Bill Hochberg
A recent federal jury ruling has caused a stir in the music industry, as it accuses Katy Perry and her songwriting team of stealing six notes from a Christian rapper’s track. The contentious decision has ignited debates and concerns about the impact on songwriters and their creative processes. Let’s dive into the details of this controversial copyright verdict.
The plaintiff, Marcus Gray, known as Flame, claims that Katy Perry incorporated a simple sequence of six even quarter notes from his 2009 track “Joyful Noise” into her 2013 mega-hit “Dark Horse,” which has accumulated a staggering 2.6 billion views on YouTube. The legal battle between the two artists has raised questions about the boundaries of creativity and musical inspiration. You can compare the two songs here and here.
In addition to the copyright infringement claim, Flame alleges that Perry tarnished his song and reputation by including lyrics alluding to the Illuminati and other offensive references to some Christians. Seeking millions in damages and an injunction to halt the distribution of “Dark Horse,” the complaint even publicly reveals the apparent addresses of Perry and her team, potentially adding a fear factor to the proceedings.
This case highlights a concerning trend in the music industry, where any song that achieves Top Ten status becomes a target for copyright claims. Numerous popular songs, such as Miley Cyrus’ “We Can’t Stop,” Ariana Grande’s “One Last Time,” Justin Bieber’s “Sorry,” Demi Lovato’s “Stars,” and Ed Sheeran’s “Photograph” and “Thinking Out Loud,” have faced similar lawsuits. In fact, at the recent Grammy Awards, four out of the eight nominated songs for Song of the Year were already entangled in copyright disputes, while two others were reportedly under the threat of litigation.
But how did the music copyright landscape reach this point?
The surge in copyright lawsuits against well-known pop stars gained traction after a 2015 verdict that awarded $5.3 million to Robin Thicke and Pharrell Williams. The jury’s decision was based on the argument presented by musicologist Judith Finnell, who claimed that Thicke and Williams’ hit “Blurred Lines” infringed upon Marvin Gaye’s “Got To Give It Up,” despite the absence of significant melodic, harmonic, or rhythmic similarities. Instead, the ruling relied on the notion of a shared “vibe” between the songs, a concept that many experts argue is not legally protectable.
In the case of “Dark Horse” v. “Joyful Noise,” we encounter a distinct sequence of six even quarter notes, although in different keys, unlike the absence of melodic resemblance between “Blurred Lines” and “Got To Give It Up.” However, the simplicity of the “Joyful Noise” beat raises questions about the clarity of the recent jury verdict, mirroring the ambiguous “vibe” ruling in the “Blurred Lines” case.
In earlier decades, such copyright disputes were a rarity. Bruce Springsteen didn’t sue John Cafferty over similarities between “On the Dark Side” and a Bruce Springsteen-esque vibe, and Van Morrison didn’t file a lawsuit against Bruce Springsteen for capturing a Van Morrison vibe in “Spirit in the Night.” Artists like Curtis Mayfield and Van Morrison respected the influence of their peers and predecessors, embracing the concept of musical evolution.
Today, the landscape has changed, and music copyright cases have become a potentially lucrative endeavor. According to a recent annual report, global recorded music revenue in 2018 experienced a 9.7% increase compared to the previous year, marking the fourth consecutive year of growth.
Songwriters once found security in drawing inspiration from the giants who came before them, as Isaac Newton famously stated in 1675: “I was standing on the shoulders of giants.” This sentiment echoes Bernard of Chartres’ observation from five centuries earlier that “we are like dwarfs perched on the shoulders of giants … [so we] see more and further than our predecessors.”
However, today, some giants are shaking their shoulders, causing pop stars to tumble and face the consequences of legal battles that potentially drain their financial resources.
It’s important to emphasize that appropriating a substantial and original melody line or verse has always been, and should continue to be, unlawful. Several high-profile cases have highlighted this principle, such as George Harrison’s “My Sweet Lord” (which unintentionally replicated the Chiffons’ “He’s So Fine”), the Beach Boys’ prompt settlement with Chuck Berry over “Surfin’ USA,” and Sam Smith’s resolution with Tom Petty and Jeff Lynne over similarities between “Stay With Me” and “I Won’t Back Down.” In each instance, legal action was warranted due to clear melodic resemblance.
Cases involving blatant copying rarely reach a jury or court clerk’s filing window, as they are typically resolved swiftly with legacy writers receiving a share of the new hit song’s income and writing credits.
However, the writers and producers of “Dark Horse” opted not to settle, seemingly confident that what may seem self-evident to music professionals would be equally apparent to a jury.
As Perry’s attorney, Christine Lepera, rightfully argued, “you can’t copyright musical building blocks.”
Similarly, Perry’s music expert, Lawrence Ferrara, a respected music professor and musicologist from NYU, provided evidence of earlier songs, such as “Jolly Old St. Nicholas” and “Merrily We Roll Along,” that share almost identical note sequences, highlighting their common usage. However, the arguments seemed to resonate with some jurors but not others, resulting in a swift victory for Flame.
Convincing jury members, often lacking musical backgrounds, that certain tone and rhythm sequences can be original enough to warrant copyright protection while others are simply musical building blocks or “vibes” that do not belong to anyone remains an ongoing challenge for music litigators.
A recent high-profile case, the Led Zeppelin “Stairway to Heaven” trial (Skidmore v. Led Zeppelin), went the other way. The jury dismissed the claim against Led Zeppelin, ruling that an A minor chord and a descending bass line, despite being a simple motif, were not copyrightable. This decision was later subjected to further examination by a three-judge appellate panel in the Ninth Circuit Court, followed by an 11-judge panel’s decision to revisit the case, with the final outcome still pending.
Despite the challenges, songwriters continue to write, and singers continue to sing, even as dark clouds of copyright litigation loom overhead. The raindrops keep falling on their heads, or perhaps we should say, on their creative endeavors.
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