The Katy Perry Copyright Case Is Worrisome.
People in the music business are worried that this ruling will lead to more rulings that unfairly penalize songwriters for making use of simplified musical elements, like a basic note or a song’s “feel.”
First, it was the “Blurred Lines” case where the Marvin Gaye estate won a rather large judgement against the likes of Pharrell Williams and Robin Thicke which shook up the music business. Following, just last week a jury found that Katy Perry’s 2013 hit “Dark Horse” infringed upon Marcus Gray’s copyright in his 2008 track “Joyful Noise.”
Although there are very different fact patterns to both cases, the spirit in the ruling is much the same. If anything the Katy Perry ruling takes things up a notch. With “Blurred Lines”, Pharrell Williams and Robin Thicke admitted that they had been inspired by Marvin Gaye’s classic “Got To Give It Up.” While many in the music industry disagreed with the ruling, when someone directly admits to being inspired by another’s piece of work and they sound similar, copyright infringement does not seem too far off.
In the Katy Perry case, the defendants, which included Katy Perry, mega-songwriter Dr. Luke, superstar producer Max Martin, Henry Walter, Sarah Hudson and rapper Juicy J, alleged that they had never even heard of the song that they had infringed on. The christian song “Joyful Noise” performed by Flame nonetheless did have millions of views across streaming platforms and the record appeared on an LP nominated for a Grammy Award, for best rock or rap gospel album.
In these types of copyright infringement lawsuits, a plaintiff must prove that the work in question shows substantial (probative) similarity to the original and that the accused infringer had access to the infringed work. A plaintiff can also show that the similarity in the two works is so probative or identical that it is impossible that the similarities could be a coincidence.
Flame, whose real name is Marcus Gray, was able to convince a jury that Katy Perry and company had access to the song because of it’s critical acclaim and it’s millions of streams. They also pointed out the fact that Katy Perry was a christian singer before she broke into pop thus christian music might have already been on her radar. Additionally Gray, proved that the works were substantially similar by pointing to the “repeating 8-note ostinato” that is the sound the provides the basis for this copyright suit. As state here “though in different keys and tempos, both songs feature a descending minor-key progression with evenly spaced B and C notes.”
The only problem is protecting simple or individual notes is not in the spirit of copyright law. People in the music business are worried that this ruling will lead to more rulings that unfairly penalize songwriters for making use of simplified musical elements, like a basic note or a song’s “feel.” While the “Blurred Lines” case was upsetting to many, once again at least there were significant indicators that copying might have taken place, as Pharrell and Robin Thicke readily admitted that they had a high degree of access to “Got To Give It Up” and that they were inspired by the work. Here, there are no such indicators and with the amount of music available to all and the amount of songs that have a couple million streams, it is not inconceivable that artists who may clearly have never heard a record before are deemed to have had access because the original song has had some level of success.
Where is the line drawn? “Got To Give It Up” was a megahit that has lasted for generations. For two R&B and Soul artists like Robin Thicke and Pharrell, we know they heard the record even if they didn’t admit it. In the internet generation, it’s going to be interesting to see how courts wrestle with the legal barometers for proving access as it relates to copyright infringement suits. It seems here that a couple of million streams and a grammy nomination proved access. I’d like to call myself a music connoisseur in many relevant genres and I work in music yet I have never heard “Joyful Noise.”
This case seems to be an indictment on where things stand in the copyright landscape as it applies to music. The year is 2019 and billions of records have been made over time thus songs are going to sound alike without any copying or malice. It is time we raise the barrier for copyright infringement and get back to the root of why copyright law even exists. The purpose of copyright law is to promote the progress of useful arts and science by protecting the exclusive right of authors and inventors to benefit from their works of authorship. Key word progress.
Katy Perry’s lawyer Christine Lepera argued that the progressions in “Dark Horse” and “Joyful Noise” are generic. So generic that copyright-ing them would equate to “trying to own basic building blocks of music, the alphabet of music that should be available to everyone.”
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