Pop star Katy Perry and her “Dark Horse” collaborators filed an appeal after a jury ruled them liable for plagiarizing a 2008 Christian rap song.
Perry, Lukasz “Dr. Luke” Gottwald, Capitol Records, and others had been ordered to pay $2.78 million by a California jury for copyright infringement. In documents filed Oct. 9, Perry and her team are asking the California courts to overturn the verdict or grant a new trial.
“The legally unsupportable jury verdicts in this music copyright infringement case that are widely recognized within the music industry — and beyond — as a grave miscarriage of justice. …The erroneous verdicts in this case and the precedent established thereby present serious harm to music creators and to the music industry as a whole,” part of Perry’s appeal reads, according to Variety.
The brief argues that the plaintiffs, including Christian rap artist Marcus Gray, professionally known as Flame, “did not offer proof of one single digital or brick-and-mortar sale of ‘Joyful Noise’ or (the album) ‘Our World Redeemed‘ and admitted that they have no such evidence.”
Gray and his song’s co-creators had argued in their lawsuit that Perry's 2013 single “Dark Horse” featuring Juicy J, copied the beat of their song "Joyful Noise" featuring Lecrae.
At the week-long trial in July, both Perry and “Dark Horse” producer Dr. Luke insisted they had never heard of "Joyful Noise." Gray argued that his song's success in the niche market went on to have massive success and the defendants may have gotten wind of it at the Grammy Awards or seen it on YouTube or other social media platforms where the song has been streamed millions of times.
Perry’s appeal hits back, stating, “No reasonable factfinder could have concluded that ‘Joyful Noise’ was so well-known that it could be reasonably inferred that Defendants heard it, particularly in this digital age of content overload, with billions of videos and songs available to users with trillions of streams. … The few million views of ‘Joyful Noise’ on the Internet presented by Plaintiffs, over a period of five years, equals an undisputed ‘drop in the bucket’ in modern-day view count statistics — and can hardly constitute widespread dissemination… Plaintiffs adduced no evidence of any sales and no documentary evidence of any radio or television play, or of actual performances of ‘Joyful Noise.’ … Plaintiffs had no proof that any of the ‘Dark Horse’ writers searched for Christian rap on YouTube or Myspace, as was Plaintiffs’ burden.”
Todd Decker, a musicologist, broke down the underlying beat in both songs during the trial this summer. While Perry's attorneys argued that the musical pattern is too short and common to be copyright protected, Decker testified that the ostinatos (short melodic phrase repeated throughout a composition) share “five or six points of similarity,” including pitch, rhythm, texture, pattern of repetition, melodic shape and timbre, or “the quality and color of a sound," as reported by Billboard.
After studying the two songs, Decker concluded that Perry "borrowed" the underlying beat from "Joyful Noise" and the jury ultimately agreed.
The appeal argues, “The pitch on Beat 7 of the ostinato in ‘Joyful Noise’ is a B, while the pitch on Beat 7 of Ostinato 2 in ‘Dark Horse’ is an A. The pitch on Beat 8 of the ostinato in ‘Joyful Noise’ is an A or an F, depending on the iteration. The pitch on Beat 8 of Ostinato 2 in ‘Dark Horse’ is an E…”
Perry, Capitol Records, Warner Bros. Music Corporation, Kobalt Publishing and Kasz Money, along with producers and songwriters Dr. Luke, Max Martin, Cirkut, Sarah Hudson and Juicy J were all found liable in the original judgment.