Katy Perry found herself in a “perfect storm” recently when a Los Angeles federal jury found the singer and several of her collaborators guilty of copyright infringement, after a seven-day trial brought against her by Marcus Gray, a Christian rapper who goes by the name of Flame came to an end. Gray claimed that Perry’s hit song Dark Horse, originally released in 2013, was substantially similar to his 2008 song Joyful Noise and that his “reputation as a Christian gospel artist had been harmed by the ‘anti-Christian witchcraft, paganism, black magic, and Illuminati imagery evoked by ‘Dark Horse,’ especially in the music video version.’”1
In total, ten defendants were named in the case: six individuals as songwriters and four corporations that released and distributed the song. All defendants were found guilty of copyright infringement. This is noteworthy because the songwriters named as defendants included Perry and Sarah Hudson, who only wrote the lyrics, and Juicy J, who only wrote his rap featured on the track.2 In another recent copyright infringement case involving 2013 hit Blurred Lines, T.I., who only contributed his rap in the song, was cleared from a suit by the estate of Marvin Gaye, while Pharrell and Robin Thicke were ultimately ordered to pay $5.3 million dollars in damages.3
Perry testified that she had never heard the song, although Joyful Noise appeared on an album that was nominated for best rock or rap gospel album Grammy Award in 2009 and has nearly 5 million views on YouTube and MySpace combined.4 Dark Horse is one of Perry’s biggest hits, selling more than 13 million copies worldwide and the video has been watched more than 2.6 billion times, making Perry the first-ever female artist to reach a billion views on Vevo and YouTube.5
(Screenshot: YouTube)
The trial was bifurcated, which means that the trial was split into two separate stages: one stage to determine Perry and the other defendant’s liability, and a second stage to determine the damages Gray is entitled to receive. The second stage of the trial concluded on August 1, 2019, and resulted in a $2.7 million-dollar award of damages to Gray; with Capitol Records to pay $1.2 million, while Perry was ordered to pay $550,200.6
This decision could present chilling consequences to music writers, who now may be prevented from using generic musical elements in future songs. An expert testifying for the defendants, New York University musicologist Lawrence Ferrara, stated that Dark Horse contained “basic elements common across countless other tunes, including such staples as ‘Mary Had a Little Lamb,’ ‘Jolly Old St. Nicholas’ and ‘Merrily We Roll Along.’”7 Charlie Harding of the Vox podcast Switched on Pop further explained that the similarities between the two songs should be free to use; both songs use “derivative descending minor scales in a basic rhythm,” and both use staccato downbeat rhythms on a high voiced synthesizer which is common in many trap beats.”8 Perry’s lawyer argued that Gray is “trying to own basic building blocks of music, the alphabet of music that should be available to everyone.”9
- Katy Perry Loses Copyright Battle Over ‘Dark Horse’; Ben Sisario; The New York Times; July 29, 2019; available at: https://www.nytimes.com/2019/07/29/arts/music/katy-perry-dark-horse-copyright.html
- Jury: Katy Perry’s ‘Dark Horse’ Copied Christian Rap Song; Andrew Dalton; Associated Press; July 30, 2019; available at: https://www.apnews.com/7eef738596e9458eacb9f9015d7fd7fe?utm_source=morning_brew
- Katy Perry’s ‘Dark Horse’ is just music’s latest copyright battle; Lisa Respers France; CNN; July 30, 2019; available at: https://www.cnn.com/2019/07/30/entertainment/music-copyright-cases-katy-perry/index.html
- Katy Perry Loses ‘Dark Horse’ Copyright Trial; Chris Eggertsen; Billboard; July 29, 2019; available at: https://www.billboard.com/articles/business/legal-and-management/8524466/katy-perry-dark-horse-guilty-verdict-dr-luke-max
- Katy Perry copied Dark Horse from Christian rapper Flame, court rules; BBC News; July 30, 2019; available at: https://www.bbc.com/news/newsbeat-49161916
- Rapper Awarded $2.7M In Katy Perry Copyright Infringement Case; CBS Los Angeles; August 1, 2019; available at: https://losangeles.cbslocal.com/2019/08/01/katy-perry-copyright-infringement/
- Katy Perry Loses ‘Dark Horse’ Copyright Trial; supra, note 4
- A jury said Katy Perry’s “Dark Horse” copied another song. The verdict is alarming.; Alex Abad-Santos; Vox; July 30, 2019; available at: https://www.vox.com/culture/2019/7/30/20747100/katy-perry-dark-horse-joyful-noise-copyright-guilty
- Id.
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Originally published Sept. 18, 2019, at https://therodmanlawgroup.com