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“Dark Horse” Shows the Dark Side of Copyrights in the Music Industry

Thu Aug 8th, 2019 by  General Legal

By: Alexandra Rusyniak

On July 29th, a jury in California decided that Katy Perry’s 2013 hit “Dark Horse” infringed on the copyright of “Joyful Noise,” written by Christian rapper Marcus Gray, aka Flame, in 2008. Following this verdict, the jury determined that Katy Perry, her music label Capital Records, and co-writers owe Marcus Gray a portion of the profits from the success of the hit – 22.5% or roughly $2.8 million to be exact. This case follows a string of other copyright infringement lawsuits within the music industry in recent years. Notably, Robin Thicke and Pharrell Williams lost in defense of their 2013 chart topper “Blurred Lines” and were ordered to pay $5.3 million for copying elements of Marvin Gaye’s 1977 hit “Got To Give It Up.”

In this type of litigation, the approach for proving copyright infringement includes showing evidence of “probative similarities,” or substantial similarities, between the songs and establishing probability that the songwriter was either consciously or subconsciously aware of the preceding song’s existence. For Gray’s case, proving probative similarities between the songs was not a matter of comparing copied sets of musical notes or lyrics. Instead, his case established a similarity occurring in the repeating 8-note beat. A musicologist acting as his expert witness testified that this 8-note beat was responsible for a copied rhythm, pitch, melodic contour, and timbre in “Dark Horse.” To establish that Perry and her team of writers likely heard “Joyful Noise,” evidence of the song’s moderate fame was showcased through a Grammy nomination for “Best Rap or Gospel Album” in 2008 and its presence online with more than 6 million views. Perry’s defense argued that these alleged beat similarities are not copyrightable because they are all too common between musical genres, telling jurors that the “[plaintiff] can’t copyright common building blocks of music.” Further, the defense attempted to claim that “Joyful Noise” was not popular enough online to prove an encounter with the song. 

Critics of the outcome of the case against “Dark Horse” worry that the creativity of musicians will be limited due to copyright ownership over the beat of a song. It is a concern that instead of the biggest names in the industry focusing on the sound of a favorable melody, fears of legal ramifications for a coincidental similarity between song elements will lead to an over editing of the music. From the legal perspective, copyright ownership over elements of a song is a crucial protection that favors the individual creation of the artist. However, the law can quickly become blurred in practice because musicians seek inspiration from peers, often subconsciously, as music exists as an element of shared culture. With this recent ruling against Katy Perry, the finesse of a song’s style may now be fair game for infringement litigation.