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Katy Perry appeals $2.7 million Dark Horse song-theft ruling

By | Published on Friday 11 October 2019

Katy Perry

As expected, Katy Perry – and her team and business associates – have begun the process of appealing the ruling that said her 2013 song ‘Dark Horse’ ripped off the earlier Christian rap track ‘Joyful Noise’. Perry et al have asked the Californian courts to either set aside entirely the jury’s decision in the headline grabbing song-theft case, reduce the damages awarded to the makers of ‘Joyful Noise’, or to order a retrial.

The artist behind ‘Joyful Noise’ – Marcus Gray aka Flame – sued Perry all the way back in 2014 claiming that his copyright had been infringed by ‘Dark Horse’. When it finally got the court this summer a jury first ruled that the Perry team had indeed infringed Gray’s rights, and then awarded him and his collaborators $2.7 million in damages.

It was a controversial ruling within the music community. Some saw it as part of a trend in the American courts where juries with no copyright expertise decide that one song infringes the copyright in another, when the similarities between the two works are just common musical elements found in countless pop and rock songs.

To prove infringement, the ‘Joyful Noise’ side had to do two things. Firstly, demonstrate that Perry or one of her songwriting pals had been exposed to the earlier track before starting work on ‘Dark Horse’. And second, convince the jury that the two songs were sufficiently similar to constitute copyright infringement.

In the new legal filing disputing the jury’s decision, the Perry side argues that neither of these things were achieved during the court hearing back in July.

On the first point, they write: “Plaintiffs did not present any direct evidence of access or circumstantial evidence of a chain of events linking ‘Joyful Noise’ to the relevant authors of ‘Dark Horse’. Nor did plaintiffs present sufficient evidence of widespread dissemination of ‘Joyful Noise’ that would give rise to a reasonable opportunity to hear ‘Joyful Noise’.

On the latter, they add: “No legally sufficient evidentiary basis supports the jury’s finding that ‘Dark Horse’ is substantially similar to ‘Joyful Noise’ in original, protectable expression. The only claimed similarities between the two works are a small number of indisputably commonplace elements in the works’ ostinatos and the undisputed evidence at trial established the many differences between both the ostinatos and the works as a whole. As such, the proper application of the extrinsic and intrinsic tests to these facts requires a finding of no substantial similarity”.

As for the damages awarded in the case, they go on: “No legally sufficient evidentiary basis supports the jury’s finding that 22.5% of the net profit earned by each defendant from ‘Dark Horse’ was attributable to the use of the ‘Joyful Noise’ musical composition in ostinato two in ‘Dark Horse’ as opposed to other factors. Defendants presented the unrebutted testimony of two expert witnesses who testified about the insignificance of ostinato two to the commercial success and profits of ‘Dark Horse’ [and the album it was on]. Plaintiffs did not present their own experts, or any other apportionment evidence”.

In an accompanying document, lawyers working for Perry et al allude to the other big song-theft cases currently working their way through the US courts, in particular the ‘Stairway To Heaven’ case in the Ninth Circuit appeals court. Those cases and this one, they argue, centre on the balancing act of successfully enforcing the copyright in musical compositions, but not in a way that hinders others from composing new music.

“The erroneous verdicts in this case and the precedent established … present serious harm to music creators and to the music industry as a whole”, they write, later adding: “Music creators who use commonplace expression in music are entitled to the same amount of breathing room afforded creators of other art forms; this breathing room is essential to the advancement and balancing of the goals of our copyright laws”.

With that in mind, they state: “This case presents a critical opportunity to address these issues and rectify a wholly improper finding of infringement based on nothing more than the proper use of unprotectable expression that no creator can monopolise”.

Legal reps for Gray will presumably counter that these ‘big picture’ arguments are just a distraction, and that this dispute is simply about Team Perry stealing their client’s work. Though there are plenty of people in the music industry who agree with the big picture arguments contained in Perry’s appeal, and they will be watching how the judge now responds to all this with much interest.