs relied on a theory of widespread dissemination, i.e., their song “Joyful Noise” was “out there” where it might’ve been heard by one of the defendants, who consciously or unconsciously used it to write “Dark Horse.” That defendant would have had to have been Dr. Luke, because the element of “Joyful Noise” allegedly copied was the beat, and beats are Dr. Luke’s province. (More on Dr. Luke later.)

Access, however, shouldn’t be viewed in a vacuum. It’s not just that a defendant had some link to the underlying work. Access is a proxy for copying, so the proof of access has to help answer the question: did (say) Dr. Luke copy “Joyful Noise”?

The Book and the Library: A Tale of Access

Consider these two hypotheticals2Yeah, you might recognize these from previous posts., both of which involve you, a public library in your town, a book, and a witness (me).

  • Hypothetical No. 1: I see you with the book open, and you are staring intently at its pages while writing furiously in a spiral notebook. Are you copying the book? We have excellent evidence of access, but we don’t quite know you were copying. Maybe you were multitasking and writing a letter or a novel. We’d need to look at what you wrote. If there’s any similarity between what you wrote and what’s in the book, we can conclude you copied. (Whether what you copied was illegal is a separate question.)
  • Hypothetical No. 2: I see you enter the library. Later, we find in your spiral notebook a draft essay on the same subject matter as the book. Did you copy? We can’t say. There are many books in the library on the same subject matter, and who is to say you looked at the book—or at any of the books on the subject matter? For all we know, your writing is completely original, and any similarity with the book is coincidental (in the manner that great minds think alike). In this case, we’ll need more similarities between your essay and the book—similarities that make you say, “Huh, that’s probably not a coincidence”—before we’ll say you copied.

“Blurred Lines” was like Hypothetical No. 1. “Dark Horse” is like Hypothetical No. 2. Now go and listen to “Dark Horse” and “Joyful Noise.” “Dark Horse” is kinda similar to “Joyful Noise.” But are they so similar that you’d say Dr. Luke probably copied “Joyful Noise’s” beat, in the absence of any evidence connecting Dr. Luke to “Joyful Noise”? And what if I told you that “Joyful Noise’s” beat wasn’t all that original, i.e., there are lots of similar beats “out there” (putting aside questions of copyrightability)?

So: my way-too-early, I wasn’t-in-the-courtroom hot take is: Plaintiffs didn’t prove copying. So what went wrong? Jury instructions went wrong.

Law in Flux

The two hypotheticals above reflect how copyright scholars, and the Second Circuit (usually), think copyright infringement should be analyzed. First you see if there’s enough evidence of copying, then you see if what was copied was protectable and substantial. And when you examine copying, you look at similarity between the works one way (sometimes known as, God help me, “probative similarity”), and when you examine the wrongfulness of the copying, you look at similarity another way, which is more of a holistic, look-and-feel approach. But most courts don’t do it this way. Most courts smash the two types of similarity together, so the test is just: access + look-and-feel.

Since the “Dark Horse” case was in California, we are concerned with the way the Ninth Circuit handles copyright infringement. But at this exact moment, that is in flux. Not just unsettled, but in flux. The Ninth Circuit used to use that collapsed formulation (with a special twist that’s only partially relevant for this discussion). However, a couple of years ago, in the Nike-“Jumpman” case, the Ninth Circuit appeared ready to adopt the Second Circuit’s uncollapsed test. Then, last year, in the Led Zeppelin/“Stairway to Heaven” case, the Ninth Circuit explicitly adopted the Second Circuit’s uncollapsed test.

But, wait! Before the jury could be instructed in the “Dark Horse” case, the Ninth Circuit withdrew its opinion in the Led Zeppelin case, because it wanted to reconsider the entire appeal. I strongly suspect that, when the Ninth Circuit re-issues an opinion in that case, the Second Circuit’s uncollapsed test will be restored (because the reasons for reconsideration appear to lie elsewhere). But until then, the Led Zeppelin appellate decision is not precedent and thus changed nothing. And we’re back in the (comparative) stone ages.

Very Bad Jury Instructions

(Access the jury instructions here.)

