Jury finds Katy Perry's 'Dark Horse' guilty of copyright violation

August 1, 2019 2:49 PM

A jury has found Katy Perry and her music-writing team liable for copying the underlying beat of Marcus Gray’s 2008 Christian rap song “Joyful Noise” for her 2013 hit single “Dark Horse” in a verdict handed down on Monday (July 29, 2019) in Los Angeles federal court. While musicians copying one another is not uncommon, the hook in question is so basic that many music professionals are both confused and alarmed at the implications.
posted by smokysunday (69 comments total)

the hook in question is so basic

premium shade
posted by prize bull octorok at 3:03 PM on August 1, 2019 [47 favorites]

BRB copyrighting scales
posted by Greg_Ace at 3:13 PM on August 1, 2019 [30 favorites]

That's some serious BS. Coldplay/Satriani should've been the precedent. Then nobody would ever get ruled against...
posted by Chuffy at 3:13 PM on August 1, 2019 [4 favorites]

I'm deeply hostile to this kind of claim -- the idea that anyone should own the basic blocks represented harmonically or rhythm in either song will hurt rather than help creators. And if as the Vox writer suggests Gray's lawyer really tried to sell the case on the sophistry "it doesn’t take a copyright expert or musicologist to recognize that, as Gray suggested, the beginning and beats of Joyful Noise sound very similar to 2013’s Dark Horse," then he can do the most good in the world by quitting law and never talking to anyone about anything ever again, because that's an active attempt to substitute ignorance for not even expertise but basic music theory. It doesn't take a lawyer to recognize that while such motivated reasoning might help him win a jury it's terrible for the world at large to have that reinforced.

That said... the voiced "you/y'all know what this is" at the beginning of both tracks makes the idea that Dark Horse was influenced by Joyful Noise look solid. That isn't some kind of really common introduction/segue for hip hop things, is it? Because if not, I almost fault Perry's team as much as Grays for making this go to trial.
posted by wildblueyonder at 3:16 PM on August 1, 2019 [15 favorites]

It seems hard for music litigators to convince jury members—often with no musical background—that while some tone-and-rhythm sequences are original enough to warrant copyright protection, others are simply musical building blocks or “vibes” that don’t belong to anyone.

Maybe it would be more effective if these complaints were handled within the musician community instead of within the normal legal system. I don't know exactly what the structure would be but it seems like we're trying to apply a model that works in one context (the idea that a jury of regular folks can judge right & wrong because it's using a baseline of morals that everyone more or less shares) to a context where it's not appropriate (those same people don't have the necessary expertise to judge this stuff because it's not really based on values everyone shares).
posted by bleep at 3:19 PM on August 1, 2019 [16 favorites]

Yeah, this is pretty stupid on the face of it. I can't imagine Perry's (label's) lawyers aren't already planning an appeal. Based on precedent, no judge would have ruled for the plaintiffs, and for the jury to have done so, either Perry's lawyers really fucked up, or Gray's lawyers were extremely slick, or both. I would be really surprised if this isn't overturned. And if it's not I'm sure someone out there will make a lot of money for their lawyers by suing Gray for "ripping off" the same riff from something earlier.
posted by biogeo at 3:42 PM on August 1, 2019

That's not even a hook. It's an arpeggio. Programmed into every shitty Casio since 1980.

What the fuck?
posted by notsnot at 3:43 PM on August 1, 2019 [9 favorites]

MetaFilter: programmed into every shitty Casio since 1980.
posted by biogeo at 3:44 PM on August 1, 2019 [26 favorites]

I will be representing the Mixolydians in a class action lawsuit against the entire music industry
posted by prize bull octorok at 3:46 PM on August 1, 2019 [41 favorites]

Maybe it would be more effective if these complaints were handled within the musician community instead of within the normal legal system.

That's where my brain goes on this stuff whenever one of these high profile infringement cases makes its weird torsions through the courts. Non-musicians trying to convince non-musicians to hand a verdict to a non-musician always reads so, so bizarre and the outcomes rarely make sense to my musician eyes. Even when the verdict feels correct (which this doesn't, at all, and most of the ones that make the news don't) it feels like it only landed in the correct place by accident.

