Dr Hayley Bosher is a lecturer of Intellectual Property Law at Brunel University London
A jury in the US District Court of California has decided that Katy Perry and the co-writers and record companies involved in the production of her song Dark Horse should pay US$2.8m in damages to Christian rap/hip-hop artist Flame for copyright infringement of his song Joyful Noise.
The case adds to the growing number of music copyright cases in the US since Robin Thicke and Pharrell Williams were sued for Blurred Lines, including the Ed Sheeran/Marvin Gaye case that is currently on hold until the conclusion of the reopened Stairway to Heaven case.
This is a worrying precedent for songwriters and the music industry because, in my view, the case has lowered the threshold for copyright infringement by protecting unoriginal musical elements that should be freely available for anyone to use. Not only that, but the award of such high damages will likely encourage more claims similar to this.
What many people don’t know is that just because two songs sound similar does not necessarily mean that there has been copyright infringement. This is because copyright is not a monopoly right – two people can come up with the same idea independently and that is okay. It also does not protect general ideas – those are in the public domain for everyone to use – otherwise we would only have one blues song, one love song and one rock anthem.
Copyright should only protect original unique creative expression. This is a fine balance to uphold, but I think that it has surely been failed in the Katy Perry case, and here’s why.
Was there copying?
To establish copyright infringement, Flame’s legal team had to convince the jury that Katy Perry and her team had heard his song Joyful Noise and also that they copied protected elements of it when writing Dark Horse.
The song Joyful Noise appears on Gray’s 2008 album titled Our World Redeemed, which debuted at number five on the Billboard Gospel Chart and number one on the Christian Music Trade Association R&B/Hip-Hop Chart.
Dark Horse was written by Walter, Gottwald, Sandberg, Perry, Hudson, and Houston in March 2013, it charted at number one in three countries and reached the top ten in almost 20 countries.
Flame couldn’t provide direct evidence that Perry and her team had access to Joyful Noise – but the legal requirement for this is very low and it is enough to use circumstantial evidence that demonstrates that his song was widely disseminated.
Perry and the co-authors testified that they had never heard of Flame or Joyful Noise before the lawsuit. But the court accepted that since Joyful Noise had wide dissemination through accumulated 3.88m views on YouTube across six videos, as well as the fact that the album it is included on was nominated for a Grammy, Perry and the co-authors could have heard the song.
Let’s break these numbers down. Across the six videos, the song was viewed an average of 633,333 times on each over more than a decade since its release in 2008. This is not that impressive, when you consider that more than five billion videos are watched on YouTube every day, YouTube gets more than 30m visitors per day and – thus far – 10,113 YouTube videos have generated over one billion views each.
The expert witness for the defendants also pointed out that the six videos were dwarfed by the hundreds of millions of other YouTube videos uploaded between the time of Joyful Noise’s release in 2008 and March 2013, when Dark Horse was written.
So, it seems that in this day and age, the access criteria is senseless, if all that has to be shown is that there were a few hundred thousand YouTube views.
Was there copyright infringement?
The crux of the allegation was described as a “descending minor mode 8 figure ostinato” – a repeated riff that sounds similar in the two songs. Flame used a musicologist, who told the jury that the similarities between the ostinatos were substantial and significant, overlapping in rhythm, pitch content, melodic contour and timbre.
But, during a deposition, the musicologist explained that he did not understand the legal definition of the words “substantially similar” which are different to how you might use them in every day language.
Perry’s team, which is to appeal the case, also used a musicologist, who highlighted key differences in the songs. These included overall structures, chord progressions, harmonic rhythm, pitch sequences in the ostinatos. Not only that but there was differences in the intervals between the pitches in the ostinatos, melodic rhythms in the ostinato, and the length of the ostinatos.
This case shows one of the major flaws with musicology reports. Both sides are able to produce an expert to support their arguments – and the experts are not necessarily aware of the legal definition of copying in relation to copyright infringement.
As mentioned, just because two songs sound similar, does not necessarily mean infringement has taken place. For example, the same ostinato used in these songs can also been found in Bach’s Violin Sonata in F Minor and the descending ostinato can be heard in Jerome Kern and Oscar Hammerstein’s sing Ol’ Man River – and even, according to the defence, Mary Had A Little Lamb.
But the jury decided that all the writers, producers and distributors of the song were liable for copyright infringement. The idea that quarter notes descending in a minor scale from a third degree is original to the Flame’s song and should be protected is, I believe, a clear misunderstanding of what copyright is and how it works. The decision could have a chilling effect on creativity in the music industry by limiting musicians’ use of sound.
This article is republished from The Conversation under a Creative Commons license. Read the original article.
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