YOU CAN SAY THAT AGAIN
We may be reaching clarity on musical plagiarism
One of Katy Perry’s biggest hits, 2013’s Dark Horse, has been salvaged from the charge of plagiarism. Last year, a U.S. court ruled that it copied a Christian rap song, Joyful Noise. Its performer, a gospel-rapper who goes by the stage name Flame, was awarded $2.8 million (all figures in U.S. dollars). But earlier this month, the verdict was overturned.
Flame plans to contest the decision. Meanwhile, he and two co-songwriters will get nothing. To paraphrase the Book of Job, the law giveth and the law taketh away.
The basis for the claim was a simple melody in both songs. Perry’s legal team didn’t contest the similarity. They argued that Flame was “trying to own the basic building blocks of music.” The judge, Christina Snyder, agreed. “A relatively common eight-note combination of unprotected elements that happens to be played in a timbre common to a particular genre of music cannot be so original as to warrant copyright protection,” she ruled. Translation: They’re generic pop songs, so they sound alike.
Plagiarism cases are two-a-penny in the music industry. Where there’s a hit there’s a writ, as the saying has it.
Ed Sheeran, for one, will be relieved by Perry’s successful appeal. A serial target of copying allegations, he is currently facing legal action over his song Thinking Out Loud, which the estate of Marvin Gaye alleges pinched elements from Let’s Get It On. It is claiming $100 million in damages. Sheeran will be further heartened by a case brought over Led Zeppelin’s Stairway to Heaven. A U.S. appeals court ruled that Jimmy Page’s famous guitar intro did not rip off a riff by psychedelic band Spirit.
That case also raised questions of common musical property. Led Zeppelin’s defence cited 300 years of precedent for the riff ’s sequence of notes — dating it to days when axe heroics meant hazardously chopping down trees, not shredding a Fender.
When Flame, real name Marcus Tyrone Gray, won his now-reversed victory against Perry, there were warnings of dire consequences for creative expression. Comparisons were made with a landmark U.S. case in 2015 involving the controversial hit Blurred Lines. Its creators, Robin Thicke and Pharrell Williams, were judged to have copied the feel or groove of a song by Gaye (him again) — a looser definition of plagiarism. His estate was awarded $7.3 million in damages, later cut to $5 million. The verdict was upheld in 2018.
The mixed messages from these legal cases reflect a wider tension between shared resources and private property. Pop stars are a particularly prominent register of this tension. They like to label themselves “artists” while operating in a ruthlessly commercialized environment. Quick to cite artistic liberty in support of their work, they can be equally quick to use legal means to protect it.
Taylor Swift trademarked her name in 2007 and has since done the same for a range of catchphrases in her lyrics, such as “this sick beat” and “party like it’s 1989.”
U.S. law professor William McGeveran coined the word “selfmarks”
to describe the personalizing of trademark law. Celebrity culture is its fuel, epitomized by Beyoncé and Jay-Z’s applications to trademark their children’s names as though launching new brands.
Perhaps Perry will do something similar. She announced her pregnancy recently: The big reveal came in a promo video for her new single.
Meanwhile, fashion designer Katie Taylor, who sells clothes under her maiden name, Katie Perry, is suing the musical Perry.
Law is the principal forum for negotiating disputes about ownership. Perry v. Perry is symbolic of the endless to-and-fro of cases. But a new piece of music technology aims to resolve the argument — for songwriters, at least. A software program called All the Music was launched this year in the U.S. Its algorithm has created 68 billion eight-note melodies, such as the one shared by Perry’s Dark Horse and Flame’s Joyful Noise. All have been released into the public domain for anyone to use.
The intention is to provide tunes we can all sing along to, shared building blocks from which to construct the private property of a song. It may also generate a more cacophonous sound — the wailing and gnashing of teeth by music lawyers as the plagiarism cases dry up.
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