But I imagine that's so for all sorts of stuff that goes through the court system, in its need to accommodate all kinds of stuff that bears more on subject-specific expertise and context but has to be played out in a space where the actual expertise in question is "how the court system works" instead. Music cases are only extra galling to me because I know music better than I know the courts.
posted by cortex at 3:47 PM on August 1, 2019 [18 favorites]

This smells like the same bullshit the software industry has been dealing with around software patents for the last 15-20 years, with companies being allowed to patent some truly basic ideas in software and then troll larger companies or use the patents as barriers to innovation. Our legal system is so completely effed up when it comes to intellectual property...
posted by jzb at 3:47 PM on August 1, 2019 [16 favorites]

I will be representing the Mixolydians in a class action lawsuit against the entire music industry

In litigation mode, are we?
posted by mandolin conspiracy at 3:54 PM on August 1, 2019 [52 favorites]

Perry's attorneys argued that Perry and her writers had never heard of this Christian rap song until the lawsuit was brought, which seems entirely plausible to me. Wouldn't the lawyers for the plaintiff have to demonstrate that they had heard the song beforehand? I mean, had this song broken out of the Christian rap silo in 2008 and gone mainstream?

Also, the phrases are obviously similar, but it's not like it's out of the question that two musicians would independently come up with these hooks.
posted by vverse23 at 4:05 PM on August 1, 2019 [2 favorites]

Our legal system is so completely effed up when it comes to intellectual property...

Andrew Joseph Galambos, thou art vindicated.
posted by acb at 4:07 PM on August 1, 2019 [1 favorite]

I haven't looked into this case at all -- and I'm willing to bet I'd find it an obscenely unfair judgement if I did -- but Katy Perry's first stab at stardom was in Christian music. I imagine that must've come up at trial?
posted by grandiloquiet at 4:18 PM on August 1, 2019 [5 favorites]

Explicit lifting of entire songs seems to be handled up front, such as Ariana Grande paying 90% of royalties for 2019's "7 Rings" to the estates of Rogers and Hammerstein and Gwen Stefani giving up 50% for 2006's "Wind It Up" [link]. Coldplay asked permission from Kraftwerk for 2005's "Talk" [link]. The Forbes article gives examples of other artists who were not upfront with their copying, possibly because it was subconscious, coming to mutual agreements to settle for royalties or shared songwriting credit. The Forbes article also speculates that the Dark Horse team did NOT do this, and let the case go to trial, because the 2 songs are so dissimilar and they assumed they wouldn't lose.

As a composer myself I am completely bewildered. The two songs both repeat 2-bar phrases comprising 8 quarter notes, descending along 4 notes of a minor pentatonic scale, and those 2 bars don't even 100% match. They 0% match if you consider that they are in different keys. In 2008 I composed a little rap ditty for my cousin's birthday that used the exact same hook, which I had lifted and modified from some metal song I've since forgotten the name/artist of. Like...does Flame own this general 2-bar motif now? The "Joyful Noise" track uses a trap beat with a chorus of men saying "Hey" on the offbeats, which I know he didn't invent, so...? Do I owe Arnold Schoenberg's estate royalties for any given 12-note combination I profit from? Good lord.
posted by smokysunday at 4:37 PM on August 1, 2019 [23 favorites]

prize bull octorok and mandolin conspiracy pull into an early lead for winning the thread...
posted by biogeo at 4:56 PM on August 1, 2019 [2 favorites]

Saw some stories about this with the name "Dark Horse" but somehow missed that it was the Katy Perry one and became confused how anyone could confuse "Joyful Noise" with Converge.
posted by sinfony at 5:20 PM on August 1, 2019 [1 favorite]

That sort of riff, with that sort of synth is incredibly common in trap drops, and both the Katy Perry and Gray's version are pretty much what you'd get if you tidied-up-a-bit one of those riffs into something a bit more palatable for pop consumption. So I don't know what to make of this.
posted by Jon Mitchell at 5:21 PM on August 1, 2019 [3 favorites]

As an example of someone confused by this decision, producer Rick Beato's take.
posted by fings at 5:23 PM on August 1, 2019 [5 favorites]

That said... the voiced "you/y'all know what this is" at the beginning of both tracks makes the idea that Dark Horse was influenced by Joyful Noise look solid

