I am unashamed to admit that Katy Perry is, without a doubt, my favorite pop singer. I don’t really know why.  I listened to classic rock and heavy metal as a kid.  My affection for Katy and her music horrifies my kids.  And my wife.  And many of my friends . . .  But I embrace it and roar out loud when her music plays. So, this Dark Horse/Joyful Noise copyright infringement battle was on my radar from the very beginning. 

What Happened?

Christian rapper Flame sued Katy Perry for allegedly sampling a short series of notes from his song, Joyful Noise, in her song Dark Horse. Flame’s legal team argued that Dark Horse contained an ostinato (set of eight beats) that included half a dozen similar elements to Joyful Noise.  It was just these 8 notes that were at issue and nothing more from the respective songs.  In the first court case, the jury agreed with Flame and he was to receive $2.78 million in compensation from Katy Perry, her collaborators, and Capitol Records. Neither side disputed that the songs as a whole were different, or that the overall melody was different. 

For some background, here is a side-by-side comparison of the ostinato in question: https://www.youtube.com/watch?v=QPtynHTDlC0.

When the trial court verdict was handed down, there was some shock and surprise in the music world. Under the standard interpretation of copyright law, no one can copyright a simple short series of notes. Otherwise, music creation would become a minefield, stifling the music industry’s creativity. Can you imagine the complications of trying to write a song and then trawling through the last 70+ years of music to make sure that you did not accidentally sample a couple of notes from a song? Then if you find you did have similar notes, having to pay royalties to a reasonably large portion of artists to use a few beats in your song? It seems prohibitive. The complication arising from this judgment could be wide-reaching and not only almost halt music production, and send music prices soaring, but exponentially increase time to market. 

Katy Perry fought the initial verdict and won. Fortunately, appeals like this are ruled on by a panel of judges, not a jury; this meant that the judgment was based purely on copyright law and whether the facts actually supported such a conclusion, rather than relying on the individual opinions of lay people. The judge overturned the initial verdict on the basis that you cannot, in fact, copyright a few musical notes. This was precisely what the music industry had been arguing since the first verdict was handed down. 

Apparently at the trial, Katy Perry’s lawyer even played upwards of a half a dozen songs that all resembled the ostinato at issue during the trial where only one of them was from the Katy Perry song in order to show the prevalence of this particular series of notes over time. Some were even from famous pieces of classical music but it was to no avail. 

Fortunately, the judge who overturned the initial verdict concluded that the ostinato was not original and that it was not enough music to qualify as a new work of art to be protected by the copyright laws.

Related: Taylor Swift, Big Machine and Audible: The Battle Over Copyright Control

What Does Copyright Law Say?

Copyright law is seemingly simple – you cannot copy someone’s work of authorship, which can be written words, photographs, sound recordings or performances, among a few other things. A piece of music falls under a couple of these categories. It falls under a work of authorship as a written piece of music (i.e. the notes on the page that someone comes up with), you have the audio recording of the song itself, and you’ve also got the stage performance. 

I can’t take a Katy Perry song and sing it myself on stage for profit or in a commercial setting. I’m not hiding the fact that I didn’t write it. I’m saying, ‘Hey, I’m covering Katy Perry.’ Absent permission from her, that is copyright infringement.  You may be thinking, but what about cover bands? A cover band typically has to get permission from a licensing group to play other people’s music. Even groups such as church worship bands get blanket licenses in order to perform other people’s works.  Otherwise, it’s copyright infringement. And the right of performance is one of the exclusive rights granted by copyright law. 

However, it starts to get murky when we introduce ‘fair use.’ The question that arises is, how much can I take from the original author so that it will qualify as non-infringing or as fair use? Fair use states that if you take a nominal part of someone’s work of authorship and use that, it’s a defense to copyright infringement. 

Copyrights also have a limited lifetime. They expire and go into the public domain at a certain point after the creation of the original work. For example, the work of Mozart, and all classical composers, is now public domain. I can perform Mozart without getting prior permission. In general terms, Copyright law states that a copyright is valid for the artist’s lifetime, plus 70 years. 

For my contemporaries, you may remember a similar issue in 1990, where Queen sued Vanilla Ice for using their unmistakable intro to Under Pressure in his equally famous Ice Ice Baby. In that case, Vanilla Ice eventually bought the rights to the intro melody from Queen, saying it was cheaper to purchase the rights then fight Queen in court. Here is the sample on both https://www.youtube.com/watch?v=ncHVW_WavSk.

Related: TikTok, Tick-Tock. Can You Claim Copyright on a Dance Move?

My Judgement

In my mind, this is undoubtedly the correct result. Yes, those melodic lines are similar but the full songs are entirely different and can in no way be confused. The appeals judge made the right decision and I think that the jury simply got confused by the arguments made by a good plaintiff’s attorney.