After a four-year court battle, last week a jury found that Katy Perry's 2013 hit "Dark Horse" infringed Marcus Gray's copyright in his 2008 track "Joyful Noise." The jury sided with the gospel rapper, professionally known as Flash, whose lawyers alleged that the songs' beats were identical in length, rhythm, and pitch. Perry's lawyers attempted to undermine that contention, claiming that "each of the purported similarities between the works are commonplace" and provided evidence that they'd created the song independently. On Thursday, the jury determined that Perry, her co-writers, and label owed 22.5 percent of the profits from "Dark Horse" to Gray, amounting to nearly $2.8 million.
The high price tag of the judgment and several of the arguments made are reminiscent of those made in the "Blurred Lines" case, which the Court of Appeals for the 9th Circuit decided on last year. At trial in the Central District of California, Pharrell Williams and Robin Thicke admitted that their work had been inspired by Marvin Gaye, but Gaye's heirs contended that the inspiration had gone too far; insisting that although the songs were unique, "nearly every bar of ‘Blurred Lines' contains an element similar to ‘Got To Give It Up.'" The jury sided with Gaye's heirs, finding that Williams and Thicke had indeed infringed Gaye's 1977 song "Got to Give it Up" in their blockbuster hit, "Blurred Lines." Thicke and Williams appealed to the Ninth Circuit, where the appeals court ruled against them again. Williams and Thicke were ordered to pay $5.3 million to the Gayes.
Critics everywhere asserted that the verdict would "chill creativity," and the dissenting opinion of the judgement argued that "[t]he majority allows the Gayes to accomplish what no one has before: copyright a musical style."
The recent dispute over "Dark Horse" appears to further support that theory, and its findings demonstrate a result where the federal court's time-honored test has let down artists again. Despite contrasting facts and evidence that ultimately leave each case on opposite sides of the spectrum created by the court's test, the Dark Horse case leads to essentially the same verdict.
In this flavor of copyright infringement lawsuit, the plaintiff must prove either that the new work shows "probative similarity" to the original, and also that the infringer had access to the infringed work. In some circumstances, the plaintiff can show that the similarity is simply so high that it's basically impossible that there was a coincidence. Where the Gayes opted not to focus on a specific part of the two songs, instead highlighting that "substantial similarity can be found in a combination of elements, even if those elements are individually unprotected," Gray's arguments focused on a highly specific portion of the song. Incidentally, the court's opinion stated that because "Williams and Thicke readily admitted at trial that they had a high degree of access to "Got To Give It Up," the burden for the Gayes to prove substantial similarity was subsequently reduced—"the Gayes need not prove virtual identity to substantiate their infringement action."
With "Dark Horse," Gray's arguments focused on the beat in each song, alleging that a specific element in both songs was nearly identical—both songs contained a "repeating 8-note ostinato (or beat)" that are "substantially, if not strikingly, similar." Gray's expert witness musicologist pointed specifically to the fact that the beat's "rhythm, pitch content, melodic contour, and timbre" were similar in both songs. While the songs themselves are very different overall, according to Gray, "[g]iven the important structural function and expressive use of the ostinato in Dark Horse, Joyful Noise can be said to have provided essential and highly characteristic musical materials for Dark Horse."
Gray also alleged that Perry and her team had access by virtue of the fact that the song had achieved some moderate level of fame—specifically, it had almost 6 million "plays/views" online, and the record on which the song appeared received a Grammy nomination for "Best Rap or Gospel Album" in 2008. To put the number of of online streams in perspective, if all 6 million of those plays had occurred on Spotify, Flame's royalties would be somewhere in the $40,000 range. In this case, those plays derive from multiple platforms (mostly YouTube and Myspace) and may even represent repeat plays on behalf of a particular user. While the widespread commercial distribution and true success of "Got to Give it Up" made clear that it would have been a difficult song to avoid, it's very possible that this flexible definition of access in today's internet age could open up the floodgates and allow a much broader range of content to be considered "accessible."
Overall, the two cases show two different ends of the spectrum on both the amount "copied" as well as access to original works—which indicates that there is a broad range of works that could possibly be considered infringing. One interesting point is that neither Williams and Thicke nor Perry appeared to make a robust "fair use" argument—i.e. that their presumed use of the original work is excused because it was transformative. Instead of claiming that the differences at issue weighed against "substantial similarity," maybe their cases would have been better served by arguing that the new songs were transformative.
If the predicted "chill" that critics anticipated after the "Blurred Lines" case has indeed been proven true, it is now even more apparent that the "substantial similarity" test can be malleable to fit a range of claims so broad that it may perhaps be unsuited for music in 2019. Although very few music cases have been successful in defending against infringement by invoking the "fair use" concept—it seems like if there was ever a time for it to be applied, it would have to be now.