Katy Perry and Capitol Records must pay $2.8m to rapper Flame after a jury decided she had copied his song “Joyful Noise” in her own track “Dark Horse”.

The five-year-old case culminated in a seven-day trial and was decided by a jury of nine on 29 July 2019. Although according to Perry’s testimony, her co-writers and producers wrote the music for the song, the jury decided she was also liable for copyright infringement.

BACKGROUND

Grammy award winning Christian rapper “Flame”, a.k.a. Marcus Gray, released “Joyful Noise” in 2008, which expresses his Christian faith. Katy Perry, the chart-topping pop star released “Dark Horse” in 2013.

In 2014, Flame filed a law suit against Katy Perry and Capitol Records for copyright infringement under the US Copyright Act of 1976. Section 106 of the 1976 Act provides that Flame has the exclusive right to reproduce and distribute copies of “Joyful Noise”, prepare works that derive from it and to perform it to the public. In both parties’ statements of facts and law (Flame’sPerry’s), the only musical element in dispute was the songs’ ostinato. An ostinato is a melody that supports the main melody.

Flame’s musicologist, Todd Decker, said in his expert opinion (pp.1-46) that the ostinatos shared six points of similarity: phrase length, pitch, rhythm, texture, overlapping musical domains and timbre (for a summary see Flame’s Memorandum against summary judgment, p.14). He gave similar evidence at trial, saying he had not seen any other piece of music that descends in the same way.

The jury’s decision hinged on whether they thought “Dark Horse” was “substantially similar” to “Joyful Noise”. This requires that the ostinato is a “not insubstantial” part of the claimant’s work. It did not matter if Perry only adopted a little of “Joyful Noise” in this respect, so long as the ostinato was a substantial part of Joyful Noise. In other words, it a qualitative assessment, not a quantitative one.

SOUND OF A PIANO

Adam Neely, Rick Beato and Mary Spender are well-known YouTubers and musicians who vlog about musicology and song writing. They point out that the ostinato is not really a prominent feature of Perry’s song. True, it is only found in the verses, but as explained above, the legal test of substantial similarity looks to what is copied from “Joyful Noise”, not how much of “Dark Horse” it occupies. Flame’s ostinato is clearly a substantial part of “Joyful Noise”.

They argue that Decker’s points of similarity are not and should not be protected by copyright. It is even suggested hyperbolically that this case means the sound of a piano or the descending minor ostinato can now attract copyright. This is not how copyright law works. The descending minor ostinato or the timbre of an instrument are ideas that belong to the general public and cannot be protected by copyright. However, if an author brings together several unprotected ideas into a fixed tangible expression, that expression may be protected.

The whole expression becomes something more than merely an assembly of all its parts, but to understand how two works may be similar you have to break them down and discuss each component. This is what Decker did and what happens in the majority of copyright actions. It cannot be that pitch or timbre attract copyright.

That said, the musical analysis in the commentary is helpful. Decker argued that the ostinatos’ timbre was similar in that they create a “pingy, artificial sound in the beat”. If you listen again to the clips above, you will hear that Joyful Noise’s ostinato is played with a sawtooth synthesizer, whereas Perry’s ostinato sounds breathier and much less abrasive. They are very different sounds.

Moreover, the two ostinatos do not share all of the same notes. For a start, they are in different keys, but when transposed into the same key, the sequences looks like this, with the main differences highlighted red.

C|C|C|C|B|B|B|A|C|C|C|C|B|B|B|F

C|C|C|C|B|B|A|E|C|C|C|C|B|B|A|E

Neely points out that Joyful Noise has a distinct pitch bend, portamento, which Dark Horse does not have. He also shows that Bach’s Sonata in F Minor (Adagio) begins with like notes, as do several other well-known pieces of music. Lots of people have commented on Joyful Noise”’s YouTube video, saying how similar it is to other songs, for instance MIMs 2007 song “This Is Why I’m Hot”.

One such piece, “Ol’ Man River” by Oscar Hammerstein and Jerome Kern was the subject of a book written by Decker himself. This is one of the reasons for Neely’s claim that Decker was disingenuous in telling the jury that he had never heard anything like this ostinato before.

CAUSE FOR CONCERN?

It is wrong to single out Todd Decker and suggest that he has created a new and dangerous precedent after a rousing speech to a jury. On a procedural level, this is just not likely, as Internet Law Review explains, Decker would have been answering specific questions under examination and not able to ramble freely to the jury. He would have given evidence first, leaving Perry’s musicologist to give evidence afterwards, which can be an advantage in jury trials.

For nearly 200 years, US copyright law has revolved around a question of substantiality and has come to demand the artist to ask if their work is substantially similar to another and would it be seen as such by a jury of lay people. This is an almost impossible question to answer. US copyright lawyer Leonard French holds that this question is one of the most complicated questions in US law, let alone intellectual property law.

Herein lies the source of frustration for our commentators: they want certainty in an uncertain world. And, in recent cases this uncertainty has been resolved in favour of the claimant. For instance, the 2018 “Blurred Lines” case, in which the jury found a substantially similar “feeling and groove” to be sufficient for copyright infringement.

It may not end here, however. Katy Perry’s legal team have stated, “we will continue to fight at all appropriate levels to rectify the injustice”, and so we can expect an appeal.