Yeah. I’m wondering if anyone in this thread with “this is BULLSHIT!” takes actually listened to the two songs. 99 out of a 100 juries would have concluded that the Dark Horse songwriters had been influenced by Joyful Noise. I honestly can’t believe the lawyers went to trial with it so obvious.
posted by sideshow at 5:26 PM on August 1, 2019 [1 favorite]

I will be representing the Mixolydians in a class action lawsuit against the entire music industry

#churchmode squad
posted by Vic Morrow's Personal Vietnam at 5:50 PM on August 1, 2019 [1 favorite]

I listened to the two songs before commenting. They sound exactly as similar as pop songs tend to sound; that is, pretty similar. An awful lot of music sounds the same, but that's because they're using a small number of formulas, not because everyone's directly copying someone else. If it's true that 99 out of 100 juries would have concluded that this is copyright infringement, that is an argument against using juries for deciding copyright infringement cases.
posted by biogeo at 5:57 PM on August 1, 2019 [14 favorites]

In fact at least one informed person in this very thread has very clearly and closely listened to the two songs and broken down the ways in which they're similar and dissimilar.

The case doesn't hinge on what "influenced" something else, it claims the song was "copied."

Which is patently* bullshit, because, there is nothing original enough about either song that you couldn't find fifty other songs that "copied" this same simple-ass beat/melodic line to a similar degree. So broad a claim establishes a precedent that, if enforced, would essentially allow people to sue for "copying" generic forms like twelve-bar blues.

*yes I know.
posted by aspersioncast at 5:59 PM on August 1, 2019 [16 favorites]

Also I hated them both but I guess that's not really relevant.
posted by biogeo at 5:59 PM on August 1, 2019 [4 favorites]

Yeah I also think, basically - it's a similar motif, but setting aside whether that should be sufficient to find infringement anyway, this style of motif is something of a genre cliche, making it fairly plausible that it's a coincidence. I also think the "y'all know what it is" might have hurt Perry's case, but at the same time trying to think through how and why that (also not exactly a brand new idea) would have been copied on purpose in the process of making this song makes me feel it is unlikely to have been.
posted by atoxyl at 6:04 PM on August 1, 2019

. Wouldn't the lawyers for the plaintiff have to demonstrate that they had heard the song beforehand?

That's exactly why I hold off crying bullshit before I read the real opinion. It's very easy to pour scorn on a decision that sounds ridiculous filtered through the press. Even ones like the king of stereotypical "ridiculous" lawsuits, the McDonalds hot coffee one, are more nuanced than it sounds.

That said, I'm trying to imagine what would make me nod my head and say "ok, fair enough." Like, did the first band literally play it for her, and then she published hers within a week or something?
posted by ctmf at 6:21 PM on August 1, 2019 [1 favorite]

Dark Horse

Joyful Noise

and as compared in the "so basic" link, the widely sampled Art of Noise (not Joyful Noise) track Moments in Love.
posted by snuffleupagus at 6:27 PM on August 1, 2019 [3 favorites]

"99 out of a 100 juries would have concluded that the Dark Horse songwriters had been influenced by Joyful Noise"

Then 99/100 juries are not made up of musicians. We are talking about basic riffs that in themselves are not enough to make a song distinctive. As aspersioncast said, " So broad a claim establishes a precedent that, if enforced, would essentially allow people to sue for 'copying' generic forms like twelve-bar blues."

And do you know how many songs use the "Louie Louie" riff?

This is ridiculous. The "Blurred Lines" verdict was as well.
posted by litlnemo at 6:35 PM on August 1, 2019 [5 favorites]

How's the infringement suit from the Marvin Gaye estate against "You're The Man" going?
posted by thelonius at 6:46 PM on August 1, 2019

For a nun-killing, superbowl-contract-negotiatin’ pop star, she sure seems to lack in quality legal representation.
posted by jenkinsEar at 7:07 PM on August 1, 2019 [2 favorites]

May I also note the irony in "musicians" proclaiming to the high heavens that the resolution of this legal issue was wrong, without, you know, any suggestion whatsoever that they have any idea what the legal issues even are? I mean, sure, by all means tell me about how the ostinatos are not sufficiently imannentized or whatever the fuck, but Section 102 of the Copyright Act does not say "thou shalt not copyright an ostinato" and Section 501 doesn't say "Katy Perry must literally have been in the room when 'Joyful Noise' was recorded for it to count and also you have to tell me if you're a cop."

