Katy Perry Lost Her “Dark Horse” Copyright Lawsuit, But the Real Loser is the Music Industry
Last summer, a Los Angeles jury found singer Katy Perry, her co-songwriters, and the label involved in Perry’s 2013 hit song “Dark Horse” liable for copyright infringement to the tune of $2.78 million.[1] According to the jury, Perry’s “Dark Horse” copied the beat of “Joyful Noise,” a 2009 Christian rap song by Marcus Gray, professionally known as Flame.[2] Jurors rejected Perry’s arguments that she had never heard of Flame or “Joyful Noise” before the lawsuit and that the beat in question was too basic to be copyrightable.[3]
While trials like Perry’s are relatively rare, she was not the first pop star to be successfully sued for music plagiarism.[4] The “Dark Horse” verdict came in the wake of the high-profile “Blurred Lines” case, in which Pharrell and Robin Thicke were ordered to pay $5.3 million to Marvin Gaye’s estate after a jury found that the duo’s 2013 mega-hit song copied Gaye’s 1977 chart-topper “Got To Give It Up.”[5] Both decisions have been criticized as allowing an artist to copyright a musical style or feel, and both raise questions about what constitutes original music.[6]
To prevail in this type of copyright infringement claim, the plaintiff must prove that the defendant had access to the plaintiff’s work and that the two songs are substantially similar.[7] However, the “substantially similar” standard is not precisely defined.[8] There are no bright-lined rules about how many notes or musical characteristics a song may mimic without penalty, nor must melodies be exactly the same to be considered infringement.[9] Rather, the judge instructs the jury to determine whether two songs sound “substantially similar” to each other.[10] Trials typically turn on expert testimony from professional musicologists who are employed by each side to support their side’s arguments.[11] The unpredictability of this system is probably why most artists try to settle rather than roll the dice with the jury.[12]
In the “Dark Horse” lawsuit, the crux of Flame’s allegation focused on a highly specific element featured in both songs—a repeating eight-note “ostinato,” or beat.[13] At trial, both sides had a musicologist to testify, with the two experts reaching opposite conclusions. Flame’s expert told the jury that the similarities between the ostinatos were substantial and significant with regard to their pitch, rhythm, texture, pattern of repetition, melodic shape, and timbre.[14] Perry’s expert highlighted the key differences in the overall songs and the ostinatos themselves, including the fact that they are in different speeds and keys.[15]
Perry’s team insisted that they had never heard of Flame or listened to “Joyful Noise” before the lawsuit.[16] Flame countered that “Joyful Noise” had achieved a moderate level of success—it received nearly six million online plays/views, and the album on which the song was featured received a Grammy nomination for “Best Rap or Gospel Album” in 2008.[17] Critics say that in today’s Internet age, the fact that an artist can prove accessibility with a few hundred thousand YouTube views has rendered the access criteria pointless.[18]
The “Dark Horse” decision has been widely criticized by music experts. Critics argue that the decision sets a dangerous precedent that will stifle creativity by limiting musicians’ use of sound and their ability to borrow ideas from others.[19] As Perry’s lawyer Christine Lepera said in closing arguments, “They’re trying to own basic building blocks of music, the alphabet of music that should be available to everyone.”[20]
Charlie Harding of the Vox podcast Switched on Pop explains that the notes, key, and beats per minute in the two songs, in addition to being different, are based on relatively common musical forms that can be found in numerous compositions.[21] Therefore, whether or not Perry independently created the beat or plagiarized should be irrelevant if the content is an elemental musical building block.[22] (For a detailed and amusing critique of the decision, watch Adam Neely’s YouTube video, Why the Katy Perry/Flame Lawsuit Makes No Sense.[23])
The “Dark Horse” decision, which imposed a multimillion-dollar penalty against Perry for the use of a basic musical form, suggests that the legal standard for a finding of music infringement is too low and that the odds are unfairly stacked against defendants. In light of the “Blurred Lines” and “Dark Horse” decisions, the music industry is anxious to see whether allegations of copyright infringement proliferate.
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