By Paul M. Quin, Esq.
A Los Angeles jury recently returned a verdict finding that Katy Perry’s 2013 hit song, “Dark Horse”, violated a prior copyright attached to a 2009 Christian song called “Joyful Noise.” Katy Perry and four other songwriters as well as the label and distributors were all found liable for damages to Christian rapper Marcus Gray (a.k.a. Flame) and two co-authors of “Joyful Noise”. The jury awarded damages of $2.78 million.
Katy Perry and her fellow songwriters defended the claim partially on the basis that they had never heard the song “Joyful Noise” before and, therefore, could not have violated its copyright. Because, however, Katy Perry had previously recorded in the Christian music genre under the name Katy Hudson, it appears the jury did not find her claim credible. Once a jury doubts a party’s word in relation to one defense, other defenses can become problematic. The second line of defense was that the allegedly copied component was simply a basic building block of music and not subject to copyright protection. Once the first defense was rejected, and the jury was exposed to a convincing musicologist testifying on behalf of the plaintiff, the jury also rejected the second defense.
The allegedly stolen component is neither the melody, nor the lyrics of “Dark Horse”. Rather, a repetitive ostinato acting as a drone underneath the melody, which was held to be substantially similar to the prior recording. This finding is troublesome for future songwriters in several ways. First, as was the case in the “Blurred Lines” litigation, the offending component is not actually susceptible to copyright. Second, the offending ostinato follows a musical tradition which can be traced back to the music of Johann Sebastian Bach. Current copyright litigation seems to be heading down a dangerous path which confuses musical inspiration with illegal infringement. Such an issue can stifle creativity and lead to reluctance to release new music. The use of musicologists as experts has led to the development of a cottage industry of partisan testimony, much like that which has developed in pharmaceutical and tobacco litigation. We can expect much more litigation in this area until the case law becomes more clearly defined and precedent establishes that claims can only be brought on infringement of a copyrightable component.
A jury verdict, however, should not be the end of such a matter. In fact, following the verdict in the Stairway to Heaven case (finding that Led Zeppelin did not violate copyright), the Judge in the Katy Perry matter overturned the verdict and imposed judgment for Ms. Perry. As a result, Marcus Gray appealed to the Ninth Circuit Court of Appeals. The Ninth Circuit upheld the lower Court’s decision and judgment was entered for Ms. Perry. In so deciding, the appellate court held that “the portion of the ‘Joyful Noise’ ostinato that overlaps with the ‘Dark Horse’ ostinato consists of a manifestly conventional arrangement of musical building blocks.”
If you have questions on copyright infringement or general questions on entertainment law, please contact Paul M. Quin, Esq.. Mr. Quin is a partner at Saxon|Gilmore and concentrates his practice on entertainment law, freedom of speech, general tort law, and complex business litigation. He also has spent many years as a professional drummer and remains active in the music industry. Mr. Quin represents musicians in a number of legal arenas. He can be reached at 813.314.4523 or via email at firstname.lastname@example.org.