August 14, 2018 Musicology, Opinion 3 Comments

Katy Perry’s Dark Horse case appears to be going to court.

In 2015 a Christian rap artist named Flame claimed Katy Perry’s “Dark Horse” infringed upon his track “Joyful Noise.” A few years later, the case hasn’t settled and according to latest reports is indeed going to trial.

Anything to see here? Well, the judge himself just called this “…an extremely close case,” and didn’t throw it out. And as we’ve seen in recent years, jury trials are famously unpredictable. So yes, Katy Perry needs to be a bit concerned.

But should she really have this worry? That’s perhaps a different question.

“Dark Horse” is a nice big fat target, no doubt. It was indeed as the complaint says “by any measure… a mega hit.” It went to #1 on Billboard, was nominated for a Grammy, and woulda sold more than any other single in 2014 if Pharrell hadn’t given us Happy

And what with it being the runner up most popular song of the year a short time back, you’ve very possibly heard Dark Horse tons of times, but just in case you were under a rock in 2014, here ya go.

Now have a listen to Joyful Noise, or at least a little bit of it. Won’t take much, the crux of the matter will be clear right away.

Obviously we get it, right? It’s that repeating series of quarter notes that I’m pleased (if a little surprised) the plaintiff’s don’t refer to as “the heart of the song.” (Thank you for not doing that.)

The complaint goes on to say, presumptively as complaints often do, “Plaintiffs never gave any of the Defendants permission, consent, or a license to use Joyful Noise for any purpose, including creation of a derivative work based on Joyful Noise.”

There’s no musicology work in the complaint whatsoever. It doesn’t mention any specific aspects of the song, not even the obviously similar synth ostinato. They went very broad. It reads like “lock, stock and barrel; as though Katy Perry literally remade Joyful Noise, reached number one with it, got filthy rich, performed it at the Super Bowl, and all the while was simply hoping nobody would notice.”

Could that have happened?

Doubt it. I suspect this lawsuit was the first she’d heard of Joyful Noise.

Here’s why.

Granted, there’s no question Joyful Noise’s synth line sounds a lot like the idea from Dark Horse’s verses and its pop drop, both of which are significant parts of the song.

And we might as well talk about this Rapzilla article in which Flame DJ “Cho’zyn Boy” did a pretty good job of demonstrating how little it takes to get these two tracks to mash up and sound very similar. Here’s a link to that.

But perhaps you know how much I love mashups as analysis. (I don’t.) I see why people do it, and the reality is that it sounds compelling to lots of people. Again, jury trials? Dicey.

Additionally, the article quotes “Cho’zyn Boy” saying, “it’s identical!” And he should know, right? 

Well, no, it just ain’t identical. Can’t go throwing around words like “identical.” But similar? Yes, I’ll give him similar.

These are the actual notes.

Notation of Joyful Noise by Flame and Dark Horse by Katy Perry.        So they’re plainly way similar. They’re 75% identical, and as a musicologist I’d argue further even the non-identical notes could be said to be similar. The 25% of the notes of this looping part that are not identical nor quite equivalent, are only a shade weaker than that. In other words, the differences just don’t matter that much. I’ll try to explain this idea of relative equivalence that can be a complex musical concept to understand.

Notes have impact, right? You hear a melody and it impacts you. It’s mellifluous or jarring; jagged or flowing; whatever. And each individual note in a melodic sequence works to steer that impact through it’s contextual purpose (how it relates to the notes that came before it and how it might lead to the notes that follow.)

So each note has purpose and composers have intention. You with me so far? Now suppose I am telling you a story about, I dunno, some water. I might tell you the water is “hot,” or “very warm,” or “the opposite of cold,” or “160 degrees.” These non-identical expressions have pretty much the impact, right? It’s like that with musical language too.

Non-identical musical language can have approximately the same impact. There are musical synonyms in a way.  That said, do you care especially which of those phrases I use to describe the water? You very well might. It depends. But very often, it doesn’t matter that much.

So she’s in big trouble?

One more time, trials are perilous. But she should prevail. The thing that should save her is the unprotectable nature of super simplicity. We are talking about a VERY simple line of music looped over and over and over. It should not enjoy copyright protection.

“How little creativity is enough to enjoy copyright protection?” you might ask. Technically, a modicum. And a modicum while in the eye of the beholder doesn’t sound like much at all. But such a purist argument here is silly. In trap music, the simpler and more simplistic the better much of the time. As music goes, there’s scarcely any music in it. This though is not a curmudgeonly longing for the days of Cole Porter. This is actually trap music’s charm. It’s at least a bit the absence of music that makes it what it is. No judgement here. Compose what you like and listen to what you like. But this aesthetic creates a heck of a conundrum when you start trying to argue creativity and originality and “modicums” and “de minimis” in music and copyright.

This contentious synth line is melody but it’s not THE melody, and it’s barely even melodic.

Key point: And not a simple one. The most important thing is not whether these sixteen notes are similar (they are) and interchangeable to and with each other (they are). It’s that these sixteen notes don’t matter hardly at all to anything; not these specific notes anyway. They’re innocuous. They take up space. They’re almost tantamount to a cowbell part — “TONK TONK TONK TONK” for four bars, looped. There’s no reason to believe anybody would steal this particular musical idea, because it has so little original character and value. These are the cinder blocks from which you build your house. They’re not the architecture that gives your house its character. This is what we refer to as “building blocks;” musical material that copyright should not be concerned with. 

Okay, never mind the actual notes, what about the sound of that synthesizer melody? It’s pretty much the same, isn’t it? And doesn’t that add to Perry’s risk quite a bit?

