This week, a Los Angeles jury ruled that Katy Perry’s 2013 hit song “Dark Horse” featuring Juicy J infringes a 2008 Christian rap song. The dispute began in 2014, when Christian rapper, Marcus Gray, known to his audience as Flame, in addition to collaborators Lecrae and John Reilly, filed a lawsuit against Katy Perry, Juicy J, and other collaborators of “Dark Horse” alleging the hit infringed their rap song, “Joyful Noise.” The unanimous decision was handed down on July 29th, after a week-long trial. The jury has yet to decide the amount of damages defendants owe the Christian artists for copyright infringement.
“Dark Horse” was first released by Perry in 2013 on her fourth album, Prism. The song was produced by Dr. Luke, Max Martin, and Cirkut, who were also named as co-defendants in this lawsuit. At the time, the song was lauded for its strategic combination of techno, pop and trap music. Indeed, plaintiffs allege that “by any measure…[the] song is a mega-hit.” The song experienced weeks at the top of Billboard’s (as well as other) music charts. Millions of digital copies have been sold and downloaded throughout this country. In addition, at the time the complaint was filed, more than 400 million viewers worldwide had watched the official music video for “Dark Horse” on YouTube. Moreover, Katy Perry performed “Dark Horse” during her 2015 Super Bowl halftime show.
“Joyful Noise,” on the other hand, experienced success in a niche market, due to its “devoutly religious message.” The song was created in 2007 and featured on Flame’s fourth album, Our World: Redeemed, which was nominated for a 2009 Grammy in the category of Best Rock or Rap Gospel Album and for a 2008 Stellar Award for Rap Album. Additionally, “Joyful Noise” was nominated by the Gospel Music Association for Rap/Hip-Hop Recorded Song of the year in 2009. Plaintiffs allege that by mid-2014, nearly 3 million viewers had watched music video versions of “Joyful Noise” on YouTube.
In their complaint, the plaintiffs allege that Katy Perry and her collaborators never sought or obtained permission from plaintiffs to use the “Joyful Noise” song in creating and performing “Dark Horse.” Nonetheless, plaintiffs further contend, “Dark Horse” is substantially similar to their copyrighted song. In this way, plaintiffs have been irreparably harmed. Further, the Christian rapper argued that the religious message of his song was irreparably tarnished by its association with “Dark Horse.” More particularly, “witchcraft, paganism, black magic, and Illuminati imagery” is evoked by the music of Perry’s allegedly infringing song.
Generally, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. After ownership of a valid copyright is shown, to prove infringement, the plaintiff must demonstrate (1) access to the protected work and (2) substantial similarity between the disputed works.
To determine substantial similarity, objective similarities between the works are compared after filtering out unprotectable elements of the copyright owner’s work. At trial, the Christian artist argued numerous similarities between the two disputed songs. As one example, both songs use derivative descending minor scales in a basic rhythm. As another example, both works use staccato downbeat rhythms on a high voiced synthesizer. However, as defendants argued, these are common elements of trap beats. Additionally, defendants argued that the songs are in different keys and have divergent beats per minute. Moreover, the melodies are not the same notes.
Defendants’ access to “Joyful Noise” was also disputed during trial. Katy Perry and her co-defendants testified during trial that they had never heard of “Joyful Noise.” In rebuttal, plaintiffs theorized that they may have heard it at the Grammy Awards or seen it on YouTube or MySpace, where the song was played millions of times. Ultimately, the jury found access in addition to substantial similarity in finding Katy Perry and her co-defendants liable for copyright infringement.
While the damages phase is to begin right away, still pending is a motion for judgment as a matter of law from Perry’s lawyers requesting the U.S. District Judge to rule that no reasonable jury could find copyright infringement based on the evidence presented at trial. If the motion is granted, the judge would overturn the verdict and instead, find in favor of Perry and her co-defendants.