Attorneys for Katy Perry, Dr. Luke, Max Martin, and Capitol Records are officially appealing the $2.78 million copyright infringement ruling on “Dark Horse”.
If only this was the most shocking copyright infringement decision the music industry has witnessed over the past few years.
Though not quite the earth-shattering, industry-altering decision handed down in the Marvin Gaye “Blurred Lines” case of 2015, the $2.78 million award handed to obscure Christian rapper Flame against Katy Perry still gave plenty of onlookers some pause. Flame (whose real name is Marcus Gray) claimed that Katy Perry, Dr. Luke, Max Martin, and other collaborators flat-out copied his track, “Joyful Noise,” released a few years before “Dark Horse”.
A side-by-side comparison of the two tracks reveals some surface similarities. But a deeper look by anyone familiar with music composition reveals stark differences. And both rely on a very simple melodic sequence and rather basic musical building blocks (for a full, in-depth comparison and analysis of the two tracks, take a listen to this recent Digital Music News podcast episode with music industry attorney Ed McPherson).
One big problem is that the U.S. legal system often relies on ill-informed juries, who lack any substantive knowledge of music theory or composition. Accordingly, John and Jane Q. Public are quick to hand millions of dollars to plaintiffs for ‘infringing’ songs that share basic chord structures, melodic hooks, or rhythmic elements.
Now, team Perry is hoping to reverse the damage.
In appeals filing this week, attorneys for Perry called the Flame ruling a “grave miscarriage of justice,” while pointing to “erroneous verdicts” that would create “serious harm to music creators and to the music industry as a whole”.
Perhaps the damage is already done, with untold copyright infringement lawsuits currently in the works — if not already filed.
Part of the appeal will focus on whether anyone knew that “Joyful Noise” even existed. In its original case, rapper Flame pointed to a Grammy nomination and noted that Katy Perry had seen a snippet of the song being played. Sounds pretty damning, though Perry’s attorneys are claiming this song was a “drop in the bucket”.
The key is proving that Perry was unaware of the track, and had little exposure. “Plaintiffs did not offer proof of one single digital or brick-and-mortar sale of ‘Joyful Noise’ or (the album) ‘Our World Redeemed‘ and admitted that they have no such evidence,” the appeal blasts.
“No reasonable factfinder could have concluded that ‘Joyful Noise’ was so well-known that it could be reasonably inferred that Defendants heard it, particularly in this digital age of content overload, with billions of videos and songs available to users with trillions of streams,” the filing continues. “The few million views of ‘Joyful Noise’ on the Internet presented by Plaintiffs, over a period of five years, equals an undisputed ‘drop in the bucket’ in modern-day view count statistics — and can hardly constitute widespread dissemination.”
The blowback is coming from more than just Perry, Capitol, Dr. Luke and Max Martin. Others saddled with a piece of the $2.78 million bill are Warner Bros. Music Corporation, Kobalt Publishing, Kasz Money, Cirkut, Sarah Hudson and Juicy J.