Let’s talk about that sound itself, because it matters to both the access argument AND the musicology argument. There will be discussion about it. The sound in “Joyful Noise” is a synthesizer sound with “portamento,” which gives it its gliding pitch bending sound. This synthesizer sound is a popular one in modern pop music. It’s common. Is it similar to Katy’s? Yes and no.

How does Art of Noise figure into all of this??

The sound in Dark Horse is almost certainly constructed from Katy’s own voice, sampled and manipulated into a playable synth sound. Nothing novel about that either. And if we’re looking for an inspiration, it’s reminiscent of the venerable Fairlight “Syn Vox” preset from the early eighties. Firelight was a crazy expensive piece of tech back then — one of the first sample based instruments. That Syn Vox sound was on tons of recordings and inspired waves of other “chiffy” “breathy” “flutey” voicelike sound presets on future synthesizers. And those sounds, collectively, were super ubiquitous across pop and new wave music for a decade.

At the time it sounded new and cool; previous synth technology couldn’t make that timbre. But like anything else that gets overused, once you were over it, you were very over it. I can actually remember watching Titanic and hearing that sound in James Horner’s soundtrack (“Take Her To Sea, Mr Murdoch”) and being unable to clear the annoyance from my mind for the rest of the movie. I’m aggravated just thinking about it.

Here’s perhaps the most classic example of the original Firelight Syn Vox. Art Of Noise’s Moments In Love.

Yeah, that’s kinda the same thing, right? What are we hearing over and over? This… 1-1-1-1-5-5-5-4-5-5-5-5-5-5-5-5

(This is chord scale theory stuff. I expressed these notes, 1, 5 and 4 as scale tone numbers. I might also have used “solfége,” where my “1” is “La” from the world of Do, Re, Mi, Fa and so forth. Note values 4 and 5 are “Re” and “Mi.”) You can probably hear that this is quite a bit like our combatants, four measures of notes, sixteen in total, three different pitches but mostly just the “5,” all the same rhythmic value, in a minor key, playing throughout the tune, almost like percussion (I’m pressing my cowbell analogy) but pitched to follow the harmony. And this Art of Noise track was used all over the place; sampled for hip hop records left and right! WhoSampled shows over a hundred tracks that used those four measures and put a beat under it. Lil Wayne, LL Cool J, J Dilla, Mya’s 1997 top ten hit It’s All About Me among them — it’s a pretty good list. In other words record was a well KNOWN available asset to music producers looking to put a pulse like this in their track. There’s not much there, no offense to Art of Noise. It’s quarter notes on a preset sound on an expensive synthesizer. It’s cowbell, albeit three differently pitched cowbells. It was cool in its simplicity. And it was widely used for its simplicity. Simplicity lent its applicability.

As while this sort of synth sound eventually becoming the most annoying thing you could put on a record, jump ahead thirty years and like so many things worn threadbare in the 80’s, it’s cool again today, especially if delivered with a touch of wit. Lady Gaga opened Edge Of Glory with it putting it right out there naked in the intro. Just quarter notes, heartbeat paced, simple, infectious. 

I say again, cowbell. Tonk Tonk Tonk Tonk.

And just last night by the way… 

Before bed last night I was watching Billions on Showtime, scored wonderfully I think by an L.A. composer named Eskmo. I heard this sort of line a number of times during episode one of season three. I even grabbed my phone off the nightstand, “Siri, remind me in the morning about the Billions cue.” And now as I write this, here in my studio, I’m gonna call up Showtime Anytime on my Apple TV, find that cue, and see how relevant it is… will take only a few min… hang on.

(takes longer than I expect, it’s been about 8 minutes)

Okay… it’s relevant. Got myself a drum machine and a synthesizer, recreated it for you, and this is pretty much the idea. The cue in Billions went…

Eskmo’s cue is produced better than that, but I don’t have all morning to mock it up more impressively. You get the idea. I’m saying, this idea is just out there. An example came along in a Billions episode on the SAME DAY as the news broke that Katy is going to court — we’ve got some fairly static pitches, in a robotic static rhythm, played on a breathy sounding synthesizer; extremely available and well traveled territory for composers; it’s cliché. Can Eskmo sue the next guy who writes four bars of consonant quarter notes over vi – IV and loops it to Hell? No! This “idea” has certainly been done plenty since Billions Season 3 came out. Heck I’ll do it right now. (yep, more real time, step away for minute stuff…)

(Minute and a half, actually.)

I labeled that “My Own Cue To Which I’ll Never Give Another Thought.” Now let’s see it. Eskmo, Katy, Flame, all y’all, come at me!

No, that would be silly.

Could the producers of Dark Horse have heard Joyful Noise? Sure.

Could they more easily have heard any of the other examples cited here or one of the 100+ tracks that sampled Art Of Noise at some point, such that the general idea was an available musical widget in their creative arsenal and the notes happened to strike Flame and Co as similar to Joyful Noise? That’s what we call a “building block,” and not protected by copyright.

Let’s ask what I myself needed to have heard to be inspired to make my “Four bars I’ll never think about again ever” or whatever I called it? Did I have to hear Art of Noise? Lady Gaga? Katy Perry? That cue from Billions? Nah. I would need only to have had an idea of tonk tonk tonk tonk on a breathy synth. It’s more presentation than composition; more idea than melody. It’s minimally musical language; a few words of a sentence, not a storyline.

Is it even melody? Barely. It’s melod-ic, but in both Dark Horse and Joyful Noise, especially Noise, it’s at least as much accompaniment as melody. The melody of Dark Horse is what Perry sings over this line in the verses.

Copyright doesn’t protect ideas much less tiny ideas. And this is a tiny idea musically speaking — “de minimis.” A trifle. But that said…

Will any of this save her from the vagaries of juries in a trial??

It ought to, but it’s gonna be interesting. Exposure? Yep, she’s definitely exposed.

Written by Brian McBrearty