Santa Fe New Mexican
No longer just a ‘Dark Horse’: Streaming flips scripts in music lawsuits
‘Access’ argument makes cases like Katy Perry’s more common
LOS ANGELES — To show that Katy Perry and the team that wrote her 2013 hit “Dark Horse” may have heard his song and stole 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 in copyright cases like Gray, who won a $2.78 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.”
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 on Friday. “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 attorney Christine Lepera said after the decision that Gray’s team had shown “no evidence of access” as she vowed to vigorously fight the verdict.