A nine-person Los Angeles jury has found that Katy Perry’s 2013 song Dark Horse infringes the copyright in Marcus Gray a.k.a Flame’s 2009 song Joyful Noise. The copyright infringement claim concerned the beat and opening instrumental riff of Flame’s Joyful Noise.
Copyright Infringement – Not just noise
The riff is a single bar comprising of 8 notes – CCCC BBB A – of an A minor scale. Flame alleges that this is the “hook” of his song. A hook refers to a short riff or phrase used to make a song appealing and to catch the ear of the listener.
In the background of the verse of Katy Perry’s Dark Horse, Flame alleged, was a similar descending pattern comprising 8 notes – DDDD CC B E – of a B flat minor scale.
The chord progression, melody and lyrics of the two songs differ. Expert evidence led by Katy Perry’s lawyers made efforts to differentiate Dark Horse from Joyful Noise on this basis. The problem for Katy Perry was that the riff eventually found to infringe Flame’s hook is repeated throughout a substantial part of Dark Horse. This makes the two songs sound quite similar.
Despite the apparent simplicity of the hook – which was compared to Mary Had a Little Lambby Katy Perry’s expert witness – the reproduction of it throughout Dark Horse was fatal and an injunction against distribution was ordered.
Indeed, the claim is similar to well-known Australian case EMI Songs Australia v Larrikin Music Publishing Pty Ltd, where just two bars of Men at Work’s Down Under had been found to infringe the 1934 classic Kookaburra Sits in the Old Gum Tree. In that case, it also was not relevant that the two songs were in different keys, had different harmonies and were played in different rhythms.
Infringement and contributory infringement
The jurors found all six songwriters and all four corporations that released and distributed the songs, as well as the producers, were liable for the copyright infringement. This included Katy Perry herself and Sarah Hudson, who only wrote the lyrics. Even Juicy J, who contributed a single rap verse to Dark Horse, was found liable as a contributory infringer.
Under US law, proof of actionable copying can be proven by circumstantial evidence which shows a striking similarity between the two works. Katy Perry’s legal team attempted to defend the claim in this regard by alleging that none of them had ever heard of Flame or the song Joyful Noise.
That argument was shot down in flames by Flame’s lawyers who brought evidence of how widely Joyful Noise had been distributed. This included the millions of views and streams Joyful Noise had on YouTube and Spotify.
Joyful Noise was also described as a “Christian rap song”. As Michael Kahn, Flame’s attorney put humorously, “they’re trying to shove Mr. Gray into some gospel music alleyway that no one ever visits”. Kahn also pointed out that Katy Perry began her career in Christian music.
Lessons in Copyright Infringement
The case is indicative of a global trend towards protecting the rights of copyright owners from a wholistic approach to the work. The scope of what constitutes infringement, at least in relation to musical works, has been broadening since the Estate of Marvin Gaye took on Robin Thicke’s Blurred Lines in 2015