Jury to decide damages owed by Perry for hit single
Grammy-nominated Dark Horse was copied from Christian artist
LOS ANGELES — A jury’s verdict that Katy Perry’s 2013 hit Dark Horse improperly copied a 2009 Christian rap song represents a rare takedown of a pop star and her elite producer by a relatively unknown artist, and sets up a battle over damages.
Monday’s unanimous verdict by a nine-member federal jury in a Los Angeles courtroom came five years after Marcus Gray and two co-authors first sued in 2014, alleging Dark Horse stole from Joyful Noise, a song Gray released under the stage name Flame.
The penalty phase was scheduled to begin Tuesday and will ultimately determine how much Perry and other defendants owe for copyright infringement.
Testimony will give jurors a peek into the finances behind Dark Horse, a hit single that earned Perry a Grammy nomination and was the second song in her 2015 Super Bowl halftime performance.
Questions from the jury during two days of deliberations had suggested that they might find only some of the defendants liable for copyright infringement. The case focused on the notes and beats of the song, not its lyrics or recording, and the questions suggested that Perry might be off the hook.
But in a decision that left many in the courtroom surprised, jurors found all six songwriters and all four corporations that released and distributed the songs were liable, including Perry and Sarah Hudson, who wrote only the song’s words, and Juicy J, who only wrote the rap he provided for the song. Perry was not present when the verdict was read.
Other defendants found liable were Capitol Records as well as Perry’s producers — Dr. Luke, Max Martin and Cirkut — who came up with the song’s beat.
Gray’s lawyers argued that the beat and instrumental line featured through nearly half of Dark Horse are substantially similar to those of Joyful Noise. Gray wrote the song with co-plaintiffs Emanuel Lambert and Chike Ojukwu.
Dark Horse, a hybrid of pop, rap and hip-hop sounds that was the third single of Perry’s 2013 album Prism, spent four weeks atop the Billboard Hot 100 in 2014.
Perry’s lawyers argued that the song sections in question represent the kind of simple musical elements that, if found to be subject to copyright, would hurt music and all songwriters. “They’re trying to own basic building blocks of music, the alphabet of music that should be available to everyone,” Perry’s lawyer, Christine Lepera, said during closing arguments last week.
The defendants’ musical expert testified that the musical patterns in dispute were as simple as Mary Had a Little Lamb.
But the jury of six women and three men disagreed, finding that the bumping beat and riff at the centre of Joyful Noise were original enough to be copyrighted.
Perry and the song’s co-authors testified during the seven-day trial that none of them had heard the song or heard of Gray before the lawsuit, nor did they listen to Christian music.
Gray’s lawyers had only to demonstrate, however, that Joyful Noise had wide dissemination and could have been heard by Perry and her co-authors. They provided as evidence that it had millions of plays on YouTube and Spotify, and that the album it is included on was nominated for a Grammy.
“They’re trying to shove Mr. Gray into some gospel music alleyway that no one ever visits,” said plaintiffs’ lawyer Michael A. Kahn during closing arguments, when he also pointed out that Perry had begun her career as a Christian artist.
Jurors agreed, finding that the song was distributed widely enough that the Dark Horse writers may well have heard it.