Having looked into the coverage a bit more, sure, there are reasons to suspect that the jury was not 100% on the ball on every issue, but, you know, that's juries for you. Maybe they just don't like pop stars and big corporations, I'm right there with them on that. Wake me up when the pop stars of the world are suing indie artists for infringement, and forgive me if I don't cry for Katy Perry owing $550,000 in damages for a song on which her lawyers agreed she made $2.4 million. And a special "fuck you, whatever," to Capitol Records paying up most of the whopping $2.78 million in damages when it grossed $31 million just on "Dark Horse."
posted by sinfony at 7:56 PM on August 1, 2019 [4 favorites]

Wake me up when the pop stars of the world are suing indie artists for infringement, and forgive me if I don't cry for Katy Perry owing $550,000 in damages for a song on which her lawyers agreed she made $2.4 million.

Letting Katy Perry get taken for six figures for "copying" a basic riff she almost certainly never heard before is exactly how you set the precedent that will allow pop stars to sue indie artists whenever they record anything remotely similar to an existing hit.
posted by 0xFCAF at 8:51 PM on August 1, 2019 [31 favorites]

Radiohead's Creep comes to mind. The lift is very obvious but almost certainly unintentional. Anyway, they paid up. It's hard to imagine how nobody involved recognized it before publishing. Much later Lana del Rey lifted a different part of Creep (also probably innocently), and the circle was complete.
posted by sjswitzer at 9:15 PM on August 1, 2019

Letting Katy Perry get taken for six figures for "copying" a basic riff she almost certainly never heard before is exactly how you set the precedent that will allow pop stars to sue indie artists whenever they record anything remotely similar to an existing hit.
1) Not how precedent works
2) Why bother?
3) Like I said, wake me up when it happens
posted by sinfony at 9:19 PM on August 1, 2019 [2 favorites]

And then there's the question of "tributes." Nobody can doubt that Pavement was influenced by The Fall, but comparing Conduit for Sale! to New Face in Hell inevitably raises the question of tribute versus lifting. (Complicated by the fact that they were at that time a scruffy DIY band and didn't think anything they did mattered anyway.)
posted by sjswitzer at 9:28 PM on August 1, 2019 [1 favorite]

May I also note the irony in "musicians" proclaiming to the high heavens that the resolution of this legal issue was wrong

"Musicians" don't care whether it was resolved correctly in legal terms, they think it was resolved badly in musical terms, and are concerned about how the prevailing winds in this notoriously ambiguous area of law could affect musicians. That's it.
posted by atoxyl at 9:52 PM on August 1, 2019 [9 favorites]

Good thing legal disputes are not resolved in musical terms, then.
posted by sinfony at 10:10 PM on August 1, 2019 [1 favorite]

Dark Horse, you say? My [Sweet] Lord.
posted by j_curiouser at 10:22 PM on August 1, 2019 [3 favorites]

So, my mom spent most of her career working for the Copyright Office of the Library of Congress, a good fraction of that as a copyright examiner. I don't have any formal background in copyright law, but I did absorb quite a bit from her, enough to know that when it comes to copyright law for music, legal disputes are, or at least according to the law should be, resolved in musical terms. The kinds of objections that people with musical backgrounds are raising are exactly the the kinds of the things that the law, both legislative and case law from precedent and SCOTUS rulings, says are the material facts that should be considered in these cases. At least that's what my momma always told me.
posted by biogeo at 10:49 PM on August 1, 2019 [7 favorites]

Or another way to state the same basic point - I can't say whether the decision is "correct" according to current interpretations of the law. But if the IP law concerning music doesn't match the way people who create music understand distinctiveness and ownership, doesn't that suggest something is wrong?
posted by atoxyl at 1:19 AM on August 2, 2019 [5 favorites]

I can see making an argument that the sentiment of MeFites might not actually reflect prevailing opinion among professional musicians. But it would seem bizarre to argue that the opinion of musicians is irrelevant to what makes good law concerning music.
posted by atoxyl at 1:23 AM on August 2, 2019 [3 favorites]

I’m usually amazing at drawing musical parallels between songs and I’m just not hearing it at all. They both sound like totally generic pop songs except the Joyful Noise one is much more terrible. It’s unbelievably droning and ... doesn’t have a hook of any kind? The vocal line on Dark Horse makes it a little more interesting.