Still, it’s not a foregone conclusion that the jury instruction on access/copying will suck. Let’s see what it is:

The plaintiffs have the burden of proving that the defendants copied original elements from the musical composition “Joyful Noise.” To do so, the plaintiffs must show, by preponderance of the evidence, that: 1) The defendants had access to “Joyful Noise” prior to creating “Dark Horse”; and 2) There are substantial similarities between “Dark Horse” and original, protectable elements of “Joyful Noise.”
(Jury Instruction No. 35.)

Oh. Oh, dear. That is a bad jury instruction. It straight up implies that you can find infringement if you find any amount of access can support a finding of infringement. Perhaps there’s another jury instruction that clears things up? Oh, here we go:

Access may be shown by proving, by preponderance of the evidence, that “Joyful Noise” was widely disseminated. In order to prove access by widespread dissemination, the plaintiffs must prove, by a preponderance of the evidence, that the defendants had a reasonable opportunity to hear “Joyful Noise.” A reasonable opportunity means a reasonable possibility, not merely a bare possibility, that the defendants heard “Joyful Noise.” Such a possibility cannot rely on speculation or conjecture.

Nope, that didn’t clarify anything. If anything, it makes things worse. Recall my hypothetical about going into a library that contains the copyrighted book. That’s a “reasonable possibility” to access the book, yet surely, it’s not enough to prove copying.

Having followed these jury instructions and concluded that there was just enough evidence of access, the jury turned to the question of “substantial similarity” and again found just enough evidence. And here we are.

Now What?

Bad jury instructions can be a reason to reject a jury verdict, provided the judge is confident the bad instructions influenced the verdict (i.e., not every mistake in the jury instructions is grounds to challenge the verdict). And here, you’d think there’d be a good chance the judge will reverse on those grounds. However, while the Led Zeppelin/“Stairway to Heaven” case remains in suspended animation, these instructions are not “wrong.” Further, the defendants didn’t object to the instructions at the time—a precursor for challenging them—probably because they weren’t “wrong” under binding authority in effect at the time.

Another possibility is that, even assuming the correctness of the instructions, the judge decides there wasn’t enough evidence for a finding of access. But that’s a super long-shot. The standard isn’t whether the judge just disagrees with the jury’s conclusion. It’s that no reasonable jury could have found access based on the evidence. And here, there was evidence of widespread dissemination, and the jury was entitled to disbelieve Dr. Luke’s denials.

Even if the instructions were better, there’s no guarantee that the jury got it “right.” Jury instructions are not, as you might guess, written so non-lawyers can understand them. You might expect the jurors are given a handy checklist or chart they can take back with them for deliberations. Nope. Jury instructions are read to the jury at the close of trial, when the jurors (1) are very tired, and (2) may already have made up their minds. Worse, as you can see, they’re written in a kind of dry legalese—not the worst kind, but it’s not intuitive to non-lawyers (and remember, the jurors don’t get to go back and study them).

Here’s one way this works out. The trial court denies the post-trial motions, the defendants appeal, the revised Led Zeppelin/“Stairway to Heaven” opinion issues (with the adoption of the Second Circuit uncollapsed test intact), and this case is reversed because the jury instructions are (retroactively) bad.3It won’t matter that the defendants didn’t object because of the change in law.

Can We Give Juries a Real Chance to Do Their Jobs?

One take-away: Before you go bad-mouthing or advocating your right to a jury in a civil trial—a right that at one time was important enough to enshrine in the Bill of Rights—and a cornerstone of our democratic system, because you think non-lawyers (or non-experts) can’t decide complicated issues like rock music, consider first whether your biases are getting in the way, and then whether the jury was given a fair chance to do its job.

There are, of course, many more interesting issues at play in the “Dark Horse” case, such as whether a “beat” is even protectable, whether this beat is protectable considering it sounds just like Art of Noise’s “Moments in Love,” whether it’s fair for the defendant to be stuck proving non-protectability, whether Dr. Luke pushes the boundaries of permissible copying too much, and whether Dr. Luke is a jerk.4He sued Ke$ha’s mom here in Middle District of Tennessee TWICE for defamation. But, in my view, if you can get out on access, you should. Copyright infringement is first and foremost about copying.

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.


    1 Always described as a “Christian” rap song, but I’m unclear what the religion has to do with the legal or even cultural analysis.
    2 Yeah, you might recognize these from previous posts.
    3 It won’t matter that the defendants didn’t object because of the change in law.
    4 He sued Ke$ha’s mom here in Middle District of Tennessee TWICE for defamation.