The Chilling Effect of ‘Dark Horse’ and ‘Blurred Lines’

The multimillion-dollar copyright-infringement decisions over the Katy Perry and Robin Thicke songs will stifle creativity, legal experts say — but not all agree

when you hear the six-note passage at the center of Katy Perry’s “Dark Horse” played alongside the one from the 2008 song “Joyful Noise” by Christian rapper Flame, it’s natural to assume that the melodies are nearly identical.

It’s a starkly simple phrase, six descending notes that a marginally talented toddler could bang out on a toy xylophone. And yet, despite last week’s courtroom arguments of musicologists who cited two songs predating “Joyful Noise” that employed a similar melody; of attorneys who claimed it is so simple as to be uncopyrightable; of experts who said that Perry’s fame contributed as much, if not more, to the song’s success; and not least, the testimony by the “Dark Horse” songwriters that they’d never heard the earlier song; a jury found that Perry and her co-writers and producers had infringed upon the copyright of “Joyful Noise,” resulting in a $2.78 million windfall for Flame, also known as Marcus Gray, and his co-writer.

But many experts in the songwriting community feel the lack of musical knowledge involved in that decision — which follows the crushing $5.3 million verdict in the 2015 “Blurred Lines” case, in which Robin Thicke and Pharrell Williams were found to have infringed upon Marvin Gaye’s song “Got to Give It Up,” based on its similar “feel” — will have a chilling effect on songwriters and on culture as a whole.

“They’re trying to own basic building blocks of music, the alphabet of music that should be available to everyone,” Perry lawyer Christine Lepera said during closing arguments.

Indeed, some music attorneys with expertise in copyright law question the wisdom of placing such complex matters before a jury. “Particularly in music cases, it’s very difficult for a jury of so- called peers to spend several days in court, learning about music and the song and copyright, and come out with a reasonable verdict,” says Ed Mcpherson, a music attorney specializing in copyright law who has represented Lady Gaga, Frank Ocean, Fergie and others.

Some experts have proposed that such cases should go before an expert arbitration panel rather than a jury. But music attorney Richard Busch, who won the “Blurred Lines” case, disagrees. “That is a ridiculous position,”

They’re trying to own basic building blocks of music, the alphabet of music that should be available to everyone.”

Christine Lepera, Katy Perry’s attorney he tells Variety. “Criminal defendants with complex issues like DNA that require scientific expert testimony, whose lives are on the line, are placed before a jury.

“You prove a copyright-infringement case two ways,” he continues. “One is the extrinsic test: The judge listens to the expert testimony and decides whether there are sufficient compositional similarities to take the case before the jury; so the judge is the gatekeeper. Then we go to the intrinsic test — basically the ‘ordinary observer’ test — where the jury listens and decides whether the songs sound similar, and they also [hear] the extrinsic test,” he concludes, placing the onus of lost cases on the defense attorneys and experts for failing to convince juries, rather than on the juries themselves.

Particularly in the wake of “Blurred Lines,” such disputes are usually settled out of court. For example, in 2015, the writers of Sam Smith’s “Stay With Me” made an undisclosed settlement with Tom Petty over their song’s similarity to his “I Won’t Back Down,” adding its writers’ names to the credits and royalties, even though the Smith song’s writers claimed not to be previously familiar with the earlier tune. Given the risk, one might wonder why Perry and her team didn’t settle.

“Maybe in their minds they honestly believe they didn’t take from [‘Joyful Noise’],” says a top music attorney specializing in copyright who requested anonymity. “But looking at the bigger picture, it’s very important to push back against accepting this as a reality, because it’s stunting creativity if songwriters have to be scared of these litigators. It’s bad for artists, music, culture and everyone — although it’s good for plaintiffs, who are going to get a windfall from a song they didn’t make a hit.” (“Dark Horse” spent four weeks at the top of Billboard’s Hot 100 chart in 2014.)

Perry is the focus of the trial, and was personally hit for $550,000 in damages, while her label, Capitol, is responsible for the rest. But it’s unclear exactly who will pay. Producer contracts often indemnify the artist from financial damages, despite the jury having decided that all of the credited “Dark Horse” songwriters and producers are liable for the infringement; Perry testified that the “Joyful Noise” passage was brought to her by co-writer/producers Dr. Luke and Cirkut (Lukasz Gottwald and Henry Walter, respectively). Still, Perry may have to give up a portion of her publishing from the song.

However, as Busch notes about the “Dark Horse” case, “It’s not like it’s over. The judge could look at the verdict and set it aside if there is not substantial evidence to support it. People disagree with jury verdicts every day — and that’s why we have appeals.”