What’s next, copyrighting the 1-4-5 chord progression?
posted by freecellwizard at 3:17 AM on August 2, 2019 [2 favorites]

A simple majority.
posted by filtergik at 4:03 AM on August 2, 2019

So there I was, just sitting there quietly, and suddenly this letter arrives from John Cage's estate...
posted by Cardinal Fang at 4:21 AM on August 2, 2019 [46 favorites]

Good thing legal disputes are not resolved in musical terms, then.

Allow me to be clearer, then: the law is fucking wrong about music, the same way it's wrong about so many other aspects of intellectual property.
posted by tobascodagama at 5:47 AM on August 2, 2019 [12 favorites]

For me, the most interesting part of this is the dissonance between a sue-happy Christian artist, and the most basic ideas of how Christians are called to live in such a way as to demonstrate Christ's teachings. Way to witness. Blessed are the litigators.
posted by xedrik at 6:39 AM on August 2, 2019 [3 favorites]

I'd like to clarify that 'enforced' above was supposed to be 'established.' I realize that stare decesis doesn't entirely apply, but was trying to get at what ifds,sn9 stated more eloquently regarding litigation behavior.
posted by aspersioncast at 7:30 AM on August 2, 2019

What’s next, copyrighting the 1-4-5 chord progression?

You take that one, I've got ii-V-I.
posted by ctmf at 7:40 AM on August 2, 2019 [3 favorites]

You're thinking too small. I'm calling the 4/4 time signature.
posted by tobascodagama at 7:46 AM on August 2, 2019 [7 favorites]

So there I was, just sitting there quietly, and suddenly this letter arrives from John Cage's estate...

Man I thought garden-variety process server was a hard job. Having to wait 273 seconds before you knock is hard core.

Man I wish I could find that apocryphal story about Gage performing 4'33" while a loud and angry student was practicing elsewhere in the building.
posted by phearlez at 9:00 AM on August 2, 2019 [1 favorite]

You know, if we all just wrote more progressive rock we wouldn't have this problem.
posted by vverse23 at 9:20 AM on August 2, 2019 [4 favorites]

You guys notice that Bad Guy by Billie Eilish is basically the Plants vs. Zombies theme in parts?
posted by OnTheLastCastle at 9:24 AM on August 2, 2019 [2 favorites]

I'm calling the 4/4 time signature.

hastily scribbles and files a waltz
posted by aspersioncast at 9:32 AM on August 2, 2019 [5 favorites]

I feel like the "Joyful Noise" people owe me emotional trauma damages for me having to listen to that. What a fucking awful song. Why does all "Christian" music suck so bad?
posted by fungible at 11:05 AM on August 2, 2019 [3 favorites]

The problem I have with this verdict is not that I think Katy Perry's team didn't copy "Joyful Noise"; maybe they did! The songs share some similarities, and it's plausible they'd heard it before! My problem is more, 'Whoa...THIS is the standard for copyright infringement??" If you listen to any genre or sub-genre of music long enough it becomes very easy to trace the influence of trends from song to song. Under this standard, I'd estimate 100% of music could be successfully sued.

To get a very visceral idea of the underlying similarities that popular music relies on: All pop songs use the same 4 chords (from 2011)

I guess I shouldn't be personally worried about litigation, because I'm not a pop sensation who's performed a Superbowl halftime show, like Perry and Bruno Mars. But man I cannot stress enough how integral this sort of motif cross-pollination between musicians is. Katy Perry's earlier smash "California Gurls" is essentially identical to the concurrent hit "Tik Tok" by Ke$ha [mashup video]. Many of her songs are remarkably similar to other songs, in fact - here's a rundown from 2018 that includes the Dark Horse/Joyful Noise comparison - but I assert this is due to Perry being a master of the insanely homogeneous pop-music genre, rather than due to her explicitly stealing songs from otherwise creatively pure individuals.

