This is the third Musicologize article on the subject. Here, links to the previous two.
Now post trial: Not altogether surprisingly (but disconcertingly) we have a bad verdict. How’d that happen?
When the jury didn’t come back after day one of deliberation, I started to wonder. When they didn’t come back for most of this second day, I began to expect. Then late today the jury returned (unanimously I believe) the bad verdict that Dark Horse, written by Perry, Dr Luke (Lukas Gottwald), and a few others infringed upon Joyful Noise, by Flame (Marcus Gray).
The jury here is wrong. But I think it’s important to not beat them up for that. Juries do their best. The question is, “why did they get it wrong?”
Firstly and most charitably, hey, jury trials can go flippin sideways on ya. Ask Francis Malofiy, the lawyer suing Led Zeppelin over Stairway to Heaven. Say, for example, you were at all interested in the Stairway To Heaven trial. You probably listened to Spirit’s Taurus against Led Zeppelin’s Stairway and you heard the very similar acoustic guitar parts, and you then formed an opinion as to “are they too similar?” And if so, you went on to ask yourself, “was Taurus the basis for Stairway?” But that’s not really what happened in the courtroom. In the courtroom they discussed abstractions and interpretations from sheet music “lead sheets” that were the deposit copy registered with the Copyright Office of the US, and which didn’t even include the guitar intro at all. The jury never heard the recordings. They were deemed irrelevant due to peculiarities of old and inadequate copyright law. We don’t have to delve into all of that too much, but “not relevant?” That seems absurd. Only in the parallel universe of a courtroom are they not relevant. Everybody else wants to know if the obvious similarity means Jimmy Page stole the Stairway intro from another song, or are they just two songs that sound a lot alike.
So what happened to Katy Perry and Dr Luke in the courtroom and cost them the Dark Horse verdict?
For starters I found it weird that an awful lot of the coverage focused on the “access” component. Copyright infringement is pretty much two things, access and similarity. “Access” means a defendant needs to have heard the plaintiff’s “Song A” in order for it to have become the basis for the defendant’s “Song B.” Here, Song A is “Joyful Noise,” a Christian rap song that enjoyed some success, was up for a Grammy, and a had lot of plays online. Perry and Dr. Luke testified they’d never heard it, but there’s no way to prove they hadn’t heard it. Do we believe them? How many YouTube plays would I need to tell you Joyous Noise had before you’d perhaps not believe them? If told you they had over a million? What’s your threshold? The plaintiffs also pressed the point that Perry used to be a Christian artist. Maybe she still listens to Christian Music?
Then, the defense fought the copyright itself on rather technical grounds. The beat in Joyful Noise isn’t Flame’s creation. Chike Ojukwu, a producer credited as a co-writer on Joyful Noise composed and produced the beat as a separate asset. This is a common practice. Producers create beats and maybe they get used by artists to make songs. That’s what Perry did on Dark Horse as well. Also common practice is not registering the copyright for every beat you produce. Ojukwu didn’t register this one. So the defense argued that Joyful Noise was a derivative work and that plaintiffs don’t really have copyright on Ojukwu’s beat as the standalone work that it was, and since the copyright on the beat is unregistered, so they can’t sue! (yeah, forget most of what you’ve heard about copyright — being established at creation and all that — you can’t sue without registration.)
That kind of stuff probably made the juries eyes glaze over. It might even make them resent your side. And none of that is anywhere near the reason Dark Horse doesn’t infringe upon Joyful Noise. The logic was backward. Tail wagged dog. The preferred logic would be the reason the defendants probably never accessed Joyful Noise is that the music passage in question isn’t very novel nor original. Therefore, it’s similarities are insignificant. And since it’s not significantly similar there’s hardly a reason to care about access.
THAT’S the story the jury should’ve heard.
And let’s not ignore the likability of Dark Horse producer Dr Luke. It’s very lacking. He has been accused of everything from plagiarism (repeatedly) to rape! He’s often assumed to be the one Kesha wrote “Praying” about. It definitely occurred to me that this verdict is a bit like a lifetime achievement award for an unlikeable defendant, like when they give you a Grammy not really because you were the best song THIS year, but you’ve been so close so many times.
Tomorrow they’ll begin to discuss the damages — how much the defendants must pay Gray. This should be interesting as well. That beat isn’t the melody, neither verse nor chorus. It’s instead the underlying accompanying beat and somewhat the instrumental signature of the track. We’ll see how they value that. And we’ll get an idea of how much the song has earned. It was the number two song behind Pharrell’s “Happy” in 2015. The plaintiff has argued that Joyful Noise, a Christian rap, was harmed by the paganism and witchcraft themes from the Dark Horse video. Meanwhile I don’t know how my youtube views Joyful Noise had prior to this, but I’m guessing it owes a lot of them to this lawsuit.
Juries are unpredictable. That’s a saying. But still, this was Katy Perry’s case to lose. Why did she?