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Katy Perry fanning the Flame

October 11, 2019, By

You may recall my beautifully written article last month about the judgment against Katy Perry in which she and Capitol records were ordered to pay the generous sum of $2.78 million in damages to Marcus Gray aka Flame (apparently he is big in the Christian rap game) over her song Dark Horse which tore up the charts many moons ago in 2013. In a dramatic turn of events, Perry is now striking back with an appeal disputing the decision.

A jury ruled that Perry and her team had copied the beat to Gray’s track Joyful Noise. This case was about more than Perry losing what is essentially pocket money for her; it speaks of a growing problem in the American courts whereby artists are having to pay out huge sums in compensation just for having somewhat similar sounding songs or following common musical conventions found in countless pop tracks. Well, Perry has decided not to stand for it.

Gray’s team had two hurdles to overcome: firstly, they had to demonstrate that Perry or one of her team had been exposed to Joyful Noise before getting started on Dark Horse. Secondly, they had to convince the jury that the two songs were sufficiently similar to constitute copyright infringement. They succeeded on both counts.

However, Perry’s team have disputed this in their appeal, arguing that neither of these boxes were ticked during the trial a few months back. They said that the plaintiffs did not present direct or circumstantial evidence demonstrating access to or a chain of events linking Joyful Noise to their ears. They also claimed there was insufficient evidence that Joyful Noise was widespread enough to give them a reasonable opportunity to hear it (fair point if you ask me).

Secondly, they argued that the jury was essentially just wrong in finding that Dark Horse was substantially similar to Joyful Noise. They said the only claimed similarities between the two works are minor, commonplace elements and a proper comparison would result in a finding that they are not substantially similar (again, fair point).

Perry’s lawyers had this to say: “The erroneous verdicts in this case and the precedent established… present serious harm to music creators and to the music industry as a whole”. They followed:  “music creators who use commonplace expression in music are entitled to the same amount of breathing room afforded creators of other art forms”. I couldn’t have said it better myself. The trend of judgments in music cases brought in the US courts really does pose a great concern to artists who simply want to freely express themselves.

Personally I am keen to see how this plays out and side with Perry on this one. What do you think?

If you find yourself on the receiving end of a copyright infringement action or think someone else has copied your work, or even if you just want advice regarding ownership of material and contracts/licenses, here at Briffa our specialist solicitors are always on hand to help. Please do not hesitate to contact us at [email protected] or on 020 72886003 for a free consultation.

Written by Alex Fewtrell, Solicitor

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