The ‘Dark Horse’ ruling could mean millions in damages. The music business may be looking at billions more.
What exactly constitutes copyright infringement of a musical work these days? You’ll have to ask a jury.
In other words: nobody can safely answer the question of what constitutes musical copyright infringement unless the infringement is absolutely clear-cut and blatant. Otherwise, it’s fair game, with anything even remotely resembling something else vulnerable to litigatory attack.
Like Katy Perry’s “Dark Horse,” which — apparently — rips off a little-known song by Christian rapper Flame. Flame and his crew argued that Perry, Dr. Luke, Juicy J, and others involved in “Dark Horse” must have known about their song, titled “Joyful Noise,” because it was nominated for a Grammy back in 2008.
It also has millions of plays on Spotify, YouTube and MySpace — yes, MySpace — which was enough for U.S. District Judge Christina Snyder to give the case the go-ahead.
“Dark Horse,” by comparison, has billions of streams, and is performed by one of the most recognizable pop stars in the world. It was also created by two of the most famous producers in music, Dr. Luke and Max Martin, who helped to craft the winning song.
Did Perry, Dr. Luke, Max Martin, guest rapper Juicy J, et. al., know about “Joyful Noise”? Maybe yes, maybe no, though the melodic loop is uncannily similar. But even if they did know about the song, which they’ve denied, this might simply be a coincidence.
It boiled down to the skill of the arguing attorneys, the testimonies of the creators, and the highly-arbitrary ruling of a painfully uneducated jury. That jury was almost certainly unaware that the internet is flooded with millions of artists and tens of millions of songs per year. It’s also unlikely that this jury understands that relatively simple melodies can occur independently of one another. It’s not always copying, especially when simple rhythms and melodic progressions are involved.
It’s hard to say this was clearly an infringement, simply because there’s a reasonable chance it wasn’t intentional.
Perhaps Katy Perry, the multi-millionaire performer who enjoys outsized celebrity attention, and her celebrity producers and major label allies, were too big a Goliath in the eyes of the emotionally-driven jury.
The result was that the presence of a very similar melodic hook, coincidental or otherwise, was judged as infringement (you can check out both tracks here, and judge for yourself).
“This is an interesting decision, which shows just how low the bar can be for copyright infringement,” Nick McDonald, a copyright specialist at intellectual property law firm Potter Clarkson relayed to DMN.
“The segment of music in question is extremely simple and short, has a markedly different production and tempo and there are clear differences between the two songs as regards the notes actually used.”
According to McDonald, it isn’t that there’s zero similarity. It’s just questionable whether enough similarity really exists to judge this copyright infringement with millions of damages attached (or, possibly tens of millions when all is said and done).
“Certainly, there is a degree of similarity, particularly in the three-note descending melody played over the beat line, but there will be some sympathy for Perry’s lawyers, who argued that the claimants are essentially trying to assert a monopoly over the ‘basic building blocks of music’.”
And there’s the big, billion-dollar problem. Because as long as ‘basic building blocks’ of music can be judged a ‘basic infringing blocks of music,’ the music industry is staring at a potentially serious copyright trolling problem ahead. Because any song that sounds similar to another song is now subject to legal scrutiny, with targets like “Dark Horse” minting millions for the successful litigant — even if it’s bullshit.
Of course, copyright trolling isn’t copyright trolling if a real infringement exists.
And some rip-offs are just obvious. The use of a sample without a clearance in a rap song, for example, is clearly copyright infringement. So is the extensive and obvious lifting of a complex melody or lyrical refrain.
Two cases that quickly come to mind: a recent lawsuit against rappers TeeFlii and 2 Chainz, for blatantly ripping off a melody from a 1993 Robyn S. track, “Back It Up,” and an infringement case against Drake and YG for lifting a large lyrical refrain — without permission — from 90s rapper Rappin’ 4Tay (which resulted in a $100,000 out-of-court settlement).
Those are just some recent examples of blatant infringement. One recent case that isn’t blatant infringement, I’d argue, is the Marvin Gaye Estate’s recent case against Pharrell Williams and Robin Thicke. The duo’s ‘Blurred Lines’ was judged a rip-off of Gaye’s “Got to Give It Up” by — you guessed it — a jury.
That ‘infringement’ was largely based on similarities of musical elements, including instrumentation and phrasing, not direct line-for-line copying (and if you’re interested in learning more about this controversial case, here’s our podcast interview with the Gaye Estate’s attorney, Richard Busch).
But what’s the difference between ‘blatantly infringing’ and ‘possibly infringing’?
Unfortunately, neither the music industry, U.S. Copyright Law, nor the court systems have an answer to that question. Which means anything is fair game for infringement, with everything incentivizing trolls to pursue multi-million dollar lawsuits.
After all, if Flame had lost to Katy Perry, the downside would be minimal. It’s on to the next infringement case. But if there’s a win — which is exactly what happened this week — there are potentially tens of millions of dollars to be claimed.
And in the absence of a clear-cut standard of exactly what constitutes infringement of a musical work, cases like “Dark Horse” won’t be the exception in the coming years.
They’ll be the rule.