Cases like one vs. Katy may spread

To show that Katy Perry and the team that wrote her 2013 hit “Dark Horse” may have heard his song and stolen from it, Christian rapper Marcus Gray’s primary evidence was that his 2009 song, “Joyful Noise” had plays in the millions on YouTube and Spotify.

Plaintiffs, like Gray, in copyright cases, who won a $2.8 million victory over Perry and her co-writers on Thursday, must prove that the artist who stole from them had a reasonable opportunity to hear a song that was widely disseminated, a principle lawyers simply refer to as “access.”

But does access have any meaning in a streaming era when almost everyone has access to almost everything?

The question, as other issues at Perry’s high-profile trial did, suggested that technology may be outpacing copyright law, and that more David vs. Goliath victories for relatively obscure artists like Gray over superstars like Perry may be the result.

“The law around it is a twopronged test, access and substantial similarity,” Michael Kelber, a Chicago attorney who specializes in intellectual property and technology, told The Associated Press. “The fact that the access prong is so much easier to show, that can be some potent evidence for a jury.”

Kelber said the Perry decision may show that “the floodgates are starting to open on these cases.”

“It’s not hard to get thousands of watches and likes,” he said.

Perry’s team has already filed a motion for the trial judge to throw out the verdict that will get a hearing, and they will almost certainly appeal to a higher court where the broad decision made by the jury could be severely tested.

In the past it has often taken a superstar to take down a superstar for song theft, and in those cases those who sued could blast right past the question of access.