The phrase "what it is yo" appears as an urbandictionary entry from 2005, fwiw.
posted by smokysunday at 11:37 AM on August 2, 2019 [8 favorites]

I had heard Katy Perry's song but not Joyful Noise's, and I couldn't remember what hers sounded like. So I listened to Joyful Noise first, and it didn't sound familiar. Then I listened to Katy Perry's and immediately went "oh yeah THAT song." So as a musician it's not so similar to me.

Oh, and if this is close enough to be considered a lift, then every rock n roll song since the 1st owes money for lifting the first.

I mean, Elvis is Everywhere and I've Been Everywhere, was there a lawsuit there?
posted by davejay at 1:09 PM on August 2, 2019 [1 favorite]

If anyone is thinking of calling the Copyright Office about this, please note that I composed this melody and will be watching carefully for infringers.
posted by NotAlwaysSo at 2:38 PM on August 2, 2019 [1 favorite]

Section 102 of the Copyright Act does not say "thou shalt not copyright an ostinato"

If the ostinato in question is a common trope in music of its genre, the legal defense would be "this riff is in the public domain; everyone's been using it for decades, maybe even centuries." Which may be what Perry has to say on appeal.

Copyright law and music is heading for some twisted cases, because there are only so many ways you can arrange notes that people find appealing. If lawsuits are going to start hitting each other with "these 20 notes" (or these ten notes, or five, or this single chord...) "are mine," we're going to see a whole lot of very ugly legal rulings no matter who wins.
posted by ErisLordFreedom at 5:33 PM on August 2, 2019 [4 favorites]

“Why the Katy Perry/Flame lawsuit makes no sense”—Adam Neely, 02 August 2019
posted by ob1quixote at 5:35 PM on August 2, 2019 [5 favorites]

Man I wish I could find that apocryphal story about Gage performing 4'33" while a loud and angry student was practicing elsewhere in the building.

I think that's the whole point of 4'33" -- to pay attention to the sounds that are going on all around you right now and perceive them as music.
posted by straight at 6:13 PM on August 2, 2019

“Why the Katy Perry/Flame lawsuit makes no sense”—Adam Neely, 02 August 2019

Oh man. I don't know which is worse about digesting that: that Team Joyful Noise was able to get a musicologist to give expert testimony that's so transparently a betrayal of the field, or that Team Dark Horse apparently couldn't mount as defense that's as effective as Neely's response is at dismantling Decker's testimony. There's a little bit of back and forth I could imagine responding to Neely with but none of it would end up at a place where the ostinato at the center of the case could serve as a handle for an infringement claim.
posted by wildblueyonder at 6:57 PM on August 2, 2019 [3 favorites]

On the bright side, this could finally precipitate a shift in commercial pop music to total serialism in alternate tuning systems.
posted by mubba at 10:10 PM on August 2, 2019 [3 favorites]

“Katy Perry vs. Flame Lawsuit: Let's Compare!”—Rick Beato, 30 July 2019
posted by ob1quixote at 7:44 PM on August 3, 2019

“Is Our Industry Being Gamed??!! (Katy Perry vs Flame)”—Christian Henson Music, 06 August 2019
posted by ob1quixote at 10:55 AM on August 6, 2019

“Lady Gaga ‘Shallow’ Lawsuit | Why This Will Keep Happening”—Rick Beato, 12 August 2019
posted by ob1quixote at 7:22 PM on August 13, 2019

The Vox article has been updated with the result of the ruling:
On Thursday, August 1, the jury decided that Perry must pay Gray, Lambert, and Ojukwu $2.78 million in damages, with Perry responsible for $500,000 of that load.

Here's a NYT link if you subscribe.
posted by smokysunday at 10:12 AM on August 14, 2019

ob1quixote: ““Why the Katy Perry/Flame lawsuit makes no sense” —Adam Neely, 02 August 2019”

“Do You Own The Sound Of Your Instrument? (A Response To Adam Neely)”—12tone, 16 August 2019
posted by ob1quixote at 10:56 AM on August 16, 2019

12 minutes to find out that he thinks it’s a musician’s signature but he isn’t a copyright maximalist, thankfully.
posted by Monochrome at 3:29 PM on August 16, 2019